Pleadings in some remarkable cases before the Supreme Courts of Scotland since the year 1661 to which the decisions are subjoyn'd.

For the late Marquess of Argyl, immediatly before his Case was advised.

XV. PLEADING. Whether passive complyance in publick Rebellions, be punishable as Treason.

My Lord Chancellor,

I Wish it may be the last misfortune of my Noble Client, that he should be now abandoned to the patronage of so weak a Pleader as I am, whose unripenesse both in years and experience, may, and will take from me that confidence, and from your Lordships that respect, which were requisit in an Affair of this import. In our former Debate, which is now closed, we contended from the principles of strict and municipal Law: but here I shall endeavour to perswade your Lordships, from the principles of equity, reason, conveniency and the custom of Nations; which is the more proper way of Debate before a Parliament, who make Laws, but are not tyed by them, and who in making Laws, consider what is fit and equitable, and then ordain what shall be Law and Justice; and if your Lordships consider strict Law in this case, it were in vain for the loyalest Subjects, who liv'd in these three King∣doms during those late confusions and rebellions, to defend

his own actions by that rule: for, since intercommuning with Traitors, concealing of Treason, and acknowledging their Au∣thority, are by strict Law, in regular times, undenyable Acts of Treason, I am no more to debate abstractly my Clients Innocence as to these, for who amongst us did not share in that guilt? All did pay Sesse, all did raise Summonds in the Pro∣tectors name, we were all forc'd to be the idle witnesses of their Treasons; and therefore, I shall only contend, that in such irregular times as these were, wherein Law it self was banisht with our Prince, meer compliance can amount to no crime in him, and that as to this he lyes under no singular guilt; Espe∣cially, seing His Majesty has, by a Letter under His Royal Hand, declar'd, that he will not have His Advocat insist against him, for what was done by him, or any els, preceeding the year, 1651. (in which time he was only an eminent Actor) having retired himself from all publick imployments under Cromwels Usurpation, being known for nothing all that time, but a sufferer, and being forc'd by self preservation to do those things for which he is now accused, which being undeny∣ably acknowledged by all the Nation, cannot but recommend these few particulars, which I am now to offer for him.

Complyance (as the very word imports) is only a passive connivance, Et praesupponit crimen in suo esse hactenus con∣stitutum; and in Law, when a multitude offend (as in our case) the contrivers, and such as were most active, are, and should only be punish'd, detrahendum est seve∣ritati ubi multorum hominum strages jacet: and therefore, this Noble Person being acknowledged to be none of the first plotters, nor having been singular amongst that vast multitude of complyers, cannot be brought in amongst such as ought to be punished. For, albeit where many may commit a crime, there the multitude of offenders should highten the punishment; yet, where the crime is already com∣mited collectively by a multitude, there the number of

offenders takes off the guilt, and in such cases, none should be punished (saith Aflictus) but in flagranti & recenti crimine (or with rid hand, as our Law terms it) dum durat crimen, nec sine quorundam nece extingui potest seditio, or where the re∣newing of the crime is justly to be feared; for punishments being of their own nature inflicted, not for what is past (seing that cannot be remeeded) but for example in the future, certainly where the rebellion is extinguished, and needs no more be feared, as in our case, (God be praised) it were cruelty to punish ordinar complyers. It is remarkable, that in the 13. 14. 15. Acts of the 5. Parliament of Queen Mary, such Scots-men as did ride with English-men, even where her Ma∣jesties Authority stood in its integrity, are ordain'd only to be lyable for what skaith they did to Scots men who served the Country, and that they being charged, to leave assurance with English-men, and disobeying, should have no action againg true Scots-men for any wrong done to them.

If then such lenity was us'd, and such commiseration extend∣ed, to such as were involved in a publick opposition to law∣full and standing Authority, and in a compliance with the Eng∣lish, who were at that time, born and sworn enemies both to this Crown, and Countrey; what may such expect as com∣plyed only when no visible Authority was able to protect such, who were forc'd to comply, not out of any design to defend Usurpation, but rather out of a design to preserve themselves for doing His Majesty furder service? And as in the Body-natu∣ral, the ordinar rules of Physick take no place, when there is a violent and universal conflagration of Humors; so the ordinar rules of Law should have as little place in the Body-politick, when a whole Nation have run themselves head-long into a common distraction. To which purpose I cannot but represent to your Lordship, that excellent Law, made in the Reign of Henry the seventh of England, and with consent of that ex∣cellent Prince, wherein it was enacted, That no Subject should

be guilty of Treason, for obeying one who was called King, though known to be an Usurper, because the people do there not rebell, but submit.

Necessity may likewise be adduc'd for extenuating this com∣plyance, which is therefore said to have no Law, because it is punished by none; without complying at that time, no man could entertain his dear Wife, or sweet Children, this only kept men from starving, by it only men could preserve their ancient Estates, and satisfie their Debts, which in honour and conscience they were bound to pay, and without it, so emi∣nent a Person as the Marquess of Argyl, and so much eyed by these rebells, could not otherwise secure his life against the snares were dayly laid for it; and so this complyance did in effect resolve in a self-defence, which inculpata tutela, seing it can exempt a man from murder, and these other crimes that are contrair to the Law of Nature, it should much more defend against the crime of Treason, which is only punished, because it is destructive to the government of our Superiours, and Statutes of our Country; and since crimes are only punishable, because they destroy Society and Commerce, how can this complyance be punished, which was necessar for both these?

Mans will is naturally so frail, and man because of that frailty so miserable a creature, that to punish even where his will is straight, were to add affliction to the afflicted, the want of this will defend mad men against paricide, and the degrees of this di∣stinguisheth slaughter from murder; and in the Acts of Parlia∣ment whereupon the Lybel as to compliance is founded, it is re∣quisite, that the compliance be voluntar, thus in the 37 Act, 2. Parliament, Ia. 1. It is statute, that no man will••ully receipt Re∣bels, and by the 205. Act, 14. Par. Ia. 6. these who apprehend not such as mis-represent the King, are as guilty as the Leasing-makers, if it be in their power to apprehend them, as the Act very well adds. Likeas, by the 144. Act, 12. Par. Ia. 6. The Lieges are only Prohibited to intercommune with such Trai∣tors

as they might crub; for that Act, as it forbids all Com∣merce with Rebels, So it commands all the Subjects to adver∣tise His Majesty of their Residence, and to apprehend them; whereby it is clear, that this last Act is only to have Vigour, when the Authority of the Soveraign stands in force, & per argumentum à contrario sensu, seems to excuse such as submit to Traitors, when there is either nothing to be advertised, or when Advertisments of that nature, are either imprestable, or at least unprofitable, as in our late troubles, at which time, the re∣sidence of these Rebels was notour, and all correspondence be∣twixt the King and His People, was daily betrayed and inter∣cepted. Consonant to which, is that excellent Law, l. 2. ff: de Receptatoribus, where it is said, that Ideo puniuntur re∣ceptatores, quia cum apprehendere potuerunt dimiserunt: and Bald. ad l. delictis, ff. de noxal. act. is most expresse, that receptans rebelles, non voluntarie, sed coacte, quia sunt plures re∣belles simul: & eos expellere non potest sine suo periculo, non pu∣nitur aliqua paena. Thus likewise in the Statutes of King Wil∣liam, cap. 7 §. 2. it is said, Pro posse suo malefactores ad justi∣tiam adducent, & pro posse suo Justitiarios terrae manu tenebunt. And §. 5. it is ordain'd, Quod magistratus pro posse suo auxiliantes erunt domino regiad inquirendum malefactores, & ad vindictam de illis capiendam. By all which it is clear, that not only should complyance be voluntar before it be criminal, but that likewise it must be a complyance against lawfull Authority, able to protect such as revolt from it. I remember in anno, 1635.James Gordoun being challenged for corresponding with Alexander Leith, and Nathaniel Gordoun, declared Traitors for burning the House of Frendraught, they were assoylzied, because the intercommuning challenged was not lybell'd to have been-voluntar, and there∣after the Assize who assoilzied them, having been pursued for wilfull error for absolving as said is, they were likewise absolved from that Process of error, in the which Process, that same argu∣ment was urg'd, but not so strong in point of fact as in our case;

and because the design is that which differences the actions of men (propositum crimina distinguit) and seing designs being the hid acts of the mind, are only guessed at by the concomitant and exterior circumstances, I shall only intreat your Lordship to consider these few presumptions, which being joyned, may in my apprehension, vindicat this Noble Person from the design of voluntar complyance. 1. He is descended from a stock of of Predecessors, whose blood hath prescribed by an immemorial possession, the title of eminent Loyalty, and that same Law which presumes, that the blood and posterity of Traitors is infected with a desire to revenge the just death of their Pre∣decessors, and an inclination to propagate their crimes, doth likewise presume Loyalty and a desire to be thankfull, in the the children of such as have received great favours, and per∣formed great services, to such as have been the Benefactors. 2. These with whom he is said to comply, were known and avowed enemies to Nobility, had quite exterminated in England, and begun to exterminat in Scotland, all memory of Nobility, and badges of Honour; so that in this complyance, he must be thought to have plotted against his own interest: nor can I see what advantage he could expect from a Common-weath, which valued, nor preferr'd none but Souldiers, a Trade, which suited neither with his breeding, nor years. 3. They were enemies to Presbyterian Government, of which he has alwayes shewed himself so tenacious, and of all Governments they did most abominat that one, for which he had exposed himself to so many hazards. 4. That Usurper had never oblieged him neither by reward, nor complement. 5. He was sworn their enemy both in Parliament and Councel, and charity as well as Law, presumes against perjury. 6. He was pursued by them most unjustly, both at Councel of War, and elsewhere, and was known to have been hated extreamly by their Commander in chief, for complyance with whom he is now challenged: By all which it is most improbable, that his Lordship would have

linked himself with that abominable crew of miscreants, by whom he might losse much, but gain nothing.

His Majesty hath recommended this case to be judg'd by your Lordships, whom He knew the iniquity of these times did (though without any cordial assent) involve in the same guilt, and albeit it were a guilt, there will be hardly any found to cast the first Stone at him; and His Majesty hath not delivered him up to be proceeded against, till by His Act of Indempnity (grant∣ed even to such as were eminently engaged in the contrivance and execution of the most horrid plots, that were perpetrat against him) He had first cast a copy to your Lordships of that meek pro∣cedure which he allowes, and not till he had (even notwithstand∣ing of their compliance) preferr'd some to be Councellours, some to Titles of Honour, and many to employments of great Trust. And were it not unjust, that he should suffer for acts of Frailty; when the Ring-leaders, and malicious plotters pass unpunished? And were it not unkindness to our Countrey, to have it thought that we had Subjects who deserved worse, then Lambert, Lintil, and others? I shall to all this add, that the guilt charg'd upon this Noble Person, is such as was thought prudence in those who were most Loyal, and this complyance was so customary, and so universal, that it was thought no more a Crime, then the living in Scotland was Criminal: whereas in Law, qui sequitur comu∣nem errorem, non delinquit, & consuetudo facit actum de sua na∣tur a punibilem impunibilem, & excusat à paena ordinaria, & extra∣ordinaria, Farin, Quest. 85. de pen. temperandis. Custom is a second Nature, and example a second Law, and he who obeys them, obeys quasi legem naturae, & patriae: and in all civil Wars and uproars, especially where such have lasted for a considerable time, as in Portugal, France, Germany, &c. none have been punished for mingling with the multitude, if they did not per∣vert them. And if we consult the Ancients, when justice and equity were not yet opprest by interest, and design, we will find, that Julian the Emperor having only punished the chief

rebells, residui omnes abierunt innoxii, quos in certaminum rabiem necessitas aegerat, non voluntas. And Themistius praises Valens the Emperor, because non paena dignos existimavit, qui bellum non suaserunt, sed qui abrepti sunt à morum impetu, & qui succubuerunt ei qui jam rerum potiri videbatur. And Joseph. lib. 5. tells us, that in such universal rebellions, Titus used only to punish the ring-leaders, unum criminis ducem puniebat reipsa, multitudinem vero, sola verborum increpatione, seditionum conci∣tatores, & duces factionum dicuntur, l. 16. ff. quando appell.

It is likewise universally received by the Law of Nations, that such as submit after universal rebellions, either upon con∣ditions, or who put themselves in the mercy of their Magistrats, (as Grotius doth most wisely observe, lib. 3. cap. 11.) are still secure, and therefore, since the Marquess did immediatly upon His Majesties return, go to Court, to attend His Majesty amongst his other loyal Subjects, judging from the dictats of his own conscience, that he was in the same case with your Lordships his present Judges, it were strange that he should fall, when others are in great multitudes pardoned, who fled out of a consciousness to their own guilt, especially since he offered to prove, that he testified to many hundreds during His Maje∣sties absence, a deep sense of that misfortune, and an absolute aversion from that present Usurpation; and that he assisted His Majesties friends, both with money and advice: And who would think, that in equity he ought to dye, by these whom he wish'd restor'd, and for which restoration, he prayed daily in his Family; and die for complying with those, whose ruine he beg'd daily upon his knees? And though he did not joyn with some who were Commissionated by His Majesty, yet that proceeded not in him, more then in others, from any unkindnesse to the Cause which he alwayes allowed, as can be prov'd both by themselves and others, but from a perswasion he had, that such courses as they took, would ruine the design which was proposed; and

any thing he did in opposition to them, was to defend himself and his poor Countrey, against injuries, which were designed against him upon privat quarrels, as he still offered to prove. If we consider that same interest of Nations, for which Treason is punishable, we will find it unfit to punish ordinar complyers after a tumult is quieted; for if every man that were involv'd in the guilt, did think that he were punishable, all would be forc'd pertinaciously to continue the rebellion they had begun, and to expect from successe only, that impunity which the Law denyed: and thus your Lordships should make all future re∣bellions to be both cruel, and perpetual.

I come now to the Probation adduced by His Majesties Ad∣vocat, for proving this compliance, and in order thereto, I shall lay before your Lordships these following considerations; 1. That the weaker the Relevancy is, the Probation should be proportio∣nably the stronger, gravatus in uno, levandus in alio. 2. That in Criminals, Probation should be very convincing. 3. The more illustrious the Pannel is, the proof should be so much the more pungent, because the Law presumes Noble Persons less inclin'd to commit Crimes then others. 4. Where there is no penury of Witnesses, probation should be so much the clearer, because the Law presumes that all is known, which can be known: but so it is in this case, sixty Witnesses have been led (albeit our Law allowes only 25 in Criminals) and a long time hath been taken, and many invitations given to all persons, in all corners, to come and depone, and it is believed by most of these silly persons, that it will be most acceptable to His Majesty, and may procure a reward to themselves, that they depone against his Lordship; which remembers me of these slaves in Juvenal, who at Sejanus fall, invited one another to offer Indignities to his dead body, Dum jacet in ripa calcemus Caesaris hostem. 5. The Law requires in these attrocious Crimes, witnesses omni excep∣tioni majores, and these are in Law expon'd to be such as the jea∣loufie

of the greatest enemy needs not suspect; whereas most of all the Witnesses adduced, are either the servants of such as have been debarred themselves from witnessing, for fear of partia∣lity, or the Usurpers Souldiers, who have so oft foresworn solemnly their alledgeance to their Prince, that no Judge can rely upon their depositions; for it is presumable, that semel perju∣rus, will be semper perjurus: and albeit His Majesty, by His In∣dempnity, hath vail'd their Crimes, yet He hath not taken them away, as is clear, per 〈◊〉〈◊〉. ffin. C. de generali abolitione; the ex∣cellent words run thus, Indulgentia (Patres conscripti) quos liberat, not at, nec infamiam criminis toll it, sed paenae gratiam facit; whence I argue, that infamous persons cannot be Witnesses, but so it is, that perjured persons (non abstante amnestia & remissione) are infamous by the foresaid Law; the Criminal Registers like∣wise tells us, that one who had been condemned for forging of false Writes, was refused to be received as a Witness in Fren∣draughts Process, albeit he had obtained a Remission; and cer∣tainly, Perjury in the crime of Treason (whereof these Soudiers are guilty) is a more odious Crime, then that of forging of false Writes. 6. I hope your Lordships will consider, that most of what these Witnesses have deponed, are Speeches, which the best of men may have forgot, after so long a time, and in a time when both men and manners have been much confounded, by the strangeness and number of interveening accidents: most of these Witnesses have deponed upon that which fell under sense, and so have acted rather the parts of Judges, then Witnesses. Thus some depones, that the Marquess's Boats did bring the English up Lochfine, and that they could not have got up without his as∣sistance, which last part, as it is negative, so is an act of the judge∣ment, and not the object of any exterior sense, and they presume they had an order from the Marquess, because else they durst not have gone, and is not this to imagine, and not to depone? 7. Most of them are persons, whom the D••ttay acknowledged to

have been wronged by the Marquess; most of these poor per∣sons who have deponed, were to my certain knowledge, so con∣founded by appearing before a Parliament, and by interroga∣tors, that they scarce knew what to answer. 8. Not any two of these numerous Witnesses concurr in their depositions, all vary, and most do clash, and are either Vaccillantes, or Sin∣gulares; neither can the deposition of one Witnesse, as to one particular circumstance of a Crime, and the deposition of ano∣ther as to another, be joyn'd for making up a clear Probation, for there the Judge is certified of neither of these circumstances, see∣ing one Witness is none, whereas proving witnesses should be con∣testes; and if a Pannel were accused of moe Crimes in one Lybel, the deposition of one Witness to prove one, and of another to prove another of these Crimes, would not prove the Lybel; so neither can the singular deposition of two witnesses upon dif∣ferent points, prove one crime. Such spelling is not lawfull in probation, and this is that which the Doctors call singulari∣tas diversificativa, which in Law hinders conjunction in pro∣bationibus, as well as singularitas obstitativa, Alexand. consil. 13. Hippol. in sua praxi, §. diligenter num. 149. Farin. tract. de oppos. contradicta. testium. 9. The Law makes a difference, as to the probation betwixt Perduellion, or open Treason, in which they require most convincing probation, and in conspiracies or occult crimes, in which the rigour of pro∣bation is remitted, because the possibility of proving is much restricted, in respect of the clandestinesse wherewith such Conspirations are managed; and therefore, seing in this case the acts to be prov'd were committed publickly, such as joyn∣ing in open hostility with the Usurpers, assisting at their Proclamations, levying Forces against His Majesties Ge∣nerals; Certainly the probation should be most illative of what is alledged, and the provers should be omni exceptione majores. I must tell you my Lords, that some have been so

unjust to you, as to fear, that though the probation be not concluding, that yet ye will believe, to the great disadvantage of my Noble Client, the unsure deposition of that as foul, as wyde-mouthed witnesse, publick brute and common fame, which as it is more unstable then water, so like water it represents the straightest objects as crooked to our sense; and that others of you retain still some of the old prejudices which our civil and intestine discords, did raise in you against him, during these late troubles: but I hope, generosity and conscience will easily restrain such unwarrantable principles, in persons who are by Birth, or Election, worthy to be supream Judges of the Kingdom of Scotland. It is unmanly to destroy your enemy unarmed, but unchristian when you represent GOD as Judges; for then you endeavour to make him a murderer; and in my judgment, he revenges himself but meanly, who to ruine his enemy, destroyes his own Soul, and tashes his Honour.

My Lords, as Law oblieges you to absolve this noble Person, so your interest should perswade you to it. What is now in∣tented against him, may be intended against you; and your Sentence will make that a crime in all complyers, which was be∣fore but an error and a frailty; your Royal Master may with our Saviour then say to you, Thou cruel servant, I will condemn thee out of thine own mouth: Or, if your Lordships be pardon'd, he may say to you as his Master said to the other, Sure I did pardon thee, why wast thou so cruel to thy fellow servant? But, not only may this prove a snare to your Lordships, but to your Posterity. Who in this Kingdom can sleep securely this night, if this Noble Person be condemned for a complyance, since the Act of Indempnity is not yet past? And albeit His Majesties clemency be unparallel'd, yet it is hard to have our Lives hung at a may-be, and whilst we have a Sentence-condemnator standing against us. Phalaris was burnt in his own Bull: and it is re∣markable, that he who first brought in the Maiden, did himself suffer by it.

I do therefore humbly beg, that since this Process was in∣tented upon Informations given to His Majesty, of the Marquess's being very extraordinarily active for the Usurpers, that your Lordships would transmit the Process as it now stands to His Majesty, that thereby he may have a fair occasion to give a ge∣nerous testimony of his clemency, that the people may be se∣cured against all jealousies and fears, and that your Lordships may be rescued from so invidious a tryal.