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
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
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
THE MARQUES of ARGYLL HIS DEFENCES AGAINST THE GRAND INDYTEMENT OF HIGH TREASON Exhibited against him to the PARLIAMENT IN SCOTLAND Anno. 1661. ADVERTISEMENT REader be pleased to know that there was some short Answers printed formerly to this grand Indytement as also in answer to the other printed particular Charge at the instance of Sir Iames Lamond which were only penned upno the first view of the two-charges and published to give a compendious clearing till their following defences should be made ready You are likewise to expect additional afterward THE MARQUES OF ARGYLL His Defences to The maine Charge of High Treason Preface THe defender prosesses his sense of the mercy and hapinesse of the land that we are delivered fra the lawles arbitrary power of the armed force of cruell usurpers and have restored to us our only lawfull soveraign Lord and in his sacred person the authority or law the order of Legall judgment and in them the liberty of legall defences thereupon depend the great security of the liberties lives and estates of the subject this gives the defender confidence to appear in Judgement nothing doubting of a faire procedure and full hearing complete time being allowed in all the dyers of the process and all things therein so ordered as may be suitable to the justice and gravities of this high and honourable court and the importance of the cause justice not only as to the defender but justice as to the preparative consequence and he with much confidence expects all justice from his most gracious soveraign the justest of Princes and who is represented and acting by so truly noble a person as My Lord commissioners grace also hoping the honourable court of Parliament will without all prejudice Impartizally consider his legall and just defences and that they will proceed so far without all ground of suspition therein that any who is within degrees to persons against whom he is libelled to have committed any of the deeds which are made the ground of his dittay or if any are conscious to themselves of capitall enmity or has been any wayes informers against the defender oâ— have predetermined by uttering the judgment already of his cause 〈◊〉 and honour will will make them abstaine sitting and voteing therein So much the more that they see howunwilling he is to propone any seculatory agaâ—â—st any member of the house upon these or others grounds in law so confident is he of the vindication of his own carriage So much he deferres to the ingenuity or generosity and so high is the honour he beares to this honourable court First it is alledged That there be no process nor is the defender holden to answer till the whole lybell and all the parts thereof be given him up to sie also it is the commissioners instructions and addresses sent and made to his Majesty by the defender as is alledged and the commissioners at Breda are expressely repeated as a part of the libel brevitatis causa in the tenth article and yet the same we has not been produced nor given to the defender to see and advise with Till which be done he cannot be held in to answer like as where points of the dittay are founded upon wreat The defender craves that he may have up the writes whereupon the 〈…〉 â—ounded to â—ee before the beholds to answer to the 〈…〉 consonant to law Sect. 2. 〈…〉 emma que actor edituras est apud indicem et I 3. 〈◊〉 whereby the persever is ordained to show to the defender all that he will use against the defender before the Judgâ— Other wise the defender cannot prepare himself for his defence which is the reason given in these laws Pâ—ulder 〈…〉 cent 16. and the Doctors throughout the said lawâ— l. unius Sect. 9. F. do quest post al to l. 2 Mun. 3 4 5 6 co dedendo Bart. ad leg ubi min. 8. F. de quest Bor soe It is the are severall Article in this ditty founded upon wreat not produced as in the first articles the prosecution of Mr. Iohn Steward to death as a leasing maker between the King and his Subjects lybeled and yet neither libel nor sentance against Mr. Iohn produced Item Collonell Henrisons commission for keeping Dumbartax Castle is libelled and the commissione not produced Item In the sixth Article a capitulation alledged made and subscribed be the Laird of Ardkinglos and other officers under the defenders command with the Laird of Lawmont and Escog Item The assurance alledged given to the persons within the house of Lochhead mentioned in the seventh article the defender craves ante omnis It may be produced Item that ordinance of Parliament or committee of estates thereby it is libelled In the same seventh article that Caillkitoch was ordained to be brought from the prison where he was for the time c. to the town of Edenb Item In the ninth aâ—ticle the defenders protestation Parliament anno 1648. Item in the same article the letter written to Cromwell libelled as being dated the 6 of October 1648. â—hereby it is lybelled that the defender and his complices wrote to Cromwell c. Item In the same article Sir Iohn Cheeslies Instructions libelled as being dated the 17. of October 1648. desiring the persons taken in the ingagement to be detain'd as pledges of that Kingdoms peace Item Eod. Art the warrand alleadged to be under the defenders hand for a proclamation against the families of Ogilvi and Rari Item Art 10. The letter alledged written to Cromwell anno 1650 after his invasion Item eodem Art the act of the west Kirk with the declaration whereunto it relates Item Act. 11. The remission alledged given to Iohn Mc. Dogall of Dimolich under the defenders hand All which the defender humbly alledges ought to be given up to see before he be held in to answer especially post tanti temporis intervallum so long a time haveing intervented between the intention of this persute and the dates of the said Act and papers foresaid lybelled on Some of them being twenty years ago some fifteen and the latest ten or eleven years as has always been the practise in such cases and may be instanced in my Lord Balmerimo his proces and was found by this honourable court in Mr. James Guthries proces Secundo under protestation that the former exceptation may be first discust that the papers therein mentionate ante omnia be given up to the defender to see it is alledged that as it has been alwayes the Princely care of his Majestys royal antesessours to keep the Laws of this realm certain Ne dum incerto utemur iurefluctuaret respublica and least law which is introduced for the leidges security should become their snare therefore be King Iac i. that illustrous Prince Parliament 7. cap. 107. All the interpretation of his Majestys statutes otherwise then the samen beares is forbidden and if forbidden can be no ground of dittay and in effect to found a ditty upon
for maintenance of religion King Kingdome which was thereafter approved by the Partia 1644. And fift act thereof and prosecute by wars both within and without the Kingdome by the authority of divers succeding Parliament's Church and state going unanimously along together without any apparent publicke difference till the year 1648. And even then that Parliamâ—nt 1648. so highly homologate the said league and covenant that they declare the breaches thereof to be the grounds of their resolutions of that Warre act 4. 7. and 8. And their desires for preventing thereof to be the fulfilling of the same Ibidem The necessary qualification required in all with whom they would joyne either in their armies or committies is that they be such who were of known faithfullnesse to the cause and covenant in the said act 7. and that they would oppose and endeavour to suppresse the enemies to the cause and covenant on hands all Ibidem Witnessing to the world that they â—werved not from the principles conteined in the nationall covenant and league and covenant and that they resolved closly and constantly to adhere there unto and to all the ends thereof So that at that time there was still no difference as to the cause and covenant any difference being only in the manner and not in the matter of that engagement Thereafter what straits this poor Kingdome was redacted to be the defeat of that engagement and how unable it was to make resistance to that English army who in prosecution of their victory came to the borders entred the same is noture to all wherewith the whole Kingdome being surprized with amazement and in evident hazard it was hard in that juncture of affairs to resolve upon any course for preventing the same or rather incumbate hazard of the Kingdome Whereupon a quorum of the committed of estates appoynted by the said Parliament 1648 were necessitated to take upon them the managing of affairs and to see for conditions of peace not being able to resist by force the flowre and strength of the Nation being broke by the said defeat and to accept the same upon the easiest termes that could be had for the time which as it was endeavoured upon no other intention or for any other end but that which they were constrained to by inevitable necessity So at that time it was generally lookt upon as good service and which at that time was most necessary to evite very great and otherwise inevitable evils being either necessitat'd to condensenâ— to their demands at that time or otherwise to have delivered the persons of all that did prosecute the said engagements according to the obleasment of the large treaty together with the forts and strength of the Kingdome The succeeding Pâ—rliament for the time in the year 1649. after Proclamation of his present Majesty did send commissioners to Holland and afterwwds according to his Majestys desire to Breda where there was a treaty concluded by his sacred Majesty Wherein he was graciously pleased to approve of the said Parliament in anno 1644. and remanner Parliaments and their proceedings from the year 1641 preceding the said treaty which was thereafter ratified by his sacred Mâ—jesty and his Parliament at Pearth and Starlin and after the royall example of his ever glorious father an act of oblivion was indulged whereby all that might be ground of question was buried in oblivione and pardoned by a general act of oblivion in a most full and ample form This being the state of publick affairs during the time foresaid albeit by the first ten articles of the dittay The deffender is charged with deeds and publick actings coming within the compass of the said approbation and oblivion foresaid yet such firme relyance hath he of his Majesty presisting in his gracious clemency which does in his royall heart so much abound That albeit his Majesty by his Proclamation Dadet the 12. Of October 1660. Is pleased graciously to declare that he has remitted to his Parliament the tryall of the carriage of his subjects in Scotland during the late troubles That the late troubles has only respect to the tyme during the usurpers possession and that tryall should be taken during that time of the subjects carriage The defender in all humility conceiving that it is no wayes to be supposed that his gracious Majesty did therebey intend to rip up or revive or to institute any new tryall of old offences forgotten and forgiven as said is especially seeing it is not to be supposed that the bowells of his mercyes should be so straitned to this his ancient Kingdome to which he has upon all occasions given so many signall and recent testimonies of his superabundant favour then they are and have been to his Subjects of his other dominions to whom according to his Majesties declarations he hath granted a full and free pardon from which few and these only the unpardonable murderers of his royal father are excluded for whom or any guilty thereof no punishment can be sufficient and therefore the defender in all humility conceives the said articles though libelled are not to be insisted on The solemnity of the oaths both of Covenant and League will be as the defender hopes pregnant presumptions to put and end all controversie anent the sincerity of his as of the Church and Kingdome their loyal intentions for the maintenance of the person and authority of our dread Soveraign whereunto they were thereby so religiously ingaged and the constant tenor of his acting still by vertue of publick Orders and Warrants of Parliament and their commitâ—ees wherein his faithfulness in the execution was also in the like manner approved will witness that what he did was not for any private interest but for the publich ends where unto he conceived himself ingaged in manner foresaid nor was the Defender for continuing of these unnatural civill discords as he did witnesse by his inclination to unaccommodation with Montross in the year 1645. mentioned after in answer to the tenth article which albeit fully agreed to betwixt him and the defender yet he could not obtain the commitees approbation thereof which is in evidence that the defender had not the chief sway of affaires and was alwayes inclinable to peace religion being secured like as the carrying on the ingagement in the year 1648. though the defender differed in his judgement as to the way and manner upon the grounds and reasons thereafter exprest in answer to the ninth Articles does clearly evince that he had not the chief sway in publict actings and what power and interest he had in the year 1649. he did faithfully according to his bond duty improve the same for removing these differences betwixt his Majesty and his subjects wherein he was pationately earnest as shall be made appear in answer to the said tenth article and after his Majesties hom-coming and during his being in this Kingdom and thereafter till the enemy had fully prevailed and that by his articles of agreement
Earl meerly for his loyalty to his Majesty it is gratis dictum against that presumption quâ— unusqiusque praesumitur bonus and against that loyalty to his Majesty that is hoped shall more and more appear in the defender Lastly the defender ought to be assoyled from the said article and all deeds therein mentionat Because the same precedit the act of oblivion in anno 1641. whereby all things that did fall forth in these tumultous times whether prejudiciall to his Majestys honour and safety or to the lawes and practises of the Church and Kingdome or to the paticular interests of the subject buried in perpetuall oblivion as more fully is conteined in the said act 3. As to the third article annent the beseiging of dumbration Castle and trasporting Cannon and ammunition out thereof It is alledged for the defender 10 that the assaulting of the said Castle is not relevant to inferre the conclusion of the dittay because as is before alledged none can be declared triators but these who hes contraven'd a special act made under the pain of treason But so it is that none of the particular acts of Parliament whereupon the proposition is founded mentions any thing against these who assaults the Kings Castle nor does any of them infer the pain of treason therefore But only the 25 act of Parliament 6. Iac. 6. intituled sundry poynts of treason by the which acts they only are to be punished as traytors who assaults the castle or places where the Kings person is and that without warant of Estates but it is neither libelled nor was the Kings person in the said Castle the time of the alledged assaults thereof nor did the defender assault and lay siege to the same without warrand from the estates but by their expresse order commission and the truth is the defender himselfe did not appear before the said house till the said Sir John Henrison being straitned with the seige sent for the defender offered to surrender the house upon honorable conditions which the defender suffered him to make himself and which were accordingly kept not without some difficulty the inhabitans of the town by reason of prejudice done to them being highly insenced against the said Collonel As to that part of the said article annent the transporting of the Kings Cannon and ammunition none relevat to infer the conclusion none of the acts libelled on concluding against any such fact the said crime of treason and the truth is the defender did never transport any Cannon or ammunition out off the said Castle but two Cannons which the duke of Richmont heritable keeper thereof gifted to the defender and which he would never have gifted if they had not been his own and not the Kings 2. The defender ought to be assoyled from the said article all deeds therin contained the same having also proceeded the saidact of oblivion in anno 1641. 4. And as to the fourth article of the dittay anent the defenders calling or causing to be called a convention of the estates in anno 1643 entring in league with his Majesties enemies imposing excise and subsidies on the Kingdomes raising an army entring England therewith fighting for and with the rebells there It is answered that the whole points of this article of the ditty are charged personally on the defender so contrary to the notority of the matter of the fact known to both Kingdomes and to his Majestyes commissioners grace and to the wholâ— Parliament yea to the fifth act of Parliament 1644 relating and approving all the acts that are made points of this article That there needs no more but propond as known to all and to repeit out of the said publick law and act of Parliament what is there in libelled to evince that they are not the defenders personal deeds but the comittees comissioners establisht by his Masty convention of estates and of the whole Church and Kingdom of Scotland and approven by that Parliament 1644. in the said 5. act thereof first then as it is noture so it is clear by that act that the said convention of Estates was called not by the defender as it is libellit but by his Majesty privy Counsel Commissioners for conserving the articles of the Treaty therein mentioned and Commissioners of common burdens all establisht by his Majesties authority in anno 1641. which Conservators concerning that article 〈◊〉 the 〈◊〉 Treaty bearing the Kingdom of Scotland their desire for unity in religion and conformiâ—y in Church-Government as a special meaâ—s for conserving of peace betwixt the two Kingdomes In answer thereto His Majesty with advice of both houses of Parliament in England doth declare his approbation of their affection in their desire of having conformity of Church-Government between the Nations and as the Parliament had already taken to consideration the reformation of Church Government so they would proceed therein in due time and this was one of the main grounds whereupon both houses entred the said League 2. That the enacting and entring the League and Covenant was an act of that convention of Estates not the defenders personal act 3. That the League and Covenant was entred in with the two houses of the long Parliament and assistance given to them in fighting with or for their army or otherwise which is libelled fighting with rebels The point of fact being thus cleared in opposition to the dittâ—y 2. It is alledged that the first two members of this article is subsumed under none of the acts of Parliament libelled on in the proposition there being no act of Parliament libelled against meetings bands or leagues in general or in special betwixt the two Nations or Estates thereof 3. As to the remanent members of the article they can no wayes be relevant with all submission except it were qualified that the two houses of the long Parliament to whom the assistance libelled was given that they were enemies and rebels but that the defender is confident it will not be said because by his Majesties act of Oblivion 2â— April 1660 his Majesty after his happy restitution declares that what was acted even against his Majesty and his royal Father by his Subjects in England during these times thereafter shall not be called in question at all so much as to the prejudice of their reputation in manner at length conteined in that gracious act and how loyal the long Parliament was did appear in that the usurper durst never attempt any thing against his late Majesties person till they were broken as also what loyalty the secluded Members of that Parliament has as became them shewed to his Majesty in his just and glorious restitution is known to all Europe to their eternal commendation and renown No doubt as from conscience of their oath of duty and allegiance so of the oath of God whereunto they bound themselves to maintain his Majesties person authority and greatness as well as religion in that Covenant 4. All the foresaid
assistance It is answered 1. That the same is not relievantly subsumed upon any act of the proposition at least till the Advocate condescend upon which Act thereof the same is founded the defendor is not bound to make answer Secondly The Defendor denies that he did convocate these Forces or gave counsel or command therefore and as to his being with them he must be assolied 1. Because by a treaty at Sterling betwixâ— the chief Officers in the Army then alive and out of prison and a Quorum of Members of the Committee by authorite of Parliament 1648. who had power to order the incident affairs of the Nation the said meeting and all acts of hostility and others thereby committed are expresly discharged 〈◊〉 inde and a mutual Oblivion and Indempnity therefore 2. Any meeting he had with them was by a call of those of the Committee of Estates who joyned with those forces and who in the Treaty is acknowledged the Committee of Estates 3. The said meeting and acting thereof together with the Treaty and Articles thereof is ratified and approved by the third Act 2 Parl. 2 Sess. Ch. 2. The third member of the ninth Article bearing That apprehending his power was not able to withstand his Majesties good Subjects The Defender called in to his assistance the Army of Sectaries and that he went into Mordington and 〈◊〉 with the Commander of that Army had private consultations with him and prevailed with him to come to Edenburgh with his Army whose coming he might have hindered Because Oliver said That he could not help his lying upon the Tenants of Mordington for that his staying and going depended upon the Defender And that he did countenance and consult with the Sectaries and their Commanders in Edenburgh or the Cannygate in the house called the Lady Humes Lodging It is answered That as to speeches and consultations in general not releivant except they were condescended onâ— and as to the words spoken by Cromwel if spoken by him it was a lie and can infer nothing against the Defendor and the occasion of his stay was till he got Barwick and Carlisle which could not be restored till the Treaty at Sterling was closed And as to his his meeting and treating with him 〈◊〉 because he and others did the same by warrant of the Committee and which Treaty was ratified in the foresaid Act of Parliament thereafter To the Fourth member That he concealed and voted to the drawing up of a letter directed to Cromwel wherein he and his Complices engaged themselves in name of the Kingdom of Scotland to do their utmost endeavours that none who had been accessâ—ry to the Engagement or in arms at Sterling in pursuance thereâ—f should be employed in any place of trust without the advice and consent of the Parliament It is answered 1 No such letter produced 2. Though it were produced yet consenting and voting not releivant Because a vote in the Committee of Estates can infer no crime against the Defender or any member thereof nor any Act past in the said Committee especially seeing 3. The Acts of the said Committee was ratified in the fourth Act of the Parliament foresaid all ratified thereafter by the Treaty at Breda and Acts of Ratification at Percâ— and Sterling and the necessity thereof would be also considered in respect of the large Treaty both Kingdoms having given their publick faith that the breakers should be rendred up to the observers and that the English Army then upon the borders required the performance thereof against the engagers and for further security pledgâ—s and places of strength It was at that time counted a great favour considerinâ— their power to have made their own terms when they might have imposed and forced to what they pleased more yet they did accept this act To the Fifth member of this Article bearing That he did draw up at least did counsel the drawing of certain instructions given to Sir John Chiefly proporting That the Noblemen Gentlemen of quality and considerable Officers who went into England under Duke Hamilton and were there prisoners should be kept as pledges for the peace of the Kingdom It is answered 1. Not produced as it ought to be that it may thereby appear whether he subscribed the same or not 2. Not releâ—vant one of the Committee except it were libelled present and voted at that time for Noxa capuâ— sequitur 3. Not releivant voted Quia in Senatu nemo tenetur de consilio 4. Oppones the Authority of the Committee Treaty Acts of Parliament and Ratifications aforesaid To the last member of this Article bearing That he gave warrant under his hand for issuing of a Proclamation against the Families of the Laird of Ras and Vyres It is alledged for the Defender 1. No such warrant produced if any such warrant were produced under the Defendors hand it will certainly appear to be as President of some Committee so not his personal deed nor such a deed as can infer any a crime against him 3. No such Proclamation ensued 4. Although ensued yet that took no effect and so was Mine tantum et animus ad effectum non perductus 5. Oppones the Act of the Committee and Act of Parliament 1649. aforesaid which Parliament and the whole Act thereof is ratified in the Treaty at Breda and approved in the Parliament at St. Iohnstores and Sterling wherein was also made an Act of Oblivion oftentimes before alledged on in respect whereof the defendor ought to be affolzied from the said Ninth Article and whole member thereof and all therein contained And because the Defendor has in his defences so oft alleadged the Act of Parliament 1649. for his vindication he desires that it may be observed which is very observable that by the printed Treaty at Edenburgh and Sterling September 1648. it is agreed and appointed by those of the Committee at Sterling 1648 that a Parliament should sit down before the 10. of Ianuary next conform thereunto they did convene and sit down the fourth of the Moneth of Ianu. as by the said Treaty and the first and third Acts of the Parliament doth appear whereby it is clear That the said Parliament 1649. was appointed to sit by the Committee of the Parliament 1648 who had power by the last Act of the said Parl to convene the Parliament before the first Thursday in March 1650. if they thought fit as also that Sess. of the Parl. 1649. by the last Act thereof continues the same to the first Thursday in March 1650. at which day they convened in the next Sessions and therein ratified the Act of Parliament made in the former Session and which day was the diet to which the Parliament 1648. continued the same with power to the Committee of Estates to convene the same sooner if they thought fit as is said Whence it is evident that the said Parliament 1649. whether as appointed by the uncontroverted Committe 1648 at Sterling in the first
Regicides their hands who did immediately thereafter invade this Kingdom As to the other member of the Tenth Article whereby it is libelled That the Defendor to obstruct His Majesties purpose yea in so far as in him lay and to terrifie him therefrom by his and his complices crulelty executed upon the Marquess of Montross who as his Majesties Commissioner did represent his Majesties person caused to murder the said Marquess in anno 1650. in manner c. 1. It is no way releivantly libelled that the Defendor in general caused murder him except it were condescended quâ— modo he caused and if thereby be meant his voycing in Parliament 1649. in the said matter non relevat because a vote Act or sentence of Parliament is no way releivant to infer a crime against any particular member therein as hath been oft before alleadged Likewise 2. The sentence of the forfeiture of the life and estate of the said Marquess was no decree of the Parliament 1649. but of the Parliament 1645 which was homologat by several other Acts of Parliament excepting the said Marquess among other excepted persons as specially by 〈…〉 and by the 22 Act of the Parliament 1648. And yet 3. The Defendor did not vote in the business of Montrost as he can prove if need be is by the members there present 1649. And as to the aggravations of the said Murder the said Marquess being His Majesties Commissioner for the time It is no way a releivant circumstance to aggravate the same except it had been libelled That the said Commission had been shown to the Parliament which no body can affirm but on the contrary the said Parliament conceived they had just reason to presume that there could be no such Commission for his coming against them at that time because His Majesty after the murder of His Royal Father very graciously had admitted their gracious Applications to him Likeas before Montross his coming at that time to Scotland and always thereafter His Majesty had a Committee of the said Parliament under the name and title of the Committee of Estates of His Majesties Kingdom of Scotland As to the Defendor his alledged keeping correspondency with Cromwel in the year 1650. As the same is irrelevantly libelled no deeds nor acts or correspondency being condescended on so there was never any such thing And there was one named Hamilton who vented this untruth hanged at Sterling and at his death did declare That the same was a moâ—t unjust calumny and it is not to be beleived that at that time he would have charged his soul with a lie and in Law the words of a dying man are oriculously beleived As to the Act of the West-Kirk the Defendor no ways acknowledging the releivance of the said Article as it is libelled was so free from having the least accession to the said Act or Declaration that so soon as he got knowledge thereof to evidence his fidelity to his Majesty it is offered to be proved by witness for their loyalty above all exception that when the first news came that the Commissioners were about the drawing of the said Act the Defendor gave advice to His Majesty To draw a fair Declaration and to go such a length as in freedom he could that thereby he might prevene the said Act and obviate the pressing thereof But as for the other that was pressed he was altogether against the same and dealt with the Minister who came from the Commission of the Kirk to forbear pressing His Majesty therewith which also if need were might be proved As to the eleventh Article and subsequent Articles because the same are for deeds of compliance after the Usurpers had prevailed and were in possession Before the Defendor make particular answer it is necessary to premise in general that it being notoriously known to the world to the eternal honor of this Kingdom as for that damnable usurpation of Oliver not onely we were not active in establishing the same but according to our bound allegiance to our Soveraign were to the utmost possibility of our power in arms under His Majesty and other ways active against him and in opposition thereto many lost their estates many their lives and all of us our liberries and when we could do no more being oppressed by the force of the said Usurper as a chaste forced Virgin we â—ried to God and man attesting Heaven and earth against Usurpers even when their bloody swords were at our throats he and his Army amongst many other execrable mischiefs were also guilty of this usurpation We have suffered and been only passive under that irresistable force And as this was the condition of the Kingdom so specially the Defendor who as he had been most active and instrumental in His Majesties home-bringing which was the only ground of the quarrel and for which he was looked upon by them as one of their capital enemies even so after it pleased God for our exercise and punishment to suffer their power to prevail over all his Majesties Forces and over this Kingdom such aversion had the Defender even so much as to live under their power let be to comply actively with them that after Worcester the Defender offered to Mr. David Dick if he could get his company or the company of any other honest Minister that he would never capitulate with any Englishman so long as he could subsist in any part of Scotland either his lands or Isles thereupon It is humbly craved that Mr. David Dick may be examined neither did the Defender ever capitulate with them till August 1652. having before that endeavoured all that in him lay to have perswaded those of Athol Monteith and other his Neighbours in the Highlands to have concurred with him that they might have joyntly made some probable force for resisting the overspreading power of the Usurper but all in vain Likewise long before that time the whole Forces and Strengths of the Kingdom were surrendered yea the whole Kingdom by their Deputies and Representatives who met at Dulkâ—ith with the Commissioners of the Parliament of England so called was forced to submit to their power and accept the tender of the union of this Nation with England proffered by them Neither did he at the said time in August 1652. voluntarily come in and capitulate with the said English but was surprized several Regiments of their Forces horse and foot having sudden'y come about his House where he was for the time lying deadly sick as can be testified by Dr. Cunningham who was with him for the time and is humbly craved to be examined thereon As also notwithâ—â—anding of the said surprizal and the Defenders condition though they threatned notwithstanding of his sickness to carry him away prisoner yet all their threatning could not prevaâ—l with him but he did absolutely refuse to subscribe the Articles first offered which contained the tender of the union and an obligement upon his part to promote the same and the Government
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
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