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 moneth 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 1650. 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 moneth of these deeds are condescended on 2. The alternity by 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. cap. 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 and 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
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 And 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 injury 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 His 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
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. â—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 and 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 iâ—jâ—re constitutionis in the Laws whereupon the libel is founded The manner is in the subsumption of the facts or â—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 maxime 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 â—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 prosecuâ—ion thereof til the treaty with his late majesty and act of oblivion set dwon at length and â—atiâ—â—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 verbo 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 Parliamâ—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 â—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 with 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 condensenâ— 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 Pâ—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 Mâ—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 foresaid 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 commitâ—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 these 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
Earl meerly for his loyalty to his Majesty it is gratis dictum against that presumption quâ— unusqiusque praesumitur bonus and against that loyalty to his Majesty that is hoped shall more and more appear in the defender Lastly 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 As 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 wholâ— 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 〈◊〉 the 〈◊〉 Treaty bearing the Kingdom of Scotland their desire for unity in religion and conformiâ—y in Church-Government as a special meaâ—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 dittâ—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 2â— 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 also 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
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 that the kingdom was in such a condition of affection to his Majesties sacred person and authority at that time none dâ—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 by 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 moneth 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 quomoâ—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 have 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 â—f timber or demolishing the houses of private persons though done upon private quarrels as this was not inferres â—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
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. 16â—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 As 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 buâ— 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 moneth 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 Libellus 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 â—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 dispenâ—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
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 subsumed 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 Like 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 in 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 that 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