the import of the acts of parliament lybelled upon, whethir they be sufficient to found ane dittay againest deserts, yea or not; but the by our whole representatives have unanimously bound themselves and us, and their and our successors, to the perpetual and unalterable maintenance of both, is evident to all that will not wilfully shut their eyes.

"Is it for us then, to take upon trust our king's mind, honour or interest from such law givers? Or if we do, may we not afterward be found as culpable in obeying, as they in commanding?

"If this prevail not, consider but these heads of the path of coronation, wherewith, and whereupon our kings receive the crown of this kingdom, that they shall rule the people committed to their charge, according to the 'honourable laws and constitutions received in 'this realm; that they shall procure to the ' uttermost of their power, to the kirk of God, and hail Christian people, true and perfect peace in all time coming; that they shall forbid and repress, in all estates and degrees, reift, oppression and all kind of wrong; that in all judgments, they shall command and 'procare, that justice and equity be kept to all creatures without exception, as the Lord and "Father of all mercies be merciful to them.' James 6, parl. 1, cap. 8. Think then how deep it may draw upon their score, not only before God, but before man, who presume to take upon them to advise or persuade his majesty to act, or to act themselves under colour of his authority, things manifestly contrary and repugnant to this solemn oath of God, and chief fundamental law of our nation; and of what fatal consequence it may afterwards prove, not only to them, but also to their abettors, aiders, encouragers in such wicked unlawful counsels and practices; at least, if ever Scotland be so happy as to return again to the unbiassed right use of law, reason or conscience; and yet more especially, when, to the conviction of all men, our king is of himself so naturally propense and inclinable to all ways of justice and clemency.

"It is known, that his majesty, at his restauration, declared himself resolved not to alter the government of the church then established. It is known, that of late also, a plenary and universal indulgence was granted by him, in favours of the nonconformists. These are the native effects of our king's inclination, goodness and clemency, by either of which all these imminent mischiefs might have been prevented. Who then were the obstructers? Ought they not now rather to be searched for, looked upon, and dealt with as the greatest enemies of king, people and government, than assisted in the prosecution of such pernicious counsels as have occasioned so unhappy and so unseasonable a breach in our peace and safety?

"Shall I ever believe that his majesty, who, of his own nature, is so wise and so just a patVOL. XI.

only defence is, that ther is no criminal lybell raised againest the pannall as a deserter, but simplie for byding frae his majestie's host tern of civility and obligingness, and who ruleth by compact betwixt him and his lieges, would ever have forced commanders upon the nobility and gentry? especially at a time, when it appears, he needeth so much their service, and they are so willing to bestow it. When the French king, who hath no other law for his actings but his own will, yet doth not so much as propose any officer to the gentry, when he calleth them forth, but remitteth that matter wholly to lot.

"Can it be supposed, that his majesty, whose life, honour and kingdoms are so hunted for, by plot after plot of these bloody emissaries of Satan, the Papists, the greatest and most insolent enemies of monarchy,and the most incurable plague and bane of all human society, and who therefore commanded lately his proclamation to be issued forth, for apprehending or banishing many, and wholly disarming all of them within all the corners of the land, would ever not only have restored to them the power of their arms, but have put great numbers of his faithful and honourable Protestant subjects under some of their commands?

"Can any man think it his majesty's will, that Bailie Baird's son, who was never a soldier, should be cornet of a troop where the earl of Lothian, earl of Dalhoussy, viscount of Oxenford, lord Torpichen, Balmerino, &c. are to ride as troopers, and where his grace the duke of Buccleugh, when he arrives, can, according to the proclamation, pretend no higher than the right hand of the first rank?

"And since we have such ground to doubt of these, and it is so well known, that his majesty did not of himself intrude bishops upon us, but only, by the selfish treachery of some who were employed to secure us from them, he was perswaded, and made to believe, that that government would best agree with us: who, in reason, can, or ought to imagine that it proceedeth from his majesty, that his subjects of his three kingdoms should be engaged in blood, wars and devastation of their fortunes, whereby they may be rendered a prey to foreign enenies and lurking Papists, and unfit to serve his majesty in a more necessary cause, and of far greater concern to king and kingdoms, with the uncertainty of what further ruin these evils may grow to, rather than part now with that government of the church, when he sees how far he hath been misinformed concerning it?

"His majesty's both mind and true interest being thus cleared, this then, in plain terms, as a consequence clear enough of itself, must be the true state of the affair. Duke Lawderdale is obliged to the bishops, they helped well to uphold him when he was tottering, and yet help him, and therefore we must uphold them, though we should all fall in the quarrel.

"Is the cause then sufficient? Can you

C

which they are lybelled, and certainly the defence proponed is a totall defence againest the lybell ut libellatur.

My Lord Advocat duplyes, that abyding is expresslie implyed in assisting and enforcing, for no man cane inforce but he that byds, and his majestie's advocat insists, according to the subsumption, that he did remaine and abyd frae the host the day of Bothwel feight.

Sir George Lockhart, adhearing to the defence, craves a distinct interloquitor, and farder alleadges that tho deserting hade bein lybelled, yet the dittay cannot be put to the knowledge of ane assyse, because the pannall did obtaine ane passe from the marquis of Montrose, captaine of his majesties guards, and commander of the Pearth shyre gentlemen, wher upon the considerationes therin mentioned, and particularlie that the pannall was tender and valitudinarie and not able to attend, and that he hade left three well appoynted horsemen to attend his majesties service, he grants him licence and libertie to goe home without trouble or mollestation, as the said passe at length bears.

promoters of their principles and interest: yea, so little choice make they on this head, whether as to Profanity, Popery, Atheism, or what else you can think on, that, for ought that appears, as many devils out of hell would be welcome to them, to prop their Dagon of prelacy, and to be a scourge to the fanatics. I see, force and the rigour of the law are their two grand pillars, the Jachin and Boaz of their temple; and that their whole power, interest and endeavours are so joyntly and intirely bestowed upon the suppressing of con venticles, and for hindring the preaching of the gospel, by those of the nonconformist party, which renders it to me dreadfully suspicious, that their cause must be but so and so, when themselves judge it the main support and security thereof, that it never came to a fair hearing; for the truth is, they reckon themselves undone, if ever the people get leave to hear these men. I see, most of them look either with affection or indifferency upon Popery, that the Papists themselves favour them more than any other government, that by their slackness in prosecuting them, they are the occasion of much evil to these lands; and that they give much life to all their mischievous plots, by the hope they find of yet ascending up on that step of their hierarchy remaining amongst us. Whereas, on the other hand, it cannot but be acknowledged by ail, that the Presbytery else what it will, it is certainly the best remedy against Popery in the world; the total rooting out whereof amongst us, now after the discoveries we have, ought on many accounts to be esteemed the grand interest, wherem the power, wit and endeavours of every good subject, every good countryman, and every good Christian should terminate. And, in fine, since to all this may be added, the fatal consequences of the former establishment of bishops amongst us, with the appear

His Majesties Advocat replyes, that those gentleman and heritors being, by the custome of the nation and by the proclamation of the councill, obleidged to attend the king's host, to assist and enforce as said is, it was not in the power of the marques of Montrose or any commander whatsoever to relace them from this duty, for as they came not ther by his or ther authoritie, so ejus est nolle cujus est velle,' and if it wer other wayes captaines might absolutely disapoynt his majesties service, wheras they are choised not to dispense but to command and therfor they are extra officium' when they dispense, but if the sicknes was such as necessarilie and certainlie hindered Bousie from goeing on, it shall be found re levant, which is all that any good subject cane crave to be done in his favours; and this is not the granting of a pase but the remitting of ane duty which the lawe exacts: and by the proclamation wherby the commanders wer appoynted, it is declaired that such as came not or deserted wer to be lyable, so that they wer to knowe ther duty by the proclamation, and non who commandit (but the councill) could warrand ther deserting.

Sir George Lockhart duplyes, that the pannall oppons the passe and the acts of parliament lybelled upon ordaining all persons to enforce his majestie againest nottor rebells, bears that exception, unlesse they have ane reasonable excusation, and ther cane be no excuse more reasonable then a passe from a commissionat officer, under whose conduct and command the pannall was requyred to serve. And lawyers were clear as Grotius de jure belli et pacis,' that [qu. not] only supreame commanders

ance of what is like to be the end of the present; and that our nation hath drunk in such an inbred and indelible prejudice against them, that though these fourteen men were as many saints, neither can much good be expected from them, under that character, in this place, nor yet they ever long settled without blood and confusion.

"I wish only the Presbyterians would give some pithy and incontrovertible testimony of their real affection to his majesty their lawful sovereign, and to the true line, in so far as by Popery it is not interrupted; with such a proof of their abhorrence of episcopacy, as may make them take up an antipathy at their prefatical way of having no sooner power in their hands, but instantly, with oaths, declarations and bonds, flying like as many wild cats, in the throat of our consciences; and that they, Presbyterians, would rather take a more gospel way of instructing us in love and meekness, and in patience wait, till by the use of means, and their affectionate carriage towards us, we be won to the discerning and perswasion of those things, that are not fundamentals, wherein we differ, and may the king's majesty say, Amen. Then welcome presbytery, unity and peace; and farewel to confusion, schism, prelacy and popery for ever,"

To the second, it is answered, That the proclamation was so notified, that public randevouzes did thereupon ensewe throwe all Scotland.

To the Sd, The militia is not exclusive of, but consistent with this feudall and national duty, that lyes upon every heritor, and has very justlie been ever found so, and is nationalie acquiesced to by the people who since those acts for the militia have come out, and we see that both militia and heritors are litle enough for our defence; lykeas by the 25 act 3 sess. 1 par. Ch. 2d, wherein the militia is granted, it is declaired that the kingdome shall be readie betwixt sixtie and sixtein if his majestie shall have farder use for them.

To the fourth, it needs no answer; and, to the fyfth, it deserves no answer, except the letter wer produced, for private men cannot make up the tenor of letters from the councill, which must be known and exponed by the context, as to the sense of which private men may be mistaken; but to shew his majesties justice, it is found relevant of consent that persons wer unable to travell, likeas it is found relevant of consent that their horses wer taken away, so that they could not goe, they having done exact diligence to get other horses and taking their declarations to show that the horses wer not taken away by their own connivance, wherby each man might furnish himself with an defence by causing his horse be taken away, and without this ther is no possibilitie to know what was connivance.

Sir George Lockhart duplies for the pannels, that the defences stand relevant notwithstand ing of the replye, for as to the acts of parliament lybelled on, they doe not at all concern the case of parties not coming to the king's host, which by expresse and positive acts of parliament in K. Alexander 2, and K. Robert 1, tyme, is defyned, stated, and determined; and being a statutorie punishment, it cannot be exceedit unlesse ther wer a posterior act of parliament imposing a greater punishment upon the same cryme, particularlie condescendit on, it being a principle in law that in toto jure ge'nera per speciem derogantur,' and wher laws are special, and defynes and considers crymes particularlie, it [qu. and] does impose specific punishments for the same, subsequent general lawes, and acts of parliament are never understood to derogat therfrae.

As to the second, the defence it is most relevant that by the acts of parliament foundit upon, and all others, it is ever requyred as ane expresse condition thereof that persons should be requyred, and unlesse it wer alledged that his majestie's proclamation was intimate and published at Coupar, the head burgh of the shyre of Fyfe, ther was no sufficient intimation; and the proclamation itself does expresslie prescryve that method, and requyre intimation to be made by the several commanders at the respective places of the randevouze and the pannels and all others were in bona fide not to goe unless the proclamations had been so published.

As to the third, it is replyed, That the acts of parliament establishing the militia are opponed which relate to and are foundit upon the former acts of parliament, and particularlie that act of king James 2. lybelled upon; and although it is not contraverted, but that notwithstanding of the establishment of the militia, his majestie may requyre all fensible men, betwixt sixtein and sixtie, to repaire to his host, in which case heritors who undergoe the trouble and expense of the militia cannot excuse themselves; yet ther being no such general proclamation, calling all fencible men, but only calling heritors and their followers in the particular shires mentioned in the proclamation, the establishment of the militia ought to exoner the heritors, except in the common case that his majestie thought fit to call all his subjects conforme to the old acts of parliament.

As to the act of indemnitie, oppons the same, and referrs the consideration therof to the lords; and the presence of the militia forces ought to exoner, and most be looked upon, as ane assistance, so as to give the benefitt of the act of indemnitie.

As to the last, repeits and oppons the defence and the lords of privie councill having wreitten a letter of the tenor, mentioned in the defence, and upon the consideration of the hazard that the rebellion might break out in that countrey, the pannalls who are able to found upon the termes of the said letter, ought to be excused, and it is positivlie offered to be proven, that as to the persons to be condescendit upon ther goods, wer rifled and ther horses robbed, wherby they wer incapable to repair to his majesties army, and the pretence of simulation is nowayes relevant, unlesse it wer proponed positive, and offered to be proven, and if need beis the pannalls are content to purge themselves by ther oath, that ther was no simulation, but that ther horses were robbed, and so they have clearlie the benefitt of the lords of privie councill ther letter, and it will clearlie appeir by the probation, to be led upon the exculpation, and cannot but consist in the knowledge of such of the lords of justiciarie as are upon the privie councill, that the said letter was wrott to my lord Newark, and who being called, may be able to produce the same, and by the councill bookes, it will appeir ther is a warrand from the councill to the chancellor to wreitt to the lord Newark for securing the peace of the countrey.

Interloquitor upon the General Defences.

The lords justice general, justice clerk, and commissioners of Justiciarie, having considered the lybell and debate, they repell the first, third, and fourth defences, simpliciter.

The lords also repell the second defence, in respect of the intimation made be the lord Newark at the randevouze of the militia couforme to the tenor of the proclamation, and of his appoynting ane randevouze of the heritors at Levin, which accordinglie was keept by a great many of them.