Continued from the November issue, page 341
THE six prisoners, Welsh among them, had been summoned to their trial, and their very lives were at stake. Two of their lawyers, distinguished members of the bar, declined to take any part in the case, and it was suggested that this was the result of pressure from the Chancellor. This left Thomas Gray, an old man, willing enough to proceed, but lacking in ability, and Thomas Hope, for whom this was his first case before a court. But Hope conducted the case with such skill that it established his reputation as a good man and a good advocate. These two remaining lawyers argued that their clients ought not to be tried for high treason as they had manifestly not been granted the 40 days allowed by law to persons accused of capital crimes so that they could prepare their defences. The argument was not accepted and, not for the last time, the court was less than open in the way the votes of its members were counted.
Hamilton, the King’s advocate, then addressed the court with such malice against the truth that Andrew Melville told him to his face the following year “that the accuser of the brethren could have done no more against the saints of God”. Hamilton rested his case on an Act of Parliament of 1584 which gave the King and his councils total authority over all his subjects in every conceivable respect. But the defence were able to point out that this act had been amended in 1592 to make it clear that it did not apply to ecclesiastical matters. Welsh told the court that he and his fellow-accused fully acknowledged the authority of the King and Council in civil matters, and concluded, “As civil affairs should be judged by the King and civil persons only, so should ecclesiastical affairs be judged only by the Kirk, and by the King only as a member of the Kirk”. When further attempts to make the prisoners withdraw their declinature proved unavailing, the court came to its decision. The presiding judge announced that all the Lords had found the prisoners’ declinature to be treason. “Say not all, my Lord,” cried the Earl of Mar, “for there are here that are not, and never will be, of that judgement.” It was even alleged that only five out of the at least 23 members of the court concurred in the decision given in their name. Justice and truth in Scotland had indeed fallen in the streets by the early 1600s.
The jury was then called, some of whom, Welsh freely accepted, were “faithful and honest men”, but others could easily be threatened into doing what the authorities wanted. Most of them had not been present at the previous part of proceedings, which was quite contrary to proper procedure. The Lord Advocate began by informing the jury that the accused were on trial for treason because they had declined the authority of the Privy Council in the matter of the Assembly held in Aberdeen — of which the Council were the proper judges, he went on to claim, by the act of 1584. The jury had no business to decide whether or not treason was involved, he told them, only to decide the facts of the case. He concluded by threatening the jury that their lands, goods and lives would be forfeit to the Crown if they did not bring in a verdict of guilty. Thomas Hope, speaking for the defence, argued that it was the duty of the jury to consider the wider issues, and exhorted them “to fear the great and righteous God and His Son Jesus Christ, who shall be the great judge of the world,” and they were to remember that the accused were held both in the Church of God, and in the country generally, with almost universal respect.
The prisoners were then permitted to address the jury themselves. Forbes spoke first and explained in detail all that had happened. Before closing his speech he reminded the jury of how the King himself and the nobles of Scotland had a number of times sworn the National Covenant. Among those who had done so, Forbes reminded them, were a number who that day were their judges. By subscribing the Covenant they had bound themselves to maintain the existing government and discipline of the Church. He then took out of his pocket a printed copy of the Covenant and read this extract: “To the which (that is, the Reformed Church) we join ourselves willingly in doctrine, faith, religion, discipline and use of the holy sacraments as lively members of the same in Christ our Head, promising and swearing by the great name of the Lord our God that we shall continue in the doctrine and discipline of this Church, and shall defend the same according to our vocation and power all the days of our life upon the pains contained in the law, and danger both of body and soul in the day of God’s fearful judgement”.
Welsh spoke next. “Although our persons are not to be much regarded,” he told the jury, “yet have we found this mercy of God, to be the servants of Jesus Christ. However men esteem of us, yet in His sight, and before the Lord, we are no less than ambassadors of the great God, carrying the message of death and life, of salvation and condemnation, to the people; and, therefore, whatever shall be done to us He shall account it as done to Himself.” Welsh went on to explain the legal position, as their counsel had previously done, reminding the jury of the difference between the spheres of authority of, on the one hand, the King, parliament and councils, and on the other hand, the courts of the Church, which “belong essentially to Christ’s royal authority; and the judgement of all His assemblies . . . , and so consequently of a General Assembly, belongs only to Christ Jesus the only King, in and by His Kirk. As civil affairs should be judged only by civil persons, so spiritual and ecclesiastical affairs should be judged only by spiritual persons.” He pointed also to a previous “declinature of the authority of His Majesty and of the Lords of the Secret Council, which was subscribed by almost the whole ministers of the whole Kirk in this land, to the number of 400 ministers or thereby. Yea, these same bishops of ours and commissioners, who are now the fountain of all our troubles . . . they also subscribed the same declinature . . . which we have in readiness to produce, to witness to their faces that not only all the ministers, but they also who are now our enemies, approved and justified the same cause for which we now suffer.”
By this speech, we are told, “the hearts of the jury and of all that were present were much moved”, but what could plain, logical reasoning be expected to achieve, and even powerful appeals to the conscience, when the whole system was so corrupt? Hamilton, the Lord Advocate, even interrupted Welsh to tell the jury over again that their only business was to decide whether or not the accused had declined the authority of the Privy Council. And, after Welsh had finished, Hamilton spoke again; he ended by once more making dire threats against the members of the jury if they did not bring in the verdict he was looking for.
In a second speech Forbes spoke with tremendous solemnity about Saul’s breaking of the oath made by Joshua and all Israel to the Gibeonites. He applied the matter to the King, because he was violating his solemn engagements to the Church in Scotland; he did so, we are told, with “threatening most terrible (and) made all the hearers astonished and their hairs to stand”. For over six hours the jury considered their verdict in a room below the court. But, doubtless to see that they did their duty to the King, one of the judges was present — which, of course, was completely illegal.
When it became clear that the jury would probably acquit the accused, their foreman and the judge returned to court to let them know which way the matter was likely to go. Two judges and the foreman of the jury were then dispatched to make a further attempt to persuade the accused to withdraw their declinature claiming, though they expected the opposite, that the ministers would certainly be condemned. When this proved unsuccessful, more threats were applied to the jury, along with promises that no harm would come either to the Church or to the prisoners. By a majority of nine to six the jury at last returned a verdict of guilty. One jurymen, John Livingstone, declared that he not only acquitted the prisoners of treason, but owned them to be honest ministers of Christ and good subjects of the King. And two of the nine who condemned the ministers became deeply disturbed for their part in bringing in so flagrantly unjust a verdict, and only found peace after making confession of their sin.
When Elizabeth Welsh heard in Ayr that her husband was likely to be brought to trial she made her way to Blackness as quickly as possible. While the jury was considering the verdict she waited with the wives of the other ministers. And, when the verdict was announced, they thanked the Lord Jesus, who had given their husbands strength and courage to stand for His cause, before adding, “They were even entreated as their Master was before them, judged and condemned under silence of night”.
(To be continued)