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To his grace his majesty's high commissioner and the right honourable the estates of parliament.
Archibald [Campbell], earl of Argyll
Humbly shows,
That where by the common law and laws and practices of all well governed nations, all judges are answerable for their sentences, and if they pronounce and give out against any persons sentences palpably and notoriously unjust are therefore severely punishable and liable to repair to the injured party, either himself or his successors, all their damages. Likewise, by the laws and acts of parliament of this kingdom, it is expressly provided, and particularly by the act of James I's first parliament, chapter 6, that officers and ministers of the law be appointed having sufficiently of their own, wherein they may be punished if they trespass; and by the act of James I's second parliament, chapter 45, that all judges do follow law and justice as well to poor as rich, without fraud or guile, and that judges refusing to do the law evenly be vigorously punished. Item, by the act of James II's fourteenth parliament, chapter 76, that officers, sheriffs and other judges faulty or negligent be punished at the king's will. Item, by the act of James III's fifth parliament, chapter 26†, that judges failing and doing wrong if he be an officer of fee, that he be put from his office for three years; and, if he be not of fee, that he be put from it for ever; and that both the one and the other shall pay the expenses of the party and be in the king's will. Item, by the act of James III's eighth parliament, chapter 62, that, in case the ordinary fails in his office, both he and the party may be summoned before the king and his council for justice and reformation. And lastly by the act of James V's seventh parliament, chapter 104, that all judges whatsoever do true and equal justice without any partial counsel, reward or bribes under the pain of infamy, which no doubt does further import the parties' damages. And further it is statute by the act of James VI's eleventh parliament, chapter 49, that whoever maliciously accuses another person of treason, if the party accused be acquitted, he incurs the same crime whereof he accused the other, which in all reason and all the more does hold and should take place against such who maliciously condemn the innocent for treason, and that even against their heirs and successors, seeing that both by the common law and by the act of James I's sixth parliament, chapter 69, its provided that treason may be pursued against the heirs of the traitor. Nevertheless, it is of verity that the late [Archibald Campbell], earl of Argyll, the petitioner's father, being required to take the Test in or about November 1681 as a privy councillor, and he having some doubts and scruples concerning its meaning, for clearing whereof to the satisfaction of his own conscience he first proposed before the lords of privy council an explication of the sense wherein he was content to take it when administrated to him, namely: that he had considered the Test and was very desirous to give obedience as far as he could, and was confident that the parliament never intended to impose contradictory oaths, and therefore he thought no body could explain it for himself and reconcile it as it is genuine and agrees in its own sense, therefore he did take it as far as it is consistent with itself and the Protestant religion, and did declare that he meant not to bind up himself in his station and in a lawful way to wish and endeavour any alteration he thought to the advantage of the church and state not repugnant to the Protestant religion and his loyalty, and this he understood as a part of his oath; which was a very just and rational declaration and such as he was allowed to make by the law both of God and man, it being certain and undoubted that who ever is required to take an oath, if he conceive it to be in any way ambiguous, he may and is bound to explain and declare the sense and meaning in which he takes it, that so he may swear in truth, righteousness and judgement, which otherwise he could not do. Neither was it to the earl of Argyll only that this Test appeared in several things to be doubtful and ambiguous, but there were several presbyters and whole synods who, with many of the most learned of the clergy, did scruple to take it on that consideration before it was explained upon, for which there was an act of council emitted explaining the same and allowing men to take it in that sense. And further, when the petitioner's father had declared his meaning and proposed his explanation in manner aforesaid before the council, the same was by them admitted of and accepted in the same manner as other privy councillors had been allowed to do the like. And for a convincing evidence thereof that the aforesaid explanation proposed by the petitioner's father was accepted as said is, the oath of the Test was not only thereupon immediately administrated to him in the face of the council, but he was also allowed and desired to take his place and did take his place and vote in council, whereby it is evident that it was not only most lawful and commendable for him to have proposed in the first place the sense and meaning wherein he was content to swear, that he might deal clearly and honestly with their lords in a matter of that importance, but also that this his explanation being taken off his hand and accepted and thereby as it were ratified by the council as said is, it became in effect and in the construction of all rational men more the council's deed than his, and the proposing and emitting of the aforesaid declaration and his taking the Test in that sense by the council's allowance and approbation (which was all his part in the matter) could never thereafter be thought by any man of common sense or reason to have the least appearance or shadow of a crime. Notwithstanding of all which, there being then a popish design set on foot to ruin the Protestant religion both here and elsewhere, and the petitioner's father and family being more eminent for the many signal testimonies that they had given of their zeal, as well to preserve the true Protestant religion as to maintain the laws and liberties of the kingdom, it was thought fit by the authors of that wicked design of subverting our religion, laws and liberties that the petitioner's father should be taken out of the way and his family destroyed, whereupon there being a criminal libel raised against him upon the aforesaid declaration before the lords of justiciary libelling in the most absurd, irrational, calumnious and malicious manner that ever was heard of, the aforesaid explanation emitted by the earl as said is did import no less than the crimes of treason, leasing making and leasing telling to the scorn of all law, reason and common sense, and the most pernicious threatening and endangering every man's life and fortune. And though both the petitioner's father and his lawyers did make a most full and convincing defence, which yet in a case so plain and innocent was altogether superfluous, yet nevertheless the deceased [Robert Nairn], lord Nairn, Sir David Falconer of Newton and Sir David Balfour of Forret, three of the five commissioners of justiciary then sitting in judgment, did most perversely and wickedly and contrary to all law and equity, by their interlocutor of the date the [...] day of December 1681, sustain the aforesaid criminal libel to infer against the petitioner's father the pains of treason, leasing making and leasing telling, upon which interlocutor he was also de facto forfeited and thereafter most cruelly and barbarously murdered, to the eternal stain and reproach of the public justice of the kingdom if the late Claim of Right had not, through the good providence of God, retrieved it. And seeing the great meeting of the estates, by the aforesaid Claim of Right and instrument of government, declared the aforesaid forfeiture to have been contrary to law, likewise their majesties and the three estates of parliament have by their act of 1 August last rescinded the aforesaid doom and sentence of forfeiture with all acts of parliament ratifying and approving the same, with all that has followed thereupon, and have declared the said sentence of forfeiture to have been from the beginning and in all time coming null and void, and have restored the petitioner against the said forfeiture by way of justice, so that if the said three judges were yet alive, they may justly be made liable to the same punishment which their aforesaid most unjust, wicked and absurd sentence was so cruelly executed upon the petitioner's father thereby murdered. And it being still most just and reasonable that at least their heirs and representatives should, after such a heinous and villainous transgression to the taking away of the life of so eminent a peer of the land and the overturning of such an ancient and honourable family, be made liable to refund to the petitioner the vast damages that he and his family have sustained by the aforesaid sentence, your petitioner having lost the rents of his estate from the year 1681 to the year 1689 that he was restored, being eight years, the yearly rent of the estate being £5,000 sterling yearly, extending for the said eight years to the sum of £40,000 sterling, and having sustained other great damages by the loss of household furniture and other movables, destroying of woods and plantings, the loss of bonds for great sums of money, writs of his lands and other damages to the value of £20,000 sterling, for all these the representatives of the said judges ought to be liable to the petitioner, singly and as a whole, and he ought to have reparation for the said rents and other damages out of their estates, which ought to be declared, subject and liable for the same, which will not only be a great act of justice done to the petitioner, but a terror to all judges to pass such unjust sentences in time coming, and the best means that can be to secure the laws and liberties of the kingdom and the lives and estates of the subjects from the dreadful consequence of such an enormity unjust sentence if it should go unpunished.
It is therefore humbly craved that your grace and the honourable estates may be pleased to grant warrant to messengers at arms to cite [Margaret Nairn], lady Nairn and [William Murray], lord Nairn, her husband for his interest; [...] Falconer, son and heir to the deceased Sir David Falconer, and [Michael] Balfour, son and heir to the deceased Sir David Balfour, and all other representatives of the said three judges and others having interest personally or at their dwelling places; and the tutors and curators of so many of them as are minors, at the market crosses of [...] to appear before the parliament on the [...] day of [...] next to come, with continuation of days, to hear and see themselves decreed and ordained singly and as a whole to make payment to the petitioner of the aforesaid eight years' rent of his estate, extending to the said sum of £40,000 sterling, and £20,000 sterling for the other damages sustained; and that the petitioner may have reparation for the said rents and damages out of their estates, which ought to be declared subject and liable for the same according to justice, with certification etc. As also to grant warrant to cite witnesses to compear the said day. And your petitioner shall ever pray.
Edinburgh, 20 May 1690
The lord commissioner's grace and the estates of parliament, having heard this petition, grant order and warrant to macers or messengers at arms to cite the within named [Margaret Nairn], lady Nairn and [William Murray], lord Nairn, her husband, for his interest, [...] Falconer, eldest son and heir to the deceased Sir David Falconer of Newton, and [Michael] Balfour, eldest son and heir to the deceased Sir David Balfour of Forret, and others, the representatives of the said deceased, personally or at their dwelling houses, and the tutors and curators of such of them as are minors, at the market cross of the head burgh of the shire where the minors dwell, to appear before their majesties' commissioner and the estates of parliament within 15 days after the citation, and to hear and see the desire of the petition granted or to allege a reason in the contrary, with certification etc. And likewise to cite witnesses to compear within the said space in the appropriate form.
†12 June 1690
The which day in presence of their majesties' commissioner and the estates of parliament [James Douglas], earl of Morton, in name of the earl of Argyll, did produce the warrant for citing the persons therein named and the executions thereof, and declared that for the place and time the earl of Argyll does not proceed against the Lord Nairn, and is content that this day seven days be allowed to the other persons cited to answer. Which being considered, the lord commissioner's grace and the estates of parliament do assign this day seven days to the persons cited by virtue of this warrant to answer, except the Lord Nairn against whom the earl of Argyll does not proceed for the place and time.
[William Lindsay, earl of] Crawford, president