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-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
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
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 that 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 onely 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 onely 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 Majesty 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 criminâ—e sed debet certum speciatim dici for that dolus error 〈◊〉 in generalibus 2. 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 as 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 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
Regicides their hands who did immediately thereafter invade this Kingdom As to the other member of the Tenth Article whereby it is libelled That the Defendor to obstruct His Majesties purpose yea in so far as in him lay and to terrifie him therefrom by his and his complices crulelty executed upon the Marquess of Montross who as his Majesties Commissioner did represent his Majesties person caused to murder the said Marquess in anno 1650. in manner c. 1. It is no way releivantly libelled that the Defendor in general caused murder him except it were condescended quâ— modo he caused and if thereby be meant his voycing in Parliament 1649. in the said matter non relevat because a vote Act or sentence of Parliament is no way releivant to infer a crime against any particular member therein as hath been oft before alleadged Likewise 2. The sentence of the forfeiture of the life and estate of the said Marquess was no decree of the Parliament 1649. but of the Parliament 1645 which was homologat by several other Acts of Parliament excepting the said Marquess among other excepted persons as specially by 〈…〉 and by the 22 Act of the Parliament 1648. And yet 3. The Defendor did not vote in the business of Montrost as he can prove if need be is by the members there present 1649. And as to the aggravations of the said Murder the said Marquess being His Majesties Commissioner for the time It is no way a releivant circumstance to aggravate the same except it had been libelled That the said Commission had been shown to the Parliament which no body can affirm but on the contrary the said Parliament conceived they had just reason to presume that there could be no such Commission for his coming against them at that time because His Majesty after the murder of His Royal Father very graciously had admitted their gracious Applications to him Likeas before Montross his coming at that time to Scotland and always thereafter His Majesty had a Committee of the said Parliament under the name and title of the Committee of Estates of His Majesties Kingdom of Scotland As to the Defendor his alledged keeping correspondency with Cromwel in the year 1650. As the same is irrelevantly libelled no deeds nor acts or correspondency being condescended on so there was never any such thing And there was one named Hamilton who vented this untruth hanged at Sterling and at his death did declare That the same was a moâ—t unjust calumny and it is not to be beleived that at that time he would have charged his soul with a lie and in Law the words of a dying man are oriculously beleived As to the Act of the West-Kirk the Defendor no ways acknowledging the releivance of the said Article as it is libelled was so free from having the least accession to the said Act or Declaration that so soon as he got knowledge thereof to evidence his fidelity to his Majesty it is offered to be proved by witness for their loyalty above all exception that when the first news came that the Commissioners were about the drawing of the said Act the Defendor gave advice to His Majesty To draw a fair Declaration and to go such a length as in freedom he could that thereby he might prevene the said Act and obviate the pressing thereof But as for the other that was pressed he was altogether against the same and dealt with the Minister who came from the Commission of the Kirk to forbear pressing His Majesty therewith which also if need were might be proved As to the eleventh Article and subsequent Articles because the same are for deeds of compliance after the Usurpers had prevailed and were in possession Before the Defendor make particular answer it is necessary to premise in general that it being notoriously known to the world to the eternal honor of this Kingdom as for that damnable usurpation of Oliver not onely we were not active in establishing the same but according to our bound allegiance to our Soveraign were to the utmost possibility of our power in arms under His Majesty and other ways active against him and in opposition thereto many lost their estates many their lives and all of us our liberries and when we could do no more being oppressed by the force of the said Usurper as a chaste forced Virgin we â—ried to God and man attesting Heaven and earth against Usurpers even when their bloody swords were at our throats he and his Army amongst many other execrable mischiefs were also guilty of this usurpation We have suffered and been only passive under that irresistable force And as this was the condition of the Kingdom so specially the Defendor who as he had been most active and instrumental in His Majesties home-bringing which was the only ground of the quarrel and for which he was looked upon by them as one of their capital enemies even so after it pleased God for our exercise and punishment to suffer their power to prevail over all his Majesties Forces and over this Kingdom such aversion had the Defender even so much as to live under their power let be to comply actively with them that after Worcester the Defender offered to Mr. David Dick if he could get his company or the company of any other honest Minister that he would never capitulate with any Englishman so long as he could subsist in any part of Scotland either his lands or Isles thereupon It is humbly craved that Mr. David Dick may be examined neither did the Defender ever capitulate with them till August 1652. having before that endeavoured all that in him lay to have perswaded those of Athol Monteith and other his Neighbours in the Highlands to have concurred with him that they might have joyntly made some probable force for resisting the overspreading power of the Usurper but all in vain Likewise long before that time the whole Forces and Strengths of the Kingdom were surrendered yea the whole Kingdom by their Deputies and Representatives who met at Dulkâ—ith with the Commissioners of the Parliament of England so called was forced to submit to their power and accept the tender of the union of this Nation with England proffered by them Neither did he at the said time in August 1652. voluntarily come in and capitulate with the said English but was surprized several Regiments of their Forces horse and foot having sudden'y come about his House where he was for the time lying deadly sick as can be testified by Dr. Cunningham who was with him for the time and is humbly craved to be examined thereon As also notwithâ—â—anding of the said surprizal and the Defenders condition though they threatned notwithstanding of his sickness to carry him away prisoner yet all their threatning could not prevaâ—l with him but he did absolutely refuse to subscribe the Articles first offered which contained the tender of the union and an obligement upon his part to promote the same and the Government
as 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
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. Kiâ—â—â—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 moneth 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 committed 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 in 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 7. 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 party 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
Session or as is continued to the first Tuesday of March 1650. in the second Session both conform to the last Act of the Parliament 1648. must subsist and sway the said Defender his just reason to found his Defences upon the acts thereof It is also further considerable as to the Loyalty of that Parliament that therein the murther of his late Majestie was declared against his present Majestie proclaimed and brought home his subjects of this Nation reconciled to him and taken into favour an Army appointed to oppose his Enemies the Crown set upon his head and that Session of Perâ—h wherein the whole preceding proceedings were approven was dignified by the presence of his Royal Person And to the tenth Article and that part thereof where it is libelled That the Defender in Anno 1649. not daring to oppose in publique or in a direct way His Majesties home coming he procured the Application made â—o be clogged with such Limitations and Restrictions as were most derogatory to Monarchical Government as is alledged to be â—â—re fully exprest in the Commission Instructions and Addresses which are repeated as a part of the Libel It is alledged for the Defender 1. Seeing the said Commission Instruction and Addresses are libelled on and repeated as a part of the Dittay in all Law and form of Protes they ought to be produced with the Libel for the reason adduced in the defence against the relievancy of the proposition of the Dittay and till which be produced it cannot be consistent with the said Limitations and Restrictions and how far they are derogatory to Monarchical Government and therefore till then there can be no Process 2. It is not condescended nor cleared on which of the acts libelled on in the Proposition this Article and members thereof are subsumed and therefore it is obscure and inept and in that incertitude the Defender has just reason to deny that it can be subsumed on any of the said Acts to infer the crime and pain libelled against the Defender none of the said Statutes making any mention of treating or infering any pain therefore likewise after ruptures and differences betwixt a King and his Subjects all Lawyers and Politicians do agree That the best and safest way of removing the same is by Treaty and being concluded on it is also their opinions That the same are to be observed at least so far as to exempt the Subjects from punishment to whom indempnity has been thereby promised and in this Grâ—tius de Iure belli pacis lib. 3. cap. 19. is most clear and many others who write on that subject and therefore the said Treaty being concluded and after ratified by his Majestie and his Parliament the Defender cannot be called in question for his accession thereto nor the pain of Treason thereupon inferred for the said Treaty and conditions thereof being accepted and agreed to by his Majesties voluntary Contract cannot be like as a crime far less so high a crime as Treason against the Defender 3. Absoluâ—tor from that member of the said Article because not onely after the said Treaty did His Majestie â—acitely remit any crime if any was in the said Treaty by admitting the Defender to places of trust by receving the Crown from his hand at the Coronation and by admitting him to take the Oath of Allegiance and to be a Member of his Majesties privy Council but also after the said Treaty was ratified there was an Act of Pardon and Oblivion by his Majestie and Estates of Parliament oftimes before alledged and is here repeated Though the above written defences be relievant in Law as to the said member yet for the Defenders further vindication the Honorable Parliament would take notice that all along the preceding Aâ—â—â—â—â—es all the publike actings from the year of God 1640. to the year 1648. wherein the Generality and Representatives both Civil and Ecclesiastick in the Kingdom concurred are charged upon the Defender as his particular actings or as if the Defender had been special author whereas in this Article anent the treating with and home bringing of his Majestie therein it is known the Defender according to his bound duty was most active and zealous and therein he wrestled with all his might and by his pains and Gods blessing thereon overcame many difficulties and did effectuate the same The Libeller does so far detract from the Defenders faithful discharge of his duty in this so glorious action and without libelling the least presumption of any circumstance to make the same probable the Defender is accused as if he had in his judgement been against his Majesties home coming which because he dâ—rst not avow publiquely therefore he betook himself to underhand dealing To clog the Treaty with Limitations and Restrictions excluding the Defender from all accession to the said duty in so far as it was good viz. To bring home the King and making him to be the sole author of all libelled to be evil therein to wit of the limitations and restrictions whereas the truth is he was active in the Kings home bringing and was passive in the other having laboured what he could that there should be as few conditions and the same as satisfactory to his Majestie a was possible at that time to obtain which is known to all that did transact in the said affair and which if need be is offered to be proven And for further clearing hereof if this Article shall be further insisted on my Lord Advocate will be pleased to condescend who the parties were that made the motion for addresses to his Majestie of whom the Defendent should have been afraid if he had been of a contrary judgement to have opposed openly for if the Defender had so great sway in affairs as all along the preceding Articles he is allowed to have had and also if he had intended as is broadly and with foul month alledged in the said Libel all along alledged to have extirped and evacuated the Kings Majesties Authority Government and Posterity and had such correspondence with those abominable Regicides as all are perswaded by the said libel to believe in the said year of God 1649. when the said Traytors were strong and both this land through divisions and otherways very low and when the power was in the Defendor and his complices their hands as my Lord Advocate is pleased to libel and term them who at that time had the managing of affairs then was the fittest time and best opportunity if they had any such disloyal thoughts to have shaken off that Government but so far did they abhor any such treachery That they not only proclaimed His Majesty and according to their duty owned His Interest even with the hazard of their lives and fortunes there being noneso shallow but easily might have seen that the discharge of the said duty would bring upon themselves and the Nation the power of England the onely power of Arms and Armies being at that time in the abominable