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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
B03411 Information for my Lord and Lady Nairn, David Falconer of Newtoun, and Michael Balfour of Forret; against the Earl of Argyl. 1690 (1690) Wing F295; ESTC R178651 9,822 16

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INFORMATION FOR MY LORD AND LADY NAIRN DAVID FALCONER OF NEWTOUN AND MICHAEL BALFOUR OF FORRET Against the EARL of ARGYL Printed in the Year 1690. INFORMATION FOR MY LORD AND LADY NAIRN DAVID FALCONER OF NEWTOUN AND MICHAEL BALFOUR OF FORRET AGAINST THE EARLE OF ARGYLE THERE is a Petition presented by the Earl of Argyl to the high Court of Parliament founding upon several Acts of Parliament and upon the common Law and Law of Nations whereby it is alledged that Judges pronuncing unjust Sentences are punishable and subsuming that the deceast Earle of Argyl was unjustly Forfeited and desiring that the Heirs and Representatives of the Lord Nairn Sir David Falconer of Newtoun and Sir David Balfour of Forret three of the Criminal Judges who pronunced the Sentence of Forfeiture may be lyable to this Earle of Argyl for the Damage sustained by that unjust Sentence amounting to 6000● Pound Sterling This is a Claime such as was never offered before any Judicatory within this Kingdom and is the more extraordinary that it is presented after the decease of all these Judges who lived and died in Honour and Credit and the Reputation of Integrity And it is very hard that any Stain or B●ot should be laid upon their Memory in Relation to their Deportment and opinion in a Process which they themselves could only have cleared their Heirs being altogether Strangers to it Albeit there be several Laws and Acts of Parliament whereby Judges are Punishable for doing Wrong or Unhonesty or for refusing to do Justice Yet that has been a Point so tender that there cannot be any precedent Instanced wherein a Judge hath been pursued upon that Ground so that really these Acts may be reckoned amongst Old and Obsolet Laws neither does it appear by any of them that it was designed to give a Party an Interest to pursue for Damnages by unjust Sentences but that a Party might Complain to the King and his Council and that a Judge being found guilty might be punishable in his Person and Goods but without any Benefit to the Party except his Charges in the Complaint the fine to be imposed upon the Judge being Penal which with all others of the like Nature doth belong to the Fisk. The Earle of Argyl who offers the Complaint does found the same upon the Claime of Right and Restitution of the Forfeiture which may be a good ground for Possessing or Affecting his Fathers Estate but it were of very Dangerous Consequence that the Restitution of a Forfeiture by Act of Parliament should make the Judges obnoxious who pronunced the Sentence this is not the first Restitution in Parliament by way of Justice our Records are full of the like but none who were ever so restored did pretend in this or any bygone Age that the Judges who pronunced Sentence should be Culpable and if it were sustained in this Case there is a prospect of Restoring several Hundreds of late Forfeitures what then should become of the Judges who pronunced these Or who would undertake to serve as Judges under any Government if all posterior Reductions or Impungning of their Sentence should make their Estates lyable to Damnages and what is now Acclaimed in the Case of Criminal Judges were much more Competent against Judges in Civil Matters All the Laws Cited having a special Relation to Civil Processes and therefore our Predecessors in making of these Laws having foreseen the Dangerous Consequences of allowing Civil Actions to Parties who either really were or apprehended themselves to be Injured They did not place any right interest or Benefite to the private Parties prejudged but only that they might be Informers or complain to the King and His Council and obtain the Judge to be punished at the Kings Pleasure either in his Person Fame or Goods Yet so as no share did fall to the Party Complainer by that Process and if it were not so how miserably would all the Fences and Securities of our Properties be unhinged for after such a precedent there would remain nothing but to run throw the records of Council Session and Justice Court and under the Notion of Damages by the Sentences of these Judicatories the Estates of all the Judges thereof whose Sentences were afterwards Reduced or Rescinded might be wholly exhausted and carried away neither could the Members of Parliament acting in a Judicative Capacity be secured from the Consequences of such a Preparative It were unnecessar and unfit to debate any thing in relation to the Procedure against the deceast Earl of Argyl whom the Parliament hath Restored But what ever Action or Complaint is competent to him the like will be competent to all who shall be Restored by way of Justice For albeit there may not appear the like clear and evident Grounds for their Restitution yet being Restored by way of Justice their Forfeitures must be acknowledged to have been unjust And no Party will be admitted to plead any point that might feem to support the Justice of the sentence of Forfeitures And it were impossible to fix and settle a clear Rule or Limit which of the Rescinded Sentences were more or less unjust And in what case the Judge should be lyable or Free after such a Restitution especially where Restitution is by a publick Act of Parliament without Process or Citation of Parties which is equal in the Earles case And all others who shall be restored that way For albeit the Heirs of the Judges be no● called yet there being once a Restitution without calling of Parties all Defence is now precluded in Relation to the Process which in deference to the Act of Parliament must be presumed and plead as absolutely Unjust in the same Terms as it is exprest in the Restitution These general Grounds being premised It is Answered for the Defenders 1 mo That albeit the Earl did actually Represent his Father as Heir and Executor to whom he is only Appearand Heir by h●● Restitution and thereby hath no sufficient Active Tittle to pursue And that the Defender did Represent these Judges upon the passive Tittles which they deny Yet the doom of Forefeiture can be no Probation that these three Judges or any single one of them did give their Vote or Opinion for sustaining the Relevancie But only that the Relevancy was sustained by the Plurality which does not prove that the Plurality was made up by the particular Vote or Votes of a●● One or More of these three Judges which might have been by the Opinion of others and can at most but conclude one of the three And it cannot be distinguished or known which of the three was the person And it is a known Principle That Actore non probante absol●tur reus Neither can any Probation of their Accession be sustained unless it were proven under their own hands or by their own a● knowledgment That they were Consenting or Concurring in sustai●ing the Relevancie Because albeit Witness could be received f●● proving of that point which