THE MARQUIS of ARGYLL HIS DEFENCES AGAINST THE GRAND indictment OF HIGH TREASON, Exhibited against him to the PARLIAMENT IN SCOTLAND.  
Anno. 1661.   

ADVERTISEMENT.  
REader, be pleased to know that there was some short Answers printed formerly to this grand indictment, as also in answer to the other printed particular Charge at the instance of Sir james Lamond, which were only penned upno the first view of the two-charges, and published to give a compendious clearing till their following defences should be made ready. You are likewise to expect additional afterward.   

THE MARQUIS OF ARGYLL His Defences to The main Charge of High Treason  
Preface  
THe defender professes his sense of the mercy and happiness of the land, that we are delivered fra the lawless arbitrary power of the armed force of cruel usurpers, and have restored to us our only lawful sovereign Lord, and in his sacred person, the authority or law, the order of Legal judgement, and in them the liberty of legal defences, thereupon depend, the great security of the liberties lives and estates of the subject, this gives the defender confidence to appear in Judgement, nothing doubting of a fair 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 sovereign 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 legal and just defences; and that they will proceed so far without all ground of suspicion 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 capital enmity or has been any ways informers against the defender, o● have predetermined by uttering the judgement already of his cause, 〈◊〉 and honour will will make them abstain sitting and voteing therein, So much the more that they see howunwilling he is to propone any seculatory against 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 defers to the ingenuity or generosity, and so high is the honour he bears to this honourable court.  
First it is alleged That there be no process, nor is the defender holden to answer till the whole libel 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 alleged) and the commissioners at Breda are expressly repeated as a part of the libel brevitatis causa, in the tenth article, and yet the same we has not been produced nor given to the defender to see and advise with, Till which be done he cannot be held in to answer like as where points of the dittay are founded upon wreat. The defender craves that he may have up the writes whereupon the 〈…〉 ●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 Judge Other wise, the defender cannot prepare himself for his defence which is the reason given in these laws, Powder 〈…〉 cent. 16. and the Doctors throughout the said law● & l. unius Sect. 9 F. do quest. post all to l. 2 Mun. 3, 4, 5, 6, co dedendo Bart. ad leg. ubi min. 8. F. the quest Borachia so, It is the are several Article in this ditty founded upon wreat not produced as in the first articles the prosecution of Mr. john Steward to death, as a leasing maker between the King and his Subjects lybeled and yet neither libel nor sentence against Mr. john produced.  
Item. Colonel Henrisons commission for keeping Dumbartax Castle is libelled, and the commissione not produced.  
Item. In the sixth Article a capitulation alleged 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 alleged 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 etc. to the town of Edenb.  
Item. In the ninth article 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 libeled that the defender and his complices wrote to Cromwell, etc.  
Item. In the same article Sir john Cheeslies Instructions libelled as being dated the 17. of October 1648. desiring the persons taken in the engagement to be detained as pledges of that Kingdom's peace.  
Item. Eod. Art. the warrant alleged to be under the defenders hand for a proclamation against the families of Ogilvi and Rari.  
Item. Art. 10. The letter alleged 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 alleged given to john Mc. Dogall of Dimolich. under the defenders hand  
All which the defender humbly alleges ought to be given up to see before he be held in to answer especially post tanti temporis intervallum so long a time having intervented between the intention of this pursuit, and the dates of the said Act and papers foresaid libeled on. Some of them being twenty years ago some fifteen, and the latest ten or eleven years, as has always been the practice in such cases and may be instanced in my Lord Balmerimo his process, and was found by this honourable court in Mr. James Guthries' process.  
Secundo under protestation that the former exceptation may be first discussed, that the papers therein mentionate ante omnia be given up to the defender to see, it is alleged that as it has been always the Princely care of his Majesties, royal antesessours, to keep the Laws of this realm certain Ne dum incerto utemur iurefluctuaret respublica, and least law which is introduced for the lieges security should become their snare therefore be King. jac i. that illustrious Prince Parliament 7. cap. 107. All the interpretation of his Majesties statutes, otherwise then the samen bears is forbidden, and if forbidden can be no ground of dittay, and in effect to found a ditty upon statutes otherways then they bear were to found it upon such statutes we have not, bot so it is in the proposition of this libel The Acts of Parliament where upon the same is founded, are otherwise repeated than they bear for. 1. The first part of the proposition of the Dittay founded upon the two first Acts of Parliament libeled, viz. the third Act of the 5. Parl. of King jac. 1. And the first Act of King jac. 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. jac. 1. being annent the fees of Craftsmen, and the price of the work. And, the 1 Act of K. jac. 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. jac. 1. is mistaken in the writing for the first Parl. And in citing the first Act of K. ja. 6. the citation of the number of the Parl. is also omitted, viz. the number 18. The Dittay repeats these two acts other ways than they bear, for the words of the said 3. Act of the 1. Parl. being jac. 1. statutes and ordains, That no man openly or notoriously rebel against the King's 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 jac. 6. The words thereof are cited, yet with some difference and transposition libeled, 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 Majesty's 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 jac. 2. and the 75. Act. 9 Parl. Q. M. Is not repeated as it bears as to punishment, for therein they who attempt to do or raise any bands of men, of War, Horse or Foot without any speciale licence of his Majesty, and his Successors, are only declared punishable by death, whereas they are libeled to be punishable as Traitors, while it is the pain only of the said 25. Act. Parl. 6. jac. 2.  
Item. In the next Parl. of the proposition of the Dittay founded upon the 43. Act. 2 Parl. jac. 1. and the 134. Act of the 8. Parl. and 10 Act. 10. Parl. and the 205. Act. 14. Parl. of King jac. 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 jac. 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. jac. 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 council or proceedings, or to the dishonour of his Majesty's 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. jac. 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 Laws or acts of Parliament, or misconstrues his Majesty's proceedings whereby any misbelieving may be moved behind his Majesty and Nobility, and his loving Subjects. And the pain thereof is only the pain of death. And by the 205. Act 14 Parl. jac. 6. These that hears the said words leasings, and doth not apprehend and reveal the Authors thereof, shall incur the like punishment with the principal offenders, and yet leasing making and telling which is the crime punishable be the first of these Acts, viz. 43. act Parl. 2. jac. 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. jac. 6. And only speaking to the dishonour of his Majesty, Parents and Progenitors, and meddling with the affairs of his Highness' Estate is repeated out of the said Act 134. and joined to the crime contained in the said Acts 10. Parl. 10. jac. 6. and to both the pains added of losing 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. jac. 6. Is only the pain contained in the Acts against leasing Makers which in the said 43 act Parl. 2. jac. 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 Laws, goods are understood movable, 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 Movables. And be the Act 90. Parl. 6. jac. 1. The receipt of him who is fugitive for slaughter, is forbidden under the pain of tinsel of life and goods (Where Skein expounds goods to be goods movable, 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. jac. 2, & passim alibi forfeiture properly relating to lands; and in the common signification of our said goods to be understood of goods movable.  
Secundo. More specially it may appear, that the pain of the said 43. act. Parl. 2. jac. 1. given to the said 134. act Parl. 8. jac. 6. relates in the pain thereof, is only the pain of escheat of Movables, 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. jac. 1. nor of the 134. act. Parl. 8. jac. 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 itself, and therein expressly mentions both the said 43. act. jac. 1. and 134 act. jac. 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 expressly says, is the tinsel of life, lands and goods, and declares, that he understands by goods, movable 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 movable goods, or life only, or of some less pain in body or goods, but never of life, lands and goods, as is clear thorough the whole tract at that follows. 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. jac. 1. And the 205 act. Parl. 14. jac. 6. and in his 25. cap. hes the crime of infamous and seditious Lybels. And the said 10 act. 10. Parl. K. jac. 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. jac. 1, and 144 act. Parl. 12. jac. 6. It is libeled. That all Recepters, Suppliees, or Intercomoners, with any Trators, are punishable by forfeiture, as the Traitors themselves, which is not as the act bears, for both the crime and pain libeled out of the said 144 act. 12 Parl. jac. 6. The act is not simply against those who intercomon with traitors and rebels, but with such as are declared rebels and traitors from all which it follows, that the proposition of the lybel is founded upon the acts as they are 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 Sovereign 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 practic pass in this honourable Cou●● of Parliament of founding a dittay of Treason upon common Law and Practice. It is under protests 〈◊〉 on foresaid, and with all humility alleged against the relevancy of that part of the proposition as founded upon the said common Law and practice, That it is not relevantly founded thereon in so far as by the 28 act. Parl. 1640. it is expressly found and declared Traitors, but after trial 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 practice 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 expressly, paena indici non potest nisi expresso jure sit cantum per l. at si quis divus fad. Reli & sumptibus funerium. And it is the common opinion of the Doctors, That ever when punishment is not expressly defined 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 practice, as said is.  
4. If a dittay to infer the crime of treason might be founded on practice, either of the justice Court or Parliament, which are two courts, before which crimes of treason are judged; yet our practice is consuetudo rerum ita 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, jason, 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. private. 2. illud explorandum. An contradicto aliquo judicio sit firmata. That is, it would be tried if decreits in foro contradictorio hath been given thereupon. As also saith Craig, dicta disg. 8. in fine; and if in any case, that aught 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 practice 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 aught 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 alleged, that there can be no practice showed of either, of these Courts that any hath been found guilty of treason but on some act of Parliament under the pain of Treason, as is said; But however the said 28 act. Parl. 1640, is most clear, which is most agreeable to reason, and the Law of England very laudable in that point; as Cook hath it in his Chapter of Treason, and therefore the lybel as founded on practice is no ways 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, aught 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 divers crimes of very different natures, and inferring different punishments, according to the article of the crimes, and in the subsumption, the panel is endited for several crimes alleged committed by him, contrary to the said Laws and acts of Parliament in general, without condescending on the particular acts of Parliament, that the panel has contravened by committing the particular deeds libeled, 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 immediately aught 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 immediately subsumzed and throughout the libel 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 assoiled their from.  
This defence is further confirmed in law. 2. Because a libel being 〈…〉 quidem practicus; jason and the 〈…〉, de act in criminal dittays the proposition consist injure 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 pain Because of such a crime as falling under the law libelled, on a very essential part of every libel, is quo jure petatur & a libel being incertain in this is unclear and uncertain in a very essential point and in apt. 3. In law, a libel 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 laws to the facts, ex quibus jus oitur 4. If such uncertain libel were admitted the defender because of the obscurity and uncertainty of the libel 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 allege 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 divers articles but even in on article a great diversity of the crimes therein 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 maxim vagari cum maximo alienae vitae et fortunarum periculo It is hoped as it will be found very evident so it was never the practice, heretofore used in criminal libels, and which that it should not be now sustained is of universal concernment, and if sustained might prove of very dangerous consequence, and the libel as it is now conceived is in apt and the defender ought to be assoiled 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 public actings of this kingdom during the unhappy ●roubles till the treaty at Breda and his Majesties 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 Kingdom entered at first in the national covenant for defence of religion and his Majesties person and authority, and mutual defence one of another in maintaining the same, wherein and in what followed in prosecution thereof till the treaty with his late majesty, and act of oblivion set dwon at length and ●ati●●ed in the 6 act of the 2 Parliament 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 public thanksgiving in all places, particularly in the Parish churches of his Majesty's 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 prejudical to his Majesty's honour and authority to the Laws and liberty of the Church, or the particular interest of the subject, might be buried in perpetual oblivion; and whatever had ensued thereon, no mention should be made thereof in judgement or outwith, like as his Majesty for himself and his successor's promises in verbo principis never to come in contrary of the said statute nor anything therein contained but to hold the same firm 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 entered in with the two houses of Parliament upon the ground of the large treaty by the church and whole body of this Kingdom, proporting the same ends of the covenant for maintenance of religion King & Kingdom; which was thereafter approved by the Partia. 1644. And fifth act thereof, and prosecute by wars both within and without the Kingdom by the authority of divers succeeding Parliament's, Church and state going unanimously along together without any apparent public difference till the year 1648. And even then that Parliament, 1648. so highly homologate the said league and covenant, that they declare the breaches thereof to be the grounds of their resolutions of that War, 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 join either in their armies or committees is that they be such who were of known faithfulness to the cause and covenant in the said act 7. and that they would oppose and endeavour to suppress the enemies to the cause and covenant on hands all Ibidem. Witnessing to the world that they swerved not from the principles contained in the national covenant, and league and covenant, and that they resolved closely 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 Kingdom 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 & entered the same is noture to all, wherewith the whole Kingdom being surprised 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 Kingdom. Whereupon a quorum of the committed of estates apppointed 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 flower and strength of the Nation being broke by the said defeat) and to accept the same upon the easiest terms 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 looked upon as good service, and which at that time was most necessary to evite very great, and otherwise inevitable evils being either necessitated 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 Kingdom. The succeeding Parliament for the time in the year 1649. after Proclamation of his present Majesty did send commissioners to Holland, and afterwwds according to his Majesties 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 Majesty and his Parliament at Pearth and Starlin and after the royal 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 public affairs during the time foresaid, albeit by the first ten articles of the dittay. The defender is charged with deeds and public actings coming within the compass of the said approbation and oblivion foresaid, yet such firm reliance hath he of his Majesty presisting in his gracious clemency) which does in his royal 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 trial of the carriage of his subjects in Scotland during the late troubles; That the late troubles has only respect to the time during the usurpers possession and that trial should be taken during that time of the subjects carriage. The defender in all humility conceiving that it is no ways to be supposed that his gracious Majesty did therebey intent to rip up or revive, or to institute any new trial of old offences forgotten and forgiven as said is especially, seeing it is not to be supposed that the bowels of his mercies should be so straitened to this his ancient Kingdom, to which he has upon all occasions given so many signal and recent testimonies of his superabundant favour than they are, and have been to his Subjects of his other dominions, to whom according to his Majesty's 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 controversy, anent the sincerity of his (as of the Church and Kingdom) their loyal intentions for the maintenance of the person and authority of our dread Sovereign whereunto they were thereby so religiously engaged, and the constant tenor of his acting still by virtue of public Orders and Warrants of Parliament, and their committees 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 engaged in manner foresaid, nor was the Defender for continuing of these unnatural civil discords as he did witness 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 committees approbation thereof, which is in evidence, that the defender had not the chief sway of affairs and was always inclinable to peace (religion being secured) like as the carrying on the engagement in the year 1648. though the defender differed in his judgement as to the way and manner upon the grounds and reasons, thereafter expressed in answer to the ninth Articles) does clearly evince that he had not the chief sway in public 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 Majesty's 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 Majesty's absence, did always and still shall return loyal 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 accidental events that are the effects of the corruption of men, but have not known the counsels 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 times thorough the corruption of agents or others extrinsical 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 judgement as being clear, that these proceedings had no native connexition with the sad and unexpected consequences that has ensued  
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 alleged spoken at the Ford of Lion which are libeled 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 alleged to have been meaned by the panel of the than King's Majesty, and the presumptions adducit for enforcing that to have been the defenders meaning, are some words allegit subjoined, to wit, Mr. john you understand Latin. It is alledgit for the defender (no way acknowledging to the best of his memory, that he uttered any such words) 1. all criminal dittayes should contain in them at least year, month 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, etc. But so it is, there is no month 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 contravened be condescendit, one can receive no answer. 3. The speeches 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, than is it relevant to infer a crime, and so high a crime as Treason; for suppone the defender had said, That they are very learned both Divines and Lawyers, whose opinion it is, that the Pope is the head of the Church, and that he has power to dispense with the article of faith, to depose Kings (a horrid opinion) etc. 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, etc. articulus solvit.  
And had said to Mr. John Stewart thereupon, Mr. John you understand Latin, albeit these opinions of these Divines and Lawyers be execrably Heretic, 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 King's Majesty who then was) And whereas it is libellit, that it appears the sense and meaning thereof appeared to have been of the than King's Majesty, in so far, as the defender subjoined to Mr. john 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 else that his own meaning was, That it was the judgement that the than King's Majesty our Sovereign 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. done. Bot. 3. If it be understood in the former sense, it is but still relative of the opinion others; and if in this latter sense, to wit, that it was his own judgement, the presumption libelled of what he spoke to Mr. john 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 subjoined to Mr. john Stewart, Mr. john 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 jurisconsult, 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. john Stewart, They might have had this more proverbial sense. Some Lawyers and Divines are of that opinion, but the subtlety 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. john ye are a Scholar, and ye understand it. Now it is a rule in Law, that where the meaning is doubtful or obscure, that which is the most favourable sense 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 King's Majesty, because the condition wherein the kingdom was for the time. 1. It is far more presumable that the kingdom was in such a condition of affection to his Majesty's 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 solemnly bound themselves by the oath of God to maintain his Majesty's 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 endited and convict, were far different from these words, as they are here libelled, otherwise the defender would never have pursued it.  
Ultimo adhering always to the alledgance above propounded humbly protesting, that they may be first discussed, and whereupon it is craved, he may be assoiled in 〈◊〉 libello, because by act of Parliament in anno 1641. amongst the imprinted act, anno 70. The same service is approved and he exonered. It is alleged, that the defender ought to be assoiled from the whole crimes in the first article because after the time libelled of the alleged 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 preceding treaty with his Majesty, and which is solemnly confirmed by his Majesty himself in person and his three estates in his Parliament 1641. 6. act thereof wherein his Majesty for himself and his successors 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 firm and stable, yea, and to cause it to be truly observed be all his Majesty's lieges for ever hereupon the defender doth confidently rely for all than is libelled as committed by him in this article; or any other preceding that time, as being confident it is the greatest imaginable security that he and the rest of the lieges of the land who are conceived can have.  
As to the second article and hail head thereof 

1. neither day, month, nor year of God are condescended on, and therefore so general 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, cutting 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 Majesty's 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 private 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 virtue of, and in obedience to a commission put upon him by the committee of Estates for the time, nor was the said house at his arrival thereat kept for his Majesty's service, as is (though wrongfully) libelled. But before that time was surrendered to the Earl of Montros who had put Colonel Sibbald to keep the same for the King and Country's 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 though the defenders commission bare power and warrant to demolish the house he was so far from stretching, or fully, executing the same, that he did not only slight the house, and delayed a long time to do the same, in expectation that the Lord Ogilby should have procured a countermand from the committee, and did slight it till he was past all hope of obtaining the same; not, as is hoped will be acknowledged by the said Noble Earl, neither did, so far as the defender knew or could hinder, the Earl, his friends and followers sustain any other prejudice than what was usual, and what all places are ordinanarily obnoxions to where armies or parties of soldiers 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) infers ●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 seized there upon to infer any crime except it were libelled he seized by force, for he might have entered in vacuam possessionem. 2 Non relevant to libel that those under him did seize thereupon or raise fire therein, except it were libelled that the defender had given express order or wanrrand to raise that wilful 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 wilful 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 merely for his loyalty to his Majesty, it is gratis dictum & against that presumption qu● unusqiusque praesumitur bonus and against that loyalty to his Majesty, that is hoped shall more and more appear in the defender.  
Lastly the defender ought to be assoiled 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 prejudicial to his Majesties (honour and safety) or to the laws and practices of the Church and Kingdom or to the paticular interests of the subject buried in perpetual oblivion as more fully is contained 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 alleged for the defender (10) that the assaulting of the said Castle is not relevant to infer the conclusion of the dittay because as is before alleged none can be declared triators but these who hes contravened 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 King's Castle nor does any of them infer the pain of treason therefore. But only the 25 act of Parliament 6. jac. 6. entitled sundry points of treason by the which acts they only are to be punished as traitors who assaults the castle or places where the King's person is and that without warrant of Estates, but it is neither libelled, nor was the King's person in the said Castle the time of the alleged assaults thereof, nor did the defender assault and lay siege to the same without warrant from the estates, but by their express order & commission and the truth is the defender himself did not appear before the said house till the said Sir John Henrison being straitened with the siege sent for the defender & offered to surrender the house upon honourable 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 Colonel.  
As to that part of the said article annent the transporting of the King's 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 assoiled from the said article & all deeds therein 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 entering in league with his Majesty's enemies imposing excise and subsidies on the Kingdom's raising an army entering England therewith fight for and with the rebels 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 Kingdoms and to his Majesty's 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 public law and act of Parliament what is there in libelled to evince that they are not the defenders personal deeds: but the committees (commissioners established 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 than 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 established by his Majesty's authority in anno 1641. which Conservators concerning that article 〈◊〉 the 〈◊〉 Treaty, bearing the Kingdom of Scotland their desire for unity in religion, and conformity in Church-Government, as a special mea●s for conserving of peace betwixt the two Kingdoms. 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 entered the said League. 2. That the enacting and entering the League and Covenant, was an act of that convention of Estates, not the defenders personal act. 3. That the League and Covenant was entered in with the two houses of the long Parliament, and assistance given to them in fight with or for their army, or otherwise, which is libelled fight with rebels. The point of fact being thus cleared in opposition to the dittay. 2. It is alleged, 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 ways 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 Majesty's 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 contained 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 Majesty's person, till they were broken, as also what loyalty the secluded Members of that Parliament has (as became them) showed 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 Majesty's 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 entering in the League and Covenant; raising of the army for assisting the two houses of Parliament of England, imposing excise, etc. 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 assoiled 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 entering 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 Majesty's 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 Majesty's home-coming 1650. Whether prejudicial to his Majesty's 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 assoiled therefra.  
As to the fifth article anent the burning of the house of Menstrie in anno 1645. The defender is so innocent thereof, that if it were libellit relevantly, he needed no other defence bu● a simple denial, 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 concourse 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 burned 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 illegal 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 burned 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 assoiled therefra, because the year of God is only libelled, to wit, the year 1645. whereas not only the month, as in all criminal libels per L. libollorum ff. de accusationibus, and the Doctors treating thereupon. But the very day ought to be condescendit on for the omission of the day prejudges the defender of his defence, Specially of his alibi, which he might and would propone, if the day were condeseneded on; that being required, the day ought to be condescended on, otherwise the libel is inept, Nam Libellus debet continere non tantum annum & mensem, sed & diem si reus'id requisserit cum probaturus suum alibi Dam. hand. cap. 3. num. 4. 5. & battander reg. 6. num. 4. Maranta in spec. del. bell. Obl. 3. num. 12. per bark. in L. Si quis reus Colum 3. in sin. de publs. 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 Lieutenant General Bailzie at that time when the house was burnt, had the Command of the said forces (adhering always to the former defences against the aptitude and relevancy of this part of the dittay, & expressing the same that may be discussed 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 pursue the Mc. donald's, and their adherents, and accessories with all kind of hostility, by fire and sword, with a dispensation 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 pursuing 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 preceding his return but so it is That the said Mr. Donald were at that time, at the burning of the said, house joined with Montroiss and it was in pursuance of both that the said house was burnt as is noture (and if need be, The defender will offer him to prove) and therefore though he had burnt or given direction for the burning thereof he ought to be assoiled.  
5. By act of Parliament. 30 act 22. March. 1647. it is statute and ordained that all his Majesties good subjects shall be altogether freed and liberate in all time coming from being any ways called, convened, pursued, troubled or molested in judgement civil or criminal 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 Marquis 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 month of Jan. 1646. But so it is, the Defender offers to prove, if need be, That a son of the Earl of Starlings named Charles or John Alexander, who had, or either of them had right to Menstre had joined 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 ways did) and being pursued, aught to be assoiled from this article like as it is conjunction alleged for the defender in fortification of the said act, That the same is ratified by his Majesty's 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 Majesty's return in anno 1650. are ratified by the said Treaty, as also by the act of Ratification at St. Johnstones or Sterling in annis 1650 & 1651. By which ratification (or ratification of his Majesty by the Treaty aforesaid,) the said act of Parliament 30. in anno 1647. comes (as a most solemn remission granted by his Majesty, and whole Estates of Parliament to the persons therein contained) and so like as if every one of them had got a particular remission so solemn: It had been an uncontrovertable remission for what were therein contained, so must it now be, being in effect of the same nature and virtue, albeit many be included in one.  
6. By the act of Oblivion at St. johnstones 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 Majesty's return, whether prejudicial to his Majesty's honour and authority, or to the Laws of the Kingdom, or the particular interest of his Subjects, are buried in oblivion. In respect whereof though the defender were accessary 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, murdering a great many of Lamonts and Oscogs friends. As this is no ways true (the defender being altogether innocent thereof) so is it no ways relevantly libelled. For 1. Neither day nor month of these deeds are condescended on. 2. The alternity by the others under his Command not relevant to infer 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 libeled, nor common law ordaining a man be liable 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 libeled 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 ways 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 infer 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 libeled, there being none of them anent the taking in of houses belonging to the lieges, and so is not relevant to infer any of the crimes contained therein. 6. The alleged 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, jac. 6. par. 11. cap. 51. of slaughter under trust, upon the which it is founded, slaughter under trust is only when the party slain is under the trust and assurance of the slayer, which is no way here libeled, but that the persons who are libeled 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 discussed, repeats his former answer founded upon his commission of Leiutennendry therein mentioned, for they who are designed Lawmont and Escoges friends, were the Mac donald's, 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 alleged 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 Shrieudome of Argyl, for the which upon a supplication given into the King's Majesty and Committee of Estates at Sterling in August 1651. He was imprisoned within the Castle of Sterling, till after trial Justice should have been done upon him, but was released by the English when they took the Castle with the other prisoners, however the defender is confident, as it is known, so he shall make it appear, if need be in the other process whereunto this relates, and wherein it will be more pertinent, and yet the day and time of the committing of the deeds mentioned in this article being condescended on as it ought to be when required by the defender, that he may propone his alibi, he offers to prove if need be, That he was alibi the time of the committing of the said deeds, at a very great distance, to wit, in England, like as his Majesty by his Treaty at Breda, hath ratified and approved the acts of Parliament, and his Majesty, and Estates of Parliament, hath ratified the said Treaty, and past an act of Oblivion of all former deeds done by the Subjects, which secures and indemnifies them for any former actings, in respect whereof he ought to be assoiled.  
As to the seventh article made up of several members or parts, as 1. anent the men alleged murdered as Lockhead and Dunnavertie. 2. Anent the aggravation added thereto. Anent an old man begging his son's life and denied him. 3. Anent the sending 200. men from Illa to starve in jura. 4. Anent the taking of the person of Col. Ki●●●ch, out of a ship in Leith Road, wherein it is libelled, that he had been brought by order of Parliament.  
It is alleged against the seventh article, That 1. The first part thereof (anent the men alleged murdered at Lockhead and Dinnavertie) is no ways relevant, not only in respect that the particular month and days 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 practice, that murder in the general without nameing the persons murdered should be sustained as relevant Dittay against any. 2. The slaughter allege a committed upon these in the house of Lockhead, is not relevantlie subsumed upon the acts of Parliament libeled, in so far, as there is no assurance libeled to have been given to them, to bring it under the act of murder under trust, and there is no other act libeled under which it can fall. 3. It is alleged, That the defender cannot be charged with any of the deeds libeled in the said first part of the article (though they were true and relevantly libeled, as they are not) because the expedition made against the rebels in Kintyre in the year labeled, was by David Lesley, and these under his command, against such, who contrary to his Majesty's order sent to them at that time, commanding them to lay down arms, and contrary to their own engagements, not to join with Alister, Mac Donald did notwithstanding continue in arms 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 War 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 alleged, and therefore the defender, nor any in his company at that time cannot be charged with any deeds libeled in the first part of this article, but aught to be assoiled therefra. 4. The defender repeats his third defence made to the fifth article founded upon his Commission of Leiutennendry, the persons mentioned in this article against whom the deeds are libeled, to have been committed, having been the Mac. donald's 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 alleged against the 2, 3 and 4 members of this 7 article, that they are no ways subsumed, nor cannot be subsumed under any of the acts of Parliament libeled, and therefore the dittay herein is inept, and the defender ought to be assoiled therefra, (and yet in point of fact they are but mere Calumnies) As to the second part (anent the said old man and his son) it is no ways relevant, not condescending on the persons names, and therefore can receive no other answer, but that it is a mere 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 libeled therein (anent the sending of two hundred men from Ila to starve in jura) that the Gentlemen in the said Islles may be examined upon the truth of the matter. It is alleged that the fourth part of this article, anent Coil Kittoch.  
7. Is of the same nature with the former two, and therefore the simple relation of the truth is sufficient to refute the falsehood 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 Brown's 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 straight 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 Sovereign 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 royal person, Nevertheless the said Marqueis being chief ringleader, of that factious party who then swayed the estate of affairs both in council and army did so contrive and complor, and by his influence so prevail, that after all fair offers made by his Majesty and his desire to have come and lived in Scotland till all differences in both Kingdoms had been settled, 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 Majesty's acts of favour, honour and trust: so must be still deny (as he safely may in the presence of God who is the searcher of all hearts) and of all men, that he never entertained any disloyal thought or contrived any treasonable plot or machination against the sacred persons, dignity or authority of his late sovereign 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 party.  
2. Who that factious party 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 alleged offers, made by his Majesty are not expressed. And therefore the said articles are altogether general and inept.   
2. The act of Parliament which the defender is alleged to have procured to have been made, is not produced, no indicat by number or Rubric, nor does the Defender know any act of the tenor and title libeled.  
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 Majesty 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 alleges, 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 honourable 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 Majesty's going to Homeby-house, or some other of his Houses in and about London; and that expressly, to satisfy the desire both of His Majesty himself, and of His two Houses of Parliament in England: And there to remain (not under the power of Sectaries) but with such attendance about him, as both Houses should, think fit to appoint, with respect also had to the safety and, preservation of his Royal Person. And the Estates therein do also declare against all harm and prejudice, violence or injury to be done to the same (as indeed it was horrid to think that any on earth should have done) or prejudice to His Majesty's 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 surprising, violently seized upon the Person of the King's Majesty, 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 alleges, 1. The Act bears express, That it was to satisfy 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; finds the violent seizing on his Sacred Majesty's 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 expressly, that conform to the former desires of this Kingdom, the King's Majesty 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, entitled, A Declaration of the Parliament of Scotland, to all His Majesty's good Subjects of this Kingdom, concerning their resolutions for Religion, King and Kingdom, etc. After they declare, That violent seizing on His Majesty's Person, and carrying Him away by that Army, against the resolutions, of both Kingdoms; so be a breach: And they declare, they intent to send to the two Houses of the Parliament of England, the Desires following; which they call, Necessary and just Desires for Religion, His Majesty's good, and Peace of these Kingdoms; whereof this is one, That conform to the former desires of this Kingdom, The King's Majesty may come with Honour, 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 House's 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 Majesty's Person, was the violent deed of that wicked-Army, done with a violent surprisal, against the declared resolutions of both Kingdoms. And that His Majesty's coming to some of His Houses in or about London, where both Kingdoms might make applications to Him, conform to His Kingdom's desire (which is that wherein the the Estates declares their concurrence with His Majesty, and both Houses of Parliament in England's desire in the said tenth Act) is approven as a just and necessary desire for His Majesty, 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 Majesty's Declarations anent the grounds of His resolution in coming to the Scots, was sent both to the Committee of Estates in Scotland, and to the Parliament of England; so that the same being printed before the Defender came to Newcastle, he neither did not could know any other ground of his coming, nor what was contained in His Declaration, viz. His gracious Resolution to comply with His Parliaments in both Nations, and those entrusted by them in every thing, for settling 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 Majesty, and to the Parliament of England, that they received him: And all this before the Defender came from Ireland to Newcastle; from whence. His Majesty 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 Majesty; and particularly, if it was fit, that the Scots Army should declare for His Majesty; whose judgement and opinion was (which they conjured him to tell his Majesty) that such a course was the only way at present to mine his Majesty, 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 endure 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 Majesty, by any means to give way to the Propositions. Which advice he not only faithfully told to His Majesty at Newscastle, and many others there, and to our gracious Sovereign who now is, when he was in Scotland; but also being in the Tower, he entreated the Lieutenant thereof to propose for him, that the Marquis of Hertford who was then alive, might be examined in this matter; which was put off from time to time, because of His Majesty's 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 tendered His Majesty most in England were for disbanding the Scots Army, and His Majesty's 〈◊〉 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 jealousy there was of what followed, That the great fear of His Majesty's 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 Sovereign 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.  
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 defender was at London there was nothing spoken at all by him of leaving his Majesty in England except what he was expressly commanded by his Majesty to speak to Richmond and Hertford as aforesaid.  
To the third Member of the eighth Article, bearing, That in a joint Committee of both Kingdoms, where the English questioned whether the Scots Army would concur with them in their said Treason and Treachery; the defender 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 than divesting himself of all Regal Power, Civil, Ecclesiastical and Military, they would deliver him up, which immediately upon the receipt of Two hundred thousand pounds the defender 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 defender 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 alleged words of the defender, as they are indefinite and general, so the most they could infer is, That in a short time it would appear whether the Army would concur or not; and what can from thence be infered, as to any thing the Army did; if they have outshot their duty, as it was in regard of him, with the speaking of these words, a future contingent wherein the defender had no causualty, so they must answer for themselves, and not the defender.  
And for aught 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 oftener 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 acknowledging the words and deeds libelled, except in so far as concerns the defender 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 falsely 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 defender opposed the proceedings of Parliament, 1648 by arguing, voting, and after the resolutions of Parliament were passed in an Act, in protesting against the same.  
It is alleged for the defender, 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 defender hath just reason in such an incertitude to deny it that can be releivantly subsumed on any of the said Acts of Parliament.  
2. Arguing and voting is no ways releivant to infer the conclusion of the Ditray, because by Divine law, Law of Nations, Statutes and practices of this Kingdom, in deliberando, a Member of Parliament or other Council should give advice or suffrage according to his persuasion 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 public Counsels; he ought to have charity for the one and excuse for the other.  
Like as by the 5. Act Parl. 2. K. Charles the First, It is expressly 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 defender, 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 defender his protesting and dissenting from the said Act, 1648.  
It is alleged for the defender, 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 protest and enter their dissent against proceeding to the determination of the question then in hand which evinces the same to have been before the Act was made. Like as the Defender offers himself to prove by the Members of Parliament then present, That being asked if they would renew the Protestation after the Act, they shunned to do the same, the Act being now past.  
2 Absolvitor (Though the same were produced) because it is offered to be proven, That the same was ratified In the fourth Act Parl. 2. Sess. 2. Cham 2. which was approven at the Treaty at Breda, and confirmed at Perch and Sterling, as is said. But for the honourable 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 Majesty had satisfied his people's desires concerning Religion, in presence of divers persons of honour, he expressed himself passionately earnest to engage for his Majesty's 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 expressed 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 expressed) till advertisement and three months' warning were given, conform to the large Treaty; until all means of peace had been first essayed, and while first the lawfulness and necessity of that war should be found by the Parliament, conform to the 7. Act thereof. And it is humbly conceived that many in this present Parliament do remember how unanimous all were that His Majesty should be brought out of the hands of the Sectaries, to some of His Houses in or about London. And all they differed in was, That the Church should be consulted anent the securing of Religion, all means of peace should first been essayed, and warning given in manner aforesaid, conform to the large Treaty, the breach whereof was made one of the grounds of that Declaration, Act 7. And it cannot be refuted but that at several meetings the dissenters debated the dangerousness of of that War (especially if the Army should be defeated) from the sad consequences that might thereupon ensue to King, Kingdom and Religion, as immediately, thereafter fell out. Whereas had the Nation been entire 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 Majesty's 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 processed) according to the Covenant,  
To the second member of the Ninth Article, whereby it is alleged, That in contempt of the authority of that Parliament, and against the preservation of his Majesty's 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 Majesty's Subjects, invaded Cities and Castles, seized upon Magazines; 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 defender is not bound to make answer.  
Secondly, The defender 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 betwixt the chief Officers in the Army then alive, and out of prison, and a Quorum of Members of the Committee by authority of Parliament, 1648. who had power to order the incident affairs of the Nation, the said meeting, and all acts of hostility, and others thereby committed are expressly discharged, 〈◊〉 inde and a mutual Oblivion and Indemnity therefore.  
2. Any meeting he had with them was by a call of those of the Committee of Estates, who joined 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 Majesty's 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 Edinburgh 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 Edinburgh 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 Cromwell, if spoken by him, it was a lie, and can infer nothing against the defender, 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 Cromwell, wherein he and his Complices engaged themselves in name of the Kingdom of Scotland, to do their utmost endeavours, that none who had been access●ry to the Engagement, or in arms at Sterling in pursuance thereof 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 passed 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 public faith that the breakers should be rendered up to the observers, and that the English Army then upon the borders required the performance thereof, against the engagers and for further security, pledges and places of strength: It was at that time counted a great favour (considering 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.    
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 alleged 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 Precedent 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. johnstores and Sterling, wherein was also made an Act of Oblivion, oftentimes before alleged on; in respect whereof the defender ought to be affolzied from the said Ninth Article and whole member thereof, and all therein contained. And because the defender has in his defences so oft alleged 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 Edinburgh 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 january next; conform thereunto they did convene and sit down the fourth of the Month of Ianu. as by the said Treaty, and the first and third Acts of the Parliament doth appear, whereby it is clear That the said Parliament, 1649. was appointed to sit by the Committee of the Parliament 1648, who had power by the last Act of the said Parl to convene the Parliament before the first Thursday in March, 1650. if they thought fit; as also that Sess. of the Parl. 1649. by the last Act thereof continues the same to the first Thursday in March 1650. at which day they convened in the next Sessions, and therein ratified the Act of Parliament made in the former Session, and which day was the diet to which the Parliament 1648. continued the same with power, to the Committee of Estates, to convene the same sooner, if they thought fit, as is said. Whence it is evident, that the said Parliament, 1649. whether as appointed by the uncontroverted Commit, 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 murder of his late Majesty was declared against, his present Majesty 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 public, or in a direct way His Majesty's home coming, he procured the Application made, ●o be clogged with such Limitations and Restrictions, as were most derogatory to Monarchical Government, as is alleged to be ●●re fully expressed in the Commission, Instructions and Addresses, which are repeated as a part of the Libel.  
It is alleged for the Defender: 

1. Seeing the said Commission, Instruction and Addresses are libelled on, and repeated as a part of the Dittay; in all Law and form of Protes, they ought to be produced with the Libel, for the reason adduced in the defence, against the relievancy of the proposition of the Dittay; and till which be produced, it cannot be consistent with the said Limitations and Restrictions, and how far they are derogatory to Monarchical Government, and therefore till then, there can be no Process.  
2. It is not condescended nor cleared on, which of the acts libelled on in the Proposition, this Article and members thereof are subsumed, and therefore it is obscure and inept; and in that incertitude, the Defender has just reason to deny, that it can be subsumed on any of the said Acts, to infer the crime and pain libelled against the Defender, none of the said Statutes making any mention of treating or infering any pain therefore; likewise after ruptures and differences betwixt a King and his Subjects, all Lawyers and Politicians do agree, That the best and safest way of removing the same, is by Treaty; and being concluded on, it is also their opinions, That the same are to be observed, at least so far as to exempt the Subjects from punishment, to whom indemnity has been thereby promised; and in this Gr●tius de jure 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 Majesty 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 Majesty's 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 only after the said Treaty, did His Majesty tacitly 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 Majesty's privy Council; but also after the said Treaty was ratified, there was an Act of Pardon and Oblivion by his Majesty and Estates of Parliament oftimes before alleged, 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 Honourable Parliament would take notice, that all along the preceding A●●●●●es, all the public actings from the year of God, 1640. to the year 1648. (wherein the Generality and Representatives, both Civil and Ecclesiastic 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 Majesty (therein it is known the Defender, according to his bond 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 Libeler 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 Majesty's home coming; which because he d●rst not avow publicly, 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 King's 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 Majesty 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 Majesty, of whom the Defendant 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 alleged) in the said Libel all along alleged, to have extirped and evacuated the King's Majesty's Authority, Government and Posterity, and had such correspondence with those abominable Regicides, as all are persuaded by the said libel to believe, in the said year of God 1649. when the said Traitors were strong, and both this land through divisions and otherways very low, and when the power was in the defender 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 only 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 defender (to obstruct His Majesty's purpose, yea in so far as in him lay, and to terrify him therefrom, by his and his complices crulelty executed upon the Marquis of Montross, who as his Majesty's Commissioner did represent his Majesty's person) caused to murder the said Marquis in anno 1650. in manner, etc.  
1. It is no way releivantly libelled, that the defender in general caused murder him, except it were condescended qu● modo he caused; and if thereby be meant his voicing 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 alleged.  
Likewise 2. The sentence of the forfeiture of the life and estate of the said Marquis, was no decree of the Parliament 1649. but of the Parliament 1645, which was homologat by several other Acts of Parliament, excepting the said Marquis among other excepted persons, as specially by 〈…〉 and by the 22 Act of the Parliament 1648.  
And yet 3. The defender 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 Marquis being His Majesty's 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 Majesty's Kingdom of Scotland.  
As to the defender his alleged keeping correspondency with Cromwell 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 believed that at that time he would have charged his soul with a lie, and in Law the words of a dying man are oriculously believed.  
As to the Act of the West-Kirk, the defender (no way acknowledging the releivance of the said Article, as it is libelled) was so free from having the least accession to the said Act or Declaration; that so soon as he got knowledge thereof, to evidence his fidelity to his Majesty, it is offered to be proved by witness (for their loyalty above all exception) that when the first news came that the Commissioners were about the drawing of the said Act, the defender 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 defender make particular answer it is necessary to premise in general, that it being notoriously known to the world (to the eternal honour of this Kingdom) as for that damnable usurpation of Oliver, not only we were not active in establishing the same, but according to our bond allegiance to our Sovereign, 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 irresistible force. And as this was the condition of the Kingdom, so specially the defender, who as he had been most active and instrumental in His Majesty's home-bringing (which was the only ground of the quarrel, and for which he was looked upon by them, as one of their capital enemies) even so after it pleased God for our exercise and punishment, to suffer their power to prevail over all his Majesty's 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 persuaded those of Athol, Monteith, and other his Neighbours in the Highlands, to have concurred with him, that they might have jointly 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 surprised (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, notwithstanding of the said surprisal, and the Defenders condition, though they threatened, notwithstanding of his sickness, to carry him away prisoner, yet all their threatening could not prevail 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, such jealousy 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 Commission granted for examining of Lieutenant Colonel Utter (anent what was deponed by Mac Nachtan, and several, viz. of the Defenders small affection to the English, 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, alleged to be rest and bygon few duties. This being the Defenders true case, it is hoped, that the honourable 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 Tyranny, 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 only 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 devoured the lawful Magistrate: Which case is not only 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 Kingdom; as also, that in such cases, a favourable consideration is to be had of the actions of a subject who was particularly noticed, and jealously looked upon by the Usurper, for his affection to the lawful Magistrate and his Government: (All which being remitted to the Commissioner his grace, and the Honourable Parliament their consideration) he now comes to answer to the eleventh Article: Against which eleventh Article, and all the members thereof, as libelled it is alleged, the said Article is general, not condescending on the day or month, nor on the particular year of God of the committing of the deeds therein libelled, but only alternative in Anno 1653. or 1654. and therefore (as has been oft before alleged) the same is inept, and there can be no process 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 and 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 Majesty. 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 alleges, 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 Lordship's Commissioner had been showed him, and he required, which was never done: And herein he may refer himself to the Commissioner, his Grace's Declaration, and if his Grace does not remember, that the Defender sent him word, showing 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 Grace's answer or appointment.  
2. For further clearing, that his not joining, except he had been required, is no crime, it is evident from the fourth Act of the first Parliament, jac. 1. that those only are punishable, who does not assist the King's Host, being required thereto: and Craig. pag. 365, says, that because the King has so many Vassals, they are not obliged, nor cannot be punished, except the particular pain to be inflicted upon the away-stayer, be particularly expressed 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 King's Host, when he is called, and this assertion is clearly proven from Rague, in his Treatise de jur. Reg. pag. 53. Likewise by the said Act par. 1. jac 1. it is expressly 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 alleged, 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 Majesty's subjects, to rise for his Majesty's interest, in opposition to Usurpers, yet it was not seasonable, as affairs than stood, till either they had been defeated by sea in the engagement 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 Majesty's subjects in Scotland, might have had hope of some probable assistance in the undertake in his Majesty's service; or that division and in consequence confusion, had fallen out in the English Army amongst themselves, whereof there seemed to be but little hope, so long as the appearance for His Majesty should meet them as against a common enemy, as it was. Likeas it would be thought it should have no other effect; and as in effect the event proved, that that Army never divided till they had no common enemy, against whom mutual preservation does necessitate a mutual concinse, but all at amity one with another. And albeit a particular command had not been absolutely necessary (if His Majesty had been there in person) yet in a juncture of time wherein such a War was improbable for many state reasons (which induces the defender to believe 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 enemy's prisoner upon demand.   
But this is conceived only to be libelled as an aggravation of what followed, which is, That he joined in open hostility with the Usurpers, 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 aught to be most clear, as is affirmed by Damband, cap. 30. prax. Cron. Num. 4. and should contain all the qualities of the crime alleged committed. And as to the alternative, That he joined 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 alleged, if the time were condescended on of his alleged joining, is, that he was in company (it may be with Twisleton, and if it was, he was only 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 defender being their prisoner upon demand by his capitulation with General Major Dean.  
It is alleged 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 pieces of great Cannon to Alured Governor of Air viz, That the defender 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 Enemy 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 joining in action with Twisleton, or any of the others named in their service, the Defender absolutely denys the same.  
Item, For his taking and relieving 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 relieved prisoners, which can never be made appear, whatever the same might import. But the truth is the defender meddled with no such things, and the defender shall truly relate the point of fact which he conceives hereby to be meant, which is as follows, The defender 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 defender having asked what they were, they alleged they did belong to the Earl of Glencarn, but could show no warrant, and thereupon the defender having some suspicion that they were rather Robbers than Soldiers belong to the Earl, and fearing that General Monck, whom the defender 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 Soldiers 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 enroled 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 defender 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 at that time, had levied or kept that Company, inroled their names as a form Company under the English and their Regiments, and engaged them to the Commonwealth and their service; because these are required in a Soldier in any service. 

1. That he be Relatus in numeros, that is to say enrolled, 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 defender had employed them in the English military service, or in execution of their orders, all which the defender absolutely denies, they never having been enrolled, given any oath or Engagement, or employed 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 neighbours 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, Perch shire, Aberdeenshire, Sterling, Dunbarton, all of them had Watches the said times, and allowance therefore from the said General Monck) who within two months 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 alleged that they favoured; and thereupon withdrew his help and allowance for the said Watch, and spoke 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 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 Soldiers; 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 public 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 defender humbly craves that he may be urged to declare; As also that the Countess of Balcarras may be examined, if the defender 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 alleged. That the defender or any of his people did the least prejudice to any person or party that professed to be for his Majesty's 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 defender called the actings of His Majesty's Forces against the Usurper, Rebellion.  
It is most general, neither condescending on time nor 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 Majesty's Dominions at the Mercat cross of Edinburgh 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 Edinburgh and Dunbarton, being condescended on, the defender offers him to prove that during these days he was alibi, and neither at the City of Edinburgh nor Dunbarton all these days.  
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 Richard's 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 Sovereign, 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 unparalleled, 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 only mean (for title they had none) whereby they both de facto attained, and violently detained that possession, unjustly, of that power whereof the only right was, and possession ought to have been our dread Sovereign. 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 Sovereign, his Majesty, from all possession of his just right, and having taken upon them the Supreme Power; and being possessed (though most unjustly) yet most peaceably therein, and keeping the same by force, as they had taken it, the case than 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 acute juvis, 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 Traitor) and the Magistracy which he carries, which is public.  
Likewise, it would be distinguished betwixt Acts concurring with the Usurper, transferring the facto in his person the power he usurps (which are treasonable against the lawful Sovereign) and acts, whereby the oppressed 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 the juvasove imperii, of any unjust 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 Usurper's command should be obeyed, or take effect, than 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 in't rim rata esse que imperat quam, legibus Indusque sub talis sunsman induci confusionem: and Lessius, who is one of the Authors Grocius citys upon the place, says, In the place cited, viz. Lib. 2. de Justicia & jure, cap. 29. dub. 9, F. 37. That Tyranni usurpatiene potestatis mandatis obtemperandum propter bonum commune; which is, that the Tyrant and Usurper is to be obeyed, even from the Law of Nature, for the public good, in such a state of affairs; and adds, alioqui omnia esset plenalatrociniis & furtis: That is, all would be full of Robberies, Thefts and Confusion in that state of affairs, because of the Usurper's 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 ruin thereof) and the interpretative and presumed consent thereupon of the Prince, who has the right to the Authority which the Usurper has usurped, but is excluded by the Usurper 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 Usurper is founded, as is said: Whereupon it is subsumed, that in our case, the Invader and Usurper Oliver having violently taken upon him the power, after he had put his and our Sovereign from the possession thereof, oppressed 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 Usurper; and that, not being able to expugn his force, they might by strength of Common-Counsel, overcome and persuade his reason to things absolutely necessary, for the subsistence at least for the preventing the ruin of the whole body of the Kingdoms, and of his Majesty's Liege's 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 Majesty's 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 persuade him to the taking off) of the maintenance and Sess (which upon Scotland, was six triple more than the proportion of England, and in itself so heavy, with the Excise and other public burdens, laid by the Usurper on it, that more was exacted in one month, than his Majesty's Royal Predecessors would have imposed or taken of Taxation for an age, so that the Country 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 threatened) 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 easy 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 Richard's Parliament made service to his Majesty in it, hopeful to all his Majesty's 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 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 Usurper 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 Majesty's happy and glorious Restitution: To all which joining, That the call and command of the armed Force, has Pureness necessitates, a necessity of obeying lying upon persons under their power; it will follow from what is alleged 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 ruin of the Country, 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 Country's 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 find this member relievant, to infer so high a crime against the Defender (how maxim attento) that beside public 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 alleged few duties (aughtland; and in time coming so much, that both joined, 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 only threatening 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 Majesty is so gracious, as in not a few, to excuse what they did of that nature, to evite (though but their own personal ruin) 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 public 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 Usurpation, or excluding his Majesty's interest.  
Likewise, it may appear, that it was only the concourse both of public and private interests and necessities, aforesaid, that moved the Defender to go at that time; because, though he was desired oftimes before to go, yet he still refused till then: He was one of the last that went to that, being the very last pretended Parliament under their power; not till long after that Commissioners had gone for the Nation for several years, and that all had submitted to their Constitutions, and were of necessity made use of as Laws for the time.  
As for the aggravations of this Member, and to the first, That because of the Defendants Nobility, he was incapable to have been elected, at least, might have refused.  
It is answered, That it is notor, Nobility was not then respected at all, nor was any ground of excuse, the meetings to the elections being commanded to all, as heretofore (and so Noblemen and others heretofore met promisculously through all the Nation) as is notoriously to all known.  
And whereas it is libelled, That he had not his residence within the Shire: it ought to be repelled as irrelievant, because it is true, and was known to the Usurpers, and their Ministers and underlings, that he had land within the said Shire, and that considerable: so that he could not decline the said employment, without prejudice, the will and lust of the Usurper at that time being uncontrollable, and tied to no rules of law or justice.  
And where it is inferred, That sitting and voting in that pretended Parliament, he acknowledged his Majesty's 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 Usurper had taken or possessed himself of the power, as his Majesty 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 jure 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 Usurpers that use of Government, whereunto he says, they are holden in and obliged, once taking on them the Government, (though sinfully and unlawfully:) they seek the benefit of it, says he not absolutely, but under a tacit condition, viz. If the Usurpers will take upon them the Government, Petunt (saith he) sub tacita quadam conditione si velit se pro principe gerere, speaking of the Usurper, and that the Usurper would not give the use of the power he had taken upon him, but in the way he pleased, was his crime which he continued during his usurpation. In respect of all whew, 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 Majesty's advantage.  
Item, That a Commission be directed for examining Sir Anthony Ashly-Cooper, and several other Englishmen above all exception, how the defender 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 delayed his journey to Caithness, and so readier to have laid hold upon any opportunity that should have offered for His Majesty's Service and restitution; that time being the most probable that ever offered after Worcester.  
As for the precept of Twelve twonsand pound sterling, which is alleged the defender got from the Usarper.  
It is answered, The defender 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 defender 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 alleged 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, alleged to be such like, whereby the defender might advise his defences, and allege 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 King's 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 it was to his great hazard so to do.   
As to the second Member anent the words libelled and alleged to have been spoken by the defender 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 month, 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. come. 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 alleged to be committed.  
Fourthly, Some such like words, Non relevat, except the words were specially condescended on, which if they were the Defender would allege and evince they were no wise such like, for the truth is, he never spoke any such words, but on the contrary did all that he could there to make way for His Majesty's 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 defender, 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 Charles Fleetwood, he obtained his liberty; whereupon the Defender desires the said Charles Fleetwood to be examined, which he also desired at London. And not only was suspected as odious to the English for his known affection thereunto: As is notorious and has also before been expressed.  
As to the third member of the said Article, anent the alleged 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 unparallelled generalty, and therefore till made special, no process thereupon.  
Secondly, It can import nothing in common sense wherein to own a thing is to acknowledge it for a man's 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 sense of owning, the word cannot be strained to any other sense, 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. juris, as being both justest and safest by that Law. And in ambiguous speeches, or such as may receive two sense, every man is the best expounder of his own mind, and his interpretation ought to be admitted, per Leg. in ambiguiis F. de reg. juris 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 alleged against the first part of this member, this is exceedingly general, but as to the time and month he should have spoken it on.  
2. As to what the things are that he would do 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 do if they were to do is a crime.  
3. What were those things in particular, that are understood or may be subsummed under the general of all things that has comed to pass, whereupon it may be inferred, that that were a crime to the Defender to have said, that notwithstanding of them he would do what he had done if that were to do; 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 bygone preceding your being in james Mastertonnes house after your coming for London, were not that ditty without all controversy 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 do that he had owned during that time if that were to do 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 spoke, as he truly never remembers that he spoke 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 connexion with or necessary dependence 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 myself? And yet to say with great consistence I ought not so to do, 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 Counsellor of Cromwel's, 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 evil men, that had abused what was well intended, for accomplishing of their wicked ends and (till they broke forth and could not be resisted) unknown designs. 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. juris, 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 means that interpretation of the words that may seem to infer 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, 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. juri: And odia sunt restringenda favores ampleand●: what is odious (as that which may infer a crime against any) should be restricted and favour amplified; and in general, the Judge is always to be more inclined to absolve then condemn, and so consequently take the sense that may absolve, rather than that which may condemn, Leg. Corianus F. de oblige. & 47. act.  
5. The Doctors say, that voluntas & propositum delinquentis distingunt facinora per legem expressam Leg. qui in jur. 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 do, 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 do (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 alleged to have been spoken, it being such as it is not improbable, that men may be very apt to fail both in judgement and memory, and so both wrong themselves & misconstrue others. And as for the aggravations that follows, that by speaking these words, the Defender took upon him by outward success, to give judgement upon the secret Counsel 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 alleged spoken in Mastertounes, viz: that the Defender owned what he had owned, or would do the same if it were to do, 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 alleged 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 Majesty's happy restitution so signally refu●ed.   
And as to the last Aggravation, that the Defender thereby hardened 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 alleged, against all the members of this Article, whereby it is clear, that as they are libelled they can infer 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 condescended under which of the Acts of Parliament libelled on it is subsummed, and till than 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 Majesty's designs 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 Majesty's designs; and it w●s most just, that his Majesty's designs should take effect to their ruin. 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 abhor the least thought of giving counsel to challenge or question his late Majesty upon his precious Life, and his Innocency shall rest confident, absolutely to deny the same.  
And as to the last part of this Article, whereby it is libelled that in Anno 1649. in face of the Parliament then sitting, he told that the Usurper Cromwell had told him, that England and Scotland would never be at peace till the King were put to death. The Defender adheres as to this part to the general exception against all this Article.  
That it is not condescended 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. jam. 1. and the 134. Act Parl. 8. and 10. Act and 10. Par. and 205. Act. 14. Parl. K. jam. 6. all these Acts, as both by their titles and tenours, and by Skein in his Index on the words leasing makers appears; and it seems by their conjunction in this libel, they are understood also therein of lying and slandering his Majesty, and his Progenitors, and the words libelled, though very horrid, yet seems 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 general as to the time when Cromwell should have told it to him, and therefore inept till the time be condescended on, which must be, especially seeing if it be not condescended on, to have been after the Engagement 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 expressly, 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 Kingdom to apprehend him, whether his victory or strength be considered, or the Kingdom's low and weak condition, at that time, wherein they lay open to ruin by him, if the Lord had not restrained him more nor their power could effectuate; and as to the concealing and not revealing, the Defender ought to assoilzied, because by the express words of the act, that revealing is declared to be such a revealing to some of his Majesty's Privy Counsel, or some under Officer, etc. as that there through the Authors of slanderous speeches may be called, tried, 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 tried or punished, for it is noturly known it was above the power of the Kingdoms, at that time as said is, or for many years thereafter, to punish him; and therefore the Defenders not revealing cannot be subsummed upon the said act of Parliament, to infer the pain contained therein, or related unto.  
Lastly, the pains of the said Act, and other Acts before mentioned together therewith, is not the pain of treason (as has been oft before evinced) and therefore the Defender cannot be convened for treason, or the pain thereof upon the said Acts, but aught 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 alleged, that by Common Law and practice of this Kingdom, all concealers and not revealers of any malicious 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 Innocence in never concealing any such purpose, nor the words aforesaid libelled (which he abhors) he is so far from justifying thereof, judging the horrid murder of his Majesty to have been the very ruin of our peace and happiness; yet as to the releivancy of that part of the proposition, in so far as is founded upon Common Law and practice only: The Defender because of the preparative repeats what was before alleged in the answer to the proposition, in that part thereof; and adds further, In crimine lesae Majestatis, in the crime of less 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 says, that many hold he is punishable by death: And that Cognol, in his lib. Culpa caret F. de reg. Fursi num. 2, that it is the common opinion, citing Alciat. in lib. tacere F. de. verb. sig. & m. l. Bona fide, num. 20. F. de pass. & in lib. 4. of Cato num. 30. F. de verb. oblige. 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 Counsel, 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 citys, 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 capital 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 Prince's Estate or Person: But as for other causes he holds expressly, 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 than severity, and to execute their Subjects, upon any probable cause, from the pain of death. Whence 3. It is alleged, even according to Clarus his opinion, concealing not releivant, to infer 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 alleged 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 author Cromwel's 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 Less Majesty, except only heresy, 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 says 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, etc. 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 horrid Murder, but the signification only of Cromwel's damnable thought, what might be the Consequence of not taking of the Life of our dread Sovereign.  
And hence 3. It will follow, that these words cannot be subsummed releivantly, under that part of the proposition of the Libel, 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 Sovereign, 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. Resolve. 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 proofs ready, and who accuseth falsely shall be punished as the party 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. jam. 6. accusing of any of treason, not being able to prove, so that the party accused be acquit, being so far reprobate be our Law, that it is declared, that thereby the accuser shall incur 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 alleged, 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 unparallelled boldness, to carry on his execrable treason most openly, and that his power was such, as it was impossible for his Majesty's poor Subjects of this Kingdom to resist (nor yet his Majesties other Kingdoms, thoguh far more powerful, 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 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 judicio, idque, utroque, jure, & 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, etc. 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 dependence 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 obliged by false confessions, if there be any action of dependence against him, upon that whereupon he was interrogate and confessed, and Panormitane is express, ubi supra, That non valet confessio, facta coram judice tanquam in judicio, nisi judex 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 convened thereupon, or that there was a Process depending against the said Defender, wherein he had confessed what was libelled in judgement; 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 judgement, that whereupon he is convened and processed without great deliberation, which holds not if the acknowledgement be given out of any process, there being no dependant action or process upon the matter thereof: And therefore the Defender is confident that he needs not trouble the honourable Court with more legal dispute against the relevance of the alleged acknowledgement.  
7. The words or acknowledgement libeled as spoken in Parliament, 1649. Can never be obtruded to the defender, nor that he was conscious to the Counsel of that horrid murder 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 plain Parliament were purged by their Solemn Oaths of all knowledge of, or accession to that wicked design in relation to the King's Majesty and House of Parliament.  
8. And yet he is so confident he never spoke any such thing in Parliament, that the day being condescended on, and diet of sitting of Parliament, as by all Doctors is agreed it ought to be, than the Defender offers to prove his alibi; he offers to prove (if need be) he was alibi all that diet, and so not in Parliament, where he is alleged to have spoken these words, and yet that the Defenders innocency as to the accession or knowledge of that horrid murder, may yet further appear, it is known to many persons, and to some of the Members of this present Parliament, that when Cromwell was in Scotland, in Anno 1650. (notwithstanding it is known what malice he had to the Defender at that time) In this particular he expressed himself concerning the marquis of Argyle, That he thought him a man that had neither Conragenor Honour to have been upon such a business; and the Defender thanks God he had so much honour and honesty as in nowise to be accessary thereunto, and to abhor 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 Majesty's home coming to Scotland in Anno 1650. because of the ratification and oblivion contained in his Majesty's Treaty at Breda, and most full and ample Act of ratification and oblivion at St johnstone and Striuling, 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 buried in Oblivion, or such as intervened after the year 1641. before his Majesty's home coming in the year 1650. During which time he is in his Libel charged with several deeds which are irrelevant, and whereof the Defender is most innocent. And for such public actings as the Defender is charged with and had accession to, the Defender is also secured and pardoned by his Majesty's Treaty & gracious condiscendance at Breda, which was also thereafter ratified in Parliament, or are deeds of necessary compliance both for the public and self preservation in that unhappy juncture, which compliance as it was sore against his inclination, if it had been in his power to have helped, so is not no more than whole Kingdoms did, and far less than many condescended to; It is in all humility expected, that the Defender should not be brought under the compassof Law for the same, which were as to make him the singular sufferer in so universal a guilt, so there can be no precedent therefore instanced, either out of Scripture, or holy Writ, the Histories of our own, or of other Nations, That a Subject not having contributed to the said usurpation, but to his power resisted the same, when the said unjust usurpation prevailed, expelled the lawful Magistrate, detained 〈…〉, usurpation for many years' 〈◊〉 and tyrannised over the people when the lawful Magistrate could not 〈◊〉 for the time, or protect, or help; That the said subject for his compliance, and using endeavours for necessary, public, 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 practice, that may be from Scripture and other Histories adduced, and not so suitable 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 envy be it spoken) and which is not only most agreeable to his Majesty's gracious inclination, but very suitable to that advice given by his Royal Father to him, In whose words in one section there are as follows, Your Prerogative is best showed and exercised, in remitting rather then in exacting the rigour of the Law, than 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.