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 [Page 4] 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, o [...] 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 aga [...]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 [Page 5] 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 [...] [...]ounded to [...]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 Judg [...] Other wise, the defender cannot prepare himself for his defence which is the reason given in these laws, P [...]ulder [...] cent. 16. and the Doctors throughout the said law [...] & 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 a [...]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. [...]hereby it is ly­belled [Page 6] 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 statutes other­wayes then they bear were to found it upon such statutes we have not, bot so it is in the proposition of this libel [Page 7] The Acts of Parliament where upon the same is founded, are otherwise repeated than they bear for. 1. The first part of the proposition of the Dittay founded upon the two first Acts of Parliament lybelled, viz. the third Act of the 5. Parl. of King Iac. 1. And the first Act of King Iac. 6. doth upon the said acts, conclude the pain of for­feiture and treason. The same is most Irrelevant be­cause in the said Acts, there is no mention made of any crimes of the nature or quality libelled. The said 3. Act of the 5. Parl. Iac. 1. being annent the fees of Crafts­men, and the price of the work. And, the 1 Act of K. Iac. 6. being anent the constitution of the Earl of Mur­ry Regent, and in neither of the said Acts is there any pain or punishment inserted, and so far less can the pain of forfeiture or treason be from the said Acts concluded against the defender; and if it should be said, That the 5. Parl. of K. Iac. 1. is mistaken in the wryting for the first Parl. And in citing the first Act of K. Ia. 6. the citation of the number of the Parl. is also omitted, viz. the number 18. The Dittay repeats these two acts other wayes then they bear, for the words of the said 3. Act of the 1. Parl. be­ing Iac. 1. statutes and ordains, That no man openly or notoriously rebel against the Kings person, under the pain and forfeiting of life, lands and goods, which is not at all in the Lybel repeated. And as to the said 1. Act of the 18. Parl. being Iac. 6. The words thereof are cited, yet with some difference and transposition lybelled, but thereto is added the sanction and pain, That whosoever doth in the contrary, they are to be punished as Traitors, and to forfeit their life, lands and goods, whereas there is no sanction or pain in the said Act, only it is declarative of his Majesties prerogative, and of his three Estates to main­tain the same.

Item. In the second part of the proposition of the Dit­tay founded upon the 25. Act of the 6. Parl. being Iac. 2. and the 75. Act. 9. Parl. Q. M. Is not repeated as it bears as to punishment, for therein they who attempt to do or raise any bands of men, of War, Horse or Foot [Page 8] without any special [...] licence of his Majesty, and his Suc­cessors, are only declared punishable by death, whereas they are lybelled to be punishable as Traitors, while it is the pain only of the said 25. Act. Parl. 6. Iac. 2.

Item. In the next Parl. of the proposition of the Dittay founded upon the 43. Act. 2 Parl. Iac. 1. and the 134. Act of the 8. Parl. and 10 Act. 10. Parl. and the 205. Act. 14. Parl. of King Iac. 6. None of these Acts are repeated as they bear, but confounded, both as to the crimes and pains therein contained, to a very far different sense (as is humbly conceived) from that which the said acts severally propose. Transferring the pains of the said several acts and crimes therein contained from one to ano­ther, as may appear by what follows, for the first of these Acts, being the 43. Act Parl. 2 Iac. 1. Is only of lea­sing Makers and Tellers of them which may engender strife between the King and his people, and the pain of the Act is tinsel of life and goods to the King, as is clear both by the title and body of the act. The second act, viz. the 134 act. 8. Parl. K. Iac. 6. is also the same crime, viz. against those that utter false, slanderous and untrue speeches, to the disdain, reproach or contempt of his Majesty, his councel or proceedings, or to the dishonour of his Majesties parents and progenitors: adding also those meddle in the affairs of his Majesty, and his Estates, and the pain is the pain contained in the acts of Parliament made against Leasing Makers and the Tellers of them. The 3. is the 10. Act. 10. Parl K. Iac. 6. Is against th [...]e who speak or write any purpose of reproach or slan­der against his Majesty, Person, Estates or Government, or depraves his Lawes or acts of Parliament, or miscon­strues his Majesties proceedings whereby any mis-believing may be moved behind his Majestie and Nobility, and his loving Subjects. And the pain thereof is only the pain of death. And by the 205. Act 14 Parl. Iac. 6. These that hears the said words leasings, and doth not ap­prehend and reveal the Authors thereof, shall incur the like punishment with the principal offenders, and yet leasing [Page 9] making and telling which is the crime punishable be the first of these Acts, viz. 43. act Parl. 2. Iac. 1. Is punishable be the loss of life and goods to the King is omitted, and false slanders which is the crime contained in the 134 act, Parl. 8. Iac. 6. And only speaking to the dishonour of his Majesty, Parents and Progenitors, and medling with the affairs of his Highness Estate is repeated out of the said Act 134. and joyned to the crime contained in the said Acts 10. Parl. 10. Iac. 6. and to both the pains added of loosing life, lands and goods, whereas the pain of the said act. 10. is only of death; and the pain of the said 134. Parl. 8. Iac. 6. Is only the pain contained in the Acts a­gainst leasing Makers which in the said 43 act Parl. 2. Iac. 1. Is only the loss of life and goods and not of life, lands and goods, but all annerly the Escheates, of goods move­ables, as may appear, First, Because whenever the pain of tinsel, of life and goods is found either in the Acts of Parliament or old Lawes, goods are understood moveable, as is clear from the crimes that are ordained to be so pu­nished, as Manslaughter. Be the 42. stat. Robert 3. Is pro­hibited under the pain of tinsel of life and goods, where Skein explains, that these goods are to be understood of Moveables. And be the Act 90. Parl. 6. Iac. 1. The re­ceipt of him who is fugitive for slaughter, is forbidden un­der the pain of tinsell of life and goods (Where Skein expounds goods to be goods moveable, in his Tractar of Crimes tit. 2. cap. 6. Parl. 4.) And so it is clear in the other acts of Parliament that their whole pains are distinct, viz. Tinsel of life and goods alike, is only extended to moveables; and tinsel of life, lands and goods, which lat­ter pain in the stile of our acts of Parliament is commonly thus expressed: That he who incurs it, shall die and for­feit life, lands and goods, as the 31. Act, Parl. 7. Iac. 2, & passim alibi forfeiture properly relating to lands; and in the common signification of our said goods to be under­stood of goods moveable.

Secundo. More specially it may appear, that the pain of the said 43. act. Parl. 2. Iac. 1. given to the said 134. act [Page 10] Parl. 8. Iac. 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 c [...]imes that by our Laws are declared Treason. And therefore Sk [...] 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 Tract [...] of [...]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 [...]inse [...] 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 fol [...]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. [...]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 forfeitu [...]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 [Page 11] 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 lybe [...]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 Cou [...] 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 practise [...] 2. Poena being [...]egis sarctio. And the common Law is known with us to have only vim rationis, [...] l [...]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. [...]. 4. fad. Senat. Consult. Turpili­anum facti quidem [...] in [...] judicantis, panae ver [...] persecutio non [...] volun [...]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. [Page 12] 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 p [...]er l. 1. Cod. qua sit lo [...]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 [Page 13] 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 as founded on practise is no wayes relevant, and the defender ought to be assoilzed therefrom.

Quarto. Every Lybel both of civil Law, and our Law ought to be clear, distinct and special, but especially cri­minal lybels, because of the great importance of them, ought to be most clear, distinct and special, jure libellus in criminalibus debet esse clarissimus, saith Dam. haud prax. crim. 3. num. 3. And therefore Libellus Criminalis obscurus parte etiam non excipiente extenditur favore rei Baldus in lege addita, num. 10. c. de edendo, Alex. Consil. 72. col. versit. & licet volum. 1. hip. Consil. 49. & Battander prax. Cran. Reg. 6. s. 3. & 4. nec enim debet accusator cum ex­istimationis alienae jactura, & discrimine vagari. licet L. [...]i in rem. ff. de rei unum; so that any obscure criminal lybel is inept, and the defender ought to be assoilzed, therefrae, though he did not oppone his defence for that effect, but so it is, this dittay is most unclear and undistinct, in so far as in the pro­position of the dittay there are many acts of Parliament li­bel led on, being statutes annent diverse crimes of very dif­ferent natures, and inferring different punishments, accord­ing to the article of the crimes, and in the subsumption, the panel is indyted for several crimes alledged committed by him, contrary to the said Lawes and acts of Parliament in general, without condescending on the particular acts of Parliament, that the pannel has contravened by com­mitting the particular deeds lybelled, and so leaving him to great uncertainty: whereas in all Law, reason, and form of process, the defender ought to be certified what acts and Laws he has contravened by committing such deeds that is in a multiplicity of crimes, after proposing all the statutes relating to the same crimes, all the deeds immedi­atly ought to be subsumed, falling under the compass of such statutes, and thereafter the acts relating to another indifferent crime ought to be proposed, and the deeds falling under the compass of these acts immediatly subsum­zed [Page 14] and throughout the libell which is no way done here, but first by many different acts accumulat together in the propo­sition, and then the most different facts accummulate toge­ther indistinctly in the subsupmtion Not condesending on the Acts by them contravened and therefrae the libel is in apt and the defender ought to be assoyled their from.

This defence is further confirmed in law. 2. Because a libell being [...] quidem practicus; jason and the [...], de act in criminal dittays the proposition consist i [...]j [...]re constitutionis in the Laws whereupon the libel is found­ed The manner is in the subsumption of the facts or [...]rims under these laws and the conclusion inferring the paine Because of such a crime as falling under the law libelled, on a very essentiall part of every libel, is quo jure petatur & a libel being incertain in this is unclear and uncertain in a very essentiall point and in apt. 3. In law, a libell ought so to be conceived as the defender may know aictoms spiciem otherwise it is in apt l. f. de edendo l. 3. c. eodem. And may also know actionis jus, and that he may deliberat how to defend but in our cases that arises from the distinct appli­cation of the lawes to the facts, ex quibus jus oitur 4. If such uncertain libel were admitted the defender be­cause of the obscurity and uncertainty of the libell should be prejudged of an certain defence he could make against the relevancy of the same because the relevancy of it consists in the subsumption of the facts and crimes libelled under some certain law, which being condescended on be a di­stinct subsumption under each law of the crimes that were libelled properly to fall under the same. The defender would alledge why such crimes cannot be subsumed revelant­ly under such laws and acts which the otherwise cannot do in such multiplicity both of different acts and crimes as are libeled in this duty. There being not only in diverse articles but even in on article a great diversity of the crimes therin libelled and yet the defender left in uncertainty under which of all the acts libelled on, The persewer in­tents the subsumption thereof and so in uncertainty alto­gether how to conceive this desense and if this be not [Page 15] maxime vagari cum maximo alienae vitae et fortunarum pericu­lo It is hoped as it will be found very evident so it was ne­ver the practise, heretofore used in criminall libels, and which that it should not be now sustained is of universal con­cernment, and if sustain'd might prove of very dangerous con­sequence, and the libell as it is now conceived is in apt and the defender ought to be assoyled therfrom.

BEfore the defender come to his particular answer to the several articles of the ditay to the effect, the de­fender his case in his accession to the publike actings of this kingdome during the unhappy [...]roubles till the treaty at Breda and his Majestys home coming may be truly sta­ted, It is humbly craved that the commissioners grace and honourable estates of Parliament may be pleased to re­member that the Kirk and whole body of this Kingdome entred at first in the nationall covenant for defence of re­ligion and his Majestys person and authority, and mutual defence one of another in maintaining the same, where­in and in what followed in prosecu [...]ion thereof til the trea­ty with his late majesty, and act of oblivion set dwon at length and [...]ati [...]ed in the 6 act of the 2 Paliament anno 1641. His late Majesty did so far acknowledge and ap­prove their loyalty that in the seventh article of the said large treaty his Majesty was pleased to appoint that at the close of that traty their said loyalty should he made known at the time of publick thansgiving in all places, particularly in the Parish churches of his Majestyes dominions. And in the said act of pacification and oblivion is pleased to de­clare that their constant loyalty in their intentions and proceedings should not be hereafter called in question, and that whatsoever fell forth in those tumultuous times, whether prejudicall to his Majestyes honour and authority to the Laws and liberty of the Church, or the particular interest of the subject, might be buried in perpetuall obli­vion; and whatever had ensewed thereon, no mention should be made thereof in judgement or outwith, like as his Majesty for himselfe and his successor's promises in [Page 16] verbo principis never to come in contrary of the said sta­tute nor anything therein conteined but to hold the same firme and stable and to cause it be truly observed and these presents to have the full force and strength of a perfect and true security, like as thereafter in anno. 1643. The league and covenant was entred in with the two houses of Parlia­ment upon the ground of the large treaty by the church and whole body of this Kingdome, proporting the same ends of the covenant for maintenance of religion King & Kingdome; which was thereafter approved by the Partia. 1644. And fift act thereof, and prosecute by wars both within and without the Kingdome by the authority of di­vers succeding Parliament's, Church and state going una­nimously along together without any apparent publicke difference till the year 1648. And even then that Parli­am [...]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 [...]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 [Page 17] 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 condensen [...] 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 P [...]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 M [...]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 [Page 20] 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 commit [...]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 [Page 19] these unnatural civill discords as he did witnesse by his incli­nation to unaccommodation with Montross in the year 1645. mentioned after in answer to the tenth article, which al­beit fully agreed to betwixt him and the defender, yet he could not obtain the commitees approbation thereof, which is in evidence, that the defender had not the chief sway of affaires and was alwayes inclinable to peace (religion being secured) like as the carrying on the ingagement in the year 1648. though the defender differed in his judge­ment as to the way and manner upon the grounds and rea­sons, thereafter exprest in answer to the ninth Articles) does clearly evince that he had not the chief sway in publict actings, and what power and interest he had in the year 1649. he did faithfully according to his bond duty improve the same for removing these differences betwixt his Majesty and his subjects, wherein he was pationately earnest as shall be made appear in answer to the said tenth article and after his Ma­jesties hom-coming and during his being in this Kingdom, and thereafter till the enemy had fully prevailed and that by his articles of agreement he was there prisoner he faith­fully served his majesty, and even during his Majestyes ab­sence, did alwayes and still shall return loyall duty and good affection to his person, government and poste­rity.

And what ever these who are grown up may judge, who only see the unhappy and accidentall e­vents that are the effects of the corruption of men, but have not known the counsells and causes which are the two parts of these things necessary to be known to all who would judge of human actions arright events being for the most part uncertain and the worst of events of tyms thorow the corrup­tion of agents or others extrinsecal circumstances following upon the best of actions, yet had they been intimately acquainted with the grounds and causes & nature of the act­ings while a doing, the defender is confident that they would have concurred and been of the same judgment as being clear, that these proceedings had no native connexition with the sad and unexpected consequences that has ensewed

[Page 20]And now to come to the particular defences to the se­veral points of the subsumption of the Dittay; And first as to the first article of the subsumption, annent the words alledged spoken at the Ford of Lyon which are lybelled to have been: That it was the opinion and judgement of many Lawyers and Divines, that a King might be deposit for de­sertion, vendition or invasion, and which is alledged to have been meaned by the pannel of the then Kings Ma­jesty, and the presumptions adducit for inforcing that to have been the defenders meaning, are some words allegit subjoyned, to wit, Mr. Iohn you understand Latin. It is al­ledgit for the defender (no wayes acknowledging to the best of his memory, that he uttered any such words) 1. all criminal dittayes should contain in them at least year, mo­neth and place, otherwise they are inept, Bartol & D. D. ad L. libellorum ff. de Accusatione, because amongst o­ther reasons, diversitas loci varia argueret facinora, saith Battand: Reg. 6. prax. cum post angel, &c. But so it is, there is no moneth condescended on when the defender should have spoken these words, and therefore the dittay in this article is inept. 2. There is no particular act of Parliament in the act libellit upon in the proposition con­descendit, on which is contravened by the words libellit, therefore the libel in this article of the subsumption, is general and obscure; and till the particular Law contra­ven [...]d be condescendit, one can receive no answer. 3. The speaches as they are libellit, falls not under the compass of the acts libellit on in the proposition of the lybel, to in­fer any of the pains therein contained, because they are but libellit, as the narration of the opinion of others, which is not relevant to infer so much, that the Narra­tor is of the same opinion, except it were also libellit that he did declare his homologation, and that he was of the same judgement, which neither is, nor can be libellit far les, then is it relevant to infer a crime, and so high a crime as Treason; for suppone the defender had said, That they are very learned both Divines and Lawyers, whose opinion it is, that the Pope is the head of the Church, and that [Page 21] he has power to dispense with the article of faith, to de­pose Kings (a horrid opinion)&c. and that it is their opi­nion also we may merit heaven by good works, and that all Hugonites or Protestants are damnable here [...]ticks, and that he had related their words in latin, as the latin of of that verse of the gloss of the common Law, cap. sicut de excess. praelat.

Restituit papa salus deponit, &c. articulus solvit.

And had said to Mr. John Stewart thereupon, Mr. John you understand Latin, albeit these opinions of these Divines and Lawyers be exec [...]ably Heretick, yet no body will say, that the defenders relation of him, would have inferred him to have been guilty of the same; No more in our case can the relation libellit infer him to have been of that opinion with these Divines and Lawyers, or in any way thereby to have contravened any act of Parliament li­belled. 2. The foresaid opinion is libellit only to have been related in abstracto, (nothing of our Kings Majesty who then was) And whereas it is libellit, that it appears the sence and meaning thereof appeared to have been of the then Kings Majesty, in so far, as the defender subjoyn­ed to Mr. Iohn Stewart, the words aforesaid, that he under­stood latin. 1. The libel in this part is ambiguous for this may be interpret, either that it was the meaning of the opinion of these Divines which he related, (this seems to be most consonant to the words) or els that his own meaning was, That it was the judgement that the then Kings Majesty our Soveraign might be so dealt with, as is libelled in the latter part of his article, and so the Article in this part thereof is ambiguous and inept, and there ought to be no process thereupon. Nam Libèllus (in criminali­bus praesertim) nihil ambiguitatis vel obscuritatis continere debet per cap. Constitut. 6. extr. derig. don. Bot. 3. If it be understood in the former sence, it is but still relative of the opinion others; and if in this latter sence, to wit, [Page 22] that it was his own judgement, the presumption libelled of what he spake to Mr. Iohn Stewart, is no way relevant to in­fer it. 1. Because they held a more obvious meaning, viz. That it might have been the opinion of these Divines and Lawyers was related in latin, and indeed Grotius and Berclaius, who write of that Subject, are both in latin, and that he had subjoyned to Mr. Iohn Stewart, Mr. Iohn ye understand latin. 2. That such opinions being rather the fancy of notional Schoolmen, (otherwise not unlearned in their own art) or of such as are Doctors notionals in the Law, (if there be any of such opinions) rather then of solid juriscon [...]ult, who for most do not so much as move these questions not to be moved. 3. If any such words had been spoken to Mr. Iohn Stewart, They might have had this more proverbial sense. Some Lawyers and Divines are of that opinion, but the subtilty of these questions or opinions is latin to me, that is, I understand it not, as we say commonly of things we understand not, It is latin to me. But Mr. Iohn ye are a Schollar, and ye understand it. Now it is a rule in Law, that where the meaning is doubt­full or obscure, that which is the most favourable sence should be followed. L. 9. ff. de reg. juris and Matheus de afflictis decisione 265. n. 68. 69. & decis. 307. n. 15. and when these words are ambiguous, The declaration of him who uttered them should be acquiessed unto; M [...]norchius con­silio 197. And the defender is ready to declare, that if ever he had spoken such words, he was very far from any such mean­ing, as is libelled against him. Nor 4. is it any way pre­sumable that any rational man, who had the honour to know his late Majesty, could have made application of any of these three causes to so worthy and illustrious a Prince, seeing the said Grotius, Berclay, and others that writs upon that subject, acknowledges yea it is obvious to common sense, that hardly can they fall out in the worst of Princes, if he be but compos mentis: and as to the pre­sumption that follows, that the defender meaned by the late Kings Majesty, because the condition wherein the kingdom was for the time. 1. It is far more presumable [Page 23] that the kingdom was in such a condition of affection to his Majesties sacred person, and authority at that time none d [...]rst have uttered what might reflect thereupon, seeing it is libellit to have been shortly after the subscribing of the Covenant, wherein they had solemly bound themselves by the oath of God to maintain his Majesties person and au­thority. 2. His Majesty by his royal judgement in the act of oblivion 1641. hes presumed the loyalty of his Sub­jects, both in their intentions and proceedings in these times, which is presumptio juris, & de pre. As for the de­fender, his prosecuting of Mr. John Stewart. 1. It was a judicial process and legal Act and so can be no imputa­tion to him wherein the process was laid in so fair a course of Law, That he was condemned not only upon clar proba­tion, but his own confession, and yet the words whereupon he was indyted and convict, were far different from these words, as they are here libelled, otherwise the defender would never have pursued it.

Ultimo adhering alwayes to the alledgance above pro­pounded humbly protesting, that they may be first discust, and whereupon it is craved, he may be assoyled in [...] li­bello, because by act of Parliament in anno 1641. amongst the imprinted act, anno 70. The same service is appoved and he exonered. It is alledged, that the defender ought to be assoyled from the whole crimes in the first article because after the tyme libelled of the alledged committing of the same his late Majesty of glorious memory granted that never to be forgotten act of indemnity and oblivion in an­no 1641. Which did proceed upon the preceeding treaty with his Majesty, and which is solemnly confirmed by his Ma­jesty himselfe in person and his three estates in his Parlia­ment 1641. 6. act thereof wherein his Majesty for himself and his successours does promise in verbo principis never to come in the contrary of that statute and sanction or any thing therein contained 2. But to hold the same in all points firme and stable, yea, and to cause it to be truly observed be all his Majesties leiges for ever hereupon the defender doth confidently rely for all than is libelled as committed [Page 24] by him in this article; or any other preceeding that time, as being confident it is the greatest imaginable security that he and the rest of the leiges of the land who are conceived can have.

As to the second article and haill head thereof

• 1. nei­ther day, moneth, nor year of God are condiscended on, and therefore so generall that is inept. Nam generalitas parit obscuritatem, Marent part 6. spec. & de libel. oblat. quomo [...]o Concip. & per, textus ibi citatos.
• 2. It is not condescen­ded which of the acts of Parliament libelled this article and the several heads thereof contraveins, which is a ge­neral ineptitude and nullity in this libel.
• 3. As to the first point; if that article annent the intaking of the house of Airlie, cuting and destroying the planting, and demolish­ing the houses. 1. It is not relevantly libelled in so far as it was libelled that the house was kept for his Ma­jesties service, but doth not condescend that service, now. 2. Is it libelled that there was any in it that had a commis­sion from his Majesty, without which it hes not any colour of relevance. 4. The defender never had any privat quar­rel, nor parsonal prejudice against the noble Lord James Earl of Airlie. But if his marching to that house be meaned of that which was in anno 1640. it was by vertue of, and in obedience to a commission put upon him by the Committe of Estates for the time, nor was the said house at his arrival thereat kept for his Majesties service, as is (though wrongfully) libelled. But before that time was surrendred to the Earl of Montros who had put Co­lonel Sibbald to keep the same for the King and Countries use, and which Colonel Sibbald upon sight of the defen­der his commission, did abandon the said house: and if there was any planting cut, it was [...] some few shrubs and bushes which the defender could not hinder) for hur­ting to the soldiery, and tho the defenders commission bare power and warrant to demolish the house he was so far from stretching, or fully, executing the same, that he did not only slight the house, and delayed a long time to do the same, in expectation that the Lord Ogilby should [Page 25] have procured a countermand from the committee, and did slight it till he was past all hope of obtaining the same; not, as is hoped will be acknowledged by the said Noble Earl, neither did, so far as the defender knew or could hinder, the Earle, his friends and followers sustaine any other pre­judice then what was usuall, and what all places are ordinana­rily obnoxions to where armies or parties of souldiers come but however it is not relevant, as said is.

Tertio, That part of the said article, though it were true (as it is not) is no ways relevant to infer the conclusion of the dittay, here being no law nor statute libellit on, that for cutting [...]f timber or demolishing the houses of private persons though done upon private quarrels, as this was not) inferres [...]he pain of treason.

As to that part of the article annent the burning of the house of Forther beside the exceptions against both the points thereof alledgit before in the beginning, it is not re­levant to say that the defender seised there upon to infer any crime except it were libelled he seised by force, for he might have entred in vacuam possessionem. 2 Non relevant to libell that those under him did seise thereupon or raise fire therein, except it were libelled that the defender had given expresse order or wanrrand to raise that wilfull fire: who as he gave not order therefore, so he was not present not near the place, not knew any thing thereof till after the house was burnt & noxia caput sequitur. 3. In the acts of Parliament libelliton annent burning and wilfull fire-raising, the same can only be understood of burning and raising of fire on private feuds, and for particular revenge in time of peace, and is not to be extendit to such deeds done in the heat and fury of wars, seeing inter arma silent leges.

And as to the aggravation of the defenders hatred against the Earl meerly for his loyalty to his Majesty, it is gratis dictum & against that presumption qu [...] unusqius (que) praesumitur bonus and against that loyalty to his Majesty, that is hoped shall more and more appear in the defender.

[Page 20]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.

[Page 17]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 whol [...] 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 [Page 28] [...] the [...] Treaty, bearing the Kingdom of Scotland their desire for unity in religion, and conformi [...]y in Church-Government, as a special mea [...]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 ditt [...]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 2 [...] 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 [Page 29] 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. 16 [...]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.

[Page 24]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 bu [...] 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 [Page 21] 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 [...]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 dispen [...]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 [Page] is noture (and if need be, The defender will offer him to prove) and therefore though he had burnt or given di­rection for the burning thereof he ought to be assoil­ed.

5. By act of Parliament. 30 act 22. March. 1647. it is statute and ordained that all his Majestys good subjects shall be altogether freed and liberate in all time coming from being any wayes called, convened, pursued, troubled or molested in judgment civill or criminall or outwith the same for any deed done or to be done by them against the persons, lands or goods of such as have or shall be in the re­bellion (by which it is noture, that the said armed op­position made by the deceased Marquess of Montrose, and the said Mc. Donald, and others under his command; to the Estates is understood) during the time of their being in the said rebellion, or have been, or shall be guilty with the rebels in their wicked courses, or of any of them, who came under the first or second Classes of delinquents contained in the 5 act of the fith session of that Parliament holden at St. Andrews, in the moneth of Jan. 1646. But so it is, the Defender offers to prove, if need be, That a son of the Earl of Sterlings named Charles or John Alexander, who had, or either of them had right to Menstre had joyned with Montrose and those un­der him, and so came under the second Class of the said fifth act of the fifth session, Parliament 1646. Or at least, went or sent into their ligor, or without compulsion entertained them in the said house, and therefore the defender ought not to be pursued, even though he had burnt, or given direction to burn the said house (as he in no wayes did) and being pursued, ought to be assoiled from this arti­cle like as it is conjunction alledged for the defender in fortification of the said act, That the same is ratified by his Majesties large Treaty at Breda, as being one of the acts of that session of Parliament 1647. which amongst the other sessions of Parliament, and acts thereof since the year 1641. and preceding his Majesties return in an­no [Page 33] 1650. are ratified by the said Treaty, as also by the act of Ratification at St. Johnstones or Sterling in annis 1650 & 1651. By which ratification (or ratification of his Majesty by the Treaty aforesaid,) the said act of Parliament 30. in anno 1647. comes (as a most solemn remission granted by his Majesty, and whole Estates of Parliament to the persons there­in contained) and so like as if every one of them had got a particular remission so solemn: It had been an uncontrovertable remission for what were therein contained, so must it now be, being in effect of the same nature and vertue, albeit many be in­cluded in one.

6. By the act of Oblivion at St. Iohnstones or Ster­ling, in the year 1650, or 1651. all acts of hostility whether between the King and his Subject, or be­tween Subject and Subject, and what things fell out in these times betwixt the year 1641. and his Ma­jesties return, whether prejudicial to his Majesties ho­nour and authority, or to the Laws of the King­dome, or the particular interest of his Subjects, are buried in oblivion. In respect whereof though the de­fender were accessory to the said burning, as he is not, yet he ought to be assoiled.

As to the sixth article, anent the taking of the house of Towart belonging to the Laird of Lamont, and the house of Oscog belonging to Oscog, and after articles of capitulation drawn & subscribed by Ardking­las, and under his command others under Trust and as­surance, murdring a great many of Lamonts and Os­cogs friends. As this is no wayes true (the defender being altogether innocent thereof) so is it no wayes relevantly libelled. For 1. Neither day nor moneth of these deeds are condescended on. 2. The alter­nity [Page 34] by the others under his Command not relevant to inferre a crime, far les Treason against the defen­der for the reason contained in the first answer to the former article, viz. That there is neither act of Parliament lybelled, nor common law ordaining a man be lyable to a pain far less the highest of pains, for deeds or crimes by those under his command, except he gave them special direction: But every one is to suf­fer for his own fault, as at more length is contained in the said answer, which is here repeated. 3. Non relevat, These for whom he is answerable for the same reasons, because every one is answerable for his own fault and crime. 4. Non relevat. That o­thers whom he might stop, did it, because there is neither any act of Parliament lybelled on, ordaining any to be answerable for all deeds of those whom he might stop (specially the act against Murder under Trust bearing no such thing) Nor is there any Law not reason for the same, but delicta proprios te­nent authores, as hath been said, and no wayes grant­ing the defender could have stopped them, for the truth is, he could not, and was not near them when what is libelled was done, and albeit indeed, it be contra officium charitatis, not to stop any doing a mischief, if one may safely do it, yet that it comes under the compass of Law to inferre a crime, especially Treason cannot be affirmed. 5. Taking of the house of Towart and Escog, is not subsumed upon any of the acts of Parliament lybelled, there being none of them anent the taking in of houses belonging to the leiges, and so is not relevant to infer any of the crimes contained therein. 6. The alledged killing a great many of Lawmonts and Oscoges friends after the assurance given by Ardkinglas, is no ways re­levantly libelled to infer the crime of slaughter under trust, because by the act of Parliament, Iac. 6. par. 11. [Page 35] cap. 51. of slaughter under trust, upon the which it is founded, slaughter under trust is only when the party slain is under the trust and assurance of the slayer, which is no way here lybelled, but that the persons who are lybelled to have been stain by the defender, were under the trust of another, to wit, Ardkinglas, who is he or any other under the defenders command have done any thing against their own assurance, they are to answer for it.

7. The defender adhering to their defences, and craving that they being against the relevancy be first discust, repeats his former answer founded upon his commission of Leiutennendry therein mentioned, for they who are designed Lawmont and Escoges friends, were the Mac Donalds, or their Adherents and Ac­cessories (as is noture, and the defender if need shall be, offers to prove it) whom by the foresaid Commission he had power to prosecute with fire and sword, with dispensation of slaughter, and raisings of fire in manner at length contained in the Commission, which amongst the other acts of Parl. 1644. is ratified by his Majesty in his Treaty at Breda, as is alledged in the said answer which is holden herein repeated, and therefore the defender ought to be assoiled from this article, and truly what cruelty was exercised, was by the Lord of Lawmont himself against the Heretors and other inhabitants in the Shrievdome of Argyl, for the which upon a supplication given into the Kings Majesty and Committee of Estates at Sterling in Au­gust 1651. He was imprisoned within the Castle of Sterling, till after tryal Justice should have been done upon him, but was released by the English when they took the Castle with the other prisoners, however the defender is confident, as it is known, so he shall make it appear, if need be in the other process where­unto this relates, and wherein it will be more pertinent, [Page 36] and yet the day and time of the committing of the deeds mentioned in this article being condescended on as it ought to be when required by the defender, that he may propone his alibi, he offers to prove if need be, That he was alibi the time of the committing of the said deeds, at a very great distance, to wit, in England, like as his Majesty by his Treaty at Breda, hath ratified and approved the acts of Parliament, and his Majesty, and Estates of Parliament, hath ratified the said Treaty, and past an act of Oblivion of all former deeds done by the Subjects, which secures and indemni­fies them for any former actings, in respect whereof he ought to be assoiled.

As to the seventh article made up of several members or parts, as 1. anent the men alledged murthered as Lockhead and Dunnavertie. 2. Anent the aggravation added thereto. Anent an old man begging his sons life and denyed him. 3. Anent the sending 200. men from Illa to starve in Iura. 4. Anent the taking of the person of Col. Ki [...]ch, out of a ship in Leith Rode, wherein it is libelled, that he had been brought by order of Parliament.

It is alledged against the seventh article, That 1. The first part thereof (anent the men alledged mur­thered at Lockhead and Dinnavertie) is no wayes re­levant, not only in respect that the particular moneth and dayes whereupon the same should have been done, are not condescended upon, but also in respect there is not one particular person by name and surname whereby he might be known condescended upon, a­gainst whom the deeds libelled should have been com­mitted, without the which this part of the article can­not be sustained as relevant, it being contrary to all Law and practise, that murther in the general without nameing the persons murdered should be sustained as relevant Dittay against any. 2. The slaughter alledge a [Page 37] committed upon these in the house of Lockhead, is not relevantlie subsumed upon the acts of Parliament lybelled, in so far, as there is no assurance lybelled to have been given to them, to bring it under the act of murder under trust, and there is no other act lybelled un­der which it can fall. 3. It is alledged, That the defender cannot be charged with any of the deeds ly­belled in the said first part of the article (though they were true and relevantly lybelled, as they are not) be­cause the expedition made against the rebels in Kintyre in the year labelled, was by David Lesley, and these under his command, against such, who contrary to his Majesties order sent to them at that time, com­manding them to lay downe armes, and contrary to their own engagements, not to joyn with Ali­ster, Mac Donald did notwithstanding continue in armes and rebelliously (as was then declared by the Estates of Parliament) resisted David Leslie in the execution of his said Commission against them, who therefore after defeating of them in the field, took them out of the said houses of Lockhead and Dunnavertie without any capitulation, and disposed of them as the Counsel of Warre then present with him thought fit (which is noture, and the defen­der offers to prove, if need be) for which, and o­ther his services, the said David Lesly got the Par­liaments approbation in anno 1648. as the said ap­probition and exoneration bears, which will clearly prove any thing that is herein alledged, and there­fore the defender, nor any in his company at that time cannot be charged with any deeds lybelled in the first part of this article, but ought to be as­soiled therefra. 4. The defender repeats his third defence made to the fifth article founded upon his Commission of Leivtennendry, the persons menti­oned [Page 38] in this article against whom the deeds are lybelled, to have been committed, having been the Mac. Donalds or the Adherents and Accessories which is noture, (and the defender offers to prove, if need be) to prosecute whom he had the Commission containing dispensation, and which was ratified in manner men­tioned in the said answer, like as he repeats the 4 & 5 answer made to the said article, in respect whereof he ought to be assoilied therefra.

It is alledged against the 2, 3 and 4 members of this 7 ar­ticle, that they are no wayes subsumed, nor cannot be subsumed under any of the acts of Parliament ly­belled, and therefore the dittay herein is inept, and the defender ought to be assoiled therefra, (and yet in point of fact they are but meer Calumnies) As to the second part (anent the said old man and his son) it is no wayes relevant, not condescending on the per­sons names, and therefore can receive no other answer, but that it is a meer fiction to make the defender more odious, who ingenuously professes, that he never heard of such a thing, till he saw it in the libel. The third part of this article hath no better ground than the second, and the defender desires, that for clearing his innocency of the fact lybelled therein (anent the sending of two hundred men from Ila to starve in Iura) that the Gentlemen in the said Islles may be examined upon the truth of the matter. It is alledged that the fourth part of this article, anent Coil Kit­toch.

[Page 39]7. Is of the same nature with the former two, and therefore the simple relation of the truth is suf­ficient to refute the falshood thereof, which is short­ly this, viz. That Coil Kittoch was not brought to Leith either by order of the Committee of Estates or Parli­ament, but being taken prisoner in Ila by the forces under the command of David Lesly, and delivered to the defender, the defender put him aboard in Cap­tain Browns ship who undertook to deliver him at Dunstaffnage. But Captain Brown finding the op­portunity of a fair wind to Leith, to which he in­tended, and not willing to lose the same, did not go to Dunstaffnag, but came streight to Leith Road, and immediately gave the defender notice, that he had his prisoner aboard, whom therefore the defender received from him, and sent him to Dunstaffnage: and the defen­der desires that Captain Brown who lives at Weymes, may be examined upon the truth of this matter, by whom he offers to prove this, if need were.

And whereas it is libelled that Coil Kittoch was hanged it is true, but it is also true that he was condemn­ed to die in a justice or Liestenant court judicially which is noture. And the defender offers to prove, if need shall be, so that this can be a ground of no crime nor ditty what somever, but however the defender ought to be assoiled therefra.

8. To the first member of the eighth article bearing that notwithstanding the manifold acts of dignity favour and honour conferred upon him by his then dread Soveraign his Majesty being redacted to greater straits by that army of Sectaries, and having cast himself over in the hands of the army of his Scots subjects for shelter and preservation of his royall person, Neverthelesse the said Marqueis being chief ring-leader, of that fa­ctious [Page 40] party who then swayed the estate of affaires both in councell and army did so contrive and complor, and by his influence so prevail, that after all faire offers made by his Majesty 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.

[Page 41]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 [...] [Page] [...] [Page] [Page 42] 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, [Page 43] 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 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 [Page 44] 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 [Page 45] 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 crimin [...]e sed debet certum & speciatim dici, for that dolus & error [...]in generalibus.

[Page 46]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, [Page 47] 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 themselves, and not the Defendor.

And for ought he knows there was never any such Decla­ration emitted, neither should there be any captions use made of words, if there had been any such words spoken, as there was never, especially to infer his Treason, for that Lubricum linguae, is oftner a frailty then a fault; and that by all Doctors of both Laws it is constantly held that verba debent intelligi ne sonent in delictum. And that in dubio they should be interpreted a proferenti. And therefore no ways acknowleding the words and deeds libelled, except in so far as concerns the Defendor his vote to the Declaration, and as the circumstance libelled, That the delivery of his Majesty was immediately after the payment of 200000 l, it is clear that there was no respect to that money in what was done there­in, by the Act of 7. Parl. 1648. wherein the Estates there de­clare, That money was never the cause nor motive of any of our undertaking and resolutions, whatever enemies had falsly sug­gested of that kind. And lastlly, adhering to his former de­fences oppones to this whole Article the Treaty at Breda, and the Acts of Parliament of Oblivion and Ratifica­tion.

As to the Ninth Article, and whole first member there­of, bearing, That the Defendor opposed the proceedings of Par­liament, 1648 by arguing, voting, and after the resolutions of Parliament were past in an Act, in protesting against the same.

It is alledged for the Defendor, 1. It is not condescen­ded under which of the Acts of Parliament libelled on in the proposition, this Article is subsumed, and therefore the libel as to that member of the Article, for arguing, voting and protesting, is inept, and the Defendor hath just reason in such an incertitude to deny it that can be re­leivantly [Page 48] subsumed on any of the said Acts of Parlia­ment.

2. Arguing and voting is no ways releivant to infer the conclusion of the Ditray, because by Divine law, Law of Nations, Statutes and practices of this Kingdom, in delibe­rando, a Member of Parliament or other Councel should give advice or suffrage according to his perswasion of the good or ill of the subject debated on, and under considera­tion, wherein if his reason cannot bring him up, nor his conscience admit him the length of others in such publick Counsels; he ought to have charity for the one and excuse for the other.

Like as by the 5. Act Parl. 2. K. Charls the First, It is ex­presly statute That every member of Parliament shall faith­fully and freely speak, answer and express themselves upon it and every thing which is propounded in so far as they think in their conscience may conduce to the glory of God, the peace of the Church and State, and employ their best endeavours to pre­move the same. Under which oath (read in the audience of the late King, and by him approven in the Parliament 1641.) the Defendor, as a Peer of that Parliament in anno 1648. was solemnly tied to the Dictates of his Reason and prescripts of his Conscience, and cannot be called in que­stion as a member, having freedom therein: and conform thereto, is the oath of this present Parliament, bearing that every member shall faithfully and freely according to their best judgement give their advice and vote in Parlia­ment.

To the second part of the first member of the said Arti­cleanent the Defendor his protesting and dissenting from the said Act, 1648.

It is alledged for the Defendor, The Protestation not produced, as it ought to be, whereby it will appear that if any was, the same was before the Act of Parliament past, and that they did only proteste and enter their dissent against proceeding to the determination of the question then [Page 49] in hand which evinces the same to have been before the Act was made. Like as the Defender offers himself to prove by the Members of Parliament then present, That being asked if they would renew the Protestation after the Act, they shunned to do the same, the Act being now past.

2 Absolvitor (Though the same were produced) be­cause it is offered to be proven, That the same was ratified In the fourth Act Parl. 2. Sess. 2. Cha. 2. which was appro­ven at the Treaty at Breda, and confirmed at Perch and Sterling, as is said. But for the honorable Parliament, their more full clearing anent the Defenders carriage in the said particular, It is offered to be proven, if need be is, That the Defender (before the Commissioners return from the said Isle of Wight, in the said year) when he heard that His Majestie had satisfied his peoples desires concerning Reli­gion, in presence of divers persons of honour, he exprest himself passionately earnest to engage for his Majesties free­dom. Like as the only difference of the opinion anent the Engagement was in the manner the grounds of these that were dissatisfied, being as they are exprest in the said Pro­testation, viz. That the Parliament should not proceed till the Commission of the Church were consulted and aiding also (which is not therein exprest) till advertisement and three months warning were given, conform to the large Treaty; until all means of peace had been first essayed, and while first the law­fulness and necessity of that war should be found by the Parlia­ment, conform to the 7. Act thereof. And it is humbly conceived that many in this present Parliament do remem­ber how unanimous all were that His Majesty should be brought out of the hands of the Sectaries, to some of His Houses in or about London. And all they differed in was, That the Church should be consulted anent the securing of Religion, all means of peace should first been essayed, and warning given in manner aforesaid, conform to the large Treaty, the breach whereof was made one of the grounds of that Declaration, Act 7. And it cannot be refuted but [Page 50] that at several meetings the dissenters debated the dange­rousness of of that War (especially if the Army should be defeated) from the sad consequences that might thereupon ensue to King, Kingdom and Religion, as immediately, thereafter fell out. Whereas had the Nation been intire and whole in their power and force that Army of Sectaries in probability would not have dared to have attempted those matters which afterwards they did; so that the case being truly stated there will appear no malice against his Majesties Person, Authority, and Restitution thereof, but an unclearness to enter into a War of such danger and ha­zard, and the respect they had to the security of Reli­gion (as all then prosessed) according to the Cove­nant,

To the second member of the Ninth Article, whereby it is alleadged, That in contempt of the authority of that Parlia­ment, and against the preservation of his Majesties person and Authority; that the Defender convocated an Army of rebellius Subjects, and therewith committed divers and sundry outrages, slaughters and vastations upon the persons and estates of his Ma­jesties Subjects, invaded Cities and Castles, seised upon Maga­zeens; Arms and Ammunition, and called in an Army of Secta­ries to his assistance.

It is answered, 1. That the same is not relievantly sub­sumed upon any act of the proposition; at least till the Ad­vocate condescend upon which Act thereof the same is founded, the defendor is not bound to make answer.

Secondly, The Defendor denies that he did convocate these Forces, or gave counsel or command therefore; and as to his being with them he must be assolied.

1. Because by a treaty at Sterling betwix [...] 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 [Page 51] 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 on [...] 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 [Page 52] had been access [...]ry to the Engagement, or in arms at Sterling in pursuance there [...]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 Perc [...] 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, pledg [...]s and places of strength: It was at that time counted a great favour (con­siderin [...] 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 rele [...]vant (one of the Committee) except it were libelled present, and voted at that time, for Noxa capu [...] 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.

[Page 53]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 [Page 54] power, to the Committee of Estates, to convene the same sooner, if they thought fit, as is said. Whence it is evi­dent, that the said Parliament, 1649. whether as appoint­ed by the uncontroverted Committe, 1648, at Sterling, in the first Session, or as is continued to the first Tuesday of March, 1650. in the second Session (both conform to the last Act of the Parliament, 1648. must subsist and sway the said Defender his just reason, to found his Defences upon the acts thereof. It is also further considerable as to the Loyalty of that Parliament, that therein the murther of his late Majestie was declared against, his present Majestie pro­claimed and brought home, his subjects of this Nation re­conciled to him, and taken into favour, an Army appoint­ed to oppose his Enemies, the Crown set upon his head, and that Session of Per [...]h, wherein the whole preceding proceed­ings were approven, was dignified by the presence of his Royal Person.

And to the tenth Article, and that part thereof where it is libelled, That the Defender in Anno 1649. not daring to op­pose in publique, or in a direct way His Majesties home coming, he procured the Application made, [...]o be clogged with such Limi­tations and Restrictions, as were most derogatory to Monarchi­cal Government, as is alledged to be [...]re fully exprest in the Commission, Instructions and Addresses, which are repeated as a part of the Libel.

It is alledged for the Defender:

• 1. Seeing the said Com­mission, Instruction and Addresses are libelled on, and re­peated as a part of the Dittay; in all Law and form of Pro­tes, they ought to be produced with the Libel, for the rea­son adduced in the defence, against the relievancy of the pro­position of the Dittay; and till which be produced, it cannot be consistent with the said Limitations and Restricti­ons, and how far they are derogatory to Monarchi­cal Government, and therefore till then, there can be no Process.
• [Page 55]2. It is not condescended nor cleared on, which of the acts libelled on in the Proposition, this Article and mem­bers thereof are subsumed, and therefore it is obscure and inept; and in that incertitude, the Defender has just reason to deny, that it can be subsumed on any of the said Acts, to infer the crime and pain libelled against the Defender, none of the said Statutes making any mention of treating or in­fering any pain therefore; likewise after ruptures and diffe­rences betwixt a King and his Subjects, all Lawyers and Po­liticians do agree, That the best and safest way of removing the same, is by Treaty; and being concluded on, it is al­so their opinions, That the same are to be observed, at least so far as to exempt the Subjects from punishment, to whom indempnity has been thereby promised; and in this Gr [...]tius de Iure belli & pacis, lib. 3. cap. 19. is most clear, and many others, who write on that subject; and therefore the said Treaty being concluded, and after ratified by his Majestie and his Parliament, the Defender cannot be called in question for his accession thereto, nor the pain of Trea­son thereupon inferred; for the said Treaty and conditi­ons thereof being accepted and agreed to by his Majesties voluntary Contract cannot be like as a crime, far less so high a crime as Treason against the Defender.
• 3. Absolu [...]tor from that member of the said Article, be­cause not onely after the said Treaty, did His Majestie [...]a­citely remit any crime, if any was, in the said Treaty, by admitting the Defender to places of trust, by receving the Crown from his hand at the Coronation, and by admitting him to take the Oath of Allegiance, and to be a Mem­ber of his Majesties privy Council; but also after the said Treaty was ratified, there was an Act of Pardon and Obli­vion by his Majestie and Estates of Parliament oftimes be­fore alledged, and is here repeated.

Though the above written defences be relievant in Law, as to the said member, yet for the Defenders further vindi­cation, the Honorable Parliament would take notice, that all along the preceding A [...]es, all the publike actings from [Page 56] the year of God, 1640. to the year 1648. (wherein the Generality and Representatives, both Civil and Ecclesia­stick in the Kingdom concurred) are charged upon the De­fender as his particular actings, or as if the Defender had been special author, whereas in this Article anent the treating with, and home bringing of his Majestie (therein it is known the Defender, according to his bound duty) was most active and zealous, and therein he wrestled with all his might, and by his pains and Gods blessing thereon, overcame ma­ny difficulties, and did effectuate the same. The Libeller does so far detract from the Defenders faithful discharge of his duty in this so glorious action, and without libelling the least presumption of any circumstance to make the same probable, the Defender is accused, as if he had in his judge­ment been against his Majesties home coming; which be­cause he d [...]rst not avow publiquely, therefore he betook himself to underhand dealing; To clog the Treaty with Limi­tations and Restrictions; excluding the Defender from all ac­cession to the said duty, in so far as it was good; viz. To bring home the King. and making him to be the sole author of all libelled to be evil therein (to wit of the li­mitations and restrictions) whereas the truth is, he was active in the Kings home bringing, and was passive in the other, having laboured what he could that there should be as few conditions, and the same as satisfactory to his Majestie a was possible at that time to obtain, which is known to all that did transact in the said affair, and which if need be, is of­fered to be proven. And for further clearing hereof, if this Article shall be further insisted on, my Lord Advocate will be pleased to condescend who the parties were, that made the motion for addresses to his Majestie, of whom the Defendent should have been afraid, if he had been of a contrary judgement, to have opposed openly; for if the Defender had so great sway in affairs (as all along the pre­ceding Articles he is allowed to have had: and also, if he had intended (as is broadly and with foul month alledged) in the said Libel all along alledged, to have extirped and [Page 57] evacuated the Kings Majesties Authority, Government and Posterity, and had such correspondence with those abomi­nable Regicides, as all are perswaded by the said libel to be­lieve, in the said year of God 1649. when the said Traytors were strong, and both this land through divisions and o­therways very low, and when the power was in the Defen­dor and his complices their hands (as my Lord Advocate is pleased to libel and term them) who at that time had the managing of affairs; then was the fittest time and best op­portunity, if they had any such disloyal thoughts, to have shaken off that Government; but so far did they abhor any such treachery, That they not only proclaimed His Maje­sty, and according to their duty owned His Interest (even with the hazard of their lives and fortunes) there being noneso shallow but easily might have seen that the discharge of the said duty would bring upon themselves and the Nati­on the power of England (the onely power of Arms and Ar­mies being at that time in the abominable 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 qu [...] 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 [Page 54] 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 mo [...]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 [Page 55] 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 [...]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 [Page 60] 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 Dulk [...]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, notwith [...]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 preva [...]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 as then established, and to live peaceably; yea, [Page 61] 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 th [...]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 Comm [...]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 Engl [...]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 4 [...]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 [Page 50] 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 [Page 51] 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 [Page 64] 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 in person) yet in a juncture of time wherein such a War was improbable for many state reasons (which induces the Defendor to beleive that there was no Commission granted at that time) which presump­tions excusant a dolo, and without dole (as has been said for­merly) there can be no crime: And though he had been required, yet could not have been punished for his not obeying, seeing in effect he was the enemies prisoner up­on demand.

But this is conceived onely to be libelled as an aggravati­on of what followed, which is, That he joyned in open hosti­lity with the Vsurpers, forces, especially with the Colonels O­verton, and Twisleton, at the least Cobbet and Twistleton, at the least Twisleton, when he was in the Highlands, and in op­position to the said Earls.

It is answered, 1. This member is general, not conde­scending upon the particular deeds of hostility, and there­fore inept, for criminal libelling ought to be most clear, as is affirmed by Damband, cap. 30. prax. Cron. Num. 4. and should contain all the qualities of the crime alledged committed. And as to the alternative, That he joyned with one or other of them, it is most lax and obscure, and there­fore in that also this Dittay is inept: And for the alterna­tive added (at the least he gave counsel) non relevat (be­cause general) except the counsel were condescended on, and that it were such as might fall under the Acts libelled on; and the most that can be alleadged, if the time were condescended on of his alleadged joyning, is, that he was in [Page 65] company (it may be with Twisleton, and if it was, he was onely going along with him to General Monck (being sent for by him, and that when the Earl of Glencarn was un­der treaty with him, if not after the treaty was concluded, which he conceives will not be denied) and the Defendor being their prisoner upon demand by his capitulation with General Major Dean.

It is alleadged first, That a Prisoner should go in com­pany (being commanded with, and to those whose priso­ner he is) is nothing like a crime.

2. Though that had not been, yet he alleadges in answer to that member of the alternative, anent his furnishing of several peeces of great Cannon to Alured Governor of Air viz, That the Defendor and all that was his, or in his posses­sion, being under the absolute power of the Usurper, they might command him to go or to call him where they would, with whom to go along, or to bring whatever he had to them, had it been on his back had he been able to carry it: And that cannot be imputed to him for any crime (otherwise who should be innocent) when subdued; must they not give to their Enemie of their goods whatever he will have? and who in Scotland should be innocent? be­hoved not all to bring to them; that is in effect did they not take what they pleased: But as for my voluntary go­ing or joyning in action with Twisleton, or any of the o­thers named in their service, the Defender absolutely denys the same.

Item, For his taking and releiving prisoners, Non relevat, ex­cept the Prisoner were specially condescended on: Speci­ally relieving of prisoners, is not releivant to infer any crime, but on the contrary is a good office to the persons and par­ties (except it is libelled that he as Officer under the Eng­lish service took and releived prisoners, which can never be made appear, whatever the same might import. But the truth is the Defendor medled with no such things, and the Defendor shall truly relate the point of fact which he conceives hereby to be meant, which is as follows, The [Page 66] Defendor hearing that his Isle and County of [...] was pillaged, and going up the River Clydde, the boat where­in he was being followed by another boat, and the Defen­dor having asked what they were, they alleadged they did belong to the Earl of Glencarn, but could shew no warrant, and thereupon the Defendor having some suspi­cion that they were rather Robbers then Souldiers belong to the Earl, and fearing that General Monck, whom the Defendor was then going to, and whom he had never seen till that time, might get notice thereof, and make use of the same as a friare, the Defender advised them to secure their money and arms in the hands of one of his Servants upon assurance that the same should be delivered to them, after he should be certified what they were, and there­after recommended them (fearing to incur the danger of a private prison) to the Carison of Dunbarton, not un­der the notion of Souldiers under the Earl of Glencarn, but as common Delinquents for injury done to the Coun­try. And at his return after a few days (being tender that they should incur no danger) procured their re­leasement, and their names was never enrolled as prisoners to be exchanged; and according to his promise caused re­deliver their money and arms

As to the following member of that Article, viz. That the Defender took pay from the Usurper for a company of Scots under them, and in their service.

Adhering to the several exceptions against the releivancy of the propositions of the Dittay, and exceptions against this whole Article, in the beginning of the answer thereto; special [...]y that it is not condescended under which of the Acts libelled on this member is subsumed, till which be done the Defendor has reason to deny that it falls under any of them. Neither is it releivantly libelled, to infer any crime unless it had been libelled, That the defender, having com­mission for that pretended Company for the English ser­vice [Page 67] at that time, had levied or kept that Company, inro­led their names as a formed Company under the English and their Regiments, and engaged them to the Commonwealth and their service; because these are required in a Souldier in any service.

• 1. That he be Relatus in numeros, that is to say inrolled, per lexeod. 42. Y. de Test. milit.
• 2. Vt praester Sacramentum, that is, that they gave the oath ex milit 11. F. eod. & viget 2. cap. 6. or that the defen­dor had imployed them in the English military service, or in execution of their orders, all which the Defendor abso­lutely denies, they never having been inrolled, given any oath or Engagement, or imployed in their service, as is said.

But on the contrary, and truth is, there uses to be in the said Shire, and all other places in the Highlands in broken times Watches to keep off depredations, maisterful reifs, and other oppressions amongst the Country people, them­selves and their neighbors in such times: And according­ly in the year of God 1653. or thereabout, the Shire of Argile not being able to entertain their Watch, and pay Sess also (not being as yet well planted after the burning) General Monck was prevailed with to help to entertain the said Watch (likeas at the same time also several other Shires bordering upon the Highlands, as Inverness, Pearch shire, Aberdeenshire, Sterling, Dunbarton, all of them had Watches the said times, and allowance therefore from the said General Monck) who within two moneths did with­draw the said allowance from the said Watch of Arguile­shire, because they refused to engage against those who was then in the hills under the Defenders Son and others, whom the said General Monck also alleadged that they favoured; and thereupon withdrew his help and allowance for the said Watch, and spake of the Defender what his Grace pleased.

And to evince that this was nothing but a Watch, the men were not in a formed Comany, but several Gentle­men [Page 68] men in the Shire had the ordering of several numbers of them at convenient and needful places of the Shire, with proportionable entertainment, and without subordination as ordinary Souldiers; All which is not our, and if need be the Defender offers to prove. And the Duke of Al­bemarle it is hoped will remember how much offended he was that the Defender would not engage the said Watch against the said Lord Lorne and his Parties, and what prejudice he did still entertain against the Defender up­on the said publick account. As also Colonel Robert Lilburn, when the Lord Lorn and Kenmoir went to Ken­ [...]yre in the year One thousand six hundred fifty and three. The said Lilburn immediately upon the notice thereof having come with a considerable party of the English Ar­my to Dunbarton, and sent to the Defender to meet him, and to go along with him in Arguile towards Kentyre: If the the said Colonel does not know and perfectly re­member that the Defender shunned the meeting, and would not go, whereupon he returned back with the forces af­ter he was at the length of Lothlomond, whereupon the de­fendor humbly craves that he may be urged to declare; As also that the Countess of Balcarras may be examined, if the defendor did not assist her and her Husband in their passage through Arguileshire, as they were going to a meeting at Finlarig, for the business in the hills, in the year One thousand six hundred fifty and three. Neither can it be alleadged. That the defender or any of his people did the least prejudice to any person or party that professed to be for his Majesties service; albeit if he had been so disposed, he had and might have had several opportunities to have done the same.

As for the Member following, That the Defendor called the actings of His Majesties Forces against the Vsurper, Rebellion.

It is most general, neither condescending on time nor [Page 69] place, and therefore irreleivant and inept, but when con­descended on he nothing doubts, but that shall appear he spoke no such things, nor had he ever any such constructi­on thereof.

As to the last deed in the said Article, That the Defender in anno One thousand six hundred fifty and four, took upon him power to bring off such as was in that service, and to give remissions therefore, and particularly to John Mac Dowgall.

It is general neither condescended on time nor person brought off, and therefore inept, and irreleivant. And if it be meant only of the person named, viz. John MacDow­gall of Dumslich, it will never be made out that he was in that service, when the Commissioner his Grace, and the Earl of Glencarn was in the field; nor that ever there was a Remission granted by the defender to him or any other in relation to that service.

As to the Twelfth Article and first member thereof, anent the defenders countenancing and assisting by his personal presence the Tyrannical and Treasonable Proclamation of Richard the Usurper and Protector of His Majesties Dominions at the Mercat cross of Edenburgh and Dunbarton.

The defender is so notoriously innocent of this Mem­ber of the Article, that he might with much confidence (in place of all other defence) simply deny it. But he will do no more for defence and clearing of his innocency, That where he is to propone his defence of alibi, that there month and day must be condescended on, whereof none is conde­scended on in this member of the Article; and till this be condescended on it is inept, and the defender ought to be assolzied therefrom; But the days of the said proclamation at Edenburgh and Dunbarton, being condescended on, the defender offers him to prove that during these days he was alibi, and neither at the City of Edenburgh nor Dunbarton all these days.

[Page 70]As to the second member, anent the Defenders procuring himself elected a Commissioner for the Shire of Aberdeen; and accepting a Commission from them, to Richards pretended Par­liament, and sitting and voting therein as a Member of his pre­tended House of Commons.

That the English Usurpation was one of the most horrid Usurpations that ever has been in Europe, against all Di­vine and Humane Law, against the most uncontroverted right of the most Illustrious of Kings, our dread Sove­raign, and his most Royal Father of Eternal glorious Me­mory, none of common sense or honesty will controvert [...] Next the said Usurpers having nothing but an unparalel'd, unjust detention of that power, whereunto no manner of way they had the least right, or any title whatsoever; but in place of a title, armed Violence and Force: The onely mean (for title they had none) whereby they both de facto attained, and violently detained that possession, unjustly, of that power whereof the onely right was, and possession ought to have been our dread Soveraign. Who­soever by Arms, Counsel or otherways, aided or abetted that armed Force, in establishing de facto of the power in the persons of the Monsters of men, and so in setting up of that abominable Usurpation, that he is guilty of the highest Treason, is heartily acknowledged: But the Usur­pers having treasonably thrust their and our Soveraign, his Majestie, from all possession of his just right, and ha­ving taken upon them the Supreme Power; and being possesst (though most unjustly) yet most peaceably there­in, and keeping the same by force, as they had taken it, the case then became most singular, as to what the poor oppressed subjects under their force might do, hoc rerum sta­tu posito, in this state of affairs wherein the Usurper had treasonably put them Luck Lama: and most accute Iuvis, [Page 71] Consult. Ecclog. 6. membran. in L. 3. de Officiis pratorum ob­serves learnedly, that Distinctio fieri debt inter personam ejus qui Magistratum gerit (cum tamen jus ad Magistra­tum non habeat) & ipsum Magistratum quam gesserit, per­sona enim ejus est privata hic publicus, & in publicis non tanta persona quam utilitatis publica habenda est ratio, ut enim tutela ait, Cicero, p. I. Offic. sic procurato rei pab. ad utilitatem eorum qui Commissi sunt non ad eorum quibus com­missa a gerenda est, & sapientes deficiunt nihil aliud esse imperi­um [...]si curam rei aliens ut ait Amicanus Marcellanus lib. 29. that is, ipsiusre [...] pub. so Licklama distinguishes betwixt the person of him who unjustly de facto Magistracy (whose person is still but in effect private, and in the case of that usurpation a Traytor) and the Magistracy which he carries, which is publique.

Likewise, it would be distinguished betwixt Acts con­curring with the Usurper, transferring de facto in his person the power he usurps (which are treasonable against the law­ful Soveraign) and acts, whereby the opprest subjects make use of the power now usurped, wherein the utility, not of the Usurper, but of the subjects is respected, as Lucklama observes, ubi'sep. And then Grocius, lib. I. de Jura belli & pacis, cap. 4. num. 15. speaking de juvasove imperii, of any uniust invades, while his possession remains unjust, says, the acts of power is binding for the good of the Common­wealth; and because it is probable the lawful Governors will is, rather the Vsurpers command should be obeyed, or take effect, then that Laws and Judgements should fall in confusion in their terms, Restat at de invasore imperil videa­mus nunc postquam long a possessione vel pacto just noctus est, sed quam diu durat in ju [...]ae possidenda causa & quidem dum possi­det actus imperii quos exercet vim habere possunt obligandi non ex ipsius jure (quod nullum sedex eo quod omnino probabile sit eum qui jus imperandi babet sive est populus ipse, five Rex, five Senatus te male int rim rata esse que imperat quam, legibus Indusque sub talis sunsman induci confusionem: and Lessius, who is one of the Authors Grocius cites upon the place, [Page 72] says, In the place cited, viz. Lib. 2. de Justicia & Iure, cap. 29. dub. 9, F. 37. That Tyranni usurpatiene potestatis mandatis obtemperandum propter bonum commune; which is, that the Tyrant and Vsurper is to be obeyed, even from the Law of Nature, for the publique good, in such a state of af­fairs; and addes, alioqui omnia esset plenalatrociniis & fur­tis: That is, all would be full of Robberies, Thef [...]s and Confusion in that state of affairs, because of the Vsurpers force, the use of no other Government can be had; so that the necessity of the benefit of Government for the good of the subjects or Commonweal (especially in what relates ad reipublica statum, in things necessary for the standing of the Commonweal, or to evite the ruine thereof) and the interpretative and presumed consent thereupon of the Prince, who has the right to the Authority which the Vsurper has usurped, but is excluded by the Vsurper from benefiting the subjects by it himself for the time, are the two grounds whereupon the making use of the power now in the hands of the Vsurper is founded, as is said: Where­upon it is subsumed, that in our case, the Invader and Vsurper Oliver having violently taken upon him the power, after he had put his and our Soveraign from the possession thereof, opprest by his Armed Force this Nation (and a­mongst others the Defender;) and Oliver having kept the possession all his time, and Richard continuing the same, the benefit of that power (which now he had usurped, and whereof he was in possession) was, as always it is, so necessary for the standing of the Commonweal, that with­out it men become but as fish in the sea, the lesser a prey to the oppression of the great; but especially, the said Richard having called a pretended Parliament, and commanded the Shires to send Commissioners thereto: Meetings and Re­presentatives of the Nation, as they are of great use at any time, for treating common affairs of common consent, so transcendently at that time, for moderating the Arbitrary Tyranny of a Vsurper; and that, not being able to expugn his force, they might by strength of Common-Counsel, [Page 73] overcome and perswade his reason to things absolutely ne­cessary, for the subsistence at least for the preventing the ruine of the whole body of the Kingdoms, and of his Ma­jesties Leiges therein, as was the stopping that miserable uni­on, which the Defender knew that it would be, as it had, been before, at even other Parliaments, so at that strong­ly attempted, as indeed thereafter it was; which union was that Vorax, wherein our Religion, our ancient Go­vernment Monarchick in his Majesties Person and Family, and the interest of Nobilities and our Liberties; were wholly swallowed up; and under pretext of being united, we were really enslayed to that pretended Commonwealth: The easing (if they could not perswade him to the taking off) of the maintenance and Sess (which upon Scotland, was six triple more then the proportion of England, and in it self so heavy, with the Excise and other publique burthens, laid by the Vsurper on it, that more was exacted in one moneth, then his Majesties Royal Predecessors would have imposed or taken of Taxation for an age, so that the Coun­trey could not subsist under it;) as also taking off some of the Forces under which we were kept in bondage, if that at least could have been obtained: The prevention of the al­teration and change of our whole Laws (which was vehe­mently threatned) yea, and in general, the confounding and (dolo optimo) circumventing and defeating of the coun­sels by which the event proved, it was more hopeful and easie to overcome that force, then by might or power. And as the liberty of the Election of the Members in England, at that time of Richards Parliament made service to his Ma­jestie in it, hopeful to all his Majesties friends and loyal subjects; so was it no small encouragement to the Defender to go there for the same end, and at the meeting in the Com­mittee of Scots affairs, and several other meetings, when they were upon the debate of the said union, the Defender (of purpose to stop the same) did propone, that there could be no union, except it were agreed, that we might en­joy [Page 74] joy our Religion in Scotland without alteration, as it was established by our own Laws; and that we might be ruled and judged according to the same Laws, and except our Sess were proportioned according to theirs in England: All which concerns the Defender knew would never be granted; and were indeed so utterly improbable at that time, that the proposition thereof was construed for no other end, then for the end aforesaid, to stop the said union: Likewise, it did so well succeed, as in effect it did obstruct it (as the seve­ral persons of quality that were present can, and if need be, will declare;) and at that meeting, the actings and usurpati­on of the Vsurper Oliver, and the oppressions of that Army were of purpose much called in question, to make that Go­vernment and them odious, which accordingly happily fol­lowed, and such a breach and confusion amongst them was made, that their affairs thereafter could never come to any consistency, which made considerably and evidently, way to his Majesties happy and glorious Restitution: To all which joyning, That the call and command of the arm­ed Force, has Purenes necessitates, a necessity of obeying ly­ing upon persons under their power; it will follow from what is alledged out of these abovecited authors, founded strongly on reason, the Defender in that state of affairs had necessity 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 [Page 75] (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 [Page 76] 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 above­written place, speaking of them that seeks from Vsurpers that use of Government, whereunto he says, they are [Page 77] 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, [Page 78] 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 the first member thereof, anent the words alleadged spoken at Innerary.

• 1. No time condescended on, and therefore the libel in that part is inept for the reasons afore mentioned, for which a criminal dittay ought to be special in the time at least year and month.
• 2. Whereas it is libelled, He rebuked the Ministers for praying for the King; in the words libelled, or some such like words; Non relevat as to the Ministers, except the persons were condescended on whom he rebuked.
• 3. Nonrelevat, Some such like words; some such like being most general, except the words were particularly li­belled, alleadged to be such like, whereby the defender might advise his defences, and alleadge why they were not such like, as he would, if any words ever he spoke were condescended on. For the truth is he never spoke any such words: And was so far from rebuking any for praying for the Kings Majesty, That after the defeat at Worcester (which is the general time libelled, wherein he should have rebuked the Ministers for praying for the King) he himself caused continual praying for His Majesty both in his Parish Church and family, yea even in presence and audience of the English when they came there, though [Page 79] it was to his great hazard so to do.

As to the second Member anent the words libelled and alleaged to have been spoken by the defendor at Lon­don, That he wondered how the people should be so mad as to call home a Family whom God had rejected, and would never restore; or some such like words.

• First, This is also general, neither time, that is, year nor moneth, nor particular place condescended on.
• Secondly, It is libelled, That it was in the presence of persons of quality, they ought to be condescended on.
• Thirdly, In so far as it is libelled the defender said The people was mad to call home His Majesty: It is general and inept, not condescending what people, and what was the occasion; if there was any motion made of calling home the King, whereupon that should have been spoken, and among whom it was: And Damhanders cap. 30. prax. com. num. 4. and others says, A criminal Dittay should be most clear and contain, Omnes criminis patrari qualitates, lib. 30. F. de accus. & Bart. and others, ibid. That it should contain all the qualities of crimes alleaged to be commit­ted.
• Fourthly, Some such like words, Non relevat, except the words were specially condescended on, which if they were the Defender would alleage and evince they were no wise such like, for the truth is, he never spake any such words, but on the contrary did all that he could there to make way for His Majesties happy Restitution; as has been at length cleared of before.

And was a very suspected person, in so far as in the year One thousand six hundred fifty seven, Oliver was so jealous of the Defendor, That he commanded him to stay at London, and not to return to Scotland, till his affairs (as he was pleased to express) were settled: So that not without great difficulty, by the mediation of the Lord Brongbil and Charls Fleetwood, he obtained his liber­ty; [Page 80] whereupon the Defender desires the said Charls Fleetwood to be examined, which he also desired at Lon­don. And not onely was suspected as odious to the English for his known affection thereunto: As is notorious and has also before been exprest.

As to the third member of the said Article, anent the al­leadged speech in Mastertones.

• 1. Neither the year nor month condescended on, and therefore general as to the time, and inept.
• 2. As to the first member thereof, That he would own any thing he had done.

First, It is exceedingly general, and not releivant, except what were the things he had owned were specially conde­scended, and what time, year and month; it is an unparalleld generalty, and therefore till made special, no process there­upon.

Secondly, It can import nothing in common sence wherein to own a thing is to acknowledge it for a mans own, But what he had acknowledged to be his own whether word or deed, he would yet acknowledge, which is an expression of ingenuity, and no crime, and this being the received sence of owning, the word cannot be strained to any other sence, or if occasion should be taken so to do, and that another sense could be put on that expression, yet being more interpretatio capienda est, the most-being interpretation is to be taken. Perd. ea qua S. I. 1. F. de reg. Iuris, as being both justest and safest by that Law. And in ambiguous speeches, or such as may receive two sence, eve­ry man is the best expounder of his own mind, and his inter­pretation ought to be admitted, per Leg. in ambiguiis F. de reg. Iuris and other laws. But the sense aforesaid is so plain that there is no place for caption.

As to what follows in the said member, That if what he had owned or done were to do, he would do it again, albeit he had known that all that has been would have come.

• 1. As is alleaged against the first part of this member, this is exceedingly general, but as to the time and month he should have spoken it on.
• [Page 81]2. As to what the things are that he would doe if they were to be done, and that time the things were done or owned to be done, on that the saying that he would doe if they were to doe is a crime.
• 3. What were those things in particular, that are understood or may be subsummed under the ge­nerall of all things that has comed to passe, where­upon it may be inferred, that that were a crime to the Defender to have said, that notwithstanding of them he would doe what he had done if that were to doe; and therefore the Libel in this part of the member is also general, obscure and inept: And to evince the ineptitude of this generality, suppose the Defender were thus indicted; You are indicted for all that ye have done the times by-gone preceeding your being in Iames Master­tonnes house after your coming for London, were not that ditty without all controversie Irrelevant? Then is it not also Irrelevant to be indicted for owning in general that he had owned, or saying in general, that he would doe that he had owned du­ring that time if that were to doe again, without any further particular condescendance.
• Like as 4. There is a very clear and obvious and benign sense these words may have (if ever he spake, as he truly never remembers that he spake any such words, viz.) that if it had been possi­ble that times could have returned, and actions to be done under the same circumstances and repre­sentations they had then, it is probable these same might be the Defenders actions again, though he had known that had comed thereafter, not having [Page 82] connexion with or necessary dependance on these actings, each does not so much as import his pre­sent thoughts or approbation thereof, but is very consistant with a present disapprobation of the same; And is it 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 benignior [...] pre­ferenda sunt, (as has been said) in speeches du­bious, [Page 83] 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 quae [...] ss. 1. F. de reg. Iuri: And odia sunt restringenda favores ampleand [...]: 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, [Page 84] 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 refu­ [...]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 [Page 85] 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 w [...]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 [Page 86] 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 him for con­cealing and not apprehending. 1. It is generall as to the time when Cromwell should have told it to him, and therefore inept till the time be con­discended on, which must be, especially seeing if it be not condiscended on, to have been after the Ingagement was broken; nothing can be sub­summed on the said act thereupon against the De­fender, nor on his not apprehending him, for he was not holden thereto by that act expresly, except (according to Law) it had been in his power: But so it is, it is known that at that time it was not in the power of the whole Kingdome to appre­hend him, whether his victory or strength be con­sidered, or the Kingdomes low and weak conditi­on, at that time, wherein they lay open to ruine by him, if the Lord had not restrained him more nor [Page 87] their power could effectuate; and as to the con­cealing and not revealing, the Defender ought to assoilzied, because by the expresse words of the act, that revealing is declared to be such a reveal­ing to some of his Majesties Privy Counsell, or some under Officer, &c. as that there through the Authors of slanderous speeches may be called, try­ed, and punished; but that cannot be subsummed, except it were subsummed, that the speeches were spoken before witness, otherwise could not have been proved, and without probation could not have been so urged, as that sentence could have been given thereupon, and the Author punished, according to the words of the act, (which is al­so according to Common Law, and which is here­after cleared); like as if the word thereafter should have been found treasonable, and the De­fender not being found able to have proved them, he should have brought himself under the crime of treason, for accusing another of treason, and not being able to prove it, and therefore could not be holden so to do: As also albeit the Defender had heard any such words as is libelled (which he altogether denies) and that before witness, yet through his revealing thereof the Author could not be tryed or punished, for it is noturly known it was above the power of the Kingdomes, at that time as said is, or for many yeares thereafter, to punish him; and therefore the Defenders not re­vealing cannot be subsummed upon the said act of Parliament, to inferre the pain contained there­in, or related unto.

[Page 88]Lastly, the pains of the said Act, and other Acts before mentioned together therewith, is not the pain of treason (as has been oft before evinced) and therefore the Defender cannot be convened for treason, or the pain thereof upon the said Acts, but ought to be assoilzied therefrom.

But if this member of this Article be intended to be subsummed under the last part of the pro­position of th [...] ditty, whereby it is alledged, that by Common Law and practice of this Kingdom, all concealers and not revealers of any malitious pur­pose of putting violent hand in the sacred person of his Majesty, or purposing of killing and putting him to death, are guilty of treason; the Defen­der protesting his Innocencie in never concealing any such purpose, nor the words aforesaid libelled (which he abhorres) he is so far from justifying thereof, judging the horrid murder of his Majesty to have been the very ruine of our peace and happiness; yet as to the releivancy of that part of the proposition, in so farre as is founded upon Common Law and practice only: The Defender because of the preparative repeats what was be­fore alledged in the answer to the proposition, in that part thereof; and adds further, In crimine lesae Majestatis, in the crime of lese Majesty, Num sciens tractatum proditionis contra principem vel patriam & illum non revelans sit puniendus poena mortis, That is, whether he that knows a Treaty a­bout treason against his Prince and Country, be punishable by death; Clarus l. 5. S. fus. pract. crim. quest. 57. sayes, that many hold he is pu­nishable [Page 89] by death: And that Cognol, in his lib. Culpa caret F. de reg. Fursi num. 2, that it is the common opinion, citing Alciat. in lib. tacere F. de. verb. sig. & m. l. Bona fide, num. 20. F. de pass. & in lib. 4. of Cato num. 30. F. de verb. ob­lig. related also by Gigas, de crimine lesae majesta­tis fol. 180. num. 10. Roll. Cons. 88. num. 10. lib. 2. Careluprac. crim. fol. 253. num. 29. saith, that all others follows this opinion: and Baldus cries out in one certain Counsell, that because Bart [...]l held otherwise, therefore his soul for that as a crime is tormented in hell, where it is clear, that even by Clarus acknowledgement (which is very high Treason) is not Treason by the common opi­nion of the Doctors, according as is asserted by the famous Authors he cites, and whom he contra­dicts not therein. 2. And Clarus nothing con­tradicting, but this is the common opinion, albeit he be of another with Bartol; that is capitall to conceal and not reveal, yet it is only in two cases, to wit, In tractatu qui fiat contra ejus personam vel statum: That is, where he has been conscious to, and known any Treaty or Consultation against the Princes Estate or Person: But as for other causes he holds expresly, that the concealer, and not revealer, is not punishable by death, in these words, In aliis autem casibus etsi sent comprehens in crimine lesae majestatis non putatem esse punien­dum paena mortis subditum qui non revelaveret: And that he counsels Princes, even in these cases to use clemency and humanity rather then severity, and to execu [...]e their Subjects, upon any probable [Page 90] cause, from the pain of death. Whence 3. It is alledged, even according to Clarus his opinion, concealing not releivant, to inferre the pain of death, except where the concealer has been conscious to, and heard some treaty; that is, deli­berate consultation against the Prince or his E­state: But so it is the words libelled, especial­ly what is alledged to have been heard in Parlia­ment, 1649. seems not to import that, being, as would appear, but volitantia verba, if any such thing had been heard, which the Defender abso­lutely denies; and importing indeed the authour Cromwels thought or opinion, that there would be troubles still so long as his Majesty (horrendum dictum) were not put to death: But Clarus lib. 5. prax. crim. F. fin. num. 87. distinguishing betwixt cogitationem nudam, a naked thought, and trada­tum or a treaty or consulting, he affirms, that a naked or sole thought is not punishable in any crime, no not in Lese Majesty, except only heresie, when guilt is perfected in the mind: And thereaf­ter num. 2. he moves the question, Sed pone quis non steterit in meris terminis cogitationis sed ul­terius etiam processerit ad tractatum, cum aliquo de ipso maleficio committendo: But sayes he, put the case that any has not contained himself within the bounds of a thought, but has proceeded further to treat with any for committing the crime, &c. Thereby making a clear difference betwixt a clear sole thought and a treaty, about committing the crime: Now the words as they are libelled do not import any treaty with any for committing that [Page 91] horrid Murder, but the signification only of Crom­wels damnable thought, what might be the Conse­quence of not taking of the Life of our dread So­veraign.

And hence 3. It will follow, that these words cannot be subsummed releivantly, under that part of the proposition of the Libell, because that any sense these words seemed to have as they are li­belled, would appear only to import his naked thought of what might be the consequence of ta­king the life of our then dread Soveraign, but no purpose of his to take the same; neither could any presume, albeit his thought anent that conse­quence had been true, (as it is most contrary to the truth) that yet any man, in whom there had been the least sparkle of common reason, or con­science, would have purposed to commit, or com­mitted one of the highest evils of sin, to evit (though) very great evils of punishment, it be­ing a received rule among men, at least among Christian-men, That the least of the evils of sin should not be committed to evit the greatest of the evils of punishment.

4. Gomz a most excellent Lawyer is clear in his third tomb-variar. Resolv. de crimine lesae ma­jestatis, num. 8. That concealing even of treason is only then punishable, when the concealer might prove it otherwise, not per text. leg. nostris, in fine cap. de calumniat. & L. quae. accus. capite: cap. de edendo: whereby it is said, that whosoever coun­sels to accuse, should have his proofes ready, and who accuseth falsly shall be punished as the party [Page 92] accused would be if the accusation were proved; Gomz citeth the Canon Law, Platia, Hippolatus, and others for their exception, which a fortiori holds in our Law, whereby by the 49. Act Parl. II. Iam. 6. accusing of any of treason, not being able to prove, so that the party accused be acquit, be­ing so farre reprobate be our Law, that it is decla­red, that thereby the accuser shall incurre the same crime of treason whereof he accused the other, is a sufficient warrant to the Defender, not to have revealed that of Cromwell, if there had been any such speech, as the Defender never heard any such, except he had witness to have proved it; which neither is libelled, nor can be alledged, and therefore he ought also to be assoilzied there­from.

5. All these Laws anent concealing and not re­vealing (as the Defender humbly conceives) must be understood where the treason is privately plot­ted, and the execution thereof is carried on by secret conveyance, and which by revealing might be crushed and prevented: But it is not our that the Usurper, as he had the power of armed force, so he had the unparalleld boldness, to carry on his execrable treason most openly, and that his power was such, as it was impossible for his Majesties poor Subjects of this Kingdom to resist (nor yet his Majesties other Kingdomes, thoguh far more powerfull, and that many thousands of them from their souls abhorred the said act) or prevent, and impede the same. And if the Defender had heard any such words of the Usurper (as he has [Page 93] just reason to deny he never heard) what ever they should im­port; what probable reason might have been, for not reveal­ing it at that time, from the prevalency and power of that ene­my, the condition of our poor Country, and utter impossibility to bring him to punishment, beside the want of probation, and so what place there were to Clarus his counsel of humanity, the Defender leaves to the Commissioner his Grace, and the ho­nourable Estates of Parliament to judge.

6. What ever relievance there were in the Defenders con­ceiling, yet his acknowledgement thereof in Parliament 1649. As libelled non relievant to infer or prove it. I. Because a con­fession that prejudgeth a party must be Judicial, that is, In Iu­dicio, idque, utroque, Iure, & Civili, Canonico, as says Panor­mitane, C. Ex parte Decret. de confess. num. 16. That it must be in Judgement in a Process, wherein he who confesseth is convened, as is clear by Leg. 6. F. de Confess. Where the words are, Si dum quis convenitur, confiteatur, that is, If any be con­vened, confess, &c. and Panormitane dicto loco saith, That to the end a Confession may prejudge him who confesseth, it must be among other requisites, super re litigiosa, that is, on any thing letigious, or any thing in dependance or Process per. L. in con­fessionibus, F. de Interrog. ait, The words are, Confessionibus falsis respondentes, ita obligantur si ejus nomine de quo, quis Interrogatus sit cam aliquo sit actio; that is, any in making answer is oblidg'd by false confessions, if there be any action of dependance a­gainst him, upon that whereupon he was interrogate and con­fessed, and Panormitane is express, ubi supra, That non valet confessio, facta coram Iudice tanquam in judicio, nisi Iudex ad hoc sodent per Bartol. in lib. si confessus, F. de custod. reor. that is, a confession is not valid, though made before a Judge, as in judge­ment, except the Judge be sitting on that business; whence it is clear, That the acknowledgement libelled is no wise relie­vant to infer against the Defender what is libelled to have been thereby acknowledged, except it were libelled that he had been in judgement conveened thereupon, or that there was a Process depending against the said Defender, wherein he had [Page 94] confessed what was libelled in judgment; and the Parliament had been sitting on that Process, but so it is, that neither is it, nor can be libelled, and therefore his naked acknowledge­ment not relievant, and in effect, if in any discourse before the Parliament, any such word had escaped the Defender, (which he no wise acknowledges) yet that such a passing and indeliberate word, should infer or prove a crime, or so high a crime against him, he is hopeful the Honourable Court of Parliament will be very far from ever finding; for the very reason why confession has so much weight, is because it is presumed that no man will con­fess against himself in judgment, that whereupon he is convened and processed without great deliberation, which holds not if the acknowledgment be given out of any process, there being no dependant action or processe upon the matter thereof: And therefore the Defender is confident that he needs not trouble the honourable Court with more legall dispute against the rele­vance of the alleadged acknowledgment.

7. The words or acknowledgment lybelled as spoken in Par­liament, 1649. Can never be obtruded to the defender, nor that he was conscious to the Counsell of that horrid murther of his late Majesty, because it is notour, and he offers him to prove if need be, that the whole Members of the said Parliament, 1649. And he himself amongst others in plaine Parliament were purged 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 [Page 95] 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 [Page 96] 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.