INFORMATION FOR MY LORD AND LADY NAIRN, DAVID FALCONER OF NEWTOUN AND MICHAEL BALFOUR OF FORRET Against the EARL of ARGYL.  
Printed in the Year, 1690.   

INFORMATION FOR MY LORD AND LADY NAIRN, DAVID FALCONER OF NEWTOUN, AND MICHAEL BALFOUR OF FORRET. AGAINST THE EARL OF ARGYLE.  
THERE is a Petition presented by the Earl of Argyl to the high Court of Parliament founding upon several Acts of Parliament, and upon the common Law, and Law of Nations, whereby it is alleged that Judges pronuncing unjust Sentences are punishable, and subsuming that the deceased Earl of Argyl was unjustly Forfeited, and desiring that the Heirs and Representatives of the Lord Nairn, Sir David Falconer of Newtoun, and Sir David Balfour of Forret, three of the Criminal Judges who pronunced the Sentence of Forfeiture, may be liable to this Earl of Argyl, for the Damage sustained by that unjust Sentence, amounting to 6000● Pound Sterling.  
This is a Claim, such as was never offered before any Judicatory within this Kingdom, and is the more extraordinary, that it is presented after the decease of all these Judges who lived and died in Honour and Credit, and the Reputation of Integrity; And it is very hard that any Slain or B●ot should be laid upon their Memory, in Relation to their Deportment and opinion in a Process, which they themselves could only have cleared, their Heirs being altogether Strangers to it.  
Albeit there be several Laws and Acts of Parliament, whereby Judges are Punishable for doing Wrong, or Unhonesty, or for refusing to do Justice: Yet that has been a Point so tender, that there cannot be any precedent Instanced, wherein a Judge hath been pursued upon that Ground, so that really these Acts may be reckoned amongst Old and Obsolet Laws, neither does it appear by any of them, that it was designed to give a Party an Interest to pursue for Damnages by unjust Sentences; but that a Party might Complain to the King and his Council; and that a Judge being found guilty might be punishable in his Person and Goods, but without any Benefit to the Party, except his Charges in the Complaint, the fine to be imposed upon the Judge being Penal, which with all others of the like Nature doth belong to the Fisk.  
The Earl of Argyl who offers the Complaint, does found the same upon the Claim of Right, and Restitution of the Forfeiture, which may be a good ground for Possessing or Affecting his Father's Estate, but it were of very Dangerous Consequence, that the Restitution of a Forfeiture by Act of Parliament, should make the Judges obnoxious who pronunced the Sentence; this is not the first Restitution in Parliament by way of Justice, our Records are full of the like, but none who were ever so restored, did pretend in this or any bygone Age, that the Judges who pronunced Sentence should be Culpable; and if it were sustained in this Case, there is a prospect of Restoring several Hundreds of late Forfeitures, what then should become of the Judges who pronunced these? Or who would undertake to serve as Judges under any Government, if all posterior Reductions or Impungning of their Sentence should make their Estates liable to Damnages, and what is now Acclaimed in the Case of Criminal Judges, were much more Competent against Judges in Civil Matters; All the Laws Cited having a special Relation to Civil Processes, and therefore our Predecessors in making of these Laws having foreseen the Dangerous Consequences of allowing Civil Actions to Parties, who either really were, or apprehended themselves to be Injured. They did not place any right interest or Benefit to the private Parties prejudged, but only that they might be Informers, or complain to the King and His Council, and obtain the Judge to be punished at the King's Pleasure, either in his Person, Fame or Goods: Yet so as no share did fall to the Party Complainer by that Process, and if it were not so, how miserably would all the Fences and Securities of our Properties be unhinged. for after such a precedent, there would remain nothing, but to run throw the records of Council, Session and Justice Court, and under the Notion of Damages, by the Sentences of these Judicatories, the Estates of all the Judges thereof; whose Sentences were afterwards Reduced or Rescinded might be wholly exhausted and carried away; neither could the Members of Parliament acting in a Judicative Capacity be secured from the Consequences of such a Preparative.  
It were unnecessar and unfit to debate any thing, in relation to the Procedure, against the deceased Earl of Argyl, whom the Parliament hath Restored; But what ever Action or Complaint is competent to him, the like will be competent to all who shall be Restored by way of Justice; For albeit there may not appear the like clear and evident Grounds for their Restitution, yet being Restored by way of Justice, their Forfeitures must be acknowledged to have been unjust; And no Party will be admitted to plead any point that might seem to support the Justice of the sentence of Forfeitures; And it were impossible to fix and settle a clear Rule or Limit, which of the Rescinded Sentences were more or less unjust; And in what case the Judge should be liable or Free after such a Restitution, especially where Restitution is by a public Act of Parliament, without Process or Citation of Parties, which is equal in the Earl's case, And all others who shall be restored that way; For albeit the Heirs of the Judges be no● called, yet there being once a Restitution, without calling of Parties, all Defence is now precluded in Relation to the Process, which in deference to the Act of Parliament, must be presumed, and plead as absolutely Unjust in the same Terms, as it is expressed in the Restitution.  
These general Grounds being premised, It is Answered for the Defenders, 1 more: That albeit the Earl did actually Represent his Father as Heir and Executor, to whom he is only Appearand Heir by h●● Restitution, and thereby hath no sufficient Active Tittle to pursue▪ And that the Defender did Represent these Judges upon the passive Tittles which they deny; Yet the doom of Forfeiture can be no Probation, that these three Judges, or any single one of them did give their Vote or Opinion, for sustaining the relevancy; But only that the Relevancy was sustained by the Plurality, which does not prove that the Plurality was made up by the particular Vote or Votes of a●● One or More of these three Judges, which might have been by the Opinion of others, and can at most but conclude one of the three▪ And it cannot be distinguished or known, which of the three was the person; And it is a known Principle, That Actore non probante absol●tur reus, Neither can any Probation of their Accession be sustained unless it were proven under their own hands, or by their own a● knowledgment, That they were Consenting or Concurring in sustaining the relevancy; Because, albeit Witness could be received f●● proving of that point, which is denied; There is none living wh● can bear Testimony in that Matter, except two Judges with them 〈◊〉 the same Court And the Question being, who were the Judges guilty None of them can be sustained to liberate themselves by loading others; And for this cause, in the Trial by an Assize of Error, upon th● 63: Act 8: Par: Ja: 3: It is provided, That the Assize shall be called and inquiry made at them, if they did all agree, whereby no particular Assysour could be singled out from the rest, much less a g●●● fixed upon any Defunct, who was not to answer for himself.  
2 do. Our Munieipal Laws for punishment of Unjust or Negligee Judges, are all in Relation to the Civil Administration of Jus●● betwixt Party and Party, and not one of them does relate to the Justices, in Criminal Mattets, and on the contrare it is evident, that by our Law, no Judges or Assysours, passing upon a Criminal Process, can undergo any punishment if they Condemn, but only in case they acquit the Pannell, and therefore there is an Assize of Error provided by the said 63 Act, 8. Parl. Ja. 3. In case the Inquest contrare to manifest knowledge, do acquit the Panel, but no punishment on the other hand; And the reason is, because the Sympathy of Humane Nature, is thought sufficient to restrain both Judges and Jurors from Condemning the Innocent, and this presumption hath so satisfied and filled the minds of the Lawgivers, that there is no Statute providing any Remedy, or Punishment against the Judge in that case,  
3tio. In so far as the Petition is founded upon the Acts of Parliament of this Kingdom, there doth not arise any Inrerest or Damnage to a Party prejudged by the Sentence of any Judicator how unjust soever, but the sum of all the Acts of Parliament libeled in relation to the Judges, amounts to this, That Unjust and Negligent Judges may be punished by the King & his Council in their Persons, Goods or Fame, according to the quality of their Offence at the King's Pleasure, and where ever a Party is in general appointed to be punished, any Fine or Pecunial punishment that can be imposed by that Law, doth fall to the Fisk, unless the Law appoint a particular Application in whole or in part to the Person prejudged; so that whatever were chargeable upon the Judges at the Instance of the King's Majesty, there is no Action competent at the Instance of any Party for a private Interest, or at most only for the Charges in Accusing and Prosecuting the Judge, and for instructing this defence without repeating the several Acts of Parliament founded on, the same are desired to be considered as they are Stated in the Bill, without the Commentaries that are affixed upon them expressly Contrare, and Inconsistent therewith; And it is not pretended that any of these Acts, do expressly found an Interest to the Party, but after a full Relation of the Acts, there is subjoined a Commentary on them in these words; Which no doubt doth farther import the Parties damage: A rare Assertion and well founded! that beside the Penalties expressed in the Act, there is no doubt a farther Penalty imported thereby; and there is 〈◊〉 more to make out this Position, than a bare Assertion, it is not u●ged from any former Practice or Precedent, for the like was never p●●tended: It is not alleged that in other Laws, of this, or any other N●tion, where there is a special Penalty expressed, or an Arbitrary punishment at the Pleasure of the Judge or Sovereign; that beside th● Special or Arbitrary punishment expressed, there shall be a separate distinct Penalty competent; so that this Position, upon which th● weight of the whole Acts of Parliament cited, is founded, being without the least shadow of Law, Reason, or Precedent, the conclusion upon it must fall in Consequence; And the Defenders do up●● good Ground conclude, that seeing these Acts do not contain a●● Clause or Provision in Favours of the Party Injured, That No Do●● they do not import any such Interest in Favours of the Party, an● their Assertion is confirmed by the Acquiesence of all, who in this 〈◊〉 any former Age have been Injured or Prejudged by the Sentence 〈◊〉 any Judicator, who have never pretended to such a Redress; and t●● Defenders Assertion is also confirmed by the Example of all Pe●● Laws, which do never import any farther Penalty than what is specially expressed: And without question, the Earl's Claim is merely Pe●● against the Heirs of the Judges, who are no ways enriched by his l●●● or any Consequence of that Sentence.  
4to. Albeit these Laws might infer a Punishment against 〈◊〉 Judges, yet the same being merae poenae, and falling to the Fisk, m●●● be freely discharged by the King, which was done in this case, in 〈◊〉 far as the Sentence and Process of Forfeiture, was approven by 〈◊〉 Act of Parliament, 1685: and by the 31: Act of that Parliament▪ All the Judges of the Nation, Civil or Criminal, were indemni●●● and secured anent their Actings in his Majesty's Service, and tha● 〈◊〉 fully, as if every particular Crime and Misdemannour were specia●●● expressed in a Remission, under the Great Seal, Requiring all Jud●●● to interpret the said Indemnity in the most Ample and Favoura●●● Sense: Which Act doth fully secure the Judges as to any Claim, t●●● can arise either to the Fisk, or even to a private Party, by any Cri●● or Misdemannour Committed or Ommitted in their Office; A●● no Rescision of the Forfeiture can found any Action against the Judges who are as amply exonered, As if they had been pursued, and undergone the severest penalty of the Law.  
5to. In so far as the Lybel is founded upon the Common Law, it does appear that the Earl has laid very little weight upon it, seeing there is no special Citation adduced from that Law, for inferring the Conclusion; And indeed there was no reason to Rely upon it; For, 1: Albeit by our Customs great Recourse be had therteo, where, we have no positive Law of our own; yet in this and all other cases, where we have special Statutes, we are to be Regulate thereby, and whether the Penalties therein expressed, be more or less than what is contained in the Civil Law, it is of no importance; so that if by these Special Penal Laws of this Nation, mentioned in the Bill, the Representatives of the Judges be not liable, they cannot be subjected to any Punishment by the provision of the Civil Law. 2. It is true that several Texts in the Civil Law do subject an unjust Judge to severe penalties, which do distinguish two cases, either the same is pronounced per imprudentiam, in which case the Judge is not simply liable in estimationem litis, for the full damage and interest. Sed in quantum Religioni judicantis visum fuerit 
* l: ult: ff. de extraord: coquit: Inst: de oblige: quae quas: ex delict. in prin: : Or otherwise, the unjust Sentence was pronounced by fraud and corruption, in which case, the Judge was punished in the full damage and interest and infamy: But by that Law, Fraud was never presumed 
* l: 6: C: de dolo: l: 13: § 1: ff: de pro: l: 51: ff: prosocio. , So that however palpably unjust the sentence did appear, yet the presumption was for the Judge, that it was per imprudentiam aut imperitiam, unless there were a positive probation, that there was Corruption; And the Law was so favourable to the Judge, that it did allow him to purge himself of the suspicion of corruption by his own Oath 
* Nov: 124: cap: 2. . And did further most severely punish the party, who did slander the Judge, and subjected him to the punishment, to which the Judge should have been liable, so that the presumption does still lie for the Judge, that any Error that was committed by him, was merely per imprudentiam, and the punishment thereof was Arbitrary. But all Writers upon the Title, de poenis ●al● Judicantium, do agree that the practice generally of all Nations have recede from that severity expressed in the Law ‖. 
† Perezius de poem: Jud: n: 5: Christene. u: vol: 4: Decis: 95: n: 4: Argentre ad consuetud Britan. Art: 33: ●: 4: ●: Groenweg: de Leg. Abrog: ad Ti●: Inst: de ob: ex quas: del.   
It is therefore a very injurious Censor and Reflection, That these Judges did maliciously cooperate with Popish Designs, in condemning the innocent, seeing all of them lived and died without the least suspicion of declining from the Protestant Religion, in which they were Educate; and it is the common Interest of Mankind, to interpret the Actions of other Men in the most favourable and benign Sense they can bear: Every Person who weighs Humane Frailty, And considers himself likewise subject to INFIRMITIES, aught to construct all doubtful Actions in the best sense, and never to presume Malice or Fraud; no Man desires his own Actions to be so constructed, Et quod tibi f●●●● non vis, alteri ne feceris.  
3tio. The Civil Law did restrict all penal Actions, and did allo● the same only to be pursued against the person guilty; but there was no Action competent against his Heirs, except in two cases, where either the Action had been pursued against the Defunct, and proceeded the length of Litiscontestation, whereby it was no more considered as a Penal Action, but as a Civil Debt, ex quasi contractis, or otherwise, in case the heritage were enriched by the Defuncts Crime▪ And in that case, there was only Action granted, in so far as the Heir was enriched, in quantum ad haeredem pervenit ut turpe lucrum extorque●●●. But in all other cases, (perduellion, and the Action called in Law condictio Furtiva, only excepted) mortalitate extinguitur crimen; This is a point so clear, That it is beyond all Debate, being plainly expressed by innumerable Texts in the Civil Law, so fully, that there does not ari●● any controversy in that point amongst Writers or Practitioners 
* L: un: C: ex del: def: l: 5. ff: de Calum. l: 19: ff: quod moetus causa l: Ind neratius 23: § hanc actionem ff: add l: aquil: l: haec actio 13: ff de serv: Corrup. l. l: 9: § 1: ff quod falls: tut: l: 3: § pen: ff si 〈◊〉 falls: mod: l: 1: de Priv: del: l: 2: § ult: ff vibon: rapt: l: inhonorariis 35: de obl: & Act pupil●●●● Ill: § 1: de Reg: Jur: § ult: just. de obl: quae quasi ex del: Inst: de perpet: & temp: Act § 1. .  
If then this Action be acknowledged to be a penal Action, it is c●●ly personal, and it cannot with any shadow of Reason be controverted, that the same is penal against the Judges, or their Heirs because the foundation of the process is the punishment of an alleged Fact and Deed of the Judges, whereby they nor their Heirs a●● no ways enriched; And there are many Actions which are not pen●● upon the part of the Pursuer, who claims nothing but damage and interest, Quod à patrimonio suo abest; And yet they are reckoned penal, because in so far as concerns the Defender they are such, his Fortune not being enriched by the Pursuers Damage; And therefore most of all the Texts, which mention penal Actions to be personal, the Examples and species facti, contained in these Laws are inch, as are only for Damage and Interest upon the part of the Pursuer, but Penal upon the part of the Defender, as will be evident to any who shall consider the Laws. And the general Rule of Lawyers in this matter, is, That Quoties actio factum punit & in dolum concepta est, and is pursued against him who is not enriched by the Fraud: 
d. l: 9: § ●: ff quod fals. tut.  The Action is Penal, and not competent against Heirs, albeit upon the Pursuers part, it may seem rei persecutoria for Damage and Interest *. And albeit the Law cannot enumerate every case, to apply the general rule to it; Yet it is particularly decided I: 16: ff: de Judiciis; That the Heir of a Judge cannot be pursued, Julianus autem in haeredem Judicis, qui litem suam fecit, actionem competere putat, quae sententia vera non est, & à multis notata. And what shadow of pretence can remain to pursue the Heir of a Judge, who is secured by innumerable Texts, upon that general ground, that no Penal Action is competent against Heirs; And by a particular express Law, the Heir of a Judge is comprehended, and hath the benefit of the other Laws, which liberate the Heirs of all Delinquents.  
4to. As by the Civil Law, the Heir of no Delinquent could be pursued; The like holds in our practice, and by our Statutes, and for verifying of this Alledgeance, let all the Crimes which are punishable by our Law be considered, and see if any one of these can be instanced which may found an Action against the Heir of the Delinquent▪ except in quantum pervenit, conform to the Civil Law; Or let the Earl condescend upon any Action of the like Nature, that was ever sustained or acclaimed: And why is it, that our Law does require a special Statute to make Treason punishable, after the death of the Traitor, by an Action against his Heirs? But because that was a speciality, wherein that Crime was differenced from all others, and all Processess of Treason against the Heirs of Defuncts, are expressly founded upon the said Act of Parliament, which renders it beyond D●●bate, that all other Crimes are extinguished by Death. And therefore, although Murder and Manslaughter be amongst the most odious of all Crimes, and whereby frequently great damages arise to the Heirs, yet there was never any action for Assythment, or any other effect sustained, or intented against the Heirs of the Murder●●●  
The Earl appears to have foreseen the inevitable force of this Deffence, and for obviating thereof, he doth in his Bill, insist upon two Acts of Parliament, viz: 49: Act Parl: 11: Ja: 6: and 69: Act 6: P●●●● Ja: 5: By the first cited of these, it is provided, That whoever maliciously accuses another of Treason, if the Party accused be acquit, the Accuser incurs the pain of Treason; which in all Reason (as is alleged) ought to take place against these who maliciously conde●● the innocent; and thereby would pretend, that the Judges were liable to be punished as Traitors. And by the other Act of King James the Fifth, it is provided, That process of Treason may be pursued against the Heirs of the Traitor; but the Earl of his mere bounty, does restrict the effect thereof to Restitution.  
To these pretences it is Answered, that it was a rare stretch of Invention, to find out an Argument from these Laws against the Judge or their Heirs, to make them liable according to the desire of the Petition, and to which the Earl was driven by the view of the Obvious and Unanswerable Defences above written, especially, That all crimes are extinguish dby death; therefore it was necessary that this Crime should be Screwed up to the pitch of Treason, that the Heirs might become liable, and in effect Forfeited by a greater Stretches than the forme●  
It is then to be considered by what Reason this pretence can be supported, which must necessarily bear the weight of the whole Claim●● And Imo. it is uncontraverted that Penal Statutes are not to be be extended de Casu in Casum 
* L: 42: ff: de poen: l: 19: ff: de lib: & posthum: haered: instit. , and though the Law affix a great Penalty to 〈◊〉 small Crime, it is to be inflicted, licet durum fit, quia ita Lex scripsit. B●● to pretend from thence that every Crime as Heighnous of its o●● Nature, or having any Resemblance to that which is expressed, shou●● be punished by the same severity, is such a Notion, as never formerly entered into the Head of any Lawyer; this were indeed to rende●● every Man uncertain in his Life or Estate, and to make our Penal Laws altogether Arbitrary at the Apprehension of every Judge, according to his Opinion and Estimation of the Crimes libeled. 2do. There can hardly be two Crimes, having less of Parity or Resemblance one to another, then that of a Malicious Accuser with an unjust Judge: What Parallel can be imagined betwixt these two? A Malicious Accuser is a Person who Offlciously, and Unnecessarly obtrudes himself to Prosecute a Person for his Life and fortune; a Judge is bound by the Necessity of his Office to give a Sentence, which though it may be found Unjust; yet it is presumed to be per Impertiam, out Imprudentiam, and not by his Malice, Fraud or Corruption, as is above mentioned: And that which is mainly considered in that Statute, is the Officiousness of the Accuser of an Innocent Person, and therefore though His Majesty's Advocate should prosecute a party with Rigour, it is not understood Malice, because he is in his Duty or Office, so the Judge deciding, is in his Office, but the Fault is a Miscarriage: Which in all Law is esteemed to be an Error in his judgement; For by the Novel Constitutions, a Judge was only bound by his Oath de Fideli, to swear that he should decide secuudum, quod illi visum fuerit justius & melius, and it's from that Reason that the Custom of all Nations have exemed Judges from any Process, upon their Sentences; except in the case of Fraud, or Corruption; Arthur: Hodie C: de Judiciis.  
3tio. Let it now be supposed that the imaginary Parallel betwixt the Judge and Officious Accuser, could subsist, which is impossible, yet that could found no Action against the Heir of the Judge, upon King James the Fifths Act, for that Act does only mention the case of Lase-Majesty; And does provide that processes of Treason might be pursued against Heirs, conform to the Common Law, so that it must be considered, what was provided by the Common Law, as to putsutes of Treason, against the Heirs of the Traitor: It is true that both the Civil Law, and Ours, do recede from the general Rule, That all crimes are extinguished by Death; In the special case of Laese Majesty, but neither of these do Authorise processes to be pursued against the Heir upon Statutory Treason, as is clear by the last Law, ff●●●d legem Juliam majestatis. Is qui in reatu decedit integri status deced 〈◊〉 Extinguitur enim crimen mortalitate, nisi fortè quis majestatis reus fuit, hoc crimine, nisi à successeribus purgetur, haereditas Fisco vindicatur, non quisquis legis Juliae majestatis reus est, in eadem conditione est, s● perduellionis reus est, hostili animo adversus rempublicam vel principem a●● tus caeterum si quis ex aliâ cousâ legis Juliae majestatis reus sit, mor● mine liberatur. By which it Appears plainly, that every Treas● not competent to be pursued against the Heir of the Traitor; that which is specially called Laese-Majesty, or Perduellion, against King or Commonwealth; But all other kinds of Treason, su●● the Statute against False Accusers, are extinguished by Death.  
4to. But even suppose also, that as the Crime libeled were Tre●● so the pursut were Competent against the Heirs, what Interest arise to the Earl of Argyl by this means, the King's Majesty 〈◊〉 indeed pursue a Forfeiture, and Gift it to the Earl; but such n●●● Processess are not so much in Vogue, but by what pretence th●● should by a seeming Condescendence Restrict the Claim of P●●ture to Damage and Interest, passes all understanding, for if Tr●●● be Incurred, the Action arises not to the Earl, nor can Dama●● pursued by him upon that Ground, that the Heirs are liable as 〈◊〉 Case of Treason, and after all the Earls pretended Bounty i● stricting the Lybel, is wholly unprofitable to the Heirs, the I ●●ges Acclaimed being far beyond the Value of the Defunct●● whole Estates.  
It is therefore Humbly and Confidently expected from the Wisdom a●●stice of the High Court of Parliament; That no Counten●● Encouragement will be given to the streached pretences in the Claim, which are destitute of all Foundation in Law Civil municipal, and without Example; And which carry along more ●●ning Consequences to the Fame and Reputation of Judge's who●● Honour and Credit, to the Estates of their Innocent Heirs, and Lives and Fortunes of such as are Alive, then ever was pointed any former Case, in this, or any other Nation, under the Sun.