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<NAME>TCP Staff (Michigan)</NAME>
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<DIV1 TYPE="affidavit">
<PB N="1" REF="1" MS="y">
<HEAD>INFORMATION FOR THE EARL OF SEAFORTH Again&s;t Sir JOHN DEMPSTER of <HI>PITLIVER,</HI> and JOHN BAIN Younger of <HI>TULLOCH.</HI></HEAD>
<P>SIR <HI>John Demp&s;ter</HI> and <HI>Tulloch</HI> having made a great Noi&s;e in this Ca&s;e, and pur&s;ued the De&s;ign of recovering Payment again&s;t the Earl, with a new Addre&s;s, and by extraordinary Rigors: The Earl takes liberty plainly and fairly to &s;tate his Ca&s;e, that the Lords of His Maje&s;ty's Privy Council, and the whole Nation, may be &s;atisfied, that the Management of the Action depen|ding again&s;t him, and De&s;ign which the Pur&s;uers points at in all this Affair, &s;a|vours more of an <HI>Intrigue</HI> than a <HI>Legal Proce&s;s:</HI> But his Lord&s;hips Ca&s;e being in the hands of His Maje&s;ty's Privy Council, he is no ways doubtful, but that the&s;e Arts will be di&s;appointed, and that his Lord&s;hip will obtain the &s;ame impartial Ju|&s;tice, as is daily di&s;tribute to the re&s;t of the Subjects.</P>
<P>The Earl does not di&s;own, that <HI>Pitliver</HI> did obtain a Decreet again&s;t him be|fore the Parliament, and that <HI>Tulloch</HI> did interpo&s;e for my Lady his Mother, as an Atte&s;tor for her Cautioner; and to his power he never did decline to make &s;a|tisfaction to Sir <HI>John,</HI> or give Security, or to &s;ignify all grateful Acknowledgement to <HI>Tulloch:</HI> But the Endeavours by which <HI>Tulloch</HI> and <HI>Pitliver</HI> have &s;uffered them|&s;elves to be engaged, to invegle the Earl, and ob&s;truct their own payment, with|out con&s;idering that they &s;erve only the Project of others, who de&s;ign to Ruine and Overwhelm him, is unju&s;tifyable.</P>
<P>And this will appear the more evidently, if your Lord&s;hips &s;hall con&s;ider the repeated Offers, which the Earl has made to Sir <HI>John Demp&s;ter</HI> the Pur&s;uer for his Security. It is known, that the Earl's E&s;tate was left him involved in burden, and that he has never had any acce&s;s to it, but as it were by Favour: And there|fore it is impo&s;&s;ible that the Earl can rai&s;e con&s;iderable Sums of Money upon De|mand.</P>
<P>It is al&s;o impo&s;&s;ible to invent any other way for Sir <HI>John</HI>'s Security, but that &s;uch of the Eatls Friends and Kindred, who are of unque&s;tionable &s;ufficiency &s;hould interpo&s;e their Credit for him, and that the Earl has offered to Sir <HI>John,</HI> and has &s;howen the Letters under his Friends Hands to in&s;truct their readine&s;s.</P>
<P>His Friends indeed, tho they were willing to have &s;ecured Sir <HI>John;</HI> yet they were not willing to engage them&s;elves to all his Creditors, and therefore they would do nothing untill the Earl was at freedom, lea&s;t &s;ome new invention might be found while he was pri&s;oner, and in Gripps of &s;ome other ill invented Lybel and bold Calumneys to draw them further in, and Sir <HI>John</HI> having rejected that Pro|po&s;ition did not only ob&s;truct his own Payment, but clearly &s;hew that his Adver&s;aries are tho&s;e who at bottom de&s;ign the Earl's Ruine. And let Sir <HI>John</HI> fancy to him|&s;elf
<PB N="2" REF="2">what he plea&s;es, the Rigors which the Earl &s;uffers under the pre&s;&s;ure of griev|ous Sickne&s;s and Pain, may well ha&s;ton the period of the Earl's Life, but will ne|ver advance <HI>Pitlivers</HI> Satisfaction or Security, tho his Lord&s;hip &s;hould Rott in Pri&s;on, and be the &s;ingle in&s;tance of great Severity and Hard&s;hip.</P>
<P>As for <HI>Tulloch:</HI> Its true he did very kindly interpo&s;e for the Counte&s;s Dowager; but &s;till it was but as an atte&s;tor of a Cautioner, and whereby he can never &s;uf|fer any Damnage: Becau&s;e what he atte&s;ted was t<GAP DESC="illegible" RESP="KEYERS" EXTENT="2 letters">e the Cautioner was &amp; is Suffici|ent, and enjoyes an E&s;tate byond the Value of the Sum. And his Zeal to Hara&s;s the Earl in <HI>this</HI> Matter, does dimini&s;h the value of his <HI>former</HI> good Office.</P>
<P>The Earl does not approve of any violence committed upon any Geualeman, and much le&s;s upon <HI>Tulloch;</HI> and it was below him to have done an Action &s;o outragi|ous, or &s;o folli&s;h, as that whereof he is accu&s;ed: And it's hardly to be &s;uppo&s;ed, that any Man of Honour, or Common Sen&s;e, will entertain the lea&s;t &s;u&s;pition of the Earls acce&s;&s;ion to it: For be&s;ides that the thing was Barbarous and Inhumane of it &s;elf, it was fooli&s;h and filly in the manner of Execution in the mid&s;t of a Burgh Royal, in full Day-light, and without all De&s;ign o<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter"> Pro&s;pect.</P>
<P>This being premi&s;ed; the Lords are intreated to con&s;ider, That in the whole Lybel there is not one direct Act of Unju&s;tice or Violence lybelled again&s;t the Earl; but a great number of odious Circum&s;tances are &s;o laid together, and &s;ett in &s;uch fal&s;e light, as to give occa&s;ion to believe the Earl to have had acce&s;&s;ione to the Crimes ly belled: And how far the Pur&s;uers have &s;ucceded in the Probation of this Matter, will afterwards appear:</P>
<P>There is a Petition given in for the Pur&s;uers, Repre&s;enting their Libel, and that none of the Defenders appeared at the fir&s;t Diet; but the Earl having afterwards come up, the Pur&s;uer gave in a Petition repre&s;enting, That no legal Sentence could be execute again&s;t his Lord&s;hip in his own Countrey: And therefore crav|ing, That before he &s;hould be allowed to go home, he might be ordained to find Caution to compear in all the Diets of Proce&s;s, obtemper the Sentence, and pro|duce the other Defenders who were his Servants. And accordingly the Petition was granted.</P>
<P>It is An&s;wered, That the Earl's not appearing at the Day, being the 4 of <HI>January,</HI> was occa&s;ioned by the Severity of the Winter; and his Lord&s;hip came up very &s;hort|ly thereafter, with the hazard of his Life, notwith&s;tanding of the &s;evere Sickne&s;s and Pain he was under: Which your Lord&s;hips thought a &s;ufficient Excu&s;e, and took off the Certification again&s;t him. But the Pur&s;uers will never forgive the lea&s;t failing <HI>in punctilio</HI> to them, at lea&s;t they are willing to lay hold upon any pretence, to as &s;trange and <HI>unheard of</HI> Reparations.</P>
<P>It is true, your Lord&s;hips did indeed grant the De&s;ire of the Pur&s;uer's Petition: But when all the Steps of this Matter are fully under your Lord&s;hips View and Con&s;ideration, it will appear, That his Lord&s;hips has done all that was in his power to give Obedience: And that your Lord&s;hips have never decided, That the Earl was directly bound to pre&s;ent per&s;ons who were not in his Service, even long before the rai&s;ing of the Pur&s;uer's Proce&s;s, and whereof one is dead, and the others (to the Pur&s;uers own Knowledge and Conviction) out of the Kingdom: So that a Caution to pre&s;ent them, would be ju&s;t, in a manner, to Fine the Earl in an exorbitant Sum for their Fault under, a Gentler Name.</P>
<P>The Pur&s;uers Libel con&s;i&s;ts of Two Parts, A <HI>Deforcement,</HI> and the <HI>Riot</HI> commit|ted upon <HI>Tulloch</HI> at <HI>Channery. As to the Deforcement</HI> (&s;ays the Pur&s;uer) <HI>he has pro|ven it marvellou&s;ly; in &s;o far as, fir&s;t he produces the Me&s;&s;enger's Execution, bearing, That he apprehended the Earl by vertue of a Caption at</HI> Pitliver<HI>'s in&s;tance, having his
<PB N="3" REF="2">Blazon di&s;plaied; but immediatly, he, by the a&s;&s;i&s;tance of the other Defenders, did ex|tricate him&s;elf; and the Me&s;&s;enger would have pur&s;ued him, but he was detained forci|bly by the other Defenders, and Beat.</HI> 2do. <HI>The two In&s;trumentary Witne&s;&s;es;</HI> viz. William Ro&s;s <HI>and</HI> Donald Bain, <HI>depone upon the Verity of the Execution, except as to &s;ome &s;mall Circum&s;tances, &s;uch as, That one of them &s;ays, He did not remember the Me&s;&s;enger had any Letters or Papers in his Hand, nor did he &s;ee the Me&s;&s;enger lay hold upon the Earl, or intimate to him at who&s;e in&s;tance he was Pri&s;oner. And the other Witne&s;s depones, That he did not &s;ee the Me&s;&s;engers Blazon di&s;plaied; and that he did not &s;ee the Me&s;&s;enger take the Earl by the Arm. And</HI> 3tio. <HI>The Deforcement is further proven by the Riot, which was on account of Indignity done to the Earl, and that</HI> Tul|loch <HI>might crave the Earl pardon, and engage never to pur&s;ue the Deforcement.</HI></P>
<P>Again&s;t the Probation it is objected <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ne the Earl; 1<HI>mo.</HI> That the Execution of Deforcement is no Probation, unle&s;s it be atte&s;ted by habile Witne&s;&s;es: And the Me&s;&s;engers Oath would not be received in this Proce&s;s, where it lybells, that, he directly was injured; and therefore much le&s;s can his naked Execution make Faith. 2<HI>do.</HI> This Execution is not Probative, becau&s;e it is redargued as fal&s;e by the Te&s;timonies adduced by the Pur&s;uer him&s;elf, &s;uch as they are. 3<HI>tio.</HI> The Circum&s;tances in which the Te&s;timonies vary from the In&s;trument, are very ma|terial; in as far as both Witne&s;&s;es concurr to di&s;argue that part of the Execution, bearing, <HI>That the Me&s;&s;enger took my Lord by the Arm.</HI> Whence it clearly follows, that the other part of the Execution bearing, <HI>That my Lord did extricat him&s;elf by the a&s;i&s;tance of the other Defenders;</HI> which gives Rea&s;on to believe the Matter to have been done by Force, is fal&s;e: And my Lord never being in the Me&s;&s;engers Hands, he cannot be &s;aid to have Extricate him&s;elf. And the truth is, the Me&s;|&s;enger did neither Intimate the Intere&s;t of any Party to my Lord, nor did he offer to detain or hinder him to go to his Boat: And on the other Hand, the Earl did not know, nor did ever approve of the lea&s;t Rudene&s;s done the Me&s;&s;enger: And <HI>William Ro&s;s</HI> does po&s;itively depone, <HI>That he did not &s;ee any of the Defenders forcibly to have Extricate the Earl out of the Me&s;&s;engers Hands.</HI> 4<HI>to.</HI> It is not proven, that the Me&s;&s;enger intimat <HI>Pitlivers</HI> Intete&s;t, or name &s;o much as his Name. Now that a Party &s;hould &s;urrender to a Me&s;&s;enger, ju&s;t becau&s;e he &s;ays, <HI>he is his pri&s;oner,</HI> without &s;o much as telling, at <HI>who&s;e</HI> in&s;tance, and for <HI>what;</HI> is ab&s;urd to pretend. It is true, a Me&s;&s;enger needs not read the Letter of Caption, unle&s;s he be required: But that he &s;hould not &s;o much as <HI>Intimate</HI> the partys <HI>Name,</HI> nor the <HI>Cau&s;es,</HI> were to make him too arbitrary. And it were &s;trange to inferr a Crime from having nakedly gone away in the&s;e Circum&s;tances. 5<HI>to.</HI> Be&s;ides that, he neither laid <HI>hold</HI> upon the Earl, nor <HI>Intimate</HI> the Parties intere&s;t. It is not &s;o much as proven, that the Blazon was di&s;played: And <HI>Daniel Bain,</HI> one of the two Witne&s;&s;es, depones, <HI>He did not &s;ee the Blazon di&s;played:</HI> And this at lea&s;t was e&s;&s;ential and nece&s;&s;ary: And unle&s;s it were proven, there can be no Deforcement &s;u&s;tained. 6<HI>to.</HI> Of the&s;e two Witne&s;&s;es, one was a Boy, and but ju&s;t of an Age capable to be a Witne&s;s: The other is not only of <HI>Tulloch</HI>'s own Clan and Depen|dance, but is de&s;igned in the Execution his Servant; and therefore he is taken <HI>cum nota</HI> by the Committee.</P>
<P>As to this the Pur&s;uer do pretend, <HI>That</HI> Bain <HI>mu&s;t be &s;u&s;tained as being</HI> te&s;tis In&s;tru|mentarus, <HI>notwith&s;tanding of his being a Servant, and that it was &s;o decided by the Ju&s;tice Court</HI> March 1662 <HI>and</HI> July 1669 Murray <HI>contra</HI> French. 2do. <HI>Altho he was</HI> Tullochs <HI>Servant the time of the Deforcement; yet he is not now his Servant when he is adduced as a Witne&s;s.</HI> 3tio. Pitliver <HI>is properly Pur&s;uer of the Deforcement, and not</HI> Tulloch.</P>
<PB N="4" REF="3">
<P>It is An&s;wered for the Earl, 1<HI>mo.</HI> That In&s;trumentary Witne&s;&s;es in Law, are not only Witne&s;&s;es who &s;ign the In&s;trument of Nottars as <HI>&s;pecialiter rogati;</HI> but &s;uch as &s;ign Witne&s;&s;es to Sub&s;criptions of Parties: In&s;trumentary Witne&s;&s;es as to the Sub|&s;cription of Parties are Receivable, though they be other ways Inhabile; becau&s;e the Party does make choi&s;e of them to be Witne&s;&s;es in that Matter, and thereby Renounces the Exception of Inhability: But Witne&s;&s;es in the In&s;truments of Not|tars ought only to be &s;uch as are otherways Habile; becau&s;e he has in power to renounce the Exception as a Party has. And as to the Deci&s;ion, that in <HI>March</HI> 1662, the Parties are not cited: And the Deci&s;ion <HI>Murray</HI> contra <HI>French</HI> in the 1669, is indeed cited by Sir <HI>George M' Kenzie</HI> in his <HI>Criminals,</HI> but the &s;ame Au|thor does very fully and plainly redargue it: And he ob&s;erves, that the Lords of Se&s;&s;ion upon the 25 <HI>July</HI> 1663, in an Action of Deforcement concluding Repara|tion of Civil Intere&s;t, did mo&s;t expre&s;ly determine the contrary, and ordain the Deforcement to be proven by mo&s;t un&s;u&s;pect Witne&s;&s;es. Seing therefore, that this Deforcement, which is a Crime, and is &s;everely puni&s;hable by our Law, is not at all proven; and any pretence of Probation &s;tands upon Inhabile Te&s;timo|nies: And &s;eing likewi&s;e that Law does require in Ca&s;es of deforce, Proofs clear like the Light of the Sun; It is impo&s;&s;ible your Lord&s;hips will ever &s;u&s;tain this pre&s;ent Deforcement. 2<HI>do. Bain</HI> being <HI>Tulloch</HI>'s Servant at the time of the Execu|tion, he ought not to have been in&s;ert as a Witne&s;s at all; and his Ma&s;ter's hav|ing afterwards apparantly di&s;mi&s;&s;ed him on purpo&s;e only to qualify him for an E|vidence in this proce&s;s, cannot render his Te&s;timony le&s;s &s;u&s;pect, that Mi&s;tery and Affectation increa&s;es the Su&s;picion: And it is certain he is his Factor, and does attend him in this very Town. And as to the pretence, <HI>That he is not ad|duced for</HI> Tulloch, <HI>but for</HI> Pitliver, <HI>who is Pur&s;uer of the Deforcement.</HI> It is frivo|lous and vain; for the Council Letters are in name of <HI>Pitliver</HI> and <HI>Tulloch,</HI> as joint Pur&s;uers: And it is evident <HI>Tulloch</HI> for his Relief had got that Caption, imploy|ed the Me&s;&s;enger, and was pre&s;ent at the pretended Deforcement: So that he has mo&s;t directly an Intere&s;t in the Proce&s;s.</P>
<P>It is true the Te&s;timonies concurr as to <HI>&s;ome</HI> Violence done by Mr. <HI>William Baily</HI> and <HI>Simon M' Kenzie,</HI> two of the other Defenders. But what is that to the <HI>Earl?</HI> Have the Witne&s;&s;es proven, that either he put to his Hand; or ordered them to do it? No, they have not. But the Pur&s;uer pretends, Fir&s;t, <HI>That the Earl did approve of what was done by his Servants, by continuing them in his Service.</HI> Secundo, <HI>That he is in Law, lyable for their Faults.</HI></P>
<P>It is An&s;wered. This is a pitiful Inference: A Man cannot turn off his Ser|vants betwixt Terms: And the keeping of a Man's Servants for his nece&s;&s;ary U&s;e, imports no Approbation of their Faults: And it often happens, that Ma&s;ters re|tain their Servants, even when they are guilty of gro&s;s and unju&s;tifiable In&s;olen|cies, towards per&s;ons of far Higher Character than <HI>Pitliver</HI> or <HI>Tulloch:</HI> And yet it were hard from thence to make them Art and Part in their Folly.</P>
<P>The Second part of the Pur&s;uer's Libel is, the <HI>Riot</HI> committed at <HI>Channery,</HI> where the Earl's part of the Crime is only as acce&s;&s;ory Art and Part: But which the Pur|&s;uers infers from no Ground of Law; and therefore they do lay the &s;tre&s;s of their Cau&s;e upon the Laws again&s;t the <HI>Highland</HI> Chiftains.</P>
<P>It is proven indeed, <HI>That</HI> Tulloch <HI>was barbarou&s;ly u&s;ed,;</HI> which the Earl dete&s;ts and condemns als much as any Man: But that he was carried to the Earl's Hou&s;e or Clo&s;s, is not proven: That there were me&s;&s;ages pa&s;t betwixt the other De|fenders and the Earl, the time of the Abu&s;e, is not proven: On the contrary Mr. <HI>Mele<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">d</HI> depones, <HI>That neither the Earl nor his Mother were at home; but were gone
<PB N="5" REF="3">&s;ome Miles off the Town; and that he was told &s;o by my Lady</HI> Anna McKnenzie <HI>my Ladys Si&s;ter, Mrs.</HI> Margaret McKenzie <HI>his Cu&s;ine having asked for them at the very time.</HI> Nor is the Ca&s;tle of <HI>Channery</HI> the place of my Lords ordinary Re&s;i|dence, as <HI>William Ro&s;s</HI> and Baillie <HI>McCulloch,</HI> and <HI>Peter Lamb,</HI> Three of the Wit|ne&s;&s;es, did expre&s;ly depone. It is true, it was not marked in their Depo&s;itions, tho' the Earl begged it; But the honourable Members of the Committee will not have forgotten it.</P>
<P>In like manner the Pur&s;uer having Interrogat; how long Mr. <HI>William Baillie</HI> and the other Defenders were continued in the Earls Service; <HI>Peter Lamb</HI> one of the Witne&s;&s;es deponed, <HI>That he heard the Earl was very di&s;plea&s;ed at him for what had hapned, and turned him off immediatly thereafter, and that he &s;aw him idle up and down the Country.</HI> And tho' this &s;eems very nece&s;&s;ar for clearing the Truth, and the Earl's Innocency; yet <HI>Pitlivers</HI> Procurators would not &s;uffer it to be in&s;ert in the Depo&s;itions: But the Committee allowed the Earl to atte&s;t them in the matter: And the Pur&s;uers are &s;o far convinced, that their Probation is defective; e&s;pecially as to the&s;e Circum&s;tances which load the Earl, that they were fain to excu&s;e it, laying the blame on Witne&s;&s;es that are Cited and not come; not mind|ing that they have a Warrand to the Sheriff to &s;ecure the Witne&s;&s;es till they &s;hould find Caution to appear. But the Pur&s;uers pretend to &s;upply all by <HI>Tulloch</HI>'s own Oath, which how it came in the thought of any Lawier or mode&s;t Man, is not Conceiveable. But it is like all the other Propo&s;als in their pur&s;ute:</P>
<P>The la&s;t &amp; greate&s;t Effort is, The Argument to make the Earl lyable for the Fault of his Servants founded upon the 227 <HI>Act Par</HI> 14. <HI>Ja.</HI> 6. <HI>Appointing Ma&s;ters and Landlords in the Highlands, to be an&s;werable for their Men and Tenents; and which is extended to the ca&s;e of publick Peace, and for pre&s;erving thereof, as well as to that of Thift, Reiff and Oppre&s;&s;ion: By the</HI> 39 <HI>Act of the fourth Se&s;&s;ion of this current Parlia|ment, the former Laws are extended to the ca&s;e of the publick peace: And which is already &s;u&s;tained by your Lord&s;hips Deliverance upon a Petition</HI> 7 July <HI>la&s;t; and which was likwi&s;e practi&s;ed in the ca&s;e the Earl of</HI> Seaforth <HI>again&s;t</HI> McDonald, <HI>in the Year</HI> 1669. <HI>Upon which occa&s;ion the Council did ordain all Landlords in the Highlands to be lyable for Deforcements committed on their Ground, unle&s;s they deliver up the Offen|ders.</HI></P>
<P>To this Argument it is an&s;wered. <HI>Primo,</HI> That the Laws and Acts of Parlia|ment, whereby Highland Chriiftians were made an&s;werable for their Men, did con|cern only the ca&s;e of Thift, Roberies, and Depradatione. <HI>Secundo,</HI> They were not &s;imply lyable for the Damnages done by them, but being required, they were obliged to find Caution to make their Men Tennents and Servants an&s;werable to Ju&s;tice, which naturally implys, That they ought to be required to produce them; and is &s;o expre&s;ly declared by the 94. <HI>Act Par,</HI> 11. <HI>Ja.</HI> 6. and the 227 <HI>Act Par.</HI> 14, does not Innovat it, but e&s;tabli&s;hes a new and further Security whereby the Ma&s;ters were obliged to find Caution to make their men Tennents and Servants an&s;werable to Ju&s;tice: And for that effect the haill per&s;ons &s;u&s;pected were to be given in to their Ma&s;ters in Valentines. So that the E. having never been re|quired, &s;o long as his Servants were in his Family, or power, he cannot be lyable now to pre&s;ent them: And all that can be required of him now is, to do exact Dili|gence to apprehend them, if they be on his Ground, that they may be pre&s;ented to Ju&s;tice. And the Earl does produce In&s;truments upon his intimating to his Tennents and Va&s;&s;alls to Sei&s;e and Apprehend or di&s;cover them; as al&s;o of his Diligence to &s;earch them: And if the Council does not think that he is willing to fol|low any other Method that &s;hall be pre&s;crived, to &s;ignify his willingne&s;s to obey, but
<PB N="6" REF="4">require a thing impre&s;table under a Penalty, and to admit of Evidence of Obedience to excu&s;e it, is upon the Matter a heavy Fine; which its confidently expected the Lords will not e&s;tabli&s;h as a Preparative. 3<HI>tio.</HI> As to the 39 Act of the 4 Se&s;&s;ion of this current Parl: It does indeed extend the former Acts to the ca&s;e of the publick qui|et &amp; peace. But <HI>Fir&s;t,</HI> That Act does furni&s;h a plain Argument for the Earl; for from that Act it appears, that the former Acts did only comprehend the Ca&s;es of Thift, Robbery, Oppre&s;&s;ion and Depredation, and that it required a mo&s;t &s;pecial Sra|tute to extend it to the ca&s;e of the publick Quiet and Peace: <HI>Ergo</HI> the Earl can|not be lawable upon the Ground of the former Acts of Parliament. 2<HI>do.</HI> He can|not be liable by vertue of the fore&s;aid 39 Act, which does not concern the Ca&s;e of private Injuries or Violencies; But the Act being made in <HI>Anno</HI> 1693, when the <HI>Highlands</HI> were not fully e&s;tabli&s;hed under the Government, that Act was exten|ded for the Security and E&s;tabli&s;hment of the Government and publick Peace. 4<HI>to:</HI> As to the in&s;tance of the Deci&s;ion betwixt the Earl of <HI>Seaforth</HI> the Defender's Fa|ther, and <HI>M'Donald,</HI> with the Ordinance of the Council, That Landlords &s;hould be liable for Deforcements upon their Grounds. It is An&s;wered, That it is very que&s;tionable how far the Council could extend a Penal Law in the ca&s;e of Thift, Robbery, and Depradation, to the ca&s;e of Deforcement, without an Act of Par|liament. 2<HI>do.</HI> By that Ordinance of Council, Landlords were only liable for De|forcements upon their Ground; and <HI>ita e&s;t</HI> neither the Deforcement nor Riot was upon my Lord <HI>Seaforth</HI>'s Ground, it being alledged that the Deforcement hap|pened at <HI>Inverne&s;s,</HI> and the Riot at <HI>Channery,</HI> both Burghs Royal. 3<HI>tio:</HI> The Landlords are not &s;imply made liable for the skaith, but only if they do not de|liver the Offender, which mu&s;t be always under&s;tood if the Defender be in their power when required.</P>
<P>And your Lord&s;hips would con&s;ider not only that Penal Laws are not to be ex|tended ra&s;hly <HI>de ca&s;u in ca&s;um,</HI> that this Deci&s;ion will concern in the Event and Preparative to the whole Landlords in the Highlands, and make them liable not on|ly for their Men, which are their con&s;tant dependence, and their Tenents, but for their hired Servants, who &s;erve them one Term, and go away the next, although duting the time of their Service they be not required to pre&s;ent them to Ju&s;tice. This is ab&s;olutely New, and in all appearance Landlords may at la&s;t be made lia|ble for their civil Debts:</P>
<P>It is true, and the Earl is not ignorant, that when this Pur&s;ute was a rai&s;ing, the Pur&s;uers to load the Earl, and give the better Colour and Ri&s;e for any Hard&s;hips he &s;hould meet with, did de&s;eminat Stories again&s;t him, and fill the Minds and Ears of People with Prejudices: But your Lord&s;hips are not to be wrought upon in that manner. The Earl cannot doubt that his Ca&s;e will be con&s;idered impar|tially, fetting a&s;ide his Quality, he has the Priviledge at lea&s;t of a Common Sub|ject. And whatever the Pur&s;uers may vainly fancy to them&s;elves, your Lord&s;hips will not proceed &s;o, as by the Preparative to expo&s;e the re&s;t of the Nation, or have regard to the&s;e extrin&s;ick Stories, which neither are, nor ever can be proven. The Nation is now no longer under the Barbarous Maximes, <HI>That a Hair ought to be Hunted, but a Fox to be De&s;troyed in the Seat.</HI> Your Lord&s;hips of Privy Council are in u&s;e, and will certainly proceed, according to the Rules of Law and com|mon form.</P>
<P>It is therefore confidently expected, that your Lord&s;hips will A&s;&s;cilzie the Earl from this groundle&s;s Complaint, carried on in &s;o extraordinary a manner, as if the Lawes of the Nation were not enough for the Pur&s;uers Security, without new inven|tions, and to di&s;charge the Earl of his Impri&s;onment upon this account.</P>
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