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
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
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
what was the ground and occasion of that Act and the reasons inducing the Defender and the Parliament at that time to go along therein and how little ground there is for challenging him thereon it would be considered That when the late King came to the Army before Newcastle the Defender was in Ireland by Commission from the Parliament 1646. and that His Majesties Declarations anent the grounds of His resolution in coming to the Scots was sent both to the Committee of Estates in Scotland and to the Parliament of England so that the same being printed before the Defender came to Newcastle he neither did not could know any other ground of his coming nor what was contained in His Declaration viz. His gracious Resolution to comply with His Parliaments in both Nations and those entrusted by them in every thing for setling of truth and peace and that he would totally commit himself to their counsels and advises Upon which terms both the Committee of Scotland and Officers of the Army declared to His Majestie and to the Parliament of England that they received him And all this before the Defender came from Ireland to Newcastle from whence His Majestie sent him with Instructions to the Commissioners at London of which Commissioners the Defender was one also to hasten the Propositions and privately commanded the Defenders to take the advice of the Duke of Richmond and Marqueis of Hertford anent what might concern His Majestie and particularly if it was fit that the Scots Army should declare for His Majestie whose judgement and opinion was which they conjured him to tell his Majestie that such a course was the onely way at present to mine his Majestie for that he himself knew That neither the Nobility or Gentry of England who attended him at Oxford wished him to prevail over his Parliament by the sword and much less would they indure the Scots Army to do it and that it would make all England as one man against him And that it was their earnest request to His Majestie by any means to give way to the Propositions Which advice he not onely faithfully told to His Majestie at Newscastle and many others there and to our gracious Soveraign who now is when he was in Scotland but also being in the Tower he intreated the Lieutenant thereof to propose for him that the Marquess of Hertford who was then alive might be examined in this matter which was put off from time to time because of His Majesties great affairs And as it is most certain that as neither Independent nor Sectary was able to carry one vote in the House at that time so it is notior that they who tendred His Majesty most in England were for disbanding the Scots Army and His Majesties 〈◊〉 in England wherein the Defender appeals to the particular knowledge of the Earl of Landerdale London Sir Charle Erskin and the rest of the Commissioners then there and it is of truth which all know that so little fear suspicion and jealousie there was of what followed That the great fear of His Majesties friends in both Kingdoms was That if he fixed on his Subjects in Scotland all England would be against him and probably cast off His Government and Interest forever So that under what representation soever the matter may now appear because of the sad sequels 〈◊〉 to them who know the matter as it was there shared what Declarations and Assurances there were from the Parliament of England and how little fear of the prevalency of Sectaries it did appear to be an act if not of necessity at least an act very expedient and convenient for the time other ways many who did assent thereto which never have condescended and consequently the defendors concurring therein upon such probable grounds can be no such crime as is libelled nor is it releivant to answer the conclusion of the Dittay To the second member of this Article bearing that under present for satisfaction for the arrears of the Army he went to London and there treasonably gave up at least condescended to the upgiving of his dread Soveraign and Master as being impowered so to do by the Kingdom of Scotland It is answered 〈◊〉 member is not relevant because neither the time of this going to London 〈◊〉 of his being these the persons to whom he condescended to give up are not particularly mentioned and set down By which generally he is precluded from several defences 〈◊〉 arise to him if the Ditay were clear and it is a principle in Common Law and of constant practice That non et vagandum in criminâ—e sed debet certum speciatim dici for that dolus error 〈◊〉 in generalibus 2. No ways acknowledging the relievancy of the subsumption herein upon any of the Acts of the Proposition till the same be clearly condescended on and craving the same may be first done Oppones the Act of Parliament and the truth is while the Defendor was at London there was nothing spoken at all by him of leaving his Majesty in England except what he was expresly commanded by his Majesty to speak to Richmond and Hertford as aforesaid To the third Member of the eighth Article bearing That in a joynt Committee of both Kingdoms where the English questioned whether the Scots Army would concur with them in their said Treason and Treachery the Defendor after many arguments used in their favour earnestly requested them to have patience for a little time and that it would appear how far they intended to concur And that within few days thereafter there was a Declaration and Vindication emitted in name of the said Army holding forth That in case his Majesty did not condescend to all the desires of both Kingdoms which were no less then divesting himself of all Regal Power Civil Ecclesiastical and Military they would deliver him up which immediately upon the receit of Two hundred thousand pounds the Defendor and they did It is Answered That adhering to the former defences anent the subsumption and repeating it here This member although it were rightly subsumed as it is not is most irreleivant and general in time place person and speeches mention being made of many arguments and never one produced and of a Question and Answer out of which even as libelled Treason cannot be inferred viz. That the Defendor requested them to have patience a while and it would appear how far the Army intended to concur but within few days after the Army declared themselves in manner as aforesaid Seeing these alledged words of the Defendor as they are indefinite and general so the most they could infer is That in a short time it would appear whether the Army would concur or not and what can from thence be infered as to any thing the Army did if they have outshot their duty as it was in regard of him with the speaking of these words a future contingent wherein the Defendor had no causualty so they must answer for
assistance It is answered 1. That the same is not relievantly subsumed upon any act of the proposition at least till the Advocate condescend upon which Act thereof the same is founded the defendor is not bound to make answer Secondly The Defendor denies that he did convocate these Forces or gave counsel or command therefore and as to his being with them he must be assolied 1. Because by a treaty at Sterling betwixâ— the chief Officers in the Army then alive and out of prison and a Quorum of Members of the Committee by authorite of Parliament 1648. who had power to order the incident affairs of the Nation the said meeting and all acts of hostility and others thereby committed are expresly discharged 〈◊〉 inde and a mutual Oblivion and Indempnity therefore 2. Any meeting he had with them was by a call of those of the Committee of Estates who joyned with those forces and who in the Treaty is acknowledged the Committee of Estates 3. The said meeting and acting thereof together with the Treaty and Articles thereof is ratified and approved by the third Act 2 Parl. 2 Sess. Ch. 2. The third member of the ninth Article bearing That apprehending his power was not able to withstand his Majesties good Subjects The Defender called in to his assistance the Army of Sectaries and that he went into Mordington and 〈◊〉 with the Commander of that Army had private consultations with him and prevailed with him to come to Edenburgh with his Army whose coming he might have hindered Because Oliver said That he could not help his lying upon the Tenants of Mordington for that his staying and going depended upon the Defender And that he did countenance and consult with the Sectaries and their Commanders in Edenburgh or the Cannygate in the house called the Lady Humes Lodging It is answered That as to speeches and consultations in general not releivant except they were condescended onâ— and as to the words spoken by Cromwel if spoken by him it was a lie and can infer nothing against the Defendor and the occasion of his stay was till he got Barwick and Carlisle which could not be restored till the Treaty at Sterling was closed And as to his his meeting and treating with him 〈◊〉 because he and others did the same by warrant of the Committee and which Treaty was ratified in the foresaid Act of Parliament thereafter To the Fourth member That he concealed and voted to the drawing up of a letter directed to Cromwel wherein he and his Complices engaged themselves in name of the Kingdom of Scotland to do their utmost endeavours that none who had been accessâ—ry to the Engagement or in arms at Sterling in pursuance thereâ—f should be employed in any place of trust without the advice and consent of the Parliament It is answered 1 No such letter produced 2. Though it were produced yet consenting and voting not releivant Because a vote in the Committee of Estates can infer no crime against the Defender or any member thereof nor any Act past in the said Committee especially seeing 3. The Acts of the said Committee was ratified in the fourth Act of the Parliament foresaid all ratified thereafter by the Treaty at Breda and Acts of Ratification at Percâ— and Sterling and the necessity thereof would be also considered in respect of the large Treaty both Kingdoms having given their publick faith that the breakers should be rendred up to the observers and that the English Army then upon the borders required the performance thereof against the engagers and for further security pledgâ—s and places of strength It was at that time counted a great favour considerinâ— their power to have made their own terms when they might have imposed and forced to what they pleased more yet they did accept this act To the Fifth member of this Article bearing That he did draw up at least did counsel the drawing of certain instructions given to Sir John Chiefly proporting That the Noblemen Gentlemen of quality and considerable Officers who went into England under Duke Hamilton and were there prisoners should be kept as pledges for the peace of the Kingdom It is answered 1. Not produced as it ought to be that it may thereby appear whether he subscribed the same or not 2. Not releâ—vant one of the Committee except it were libelled present and voted at that time for Noxa capuâ— sequitur 3. Not releivant voted Quia in Senatu nemo tenetur de consilio 4. Oppones the Authority of the Committee Treaty Acts of Parliament and Ratifications aforesaid To the last member of this Article bearing That he gave warrant under his hand for issuing of a Proclamation against the Families of the Laird of Ras and Vyres It is alledged for the Defender 1. No such warrant produced if any such warrant were produced under the Defendors hand it will certainly appear to be as President of some Committee so not his personal deed nor such a deed as can infer any a crime against him 3. No such Proclamation ensued 4. Although ensued yet that took no effect and so was Mine tantum et animus ad effectum non perductus 5. Oppones the Act of the Committee and Act of Parliament 1649. aforesaid which Parliament and the whole Act thereof is ratified in the Treaty at Breda and approved in the Parliament at St. Iohnstores and Sterling wherein was also made an Act of Oblivion oftentimes before alledged on in respect whereof the defendor ought to be affolzied from the said Ninth Article and whole member thereof and all therein contained And because the Defendor has in his defences so oft alleadged the Act of Parliament 1649. for his vindication he desires that it may be observed which is very observable that by the printed Treaty at Edenburgh and Sterling September 1648. it is agreed and appointed by those of the Committee at Sterling 1648 that a Parliament should sit down before the 10. of Ianuary next conform thereunto they did convene and sit down the fourth of the Moneth of Ianu. as by the said Treaty and the first and third Acts of the Parliament doth appear whereby it is clear That the said Parliament 1649. was appointed to sit by the Committee of the Parliament 1648 who had power by the last Act of the said Parl to convene the Parliament before the first Thursday in March 1650. if they thought fit as also that Sess. of the Parl. 1649. by the last Act thereof continues the same to the first Thursday in March 1650. at which day they convened in the next Sessions and therein ratified the Act of Parliament made in the former Session and which day was the diet to which the Parliament 1648. continued the same with power to the Committee of Estates to convene the same sooner if they thought fit as is said Whence it is evident that the said Parliament 1649. whether as appointed by the uncontroverted Committe 1648 at Sterling in the first
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