"In the parliament holden at Edinburgh in lines in the beginning, and no farder, in prethe month of June 1606, the noblemen after sence of the earl of Cassiles and the lord named were chosen to be of the lords of the Yeaster, being with him in coach, going to articles, viz. marquis of Hamilton, marquis of Dalkeith: who finding it of such a strain, and Huntley, earl of Argyle, earl of Erroll, earl of having told them that his majesty had given him Mar, earl of Glencairne, earl of Linlithgow, an express command to suppress all that was lord Glames.-Sic subs. J. HAY, Cl. Regist." of that nature, the deponer and they, all in one "In the parliament holden at Edinburgh invoice, thought it should be suppressed; and the the month of March 1607, the noblemen after named were chosen to be of the lords of the articles, viz. earl of Argyle, earl of Angus, earl Mareschal, earl of Mar, earl of Kinghorne, earl of Lothian, lord Elphinstoun, Roxburgh, Blantyre. Sic subs. J. HAY, Cl. Regist." deponer did put it in his pocket. And having occasion that same day to meet his majesty at Dalkeith, and his majesty falling in conference with him anent information made to his majesty against him, he purged himself clearly to his majesty; and having received from his majesty of before strait commandment for sup pressing all petitions of the nature of that which was moved in the time of the parliament, "In the parliament holden at Edinburgh in the month of May 1617, the noblemen atier named were chosen to be of the lords of the articles, viz. duke of Lennox, marquis of Ha-he shewed to his majesty that he had faithfully niitoun, marquis of Huntley, earl of Argyle, earl of Montross, lord Ogilvy, lord Sanquair, lord Scoone.-Sic subs. J. HAY, Cl. Regist." “In the parliament holden at Edinburgh in the mouth of June 1621, the noblemen after named were chosen to be lords of the articles, viz. the earl of Angus, the earl of Mortoun, the earl of Nithisdale, the earl of Wigtoun, the earl of Roxburgh, the earl of Balcleugh, lord Scoone, lord Carnegy.—Sic subs. J. HAY, Cler. Regist." done the same ever since, and added thir words; Sir, there is a Petition given me presently to be looked upon and considered, which I have in my pocket, which I have according to your majesty's command suppress'd; if your majesty be pleased to look upon it.' Which his majesty answered, It is no matter: I have no leisure: I am going to the park.' And declares, that it remained in his pocket unlooked upon by him, or any other, by the space of eight days, or thereabouts; after the which he returned the same back again, inclosed in a paper which was sealed, to my lord Balmerino, to whom before he had told his judgment of it, that it was altogether to be suppressed. And depones upon his great oath, that he neither shewed it to any, nor gave any copy thereof to any; but remembers before he sent it to my Lord Balmerino, he caused copy it by his own servant, which is yet extant, uncommunicated to any, and To the which it is answered by my Lord Ad-whereof he had no memory at all, till he heard vocat, That he uses not the same as a point of his probation. After the production whereof, his majesty's Advocat affirms, that the writs now produced for verification of the dittay, the said dittay is thereby verified in the bail points thereof, referred to the assize; and in respect thereof protests, if they cleange (clear) upon, so clear probation, for wilful error. Thereafter it was alledged by the pannel, that the carl of Rothes's deposition ought to be produced and read. Thereafter my Lord Advocat, for eschewing of delays, did produce the earl of Rothes his deposition, with this protestation, That he uses ot the samen as a verification of the dittay, but only for satisfying of the interloquitor given out by the justice before, and to cut off all occasion of clamour that any part of the process were withdrawn; and when the pannel shall found any alleadgance or objection thereupon, he shall have a sufficient answer, of the which deposition the tenour follows, At Edinburgh, the 3d of July, 1634. The which day John earl of Rothes, being sworn upon his great oath, and the libel being shewn to him, grants that this is the libel that was shewn to him by or from my lord Balnerino; which he took and read till about twenty VOL. 111, that Mr. Peter Hay of Naughton had shewn it It is objected and alledged by Mr. Alex. Pearson against the probation of the dittay ad 27 diced, First, To the probation of the first part thereof against the pannel, as author, consultor, &c. that the pannel's alledged interlining does not prove him to be consultor with Mr. Haig, in the penning and first drawing up thereof, because the alleged interlining is long after, yea, after the offer made thereof to his majesty, to whom no subject can be presumed to represent a supplication interlined. And deposition to that point of dittay, the pannel's the 16th of June, which bears the interlining not to have been made while after the earl of Rothes's redelivery of the writing to the pannel, which was more than six or seven months after. Oppones also the other copy of the writing quarrelled, produced by my Lord Advocat, which wants the interlining; and which evinces the interlining not to have been at the penning and forming thereof, and consequently the alledged interlining proves not the pannel's advice in the penning and first drawing up thereof. Item, The alledged interlining proves not the pannel to be consultor anent the scandalous libel, because the said alledged interlining is not of any matter of reproach or scandal, whereupon the said libel is now challenged, or can be challenged, and so has no accession thereto as scandalous; and therefore proves not the pannel's advice anent the scandalous libel. Item, The alledged interlining proves not that point of the dittay, because by the pannel's deposition, 16 June, never man saw it since the interlining thereof; and therefore nothing can be enforced or concluded thereupon, and is alike as if the same had never been interlined: For even an infamous libel found with a party in secret, who did suppress the same, and never manifest it to another, does not make or prove him guilty of the infamous libel. To the first part of the dittay, and probation thereof, oppones the dittay itself, which bears Mr. Haig to be author, and which makes point of dittay against the pannel for not apprehending of Mr. Haig, author thereof. Oppones also Mr. Haig's grant that he was author and penner thereof, contained in his missive letter, 27 June. Oppones also Mr. Haig his fleeing furth of the country for the same cause; and since his flight, his intreating of his friends for procuring to him a remission for it, as is proported in the pannel's depositions the 1st of August. Oppones also the pannel's oath and declaration the 9th of June, wherein he has deponed, That Mr. Haig had no warrant from him, and that he knew nothing of the forming of it. Oppones also Mark Cass his deposition, which bears Mr. Haig to have confessed to him that he was the penner thereof. It is alledged by Mr. John Nisbet against the verification of the dittay, That the pannel's depositions cannot be used to verify the dittay, inferring capital guilt and punishment upon the pannel, because the pannel was induced to depone under promise and assurance of impunity: And in law, a confession elicit upon promise of impunity, cannot inforce capital guilt, as is abundantly astructed in the dispute. It is likewise alledged by him that Dunmure's deposition, Dalgleish's depositions, and Haig's letters cannot be used against the pannel, because they being all involved in the same acts whereupon the pannel is indicted, they cannot prove against the pannel to disburden themselves; seeing in law these with whom scandalous pieces are found are presumed to be authors, unless they condescend upon the author or deliverer of these pieces to them. It is alledged by Mr. Alexander Pearson, That the second part of this dittay against the That part of the dittay, bearing, That by pannel, as guilty of hearing, concealing, not letters sent by Mr. Haig to the paunel, it is apprehending, divulging of ane infamous libel, affirmed by Mr. Haig, that he had the allowance &c. is not proven, because there is nothing of the pannel to the penning of the writ quar- adduced against the panuel, to prove the panrelled, is no ways proven by the missive letter, nel's knowledge of the writing quarrelled to be nor by any of them. And where the said missives, scandalous or seditious, without which the or any of them, may seem to concern any pur- pannel is not, nor cannot be counted guilty of pose of allowance of the writing quarrelled, the crimes libelled. And oppones thereto the that is no ways of the pannel's allowance, nor just and probable cause contained in the second can be so expounded; for the letter from Cam-exception, and remanent defences proponed phire, dated 27 June, directed to the pannel himself, and which speaks of their allowance in the third person, extends not to the pannel, and makes not the allowance therein mentioned (if any be) to be the pannel's allowance. Farder, Although the said missive affirmed as the dittay bears, yet the same can no ways be respected, nor make faith against the pannel for his conviction; because Mr. Haig being guilty as author, his alledged declaration, if any be, (no ways granting the same) can be no probation at all against the pannel; because it is an undoubted maxim in law, Quod socius aut particeps criminis adversus alium fidem non facit: Accomplice in a crime's declaration cannot make probation against any other hom he alledges to be guilty, for the pannel, which the paunel had moving him to think otherwise of the writing quarrelled; to wit, The writing itself in title, form, strain, beginning and ending, and in all, an humble supplication; the same being first delivered to the pannel as a supplication to be presented to his majesty. [The pannel's deposition 9 June.] Next was delivered by the pannel to the earl of Rothes of purpose to be presented to his majesty. [The pannel's deposition foresaid; and also affirmed by the dittay itself.] Last it was offered by my lord of Rothes to his majesty; as the earl of Rothes's deposition bears, 3 July: Whilk offer of my lord of Rothes to his majesty is acknowledged by my Lord Advocat, conform to his lordship's answer in the defences proponed for the pannel. Op pones also the pannel's quality, life and conversation, which is in such a far distance from the crimes libelled, that it excludes all preemption and probability thereof against the pannel. giving the power of it to Dalgleish his own man, is sufficient to verify that part of the dittay. To the whilk is added Haig his confession in his letter, which in two passages thereof bears, that it was allowed by them in whose name the same was framed, of the which number the pannel was one. Where it is alledged that the not apprehending is not verified, or con To that point of the Dittay aggravating the pannel's not apprehending Mr. Haig, by the pannel's shewing to him the warrant of his citation before the committee and thereby giv-cealing of Haig, &c. because it is not proven ing him occasion to escape; oppones the pannei's deposition of the 16th of June, which bears that the pannel knew nothing of Mr. Haig his going off the country before the third day after Mr. Haig's escape. that the pannel had knowledge that it was a scandalous libel; it is answered, That the pannel knew Haig to be author, which is proven by his depositions: and the justice by interloquitor has found it to be a scandalous libel, and there is no necessity to prove his knowledge. And as to divulging it is not found relevant solo, but being conjoined with any part of the Dittay; and it is proven in terminis as it is libelled by the pannel's depositions. And as to the pannel's intention, it is not a part of the dittay, the pannel being verified to have been author or deviser, not apprehender of Haig, or concealer of him, or divulger of the scandalous libel; which is clearly proven by the writs produced. And therefore alledges that the assize, notwithstanding of their objections proponed, ought to find the dittay clearly proven: otherwise, protests for wilful error and remeid of law. That part of the Dittay bearing the pannel to be guilty of divulging and dispersing of the alledged infamous libel, is not proven. 1st, The pannel his causing Mr. Robert Dalgleish his servant copy the same, proves not the pannel's dispersing thereof in public; Mr. Robert Dalgleish being the pannel's houshold servant, and he having copied the same infra privatos parietes, which proves not dispersing in public. 2dly, The delivery of the writ quarrelled to the earl of Rothes of purpose to be presented to his majesty, proves no ways divulging of a scandalous libel: But the delivery thereof, qualified as said is, and followed with ane real offer thereof made to his majesty, cuts away its being offered as a scandalous libel, and divulging thereof; both because of his majesty's sacred person, which is far transcendent above all presumed injuries, and also, quia calumnia 'est adversus absentem.' Farder, since in law and reason, intention of law and reason differences crimes by the purpose of the party, let the purpose of the painel difference now this his act, which does make the same to be presentation of a supplication, and not divulging of an infamous libel. Sdly, The delivery of the writ by the pannel to Mr. Dunmure proves not divulging; and oppones thereto the pannel's deposition of the 9th of June, which bears that the pannel gave the writ to Dunmure to look upou to himself alone, and to shew it to no other, and that he never knew that Dunnure had copied the same, till Dunmure was called Whereas it is replied by my Lord Advocat, in question for it. Oppones likewise Mr. Dun- That the pannel intrusting of his man Mr Ro-· mure's deposition, which bears in this same bert Dalgleish with the piece, his imparting of manner. Oppones also the law quod in male-it to Dunmure, and to my lord of Rothes, veri'ficiis voluntas spectatur, non exitus;' and that the pannel's purpose is declared by his deposition foresaid. It is answered by my Lord Advocat, That the interlining is not found relevant per se, but with the remanent circumstances; and so far as interlining is libelled, which is indefinitely, without respect of time, (whether before or after shewing of it to Dunmure) it is clearly proven by the pannel's own deposition, and by ocular inspection of the scandalous libel produced by the pannel, which is interlined with his own hand in two divers places. And for proving the pannel to be author, adviser, &c. his receiving it immediately from Haig, delivering it to the earl of Rothes, interlining of it quocunque tempore, dispersing of it to Dunmure, and It is duplyed by Mr. John Nisbet for the pannel, Whereas it is replyed by my Lord Advocat, that the receipt of the piece from the author immediately after compiling of it, joined with interlineation, and the author's testimony of the panuel's approving of it, verifies the pannel's concourse with the author in framing the piece found scandalous; we oppone the pannel's reiterat depositions, bearing that he had no accession in the framing, and gave no previous warrant to the framer, and disclaiming knowledge of the framing of it, which must elide all the presumptions adduced by my Lord Advo cat; seeing it is incontraverted in law, that a qualified confession cannot be disjoined, as is clearly proven in my dispute, chiefly since the pannel has deponed so ingenuously, without any obligation in law, and upon assurance foresaid. fies divulging, oppones our dispute, and the aus thorities of the laws cited by us, requiring a public exposing, and a fraudulent intention to defame. And we oppone the condition of the pannel's delivery of it to Dunmure, that it should be illi soli; Dunmure's copying of it without the pannel's knowledge: then of the pannel's delivery of it to Duumure, to found his opinion in judgment; all clearly verified by Danmure's deposition. Where it is replied by my Lord Advocat, That Haig's evasion, the pannel's knowledge that he was author of the piece now found scandalous, verifies the point of not apprehending the uuthor; and that it is not necessary to prove the pannel's knowledge of the piece: It is duplyed, That we oppone the uncontraverted practck of all countries where apprehending of parties is cnjoined, and resetting is prohibit; that declarator should precede, as in authors of heretical books, forbidden to be received by the law; because every man is not able to discern those picces, which are debated and contraverted amongst the learnedest. And we oppone the panner's own depositions, bearing that he knew not assuredly Haig to be author thereof, but thought only he was author; and therefore not obliged to apprehend summarly and abruptly, In respect hereof the assize can no ways find the pannel guilty of the Dittay, and alledged crime specified therein. The Assize by plurality of votes, elects and choises John earl of Traquair Chancellor, (Foreman.) | Balmerino to be cleared and acquit of the first part of the said Dittay, wherein he is indicted as author, deviser, consulter, adviser, airt and part of the forming and penning of the infamous or scandalous libel mentioned thereintil: As also of not apprehending of Mr. William Haig, whom he attiums in his deposition to have been author of the said libel: And hikewise to be cleared, assoilzed, and acquit of the divulging and dispersing of the said scandalous libel amongst our sovereign lord's subjects, in manner specified in the said Dittay. And last, found, pronounced, and declared the said John lord of Balmerino to be allenarly filed and convict of the hearing of the said infamous libel, concealing and not revealing of the said Mr. William Haig, affirmed by him to be the author thereof. Whilks persons of assize being received, The Justice General upon consideration of sworn, and admitted, after accusation of the the said John lord Balmerino his conviction by said John lord Balmerino by dittay of the crimes the fore-named persons of assize of the foresaid foresaids, mentioned and set down therein, and point of Dittay, anent the hearing of the infaproduction, and reading judicially of the writs, mous libel therein contained, concealing and and probation used and produced by his ma- revealing of Mr. William Haig, author and penjesty's Advocat for verifying thereof, they re- ner thereof, found and declared, by advice of moved all together, furth of court to the his lordship's assessors, That the said John lord council house of Edinburgh, where first, by plu- of Balmerino has there-through incurred the rality of votes, they elected and chused the said pain of death contained in the acts of parliaJohn earl of Traquair Chancellor. Thereafter ment; suspending always the execution thereof, received and voted upon the hail points of the until the time his majesty's gracious will and said Dittay; and being riply and at length ad-pleasure be shown and declared thereanent: to vised therewith, and with the writs and proba-whose sacred majesty the manner, time, and tion used and produced by his majesty's Advo-place of the execution of the said sentence is eat for instructing of the same, and with the ob- remitted by the justice: and the said John lord jections made by the paunch and his procura- of Balmerino ordained in the mean time to be tors there against, and answers made by his ma-returned to ward within the castle of Edinburgh, jesty's Advocat to the said objectious, all read to remain therein while his majesty's pleasure in their presence and audience, re-entered again be signified.* in court; where they by report and judicial declaration of the said John earl of Traquair, Chancellor of the said Assize, found, pronounced, and declared the said John lord of The King being informed hereof, was pleased to grant him a Pardon, 2 Rush. Col. 281. 145. Proceedings in the Star-Chamber against Dr. JOHN BASTWICK, Mr. HENRY BURTON, and WILLIAM PRYNN, esq. for several Libels:† 13 CHARLES I. A. D. 1637. Written by their Friends. AN Information was exhibited in the Star- ter at law, Defendants, for writing and publishing seditious, schismatical and libellous Books against the Hierarchy. They prepared their Answers, but the counsel being backward for * 1 Clar. Ilist. p. 73. 158. 2 Rushw, p. 380. sud authors did amount to High-Treason, + Kennet, after mentioning the opinion which | Bat when the council withdrew, the Judges in the judges had given on the legality of Ship debate among themselves, came to these resoMoney, proceeds: "It was a less invidious opi-lutions. 1. That if there were any thing in nion which the same Judges had delivered in the Books that amounted to treason, no Inthe case of Burton and Bostwicke, who had dictment could be found good for treason, been so fierce in their Libels against the go- unless it was gounded upon the statute of vernment, that it was considered by the king's 25 Ed. S. either for compassing the king's counsel how to draw them into an arraignment 'death, or imagining the same, or else for levyof High-Treason. For which purpose there ing of war. 2. That if any man seditiously, was a meeting of the Judges at Serjeant's-Iun, maliciously and of purpose to raise rebellion, before whom the king's counsel laboured to * and to incite rebellion, did take arms to reduce prove, that divers passages in the Books of the the course of government of the state, either several times before Felix, Festus, and king Agrippa (three heathen magistrates) was suffered to speak for himself without any counsel being accused in this court, by the English prelates and high priests instigations, of sedition and other such like crimes, as St. Paul was, shall enjoy the same privilege and freedom before Christian Judges, as St. Paul had among Pagans; which his adversaries will not be against, unless they will be deemed more unreasonable than Ananias himself: especially the Defendant having been a barrister and counsellor at law formerly, and admitted in this court to put in Answers under his hand in other men's cases. fear of offending the court, they petitioned they | might sign their Answers themselves, which was denied; and the 28th of April the court ordered them to put in their Answers by Monday seven-assigned.-The Defendant therefore hopes, he night under their counsel's hands, or else the matters of the Information to be taken pro confesso. Mr. Prynn, May 5, again petitioned them, that having been for above a week debarred access to his counsel, and his servant who should selicit for him being detained close prisoner in a messenger's hands, and it being difficult to get his counsel to repair to him during the term; he having been a barrister at law, prayed he might (according to former precedents in that court) have liberty to put in his Answer by the day prefixed, under his own haud, and not under his counsel's, who refused it out of fear and cowardice; for which he alledged these Reasons: 1. Close, Dr. Layton, and others, had been allowed this, and there is but one precedent against it; where, upon a special reason, and in case of a woman, not of a man, much less of a lawyer, it was denied. 2. Upon an ore tenus in this court, in many cases at the Council-Table, in parliament, and in the King'sBench upon Indictments and Informations (especially in cases of felony or treason) the Defendants make their defence without counsel. 3. Counsel is allowed not of necessity but favour, as a help to the Defendants; but when they find them no help, but that they advise them to their prejudice, why may they not answer without them? 4. Every Answer, in the eye of the law, is the Defendant's, not the counsel's. 5. Shall an innocent man suffer without conviction, through the want, fear, neglect, ignorance, diversity of opinions, or treachery of counsel? 6. The law of nature teacheth every creature, man especially, to defend himself, and in the present case the Defendant's Answer rest th upon Books, matters of divinity, and other points, wherein counsel have little skill: how can they defend him in a cause they understand not? 7. At the general Day of Judgment, every man shall be allowed to make Answer for himself, much more should earthly Judges allow the same, where others will not or dare not. 8. By the judicia! law among the Jews, and by the civil law among the Pagan Romans, every one might answer for themselves: Naboth, Susannah, Christ, and others, though unjustly condemned, yet were not condemned as guilty for not answering by counsel. 9. St. Paul, when he was slandered and accused by Ananias the high-priest, and Tertullus, and ' ecclesiastical or civil, and thereby to compass 'the king's destruction, this was treason. S. That such Indictment was to be framed upon 'the said statute of 25 Ed. 3.' This Resolution being delivered by the Lord Chief Justice to the king and council, had this regular effect, that the said offenders were not indicted of High-Treason, but prosecuted in a softer manner, though afterward thought severe and arbitrary." Upon reading this and a Petition from Dr. Bastwick to the same purpose, alledging his counsel refused to sign his Answer, the court adhered to their former order, that they should by Monday put in their Answers under counsels hands, or else to be taken pro confesso. Pryno and Bastwick thereupon left their Answers under their own hands at the office, and tendered another draught thereof to the court. Before this petition of Mr. Prynn, he and the two other Defendants put in a Cross-Bill under all their hands, against the archbishop of Canterbury and others of the prelates, wherein they charged them with usurping upon his mas jesty's prerogative royal, with Innovations, licensing popish and Arminian Books, &c. and set forth the substance of their Answers. The Bill being ingrossed and signed by them, Mr. Prynn tendered it to my Lord-Keeper, praying it might be accepted without counsel's hands, who durst not sign it: The Lord-Keeper upon reading the Cross-Bill refused to admit it, but delivered it to the king's Attorney. The Archbishop nettled thercat, demanded the Opinion of the Judges, whether they could not be punished as Libellers; who all but one answered negatively for it was tendered in a legal way, and the king's courts are open to all men. The Archbishop then applyed to the court of Star-Chamber, and informed them, That in some Books and pamphlets lately published, his grace and the other bishops are said to have usurped upon the king's prerogative, and proceeded in their courts contrary to law. He prayed the court would require the Judges to give their Opinions therein; and the court accordingly desired their Opinions in the points following: 1. Whether process may not issue out of the ecc. siastical courts in the names of the bishops? The Judges answered affirmatively. 2. Whether a Patent under the Great Seal be necessary for keeping Ecclesiastical Courts, and for citations, suspensions, excommunications and other censures? Whether citations must be in the king's name, and under his seal of arins? The like for institutions, inductions, and corrections of ecclesiastical offences? They answered, that a Patent under the Great Seal is not necessary in any of these cases; nor is it necessary that summons, citations, or other |