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
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
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-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
and some obligation to go and essay what could be by counsel wisdom and prudence since now there was no strength nor might left effectuate for the standing at least to evite the ruine of the Countrey in the particulars above mentioned and others of that nature at least the Defender as all of us was under their force and for eviting of his own and the Countreys ruie habuit Parenes necessitatem and by consequence there was no design of Treason therein but by the contrary most loyal intentions upon good ground of hope and very probable appearance And therefore it is hoped the Commissioners Grace and the Estates of Parliament will not finde this member relievant to infer so high a crime against the Defender how maxime attento that beside publique ends it was even a necessary self-preservative act for the Defender had several other things of personal interest as that that they had ordained him to pay to them about 〈◊〉 Sterling for alledged few duties aughtland and in time coming so much that both joyned he was not able to bear and if need be it is offered to be proven and that he was most rigorously persecuted for the same not onely threatning to use real execution against his Estate but also to imprison his person For eviting whereof he behoved to go at that time to London and could not have his person secured from arrestments there but by going in Commission And it is known that his Majestie is so gracious as in not a few to excuse what they did of that nature to evite though but their own personal ruine not imputing it to unfaithfulness in them at such a time according to whose glorious and imitable example it is with much confidence hoped that the Commissioners Grace and Honourable Estates of Parliament will have a favourable construction of what the Defender did in that particular being necessitated thereto both for publique and private interest without any deceit or fraud either in the intention or event there being nothing at that time while the Defender was there done for confirming the Vsurpation or excluding his Majesties interest Likewise it may appear that it was onely the concourse both of publique and private interests and necessities aforesaid that moved the Defender to go at that time because though he was desired oftimes before to go yet he still refused till then He was one of the last that went to that being the very last pretended Parliament under their power not till long after that Commissioners had gone for the Nation for several years and that all had submitted to their Constitutions and were of necessity made use of as Laws for the time As for the aggravations of this Member and to the first That because of the Defendants Nobility he was incapable to have been elected at least might have refused It is answered That it is notor Nobility was not then respected at all nor was any ground of excuse the meetings to the elections being commanded to all as heretofore and so Noblemen and others heretofore met promisculously through all the Nation as is notoriously to all known And whereas it is libelled That he had not his residence within the Shire it ought to be repelled as irrelievant because it is true and was known to the Usurpers and their Ministers and underlings that he had land within the said Shire and that considerable so that he could not decline the said employment without prejudice the will and lust of the Vsurper at that time being uncontroulable and tied to no rules of law or iustice And where it is inferred That sitting and voting in that pretended Parliament he acknowledged his Majesties power and interest to be in the Usurpers person It is answered 1. He acknowledged the same no otherways but as all the Kingdom did to wit de facto for de facto the Vsurper had taken or possest himself of the power as his Majestie is pleased to speak of it in his Proclamation sanent commerce with Portugal in October last and had detained the same for a long time But neither the Defender nor any other loyal subject ever did or will acknowledge that de Iure the same belonged to him or that he had any just right or lawful title thereto as also Lessius says in the above-written place speaking of them that seeks from Vsurpers that use of Government whereunto he says they are holden in and obliged once taking on them the Government though sinfully and unlawfully they seek the benefit of it says he not absolutely but under a tacit condition viz. If the Usurpers will take upon them the Government Petunt saith he sub tacita quadam conditione si velit se pro principe gerere speaking of the Usurper and that the Usurper would not give the use of the power he had taken upon him but in the way he pleased was his crime which he continued during his usurpation In respect of all whiew it is humbly craved That the defender may be assolzied from the crime of Treason libelled thereupon Like as for the defendors further clearing in this particular it is humbly desired that certain Ministers and others above exception whom the defender shall condescend on may be examined if after his return from England in Anno 1658. he did not express with great joy his hopes That business in England did tend toward His Majesties advantage Item That a Commission be directed for examining Sir Anthony Ashly-Cooper and several other Englishmen above all exception how the defendor express himself in private anent his dissaffection to that Usurpation during his being there the time of the said Parliament even though to his very great hazard at that time Item That certain persons upon whose names also he shall condescend may be examined if the defender to their certain knowledge the time of Sir George Booths rising which fell out immediately after the defendors return from the said Parliament did not put himself out of the way being informed that he was to be secured and thereupon delaid his journey to Caithness and so readier to have laid hold upon any opportunity that should have offered for His Majesties Service and restitution that time being the most probable that ever offered after Worcester As for the precept of Twelve twonsand pound sterling which is alleadged the Defendor got from the Usarper It is answered The Defendor did indeed obtain a precept but not as a reward of any service which he never neither did nor desired to deserve from them but for what they had wrongfully intromitted with of the half of the Excise of Wine and Strong water whereunto the defendor had right by Act of Parliament before they had any power in Scotland And as to the Thirteenth Article First For the whole Article it is not consented on what Act of Parliament the same consisting of three different members is subsumed and till it be condescended on there can be no process thereupon And as to
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
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
assistance It is answered 1. That the same is not relievantly subsumed upon any act of the proposition at least till the Advocate condescend upon which Act thereof the same is founded the defendor is not bound to make answer Secondly The Defendor denies that he did convocate these Forces or gave counsel or command therefore and as to his being with them he must be assolied 1. Because by a treaty at Sterling betwixâ— the chief Officers in the Army then alive and out of prison and a Quorum of Members of the Committee by authorite of Parliament 1648. who had power to order the incident affairs of the Nation the said meeting and all acts of hostility and others thereby committed are expresly discharged 〈◊〉 inde and a mutual Oblivion and Indempnity therefore 2. Any meeting he had with them was by a call of those of the Committee of Estates who joyned with those forces and who in the Treaty is acknowledged the Committee of Estates 3. The said meeting and acting thereof together with the Treaty and Articles thereof is ratified and approved by the third Act 2 Parl. 2 Sess. Ch. 2. The third member of the ninth Article bearing That apprehending his power was not able to withstand his Majesties good Subjects The Defender called in to his assistance the Army of Sectaries and that he went into Mordington and 〈◊〉 with the Commander of that Army had private consultations with him and prevailed with him to come to Edenburgh with his Army whose coming he might have hindered Because Oliver said That he could not help his lying upon the Tenants of Mordington for that his staying and going depended upon the Defender And that he did countenance and consult with the Sectaries and their Commanders in Edenburgh or the Cannygate in the house called the Lady Humes Lodging It is answered That as to speeches and consultations in general not releivant except they were condescended onâ— and as to the words spoken by Cromwel if spoken by him it was a lie and can infer nothing against the Defendor and the occasion of his stay was till he got Barwick and Carlisle which could not be restored till the Treaty at Sterling was closed And as to his his meeting and treating with him 〈◊〉 because he and others did the same by warrant of the Committee and which Treaty was ratified in the foresaid Act of Parliament thereafter To the Fourth member That he concealed and voted to the drawing up of a letter directed to Cromwel wherein he and his Complices engaged themselves in name of the Kingdom of Scotland to do their utmost endeavours that none who had been accessâ—ry to the Engagement or in arms at Sterling in pursuance thereâ—f should be employed in any place of trust without the advice and consent of the Parliament It is answered 1 No such letter produced 2. Though it were produced yet consenting and voting not releivant Because a vote in the Committee of Estates can infer no crime against the Defender or any member thereof nor any Act past in the said Committee especially seeing 3. The Acts of the said Committee was ratified in the fourth Act of the Parliament foresaid all ratified thereafter by the Treaty at Breda and Acts of Ratification at Percâ— and Sterling and the necessity thereof would be also considered in respect of the large Treaty both Kingdoms having given their publick faith that the breakers should be rendred up to the observers and that the English Army then upon the borders required the performance thereof against the engagers and for further security pledgâ—s and places of strength It was at that time counted a great favour considerinâ— their power to have made their own terms when they might have imposed and forced to what they pleased more yet they did accept this act To the Fifth member of this Article bearing That he did draw up at least did counsel the drawing of certain instructions given to Sir John Chiefly proporting That the Noblemen Gentlemen of quality and considerable Officers who went into England under Duke Hamilton and were there prisoners should be kept as pledges for the peace of the Kingdom It is answered 1. Not produced as it ought to be that it may thereby appear whether he subscribed the same or not 2. Not releâ—vant one of the Committee except it were libelled present and voted at that time for Noxa capuâ— sequitur 3. Not releivant voted Quia in Senatu nemo tenetur de consilio 4. Oppones the Authority of the Committee Treaty Acts of Parliament and Ratifications aforesaid To the last member of this Article bearing That he gave warrant under his hand for issuing of a Proclamation against the Families of the Laird of Ras and Vyres It is alledged for the Defender 1. No such warrant produced if any such warrant were produced under the Defendors hand it will certainly appear to be as President of some Committee so not his personal deed nor such a deed as can infer any a crime against him 3. No such Proclamation ensued 4. Although ensued yet that took no effect and so was Mine tantum et animus ad effectum non perductus 5. Oppones the Act of the Committee and Act of Parliament 1649. aforesaid which Parliament and the whole Act thereof is ratified in the Treaty at Breda and approved in the Parliament at St. Iohnstores and Sterling wherein was also made an Act of Oblivion oftentimes before alledged on in respect whereof the defendor ought to be affolzied from the said Ninth Article and whole member thereof and all therein contained And because the Defendor has in his defences so oft alleadged the Act of Parliament 1649. for his vindication he desires that it may be observed which is very observable that by the printed Treaty at Edenburgh and Sterling September 1648. it is agreed and appointed by those of the Committee at Sterling 1648 that a Parliament should sit down before the 10. of Ianuary next conform thereunto they did convene and sit down the fourth of the Moneth of Ianu. as by the said Treaty and the first and third Acts of the Parliament doth appear whereby it is clear That the said Parliament 1649. was appointed to sit by the Committee of the Parliament 1648 who had power by the last Act of the said Parl to convene the Parliament before the first Thursday in March 1650. if they thought fit as also that Sess. of the Parl. 1649. by the last Act thereof continues the same to the first Thursday in March 1650. at which day they convened in the next Sessions and therein ratified the Act of Parliament made in the former Session and which day was the diet to which the Parliament 1648. continued the same with power to the Committee of Estates to convene the same sooner if they thought fit as is said Whence it is evident that the said Parliament 1649. whether as appointed by the uncontroverted Committe 1648 at Sterling in the first
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
him for concealing and not apprehending 1. It is generall as to the time when Cromwell should have told it to him and therefore inept till the time be condiscended on which must be especially seeing if it be not condiscended on to have been after the Ingagement was broken nothing can be subsummed on the said act thereupon against the Defender nor on his not apprehending him for he was not holden thereto by that act expresly except according to Law it had been in his power But so it is it is known that at that time it was not in the power of the whole Kingdome to apprehend him whether his victory or strength be considered or the Kingdomes low and weak condition at that time wherein they lay open to ruine by him if the Lord had not restrained him more nor their power could effectuate and as to the concealing and not revealing the Defender ought to assoilzied because by the expresse words of the act that revealing is declared to be such a revealing to some of his Majesties Privy Counsell or some under Officer c. as that there through the Authors of slanderous speeches may be called tryed and punished but that cannot be subsummed except it were subsummed that the speeches were spoken before witness otherwise could not have been proved and without probation could not have been so urged as that sentence could have been given thereupon and the Author punished according to the words of the act which is also according to Common Law and which is hereafter cleared like as if the word thereafter should have been found treasonable and the Defender not being found able to have proved them he should have brought himself under the crime of treason for accusing another of treason and not being able to prove it and therefore could not be holden so to do As also albeit the Defender had heard any such words as is libelled which he altogether denies and that before witness yet through his revealing thereof the Author could not be tryed or punished for it is noturly known it was above the power of the Kingdomes at that time as said is or for many yeares thereafter to punish him and therefore the Defenders not revealing cannot be subsummed upon the said act of Parliament to inferre the pain contained therein or related unto Lastly the pains of the said Act and other Acts before mentioned together therewith is not the pain of treason as has been oft before evinced and therefore the Defender cannot be convened for treason or the pain thereof upon the said Acts but ought to be assoilzied therefrom But if this member of this Article be intended to be subsummed under the last part of the proposition of thâ— ditty whereby it is alledged that by Common Law and practice of this Kingdom all concealers and not revealers of any malitious purpose of putting violent hand in the sacred person of his Majesty or purposing of killing and putting him to death are guilty of treason the Defender protesting his Innocencie in never concealing any such purpose nor the words aforesaid libelled which he abhorres he is so far from justifying thereof judging the horrid murder of his Majesty to have been the very ruine of our peace and happiness yet as to the releivancy of that part of the proposition in so farre as is founded upon Common Law and practice only The Defender because of the preparative repeats what was before alledged in the answer to the proposition in that part thereof and adds further In crimine lesae Majestatis in the crime of lese Majesty Num sciens tractatum proditionis contra principem vel patriam illum non revelans sit puniendus poena mortis That is whether he that knows a Treaty about treason against his Prince and Country be punishable by death Clarus l. 5. S. fus pract crim quest 57. sayes that many hold he is punishable by death And that Cognol in his lib. Culpa caret F. de reg Fursi num 2 that it is the common opinion citing Alciat in lib. tacere F. de verb. sig m. l. Bona fide num 20. F. de pass in lib. 4. of Cato num 30. F. de verb. oblig related also by Gigas de crimine lesae majestatis fol. 180. num 10. Roll. Cons. 88. num 10. lib. 2. Careluprac crim fol. 253. num 29. saith that all others follows this opinion and Baldus cries out in one certain Counsell that because Bartâ—l held otherwise therefore his soul for that as a crime is tormented in hell where it is clear that even by Clarus acknowledgement which is very high Treason is not Treason by the common opinion of the Doctors according as is asserted by the famous Authors he cites and whom he contradicts not therein 2. And Clarus nothing contradicting but this is the common opinion albeit he be of another with Bartol that is capitall to conceal and not reveal yet it is only in two cases to wit In tractatu qui fiat contra ejus personam vel statum That is where he has been conscious to and known any Treaty or Consultation against the Princes Estate or Person But as for other causes he holds expresly that the concealer and not revealer is not punishable by death in these words In aliis autem casibus etsi sent comprehens in crimine lesae majestatis non putatem esse puniendum paena mortis subditum qui non revelaveret And that he counsels Princes even in these cases to use clemency and humanity rather then severity and to execuâ—e their Subjects upon any probable cause from the pain of death Whence 3. It is alledged even according to Clarus his opinion concealing not releivant to inferre the pain of death except where the concealer has been conscious to and heard some treaty that is deliberate consultation against the Prince or his Estate But so it is the words libelled especially what is alledged to have been heard in Parliament 1649. seems not to import that being as would appear but volitantia verba if any such thing had been heard which the Defender absolutely denies and importing indeed the authour Cromwels thought or opinion that there would be troubles still so long as his Majesty horrendum dictum were not put to death But Clarus lib. 5. prax crim F. fin num 87. distinguishing betwixt cogitationem nudam a naked thought and tradatum or a treaty or consulting he affirms that a naked or sole thought is not punishable in any crime no not in Lese Majesty except only heresie when guilt is perfected in the mind And thereafter num 2. he moves the question Sed pone quis non steterit in meris terminis cogitationis sed ulterius etiam processerit ad tractatum cum aliquo de ipso maleficio committendo But sayes he put the case that any has not contained himself within the bounds of a thought but has proceeded further to treat with any for committing the crime