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his council in any matter which shall be demanded; you being examined by my lord archbishop of Glascow, and other honourable persons adjoined to him by his majesty's special commission, refused to answer to divers interrogatories proponed to you by their lordships, and at the same time professedly avouched the pope of Rome his jurisdiction, which by the laws of the country is many years since plainly discharged: therefore have you incurred the penalty contained in the statutes, and the same ought and should be executed upon you.

As for

treason in all places, and in all kingdoms; but
that, saith he, is known not to be so.
your acts of parliament, they are made by a
number of partial men, the best of the land
not agreeing with them, and of matters not
subject to their forum, or judicatory, for which
I will not give a rotten fig.

Where I am thought an enemy to the king's majesty's authority, I know no other authority he hath, but that which he received from his predecessors, who acknowledged the pope of Rome's jurisdiction. If the king, saith he, will be to me as his predecessors were to mine, I will obey and acknowledge him for my king; but if he do otherwise, and play the runnagate from God, as he and you all do, I will not acknowledge him more than this old hat.

Here the archbishop of Glascow interrupted his speech, desiring him to deliver bis mind in a greater calm and with more reverend speeches of his majesty (for he uttered those things in a vehement passion, and as one transported with fury). He remembered him, that he was accused upon his life, before judges that were authorized by his majesty's commission: to decline the judgment, or rail against his majesty's authority, was bootless, and in a man of his profession, being an ecclesiastic, very scandalous. He 'should rather take another course, to amend what he had offended in, and recal his former answers; if they had not proceeded from a deliberate purpose, or if he were resolute to maintain them, to do it with reason, and in a moderate sort; that this were his best, either for justifying himself, and the opinions he held, or for moving the judges, and their lordships that were assisting, to commiserate his case. He advertised him withal to be more temperate in his speeches concerning his majesty, otherwise he would not be licensed thus to offend.

It is further laid unto your charge, that you being demanded in the particulars, namely, Whether the pope hath power to depose the king's majesty, our sovereign? 2udly, Whether it be lawful to slay his majesty, being deposed by the pope? 3rdly, Whether the pope hath power to assoil his majesty's subjects, from their natural allegiance, or not? You denied to give any answer, touching any of the se points, except ye were enquired thereof by the pope, or others having authority from him and so not acknowledging, that his majesty's crown and authority is held immediately and sovereignly of God, the author of all government; that it is detestable once to think, that his sacred majesty may be lawfully killed, and that no man has power to assoil his majesty's subjects from their natural allegiance to his highness: you have in these points, and every one of them, committed most heinous treason; for the which what you say in your own defence I | see not. And yet further that it may be seen, how desperate your resolution is in all these points, although you were not required concerning the oaths of supremacy and allegiance given to his majesty, by his subjects, ye freely, and out of your own motives, condemned these oaths as impious and unlawful; thereby hath it appeared what a wicked and treasonable mind you foster against his majesty, our soveTo this Ogilvie made some little answer, reign. If you should deny it, here are your That he would take the advertisement, and answers subscribed with your own hand, which speak more coolly; howbeit, he would never ve cannot but acknowledge; them I desire to acknowledge the judgment, nor thick they had be read, as likewise the several statutes of par-power to sit on his life; but said, And for the hament, which you are alledged to have transgressed, and thereafter, since his majesty is pleased, that the ordinary course of trial be kept unto you; you shall have liberty to say for yourself, either against the relevancy of the Indictment, or verification produced, what you think best.

reverence I do you, to stand bare-headed before you, I let you know it is, Ad redemptionem vexationis, et non ad agnitionem judicii.'

The Advocate here insisted, that seeing all his answers tended to decline the judgment, and that he brought no reason why the indictment should not go to a trial, that the jury should be chosen and sworn at the bar, according to the custoin.

Then were read the statutes of parliament mentioned in the Indictment, and the said John The Names of the Jury: sir George ElOgilvie's Answers to the Demands propon-phingston, of Blythswood; sir Thomas Boyd, ed unto him, which he acknowledged for his of Boneshaw; Sir James Edmeston, of Dunown, and the subscription thereto subjoin-traith, elder; James Murhead, of Lachop; ed; after which, having license of the court to say what he could for himself, he spake

to this effect:

FIRST under protestation, that I do no way acknowledge this judgment, nor receive you, that have that commission there produced, for my judges, I deny any point laid against me to be treason: for if it were treason, it would be

James Roberton, of Ernock; Hugh Crawfurd, of Jordan-hill; John Carschore, of that ilk; Hugh Kennedy, provost of Aire; William Makariel of Hill-house; James Blaire, bailie of Aire; James Dunlop, of Powmilne; John Steward, burgess of Aire; John Dumbar, buress there; James Johnston, burgess there; John Cunningham, of Rawes,

It was allowed the prisoner to challenge any of the fore-named persons, and to oppose unto their admission: who said,

:

He had but one exception for them all they were either enemies to his cause, or friends: if enemies, they could not be admitted upon his trial; and if they were his friends, they should stand prisoners at the bar with him.

The Jury were instantly sworn and admitted. Then was the Indictment read again in the hearing of the Jury, and the evidences shewed them for verification thereof, which of before were produced. And the prisoner being of new remembered to say what he would for himself, for the better information of the Jury, spake these things following:

I wish these gentlemen to consider well what they do. I cannot be tried nor judged by them; and whatever I suffer here, it is by way of injury, and not of judgment. Injuria est, non judicium. I am accused of treason, but have done none offence, neither will I beg mercy.

Ogilvie. For the declining of the king's authority, I will do it still in matters of religion; for with such matters he hath nothing to,do: neither have I done any other thing, but that which the ministers did at Dundee; they would not acknowledge his majesty's authority in spiritual matters more than I; and the best ministers of the land are still of that miud, and if they be wise, will continue so.

The Archbishop replied, That he was mistaken, both in the place and matter; for it was not at Dundee, but Aberdeen, where eight ministers meeting in a general assembly, contended not against the king's authority, but that the assembly called to that place and time could not be discharged by his majesty's commissioner: neither should the fact of a few, take it at the worst, be esteemed the deed of the whole. These have been punished for their offences, and some of them have confessed their error, and been graciously pardoned by his majesty. All good ministers profess otherwise, and our religion teaches us to acknowledge his majesty our only supreme judge in all causes. The king is keeper of both tables, and his place bears him not only to the ruling of his subjects in justice, and preserving equity amongst them, but even to maintain religion and God's pure worship, of which he should have principal care. Your lord the pope hath not only denied this authority to kings, which God giveth them, but usurpeth to himself a power of deposing and killing when he is displeased; and it were the less to be regarded, if this his usurpation had gone no further than your pens: but you have entered, by this pretended right, the throats of the greatest kings, Archbishop. And do you not esteem it a as your practice upon the two last Henrys of fault to go against the king's commandment, France bears witness. You are not able to especially in this point of discharging you his lay such imputation upon us, nor our profeskingdom? If a king have any power within hission, which teaches, that next unto God Alkingdom, it seems he may rid himself and his mighty, all men are bound to fear, serve, and country of those with whom he is offended; honour their kings. But what answer you and it savours of great rebellion to say other- touching these demands? Hath the pope power to depose the king? or is it not murder to kill him, being deposed by the pope?

Archbishop. This is strange, you have done none offence, and yet you are come in his majesty's kingdom, and have laboured to pervert his highness's subjects; both of these are against the law: In this have ye not offended? Ogilvie. I came by commandment, and if I were even now forth of the kingdom, I should return neither do I repent any thing, but that I have not been so busy as I should, in that which ye call perverting. I hope to come to Glascow again, and to do more good in it. If all the hairs of mine head were priests, they should all come into the kingdom.

wise.

:

Ogilvie. I am a subject as free as the king is a king; he cannot discharge me if I be not an offender, which I am not.

And being asked for what offences he might be discharged by the king? answered, in the cases of theft and murder.

Ogilvie. I refused before to answer such questions, because in answering, I should acknowledge you judges in controversies of religion, which I do not. I will not cast holy things to dogs.

or not?

Archbishop. You come not to answer any Archbishop. Is it a point of faith, that the thing to the points of your indictment. Why pope may depose his majesty or do you think did you decline his majesty's authority, and re- it a controversy in religion, whether his mafused to shew your opinion anent the pope, hisjesty (whom God save) may be lawfully killed, power in deposing kings, and loosing subjects from their oath of allegiance? And when it was asked you, if it were lawful to slay the king, being deposed, and excommunicated by the pope, which any loyal-hearted subject will abhor to think of, why did you not simply condemn it as unlawful? For in that you do not condemn it, you shew yourself of the opinion of the rest of your sect, who in their books maintain, that it is both lawful and commendable to slay kings, if the pope's commission go forth once for it,

Ogilvie. It is a question amongst the doctors of the church, and many hold the affirmative not improbably. A council hath not yet determined the point: and if it shall be concluded by the church, that the pope hath such power, I will give my life in defence of it; and if I had a thousand lives, I would bestow them that way, if they will make an article of faith of it.

Being urged by the court to declare his own opinion, especially in that point, whether it

were murder to kill his majesty, being deposed | ty; he saith, it is treason for subjects to swear by the pope?

Ogilvie. I would not say it were unlawful, though I should save my life by it. That if the king offended against the catholic church, the pope might punish him as well as a shepherd, or the poorest fellow in the country. That in abrogating the pope's authority, the estates of parliament had gone beyond their limits, and that the king in usurping the pope's right, had lost his own. Nam qui rapit jus alienum, 'perdit jus ad suum.'

the oath of allegiance; and meaneth so much in his last words, as the king's majesty's life and estate cannot be assured, except he renders himself the pope's vassal.

Thus hath he left you little to do, except that his majesty's pleasure is, the ordinary form be kept with him, you should never need once to remove : all his speeches have been so stuffed with treason, that I am sure the patience of the noblemen, and others here present, hath been much provoked.

In all that he hath said, I can mark but two things alledged by him for the pope's authority over kings; the words of our Saviour to St. Peter, Pasce oves meas,' feed my sheep and the subjection of kings, especially of our kings, since the kingdom became Christian, to the pope. For the words of our Saviour, how little they serve his purpose, I have no need to tell you. To feed the sheep of Christ, is not, I hope, to depose kings from their estates, nor to

Being asked touching the oath of allegiance, Why he did condema it? and the same being read unto him; He said, It was a damnable oath against God and his truth, and that it was treason to swear it, because it brought the king's person and state in danger. Since this kingdom, said he, was Christian, the pope's supreme power was always acknowledged: this being cast off (as we see in the act of your parliament) against all reason and conscience, and subjects forced to swear to a matter so unlaw-enflame the hearts of subjects against princes, ful, what marvel that attempts and dangerous courses be taken against him. Justissima lex 'est, ut quæ agit aliquis, talia patiatur." But would the king leave off his usurping upon the pope, he might live without fear, as well as the king of Spain, or any other Christian prince. Neither bishop, nor minister, nor all the bishops and ministers in his majesty's kingdoms had done, nor could do the like.

The Archbishop of Glascow did close all to the jury, to this effect:

Gentlemen, and others, who are named upon this assize, though I miuded to have said nothing, but sitten here a witness of the proceed ing, I have been forced by his proud and impudent speeches, somewhat to reply, and must, with your patience, say a little more. It is this same day, two-and-twenty weeks past, that this prisoner fell into mine hands; since that time he hath had leisure to think enough what course was fittest for himself to take, for satisfying his majesty whom he had offended; neither bath he lacked counsel and advice, the best that we could give him besides he hath found on our part nothing but courteous dealing, and better entertainment, than, I must now say it, he hath | deserved. Mine own hopes were, that he would have followed another course than I see he hath taken, and not stand to the answers which he inade to those demands which were moved unto him by his majesty's commissioners, and you have seen: but if his answers at the first were treasonable, they are now so little bettered, as in all your hearings, he hath uttered speeches most detestable, made a commentary worse than the text was, and shewed himself to carry the mind of an arrant and desperate traitor. You perceive he obscures not his affection towards the king's majesty, our sovereign, in all his speeches preferring the pope to his majesty and which is more intolerable, affirmeth the king's majesty to have lost the right of his kingdom by usurping upon the pope, He will not say, it is unlawful to kill his majes

much less to kill and dispatch them: we are better taught than to be deceived with such glosses. Saint Peter made never that sense of those words, and teacheth us a far other doctrine, in his first epistle, 5th chapter, and second and third verses.

I will not spend time with such purpose; only this I must say, that whatsoever was St. Peter's prerogative, the pope of Rome hath nothing to do with it: for he cannot be St. Peter's successor that hath forsaken his doctrine, and gone against his practice directly, both in that and other points of Christian faith. And for the antiquity of his usurped power, I may justly say, that Mr. Ogilvie is not well seen in antiquity, or then speaketh against his knowledge, when he saith, that this power of the pope was ever acknowledged by Christian kings: the bishops of Kome for many years made no such claim, neither did emperors or kings ever dream of such subjection: long it was ere the pope of Rome came to the height of commanding kings, and not till he had oppressed the church, under the pretext of St. Peter's keys, bearing down all the bishops within Christendom; which having done, then he made his invasion upon princes, and that by degrees. The histories of all ages make this plain, and the resisting he found by kings in their kingdoms, testified that they never acknowledged his superiority. Of our own, howbeit as we lie far from his seat, so had we less business and fewer occasions of contradiction; yet I can make it seen in divers particulars, when any question fell out anent the provision of bishops and archbishops to their places, the bulls of Rome were so little respected, as the king's predecessors have always preferred and borne out their own choice; and the interdictions made upon the realm, by these occasions, not without some imputation of weakness to the see apostolick, have been recalled. The superstitions of Rome were amongst us last embraced, and with the first, by the mercies of God, shaken off.

Whatsoever you brag of your antiquity, it is false both in this and in all the points of your profession else, which I could clear, if this time or place were fitting. But to you of this jury,' I have this only more to say, you are to enquire upon the verity of the indictment, whether such and such things as are alledged to be committed by him, have been so or not: you have his subscription, which he acknowledgeth; you hear himself, and how he hath most treasonably disavowed his majesty's authority: it concerns you only to pronounce as you shall find verified by the speeches that you have heard, and the testimonies produced. For the rest, the justices know sufficiently what to do, and will serve God and his majesty, according to the commission given them.

ers of heretics I will not have.-And so the Court arose.

A true Relation of such things as passed at the EXECUTION of John Ogilvie, upon the last day of February, anno 1615.

AFTER judgment was given, by the space of some three hours, he remained in the place where he was convicted, having leisure granted him to prepare himself for death. He continued a while upon his knees at prayer, with a cold devotion; and when the hour of execution approached, his hands being tied by the executioner, his spirits were perceived much to fail him. In going towards the scaffold, the throng of people was great, and he seemed much amazMaster William Hay, Advocate for his ma- ed; and when he was up, Mr. Robert Scott, and jesty, asked instruments upon the prisoner's Mr. William Struthers, ministers, very gravely treasonable speeches, uttered in the hearing of and christianly exhorted him to an humble acthe jury, and his ratification of the former an- knowledgment of his offence, and if any thing swers made to his majesty's commissioners: troubled his mind, to disburthen his conscience. likewise, for the further clearing of the indict-In matters of religion, they said, they would ment, repeated the acts of parliament mentioned in the said indictment, with the act of privycouncil, made anent his majesty's supremacy and the oath of allegiance. And desired the jury deeply to weigh and consider the perverseand devilish disposition of the party accused; to the effect they might without scruple proceed in his conviction. And according to his place, protested for wilful error, if they should acquit bim of any point contained in the said indict

ment.

The persons named upon the jury, removed to the higher house, which was prepared for them; and having elected sir George Elphingston, chancellor, all in one voice found the prisoner Guilty of the whole treasonable crimes contained in the indictment..

Which being reported by the said sir George | Elphingston, and confirmed by the whole jury; then returned into the court, judgment was given by direction of the justices, That the said John Ogilvie, for the treasons by him committed, should be hanged and quartered.

The Archbishop of Glascow demanded if Ogilvie would say any thing else?

Ogilvie answered, No, my lord. But I give your lordship thanks for your kindness, and will desire your hand.

The Archbishop said, If you shall acknowledge your fault done to his majesty, and crave God and his highness's pardon, I will give you both hand and heart; for I wish you to die a good Christian.

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Then Ogilvie asked, If he should be licensed to speak unto the people?

The Archbishop answered, If you will declare, that you suffer according to the law, justly for your offence, and crave his majesty's pardon for your treasonable speeches, you shall be licensed to say what you please; otherwise you ought not to be permitted.

Then said he, God have mercy upon me? And cried aloud, If there be here any hidden Catholics, let them pray for me; but the pray

VOL. II.

not then enter, but prayed him to resolve and settle his mind, and seek mercy and grace from God, through Jesus Christ, in whom only salvation is to be found.

Ogilvie auswered, That he was prepared and resolved. Once he said, that he died for religion; but uttered this so weakly, as scarce he was heard by them that stood by upon the scaffold. Then addressing himself to execution, he kneeled at the ladder-foot, and prayed; Mr. Robert Scott in that while declaring to the people that his suffering was not for any matter of religion, but for heinous treason against his majesty, which he prayed God to forgive him. Ogilvie hearing this, said, he doth me wrong. One, called John Abircrumie, a man of little wit, replied, No matter, John, the more wrongs the better. was seen to attend him carefully, This man and was ever heard asking of Ogilvie some token before his death; for which and other business he made with him, he was put off the scaffold.

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Ogilvie ending his prayer, arose to go up the ladder, but strength and courage, to the admiration of those who had seen him before, did quite forsake him he trembled and shaked, saying, he would fall,' and could hardly be helped up on the top of the ladder. He kissed the hangman, and said, Maria, mater gratiæ, ora pro me; omnes Angeli, orate pro ine; omnes Sancti Sanctæque, orate pro me:' but with so low a voice, that they which stood at the ladder foot had some difficulty to hear him.

The executioner willed him to commend his soul to God, pronouncing these words unto him, Say John, Lord, have mercy on me, 'Lord, receive my soul' which he did with such feebleness of voice, that scarcely be could be heard. Then was he turned off, (his left foot for a space taking hold of the ladder, as a man unwilling to die) and hung till he was dead. His quartering, according to the judgment given, was, for some respects, not used;

3 M

and his body buried in a place that is kept for malefactors.

We have understood, by some persons who visited him at times during his imprisonment, that amongst other his speeches with them, he said this, That if he had escaped his apprehension at this time, and lived till Whitsunday

next, he should have done that which all the bishops and ministers both in England and Scotland, should never have helped. And if he might have lived at liberty unto that time, he would willingly have been drawn in pieces with horses, and have given his body to have been tormented.

102. The Case of Mr. OLIVER ST. JOHN, on an Information ore tenus, in the Star-Chamber, 15th April, for writing and publishing a Paper against a Benevolence collected under Letters of the Privy-Council: 13 JAMES I. A. D. 1615.

["All that we have in print of the proceedings

on this Case is lord Bacon's Speech as attorney-general and prosecutor. See 2 Bacon's works, last 4to edit. 583. The paper which was the ground of the prosecution is in the Cabala. See page 332, of 2d part, 3d. edit. The Judgment of the court was, that Mr. St. John should pay a fine of 5000l. and be imprisoned during the king's pleasure. See the note in 3 Bacon, last 4to edit. 267, and the Introduc. to Bas. Lett. by Stevens, p. xxiii. The case appears to have been prosecuted with great anxiety; for, according to a letter from lord Bacon to the king, lord chancellor Egerton, who from the infirmities of age, was then on the point of resigning the great seal, expressed a wish to attend the hearing, and so make it the conclusion of his services. 3 Bac. 264. The grand argument of lord Bacon in favour of the Benevolence was, that it was without compulsion. If in the representation of the conduct of a rival and enemy, lord Bacon can be trusted, lord Coke, then chief justice of the King's-bench, at first gave it as his opinion, that the king could not so much as move any of his subjects for a Benevolence, but afterwards retracted in the Star-Chamber, and there delivered the law in favour of it strongly. Ibid. 483. 274.

"In our introductory note to the Case of Impositions, Benevolences were enumerated as one of the devices of extra-parliamentary taxation. Ante, page 371. As such the statute of 1 R. 3, c. 2, stiles them an unlawful invention, and annuls them for ever. But the Benevolences, mentioned in this statute, are described to have been so in name only, and to have been taken by coercion. Still therefore it was insisted, that gifts to the crown out of parliament, if really voluntary, were lawful. So lord Bacon argued in the following case; so in the same sense lord Coke is stated to have declared the law; so

lord Coke himself gives his opinion in his notes on Benevolences in the 12th Report; and so according to him all the judges resolved in the 40th of Elizabeth, 12 Co. 119. Lord Coke lays a stress on the statute of 10 Hen. 7, c. 10, which, after reciting that nany of the king's subjects had severally

granted to him diverse sums of money of their free wills and benevolence, and that some of these were in arrear, provides a remedy for compelling the payment. See Rastall's edit. of the Statutes. This statute, it must be confessed, seems to give a legislative sanction to such Benevolences as were really free offerings. But there is a later statute, with words strongly importing, that Benevolences to the crown, though voluntary, cannot regularly be made out of parliament. The statute we mean is the 13 Cha. 2, c. 4, which authorises the king to issue commissions under the great scal, for receiving voluntary subscriptions for the supply of his occasions; but limits commoners to 2001. and peers to 4007. a-piece, and also the time for subscribing, and concludes with declaring, that no commissions or aids of this nature can be issued out or levied but by authority of parliament. This in effect concurs with lord Coke's first opinion in Mr. St. John's case, as represented by lord Bacon; the aim of the statute being to condemn Benevolences by the solicitation of commissions from the crown, and so to supply the defect of the statute of Richard the Third and of the Petition of Right, both of which point at compulsive Benevolences. The inducement to such a declaration of the law probably was an idea, that a formal solicitation from the crown must necessarily operate, on the minds of those to whom it was addressed, with an influence almost equal to compulsion. Thus at length it seems to be settled by the legis lature, not only that compulsive Benevolences are unlawful, but that all commissions from the crown to solicit and receive voluntary gifts are also unconstitutional." Hargrave.] LETTER from Mr. Oliver St. John to the Mayor of Marlborough, which was the subject of the Prosecution; taken from the Cabala, 3d edition, part 2, page 332. ASI think, this kind of benevolence is against law, reason and religion:

1. The law is in the statute called Magna Charta, 9 Hen. 3, cap. 29, that no free-man be any way destroyed, but by laws of the land. Secondly, besides that the said statute of Magna Charta is by all princes since established and

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