Copied from the original in the John Carter Brown Library  ●A●DAD 
John Carter Brown Lihrary Brown University  
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TO HIS GRACE WILLIAM DUKE of HAMILTON THEIR MAJESTY'S HIGH COMMISSIONER And the Honourable ESTATES of PARLIAMENT, HUMBLT SHOWETH THE Answers for Hendry Navilpayne, To the Indictment raised at the Instance of Their Majesty's Advocate, before the High Court of Parliament.  
WHereas it is libeled in the said Indictment, That the Defender did come here to Scotland for purshewing Treasonable practices, against the Government; And that being thereupon apprehended & Imprisoned. he hath hitherto prosecute the said design by keeping Correspondence with dissafected Persons and Enemies to Their Majesty's Government, & did openly declare, that there was an Invasion designed both Here & in England, and that the Defender did carry on the same under disguiesed names, both for Persons and Things; And that his said Project is already found, and declared by a vote of Parliament, passed upon a letter alleged written by the Defender, daited the 3d: of December 1692: And which letter is verbatim contained in the said Indictment, and a Commentar or Exposition put thereupon by my Lord Advocate; And pretending, That there are several other letters written, and subscribed by the Defender, by which his hand write, and guilt of the premises will evidently appear.  
It is Answered for the Defender, That, He is exceedingly surprised to see such an Indictment presented against him, And, the raither, That being a Stranger, and absolutely ignorant of the Laws and Customs of this Kingdom, He should have received an Indictment upon Thursday last, to Compear and Answer this day, And so, not having six free days! And Lawyers having refused to give him Advice before they were Authorised by their Majesty's Commissioner, and the Estates of Parliament, to do the same. It is impossible for the Defender, to have all these Evidences read in so short a time, which he would have adduced for Vindication of his own innocence, anent all that is libeled against him, in case he had been charged upon fifteen free days, as (conform as the Defender is informed) is usual to be practised in the like cases, Especially where the Defender was for so long time a closely prisoner, and so precluded from having the Advice or converse of any person, whereby he might have been assisted to prepare himself for this Trial; And therefore, He humbly begs, and expects, from the High and Honourable Court of Parliament, That they will be pleased to allow him some further time to have his Defencess and instructions thereof, in readiness against this indictment.  
But lest it should be pretended, That the Defender were inclined to shift and tergiverse in this Affair. Albeit he hath not all the proofs and Evidence of his innocence here in readiness, which otherwise he could have adduced, in case a competent time had been allowed him; Yet for convincing their Majesty High Commissioner, and the Honourable Estates of Parliament (as far as is possible upon such a surprise) of the Defenders innocence, He doth absolutely deny the Indictment, and whole Members Qualifications, Circumstances, and Aggravations therein contained; And as to that point of the lybel anen● the Defender his coming to Scotland, out of a treasonable design, denying, as said is, It is represented fo● him; That as he hopes it is well known to several Honourable Members of Parliament, That the pannal upon his first entering within the Kingdom, was apprehended without any warrant from Authority, b● a number of Country People, who were occasionally convocate together for the time, And brought i● to Edinburgh, where he was immediately imprisoned, and in which place, and in Stirling and Blackness, b● hath continued now prisoner for the space of more than three years; And for more than two of these yea●● a closely Prisoner: And the true design of the Pannals coming for Scotland was that he being a Roman Cath●lick, And apprehensive, that those of his persuasion might meet with some severities in England: A● having sent some of his Effects abroad, he did resolve to have gone off the Kingdom, and lived privately; But there being an Embargo then put upon all the Ships in England, so that he could get no occasion for going abroad at any Harbour there; He came for Scotland out of a harmless design, to get the occasion of shipping here; And which is evident and undeniable, and clear from this, That there was not found in his Custody, when he was first apprehended, any Papers relating to the Government any manner of way, and the only Paper then found upon him, being a Catalogue of the initial letters of five men's names, with two Letters subjoined to each of these two Initial Letters, he did before the Lords of Privy Council, when he was under Torture, Freely and Candidly expone these Initial Letters, and designations thereto subjoined, by declaring that I: G: L: S: was understood. John giles Skiper in Leith, where the Pannal was intended to have come and stayed until he had got occasion of Shipping abroad, and that the other two to which the two letters M. A. were subjoined, were Merchants at Amsterdam: And the last two to which the letters B: P: were subjoined, were Bankers at Paris, with whom the Pannall had settled some of his Effects: And the pannal did then condescend upon the names and surnames of the said four persons, And that there were then such persons in Amsterdam and Paris, as the pannal did then condescend upon: Neither than was, nor as yet can be controverted, so that the pannal admires that their Majesty's Advocate should as a preface to this indictment, allege that the pannals coming to Scotland, was out of a Treasonable design, thereby to represent him as unfavourable to the Members of the High and Honourable Court of Parliament, He being a Stranger to this Kingdom, and absolutely innocent thereof, as is above represented: And that their Majesty's Advocate should farther insinuate, that the pannal during his imprisonment should have been tampering with Enemies, for disturbing of the Government, and peace of the Kingdom: It being clear and obvious, That a prisoner, especially a closely prisoner, to whom paper, pen, and ink, and access from all other persons were discharged, could not be in any possible capacity, for managing or carrying on any such contrivances or designs: And albeit the pannal his long and tedious imprisonment, and what he suffered while he was prisoner, could not but be grievous to any Mortal: Yet he patiently endured the same, with that just submission, and humble acquiescence that is due to Authority; And therefore he humbly conceives, that Charity itself will vindicate a poor Stranger from any such imputation, And that he needs not make use of any other legal Argument for his Vindication thereof, And in Case the Pannal were Conscious to himself of any such Gild or Design, as truly he is not; Yet he hath this Unanswerable Defence in Law, That having endured Torture two several times, and being Interrogat upon the Occasion, and his design of his coming for Scotland whilst he was under the Tortut, And having denied any other Design, then as is above-represented, viz: to go abroad, and live privately, he cannot now be Indicted or pursued upon that account, conform to the Law and Custom of all Nations.  
And as to that part of the Indictment, bearing that the Pannal did frequently declare that there was an Invasion designed, etc. It is Answered, that denying the same, yet the Common Discourse of the Country, being these two years by past, that there was an Invasion designed from France into Britain: The Pannal his repeating the Common and ordinary Discourse of the Country; And which was contained in several public News Letters, can never be stretched to make him liable to the Crimes and Pains libelled. 2do. The Pannal not being a Scots Subject, and never having received any Benefit or Protection from the Government in Scotland: But being an Englishman, and there being more freedom and Liberty of Speech allowed in England, than is permitted by the Law of Scotland, albeit any Rash Expressions had escaped the Pannal (and which he absolutely denies) yet he could only be Tried and Punished therefore, conform to the Laws of his Native Country of England, by whose Laws & Customs He was obliedged to Walk and Conform his Life and Deportment into, and not conform to the Laws of Scotland, whereof he was no Subject; And which he neither knew, nor was presumed or obliedged to know. 3tio. The Pannal being Naturally Melancholy, and His Melancholy being much augmented and increased by His long Imprisonment & Sufferings. It is offered to be proven, that during all the time of His Imprisonment, His Conversation & Discourse was Harmless & Innocent, & Free & Open, as is Natural to all Englishmen: So that in Charity (if any Discourse hath escaped Him) The same aught to be Interpreted, as designed only to support himself against the Growth and Increase of his Melancholy, especially seeing it cannot be made appear, that in his Discourses he did Tamper with any Person, But on the contrair, that he used that same freedom of Discourse with all concerned in the Government and Authority, with whom he had Occasion to Converse, which he did Utter and Express to any other person whatsomever. And it is not conceivable how such Discourses can be stretched to infer any Plot or Contriveance by the Pannal, when the same was publicly Talked and uttered by him, to those who were concerned in the Government.  
And as to that part of the Libel, mentioning an Vote or Opinion of Parliament; The Pannal humbly conceives, that he himself cannot at all be Obliedged to make any answer thereto, there being no such Vote or Opinion of Parliament, or Double thereof, given to him with his Indictment. 2do. Neither (as the Pannal humbly conceives) can he any ways be concerned therein, as to this Indictment presented against him: Because albeit the least suspicion may give the Government occasion to secure the Kingdom against Plots and Mischeass, yet where there is no Vote or Act of Parliament, fixing the guilt against the Pannal Nominatum, He can never be precluded from any Competent defence for securing of his Life, by any such Vote to the passing whereof the Pannal was not called.  
And as to the last & matterial part of the indictment, founded upon a missive Letter alleged wirtten by the Pannal: And the Commentar and exposition thereof contained in the indictment, and my Lord Advocate, his offering to prove the same to be the Pannals hand Writ; Comperatione literarum, and by other papers and missive Letters under the Pannals own hand, ready to be produced.  
It is Answered, that the Pannal doth absolutely deny that ever he Wrote any Letter of the Tenor, and Contents Libelled, and the said Principal Letter ought to have been produced and shown to the Pannal himself. And he allowed to consider the same before he can be obliedged to make any Answer thereto. 2do. By the double of the said pretended Letter, as it is set down at the end of the Copy of the Indictment given to the Pannea; The same appears neither to be subscrived by the Pannal, nor to be derected for any person whatsomever; So that it is obvious to common sense, that the said Pretended Letter hath been allennatly the product of the same distempered and Melancholy brain. 3tio. It is not at all Libelled, that ever this pretended Letter was sent abroad, or delivered to any Person whatsomeever, nor doth the indictment condescend upon any person, by whom the same was conveyed away, nor in whose Custody the said pretended Letter was found, without all which, were specially Libelled and instructed: The Indictment can never be found Relevant, to sustain this Criminal Libel and conclusion against the Pannal because in case such a special Condescendance were made; The Pannal would exculpate himself by referring to, and proving by these persons Oaths, that the said pretended Letter had been conveyed and delivered to them by some other person than the Pannal; and that the same was the hand write of some other person than the Pannal, and that the Tenor, and import thereof was absolutely differant from, and inconsistent with the exposition and Commentar, put thereupon, by my Lord Advocate. 4to. Albeit a person in a Melancholy or distemper, should Scribble over a ridiculous and impertinent paper for the ease of his disturbed fancy for the time, yet in case he should either before he subscrived the same, and before he directed it to any person cancel the said impertinent and ridiculous paper, or let the same fall by as neglected such a paper; albeit thereafter found in the Custody of the Melancholy Person or in his Room, would never make the said Melancholy person liable to the Crimes and pains libelled, unless he had dispersed and sent the same abroad, because hoc ipso, that he never made use thereof, by directing the same to any person. Law presumes that he passed from, and repent of that which the distempered fit of his melancholy had formerly prompted him to.  
And as to that part of the indictment, bearing that my Lord Advocate Intends to prove Comparatione Literarum, that the said pretended missive Letter is the Pannals hand write. It is answered, 1mo. That seeing the Pannal absolutely denys the same to be his handwrite, or that he had accession thereto, or knows any thing of the design thereof in the least, yet he humbly represents to my Lord Commissioners his Grace, and the Honourable Estates of Parliament, that it is an uncontraverted printiple in Law, that as every man is presumed to be innocent and free from all guilt and fine, until the contrair thereof be instructed against him by a clear probation; So by the Laws and Customs of all Nations, and by the opinion of all Doctors that ever wrote upon the Criminal Law; This is uncontraverted and undeniable, that the guilt of any Crime, by which a Capital conclusion for taking away a man's life may be inferred, can be fixed upon any person, except by a positive probation, as clear as the Sun shininng in his Meridian: And neither the Law nor Custom of any Nation did ever allow Capital Crimes to be proven by conjectures or presumptions: And GOD Almighty himself by the mouth of Moses, requires two or three witnesses in all such casses: So that for my Lord Advocate to pretend to have a presumptive or conjectural probation sustained to him against the Pannal, who is a poor stranger, for taking away of his Life, is against the Law and practice of this, and all other Nations. 2do. Albeit Comparatio Literarum and or her papers have been sustained to Adminiculat a writ, and to make up the defects of the solemnities thereof, yet no instance can be given, where ever such a probation was sustained Relevant, to fix a Capital guilt upon any person, to take away his Life. 3tio. As all probation, especially in casses capitally Criminal, aught to be clear as the Sun, and positive, and pregnat, and incapable of any doubiety, or uncertainty: So it is referred to my Lord Commissioner, his Grace, and the Honourable E. states of Parliament, whither a probation by comparison of Letters, and hand-writes, can be so pregnant, clear, and certain, that it is absolutely incapable of being redargued by other documents, or whither or not the same be in all casses subject to doubtfulness and uncertainty, seeing the most that can be inferred from such a probation is, That the hand Writ are like to other, and (as alike, is not the same) So it is certain that many hand writes are like to others; And it is notterly known, and offered to be proven, That some persons have attained to that perfection of Writing, that they are able to counterfeit whole sheets of paper, as Writen by any other person, to that exactness and perfection, that the person himself whose hand Writ is fienzied and counterfeited, can scarcely be able to deny the same, to be his own hand Writ; And seeing a decision in Parliament, in this case will be a Rule & precedent, & have the force of a Law, in all criminal cases for the Future; It is Referred to the consideration of the High & Honourable Court of Parliament, what the dangerous consequence of such a preparative, might in process of time amount to, and whither the lives and fortunes of any Subject: Be not at the discretion of any silly Rogue who hath the skill and villainy to counterfeit his hand Writ. 4to. This is also an undeniable principle both in Law and Religion, that it is better to let a Thousand guilty persons go free, then that the blood of an Innocent person should be shed, Because, albeit a guilty person should escape the hand of Justice for a time. Almighty GOD might thereafter suffer him to fall in an other snare; By which he might thereafter be brought to condingue punishment for all: And which is not only clear from the instances of Joab and Shimei: But many instances thereof might be given in this and our Neighbour Nations: And the book entitled GOD'S Reveange against Murder, hath many examples thereof; Whereas on the other hand, the shedding of the blood of an innocent person, is like water spilt upon the ground, which cannot be gathered up, or recovered, but lies as a burden upon the Land; calling for Vengeance from Heaven: And this is a common principle received, and constantly repeated in the mouths of all Mankind, That the case of a Defender, when pursued for his life, is always most favourable; And when there is any thing doubtful, either as to the relevancy or probation which may admit of a twofold sense or interpretation, The Exposition and Interpretation Thereof, is always to be made in favours of the pannal, and Defenders: And by the Opinion of all Lawyers, Jura sunt cogenda, That is, the Laws themselves are to be stretched, and even forced so far as is possible in favours of the pannal, for absolving him from the crimes libeled, and preservation of his blood. 5to. Neither can my Lord Advocate be allowed to make use of any letters for probation against the pannall, seeing no such letters nor doubles thereof were given out to the pannal, with his indictment, as they ought to have been.  
And as to the Commentar and Exposition of that pretended letter, whereupon the Indictment is founded, which my Lord Advocate hath made, The Pannal not being at all concerned in the Letter, he cannot be concerned 〈◊〉 what Exposition or Commentar My Lord Advocate thinks fit, or fancies with himself to put upon the same: And albeit 〈◊〉 doth admire the quickness of my Lord Advocates Fancy in that commentar; Yet he humbly con●ves, that his Fancy and Opinion can never be sustained to infer any crime or guilt against the pan●●, Because, 1mo. The whole strain of that Exposition, being an alleged Design in the Writer; As 〈◊〉 Law can be alleged for allowing a Design, which is only the thought of a Man's breast, to be pro●●● by Witnesses, or by other men's conjectures; So there is no instance thereof can be adduced in this ●●ny other Nation, The enquiring into and judging the thoughts of the heart, being the prerogative of GOD Al●●●ty, which He hath reserved to Himself, excluding all Mortals from any share thereof. 2do. As the design and meaning of the Writer of that pretended letter, is neither in Law probable by Witnesses, nor can the design thereof be inferred from presumptions or conjectures; So it is referred to the Wisdom of the Parliament, Whether or not the stretches made by my Lord Advocate in that exposition, be either presumable or consistent with themselves. Because, 1mo. The lybel tending to infer the pannal his keeping a Treasonable correspondence with Enemies abroad: My Lord Advocate neither condescends upon the persons names, or designation, with whom the said correspondence is alleged to have been kept, and without condescendance upon the same, the relevancy cannot be sustained. 2do. Can any Rational Man presume or imagine, That the late King would take up his measures in matters of the greatest importance, from a person of so little signification and interest, and of so little conduct, as the pannal is known to be: Especially, considering the circumstances the pannal was in at the time, and for several years preceding, being always a prisoner, and for the most part of that time a closely prisoner. 3tio. How can the late King, his late Declaration for England, be pretended to be the product and consequence of this pretended missive letter, whereupon the Indictment is founded, as my Lord Advocate expressly lybels, Seeing it is clear, That the said pretended letter, did never come to the late King's hands: For, if it had once come to his hands, how is it possible that it could now be produced before the Parliament, as a pretended instruction of his indictment. And this per se is sufficient to demonstrate to the World, That my Lord Advocates commentar and exposition of that pretended letter, is only groundless and conjectural: And doth redargue the Faith of his Commentars' thereupon. 4to. Whereas it is pretended by my Lord Advocates commentar upon this letter, That the pannal desired a Gift from the late King of the Clerkship of Edinburgh, in favours of Mr. Patrick Smith, or his son, upon the account that his Wife had been long imprisoned upon the pannals account; And that the pannal would have been starved if she had not supplied him. It is answered, 1mo. That it is absolutely denied, that ever Mr. Patrick smith's Wife was imprisoned upon the pannals account, or that ever she was imprisoned since the pannal came to Scotland: Neither doth the pannal know if she be fled or not, or upon what account. And Mr. Patrick Smith is known to be in that circumstances, that he is even much straitened as to the maintenance of himself and his family. 2do. Can the pannal be pretended to be so ridiculous, (unless he had been under some melancholy distemper,) to write for the Gift of a Clerkship, where there was no Vaccancie, Aeneas Mackleod being then in possession of the equal half of the place, long before Sir James Rocheads deceass, And being secured in the survivancie of the other half many years before: And that Clerkship being known to be not at the King's disposal, but only at the disposal of the Town Council, when vaccant. And to clear the High Court of Parliament, That this is only a designed stretch, for loading of the pannal, when the debates were betwixt the Old and New Councils of Edinburgh, anent their Elections: There was an other person then specially condeseended upon, as designed for that Clerkship.  
And as to that pretence, That in the said Letter by the word (Agents) is understood; My Lord Advovocat, and Lord Justice Clerk, in respect they were nominate to these Employments by the King, about four days before the date of that pret ended Letter, viz: upon the 28 of November; And this pretended Letter, is alleged to be dated the third of December thereafter. It is answered, that seeing it is impossible, that what was done at London upon the 28 of November, could have come to the Pannals Knowledge, who was then a prisoner at Blackness in so few days, in that Season of the year: This doth convincingly redargue that part of my Lord Advocates Commentar; And the pannal is content to depone, That he never knew or heard of my Lord Justice Clerk his being preferred until he did see his Lordship, lately in the Toolbooth of Edinburgh. And, That he never heard of my Lord Advocates preferment, until long after the date of that pretended letter. And therefore it is referred to the Justice and Wisdom of the High Court of parliament, Whether or not such uncertain conjectures, as to all the Branches of my Lord Advocates Commentar and Exposition of that letter, evidently appears to be, Can by the Law of this or any other Kingdom be sustained, as is a clear and convincing probation to fix a Criminal Gild upon a poor Stranger to take away his Life! And as the said Letter appears to be the nonsensical product of a disturbed Brain in all the points thereof; So there is neither any thing libeled or produced, which can instruct any one of the Names or Particulars therein contained to be the same, which My Lord Advocate affirms and supposes in his Exposition.  
And seeing by the Claim of Right of this Kingdom, (and which the Petitioner humbly conceives to be equivolent to the Petition of Right in England, the great and unquestionable Securitys of the Subjects of his Native Kingdom.) It is expressly declared, that the pursuing persons, upon stretches from old and Obsolet Laws or upon Frivolous and Weak Pretences, or Lame and Defective Probation, are contrair to Law, and that there was never a Criminal Libel offered to be founded upon such Weak and Frivolous Pretences as this; The foundation thereof, being only a pretended Missive Letter, neither subscrived nor directed nor delivered to any person; But as it appears to be the Melancholy Product of a disturbed Brain. So also it appears to have been casually lost and neglected, and as there can neither Sense not Crime be inferred from the Letter itself; So all that is libelled against the Pannal, as Criminal therefrom, is only founded upon My Lord Advocats own Fancy and Conjecture, So the Probation offered therefore, Viz. Comparatio Literarum, being such as never was yet sustained in any Court, for taking away the Life of a Man; The Pannal humbly conceives, that this Libel and Probation offered against him, by the foresaid Clause in the Claim of Right, is expressly declared to be contrair to Law. And therefore, albeit the Pannal be a poor Stranger, and that he be also unknown to the Members of this Honourable Court of Parliament, as he is ignorant of the Laws of this Kingdom: Yet seeing it is his Misfortune (and for which he is hearty sorry) to be indicted and accused of such high and Attrocious Crimes. He judges himself happy in this, that he is to be tried before My Lord Commissioner, his Grace, and the Honourable Estates of Parliament, of whose impartial Justice to a poor Stranger now pursued for his Life, he is not in the least doubtful, but on the Contrair out of the Consciousness of his own Innocence, doth repose an entire Confidence in their impartial Justice, And humbly expects therefrom to be assoilyied from his groundless lybel, which contrair to the claim of Right, is only founded upon frivolous and weak pretences, and craved to be supported and made out by a Lame and Defective Probation in manner Above represented.