6

From Bothwell Bridge to Wigtown

Scotland and the Stewart Reaction

The Scottish Whigs were of as Rank a Tincture… as any of our English Ones; their Meetings; their Numbers; and their Resolutions, much more Considerable (in proportion) then they were here in England… And yet you see now, the Power of Good Laws; and a Steady Administration of them, in the Instance of that Kingdom. The Meetings are not only Suppress'd; but the Venome it self of that Virulent Faction Corrected and Aswag'd.¹

Since Pentland Engagement till this Period… there was some kind of shadow from the present iniquous Laws, to countenance what was done this Way: But in the Period we are now entring upon, besides the new barbarous Laws made, the Execution of them was very bloody and very extensive; and the blood-thirsty Executioners, in many Cases, gave not themselves the Trouble to keep by their own Laws, but harassed and murdered in the publick Roads, open Fields, and almost every where upon the South-side of Tay.²

We have seen how in England, through a combination of policy and police, Charles II was able to extricate himself from the crisis that developed in the late 1670s and early 1680s and steadily rebuild the position of the monarchy during the final years of his reign. In the process, the crown set itself in firm alliance with the Tory-Anglican interest, representing itself as acting in accordance with the rule of law and in defence of the present establishment in Church and state as by law established. Yet the crisis that had faced Charles in the late 1670s and early 1680s was not purely English in nature. Those who feared the threat of popery and arbitrary government had pointed to developments in Ireland and Scotland to suggest what the royal brothers had in store for England, while the royal administration remained concerned, as it had been throughout much of the Restoration period, about the possible threat to political stability posed by the disaffected in Charles II's two other kingdoms. Of the three kingdoms, Scotland appeared to pose the greatest danger to the security of the Restoration regime. On 3 May 1679 a group of radical Presbyterians had murdered the Archbishop of St Andrews, James Sharp, while shortly thereafter some 8,000 covenanters in the south-west had risen in arms against the government. Even after the defeat of the rebel forces at Bothwell Bridge on 22 June, there remained a threat from the radical Cameronian faction, who in various public declarations proceeded to excommunicate Charles Stuart and declare war on a man they regarded as both a tyrant and a usurper.

We need to consider, then, how the government responded to the crisis in Scotland, and how this response differed from its actions in England. Do we likewise see an attempt to build up public support for the government's position and a similar concern to be seen to be acting in accordance with the rule of law? What sort of measures did those in authority pursue in order to deal with the challenge of political and religious dissent, and what were their consequences? We also have to recognize that what was done in Scotland was not simply a solution to a Scottish problem; it was also part of a British solution to a larger British problem. Charles II sent his brother, the Duke of York (or Duke of Albany, to give him his Scottish title), to Scotland for two periods during the Exclusion Crisis: the first from November 1679 to February 1680, and the second from October 1680 to March 1682. York played an active role at the head of the government north of the border, and served as high commissioner to the parliament which Charles II summoned to assemble in Edinburgh during the summer of 1681. We must assess what York was able to achieve in Scotland, why Charles held a parliament there when he had already given up on parliaments in England, and what impact such initiatives north of the border had on political developments and informed opinion within England.

THE AFTERMATH OF BOTHWELL BRIDGE AND YORK'S FIRST SPELL IN SCOTLAND, 1679–1680

Although Scotland had proved to be a more rebellious country than England, we should be careful not exaggerate the extent of disaffection north of the border. Their inherent political and religious conservatism meant that the ruling elite in Restoration Scotland were never likely to join forces with popular discontented elements to cause the types of problem for Charles II as had faced his father in the late 1630s. As one historian has put it, in 1679, in contrast to 1637, ‘popular anger was not fused with aristocratic dissent.’³ Yet there was also opposition to the covenanters from those below the level of the elite. The Duke of Monmouth, captain-general of the English army and the man Charles dispatched to put down the Bothwell Bridge rebellion, was cheered by ‘all his Majesties good subjects’ when he arrived in Edinburgh on 18 June, we are told.⁴ Similarly, ‘Great Multitudes’ lined both sides of the street for 2 miles out of town when the captured rebels were brought to the Scottish capital on 24 June, maliciously ‘jesting and reproaching the Prisoners as they went by’, while there were ‘publick Rejoycings’ in Edinburgh on 14 August following the execution of John King and John Kid, two field preachers taken for alleged involvement in the uprising (although on this occasion the Scottish privy council had given orders for the lighting of bonfires).⁵

The covenanters were no match for Monmouth's professionals when they met at Bothwell Bridge on the outskirts of Glasgow on 22 June. Several hundreds were killed as they fled the battle – estimates vary between 200 and 400, although the actual total was probably nearer the lower end, since Monmouth himself was opposed to slaughtering men in cold blood.⁶ Some 1,200 surrendered in the field and were taken prisoner, with subsequent arrests swelling this total to about 1,400. Troops dispatched to the south-west under the command of John Graham of Claverhouse in search of rebels who had fled committed a number of severities, exacting free quarter, rifling the houses of suspects, and imposing excessive fines of dubious legality. The brutality was fuelled by Charles's having authorized the use of torture on those who refused to inform. Soldiers strung up one boy by his thumbs when he refused to declare which of his neighbours had been at Bothwell Bridge. They tied a cord around the head of another ‘harmless youth’, secured it to the butt of one of their pistols, and then twisted it ‘about the upper Part of his Head… so hard, that the Flesh was cut round in to the Skull’. The cries of pain could be heard for miles around, and the unfortunate youth subsequently died of his wounds.⁷

Monmouth, however, urged moderation in the treatment of the arrested rebels. Most were released under the terms of the indemnity issued at Windsor on 27 July and proclaimed in Scotland on 14 August, after the executions of King and Kid; this offered a general pardon to all field or house conventiclers and those engaged in the rebellions of 1666 and 1679 – with certain exceptions – provided they took out a bond never to carry arms against the King or his royal authority. The exceptions were heritors and ministers involved in the Bothwell Bridge uprising, and those who had refused to obey the summons to join the government host to put down the rebels, threatened or abused any of the orthodox clergy, or denied that the uprising was a rebellion or that the killing of Archbishop Sharp was murder.⁸ Of the presumed ringleaders and recalcitrant rebels, only seven were sentenced to death. In addition to Kid and King, thirty men were tried on charges of treason or denying Sharp's killing to have been murder, but all were given the opportunity to save themselves by taking the bond. Twenty-four did so, and one was acquitted; the remaining five were executed. Some 3–400 were slated for transportation to the colonies; tragically, more than 220 of these died when the overladen ship carrying them to Barbados was wrecked off the Orkney coast on 10 December.⁹ Some thirty-five heritors excluded from the indemnity were dispossessed: Claverhouse was duly rewarded with one of the forfeited estates; some of the other land seized, it was said, was given to Catholics. Heavy fines were also imposed on those heritors who had failed to attend the militia muster – Lord Duddingstoun, for example, was fined £1,000 Scots for not sending out men.¹⁰

By the summer of 1679 it was again apparent that the policy of repression had not worked. Not only had it provoked another rebellion in Scotland, but it had also created a storm in England, encouraging the complaint that the royal administration was bent on establishing arbitrary government.¹¹ Charles therefore decided to try once more to reach an accommodation with the more moderate Presbyterians. On 29 June, just three days after he had learned of the defeat of the rebels at Bothwell Bridge, he issued a third Indulgence, which, while still calling for the suppression of field conventicles, suspended all laws against house conventicles south of the Tay, except those held within 2 miles of Edinburgh or 1 mile of St Andrews, Glasgow and Stirling. Although the royal suspending power was to emerge as a major issue at the time of the Revolution in both Scotland and England, on this occasion Charles could claim he was acting in accordance with a provision in the Scottish Conventicle Act of 1670, which had left it to the King's discretion whether or not to continue the act after three years had lapsed. The historian of the Presbyterian sufferings Robert Wodrow, although he certainly had his own politico-religious agenda, was probably correct when he said that ‘this Indulgence was no Exercise of a dispensing Power, but agreeable to the Laws then in being.’¹² The orthodox clergy, however, were upset by the Indulgence, and urged the council to extend the exclusion zone around Edinburgh to 6 miles, though to no avail.¹³

Bothwell Bridge marked the effective end of Lauderdale's dominance of Scottish affairs. Although he did not formally resign as Secretary of State until October 1680, and Charles continued in the meantime to seek his advice, his influence was already gone. Some in Scotland would have liked to have seen Monmouth fill Lauderdale's role, but Monmouth was to lose favour at court in the autumn of 1679. Instead, it was the Duke of York who was to emerge as the dominant figure in Scottish affairs.

Charles allowed his brother to go to Scotland in the autumn of 1679 as an alternative to York's remaining in exile in the Low Countries. He gave his brother no clear brief, though he did decide that James should sit on the Scottish privy council, which provoked some controversy, since as a Catholic York would need to be dispensed from the oath of allegiance and supremacy required of all office-holders by an act of 1661. The Lord Advocate, Sir George Mackenzie of Rosehaugh, who was to emerge as one of the staunchest defenders of absolute monarchy in Scotland during the final years of Charles II's reign, protested to Lauderdale that the King could not dispense with this act, any more than he could ‘dispens with all other statutes conceaved principallie in favours of the people’, since it amounted to ‘a parliamentarie contract betuixt King and people for the securitie of the kingdome’. Mackenzie also warned that, at a time when the court was advocating limitations on a popish successor as an alternative to Exclusion, a dispensation would hurt York's cause in England, since ‘his Majestie's subjects… would never think themselfs secure by any Limitation to be put upon the successor whilst they saw that none could bind the subject.’¹⁴ Lauderdale likewise did his best to persuade York to take the oath, urging that refusal would ‘give too great advantage’ to his enemies in England and ‘to that pitifull Caball in Scotland’ who preferred Monmouth. York nevertheless refused, and in the end Charles II authorized his brother to serve on the Scottish council without taking the oath, claiming that the wording of the act of 1661 did not comprehend the ‘lawful sons and brothers’ of the king.¹⁵

York and his duchess arrived at the Scottish border on 21 November, to be met by Chancellor Rothes, thirty-eight privy counsellors, and most of the nobility and gentry from the southern shires, and escorted in grand style to the Scottish capital. They entered Edinburgh on 24 November, the streets from Leith (2 miles away) being lined with ‘many thousands of people’ shouting ‘Long life and Prosperity to the King’ and ‘Health and Wellcome to the Duke and Duchess.’ At the Watergate, the town magistrates presented York with the keys to the city, with the Lord Provost making a speech expressing the city's ‘great joy at his Royal Highnesses arrival there’, and giving ‘fresh assurances of their constant Loyalty to His Majesty’, ‘their firm adherence and affection to the Royal Line’ and ‘their particular respect and affection for his Royal Highness’. That evening the streets were filled with so many bonfires ‘that the whole Town seemed one fire’, and all night the conduits at the market cross ran with wine. The reception had been well planned, and the celebrations were obviously staged – though perhaps no less sincere for that, since undoubtedly many Scots were genuinely pleased ‘to see a Prince so nearly related to His Majesty and the Crown among them’. York himself was delighted, writing a few days later that he had ‘had as handsome a reception’ as he could desire, of which he had ‘great reason to be satisfyed’. Yet the extravagant displays of loyalty were also intended to send a message to the English. Shortly after the adverse parliamentary election results in England of August and September, and just a few days after the first great London pope-burning procession of the Exclusion Crisis, the London Gazette was able to report that there remained considerable support for the King and his heir, among both the political elite and those out-of-doors, in the Stuarts’ ancient kingdom. It was the first public indication that the continued pursuit of Exclusion would probably cause a severe breach between the two realms of England and Scotland.¹⁶

Recognizing the need to establish as wide a base of support in Scotland as possible, York initially pursued a policy of accommodation. Many of those who had been excluded from power by Lauderdale, or had become alienated as a result of his policies, resumed their seats on the council – including Atholl, Queensberry and the Earl of Perth – all of whom were to become key players in the royal administration of the 1680s. Only Hamilton continued to remain aloof. Hardliners – and especially the bishops – complained about the concessions granted to Presbyterians, yet York recognized that he could not afford to alienate those who had welcomed Monmouth's initiatives, and so decided that the policy of indulgence should continue for the time being. As he put it in a letter of 14 December, he was determined not to become prisoner of ‘either party here’, but would endeavour ‘to give offence to none, and to have no partialitys’. York admitted that he did not like the Indulgence, saying he feared it would encourage another rebellion; nevertheless, he thought it not ‘proper to take it from them till they forfitt it againe’.¹⁷ Even the Whiggish Burnet conceded that ‘upon his first going to Scotland’ the Duke behaved himself in a very obliging manner, and carried things ‘so gently… that there was no cause of complaint’.¹⁸

As a result, York did much to build up a loyalist following among the political elite in Scotland. When he left for England in February 1680, the Scottish nobility and gentry present at court presented him with ‘the view of the Crown, Sceptre and Sword of Scotland’ and unanimously declared ‘that they would all as one man venture their lives and fortunes in defence of his Majesty and his right successors against any opposition whatsoever’.¹⁹ The Scottish council likewise wrote to Charles praising York's ‘moderation of spirit and equalitie of justice’ – observing how he had ‘much encouraged the orthodox clergy without being greivous to such other protestants as differ from them’ – and assuring the King that they would do all they could to ‘mantaine your sacred Majestie and your royall successours in the ordinary degrees of succession, according to their unalterable right of blood, which you and they derive only from God Almighty’.²⁰ was pleased with how things had gone during his stay in Scotland; as he told the council after learning he was being recalled to England, he would inform the King ‘that he had in Scotland both a loyal nobility and gentry, and a Councill and his other judicatures filled with able and loyall persons’. Revealingly, in reporting this speech for readers in England, the London Gazette claimed that York then added ‘that he had observed those restless People, who used to give them some trouble, were nothing so considerable as their Friends the Republican Party in England’ represented them to be, and that the Scottish ruling elite ‘were not only able and ready to keep those unquiet People in Order’, but were ‘so firmly united to the Royal Interest as he doubted not but the good Condition of this Kingdom, would have a very good Influence upon His Majesties Affairs in His other Dominions’.²¹

Only the Cameronians, the radical covenanting wing of Scottish Presbyterianism, remained ‘restless’ and ‘unquiet’. The vast majority of the Presbyterians appeared willing to work within the terms of the Indulgence. However, shortly after York's departure the policy of moderation came to be abandoned. The Scottish bishops, worried about the threat to their position posed by the Indulgence, sent Bishop John Paterson of Edinburgh to London to complain to Lauderdale and Archbishop Sancroft about the plight of the Scottish Church. At the same time, the English bishops were keen for a drive against dissent in both kingdoms, while York himself, now more confident of his support among the Scots, saw an opportunity to strike at his rival Monmouth, who had been a leading advocate of concessions. Between them, these various interests convinced Charles that the Indulgence was not working, that its provisions were frequently being violated, and that field conventicles were still being held. In May 1680, Charles therefore placed a series of restrictions on the Indulgence: henceforth, no house conventicles were to be allowed within a mile of any parish church where a regular incumbent served; no nonconformist minister who had preached at field conventicles was to be licensed; none was to be licensed in a parish where he had formerly served as minister, or where the generality of people were conformist; and the exclusion zone around Edinburgh for house conventicles was extended from 2 to 12 miles. Meeting houses were shut down or demolished, conventiclers began to be prosecuted in increasing numbers, and licences were steadily recalled.²²

The antics of the Cameronians in the summer of 1680 – the denunciations of Charles II and the Established Church in the Queensferry paper and Sanquhar declaration of June, and the subsequent excommunication of the King and the Duke of York at the Torwood conventicle in September²³ – provoked a further reaction. The government issued a proclamation offering financial rewards to any who should help bring in – ‘dead or alive’ – Richard Cameron, Donald Cargill or any of the other traitors involved in publishing the Sanquhar declaration.²⁴ In July 1680 Cameron and his brother were slain by dragoons at Airds Moss in Ayrshire, along with two dozen of their followers. David Hackston, one of Archbishop Sharp's murderers, was arrested, and brutally executed at the end of the month, having first his right hand cut off, ‘and after some time his left hand’, before being ‘hanged up and cut down alive’, disembowelled, and quartered. At least thirteen others taken either at Airds Moss or the Torwood conventicle were executed, including two women, Isobel Alison and Marian Harvey. A number of those arrested were tortured in an attempt to secure confessions. Four or five were ‘so tortured with the boots’, one anti-covenanter account tells us, ‘that their legs, from their kness or their heels’ were ‘broke as flat and thin as a fingers breadth, so that the bloud and marrow coms out of their toes’.²⁵

The government took a variety of other measures to clamp down on the expression of dissident opinion. On 6 January 1680 the council ordered that any gazettes or newsletters deposited in the coffee houses for public consumption should be first presented to the Bishop of Edinburgh or another privy counsellor for approval, so as to prevent the spread of ‘false and seditious news and slanders’.²⁶ The discovery that some ‘scandalous and seditious’ news-sheets were still getting through prompted the authorities early in 1681 to require that all masters of coffee houses, or ‘houses of intelligence’, take out a bond for 5,000 merks not to ‘vent any newes or papers nor suffer the same to be read in their houses’ except such as were allowed by the officers of state.²⁷ Seditious utterances were also to be treated severely. In mid-July 1680, John Niven (or Nevin), the captain of a London-based ship and an Englishman, was convicted of treason and sentenced to death for saying that York was ‘in a plot to take the king's life, and had combined with the French king to invade England’, and further ‘that the duke had come into Scotland to make a party for introducing popery, but our good old English hearts would not suffer that’. The judgement was a harsh one; the jury, in fact, split fifty-fifty, and the chancellor of the assize gave the deciding vote in favour of conviction. The contemporary Scottish lawyer Sir John Lauder of Fountainhall thought that ‘in England such a process would be laughed at’, believing that at most Niven's words amounted to scandalum magnatum and that the law could not ‘stretch it to death’, although the verdict was in fact based upon an act of 1587 which had made maliciously accusing an innocent person of treason treasonous itself. It appears, however, that ‘this was done to fright England,’ as Fountainhall put it, the judges knowing that Charles II, following York's intervention, intended to remit the sentence.²⁸

YORK'S SECOND VISIT, 1680–1682

Charles sent his brother to Scotland again in October 1680, shortly before the second Exclusion Parliament convened, ostensibly (as the King informed his Scottish council) to oversee the reorganization of the militia and procure ‘the generall settlement of the peace and quiet’ of that kingdom.²⁹ More generally, however, Charles hoped that James's presence in Scotland would help secure the allegiance of the Scottish ruling elite, and thus guarantee that his northern kingdom remained loyal while he was facing the challenge from parliament and discontented elements out-of-doors in England.

At Charles's prompting, the Scottish council saw that there were suitable ‘publick Demonstrations of Joy’ when York arrived, the details of which were reported in a broadside published simultaneously in Edinburgh, London and Dublin. Large numbers of the nobility and gentry, plus ‘a multitude of People’, came to greet York and his wife (who were this time travelling by sea) at Kirkcaldy, on the north side of the Firth of Forth, on 25 October. After staying with Chancellor Rothes for a few nights, the royal couple made their way to the Scottish capital on the 29th. At Burntisland, just across the Forth from Edinburgh, they were received with guns, bells and the cheers of the people, and they crossed to Leith accompanied by the firing of ‘the great Guns’ of Edinburgh Castle. At Leith the shore was allegedly ‘so throng with Persons of all Ranks, that the noise of the Cannon, Trumpets, Kettle-drums, and Drums, were almost drowned with the lowd and reiterated Acclamations of the People’. Thence they proceeded to Holyroodhouse, saluted all the way by the guns from the castle and ‘the whole body of the People universally shouting with great joy and chearfulness, “Lord preserve His Majesty, and their Royal Highnesses, the Duke and Dutchess of Albany.”’ Throughout the Scottish capital, the bells continued ringing most of the night, and ‘all the streets of the City’, the published account tells us, ‘were filled with great Bonefires, whither many of the Citizens repaired to drink their majesties and Royal Highnesses Health.’³⁰

The joy at York's arrival was not as ‘universal’ as this account sug; as we saw in Chapter 3, the students of the university, with the assistance of the local apprentices and tradesmen, were to orchestrate a pope-burning procession in the capital on Christmas Day 1680 to testify their concern about the prospect of a popish successor.³¹ Nevertheless, York's return to Scotland was undoubtedly welcome to certain interest groups. Those who were most enthusiastic were the episcopalian clergy. On 30 October the Bishop of Edinburgh and other clergy in town waited upon the Duke, to express their ‘general Satisfaction… at his Arrival’.³² A week later the Scottish bishops wrote to their English brethren expressing how ‘exceedinglie releeved and comforted’ they were by His Royal Highness's return, anticipating that he would again come to their assistance in their continuing struggles against ‘incendiarie shismatiques’.³³ The Scottish council likewise wrote to the King to thank him for sending his brother to reside among them and confirming their commitment to the lawful succession, ‘the least invasion’ of which, they alleged, ‘could not but procure us a civill war’ – ‘a boast’, Fountainhall thought, made ‘to hector the House of Commons, and generality of the English nation’, who wanted to exclude York on account of his religion.³⁴

The Scottish authorities saw the value in trying to exploit this loyalist sentiment to the full by promoting public displays in support of the King and his heir. Rothes wanted to lay on bonfires in Edinburgh to celebrate the news that the House of Lords in England had thrown out the second Exclusion Bill on 15 November 1680, though on this occasion York advised that any celebrating would be premature, since he feared there was a chance he might be impeached.³⁵ In February 1681 York made a royal progress to Linlithgow and Stirling, attended by the nobility and the gentry, in a deliberate attempt, Wodrow tells us, to ‘affect somewhat of the State of our old Kings, before he came to the Throne, and render himself a little more popular’. To judge from the official printed account, the progress was a great success: York found ‘the Kindness and Affection of the People, in all the Towns and Villages’ he visited, ‘very remarkable’; large numbers came out to greet him ‘with great shouts and Acclamations of Joy’; at Stirling there was apparently ‘a Bon-fire before every House’; and on his return to Edinburgh ‘great multitudes’ formed ‘one continual Crowd of people’ from the west port to Holyroodhouse, ‘all Blessing and Praying for the King and Duke’.³⁶ York also lent his presence to the celebration of the King's birthday in Edinburgh at the end of May 1681. The 29th, which was a Sunday, saw ‘Sermons Preached in all the Churches Suitable to the occasion’, although the festivities themselves were put off until the following day. The 30th proved a spectacular affair. The city authorities laid on a ‘most Noble Banquet’ for their royal highnesses at the market cross, where, amid the noise of guns, trumpets, drums and bells, and ‘the Acclamations of the People’ (intoxicated by wine flowing from the town conduits), the Duke and the town magistrates drank a health to the King. In the evening, York and his wife attended a huge bonfire at Palace Gate, where all the nobility and gentry in town, together with the city magistrates, ‘Pledged upon their Kness… Health and Prosperity to their Majesties, their Royal Highnesses, and all the Royal Family’. The celebrations continued throughout the night, ‘with Ringing of Bells, discharging the great Guns, Bonfires, and all other publick expressions of Joy’. Nothing had been left to chance. The city constables had arranged in advance for bonfires to be built at 40-foot intervals along the High Street, and an informal tax was levied on the local inhabitants to defray the expenses. Yet, despite being orchestrated from above, the festivities seemed to offer reassuring confirmation of the depth of support for the royal family in the Scottish capital. Moreover, the news of the celebrations, which quickly reached England, helped to bolster the impression of revived public support for the royal brothers that Charles II was actively trying to encourage in the aftermath of the Oxford Parliament.³⁷

The Parliament of 1681

Having rebuffed the English Whigs by his speedy dissolution of the Oxford Parliament, Charles decided to call a parliament to assemble in Edinburgh on 28 July. The idea appears to have come from within Scotland itself, with many of the ‘chief men’ of that kingdom having convinced both York and Charles that ‘the loyal disposition of the greatest part of the nobilitie and Gentrie, together with the Duke's presence and winning behaviour, which had gain'd such an influence over that Kingdom’, would undoubtedly ‘make a Parliament not only contribute to the quiet and advantage of Scotland, but by running counter to that of England, be a check and bar to such violent proceedings as hitherto distracted that Nation’.³⁸ In other words, as one Edinburgh newswriter put it, a parliament was ‘to be called in Scotland, by their good example to mother the English to a better compliance with the counsel’.³⁹

There is little evidence that the government tried to influence the complexion of the parliament by interfering with elections. Some gentry from the Merse (in the Scottish south-east) did complain to the council that their sheriff, the Earl of Home, had tried to surprise them by giving only one day's notice of the intended election, but the council responded by instructing the sheriff to give at least six days’ warning, so that voters might have the chance to make it to the poll. The Fanatick Party’, on the other hand (according to Lord Advocate Mackenzie), tried their utmost to secure the election of ‘as many of those infected with their principles… as the little Power and Interest they had in the Nation could procure’. As a result, the parliament was not the overwhelmingly loyalist body that some hoped for. York believed there were ‘some turbulent people amongst them’, while Mackenzie even claimed ‘he saw seditious Bothwel Bridge faces sitting as members’, although he later retracted this remark. Nevertheless, supporters of the court were clearly in the majority Mackenzie in fact claimed that ‘Loyal Members… were Ten to One of the disaffected’ – and carried most divisions by 30 to 40 votes.⁴⁰

Charles decided to appoint his brother as high commissioner, York having insisted that no one else should be allowed to represent the King while he himself was present in the kingdom. Some forty members objected, claiming that two acts of 1567 and 1609 prohibited anyone but Protestants from holding office under the crown, and tried to persuade Hamilton to introduce a motion to this effect. Hamilton backed down, however, when his lawyers explained that a commission to represent the king's person did not fall under the notion of an office.⁴¹ The Marquis of Atholl was appointed president of the parliament, as a last-minute replacement for Chancellor Rothes, who had died shortly before the session opened. The ‘great champions and Hectors’ of York's interest in this parliament, according to Fountainhall, were Lord Advocate Mackenzie, Treasurer-Depute Charles Maitland (Lauderdale's younger brother), Sir George Gordon of Haddo, and the Lord Advocate's namesake George Mackenzie of Tarbat. York could also count on the unswerving support of the bishops.⁴²

Before the meeting of parliament, the government initiated a further clampdown on field conventicles. In April the council issued a proclamation making heritors responsible for reporting any such conventicles held on their lands, empowering landlords to examine upon oath any person they suspected could give information about such offences and imposing fines of a quarter of a year's rent on those who failed to act.⁴³ The authorities finally caught up with Donald Cargill, now the leader of the Cameronian faction, at Covington, Lanarkshire, on 12 July 1681. Cargill, two of his associates and two Bothwell rebels were convicted and sentenced to death on the 26th; the five men were executed in Edinburgh on the 27th, the day before the parliament met.⁴⁴

Charles hoped to use the Scottish parliament to bolster the powers of the crown in Scotland and strengthen the position of the Stuart monarchy within the three kingdoms as a whole. In his letter to the assembly, read on the opening day of the session (28 July), he insisted that the crown's and his subjects' interests were inseparable, and that any invasion or diminution ‘of the Rights and Prerogatives of Our Crown’ would ‘prove fatal, and destructive to the Security and Property of Our People’. He therefore urged parliament to pursue suitable remedies against rebellious principles, schism, and separation in the Church, as the best way of ensuring that ‘our Government in Church and State as by law presently established… receive its due reverence and obedience’. Expanding upon the royal agenda, York explained that the King was determined to maintain the Protestant religion ‘as now Established by Law’ under the government of the bishops, and wanted effective action taken to suppress ‘Seditious and Rebellious Conventicles’. Charles further wanted it understood, York continued, that he would ensure ‘that Law should have its due Course, for the Security of His Subjects Properties and Rights’; in return, however, he expected parliament to be vigorous in asserting ‘His Royal Prerogative’ and ‘in declaring the Rights of His Crown in its Natural and Legal course of Descent’, and ‘to settle and provide such seasonable and necessary Supplies, which the Support and Interest of His Government call for and require’. Parliament showed itself duly sympathetic to the crown's desires. In their formal response to the King's letter on 1 August, members said they wanted to let Charles's ‘other Kingdoms and all the world sie that we esteem Our lyves and fortunes to be best imployed in manteining of the just rights and Prerogatives of your Majesties Croune and Monarchie, The Native succession whereof’, they added, could not ‘be invaded without utter Subversion of the Fundamental Laws of this your Majesties antient Kingdome’. The Scots were well aware, it seems, that they had been assembled in order to make a political point to the English. Moreover, to ensure the English got the message, Charles's letter, York's speech and parliament's answer were all published in London.⁴⁵

The government made every effort to manage the parliamentary session so that the desired legislation might go through smoothly. Charles gave his brother explicit instructions not to allow anything to be transacted that had not passed through the Lords of the Articles, and to suppress any unusual or extraordinary meetings, cabals and conventions during the session, to prevent the emergence of the type of party discipline that had been seen in England during the Exclusion Crisis.⁴⁶ This did not prevent opposition, however.

The Lords of the Articles began by establishing a number of committees to prepare acts for securing the Protestant religion, upholding the succession, and voting a supply for the crown.⁴⁷ The committee for religion immediately proved troublesome. At the instigation of Sir James Dalrymple of Stair and the Earl of Argyll, it proposed an act for the ‘securitie of the protestant religion against poperie and a popish King’. This would have confirmed the Confession of Faith of 1567; prevented any alteration to the public worship of the Church except by a national synod; required all office-holders to subscribe to the Confession of Faith on oath; made it a capital offence for any Jesuit, priest or person in monastic orders to celebrate mass; ratified and approved all those laws enacted since the accession of James VI against popery and imposed fines on magistrates who did not enforce them; and required all future monarchs, at both their accession and their coronation, to take the coronation oath of 1567 and a further oath not to ‘endeavour to nor consent to any alteration or change of the said protestant religion’ nor to give office to non-Protestants. Various other clauses were suggested to strengthen the act even further. One was that it should be high treason, pardonable only by the king and parliament acting jointly, for any to hold office without subscribing to the Confession of Faith. It was also proposed that, if no parliament were sitting at Charles II's death, the members of the former parliament should reassemble and sit for six months so they could settle all ecclesiastical, civil and military offices in Protestant hands, along the lines of the scheme of limitations on a popish successor that Charles had proposed to the English parliament in April 1679. Such a measure, if passed, would have significantly eroded the royal supremacy established in 1669, considerably enhanced the power of the Scottish parliament at the expense of the crown, and effectively tied the hands of a popish successor. As such, it was obviously unacceptable to York, who dismissed the committee.⁴⁸

As a compromise, parliament agreed to defer the question of additional safeguards to protect the Protestant religion (such as a religious test for office-holders), and on 13 August it passed a very short act ratifying all the laws passed since the reign of James VI ‘for settling and secureing the Liberty and Freedome of the true Kirk of God, and the Protestant Religion presently professed within this Realme, and all acts made against Popery’.⁴⁹ In giving the royal assent, York declared ‘That he did heartily go along with them in providing for the security of the Protestant Religion’ – a remark that received due publicity in England through the agency of the London Gazette. For Burnet, York's motive was purely cynical, thinking ‘it would give a good grace to all that should be done afterwards, to begin with such a general and cold confirmation of all the former laws.’⁵⁰

That same day parliament passed an act guaranteeing the succession. Asserting that the kings of Scotland derived ‘their Royall power from God almightie alone’, it proclaimed that upon the death of the monarch the ‘right and administration’ of the government devolved immediately upon ‘the nixt Immediat and laufull heir, either male or female’, that ‘no difference in Religion… nor act of Parliament’ could ‘alter or divert the Right of Succession and lineal descent of the Croun’, and that it was high treason for any subject to endeavour to alter the succession or debar ‘the nixt laufull Successor from the Immediat, Actual, full and free Administration of the Government, conform to the laws of the Kingdom’. The measure was intended not only to ensure York's succession to the Scottish crown, but also to make it impossible to contemplate excluding him in England, unless the King's subjects wanted to expose themselves, as the act put it, ‘to all the fatall and dreadfull consequences of a Civil warr’. To make sure the English got the point, a copy of the act was duly published in London (by Nathaniel Thompson), and its passage was reported in the Gazette.⁵¹ By establishing that the next heir succeeded immediately, the Succession Act appeared to rescind the Coronation Act of 1567, which required that all monarchs take an oath promising to protect the true religion ‘at the tyme of their coronatioun, and ressait [receipt] of thair princely authoritie’;⁵² it was thus at variance with the act just passed ratifying all laws passed since the accession of James VI for the security of the Protestant religion, of which the Coronation Act was one. Some members pressed for a formal repeal of the Coronation Act; others, convinced that a repeal had in effect been achieved, argued the need for a new measure that would oblige the king to take the coronation oath.⁵³ Neither suggestion came to anything. There was one potential loophole in the Succession Act, however: Fountainhall read the clause making it treason to attempt to debar the heir from the administration of the government, ‘conform to the laws of the Kingdom’, as implying that allegiance ceased ‘if the next heir administrate contrary to the standing laws for the Protestant Religion’ or sought ‘to introduce Popery’.⁵⁴

Parliament passed a variety of measures designed to strengthen the position of the Stuart dynasty in Scotland. On 20 August it voted an additional five years’ supply to pay for the armed forces needed to protect the realm from possible ‘rebellious commotions’; this was to follow on from the subsidy granted by the Convention of Estates in 1678, not due to lapse until 1683.⁵⁵ On 6 September followed an act authorizing the continued collection of the excise for five years after the death of the King, so that ‘the Royal Government of the Kingdom should not be then destitute of a due and suteable support for defraying the exigences thereof’.⁵⁶ Opponents of the measure argued that it was impolitic for the present king to advance his heir to such heights, and worried that this supply might ‘be made use of to introduce and establish poperie’. Supporters replied that it was ‘too probable factious spirits’ would stir in opposition to York's accession on the death of Charles, and therefore it was essential he have the means ‘to pay ane army for suppressing such rebells’.⁵⁷ The generosity of the Scottish parliament provides a strong contrast with the English parliaments of 1680–81, which had actually withheld supply in an attempt to force Charles to agree to Exclusion. Some in Scotland even suggested that the excise should be perpetually annexed to the crown ‘in all time coming’, and that the king and his privy council should be empowered, upon emergency, to raise taxes without parliament, although neither of these proposals came to anything.⁵⁸

There were a number of legislative initiatives designed to deal with the threat posed by religious radicals. On 29 August parliament passed an act which, after first ratifying and approving all laws in favour of episcopacy, made landlords and masters responsible for collecting the fines incurred by their tenants or servants for attending field conventicles or for sheltering preachers who had been declared fugitives; if their tenants or servants did not have the means to pay, the landlords and masters were to turn them off their land or dismiss them from their service. Almost as an after-thought, it announced that the fines imposed by former laws on field conventicles were to be doubled.⁵⁹ On 13 September an Act against Assassination made it treason not only to carry out an assassination, but even to maintain or assert that it was ‘lawfull to kill any man upon difference in opinion’ or because he had been employed in the service of the king or Church.⁶⁰ Perhaps the most remarkable act, however, was that passed on 16 September, which recognized that ‘all Government and Jurisdiction’ within Scotland resided ‘in his sacred Majesty, his Laufull Heirs and Successours’, and that therefore the king could ‘by himself, or any commissionated by him, take cognizance and decision of any Cases or causes he pleases’.⁶¹ The measure was designed to bring the independent noble jurisdictions in the Highlands under the control of the crown, but was rushed through at such a speed and was so carelessly worded as to subject all courts of justice ‘to the King's pleasure’.⁶² In effect, it allowed Charles to bypass the judges and magistrates and give authority to any he designated – such as members of the armed forces – to try and to punish political and religious dissidents. It was a discretionary power that Charles was to use with a vengeance in Scotland during the final years of his reign.

The Scottish Test

The most controversial measure passed by the parliament of 1681 was the Act anent the Test, which received the royal assent on 31 August. The idea of a Test to ensure the commitment to the Protestant faith of all office-holders under the crown had been mooted earlier in the session, and the court managers had promised that it would be possible to introduce further legislation to provide for the security of the Protestant religion as soon as the act for guaranteeing the succession had passed. The episcopalian interest was keen for a measure that would protect the existing establishment not just from the threat of popery but also from Presbyterianism. York was prepared to agree to such an act in order to appease those who remained concerned about the prospect of a popish successor, but he also saw the value in a measure that might allow him to strike further at the Presbyterians and at the same time bind his Protestant subjects more firmly to the crown and the Catholic succession by incorporating an oath of non-resistance. There was considerable debate in parliament over the Test. Hamilton and Argyll tried to frustrate its passage by moving that those parts which concerned Protestants should be separated from those which dealt with Catholics; Mackenzie and Bishop Paterson of Edinburgh retorted that this would defeat the design of the act, and a proposal that there should be two tests, one for Catholics and another for Presbyterians (the latter with milder censures), was scornfully rejected, some suggesting ‘that they were in more danger from the presbyterians than from the papists’. In the end, the Test Act passed by the narrow margin of just seven votes.⁶³

The act began by requiring that all the laws against Catholic worship, Protestant separatists, and house and field conventicles be put in ‘full and vigorous execution’.⁶⁴ To prevent the employment of ‘Papists and Phanaticks… in offices and places of publict trust’, it required all members of parliament, those who had the right to vote in parliamentary elections, privy counsellors, judicial officers, clergymen, local officials (such as sheriffs and justices of the peace), town magistrates, teachers in universities and schools, and officers and soldiers in the armed forces to swear an oath pledging their commitment to the Protestant religion and loyalty to the crown. (This list was further extended by an additional act of 17 September 1681 to include the admiralty, officers in the trained bands, and any who had a voice in electing deacons of trades.) ⁶⁵ However, the act did exempt ‘the Kings lawfull Brothers and Sons’ – much to the dismay of Argyll, who protested that any exception made should be solely for the Duke of York, warning that it would be unwise to ‘open a Gap for the Royal Family to differ in Religion’.⁶⁶

The second half of the oath was loaded with propositions designed to ensure the unconditional loyalty of all public officials to the king, the royal supremacy and the hereditary succession. Thus office-holders were asked to ‘affirm and Swear… that the Kings Majesty is the only Supream Governour of this Realme… in all Causes as weill Ecclesiastical as Civill’; to promise ‘faith and true allegiance to the Kings Majestie, his heirs and laufull successors’; to ‘assist and defend’ the king in all his rights and prerogatives; to swear the unlawfulness of taking up arms ‘against the King or those Commissionated by him’, or of holding meetings ‘to treat, consult or determine in any mater of State, Civil or Ecclesiastick’ without leave from the king; and to swear that they lay under ‘no obligation… from the National Covenant or the solemn League and Covenant… to endeavour any Change or alteration in the Government, either in Church or state as it is now established by the Laws of this Kingdom’. All this served York's, the court's and the episcopalian interest's agenda very well. Fountainhall thought that this part of the oath subverted the fundamental constitution of the kingdom, and went a long way to making the Scottish monarchy ‘absolute, arbitrare and uncontrollable’.⁶⁷ However, it was not much different, it should be said, from the oaths of allegiance and non-resistance that had been imposed on office-holders in England and Ireland since the early years of the Restoration.

The internal consistency of the Test oath, however, was seriously undermined by the wording of the first part, designed to ensure that office-holders adhered to the Protestant religion. The Lords of the Articles were unclear as to how to define the general term ‘the Protestant Religion’. Stair therefore moved that they should take as their standard the Confession of Faith of 1567, which technically was still law, even though it had long since fallen into disuse.⁶⁸ The problem was that the Confession of Faith held that Jesus Christ, and not the king, was the supreme head of the Church, and that non-resistance was conditional upon the supreme magistrate performing his duty to maintain the true religion and suppress idolatry and superstition.⁶⁹ Stair's aim was to sabotage the Test, but, since virtually no one in parliament was familiar with the Confession, his motion was able to succeed. Office-holders were thus required to swear never to consent ‘to any change nor alteration’ to the ‘true protestant Religion contained in the Confession of Faith’ and to renounce all principles that were ‘inconsistent with the said Protestant Religion and Confession of Faith’. Moreover, the act required that the oath be taken ‘in the plain genuine sense and meaning of the words without any Equivocation, mental Reservation, or any manner of evasion whatsoever’. Given the oath's inherent contradictions, this was something that the more scrupulous would find it difficult to do.

The act required all office-holders to take the Test by 1 January 1682. Most of the privy counsellors took it on 22 September 1681, at the first meeting of the council following the prorogation of parliament on the 17th. Queensberry, however, a staunch episcopalian, waited to see what his colleagues would do, and then took it only after first protesting that he did ‘not understand himself to be against Alterations, in case it should seem good to his Majesty to make them in Church of State’. No one took exception to Queensberry's equivocation. The same day the council determined that none of those absent should be allowed to resume their seats until they had taken the Test.⁷⁰ A few refused to subscribe, and were dismissed from office. Sir Thomas Murray lost his position as clerk register. Stair, the Lord President of the Court of Session, although happy with the securities provided for the Protestant religion, objected to the second half of the oath, relating to unconditional loyalty, and as a result not only had to step down from the council but also found his name omitted from the new commission for the Lords of Session issued later that year. Shortly thereafter he withdrew to Holland. Stair was to claim after the Revolution that his dismissal had been illegal, since an act of James VI's reign had provided against the arbitrary dismissal of judges by establishing that they should be appointed for life. Whether he was correct is open to question: the Test Act did explicitly require Lords of Session to take the oath. Under the terms of the new commission, however, judges were appointed at royal pleasure, making it possible for the king in the future to dismiss them at will.⁷¹ The council demanded that the Duke of Monmouth be administered the Test, since he was a privy counsellor and held a number of offices in Scotland, even though Monmouth claimed that since he was out of the country he could not be forced to take it. The demand was designed as much to make a public statement about Monmouth illegitimacy as anything else, since the act had provided that only the king's ‘lawful sons’ should be exempt. Monmouth refused to subscribe and was stripped of his offices. Hamilton initially had qualms, and agreed to let the council nominate deputies to the jurisdictions in his possession; he eventually took the oath in March 1682. The earls of Cassillis, Haddington, Nithsdale and Sutherland all refused the Test, and forfeited their heritable jurisdictions as a result.⁷² The, most notorious refuser, however, was the Earl of Argyll.

Argyll had shown himself to be ‘a valiant assertor of the Protestant interest’ in the 1681 parliament, but he was not, at this stage, an irreconcilable opponent of the Duke of York. Indeed, he had signed the letter from the Scottish council to Charles II of February 1680 praising York's achievements during his first spell in Scotland, and had even supported the Succession Act of 1681.⁷³ However, given his extensive power base in the West Highlands, the government was worried about the threat he might pose if he sought to set himself up as head of a Protestant interest in opposition to the court. He had not endeared himself to the conservative faction that dominated the government by the fact that he had gone around trying to incite the clergy and laity, both in Edinburgh and in his own territorial base in Argyllshire and Tarbet, against the Test.⁷⁴ Argyll therefore had to be broken, and he had many political enemies and personal rivals who were willing to pounce when the opportunity presented itself. After delaying for several weeks, the Earl eventually took the Test before the council on 3 November, mumbling some words of explanation which no one appears to have taken much notice of at the time, and was allowed to take his seat. Some of Argyll's enemies, however, informed York that his explanation had been seditious, and so Argyll was asked to take the Test again the next day without any qualifications. Argyll refused, saying he would take the Test only in the sense and with the meaning that he had taken it the day before, presenting a written paper outlining the explanation he had offered. This stated that he was sure that ‘Parliament never intended to impose contradictory oathes’, and that therefore he took it in so far as it was ‘consistent with itself and the Protestant religion’, adding that he was not prepared to bind himself not to endeavour any alteration which he thought might be ‘to the advantage of church or state’ and ‘not repugnant to the Protestant religion and [his] loyaltie’ – a qualification, one might suggest, similar to that voiced earlier by Queensberry. The council determined not only that Argyll had not taken the Test according to the terms required by the act, but also that his paper was ‘of dangerous consequence, reflecting upon his Majesties authority and government’; it dispatched him to Edinburgh Castle, and instructed the Lord Advocate to initiate proceedings for treason. The trial took place on 12 and 13 December, and Argyll was duly found guilty. The blatant bending of the law caused concern even among the supporters of the government. In England, Halifax told Charles II ‘that he knew not the Scots law, but by the law of England that Explanation could not hang his dog’. Even the Scottish bishops were concerned, protesting to the Lord Advocate that they wanted to see Argyll cleared, for they thought his death would ‘ruin their interest’. In fact neither Charles nor York desired to see Argyll executed; they merely wanted him to forfeit some of his jurisdictions. Charles therefore ordered sentencing to be deferred until he had decided what course of action to take. In the meantime, on the evening of 20 December, Argyll managed to escape from the castle, making his way to London, and subsequently to the Low Countries. On 22 December the sentence of death was pronounced on him in his absence, and his estates were forfeited. Again, the justness of the sentence was questionable; according to both Fountainhall and the Earl of Longford, Scottish law allowed for forfeitures in absence only in cases of rising in arms against the king.⁷⁵

Both the Test and the treatment of Argyll became the subject of derision. The boys of Heriot's Hospital, Edinburgh, decided that their guard dog had a public office and should therefore take the Test, but when they offered him a paper containing the oath the animal ‘absolutely refused it’. The youths tried to make it more palatable by smothering it with butter – ‘which they called ane Explication of the Test in imitation of Argile’ – but the dog simply licked the butter and spat out the rest. They therefore proceeded to try the dog for treason, and, finding him guilty, condemned him to be hanged like a dog. When a passing curate rebuked the youths for ‘such presumptuous mockery’, they replied ‘that he and his Brethren deserved better to be hanged… since they had swallowed that which the Tyke had refused’. On the day after Christmas, the students of the university demonstrated their contempt of the Test by burning an effigy of the pope, clasping the Test oath in one hand, at the market cross in Edinburgh.⁷⁶

The wording of the Test proved a stumbling block to many of the orthodox clergy. The Bishop of Aberdeen and his diocesan clergy refused to take it, wondering how they could swear that the king was the only supreme governor when the Confession of Faith held that Jesus Christ was the only head of the church. The Confession, they insisted, contained a number of obscure and questionable passages, and among other things implied that obedience and non-resistance were due to magistrates only if they executed their office properly; on the other hand, by asking subscribers to acknowledge the royal supremacy (and, with it, the king's power to alter the present establishment in the Church at will), the oath seemed to run counter to a belief in divine-right episcopacy and the apostolic succession.⁷⁷ Some of the conformist ministers who had qualms about the Test outlined their views in a tract which circulated in manuscript. Since the Test was designed to strike at popery and fanaticism, it was ridiculous, they claimed, to impose it on the orthodox clergy, who could not rationally be thought to be inclined to either. Yet because of the way the Test was framed, they went on, it would divide sober Protestants among themselves. The renunciation of the Covenant would alienate moderate Presbyterians who were willing to conform, while others would find it difficult to swear to the Confession of Faith without limitation because of its position on resistance. Furthermore, those who believed in divine-right episcopacy would not be able to subscribe an oath that required them to recognize the royal supremacy, while those who held episcopal government to be indifferent would not be able to swear never to alter something which they judged to be, by definition, alterable. The Test bound people to maintain the monarchy and laws and the present line of kings even if they were popish, but this was contradictory to the Coronation Act of 1567, which (the authors insisted) had been ratified by the present parliament when it confirmed all acts made in favour of the Protestant religion. Yet, alarmingly, the powers given by the present laws to any king that should happen to be Catholic would be ‘very prejudicial to the Protestant interest’, since by the terms of the Supremacy Act the king might ‘not only dispose of the external policy of the church, but may emit such acts concerning the persons employed therein, in all ecclesiastical meetings and matters to be treated upon therein’, as he thought fit, effectively meaning that the enemies of the Protestant religion would be able to overturn all.⁷⁸

To alleviate such concerns, in November 1681 the Scottish government issued an ‘Explanation of the Sense in which the Test is to be interpreted’. This established that those who took the Test did not swear ‘to every proposition or clause’ contained in the Confession of Faith, ‘but only to the true protestant religion… as it is opposit to popery and phanatisisme’. Further, it asserted that no clause in the Test was intended as an ‘invasion or encroachment… upon the intrinsick spirituall power of the church’ or should be construed as prejudicial ‘to the episcopall government of this nationall church’.⁷⁹ Eventually, most of the episcopal clergy did subscribe, many of those who had initially had doubts being won over by the Explanation.⁸⁰ Some who remained obstinate finally relented when the full implications of refusing to subscribe began to hit home.⁸¹ Andrew Lumsden, the minister of Duddinston, near Edinburgh, not only refused the Test, but publicly condemned it from the pulpit as unlawful and contradictory. He was duly deprived, but subsequently found he was able to satisfy his scruples, offered to take the Test, and was restored to his living.⁸² The ministers of Aberdeen held out the longest. At the beginning of January 1682, with the final deadline for ministers to subscribe having passed, the Archbishop of St Andrews and the Scottish council informed the magistrates of Aberdeen that, since the ministers had refused to subscribe, their churches were now vacant, and that they should find replacements within twenty days. Several of the deprived clergy subsequently caved in, took the Test, and were restored by special order of the council on 23 February.⁸³

Estimates of the total number deprived vary, but the final count was probably at least fifty, and may have been as high as eighty. They included the noted Edinburgh minister George Meldrum, and Laurence Charteris, professor of divinity at Edinburgh University. About twenty went to England, where they were settled in parishes; those who stayed were forced into nonconformity.⁸⁴ The legacy of the Test was therefore further divisions within the Church. Parishioners often resented having their ministers taken from them. There was a nasty incident at Prestonpans, to the east of Edinburgh, in February 1682, when the man appointed to preach in the place of the deprived minister was attacked by ‘a great rable of men, women and boyes’ throwing stones and dirt; they subsequently dragged the intruded cleric from the church and would have trodden him to death had not some passers-by come to his rescue.⁸⁵ At Dron, just south of Perth, on 21 May, some 300 armed men and women violently assaulted George Drummond as he tried to serve an edict appointing a new minister to replace the former incumbent, an indulged Presbyterian who had refused to take the Test, thwacking Drummond on the legs and arms with staves, and dragging him along the ground to a nearby swamp, where they tried to drown him.⁸⁶

The Test enabled the central authorities to conduct a purge of local government. A number of heritable local jurisdictions – regalities, stewartries and shrievalties – reverted to the crown as a result of their possessors’ failure to subscribe, and were passed on to men of known loyalty. The anti-Presbyterian zealot John Graham of Claverhouse, for example, was commissioned as sheriff of Wigtown.⁸⁷ Catholics, of course, also lost their positions in the process, although sometimes care was taken to ensure that their power base was not really undermined. The Laird of Stonehouse, ‘a violent papist and persecutor’ according to Wodrow, was replaced as sheriff of Nithsdale (Dumfriesshire) by one of his own clients, James Mitchel, a small heritor. The campaign against conventiclers continued, and Stonehouse was still able to collect most of the sheriff's share of the fines himself, with Mitchel receiving only a very small cut.⁸⁸ The militia was purged, as those officers who refused the Test lost their positions.⁸⁹ The Test also provided the government with the means to secure control over the composition of local town councils. A number of royal boroughs and towns – among them Ayr, Cupar, Dunfermline, Inverkeithing, Irvine and Queensferry – decided to postpone the annual magisterial elections scheduled for the autumn of 1681 until after the 1 January deadline for taking the Test had passed. Others proceeded with elections as normal, but did not immediately require their magistrates to take the Test. The Scottish council was quick to react, ordering all towns that had not held elections to proceed to do so or else be denounced as rebels, and to remove those officials who had been elected but had not yet subscribed the Test. Those towns which persisted in their refusal to hold elections – such as Cupar and Irvine – forfeited the privilege, and the King and the Scottish council were able to appoint the magistrates directly themselves.⁹⁰

Despite the trouble with the conformist clergy over the Test, the parliamentary session was a remarkable success for the crown: the succession of the Duke of York had been guaranteed by law; attempting to divert the succession had been made a treasonable offence; generous grants of supply had freed both the King and his heir from the need to call parliament for some time; and additional powers had been given to the King to enable him to resist the challenge of political and religious dissidents, including the remarkable act recognizing the Scottish king's cumulative power of jurisdiction. In short, the parliament of 1681 had done much to establish the basis of royal absolutism in Scotland and to provide legal sanction for the ruthless pursuit of conventiclers during the final years of Charles II's reign. Even the Test Act was on the whole beneficial, since it assured the government of the loyalty of all who held office under the crown, and guaranteed that, whenever it needed to be convened in the future, parliament would be dominated by ultra-royalists and episcopalians. The Scottish council was not exaggerating when it wrote to Charles II in January 1682, after most of the initial furore over the clergy's taking the Test had died down, that the Test had proved ‘a most happie expedient for filling all offices with persons who are well affected to the Protestant religion and your Majesties government, and from whom your Majestie and your people may expect the unanimous and firme prosecutions of your laws against all manner of irregularities’.⁹¹ Moreover, everything the Scottish parliament of 1681 had done was reported in the English press, thereby making a powerful ideological and political statement to discontented elements in England, demonstrating both how loyal subjects were supposed to behave and also the impossibility of continuing to pursue Exclusion any longer without embroiling Charles II's kingdoms in civil war. In the spring of 1682, following his brother's return from Scotland, Charles wrote to his Scottish council to express his delight at ‘the extraordinary zeal’ that parliament and the council had demonstrated in his service, ‘whereof we have already seen very good effects’, he said, ‘both there and here’, in England.⁹²

‘The Darling of the Age’

During the remainder of his stay in Scotland, York continued his efforts to build up loyalist support. At the beginning of October 1681 he and his wife visited Glasgow and Dumbarton. At Glasgow the archbishop, nobility, gentry and magistrates entertained him ‘in the best manner the Country could afford’ and presented him with the freedom of the city in a large gold box; multitudes ‘of all sorts of People’ lined the streets, cheering in support; while at night there were bonfires in all the streets. Similarly, at Dumbarton the Duke was greeted ‘with all imaginable expressions of joy’ and given the freedom of the town. A minor incident marred the visit to Glasgow, when someone slipped a paper into the Duke's hand as he was processing through the streets. Thinking it to be a petition for charity, York accepted it, only to discover it to be a lengthy Cameronian diatribe, protesting against ‘the King in all his Tyranny’, his oppression of the people of God, the sending of a papist to Scotland to execute his policy, and the imposition of the Test renouncing the covenants.⁹³ York's birthday, on 14 October, was celebrated in style in the Scottish capital, with bells, guns, fireworks and ‘more bonfires’ than one normally saw on the King's birthday,⁹⁴ while the Queen's birthday on 15 November was likewise kept by the court at Holyrood ‘with great solemnitie’, including bonfires and the firing of cannons.⁹⁵ When the Duke set off for England, on 7 March 1682, he was attended all the way from Holyrood to Leith by his privy counsellors, most of the nobility of the kingdom, and several thousand people crying out ‘God Bless His Royal Highness.’⁹⁶ A brief return visit to Edinburgh in May to collect his wife led to him once again being ‘very joyfully received’.⁹⁷

Loyalist displays continued after York's departure. Thus the King's birthday on 29 May 1682 was celebrated in a grandiose manner in the Scottish capital. After first going to church, the Lord Provost and the magistrates of the city processed through the streets to the market place, where they held a great feast, to which they had invited the newly appointed Lord Treasurer of Scotland, the Marquis of Queensberry, and many other persons of quality. When the meal was over, a huge bonfire was erected, around which gathered ‘innumerable Spectators, crying God bless the King, and the Royal Family; which were seconded with their Healths, a Gun going off at every one of them’.⁹⁸

Nor was it just in the Lowlands that York was successful in building up support. In fulfilling his brief for curbing the disorders of the Highlands, he took a more conciliatory approach than had typified Lauderdale's regime, actively cultivating the goodwill of a wider circle of clan chiefs (a task undoubtedly helped by the forfeiture of Argyll). His efforts saw fulfilment with the setting-up of a commission for securing the peace of the Highlands, through which he made the gentry and lesser clan chiefs, rather than the great magnates, responsible for keeping peace. The commissioners were soon feeding the council with fulsome reports of their success (doubtless exaggerated, though the results were real enough); more significantly, perhaps, James's initiatives help explain why many Highland clans continued to remain loyal to the house of Stuart, long after its fortunes had taken a turn for the worse.⁹⁹

The Scottish ruling elite were delighted with York's spell in charge. On 9 March the Archbishop of St Andrews and six of his brethren wrote to Archbishop Sancroft in England to report that the Duke had done much to rescue and relieve ‘our Church and order’ and stop the growth of schism, adding that ‘he looks on the Enemies of the Church, as Adversaries to the monarchy it self’. The letter was not only published but also reported by the Tory press in England, to ensure the widest possible publicity.¹⁰⁰ In May the Scottish council wrote to Charles II praising ‘the kindnes, justice, moderation and examplary loyalty’ the Duke had demonstrated, and his success in composing ‘all our disorders’ and ‘sustaining the orthodox clergy’.¹⁰¹

York's support for the episcopalian establishment in Scotland did much to reassure the English bishops that they had no cause to fear for their Church when the Duke eventually succeeded to the throne. As we saw in Chapter 4, it also enabled Tory propagandists to put the case to the English public that there was no reason to fear the succession of the Catholic heir, since he had proved himself to be such a good ruler when head of the government in Scotland, and had become to the Scots the ‘Darling of the Age’.¹⁰² Not that everyone agreed. The English Whigs were horrified by developments in Scotland under York, and especially by the passage of the Test Act and the subsequent action against Argyll, which merely heightened their anxiety that York would ‘prove a terrible master when all should come into his hands’; indeed, Burnet claimed that, following the Scottish parliament of 1681, York was ‘more hated than ever’.¹⁰³ The point is, however, that what was going on in Scotland became central to the ideological debate in England over the succession, and that both Charles and York managed the situation in Scotland not simply to improve their position north of the border, but also to appeal to the constituency of support they were managing to generate in England, namely the Anglican-royalist interest. In both these respects, York's mission to Scotland had been an unquestionable success.

PERSECUTION AND THE LAW, 1682–1685

York's departure from Scotland was followed by a reconstruction of the Scottish ministry. The Marquis of Atholl, the president of the parliament, was expected to succeed the deceased Rothes as chancellor, but instead York appointed Sir George Gordon of Haddo, an ardent royalist and key champion of the Duke's cause, but nevertheless a mere gentlemen. Haddo was soon to receive the title Earl of Aberdeen, but York's slight to the existing nobility was a clear indication that he was determined to have his own creature in the top position. Queensberry, as mentioned above, became Lord Treasurer and was raised to the rank of marquis, being replaced in his old position of justice-general by the Earl of Perth, who had opposed Lauderdale back in 1678. The Earl of Middleton was added to the Scottish council and made one of the Secretaries of State, along with the Earl of Moray. The new men in charge set out to destroy Lauderdale's remaining influence. They combined to bring down Lauderdale's brother, Charles Maitland, who was replaced as treasurer-depute by Perth's brother, John Drummond of Lundin, and when Lauderdale eventually died, in August 1682, his posts were shared out between Perth, Queensberry and Middleton. Hamilton and the Earl of Tweeddale were restored to the privy council, with the former being given Lauderdale's place in the Order of the Garter in an attempt to reconcile him to the new regime.¹⁰⁴

The government in Scotland nevertheless continued to be bedevilled by a tendency towards factional infighting. The traditional ruling elite were upset by the rapid rise of Aberdeen and were soon conspiring to bring him down. In late 1683 they convinced the King to let all policy be proposed by a ‘secret committee’ of the Scottish council, which was to include Aberdeen, Atholl, Queensberry, Perth, Lundin and two others, as a way of ensuring they could control the new chancellor. They finally secured Aberdeen's downfall in late June 1684, with the chancellorship passing to Perth, while Lundin was made Secretary of State for Scotland and Queensberry was promoted to duke.¹⁰⁵ As a result of the Test, however, there was at least a considerable degree of ideological consistency among those left in charge of Scotland following York's departure. The majority of the council were implacably hostile to all forms of political and religious dissent, and the position of the hardline episcopalians was strengthened with the addition of John Graham of Claverhouse 1683.¹⁰⁶ Hamilton – the only erstwhile voice of moderation to remain – was too isolated to take any stance, even if he had so desired. The change in governors, as Fountainhall pointed out, brought ‘no change in the arbitrary government’; indeed, when it came to ‘putting the military and ecclesiastick laws to strict and vigorous execution’, these new statesmen surpassed even Lauderdale's ‘arbitrarie way’.¹⁰⁷

The last years of the reign saw the ruthless persecution of the political and religious enemies of the crown. Again, it was the actions of the Cameronians that first provoked the government's wrath. The ‘Remnant’, as they came to be known after losing their leaders Cameron and Cargill, were now no more than a group of praying societies, but at the end of 1681 they began to reorganize themselves, and they established a union or general correspondence between the societies, making arrangement for the distribution of circular letters every fortnight and the holding of quarterly meetings.¹⁰⁸ On 15 December they held their first meeting, at Lesmahagow in Lanarkshire, where they drew up their ‘Apologeticke Declaratione of the trew Presbyterians of the Church of Scotland’. This condemned Charles II for ‘tyrannically obtruding his Will as Law, both in matters civil and ecclesiasticall’ and denounced the proceedings of the 1681 parliament, particularly the passing of the Test Act. The authors then proclaimed their desire ‘to extricat our selves from under a tyrants yocke, and to reduce our state and church, to what they were in the years 1648 and 1649’, and concluded by ratifying both the Rutherglen and the Sanquhar declarations, which they said rescinded everything done by Charles II and his parliaments since the Restoration.¹⁰⁹

On 12 January the Society People dispatched a quasi-military delegation of forty horse and twenty foot, all well armed, to Lanark to publish their declaration. After first posting their paper in the market place and elsewhere, and distributing copies to some of the local inhabitants, they built a bonfire where they burned copies of the Test Act and Succession Act of 1681, which they had seized from the local bailiff's house. The Scottish council, alarmed that the local magistrates and townspeople had not done more to stop this Cameronian troop – only one man, a local weaver named William Harvey, was arrested (he was subsequently executed) – fined the burgh 6,000 merks, to be paid by a tax on the local inhabitants, and sent an army under Major Andrew White to Lanarkshire to disperse conventicles and bring to justice those responsible for the Lanark manifesto and any Bothwell rebels and fugitive ministers.¹¹⁰ It also dispatched Claverhouse to Wigtown, Dumfries and Kirkcudbright with the power to fine recusants, conventiclers and harbourers of rebels, and to hold courts as a Justice in that part to prosecute any one below the rank of heritor who might be apprehended for being in the late rebellion, and by the end of March the shires of Fife, Haddington, Kinross, Perth and Linlithgow were also under military occupation.¹¹¹ The troops were often brutal in their treatment of the local populations. In June 1682 the Whig press in London carried a story of how dragoons in Clydesdale, Lanarkshire, tortured six men, arrested on suspicion of harbouring rebels, in an attempt to obtain a confession. ‘Fired Matches’, we are told, were ‘put betwixt their fingers’, and they were ‘kept in that crewel torment near to the space of an hour’. So bad were their wounds that it was thought that two of them would ‘at least lose their hands, if not their arms to the elbow’. None of them confessed; it is not clear that they had anything to confess.¹¹²

The government made some attempts to discipline the traditional law-enforcing agencies in the localities. Thus in early May 1682 the council passed an act obliging sheriffs and other magistrates, on hearing of any field conventicles, to take immediate action to dissipate them or else to alert the council or some other officer of state.¹¹³ Increasingly, however, the government saw the advantage of simply bypassing the civil authorities and relying on the military. On 3 August 1682 the council, having received complaints about the remissness of various sheriffs, stewarts and magistrates in punishing rebels and nonconformists, granted a special commission of justiciary to Major White, for Ayrshire, and to the Laird of Meldrum (a captain of a troop of horse), for the counties of Haddington, Selkirk, Berwick and Peebles, enabling them to act with the sheriffs and magistrates in those areas in examining all suspects brought before them, and even giving them the authority to act by themselves if the civil authorities proved negligent. In November the council granted a commission to the Earl of Linlithgow for enforcing the law in the shire of Linlithgow, because of the ‘remissness’ of ‘some of the magistrates… in discharge of their duties’. That same month it vested jurisdiction over the burgh of Linlithgow in the hands of the Earl of Livingston, to combat the problem caused by the ‘negligence of the provost and the rest of the magistrates’, while in December 1683 the council simply appointed Livingston provost of Linlithgow. Wodrow was later to complain that the council's members had taken it upon themselves ‘materially to vacate and make null the executive Powers lodged by the parliament in the Hands of inferior Magistrates, and fix them in Creatures of their own making’, and saw the attack on Linlithgow as a direct violation of the privileges of the royal burghs. The authority for such actions, however, came from the statute of 1681 acknowledging the cumulative jurisdiction of the king.¹¹⁴ On 1 March 1683 the council ordered Claverhouse, Meldrum and White to scrutinize the records of rural magisterial courts for evidence of collusion or illegal mitigation of fines.¹¹⁵ The following month Charles authorized his Scottish council to issue a proclamation calling for the rigorous execution of all laws against the covenanters and setting up six circuit courts for the western and south-western shires, to last for three years, for dealing with recusants and suspected rebels. Those who were found guilty merely of harbouring or conversing with rebels were also to be prosecuted as traitors. An indemnity was, however, to be given to anyone who swore the Test on their knees before August - a deadline that was subsequently extended till – March 1684. The oath of the Test, originally intended only for office-holders, now came to be used as a general test of loyalty. Burnet thought the world had not seen such a proclamation ‘since the days of the Duke of Alva and the notorious Spanish persecutions of Protestants in the Low Countries in the late 1560s.¹¹⁶

Only a handful of people were pursued to death during the years 1682–3 – for suspected involvement in Archbishop Sharp's murder, the Bothwell Bridge rebellion or the burning of the Test at Lanark, or for refusing to acknowledge the King's authority – resulting in a total of seven executions for each of the two years. A few convicted rebels received reprieves or had their sentences commuted to banishment. Many of those convicted of attending field conventicles were transported, to either Carolina or New Jersey.¹¹⁷ Exorbitant fines were imposed on those found guilty of lesser offences. In June 1682 two nonconformist preachers were fined 5,000 merks each for illegally baptizing children.¹¹⁸ Many suffered periods of imprisonment if they could not pay, or if they refused to take the bond or Test. At the beginning of January 1683 ‘a great many’ Edinburgh merchants were imprisoned for failing to pay fines ranging as high as 1,000 merks for not coming to church or for having their children baptized by non-conformist ministers.¹¹⁹ The areas subject to military occupation were the hardest hit. The troops committed a number of brutalities, exacting free quarter, pillaging houses, even beating and torturing suspects or those who they felt were withholding information.¹²⁰ May of the military commanders simply assumed that everyone who lived in the area they were asked to police was guilty; Claverhouse, for example, on one occasion remarked that ‘there were as many Elephants and Crocodiles in Galloway, as loyal or regular persons’.¹²¹

Occasionally it proved possible to obtain legal redress for abuses committed by the soldiers. In April 1682 John Chiesly of Dalry brought a process before the Lord Advocate against two soldiers in the king's life guard, claiming that they had assaulted both him and his servants, taken possession of his stables, and thrust out his horses. The jury found the soldiers guilty of invasion and oppression, and Mackenzie sentenced one to be banished and the other to be dismissed from the army and to find sureties for his good behaviour.¹²² Powerful local landlords were sometimes able to offer some protection to their tenants. In October 1683 Hamilton complained to Meldrum about his posting six dragoons at the house of James Wilson, one of Hamilton's vassals, without showing cause, demanding that they be removed. He further protested against Meldrum's citing a number of his tenants and feuars in his regality of Lesmahagow to appear at Lanark for some unknown cause, stating that since he had a jurisdiction of his own he had discharged those people from appearing before Meldrum.¹²³ On occasion the local inhabitants tried to resist the exactions of the troops, or even to prevent them from collecting corn or straw for their horses (which they were legally entitled to do), although they normally fell foul of the law for their efforts.¹²⁴ As usual, it was the Cameronians who were the most extreme in their resistance. At Lanark, in early March 1682, about twenty attacked a dragoon who had been left on guard while the rest of his party had gone off to get provisions; they cruelly mutilated him, leaving him to bleed slowly to death.¹²⁵ In June 1683 a group of seven fanatics ambushed a detachment of five of the King's guards as they were escorting a conventicler from Stirling to Glasgow, killing one and wounding another as they carried out their rescue.¹²⁶

From 1684 the government's policy of repression came to be characterized by a greater degree of brutality and an increasing straining of the law. This was in part a reaction to the revelations of the Rye House Plot in the summer of 1683: informers alleged not only that there were thousands of Scots in England, many of them former Bothwell Bridge rebels, who were ready to join an insurrection there, but also that plans had been laid for an uprising in Scotland, to be led by the Earl of Argyll. The English authorities interrogated large numbers of Scottish suspects, many of whom clearly had not engaged in any plotting, and identified a core group of Scots, in addition to Argyll himself, who appeared to have been involved in some sort of conspiracy. Some they were unable to reach. Sir John Cochrane, Cochrane's son (John), Lord Melville and the Earl of Loudon had all fled to the Continent; in April 1684 legal proceedings were initiated in Scotland against all four in absentia, whereupon they were found guilty and had their estates forfeited.¹²⁷ Argyll was in the Low Countries, and already lay under sentence of death. However, by the end of July 1683 the crown did have a number of Scots in custody in England for alleged involvement in the Rye House Plot, among them Sir Hugh Campbell of Cessnock, William Spence, William Carstares, Alexander Monro and Robert Baillie of Jerviswood. Finding it difficult to fix anything on any of them, in violation of the English Habeas Corpus Act in October 1683 the government decided to deport them to Scotland, where the authorities had the option of using torture to extort confessions.¹²⁸ Moreover, since there was no habeas corpus in Scotland, the suspects could be kept in prison, without being charged or brought to trial, until the government had managed to accumulate enough evidence against them.¹²⁹

Sir Hugh Campbell of Cessnock was brought to trial at the end of March 1684. Unable to construct a case for his involvement in the Rye House Plot, the government charged him with being in the rebellion at Bothwell Bridge. The jury acquitted him, but he was nevertheless detained in prison, the court arguing that, since he was the King's prisoner, they would need to know His Majesty's mind before he could be set free. Cessnock was eventually to plead guilty to treason in June 1685, following the confessions of Carstares and Monro, and suffered forfeiture of his estate.¹³⁰ In order to ensure better success with the other alleged Scottish conspirators, on 14 June 1684 Charles II wrote to his Scottish council to authorize the use of torture.¹³¹ The rules concerning the use of torture were somewhat vague; there was no positive law or act of parliament in Scotland regulating its use, instead only custom and common law.¹³² Nevertheless, there seemed a general agreement in legal circles that certain principles had to be adhered to. Torture was to be applied only against someone accused of a capital offence, and enduring the torture purged one of all suspicion of the crime – in other words, the accused was not to be tortured again if he failed to confess the first time around. Moreover, the torture could not be excessive; if death resulted, those who carried out the torture would be guilty of murder. There was also supposed to be one witness against the accused – the so-called semiplena probatio, or half-proof (the law requiring there to be two witnesses for full proof) – and a solid presumption of guilt before torture could be used.

The first to be subjected to torture were Spence and Carstares, and in neither case were the above principles respected. Both were being held on suspicion only, there being no half-proof in either case. Both were asked to swear an oath to answer all questions put to them; both refused on the grounds that it was illegal to force them to incriminate themselves, which it most certainly was in capital cases. The council's position, however, was that it had promised Spence and Carstares that, in return for their information upon oath, they would not be charged with a capital crime; by refusing to take the oath under these conditions, the council claimed, the accused had implicated themselves, providing sufficient grounds for the use of torture.¹³³ Spence was a target of the government investigation because he had been Argyll's secretary and was believed to know how to decipher some of his master's coded correspondence.¹³⁴ The council subjected him to three different types of torture in order to get him to reveal the cipher. His interrogation began on 25 July 1684, when he was put to the boot, with the wedge against his shins being given eighteen knocks of the mallet instead of the usual six or seven. They then tried sleep-deprivation, a procedure used against witches, keeping Spence awake for several days and nights by dressing him in a hair shirt and pinching him or prodding him with hot pokers whenever he seemed about to collapse from exhaustion. On 7 August they moved on to the thumbscrews. At last Spence broke down, agreed to help decipher the correspondence, and confirmed that Argyll, Stair and other Scots had formed a design to raise an army in Scotland.¹³⁵

In September the council moved on to Carstares, who, after being subjected to the thumbscrews and threatened with the boot, confessed to the plot. He named many, and those whom the authorities were able to apprehend were likewise threatened with torture to reveal what they knew. Hamilton vigorously protested against the council's blatant abuse of due process, alleging that ‘at this rate, they might, without accusers or witnesses, take any person off the street, and torture him’, and refused to be present for any of the interrogations.¹³⁶ His fellow privy counsellors remained unperturbed. In December they moved against Robert Baillie of Jerviswood. Baillie was now very ill, having languished in prison in Scotland for well over a year, with no formal charge against him, and the council decided it would be better to establish his guilt before he died in custody. Two of those who had been arrested and interrogated on the basis of Carstares's confession, Walter Scott, Earl of Tarras, and James Murray, Laird of Philiphaugh, were brought forward as witnesses to prove that Baillie had been involved in the Rye House conspiracy. Baillie's trial began on 23 December, but the council, fearing that Tarras's and Philiphaugh's testimonies would not amount to enough to convince a jury beyond reasonable doubt, ordered Carstares's confession to be read in court, even though, in criminal proceedings, depositions by absent witnesses were not admissible as evidence and, in return for his confession, the council had promised Carstares that anything he might say would not be used as king's evidence. The council claimed, however, that the confession was to be read not as evidence but merely to satisfy the jury that the witnesses could be believed. It did the trick. Baillie was found guilty on the 24th, and was executed the same day.¹³⁷

Increasing governmental severity was also a reaction to a revival of the Cameronians. The Rye House investigations had produced reports that the Society People kept in touch with discontented elements on the Continent, and the council's concerns intensified from September 1683 when James Renwick returned from his studies in the Low Countries as ordained minister to lead the Remnant and field conventicles began to start up again. Reports of continued disturbances by conventiclers, including the stabbing of horses belonging to the dragoons in Carstairs and Lesmahagow, prompted the council to take a series of new initiatives. In January and February 1684 it issued new commissions for several counties in the south-west, granting full justiciary powers to certain named local magistrates, sheriffs and army officers to hold courts and execute justice on malicious rebels and those who disowned the King's authority. A further act of April targeted those who harboured or otherwise conversed with rebels.¹³⁸ Nevertheless, the south-west was still proving remarkably difficult to police. Near the beginning of June, Renwick preached in the fields at Blackloch in Lanarkshire before about a hundred armed followers (eighty men and twenty women); although troops were immediately dispatched in pursuit, they were unable to make any arrests, and for several days this small armed band marched freely through the countryside, allegedly threatening the orthodox clergy and murdering some of the King's soldiers. On 22 July Charles responded with a proclamation complaining about the remissness of the local officials and the heritors, and commanding the sheriffs, stewarts, heritors and commoners to apprehend and bring to justice the rebels, and all who intercommuned with them – in effect, raising the hue and cry for the entire south-west.¹³⁹ At the beginning of August, following the rescue of a group of prisoners at Enterkin in Dumfriesshire, on the road from Dumfries to Edinburgh, involving a violent struggle with soldiers resulting in deaths on both sides, the council placed the south-western shires under military rule, empowering army officers to search for rebels and field conventiclers and any who aided or abetted them.¹⁴⁰ Towards the end of the month Charles authorized the council to hold courts in the districts of Glasgow, Ayr, Dumfries and Dunse (in the Scottish south-west); with just three privy counsellors serving on each court, they were to try Bothwell rebels and those who disobeyed the laws against conventicles or refused to come to church, and they had the power to fine, imprison, banish and even inflict capital punishment on those who remained obstinate. The enormous discretionary powers this gave the counsellors convinced Wodrow that Scotland was now under ‘an arbitrary and absolute Government Scotland’, with ‘Life, Liberty, and every Thing, left in the managers Hands’.¹⁴¹

The High Court of Justiciary, Scotland's supreme criminal court, became more ruthless in dealing with prisoners who refused to acknowledge the King's authority, leading to twelve executions in the first six months of 1684 alone. There were a further five executions in August: three for assisting in the rescue of the party of prisoners at Enterkin; a fourth for boldly disclaiming the King and owning the Covenant after the accused had managed to get himself arrested at the above three's execution for calling the hangman ‘a dog and villain’; and a fifth ‘for owning Bothwel-bridge, the Lanerk declaration, [and] the excommunication of the King’.¹⁴² It was not just those with dangerous political opinions who were targeted; all Presbyterians came to feel the lash of the law. Those who refused to come to church suffered heavy fines – for instance, a document from August 1684 records fines totalling £274,737 levied on the heritors of Roxburghshire alone.¹⁴³ In February 1684, by a questionable extension of the law, husbands began to be fined for the recusancy of their wives. It is true that a number of statutes passed since the Reformation, including the Conventicle Act of 1670, had explicitly stated that husbands should be liable for the offences of their wives. The original Act against Separation of 1663, however, had included no such provision. What it did say was that ‘all and every such person or persons’ who withdrew from church should be fined, and Perth maintained that this implied that husbands were to pay their wives' fines, since married women held no property of their own. Even Aberdeen, who at the time was still chancellor, found this reasoning dubious, but he was now falling from favour, and the King gave a ruling backing Perth's reading of the law.¹⁴⁴ In April 1684 Charles authorized the transportation to Carolina of those prisoners who refused to take the Test but who in other respects appeared penitent.¹⁴⁵ The heavy reliance on the military to keep the peace made it difficult to ensure that due process was always followed. During the summer of 1684 one man was murdered in the fields by troops as he was returning home from a conventicle; a party of soldiers came across the unfortunate victim when he was taking a rest, and ‘without any probation or process, shot him’.¹⁴⁶

It should not be assumed that the campaign against dissent was directed solely from above. Episcopalian clergymen, especially those intruded into areas which had previously been Presbyterian strongholds, were often active in informing against nonconformist activity and in exhorting their parishioners to help bring to justice those who failed to come to church or who attended conventicles. The government's policy of repression also appears to have attracted a certain amount of support from local landowners in some of the most troubled areas. On 9 October the heritors of Kirkcudbrightshire presented an address to the King offering to make an additional voluntary contribution of twenty months' cess, spread over four years, to help maintain the standing forces in the area, and pledging themselves for the good behaviour of their tenants and cottars. Similar pledges came in from the heritors of Wigtown, the shire of Dumfries and the stewartry of Annandale, the districts of Clydesdale and Ayr, and the shire of Stirling.¹⁴⁷ It seems to have been the case, however, that it was the privy counsellors sent out as circuit judges who were responsible for encouraging such addresses; Queensberry received a letter from the council in late 1684 thanking him for the Dumfries and Annandale address and telling him he had ‘answered in this the just expectation of the King and his Royal Highness’.¹⁴⁸

On 8 November 1684 the Society People responded to the intensification of persecution by issuing an Apologetical Declaration and Admonitory Vindication of the True Presbyterians of the Church of Scotland, which they affixed to market crosses and church doors throughout much of the south-west. After first stating that they remained committed to their earlier declarations disowning Charles Stuart and declaring war against him and his accomplices, they proceeded to condemn all who stretched forth their hands against them – judges, army officers, militia men, soldiers, the ‘viperous and malicious Bishops and Curates’, and the gentry and commons who served as informers – and warned that such people would be punished as ‘enemies to God and the covenanted work of reformation… according to our power and the degree of offence’.¹⁴⁹ The first victims of their retaliatory justice were two soldiers in the king's life guards, by the names of Kennoway and Stuart, both notorious persecutors, who were murdered ‘in a most barbarous manner’ while sleeping in Swine Abbey, near Blackburn in Linlithgow, on the night of 19 November.¹⁵⁰ The Cameronians were said to hold ‘mock-courts of justice’, before which they cited ‘any they judge their inveterate enemies’, whom they subjected to the ritual of a trial before condemning them to death. In early December the council learned that ‘the wild fanatics’ (as Fountainhall termed them) had murdered the minister of Carsphairn in Kirkcudbrightshire, a Mr Peirson, ‘a great delater of them, and zealous in rebuking them in his sermons’.¹⁵¹

The council responded to this declaration of war with a series of savage measures. It had the three men who were brought before it for posting the Apologetical Declaration brutally tortured by the now favoured method of the thumbscrews and then executed.¹⁵² On 22 November it passed a resolution that anyone who refused to disown the Apologetical Declaration upon oath should be immediately put to death by persons commissioned by the council, provided there were two witnesses present, and it followed this up three days later with an abjuration oath that could be tendered to anyone thought suspect.¹⁵³ Most of the west and south-west was put under martial law. At the beginning of December the council issued a commission to Lieutenant-General Drummond to hold courts of justiciary in the south-western shires to execute justice on suspected rebels and their adherents, and with the forces under his command ‘to persew, take, apprehend and kill the forsaids rebells and ther resetters’; a few days later it authorized the Laird of Orbistoun to raise a volunteer force of 200 Highlanders to march to any parts of Dunbartonshire and Renfrewshire with authority to ‘kill, wound or destroy’ any they found in arms resisting.¹⁵⁴ On 30 December Charles issued a proclamation imposing the abjuration oath on everyone over the age of sixteen; no one was to travel without a certificate testifying to their having taken the oath, and any who refused the oath or failed to produce a certificate of loyalty when required were to be reputed supporters of the Apologetical Declaration and proceeded against accordingly.¹⁵⁵ By an order of council of 13 January 1685, this meant that men were to be hanged and women drowned.¹⁵⁶

Perhaps as many as 100 people were executed in total during what have become known as ‘the Killing Times’, most of them in the fields.¹⁵⁷ Some of those who refused the oath were summarily shot on the spot; others were given time to reconsider or were afforded some form of trial before eventually being hanged.¹⁵⁸ In April 1685 a justiciary commission at Wigtown sentenced sexagenarian Margaret Maclauchlan and eighteen-year-old Margaret Wilson to death by drowning, without any legal trial. Upon appeal by friends and relatives of the convicted, the council ordered a stay of execution, but for reasons that remain unclear the magistrates at Wigtown never received notification, and the two women were tied to stakes on the seafront and had their heads thrust beneath the waves of the oncoming tide by the town officers.¹⁵⁹

The persecutions in Scotland during the years of the Stuart reaction were much more severe than anything seen in England. One London Whig newspaper commented in the autumn of 1682 upon the ‘Unparallelled Severity Exercised upon the Non-conformists’ north of the border, while Wodrow, writing of the year 1683, observed that the ‘Sufferings in England for Conscience sake’ could scarce be called ‘suffering’ compared to what was going on in Scotland.¹⁶⁰ ° Moreover, whereas in England the government had to work within laws that were already on the statute book before the crisis over the succession erupted, in Scotland we see a process of continual innovation, as new acts of parliament or council were passed and fresh initiatives were taken for dealing with political and religious subversives. In 1687 the covenanter apologist Alexander Shields complained how the Scottish authorities, in their ‘ambition to outdo all the Nero's, Domitians, Dioclesians, Duke of Alva's, or Lewis de Grands' in tyranny, ‘scorned all formes as wel as Justice of Law’, especially after the Apologetical Declaration, when ‘they acted with an unheard of Arbitrariness.’¹⁶¹ Presbyterian controversialists, writing after the Revolution, similarly condemned the years of the Stuart reaction in Scotland as a period of tyranny, when the authorities, through a host of arbitrary and illegal proceedings, ruthlessly oppressed and condemned multitudes of innocent people, male and female, without ‘due course of Law’.¹⁶²

Those in the government felt that the policies pursued in Scotland were a wholly appropriate – and legally justifiable – way of dealing with the threat of malicious malcontents who were bent on destroying the peace of the nation. As Mackenzie of Rosehaugh, Charles II's Lord Advocate, was to write after the Revolution, Charles II's penal laws were justified because the dissenters had ‘overturned the Government and Laws’, and ‘this Cause was much more just in Scotland, than even in England, because the Dissenters in Scotland were more bigoted to the Covenant, which is a constant Fond for Rebellion.’ The subsequent laws against field conventicles, Mackenzie continued, were but ‘the necessary product of new accessional degrees of Rebellion; and were not Punishments design'd against Opinion in Religion, but merely against Treasonable Combinations’; indeed, he could boldly say ‘That no Man in Scotland ever suffer'd for his Religion’.¹⁶³ Similarly, in July 1683 the Lord Lieutenant of Ireland, Ormonde, observed that the ‘Dissenters in Scotland’ were ‘possessed with the spirit of contradiction and rebellion and that no mild nor moderate exercise [could] cast out that devil’.¹⁶⁴ The answer lay in a rigorous enforcement of the law. The Scottish bishops repeatedly maintained that the fanatics had become a problem only because of the misguided policies pursued by ministers of state in the 1670s (especially the various experiments with Indulgences), and insisted that a steady and effective application of the laws would keep all quiet.¹⁶⁵ Likewise, Mackenzie of Tarbat, in a letter to Hamilton in November 1683 concerning the alleged neglect of some local authorities in suppressing conventicles, pointed out, ‘Theer is a course prescribed by law and if it be prosecute all places will be too warm for conventicles.’¹⁶⁶ An unnamed correspondent wrote to Queensberry in late 1682 that ‘wee must doe things legallie,’ although he was also confident that ‘wee have always law enough if wee follow it right.’¹⁶⁷ Government apologists in England pointed to the effectiveness of a strict application of the laws in Scotland as a way of suggesting that the same needed to done in England to deal with the problem of dissent south of the border. Thus in January 1683 L'Estrange commented in his Observator how ‘Good Laws and Resolution have done the work in Scotland,’ with the result that meetings were suppressed and the churches ‘fill'd with the Persons of the Reclaim'd’.¹⁶⁸ A little over a month later he observed ‘how Easily… that Stubborn and Headstrong Faction’ in Scotland had been mastered, and ‘how willingly… the Generality of that Perswasion deliver'd themselves up to be Reclaim'd’ as a result of the steadiness and vigour of the authorities in enforcing the law.¹⁶⁹ As in England, adherence to the rule of law became the main self-justificatory trope of the advocates of stern measures against political and religious dissenters in Scotland. It is only from the second half of 1684, when the Scottish authorities came to think of themselves as being at war with the radical Presbyterians, that we see the emergence of a more violent discourse. Thus in August 1684 Lord Advocate Mackenzie compared the Cameronians to ‘the Anabaptistical boors of Germany’ who ‘in a levelling fury… rose up both against the Nobility and Gentry to murder them’; he pointed out that Luther and other Protestant divines ‘were clear that these sectaries were to be hunted and killed as wolves, and other ravenous beasts of prey’.¹⁷⁰

As far as the supporters of the government were concerned, the campaign against dissent in Scotland was a success. One author, writing after the Revolution, claimed that Charles, at his death, ‘left this Church of Scotland in more peaceful condition, then it had been of a long time before; it was united to a very desirable degree: Generally all Scotchmen were of one Communion’, for there were very few Catholics, fewer Quakers, and the Presbyterians, with the exception of the small sect of Cameronians, ‘had for the most part returned to the Churches Unity; their Preachers were generally become our Hearers, attended duely our Public Assemblies, and many participated of the same Sacraments with us’.¹⁷¹ Local officials on the front line reported stories of their success. In March 1683 the sheriff-depute of Lanarkshire, one of Scotland's most troubled shires, could boast that his regular holding of courts over the last couple of months ‘in every parish in the upper ward’ had resulted in the churches there being ‘better filled than they had been for many years past’.¹⁷² Critics of the government agreed that nonconformists were now going to church, but pointed out that they were doing so out of fear, not conviction. Thus Fountainhall concluded that the persecution was ‘fruitlesse’, for, although ‘it drove many… to the church, yet compelled prayers’ had no worth, ‘force making but hypocrites, and the church like a prison house to them’.¹⁷³ Some fled to Ulster, others to the new world (particularly New Jersey and Carolina).¹⁷⁴

What we have here, of course, is a polemical debate between two sides locked in mutual antagonism; it is understandable that the critics of the regime of the 1680s should want to accuse it of tyranny, and that its defenders should seek legitimacy by appealing to the rule of law. Yet the point that needs to be made is that in Scotland the law gave the king, and those who served under him, far greater discretionary power than in England. The law not only provided stiffer penalties for dealing with dissent (including capital punishment), and harsher weapons in bringing people to justice (such as the use of torture), it also enabled the king to set himself up above the law, to sidestep the traditional civil authorities, to use the armed forces to execute his policy, and even to sanction summary execution. In that respect we can talk about the exercise of arbitrary government in Scotland in the final years of Charles II's reign; there were extra-legal proceedings, many people suffered without due legal process, and numerous instances might be cited where justice can scarcely said to have been done. Whether the King, or those commissioned by him, ever exceeded his legal powers, however, is more of a moot point. Nevertheless, by the end of Charles II's reign Scotland had gone a long way to becoming an absolute monarchy – not just in theory, but also in practice.

The theoretical foundations of Scottish absolutism were spelled out in full by Lord Advocate Mackenzie in a lengthy treatise published in 1684. Mackenzie boldly proclaimed ‘that our Monarchs derive not their Right from the People, but are absolute Monarchs, deriving their Royal Authority immediately from God Almighty’, and set out to support this contention by reference to positive law, fundamental law, divine law, and the principles of reason. For Mackenzie, the king was supreme, limited ‘in nothing’; parliaments were ‘not co-ordinate with our kings in the Legislative Power’, which resided ‘solely… in the King’; indeed, the king not only was ‘above Law’, but could ‘break Laws justly’ – that is, when justice required – ‘for a strict and rigid Law is a greater Tyrant, than absolute Monarchy’.¹⁷⁵ There were some limitations on the king's authority, however: ‘this Title of absolute Monarch’, Mackenzie admitted, did not ‘empower him to dispose of our Estates’. That was why the Militia Act declared that the people should not be subject to free quarter. But all the land of Scotland had once been the king's, and so he was presumed proprietor of all. The king therefore had ‘a Paramount and Transcendant Right over even Private Estates, in case of necessity, when the common Interest cannot be otherwise maintained’; thus, for example, in time of war he might quarter freely.¹⁷⁶ Furthermore, kings could not ‘be punished by their own Subjects’; a king was ‘lyable to the Directive Force of the Law, that is to say, He ought to be Governed by it as his Director’, but he was ‘not liable to the Coercive Force of the Law’. ‘Free Monarchs’ could not be judged ‘save by God alone’. Resistance, even in the name of self-defence, could never be justified. ‘As it is not lawful for Subjects to punish their Kings, so neither is it to rise in Arms against them, upon what pretext soever, no not to defend their Liberty nor Religion.’¹⁷⁷

Mackenzie went to equal lengths to prove that ‘neither the People, nor Parliaments of this Kingdom, could exclude the Lineal Successor, or could raise to the Throne any other of the same Royal Line.’ Indeed, not even an absolute monarch could alter the succession. He refuted the notion that the coronation oath ensured that only a Protestant could become king. In Scottish (as in English) law ‘The king never dies,’ which meant that at the moment the last king dies the successor is king. The Coronation Act related only to the crowning of the king, not to the succession; a coronation was not absolutely necessary, since a king was still a king without being crowned; and there was no clause in the Coronation Act ‘debarring the Successor, or declaring the Succession Null, in case his Successor gave not this oath’. Besides, the Succession Act, by stipulating that the government devolved to the next lawful heir, regardless of his religion, immediately upon the death of the monarch, abrogated the Coronation Act ‘as to this Point; for how can the administration be devolv'd immediately upon the Successor, if he cannot administer till he be Crown'd, and have sworn this Oath?’ It seems, then, that Mackenzie was telling his readers not only that their present king was absolute and irresistible, but also that they would soon have a Catholic one who was absolute and irresistible and limited in nothing. Mackenzie did however say that ‘The Lawful Successor, though he were of a different Religion from his People, (as God forbid he should be) may easily swear, That he will maintain the Laws now standing.’ Indeed, he conceded that ‘any Parliament’ might ‘legally secure the Successor from overturning their Religion or Laws, though they cannot debar him’. For, even if the successor did not swear to maintain the laws, Scottish Protestants would nevertheless be ‘in little danger by his Succession; since all Acts of Parliament stand in force till they be repeal'd by subsequent Parliaments, and the King cannot repeal an Act without the consent of Parliament’, Mackenzie explained.¹⁷⁸ It was an important qualification – one that was to be put to the test in the reign of the Catholic successor.