according to their severall valuations. The laft way of affefment carried it. Argyle, Duke Hamilton, and many ware for pol-money, that the tenandry might have payed a part of it. Some would gladly have underftood the Clergie their proportion of this fubfidy, in regard they alwayes boafted, and made the countrie believe that, in the taxations, and other publick burdens impofed upon the country, they alwayes payed their proportionall fhare for their rents and benefices poffeffed by them. And yet I heard knowing men aver, this was a meer blind, and the countrie had no ease nor releiff by any paiment they made; nor ever would till they told and undertook fo definit part as the burrows did, who payed the fixt of all that was impofed. Sir George Mackeinzie of Tarbet, and Sir George Gordon of Haddow, appeared very zealously for the Commiffioner's intereft throw out all this Convention; but was thought a remarkable change of the lubricity and inconftancie of humane affairs.

The last meeting, on the 11 of Jully, did only approve the draught of the Convention's letter to his Majefty, fent up and carried by the Laird of Lundy. But, because both this Letter, the A&t of the Convention, and many of the other papers mentioned by me, are in print, theirfor I forbear to repeit the contents theirof. Vide the nixt page.

Thus ended this Convention of Eftates, wheirin the Duke of Lauderdale conceived he had recovered any thing he loft in the Parliament 1673; and he triumphed mightilie in his fucceffe, and Whythall was made to refound with it, and the fervice he had done to his Majefty by this fubfidy, and in cafting England a copie, and in showing the malecontents their how impotent their faction was in Scotland, and not to be trufted Fol. 326. to. Duke Hamilton went away from the penult meeting in a paffion; yet it cannot be denyed but the Duke of Hamilton all alongs behaved himselfe very weell, and showed much acuteneffe and readines of wit in his reafonings, and very prudently did take the advantadge to retort his adverfaries' arguments against themfelfes.

Halton, to make his fone, Mr. Richard Maitland, capable of being elected on of the Comiffioners for the fhire of Mid Lothian to this Convention, he difponed to him 14 chalders of victuall, with this quality, that it should be lawfull for the disponer to alter it at his pleasure, or to alienat the faids lands without his fone's confent, which was a rare clause.

In the Letter fent by the Convention to the King, fome blamed that expreffion as mean, wheir they fay they will not pry unto forraine myfteries; and then, wheir they flatter the Duke of Lauderdale; and then, within 4 lines of the end, wheir they compare the King to God, because both of them never makes ufe of their power, but to doe good; which fome thought, if properly tane, wanted not much of blafphemy. Again, wheir Sir George Mackeinzie fayes, (for he and the Bifchop of Galloway, Mr. John Paterfon, is thought to be the penman of it,) that from God alone our King derives his power. 10. Some denyes that. 2do. Does not other princes derive their lawfull authority from the fame fountain as much as he? 3tio. This hinders not but the people are God's inftrument in conveying the faid power, wher it comes not by conqueft and immemoriall defchent. Wher no compact can be fhowen, quæritur if it is to be prefumed?

No. III.

THE DEBATE IN THE CRIMINALL ACTION PERSHUED BE HIS MATIES ADVOCAT AGAINST VMQUHILL MR. JAMES MITCHELL, FOR ATTEMPTING TO KILL THE ARCHBISHOP OF ST. ANDREWS, EXTRACTED AS THE SAID DISPUTE STANDS RECORDED IN THE BOOKES OF ADJOURNALL, 7TH, 8TH, AND 9TH DAYES OF JANUARIE 1678.1

DEFENCES.-The lybell or indytement haveing been read, Mr. Johne Eleis, for the pannell, alledged, That he cannot paffe to the knowledge of ane affyfe, and that conclufione, that the pannell hes committed murder, cannot be inferred from the fubfumption of the lybell; because, be the lawes of this Kingdome, the Civil law, the common opinion of the Doctors, the law and generall cuftome of all nations, Nudus conatus et affectus fine effectu, even in the most attrocious crymes, except treafone, parracide, and other excepted crymes, is not punisheable be death; and it wer against all reafone, fieng punishment ought to be proportioned to the crymes, that a naked and fimple defigne of murder should be punished as murder that had taken effect; et in criminibus gravioribus et graviffimis, viz. adulterium, furtum, fodomia, the naked defigne is not punished pæna ordinaria, even by the civill law; and tho Lex Cornelia de ficariis, by ane extraordinarie ftreache, does declare one liable, fi quis cum telo ambulaverit,

1 From Lord Fountainhall's Manuscript marked C., p. 53.

yet it is but a ftatutorie law, and derogat to, by the law of nations, and the fpeciall law of our nation, in fo farre as murder in our law is defyned to be, and hes only place in interfectis per felloniam, and thefe who wer killed upon forethought fellonie. 2do., In fo farre as the lybell concludes him guiltie of affaffinatione, the fame is no wayes relevant, it being both a terme and a cryme unknowen in our law; and be the Lawes and A&s of Parliament of this nation, the fubjects of Scotland are to be governed by the lawes of Scotland; and though the cryme of affaffinatione wer a poynt of dittay by our law, as it is not, yet it is not nor cannot be pretended that he wes hyred for that effect, neyther is it lybelled. In fua farre as the lybell concludes the pain of death for mutilatione of the Bishop of Orkney, it is answered, The fame is no wayes relevant, and the faid conclufion cannot be inferred from the fubfumption; because the A& of Parliament does only declare difmembratione to be punished as flaughter. 2do., The faid A&t declares difmembratione to be only punifhed as flaughter, when it proceeds upon forethought felonie. 3o, The faid A&t requyres another qualificatione, viz. that it be perfhued be the partie, non of which can be fubfumed upon in this cafe, because it is not lybelled that the Bishop wes difmembred, or had his hand cutt off, but only had a wound in the hand; and the lybell does exprefly beare that the Bishop of Orkney gott the fhott in the hand accidentally, when the defigne wes against the Bishop of St. Andrews, and fo wes not upon forethought fellonie as to him; and lastlie, the Bishop's nearest of kin doe not concurre nor perfhue, which is a fpeciall requifite in the faid A&t of Parliament. Likeas, the faid A&t is exolet, and in no Regifter can it be made appeare, that any perfon wes capitallie punished for difmembratione, but, upon the contrare, many accufed and condemned in arbitrarie punishments; fo that the lybell is no wayes relevant as to that article, for the reafones forefaid, fpecially fieng difmembratione is not fo much heirin as lybelled or pretended; and wheras it is infinuat that the Bishop did languifh and die of

the faid wound, it is anfwered, That the lybell is no wayes relevantly conceaved, becaus it is not lybelled that the wound wes ex fua natura, lethall or mortall, and it is offered to be proven that the Bishop did live feverall yeirs thereafter, did goe about his ordinarie function as a Bishop by preaching, which is a fufficient ground of exculpatione and defence.

In fua farre as the lybell is founded vpon the A&t of Parliament anent invadeing of Councellers; it is anfwered, this prefent cafe does not fall under the compafs of the A&t of Parliament, becaus it is not lybelled that the cause of the faid pretended invafion of the Archbishop wes upon the accompt he wes in the profecutione of his Majesties fervice, but upon the contrare, it may appeare strange to any rational man, Quorfum et cui bono he could have done it.

As to the A&ts anent invadeing of Minifters, they import no capitall punishment, but only confifcatione of moveables, and as to which the faids Acts are opponed, and as to the A&t 1670, it is pofterior to the fact lybelled.

In fua farre as the lybell feemes to be founded on a confeffion, in fua farre as the confeffion may be made ufe of as a fole or conjunct probatione, the pannell objects against the famen upon the grounds and reafones following. 1o, If any fuch confeffion wes emitted be the pannell, which he hes abfolutly denyed in the Lords oun prefence, nowayes acknowledgeing the famen, no respect can be had therto, and it is not probatorie, becaus the famen is extrajudiciall, et extra bancum, in regarde it is not made in prefence of the affyfe, who are judges to the probatione, which is expreffly required by the 90 A&t xj. Par. K. J. 6, which requyres the probatione to be led in presence of the affyfe and partie; and which A&t of Parliament wes not only made for fecuritie of pannells as to a juft and legall procedour against them, but also that the affyfers to whom the truft of the lyves of the subjects of this Kingdome is committed, as to the poynt of probatione might not proceed upon fame and report, but upon