the lower House, or rather by Atterbury.* The | the queen did not confirm the step that we had bishops went through all the matters, recom- made. This was not unacceptable to some of mended to them by the queen; and drew up a us, and, to myself in particular; I was gone scheme of regulations on them all: but neither into my diocess, when that censure was passed; were these agreed to, by the lower House; for and I have ever thought, that the true interest their spirits were so exasperated, that nothing of the Christian religion was best consulted, sent by the bishops could be agreeable to them. when nice disputing about mysteries was laid At last the session of parliament and convoca- aside and forgotten." tion came to an end." "The censure that was passed on Whiston's book, had been laid before the queen in due In the year 1707, the House of Commons form for her approbation: but at the opening had ordered to be burned by the hangman, of the session in December 1712, the bishops An Argument proving that according to the finding that no return was come from the throne covenant of eternal life revealed in the Scripin that matter, sent two of their number, to re-tures, man may be translated from hence. ceive her majesty's pleasure in it; the arch-into that eternal life, without passing through bishop being so ill of the gout, that he came not death, although the human nature of Christ among us all that winter. The queen had put himself could not be thus translated, till he had the censure, that we had sent her, into the passed through death.' Dr. Somerville says, hands of some of her ministers, but could not "As this proposition could not be productive remember to whom she gave it; so a new ex- of bad influence upon practice, so it was detract of it was sent to her; and she said, she fended with great ingenuity, and every mark would send her pleasure upon it very speedily: of sincerity by the author :" and he observes, but none came during the session, so all further that by the expulsion, "the Commons seem proceedings against him were stopped, since rather to have displayed an officious zeal for orthodoxy." Mr. Asgill had on the 10th of November by letter represented to the Speaker, that he was detained a prisoner in the Fleet upon two executions, and Dr. Somerville adopts the supposition that, "It was probably with the view of getting rid of this petition, and the disclaiming connexion with a person, whose embarrassments had brought him under reproach, more than from any motive of religious zeal; that the House inflicted such a severe sentence." It may however be observed, that the Commons had, by delivering Mr. Asgill out of custody, formally recognised his connexion with them, and given him the full benefit of it before they questioned him concerning the publication. Mr. Barrington (Observations on 2 Hen. 5,) after noticing the persecution of the poor harmless Lollards in that king's reign, says, "Titus thought very differently, with regard to these kinds of prosecutions; AS TI dIxas THE ασέβειας και αυτοί ποτε εδέξατο, ως' άλλοις επιτρέψει. Dio Cassius, I. lxvi.” 447. Proceedings against Mr. JAMES DUNDAS, for Leasing-making and Sedition: March 3rd, 10 ANNE, A. D. 1712*. [Maclaurin's Arguments and Decisions in Remarkable Cases before the High Court of Justiciary and other Supreme Courts in Scotland.] Her MAJESTY'S ADVOCATE against Mr. JAMES &c. THREE Libels were executed successively against the pannel, all of them of the following tenor: "That where, by the law of God, and the laws of this and all other well-governed realms, every soul ought to be subject unto the higher *Boyer, who had before mentioned (p. 456) that in 1710 the friends of the Pretender had distributed in the Netherlands such a medal as that which gave rise to this prosecution, thus ought to honour the king: likeas by the laws and acts of parliament it is statute; and first by the act of parliament king James 1, parl. 2, cap. 43, That leasing-makers, and tellers of them, to the engendering of discord between the king and his people, tyne [forfeit] life and the commonwealth of England, had been received, and why not this?" Upon this Mr. Duncan Forbes, brother to Colloden, and Mr. Joseph Hume of Nineholes, said, it was time enough then to receive the medal, when the Pretender was banged; to whom adhered Mr. Hugh Dalrymple, son to the president; Mr. James Ferguson, son to sir John Ferguson of Kirkennel, and sir James Stuart of Goodtrees, her majesty's solicitor. After that, Mr. Dnndass, of Armiston, rose up, and made the fol powers, as ordained of God, and none ought to "Dean of Faculty, whatever these gentlemen may say of their loyalty, I think they affront the queen, whom they pretend to honour, in disgracing her brother, who is not only a prince of the blood, but the first thereof; and if blood can give any right, he is our undoubted sovereign. I think, too, they call her majesty's title in question, which is not our business to determine. Medals are the documents of history, to which all historians refer; and therefore, though I should give king William's stamp, with the devil at his right ear, I see not how it could be refused, seeing an hundred years hence, it would prove, that such a coin had been in England. But, dean of faculty, what needs further speeches? None oppose the receiving the medal, and returning thanks to her grace, but a few pitiful scoundrel vermin and mushrooms, not worthy our notice. Let us therefore proceed to name some of our number, to return our hearty thanks to the duchess of Gordon." Hereupon the dean of the faculty put it to the vote, and it was carried by a majority of 63 voices against 12, (there being 75 members present) that thanks should be returned to her grace, by Mr. Dundass, and Mr. Horn of Westhall. Three days after, these two waited on the duchess, and Mr. Dundass returned her the most hearty thanks of the faculty for all her favours, particularly in presenting them with a medal of their sovereign lord the king; hoping, and being confident, that her grace should, very soon, have an opportunity to compliment the faculty with a second medal, struck upon the restoration of the king and royal family, and the finishing rebellion, usurping tyranny and whiggery. It was, on this occasion, justly observed, that this medal was not new; for the public had an account of its being dispersed in the Netherlands about a year before: and it was then the general opinion, that it was struck upon the fond hopes given by the Jacobites in England, to their correspondents in France, that the British nation was ready to declare for the Pretender: to which the distractions occasioned by Dr. Sacheverell's Sermon and Trial, and the asserting the doctrines of divine unreasonable communing, to the occasioning of conspiracy against the prince, or of sedition, are to be punished at the queen's pleasure: and by the act of parliament, Ja. 6, parl. 8, cap. 134, all such as privately or publicly, in sermons, declarations, or otherwise, utter slander to favour a second invasion: the rather, because Mr. Dundass, in his compliment to the duchess of Gordon, did not scruple to insinuate a speedy restoration of the king and the royal family. goods to the king; which, by the act of parliament, Ja. 5, parl. 6, cap. 83, is extended to such as make evil information of the king to his lieges, as well as to those that make leasings to the king of his lieges: likeas by the act of parliament, queen Mary, parl. 6, cap. 60, speaks of hereditary right, and of absolute passive obedience, diametrically opposite both to the late Revolution, and the Protestant Succession, gave some air of probability. Nor was this medal scarce, but rather common; and as for its intrinsic value, it did not exceed half a "The report of this medal's being presented, crown: so that it could not be worth either and received with the circumstances above. the duchess's while to present it, or the fa- mentioned, having made great noise in Edinculty's to receive it, on the account of its bargh; sir David Dalrymple, the queen's lord being new, scarce, or valuable in itself. And advocate, thought it his duty to give an acif the advocates designed it only as a curiosity, count of it to the duke of Queensberry, one of they might have easily procured it, and placed the principal secretaries of state, who hap it among their collection, without formality and pening to die at this very juncture, that infor noise. But the duchess's presenting it, and mation was laid before the queen, by one of the some of the advocates receiving it with solem- other secretaries: whereupon, orders were nity, and endeavouring to make it the act of sent to the lord advocate, to enquire into that the faculty, by returning thanks to her grace in matter. The faculty of advocates being senthe name of the whole society, with so much sible of the error committed by some of their ostentation, was certainly a public and trea- members, endeavoured to palliate it by a desonable affront to her majesty, a tacit arraign- claration, importing, "That being met extrament of her title, and a striking at the settle- ordinarily, it appeared to them, that a medal ment in the House of Hanover. Nor is it to was sent to one of their servants; who being be doubted, that the design of the Jacobites called, acknowledged his having the same, and was to give reputation to their cause, by en- justified that it never was put into the faculty's gaging so many gentlemen of the long robe collection of medals, nor had ever been out of to espouse it; as the readiest way to bring the his custody. That the said dean and faculty common people into their measures: for as did, at the same time, unanimously declare, these are generally led by example, they would that they rejected the offer of the said medal, be apt to conclude, that there could be no and ordered the said servant to deliver up the danger in following the pattern set them by same into the hands of the lord advocate, which those, who, of all men, ought best to under- was done in their presence: and did unanistand the laws and constitution of their coun- mously appoint a committee, to bring in an act try. The timing of this transaction was like- of faculty; containing a narration of the fact wise judged very remarkable: for, it was soon as above, and a declaration of their duty and after the assembly of the kirk of Scotland loyal affection to her majesty's person and go, had publicly declared themselves for the Pro-vernment, and the Protestant Succession as by testant Succession in the most illustrious House of Hanover; and their sense being justly taken for that of the bulk of the Protestants in Scotland, whom they represent in an ecelesiastical capacity, it seemed, the Jacobite party there thought it necessary to balance them, by the sense of the ministers of law and justice in that country. This happened also immediately after her majesty had declared, in her speech at the close of the last session of parliament, that it was needless for her to repeat the assurances of her earnest concern for the Succession of the House of Hanover: from whence it may be concluded, that the Jacobites, being sensible of the hurt this declaration had done their cause, they might think, the only way to retrieve it, was, by getting so many lawyers to declare for them. And, in the last place, this was done at a time when the armies were in the field, and the Pretender reported to be gone from St. Germains, in order to embark in some port of France on the ocean; which might raise a well-grounded suspicion, that this was designed law established; and their detestation of all practices, that, directly or indirectly, might contain the least insinuation to the contrary, or any encouragement to the Pretender." It was for some time matter of doubt, whether the government would be satisfied with this act of the faculty; for it was well known, that, notwithstanding their public recantation, or denial, yet the fact had happened as was above related; and was, in private, justified by some of the members that had been most active in it: but as it is prudence, in many cases, for princes rather to overlook, than punish injuries; so the court thought fit to make no further inquiry into that business: wisely considering, that the advocates could not be so extravagant, as to venture upon a piece of temerity so nearly bordering upon treason, had they not been sure of being supported by a strong party of Jacobites, and other discontented persons, who wanted but an opportunity to rise. However, this lenity of the government emboldened Mr. Dundass to write, and send to the press, a vindication more traitorous, if possible, than ous or untrue speeches, to the reproach of his majesty, his council and proceedings, or to the dishonour and hurt of his highness, or who meddle in the affairs of his highness, and his estate, present, by-gone, and in time coming, are to be punished as leasing-makers: and by the act of parliament, Ja. 6, parl. 10, cap. 10, it is statute, That none depreciate his majesty's laws and acts of parliament, nor misconstrue his proceedings, to the moving of any strife betwixt his highness and his subjects, under the pain of death: and all these acts ratified Ja. 6, parl. 14, cap. 205: and these acts also extended against the authors and publishers of slanderous speeches or writs of the estate, people, or country of England, or any counsellor thereof, to the hindering the then intended union, or whereby hatred may be fostered, or misliking raised, between his majesty's subjects of this island; and all such are ordered and ordained to be severely punished in their persons and goods at his majesty's pleasure, Ja. 6, parl. 22, cap. 9: likeas by our act of parliament 1703, cap. 4, it is ordained, That for hereafter the crimes above mentioned shall be punished by fining, imprisonment, or banishment; or if the transgressors be poor, corporally: likeas by the first acts of the parliament, 1702 and 1708, our royal power and authority, and our undoubted right and title, are fully asserted and recognised. And further, by the common law, as well as by the foresaid laws and acts of parliament, injuries, slanders, reproaches and defamations, to the engendering of discords between the king and his people, or the occasioning of conspiracy against the prince, or of sedition, or to the dishonour or hurt of his highness, or to the moving dislike between his majesty and his subjects, may be done, perpetrate, and committed, not only by words and writing, and printing, but also by things themselves, as scandalous, seditious, pernicious medals, pictures, or the like, with their disloyal and wicked inscriptions; and the actors or accessories to the said crimes, so committed, ought to be se verely punished by the pains of law. Nevertheless, it is of verity, that you the said Mr. James Dundas, advocate, is guilty, art and part, of all and every, or one or other, of the foresaid crimes: in sua far as the said Mr. James Dundas, shaking off all fear of God, and regard to us and our laws, did first upon the 30th, or one or other of the days of June or July last by past, in an extraordinary meeting of the faculty of advocates in Edinburgh, where a medal of the Pretender (the very same, or like to that which is now consigned in the clerk's hands, that Mr. Dundas may see it) was brought, and presented, and noticed in its inscriptions and mottos, which were the islands of Great Britain and Ireland, encompassed with the sea and ships, on the one side, with the motto Reddite,' and having on the reverse a face, said to be the Pretender's; that is, the person pretended to be the prince of Wales during the life of the late king James, and since his decease pretending to be, and taking on him, the style and title of our dominions, with the motto Cujus est;' and which medal was sad to be presented to the faculty by the duchess of Gordon, to be put in the collection of their medals: the said Mr. James Dundas did then and there, not only contend and plead for the same, but though it was by some objected, That the medal was injurious to and reflecting upon us, and our right and government; yet he opposed and alleged, That being the medal of the Pretender, who had the right of blood, and which right he said was good, or words to this purpose, it ought to have been received, and the opposition made to it by mushrooms or scoundrels, or words to this purpose, ought not to be regarded; and so it was in a manner acquiesced to by the meeting, that the medal should be received, and thanks returned for it which practice of Mr. Dundas upon the matter, enemy to it, that his particular acquaintance did not stick to affirm, that he would have prosecuted the medalists with greater severity than any whatever, had he not had secret instructions from a great man at court, not to stir in that affair." It appears by the text that this prosecution was conducted by sir James Stewart. their proceedings about the medal; but, before its publication, the printer carried the copy of it to the lord provost of Edinburgh, who communicated it to sir James Stuart; and he took care that the queen and council should be informed of it; upon which, that paper was entirely suppressed. Moreover, Monsieur de Kreyenberg, resident from the elector of Hanover, having, by his electoral highness's express orders, presented a memorial, and Dr. Somerville very briefly speaks of this made pressing instances for the prosecution of matter in a note, in which he mentions, that Mr. Dundass and his associates; the govern- the omission of the ministry to enquire into ment not only granted his request, but even the truth of the contradictory assertions, as to removed sir David Dalrymple from his office the conduct of the advocates, which were made of lord advocate, on pretence that he had been by themselves and their accusers; or to take somewhat remiss, in prosecuting the Scotch notice of several Jacobite publications in cir Medalists; and reinstated sir James Stuart in culation, while they prosecuted with the that post, on account of the zeal he had lately utmost severity, the authors who wrote in shewed, in advising the suppressing of Mr. defence of the late ministry, under a professed Dundass's vindication. Though this gave zeal for Whig principles, strengthened the sussome satisfaction to the friends of the Protes-picion propagated against the ministers by tant Succession, yet, it is observable, that sir their enemies, that they were cherishing de David Dalrymple was so far from being an signs friendly to the Pretender. VOL. XV. SA was one of them,) exhausting Britain of money, carrying our countrymen abroad to be killed in time of war, and ordering them to be starved in time of peace; and after the example, as he says, of that abominable monster Nero, who, beside his inhumanity to his parents, burnt with joy the city of Rome. And he further accuses the said king William of prostituting the honour of the nation; and all along he treats his government as a foreign and according to the nature of the thing, was a most scandalous, seditious and pernicious reproach upon us, our government, and right thereto, tending to the engendering discord between us and our people, and to occasion conspiracy or sedition against us. Likeas it also was a most criminal reflection upon, and misconstructing of, the proceeding of us and our parliaments for settling the succession, contrary to the very Oath of Abjuration that he the said Mr. Dundas had taken, and clearly tend-yoke. But then he goes on to accuse and ing to move dislike between us and our subjects. slander us who now reigns, for continuing, conBut the said Mr. Dundas, not resting in this trary to law, as he alleges, king William's parhis wicked practice, hath, upon one or other of liament, though it was both warrantable, and the days of August last, further proceeded to approven by an express act of parliament; the making or publishing of a most scandalous, whence he proceeds to condemn the union of pernicious and seditious pamphlet, under the the two kingdoms as a fatal blow to our laws, title of The Faculty of Advocates Loyalty, in and the finishing subversion of our constitua Letter to us by one of the Dean of Facul- tion, in laying an embargo upon our trade, dity's Council.' Which pamphlet, and most vesting the Peers of their hereditary right, diinfamous libel, is a heap of lies, villanies and minishing the parliamentary representation of mischief; whereof his written copy, with the the Commons, and surrendering the whole printed copy printed by his order, and so pub-power and sovereignty of Scotland into the lished, is put in the clerk of court his hands, hands of a more powerful people, our old enethat he may see it; and a double also of the mies of England; and not stopping in his resame, beld as here repeated, and given out to flecting upon and reproaching the Union, he him to answer: as, first, and in the first para- goes on to reflect upon the proceedings of us graph thereof, where, abusing a very tender and the British parliament, by abrogating part and sacred principle and position of govern- of our laws, though infinitely better, as he says, ment, as to Non-Resistance, he stretches the than those of the English, and introducing the same most wickedly and maliciously to the English laws about treason, in place of ours, condemning of the late happy Revolution; and which he also falsely makes a breach of an ar then proceeding, he villanously reflects upon ticle in the treaty. And then, taking notice of the very first happy times of our reformation the appeals that lie from the lords of council from Popery, directly accusing both our noble and session to the British parliament, be round. regents and worthy reformers, and also the ly reproaches the whole House of Peers, as men English, then our friendly assistants, of rebel- who can scarce be presumed to know either lion and tyranny against the then queen Mary; law or equity; adding further another false inadding, that after her decease we submitted to sinuation, as if our representatives were, conthe next in blood; but then he plainly asserts, trary to the treaty of Union, ranked after all against our right and title, and the succession the counties and boroughs of England. Nor to the crown, as now settled by act of parlia- doth the kingdom of Ireland escape his unacment, that relation, kindred, and the rights of countable malice and reproach, when he calls blood, are so sacred, that no crime, nor noit a receptacle of English slaves, and a conpower on earth, could take them away: thereafter he goes on with his malicious strictures upon the times of the late king Charles 1, and upon things long since happily buried by several acts of indemnity, and that not without most rude reflections on the English as cowards: and where, in a word, he makes the whole English nation either professed Jacobites, that is, enemies to us, or such villains, as he calls them, as to profess only loyalty in shew, when they are at the bottom abominable hypocrites, false friends, and traitors. Then he goes on to reflect again upon the late happy Revolution, which he reckons no better than a curse, and the late king William, of ever-glorious memory, no better than a Nebuchadnezzar; and that to him we were all made slaves; and thence he takes a new flight against the late king William's memory, whom he falsely accuses of alienating the bishop's rents to profane uses, of giving us ignorant and villainous judges, (though Mr. Dundas his own father, a person of probity and merit beyond exception, quered province, unjustly preferred to Scotland. And further wickedly adds, to the manifest engendering of discord, and moving of dislike, that all overtures for the good of Scotland were refused. After all which he most absurdly concludes for the loyalty of the advocates, though they had received a medal of the Pretender, from no better arguments than his own pernicious and wicked reflections above remarked. By all which it is manifest, that the said Mr. James Dundas is guilty, art and part, of most seditious and pernicious practices; as also of a most wicked, villanous, seditious and pernicious pamphlet, and defamatory libel, contrary to the foresaid laws and acts of parliament. Which being found by a verdict of an assize, before our lords justice general, justice clerk, and commissioners of justiciary, he ought to be, by their sentence, severely punished with the pains of law, to the example and terror of others to do the like in time coming.". Sir James Stewart, her majesty's Advocate, |