THe said John Weir having in July 1690 given in a Petition to the Parliament representing that in the late times there had been some Civil Action depending betwixt him and Gilkerscleugh, whereby he was so stirred up against Newtoun, that during the Depen­dance, Gilkerscleugh threatned that if Newtoun would not desist, he would inform such words against Newtoun as should be Treasonable, condescending at the same time upon the Words, and that accordingly thereafter Newtoun was taken and made Prisoner in Edinburgh, and got an Indict­ment to answer before the Justices for the saids Words, as also that he appeared as a Witness, and in the precognition deponed, conform to the Libel. But that the other Witnesses, viz. Alexander Bai­lie and Andrew symonton not proving sufficiently, he was continued Prisoner till February 1686, that he was dismissed upon a a Bill to the Council, and subsuming that the said Process and Imprisonment was occasioned by Gilkerscleughs malice against him, and that he was thereby put to the Expenses of above 500 lib, sterling, and concluding against Gilkerscleugh, and the other two Witnesses that that may be decerned conjunctly and severally to make payment of the said Sum with the Annualrents thereof since the date and time of expending the samen, which having come to be called before the Commit­tee of Fines and Forfeitures, and being debate and Probation taken: and all these Actions that was depending before the Committee of Fines and Forfaultures are now remitted to the Committee for Security of the Nation, that the Parties may be heard before them, Gilkerscleugh before he make a­ny particular Answer to the foresaid groundless and fa [...]se Representation, he humbly offers to the Con­sideration of the Parliament, that he in his Minority being advised by [...] to [...]ho [...]e the said John Weir one of his Curators, upon this Ground and Pretence that he was an Agent and Writer, and so could serve Gilkerscleugh in any Affair that he had depending at Law, and he being allowed to in­tromet with the whole Rents of Gilkerscleughs Estate, and others belonging to him, whereof to this hour Gilkerscleugh could never get an Account, and albeit he will be Debitor to Gilkerscleugh in great Sums of Money, as also the deceast Gilkerscleugh, the Defenders Father being Cautioner for John Weir the Pur­suers Father in Law to James Johnstoun of Cariffen for a considerable Sum, whereof the Pursuer by his Contract of marriage betwixt him and his Wife, was obliged to make payment, and relieve the Cauti­oner, in respect the said John Weir had disponed his Estate to the Pursuer, who married his eldest Daughter, yet so far was he from paying thereof, that he suffered Gilkerscleugh his Pupills Estate to be apprysed for the same, the Legal whereof is now expired, through the Default and Fraud of the Pur­suer, so that it is evident that the Pursuer will be Debitor to Gilkerscleugh in greater Sums than he is worth.

This being premised, It is answered for Gilkerscleugh. 1. That its not so much as alledged in the said Lybel, that he meddled with any of Newtouns Estate, either as Fine of Forefaulture, or that he any other manner of way meddled with any thing that belonged to him, so that he not being able to lybel in the terms of the Act of Parliament anent Fines and Forefaultures, he has patch'd up the saids false and irrelevant Stories contirved by him, of purpose to force from Gilkerscleugh a Discharge of the foresaid just Debts, for which he knows he will be lyable: And whereas it is alledged that Gilkers­cleugh was stirred up against him, upon the account of Civil Actions depending betwixt them, the same is grossly calumnious, seing Newtoun had never any ground, nor did intend any Action against Gilkerscleugh, but on the contrary he intented an Action against Newtoun to relieve him of the said Debt, for which his Father was Cautioner, and which Newtoun by his Contract was bound to satisfie, as said is, and he was so conscious that the said Pursuit was just, and that he will be lyable, that he was necessi­tat to use a most disingenuous Shift to stop the Process, by debarring Gilkerscleugh with Horning: So that it was absolutely false to pretend that he had any Process against Gilkerscleugh, which might have stirred up Gilkerscleugh against him.

2. If the Libel as it is conceived were true, as it is most false, yet it is no ways relevant. 1. Be­cause the words alledged to be informed by Gilkerscleugh, are not lybelled as they ought to have been. 2. If the words had been lybelled, then they would either be Treasonable or not, and if they were such, then he was bound to have informed, otherways he himself would have been lyable in the [Page 2]pain of Treason for concealing, or they were not Treasonable, in which case Newtown would have sustained no prejudice thereby. 3. It is notourly known, that there was previous Cognition taken by these who had Commission through the whole Western Shires, what one man knew against another, and obliged them to depone upon Oath, otherways they were sent to Prison; as also it was an ordinary Question (whom ye do know that knows any thing of such an Affair) so that as a person was obli­ged to tell who were Contestes, and one these Precognitions the Indictments at the Circuit Courts were taken out, and Newtowns Indictment consists of many more Articles than these words alledged to be informed against him by Gilkerscleugh, which were separately relevant; and if the words had been treasonable as Newtown pretends, then he was obliged to discover the same, especially when he saw a severe Example before him of the Laird of Deuchall, who was forefault for Concealing only that which was whispered in his Ear by Sir John Cochran, who craved of him sume Supply for the Earl of Ar­gyle.

3. Seing there was so universal a Precognition taken, as said is, all that Gilkerscleugh can pretend to have informed was the Words spoken to him by Newtown, and it is thought strange how the dilating of these can be pretended to be the only ground of his Imprisonment, seing there is four or five separat Articles in his Indictment, every one thereof was relevant to infer Treason, and which cannot be prtended that ever Gilkerscleugh knew or informed of, because Newtown was indited in June 1683 at the Circuit-Court, wherein it is specially lybelled, that he sent his Man and Horse to Bothw [...]l, and that he took a sham Instrument against his Servant at Lanerk, protesting that he was innocent of his going, and that he only sent his man to bring back the Horse, but not to joyn with the Rebells, and that was the first thing that made him be taken notice of at Lanerk, and Gilkerscleughs Deposition is not taken till October 1683, which was after the Inditement, so that it is ridiculous to alledge that Newtowns Incarceration proceeded from Gilkerscleugh, seing Newtown had been formerly Indited, and declared Fugitive for not appearing, and who upon his return and coming in was relaxed upon his taking the Test. 2. As Newtoun was relevantly Indited before Gilkerscleugh was ex mined, as said is, so it was groundless to pretend that any thing could be fixt against Gilkerscleugh upon that account, seing by the Depositions adduced, it is clear­ly proven that Andrew Symontoun and Alexander Baillie said that they would declare what would hang Newtoun, and that they would follow him to the Gallows.

4. As the Representation made in the foresaid Complaint, is Calumnious and Irrelevant, so it is against sense to think that Gilkerscleugh could have any Design to have Newtoun forfeit, because New­toun being Debitor to him in great Sums of Money: If Newtoun had been forefeit it would have rui­ned Gilkerscleugh. And further, to shew how absolutely groundless the said Lybel is, and how Gil­kerscleugh was against the forefeiting of Newtoun, that if need were he could prove by Littelegil Elder­shaw, and Mr. John Brown, who were Witnesses in Newtoun's Exculpation at that time, that Gilkers­cleugh frequently said to them, He could heartily wish, some means could be fallen upon to cast him from being a Witness, which clarly demonstrats that he had no design to get him forefeit. And the truth was, after he was liberate by taking the Test, all that befell him thereafter, was by his own de­fault, seing he, to ingratiat himself with the then Chancellor, he went and told several idle Stories a­bout the Scots-men he had conversed with at London, and what their Design was, who did report the samen tot [...]e Council, and who did immediatly order a Macer to carry him before them; and they finding that he prevaricat in his Examination, they thereupon immediatly sent him to Prison, where he continued till he was brought to a Tryal for the Crimes of Treason: And it is notourly known, how Newtoun has oppressed and abused the Countrey in several things, and of late he Committed a gross Malverse and breach of his Trust, in so far as in the year 1686 or thereby, he being commissionat by the Duke of Hamilton to uplift some Rests of the Tax [...]tion, he did grosly offer to defraud the Duke, and oppress the Countrey, which being represented to the Council, he was imprisoned and fined in 500 merks.

5. If there were any relevancy in the foresaid Lybel, as there is not, for the Reasons foresaid, yet he cannot be lyable, because he is secured by the Act of Indemnity in September 1688, by which, all Crimes, Offences, Delinquencies, and Transgressions of whatsoever nature or quality, committed, acted or done, by any one Subject to another, by Word, Write, or any other Act of Commission or Omission, which directly or indirectly may import by any inference or Construction, the contravention of any Law, Act of Parliament, Custom or Constitution of this Kingdom, or may infer any pain or pu­nishment against any of the Subjects, to the prejudice of their Lives, Fortunes, Estates or Reputati­ons, either ad vindictam publicam vel privatam, either for Damnage or Interest, are Indemnified. And Discharges any of the Subjects to be called in question for the samen, either Civily or Criminally: and Ordains that the said General Indemnity shal be interpret in the most favourable and comprehensive Sense the same can admit of for security of the Subjects in the Premisses: and what is now lybelled against Gilkerscleugh, if there were any relevancy or truth in the thing, as there is neither, the samen does clearly fall under the Act of Indemnity.

6. If such a lybel as this should be sustained, it might be a ground of thousands of Process of that nature, for all Persons that were contained in the Porteous Rolls, may upon as good, and better Rea­son raise such Actions against the Witnesses who were likewise Informers. So that if such an Action should be sustained, it would be of a dangerous Preparative to the whole Nation. And it cannot be instanced that ever there was such an Action pursued, far less sustained.

It was answered for Newtoun, that he had an Action of Poinding of the Ground, depending against Gilkerscleugh, which was the occasion that he was irritate against him, and albeit he was chosen one of Gilkerscleugh's Curators, yet he had no Intromission except only with 700 lib. or thereby, and his Ob­ligement to relieve Gilkerscleugh was only conditional, in case his Father in Law should disburden the Estate of other Debts which was not dene: And that it is sufficiently proven by the Depositions of the Witnesses, Gilkersclugh to have informed Treason against Newtoun, and that it appears by the Pro­cess against Newtoun, that the Advocat past from all the Lybel, except as to the Expressions informed by Gilkersclugh, and the reason of his Imprisonment by the Council was, because he would not in­form against Cesnock and the other Scots-men at London, and the Reason why he was fined was, because he allowed the Town of Linlithgow to make use of the Copy of a Suspension as a Principal, and the Act of Indmnity does not meet this case, because it could not take away any Parries privat Damnage and Interest, and by the Claim of Right, nothing in the late times should be drawn in Consequence.

It is Replyed for Gilkersclugh. 1. That he never knew any Action that Newtoun had, depending against him, neither does he instruct any such Process, and it is not like that he would have pursu­ed any such Action against Gilkersclugh, if there had been any Ground for it, as there is not, seing he knew that he was debitor to Gilkersclugh in great Sums of Money.

2. It is absolutly false which Newtoun alledges, That albeit he was one of the Curators, yet he did not Intromet, except only with a smal Sum, seing it is notourly known in the whole Countrey▪ that he was the sole intrometting Curator, and uplifted the Rents during all the years of the Curatry, As also, he intrometted with, and disposed of the Moveables, which was of a considerable Value: And the account of his Intromissions being drawn up, and allowance given of all his Payments, he will be yet resting Gilkersclugh above 30000 lib. So that it is evident, that all that Newtoun designs by his ground­less and calumnious Pursute, is only of purpose to frighten Gilkersclugh from pursuing Newtoun for his justs Debts, and to force him to some disadvantagious Transaction: For the truth is Newtoun knows very well, and so is it known to all the Countrey about that he will be Debitor to Gilkersclugh in more than all he is worth.

3. As to that Pretence that Newton was only obliged to relieve Gilkerscleughs Father of the Caution­ry, upon condition that Newtones Father in Law should disburden the Estate of other Debts, this is like the rest of Newtouns calumnious Alledgeances, for there is no such condition in Newtouns Contract of Marriage; but he is expresly obliged to relieve Gilkerscleughs Father of the Cautionry, which will appear by the Contract it self, if Newtoun would produce it.

4. As to what is alledged that Gilkerscleaughs should have informed Treason against Newtoun to be suf­ficiently proven. It is Replyed. 1. That the former Answer is opponed, that it is no wayes Crimi­nal to inform of matter of Treason, seing by the Laws of this and all other Nations, every man is obli­ged to inform against any person that is guilty of Treason: and if such an Action as this should be sustained it would absolutely hinder all persons hereafter to inform matter of Treason, & how prejudicial that might be to the King and the Nation: The Parliament may easily judge. 2. As it is not possible, that such a Com­plaint can be sustained to make any Man lyable for Damages without overturning the fundamental Laws of the Nation, so neither is the said irrelevant Complent proven, for the Lybel resolving in these two points, such as the time of Newtouns Imprisonment, and the cause of it, that it was Gilkerscleughs informing treasonable Words against him, but so it is that none of these two Points are proven. For first, as to the time, it being alledged that he was two years and a half in prison, the Witnesses only declares that he entered to prison in the year 1683, and that they saw him in Prison in the year 1685, but does not mention the particular time they did see him in prison, nor that he was in Prison all the time. 2. As to the Cause of his Imprisonment, it is not proven against the Defender, neither can it be pretended that it was upon the account of any Information Gilkerscleugh gave against him, seing Newtoun acknowledges by an Information signed under his Hand lying in Process; That the oecasion of his being put in Prison was, that he refused to inform against Cessnock and other Scots Gentlemen at London, which clearly takes off all the conjectural Probation that Newtoun has Adduced against Gilkerscleugh, as if the Case of his Imprisonment had been Gilkers­cleugh's Information against him. 3 Several of the Witnessess aduced by Newtoun, and particular­ly George Ogilvie declairs that he was sent by Meldrum to the Tolbooth of Hamiltoun, to get In­formation from Gilkerscleugh against Newtoun by which it is evident that he did not give any In­formation till he was required by these Commissionat by the Government which is the very time libelled that Gilkerscleugh should have given the Information, and it being become Relevant by the Committie, and before the time libelled, or at the same time which is all one, Gilkerscleugh was required to give Information by these who was Commissionat by the Government, relevant to Liberate him from this Groundless Persuit, and this being Proven by the Pursuer's own witnesses; Gil­kerscleugh ought to be Assoi [...]zied, even conform to the Terms of the Committies former Interlo­locutor. 4. The only Witness that Newtoun makes Use of, for proving that Gilkercleugh Informed Treasonable Words against him are John Hamiltoun of Ellershaw and Mr. John Brown, and all that they Depon is, that they heard Gilkerscleugh say, that if he did not get his own, and Right in an Affair that he had with Newtoun that he should follow him to the Gallows, and if he got not him Hanged, he should Stick him, which might have been some Words that Gilkerscleugh said in Passion, but there is nothing in these Words, or in all the Depositions in the Terms of the Libel, that Gilkers­cleugh should have Informed Treasonable Words against Newtoun nor so much as that he did Inform against him; so that it is Impossible that such a Probation can be sustained to [Page 4]make Gilkerscleugh lyable for Damages if the Libel was otherways Relevant as it is not. 5. It is clear from the Deposintions that the Persons who Threatned to Inform against Newtoun, were Andrew Symintor and Alexander Baillie, so that as it is evident by the said Probation, that any thing that was said by Gilkerscleugh was not any Treasonable Words that Newtoun should have spoken, nor that he Informed against him, so that it is clear by the said Probation, that Syminton and Baillie were the Persons that Threatned to Inform, and not Gilkerscleugh. 6. As to Gilkercleugh's pretended Actual Informing; There is none of the Witnesses Depones except George Ogilvie who was Clerk to Meldrum's Commission; and vvho Declares that he vvas sent by Meldrum as said is, only there is another named Alexander Ogilvie vvho is an Old blind sottish Body, and vvhen he vvas first Examined, he vvas not [...]xamined in presence of the Partie, nor before the Commission but in a Privat house, and albeit the first Deposition seems to Concurr vvith George Ogilvie yet he thereafter Emitted a Declaration upon Soul and Conscience, that he did never see Gilkerscleugh in the Tolbooth of Hamilton, nor did know that Gilkerscleugh gave any Information against Newtoun, only he heard George Ogilvie say so, which being but a Hear-say does not Prove, And albeit there were Concurring Testimonies as to that Particular yet it makes nothing against Gelkerscleugh, seing any Information he gave, was given to these that had Commission from the Government being required for that Effect, as appears by the Testimonies of the Witnesses, which he desires may be Read.

5. It was callumnious to alledge that the Cause of Newtoun's Imprisonment, and of being Fined by the Council, was only for holding a Coppy of a Suspension for a Principal; it being nonesense to say that the Privy Council would Fine a man for such a thing as that which is ordinary and that which is no Cryme, but the true Reason of his Imprisonment was because he was endeavouring to Defraud the Duke of Hamiltoun and Oppress the Countrey, and Malverse in his Trust, he being Imployed by the Duke to Charge the Town of Lithgow, he took likeways Money from the Town and procured them a Suspension against Duke Hamiltoun.

6. The Act of Indemnity is opponed, which clearly meets this Case and has been many times sustained both before the Lords of Session and Justiciary, for freeing Parties both from the Cryme and Damnage, and Interest, and the Claime of Right does no ways concern cases of this Nature which can only be understood of Declarations, doings and Proceedings in the Late Government that were contrair to Law, But it was no ways contrair to Law for the King to give an Indem­nity to His Subjects, for if that were Sustained, then the Claim of Right might altogether take away the Act of Indemnity, and make it ineffectual which was never yet pretended, as also by the same Reason the Claim of Right might take away all Remissions given to any Party that had been grant­ed these Fourty years by past, and what a Dangerous preparative that might be any man might easily judge, and seeing such Acts of Indemnity has always been Sustained in the ordinary Courts of Justiciary to Free the Parties both quoad vindic [...]am Publicam et pritatam, and Damnage, and Inte­rest, it ought likeways to be sustained to Liberat Gilkerscleugh in this Case, if the Libel were other­ways Relvant and Proven as it is not, and Acts of Indemnity are Land-marks which are Sacred, and ought not be Removed, nor so much as touched, and if they should not be sustained in that Sense & Latitude, and conform to the Express Words of the Act, it might Occasion a great deal of Confu­sion on the Nation, and would Frustrate the very End and Design of granting such Acts of Indem­nity.

In Respect of all which Gilkerscleugh Ought to be Assoilzied from his Groundless, and Calumnious Persuit.