Defenses Against the Grand Indictment of High Treason, Article (1 of 2)

Defenses Against the Grand Indictment of High Treason · Article (1 of 2)

p. 3THE MARQUES OF ARGYLL His Defences to The maine Charge of High Treason

Preface

THe defender prosesses his sense of the mercy and hapinesse of the land, that we are delivered fra the lawles arbitrary power of the armed force of cruell usurpers, and have restored to us our only lawfull soveraign Lord, and in his sacred person, the authority or law, the order of Legall judgment, and in them the liberty of legall defences, thereupon depend, the great security of the liberties lives and estates of the p. 4subject, this gives the defender confidence to appear in Judgement, nothing doubting of a faire procedure and full hearing complete time being allowed in all the dyers of the process, and all things therein so ordered as may be suitable to the justice and gravities of this high and honourable court, and the importance of the cause justice, not only as to the defender but justice as to the preparative & consequence, and he with much confidence expects all justice from his most gracious soveraign the justest of Princes, and who is represented and acting by so truly noble a person as My Lord commissioners grace, also hoping the honourable court of Parliament will without all prejudice Impartizally consider his legall and just defences; and that they will proceed so far without all ground of suspition therein, that any who is within degrees to persons against whom he is libelled to have committed any of the deeds which are made the ground of his dittay, or if any are conscious to themselves of capitall enmity or has been any wayes informers against the defender, o… have predetermined by uttering the judgment already of his cause, … and honour will will make them abstaine sitting and voteing therein, So much the more that they see howunwilling he is to propone any seculatory aga…st any member of the house upon these or others grounds in law, so confident is he of the vindication of his own carriage, So much he deferres to the ingenuity or generosity, and so high is the honour he beares to this honourable court.

First it is alledged That there be no process, nor is the defender holden to answer till the whole lybell and all the parts thereof be given him up to sie also it is the commissioners instructions and addresses sent and made to his Majesty by the defender (as is alledged) and the commissioners at Breda are expressely repeated as a part of the libel brevitatis causa, in the tenth article, and yet the same we has not been produced nor given to the defender to see and advise with, Till which be done he cannot be held p. 5in to answer like as where points of the dittay are founded upon wreat. The defender craves that he may have up the writes whereupon the … …ounded to …ee▪ before the beholds, to answer to the … consonant to law▪ Sect. 2. … emma que actor edituras est apud indicem et I, 3. …, whereby the persever is ordained, to show to the defender all that he will use against the defender before the Judg… Other wise, the defender cannot prepare himself for his defence which is the reason given in these laws, P…ulder … cent. 16. and the Doctors throughout the said law… & l. unius Sect. 9. F. do quest. post al to l. 2 Mun. 3, 4, 5, 6, co dedendo Bart. ad leg. ubi min. 8. F. de quest Bor soe, It is the are severall Article in this ditty founded upon wreat not produced as in the first articles the prosecution of Mr. Iohn Steward to death, as a leasing maker between the King and his Subjects lybeled and yet neither libel nor sentance against Mr. Iohn produced.

Item. Collonell Henrisons commission for keeping Dumbartax Castle is libelled, and the commissione not produced.

Item. In the sixth Article a capitulation alledged made and subscribed be the Laird of Ardkinglos and other officers, under the defenders command with the Laird, of Lawmont and Escog.

Item. The assurance alledged given to the persons within the house, of Lochhead mentioned in the seventh article, the defender craves ante omnis It may be produced.

Item. that ordinance of Parliament or committee of estates thereby it is libelled In the same seventh article that Caillkitoch was ordained to be brought from the prison where he was for the time &c. to the town of Edenb.

Item. In the ninth a…ticle the defenders protestation Parliament anno. 1648.

Item. in the same article the letter written to Cromwell libelled as being dated the 6 of October 1648. …hereby it is lybelled p. 6that the defender and his complices wrote to Cromwell, &c.

Item. In the same article Sir Iohn Cheeslies Instructions libelled as being dated the 17. of October 1648. desiring the persons taken in the ingagement to be detain'd as pledges of that Kingdoms peace.

Item. Eod. Art. the warrand alleadged to be under the defenders hand for a proclamation against the families of Ogilvi and Rari.

Item. Art. 10. The letter alledged written to Cromwell anno 1650 after his invasion.

Item. eodem Art: the act of the west Kirk with the declaration whereunto it relates.

Item. Act. 11. The remission alledged given to Iohn Mc. Dogall of Dimolich. under the defenders hand

All which the defender humbly alledges ought to be given up to see before he be held in to answer especially post tanti temporis intervallum so long a time haveing intervented between the intention of this persute, and the dates of the said Act and papers foresaid lybelled on. Some of them being twenty years ago some fifteen, and the latest ten or eleven years, as has always been the practise in such cases and may be instanced in my Lord Balmerimo his proces, and was found by this honourable court in Mr. James Guthries proces.

Secundo under protestation that the former exceptation may be first discust, that the papers therein mentionate ante omnia be given up to the defender to see, it is alledged that as it has been alwayes the Princely care of his Majestys, royal antesessours, to keep the Laws of this realm certain Ne dum incerto utemur iurefluctuaret respublica, and least law which is introduced for the leidges security should become their snare therefore be King. Iac i. that illustrous Prince Parliament 7. cap. 107. All the interpretation of his Majestys statutes, otherwise then the samen beares is forbidden, and if forbidden can be no ground of dittay, and in effect to found a ditty upon statutes otherwayes then they bear were to found it upon such statutes we have not, bot so it is in the proposition of this libel p. 7The Acts of Parliament where upon the same is founded, are otherwise repeated than they bear for. 1. The first part of the proposition of the Dittay founded upon the two first Acts of Parliament lybelled, viz. the third Act of the 5. Parl. of King Iac. 1. And the first Act of King Iac. 6. doth upon the said acts, conclude the pain of forfeiture and treason. The same is most Irrelevant because in the said Acts, there is no mention made of any crimes of the nature or quality libelled. The said 3. Act of the 5. Parl. Iac. 1. being annent the fees of Craftsmen, and the price of the work. And, the 1 Act of K. Iac. 6. being anent the constitution of the Earl of Murry Regent, and in neither of the said Acts is there any pain or punishment inserted, and so far less can the pain of forfeiture or treason be from the said Acts concluded against the defender; and if it should be said, That the 5. Parl. of K. Iac. 1. is mistaken in the wryting for the first Parl. And in citing the first Act of K. Ia. 6. the citation of the number of the Parl. is also omitted, viz. the number 18. The Dittay repeats these two acts other wayes then they bear, for the words of the said 3. Act of the 1. Parl. being Iac. 1. statutes and ordains, That no man openly or notoriously rebel against the Kings person, under the pain and forfeiting of life, lands and goods, which is not at all in the Lybel repeated. And as to the said 1. Act of the 18. Parl. being Iac. 6. The words thereof are cited, yet with some difference and transposition lybelled, but thereto is added the sanction and pain, That whosoever doth in the contrary, they are to be punished as Traitors, and to forfeit their life, lands and goods, whereas there is no sanction or pain in the said Act, only it is declarative of his Majesties prerogative, and of his three Estates to maintain the same.

Item. In the second part of the proposition of the Dittay founded upon the 25. Act of the 6. Parl. being Iac. 2. and the 75. Act. 9. Parl. Q. M. Is not repeated as it bears as to punishment, for therein they who attempt to do or raise any bands of men, of War, Horse or Foot p. 8without any special… licence of his Majesty, and his Successors, are only declared punishable by death, whereas they are lybelled to be punishable as Traitors, while it is the pain only of the said 25. Act. Parl. 6. Iac. 2.

Item. In the next Parl. of the proposition of the Dittay founded upon the 43. Act. 2 Parl. Iac. 1. and the 134. Act of the 8. Parl. and 10 Act. 10. Parl. and the 205. Act. 14. Parl. of King Iac. 6. None of these Acts are repeated as they bear, but confounded, both as to the crimes and pains therein contained, to a very far different sense (as is humbly conceived) from that which the said acts severally propose. Transferring the pains of the said several acts and crimes therein contained from one to another, as may appear by what follows, for the first of these Acts, being the 43. Act Parl. 2 Iac. 1. Is only of leasing Makers and Tellers of them which may engender strife between the King and his people, and the pain of the Act is tinsel of life and goods to the King, as is clear both by the title and body of the act. The second act, viz. the 134 act. 8. Parl. K. Iac. 6. is also the same crime, viz. against those that utter false, slanderous and untrue speeches, to the disdain, reproach or contempt of his Majesty, his councel or proceedings, or to the dishonour of his Majesties parents and progenitors: adding also those meddle in the affairs of his Majesty, and his Estates, and the pain is the pain contained in the acts of Parliament made against Leasing Makers and the Tellers of them. The 3. is the 10. Act. 10. Parl K. Iac. 6. Is against th…e who speak or write any purpose of reproach or slander against his Majesty, Person, Estates or Government, or depraves his Lawes or acts of Parliament, or misconstrues his Majesties proceedings whereby any mis-believing may be moved behind his Majestie and Nobility, and his loving Subjects. And the pain thereof is only the pain of death. And by the 205. Act 14 Parl. Iac. 6. These that hears the said words leasings, and doth not apprehend and reveal the Authors thereof, shall incur the like punishment with the principal offenders, and yet leasing p. 9making and telling which is the crime punishable be the first of these Acts, viz. 43. act Parl. 2. Iac. 1. Is punishable be the loss of life and goods to the King is omitted, and false slanders which is the crime contained in the 134 act, Parl. 8. Iac. 6. And only speaking to the dishonour of his Majesty, Parents and Progenitors, and medling with the affairs of his Highness Estate is repeated out of the said Act 134. and joyned to the crime contained in the said Acts 10. Parl. 10. Iac. 6. and to both the pains added of loosing life, lands and goods, whereas the pain of the said act. 10. is only of death; and the pain of the said 134. Parl. 8. Iac. 6. Is only the pain contained in the Acts against leasing Makers which in the said 43 act Parl. 2. Iac. 1. Is only the loss of life and goods and not of life, lands and goods, but all annerly the Escheates, of goods moveables, as may appear, First, Because whenever the pain of tinsel, of life and goods is found either in the Acts of Parliament or old Lawes, goods are understood moveable, as is clear from the crimes that are ordained to be so punished, as Manslaughter. Be the 42. stat. Robert 3. Is prohibited under the pain of tinsel of life and goods, where Skein explains, that these goods are to be understood of Moveables. And be the Act 90. Parl. 6. Iac. 1. The receipt of him who is fugitive for slaughter, is forbidden under the pain of tinsell of life and goods (Where Skein expounds goods to be goods moveable, in his Tractar of Crimes tit. 2. cap. 6. Parl. 4.) And so it is clear in the other acts of Parliament that their whole pains are distinct, viz. Tinsel of life and goods alike, is only extended to moveables; and tinsel of life, lands and goods, which latter pain in the stile of our acts of Parliament is commonly thus expressed: That he who incurs it, shall die and forfeit life, lands and goods, as the 31. Act, Parl. 7. Iac. 2, & passim alibi forfeiture properly relating to lands; and in the common signification of our said goods to be understood of goods moveable.

Secundo. More specially it may appear, that the pain of the said 43. act. Parl. 2. Iac. 1. given to the said 134. act p. 10Parl. 8. Iac. 6. relates in the pain thereof, is only the pain of escheat of Moveables, because the pain of forfeiting of life, lands and goods, is the proper pain of the c…imes that by our Laws are declared Treason. And therefore Sk… both in his Index of the acts of Parliament on the word Treason, refers the crimes that are so punishable to the head of Treason, as also in his Tract upon crimes in the end of Reg. Maj. But doth not at all mention therein the crime of the said 43 act. Parl. 2. Iac. 1. nor of the 134. act. Parl. 8. Iac. 6. nor of the other acts whereupon this part of the proposition is founded. But in his Index hes the crime of leasing making between the King and his people under a head by it self, and therein expresly mentions both the said 43. act. Iac. 1. and 134 act. Iac. 6. like as in the said Tract… of …rimes after the Chapters of Treason and points thereof cap. 1. and pain of the same, which cap. 2. he expresly sayes, is the tinsel of life, lands and goods, and declares, that he understands by goods, moveable goods, and anent the process and Judge of the crime of Treason, cap. 3. when he comes to other … capital, of all which the pains are either the …inse… of life and moveable goods, or life only, or of some less pain in body or goods, but never of life, lands and goods, as is clear thorow the whole tract at that fol…ows. And in his 12 cap. anent the crime of falsit, … the crime of leasing making between the King and his people. And the same acts of Parliament, viz. act 43. Parl. 2. Iac. 1. And the 205 act. Parl. 14. Iac. 6. and in his 25. cap. hes the crime of infamous and seditious Lybels. And the said 10 act. 10. Parl. K. Iac. 6. cited therefore.

Item. In the last two acts of Parliament whereupon the proposition of the Dittay is founded, viz. the 37. act. …2 Parl. Iac. 1, and 144 act. Parl. 12. Iac. 6. It is lybelled. That all Recepters, Suppliees, or Intercomoners, with any Trators, are punishable by forfeitu…e, as the Traitors themselves, which is not as the act bears, for both the crime and pain lybelled out of the said 144 act. 12 Parl. Iac. 6. The act is not simply against those who intercomon with traitors p. 11and rebels, but with such as are declared rebels and traitors from all which it follows, that the proposition of the lybel is founded upon the acts as they are lybe…led, is not relevant. And therefore the Defender ought to be assoliezed in hoc libello.

Tertio. As to the last part of the proposition of the Dittay, the Defender abhors so much the crime therein mentioned, that he thinks any person who will conceal any malicious purpose wronging in the least, far more in putting violent hand in the inviolable sacred person of his Soveraign Lord, were unworthy to breath in common air, let alone to be defended. And is so conscious to himself of his own innocence in any … things, that he needs no other defence, but the confident denial of any guiltiness, therein either less or more, but before a practique pass in this honourable Cou… of Parliament of founding a dittay of Treason upon common Law and Practise. It is under protest… … on foresaid, and with all humility alledged against the relevancy of that part of the proposition as founded upon the said common Law and practise, That it is not relevantly founded thereon in so far as by the 28 act. Parl. 1640. it is expresly found and declared Traitors, but after tryal by the Parliament or Judges ordinary; And finding that the said persons have contravened … and act of Parliament, made under the pain of treason, and therefore a person cannot be declared guilty of treason on a dittay founded on common Law and practise… 2. Poena being …egis sarctio. And the common Law is known with us to have only vim rationis, … l…gis, and therefore no pain, but especially the highest of pains can be sounded thereupon; and 3. Specially as the practise beside the reason aforesaid; because L. 1. …. 4. fad. Senat. Consult. Turpilianum facti quidem … in … judicantis, panae ver… persecutio non … volun…ati mandatur, … legis authorit … asservatur; whence Menochus lib, … Presumpt. cap. 29. in principio saith expresly, paena indici non potest nisi expresso jure sit cantum per l. at si quis divus fad. Reli & sumptibus funerium. p. 12And it is the common opinion of the Doctors, That ever when punishment is not expresly defind in the Law, but is permitted arbitrio judicis. It cannot be extended to death, far less to the pain of Treason. And the soresaid act of Parliament 28. act anno 1640. takes away the relevancy of founding treason upon common Law and practise, as said is.

4. If a dittay to infer the crime of treason might be founded on practise, either of the justice Court or Parliament, which are two courts, before which crimes of treason are judged; yet our practise is consuetudo rerum it a judicatarum, as Craig defines it, lib. 1. de feudis dig. 8. and therefore to it as to the introducing of all other consuetudtes, there must be Actuum frequentia, reiterated acts, and practices per l. de quibus ff, de legibus & Cart, Iason, and other Doctors: on that Law, et p…er l. 1. Cod. qua sit lo…ga consuetudo & L. & in totum 3. c.de cres. dif. privat. 2. illud explorandum. An contradicto aliquo judicio sit firmata. That is, it would be tryed if decreits in foro contradictorio hath been given thereupon. As also saith Craig, dicta disg. 8. in fine; and if in any case, that ought to be far more in crimes; and if in crimes, yet more in the highest of crimes. And in all concernments of one of the most eminent Peers of the land, which is clear: for in matters civil (how small soever) before the session a practise will never be founded on some decreits given either for not compeirance, or on compeirance where there is little or no dispute, or it may be great inequality in Advocats of the two parties. And if in civils where the interest is only pecuniary, this ought to be much more in lybels of Treason, as hath been said; but so it is, neither in Justice, Court not Parliament will it be found, that it hath been frequently judged, and in foro contradictorio on and dispute where this defence hath been propounded. Yea, it may be well alledged, that there can be no practise shewed of either, of these Courts that any hath been found guilty of treason but on some act of Parliament under the pain of Treason, as is said; But however the said 28 act. Parl. 1640, is most clear, which is most agreeable p. 13to reason, and the Law of England very laudable in that point; as Cook hath it in his Chapter of Treason, and therefore the lybel as founded on practise is no wayes relevant, and the defender ought to be assoilzed therefrom.

Quarto. Every Lybel both of civil Law, and our Law ought to be clear, distinct and special, but especially criminal lybels, because of the great importance of them, ought to be most clear, distinct and special, jure libellus in criminalibus debet esse clarissimus, saith Dam. haud prax. crim. 3. num. 3. And therefore Libellus Criminalis obscurus parte etiam non excipiente extenditur favore rei Baldus in lege addita, num. 10. c. de edendo, Alex. Consil. 72. col. versit. & licet volum. 1. hip. Consil. 49. & Battander prax. Cran. Reg. 6. s. 3. & 4. nec enim debet accusator cum existimationis alienae jactura, & discrimine vagari. licet L. …i in rem. ff. de rei unum; so that any obscure criminal lybel is inept, and the defender ought to be assoilzed, therefrae, though he did not oppone his defence for that effect, but so it is, this dittay is most unclear and undistinct, in so far as in the proposition of the dittay there are many acts of Parliament libel led on, being statutes annent diverse crimes of very different natures, and inferring different punishments, according to the article of the crimes, and in the subsumption, the panel is indyted for several crimes alledged committed by him, contrary to the said Lawes and acts of Parliament in general, without condescending on the particular acts of Parliament, that the pannel has contravened by committing the particular deeds lybelled, and so leaving him to great uncertainty: whereas in all Law, reason, and form of process, the defender ought to be certified what acts and Laws he has contravened by committing such deeds that is in a multiplicity of crimes, after proposing all the statutes relating to the same crimes, all the deeds immediatly ought to be subsumed, falling under the compass of such statutes, and thereafter the acts relating to another indifferent crime ought to be proposed, and the deeds falling under the compass of these acts immediatly subsumzed p. 14and throughout the libell which is no way done here, but first by many different acts accumulat together in the proposition, and then the most different facts accummulate together indistinctly in the subsupmtion Not condesending on the Acts by them contravened and therefrae the libel is in apt and the defender ought to be assoyled their from.

This defence is further confirmed in law. 2. Because a libell being … quidem practicus; jason and the …, de act in criminal dittays the proposition consist i…j…re constitutionis in the Laws whereupon the libel is founded The manner is in the subsumption of the facts or …rims under these laws and the conclusion inferring the paine Because of such a crime as falling under the law libelled, on a very essentiall part of every libel, is quo jure petatur & a libel being incertain in this is unclear and uncertain in a very essentiall point and in apt. 3. In law, a libell ought so to be conceived as the defender may know aictoms spiciem otherwise it is in apt l. f. de edendo l. 3. c. eodem. And may also know actionis jus, and that he may deliberat how to defend but in our cases that arises from the distinct application of the lawes to the facts, ex quibus jus oitur 4. If such uncertain libel were admitted the defender because of the obscurity and uncertainty of the libell should be prejudged of an certain defence he could make against the relevancy of the same because the relevancy of it consists in the subsumption of the facts and crimes libelled under some certain law, which being condescended on be a distinct subsumption under each law of the crimes that were libelled properly to fall under the same. The defender would alledge why such crimes cannot be subsumed revelantly under such laws and acts which the otherwise cannot do in such multiplicity both of different acts and crimes as are libeled in this duty. There being not only in diverse articles but even in on article a great diversity of the crimes therin libelled and yet the defender left in uncertainty under which of all the acts libelled on, The persewer intents the subsumption thereof and so in uncertainty altogether how to conceive this desense and if this be not p. 15maxime vagari cum maximo alienae vitae et fortunarum periculo It is hoped as it will be found very evident so it was never the practise, heretofore used in criminall libels, and which that it should not be now sustained is of universal concernment, and if sustain'd might prove of very dangerous consequence, and the libell as it is now conceived is in apt and the defender ought to be assoyled therfrom.

BEfore the defender come to his particular answer to the several articles of the ditay to the effect, the defender his case in his accession to the publike actings of this kingdome during the unhappy …roubles till the treaty at Breda and his Majestys home coming may be truly stated, It is humbly craved that the commissioners grace and honourable estates of Parliament may be pleased to remember that the Kirk and whole body of this Kingdome entred at first in the nationall covenant for defence of religion and his Majestys person and authority, and mutual defence one of another in maintaining the same, wherein and in what followed in prosecu…ion thereof til the treaty with his late majesty, and act of oblivion set dwon at length and …ati…ed in the 6 act of the 2 Paliament anno 1641. His late Majesty did so far acknowledge and approve their loyalty that in the seventh article of the said large treaty his Majesty was pleased to appoint that at the close of that traty their said loyalty should he made known at the time of publick thansgiving in all places, particularly in the Parish churches of his Majestyes dominions. And in the said act of pacification and oblivion is pleased to declare that their constant loyalty in their intentions and proceedings should not be hereafter called in question, and that whatsoever fell forth in those tumultuous times, whether prejudicall to his Majestyes honour and authority to the Laws and liberty of the Church, or the particular interest of the subject, might be buried in perpetuall oblivion; and whatever had ensewed thereon, no mention should be made thereof in judgement or outwith, like as his Majesty for himselfe and his successor's promises in p. 16verbo principis never to come in contrary of the said statute nor anything therein conteined but to hold the same firme and stable and to cause it be truly observed and these presents to have the full force and strength of a perfect and true security, like as thereafter in anno. 1643. The league and covenant was entred in with the two houses of Parliament upon the ground of the large treaty by the church and whole body of this Kingdome, proporting the same ends of the covenant for maintenance of religion King & Kingdome; which was thereafter approved by the Partia. 1644. And fift act thereof, and prosecute by wars both within and without the Kingdome by the authority of divers succeding Parliament's, Church and state going unanimously along together without any apparent publicke difference till the year 1648. And even then that Parliam…nt, 1648. so highly homologate the said league and covenant, that they declare the breaches thereof to be the grounds of their resolutions of that Warre, act. 4. 7. and 8. And their desires for preventing thereof to be the fulfilling of the same Ibidem. The necessary qualification required in all with whom they would joyne either in their armies or committies is that they be such who were of known faithfullnesse to the cause and covenant in the said act 7. and that they would oppose and endeavour to suppresse the enemies to the cause and covenant on hands all Ibidem. Witnessing to the world that they …werved not from the principles conteined in the nationall covenant, and league and covenant, and that they resolved closly and constantly to adhere there unto and to all the ends thereof. So that at that time there was still no difference as to the cause and covenant, any difference being only in the manner and not in the matter of that engagement.

Thereafter what straits this poor Kingdome was redacted to be the defeat of that engagement, and how unable it was to make resistance to that English army who in prosecution of their victory came to the borders & entred the same is noture to all, wherewith the whole Kingdome being surprized p. 17with amazement, and in evident hazard it was hard in that juncture of affairs to resolve upon any course for preventing the same, or rather incumbate hazard of the Kingdome. Whereupon a quorum of the committed of estates appoynted by the said Parliament 1648 were necessitated to take upon them the managing of affairs, and to see for conditions of peace, not being able to resist by force (the flowre and strength of the Nation being broke by the said defeat) and to accept the same upon the easiest termes that could be had for the time, which as it was endeavoured upon no other intention, or for any other end, but that which they were constrained to by inevitable necessity. So at that time it was generally lookt upon as good service, and which at that time was most necessary to evite very great, and otherwise inevitable evils being either necessitat'd to condensen… to their demands at that time, or otherwise to have delivered the persons of all that did prosecute the said engagements according to the obleasment of the large treaty together with the forts and strength, of the Kingdome. The succeeding P…rliament for the time in the year 1649. after Proclamation of his present Majesty did send commissioners to Holland, and afterwwds according to his Majestys desire to Breda where there was a treaty concluded by his sacred Majesty. Wherein he was graciously pleased to approve of the said Parliament in anno. 1644. and remanner Parliaments and their proceedings from the year 1641 preceding the said treaty which was thereafter ratified by his sacred M…jesty and his Parliament at Pearth and Starlin and after the royall example of his ever glorious father an act of oblivion was indulged whereby all that might be ground of question was buried in oblivione and pardoned by a general act of oblivion in a most full and ample form.

This being the state of publick affairs during the time foresaid, albeit by the first ten articles of the dittay. The deffender is charged with deeds and publick actings coming within the compass of the said approbation and oblivion p. 20foresaid, yet such firme relyance hath he of his Majesty presisting in his gracious clemency) which does in his royall heart so much abound) That albeit his Majesty by his Proclamation, Dadet the 12. Of October 1660. Is pleased graciously to declare that he has remitted to his Parliament the tryall of the carriage of his subjects in Scotland during the late troubles; That the late troubles has only respect to the tyme during the usurpers possession and that tryall should be taken during that time of the subjects carriage. The defender in all humility conceiving that it is no wayes to be supposed that his gracious Majesty did therebey intend to rip up or revive, or to institute any new tryall of old offences forgotten and forgiven as said is especially, seeing it is not to be supposed that the bowells of his mercyes should be so straitned to this his ancient Kingdome, to which he has upon all occasions given so many signall and recent testimonies of his superabundant favour then they are, and have been to his Subjects of his other dominions, to whom according to his Majesties declarations, he hath granted a full and free pardon, from which few, and these only the unpardonable murderers of his royal father are excluded; for whom, or any guilty thereof, no punishment can be sufficient, and therefore the defender in all humility conceives the said articles, though libelled, are not to be insisted on.

The solemnity of the oaths both of Covenant and League, will be as the defender hopes, pregnant presumptions to put and end all controversie, anent the sincerity of his (as of the Church and Kingdome) their loyal intentions for the maintenance of the person and authority of our dread Soveraign whereunto they were thereby so religiously ingaged, and the constant tenor of his acting still by vertue of publick Orders and Warrants of Parliament, and their commit…ees wherein his faithfulness in the execution was also in the like manner approved (will witness, that what he did was not for any private interest, but for the publich ends; where unto he conceived himself ingaged in manner foresaid, nor was the Defender for continuing of p. 19these unnatural civill discords as he did witnesse by his inclination to unaccommodation with Montross in the year 1645. mentioned after in answer to the tenth article, which albeit fully agreed to betwixt him and the defender, yet he could not obtain the commitees approbation thereof, which is in evidence, that the defender had not the chief sway of affaires and was alwayes inclinable to peace (religion being secured) like as the carrying on the ingagement in the year 1648. though the defender differed in his judgement as to the way and manner upon the grounds and reasons, thereafter exprest in answer to the ninth Articles) does clearly evince that he had not the chief sway in publict actings, and what power and interest he had in the year 1649. he did faithfully according to his bond duty improve the same for removing these differences betwixt his Majesty and his subjects, wherein he was pationately earnest as shall be made appear in answer to the said tenth article and after his Majesties hom-coming and during his being in this Kingdom, and thereafter till the enemy had fully prevailed and that by his articles of agreement he was there prisoner he faithfully served his majesty, and even during his Majestyes absence, did alwayes and still shall return loyall duty and good affection to his person, government and posterity.

And what ever these who are grown up may judge, who only see the unhappy and accidentall events that are the effects of the corruption of men, but have not known the counsells and causes which are the two parts of these things necessary to be known to all who would judge of human actions arright events being for the most part uncertain and the worst of events of tyms thorow the corruption of agents or others extrinsecal circumstances following upon the best of actions, yet had they been intimately acquainted with the grounds and causes & nature of the actings while a doing, the defender is confident that they would have concurred and been of the same judgment as being clear, that these proceedings had no native connexition with the sad and unexpected consequences that has ensewed

p. 20And now to come to the particular defences to the several points of the subsumption of the Dittay; And first as to the first article of the subsumption, annent the words alledged spoken at the Ford of Lyon which are lybelled to have been: That it was the opinion and judgement of many Lawyers and Divines, that a King might be deposit for desertion, vendition or invasion, and which is alledged to have been meaned by the pannel of the then Kings Majesty, and the presumptions adducit for inforcing that to have been the defenders meaning, are some words allegit subjoyned, to wit, Mr. Iohn you understand Latin. It is alledgit for the defender (no wayes acknowledging to the best of his memory, that he uttered any such words) 1. all criminal dittayes should contain in them at least year, monethmonth and place, otherwise they are inept, Bartol & D. D. ad L. libellorum ff. de Accusatione, because amongst other reasons, diversitas loci varia argueret facinora, saith Battand: Reg. 6. prax. cum post angel, &c. But so it is, there is no monethmonth condescended on when the defender should have spoken these words, and therefore the dittay in this article is inept. 2. There is no particular act of Parliament in the act libellit upon in the proposition condescendit, on which is contravened by the words libellit, therefore the libel in this article of the subsumption, is general and obscure; and till the particular Law contraven…d be condescendit, one can receive no answer. 3. The speaches as they are libellit, falls not under the compass of the acts libellit on in the proposition of the lybel, to infer any of the pains therein contained, because they are but libellit, as the narration of the opinion of others, which is not relevant to infer so much, that the Narrator is of the same opinion, except it were also libellit that he did declare his homologation, and that he was of the same judgement, which neither is, nor can be libellit far les, then is it relevant to infer a crime, and so high a crime as Treason; for suppone the defender had said, That they are very learned both Divines and Lawyers, whose opinion it is, that the Pope is the head of the Church, and that p. 21he has power to dispense with the article of faith, to depose Kings (a horrid opinion)&c. and that it is their opinion also we may merit heaven by good works, and that all Hugonites or Protestants are damnable here…ticks, and that he had related their words in latin, as the latin of of that verse of the gloss of the common Law, cap. sicut de excess. praelat.

Restituit papa salus deponit, &c. articulus solvit.

And had said to Mr. John Stewart thereupon, Mr. John you understand Latin, albeit these opinions of these Divines and Lawyers be exec…ably Heretick, yet no body will say, that the defenders relation of him, would have inferred him to have been guilty of the same; No more in our case can the relation libellit infer him to have been of that opinion with these Divines and Lawyers, or in any way thereby to have contravened any act of Parliament libelled. 2. The foresaid opinion is libellit only to have been related in abstracto, (nothing of our Kings Majesty who then was) And whereas it is libellit, that it appears the sence and meaning thereof appeared to have been of the then Kings Majesty, in so far, as the defender subjoyned to Mr. Iohn Stewart, the words aforesaid, that he understood latin. 1. The libel in this part is ambiguous for this may be interpret, either that it was the meaning of the opinion of these Divines which he related, (this seems to be most consonant to the words) or els that his own meaning was, That it was the judgement that the then Kings Majesty our Soveraign might be so dealt with, as is libelled in the latter part of his article, and so the Article in this part thereof is ambiguous and inept, and there ought to be no process thereupon. Nam Libèllus (in criminalibus praesertim) nihil ambiguitatis vel obscuritatis continere debet per cap. Constitut. 6. extr. derig. don. Bot. 3. If it be understood in the former sence, it is but still relative of the opinion others; and if in this latter sence, to wit, p. 22that it was his own judgement, the presumption libelled of what he spake to Mr. Iohn Stewart, is no way relevant to infer it. 1. Because they held a more obvious meaning, viz. That it might have been the opinion of these Divines and Lawyers was related in latin, and indeed Grotius and Berclaius, who write of that Subject, are both in latin, and that he had subjoyned to Mr. Iohn Stewart, Mr. Iohn ye understand latin. 2. That such opinions being rather the fancy of notional Schoolmen, (otherwise not unlearned in their own art) or of such as are Doctors notionals in the Law, (if there be any of such opinions) rather then of solid juriscon…ult, who for most do not so much as move these questions not to be moved. 3. If any such words had been spoken to Mr. Iohn Stewart, They might have had this more proverbial sense. Some Lawyers and Divines are of that opinion, but the subtilty of these questions or opinions is latin to me, that is, I understand it not, as we say commonly of things we understand not, It is latin to me. But Mr. Iohn ye are a Schollar, and ye understand it. Now it is a rule in Law, that where the meaning is doubtfull or obscure, that which is the most favourable sence should be followed. L. 9. ff. de reg. juris and Matheus de afflictis decisione 265. n. 68. 69. & decis. 307. n. 15. and when these words are ambiguous, The declaration of him who uttered them should be acquiessed unto; M…norchius consilio 197. And the defender is ready to declare, that if ever he had spoken such words, he was very far from any such meaning, as is libelled against him. Nor 4. is it any way presumable that any rational man, who had the honour to know his late Majesty, could have made application of any of these three causes to so worthy and illustrious a Prince, seeing the said Grotius, Berclay, and others that writs upon that subject, acknowledges yea it is obvious to common sense, that hardly can they fall out in the worst of Princes, if he be but compos mentis: and as to the presumption that follows, that the defender meaned by the late Kings Majesty, because the condition wherein the kingdom was for the time. 1. It is far more presumable p. 23that the kingdom was in such a condition of affection to his Majesties sacred person, and authority at that time none d…rst have uttered what might reflect thereupon, seeing it is libellit to have been shortly after the subscribing of the Covenant, wherein they had solemly bound themselves by the oath of God to maintain his Majesties person and authority. 2. His Majesty by his royal judgement in the act of oblivion 1641. hes presumed the loyalty of his Subjects, both in their intentions and proceedings in these times, which is presumptio juris, & de pre. As for the defender, his prosecuting of Mr. John Stewart. 1. It was a judicial process and legal Act and so can be no imputation to him wherein the process was laid in so fair a course of Law, That he was condemned not only upon clar probation, but his own confession, and yet the words whereupon he was indyted and convict, were far different from these words, as they are here libelled, otherwise the defender would never have pursued it.

Ultimo adhering alwayes to the alledgance above propounded humbly protesting, that they may be first discust, and whereupon it is craved, he may be assoyled in … libello, because by act of Parliament in anno 1641. amongst the imprinted act, anno 70. The same service is appoved and he exonered. It is alledged, that the defender ought to be assoyled from the whole crimes in the first article because after the tyme libelled of the alledged committing of the same his late Majesty of glorious memory granted that never to be forgotten act of indemnity and oblivion in anno 1641. Which did proceed upon the preceeding treaty with his Majesty, and which is solemnly confirmed by his Majesty himselfe in person and his three estates in his Parliament 1641. 6. act thereof wherein his Majesty for himself and his successours does promise in verbo principis never to come in the contrary of that statute and sanction or any thing therein contained 2. But to hold the same in all points firme and stable, yea, and to cause it to be truly observed be all his Majesties leiges for ever hereupon the defender doth confidently rely for all than is libelled as committed p. 24by him in this article; or any other preceeding that time, as being confident it is the greatest imaginable security that he and the rest of the leiges of the land who are conceived can have.

As to the second article and haill head thereof

1. neither day, monethmonth, nor year of God are condiscended on, and therefore so generall that is inept. Nam generalitas parit obscuritatem, Marent part 6. spec. & de libel. oblat. quomo…o Concip. & per, textus ibi citatos.

2. It is not condescended which of the acts of Parliament libelled this article and the several heads thereof contraveins, which is a general ineptitude and nullity in this libel.

3. As to the first point; if that article annent the intaking of the house of Airlie, cuting and destroying the planting, and demolishing the houses. 1. It is not relevantly libelled in so far as it was libelled that the house was kept for his Majesties service, but doth not condescend that service, now. 2. Is it libelled that there was any in it that had a commission from his Majesty, without which it hes not any colour of relevance. 4. The defender never had any privat quarrel, nor parsonal prejudice against the noble Lord James Earl of Airlie. But if his marching to that house be meaned of that which was in anno 1640. it was by vertue of, and in obedience to a commission put upon him by the Committe of Estates for the time, nor was the said house at his arrival thereat kept for his Majesties service, as is (though wrongfully) libelled. But before that time was surrendred to the Earl of Montros who had put Colonel Sibbald to keep the same for the King and Countries use, and which Colonel Sibbald upon sight of the defender his commission, did abandon the said house: and if there was any planting cut, it was … some few shrubs and bushes which the defender could not hinder) for hurting to the soldiery, and tho the defenders commission bare power and warrant to demolish the house he was so far from stretching, or fully, executing the same, that he did not only slight the house, and delayed a long time to do the same, in expectation that the Lord Ogilby should p. 25have procured a countermand from the committee, and did slight it till he was past all hope of obtaining the same; not, as is hoped will be acknowledged by the said Noble Earl, neither did, so far as the defender knew or could hinder, the Earle, his friends and followers sustaine any other prejudice then what was usuall, and what all places are ordinanarily obnoxions to where armies or parties of souldiers come but however it is not relevant, as said is.

Tertio, That part of the said article, though it were true (as it is not) is no ways relevant to infer the conclusion of the dittay, here being no law nor statute libellit on, that for cutting …f timber or demolishing the houses of private persons though done upon private quarrels, as this was not) inferres …he pain of treason.

As to that part of the article annent the burning of the house of Forther beside the exceptions against both the points thereof alledgit before in the beginning, it is not relevant to say that the defender seised there upon to infer any crime except it were libelled he seised by force, for he might have entred in vacuam possessionem. 2 Non relevant to libell that those under him did seise thereupon or raise fire therein, except it were libelled that the defender had given expresse order or wanrrand to raise that wilfull fire: who as he gave not order therefore, so he was not present not near the place, not knew any thing thereof till after the house was burnt & noxia caput sequitur. 3. In the acts of Parliament libelliton annent burning and wilfull fire-raising, the same can only be understood of burning and raising of fire on private feuds, and for particular revenge in time of peace, and is not to be extendit to such deeds done in the heat and fury of wars, seeing inter arma silent leges.

And as to the aggravation of the defenders hatred against the Earl meerly for his loyalty to his Majesty, it is gratis dictum & against that presumption qu… unusqius que praesumitur bonus and against that loyalty to his Majesty, that is hoped shall more and more appear in the defender.

p. 20Lastly the defender ought to be assoyled from the said article and all deeds therein mentionat. Because the same precedit the act of oblivion in anno. 1641. whereby all things that did fall forth in these tumultous times whether prejudiciall to his Majestys (honour and safety) or to the lawes and practises of the Church and Kingdome or to the paticular interests of the subject buried in perpetuall oblivion as more fully is conteined in the said act.

3. As to the third article annent the beseiging of dumbration Castle and trasporting Cannon and ammunition out thereof.

It is alledged for the defender (10) that the assaulting of the said Castle is not relevant to inferre the conclusion of the dittay because as is before alledged none can be declared triators but these who hes contraven'd a special act made under the pain of treason. But so it is that none of the particular acts of Parliament whereupon the proposition is founded, mentions any thing against these who assaults the Kings Castle nor does any of them infer the pain of treason therefore. But only the 25 act of Parliament 6. Iac. 6. intituled sundry poynts of treason by the which acts they only are to be punished as traytors who assaults the castle or places where the Kings person is and that without warant of Estates, but it is neither libelled, nor was the Kings person in the said Castle the time of the alledged assaults thereof, nor did the defender assault and lay siege to the same without warrand from the estates, but by their expresse order & commission and the truth is the defender himselfe did not appear before the said house till the said Sir John Henrison being straitned with the seige sent for the defender & offered to surrender the house upon honorable conditions which the defender suffered him to make himself and which were accordingly kept not without some difficulty the inhabitans of the town by reason of prejudice done to them being highly insenced against the said Collonel.

p. 17As to that part of the said article annent the transporting of the Kings Cannon and ammunition none relevat to infer the conclusion none of the acts libelled, on concluding against any such fact the said crime of treason and the truth is the defender did never transport any Cannon or ammunition out off the said Castle but two Cannons which the duke, of Richmont heritable keeper thereof gifted to the defender and which he would never have gifted if they had not been his own, and not the Kings 2. The defender ought to be assoyled from the said article & all deeds therin contained the same having also proceeded the saidact of oblivion in anno. 1641.

4. And as to the fourth article of the dittay anent the defenders calling or causing to be called a convention of the estates in anno 1643 entring in league with his Majesties enemies imposing excise and subsidies on the Kingdomes raising an army entring England therewith fighting for and with the rebells there, It is answered that the whole points of this article of the ditty are charged personally on the defender so contrary to the notority of the matter of the fact known to both Kingdomes and to his Majestyes commissioners grace and to the whol… Parliament yea to the fifth act of Parliament, 1644, relating and approving all the acts that are made points of this article, That there needs no more but propond as known to all, and to repeit out of the said publick law and act of Parliament what is there in libelled to evince that they are not the defenders personal deeds: but the comittees (comissioners establisht by his Masty) convention of estates and of the whole Church and Kingdom of Scotland and approven by that Parliament 1644. in the said 5. act. thereof first then as it is noture so it is clear by that act that the said convention of Estates was called not by the defender as it is libellit, but by his Majesty privy Counsel Commissioners for conserving the articles of the Treaty therein mentioned, and Commissioners of common burdens all establisht by his Majesties authority in anno 1641. which Conservators concerning that article p. 28… the … Treaty, bearing the Kingdom of Scotland their desire for unity in religion, and conformi…y in Church-Government, as a special mea…s for conserving of peace betwixt the two Kingdomes. In answer thereto, His Majesty with advice of both houses of Parliament in England doth declare his approbation of their affection in their desire of having conformity of Church-Government between the Nations, and as the Parliament had already taken to consideration the reformation of Church Government, so they would proceed therein in due time, and this was one of the main grounds whereupon both houses entred the said League. 2. That the enacting and entring the League and Covenant, was an act of that convention of Estates, not the defenders personal act. 3. That the League and Covenant was entred in with the two houses of the long Parliament, and assistance given to them in fighting with or for their army, or otherwise, which is libelled fighting with rebels. The point of fact being thus cleared in opposition to the ditt…y. 2. It is alledged, that the first two members of this article is subsumed under none of the acts of Parliament libelled on in the proposition, there being no act of Parliament libelled against meetings, bands or leagues in general, or in special betwixt the two Nations or Estates thereof. 3. As to the remanent members of the article, they can no wayes be relevant (with all submission) except it were qualified, that the two houses of the long Parliament to whom the assistance libelled was given, that they were enemies and rebels, but that the defender is confident it will not be said, because by his Majesties act of Oblivion 2… April 1660, his Majesty after his happy restitution, declares that what was acted even against his Majesty, and his royal. Father, by his Subjects in England during these times, thereafter shall not be called in question at all, so much as to the prejudice of their reputation, in manner at length conteined in that gracious act, and how loyal the long Parliament was, did appear in that the usurper durst never attempt any thing against his late Majesties person, till they were broken, as p. 29also what loyalty the secluded Members of that Parliament has (as became them) shewed to his Majesty in his just and glorious restitution, is known to all Europe to their eternal commendation and renown. No doubt as from conscience of their oath of duty and allegiance, so of the oath of God whereunto they bound themselves to maintain his Majesties person, authority and greatness, as well as religion in that Covenant. 4. All the foresaid deeds which are the members of this article. viz. The calling the foresaid convention of Estates as being the act of the foresaid Council and Commissioners, the entring in the League and Covenant; raising of the army for assisting the two houses of Parliament of England, imposing excise, &c. as all being acts of the said Convention of Estates, together with the same Convention of Estates are all approven by the said 5 act Parl. 16…4. In respect whereof the Defender ought to be assoyled from this whole article, and all the crimes contained therein. 5. Not only is the said calling of the said convention of Estates, and the said convention entring in the League and Covenant, imposing of excise, raising of forces for the Parliament of England, and remanent acts of the said Convention approven by the said 5. act of Parl. 1644. But by his Majesties Treaty at Breda, and the act of Oblivion in the Parl. holden at St. Jonston and Sterlin in anno 1650 and 1651, or either of them, all things done during these tumultuous times intervening betwixt the said act of oblivion 1641. and his Majesties home-coming 1650. Whether prejudicial to his Majesties honour and authority, or to the Laws and liberties of the Church and Kingdom, or to the particular interest of the subject are buried in perpetual oblivion. And by the said Treaty, and act of ratification of the said Parliament, or, one or other of them the said Parliament 1644. and all acts thereof are ratified, and so amongst the rest, this which is the 5. act, which approves all the acts, thereupon this fourth article of the Dittay is founded, and therefore the Defender ought to be assoyled therefra.

p. 24As to the fifth article anent the burning of the house of Menstrie in anno 1645. The defender is so innocent thereof, that if it were libellit relevantly, he needed no other defence bu… a simple denyal, but the truth is, that it hath been burnt by some of the soldiers, commanded by General Major Bailie, for the time upon the greatest provocations that could be, two peroches, viz. Muckart and Doller, having been burnt the night before, and severals, both men, women and children cruelly killed by the concurse of these that were in that house, but it is no way relevantly libellit, in so far, as it is libelled, That the Defender or others under his command burnt it. 1. Because there is no act of Parliament of all the acts libellit upon in the proposition whereupon this can be subsumed especially the acts anent the raising of fire, upon which (if upon any) it seems it is particularly founded, there is no such odd extension of that so high a crime, as to make any guilty of it, by committing of it by others, who are under their command, and this were a very universal, terrible concernment, and in the present case were most dangerous and unjust that a Commander should be holden to answer for all the illegall deeds done by his soldiers. 2. It is against common reason, the common Law, by which this therefore is well established, that delicta proprios tenent authores, & noxa caput sequitur, and therefore it is not relevant that the defender burnt it by himself or others by his special direction or particular order for that effect.

2. Though it were made relevant in manner foresaid, yet the dittay is inept as to this Article, and the defender ought yet to be assoyled therefra, because the year of God is only libelled, to wit, the year 1645. whereas not only the monethmonth, as in all criminal libels per L. libollorum ff. de accusationibus, and the Doctors treating thereupon. But the very day ought to be condescendit on for the omission of the day prejudges the defender of his defence, Specially of his alibi, which he might and would propone, if the day were condeseneded on; that being required, the day ought to be condescended on, otherwise the libel is inept, Nam p. 21Libellus debet continere non tantum annum & mensem, sed & diem si reus'id requisserit cum probaturus suum alibi Dam. hand. cap. 3. num. 4. 5. & battander reg. 6. num. 4. Maranta in spec. del. bel. Obl. 3. num. 12. per bark. in L. Si quis reus Colum 3. in sin. de publ. judic. & jason, in L. Ubitraria 2. Sect. Si quis …xhisi ff. de eo quod Crito loco. But so it is as that if the day were condescended on of the said burning, the Defender might, and if need were, would offer to prove that he was that day during all the time of the burning alibi at a codsiderable distance fra the same place.

3. Absolvitor Because Leivtenant General Bailzie at that time when the house was burnt, had the Command of the said forces (adhering alwayes to the former defences against the aptitude and relevancy of this part of the dittay, & expressing the same that may be discust ante omnia) In respect whereof the defender ought to be assoilzed ab hoc libello at least there can be no process upon that part of the dittay, as it is now libelled. 4. Albeit the defender had burnt, or given direction only to burn the said house, as he has not yet by special act and commission of Leiutennendry granted to him by the Parliament 1644. He was impowered to persew the Mc. Donalds, and their adherents, and accessories with all kind of hostility, by fire and sword, with a dispen…ation with slaughter, Mutilations, raisings of fire, assailing of houses, taking of prisoners, and other inconvenments whatsoever, that should fall out in the execution of that Commission in persuing of them, as the said act and commission may at length bear, and which commission is ratified by his Majesty in the Treaty at Breda, in his ratification of that Session of Parliament 1644. among the other Parliaments and Sessions thereof ratified by his Majesty: all after 1441. and preceeding his return but so it is That the said Mr. Donald were at that time, at the burning of the said, house joyned with Montroiss and it was in pursuance of both that the said house was burnt as is noture (and if need be, The defender will offer him to prove) and therefore though he had burnt or given direction for the burning thereof he ought to be assoiled.

5. By act of Parliament. 30 act 22. March. 1647. it is statute and ordained that all his Majestys good subjects shall be altogether freed and liberate in all time coming from being any wayes called, convened, pursued, troubled or molested in judgment civill or criminall or outwith the same for any deed done or to be done by them against the persons, lands or goods of such as have or shall be in the rebellion (by which it is noture, that the said armed opposition made by the deceased Marquess of Montrose, and the said Mc. Donald, and others under his command; to the Estates is understood) during the time of their being in the said rebellion, or have been, or shall be guilty with the rebels in their wicked courses, or of any of them, who came under the first or second Classes of delinquents contained in the 5 act of the fith session of that Parliament holden at St. Andrews, in the monethmonth of Jan. 1646. But so it is, the Defender offers to prove, if need be, That a son of the Earl of Sterlings named Charles or John Alexander, who had, or either of them had right to Menstre had joyned with Montrose and those under him, and so came under the second Class of the said fifth act of the fifth session, Parliament 1646. Or at least, went or sent into their ligor, or without compulsion entertained them in the said house, and therefore the defender ought not to be pursued, even though he had burnt, or given direction to burn the said house (as he in no wayes did) and being pursued, ought to be assoiled from this article like as it is conjunction alledged for the defender in fortification of the said act, That the same is ratified by his Majesties large Treaty at Breda, as being one of the acts of that session of Parliament 1647. which amongst the other sessions of Parliament, and acts thereof since the year 1641. and preceding his Majesties return in anno p. 331650. are ratified by the said Treaty, as also by the act of Ratification at St. Johnstones or Sterling in annis 1650 & 1651. By which ratification (or ratification of his Majesty by the Treaty aforesaid,) the said act of Parliament 30. in anno 1647. comes (as a most solemn remission granted by his Majesty, and whole Estates of Parliament to the persons therein contained) and so like as if every one of them had got a particular remission so solemn: It had been an uncontrovertable remission for what were therein contained, so must it now be, being in effect of the same nature and vertue, albeit many be included in one.

6. By the act of Oblivion at St. Iohnstones or Sterling, in the year 1650, or 1651. all acts of hostility whether between the King and his Subject, or between Subject and Subject, and what things fell out in these times betwixt the year 1641. and his Majesties return, whether prejudicial to his Majesties honour and authority, or to the Laws of the Kingdome, or the particular interest of his Subjects, are buried in oblivion. In respect whereof though the defender were accessory to the said burning, as he is not, yet he ought to be assoiled.

As to the sixth article, anent the taking of the house of Towart belonging to the Laird of Lamont, and the house of Oscog belonging to Oscog, and after articles of capitulation drawn & subscribed by Ardkinglas, and under his command others under Trust and assurance, murdring a great many of Lamonts and Oscogs friends. As this is no wayes true (the defender being altogether innocent thereof) so is it no wayes relevantly libelled. For 1. Neither day nor monethmonth of these deeds are condescended on. 2. The alternity p. 34by the others under his Command not relevant to inferre a crime, far les Treason against the defender for the reason contained in the first answer to the former article, viz. That there is neither act of Parliament lybelled, nor common law ordaining a man be lyable to a pain far less the highest of pains, for deeds or crimes by those under his command, except he gave them special direction: But every one is to suffer for his own fault, as at more length is contained in the said answer, which is here repeated. 3. Non relevat, These for whom he is answerable for the same reasons, because every one is answerable for his own fault and crime. 4. Non relevat. That others whom he might stop, did it, because there is neither any act of Parliament lybelled on, ordaining any to be answerable for all deeds of those whom he might stop (specially the act against Murder under Trust bearing no such thing) Nor is there any Law not reason for the same, but delicta proprios tenent authores, as hath been said, and no wayes granting the defender could have stopped them, for the truth is, he could not, and was not near them when what is libelled was done, and albeit indeed, it be contra officium charitatis, not to stop any doing a mischief, if one may safely do it, yet that it comes under the compass of Law to inferre a crime, especially Treason cannot be affirmed. 5. Taking of the house of Towart and Escog, is not subsumed upon any of the acts of Parliament lybelled, there being none of them anent the taking in of houses belonging to the leiges, and so is not relevant to infer any of the crimes contained therein. 6. The alledged killing a great many of Lawmonts and Oscoges friends after the assurance given by Ardkinglas, is no ways relevantly libelled to infer the crime of slaughter under trust, because by the act of Parliament, Iac. 6. par. 11. p. 35cap. 51. of slaughter under trust, upon the which it is founded, slaughter under trust is only when the party slain is under the trust and assurance of the slayer, which is no way here lybelled, but that the persons who are lybelled to have been stain by the defender, were under the trust of another, to wit, Ardkinglas, who is he or any other under the defenders command have done any thing against their own assurance, they are to answer for it.

7. The defender adhering to their defences, and craving that they being against the relevancy be first discust, repeats his former answer founded upon his commission of Leiutennendry therein mentioned, for they who are designed Lawmont and Escoges friends, were the Mac Donalds, or their Adherents and Accessories (as is noture, and the defender if need shall be, offers to prove it) whom by the foresaid Commission he had power to prosecute with fire and sword, with dispensation of slaughter, and raisings of fire in manner at length contained in the Commission, which amongst the other acts of Parl. 1644. is ratified by his Majesty in his Treaty at Breda, as is alledged in the said answer which is holden herein repeated, and therefore the defender ought to be assoiled from this article, and truly what cruelty was exercised, was by the Lord of Lawmont himself against the Heretors and other inhabitants in the Shrievdome of Argyl, for the which upon a supplication given into the Kings Majesty and Committee of Estates at Sterling in August 1651. He was imprisoned within the Castle of Sterling, till after tryal Justice should have been done upon him, but was released by the English when they took the Castle with the other prisoners, however the defender is confident, as it is known, so he shall make it appear, if need be in the other process whereunto this relates, and wherein it will be more pertinent, p. 36and yet the day and time of the committing of the deeds mentioned in this article being condescended on as it ought to be when required by the defender, that he may propone his alibi, he offers to prove if need be, That he was alibi the time of the committing of the said deeds, at a very great distance, to wit, in England, like as his Majesty by his Treaty at Breda, hath ratified and approved the acts of Parliament, and his Majesty, and Estates of Parliament, hath ratified the said Treaty, and past an act of Oblivion of all former deeds done by the Subjects, which secures and indemnifies them for any former actings, in respect whereof he ought to be assoiled.

As to the seventh article made up of several members or parts, as 1. anent the men alledged murthered as Lockhead and Dunnavertie. 2. Anent the aggravation added thereto. Anent an old man begging his sons life and denyed him. 3. Anent the sending 200. men from Illa to starve in Iura. 4. Anent the taking of the person of Col. Ki…ch, out of a ship in Leith Rode, wherein it is libelled, that he had been brought by order of Parliament.

It is alledged against the seventh article, That 1. The first part thereof (anent the men alledged murthered at Lockhead and Dinnavertie) is no wayes relevant, not only in respect that the particular monethmonth and dayes whereupon the same should have been done, are not condescended upon, but also in respect there is not one particular person by name and surname whereby he might be known condescended upon, against whom the deeds libelled should have been committed, without the which this part of the article cannot be sustained as relevant, it being contrary to all Law and practise, that murther in the general without nameing the persons murdered should be sustained as relevant Dittay against any. 2. The slaughter alledge a p. 37committed upon these in the house of Lockhead, is not relevantlie subsumed upon the acts of Parliament lybelled, in so far, as there is no assurance lybelled to have been given to them, to bring it under the act of murder under trust, and there is no other act lybelled under which it can fall. 3. It is alledged, That the defender cannot be charged with any of the deeds lybelled in the said first part of the article (though they were true and relevantly lybelled, as they are not) because the expedition made against the rebels in Kintyre in the year labelled, was by David Lesley, and these under his command, against such, who contrary to his Majesties order sent to them at that time, commanding them to lay downe armes, and contrary to their own engagements, not to joyn with Alister, Mac Donald did notwithstanding continue in armes and rebelliously (as was then declared by the Estates of Parliament) resisted David Leslie in the execution of his said Commission against them, who therefore after defeating of them in the field, took them out of the said houses of Lockhead and Dunnavertie without any capitulation, and disposed of them as the Counsel of Warre then present with him thought fit (which is noture, and the defender offers to prove, if need be) for which, and other his services, the said David Lesly got the Parliaments approbation in anno 1648. as the said approbition and exoneration bears, which will clearly prove any thing that is herein alledged, and therefore the defender, nor any in his company at that time cannot be charged with any deeds lybelled in the first part of this article, but ought to be assoiled therefra. 4. The defender repeats his third defence made to the fifth article founded upon his Commission of Leivtennendry, the persons mentioned p. 38in this article against whom the deeds are lybelled, to have been committed, having been the Mac. Donalds or the Adherents and Accessories which is noture, (and the defender offers to prove, if need be) to prosecute whom he had the Commission containing dispensation, and which was ratified in manner mentioned in the said answer, like as he repeats the 4 & 5 answer made to the said article, in respect whereof he ought to be assoilied therefra.

It is alledged against the 2, 3 and 4 members of this 7 article, that they are no wayes subsumed, nor cannot be subsumed under any of the acts of Parliament lybelled, and therefore the dittay herein is inept, and the defender ought to be assoiled therefra, (and yet in point of fact they are but meer Calumnies) As to the second part (anent the said old man and his son) it is no wayes relevant, not condescending on the persons names, and therefore can receive no other answer, but that it is a meer fiction to make the defender more odious, who ingenuously professes, that he never heard of such a thing, till he saw it in the libel. The third part of this article hath no better ground than the second, and the defender desires, that for clearing his innocency of the fact lybelled therein (anent the sending of two hundred men from Ila to starve in Iura) that the Gentlemen in the said Islles may be examined upon the truth of the matter. It is alledged that the fourth part of this article, anent Coil Kittoch.

p. 397. Is of the same nature with the former two, and therefore the simple relation of the truth is sufficient to refute the falshood thereof, which is shortly this, viz. That Coil Kittoch was not brought to Leith either by order of the Committee of Estates or Parliament, but being taken prisoner in Ila by the forces under the command of David Lesly, and delivered to the defender, the defender put him aboard in Captain Browns ship who undertook to deliver him at Dunstaffnage. But Captain Brown finding the opportunity of a fair wind to Leith, to which he intended, and not willing to lose the same, did not go to Dunstaffnag, but came streight to Leith Road, and immediately gave the defender notice, that he had his prisoner aboard, whom therefore the defender received from him, and sent him to Dunstaffnage: and the defender desires that Captain Brown who lives at Weymes, may be examined upon the truth of this matter, by whom he offers to prove this, if need were.

And whereas it is libelled that Coil Kittoch was hanged it is true, but it is also true that he was condemned to die in a justice or Liestenant court judicially which is noture. And the defender offers to prove, if need shall be, so that this can be a ground of no crime nor ditty what somever, but however the defender ought to be assoiled therefra.

8. To the first member of the eighth article bearing that notwithstanding the manifold acts of dignity favour and honour conferred upon him by his then dread Soveraign his Majesty being redacted to greater straits by that army of Sectaries, and having cast himself over in the hands of the army of his Scots subjects for shelter and preservation of his royall person, Neverthelesse the said Marqueis being chief ring-leader, of that factious p. 40party who then swayed the estate of affaires both in councell and army did so contrive and complor, and by his influence so prevail, that after all faire offers made by his Majesty and his desire to have come and lived in Scotland till all differences in both Kingdoms had been setled, an act of Parliament was made for abandoning his Majesty to the mercy of his inveterate enemies, the said army of Sectaries.

It is answered that as he must continually acknowledge the late King and his present Majesties acts of favour, honour and trust: so must be still deny (as he safly may in the presence of God who is the searcher of all hearts) and of all men, that he never intertained any dis-loyall thought or contrived any treasonable plot or machination against the sacred persons, dignity or authority of his late soveraign or of his present most sacred Majesty, and therefore with a clear conscience may answer this dittay.

1. That the same is not special not clear, but very obscure and general, how and in what manner he was chief Ringleader of any factious partie.

2. Who that factious partie were, nor

3. By what deeds, and how he swayed the state of affairs: nor,

4. These means by which and upon whom the procured his influence to prevail.

5. The alledged offers, made by his Majesty are not exprest. And therefore the said articles are altogether general and inept.

2. The act of Parliament which the defender is alledged to have procured to have been made, is not produced, no indicat by number or Rubrick, nor does the Defender know any act of the tenour and title lybelled.

p. 41And the Defender in humidity conceives, that it is not consistent with the act libelled on, in the opposition of the Dittay, discharging persons to impugn the authority of the Estates of Parliament, to term the members thereof, especially in making an act (which being carried by plurality of voices, as the deed on the whole; and specially such an act, as is mentioned in the Libel (where there were none, or very few of a contrary judgement) A factious party.

13. The cause of the first member of the said eight Article, anent the pretended act of Parliament, as is libelled, for abandoning and leaving his Majestie to the disposal and mercy of his enemies, the Sectarian Army, does debond from the Acts of Parliament (as clearly appears) and can be subsumed on under none of the Acts of Parliament libelled: For if the tenth Act of Parliament, 1647. be understood and meaned, as the Act libelled (that being an Act of Parliament) the Defender humbly alledges, That an Act of an acknowledged lawful Parliament, should be made a crime of accession, whereunto a Member of Parliament shall be indicted (especially for so high a crime as Treason) is without ground of Law of practice, and is hoped, the honorable Parliament will no ways sustain it; and therefore, that he needs say no more now in confirmation hereof.

14. Likewise, all that is in that Act, and substance thereof, being the Estates of Parliament there declaring their concurrence for His Majesties going to Homeby-house, or some other of his Houses in and about London; and that expresly, to satisfie the desire both of His Majestie himself, and of His two Houses of Parliament in England: And there to remain (not under the power of Sectaries) but with such attendance about him, as both Houses should, think fit to appoint, with respect also had to the safety and, preservation of his Royal Person. And the Estates therein do also declare against all harm and prejudice, violence or duplicate page duplicate page p. 42injury to be done to the same (as indeed it was horrid to think that any on earth should have done) or prejudice to His Majesties Posterity: But thereafter it is clear from the fourth and seventh Acts of the Parliament, 1648. that the Sectarian Army disobeyed, and threatened the Houses of Parliament, imprisoned and banished faithful Members, and by a sudden surprizing, violently seized upon the Person of the Kings Majestie, carried Him from His House at Homeby, against His own will, and declared Resolutions of both Kingdoms, and kept him under their guards, till at length, by their Power and Prevalency. He was committed, and kept close Prisoner at the Isle of Wight, this being the true case out of the express words of the Acts before cited.

As to that Declaration, Act. 10. Parl. 1647. The Defender alledges, 1. The Act bears express, That it was to satisfie His Majesties own desire. 2. That it is homologat and approven by the Parliament, 1648. in so far, as by their fourth Act, institulate, Anext their Resolutions concerning the breaches of Covenant and Treaties betwixt the Kingdom of Scotland and England, and demands for reparation thereof; findes the violent seising on his Sacred Majesties Person, and taking Him away from Homeby-house (as appears by Act 7.) by that Army, against the resolutions of both Kingdoms, a breach: And amongst the Reparations, they desire expresly, that conform to the former desires of this Kingdom, the Kings Majestie may come with Honour, Freedom and Safety to some of his Houses in or near London, that the Parliaments of both Kingdoms may make applications to him. And in their seventh Act, intituled, A Declaration of the Parliament of Scotland, to all His Majesties good Subjects of this Kingdom, concerning their resolutions for Religion, King and Kingdom, &c. After they declare, That violent seizing on His Majesties Person, and carrying Him away by that Army, against the resolutions, of both Kingdoms; so be a breach: And they declare, they intend to send to the two Houses of the Parliament of England, the Desires following; which they call, Necessary and just Desires for Religion, p. 43His Majesties good, and Peace of these Kingdoms; whereof this is one, That conform to the former desires of this Kingdom, The Kings Majestie may come with Honor, Freedom and Safety to some of His Houses in or near London; and declares, that thereafter they will endeavour it; and Act 8. in their desires to both Houses Parliament in England, the same desire is repeated, Conform to the former desires of this Kingdom. By all which it is clear, That the seizing upon His Sacred Majesties Person, was the violent deed of that wicked-Army, done with a violent surprisal, against the declared resolutions of both Kingdoms. And that His Majesties coming to some of His Houses in or about London, where both Kingdoms might make applications to Him, conform to His Kingdoms desire (which is that wherein the the Estates declares their concurrence with His Majestie, and both Houses of Parliament in Englands desire in the said tenth Act) is approven as a just and necessary desire for His Majestie, and accordingly enacted among that Parliament, 1648. their desires to the said Houses, and declare it should be endeavoured, if refused, so highly is it approven by the said Parliament. In respect whereof, specially of the standing Acts of Parliaments, 1648. the Defender humbly craves, That albeit the Article was relievantly, distinctly, and clearly libelled and subsumed on some of the Acts of Parliament in the Proposition condescended on (as he humbly conceives is not) yet he ought to be assolized therefrom.

And for further clearing what was the ground and occasion of that Act, and the reasons inducing the Defender and the Parliament at that time to go along therein, and how little ground there is for challenging him thereon, it would be considered, That when the late King came to the Army before Newcastle, the Defender was in Ireland, by Commission from the Parliament, 1646. and that His Majesties Declarations anent the grounds of His resolution in coming to the Scots, was sent both to the Committee of Estates in Scotland, and to the Parliament of England; so p. 44that the same being printed before the Defender came to Newcastle, he neither did not could know any other ground of his coming, nor what was contained in His Declaration, viz. His gracious Resolution to comply with His Parliaments in both Nations, and those entrusted by them in every thing, for setling of truth and peace; and that he would totally commit himself to their counsels and advises. Upon which terms, both the Committee of Scotland, and Officers of the Army, declared to His Majestie, and to the Parliament of England, that they received him: And all this before the Defender came from Ireland to Newcastle; from whence. His Majestie sent him with Instructions to the Commissioners at London (of which Commissioners the Defender was one also) to hasten the Propositions; and privately commanded the Defenders, to take the advice of the Duke of Richmond, and Marqueis of Hertford, anent what might concern His Majestie; and particularly, if it was fit, that the Scots Army should declare for His Majestie; whose judgement and opinion was (which they conjured him to tell his Majestie) that such a course was the onelyonly way at present to mine his Majestie, for that he himself knew, That neither the Nobility or Gentry of England, who attended him at Oxford, wished him to prevail over his Parliament by the sword; and much less, would they indure the Scots Army to do it, and that it would make all England as one man against him; And that it was their earnest request to His Majestie, by any means to give way to the Propositions. Which advice he not onelyonly faithfully told to His Majestie at Newscastle, and many others there, and to our gracious Soveraign who now is, when he was in Scotland; but also being in the Tower, he intreated the Lieutenant thereof to propose for him, that the Marquess of Hertford who was then alive, might be examined in this matter; which was put off from time to time, because of His Majesties great affairs. And as it is most certain, that as neither Independent nor Sectary was able to carry one vote in the House at that time, so it is notior, that they who tendred His p. 45Majesty most in England were for disbanding the Scots Army, and His Majesties … in England, wherein the Defender appeals to the particular knowledge of the Earl of Landerdale, London, Sir Charle Erskin, and the rest of the Commissioners then there; and it is of truth which all know, that so little fear; suspicion and jealousie there was of what followed, That the great fear of His Majesties friends in both Kingdoms was, That if he fixed on his Subjects in Scotland, all England would be against him, and probably cast off His Government and Interest forever: So that under what representation soever the matter may now appear (because of the sad sequels) … to them who know the matter as it was there shared, what Declarations and Assurances there were from the Parliament of England, and how little fear of the prevalency of Sectaries, it did appear to be an act (if not of necessity) at least an act very expedient and convenient for the time, other ways many who did assent thereto which never have condescended; and consequently the defendors concurring therein, upon such probable grounds can be no such crime as is libelled; nor is it releivant to answer the conclusion of the Dittay.

To the second member of this Article, bearing, that under present for satisfaction for the arrears of the Army he went to London, and there treasonably gave up, at least condescended to the upgiving of his dread Soveraign and Master, as being impowered so to do by the Kingdom of Scotland.

It is answered … member is not relevant, because neither the time of this going to London, … of his being these, the persons to whom he condescended to give up, are not particularly mentioned and set down.

By which generally he is precluded from several defences … arise to him if the Ditay were clear, and it is a principle in Common Law and of constant practice, That non et vagandum in crimin…e sed debet certum & speciatim dici, for that dolus & error …in generalibus.

p. 462. No ways acknowledging the relievancy of the subsumption herein, upon any of the Acts of the Proposition; till the same be clearly condescended on, and craving the same may be first done, Oppones the Act of Parliament, and the truth is while the Defendor was at London there was nothing spoken at all by him of leaving his Majesty in England except what he was expresly commanded by his Majesty to speak to Richmond and Hertford as aforesaid.

To the third Member of the eighth Article, bearing, That in a joynt Committee of both Kingdoms, where the English questioned whether the Scots Army would concur with them in their said Treason and Treachery; the Defendor after many arguments used in their favour, earnestly requested them to have patience for a little time, and that it would appear how far they intended to concur: And that within few days thereafter there was a Declaration and Vindication emitted in name of the said Army, holding forth That in case his Majesty did not condescend to all the desires of both Kingdoms, which were no less then divesting himself of all Regal Power, Civil, Ecclesiastical and Military, they would deliver him up, which immediately upon the receit of Two hundred thousand pounds the Defendor and they did.

It is Answered, That adhering to the former defences anent the subsumption, and repeating it here, This member although it were rightly subsumed (as it is not) is most irreleivant and general in time, place, person and speeches, mention being made of many arguments, and never one produced, and of a Question and Answer, out of which (even as libelled) Treason cannot be inferred, viz. That the Defendor requested them to have patience a while, and it would appear how far the Army intended to concur; but within few days after the Army declared themselves in manner as aforesaid. Seeing these alledged words of the Defendor, as they are indefinite and general, so the most they could infer is, That in a short time it would appear whether the Army would concur or not; and what can from thence be infered, p. 47as to any thing the Army did; if they have outshot their duty, as it was in regard of him, with the speaking of these words, a future contingent wherein the Defendor had no causualty, so they must answer for themselves, and not the Defendor.

And for ought he knows there was never any such Declaration emitted, neither should there be any captions use made of words, if there had been any such words spoken, as there was never, especially to infer his Treason, for that Lubricum linguae, is oftner a frailty then a fault; and that by all Doctors of both Laws it is constantly held that verba debent intelligi ne sonent in delictum. And that in dubio they should be interpreted a proferenti. And therefore no ways acknowleding the words and deeds libelled, except in so far as concerns the Defendor his vote to the Declaration, and as the circumstance libelled, That the delivery of his Majesty was immediately after the payment of 200000 l, it is clear that there was no respect to that money in what was done therein, by the Act of 7. Parl. 1648. wherein the Estates there declare, That money was never the cause nor motive of any of our undertaking and resolutions, whatever enemies had falsly suggested of that kind. And lastlly, adhering to his former defences oppones to this whole Article the Treaty at Breda, and the Acts of Parliament of Oblivion and Ratification.

As to the Ninth Article, and whole first member thereof, bearing, That the Defendor opposed the proceedings of Parliament, 1648 by arguing, voting, and after the resolutions of Parliament were past in an Act, in protesting against the same.

It is alledged for the Defendor, 1. It is not condescended under which of the Acts of Parliament libelled on in the proposition, this Article is subsumed, and therefore the libel as to that member of the Article, for arguing, voting and protesting, is inept, and the Defendor hath just reason in such an incertitude to deny it that can be releivantly p. 48subsumed on any of the said Acts of Parliament.

2. Arguing and voting is no ways releivant to infer the conclusion of the Ditray, because by Divine law, Law of Nations, Statutes and practices of this Kingdom, in deliberando, a Member of Parliament or other Councel should give advice or suffrage according to his perswasion of the good or ill of the subject debated on, and under consideration, wherein if his reason cannot bring him up, nor his conscience admit him the length of others in such publick Counsels; he ought to have charity for the one and excuse for the other.