and his desire to have come and lived in Scotland till all differences in both Kingdoms had been setled an act of Parliament was made for abandoning his Majesty to the mercy of his inveterate enemies the said army of Sectaries It is answered that as he must continually acknowledge the late King and his present Majesties acts of favour honour and trust so must be still deny as he safly may in the presence of God who is the searcher of all hearts and of all men that he never intertained any dis-loyall thought or contrived any treasonable plot or machination against the sacred persons dignity or authority of his late soveraign or of his present most sacred Majesty and therefore with a clear conscience may answer this dittay 1. That the same is not special not clear but very obscure and general how and in what manner he was chief Ringleader of any factious partie 2. Who that factious partie were nor 3. By what deeds and how he swayed the state of affairs nor 4. These means by which and upon whom the procured his influence to prevail 5. The alledged offers made by his Majesty are not exprest And therefore the said articles are altogether general and inept 2. The act of Parliament which the defender is alledged to have procured to have been made is not produced no indicat by number or Rubrick nor does the Defender know any act of the tenour and title lybelled And the Defender in humidity conceives that it is not consistent with the act libelled on in the opposition of the Dittay discharging persons to impugn the authority of the Estates of Parliament to term the members thereof especially in making an act which being carried by plurality of voices as the deed on the whole and specially such an act as is mentioned in the Libel where there were none or very few of a contrary judgement A factious party 13. The cause of the first member of the said eight Article anent the pretended act of Parliament as is libelled for abandoning and leaving his Majestie to the disposal and mercy of his enemies the Sectarian Army does debond from the Acts of Parliament as clearly appears and can be subsumed on under none of the Acts of Parliament libelled For if the tenth Act of Parliament 1647. be understood and meaned as the Act libelled that being an Act of Parliament the Defender humbly alledges That an Act of an acknowledged lawful Parliament should be made a crime of accession whereunto a Member of Parliament shall be indicted especially for so high a crime as Treason is without ground of Law of practice and is hoped the honorable Parliament will no ways sustain it and therefore that he needs say no more now in confirmation hereof 14. Likewise all that is in that Act and substance thereof being the Estates of Parliament there declaring their concurrence for His Majesties going to Homeby-house or some other of his Houses in and about London and that expresly to satisfie the desire both of His Majestie himself and of His two Houses of Parliament in England And there to remain not under the power of Sectaries but with such attendance about him as both Houses should think fit to appoint with respect also had to the safety and preservation of his Royal Person And the Estates therein do also declare against all harm and prejudice violence or injury to be done to the same as indeed it was horrid to think that any on earth should have done or prejudice to His Majesties Posterity But thereafter it is clear from the fourth and seventh Acts of the Parliament 1648. that the Sectarian Army disobeyed and threatened the Houses of Parliament imprisoned and banished faithful Members and by a sudden surprizing violently seized upon the Person of the Kings Majestie carried Him from His House at Homeby against His own will and declared Resolutions of both Kingdoms and kept him under their guards till at length by their Power and Prevalency He was committed and kept close Prisoner at the Isle of Wight this being the true case out of the express words of the Acts before cited As to that Declaration Act. 10. Parl. 1647. The Defender alledges 1. The Act bears express That it was to satisfie His Majesties own desire 2. That it is homologat and approven by the Parliament 1648. in so far as by their fourth Act institulate Anext their Resolutions concerning the breaches of Covenant and Treaties betwixt the Kingdom of Scotland and England and demands for reparation thereof findes the violent seising on his Sacred Majesties Person and taking Him away from Homeby-house as appears by Act 7. by that Army against the resolutions of both Kingdoms a breach And amongst the Reparations they desire expresly that conform to the former desires of this Kingdom the Kings Majestie may come with Honour Freedom and Safety to some of his Houses in or near London that the Parliaments of both Kingdoms may make applications to him And in their seventh Act intituled A Declaration of the Parliament of Scotland to all His Majesties good Subjects of this Kingdom concerning their resolutions for Religion King and Kingdom c. After they declare That violent seizing on His Majesties Person and carrying Him away by that Army against the resolutions of both Kingdoms so be a breach And they declare they intend to send to the two Houses of the Parliament of England the Desires following which they call Necessary and just Desires for Religion His Majesties good and Peace of these Kingdoms whereof this is one That conform to the former desires of this Kingdom The Kings Majestie may come with Honor Freedom and Safety to some of His Houses in or near London and declares that thereafter they will endeavour it and Act 8. in their desires to both Houses Parliament in England the same desire is repeated Conform to the former desires of this Kingdom By all which it is clear That the seizing upon His Sacred Majesties Person was the violent deed of that wicked-Army done with a violent surprisal against the declared resolutions of both Kingdoms And that His Majesties coming to some of His Houses in or about London where both Kingdoms might make applications to Him conform to His Kingdoms desire which is that wherein the the Estates declares their concurrence with His Majestie and both Houses of Parliament in Englands desire in the said tenth Act is approven as a just and necessary desire for His Majestie and accordingly enacted among that Parliament 1648. their desires to the said Houses and declare it should be endeavoured if refused so highly is it approven by the said Parliament In respect whereof specially of the standing Acts of Parliaments 1648. the Defender humbly craves That albeit the Article was relievantly distinctly and clearly libelled and subsumed on some of the Acts of Parliament in the Proposition condescended on as he humbly conceives is not yet he ought to be assolized therefrom And for further clearing
6. relates in the pain thereof is only the pain of escheat of Moveables because the pain of forfeiting of life lands and goods is the proper pain of the câ—imes that by our Laws are declared Treason And therefore Skâ—â—â— both in his Index of the acts of Parliament on the word Treason refers the crimes that are so punishable to the head of Treason as also in his Tract upon crimes in the end of Reg. Maj. But doth not at all mention therein the crime of the said 43 act Parl. 2. Iac. 1. nor of the 134. act Parl. 8. Iac. 6. nor of the other acts whereupon this part of the proposition is founded But in his Index hes the crime of leasing making between the King and his people under a head by it self and therein expresly mentions both the said 43. act Iac. 1. and 134 act Iac. 6. like as in the said Tractâ—â— of â—rimes after the Chapters of Treason and points thereof cap. 1. and pain of the same which cap. 2. he expresly sayes is the tinsel of life lands and goods and declares that he understands by goods moveable goods and anent the process and Judge of the crime of Treason cap. 3. when he comes to other 〈◊〉 capital of all which the pains are either the â—inseâ— of life and moveable goods or life only or of some less pain in body or goods but never of life lands and goods as is clear thorow the whole tract at that folâ—ows And in his 12 cap. anent the crime of falsit 〈◊〉 the crime of leasing making between the King and his people And the same acts of Parliament viz. act 43. Parl. 2. Iac. 1. And the 205 act Parl. 14. Iac. 6. and in his 25. cap. hes the crime of infamous and seditious Lybels And the said 10 act 10. Parl. K. Iac. 6. cited therefore Item In the last two acts of Parliament whereupon the proposition of the Dittay is founded viz. the 37. act â—2 Parl. Iac. 1 and 144 act Parl. 12. Iac. 6. It is lybelled That all Recepters Suppliees or Intercomoners with any Trators are punishable by forfeituâ—e as the Traitors themselves which is not as the act bears for both the crime and pain lybelled out of the said 144 act 12 Parl. Iac. 6. The act is not simply against those who intercomon with traitors and rebels but with such as are declared rebels and traitors from all which it follows that the proposition of the lybel is founded upon the acts as they are lybeâ—led is not relevant And therefore the Defender ought to be assoliezed in hoc libello Tertio As to the last part of the proposition of the Dittay the Defender abhors so much the crime therein mentioned that he thinks any person who will conceal any malicious purpose wronging in the least far more in putting violent hand in the inviolable sacred person of his Soveraign Lord were unworthy to breath in common air let alone to be defended And is so conscious to himself of his own innocence in any 〈◊〉 things that he needs no other defence but the confident denial of any guiltiness therein either less or more but before a practique pass in this honourable Couâ—â— of Parliament of founding a dittay of Treason upon common Law and Practise It is under protest◠〈◊〉 on foresaid and with all humility alledged against the relevancy of that part of the proposition as founded upon the said common Law and practise That it is not relevantly founded thereon in so far as by the 28 act Parl. 1640. it is expresly found and declared Traitors but after tryal by the Parliament or Judges ordinary And finding that the said persons have contravened 〈◊〉 and act of Parliament made under the pain of treason and therefore a person cannot be declared guilty of treason on a dittay founded on common Law and practiseâ— 2. Poena being â—egis sarctio And the common Law is known with us to have only vim rationis 〈◊〉 lâ—gis and therefore no pain but especially the highest of pains can be sounded thereupon and 3. Specially as the practise beside the reason aforesaid because L. 1. â— 4. fad Senat. Consult Turpilianum facti quidem 〈◊〉 in 〈…〉 judicantis panae verâ— persecutio non 〈◊〉 volunâ—ati mandatur 〈◊〉 legis authorit 〈◊〉 asservatur whence Menochus lib 〈◊〉 Presumpt cap. 29. in principio saith expresly paena indici non potest nisi expresso jure sit cantum per l. at si quis divus fad Reli sumptibus funerium And it is the common opinion of the Doctors That ever when punishment is not expresly defind in the Law but is permitted arbitrio judicis It cannot be extended to death far less to the pain of Treason And the soresaid act of Parliament 28. act anno 1640. takes away the relevancy of founding treason upon common Law and practise as said is 4. If a dittay to infer the crime of treason might be founded on practise either of the justice Court or Parliament which are two courts before which crimes of treason are judged yet our practise is consuetudo rerum it a judicatarum as Craig defines it lib. 1. de feudis dig 8. and therefore to it as to the introducing of all other consuetudtes there must be Actuum frequentia reiterated acts and practices per l. de quibus ff de legibus Cart Iason and other Doctors on that Law et pâ—er l. 1. Cod. qua sit loâ—ga consuetudo L. in totum 3. c. de cres dif privat 2. illud explorandum An contradicto aliquo judicio sit firmata That is it would be tryed if decreits in foro contradictorio hath been given thereupon As also saith Craig dicta disg 8. in fine and if in any case that ought to be far more in crimes and if in crimes yet more in the highest of crimes And in all concernments of one of the most eminent Peers of the land which is clear for in matters civil how small soever before the session a practise will never be founded on some decreits given either for not compeirance or on compeirance where there is little or no dispute or it may be great inequality in Advocats of the two parties And if in civils where the interest is only pecuniary this ought to be much more in lybels of Treason as hath been said but so it is neither in Justice Court not Parliament will it be found that it hath been frequently judged and in foro contradictorio on and dispute where this defence hath been propounded Yea it may be well alledged that there can be no practise shewed of either of these Courts that any hath been found guilty of treason but on some act of Parliament under the pain of Treason as is said But however the said 28 act Parl. 1640 is most clear which is most agreeable to reason and the Law of England very laudable in that point as Cook hath it in his Chapter of Treason and therefore the lybel
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
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
not ordinary to say that if such times were as has been or such motives or circumstances of actions as has been that it is very like I would be engaged in them as well as others or as I have been my self And yet to say with great consistance I ought not so to doe like as truly it is known and if need be is offered to be proved that the Defender on the just contrary had said to one Counsellour of Cromwels and to many other famous Gentlemen that things had been done wherein he would have been very far from engaging in if he had seen what followed which was the product of the corruption of evill men that had abused what was well intended for accomplishing of their wicked ends and till they brake forth and could not be resisted unknown designes And the Defender hopes the sense aforesaid is very clear and even though it were not so obvious yet Rapienda est occasio quae benignus praebit responsum L Rapiend 168. F. de reg Iuris That is any occasion should be even rest as it were though there were some violence done to the words for a benign interpretation and therefore by all meanes that interpretation of the words that may seem to inferre a crime ought to be eschewed or if the word might be drawn to any other sense yet In dubiis benigniorâ— preferenda sunt as has been said in speeches dubious the most benign sense is to be preferred pret semp 56. F. de reg Juri or where words are obscure or may suffer two senses the parties own interpretation is to be taken as the best intepreter of his own mind Per ca quaeâ— ss 1. F. de reg Iuri And odia sunt restringenda favores ampleandâ— what is odious as that which may inferre a crime against any should be restricted and favour amplified and in generall the Judge is alwayes to be more enclined to absolve then condemn and so consequently take the sense that may absolve rather then that which may condemn Leg. Corianus F. de oblig 47. act 5. The Doctors say that voluntas propositum delinquentis distingunt facinora per legem expressam Leg. qui in Iur. 53. F. de furtis in prae That is the will and purpose of him that commits a crime distinguisheth it but velleitas or voluntas in essicax as it is called not a will but a would is no purpose to doe and can be the cause of no crime especially being about things past and qualified with an impossible condition if things already done were to doe which is altogether impossible that a deed done can return to have a new being and so to be done and even there is some presumption of that mistake may be in this from the very place libelled in which it is alledged to have been spoken it being such as it is not improbable that men may be very apt to fail both in judgement and memory and so both wrong themselves misconstrue others And as for the aggravations that follows that by speaking these words the Defender took upon him by outward success to give judgement upon the secret Counsell of the Almighty 1. As it is in nowise true that the Defender spoke any of the words libelled so this does as he humbly conceives in nowise follow upon the words immediately going before alledged spoken in Mastertounes viz that the Defender owned what he had owned or would doe the same if it were to doe for that is not any Judgement given of any hidden counsels of the Lords but in expression at most of his own actions And as for the words before these albeit he had been so presumptuous as to say them as he blessed the Lord he never was yet it is not libelled that any thing that is therein alledged to have been spoken either at Innerarrey or London was spoken or inferred from providence and success For the Defender blesses the Lord he has been otherwise taught then to use or rather to abuse so Turkish an Argument and which the Lord has by his Majesties happy restitution so signally refuâ—ed And as to the last Aggravation that the Defender thereby hardned others such as otherwise was ill disposed in their wicked courses towards his Majesty it is indeed a sad reflection upon others herein not called however 1. It is so general both as to these others and their courses that it cannot and the Defender hopes it shall have no weight especially considering that 2. The Defender oppones his defences of before alledged against all the members of this Article whereby it is clear that as they are libelled they can inferre no such thing in respect of all which the Defender ought to be assoilzied also from this Article of the ditty As to the last Article 1. It is not condiscended under which of the Acts of Parliament libelled on it is subsummed and till then it is ineptly libelled and there can be no process thereupon Moreover the Defender has the testimony of his own Conscience yea of an higher that nothing libelled therein is true albeit if he had said that the Usurpers hazard was great from his Majesty and if his Majesties designes took effect they were ruined the same were notour truths and it ought to have been so that is it ought to be it was good they were in hazard from his Majesties designes and it wâ—s most just that his Majesties designes should take effect to their ruine And what crime could be in so saying he cannot apprehend however he never spoke any such words to Cromwell or Ireton which Ireton he never saw with his eyes and did far more abhorre the least thought of giving counsell to challenge or question his late Majesty upon his precious Life and his Innocency shall rest confident absolutely to deny the same And as to the last part of this Article whereby it is libelled that in Anno 1649. in face of the Parliament then sitting he told that the Usurper Cromwell had told him that England and Scotland would never be at peace till the King were put to death The Defender adheres as to this part to the generall exception against all this Article That it is not condiscended under which of the Acts of Parliament libelled on it is subsummed till which be done there can be no process and if it be intended that it be subsummed under the 43 Act 2. p. Iam. 1. and the 134. Act Parl. 8. and 10. Act and 10. Par. and 205. Act. 14. Parl. K. Iam. 6. all these Acts as both by their titles and tenours and by Skeine in his Index on the words leasing makers appears and it seemes by their conjunction in this libell they are understood also therein of lying and slandering his Majesty and his Progenitors and the words libelled though very horrid yet seemes to be of another nature And 2. to that Act 205. P. 14. Jam. 6. whereon only anything can be subsummed against
statutes otherwayes then they bear were to found it upon such statutes we have not bot so it is in the proposition of this libel The Acts of Parliament where upon the same is founded are otherwise repeated than they bear for 1. The first part of the proposition of the Dittay founded upon the two first Acts of Parliament lybelled viz. the third Act of the 5. Parl. of King Iac. 1. And the first Act of King Iac. 6. doth upon the said acts conclude the pain of forfeiture and treason The same is most Irrelevant because in the said Acts there is no mention made of any crimes of the nature or quality libelled The said 3. Act of the 5. Parl. Iac. 1. being annent the fees of Craftsmen and the price of the work And the 1 Act of K. Iac. 6. being anent the constitution of the Earl of Murry Regent and in neither of the said Acts is there any pain or punishment inserted and so far less can the pain of forfeiture or treason be from the said Acts concluded against the defender and if it should be said That the 5. Parl. of K. Iac. 1. is mistaken in the wryting for the first Parl. And in citing the first Act of K. Ia. 6. the citation of the number of the Parl. is also omitted viz. the number 18. The Dittay repeats these two acts other wayes then they bear for the words of the said 3. Act of the 1. Parl. being Iac. 1. statutes and ordains That no man openly or notoriously rebel against the Kings person under the pain and forfeiting of life lands and goods which is not at all in the Lybel repeated And as to the said 1. Act of the 18. Parl. being Iac. 6. The words thereof are cited yet with some difference and transposition lybelled but thereto is added the sanction and pain That whosoever doth in the contrary they are to be punished as Traitors and to forfeit their life lands and goods whereas there is no sanction or pain in the said Act only it is declarative of his Majesties prerogative and of his three Estates to maintain the same Item In the second part of the proposition of the Dittay founded upon the 25. Act of the 6. Parl. being Iac. 2. and the 75. Act. 9. Parl. Q. M. Is not repeated as it bears as to punishment for therein they who attempt to do or raise any bands of men of War Horse or Foot without any specialâ— licence of his Majesty and his Successors are only declared punishable by death whereas they are lybelled to be punishable as Traitors while it is the pain only of the said 25. Act. Parl. 6. Iac. 2. Item In the next Parl. of the proposition of the Dittay founded upon the 43. Act. 2 Parl. Iac. 1. and the 134. Act of the 8. Parl. and 10 Act. 10. Parl. and the 205. Act. 14. Parl. of King Iac. 6. None of these Acts are repeated as they bear but confounded both as to the crimes and pains therein contained to a very far different sense as is humbly conceived from that which the said acts severally propose Transferring the pains of the said several acts and crimes therein contained from one to another as may appear by what follows for the first of these Acts being the 43. Act Parl. 2 Iac. 1. Is only of leasing Makers and Tellers of them which may engender strife between the King and his people and the pain of the Act is tinsel of life and goods to the King as is clear both by the title and body of the act The second act viz. the 134 act 8. Parl. K. Iac. 6. is also the same crime viz. against those that utter false slanderous and untrue speeches to the disdain reproach or contempt of his Majesty his councel or proceedings or to the dishonour of his Majesties parents and progenitors adding also those meddle in the affairs of his Majesty and his Estates and the pain is the pain contained in the acts of Parliament made against Leasing Makers and the Tellers of them The 3. is the 10. Act. 10. Parl K. Iac. 6. Is against thâ—â—e who speak or write any purpose of reproach or slander against his Majesty Person Estates or Government or depraves his Lawes or acts of Parliament or misconstrues his Majesties proceedings whereby any mis-believing may be moved behind his Majestie and Nobility and his loving Subjects And the pain thereof is only the pain of death And by the 205. Act 14 Parl. Iac. 6. These that hears the said words leasings and doth not apprehend and reveal the Authors thereof shall incur the like punishment with the principal offenders and yet leasing making and telling which is the crime punishable be the first of these Acts viz. 43. act Parl. 2. Iac. 1. Is punishable be the loss of life and goods to the King is omitted and false slanders which is the crime contained in the 134 act Parl. 8. Iac. 6. And only speaking to the dishonour of his Majesty Parents and Progenitors and medling with the affairs of his Highness Estate is repeated out of the said Act 134. and joyned to the crime contained in the said Acts 10. Parl. 10. Iac. 6. and to both the pains added of loosing life lands and goods whereas the pain of the said act 10. is only of death and the pain of the said 134. Parl. 8. Iac. 6. Is only the pain contained in the Acts against leasing Makers which in the said 43 act Parl. 2. Iac. 1. Is only the loss of life and goods and not of life lands and goods but all annerly the Escheates of goods moveables as may appear First Because whenever the pain of tinsel of life and goods is found either in the Acts of Parliament or old Lawes goods are understood moveable as is clear from the crimes that are ordained to be so punished as Manslaughter Be the 42. stat Robert 3. Is prohibited under the pain of tinsel of life and goods where Skein explains that these goods are to be understood of Moveables And be the Act 90. Parl. 6. Iac. 1. The receipt of him who is fugitive for slaughter is forbidden under the pain of tinsell of life and goods Where Skein expounds goods to be goods moveable in his Tractar of Crimes tit 2. cap. 6. Parl. 4. And so it is clear in the other acts of Parliament that their whole pains are distinct viz. Tinsel of life and goods alike is only extended to moveables and tinsel of life lands and goods which latter pain in the stile of our acts of Parliament is commonly thus expressed That he who incurs it shall die and forfeit life lands and goods as the 31. Act Parl. 7. Iac. 2 passim alibi forfeiture properly relating to lands and in the common signification of our said goods to be understood of goods moveable Secundo More specially it may appear that the pain of the said 43. act Parl. 2. Iac. 1. given to the said 134. act Parl. 8. Iac.
as founded on practise is no wayes relevant and the defender ought to be assoilzed therefrom Quarto Every Lybel both of civil Law and our Law ought to be clear distinct and special but especially criminal lybels because of the great importance of them ought to be most clear distinct and special jure libellus in criminalibus debet esse clarissimus saith Dam. haud prax crim 3. num 3. And therefore Libellus Criminalis obscurus parte etiam non excipiente extenditur favore rei Baldus in lege addita num 10. c. de edendo Alex. Consil. 72. col versit licet volum 1. hip Consil. 49. Battander prax Cran. Reg. 6. s. 3. 4. nec enim debet accusator cum existimationis alienae jactura discrimine vagari licet L. â—i in rem ff de rei unum so that any obscure criminal lybel is inept and the defender ought to be assoilzed therefrae though he did not oppone his defence for that effect but so it is this dittay is most unclear and undistinct in so far as in the proposition of the dittay there are many acts of Parliament libel led on being statutes annent diverse crimes of very different natures and inferring different punishments according to the article of the crimes and in the subsumption the panel is indyted for several crimes alledged committed by him contrary to the said Lawes and acts of Parliament in general without condescending on the particular acts of Parliament that the pannel has contravened by committing the particular deeds lybelled and so leaving him to great uncertainty whereas in all Law reason and form of process the defender ought to be certified what acts and Laws he has contravened by committing such deeds that is in a multiplicity of crimes after proposing all the statutes relating to the same crimes all the deeds immediatly ought to be subsumed falling under the compass of such statutes and thereafter the acts relating to another indifferent crime ought to be proposed and the deeds falling under the compass of these acts immediatly subsumzed and throughout the libell which is no way done here but first by many different acts accumulat together in the proposition and then the most different facts accummulate together indistinctly in the subsupmtion Not condesending on the Acts by them contravened and therefrae the libel is in apt and the defender ought to be assoyled their from This defence is further confirmed in law 2. Because a libell being 〈…〉 quidem practicus jason and the 〈…〉 de act in criminal dittays the proposition consist iâ—jâ—re constitutionis in the Laws whereupon the libel is founded The manner is in the subsumption of the facts or â—rims under these laws and the conclusion inferring the paine Because of such a crime as falling under the law libelled on a very essentiall part of every libel is quo jure petatur a libel being incertain in this is unclear and uncertain in a very essentiall point and in apt 3. In law a libell ought so to be conceived as the defender may know aictoms spiciem otherwise it is in apt l. f. de edendo l. 3. c. eodem And may also know actionis jus and that he may deliberat how to defend but in our cases that arises from the distinct application of the lawes to the facts ex quibus jus oitur 4. If such uncertain libel were admitted the defender because of the obscurity and uncertainty of the libell should be prejudged of an certain defence he could make against the relevancy of the same because the relevancy of it consists in the subsumption of the facts and crimes libelled under some certain law which being condescended on be a distinct subsumption under each law of the crimes that were libelled properly to fall under the same The defender would alledge why such crimes cannot be subsumed revelantly under such laws and acts which the otherwise cannot do in such multiplicity both of different acts and crimes as are libeled in this duty There being not only in diverse articles but even in on article a great diversity of the crimes therin libelled and yet the defender left in uncertainty under which of all the acts libelled on The persewer intents the subsumption thereof and so in uncertainty altogether how to conceive this desense and if this be not maxime vagari cum maximo alienae vitae et fortunarum periculo It is hoped as it will be found very evident so it was never the practise heretofore used in criminall libels and which that it should not be now sustained is of universal concernment and if sustain'd might prove of very dangerous consequence and the libell as it is now conceived is in apt and the defender ought to be assoyled therfrom BEfore the defender come to his particular answer to the several articles of the ditay to the effect the defender his case in his accession to the publike actings of this kingdome during the unhappy â—roubles till the treaty at Breda and his Majestys home coming may be truly stated It is humbly craved that the commissioners grace and honourable estates of Parliament may be pleased to remember that the Kirk and whole body of this Kingdome entred at first in the nationall covenant for defence of religion and his Majestys person and authority and mutual defence one of another in maintaining the same wherein and in what followed in prosecuâ—ion thereof til the treaty with his late majesty and act of oblivion set dwon at length and â—atiâ—â—ed in the 6 act of the 2 Paliament anno 1641. His late Majesty did so far acknowledge and approve their loyalty that in the seventh article of the said large treaty his Majesty was pleased to appoint that at the close of that traty their said loyalty should he made known at the time of publick thansgiving in all places particularly in the Parish churches of his Majestyes dominions And in the said act of pacification and oblivion is pleased to declare that their constant loyalty in their intentions and proceedings should not be hereafter called in question and that whatsoever fell forth in those tumultuous times whether prejudicall to his Majestyes honour and authority to the Laws and liberty of the Church or the particular interest of the subject might be buried in perpetuall oblivion and whatever had ensewed thereon no mention should be made thereof in judgement or outwith like as his Majesty for himselfe and his successor's promises in verbo principis never to come in contrary of the said statute nor anything therein conteined but to hold the same firme and stable and to cause it be truly observed and these presents to have the full force and strength of a perfect and true security like as thereafter in anno 1643. The league and covenant was entred in with the two houses of Parliament upon the ground of the large treaty by the church and whole body of this Kingdome proporting the same ends of the covenant
for maintenance of religion King Kingdome which was thereafter approved by the Partia 1644. And fift act thereof and prosecute by wars both within and without the Kingdome by the authority of divers succeding Parliament's Church and state going unanimously along together without any apparent publicke difference till the year 1648. And even then that Parliamâ—nt 1648. so highly homologate the said league and covenant that they declare the breaches thereof to be the grounds of their resolutions of that Warre act 4. 7. and 8. And their desires for preventing thereof to be the fulfilling of the same Ibidem The necessary qualification required in all with whom they would joyne either in their armies or committies is that they be such who were of known faithfullnesse to the cause and covenant in the said act 7. and that they would oppose and endeavour to suppresse the enemies to the cause and covenant on hands all Ibidem Witnessing to the world that they â—werved not from the principles conteined in the nationall covenant and league and covenant and that they resolved closly and constantly to adhere there unto and to all the ends thereof So that at that time there was still no difference as to the cause and covenant any difference being only in the manner and not in the matter of that engagement Thereafter what straits this poor Kingdome was redacted to be the defeat of that engagement and how unable it was to make resistance to that English army who in prosecution of their victory came to the borders entred the same is noture to all wherewith the whole Kingdome being surprized with amazement and in evident hazard it was hard in that juncture of affairs to resolve upon any course for preventing the same or rather incumbate hazard of the Kingdome Whereupon a quorum of the committed of estates appoynted by the said Parliament 1648 were necessitated to take upon them the managing of affairs and to see for conditions of peace not being able to resist by force the flowre and strength of the Nation being broke by the said defeat and to accept the same upon the easiest termes that could be had for the time which as it was endeavoured upon no other intention or for any other end but that which they were constrained to by inevitable necessity So at that time it was generally lookt upon as good service and which at that time was most necessary to evite very great and otherwise inevitable evils being either necessitat'd to condensenâ— to their demands at that time or otherwise to have delivered the persons of all that did prosecute the said engagements according to the obleasment of the large treaty together with the forts and strength of the Kingdome The succeeding Pâ—rliament for the time in the year 1649. after Proclamation of his present Majesty did send commissioners to Holland and afterwwds according to his Majestys desire to Breda where there was a treaty concluded by his sacred Majesty Wherein he was graciously pleased to approve of the said Parliament in anno 1644. and remanner Parliaments and their proceedings from the year 1641 preceding the said treaty which was thereafter ratified by his sacred Mâ—jesty and his Parliament at Pearth and Starlin and after the royall example of his ever glorious father an act of oblivion was indulged whereby all that might be ground of question was buried in oblivione and pardoned by a general act of oblivion in a most full and ample form This being the state of publick affairs during the time foresaid albeit by the first ten articles of the dittay The deffender is charged with deeds and publick actings coming within the compass of the said approbation and oblivion foresaid yet such firme relyance hath he of his Majesty presisting in his gracious clemency which does in his royall heart so much abound That albeit his Majesty by his Proclamation Dadet the 12. Of October 1660. Is pleased graciously to declare that he has remitted to his Parliament the tryall of the carriage of his subjects in Scotland during the late troubles That the late troubles has only respect to the tyme during the usurpers possession and that tryall should be taken during that time of the subjects carriage The defender in all humility conceiving that it is no wayes to be supposed that his gracious Majesty did therebey intend to rip up or revive or to institute any new tryall of old offences forgotten and forgiven as said is especially seeing it is not to be supposed that the bowells of his mercyes should be so straitned to this his ancient Kingdome to which he has upon all occasions given so many signall and recent testimonies of his superabundant favour then they are and have been to his Subjects of his other dominions to whom according to his Majesties declarations he hath granted a full and free pardon from which few and these only the unpardonable murderers of his royal father are excluded for whom or any guilty thereof no punishment can be sufficient and therefore the defender in all humility conceives the said articles though libelled are not to be insisted on The solemnity of the oaths both of Covenant and League will be as the defender hopes pregnant presumptions to put and end all controversie anent the sincerity of his as of the Church and Kingdome their loyal intentions for the maintenance of the person and authority of our dread Soveraign whereunto they were thereby so religiously ingaged and the constant tenor of his acting still by vertue of publick Orders and Warrants of Parliament and their commitâ—ees wherein his faithfulness in the execution was also in the like manner approved will witness that what he did was not for any private interest but for the publich ends where unto he conceived himself ingaged in manner foresaid nor was the Defender for continuing of these unnatural civill discords as he did witnesse by his inclination to unaccommodation with Montross in the year 1645. mentioned after in answer to the tenth article which albeit fully agreed to betwixt him and the defender yet he could not obtain the commitees approbation thereof which is in evidence that the defender had not the chief sway of affaires and was alwayes inclinable to peace religion being secured like as the carrying on the ingagement in the year 1648. though the defender differed in his judgement as to the way and manner upon the grounds and reasons thereafter exprest in answer to the ninth Articles does clearly evince that he had not the chief sway in publict actings and what power and interest he had in the year 1649. he did faithfully according to his bond duty improve the same for removing these differences betwixt his Majesty and his subjects wherein he was pationately earnest as shall be made appear in answer to the said tenth article and after his Majesties hom-coming and during his being in this Kingdom and thereafter till the enemy had fully prevailed and that by his articles of agreement
he was there prisoner he faithfully served his majesty and even during his Majestyes absence did alwayes and still shall return loyall duty and good affection to his person government and posterity And what ever these who are grown up may judge who only see the unhappy and accidentall events that are the effects of the corruption of men but have not known the counsells and causes which are the two parts of these things necessary to be known to all who would judge of human actions arright events being for the most part uncertain and the worst of events of tyms thorow the corruption of agents or others extrinsecal circumstances following upon the best of actions yet had they been intimately acquainted with the grounds and causes nature of the actings while a doing the defender is confident that they would have concurred and been of the same judgment as being clear that these proceedings had no native connexition with the sad and unexpected consequences that has ensewed And now to come to the particular defences to the several points of the subsumption of the Dittay And first as to the first article of the subsumption annent the words alledged spoken at the Ford of Lyon which are lybelled to have been That it was the opinion and judgement of many Lawyers and Divines that a King might be deposit for desertion vendition or invasion and which is alledged to have been meaned by the pannel of the then Kings Majesty and the presumptions adducit for inforcing that to have been the defenders meaning are some words allegit subjoyned to wit Mr. Iohn you understand Latin It is alledgit for the defender no wayes acknowledging to the best of his memory that he uttered any such words 1. all criminal dittayes should contain in them at least year moneth and place otherwise they are inept Bartol D. D. ad L. libellorum ff de Accusatione because amongst other reasons diversitas loci varia argueret facinora saith Battand Reg. 6. prax cum post angel c. But so it is there is no moneth condescended on when the defender should have spoken these words and therefore the dittay in this article is inept 2. There is no particular act of Parliament in the act libellit upon in the proposition condescendit on which is contravened by the words libellit therefore the libel in this article of the subsumption is general and obscure and till the particular Law contravenâ—d be condescendit one can receive no answer 3. The speaches as they are libellit falls not under the compass of the acts libellit on in the proposition of the lybel to infer any of the pains therein contained because they are but libellit as the narration of the opinion of others which is not relevant to infer so much that the Narrator is of the same opinion except it were also libellit that he did declare his homologation and that he was of the same judgement which neither is nor can be libellit far les then is it relevant to infer a crime and so high a crime as Treason for suppone the defender had said That they are very learned both Divines and Lawyers whose opinion it is that the Pope is the head of the Church and that he has power to dispense with the article of faith to depose Kings a horrid opinion c. and that it is their opinion also we may merit heaven by good works and that all Hugonites or Protestants are damnable hereâ—ticks and that he had related their words in latin as the latin of of that verse of the gloss of the common Law cap. sicut de excess praelat Restituit papa salus deponit c. articulus solvit And had said to Mr. John Stewart thereupon Mr. John you understand Latin albeit these opinions of these Divines and Lawyers be execâ—ably Heretick yet no body will say that the defenders relation of him would have inferred him to have been guilty of the same No more in our case can the relation libellit infer him to have been of that opinion with these Divines and Lawyers or in any way thereby to have contravened any act of Parliament libelled 2. The foresaid opinion is libellit only to have been related in abstracto nothing of our Kings Majesty who then was And whereas it is libellit that it appears the sence and meaning thereof appeared to have been of the then Kings Majesty in so far as the defender subjoyned to Mr. Iohn Stewart the words aforesaid that he understood latin 1. The libel in this part is ambiguous for this may be interpret either that it was the meaning of the opinion of these Divines which he related this seems to be most consonant to the words or els that his own meaning was That it was the judgement that the then Kings Majesty our Soveraign might be so dealt with as is libelled in the latter part of his article and so the Article in this part thereof is ambiguous and inept and there ought to be no process thereupon Nam Libèllus in criminalibus praesertim nihil ambiguitatis vel obscuritatis continere debet per cap. Constitut. 6. extr derig don Bot. 3. If it be understood in the former sence it is but still relative of the opinion others and if in this latter sence to wit that it was his own judgement the presumption libelled of what he spake to Mr. Iohn Stewart is no way relevant to infer it 1. Because they held a more obvious meaning viz. That it might have been the opinion of these Divines and Lawyers was related in latin and indeed Grotius and Berclaius who write of that Subject are both in latin and that he had subjoyned to Mr. Iohn Stewart Mr. Iohn ye understand latin 2. That such opinions being rather the fancy of notional Schoolmen otherwise not unlearned in their own art or of such as are Doctors notionals in the Law if there be any of such opinions rather then of solid jurisconâ—ult who for most do not so much as move these questions not to be moved 3. If any such words had been spoken to Mr. Iohn Stewart They might have had this more proverbial sense Some Lawyers and Divines are of that opinion but the subtilty of these questions or opinions is latin to me that is I understand it not as we say commonly of things we understand not It is latin to me But Mr. Iohn ye are a Schollar and ye understand it Now it is a rule in Law that where the meaning is doubtfull or obscure that which is the most favourable sence should be followed L. 9. ff de reg juris and Matheus de afflictis decisione 265. n. 68. 69. decis 307. n. 15. and when these words are ambiguous The declaration of him who uttered them should be acquiessed unto Mâ—norchius consilio 197. And the defender is ready to declare that if ever he had spoken such words he was very far from any such meaning as
is libelled against him Nor 4. is it any way presumable that any rational man who had the honour to know his late Majesty could have made application of any of these three causes to so worthy and illustrious a Prince seeing the said Grotius Berclay and others that writs upon that subject acknowledges yea it is obvious to common sense that hardly can they fall out in the worst of Princes if he be but compos mentis and as to the presumption that follows that the defender meaned by the late Kings Majesty because the condition wherein the kingdom was for the time 1. It is far more presumable that the kingdom was in such a condition of affection to his Majesties sacred person and authority at that time none dâ—rst have uttered what might reflect thereupon seeing it is libellit to have been shortly after the subscribing of the Covenant wherein they had solemly bound themselves by the oath of God to maintain his Majesties person and authority 2. His Majesty by his royal judgement in the act of oblivion 1641. hes presumed the loyalty of his Subjects both in their intentions and proceedings in these times which is presumptio juris de pre As for the defender his prosecuting of Mr. John Stewart 1. It was a judicial process and legal Act and so can be no imputation to him wherein the process was laid in so fair a course of Law That he was condemned not only upon clar probation but his own confession and yet the words whereupon he was indyted and convict were far different from these words as they are here libelled otherwise the defender would never have pursued it Ultimo adhering alwayes to the alledgance above propounded humbly protesting that they may be first discust and whereupon it is craved he may be assoyled in 〈◊〉 libello because by act of Parliament in anno 1641. amongst the imprinted act anno 70. The same service is appoved and he exonered It is alledged that the defender ought to be assoyled from the whole crimes in the first article because after the tyme libelled of the alledged committing of the same his late Majesty of glorious memory granted that never to be forgotten act of indemnity and oblivion in anno 1641. Which did proceed upon the preceeding treaty with his Majesty and which is solemnly confirmed by his Majesty himselfe in person and his three estates in his Parliament 1641. 6. act thereof wherein his Majesty for himself and his successours does promise in verbo principis never to come in the contrary of that statute and sanction or any thing therein contained 2. But to hold the same in all points firme and stable yea and to cause it to be truly observed be all his Majesties leiges for ever hereupon the defender doth confidently rely for all than is libelled as committed by him in this article or any other preceeding that time as being confident it is the greatest imaginable security that he and the rest of the leiges of the land who are conceived can have As to the second article and haill head thereof 1. neither day moneth nor year of God are condiscended on and therefore so generall that is inept Nam generalitas parit obscuritatem Marent part 6. spec de libel oblat quomoâ—o Concip per textus ibi citatos 2. It is not condescended which of the acts of Parliament libelled this article and the several heads thereof contraveins which is a general ineptitude and nullity in this libel 3. As to the first point if that article annent the intaking of the house of Airlie cuting and destroying the planting and demolishing the houses 1. It is not relevantly libelled in so far as it was libelled that the house was kept for his Majesties service but doth not condescend that service now 2. Is it libelled that there was any in it that had a commission from his Majesty without which it hes not any colour of relevance 4. The defender never had any privat quarrel nor parsonal prejudice against the noble Lord James Earl of Airlie But if his marching to that house be meaned of that which was in anno 1640. it was by vertue of and in obedience to a commission put upon him by the Committe of Estates for the time nor was the said house at his arrival thereat kept for his Majesties service as is though wrongfully libelled But before that time was surrendred to the Earl of Montros who had put Colonel Sibbald to keep the same for the King and Countries use and which Colonel Sibbald upon sight of the defender his commission did abandon the said house and if there was any planting cut it was 〈◊〉 some few shrubs and bushes which the defender could not hinder for hurting to the soldiery and tho the defenders commission bare power and warrant to demolish the house he was so far from stretching or fully executing the same that he did not only slight the house and delayed a long time to do the same in expectation that the Lord Ogilby should have procured a countermand from the committee and did slight it till he was past all hope of obtaining the same not as is hoped will be acknowledged by the said Noble Earl neither did so far as the defender knew or could hinder the Earle his friends and followers sustaine any other prejudice then what was usuall and what all places are ordinanarily obnoxions to where armies or parties of souldiers come but however it is not relevant as said is Tertio That part of the said article though it were true as it is not is no ways relevant to infer the conclusion of the dittay here being no law nor statute libellit on that for cutting â—f timber or demolishing the houses of private persons though done upon private quarrels as this was not inferres â—he pain of treason As to that part of the article annent the burning of the house of Forther beside the exceptions against both the points thereof alledgit before in the beginning it is not relevant to say that the defender seised there upon to infer any crime except it were libelled he seised by force for he might have entred in vacuam possessionem 2 Non relevant to libell that those under him did seise thereupon or raise fire therein except it were libelled that the defender had given expresse order or wanrrand to raise that wilfull fire who as he gave not order therefore so he was not present not near the place not knew any thing thereof till after the house was burnt noxia caput sequitur 3. In the acts of Parliament libelliton annent burning and wilfull fire-raising the same can only be understood of burning and raising of fire on private feuds and for particular revenge in time of peace and is not to be extendit to such deeds done in the heat and fury of wars seeing inter arma silent leges And as to the aggravation of the defenders hatred against the
deeds which are the members of this article viz. The calling the foresaid convention of Estates as being the act of the foresaid Council and Commissioners the entring in the League and Covenant raising of the army for assisting the two houses of Parliament of England imposing excise c. as all being acts of the said Convention of Estates together with the same Convention of Estates are all approven by the said 5 act Parl. 16â—4 In respect whereof the Defender ought to be assoyled from this whole article and all the crimes contained therein 5. Not only is the said calling of the said convention of Estates and the said convention entring in the League and Covenant imposing of excise raising of forces for the Parliament of England and remanent acts of the said Convention approven by the said 5. act of Parl. 1644. But by his Majesties Treaty at Breda and the act of Oblivion in the Parl. holden at St. Jonston and Sterlin in anno 1650 and 1651 or either of them all things done during these tumultuous times intervening betwixt the said act of oblivion 1641. and his Majesties home-coming 1650. Whether prejudicial to his Majesties honour and authority or to the Laws and liberties of the Church and Kingdom or to the particular interest of the subject are buried in perpetual oblivion And by the said Treaty and act of ratification of the said Parliament or one or other of them the said Parliament 1644. and all acts thereof are ratified and so amongst the rest this which is the 5. act which approves all the acts thereupon this fourth article of the Dittay is founded and therefore the Defender ought to be assoyled therefra As to the fifth article anent the burning of the house of Menstrie in anno 1645. The defender is so innocent thereof that if it were libellit relevantly he needed no other defence buâ— a simple denyal but the truth is that it hath been burnt by some of the soldiers commanded by General Major Bailie for the time upon the greatest provocations that could be two peroches viz. Muckart and Doller having been burnt the night before and severals both men women and children cruelly killed by the concurse of these that were in that house but it is no way relevantly libellit in so far as it is libelled That the Defender or others under his command burnt it 1. Because there is no act of Parliament of all the acts libellit upon in the proposition whereupon this can be subsumed especially the acts anent the raising of fire upon which if upon any it seems it is particularly founded there is no such odd extension of that so high a crime as to make any guilty of it by committing of it by others who are under their command and this were a very universal terrible concernment and in the present case were most dangerous and unjust that a Commander should be holden to answer for all the illegall deeds done by his soldiers 2. It is against common reason the common Law by which this therefore is well established that delicta proprios tenent authores noxa caput sequitur and therefore it is not relevant that the defender burnt it by himself or others by his special direction or particular order for that effect 2. Though it were made relevant in manner foresaid yet the dittay is inept as to this Article and the defender ought yet to be assoyled therefra because the year of God is only libelled to wit the year 1645. whereas not only the moneth as in all criminal libels per L. libollorum ff de accusationibus and the Doctors treating thereupon But the very day ought to be condescendit on for the omission of the day prejudges the defender of his defence Specially of his alibi which he might and would propone if the day were condeseneded on that being required the day ought to be condescended on otherwise the libel is inept Nam Libellus debet continere non tantum annum mensem sed diem si reus'id requisserit cum probaturus suum alibi Dam. hand cap. 3. num 4. 5. battander reg 6. num 4. Maranta in spec del bel Obl. 3. num 12. per bark in L. Si quis reus Colum 3. in sin de publ judic jason in L. Ubitraria 2. Sect. Si quis â—xhisi ff de eo quod Crito loco But so it is as that if the day were condescended on of the said burning the Defender might and if need were would offer to prove that he was that day during all the time of the burning alibi at a codsiderable distance fra the same place 3. Absolvitor Because Leivtenant General Bailzie at that time when the house was burnt had the Command of the said forces adhering alwayes to the former defences against the aptitude and relevancy of this part of the dittay expressing the same that may be discust ante omnia In respect whereof the defender ought to be assoilzed ab hoc libello at least there can be no process upon that part of the dittay as it is now libelled 4. Albeit the defender had burnt or given direction only to burn the said house as he has not yet by special act and commission of Leiutennendry granted to him by the Parliament 1644. He was impowered to persew the Mc. Donalds and their adherents and accessories with all kind of hostility by fire and sword with a dispenâ—ation with slaughter Mutilations raisings of fire assailing of houses taking of prisoners and other inconvenments whatsoever that should fall out in the execution of that Commission in persuing of them as the said act and commission may at length bear and which commission is ratified by his Majesty in the Treaty at Breda in his ratification of that Session of Parliament 1644. among the other Parliaments and Sessions thereof ratified by his Majesty all after 1441. and preceeding his return but so it is That the said Mr. Donald were at that time at the burning of the said house joyned with Montroiss and it was in pursuance of both that the said house was burnt as is noture and if need be The defender will offer him to prove and therefore though he had burnt or given direction for the burning thereof he ought to be assoiled 5. By act of Parliament 30 act 22. March 1647. it is statute and ordained that all his Majestys good subjects shall be altogether freed and liberate in all time coming from being any wayes called convened pursued troubled or molested in judgment civill or criminall or outwith the same for any deed done or to be done by them against the persons lands or goods of such as have or shall be in the rebellion by which it is noture that the said armed opposition made by the deceased Marquess of Montrose and the said Mc. Donald and others under his command to the Estates is understood during the time of their being in the said rebellion or have been
or shall be guilty with the rebels in their wicked courses or of any of them who came under the first or second Classes of delinquents contained in the 5 act of the fith session of that Parliament holden at St. Andrews in the moneth of Jan. 1646. But so it is the Defender offers to prove if need be That a son of the Earl of Sterlings named Charles or John Alexander who had or either of them had right to Menstre had joyned with Montrose and those under him and so came under the second Class of the said fifth act of the fifth session Parliament 1646. Or at least went or sent into their ligor or without compulsion entertained them in the said house and therefore the defender ought not to be pursued even though he had burnt or given direction to burn the said house as he in no wayes did and being pursued ought to be assoiled from this article like as it is conjunction alledged for the defender in fortification of the said act That the same is ratified by his Majesties large Treaty at Breda as being one of the acts of that session of Parliament 1647. which amongst the other sessions of Parliament and acts thereof since the year 1641. and preceding his Majesties return in anno 1650. are ratified by the said Treaty as also by the act of Ratification at St. Johnstones or Sterling in annis 1650 1651. By which ratification or ratification of his Majesty by the Treaty aforesaid the said act of Parliament 30. in anno 1647. comes as a most solemn remission granted by his Majesty and whole Estates of Parliament to the persons therein contained and so like as if every one of them had got a particular remission so solemn It had been an uncontrovertable remission for what were therein contained so must it now be being in effect of the same nature and vertue albeit many be included in one 6. By the act of Oblivion at St. Iohnstones or Sterling in the year 1650 or 1651. all acts of hostility whether between the King and his Subject or between Subject and Subject and what things fell out in these times betwixt the year 1641. and his Majesties return whether prejudicial to his Majesties honour and authority or to the Laws of the Kingdome or the particular interest of his Subjects are buried in oblivion In respect whereof though the defender were accessory to the said burning as he is not yet he ought to be assoiled As to the sixth article anent the taking of the house of Towart belonging to the Laird of Lamont and the house of Oscog belonging to Oscog and after articles of capitulation drawn subscribed by Ardkinglas and under his command others under Trust and assurance murdring a great many of Lamonts and Oscogs friends As this is no wayes true the defender being altogether innocent thereof so is it no wayes relevantly libelled For 1. Neither day nor moneth of these deeds are condescended on 2. The alternity by the others under his Command not relevant to inferre a crime far les Treason against the defender for the reason contained in the first answer to the former article viz. That there is neither act of Parliament lybelled nor common law ordaining a man be lyable to a pain far less the highest of pains for deeds or crimes by those under his command except he gave them special direction But every one is to suffer for his own fault as at more length is contained in the said answer which is here repeated 3. Non relevat These for whom he is answerable for the same reasons because every one is answerable for his own fault and crime 4. Non relevat That others whom he might stop did it because there is neither any act of Parliament lybelled on ordaining any to be answerable for all deeds of those whom he might stop specially the act against Murder under Trust bearing no such thing Nor is there any Law not reason for the same but delicta proprios tenent authores as hath been said and no wayes granting the defender could have stopped them for the truth is he could not and was not near them when what is libelled was done and albeit indeed it be contra officium charitatis not to stop any doing a mischief if one may safely do it yet that it comes under the compass of Law to inferre a crime especially Treason cannot be affirmed 5. Taking of the house of Towart and Escog is not subsumed upon any of the acts of Parliament lybelled there being none of them anent the taking in of houses belonging to the leiges and so is not relevant to infer any of the crimes contained therein 6. The alledged killing a great many of Lawmonts and Oscoges friends after the assurance given by Ardkinglas is no ways relevantly libelled to infer the crime of slaughter under trust because by the act of Parliament Iac. 6. par 11. cap. 51. of slaughter under trust upon the which it is founded slaughter under trust is only when the party slain is under the trust and assurance of the slayer which is no way here lybelled but that the persons who are lybelled to have been stain by the defender were under the trust of another to wit Ardkinglas who is he or any other under the defenders command have done any thing against their own assurance they are to answer for it 7. The defender adhering to their defences and craving that they being against the relevancy be first discust repeats his former answer founded upon his commission of Leiutennendry therein mentioned for they who are designed Lawmont and Escoges friends were the Mac Donalds or their Adherents and Accessories as is noture and the defender if need shall be offers to prove it whom by the foresaid Commission he had power to prosecute with fire and sword with dispensation of slaughter and raisings of fire in manner at length contained in the Commission which amongst the other acts of Parl. 1644. is ratified by his Majesty in his Treaty at Breda as is alledged in the said answer which is holden herein repeated and therefore the defender ought to be assoiled from this article and truly what cruelty was exercised was by the Lord of Lawmont himself against the Heretors and other inhabitants in the Shrievdome of Argyl for the which upon a supplication given into the Kings Majesty and Committee of Estates at Sterling in August 1651. He was imprisoned within the Castle of Sterling till after tryal Justice should have been done upon him but was released by the English when they took the Castle with the other prisoners however the defender is confident as it is known so he shall make it appear if need be in the other process whereunto this relates and wherein it will be more pertinent and yet the day and time of the committing of the deeds mentioned in this article being condescended on as it ought to be when required by the defender that he may
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
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
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
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
as then established and to live peaceably yea such jealousie had they of the Defender that by his Capitulation he was prisoner upon demand Nither during all the time of their power over thâ—s Kingdom had he ever any favour of the said English but was always look upon by them with a most jealous eye And for evidencing hereof the Defender humbly craves that there be Commâ—ssion granted for examining of Lieutenant Colonel Vtter anent what was deponed by Mac Nachtan and several viz. of the Defenders small affection to the Englâ—sh or any other authority but the Kings Likewise it is notorious how unjustly he was persecuted before the Exchequer here for the time for payment of 4â—00 l. Sterling alledged to be rest and bygon few duties This being the Defenders true case it is hoped that the honorable Court of Parliament will take consideration how the Defender stood out as long as he could till he was prisoner and will have a different consideration of Subjects acting under the lawful Magistrate in exercise of his Authority by himself or others lawfully constituted by him and of the actions under cruel Usurpation and Tyrannie the lawful Magistrate being forced for his own safety to abandon his Dominions and people to the lust and oppression of the unjust Usurper who was Master not onely of their fortunes and persons but their lives and all that was dear to them and had for a long time detained the possession of his unjust Usurpation and devouted the lawful Magistrate Which case is not onely difference by all who write on that subject but also Cook in the third part of the Institutes of the Laws of England cap. 10. anent his Treason in expounding the Statute of the 25 of Edward the third upon the words of the Statute Le Roy puts such weight upon the Kings being in possession or one of the same that he expressly affirms the Statute is to be understood of a King regnant and in possession of the Crown and Kingdome as also that in such cases a favorable consideration is to be had of the actions of a subject who was particularly noticed and jealously looked upon by the Usurper for his affection to the lawful Magistrate and his Government All which being remitted to the Commissioner his grace and the Honourable Parliament their consideration he now comes to answer to the eleventh Article Against which eleventh Article and all the members thereof as libelled it is alledged the said Article is general not condescending on the day or moneth nor on the particular year of God of the committing of the deeds therein libelled but onely alternative in Anno 1653. or 1654. and therefore as has been oft before alledged the same is inept and there can be no proces thereon 2. It is not condescending on nor cleared which of the acts of Parliament libelled on in the Proposition this Article and several members thereof are subsumed and therefore it is obscure and general and in that incertitude the Defender has reason to deny that it can be subsumed on any of the said Acts to infer the said crime ond pain As to that which is first libelled in this Article That the Defender did not rise in Arms with the Commissioner his grace and the Earl of Glencarn who were Commissioners by his Majestie The Defender he repeats the two exceptions aforesaid against the whole Article being confident this cannot be subsumed on none of the Acts libelled on And further alledges that it is not relievancy libelled to infer vel minimam culpam against the Defenders far less so high a crime except it were libelled that your Lordships Commissioner had been shewed him and he required which was never done And herein he may refer himself to the Commissioner his Graces Declaration and if his Grace does not remember that the Defender sent him word shewing his desire to have met with his Grace and to have spoke with him about the business but had never the honour to have his Graces answer or appointment 2. For further clearing that his not joyning except he had been required is no crime it is evident from the fourth Act of the first Parliament Iac. 1. that those onely are punishable who does not assist the Kings Host being required thereto and Craig pag. 365 says that because the King has so many Vassals they are not obliged nor cannot be punished except the particular pain to be inflicted upon the away-stayer be particularly exprest in the Edict by which they are commanded to appear and pag. 365. he says That these who come not being warned by an Edict shall be counted and pag 370. he says That the Vassal should not be obliged to appear at any such services except they be desired which command should be proven by his Peers These Edicts were particularly required by the fundamental Law and were called heri bona which is defined by Cujas to be the calling and citation of the Army and is lib. 3. c. 10. quart leg franc to be the punishment of him who comes not to the Kings Host when he is called and this assertion is clearly proven from Rague in his Treatise de Iur. Reg. pag. 53. Likewise by the said Act par 1. Iac 1. it is expresly ordained That those who disobeys to enforce the King against notorious Rebels against his Person shall be challenged 1. If they be required by the King as is said 2. And except they have for them reasonable excuses but sure it is the Defender not only was never required as has been alledged but there was even pregnant reasons as he humbly conceives the which it seemed very probable at that time that albeit it be the duty of all his Majesties subjects to rise for his Majesties interest in opposition to Usurpers yet it was not seasonable as affairs then stood till either they had been defeated by sea in the ingagement that they then had with Holland whereby both the forces might have been diverted and the Transportation of Victuals and Ammunition from England Ireland and the parts of Scotland under their command and their Army in Scotland might have been intercluded or that Spain and France had concluded that peace whereof there was then several reports and thereupon his Majesties subjects in Scotland might have had hope of some probable assistance in the undertakings in his Majesties service or that division and in consequence confusion had fallen out in the English Army amongst themselves whereof there seemed to be but little hope so long as the appearance for His Majesty should meet them as against a common enemy as it was Likeas it would be thought it should have no other effect and as in effect the event proved that that Army never divided till they had no common enemy against whom mutual preservation does necessitate a mutual concinse but all at amity one with another And albeit a particular command had not been absolutely necessary if His Majesty had been there
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
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
by their Solemne Oathes of all knowledge of or accession to that wicked designe in relation to the Kings Majesty and House of Parliament 8. And yet he is so confident he never spake any such thing in Parliament that the day being condescended on and dyet of sitting of Parliament as by all Doctors is agreed it ought to be then the Defender offers to prove his alibi he offers to prove if need be he was alibi all that dyet and so not in Parliament where he is alleadged to have spoken these words and yet that the Defenders innocency as to the accession or knowledge of that horrid murder may yet further appear it is known to many persons and to some of the Members of this present Parliament that when Cromwell was in Scotland in Anno 1650. notwithstanding it is known what malice he had to the Defender at that time In this particular he expressed himselfe concerning the Marquesse of Argyle That he thought him a man that had neither Conragenor Honour to have been upon such a businesse and the Defender thanks God he had so much honour and honesty as in nowise to be accessory thereunto and to abhorre the same 9. The Defender ought to be assoilzied from their two last Articles as from all the other from the year 1641 to his Majesties home coming to Scotland in Anno 1650. because of the ratification and oblivion contained in his Majesties Treaty at Breda and most full and ample Act of ratification and oblivion at St Iohnstone and Strivling Anno 1650. and 1651. And in regard the deeds libelled are either such as preceded the Treaty and Act of Oblivion in Anno 1641. And were thereby pardoned and buryed in Oblivion or such as intervened after the yeare 1641. before his Majesties home coming in the yeare 1650. During which time he is in his Lybell charged with severall deeds which are irrelevant and whereof the Defender is most innocent And for such publick actings as the Defender is charged with and had accession to the Defender is also secured and pardoned by his Majesties Treaty gracious condiscendance at Breda which was also thereafter ratified in Parliament or are deeds of necessary compliance both for the publick and self preservation in that unhappy juncture which complyance as it was sore against his inclination if it had been in his power to have helped so is not no more then whole Kingdoms did and far less then many condescended to It is in all humility expected that the Defender should not be brought under the compassof Law for the same which were as to make him the singular sufferer in so universal a guilt so there can be no precedent therefore instanced either out of Scripture or holy Writ the Histories of our own or of other Nations That a Subject not having contributed to the said usurpation but to his power resisted the same when the said unjust usurpation prevailed expelled the lawful Magistrate detained 〈…〉 usurpation for many years 〈◊〉 and tyrannized over the people when the lawful Magistrate could not 〈◊〉 for the time or protect or help That the said subject for his complyance and using endeavours for necessary publick and self preservation should be indicted of so high a crime is in all 〈◊〉 conceived without precedent or parallel and 〈◊〉 contrary to the current of example and practise that may be from Scripture and other Histories adduced and not so sutable to that goodness and natural clemency whereof his Majesty hath given so abundant proof to others even the Usurpers and Invaders and who aided and abated them without envie be it spoken and which is not only most agreeable to his Majesties gracious inclination but very sutable to that advice given by his Royal Father to him In whose words in one section there are as follows Your Prerogative is best shewed and exercised in remitting rather then in exacting the rigour of the Law then which nothing is worse In respect whereof and of the Defences above mentioned the Defender ought to be assoilzied from this Libel and whole Articles therein contained