Defenses Against the Grand Indictment of High Treason, Article (2 of 2)

Defenses Against the Grand Indictment of High Treason · Article (2 of 2)

p. 48Like as by the 5. Act Parl. 2. K. Charls the First, It is expresly statute That every member of Parliament shall faithfully and freely speak, answer and express themselves upon it and every thing which is propounded in so far as they think in their conscience may conduce to the glory of God, the peace of the Church and State, and employ their best endeavours to premove the same. Under which oath (read in the audience of the late King, and by him approven in the Parliament 1641.) the Defendor, as a Peer of that Parliament in anno 1648. was solemnly tied to the Dictates of his Reason and prescripts of his Conscience, and cannot be called in question as a member, having freedom therein: and conform thereto, is the oath of this present Parliament, bearing that every member shall faithfully and freely according to their best judgement give their advice and vote in Parliament.

To the second part of the first member of the said Articleanent the Defendor his protesting and dissenting from the said Act, 1648.

It is alledged for the Defendor, The Protestation not produced, as it ought to be, whereby it will appear that if any was, the same was before the Act of Parliament past, and that they did only proteste and enter their dissent against proceeding to the determination of the question then p. 49in hand which evinces the same to have been before the Act was made. Like as the Defender offers himself to prove by the Members of Parliament then present, That being asked if they would renew the Protestation after the Act, they shunned to do the same, the Act being now past.

2 Absolvitor (Though the same were produced) because it is offered to be proven, That the same was ratified In the fourth Act Parl. 2. Sess. 2. Cha. 2. which was approven at the Treaty at Breda, and confirmed at Perch and Sterling, as is said. But for the honorable Parliament, their more full clearing anent the Defenders carriage in the said particular, It is offered to be proven, if need be is, That the Defender (before the Commissioners return from the said Isle of Wight, in the said year) when he heard that His Majestie had satisfied his peoples desires concerning Religion, in presence of divers persons of honour, he exprest himself passionately earnest to engage for his Majesties freedom. Like as the only difference of the opinion anent the Engagement was in the manner the grounds of these that were dissatisfied, being as they are exprest in the said Protestation, viz. That the Parliament should not proceed till the Commission of the Church were consulted and aiding also (which is not therein exprest) till advertisement and three months warning were given, conform to the large Treaty; until all means of peace had been first essayed, and while first the lawfulness and necessity of that war should be found by the Parliament, conform to the 7. Act thereof. And it is humbly conceived that many in this present Parliament do remember how unanimous all were that His Majesty should be brought out of the hands of the Sectaries, to some of His Houses in or about London. And all they differed in was, That the Church should be consulted anent the securing of Religion, all means of peace should first been essayed, and warning given in manner aforesaid, conform to the large Treaty, the breach whereof was made one of the grounds of that Declaration, Act 7. And it cannot be refuted but p. 50that at several meetings the dissenters debated the dangerousness of of that War (especially if the Army should be defeated) from the sad consequences that might thereupon ensue to King, Kingdom and Religion, as immediately, thereafter fell out. Whereas had the Nation been intire and whole in their power and force that Army of Sectaries in probability would not have dared to have attempted those matters which afterwards they did; so that the case being truly stated there will appear no malice against his Majesties Person, Authority, and Restitution thereof, but an unclearness to enter into a War of such danger and hazard, and the respect they had to the security of Religion (as all then prosessed) according to the Covenant,

To the second member of the Ninth Article, whereby it is alleadged, That in contempt of the authority of that Parliament, and against the preservation of his Majesties person and Authority; that the Defender convocated an Army of rebellius Subjects, and therewith committed divers and sundry outrages, slaughters and vastations upon the persons and estates of his Majesties Subjects, invaded Cities and Castles, seised upon Magazeens; Arms and Ammunition, and called in an Army of Sectaries to his assistance.

It is answered, 1. That the same is not relievantly subsumed upon any act of the proposition; at least till the Advocate condescend upon which Act thereof the same is founded, the defendor is not bound to make answer.

Secondly, The Defendor denies that he did convocate these Forces, or gave counsel or command therefore; and as to his being with them he must be assolied.

1. Because by a treaty at Sterling betwix… the chief Officers in the Army then alive, and out of prison, and a Quorum of Members of the Committee by authorite of Parliament, 1648. who had power to order the incident affairs of the Nation, the said meeting, and all acts of hostility, and others p. 51thereby committed are expresly discharged, … inde and a mutual Oblivion and Indempnity therefore.

2. Any meeting he had with them was by a call of those of the Committee of Estates, who joyned with those forces, and who in the Treaty is acknowledged the Committee of Estates.

3. The said meeting and acting thereof, together with the Treaty and Articles thereof is ratified and approved by the third Act 2 Parl. 2 Sess. Ch. 2.

The third member of the ninth Article, bearing That apprehending his power was not able to withstand his Majesties good Subjects, The Defender called in to his assistance the Army of Sectaries, and that he went into Mordington and … with the Commander of that Army, had private consultations with him, and prevailed with him to come to Edenburgh with his Army, whose coming he might have hindered, Because Oliver said That he could not help his lying upon the Tenants of Mordington, for that his staying and going depended upon the Defender: And that he did countenance and consult with the Sectaries and their Commanders in Edenburgh or the Cannygate, in the house called the Lady Humes Lodging.

It is answered, That as to speeches and consultations in general, not releivant except they were condescended on… and as to the words spoken by Cromwel, if spoken by him, it was a lie, and can infer nothing against the Defendor, and the occasion of his stay was till he got Barwick and Carlisle; which could not be restored till the Treaty at Sterling was closed: And as to his his meeting and treating with him, …, because he and others did the same by warrant of the Committee, and which Treaty was ratified in the foresaid Act of Parliament thereafter.

To the Fourth member, That he concealed and voted to the drawing up of a letter directed to Cromwel, wherein he and his Complices engaged themselves in name of the Kingdom of Scotland, to do their utmost endeavours, that none who p. 52had been access…ry to the Engagement, or in arms at Sterling in pursuance there…f should be employed in any place of trust, without the advice and consent of the Parliament.

It is answered,

1 No such letter produced.

2. Though it were produced, yet consenting and voting not releivant, Because a vote in the Committee of Estates can infer no crime against the Defender or any member thereof, nor any Act past in the said Committee, especially seeing,

3. The Acts of the said Committee was ratified in the fourth Act of the Parliament foresaid, all ratified thereafter by the Treaty at Breda, and Acts of Ratification at Perc… and Sterling; and the necessity thereof, would be also considered, in respect of the large Treaty, both Kingdoms having given their publick faith that the breakers should be rendred up to the observers, and that the English Army then upon the borders required the performance thereof, against the engagers and for further security, pledg…s and places of strength: It was at that time counted a great favour (considerin… their power to have made their own terms) when they might have imposed and forced to what they pleased more, yet they did accept this act.

To the Fifth member of this Article bearing, That he did draw up, at least did counsel the drawing of certain instructions, given to Sir John Chiefly, proporting, That the Noblemen, Gentlemen of quality and considerable Officers who went into England under Duke Hamilton, and were there prisoners should be kept as pledges for the peace of the Kingdom.

It is answered

1. Not produced as it ought to be, that it may thereby appear whether he subscribed the same or not.

2. Not rele…vant (one of the Committee) except it were libelled present, and voted at that time, for Noxa capu… sequitur.

3. Not releivant, voted Quia in Senatu nemo tenetur de consilio.

4. Oppones the Authority of the Committee, Treaty, Acts of Parliament, and Ratifications aforesaid.

p. 53To the last member of this Article, bearing, That he gave warrant under his hand, for issuing of a Proclamation against the Families of the Laird of Ras and Vyres.

It is alledged for the Defender,

1. No such warrant produced, if any such warrant were produced under the Defendors hand, it will certainly appear to be as President of some Committee, & so not his personal deed, nor such a deed as can infer any a crime against him.

3. No such Proclamation ensued.

4. Although ensued, yet that took no effect, and so was Mine tantum et animus ad effectum non perductus.

5. Oppones the Act of the Committee, and Act of Parliament, 1649. aforesaid, which Parliament and the whole Act thereof is ratified in the Treaty at Breda and approved in the Parliament at St. Iohnstores and Sterling, wherein was also made an Act of Oblivion, oftentimes before alledged on; in respect whereof the defendor ought to be affolzied from the said Ninth Article and whole member thereof, and all therein contained. And because the Defendor has in his defences so oft alleadged the Act of Parliament, 1649. for his vindication, he desires that it may be observed (which is very observable) that by the printed Treaty at Edenburgh and Sterling, September 1648. it is agreed and appointed by those of the Committee at Sterling, 1648, that a Parliament should sit down before the 10. of Ianuary next; conform thereunto they did convene and sit down the fourth of the MonethMonth of Ianu. as by the said Treaty, and the first and third Acts of the Parliament doth appear, whereby it is clear That the said Parliament, 1649. was appointed to sit by the Committee of the Parliament 1648, who had power by the last Act of the said Parl to convene the Parliament before the first Thursday in March, 1650. if they thought fit; as also that Sess. of the Parl. 1649. by the last Act thereof continues the same to the first Thursday in March 1650. at which day they convened in the next Sessions, and therein ratified the Act of Parliament made in the former Session, and which day was the diet to which the Parliament 1648. continued the same with p. 54power, to the Committee of Estates, to convene the same sooner, if they thought fit, as is said. Whence it is evident, that the said Parliament, 1649. whether as appointed by the uncontroverted Committe, 1648, at Sterling, in the first Session, or as is continued to the first Tuesday of March, 1650. in the second Session (both conform to the last Act of the Parliament, 1648. must subsist and sway the said Defender his just reason, to found his Defences upon the acts thereof. It is also further considerable as to the Loyalty of that Parliament, that therein the murther of his late Majestie was declared against, his present Majestie proclaimed and brought home, his subjects of this Nation reconciled to him, and taken into favour, an Army appointed to oppose his Enemies, the Crown set upon his head, and that Session of Per…h, wherein the whole preceding proceedings were approven, was dignified by the presence of his Royal Person.

And to the tenth Article, and that part thereof where it is libelled, That the Defender in Anno 1649. not daring to oppose in publique, or in a direct way His Majesties home coming, he procured the Application made, …o be clogged with such Limitations and Restrictions, as were most derogatory to Monarchical Government, as is alledged to be …re fully exprest in the Commission, Instructions and Addresses, which are repeated as a part of the Libel.

It is alledged for the Defender:

1. Seeing the said Commission, Instruction and Addresses are libelled on, and repeated as a part of the Dittay; in all Law and form of Protes, they ought to be produced with the Libel, for the reason adduced in the defence, against the relievancy of the proposition of the Dittay; and till which be produced, it cannot be consistent with the said Limitations and Restrictions, and how far they are derogatory to Monarchical Government, and therefore till then, there can be no Process.

p. 552. It is not condescended nor cleared on, which of the acts libelled on in the Proposition, this Article and members thereof are subsumed, and therefore it is obscure and inept; and in that incertitude, the Defender has just reason to deny, that it can be subsumed on any of the said Acts, to infer the crime and pain libelled against the Defender, none of the said Statutes making any mention of treating or infering any pain therefore; likewise after ruptures and differences betwixt a King and his Subjects, all Lawyers and Politicians do agree, That the best and safest way of removing the same, is by Treaty; and being concluded on, it is also their opinions, That the same are to be observed, at least so far as to exempt the Subjects from punishment, to whom indempnity has been thereby promised; and in this Gr…tius de Iure belli & pacis, lib. 3. cap. 19. is most clear, and many others, who write on that subject; and therefore the said Treaty being concluded, and after ratified by his Majestie and his Parliament, the Defender cannot be called in question for his accession thereto, nor the pain of Treason thereupon inferred; for the said Treaty and conditions thereof being accepted and agreed to by his Majesties voluntary Contract cannot be like as a crime, far less so high a crime as Treason against the Defender.

3. Absolu…tor from that member of the said Article, because not onelyonly after the said Treaty, did His Majestie …acitely remit any crime, if any was, in the said Treaty, by admitting the Defender to places of trust, by receving the Crown from his hand at the Coronation, and by admitting him to take the Oath of Allegiance, and to be a Member of his Majesties privy Council; but also after the said Treaty was ratified, there was an Act of Pardon and Oblivion by his Majestie and Estates of Parliament oftimes before alledged, and is here repeated.

Though the above written defences be relievant in Law, as to the said member, yet for the Defenders further vindication, the Honorable Parliament would take notice, that all along the preceding A…es, all the publike actings from p. 56the year of God, 1640. to the year 1648. (wherein the Generality and Representatives, both Civil and Ecclesiastick in the Kingdom concurred) are charged upon the Defender as his particular actings, or as if the Defender had been special author, whereas in this Article anent the treating with, and home bringing of his Majestie (therein it is known the Defender, according to his bound duty) was most active and zealous, and therein he wrestled with all his might, and by his pains and Gods blessing thereon, overcame many difficulties, and did effectuate the same. The Libeller does so far detract from the Defenders faithful discharge of his duty in this so glorious action, and without libelling the least presumption of any circumstance to make the same probable, the Defender is accused, as if he had in his judgement been against his Majesties home coming; which because he d…rst not avow publiquely, therefore he betook himself to underhand dealing; To clog the Treaty with Limitations and Restrictions; excluding the Defender from all accession to the said duty, in so far as it was good; viz. To bring home the King. and making him to be the sole author of all libelled to be evil therein (to wit of the limitations and restrictions) whereas the truth is, he was active in the Kings home bringing, and was passive in the other, having laboured what he could that there should be as few conditions, and the same as satisfactory to his Majestie a was possible at that time to obtain, which is known to all that did transact in the said affair, and which if need be, is offered to be proven. And for further clearing hereof, if this Article shall be further insisted on, my Lord Advocate will be pleased to condescend who the parties were, that made the motion for addresses to his Majestie, of whom the Defendent should have been afraid, if he had been of a contrary judgement, to have opposed openly; for if the Defender had so great sway in affairs (as all along the preceding Articles he is allowed to have had: and also, if he had intended (as is broadly and with foul month alledged) in the said Libel all along alledged, to have extirped and p. 57evacuated the Kings Majesties Authority, Government and Posterity, and had such correspondence with those abominable Regicides, as all are perswaded by the said libel to believe, in the said year of God 1649. when the said Traytors were strong, and both this land through divisions and otherways very low, and when the power was in the Defendor and his complices their hands (as my Lord Advocate is pleased to libel and term them) who at that time had the managing of affairs; then was the fittest time and best opportunity, if they had any such disloyal thoughts, to have shaken off that Government; but so far did they abhor any such treachery, That they not only proclaimed His Majesty, and according to their duty owned His Interest (even with the hazard of their lives and fortunes) there being noneso shallow but easily might have seen that the discharge of the said duty would bring upon themselves and the Nation the power of England (the onelyonly power of Arms and Armies being at that time in the abominable Regicides their hands) who did immediately thereafter invade this Kingdom.

As to the other member of the Tenth Article, whereby it is libelled, That the Defendor (to obstruct His Majesties purpose, yea in so far as in him lay, and to terrifie him therefrom, by his and his complices crulelty executed upon the Marquess of Montross, who as his Majesties Commissioner did represent his Majesties person) caused to murder the said Marquess in anno 1650. in manner, &c.

1. It is no way releivantly libelled, that the Defendor in general caused murder him, except it were condescended qu… modo he caused; and if thereby be meant his voycing in Parliament 1649. in the said matter; non relevat, because a vote, Act or sentence of Parliament is no way releivant to infer a crime against any particular member therein, as hath been oft before alleadged.

Likewise 2. The sentence of the forfeiture of the life and estate of the said Marquess, was no decree of the Parliament p. 541649. but of the Parliament 1645, which was homologat by several other Acts of Parliament, excepting the said Marquess among other excepted persons, as specially by … and by the 22 Act of the Parliament 1648.

And yet 3. The Defendor did not vote in the business of Montrost, as he can prove (if need be is▪) by the members there present 1649. And as to the aggravations of the said Murder, the said Marquess being His Majesties Commissioner for the time, It is no way a releivant circumstance to aggravate the same, except it had been libelled, That the said Commission had been shown to the Parliament, which no body can affirm; but on the contrary, the said Parliament conceived they had just reason to presume that there could be no such Commission for his coming against them at that time, because His Majesty after the murder of His Royal Father, very graciously had admitted their gracious Applications to him.

Likeas before Montross his coming at that time to Scotland, and always thereafter, His Majesty had a Committee of the said Parliament, under the name and title of the Committee of Estates of His Majesties Kingdom of Scotland.

As to the Defendor his alledged keeping correspondency with Cromwel in the year 1650. As the same is irrelevantly libelled, no deeds nor acts or correspondency being condescended on; so there was never any such thing. And there was one named Hamilton, who vented this untruth, hanged at Sterling, and at his death did declare, That the same was a mo…t unjust calumny; and it is not to be beleived that at that time he would have charged his soul with a lie, and in Law the words of a dying man are oriculously beleived.

As to the Act of the West-Kirk, the Defendor (no ways acknowledging the releivance of the said Article, as it is libelled) was so free from having the least accession to the said Act or Declaration; that so soon as he got knowledge p. 55thereof, to evidence his fidelity to his Majesty, it is offered to be proved by witness (for their loyalty above all exception) that when the first news came that the Commissioners were about the drawing of the said Act, the Defendor gave advice to His Majesty, To draw a fair Declaration, and to go such a length, as in freedom he could, that thereby he might prevene the said Act, and obviate the pressing thereof: But as for the other that was pressed, he was altogether against the same, and dealt with the Minister who came from the Commission of the Kirk, to forbear pressing. His Majesty therewith, which also if need were might be proved.

As to the eleventh Article and subsequent Articles, because the same are for deeds of compliance after the Usurpers had prevailed and were in possession: Before the Defendor make particular answer it is necessary to premise in general, that it being notoriously known to the world (to the eternal honor of this Kingdom) as for that damnable usurpation of Oliver, not onelyonly we were not active in establishing the same, but according to our bound allegiance to our Soveraign, were to the utmost possibility of our power in arms under His Majesty, and other ways active against him, and in opposition thereto, many lost their estates, many their lives, and all of us our liberries; and when we could do no more, being oppressed by the force of the said Usurper (as a chaste forced Virgin) we …ried to God and man, attesting Heaven and earth against Usurpers, even when their bloody swords were at our throats, he and his Army, amongst many other execrable mischiefs, were also guilty of this usurpation. We have suffered, and been only passive under that irresistable force. And as this was the condition of the Kingdom, so specially the Defendor, who as he had been most active and instrumental in His Majesties home-bringing (which was the only ground of the quarrel, and for which he was looked upon by them, as one of their capital enemies) even so after it p. 60pleased God for our exercise and punishment, to suffer their power to prevail over all his Majesties Forces, and over this Kingdom such aversion had the Defender, even so much as to live under their power, let be, to comply actively with them, that after Worcester, the Defender offered to Mr. David Dick, if he could get his company, or the company of any other honest Minister, that he would never capitulate with any Englishman, so long as he could subsist in any part of Scotland, either his lands or Isles thereupon: It is humbly craved, that Mr. David Dick may be examined; neither did the Defender ever capitulate with them, till August, 1652. having before that endeavoured, all that in him lay, to have perswaded those of Athol, Monteith, and other his Neighbours in the Highlands, to have concurred with him, that they might have joyntly made some probable force for resisting the overspreading power of the Usurper, but all in vain: Likewise, long before that time, the whole Forces and Strengths of the Kingdom were surrendered, yea, the whole Kingdom, by their Deputies and Representatives (who met at Dulk…ith with the Commissioners of the Parliament of England, so called) was forced to submit to their power, and accept the tender of the union of this Nation with England, proffered by them; Neither did he at the said time in August, 1652. voluntarily come in and capitulate with the said English; but was surprized (several Regiments of their Forces, horse and foot, having sudden'y come about his House where he was for the time, lying deadly sick) as can be testified by Dr. Cunningham, who was with him for the time, and is humbly craved to be examined thereon: As also, notwith…anding of the said surprizal, and the Defenders condition, though they threatned, notwithstanding of his sickness, to carry him away prisoner, yet all their threatning could not preva…l with him, but he did absolutely refuse to subscribe the Articles first offered, which contained the tender of the union, and an obligement upon his part, to promote the same, and the Government as then established, and to live peaceably; yea, p. 61such jealousie had they of the Defender, that by his Capitulation, he was prisoner upon demand: Nither during all the time of their power over th…s Kingdom, had he ever any favour of the said English, but was always look upon by them with a most jealous eye: And for evidencing hereof, the Defender humbly craves, that there be Comm…ssion granted for examining of Lieutenant Colonel Vtter (anent what was deponed by Mac Nachtan, and several, viz. of the Defenders small affection to the Engl…sh, or any other authority but the Kings. Likewise, it is notorious how unjustly he was persecuted before the Exchequer here for the time, for payment of 4…00 l. Sterling, alledged to be rest and bygon few duties. This being the Defenders true case, it is hoped, that the honorable Court of Parliament, will take consideration how the Defender stood out as long as he could, till he was prisoner; and will have a different consideration of Subjects acting under the lawful Magistrate in exercise of his Authority by himself, or others lawfully constituted by him; and of the actions under cruel Usurpation and Tyrannie, the lawful Magistrate being forced for his own safety, to abandon his Dominions and people to the lust and oppression of the unjust Usurper, (who was Master not onelyonly of their fortunes and persons, but their lives, and all that was dear to them) and had for a long time detained the possession of his unjust Usurpation, and devouted the lawful Magistrate: Which case is not onelyonly difference by all who write on that subject, but also Cook, in the third part of the Institutes of the Laws of England, cap. 10. anent his Treason, in expounding the Statute of the 25 of Edward the third, upon the words of the Statute Le Roy, puts such weight upon the Kings being in possession, or one of the same, that he expressly affirms, the Statute is to be understood of a King regnant, and in possession of the Crown and Kingdome; as also, that in such cases, a favorable consideration is to be had of the actions of a subject who was particularly noticed, and jealously looked upon by the Usurper, for his affection to the lawful Magistrate and p. 50his Government: (All which being remitted to the Commissioner his grace, and the Honourable Parliament their consideration) he now comes to answer to the eleventh Article: Against which eleventh Article, and all the members thereof, as libelled it is alledged, the said Article is general, not condescending on the day or monethmonth, nor on the particular year of God of the committing of the deeds therein libelled, but onelyonly alternative in Anno 1653. or 1654. and therefore (as has been oft before alledged) the same is inept, and there can be no proces thereon. 2. It is not condescending on, nor cleared, which of the acts of Parliament libelled on in the Proposition, this Article, and several members thereof, are subsumed, and therefore it is obscure and general, and in that incertitude, the Defender has reason to deny, that it can be subsumed on any of the said Acts, to infer the said crime ond pain.

As to that which is first libelled in this Article, That the Defender did not rise in Arms with the Commissioner his grace, and the Earl of Glencarn, who were Commissioners by his Majestie. The Defender he repeats the two exceptions aforesaid against the whole Article, being confident this cannot be subsumed on none of the Acts libelled on: And further alledges, that it is not relievancy libelled, to infer, (vel minimam culpam) against the Defenders, far less so high a crime, except it were libelled, that your Lordships Commissioner had been shewed him, and he required, which was never done: And herein he may refer himself to the Commissioner, his Graces Declaration, and if his Grace does not remember, that the Defender sent him word, shewing his desire to have met with his Grace, and to have spoke with him about the business; but had never the honour to have his Graces answer or appointment.

2. For further clearing, that his not joyning, except he had been required, is no crime, it is evident from the fourth Act of the first Parliament, Iac. 1. that those onelyonly are punishable, who does not assist the Kings Host, being required thereto: and Craig. pag. 365, says, that because the King p. 51has so many Vassals, they are not obliged, nor cannot be punished, except the particular pain to be inflicted upon the away-stayer, be particularly exprest in the Edict by which they are commanded to appear: and pag. 365. he says, That these who come not, being warned by an Edict, shall be counted, and pag 370. he says, That the Vassal should not be obliged to appear at any such services, except they be desired, which command should be proven by his Peers: These Edicts were particularly required by the fundamental Law, and were called heri bona, which is defined by Cujas to be the calling and citation of the Army, and is lib. 3. c. 10. quart. leg. franc. to be the punishment of him who comes not to the Kings Host, when he is called, and this assertion is clearly proven from Rague, in his Treatise de Iur. Reg. pag. 53. Likewise by the said Act par. 1. Iac 1. it is expresly ordained, That those who disobeys to enforce the King against notorious Rebels against his Person, shall be challenged.

1. If they be required by the King, as is said,

2. And except they have for them reasonable excuses: but sure it is, the Defender not only was never required, as has been alledged, but there was even pregnant reasons, as he humbly conceives, the which it seemed very probable at that time, that albeit it be the duty of all his Majesties subjects, to rise for his Majesties interest, in opposition to Usurpers, yet it was not seasonable, as affairs then stood, till either they had been defeated by sea in the ingagement that they then had with Holland (whereby both the forces might have been diverted, and the Transportation of Victuals and Ammunition from England, Ireland, and the parts of Scotland under their command, and their Army in Scotland, might have been intercluded;) or that Spain and France had concluded that peace whereof there was then several reports, and thereupon his Majesties subjects in Scotland, might have had hope of some probable assistance in the undertakings in his Majesties service; or that division and in consequence confusion, had fallen out in the English p. 64Army amongst themselves, whereof there seemed to be but little hope, so long as the appearance for His Majesty should meet them as against a common enemy, as it was. Likeas it would be thought it should have no other effect; and as in effect the event proved, that that Army never divided till they had no common enemy, against whom mutual preservation does necessitate a mutual concinse, but all at amity one with another. And albeit a particular command had not been absolutely necessary (if His Majesty had been there in person) yet in a juncture of time wherein such a War was improbable for many state reasons (which induces the Defendor to beleive that there was no Commission granted at that time) which presumptions excusant a dolo, and without dole (as has been said formerly) there can be no crime: And though he had been required, yet could not have been punished for his not obeying, seeing in effect he was the enemies prisoner upon demand.

But this is conceived onelyonly to be libelled as an aggravation of what followed, which is, That he joyned in open hostility with the Vsurpers, forces, especially with the Colonels Overton, and Twisleton, at the least Cobbet and Twistleton, at the least Twisleton, when he was in the Highlands, and in opposition to the said Earls.

It is answered, 1. This member is general, not condescending upon the particular deeds of hostility, and therefore inept, for criminal libelling ought to be most clear, as is affirmed by Damband, cap. 30. prax. Cron. Num. 4. and should contain all the qualities of the crime alledged committed. And as to the alternative, That he joyned with one or other of them, it is most lax and obscure, and therefore in that also this Dittay is inept: And for the alternative added (at the least he gave counsel) non relevat (because general) except the counsel were condescended on, and that it were such as might fall under the Acts libelled on; and the most that can be alleadged, if the time were condescended on of his alleadged joyning, is, that he was in p. 65company (it may be with Twisleton, and if it was, he was onelyonly going along with him to General Monck (being sent for by him, and that when the Earl of Glencarn was under treaty with him, if not after the treaty was concluded, which he conceives will not be denied) and the Defendor being their prisoner upon demand by his capitulation with General Major Dean.

It is alleadged first, That a Prisoner should go in company (being commanded with, and to those whose prisoner he is) is nothing like a crime.

2. Though that had not been, yet he alleadges in answer to that member of the alternative, anent his furnishing of several peeces of great Cannon to Alured Governor of Air viz, That the Defendor and all that was his, or in his possession, being under the absolute power of the Usurper, they might command him to go or to call him where they would, with whom to go along, or to bring whatever he had to them, had it been on his back had he been able to carry it: And that cannot be imputed to him for any crime (otherwise who should be innocent) when subdued; must they not give to their Enemie of their goods whatever he will have? and who in Scotland should be innocent? behoved not all to bring to them; that is in effect did they not take what they pleased: But as for my voluntary going or joyning in action with Twisleton, or any of the others named in their service, the Defender absolutely denys the same.

Item, For his taking and releiving prisoners, Non relevat, except the Prisoner were specially condescended on: Specially relieving of prisoners, is not releivant to infer any crime, but on the contrary is a good office to the persons and parties (except it is libelled that he as Officer under the English service took and releived prisoners, which can never be made appear, whatever the same might import. But the truth is the Defendor medled with no such things, and the Defendor shall truly relate the point of fact which he conceives hereby to be meant, which is as follows, The p. 66Defendor hearing that his Isle and County of … was pillaged, and going up the River Clydde, the boat wherein he was being followed by another boat, and the Defendor having asked what they were, they alleadged they did belong to the Earl of Glencarn, but could shew no warrant, and thereupon the Defendor having some suspicion that they were rather Robbers then Souldiers belong to the Earl, and fearing that General Monck, whom the Defendor was then going to, and whom he had never seen till that time, might get notice thereof, and make use of the same as a friare, the Defender advised them to secure their money and arms in the hands of one of his Servants upon assurance that the same should be delivered to them, after he should be certified what they were, and thereafter recommended them (fearing to incur the danger of a private prison) to the Carison of Dunbarton, not under the notion of Souldiers under the Earl of Glencarn, but as common Delinquents for injury done to the Country. And at his return after a few days (being tender that they should incur no danger) procured their releasement, and their names was never enrolled as prisoners to be exchanged; and according to his promise caused redeliver their money and arms

As to the following member of that Article, viz. That the Defender took pay from the Usurper for a company of Scots under them, and in their service.

Adhering to the several exceptions against the releivancy of the propositions of the Dittay, and exceptions against this whole Article, in the beginning of the answer thereto; special…y that it is not condescended under which of the Acts libelled on this member is subsumed, till which be done the Defendor has reason to deny that it falls under any of them. Neither is it releivantly libelled, to infer any crime unless it had been libelled, That the defender, having commission for that pretended Company for the English service p. 67at that time, had levied or kept that Company, inroled their names as a formed Company under the English and their Regiments, and engaged them to the Commonwealth and their service; because these are required in a Souldier in any service.

1. That he be Relatus in numeros, that is to say inrolled, per lexeod. 42. Y. de Test. milit.

2. Vt praester Sacramentum, that is, that they gave the oath ex milit 11. F. eod. & viget 2. cap. 6. or that the defendor had imployed them in the English military service, or in execution of their orders, all which the Defendor absolutely denies, they never having been inrolled, given any oath or Engagement, or imployed in their service, as is said.

But on the contrary, and truth is, there uses to be in the said Shire, and all other places in the Highlands in broken times Watches to keep off depredations, maisterful reifs, and other oppressions amongst the Country people, themselves and their neighbors in such times: And accordingly in the year of God 1653. or thereabout, the Shire of Argile not being able to entertain their Watch, and pay Sess also (not being as yet well planted after the burning) General Monck was prevailed with to help to entertain the said Watch (likeas at the same time also several other Shires bordering upon the Highlands, as Inverness, Pearch shire, Aberdeenshire, Sterling, Dunbarton, all of them had Watches the said times, and allowance therefore from the said General Monck) who within two moneths did withdraw the said allowance from the said Watch of Arguileshire, because they refused to engage against those who was then in the hills under the Defenders Son and others, whom the said General Monck also alleadged that they favoured; and thereupon withdrew his help and allowance for the said Watch, and spake of the Defender what his Grace pleased.

And to evince that this was nothing but a Watch, the men were not in a formed Comany, but several Gentlemen p. 68men in the Shire had the ordering of several numbers of them at convenient and needful places of the Shire, with proportionable entertainment, and without subordination as ordinary Souldiers; All which is not our, and if need be the Defender offers to prove. And the Duke of Albemarle it is hoped will remember how much offended he was that the Defender would not engage the said Watch against the said Lord Lorne and his Parties, and what prejudice he did still entertain against the Defender upon the said publick account. As also Colonel Robert Lilburn, when the Lord Lorn and Kenmoir went to Ken…yre in the year One thousand six hundred fifty and three. The said Lilburn immediately upon the notice thereof having come with a considerable party of the English Army to Dunbarton, and sent to the Defender to meet him, and to go along with him in Arguile towards Kentyre: If the the said Colonel does not know and perfectly remember that the Defender shunned the meeting, and would not go, whereupon he returned back with the forces after he was at the length of Lothlomond, whereupon the defendor humbly craves that he may be urged to declare; As also that the Countess of Balcarras may be examined, if the defendor did not assist her and her Husband in their passage through Arguileshire, as they were going to a meeting at Finlarig, for the business in the hills, in the year One thousand six hundred fifty and three. Neither can it be alleadged. That the defender or any of his people did the least prejudice to any person or party that professed to be for his Majesties service; albeit if he had been so disposed, he had and might have had several opportunities to have done the same.

As for the Member following, That the Defendor called the actings of His Majesties Forces against the Vsurper, Rebellion.

It is most general, neither condescending on time nor p. 69place, and therefore irreleivant and inept, but when condescended on he nothing doubts, but that shall appear he spoke no such things, nor had he ever any such construction thereof.

As to the last deed in the said Article, That the Defender in anno One thousand six hundred fifty and four, took upon him power to bring off such as was in that service, and to give remissions therefore, and particularly to John Mac Dowgall.

It is general neither condescended on time nor person brought off, and therefore inept, and irreleivant. And if it be meant only of the person named, viz. John MacDowgall of Dumslich, it will never be made out that he was in that service, when the Commissioner his Grace, and the Earl of Glencarn was in the field; nor that ever there was a Remission granted by the defender to him or any other in relation to that service.

As to the Twelfth Article and first member thereof, anent the defenders countenancing and assisting by his personal presence the Tyrannical and Treasonable Proclamation of Richard the Usurper and Protector of His Majesties Dominions at the Mercat cross of Edenburgh and Dunbarton.

The defender is so notoriously innocent of this Member of the Article, that he might with much confidence (in place of all other defence) simply deny it. But he will do no more for defence and clearing of his innocency, That where he is to propone his defence of alibi, that there month and day must be condescended on, whereof none is condescended on in this member of the Article; and till this be condescended on it is inept, and the defender ought to be assolzied therefrom; But the days of the said proclamation at Edenburgh and Dunbarton, being condescended on, the defender offers him to prove that during these days he was alibi, and neither at the City of Edenburgh nor Dunbarton all these days.

p. 70As to the second member, anent the Defenders procuring himself elected a Commissioner for the Shire of Aberdeen; and accepting a Commission from them, to Richards pretended Parliament, and sitting and voting therein as a Member of his pretended House of Commons.

That the English Usurpation was one of the most horrid Usurpations that ever has been in Europe, against all Divine and Humane Law, against the most uncontroverted right of the most Illustrious of Kings, our dread Soveraign, and his most Royal Father of Eternal glorious Memory, none of common sense or honesty will controvert… Next the said Usurpers having nothing but an unparalel'd, unjust detention of that power, whereunto no manner of way they had the least right, or any title whatsoever; but in place of a title, armed Violence and Force: The onelyonly mean (for title they had none) whereby they both de facto attained, and violently detained that possession, unjustly, of that power whereof the onelyonly right was, and possession ought to have been our dread Soveraign. Whosoever by Arms, Counsel or otherways, aided or abetted that armed Force, in establishing de facto of the power in the persons of the Monsters of men, and so in setting up of that abominable Usurpation, that he is guilty of the highest Treason, is heartily acknowledged: But the Usurpers having treasonably thrust their and our Soveraign, his Majestie, from all possession of his just right, and having taken upon them the Supreme Power; and being possesst (though most unjustly) yet most peaceably therein, and keeping the same by force, as they had taken it, the case then became most singular, as to what the poor oppressed subjects under their force might do, hoc rerum statu posito, in this state of affairs wherein the Usurper had treasonably put them Luck Lama: and most accute Iuvis, p. 71Consult. Ecclog. 6. membran. in L. 3. de Officiis pratorum observes learnedly, that Distinctio fieri debt inter personam ejus qui Magistratum gerit (cum tamen jus ad Magistratum non habeat) & ipsum Magistratum quam gesserit, persona enim ejus est privata hic publicus, & in publicis non tanta persona quam utilitatis publica habenda est ratio, ut enim tutela ait, Cicero, p. I. Offic. sic procurato rei pab. ad utilitatem eorum qui Commissi sunt non ad eorum quibus commissa a gerenda est, & sapientes deficiunt nihil aliud esse imperium …si curam rei aliens ut ait Amicanus Marcellanus lib. 29. that is, ipsiusre… pub. so Licklama distinguishes betwixt the person of him who unjustly de facto Magistracy (whose person is still but in effect private, and in the case of that usurpation a Traytor) and the Magistracy which he carries, which is publique.

Likewise, it would be distinguished betwixt Acts concurring with the Usurper, transferring de facto in his person the power he usurps (which are treasonable against the lawful Soveraign) and acts, whereby the opprest subjects make use of the power now usurped, wherein the utility, not of the Usurper, but of the subjects is respected, as Lucklama observes, ubi'sep. And then Grocius, lib. I. de Jura belli & pacis, cap. 4. num. 15. speaking de juvasove imperii, of any uniust invades, while his possession remains unjust, says, the acts of power is binding for the good of the Commonwealth; and because it is probable the lawful Governors will is, rather the Vsurpers command should be obeyed, or take effect, then that Laws and Judgements should fall in confusion in their terms, Restat at de invasore imperil videamus nunc postquam long a possessione vel pacto just noctus est, sed quam diu durat in ju…ae possidenda causa & quidem dum possidet actus imperii quos exercet vim habere possunt obligandi non ex ipsius jure (quod nullum sedex eo quod omnino probabile sit eum qui jus imperandi babet sive est populus ipse, five Rex, five Senatus te male int rim rata esse que imperat quam, legibus Indusque sub talis sunsman induci confusionem: and Lessius, who is one of the Authors Grocius cites upon the place, p. 72says, In the place cited, viz. Lib. 2. de Justicia & Iure, cap. 29. dub. 9, F. 37. That Tyranni usurpatiene potestatis mandatis obtemperandum propter bonum commune; which is, that the Tyrant and Vsurper is to be obeyed, even from the Law of Nature, for the publique good, in such a state of affairs; and addes, alioqui omnia esset plenalatrociniis & furtis: That is, all would be full of Robberies, Thef…s and Confusion in that state of affairs, because of the Vsurpers force, the use of no other Government can be had; so that the necessity of the benefit of Government for the good of the subjects or Commonweal (especially in what relates ad reipublica statum, in things necessary for the standing of the Commonweal, or to evite the ruine thereof) and the interpretative and presumed consent thereupon of the Prince, who has the right to the Authority which the Vsurper has usurped, but is excluded by the Vsurper from benefiting the subjects by it himself for the time, are the two grounds whereupon the making use of the power now in the hands of the Vsurper is founded, as is said: Whereupon it is subsumed, that in our case, the Invader and Vsurper Oliver having violently taken upon him the power, after he had put his and our Soveraign from the possession thereof, opprest by his Armed Force this Nation (and amongst others the Defender;) and Oliver having kept the possession all his time, and Richard continuing the same, the benefit of that power (which now he had usurped, and whereof he was in possession) was, as always it is, so necessary for the standing of the Commonweal, that without it men become but as fish in the sea, the lesser a prey to the oppression of the great; but especially, the said Richard having called a pretended Parliament, and commanded the Shires to send Commissioners thereto: Meetings and Representatives of the Nation, as they are of great use at any time, for treating common affairs of common consent, so transcendently at that time, for moderating the Arbitrary Tyranny of a Vsurper; and that, not being able to expugn his force, they might by strength of Common-Counsel, p. 73overcome and perswade his reason to things absolutely necessary, for the subsistence at least for the preventing the ruine of the whole body of the Kingdoms, and of his Majesties Leiges therein, as was the stopping that miserable union, which the Defender knew that it would be, as it had, been before, at even other Parliaments, so at that strongly attempted, as indeed thereafter it was; which union was that Vorax, wherein our Religion, our ancient Government Monarchick in his Majesties Person and Family, and the interest of Nobilities and our Liberties; were wholly swallowed up; and under pretext of being united, we were really enslayed to that pretended Commonwealth: The easing (if they could not perswade him to the taking off) of the maintenance and Sess (which upon Scotland, was six triple more then the proportion of England, and in it self so heavy, with the Excise and other publique burthens, laid by the Vsurper on it, that more was exacted in one monethmonth, then his Majesties Royal Predecessors would have imposed or taken of Taxation for an age, so that the Countrey could not subsist under it;) as also taking off some of the Forces under which we were kept in bondage, if that at least could have been obtained: The prevention of the alteration and change of our whole Laws (which was vehemently threatned) yea, and in general, the confounding and (dolo optimo) circumventing and defeating of the counsels by which the event proved, it was more hopeful and easie to overcome that force, then by might or power. And as the liberty of the Election of the Members in England, at that time of Richards Parliament made service to his Majestie in it, hopeful to all his Majesties friends and loyal subjects; so was it no small encouragement to the Defender to go there for the same end, and at the meeting in the Committee of Scots affairs, and several other meetings, when they were upon the debate of the said union, the Defender (of purpose to stop the same) did propone, that there could be no union, except it were agreed, that we might enjoy p. 74joy our Religion in Scotland without alteration, as it was established by our own Laws; and that we might be ruled and judged according to the same Laws, and except our Sess were proportioned according to theirs in England: All which concerns the Defender knew would never be granted; and were indeed so utterly improbable at that time, that the proposition thereof was construed for no other end, then for the end aforesaid, to stop the said union: Likewise, it did so well succeed, as in effect it did obstruct it (as the several persons of quality that were present can, and if need be, will declare;) and at that meeting, the actings and usurpation of the Vsurper Oliver, and the oppressions of that Army were of purpose much called in question, to make that Government and them odious, which accordingly happily followed, and such a breach and confusion amongst them was made, that their affairs thereafter could never come to any consistency, which made considerably and evidently, way to his Majesties happy and glorious Restitution: To all which joyning, That the call and command of the armed Force, has Purenes necessitates, a necessity of obeying lying upon persons under their power; it will follow from what is alledged out of these abovecited authors, founded strongly on reason, the Defender in that state of affairs had necessity and some obligation, to go and essay what could be by counsel, wisdom and prudence (since now there was no strength nor might left) effectuate for the standing, at least, to evite the ruine of the Countrey, in the particulars above mentioned, and others of that nature; at least, the Defender, as all of us, was under their force, and for eviting of his own and the Countreys ruie, habuit Parenes necessitatem: and by consequence there was no design of Treason therein; but by the contrary, most loyal intentions, upon good ground of hope, and very probable appearance: And therefore it is hoped, the Commissioners Grace, and the Estates of Parliament, will not finde this member relievant, to infer so high a crime against the Defender p. 75(how maxime attento) that beside publique ends, it was even a necessary self-preservative act, for the Defender had several other things of personal interest, as that, that they had ordained him to pay to them about …. Sterling, for alledged few duties (aughtland; and in time coming so much, that both joyned, he was not able to bear) and if need be, it is offered to be proven, and that he was most rigorously persecuted for the same; not onelyonly threatning to use real execution against his Estate, but also to imprison his person.

For eviting whereof, he behoved to go at that time to London, and could not have his person secured from arrestments there, but by going in Commission: And it is known, that his Majestie is so gracious, as in not a few, to excuse what they did of that nature, to evite (though but their own personal ruine) not imputing it to unfaithfulness in them at such a time; according to whose glorious and imitable example, it is (with much confidence hoped) that the Commissioners Grace, and Honourable Estates of Parliament, will have a favourable construction of what the Defender did in that particular, being necessitated thereto, both for publique and private interest, without any deceit or fraud, either in the intention or event, there being nothing at that time, while the Defender was there, done for confirming the Vsurpation, or excluding his Majesties interest.

Likewise, it may appear, that it was onelyonly the concourse both of publique and private interests and necessities, aforesaid, that moved the Defender to go at that time; because, though he was desired oftimes before to go, yet he still refused till then: He was one of the last that went to that, being the very last pretended Parliament under their power; not till long after that Commissioners had gone for the Nation for several years, and that all had submitted to their p. 76Constitutions, and were of necessity made use of as Laws for the time.

As for the aggravations of this Member, and to the first, That because of the Defendants Nobility, he was incapable to have been elected, at least, might have refused.

It is answered, That it is notor, Nobility was not then respected at all, nor was any ground of excuse, the meetings to the elections being commanded to all, as heretofore (and so Noblemen and others heretofore met promisculously through all the Nation) as is notoriously to all known.

And whereas it is libelled, That he had not his residence within the Shire: it ought to be repelled as irrelievant, because it is true, and was known to the Usurpers, and their Ministers and underlings, that he had land within the said Shire, and that considerable: so that he could not decline the said employment, without prejudice, the will and lust of the Vsurper at that time being uncontroulable, and tied to no rules of law or iustice.

And where it is inferred, That sitting and voting in that pretended Parliament, he acknowledged his Majesties power and interest to be in the Usurpers person. It is answered, 1. He acknowledged the same no otherways, but as all the Kingdom did, to wit, de facto,; for de facto the Vsurper had taken or possest himself of the power, as his Majestie is pleased to speak of it, in his Proclamation sanent commerce with Portugal, in October last, and had detained the same for a long time: But neither the Defender, nor any other loyal subject, ever did or will acknowledge, that de Iure the same belonged to him, or that he had any just right or lawful title thereto (as also Lessius says in the abovewritten place, speaking of them that seeks from Vsurpers that use of Government, whereunto he says, they are p. 77holden in and obliged, once taking on them the Government, (though sinfully and unlawfully:) they seek the benefit of it, says he not absolutely, but under a tacit condition, viz. If the Usurpers will take upon them the Government, Petunt (saith he) sub tacita quadam conditione si velit se pro principe gerere, speaking of the Usurper, and that the Usurper would not give the use of the power he had taken upon him, but in the way he pleased, was his crime which he continued during his usurpation. In respect of all whiew, it is humbly craved, That the defender may be assolzied from the crime of Treason libelled thereupon.

Like as for the defendors further clearing in this particular, it is humbly desired that certain Ministers and others above exception, whom the defender shall condescend on may be examined, if after his return from England in Anno 1658. he did not express with great joy his hopes That business in England, did tend toward His Majesties advantage.

Item, That a Commission be directed for examining Sir Anthony Ashly-Cooper, and several other Englishmen above all exception, how the defendor express himself in private anent his dissaffection to that Usurpation during his being there the time of the said Parliament, even though to his very great hazard at that time.

Item, That certain persons upon whose names also he shall condescend may be examined, if the defender to their certain knowledge the time of Sir George Booths rising (which fell out immediately after the defendors return from the said Parliament) did not put himself out of the way, being informed that he was to be secured, and thereupon delaid his journey to Caithness, and so readier to have laid hold upon any opportunity that should have offered for His Majesties Service and restitution; that time being the most probable that ever offered after Worcester.

As for the precept of Twelve twonsand pound sterling, p. 78which is alleadged the Defendor got from the Usarper.

It is answered, The Defendor did indeed obtain a precept, but not as a reward of any service (which he never neither did, nor desired to deserve from them) but for what they had wrongfully intromitted with, of the half of the Excise of Wine and Strong water (whereunto the defendor had right by Act of Parliament, before they had any power in Scotland.)

And as to the Thirteenth Article, First, For the whole Article, it is not consented on what Act of Parliament, the same consisting of three different members is subsumed, and till it be condescended on, there can be no process thereupon.

And as to the first member thereof, anent the words alleadged spoken at Innerary.

1. No time condescended on, and therefore the libel in that part is inept for the reasons afore mentioned, for which a criminal dittay ought to be special in the time at least year and month.

2. Whereas it is libelled, He rebuked the Ministers for praying for the King; in the words libelled, or some such like words; Non relevat as to the Ministers, except the persons were condescended on whom he rebuked.

3. Nonrelevat, Some such like words; some such like being most general, except the words were particularly libelled, alleadged to be such like, whereby the defender might advise his defences, and alleadge why they were not such like, as he would, if any words ever he spoke were condescended on. For the truth is he never spoke any such words: And was so far from rebuking any for praying for the Kings Majesty, That after the defeat at Worcester (which is the general time libelled, wherein he should have rebuked the Ministers for praying for the King) he himself caused continual praying for His Majesty both in his Parish Church and family, yea even in presence and audience of the English when they came there, though p. 79it was to his great hazard so to do.

As to the second Member anent the words libelled and alleaged to have been spoken by the defendor at London, That he wondered how the people should be so mad as to call home a Family whom God had rejected, and would never restore; or some such like words.

First, This is also general, neither time, that is, year nor monethmonth, nor particular place condescended on.

Secondly, It is libelled, That it was in the presence of persons of quality, they ought to be condescended on.

Thirdly, In so far as it is libelled the defender said The people was mad to call home His Majesty: It is general and inept, not condescending what people, and what was the occasion; if there was any motion made of calling home the King, whereupon that should have been spoken, and among whom it was: And Damhanders cap. 30. prax. com. num. 4. and others says, A criminal Dittay should be most clear and contain, Omnes criminis patrari qualitates, lib. 30. F. de accus. & Bart. and others, ibid. That it should contain all the qualities of crimes alleaged to be committed.

Fourthly, Some such like words, Non relevat, except the words were specially condescended on, which if they were the Defender would alleage and evince they were no wise such like, for the truth is, he never spake any such words, but on the contrary did all that he could there to make way for His Majesties happy Restitution; as has been at length cleared of before.

And was a very suspected person, in so far as in the year One thousand six hundred fifty seven, Oliver was so jealous of the Defendor, That he commanded him to stay at London, and not to return to Scotland, till his affairs (as he was pleased to express) were settled: So that not without great difficulty, by the mediation of the Lord Brongbil and Charls Fleetwood, he obtained his liberty; p. 80whereupon the Defender desires the said Charls Fleetwood to be examined, which he also desired at London. And not onelyonly was suspected as odious to the English for his known affection thereunto: As is notorious and has also before been exprest.

As to the third member of the said Article, anent the alleadged speech in Mastertones.

1. Neither the year nor month condescended on, and therefore general as to the time, and inept.

2. As to the first member thereof, That he would own any thing he had done.

First, It is exceedingly general, and not releivant, except what were the things he had owned were specially condescended, and what time, year and month; it is an unparalleld generalty, and therefore till made special, no process thereupon.

Secondly, It can import nothing in common sence wherein to own a thing is to acknowledge it for a mans own, But what he had acknowledged to be his own whether word or deed, he would yet acknowledge, which is an expression of ingenuity, and no crime, and this being the received sence of owning, the word cannot be strained to any other sence, or if occasion should be taken so to do, and that another sense could be put on that expression, yet being more interpretatio capienda est, the most-being interpretation is to be taken. Perd. ea qua S. I. 1. F. de reg. Iuris, as being both justest and safest by that Law. And in ambiguous speeches, or such as may receive two sence, every man is the best expounder of his own mind, and his interpretation ought to be admitted, per Leg. in ambiguiis F. de reg. Iuris and other laws. But the sense aforesaid is so plain that there is no place for caption.

As to what follows in the said member, That if what he had owned or done were to do, he would do it again, albeit he had known that all that has been would have come.

1. As is alleaged against the first part of this member, this is exceedingly general, but as to the time and month he should have spoken it on.

p. 812. As to what the things are that he would doe if they were to be done, and that time the things were done or owned to be done, on that the saying that he would doe if they were to doe is a crime.

3. What were those things in particular, that are understood or may be subsummed under the generall of all things that has comed to passe, whereupon it may be inferred, that that were a crime to the Defender to have said, that notwithstanding of them he would doe what he had done if that were to doe; and therefore the Libel in this part of the member is also general, obscure and inept: And to evince the ineptitude of this generality, suppose the Defender were thus indicted; You are indicted for all that ye have done the times by-gone preceeding your being in Iames Mastertonnes house after your coming for London, were not that ditty without all controversie Irrelevant? Then is it not also Irrelevant to be indicted for owning in general that he had owned, or saying in general, that he would doe that he had owned during that time if that were to doe again, without any further particular condescendance.

Like as 4. There is a very clear and obvious and benign sense these words may have (if ever he spake, as he truly never remembers that he spake any such words, viz.) that if it had been possible that times could have returned, and actions to be done under the same circumstances and representations they had then, it is probable these same might be the Defenders actions again, though he had known that had comed thereafter, not having p. 82connexion with or necessary dependance on these actings, each does not so much as import his present thoughts or approbation thereof, but is very consistant with a present disapprobation of the same; And is it not ordinary to say, that if such times were as has been, or such motives or circumstances of actions as has been, that it is very like I would be engaged in them as well as others, or as I have been my self? And yet to say with great consistance I ought not so to doe, like as truly it is known, and if need be, is offered to be proved, that the Defender, on the just contrary, had said to one Counsellour of Cromwels, and to many other famous Gentlemen, that things had been done wherein he would have been very far from engaging in, if he had seen what followed, which was the product of the corruption of evill men, that had abused what was well intended, for accomplishing of their wicked ends and (till they brake forth and could not be resisted) unknown designes. And the Defender hopes the sense aforesaid is very clear, and even though it were not so obvious, yet Rapienda est occasio quae benignus praebit responsum L — Rapiend. 168. F. de. reg. Iuris, That is any occasion should be even rest (as it were, though there were some violence done to the words) for a benign interpretation, and therefore by all meanes that interpretation of the words that may seem to inferre a crime ought to be eschewed, or if the word might be drawn to any other sense, yet In dubiis benignior… preferenda sunt, (as has been said) in speeches dubious, p. 83the most benign sense is to be preferred pret. semp. 56. F. de reg. Juri; or where words are obscure, or may suffer two senses, the parties own interpretation is to be taken, as the best intepreter of his own mind; Per ca quae… ss. 1. F. de reg. Iuri: And odia sunt restringenda favores ampleand…: what is odious (as that which may inferre a crime against any) should be restricted and favour amplified; and in generall, the Judge is alwayes to be more enclined to absolve then condemn, and so consequently take the sense that may absolve, rather then that which may condemn, Leg. Corianus F. de oblig. & 47. act.

5. The Doctors say, that voluntas & propositum delinquentis distingunt facinora per legem expressam Leg. qui in Iur. 53. F. de furtis in prae: That is the will and purpose of him that commits a crime, distinguisheth it, but velleitas, or voluntas in essicax, as it is called, not a will, but a would is no purpose to doe, and can be the cause of no crime, especially being about things past, and qualified with an impossible condition, if things already done were to doe (which is altogether impossible) that a deed done can return to have a new being and so to be done; and even there is some presumption of that mistake may be in this from the very place libelled, in which it is alledged to have been spoken, it being such as it is not improbable, that men may be very apt to fail both in judgement and memory, and so both wrong themselves & misconstrue others. And as for the aggravations that follows, that by speaking these words, p. 84the Defender took upon him by outward success, to give judgement upon the secret Counsell of the Almighty. 1. As it is in nowise true that the Defender spoke any of the words libelled, so this does (as he humbly conceives) in nowise follow upon the words immediately going before alledged spoken in Mastertounes, viz: that the Defender owned what he had owned, or would doe the same if it were to doe, for that is not any Judgement given of any hidden counsels of the Lords, but in expression at most of his own actions. And as for the words before these, albeit he had been so presumptuous as to say them (as he blessed the Lord he never was) yet it is not libelled that any thing that is therein alledged to have been spoken, either at Innerarrey or London, was spoken or inferred from providence and success: For the Defender blesses the Lord, he has been otherwise taught, then to use (or rather to abuse) so Turkish an Argument, and which the Lord has by his Majesties happy restitution so signally refu…ed.

And as to the last Aggravation, that the Defender thereby hardned others, such as otherwise was ill disposed, in their wicked courses towards his Majesty, it is indeed a sad reflection upon others herein not called however. 1. It is so general both as to these others and their courses, that it cannot, and the Defender hopes it shall have no weight, especially considering that 2. The Defender oppones his defences of before alledged, against all the members of this Article, whereby it p. 85is clear, that as they are libelled they can inferre no such thing, in respect of all which the Defender ought to be assoilzied also from this Article of the ditty.

As to the last Article. 1. It is not condiscended under which of the Acts of Parliament libelled on it is subsummed, and till then it is ineptly libelled, and there can be no process thereupon: Moreover the Defender has the testimony of his own Conscience, yea & of an higher, that nothing libelled therein is true, albeit if he had said that the Usurpers hazard was great from his Majesty, and if his Majesties designes took effect, they were ruined, the same were notour truths, and it ought to have been so; that is, it ought to be, & it was good, they were in hazard from his Majesties designes; and it w…s most just, that his Majesties designes should take effect to their ruine. And what crime could be in so saying he cannot apprehend; however he never spoke any such words to Cromwell or Ireton, which Ireton he never saw with his eyes; and did far more abhorre the least thought of giving counsell to challenge or question his late Majesty upon his precious Life, and his Innocency shall rest confident, absolutely to deny the same.

And as to the last part of this Article, whereby it is libelled that in Anno 1649. in face of the Parliament then sitting, he told that the Usurper Cromwell had told him, that England and Scotland would never be at peace till the King were put to death. The Defender adheres as to this part p. 86to the generall exception against all this Article.

That it is not condiscended under which of the Acts of Parliament libelled on it is subsummed, till which be done there can be no process, and if it be intended that it be subsummed under the 43: Act 2. p. Iam. 1. and the 134. Act Parl. 8. and 10. Act and 10. Par. and 205. Act. 14. Parl. K. Iam. 6. all these Acts, as both by their titles and tenours, and by Skeine in his Index on the words leasing makers appears; and it seemes by their conjunction in this libell, they are understood also therein of lying and slandering his Majesty, and his Progenitors, and the words libelled, though very horrid, yet seemes to be of another nature. And 2. to that Act 205. P. 14. Jam. 6. whereon only anything can be subsummed against him for concealing and not apprehending. 1. It is generall as to the time when Cromwell should have told it to him, and therefore inept till the time be condiscended on, which must be, especially seeing if it be not condiscended on, to have been after the Ingagement was broken; nothing can be subsummed on the said act thereupon against the Defender, nor on his not apprehending him, for he was not holden thereto by that act expresly, except (according to Law) it had been in his power: But so it is, it is known that at that time it was not in the power of the whole Kingdome to apprehend him, whether his victory or strength be considered, or the Kingdomes low and weak condition, at that time, wherein they lay open to ruine by him, if the Lord had not restrained him more nor p. 87their power could effectuate; and as to the concealing and not revealing, the Defender ought to assoilzied, because by the expresse words of the act, that revealing is declared to be such a revealing to some of his Majesties Privy Counsell, or some under Officer, &c. as that there through the Authors of slanderous speeches may be called, tryed, and punished; but that cannot be subsummed, except it were subsummed, that the speeches were spoken before witness, otherwise could not have been proved, and without probation could not have been so urged, as that sentence could have been given thereupon, and the Author punished, according to the words of the act, (which is also according to Common Law, and which is hereafter cleared); like as if the word thereafter should have been found treasonable, and the Defender not being found able to have proved them, he should have brought himself under the crime of treason, for accusing another of treason, and not being able to prove it, and therefore could not be holden so to do: As also albeit the Defender had heard any such words as is libelled (which he altogether denies) and that before witness, yet through his revealing thereof the Author could not be tryed or punished, for it is noturly known it was above the power of the Kingdomes, at that time as said is, or for many yeares thereafter, to punish him; and therefore the Defenders not revealing cannot be subsummed upon the said act of Parliament, to inferre the pain contained therein, or related unto.

p. 88Lastly, the pains of the said Act, and other Acts before mentioned together therewith, is not the pain of treason (as has been oft before evinced) and therefore the Defender cannot be convened for treason, or the pain thereof upon the said Acts, but ought to be assoilzied therefrom.

But if this member of this Article be intended to be subsummed under the last part of the proposition of th… ditty, whereby it is alledged, that by Common Law and practice of this Kingdom, all concealers and not revealers of any malitious purpose of putting violent hand in the sacred person of his Majesty, or purposing of killing and putting him to death, are guilty of treason; the Defender protesting his Innocencie in never concealing any such purpose, nor the words aforesaid libelled (which he abhorres) he is so far from justifying thereof, judging the horrid murder of his Majesty to have been the very ruine of our peace and happiness; yet as to the releivancy of that part of the proposition, in so farre as is founded upon Common Law and practice only: The Defender because of the preparative repeats what was before alledged in the answer to the proposition, in that part thereof; and adds further, In crimine lesae Majestatis, in the crime of lese Majesty, Num sciens tractatum proditionis contra principem vel patriam & illum non revelans sit puniendus poena mortis, That is, whether he that knows a Treaty about treason against his Prince and Country, be punishable by death; Clarus l. 5. S. fus. pract. crim. quest. 57. sayes, that many hold he is punishable p. 89by death: And that Cognol, in his lib. Culpa caret F. de reg. Fursi num. 2, that it is the common opinion, citing Alciat. in lib. tacere F. de. verb. sig. & m. l. Bona fide, num. 20. F. de pass. & in lib. 4. of Cato num. 30. F. de verb. oblig. related also by Gigas, de crimine lesae majestatis fol. 180. num. 10. Roll. Cons. 88. num. 10. lib. 2. Careluprac. crim. fol. 253. num. 29. saith, that all others follows this opinion: and Baldus cries out in one certain Counsell, that because Bart…l held otherwise, therefore his soul for that as a crime is tormented in hell, where it is clear, that even by Clarus acknowledgement (which is very high Treason) is not Treason by the common opinion of the Doctors, according as is asserted by the famous Authors he cites, and whom he contradicts not therein. 2. And Clarus nothing contradicting, but this is the common opinion, albeit he be of another with Bartol; that is capitall to conceal and not reveal, yet it is only in two cases, to wit, In tractatu qui fiat contra ejus personam vel statum: That is, where he has been conscious to, and known any Treaty or Consultation against the Princes Estate or Person: But as for other causes he holds expresly, that the concealer, and not revealer, is not punishable by death, in these words, In aliis autem casibus etsi sent comprehens in crimine lesae majestatis non putatem esse puniendum paena mortis subditum qui non revelaveret: And that he counsels Princes, even in these cases to use clemency and humanity rather then severity, and to execu…e their Subjects, upon any probable p. 90cause, from the pain of death. Whence 3. It is alledged, even according to Clarus his opinion, concealing not releivant, to inferre the pain of death, except where the concealer has been conscious to, and heard some treaty; that is, deliberate consultation against the Prince or his Estate: But so it is the words libelled, especially what is alledged to have been heard in Parliament, 1649. seems not to import that, being, as would appear, but volitantia verba, if any such thing had been heard, which the Defender absolutely denies; and importing indeed the authour Cromwels thought or opinion, that there would be troubles still so long as his Majesty (horrendum dictum) were not put to death: But Clarus lib. 5. prax. crim. F. fin. num. 87. distinguishing betwixt cogitationem nudam, a naked thought, and tradatum or a treaty or consulting, he affirms, that a naked or sole thought is not punishable in any crime, no not in Lese Majesty, except only heresie, when guilt is perfected in the mind: And thereafter num. 2. he moves the question, Sed pone quis non steterit in meris terminis cogitationis sed ulterius etiam processerit ad tractatum, cum aliquo de ipso maleficio committendo: But sayes he, put the case that any has not contained himself within the bounds of a thought, but has proceeded further to treat with any for committing the crime, &c. Thereby making a clear difference betwixt a clear sole thought and a treaty, about committing the crime: Now the words as they are libelled do not import any treaty with any for committing that p. 91horrid Murder, but the signification only of Cromwels damnable thought, what might be the Consequence of not taking of the Life of our dread Soveraign.

And hence 3. It will follow, that these words cannot be subsummed releivantly, under that part of the proposition of the Libell, because that any sense these words seemed to have as they are libelled, would appear only to import his naked thought of what might be the consequence of taking the life of our then dread Soveraign, but no purpose of his to take the same; neither could any presume, albeit his thought anent that consequence had been true, (as it is most contrary to the truth) that yet any man, in whom there had been the least sparkle of common reason, or conscience, would have purposed to commit, or committed one of the highest evils of sin, to evit (though) very great evils of punishment, it being a received rule among men, at least among Christian-men, That the least of the evils of sin should not be committed to evit the greatest of the evils of punishment.

4. Gomz a most excellent Lawyer is clear in his third tomb-variar. Resolv. de crimine lesae majestatis, num. 8. That concealing even of treason is only then punishable, when the concealer might prove it otherwise, not per text. leg. nostris, in fine cap. de calumniat. & L. quae. accus. capite: cap. de edendo: whereby it is said, that whosoever counsels to accuse, should have his proofes ready, and who accuseth falsly shall be punished as the party p. 92accused would be if the accusation were proved; Gomz citeth the Canon Law, Platia, Hippolatus, and others for their exception, which a fortiori holds in our Law, whereby by the 49. Act Parl. II. Iam. 6. accusing of any of treason, not being able to prove, so that the party accused be acquit, being so farre reprobate be our Law, that it is declared, that thereby the accuser shall incurre the same crime of treason whereof he accused the other, is a sufficient warrant to the Defender, not to have revealed that of Cromwell, if there had been any such speech, as the Defender never heard any such, except he had witness to have proved it; which neither is libelled, nor can be alledged, and therefore he ought also to be assoilzied therefrom.

5. All these Laws anent concealing and not revealing (as the Defender humbly conceives) must be understood where the treason is privately plotted, and the execution thereof is carried on by secret conveyance, and which by revealing might be crushed and prevented: But it is not our that the Usurper, as he had the power of armed force, so he had the unparalleld boldness, to carry on his execrable treason most openly, and that his power was such, as it was impossible for his Majesties poor Subjects of this Kingdom to resist (nor yet his Majesties other Kingdomes, thoguh far more powerfull, and that many thousands of them from their souls abhorred the said act) or prevent, and impede the same. And if the Defender had heard any such words of the Usurper (as he has p. 93just reason to deny he never heard) what ever they should import; what probable reason might have been, for not revealing it at that time, from the prevalency and power of that enemy, the condition of our poor Country, and utter impossibility to bring him to punishment, beside the want of probation, and so what place there were to Clarus his counsel of humanity, the Defender leaves to the Commissioner his Grace, and the honourable Estates of Parliament to judge.

6. What ever relievance there were in the Defenders conceiling, yet his acknowledgement thereof in Parliament 1649. As libelled non relievant to infer or prove it. I. Because a confession that prejudgeth a party must be Judicial, that is, In Iudicio, idque, utroque, Iure, & Civili, Canonico, as says Panormitane, C. Ex parte Decret. de confess. num. 16. That it must be in Judgement in a Process, wherein he who confesseth is convened, as is clear by Leg. 6. F. de Confess. Where the words are, Si dum quis convenitur, confiteatur, that is, If any be convened, confess, &c. and Panormitane dicto loco saith, That to the end a Confession may prejudge him who confesseth, it must be among other requisites, super re litigiosa, that is, on any thing letigious, or any thing in dependance or Process per. L. in confessionibus, F. de Interrog. ait, The words are, Confessionibus falsis respondentes, ita obligantur si ejus nomine de quo, quis Interrogatus sit cam aliquo sit actio; that is, any in making answer is oblidg'd by false confessions, if there be any action of dependance against him, upon that whereupon he was interrogate and confessed, and Panormitane is express, ubi supra, That non valet confessio, facta coram Iudice tanquam in judicio, nisi Iudex ad hoc sodent per Bartol. in lib. si confessus, F. de custod. reor. that is, a confession is not valid, though made before a Judge, as in judgement, except the Judge be sitting on that business; whence it is clear, That the acknowledgement libelled is no wise relievant to infer against the Defender what is libelled to have been thereby acknowledged, except it were libelled that he had been in judgement conveened thereupon, or that there was a Process depending against the said Defender, wherein he had p. 94confessed what was libelled in judgment; and the Parliament had been sitting on that Process, but so it is, that neither is it, nor can be libelled, and therefore his naked acknowledgement not relievant, and in effect, if in any discourse before the Parliament, any such word had escaped the Defender, (which he no wise acknowledges) yet that such a passing and indeliberate word, should infer or prove a crime, or so high a crime against him, he is hopeful the Honourable Court of Parliament will be very far from ever finding; for the very reason why confession has so much weight, is because it is presumed that no man will confess against himself in judgment, that whereupon he is convened and processed without great deliberation, which holds not if the acknowledgment be given out of any process, there being no dependant action or processe upon the matter thereof: And therefore the Defender is confident that he needs not trouble the honourable Court with more legall dispute against the relevance of the alleadged acknowledgment.

7. The words or acknowledgment lybelled as spoken in Parliament, 1649. Can never be obtruded to the defender, nor that he was conscious to the Counsell of that horrid murther of his late Majesty, because it is notour, and he offers him to prove if need be, that the whole Members of the said Parliament, 1649. And he himself amongst others in plaine Parliament were purged by their Solemne Oathes of all knowledge of, or accession to that wicked designe in relation to the Kings Majesty and House of Parliament.

8. And yet he is so confident he never spake any such thing in Parliament, that the day being condescended on, and dyet of sitting of Parliament, as by all Doctors is agreed it ought to be, then the Defender offers to prove his alibi; he offers to prove (if need be) he was alibi all that dyet, and so not in Parliament, where he is alleadged to have spoken these words, and yet that the Defenders innocency as to the accession or knowledge of that horrid murder, may yet further appear, it is known to many persons, and to some of the Members of this present p. 95Parliament, that when Cromwell was in Scotland, in Anno 1650. (notwithstanding it is known what malice he had to the Defender at that time) In this particular he expressed himselfe concerning the Marquesse of Argyle, That he thought him a man that had neither Conragenor Honour to have been upon such a businesse; and the Defender thanks God he had so much honour and honesty as in nowise to be accessory thereunto, and to abhorre the same.

9. The Defender ought to be assoilzied from their two last Articles, as from all the other from the year 1641 to his Majesties home coming to Scotland in Anno 1650. because of the ratification and oblivion contained in his Majesties Treaty at Breda, and most full and ample Act of ratification and oblivion at St Iohnstone and Strivling, Anno 1650. and 1651.

And in regard the deeds libelled are either such as preceded the Treaty and Act of Oblivion in Anno 1641. And were thereby pardoned and buryed in Oblivion, or such as intervened after the yeare 1641. before his Majesties home coming in the yeare 1650. During which time he is in his Lybell charged with severall deeds which are irrelevant, and whereof the Defender is most innocent. And for such publick actings as the Defender is charged with and had accession to, the Defender is also secured and pardoned by his Majesties Treaty & gracious condiscendance at Breda, which was also thereafter ratified in Parliament, or are deeds of necessary compliance both for the publick and self preservation in that unhappy juncture, which complyance as it was sore against his inclination, if it had been in his power to have helped, so is not no more then whole Kingdoms did, and far less then many condescended to; It is in all humility expected, that the Defender should not be brought under the compassof Law for the same, which were as to make him the singular sufferer in so universal a guilt, so there can be no precedent therefore instanced, either out of Scripture, or holy Writ, the Histories of our own, or of other Nations, That a Subject not having contributed to the said usurpation, but to his power resisted the same, when the said unjust usurpation p. 96prevailed, expelled the lawful Magistrate, detained …, usurpation for many years … and tyrannized over the people when the lawful Magistrate could not … for the time, or protect, or help; That the said subject for his complyance, and using endeavours for necessary, publick, and self preservation, should be indicted of so high a crime, is in all … conceived, without precedent or parallel, and … contrary to the current of example and practise, that may be from Scripture and other Histories adduced, and not so sutable to that goodness and natural clemency, whereof his Majesty hath given so abundant proof to others, even the Usurpers and Invaders, and who aided and abated them (without envie be it spoken) and which is not only most agreeable to his Majesties gracious inclination, but very sutable to that advice given by his Royal Father to him, In whose words in one section there are as follows, Your Prerogative is best shewed and exercised, in remitting rather then in exacting the rigour of the Law, then which nothing is worse; In respect whereof, and of the Defences above mentioned, the Defender ought to be assoilzied from this Libel, and whole Articles therein contained.

End of the text · Archibald Argyll, Defenses Against the Grand Indictment of High Treason (1661)