Unto the Right Honourable, The Lords of His Majesty's Privy Council.  
The Petition of the Earl of SEAFORT  
Sheweth,  
THat where your Lordships have been pleased to find the Deforcement and Riot libeled at the Instance of Pitliver and Tulloch proven; and have discerned me, as I am informed, in a very great Sum. I do with all respect to your Lordships, beseech the following Reasons may be considered, for clearing that I cannot be liable on either of these Accounts.  
And First, as to the Deforcement, I do with submission contend there was none: For there can be no Deforcement, where there is no Messenger: And Robert Dallas alleged to have been Deforced, was no Messenger. And I did produce an Attestation from the Lion, for clearing that he was deprived; and his deprivation Intimat but a few Weeks before his pretended Deforcement.  
I know it was urged, 1 more. That he was Habit and Repute Messenger. 2 do. That he was deprived only upon a Formality by the Lion, and for no ground of Malversation. But to these my Answers are plain. And to the First, it is Answered, that the deprivation, being within a few Weeks before the pretended Act of Deforcement, and the Deprivation happening to have been Intimat and published at the Mercat Cross of Inverness, where the Deforcement is alleged to have fallen out, there was not time nor pretence of Habit and Repute, which is inferred from length of time, and frequency of Acts. 2 do. Tho Habit and Repute may serve the turn in Civil actione; yet it is not sufficient to infer a Crime, or to be regarded, where the Question is to be about Punishment, where things are to be Real and not Suspposed. 3 tio. I did at the Bar give a new Libel to the Pursuers: And I do positively offer to prove, That Dallas his Deprivation was publicly known; which excludes all pretence of Habit and Repute.  
And lastly, the pretence, That he was deprived upon a light occasion. I answer. whatever was the occasion of his Deprivation, he was deprived, & was no Messenger: And the Lion Court who gave him his Office and Authority, has solemnly taken it away: And if he had believed himself lesed, he ought to have applied to the Lords of Session: But the truth is, he as Messenger having found Caution for his Office, and to perform certain other Duties conform to the Act of Parliament, under Condition to be deprived if he should Faill, And having failed he was most justly deprived and his deprivation was fairly intimate by the Lion Court: And therefore he was no Messenger; and consequently there could be no Deforcement. And the Pursuers are to blame, who used such a Messenger after the legal form of Intimation.  
Nor is this all, though in my humble Opinion, this is very much. But further. it is evident, That the Execution of Deforcement in the essential parts of it, is not proven. And I must Beg leave to say, That however in Civil Cases the Execution of a Messenger is probative; yet in Cases inferring punishment, it is but considered as a naked assertion; unless it be astructed by the Depositions of the Witnesses unsuspect: Nor is it sufficient to be Subscribed by the Messenger in such Cases; because even his Oath would be refused, in respect of the Personal Injury in the Lybel done to himself. And so it is, this Instrument is not only not astructed; but it is destroyed by the Testimonies. First, because the Testimonies differing from what they have Subscrived under their hand, and each from another, do render both the Execution and themselves suspect: And your Lordships have found it in a Case perfectly parallel to this within this few days, betwixt the Earl of Tullibardine and Balnagoun. 2 do. It was to have been proven the Blazon was displayed; that I was Wanded or Apprehended; and that it had been Intimat by whose Authority, and at whose Instance: Seeing it was so insert in the Execution, and that some of these, especially the Displaying the Blazon, as the differencing Badge of a Messenger from any other Liege, and so an indispensible solemnity; as McKenzie in his Criminals pag. 259. And Stair. in his Institut. pag. 725. Num. 14. and 738. N. 7. expressly hold it as a principal. And Stair. ut supra pag. 730 hold it as a principal that an Exauctorat Messenger may be despised, if he cannot prove that he had Blazon displayed yet of this the Witnesses prove nothing. Nay on the contrary, they Depone, they did not see the Blazon, They Depone they did not see me touched with the Wand an of Peace; & none of them did so much as hear Pitlivers Name mentioned. I desire to know if they can produce the Testimony of any Lawyer, asserting, that a man without any special Mark or distinction by Blazon, or even a Messenger with his Blazon Displayed, without so much as a Warrant, or the Parties Name Intimat verbally, is a Legal Execution of a Caption: And without a legal Execution of a Caption. there can be no deforcement 3 tio. Though the Instrument bears other Witnesses to have been present, beyond all manner of exception; yet the Pursuers has only adduced Bayn, designed Tullochs Servants, and a very Boy, who did not so much as sign the Execution, until the Messenger was Dead. And I offer to prove, That other of the Witnesses being required to sign the Execution, refused it; because it was not true. So that it remains, Here is a Deforcement upon which I am fined in a very great Sum, whereupon my Escheat may fall without either Messengers or Execution. And it was no marvel though the Witnesses should Vary a little from themselves and the Execution; because I offer to prove. That the Execution was filled up here in Edinhurgh, even after the Messenger was Dead: And I shall use no other Witnesses than these already cited, or the Pusuers themselves and their Agents: And I do contend, That an Execution so redargued, and sent up blank is not to be considered as an Execution at all.  
I omit to tell your Lordships, I had no Accession to the Acts of Violence and Deforcement, and the Pursuers had only the Confidence to urge the Crime to have been committed chief by my Servants.  
As to the Riot, I detest and abhor it: It is neither suitable to the Character I have the Honour to bear, nor to my Breeding nor Temper. It is proven indeed, That Mr. William Baily, and other of the Defenders, were guilty of the Riot: But that I had any Accession to it, I desire the Pursuers frankly to say, what part of the Probation clears it. They did libel indeed, That Tulloch was carried to my House, to my Closs, through a Town in Daylight, ignominiously; and there Beat. But they have not one single Testimony to prove it; though the Carrying Tulloch thorough the Town in Daylight, might certainly have been proven, if it had been True. Nay, I positively offer to prove, That the Castle of Chanery, was not the ordinary place of my Residence; and that I was alibi all that Day.  
The Pursuers had not the Confidence to allege, I was guilty directly. They did indeed pretend to have the Matter cleared by their own Oath; which is New, in Matters Criminal. They did likeways allege, That I should be liable as an Highland Chief. But I humbly presume, your Lordships did not proceed upon that Ground. These consequential Hits, do infinitely more concern the Nation, than me: It were above measure hard, that I, or Persons in the like Circumstances, should be exposed for the Riots of their Servants to pay such great Sums, with Imprisonment, and other great Damnages; especially when these Servants were never required, till they were out of my power, they having gone out of the Kingdom long before, and had no residence on my ground. This is not my Case alone, but is the Case of all Noblemen and Gentlemen in the Highland Countries; nay, and I may say, in the Nation: For there is a general Clause in the Act of Parliament founded on. But I am persuaded your Lordships could not extend that Matter, though the Pursuers were forced, through the straitness of their Cause, to urge it.  
I am as fully persuaded, That the Odious Misrepresentations against me, had no influence in the Decision: And therefore I shall not trouble your Lordships with a long Vindication of myself, as to my General Management and Conduct: I am perfectly satisfied your Lordships will proceed only on Probation, and the State of the Case, as is laid before you.  
May it therefore please your Lordships to consider these Principles of Law, and to find there is no Deforcement proven: And that I had no Accession to the Riot committed: And therefore to Assoilyie me, and Liberate me from my Imprisonment.  
And your Petitioner shall ever Pray.