OF LEASING-MAKING. Trial of Mr. John Stewart, Commissary of Dunkeld, son to Mr. James Stewart of Ladywell, for LeasingMaking against the Earl of Argyle, and fabricating and uttering lies and calumnies contrary to law. LEASING-M EASING-MAKING was a statutory crime, the inven- 1641 tion of tyranny. It meaned originally, the making, 'or uttering of lies, tending to breed discord be'tween the King and his people.' So early as the reign of James I. of Scotland, it inferred a capital punishment, and the offence was the same, whether the calumnies were uttered of the King to his people, or of the people to their King. In succeeding reigns new meshes were added to this snare for life and li berty. Every one who misconstrued the King's proceedings, or who failed to inform upon those guilty of leasing-making,* were caught within the net. And it was not till after the death of King William, that the penalty of transgressing these laws was restricted to an arbitrary punishment. In the year 1641, the Earl of Argyle, with concurrence of his Majesty's Advocate, brought a criminal indictment against the prisoner for leasing-making, * Statute-law abridged, in voce Leasing-making. 1641 committed by the inventing aud uttering of calumnious reports, charging that noble Lord with slanderous speeches and disloyal pursuits. The origin of this trial is thus described by a contemporary writer of good authority.* One Graham, a minister, was challenged before the Committee of Parliament, which met on the 26th of May, 1641, for uttering speeches defamatory of the Earl of Argyle. On being challenged, he named as his informer another minister of the name of Murray. Murray declared that he had the report from the Earl of Montrose. Montrose acknowledged it; declared the report to be, that the Earl of Argyle had got some young lawyers, and others, in his name, to present bonds to sundry classes of men, obliging themselves to follow the Earl of Argyle as their leader, without any reservation of the King or of the state; and that the Earl of Argyle had said, that the Parliament, at their last meeting, had consulted lawyers and divines about deposing the King; that they had intended to have done it at the last session of Parliament, and would do it on the next." The indictment added, that the prisoner had sent an account of the whole to Lord Traquair, to be laid before the King. Montrose declared, that Lord Argyle made those speeches in his own tent at the Ford of Lyon, in presence of the Earl of Athole, and eight gentlemen, whom he had made prisoners: that one of these gentlemen was the prisoner, Stewart, and he offered to produce him as his authority. Immediately on this declaration, Montrose, dread * Guthrie's Memoirs, p. 79. ing that the prisoner might be tampered with to re- 1641 tract what he had said, to exculpate Argyle, and leave Montrose in the lurch, sent some gentlemen for hin. They brought him to Edinburgh on the 30th of May, and next morning he appeared before the Committee of Estates, and subscribed a declaration, asserting all that Montrose had affirmed in his name. Argyle, with many oaths, and much passion, denied the whole; and the prisoner was committed to custody in Edinburgh castle. In a few days, Lord Balmerino, and Lord Dury, one of the Lords of Session, were deputed by the Committee to examine the prisoner; and, whatever may have passed at this examination, the prisoner next day wrote a letter to Argyle, exculpating him from the slanderous speeches alledged to have been made at the Ford of Lyon, acknowledging the whole to have been a malicious fabrication of his, the prisoner's, and declaring further, that, by advice of Montrose, Lord Napier, and others, he had transmitted an account of it to the King. And to this he adhered, in a declaration before the Committee of Estates. On the 11th of June, Montrose, Napier, &c. were imprisoned in Edinburgh castle, and, on the 21st of July, the prisoner, at the instance of the Earl of Argyle, was tried for his life. Argyle's counsel produced in Court an order of Parliament requiring the Justices to proceed in the trial,* notwithstanding it was contrary to form for the Court to sit during the meeting of Parliament. They produced also a commission from Parliament, Records of Justiciary, July 21, 1641. 1641 appointing Lord Elphingstone, the Laird of Aithernie, John Semple, and Sir James Learmonth of Balconie, assessors to the Justices. The indictment charged the prisoner with the slanderous speeches against Argyle, mentioned above. It also set forth, that for these offences he had been already called before a Committee of Parliament, and had not only acknowledged his having expressed these calumnies both by word and writing, but also that they were false and groundless inventions contrived by bimself: that the Committee had thereupon pronounced a decree, declaring these speeches to be false and scandalous: that the prisoner was author of them: that he had thereby committed the crime of leasing-making; and, therefore, the Committee remitted him to the Justice Court to be punished accordingly. The first plea which the prisoner urged was, that the crime of leasing-making consisted in defaming 'the King, not in slandering the subject;' but this, like his other defences, was false, or frivolous, for the tyrannical statutes extend it to both cases. He pleaded, 2dly, That it behoved the King's Advocate to have a special warrant from his Majesty, before he could grant his concurrence to a prosecution raised by an individual on account of his private injuriesa position altogether repugnant to law and practice. And, lastly, he alledged, That it was not the Committee, but the Parliament, that had power to pronounce a decree, an argument altogether frivolous, seeing that the Justice Court were competent to pronounce a judgement in the case, although no guilt had been found, either by Committee, or by Parlia ment. The prisoner was much more decisive in the 1641 steps he took against himself. He repeated before the jury his former confession; and he humbly implored the Earl of Argyle's pardon, and offered to make every acknowledgement. The jury found the libel proved, and the Court sentenced him to be beheaded at the Cross of Edin. burgh on the 28th of that month, and the sentence was executed accordingly. As the prisoner's arguments during the trial were frivolous, so his behaviour between the sentence and its execution betrayed great irresolution. It was alledged that he had been induced to take the guilt upon himself, upon promise of indemnity,* in order to screen Argyle from the odious imputation in the speech which Montrose had repeated before the Comtee of Estates: that Sir Thomas Hope advised Argyle, that, if the prisoner was screened from punishment, the world would believe he had been bribed to retract his declaration before the Parliament; and, therefore, the prisoner's life was a sacrifice requisite to Argyle's vindication; and that the prisoner underwent the most violent conflict of passions, upon finding, that, by his own false testimony, he had been outwitted of his life. Be this as it may, it certainly shocks us to find a person who took such an active part in the civil wars of Charles I. which terminated in the murder of the King, and overthrow of the state, prosecuting unto death a man for reporting traiterous speeches of him; and it ought no less to warn us against the establishing or counte * Guthrie's Memoirs, p. 80. |