committed and also their Issues being any way assenting or privy to the same and all their Aiders Comforters and Abettors in that behalf And to the end that the intention of this Law may be effectually Executed if Her Majesties Life shall be taken away by any violent or unnatural means which God defend Be it further Enacted by the Authority aforesaid That the Lords and others which shall be of Her Majesties Privy Council at the time of such Her Decease or the more part of the same Council joyning unto them for their better Assistance five other Earls and seven other Lords of Parliament at the least foreseeing that none of the said Earls Lords or Council be known to be persons that may make any Title to the Crown those persons which were Chief Justices of either Bench Master of the Rolls and Chief Baron of the Exchequer at the time of Her Majesties Death or in Default of the said Justices Master of the Rolls and Chief Baron some other of those which were Justices of some of the Courts of Records at Westminster at the time of Her Highness Decease to supply their Places or any Four and twenty or more of them whereof Eight to be Lords of the Parliament not being of the Privy Council shall to the uttermost of their Power and Skill examine the cause and manner of such Her Majesties Death and what persons shall be any way Guilty thereof and all Circumstances concerning the same according to the true meaning of this Act and thereupon shall by open Proclamation publish the same and without any delay by all forcible and possible means prosecute to Death all their Aiders and Abettors And for the doing thertof and for the withstanding and suppressing of all such Power and Force as shall any way be levied or stirred in Disturbance of the due Execution of this Law shall by virtue of this Act have Power and Authority not only to raise and use such Forces as shall in that behalf be needful and convenient but also to use all other means and things possible and necessary for the maintenance of the same Forces and prosecution of the said Offenders And if any such Power and Force shall be levied or stirred in Disturbance of the due Execution of this Law by any person that shall or may pretend any Title to the Crown of this Realm whereby this Law may not in all things be fully Executed according to the effect and true meaning of the same That then every such person shall by virtue of this Act be therefore excluded and disabled for ever to have or claim or to pretend to have or claim the Crown of this Realm or of any other Her Highness Dominions any former Law or Statute whatsoever to the contrary notwithstanding And be it further Enacted by the Authority aforesaid and all and every the Subjects of all Her Majesties Realms and Dominions shall to the uttermost of their Power aid and assist the said Councel and all other the Lords and other Persons to be adjoyned to them for Assistance as is aforesaid in all things to be done and executed according to the effect and intention of this Law And that no Subject of this Realm shall in any wise be impeached in Body Lands or Goods at any time hereafter for any thing to be done or executed according to the Tenour of the Law any Law or Statute heretofore made to the contrary in any wise notwithstanding And whereas of late many of Her Majesties good and faithful Subjects have in the Name of God and with the Testimonies of good Consciences by one Uniform manner of Writing under their Hands land Seals and by their several Oaths voluntarily taken joyned themselves together in one Bond and Association to withstand and revenge to the uttermost all such malicious Actions and Attempts against Her Majesties most Royal Person Now for the full Explaining of all such Ambiguities and Questions as otherwise might happen to grow by reason of any sinister or wrong Construction or Interpretation to be made or inferred of or upon the words or meaning thereof Be it Declared and Enacted by the Authority of this present Parliament That the same Association and every Article and Sentence therein contained as well concerning the Disallowing Excluding or Disabling any Person that may or shall pretend any Title to come to the Crown of this Realm as also for the pursuing and taking Revenge of any person for any such wicked Act or Attempt as is mentioned in the same Association shall and ought to be in all things expounded and adjudged according to the true intent and meaning of this Act and not otherwise nor against any other person or persons A Word without Doors concerning the BILL for SUCCESSION SIR I AM very sensible of the great Honour you were pleas'd to do me in your last which I received immediately after our late unhappy Dissolution but could have wished you would have laid your Commands on some more able Person to have given you Satisfaction in the matter you there propose relating to the Duke who you seem to insinuate was like if the Parliament had continued to have received hard measure I must ingeniously confess to you I was not long since perfectly of your Opinion and thought it the highest Injustice imaginable for any Prince to be debar'd of his Native Right of Succession upon any pretence whatsoever But upon a more mature Deliberation and Enquiry I found my Error proceeded principally from the falso Notions I had took up of Government it self and from my Ignorance of the Practiâ—â—â— of all Communities of Men in all Ages whenever Self-preservation and Necessity of their Affairs obliged them to declare their Opinion in Cases of the like Nature To the knowledge of all which the following Accident I shall relate to you did very much contribute My Occasions obliging me one day to attend the coming of a Friend in a Coffee-house near Charing-Cross there happened to sit at the same Table with me Two Ingenious Gentlemen who according to the Frankness of Conversation now used in the Town began a Discourse on the same Subject you desire to be more particularly informed in and having Extolled the late House of Commons as the best number of Men that had ever sate within those Walls and that no House had ever more vigorously maintained and asserted English Liberty and Protestant Religion than they had done as far as the nature of the things that came before them and the Circumstances of time would admit to all which I very readily and heartily assented they then added That the great Wisdom and Zeal of that House had appeared in nothing more than in Ordering a Bill to be brought in for debarring the Duke of Y. from inheriting the Crown A Law they affirmed to be the most just and reasonable in the World and the only proper Remedy to establish this Nation on a true and solid Interest both Relation to the present
Earl unless they had his Royal Highness's and their Lordships special License and Warrant to that effect which is usual in the like Cases And by the said Petition humbly supplicated that his Highness and the Council would give special Order and Command to the said Sir George Lockhart the said Earls ordinary Advocate to consult and plead for him in the foresaid Criminal Process without incurring any hazard upon that account His Royal Highness and Lords of the said Privy Council did refuse the desire of the said Petition but allowed any Lawyers the Petitioner should employ to consult and plead for him in the Process of Treason and other Crimes to be pursued against him at the instance of His Majesties Advocate And also the said Alexander Dunbar having and holding in his hands another Act of the said Lords of Privy Council of the date the 24th of the said month relative to and narrating the said first Act and proceeding upon another supplication given in by the said Earl to the said Lords craving That his Royal Highness and the said Lords would interpose their Authority by giving a positive and special Order and Warrant to the said Sir George Lockhart to consult and plead with him in the foresaid Criminal Process conform to the tenor of the Acts of Parliament mentioned and particularized in the said Petition and frequent and known practice in the like cases which was never refused to any Subjects of the meanest quality His Royal Highness and Lords of Privy Council having considered the foresaid Petition did by the said Act adhere to their former Order allowing Advocates to appear for the said Earl in the Process foresaid as the said Acts bear and produced the said Acts and Procuratory foresaid to the said Sir George Lockhart who took the same in his hands and read them over successive and after reading thereof the said Alexander Dunbar Procurator and in name and behalf foresaid solemnly required the said Sir George Lockhart as the said Noble Earls ordinary Advocate and as a Lawyer and Advocate upon the said Earls reasonable expence to consult and advise the said Earls said Process at any time and place the said Sir George should appoint to meet thereupon conform to the foresaid two Acts of Council and Acts of Parliament therein mentioned appointing Advocates to consult in such matters which the said Sir George Lockhart altogether refused Whereupon the said Alexander Dunbar as Procurator and in Name foresaid asked and took Instruments one or more in the hands of me Notary publick undersubscribed And these things were done within the said Sir George Lockhart's Lodging on the South side of the Street of Edinburgh in the Lane-Mercat within the Dining-room of the said Lodging betwixt Four and Five hours in the Afternoon Day Month Year Place and of His Majesties Reign respective foresaid before Robert Dicksone and John Lesly Servitors to John Camphell Writer to His Majesties Signet and Dowgall Mac. Alester Messenger in Edinburgh with divers others called and required to the Premisses Ita esse Ego Johannes Broun Notarius publicus in Premissis requisitus Attestor Testantibus his meis signo subscriptione manualibus solitis consuetis Broun Witnesses Robert Dicksone Dowgall Mac. Alester John Lesly Decemb. 5. 1682. The Opinion of divers Lawyers concerning the Case of the Earl of Argyle WE have considered the Criminal Letters raised at the instance of His Majesties Advocate against the Earl of Argyle with the Acts of Parliament contained and narrated in the same Criminal Letters and have compared the same with a Paper or Explication which is libelled to have been given in by the Earl to the Lords of His Majesties privy-Privy-Council and owned by him as the sense and explication in which he did take the Oath imposed by the late Act of Parliament Which Paper is of this tenor I have considered the Test and am very desirous to give chedience as far as I can c. And having likewise considered that the Earl after he had taken the Oath with the explication and sense then put upon it it was acquiesced to by the Lords of Privy-Council and he allowed to take his place and to sit and Vote And that before the Earls taking of the Oath there were several papers spread abroad containing objections and alledging inconsistencies and contradictions in the Oath and some thereof were presented by Synods and Presbyteries of the Orthodox Clergy to some of the Bishops of the Church It is our humble Opinion that seeing the Earls design and meaning in offering the said Explication was allenarly for the clearing of his own Conscience and upon no facrious or seditious design and that the matter and import of the said paper is no contradiction of the Laws and Acts of Parliament it doth not at all import any of the Crimes libelled against him viz. Treason Leasing making depraving of His Majesties Laws or the Crime of Perjury but that the glosses and inferences put by the Libel upon the said paper are altogether strained and unwarrantable and inconsistent with the Earls true design and the sincerity of his meaning and intention in making of the said Explication Wednesday the 12th of December the day of compearance assigned to the Earl being now come he was brought by a guard of Souldiers from the Castle to the place appointed for the Trial and the Justice Court being met and fenced the Earl now Marquess of Queensberry then Justice-General the Lords Nairn Collingtoun Forret Newtoun and Hirkhouse the Lords of Justitiary sitting in Judgment and the other formalities also performed the Indictment above set down Num. 24. was read and the Earl spoke as follows The Earl of Argyle's Speech to the Lord Justice General and the Lords of the Justitiary after he had been arraigned and his Indictment read My Lord Justice General c. I Look upon it as the undeniable priviledge of the meanest Subject to explain his own words in the most benign sense and even when persons are under an ill Character the misconstruction of words in themselves not ill can only reach a presumption or aggravation but not any more But it is strange to alledge as well as I hope impossible to make any that know me believe that I could intend any thing but what was honest and honourable suitable to the Principles of my Religion and Loyalty tho I did not explain my self at all My Lord I pray you be not offended that I take up a little of your time to tell you I have from my Youth made it my business to serve His Majesty faithfully and have constantly to my power appeared in his Service especially in all times of difficulty and have never joined nor complied with any Interest or Party contrary to His Majesties Authority and have all along served him in his own way without a frown from His Majesty these thirty years As soon as I passed the Schools and Colledges I went to travel to France and Italy and
him and it can give none to destroy its self and those it protects but the contrary Bracton in his Comments pag. 487. tells us Bracton p. 487. That although the Common Law doth allow many Prerogatives to the King yet it doth not allow any that He shall wrong or hurt any by His Prerogative Therefore 't is well said by a late Worthy Author upon this point That what Power or Prerogative the Kings have in Them ought to be used according to the true and genuine intent of the Government that is for the Preservation and Interest of the People And not for the disappointing the Councils of a Parliament towards reforming Grievances and making provision for the future Execution of the Laws and whenever it is applied to frustrate those ends it is a Violation of Right and Infringement of the King's Coronation Oath who is obliged to Pass or Confirm those Laws His People shall cluse And tho he had such a Prerogative by Law yet it should not be so used especially in time of Eminent danger and distress The late King in His Advice to His Majesty that now is in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 239. Tells him That his Prerogative is best shewed and exercised in Remitting rather than exacting the Rigor of the Laws there being nothing worse than Legal Tyranny Nor would he have him entertain any Aversion or Dislike of Parliaments The Late King's advice to His Majesty which in their right Constitution with freedom and Honour will never Injure or Diminish His Greatness but will rather be as interchangings of Love Loyalty and Confidence between a Prince and His people It is true some Flatterers and Traytors have presumed in defiance to their Countries Rights to assert that such a boundless Prerogative belongs to Kings As did Chief Justice Trisilian c. in R. 2â—s time Advising him that he might Dissolve Parliaments at pleasure and that no Member should be called to Parliament nor any Act past in either House without His Approbation in the first place and that whoever advis'd otherwise were Traytors But this Advice you read was no less fatal to himself than pernicious to his Prince Bakers Chron. p. 147 148 and 159. King James in His Speech to the Parliament 1609. Gives them assurance That he never meant to Govern by any Law but the Law of the Land tho it be disputed among them as if he had an intention to alter the Law and Govern by the absolute power of a King but to put them out of doubt in that matter tells them That all Kings who are not Tyrants or Perjured will bound themselves within the limits of their Laws And they that persuade the contrary are Vipers and Pests both against them and the Commonwealth Wilson K. J. p. 46. The Conclusion 1. IF this be so That by so great Authority viz. so many Statutes in force The sundamental of the Common Law the Essentials of the Government it self Magna Charta The King's Coronation Oath so many Laws of God and Man The Parliament ought ro sit to Redress Grievances and provide for Common Safety especially in times of Common Danger And that this is eminently so who can doubt that will believe the King so many Parliaments The Cloud of Witnesses the Publick Judicatures their own sense and experience of the manifold Mischiefs which have been acted and the apparent Ruine and Confusion that impends the Nation by the restless Attempts of a bloody Interest if speedy Remedy is not applied Then let it be Queried Whether the People having thus the Knife at the Throat Cities and Habitations Fired and therein their Persons fried Invasions and Insurrections threatned to Destroy the King and Subjects Church and State and as so lately told us upon Mr. Fitz Harris's Commitment the present Design on Foot was to Depose and Kill the King and their only remedy hoped for under God to give them relief Relief thus from time time cut off viz. Their Parliaments who with so much care cost and pains are Elected sent up and Intrusted for their help turned off ré infecta and rendred so insiguificant by those frequent Prorogations and Dissolutions Are they not therefore justified in their important Cries in their many Humble Petitions to their King Fervent Addresses to their Members earnest Claims for this their Birth-right here Pleaded which the Laws of the Kingdom consonant to the Laws of God and Nature has given them 2. If so what then shall be said to those who advise to this high Violation of their Countries Rights to the infringing so many just Laws and exposing the Publick to those desperate hazards if not a total Ruine If King Alfred as Andrew Horne in his Mirror of Justice tells us hanged Darling Segnor Cadwine Cole and Forty Judges more for Judging contrary to Law and yet all those false Judgments were but in particular and private Cases What death do those Men deserve who offer this violence to the Law it self and all the Sacred Rights of their Country If the Lord Chief Justice Thorp in Ed. 3d's time for receiving the Bribery of One hundred pounds was adjudged to be Hanged as one that had made the King break his Oath to the People How much more guilty are they of making the King break His Coronation Oath that persuade him to Act against all the Laws for holding Parliaments and passing Laws therein which he is so solemnly sworn to do And if the Lord Chief Justice Tresilian was Hanged Drawn and Quartered for Advising the King to Act contrary to some Statutes only What do those deserve that advise the King to Act not only against some but against all these Ancient Laws and Statutes of the Realm And if Blake the King's Council but for assisting in the matter and drawing up Indictments by the King's Command contrary to Law tho it is likely he might Plead the King's Order for it yet if he was Hang'd Drawn and Quartered for that What Justice is due to them that assist in the Total Destruction of all the Laws of the Nation and as much in them lies their King and Country too And if Vsk the under-Sheriff whose Office is to Execute the Laws for but endeavouring to aid Tresilian Blake and their Accomplices against some of the Laws was also with Five more Hang'd Drawn and Quartered What punishment may they deserve that Aid and endeavour the Subversion of all the Laws of the Kingdom And if Empson and Dudley in Henry the Eighth's time tho two of the King 's Privy Council were Hanged for Procuring and Executing an Act of Parliament contrary to the Fundamental Laws of the Kingdom and to the great vexation of the People so that tho they had an Act of Parliament of their side yet that Act being against the known Laws of the Land were Hang'd as Traytors for putting that Statute in Execution Then what shall become of those who have no such Act to shelter themselves under and who
Good and Faithful Subjects to Us and our Royal Predecessors by hazarding and many of them actually losing their Lives and Fortunes in their Defence though of another Religion and the Maintenance of their Authority against the Violences and Treasons of the most violent Abettors of these Laws Do therefore with Advice and Consent of Our Privy Council by Our Soveraign Authority Prerogative Royal and Absolute Power aforesaid Suspend Stop and disable all Laws or Acts of Parliament Customs or Constitutions made or executed against any of our Roman Catholick Subjects in any time past to all intents and purposes making void all Prohibitions therein mentioned pains or penalties therein ordain'd to be Inflicted so that they shall in all things be as free in all Respects whatsoever not only to Exercise their Religion but to enjoy all Offices Benefices and others which We shall think fit to bestow upon them in all time coming Nevertheless it is our Will and Pleasure and we do hereby command all Catholicks at their highest Pains only to Exercise their Religious Worship in Houses or Chappels and that they presume not to Preach in the open Fields or to invade the Protestant Churches by force under the pains aforesaid to be inflicted upon the Offenders respectively nor shall they presume to make Publick Processions in the High-Streets of any of Our Royal Burghs under the Pains above mentioned And whereas the Obedience and Service of our good Subjects is due to Us by their Allegiance and Our Soveraignty and that no Law Custom or Constitution Difference in Religion or other Impediment whatsoever can exempt or discharge the Subjects from their Native Obligations and Duty to the Crown or hinder us from Protecting and Employing them according to their several Capacities and Our Royal Pleasure nor Restrain Us from Conferring Heretable Rights and Priviledges upon them or vacate or annul these Rights Heretable when they are made or conferred And likewise considering that some Oaths are capable of being wrested by men of sinistrous Intentions a practice in that Kingdom fatal to Religion as it was to Loyalty Do therefore with Advice and Consent aforesaid Cass Annul and Discharge all Oaths whatsoever by which any of Our Subjects are incapacitated or disabled from holding Places or Offices in our said Kingdom or enjoy their Hereditary Right and Priviledges discharging the same to be taken or given in any time coming without Our special Warrant and Consent under the pains due to the Contempt of Our Royal Commands and Authority And to this effect We do by Our Royal Authority aforesaid Stop Disable and Dispense with all Laws enjoyning the said Oaths Tests or any of them particularly the first Act of the first Session of the first Parliament of King Charles the Second the Eleventh Act of the foresaid Session of the foresaid Parliament the sixth Act of the third Parliament of the said King Charles the twenty first and twenty fifth Acts of that Parliament and the thirteenth Act of the first Session of * Our late Parliament in so far allanerly as concerns the taking the Oaths or Tests therein prescrib'd and all others as well not mentioned as mentioned and that in place of them all our good Subjects or such of them as We or our Privy Council shall require so to do shall take and swear the following Oath allanerly I A. B. do acknowledge testifie and declare that JAMES the Seventh by the Grace of God King of Scotland England France and Ireland Defender of the Faith c. is rightful King and Supream Governour of these Realms and over all persons therein and that it is unlawful for Subjects on any pretence or for any cause whatsoever to rise in Arms against Him or any Commissionated by Him and that I shall never so rise in Arms nor assist any who shall so do and that I shall never resist His Power or Authority nor ever oppose His Authority to His Person as I shall answer to God but shall to the utmost of my power Assist Defend and Maintain Him His Heirs and Lawful Successors in the Exercise of their Absolute Power and Authority against all Deadly So help me God And seeing many of Our good Subjects have before Our pleasure in these Matters was made publick incurred the Guilt appointed by the Acts of Parliament above-mentioned or others We by Our Authority and Absolute Power and Prerogative Royal above-mentioned of Our certain Knowledge and innate Mercy give Our ample and full Indemnity to all those of the Roman Catholick or Popish Religion for all things by them done contrary to Our Laws or Acts of Parliament made in any time past relating to their Religion the Worship and Exercise thereof or for being Papists Jesuits or Traffickers for hearing or saying of Mass concealing of Priests or Jesuits breeding their Children Catholicks at home or abroad or any other thing Rite or Doctrine said performed or maintained by them or any of them And likewise for holding or taking of Places Employments or Offices contrary to any Law or Constitution Advices given to Us or our Council Actions done or generally any thing perform'd or said against the known Laws of that Our Ancient Kingdom Excepting always from this Our Royal Indemnity all Murthers Assassinations Thefts and such like other Crimes which never used to be comprehended in Our General Acts of Indemnity And We command and require all Our Judges or others concerned to explain this in the most ample Sense and Meaning Acts of Indemnity at any time have contained Declaring this shall be as good to every one concerned as if they had Our Royal Pardon and Remission under Our Great Seal of that Kingdom And likewise indemnifying Our Protestant Subjects from all pains and penalties due for hearing or preaching in Houses providing there be no Treasonable Speeches uttered in the said Conventicles by them in which case the Law is only to take place against the Guilty and none other present providing also that they Reveal to any of Our Council the Guilt so committed As also excepting all Fines or Effects of Sentences already given And likewise Indemnifying fully and freely all Quakers for their Meetings and Worship in all time past preceeding the publication of these presents And we doubt not but Our Protestant Subjects will give their Assistance and Concourse hereunto on all Occasions in their Respective Capacities In consideration whereof and the ease those of Our Religion and others may have hereby and for the Encouragement of Our Protestant Bishops and the Regular Clergy and such as have hitherto lived orderly We think fit to declare that it never was Our Principle nor will We ever suffer Violence to be offered to any Man's Conscience nor will We use Force or Invincible Necessity against any Man on the account of his Perswasion nor the Protestant Religion but will protect Our Bishops and other Minsters in their Functions Rights and Properties and all Our Protestant Subjects in the free Exercise of their
most willingly bind our selves every one of us to the other joyntly and severally in the Band of one Firm and Loyal Society And do hereby Vow and Promise by the MAJESTY OF ALMIGHTY GOD That with our whole Powers Bodies Lives and Goods and with our Children and Servants We and every of us will faithfully serve and humbly obey our said Sovereign Lady Queen Elizabeth against all States Dignities and Earthly Powers whatsoever and will as well with our joynt and particular Forces during our Lives withstand offend and pursue as well by Force of Arms as by all other means of Revenge all manner of Persons of what State soever they shall be and their Abettors that shall attempt any Act Council or Consent to any thing that shall tend to the Harm of her Majesties Royal Person and will never desist from all manner of Forcible Pursuit against such Persons to the utter Extermination of them their Counsellors Aiders and Abettors And if any such wicked Attempt against her most Royal Person shall be taken in hand or procured whereby any that have may or shall pretend Title to come to this Crown by the untimely Death of her Majesty so wickedly procured which God for his Mercy sake forbid may be avenged We do not only bind our selves both joyntly and severally never to Allow Accept or Favour any such pretended Successor by whom or for whom any such detestable Act shall be Attempted or Committed as unworthy of all Government in any Christian Realm or Civil State But do also further Vow and Protest as we are most bound and that in the Presence of the Eternal and Everlasting God to Prosecute such Person and Persons to Death with our joynt or particular Forces and to ask the utmost Revenge upon them that by any means we or any of us can devise and do or cause to be devised and done for their utter Overthrow and Extirpation And to the better Corroboration of this our Loyal Band and Association We do also testifie by this Writing that we do confirm the Contents hereof by our Oaths corporally taken upon the Holy Evangelist with this express Condition That no one of us shall for any respect of Persons or Causes or for Fear or Reward separate our selves from this Association or fail in the Prosecution thereof during our Lives upon pain of being by the rest of us prosecuted and supprest as perjur'd Persons and as Publick Enemies to God our Queen and to our Native Country To which Punishment and Pains we do voluntarily submit ourselves and every of us without Benefit of any Colour or Pretence In Witness of all which Premises to be inviolably kept we do to this Writing put our Hands and Seals and shall be most ready to accept and admit any other hereafter to this Society and Association The ACT of Parliament of the 27th of Queen Elizabeth in Confirmation of the same FOrasmuch as the good Felicity and Comfort of the whole Estate of this Realm consisteth only next under God in the Surety and Preservation of the Queens most excellent Majesty And for that it hath manifestly appeared that sundry wicked Plots and Means have of late been devised and laid as well in Foreign Parts beyond the Seas as also within this Realm to the great indangering of his Highness most Royal Person and to the utter Ruine of the whole Commonweal if by Gods merciful Providence the same had not been revealed Therefore for preventing of such great Perils as might hereafter otherwise grow by the like detestable and divilish Practices at the humble Suit and earnest Petition and Desire of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same Parliament Be it Enacted and Ordained if at any Time after the end of this present Session of Parliament any open Invasion or Rebellion shall be had or made into or within any of Her Majesties Realms or Dominions or any Act attempted tending to the hurt of her Majesties most Royal Person by or for any Person that shall or may pretend any Title to the Crown of this Realm after her Majesties Decease or if any thing shall be compassed or imagined tending to the hurt of her Majesties Royal Person by any person or with the Privity of any person that shall or may pretend Title to the Crown of this Realm that then by Her Majesties Commission under Her Great Seal the Lords and other of Her Highness Privy Council and such other Lords of Parliament to be Named by her Majesty as with the said Privy Council shall make up the Number of Four and twenty at the least ving with them for their Assistance in that behalf such of the Judges of the Courts of Record at Westminster as Her Highness shall for that purpose assign and appoint or the more part of the same Council Lords and Judges shall by virtue of the Act have Authority to examine all and every the Offences aforesaid and all Circumstances thereof and thereupon to give Sentence or Judgment as upon good proof the matter shall appear unto them And that after such Sentence or Judgment given and Declaration thereof made and published by Her Majesties Proclamation under the Great Seal of England all persons against whom such Sentence or Judgment shall be so given and published shall be excluded and disabled for ever to have or claim or to pretend to have or claim the Crown of this Realm or of any Her Majesties Dominions any former Law or Statute whatsoever to the contrary in any wise notwithstanding And that thereupon All Her Highness Subjects shall and may lawfully by virtue of this Act and Her Majesties Direction in that behalf by forcible and possible means pursue to Death every such wicked person by whom or by whose means assent or privity any such Invasion or Rebellion shall be in Form aforesaid denounced to have been made or such wicked Act attempted or other thing compassed or imagined against Her Majesties Person and all their Aiders Comforters and Abettors And if any such detestible Act shall be Executed against her Highness most Royal Person whereby Her Majesties Life shall be taken away which God of his great mercy forbid that then every such person by or for whom any such Act shall be executed and their Issues being any wise assenting or privy to the same shall by virtue of this Act be excluded and disabled for ever to have or claim or pretend to have or claim the said Crown of this Realm or of any other Her Highness Dominions any former Law or Statute whatsoever to the contrary in any wise notwithstanding And that all the Subjects of this Realm and all other Her Majesties Dominions shall and may lawfully by virtue of this Act by all forcible and possible means pursue to Death every such wicked Person by whom or by whose means any such detestible Fact shall be in Form hereafter expressed denounced to have been
Factious Design with which they were charged by the said Letter This being through the Influence of the Lord Hatton refused by the Privy Council they dispatched a Gentleman to the Duke of Lauderdale with Letters and Instructions full of Respect and Submission to his Grace The Gentleman at his first arrival found Duke Lauderdale very kind and was made believe he should be quickly dispatched with Answers according to his Desire but some Delays having fallen in the Duke of Lauderdale fell likewise upon thoughts of getting Money from the Town upon this occasion and therefore pretending still more and more kindness to the said Gentleman he did first by some Insinuations let fall to him his expectation and at last flatly asked him if he had not brought a heavy Purse with him which when he understood he was not to expect he changed his Method and grew harsher and having detained him Five or Six Weeks he the said Duke entered into Consultation with his old Friend Sir Andrew Ramsey how to order the Affair By his Advice he did write a Letter and sent Proposals to the said Town That they should give Bond and Security That the Townsmen should live regularly as to all matters Ecclesiastical in the largest extent as the same is determined by the late Acts of Parliament and to keep the Town free of all sorts of Tumults either of Man or Woman Judging that this was impossible for them to perform and unfavourable to attempt and that therefore it would oblige them to make offers of Money This Letter was all the Gentleman could obtain and having gone back to Scotland and delivered it to the Magistrates they were so far from being carried in the Design that they were glad of that opportunity to witness their Zeal to serve Your Majesty for they did very heartily comply with what was proposed concerning the Bonds and Securities demanded and immediately urged that Your Majesties Ofcers and Lawyers would cause draw such Bonds and Securities as was fit for the purpose offering good Security for great summs of Money for the performance But this not being the thing truly intended their ready Compliance with it set them yet farther off from their desired Settlement and served for no other intent than to cause the Lord Hatton to double his diligence to find out new means to mollest them to which end it was alledged by him that they had of old forfeited their Priviledges and Liberties by some great Misdemeanour and that therefore they had not right to chuse their own Magistrates for which he would needs have their Records searched and accordingly they themselves with their Books and Records were in a most unusual manner brought often before him and his Friends though they had not Authority for it to the great Disturbance and Annoyance of the Citizens by being abundantly jealous of their Liberties were with no small care kept within the due Bounds of Moderation by the Loyalty and Vigilancy of their Magistrates They the said Magistrates finding how they were used at home by the Lord Hatton did again apply themselves to the Duke of Lauderdale both by private Letters to the Duke of Lauderdale and his Dutchess from some of the most eminent of them full of Assurances of particular Respect to their Graces and by a publick Letter to him from the whole Town-Council offering Bond and Security to him in the terms proposed by his fore-mentioned Letter But this could not prevail it being objected to them from some frivolous things the Lord Hatton had scraped together out of their old Records that they had lost their Liberties and that the right of chusing their Magistrates did no more belong to them Then did they produce their Charters and did convincingly clear all Mistakes and evidently make appear that the right of chusing their own Magistrates did remain to them undoubtedly and intirely All these things being cleared and open they expected to be restored to the free exercise of their Election in their accustomed manner They were still kept off with Delayes until the Lord Hatton in pursuance of his Design fell a practising with some few of themselves who did undertake with his assistance to get such Elected as were fit for his ends whereupon he writes to his Brother the Duke of Lauderdale to move Your Majesty for a Letter and accordingly the Letter was procured from Your Majesty upon the Seventh of August 75 wherein Your Majesty after reciting Your former Orders in that Affair did declare that You were well informed of their Obedience to Your Commands and of their dutiful Carriage in Your Concerns and therefore ordained them the next day after the Receipt of the Letter to convene their whole Council after their accustomed manner and out of the Lists already made to Elect the Lord Provost Bailies and other Officers According to which Letter they did the next day proceed to their Elections but instead of those whom the Lord Hatton expected they would have chosen they did Elect some men of good Fortunes and Integrity not at all fit for his purpose these who had ingaged to him not being men of that esteem or influence as to be able to carry his Design as they had undertaken The new Magistrates and Council did immediately after their Election acquaint Your Majesty with their Procedure and gave Your Majesty great Acknowledgments and Assurances of their care of the Peace of the Town and of Your Majesty's Service in all Matters both Ecclesiastical and Civil The said Lord Hatton being exceedingly inraged at this Act of theirs did by Advice of Sir George Mackynge now Your Majesties Advocate send a Letter to the Duke of Lauderdale to which he procured Your Majesties Hand upon the 25th of the same month of August by which Your Majesty ordered Your Privy Council to intimate to the Magistrates and town-Town-Council that it was Your Royal Pleasure that there should be turned out of the town-Town-Council and declared incapable of any Publique Trust in the said Town Twelve of the most eminent of the same Men with whom your Majesty had exprest your self so well pleased and whose Actings your Majesty had approved by your Letter of the Seventh of the said Month. This was accordingly executed by the Privy-Council without ever so much as calling before them the said Persons though great Crimes were laid to their Charge as being Factious Persons and mis-representing your Majesty's Proceedings without mentioning any particular Fact of theirs which could import any such Crime And though they be threatned by the said Letter to be pursued for these great Crimes and that your Majesty's Advocate is commanded in the same to insist against them yet could they never obtain from your Majesty's Privy-Council that they should be tryed for these things though by a Petition signed by the whole Twelve they did represent the great Prejudice they sustained both in their Reputation and Trade by being kept under such Threatnings and therefore did humbly offer themselves to
not unknown to your Majesty how restless the Endeavours and how bold the Attempts of the Popish Party for many years last past have been not only within this but other your Majesties Kingdoms to introduce the Romish and utterly to extirpate the true Protestant Religion The several Approaches they have made towards the compassing this their Design assisted by the Treachery of perfidious Protestants have been so strangely successful that 't is matter of Admiration to Us and which we can only ascribe to an Over-ruling Providence that your Majesties Reign is still continued over Us and that We are yet assembled to consult the means of our preservation This bloody and restless Party not content with the great Liberty they had a long time enjoyed to excercise their own Religion privately amongst themselves to pertake of an equal Freedom of their persons and Estates with your Majesties Protestant Subjects and of an Advantage above them in being excused from chargeable Offices and Employments hath so far prevailed as to find countenance for an open and avowed practice of their Superstition and Idolatry without controul in several parts of this Kingdom Great swarms of Priests and Jesuits have resorted hither and have here exercised their Jurisdiction and been daily tampering to pervert the Consciences of your Majesties Subjects Their Opposers they have found means to disgrace and if they were Judges Justices of the Peace or other Magistrates to have them turned out of Commission and in contempt of the known Laws of the Land they have practised upon people of all Ranks and qualities and gained over divers to their Religion some openly to profess it others secretly to espouse it as most conduced to the service thereof After some time they became able to influence matters of State and Government and thereby to destroy those they cannot corrupt The continuance or Prorogation of Parliaments has been accommodated to serve the purposes of that Party Money raised upon the People to supply your Majesties extraordinary Occasions was by the prevalence of Popish Councils imployed to make War upon a Protestant State and to advance and augment the dreadful Power of the French King though to the apparent hazard of this and all other Protestant Countries Great numbers of your Majesties Subjects were sent into and continued in the service of that King notwithstanding the apparent Interest of your Majesties Kingdoms the Addresses of the Parliament and your Majesties gracious Proclamations to the contrary Nor can We forbear to mention how that at the beginning of the same War even the Ministers of England were made Instruments to press upon that State the acceptance of one demand among others from the French King for procuring their peace with him that they should admit the publick exercise of the Roman Catholick Religion in the United Provinces the Churches there to be divided and the Romish Priests maintained out of the publick Revenue At home if Your Majesty did at any time by the Advice of Your privy-Privy-Council or of Your two Houses of Parliament Command the Laws to be put in Execution against Papists even from thence they gained advantage to their Party while the edge of those Laws was turned against Protestant Dissenters and the Papists escaped in a manner untoucht The Act of Parliament enjoining a Test to be taken by all Persons admitted into any Publick Office and intended for a security against Papists coming into Employment had so little effect that either by Dispensations obtained from Rome they submitted to those Tests and held their Offices themselves or those put in their places were so favourable to the same Interests that Popery it self has rather gained than lost ground since that Act. But that their business in hand might yet more speedily and strongly proceed at length a Popish Secretary since Executed for his Treasons takes upon him to set afoot and maintain correspondencies at Rome particularly with a Native Subject of Your Majesties promoted to be a Cardinal and in the Courts of other Forreign Princes to use their own form of Speech for the subduing that Pestilent Heresie which has so long domineered over this Northern World that is to root the Protestant religion out of England and thereby to make way the more easily to do the same in other Protestant Countries Towards the doing this great Work as Mr. Coleman was pleased to call it Jesuits the most dangerous of all Popish Orders to the Lives and Estates of Princes were distributed to their several Precincts within this Kingdom and held joint Councils with those of the same Order in all Neighbour Popish Countries Out of these Councils and Correspondencies was hatcht that damnable and hellish Plot by the good Providence of Almighty God brought to light above two Years since but still threatning us wherein the Traitors impatient of longer delay reckoning the prolonging of Your Sacred Majesties Life which God long Preserve as the Great Obstacle in the way to the Consummation of their hopes and having in their prospect a Proselyted Prince immediately to succeed in the Throne of these Kingdoms resolved to begin their Work with the Assassination of Your Majesty to carry it on with Armed Force to destroy Your Protestant Subjects in England to Execute a second Massacre in Ireland and so with ease to arrive at the suppression of our Religion and the subversion of the Government When this Accursed Conspiracy began to be discovered they began the smothering it with the Barbarous Murther of a Justice of the Peace within one of Your Majesties own Palaces who had taken some Examinations concerning it Amidst these distractions and fears Popish Officers for the Command of Forces were allowed upon the Musters by special Orders surreptitionsly obtained from Your Majesty but Counter-Signed by a Secretary of State without ever passing under the Tests prescribed by the aforementioned Act of Parliament In like manner above fifty new Commissions were granted about the same time to known Papists besides a great number of desperate Popish Officers though out of Command yet entertain'd at half pay When in the next Parliament the House of Commons were prepared to bring to a legal Tryal the principal Conspirators in this Plot that Parliament was first Prorogued and then Dissolved The Interval between the Calling and Sitting of this Parliament was so long that now they conceive Hopes of covering all their past Crimes and gaining a seasonable time and advantages of practising them more effectually Witnesses are attempted to be corrupted and not only promises of Reward but of the Favour of your Majesty's Brother made the Motives to their Compliance Divers of the most considerable of your Majesty's Protestant Subjects have Crimes of the highest nature forged against them the Charge to be supported by Subornation and Perjury that they may be destroyed by Forms of Law and Justice A Presentment being prepared for a Grand Jury of Middlesex against your Majesty's said Brother the Duke of York under whose Countenance all the
being accompanied with several other Lords at the Delivery thereof thus expressed himself The Earl of Essex's Speech at the Delivering the following Petition to His most Sacred Majesty Jan. 25. 1680. May it please your Majesty THe Lords here present together with divers other Peers of the Realm taking notice that by Your late Proclamation Your Majesty has declared an intention of calling a Parliament at Oxford and observing from History and Records how unfortunate many Assemblies have been when called at a Place remote from the Capital City as particularly the Congress in Henry the Second's time at Clarendon Three several Parliaments at Oxford in Henry the Third's time and at Coventry in Henry the Sixth's time With divers others which have proved very fatal to those Kings and have been followed with great mischief on the whole Kingdom And considering the present posture of affairs the many jealousies and discontents which are amongst the People We have great Cause to apprehend that the consequences of a Parliament now at Oxford may be as fatal to Your Majesty and the Nation as those others mentioned have been to the then Reigning Kings and therefore we do conceive that we cannot answer it to God to Your Majesty or to the People If we being Peers of the Realm should not on so Important an Occasion humbly offer our advice to Your Majesty that if possible Your Majesty may be prevailed with to alter this as we apprehend unseasonable Resolution The Grounds and Reasons of our Opinion are contained in this our Petition which We humbly Present to Your Majesty To the King 's most Excellent Majesty The Humble Petition and Advice of the Lords under-named Peers of the Realm Humbly Sheweth THat whereas Your Majesty hath been pleased by divers Speeches and Messages to Your Houses of Parliament rightly to represent to them the Dangers that Threatned Your Majesty's Person and the whole Kingdom from the Mischievous and wicked Plots of the Papists and the sudden Growth of a Foreign Power unto which no stop or remedy could be Provided unless it were by Parliament and an Union of Your Majesty's Protestant Subjects in one Mind and one Interest And the Lord Chancellor in Pursuance of Your Majesty's Commands having more at large Demonstrated the said Dangers to be as great as we in the midst of our Fears could Imagine them and so pressing that our Liberties Religion Lives and the whole Kingdom would be certainly Lost if a speedy Provision were not made against them And Your Majesty on the 21st of April 1679. Having called unto your Council many Honourable and Worthy Persons and declared to them and the whole Kingdom That being sensible of the evil Effects of a single Ministry or private Advice or Forreign Committee for the General Direction of your Affairs Your Majesty would for the future Refer all things unto that Council and by the constant Advice of them together with the frequent use of your great Council the Parliament Your Majesty was hereafter Resolved to Govern the Kingdoms We began to hope we should see an end of our Miseries But to our unspeakable Grief and Sorrow we soon found our Expectations Frustrated The Parliament then subsisting was Prorogued and Dissolved before it could perfect what was intended for our Relief and Security and though another was thereupon called yet by many Prorogations it was put off till the 21st of October past and notwithstanding Your Majesty was then again pleased to acknowledge that neither Your Person nor Your Kingdom could be safe till the matter of the Plot was gone thorow It was unexpectedly Prorogued on the 10th of this Month before any sufficient Order could be taken therein all their Just and Pious Endeavours to save the Nation were overthrown the good Bills they had been Industriously preparing to Unite all Your Majesties Protestant Subjects brought to nought The discovery of the Irish Plot stifled The Witnesses that came in frequently more fully to declare That both of England and Ireland discouraged Those Forreign Kingdoms and States who by a happy conjunction with us might give a Check to the French Power disheartned even to such a Despair of their own Security against the growing greatness of that Monarch as we fear may induce them to take new Resolutions and perhaps such as may be fatal to us The Strength and Courage of our Enemies both at home and abroad increased and our selves left in the utmost danger of seeing our Country brought into utter Desolation In these Extremities we had nothing under God to comfort us but the Hopes that Your Majesty being touched with the Groans of Your perishing People would have suffered Your Parliament to meet at the Day unto which it was Prorogued and that no further interruption should have been given to their Proceedings in Order to their saving of the Nation But that failed us too For then we heard that Your Majesty by the private suggestion of some Wicked Persons Favourers of Popery Promoters of French Designs and Enemies to Your Majesty and the Kingdom without the Advice and as we have good Reason to believe against the Opinion even of Your Privy-Council had been prevailed with to Dissolve it and to call another to meet at Oxford where neither Lords nor Commons can be in Safety but will be daily exposed to the Sword of the Papists and their Adherents of whom too many are crept into Your Majesties Guards The Liberty of speaking according to their Consciences will be thereby Destroyed and the Validity of all their Acts and Proceedings consisting in it left Disputable The Straitness of the Place no way admits of such a concourse of Persons as now follows every Parliament the Witnesses which are necessary to give Evidence against the Popish Lords such Judges or others whom the Commons have Impeached or had resolved to Impeach can neither bear the Charge of going thither nor trust themselves under the Protection of a Parliament that is it self Evidently under the power of Guards and Soldiers The Premises considered We Your Majesties Petitioners out of a Just Abhorrence of such a dangerous and pernicious Council which the Authors have not dared to avow and the direful Apprehensions of the Calamities and Miseries that may ensue thereupon do make it our most Humble Prayer and Advice That the Parliament may not sit at a Place where it will not be able to Act with that Freedom which is necessary and especially to give unto their Acts and Proceedings that Authority which they ought to have amongst the People and have ever had unless Impaired by some Awe upon them of which there wants not Precedents And that Your Majesty would be graciously pleased to Order It to Sit at Westminster it being the usual Place and where they may Consult and Act with Safety and Freedom And your Petitioness shall ever Pray c. Monmouth Kent Huntington Bedford Salisbury Clare Stanford Essex Shaftsbury Mordant Evers Paget Grey Herbert Howard Delamer The Counties
Highness c. Montrose Errol Marshall Marr Glencarne Winton Linlithgow Perth Strathmore Roxburgh Queensberry Airley Kintore Breadalbane Lorne Levingston Bishop of Edinburgh Elphinston Rosse Dalziel Treasurer Deputy Praeses Advocate Justice Clerk Collinâ—oun Tarbet Haddo Lundie This day the Test was subscribed by the above-written Privy-Councellors and by the Earl of Queensberry who coming in after the rest had taken it declared that he took it with the Explication following The Earl of Queensberries Explanation of the Test when he took it HIS Lordship declared that by that part of the Test That there lies no obligation to endeavour any change or alteration in the Government c. He did not understand himself to be obliged against Alterations in case it should please His Majesty to make alterations of the Government of Church or State HALYRVDEHOVSE Sederunt vigesimo primo Die Octobris 1681. His Royal Highness c. Winton Perth Strathmore Queensberry Ancram Airley Lorne Levingston Bishop of Edinburgh Treasurer Deputy Praeses Register Advocate Collintoun This day the Bishop of Edinburgh having drawn up a long Explication of the Test to satisfie the many Objections and Scruples moved against it especially by the conformed Clergy presented it to the Council for their Lordships Approbation which was ordered to be read but the Paper proving prolix and tedious his Highness after reading of a few Leaves interrupted saying very wittily and pertinently That the first Chapter of John with a Stone will chase away a Dog and so break it off Yet the Bishop was afterward allowed to print it if he pleased Sederunt quarto Die Novembris 1681. His Royal Highness c. Montrose Praeses Perth Ancram Levingston President of Session Advocate Winton Strathmore Airley Bishop of Edinburgh Treasurer Deputy Lundie Linlithgow Roxburgh Balcaras Esphynstoun Register This day the Eari of Argyle being about to take the Test as a Commissioner of the Treasury and having upon Command produced a Paper bearing the sense in which he took the Test the precedeing day and in which he would take the same as a Commissioner of the Treasury Upon consideration thereof it was resolved that he cannot sit in Council not having taken the Test in the sense and meaning of the Act of Parliament and therefore was removed The Earl of Argyle's Explication of the Test when he took it I Have considered the Test and I am very desirous to give obedience as far as I can I 'm confident the Parliament never intended to impose contradictory Oaths Therefore I think no Man can explain it but for himself Accordingly I take it as far as it is consistent with it self and the Protestant Religion And I do declare That I mean not to bind up my self in my station and in a lawful way to wish and endeavour any alteration I think to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty And this I understand as a part of my Oath But the Earl finding as hath been narrated this his Explication though accepted and approven by his Highness and Council the day before to be this day carped and offended at and advantages thereupon soughtand designed against him did immediately draw up the following Explanation of his Explication and for his own vindication did first communicate it to some privately and thereafter intended to have offered it at his Trial for clearing of his defences The Explanation of his Explication I Have delayed hitherto to take the Oath appointed by the Parliament to be taken by the first of January next But now being required near two Months sooner to take it this day peremptorily or to refuse I have considered the Test and have seen several Objections moved against it especially by many of the Orthodox Clergy notwithstand whereof I have endeavoured to satisfie my self with a just Explanation which I here offer that I may both satisfie my conscience and obey Your Highness and Your Lordships commands in taking the Test though the Act of Parliament do not simply command the thing but only under a Certification which I could easily submit to if it were with Your Highness favour and might be without offence but I love not to be singular and I am very desirous to give obedience in this and every thing as far as I can and that which clears me is that I am confident what ever any Man may think or say to the prejudice of this Oath the Parliament never intended to impose contradictory Oaths and because their sense they being the framers and imposers is the true sense and that this Test injoyned is of no private interpretation nor are the Kings Statutes to be interpreted but as they bear and to the intent they are made Therefore I think no Man that is no private Person can explain it for another to amuse or trouble him with it may be mistaken glosses But every Man as he is to take it so is to explain it for himself and to endeavour to understand it notwithstanding all these exceptions in the Parliament which is its true and genuine sense I take it therefore notwithstanding any scruple made by any as far as it is consistant with it self and the Protestant Religion which is wholly in the Parliaments sense and their true meaning which being present I am sure was owned by all to be the securing of the Protestant Religion founded on the Word of God and contained in the Confession of Faith Recorded J. 6 p. 1. c. 4. And not out of scruple as if any thing in the Test did import the contrary but to clear my self from all cavils as if thereby I were hand up further then the true meaning of the Oath I do declare that by that part of the Test that there lies no obligation on me c. I mean not to bind up my self in my station and in a lawful way still disclaiming all unlawful endeavours to wish and endeavour any alteration I think according to my conscience to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty and by my Loyalty I understand no other thing then the words plainly bear to wit the duty and allegiance of all Loyal Subjects and this explanation I understand as a part not of the Test or Act of Parliament but as a qualifying part of my Oath that I am to Swear and with it I am willing to take the Test 〈◊〉 Your Royal Highness and Your Lordships allow me or otherwise in submission to Your High 〈◊〉 and the Councils pleasure I am content to be held as a refuser at present The Councils Letter to His Majesty Concerning their having committed the Earl of Argyle May it please your Sacred Majesty THE last Parliament having made so many and so advantageous Acts for securing the Protestant Religion the Imperial Crown of this Kingdom and Your Majesties Sacred Person whom God Almighty long preserve and having for the last and as the best way
those vast Lands Jurisdictions and Superiorities justly forfaulted to His Majesty by the Crimes of your deceased Father preferring your Family to those who had served His Majesty against it in the late Rebellion but also pardoned and remitted to you the Crimes of Leasing-making and misconstruing His Majesties and his Parliaments proceedings against the very Laws above-written whereof you were found guilty and condemned to die therefore by the High Court of Parliament the 25th of August 1662. and raised you to the Title and Dignity of an Earl and being a Member of all His Majesties Judicatures Notwithstanding of all these and many other favours you the said Archibald Earl of Argyle being put by the Lords of His Majesties privy-Privy-Council to take the Test appointed by the Act of the last Parliament to be taken by all persons in publick Trust you instead of taking the said Test and swearing the same in the plain genuine sense and meaning of the words without any equivocation mental reservation or evasion whatsoever you did declare against and defame the said Act and having to the end you might corrupt others by your pernicious sense drawn the same in a Libel of which Libel you dispersed and gave abroad Copies whereby ill impressions were given of the King and Parliaments proceedings at a time especially when His Majesties Subjects were expecting what submission should be given to the said Test and being desired the next day to take the same as one of the Commissioners of His Majesties Treasury you did give into the Lords of His Majesties privy-Privy-Council and owned twice in plain judgment before them the said defamatory Libel against the said Test and Act of Parliament declaring That you had considered the said Test and was desirous to give obedience as far as you could whereby you clearly insinuated that you was not able to give full obedience In the second Article of which Libel you declare That you were confident the Parliament never intended to impose contradictory Oaths thereby to abuse the people with a belief that the Parliament had been so impious as really and actually to have imposed contradictory Oaths and so ridiculous as to have made an Act of Parliament which should be most deliberate of all humane actions quite contrary to their own intentions after which you subsumed contrary to the nature of all Oaths and to the Acts of Parliament above cited that every man must explain it for himself and take it in his own sense by which not only that excellent Law and the Oath therein specified which is intended to be a Fence to the Government both of Church and State but all other Oaths and Laws shall be rendered altogether useless to the Government If every man take the Oaths imposed by Law in his own sense then the Oath imposed is to no purpose for the Legislator cannot be sure that the Oath imposed by him will bind the takers according to the design and intent for which he appointed it and the Legislative Power is taken from the Imposers and settled in the taker of the Oath and so he is allowed to be the Legislator which is not only an open and violent depraving of His Majesties Laws and Acts of Parliament but is likewise a settling of the Legislative Power on private Subjects who are to take such Oaths In the third Article of that Paper you declare That you take the Test in so far only as it is consistent with it self and the Protestant Religion by which you maliciously intimate to the people That the said Oath is inconsistent with it self and with the Protestant Religion which is not only a down right depraving of the said Act of Parliament but is likewise a misconstruing of His Majesties and the Parliaments proceedings and misrepresenting them to the people in the highest degree and in the tenderest points they can be concerned and implying that the King and Parliament have done things inconsistent with the Protestant Religion for securing of which that Test was particularly intended In the Fourth Article you do expresly declare that you mean not by taking the said Test to bind up your self from wishing and endeavouring any alteration in a lawful way that you shall think fit for advancing of Church and State whereby also it was designed by the said Act of Parliament and Oath That no man should make any alteration in the Government of Church and State as it is now established and that it is the Duty of all good Subjects in humble and quiet manner to obey the present Government Yet you not only declare your self but by your example you invite others to think themselves loosed from that Obligation and that it is free for them to make any alteration in either as they shall think fit concluding your whole Paper with these words And this I understand as a part of my Oath which is a treasonable invasion upon the Royal Legislative Power as if it were lawful for you to make to your self an Act of Parliament since he who can make any part of an Act may make the whole the Power and Authority in both being the same Of the which Crimes above mentioned you the said Archibald Earl of Argyle are Actor Art and Part which being found by the Assize you ought to be punished with the pains of Death fortâ—ulture and escheat of Lands and Goods to the terror of others to commit the like hereafter An Abstract of the several Acts of Parliament upon which the Indictment against the Earl of Argyle was grounded Concerning raisers of Rumours betwixt the King and his people Chap. 20.1 Statutes of King Robert 1. IT is defended and forbidden That no man be a Conspirator or Inventer of Narrations or Rumours by the which occasion of discord may arise betwixt the King and his people And if any such man shall be found and attainted thereof incontinent be shall be taken and put in Prison and there shall be surely keeped up ay and while the King declare his will anent him Act 43. of Par. 2. King James 1. March 11. 1424. Leasing-makers forfault Life and Goods ITem It is ordained by the King and whole Parliament that all Leasingmakers and tellers of them which may engender discord betwixt the King and his people wherever they may be gotten shall be challenged by them that power has and ryne Lâ—â—e and Goods to the King Act 83. Par. 6. James 5. Dec. 10. 1540. Of Leasing-makers ITem Touching the Article of Leasing-makers to the Kings Grace of his Barons great men and Leiges and for punishment to be put to them therefore the Kings Grace with advice of his three Estates ratifies and approves the Acts and Statutes made thereupon before and ordains the same to be put in execution in all points and also Statutes and ordains That if any manner of person makes any evil Information of his Highness to his Barons and Leiges that they shall be punished in such manner and by the same punishment as
they that make Leasings to his Grace of his Lords Barons and Leiges Act 134. Par. 8. James 6. May 22. 1584. Anent Slanderers of the King his Progenitors Estate and Realm FOrasmuch as it is understood to our Soveraign Lord and his three Estates assembled in this present Parliament what great harm and inconveniency has fallen in this Realm chiefly since the beginning of the Civil troubles occurred in the time of his Highness minority through the wicked and licentious publick and private speeches and untrue calumnies of divers of his Subjects to the disdain contempt and reproach of His Majesty his Council and proceedings and to the dishonour and prejudice of his Highness his Parents Progenitors and Estate stirring up his Highness's Subjects thereby to misliking sedition unquietness and to cast off their due obedience to His Majesty to their evident peril tinsil and destruction his Highness continuing always in love and clemency toward all his good Subjects and most willing to seek the safety and preservation of them all which wilfully needlessly and upon plain malice after his Highness's mercy and pardon oft times afore granted has procured themselves by their treasonable deeds to be cut off as corrupt Members of this Commonwealth Therefore it is statute and ordained by our Soveraign Lord and his three Estates in this present Parliament that none of his Subjects of whatsoever Function Degree or Quality in time coming shall presume or take upon hand privately or publickly in Sermons Declanations and familiar Conferences to utter any false slanderous or untrue Speeches to the disdain reproach and contempt of His Majesty his Council and proceedings or to the dishonour hurt or prejudice of his Highness his Parents and Progenitors or to meddle in the Affairs of his Highness and his Estate present by-gone and in time coming under the pains contained in the Acts of Parliament anent makers and tellers of Leasings certifying them that shall be tryed contraveeners thereof or that hear such slanderous Speeches and reports not the same with diligence the said pain shall be executed against them with all rigour in example of others Act 205. Par. 14 King James 6. June 8. 1594. Anent Leasing-makers and Authors of Slanders OUR Soveraign Lord with advice of his Estates in this present Parliament ratifies approves and for his Highness and Successors perpetually confirms the Act made by his Noble Progenitors King James the First of Worthy Memory against Leasing-makers the Act made by King James the Second entituled Against Leasing-makers and tellers of them the Act made by King James the Fifth entituled Of Leasing-makers and the Act made by his Highness's self with advice of his Estates in Parliament upon the 22d day of May 1584. entituled For the punishment of the Authors of Slanders and untrue Calumnies against the Kings Majesty his Council and proceedings to the dishonour and prejudice of his Highness his Parents Progenitors Crown and Estate as also the Act made in his Highness's Parliament holden at Linlithgow upon the 10th of December 1585. entituled Against the Authors of slanderous Speeches or Writs and statutes and ordains all the said Acts to be published of new and to be put in execution in time coming with this addition That whoever hears the said Leasings Calumnies or slanderous Speeches or Writs to be made and apprehends not the Authors thereof if it lies in his power and reveals not the same to his Highness or one of his Privy Council or to the Sheriff Steward or Bayliff of the Shire Stewards in Regality or Royalty or to the Provost or any of the Bayliffs within Burgh by whom the same may come to the knowledge of his Highness or his said privy-Privy-Council where through the said Leasing makers and Authors of slanderous Speeches may be called tryed and punished according to the said Acts The hearer and not apprehender if it lye in his power and concealer and not revealer of the said Leasing makers and Authors of the said slanderous Specches or Writs shall incur the like pain and punishment as the principal Offender Act 107. Par. 7. King James 1. March 1. 1427. That none interpret the Kings Statutes wrongously ITem the King by deliverance of Council by manner of Statute forbids That no man interpret his Statutes otherwise than the Statutes bear and to the intent and effect that they were made for and as the maker of them understood and who so does in the contrary shall be punished at the Kings will Act 10. Par. 10. King James 6. Dec. 10. 1585. Authors of slanderous Speeches or Writs should be punished to the Death IT is statuted and ordained by our Soveraign Lord and three Estates that all his Highness's Subjects content themselves in quietness and dutiful obedience to his Highness and his Authority and that none of them presume or take upon hand publickly to declaim or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws and Acts of Parliament or misconstrue his proceedings whereby any misliking may be moved betwixt his Highness and his Nobility and loving Subjects in time coming under the pain of Death certifying them that do in the contrary they shall be reputed as seditious and wicked Instruments enemies to his Highness and the Commonwealth of this Realm and the said pain of Death shall be executed upon them with all rigour in example of others Act for preservation of His Majesties Person Authority and Government May 1662. And further it is by His Majesty and Estates of Parliament declared statuted and enacted That if any person or persons shall by writing printing praying preaching libelling remonstrating or by any malicious or advised speaking express publish or declare any words or sentences to stir up the people to the hatred or dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastical or of the Government of the Church by Archbishops and Bishops as it is now settled by Law That every such person or persons so offending and being legally Convicted thereof are hereby declared incapable to enjoy or exercise any place or employment Civil Ecclesiastick or Military within this Church and Kingdom and shall be liable to such further pains as are due by the Law in such Cases Act 130. Par. 8. James 6. May 22. 1584. Anent the Authority of the three Estates of Parliament THE Kings Majesty considering the Honour and the Authority of his Supreme Court of Parliament continued past all memory of man unto their days as constitute upon the free Votes of the three Estates of this ancient Kingdom by whom the same under God has ever been upholden Rebellious and Traiterous Subjects punished the Good and Faithful preserved and maintained and the Laws and Acts of Parliament by which all men are governed made and established And finding the Power Dignity and Authority of the said Court of Parliament of late years called in some doubt at least some curiously travelling
to have introduced some Innovation there anent His Majesties firm will and mind always being as it is yet That the Honour Authority and Dignity of his said three Estates shall stand and continue in their own Integrity according to the ancient and laudable custom bygone without any alteration or diminution Therefore it is statuted and ordained by our said Soveraign Lord and his said three Estates in this present Parliament That none of his Leiges or Subjects presume or take upon hand to impugn the Dignity and Authority of the said three Estates or to seek or procure the innovation or diminution of the Power and Authority of the same three Estates or any of them in time coming under the pain of Treason The Earl of Argyle 's first Petition for Advocates or Council to be allowed him To his Royal Highness His Majesties High Commissioner and to the Right Honourable the Lords of His Majesties Privy-Council The Humble Petition of Archibald Earl of Argyle SHEWETH THat your Petitioner being Criminally Indicted before the Lords Commissioners of Justitiary at the instance of His Majesties Advocate for Crimes of an high Nature And whereas in this Case no Advocate will readily plead for the Petitioner unless they have your Royal Highness's and Lordships Special License and Warrant to that effect which is usual in the like Cases It is therefore humbly desired that Your Royal Highness and Lordships would give special Order and Warrant to Sir George Lockhart his ordinary Advocate to consult and plead for him in the foresaid Criminal Process without incurring any hazard upon that account and your Petitioner shall ever pray Edinburgh Novemb. 22. 1681. The Councils Answer to the Earl of Argyl's first Petition about his having Advocates allowed him HIS Royal Highness his Majesties High Commissioner and Lords of Privy-Council do refuse the desire of the above-written Bill but allows any Lawyers the Petitioners shall employ to consult and plead for him in the Process of Treason and other Crimes to be pursued against him at the instance of His Majesties Advocate Extr. By me Will. Paterson The Earl of Argyl's second Petition for Council to be allowed him To His Royal Highness His Majesties High Commissioner and to the Right Honourable the Lords of His Majesties Privy-Council The humble Petition of Archibald Earl of Argyle SHEWETH THat your Petitioner having given in a former Petition humbly representing That he being Criminally Indicted before the Lords Commissioners of Justitiary at the instance of His Majesties Advocate for Crimes of an high Nature And therefore desiring that Your Royal Highness and Lordships would give special Warrant to Sir George Lockbart to consult and plead for him Whereupon your Royal Highness and Lordships did allow the Petitioner to make use of such Advocates as he should think fit to call Accordingly your Petitioner having desired Sir George Lockhart to consult and plead for him he hath as yet refused your Petitioner And by the 11. Patliament of King James the VI. Cap. 38. As it is the undeniable priviledge of all Subjects accused for any Crimes to have liberty to provide themselves of Advocates to defend their Lives Honour and Lands against whatsoever accusation so the same Priviledge is not only by Parliament 11. King James the VI. Cap. 90. Farther asserted and confirmed but also it is declared That in case the Advocates refuse the Judges are to compel them least the party accused should be prejudged And this being an affair of great importance to your Petitioner and Sir George Lockhart having been not only still his ordinary Advocate but also by his constant converse with him is best known to your Petitioners Principles and of whose eminent abilities and fidelity your Petitioner as many others have hath had special proof all along in his Concerns and hath such singular confidence in him that he is most necessary to your Petitioner at this occasion May it therefore please Your Royal Highness and Lordships to interpose your Authority by giving a special Order and Warrant to the said Sir George Lockhart to consult and and plead for him in the said Criminal Process conform to the tenor of the said Acts of Parliament and constant known practice in the like Cases which was never refused to any Subject of the meanest quality even to the greatest Criminals And your Royal Highness's and Lordships Answer is humbly craved Edinburgh Novemb. 24. 1681. The Councils Answer to the Earl of Argyle 's second Petition HIS Royal Highness His Majesties High Commissioner and Lords of Privy Council having considered the foresaid Petition do adhere to their former Order allowing Advocates to appear for the Petitioner in the Process foresaid Extr. By me Will. Paterson The Earl of Argyle 's Letter of Attorney constituting Alexander Dunbar his Procurator for requiring Sir George Lockhart to plead for him WE Archibald Earl of Argyle do hereby substitute constitute and ordain Alexander Dunbar our Servitor to be our Procurator to pass and require Sir George Lockhart Advicate to consult and plead for us in the Criminal Process intended against us at the instance of His Majestics Advocate and to compear with us before the Lords Commissioners of Justitiary upon the 12th of December next conform to an Act of Council dated the 22d of Novemb. instant allowing any Lawyers that we should employ to consult and plead for us in the said Process and to another Act of Council of the 24th of Novemb. instant relative to the former and conform to the Acts of Parliament In witness whereof we have Subscribed these presents at Edinburgh-Castle Nov. 26. 1681. before these Witnesses Duncan Camphell Servitor to James Glen Stationer in Edinburgh and John Thom Merchant in the said Burgh ARGYLE Witnesses Duncan Camphell John Thom Witnesses An Instrument whereby the Earl of Argyle required Sir George Lockhart to appear and plead for him Apud Edenburgum vigesimo sexto die Mensis Novembris Anno Domini millesimosex centesimo octuagesimo primo Anno Regni Car. 2. Regis trigesimo tertio THE which day in presence of me Notar publick and Witnesses under subscribed compeared personally Alexander Dunbar Servitor to a Noble Earl Archibald Earl of Argyle as Procurator and in name of the said Earl conform to a Procuration subscribed by the said Earl at the Castle of Edinburgh upon the twenty first day of November 1681. making and constituting the said Alexander Dunbar his Procurator to the effect under-written and past to the personal presence of Sir George Lockhart Advocate in his own Lodging in Edinburgh having and holding in his hands an Act of His Majesties Privy Council of the date the 22d of November 1681. instant proceeding upon a Petition given in by the said Earl of Argyle to the said Lords shewing That he being Criminally Indicted before the Lords Commissioners of Justitiary at the instance of His Majesties Advocate for Crimes of an high Nature and whereas in that Case no Advocates would readily plead for the said
eminence and worth And I here shall set it under my Hand to witness against all my Informers that none did with more passion nor shall with more continued zeal witness themselves to be true Honourers of you than he who desires infinitely to be esteemed My Lord Your most Humble Servant GLENCAIRN What I cannot well write I hope this discreet Gentleman will tell you in my Name and I shall only beg leave to say that I am your most Noble Ladies Humble Servant After the reading of which order and letters which yet the Court refused to record The Earl's Advocate or Council Sir George Lockhart said in his defence as follows Sir George Lockhart 's Argument and Plea for the Earl of Argyle SIR George Lockhart for the Earl of Argyle alledgeth That the Libel is not Revelant and whereupon he ought to be but to the knowledge of an Inquest For It is alledged in the general That all Criminal Libels whereupon any persons Life Estate and Reputation can be drawn in question should be founded upon clear positive and express Acts of Parliament and the matter of Fact which is libelled to be the Contravention of those Laws should be plain clear and direct Contraventions of the same and not argued by way of Implications and Inferences Whereas in this Case neither the Acts of Parliament founded upon and libelled can be in the least the foundation of this Libel nor is the Explication which is pretended to be made by the Pannel at the time of the taking of his Oath if considered any Contravention of those Laws which being premised and the Pannel denying the Libel as to the whole Articles and Points therein contained it is alledged in special That the Libel in so far as it is founded upon the 21st Chap. Stat. 1. Robert 1. and upon 83d Act Par. 6. James 5. the 43d Act Par. 2. James 1. and upon the 83d Act Par. 10. James 5. and upon 84th Act Par. 8. James 6. and upon the 10th Act Par. 10. James 6. and upon the 2d Act Par. 1. Ses 2. of His Sacred Majesty and inferring thereupon That the Pannel by the pretended Explication given in by him to the Lords of His Majesties privy-Privy-Council as the sense of the Oath he had taken doth commit the Crime of Leasing-making and depraving His Majesties Laws The Inference and subsumption is most unwarrantable and the Pannel tho any such thing were acknowledged or proved can never be found guilty of contraveening these Acts of Parliament In respect it is evident upon perusal and consideration of these Acts of Parliament that they only concern the case of Leasing-making tending to Sedition and to beget Discord betwixt His Majesty and His Subjects and the dislike of His Majesties Government and the reproach of the same And the said Laws and Acts of Parliament were never understood or libelled upon in any other Sense And all the former Acts of Parliament which relate to the crime of Leasing-making in general terms and under the qualification foresaid as tending to beget discord betwixt his Majesty and his Subjects are explained and fully declared as to what is the true meaning and import thereof by the 134th Act Par. 8. James 6. which relates to the same Crime of Leasing-making and which is expresly described in these terms To be wicked and licentious publick and private Speeches and untrue Calumnies to the disdain and contempt of His Majesties Council and Proceedings and to the dishonour and prejudice of his Highness and his Estate stirring up his Highness's Subjects to misliking and Sedition and unquietness which being the true sense and import of the Acts of Parliament made against Leasing-makers there is nothing can be inferred from the Pannel's alledged Explication which can be wrested or construed to be a Contravention of these Laws In respect First It is known by the whole tenor of his Life and graciously acknowledged by His Sacred Majesty by a Letter under His Royal Hand that the Pannel did ever most zealously vigorously and faithfully promote and carry on His Majesties Service and Interest even in the worst and most difficult times Which is also acknowledged by a Pass under the Earl of Middleton's hand who had then a special Commission from His Majesty for carrying on His Majesties Service in this Kingdom as Lieutenant General under His Majesty and by a Letter under the Earl's hand of the dateâ— both which do contain high expressions of the Pannels Loyalty and of the great Services he had performed for His Majesties interest and His Majesty as being conscious thereof and perfectly knowing the Pannels Loyalty and his zeal and faithfulness for his Service did think fit to entrust the Pannel in Offices and Capacities of the greatest trust of the Kingdom And it is a just and rational presumption which all Laws makes and infers That the words and expressions of persons who by the tenor and course of their Lives have expressed their Duty and Loyalty to His Majesties Interest are ever to be interpreted and understood in meliorem partem And by way of Implication and Inference to conclude and and infer crimes from the same which the user of such words and expressions never mean'd nor designed is both unreasonable and unjust 2. As the foresaid Acts of Parliament made against Leasing makers and depravers of His Majesties Laws only proceed in the terms aforesaid where the words and speeches are plain tending to beget discord between the King and his Subjects and to the reproach and dislike of his Government and when the same are spoke and vented in a subdolous pernicious and fraudulent manner So they never were nor can be understood to proceed in the case of a person offering in the presence of a publick Judicature whereof he had the honour to be a Member his sincere and plain meaning and apprehension of what he conceived to be the true sense of the Act of Parliament imposing and enjoyning the Test There being nothing more opposite to the Acts of Parliament made against Leasing-making and venting and spreading abroad the same upon seditious designs than the foresaid plain and open declaration of his sense and apprehension what was the meaning of the said Act of Parliament And it is of no import to infer any crime and much less any of the crimes libelled albeit the Pannel had erred and mistaken in his apprehension of the Act of Parliament And it were a strange extention of the Act of Parliament made against Leasing-makers requiring the qualifications foresaid and the Acts against depraving His Majesties Laws to make the Pannel or any other person guilty upon the mistakes and misapprehensions of the sense of the Laws wherein men may mistake and differ very much and even eminent Lawyers and Judges So that the Acts of Parliament against Leasing making and depraving His Majesties Laws can only be understood in the express terms and qualifications foresaid Like as it neither is libelled nor can be proven that
the Pannel before he was called and required by the Lords of His Majesties privy-Privy-Council to take Oath did ever by word or practice use any reproachful speeches of the said Act of Parliament or of His Majesties Government But being required to take the Oath he did humbly with all submission declare what he apprehended to be the sense of the Act of the Parliament enjoyning the Test and in what sense he had freedom to take the same 3. The Act of Parliament enjoyning the Test does not enjoyn the same to be taken by all persons whatsoever but only prescribes it as a qualification without which persons could not assume or continue to act in publick Trust Which being an Oath to be taken by so solemn an invocation of the Name of Almighty God it is not only allowable by the Laws and customs of all Nations and the Opinion of all Divines and Casuists Popish or Protestant but also commended that where a Party has any scrupulosity or unclearness in his conscience as to the matter of the Oath that he should exhibit and declare the sense and meaning in which he is willing and able to take the Oath And it is not at all material whether the scruples of a mans conscience in the matter of an Oath be in themselves just or groundless it being a certain maxim both in Law and Divinity that Conscientia etiam erronea ligat And therefore tho the Pannel had thought fit for the clearing and exoneration of his own conscience in a matter of the highest concern as to his peace and repose to have exprest and declared the express sense in which he could take the Oath whether the said sense was consistent with the Act of Parliament or not yet it does not in the least import any matter of reproach or reflection upon the justice or prudence of the Parliament in imposing the said Oath but alenarly does evince the weakness and scrupulosity of a mans conscience who neither did nor ought to have taken the Oath but with an explanation that would have saved his conscience to his apprehension Otherwise he had grosly sinned before God even tho it was Conscientia errans And this is allowed and prescribed by all Protestant Divines as indispensibly necessary and was never thought to import any crime and is also commended even by Popish Casuists themselves who tho they allow in some cases of mental reservations and equivocations yet the express declaration of the sense of the party is allowed and commended as much more ingenious and tutius Remedium Conscientiae ne illaqueeter as appears by Bellarmine de Juramento and _____ upon the same Title de Interpretatione Juramenti and Lessius that famous Casuist de Justitia Jure Dubitatione 8 9. utrum si quis salvo animo aliquid Juramento promittat obligetur quale peccatum hoc sit And which is the general opinion of all Casuists and all Divines as may appear by Amesius in his Treatise de Conscientia Sanderson de Juramento Praelectione secunda And such an express Declaration of the sense and meaning of any party when required to take an Oath for no other end but for the clearing and exoneration of his own Conscience was never in the opinion of any Lawyer or any Divine construed to be the Crime of Leasing-making or of defamatory Libels or depraving of publick Laws or reproaching or misconstruing of the Government but on the contrary by the universal suffrage of all Protestant Divines there is expresly required in Cases of a scrupulous Conscience an abhorrence and detestation of all reserved senses and of all Amphibologies and Equivocations which are in themselves unlawful and reprobate upon that unanswerable Reason that Juramentum being the highest Act of Devotion and Religion in eo requiritur maxima simplicitas and that a party is obliged who has any scruples of Conscience publickly and openly to clear and declare the same 4. Albeit it is not controverted but that a Legislator imposing an Oath or any publick Authority before whom the Oath is taken may after hearing of the Sense and Explication which a person is willing to put upon it either reject or accept of the same if it be conceived not to be consistent with the genuine sense of the Oath Yet tho it were rejected it was never heard of or pretended that the offering of a sense does import a Crime but that notwithstanding thereof Habetur pro Recusante and as if he had not taken the Oath and to be liable to the certification of Law as if he had been a Refuser 5. The Pannel having publickly and openly declared the sense in which he was free to take the Oath it is offered to be proved that he was allowed and did accordingly proceed to the taking of the Oath and did thereafter take his place and sit and Vote during that Sederunt of Privy Council So as the pretended Sense and Explication which he did then emit and give can import no Crime against him 6. It is also offered to be proved that before the Pannel was required to take the Oath or did appear before his Royal Highness and Lords of Privy-Council to take the same there were a great many Papers spread abroad from persons and Ministers of the Orthodox Clergy and as the Pannel is informed some thereof presented to the Bishops of the Church in the name of Synods and Presbyteries which did in downright terms charge the Test and Oath with alledged contradictions and inconsistencies And for satisfaction whereof some of the Learned and Reverend Bishops of the Church did write a learned and satisfying Answer called A Vindication of the Test for clearing the Scruples Difficulties and Mistakes that were objected against it And which Vindication and Answer was exhibited and read before the Lords of His Majesties Privy Council and allowed to be printed and from which the Pannel argues 1. That it neither is nor can be pretended in this Libel that the alledged Explication wherein he did take the Oath does propose the scruples of his Conscience in these terms which were proposed by the Authors of these Objections which do flatly and positively assert that the Oath and Test do contain matters of inconsistency and contradiction whereas all that is pretended in this Libel with the most absolute violence can be put upon the words is arguing Implications and Inferences which neither the words are capable to bear nor the sincerity of the Earls intention and design nor the course of his by-past life can possibly admit of And yet none of the persons who were the Authors of such papers were ever judged or reputed Criminal or Guilty and to be prosecuted for the odious and infamous Crimes libelled of Treason Leasing-making Perjury and the like 2. The Pannel does also argue from the said matter of Fact that the alledged Explication libelled can neither in his intention and design nor in the words infer or import any Crime against him because
and publish their Proclamation explaining the Oath and declaring the genuine sense and meaning thereof namely That it did not tye to the whole Articles of the Confession of Faith ratified by Act of Parliament James 6. and which as to several Articles thereof had occasioned the scruples and difficulties and alledged inconsistency and contradiction betwixt the last part of the Oath and the said Confession and betwixt some of these Articles and the Currant of the Protestant Doctrine received and contained in the Syntagma of the Protestant Confessions And therefore if the Pannel at that time did think fit for the clearing and exoneration of his own Conscience to use the expressions in the Explication libelled and yet with so much duty and confidence of the Parliaments Justice as to their meaning and intention That the Parliament never intended to impose contradictory Oaths and that he did take it so far as it was consistent with it self and the Protestant Religion not knowing then whether the whole Confession was to be reputed a part of the Oath and doubting there-anent and which the Lords of His Majesties Privy-Council and his Sacred Majesty by his approbation since have thought a difficulty of so great moment as it was fit to clear the same by a publick Proclamation How now is it possible that any Judicatory under Heaven which proceeds upon the solid grounds of Law and Reason and who it cannot be doubted will have a just regard to the intrinsick Principles of Justice and to all mens security that they can now believe all or any of the Crimes libelled should be in the least inferred from all or any of the expressions contained in the said Explication But that on the contrary it was a warrantable allowance and Christian practice condemned by the Law and Custom of no Nation That having scruples in the matter of an Oath which should be taken in Truth Judgment and Righteousness and upon full deliberation and with a full assurance and sincerity of mind That he did plainly openly and clearly declare the sense in which he was willing to take it and if Authority did allow it as the genuine sense of the Oath the Pannel to be holden as a Taker of the Oath And if upon farther consideration Authority think not that habetur pro Recusante and a Refuser of the Oath but no ways to be looked upon as a criminal or guilty person And the Pannel repeats and conjoyns with this point of the Reply that point in his Defence whereby he positively offers to prove 1. That his Explication and the sense wherein he took the Oath was heard and publickly given and received in Council and the Pannel thereafter allowed to take his place and sit and vote in that Sederunt 2. The Pannel also offers positively to prove That the tenor and terms of his Sense and Explication wherein he did take the Oath is contained in that Solid Learned and Pious Vindication written by the Bishop of Edenburgh in answer to the Objections and alledged inconsistencies and contradictions in the Oath and which Vindication was publickly read in Council and so far approved that it was allowed to be printed and published and was accordingly dispersed and spread abroad And it is not of the least import that the Proclamation of the Lords of privy-Privy-Council altho it does oft allow the same to be taken by the Clergy yet at the same time they expresly declare the genuine sense and meaning of the Parliament not to comprehend the whole Articles of the Confession which was not cleared before the Pannel's taking his Oath And whereas it is pretended That the Acts of Parliament libelled upon against Leasing-makers depravers of His Majesties Laws do obtain and take place where-ever there are any words or expressions that have a tendency in themselves or by a natural consequence and rational inferences to reflect upon the Government or misconstrue His Majesties Proceedings and that the Explication libelled is such and that it was found so in the Case of Balmerino albeit it was drawn up by way of humble Petition and Address to His Majesty and with great Protestations and Expressions of Loyalty It is answered The Acts of Parliament libelled upon are oponed and the 43d Act Par. 8. James 6. and the other Acts making the depraving of His Majesties Laws to be Crimes do expresly require that Speeches so judged be perverse licentious Speeches ex natura sua probrosa and reproachful and spoke animo defamandi and which could not receive any other rational Construction which cannot in the least be applied to or subsumed upon the words or Explication given in by the Pannel And Law and Reason never infers or presumes a Crime where the thing is capable of a fair and rational Construction and where it was done palam and publickly and in presence of His Majesties High Commissioner and Lords of His Majesties Privy-Council whereof the Pannel had the honour to be a Member Persons committing and designing to commit Crimes making use of Times and Places and Companies of another nature on whom their suggestions and insinuations may prevail But it is a violence to the common Reason of mankind to pretend that a person of the Pannel's Quality having the honour to serve His Majesty in most eminent Capacities and devoted to His Majesties Interest and Service beyond the strictest ties of Duty and Allegiance by the transcendent Favours he had received that the Pannel in those Circumstances and in presence of his Royal Highness and Lords of Privy Council should design to declame and defacto declame against and defame His Majesties Government To suppose this is absolutely contradictory to the common Principles and Practices of Law and common Topicks of Reason And as to Balmerino's Case it is answered That the Lords of Justitiary are humbly desired to call for and peruse the said Petition and Books of Adjournal which was certainly a defamatory Libel of His Majesties Father of blessed Memory and of the States of Parliament in the highest degree being expresly that there was nothing designed but an innovation of the Protestant Religion and the subversion and over-turning the Liberties and Priviledges of the Parliament and the Constitutions of the Articles and other things of that kind which made certainly of it self a most villanous and execrable Libel containing the highest Crimes of Treason and Perduellion and was not capable of any good sense or interpretation but was absolutely pernicious and destructive So that it is in vain to pretend that the said Libel did contain Prefaces and Protestations of Loyalty which no Law regards even in simplici injuria maledicto tho committed by a private person cum praefatione salvo honore or the like and which were certainly ridiculous to sustain in a Libel concerning Crimesof Treason And whereas it is pretended That tho others were guilty of these Crimes it does not excuse the Earl that the Lords of Privy-Council cannot remit Crimes and the neligence
than the fore-mentioned of Religion Law and Reason which the Earl did of himself profer As for what His Majesty's Advocate adds That under such professions and reserves the late Rebellions and disorders have all been câ—rried on and fomented It is but a meer vapour for no Rebellion ever was or can be without a breach of one or other of the Earl's qualifications which doth sufficiently vindicate that part of the Earl's Explanation The Advocate insists much that Any is equivalent to All and that All comprehends Every particular under it which he would have to be the deadly Poyson in the Earl's words And yet the Earl may defy him and all his detracters to find out a Case of the least undutifulness much less of Rebellion that a Man can be guilty of while he keeps within the excellent Rules and Limitations wherewith his words are cautioned I could tell you further that so imaginary or rather extravagant and ridiculous is this pretended Treason that there is not a person in Scotland either of those who have refused or who by the Act are not called to take the Test that may not upon the same ground and words be impeach't viz. That they are not bound and so without doubt both may and do say it by the Test in their station c. to wish and endeavour any alteration c. Nay I desire the Advocate to produce the Man among those that have taken the Test that will affirm that by taking it he hath bound up himself never to wish or endeavour any alteration c. according to the Earl's qualifications and I shall name Hundreds to whom his Highness as you have heard may be added that will say they are not bound up So that by this conclusion if it were yielded all Scotland are equally guilty of Treason the Advocate himself to say nothing of His Royal Highness not excepted Or if he still think he is I wish he would testify under his hand to the World that by his Oath he is bound up never to wish nor endeavour any alteration he thinks to the advantage of Church or State in a lawful way nor in his station though neither repugnant to the Protestant Religion nor his Loyalty And if this he do he does as a Man if not of Sense at least of Honour but if not I leave a blank for his Epithets But that you may see that this whole affair is a deep Mystery pray notice what is objected against the last part of the Explanation This I understand as a part of my Oath Which says the Advocate is a Treasonable invasion upon the Royal Legislative power as if the Earl could make to himself an Act of Parliament since he who can make any part of an Act may make the whole And then say I farewell all Takers of the Test with an Explanation whether the Orthodox Clergy or Earl Queensberry tho himself Justice General who were allowed by the Council so to do seeing that whether they hold their Explanation for a part of their Oath or not yet others may and in effect all men of sense do understand it so And thus in the Advocate 's Opinion they have Treasonably invaded the Legislative Power and made an Act of Parliament to themselves Neither in that Case can the Councils allowance excuse them seeing not only the Earl had it as well as they but even the Council it self cannot make an Act of Parliament either for themselves or others But Sir I protest I am both ashamed and wearied of this trifling and therefore to shut up this Head I shall only give a few remarks First you may see by the Acts of Parliament upon which the Advocate founds his Indictment That as to Leasing-making and depraving Laws all of them run in these plain and sensible terms The inventing of Narrations the making and telling of Lies the â—ttering of wicked and untrue Calumnies to the slander of King and Government the depraving of his Laws and misconstruing his Proceedings to the engendering of discord moving and raising of batred and dislike betwixt the King and his People And as to Treason in these yet more positive terms That none impugn the dignity and authority of the Three Estates or seek or procure the innovation or diminution thereof Which are things so palpable and easily discerned and withal so infinitely remote both from the Earl's words and intentions or any tollerable construction can be put on either that I confess I never read this Indictment but I was made to wonder that its forger and maker was not in looking on it deterred by the just apprehensions he might have not only to be sometime accused as a manifest depraver of all Law but to be for ever accounted a gross and most disingenuous perverter of common sense The Earl's words are sober respectful and dutifully spoken for the exoneration of his own Conscience without the least insinuation of either reflection or slander much less the impugning of the Authority of Parliament as the Earl may appeal not only to His Majesty's true and Royal sense but to the most scrupulous and nice affecters of the exactest discerning besides that they were first formally tendered in Council for their approbation and by them directly allowed How then can any Man think that they could be charged with the greatest and vilest of crimes Leasing-making Depraving Perjury and Treason But the Advocate tells us That there are some things which the Law commonly forbids in general and that some inferences are as natural and strong and reproach as soon or sooner than the plainest defamations But what of all this Must therefore such generals be left to the phantastick application of every wild imagination to the confounding of the use of Speech and subverting of humane Society and not rather be still submitted to the judgment of common sense for their true and right understanding and the deducing thence these strong and natural inferences talk'd of Of which good sense if the Advocate do but allow a grain weight it is evident that the inferences he here Libels against the Earl must infallibly be cast and by all rational unbiassed men be found strange unnatural and monstrous For Sir Secondly pray observe these rational and sound Maxims he founds his Inferences on and they are manifestly these First That he who says he will only obey as far as be can invents a new way whereby no man is at all bound to obey 2dly That he who in the midst of Hundreds of exceptions and contradictions objected against an Oath injoyned by Act of Parliament and still unanswered says That he is confident the Parliament never intended to impose contradictory Oaths reproaches the Parliament 3dly That he that says he must explain an ambiguous Oath for himself before he take it renders all Laws and Oaths useless and makes himself the Legislator 4thly That he that says that he takes this Oath as far as it is consistent with it self and the Protestant
another making a Speech that no Man understood a third all the time of the reading repeating Lord have mercy upon me miserable sinner Nay even an Advocate after being debarred a few days because albeit no Clerk yet he would not take it without the benefit of his Clergy viz. the Councils Explanation was yet thereafter admitted without the Warrant of the Councils Act but all this in the Case of so many other was right and good Further the Council expresly declare the Earl to be Guilty before he had ever said one word in his own defence Thereafter some of them become his Assizers and others of them witness against him and after all they do of new concern themselves by a Second Letter to His Majesty wherein they assert That after full debate and clear probation he was found guilty of Treason c. to have a sentence past against him and that of so high a nature and so dreadful a consequence as suffers no person to be unconcerned far less their Lordships his Judges who upon grounds equally just and which is more already predetermined by themselves may soon meet with the same measure not only as Concealers of Treason but upon the least pretended disobedience or non-compliance with any Act of Parliament and after all must infallably render an account to God Almighty He bids them therefore lay their hands to their bearts and whatever they shall judge he is assured that God knows and he hopes all unblassed men in the World will or may know he is neither guilty of Treason nor any of the Crimes libelled He says he is glad how many out-do him in asserting the true Protestant Religion and their Loyalty to His Majesty only he hadds If he could justify himself to God as he can to His Majesty he is sure he might account himself the happiest man alive But yet seeing he hath a better hope in the mercy of God through Jesus Christ he thereupon rests whether he finds Justice here on Earth or not He says he will add nothing to move them either to tenderness or pity he knows that not to be the place and pretends to neither from them He pleads his Innocence and craves Justice leaving it to their Lordships to consider not so much his particular Case as what a Preparative it may be made and what may be its Consequences And if all he hath said do neither convince nor persuade them to alter their judgment yet he desires them to consider whether the Case do not at least deserve to be more fully represented and left to His Majecty's wisdom and justice seeing that if once the matter pass upon record for Treason it is undoubted that hundreds of the best and who think themselves most innocent may by the same methods fall under the like Condemnation whenever the King's Advocate shall be thereto prompted And thus you have a part of what the Earl intended to have said before pronouncing Sentence if he had not made his Escape before the day Yet some things I perceive by his Notes are still in his own breast as only proper to be said to His Majesty I find several Quotations out of the Advocate 's printed Books that it seems he was to make some use of but seeing it would have been too great an interruption to have applied them to the places designed I have subjoined them together leaving them to the Advocate 's own and all mens consideration It was by some remarked That when the Lords of Justitiary after the ending of the first days debate resolved that same night to give judgment upon it they sent for the Lord Nairn one of their number an old and infirm man who being also a Lord of the Session is so decayed through age that he hath not for a considerable time been allowed to take his turn in the Outer-house as they call it where they judge lesser Causes alone But notwithstanding both his age and infirmity and that he was gone to bed he was raised and brought to the Court to consider a Debate a great deal whereof he had not heard in full Court and withal as is informed while the Clerk was reading some of it fell of new asleep It was also remarked that the Lords of Justitiary being in all five viz. the Lord Nairn above-mentioned with the Lords Collintoun Newtoun Hirkhouse and Forret the Libel was found relevant only by the odds of three to two viz. the Lord Nairn aforesaid the Lord Newtoun since made President of the Session and the Lord Forret both well enough known against the Lord Collintoun a very ingenious Gentleman and a true old Cavalier and the Lord Hirkhouse a learned and upright Judge As for the Lord Justice General who was also present and presided his vote according to the constitution of the Court was not asked But to return to my Narrative the Earl as I have already told you did not think fit for reasons that you shall hear to stay till His Majesty's return came to the Council's last Letter but taking his opportunity made his escape out of the Castle of Edinburgh upon Tuesday the Twentieth of December about eight at night and in a day or two after came His Majesty's Answer here subjoined The King's Answer to the Council's Letter December 18. 1681. C. R. MOST dearly c. having this day received your Letter of the 14th instant giving an account that our Advocate having been ordered by you to insist in that Process raised at our instance against the Earl of Argyle he was after full debate and clear probation found guilty of Treason and Leasing-making betwixt us our Parliament and our People and the reproaching our Laws and Acts of Parliament We have now thought fit notwithstanding of what was ordered by us in our Letter to you of the 15th of November last hereby to authorize you to grant a Warrand to our Justice General and the remanent Judges of our Justice Court for proceeding to pronounce a Sentence upon the Verdict of the Jury against the said Earl nevertheless it is our express pleasure and we do hereby require you to take care that all execution of the Sentence be stopped until we shall think fit to declare our further pleasure in this Affair For doing whereof c. Which Answer being read in Council on the Thursday and the Court of Justiciary according to its last Adjournment as shall be told you being to meet upon the Friday after a little hesitation in Council whether the Court of Justiciary could proceed to the Sentence of Forfaulture against the Earl he being absent it was resolved in the affirmative And what were the grounds urged either of hesitation or resolution I cannot precisely say there being nothing on record that I can learn But that you may have a full and satisfying account I shall briefly tell you what was ordinarily discoursed a part whereof I also find in a Petition given in by the Countess of Argyle to the Lords
certain that in all Absolute Governments the poorest Countreys are always most favourably dealt with When the Ancient Nobility and Gentry there cannot enjoy their Royalties their Shrevaldoms and their Stewardaries which they and their Ancestors have possessed for several hundreds of years but that now they are enjoyned by the Lords of the Council to make Deputations of their Authorities to such as are their known Enemies Can we expect to enjoy our Magna Charta long under the same Persons and Administration of Affairs If the Council-Table there can Imprison any Nobleman or Gentleman for several years without bringing him to Trial or giving the least Reason for what they do can we expect the same Men will preserve the Liberty of the Subject here I will acknowledge I am not well vers'd in the particular Laws of Scotland but this I do know that all the Nothern Countries have by their Laws an undoubted and inviolable Right to their Liberties and Properties yet Scotland hath out-done all the Eastern and Southern Countries in having their Lives Liberties and Estates subjected to the Arbitrary Will and Pleasure of those that Govern They have lately plundered and harrassed the richest and wealthiest Countries of that Kingdom and brought down the Barbarous Highlanders to devour them and all this without almost a colourable Pretence to do it Nor can there be found a Reason of State for what they have done but that those wicked Ministers designed to procure a Rebellion at any Rate which as they managed was only prevented by the miraculous Hand of God or otherwise all the Papists in England would have been Armed and the fairest Opportunity given in the just time for the Execution of that Wicked and Bloudy Design the Papists had and it is not possible for any Man that duly considers it to think other but that those Ministers that Acted that were as guilty of the Plot as any of the Lords that are in question for it My Lords I am forced to speak this the plainer because till the Pressure be fully and clearly taken off from Scotland 't is not possible for me or any Thinking Man to believe that Good is meant us here We must still be upon our Guard apprehending that the Principle is not changed at Court and that these Men that are still in Place and Authority have that Influence upon the Mind of our Excellent Prince that he is not nor cannot be that to us that his own Nature and Goodness would incline him to I know your Lordships can order nothing in this but there are those that hear me can put a perfect Cure to it until that be done the Scottish Weed is like Death in the Pot Mors in Olla But there is something too now I consider that most immediately concerns us their Act of Twenty two thousand Men to be ready to invade us upon all Occasions This I hear that the Lords of the Council there have treated as they do all other Laws and expounded it into a standing Army of Six thousand Men. I am sure we have Reason and Right to beseech the King that that Act may be better considered in the next Parliament there I shall say no more for Scotland at this time I am afraid your Lordships will think I have said too much having no concern there But if a French Noble-Man should come to dwell in my House and Family I should think it concern'd me to ask what he did in France for if he were there a Felon a Rogue a Plunderer I should desire him to live elsewhere and I hope your Lordships will do the same thing for the Nation if you find the same cause My Lords give me leave to speak two or three Words concerning our other Sister Ireland thither I hear is sent Douglas's Regiment to secure us against the French Besides I am credibly informed that the Papists have their Arms restored and the Protestants are not many of them yet recovered from being the suspected Party the Sea-Towns as well as the In-land are full of Papists That Kingdom cannot long continue in the English Hands if some better Care be not taken of it This is in your Power and there is nothing there but is under your Laws therefore I beg that this Kingdom at least may be taken in consideration together with the State of England For I am sure there can be no Safety here if these Doors be not shut up and made sure THE INSTRUMENT OR Writing of Association THAT THE True Protestants of ENGLAND entred into IN THE Reign of Q. Elizabeth FOrasmuch as Almighty God hath Ordained Kings Queens and Princes to have Dominion and Rule over all their Subjects and to preserve them in the Possession and Observation of the true Christian Religion according to his holy Word and Commandment And in like sort that all Subjects should Love Fear and Obey their Soveraign Princes being Kings or Queens to the utmost of their Power at all times to withstand pursue and suppress all manner of Persons that shall by any means intend and attempt any thing dangerous or hurtful to the Honour States or Persons of their Soveraigns Therefore we whose Names are or shall be subscribed to this Writing being Natural Born Subjects of this Realm of England and having so gracious a Lady our Soveraign Elizabeth by the Ordinance of God our most rightful Queen Reigning over us these many Years with great Felicity to our inestimable Comfort And finding lately by divers Depositions Confessions and sundry Advertisements out of Foreign Parts from credible Persons well known to her Majesties Council and to divers others That for the furtherance and Advancement of some pretended Title to the Crown it hath been manifested that the Life of our gracious Soveraign Lady Queen Elizabeth hath been most dangerously to the Peril of her Person if Almighty God her perpetual Defender of his Mercy had not revealed and withstood the same By whose Life we and all other her Majesties True and Loyal Subjects do enjoy an inestimable benefit of Peace in this Land do for the Reasons and Causes before alledged not only acknowledge our selves most justly bound with our Lives and Goods for her Defence in her Safety to persecute suppress and withstand all such Intenders and all other her Enemies of what Nation Condition and Degree whatsoever they shall be or by what Council or Title they shall pretend to be her Enemies or to attempt any Harm upon her Person but do further think it our bounden Duties for the great Benefit of Peace Wealth and Godly Government we have more plentifully received these many Years under her Majesties Government then any of our Forefathers have done in any longer time of any other Progenitors Kings of this Realm Do declare and by this Writing make manifest our bounden Duties to our said Sovereign Lady for her Safety And to that end We and every of us First Calling to Witness the Name of Almighty God do Voluntarily and
this Army was marched and led into a peaceable Country and did take free Quarters according to their Commissions and in most places levied great Sums of Money under notion of dry Quarters and did plunder and rob your Subjects of which no redress could be obtained though Complaints were frequently made all which were expresly contrary to the Laws of the Kingdom 2. In their Quarters it was apparent that regard was only had to the Dukes private Animosities for the greatest part of those places that were most quartered on and destroyed had not been guilty of the Field-Conventicles complained of and many of the places that were most guilty were spared upon private Considerations 3. The Subjects at that time were required to subscribe an exorbitant and illegal Bond which was impossible to be performed by them that they their Wives and Children and Servants should live orderly according to Law not go to Conventicles or entertain vagrant Preachers with several other particulars by which Bond those that signed it were made lyable for every Man's fault that lived upon their Ground 4. Your Majesty's Subjects were charged with Laborrows denounced Rebels and Captions were issued out for seizing their persons upon their refusing to sign the aforesaid Bond and the Nobility and Gentry there who have ever been faithful to your Majesty and had appeared in Arms for suppressing the last Rebellion were disarmed upon Oath A Proclamation was also issued forbidding them upon great Penalty to keep any Horses above four Pounds ten groats price 5. The Nobility and Gentry of the Shire of Ayre were also indicted at the instance of your Majesty's Advocate of very high Crimes and Misdemeanors whereof some did import Treason These Indictments were delivered them in the Evening to be answered by them the next Morning upon Oath and when they did demand two or three days time to consider of their Indictments and crave the benefit of Lawyers to advise with in matters of so high concernment and also excepted to their being put to swear against themselves in matters that were Capital which was contrary to all Law and Justice those their desires were rejected though the like had never been done to the greatest Malefactor in the Kingdom And it was told them they must either swear instantly or they would repute them guilty and proceed accordingly 6. The Noblemen and Gentlemen knowing themselves innocent of all that had been surmised against them did purge themselves by Oath of all the particulars that were objected to them and were thereupon acquitted And though the Committee of the Council used the severest manner of enquiry to discover any Seditious or Treasonable Designs which were pretended as the grounds of leading in that Army into those Countries yet nothing could ever be proved so false was that Suggestion concerning a Rebellion then designed that was offered to your Majesty and prevailed with you for sending the aforementioned Letter 7. The Oppressions and Quarterings still continued The Noblemen and Gentry of those Countries went to Edenburgh to present to your Council the heavy Pressure that they and their people lay under and were ready to offer to them all that in Law or Reason could be required of them for securing the peace The Council did immediately upon their appearing there set forth a Proclamation requiring them to depart the Town within three days upon all highest pains and when the Duke of Hamilton did petition for leave to stay two three or days longer for some very urgent Affairs that was refused him 8. When some Persons of Quality had declared to the Duke of Lauderdale that they would go to represent their condition to your Majesty if they could not have Justice from your Ministers for preventing that a Proclamation was set forth forbidding all the Subjects to depart the Kingdom without License that so your Majesty might not be acquainted with the said condition of your Subjects from making their application to your Majesty no less contrary to your Majesty's true Interest who must always be the Refuge of his People than to the natural right of the Subject The former Particulars relate to the Invasion of the Rights of great numbers of your Subjects all at once What follow have indeed only fallen on some single persons yet are such that your whole People apprehend they may be all upon the slightest occasions brought under the like Mischiefs 1. The Council hath upon many occasions proceeded to a new kind of Punishment of declaring men uncapable of all publick Trust concerning which your Majesty may remember what Complaints the said Duke made when during the Earl of Middleton's Administration he himself was put under and incapacitated by an Act of Parliament The Words of his Paper against the Earl of Middleton are Uncapacitating was to whip with Scorpions a punishment to rob men of their Honour and to lay a lasting stain upon them and their Posterity And if this was complained of when done by the highest Court of Parliament your Majesty may easily conclude it cannot be done in any lower Court But yet notwithstanding it is become of late years an ordinary Sentence in Council when the least Complaints are brought against any with whom the Duke of Lauderdale and his Brother are offended Instances of this are The declaring Thirteen worthy Citizens of Edenburgh uncapable of publick Trust against whom no Complaint was ever made to this day as your Majesty will perceive by a Paper more fully concerning that Affair The true cause of it was that those men being in the Magistracy that Duke and his Brother could not get a vast Bribe from them out of the Towns-money which was afterwards obtained when they were removed The Provost of Glascow Aberdeen and Jadburgh were put under the same Sentence for signing a Letter to your Majesty in the Convention of the Burroughs with the rest of that Body which Letter was advised by him who is now your Majesty's Advocate as that which had nothing in it which could bring them under any guilt and yet those three were singled out of the whole number and incapacitated besides an high Fine and long Imprisonment as to your Majesty will more fully appear by another Paper Sir Patrick Holme of Polworth being sent by the Shire of Berwick to complain of some illegal Proceedings and to obtain a legal remedy to them which he did only in the common Form of Law was also declared uncapable of publick Trust besides many months Imprisonment The Provost of Linlythgo being complained of for not furnishing some of your Forces with Baggage Horses was called before the Council and because he said they were not bound in Law to furnish Horses in such manner he was immediately declared incapable of publick Trust and was both fined and imprisoned There are also fifty of the Town of St. Johnstons incapacitated upon a very slight pretence so that it 's very impossible for them to find a sufficient number of Citizens for the Magistracy
of that Town 2. Your Subjects are sometimes upon slight and sometimes upon no grounds imprisoned and often kept Prisoners many Months and years nothing being objected to them and are required to enter themselves Prisoners which is contrary to Law It was in the former Article expressed that many of these Persons declared incapable of publick Trust did also suffer Imprisonment and besides these instances Lieutenant General Drummond whose eminent Loyalty and great Services are well known to your Majesty was required to enter himself Prisoner in the Castle of Dunbarton where he was kept one year and a half and was made a close Prisoner for nine months of that time and yet nothing was ever objected to him to this day to justifie that Usage The Lord Cardross was for his Ladies keeping two Conventicles in her own House at which he was not present fined 110 l. and hath now been kept prisoner four years in the Castle of Edenburg where he still remains although he hath often petitioned for his Liberty and Sir Patrick Holme hath been now a second time almost one year and nothing is yet laid to his charge Besides these illegal Imprisonments the Officers of your Majesties Forces frequently carry Warrants with them for apprehending persons that are under no legal Censure nor have been so much as cited to appear which hath put many of your Subjects under great fears especially upon what was done in Council three years ago Captain Carstairs a man now well enough known to your Majesty did intrap one Kirkton an outed Minister into his Chamber at Edenburgh and did violently abuse him and designed to have extorted some money from him The noise of this coming to the Ears of one Baily Brother-in-law to the said Kirkton he came to the house and hearing him cry Murder Murder forced open the Chamber door where he found his Brother-in-law and the Captain grapling the Captain pretended to have a Warrant against Kirkton and Baily desired him to shew it and promised that all obedience should be given to it But the Captain refusing to do it Kirkton was rescued This was only delivering a man from the hands of a Robber which Nature obligeth all men to do especially when joyned with so near a Relation The Captain complained of this to the Council and the Lord Hatton with others were appointed to examine the Witnesses And when it was brought before the Council the Duke of Hamilton Earls of Mereton Dumfrize and Kinkarden the Lord Cocheren and Sir Archibald Primrose then Lord Register desired that the Report of the Examination might be read but that not serving their ends was denyed And thereupon those Lords delivered their Opinion that fithence Carstares did not shew any Warrant nor was cloathed with any publick Character it was no opposing of your Majesties Authority in Baily so to rescue the said Kirkton yet Baily was for this fined in 6000. Marks and kept long a Prisoner Those Lords were upon that so represented to your Majesty that by the Duke of Lauderdale's procurement they were turned out of the Council and all command of the Militia And it can be made appear that the Captain had at that time no Warrant at all against Kirkton but procured it after the Violence committed And it was ante-dated on design to serve a turn at that time This manner of Proceedings hath ever since put your subjects under sad apprehensions There is one particular further offered to your Majesties consideration concerning their way of using Prisoners There were 14 men taken at a Field Conventicle who without being legally Convict of that or any other crimes were secretly and in the night taken out of Prison upon a Warrant signed by the Earl of Lynlythgo and the Lord Hatton and Collington and were delivered to Captain Maytland who had been Page to the Duke of Lauderdale but was then a French Officer and was making his Levies in Scotland and were carryed over to the service of the French King in the year 1676. 3. The Council hath upon many occasions proceeded to most unreasonable and Arbitrary Fines either for slight offences or for offences where the Fine is regulated by Law which they have never considered when the persons were not acceptable to them So the Lord Cardross was Fined in 1111 l. for his Ladies keeping two Conventicles in his house and Christning a Child by an outed Minister without his knowledge The Provost formerly mentioned and Baily with many more were also fined without any regard to Law The Council hath at several times proceeded to the taking of Gentlemens Dwelling-houses from them and putting Garrisons in them which in time of peace is contrary to Law In the year 75. It was designed against twelve of your Majesties Subjects and was put in Execution in the houses of the Earl of Calender the Lord Cardrosse the Lady Lumsden c. and was again attempted in the year 78. the Houses belonging to the Leirds of Cosnock Blagan and Rowal and were possessed by Souldiers and declared Garrisons Nor did it rest there but Orders were sent from the Council requiring the Countries about those Houses to furnish them for the Souldiers use and to supply them with necessaries much contrary to Law It was against this that Sir Patrick Holme came to desire a remedy and common Justice being denied him he used a legal Protestation in the ordinary Form of Law and was thereupon kept for many Months a Prisoner and declared incapable of all publick trust c. There is another particular which because it is so odious is unwillingly touched yet it is necessary to inform your Majesty about it for thereby it will appear that the Duke of Lauderdale and his Brother have in a most solemn manner broken the publick faith that was given in your Majesties name One Mitchel being put in Prison upon great suspicion of his having attempted to murder the late Arch Bishop of St. Andrews and there being no Evidence against him Warrant was given by the Duke of Lauderdale then your Majesties Commissioner and your Council to promise him his life if he would confess Whereupon he did confess and yet some years after that person who indeed deserved many deaths if there had been any other Evidence against him was upon that confession convicted of the Crime and the Duke of Lauderdale and his Brother being put to it by him did swear that they never gave or knew of any assurance of life given him And when it was objected that the promise was upon Record in the Council books the Duke of Lauderdale did in open Court where he was present only as a Witness and so ought to have been silent threaten them if they should proceed to the Examination of that Act of Council which as he then said might infer perjury on them that swore and so did cut off the proof of that defence which had been admitted by the Court as good in Law and sufficient to save the Prisoner if
the more useless to both and the less comfortable to my self His Highness said he knew no more then what he had said the Earl then said it was late and he would wiat on his Highness some other time about these matters But the thing that at present presses says the Earl is That I hear one of the Clerks of Council is appointed to tell me to be at the Council to morrow I conceive to take the Test Pray what is the haste may not I with Your Highnesses favour have the time allowed by the Act of Parliament His Highness said No. The Earl urged it again but in vain And all the delay he could obtain was till Thursday the Third of November the next Council day in course The Earl said he was the less fond of the Test that he found that some that refused it were still in favour and others that had taken it turned out as the Register at which His Highness only laught But Sir said the Earl how comes Your Highness to press the Test so hastily Sure there are some things in it Your Highness doth not â—ver much like Then said His Highness angerly and in a passion most true that Test was brought into the Parliament without the Confession of Faith But the late President caused put in the Confession which makes it such as no honest Man can take it The Earl said he had the more reason to advise Whereby you may see whether his Highness then thought the Confession was to be Sworn to in the Test or not After this the Earl waited several times on his Highness and made new attempts for the favour of a delay but with no success What passed in private shall not be repeated except so far as is absolutely necessary to evince the Earl his innocency and to shew that in what he did he had no ill design nor did in the least prevaricate or give any offence willingly but was ready to comply as far as he could with a good conscience It was in this interval that the Earl spoke with the Bishop of Edinburgh and saw his Vindication of the Test and all the Explanations I here send you only the Councils explanation was not yet thought on And that all the Bishop did then urge the Earl with beyond what is in his Vindication was to have a care of a noble Family and to tell him that the opposing the exception of the Kings Sons and Brothers from taking the Test had fired the kiln At the last upon Wednesday the second of November late the Earl waited on his Highness and did in the most humble and easie expressions he could devise decline the present taking of the Test but if his Highness would needs have a present answer he beg'd his favour that he would accept of his refusing it in private which was denied again Then he said if his Highness would allow him time to go home and consider he would either give satisfaction or the time prescribed by the Act of Parliament would elapse and so he would go off in course and without noise But this also his Highness absolutely refused Upon which the Earl asked what good his appearing in Council to refuse there would do His Highness was pleased to answer that he needed not appear but to employ some friend to speak for him and his Highness himself named one This the Earl yielded to as the best of a bad choice and said he should either use the person named by his Highness or some other Relation that were a Councellor and in Town And in compliance with his Highness pleasure the next morning the Earl drew a Letter for a Warrant to the same Person his Highness had named for declaring his mind in Council wherein he exprest his constant resolution to continue a true Protestant and Loyal Subject which were the true ends of the Test But the Letter concluding on a delay of taking the Oath and his Highness having given some indication how little pleasing that office was to him neither that friend nor any other would by any means accept of it Upon this the Earl drew a second and shorter Letter to any that should that day preside in Council but after much discourse it being suggested that an explanation would be allowed and the shorter the better the Earl first drew one suitable to his own thoughts and it being thought too long did instantly shorten it and put it into his Pocket but withal said he would not offer it till he knew his Highness pleasure lest his Highness might take it ill that any had prevailed more with him then himself and therefore the Earl did refuse to go to the Council or out of his Chamber till he had his approbation A little after a Coach was sent for the Earl and it was told him in the Room without the Council-Chamber that the Bishop of Edinburgh had spoke to his Highness and signified to him that the Earl was willing to take the Test with an Explanation and that the Bishop said it would be very kindly accepted These were the express words and then and not till then the Earl went into the Council and delivered that is pronounced his Explanation close by his Highness and directly towards him so loud and audible that some in the furthest corner of the Room acknowledged they heard it Whereupon the Oath was administred and the Earl took it and his Highness with a well satisfied Countenance and the honour of a smile Commanded him to take his place And while he sat by his Highness which was his honour to do that day his Highness spake several times privately to him and always very pleasantly And the Earl hath since protested to his friends that he thinks his Highness was at the time well pleased though some others that wisht the Earl out of the Council appeared surprized and in some confusion The first thing came to be treated of in Council after the Earl had taken his Seat was the Councils Explanation at that time intended and resolved to be allowed to the Clergy only and no other and withal not to be printed To which the Earl refused to Vote which was afterwards made a ground of Challenge A little after it being the Post Night the Earl stept out and went to his Lodging and though he acknowledges he did not decline to give some friends an account of what had past yet he was so far from spreading Copies of his Explanation at taking the Oath that he flatly refused to give a kind and discreet friend then in his Chamber a Copy of it lest it might go abroad And the words being few and publickly spoke it is not strange they might be almost perfectly repeated as it 's known the Clerks pretended to do but the â—â—ings Advocate having past from the accusation of Spreading this is only mentioned to evidence how singly studious the Earl was to satisfie his own Conscience and how tender of giving offence for I can say
depraving His Majesties Laws For if such Foundations were laid Judges and Lawyers had a dangerous employment there being nothing more ordinary than to fall into differences and mistakes of the sense and meaning of the Laws and Acts of Parliament But such Crimes cannot be inferred but with and under the qualifications above mentioned of malicious and perverse designs joyned with licentious wicked and reproachful speeches spread abroad to move Sedition and dislike of the Government And the said Laws were never otherwise interpreted nor extended in any case And therefore the Explication libelled neither as taken complexly nor in the several expressions thereof nor in the design of the ingiver of the same can in Law import against him all or any of the Crimes libelled In like manner the Pannel conjoyns with the grounds above-mentioned the Proclamation issued forth by His Majesties privy Council which acknowledges and proceeds upon a Narrative that scruples and jealousies were raised and spread abroad against the Act of Parliament enjoyning the Test For clearing and satisfaction whereof the said Proclamation was issued forth and is since approved by His Sacred Majesty The Kings Advocates Argument and Plea against the Earl of Argyle HIS Majesties Advocate for the foundation of his Debate does represent That His Majesty to secure the Government from the Rebellious Principles of the last Age and the unjust Pretexts made use of in this from Popery and other Jealousies as also to secure the Protestant Religion and the Crown called a Parliament and that the great security resolved on by the Parliament was this excellent Test in which that the old jugling Principles of the Covenant might not be renewed wherein they still swore to serve the King in their own way the Parliament did positively ordain That this Oath should be taken in the plain genuine meaning of the words without any evasion whatsoever Notwithstanding whereof the Earl of Argyle by this Paper does invent a new way whereby no man is at all bound to it For how can any person be bound if every man will only obey it as far as he can and as far as he conceives it consistent with the Protestant Religion and with it self and reserve to himself notwithstanding thereof to make any alteration that he thinks consistent with his Loyalty And therefore His Majesties Advocate desires to know to what the Earl of Argyle or any man else can be bound by this Test what the Magistrate can expect or what way he can punish his Perjury For if he be bound no farther than he himself can obey or so far as this Oath is consistent with the Protestant Religion or it self quomodo constat to whom or what is he bound And who can determine that Or against what alteration is the Government secured since he is Judg of his own alteration So that that Oath that was to be taken without any evasion is evaded in every single word or Letter and the Government as insecure as before the Act was made because the taker is no farther bound than he pleases From which it cannot be denied but his Interpretation destroys not only this Act but all Government since it takes away the security of all Government and makes every mans Conscience under which Name there goes ordinarily in this Age Humour and Interest to be the rule of the takers obedience Nor can it be conceived to what purpose Laws but especially Oaths needed to be made if this were allowed or how this cannot fall under the 197th Act Par. 7. James 6. whereby it is statuted That no man interpret the Statutes otherwise than the maker understood For what can be more contrary to the taking of them in the makers sense than that every man should obey as far as they can and be allowed to take them in a general sense so far as they are consistent with themselves and the Protestant Religion without condescending wherein they do not agree with the Protestant Religion and that they are not bound not to make any alteration which they think good for the States For all these make the rule of obedience in the taker whereas the positive Law makes it to be in the maker Or how could they be punished for Perjury after this Oath For when he were quarrelled for making alterations against this Oath and so to be perjured he might easily answer That he took this Oath only in so far as it was consistent with the Protestant Religion and with a Salvo that he might make any alteration that he thought consistent with his Loyalty And as to these Points upon which he were to be quarrelled he might say he did not think them to be inconsistent with his Loyalty think we what we pleased and so needed not to be perjured except he pleased to decide against himself for in these Generals he reserves to himself to be still Judge And this were indeed a fine security for any Government And by the same rule that it looses this Oath it shews a way of loosing all Oaths and Obedience and consequently strikes at the root of all Laws as well as this whereas to shun all this not only this excellent Statute 107. has secured all the rest but this is common Reason And in the opinion of all Divines as well as Lawyers in all Nations Verba juramenti intelliguntur secundum mentem intentionem ejus cui fit juramentum Which is set down as the grand position by Sanderson whom they cite pag. 137. and is sounded upon that Mother-Law Leg. 10. Cui interrogatus f.f. de interrogationibus in Jure faciendis and without which no man can have sense of Government in his head or practise it in any Nation Whereas on the other hand there is no danger to any tender Conscience since there was no force upon the Earl to take the Oath but he took it for his own advantage and might have abstained 2. It is inferred from the above-written matter of Fact That the Earl is clearly guilty of contravention of the 10. Act Parl. 10 James VI. whereby the Leiges are commanded not to write any purpose of Reproach of His Majesties Government or misconstrue his proceedings whereby any misliking may be raised betwixt his Highness his Nobility or his people And who can read this paper without seeing the King and Parliament reproached openly in it For who can hear that the Oath is only taken as far as it is consistent with it self and the Protestant Religion but must necessarily conclude that in several things it is inconsistent with it self and the Protestant Religion For if it were not inconsistent with it self and the Protestant Religion why this Clause at all but it might have been simply taken For the only reason of hindering it to be taken simply was because of the inconsistency ergo there behooved necessarily to be an inconsistency And if there be any inconsistency with the Protestant Religion or any contradiction in the Oath it self can there be
upon the King and the Government For the writing an answer is no allowance but a condemning Nor can the Council allow any more than they can remit And tho it may justly be denied that the Council heard even the Earls own Explanation yet the hearing or allowing him to sit is no Relevant Plea because they might very justly have taken a time to consider how far it was fit to accuse upon that Head And it is both just and fit for the Council to take time and by express Act of Parliament the negligence of the King Officers does not bind them For if this were allowed Leading men in the Council might commit what Crimes they pleased in the Council which certainly the King may quarrel many years after And tho all the Council had allowed him that day any one Officer of State might have quarrelled it the next day As to the Opinion of Bellarmine Sanderson and others it is ever contended that the principles of the Covenant agree very well with those of the Jesuites and both do still allow Equivocations and Evasions But no solid Orthodox Divine ever allowed That a man who was to swear without any Evasion should swear so as he is bound to nothing as it is contended the Earl is not for the Reasons represented And as they still recommend That when men are not clear they might abstain as the Earl might have done in this case so they still conclude That men should tell in clear terms what the sense is by which they are to be bound to the State Whereas the Earl here tells only in the general and in most ambigious terms That he takes it as far as he can obey and as far as it is consistent with the Protestant Religion and that he takes it in his own sense and that he is not bound by it from making alterations but as far as he thinks it for the advantage of Church or State which sense is a thousand times more doubtful than the Test and is in effect nothing but what the taker pleases himself As to the Treason founded on His Majesties Advocate founds it first upon the Fundamental and Common Laws of this and all Nations whereby it is Treason for any man to make any alteration he shall think for the advantage of Church or State which he hopes is a principle cannot be denied in the general And whereas it is pretended That this cannot be understood of mean alterations and of alterations to be made in a lawful way It is answered That as the thing it self is Treason so this Treason is not taken off by any of these qualifications because he declares he will wish and endeavour any alteration he thinks fit and any alteration comprehends all alterations that he thinks fit Nam propositio indefinita aequipollet universali And the word any is general in its own nature and is in plain terms a reserving to himself to make alterations both great and small And the restriction is not all alterations that the King shall think fit or are consistent with the Laws and Acts of Parliament but he is still to be Judge of this and his Loyalty is to be the Standard Nor did the Covenanters in the last Age nor do these who are daily executed decline that they are bound to obey the King simply but only that they are bound to obey him no otherwise than as far as his Commands are consistent with the Law of God of Nature and of this Kingdom and with the Covenant And their Treason lies in this And when it is asked them Who shall be judge in this they still make themselves Judges And the reason of all Treason being that the Government is not secure it is desired to be known what way the Government can be secured after this paper since the Earl is still Judge how far he is obliged and what is his Loyalty And if this had been sufficient the Covenant had been a very excellent paper for they are there bound to endeavour in their several stations to defend the Kings person but when the King challenged them how they came to make War against him their great Refuge was That they were themselves still Judges as to that And for illustrating this power the Lords of Justitiary are desired to consider Quid Juris if the Earl or any man else should have reserved to himself in this Oath a liberty to rise in Arms or to oppose the lineal Succession tho he had added In a lawful manner for the thing being in it self unlawful this is but sham and Protestatio contraria facto And if these be unlawful notwithstanding of such additions so much more must this general reservation of making any alterations likewise be unlawful notwithstanding of these additions For he that reserves the general power of making any alteration does a fortiori reserve power to make any alteration tho never so fundamental For all particulars are included in the General and whatever may be said against the particulars may much more strongly be said against the general 2. The 130. Act Par. 8. James VI is expressly founded on because nothing can be a greater diminution of the power of the Parliament than to introduce a way or means whereby all their Acts and Oaths shall be made insignificant and ineffectual as this paper does make them for the Reasons represented Nor are any of the Estates of Parliament secure at this rate but that they who reserved a general power to make all alterations may under that â—eneral come to alter any of them 3. What can be a greater impugning of the Dignity and Authority of Parliaments than to say That the Parliament has made Acts for the security of the Kingdom which are in themselves ridiculous inconsistent with themselves and the Protestant Religion And as to what is answered against invading the Kings Prerogative and the Legislative power in Parliaments in adding a part to an Oath or Act is not relevantly inferred since the sense of these words And this I understand as a part of my Oath is not to be understood as if any thing were to be added to the Law but â—â—ly to the Oath and to be an interpretation of the Oath It is replied That after this no man needs to add a Caution to the Oath in Parliament But when he comes to take the Oath do the Parliament what they please he will add his own part Nor can this part be looked upon as a sense for if this were the sense before this paper he needed not understand it as a part of it for it wanted not that part And in general as every man may add his own part so the King can be secure of no part But your Lordships of Justitiary are desired to consider how dangerous it would be in this Kingdom and how ill it would sound in any other Kingdom That men should be allowed to reserve to themselves liberty to make any alteration they thought fit in Church or
if then he gives in an Explication of the sense which in his private judgment doth apprehend to be the genuine meaning if that private sense be disconform to the Legislators sense in the Oath then the Imposer of the Oath or he that has power to offer it to the party if he consider the parties sense disconform he ought to reject the Oath as not fulfilling the intent of the Law imposing it But it is impossible to state that as a Crime That a party should neither believe what is proposed in the Oath nor be able to take it And he can run no farther hazard but the penalty imposed upon the Refuser And therefore in all Oaths there must be a concourse both of the sense imposed by Authority and of the private Sense Judgment or Conscience of the party And therefore if a party should take an Oath in the Sense proposed by Authority contrary to his own sense he were perjured whereby it is evident that the sense of Authority is not sufficient without the acquiescence and consent of the private person And therefore it is very strange why that part of the Pannel's Explanation should be challenged that he takes it in his own Sense the posterior words making it as plain as the light that that sense of his own is not what he â—pleases to make of the Oath for it bears expresly that no body can explain it but for himself and reconcile it as it is genuine and agrees in its own sense So that there must be a Reconciliation bewixt his own sense and the genuine sense which upon all hands is acknowledged to be the Sense of Authority And if the Pannel had been of these lax and debaucht Principles that he might have evaded the meaning and energy of the Oath by imposing upon it what sense he pleased certainly he would have contented himself in the general refuge of Equivocation or Mental Reservation and he would never have exposed his sense to the world in which he took this Oath whereby he became absolutely fixed and determined to the Oath in that particular sense and so had no latitude of shuffling off the Energy or Obligation of the Oath And it is likewise acknowledged That the Cases alledged in the Reply are true viz. That the person is guilty of Perjury si aliquo novo Commento he would elude his Oath or who doth not fulfil the Oath in the sense of the Imposer But that does not concern this Case For in the foresaid Citation a person after he has taken an Oath finding out some new conceit to elude it he is perjured but in this Case the Pannel did at and before his taking the Test declare the tâ—â—â—s in which he understood it So that this was not novo aliquo commento to elude it And the other Case where a party takes it in the sense of Authority but has some subterfuge or concealed Explanation it is acknowledged to be Perjury But in this Case there was no concealed Explanation but it was publickly exprest and an Explanation given which the Pannel designed and understood as the meaning of Authority and had ground to believe he was not mistaken since upon that Explanation he was received and allowed to sit and vote in Council And as to that part of the Reply that explains the Treason there can be no Treason in the Pannel's Case because the express Act of Parliament founded upon doth relate only to the Constitution of the Parliament And I am sure His Majesties Advocate cannot subsume in theâ—e terms And therefore in the Reply he recurs to the general Grounds of the Law That the usurping of His Majesties Authority in making a part of the Law and to make alterations in general and without the King are high and treasonable words or designs and such as the party pleases and such designs as have been practised the late times And that even the adjection of fair and safe words as in the Covenant does not secure from treasonable Designs and that it was so found in Balmerino's Case tho it bear a fair Narrative of an humble Supplication It is replied That the usurpation of making of Laws is undoubtedly treasonable but no such thing can be pretended or subsumed in this Case For albeit the Pannel declares his Explanation to be a part of his Oath yet he never meaned to impose it as even a part of the Law or that his Explanation should be a thing distinct or a separate part of his Oath For this Explanation being but exegetick of the several parts of the Oath it is no distinct thing from the Oath but declared to be a part of the Oath de natura rei And it was never pretended That he that alledged any thing to be de natura rei did say That that was distinct and separate which were a contradiction And therefore the Argument is retorted the Pannel having declared this Explanation was de natura rei implied in the Oath he necessarily made this Explanation no addition or extention of the Oath So that for all this Explanation the Oath is neither broader nor longer than it was And as to these words I do not mean to bind up my self in my station and in a lawful way to wish and endeavour any alteration I think to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty It is a strange thing how this Clause can be drawn in question as treasonable when it may with better Reason be alledged That there is not good Subject but is bound to say it And albeit the words to endeavour in my station be words contained in the Covenant yet that is no Reason why two words in the Covenant may not be made use of in another very good and loyal sense And there is no man that shall have the honour either to be entrusted by His Majesty in his Council or any other Judicature or to be a Member of Parliament but he is bound by his Loyalty to say the same thing And there was never a Clause more cautiously exprest for the words run to endeavour any alteration I shall think to the advantage of Church and State And tho that was sufficient yet the Clause is so cautiously conceived that it contains another Restriction not repugnant to Religion and his Loyalty So that except it could be alledged That a man by lawful means to the advantage of Church and State consistent with his Religion and Loyalty could make treasonable alterations and invasions upon the Government and Monarchy which are the highest Contradictions imaginable there can be nothing against the Pannel And albeit the Clause any alterations might without the Restrictions and Qualifications foresaid be generally extended yet the preceeding words of lawful way and the rational Interpretation of the emission of words especially before a solemn Judicatory leaves no place or shadow to doubt that these alterations were no fundamental or treasonable alterations but such as
hours without intermission it adjourned till the next day being Tuesday the 13th of December at Two of the Clock in the Afternoon And then the Earl being again brought to the Bar the following Interloquutour that is Judgment and Sentence of the Lords of Justitiary on the foregoing debate was read and pronounced in open Court Edinburgh December 12. 1681. The Interloquutour of the Lords of Justitiary THE Lords Justice General and Commissioners of the Justitiary having considered the Libel and Debate they sustain the defence proponed for the Earl of Argyle the Pannel in relation to the perjury Libelled viz. That he emitted this Explanation at or before his taking the Test first before his Royal Highness His Majesties High Commissioner and the Lords of His Majesties Privy Council relevant to elude that Article of the Libel The Lords sustain the Libel as being founded upon the Common Law and Explication Libelled and upon Act 130. Parl. 8. James VI. to infer the pain of Treason They likewise sustain the Libel as founded upon the 10. Act Parl. 10. James VI. to infer the pain of Death and likewise sustain that part of the Libel anent Leasing making and Leasing-telling to infer the particular pains mentioned in the several Acts Libelled And repel the whole other defences duplies and quadruplies and remits the Libel with the defences anent the Perjury to the knowledge of an Assize Thereafter the Assize that is the Jury being constitute and sworn viz. List of the Assizers Marquiss Montross E. Middleton E. Airlie E. Perth P. Cr. E. Dalhousie E. Roxburgh P. C. E. Dumfries E. Linlithgow P. Cr. Lord Lindoors Lord Sinclare Lord Bruntisland Laird of Gosfoord Laird of Claverhouse Laird of Balnamoon Laird of Park Gordon HIS Majesties Advocate adduced four Witnesses to prove the points of the Indictment remitted to the knowledge of the Assize viz. John Drummond of Lundie then Governour of the Castle of Edinburgh now Treasurer Deputy Sir William Paterson and Mr. Patrick Menzies Clerks of the Privy Council and H. Stevenson their under Clerk Who deponed That on the 4th of November the Earl did give in an unsubscribed Explanation of the Test which he refused to sign One of the Witnesses also adding That he heard him make the same Explanation the day before in Council and that it was there accepted Then His Majesties Advocate asked if the Earl would make use of his Exculpation for eliding the Perjury Libelled to wit That he had emitted the same Explanation before taking the Test in presence of his Royal Highness and the Council To which the Earl answered That seeing they had sustain'd the Libel as to the alledged Treason he would not trouble them about the Perjury especially the matter of Fact referred by the Interloquutour to his probation being of it self so clear and notour Fut the truth is the Interloquutour pronounced was so amazing that both the Earl and his Advocates were struck with deep silence for they plainly perceived that after such a Judgment in the case all further endeavours would be in vain it being now manifest that seeing the Earls innocence had so little availed as that his plain and honest words purely uttered for the necessary satisfaction of his own conscience and clearing of his Loyalty had been construed and detorted to infer Leasing-making Depraving and Treason the Tongues of men and Angels as some of his Advocates also said could not do any good and therefore neither did the Earl nor they object any thing either against the Assizers or Witnesses though liable to obvious and unanswerable exceptions Nor did the Earls Advocates say any thing to the Assize as the custom is and as in this case they might well have done to take off the force of the Evidence and to demonstrate that the Depositions instead of proving the Indictment did rather prove the Earls defences But as I have said they now plainly saw that all this had been unnecessary work and in effect were of opinion that after so black and dreadful a sence put upon what the Earl had spoke and done in such fair and favourable circumstances there could be nothing said before such a Court which might not expose themselves to the like hazard and more easily be made liable to the same mis-construction But upon this silence the Advocate taking Instruments protests whether in form only or from a real fear let others judge for an Assize of Error in case the Assizers should Assoil or acquit Whereupon the Assize removing was inclosed and after some time returned their Verdict which was read in open Court of this tenour The Verdict of the Assize THE Assize having Elected and Chosen the Marquess of Montrose to be their Chancellor they all in one voice find the Earl of Argyle guilty and culpable of the Crimes of Treason Leasing-making and Leasing-telling And find by plurality of Votes the said Earl innocent and not guilty of Perjury And then the Court again adjourned And the Privy-Council wrote the following Letter to His Majesty Halyrud-House December 14. 1681. The Councils Letter to the King desiring leave to pronounce Sentence against the Earl of Argyle May it please Your Sacred Majesty IN Obedience to Your Majesty's Letter dated the 15th of November last we ordered Your Majesty's Advocate to insist in that Process raised at your Instance against the Earl of Argyle And having allowed him a long time for his appearance and any Advocates he pleased to employ and Letters of Exculpation for his Defence He after full Debate and clear Probation was found guilty of Treason Leasing-making betwixt Your Majesty Your Parliament and Your People and the reproaching of Your Laws and Acts of Parliament But because of Your Majesty's Letter ordaining us to send Your Majesty a particular account of what he should be found guilty of before the pronouncing of any Sentence against him we thought it our duty to send Your Majesty this account of our and Your Justices proceedings therein And to signifie to Your Majesty with all Submission That it is usual and most fit for Your Majesty's Service and the Advantage of the Crown that a Sentence be pronounced upon the Verdict of the Assize without which the Process will be still imperfect After which Your Majesty may as you in Your Royal Prudenee and Clemency shall think fit Ordain all farther execution to be sisted during Your Majesty's pleasure Which shall be dutifully obeyed by Your MAJESTY's Most Humble Most Faithful and most Obedient Subjects and Servants Sic Subscribitur Alex. St. And. Athol Douglas Montrose Glencairn Wintoun Linlithgow Perth Roxburgh Dumfries Strathmore Airlie Ancram Livingstoun Jo. Edinburgens Elphingstoun Dalziell Geo. Gordon Ch. Maitland Geo. Mckenzie G. Mckenzie Ramsay J. Drummond THE Earl as well as the Lords of Privy Council waited some days for the Answer of this Letter But the Earl making his escape a day or two before it came I shall take occasion to entertain you in the mean time with an account of
one short Answer viz. That if the Earl's Paper did infer the Crimes charged on it a thousand the like offences cannot excuse it And His Majesty is free to pursue the Offenders when and in what order he thinks fit which Answer doth indeed leave the Council and all concerned in His Majesty's mercy But that it doth no way satisfy the Earl's Plea is manifest For the first ground of Exculpation viz. That before the Earl did offer his Explanation a great many Papers writ by the Orthodox Clergy and others were abroad charging the Test with Contradictions c. was not alledged by the Earl merely to justify his Explanation by the multitude of the like Papers and so to provide for an escape in the croud But the Earl having most rationally pleaded that his Explanation was given in by him after these many Scruples and Objections raised by others were abroad it was a good Plea from a most pregnant circumstance clearing both the design and sense of his words from the foul aspersions of reproaching and depraving thrown upon them Seeing the words spoken by him under the motive of such a circumstance by all fair rules of interpretation instead of being judged misconstruing and depraving could only be understood as a seasonable asserting of the Integrity of the Parliament's Intentions and the uprightness of the Earl's Conscience Which Argument being in reason unanswerable it necessarly follows that the Advocate 's return to the first ground was neither sufficient nor pertinent and that therefore the Exculpation was unjustly repelled But next The second ground of Exculpation is so far from being answered by the Advocate that it does not appear it was so much as understood For the Earl's Argument being That words allowed and approven by the Council can never fall under the Accusation either of Leasing-making or slandering His Majesty's Proceedings or depraving Laws and Acts of Parliament as is evident in it self and granted by the Advocate where he says that an Explanation tho reflecting on the King and Government which the Earl's was not yet if allowed by the Council is to be sustained But so it is that the Council hath allowed the words contained in this Explanation contraverted both in themselves and also in their equivalent and far more important Expressions As for instance not only by accepting the Earl's Explanation as shall be cleared in the next place but by giving warrand for the publication of the Bishop of Edinburgh his Vindication wherein first for obviating the contradictions objected from the Confession of Faith he positively asserts that by the Test men do not swear to own every Article of that Confession and yet the Test binds expresly to believe that Confession to be founded on and agreeable to the Word of God and never to consent to any alteration contrary thereto or inconsistent therewith So that he gives both the Test and the Parliament the Lye And then for removing another Scruple he tells us That by the Test men are not bound up from regular endeavours to rectify or better the Established Government both of Church and State which is clearly the same thing but not so well cautioned with that which in the Earl's Case is made a ground of Treason From which it unquestionably follows that the Earl's words having been allowed and approved by the Council could never in Law or Reason be thereafter made a ground of accusation by any much less by themselves Now I desire to know where the Advocate in all his Plea doth so much as notice far less answer this Defence or what his telling us A thousand Offences of the like nature doth not excuse one either doth or can signify seeing this Argument for the Earl instead of pleading excuses doth justify the matter and for ever purge all shadow of offence or ground of quarrel which will be yet more apparent when you shall add to this the third ground of the Earl's Exculpation viz. That the Explanation whereupon the Earl was indicted was publickly by himself declared in Council and by the Council allowed and accepted Insomuch as after he had given his Explanation as the sense wherein he was free to swear the Test the Oath was thereupon administrat to him and he received to sit and vote as a Councellor Whereby it is evident That by this allowance and acceptance the Earl's Explanation became the Councils as much as if after the Earl's pronouncing the words they had verbatim repeated them and told him they were satisfied he should swear the Test in these terms And whether this ought not to be a sufficient exoneration to the Earl let all men judge The Advocate makes a noise That in the case of an Oath required the Taker ought to swear it in the sense of the Imposer which none doubts and then runs out That the Earl in place of taking it in the Imposers sense did unwarrantably intend a sense of his own to the eluding and frustrating of the obligation of this and all other Oaths But all this is nothing to the purpose for waving that in the Earl's Case it is most impertinent to talk of his obtruding of a sense to the eluding and frustrating of the obligation of his Oath seeing his Oath was not then given or at all in being it is expresly alledged by the Earl and notour that the Explanation tendered by him when called to take the Test was accepted by the Council and the Oath thereupon administrated and so the Earl freely joins issue with the Advocate and acknowledging that the Taker of the Oath ought to swear in the sense of the Imposer subsumes in terminis that he himself did swear so and not otherwise inasmuch as he did swear in a sense accepted by the Council before he gave his Oath as is evident 1. By their commanding him to sit after he had sworn and 2. In that neither the Advocate nor any other had ever the confidence to quarrel his sitting as a breach of the Law which no doubt they had done if not convinced that by taking the Oath he had satisfied the Act of Parliament which things in true dealing and the construction of all honest men are the same as if the Oath had been required of him by the Council in the very sense and words of this Explanation Neither is it material whether the Explanation offered by the Earl doth deserve as certainly it doth not these many ill names which the Advocate would fix upon it because though it had been much worse than it is yet being offered to the Council and submitted to their judgment and they having accepted of it the thing became quasi res judicata and cannot be retracted without subverting the surest Rules both of Truth and Government The Advocate indeed tells us 1. That the Council heard not the Earl's Explanation But I have already told you they did hear it and the Earl is still ready to prove it And suppose some say they did not hear it
distinctly As what thing spoke in Council is distinctly heard and considered by all Yet it being certain that they did all approve it it is sufficient to the Earl And it is only their concern whether in approving what they did not hear they observed their Oath De fideli c. or not His Highness who the Earl was most concerned should hear did certainly hear as himself afterwards acknowledged 2. The Advocate says That the hearing and allowing the Earl to sit is no relevant Plea yea further though all the Council had allowed him that day yet any of his Majesty's Officers might have quarrelled him the next day But first I would gladly know upon what head For if upon obtruding a sense of his own it is undeniable that whatever the sense was the obtruding of it was purged by the Council's acceptation and it became theirs and was no more his But if the Advocate doth think that even the matter of the Explanation though allowed and accepted may still be quarrelled Then 1. I hope he will consider in what terms he doth it for if he charge it after it becomes the Councils as in truth he hath done already with the same liberty wherewith he treats it as the Earl's he runs fair to make himself the arrantest Defamer and Slanderer of the King and Council that ever yet attempted it But 2dly It merits a worse name than I am free to give it to say That an Explanation allowed by the Council in the administrating of an Oath proper to be administrat by them doth not secure the Taker as to that sense both in Law and Conscience Seeing in effect this quite takes away the best grounds of assurance among men and turns their greatest security to their greatest snare And 3dly If this be sound Doctrine it is worth the enquiring what security the Clergy to whom the Council as you have heard did indulge an Explanation have thereby obtained For as to such Laicks as did only at their own hand take hold of and snatch at this Indulgence not provided for them by the Councils Act it is clear their doom is dight It is not here debated how far that Explication of the Council's may satisfy and quiet Conscience let such concerned see to it Some please themselves with a general notion That if the sense given by the Administrator be sound then it is also safe whether it be agreeable to the plain and genuine meaning of the Oath or not nay whether it be agreeable to the sense of the first Imposers or not But others who consider more tenderly what it is to swear in Truth and in Judgment think it rather a prophanation and a sinful preferring of the Credit of Men to the glory of the Almighty to offer to smooth an Oath by a disagreeable interpretation when in effect the Oath it self ought to be changed But the thing in question is about the security of life and fortune for seeing the Council's Explanation is at least to say no worse liable enough to the Calumnies of an inventive malice and the Advocate telleth us Though all the Ceuncil had allowed a man to swear with an Explanation yet any of His Majesty's Officers may the next day quarrel him it is evident that this allowance can afford him no security It is true the Advocate may alledge and possibly find a difference betwixt the Council's emitting and their accepting of an Explanation But as in truth there is none more than betwixt a Mandat and a Ratihabition so I am confident if ever the thing come to be questioned this Pretence will evanish and come to nothing It is likewise to be remembred That when the Earl the next day after he took the Test was questioned for the Explanation he had made and required to exhibit a Copy which was afterwards made the ground of his Indictment so soon as he observed that some began to carp he refused to sign it demanded it back and would have destroyed it as you have heard which were all clear Acts of disowning and retracting for eviting offence and of themselves sufficient to have prevented any further enquiry there being nothing more just and human than that words though at the first hearing offensive yet if instantly retracted when questioned should be past But this as well as other things must in the Earl's Case be singular and whether he plead the Councils allowing or his own disowning as in effect he doth both it is equally to no purpose the thing determined must be accomplished You heard before how that a Reverend Bishop and many of the Orthodox Clergy did take a far greater liberty of Explanation than the Earl pretended to you see also that first the Council allows his words whereupon he rests And when he finds that they begin to challenge he is willing to disown And withal it is undeniable and acknowledged by the Council themselves that the Test as it stands in the Act of Parliament is ambiguous and needs to be explained And the Earl may confidently aver that of all the Explanations that have been offered even the Councils not excepted his is the most safe sound and least disagreeable to the Parliament's true sense and meaning And yet when all others escape he alone must be seised and for a thing so openly innocent clearly justifiable and undeniably allowed found guilty of the worst of Crimes even Leasing-making Leasing-telling Depraving of Laws and Treason but all these things God Almighty sees and to him the Judgment yet belongs And thus I leave this Discouse shutting it up with the Case of Archbishop Cranmer plainly parallel to the Earl's to shew how much he was more favourably dealt with by the King and Government in those days than the Earl now is though he live under a much more merciful and just Prince than that worthy Prelate did for Cranmer being called and promoted by Henry VIII of England to be Archbishop of Canterbury and finding an Oath was to be offered to him which in his apprehension would bind him up from what he accounted his duty he altogether declined the Dignity and Preferment unless he were allowed to take the Oath with such an Explanation as he himself proposed for salving of his Conscience and tho this Oath was no other than the Statute and solemn Oath that all his Predecessors in that See and all the mitered Clergy in England had sworn yet he was admitted to take it as you see in Fuller's Church Hist of Britain lib. 5. p. 185 and 186. with this formal Prorestation In nomine Domini Amen Coram vobis c. Non est aut erit meae voluntatis aut intentionis per hujusmodi juramentum vel juramenta qualitercunque verba in ipsis posita sonare videbuntur me obligare ad aliquid ratione eorundum posthac dicendum faciendum aut attentandum quod erit aut esse videbitur contra Legem Dei vel contra illustrissimum Regem nostrum Angliae Legesve aut
sworn to only as far as every Man pleases to interpret and as far as may be consistent with any new principles of State But the Parliament certainly I do not speak Ironically did intend by this Test to swear and assert the True Protestant Religion and the said Confession of Faith whatever may be now pretended The Earl could not also but very well remember what his Highness had said to himself about the inserting of the Confession and no doubt the Advocate if ingenuous knows all this For the thing was at that time matter of common talk and indeed till Papers objecting contradictions and inconsistencies betwixt the Confession and the rest of the Test began to be so numerous which was about the end of October that there was no possibility left to answer them but by alledging That in the Test men do not swear to every article and proposition of the Confession but only to the Protestant Religion therein contained this point was never doubted And whether this answer be true and a solid Vindication consonant to the words of the Test or a circulating evasion enervating all its force let others judge But the Advocate says When it was moved in Parliament to read the Confession it was waved Most true and the reason given by the Bishops for it was That it was notour they knew it and it was already insert in the Acts of Parliament And the truth was the reading of it would have spent more time than was allowed on examining the whole Test It was likâ— wise late after a long Sederunt and it was resolved to have the Act passed that night and so it went on But it was likewise moved to read the Covenant seeing it was to be disclaimed and this was flatly refused And will the Advocate thence infer That by the Test the Covenant is not abjured albeit it be most certain that many in the Parliament at that time had never read the one or the other But to follow the Advocate 's excursions and answer them more particularly The motion for reading the Confession being made on this very occasion Because it was to be insert in the Test and sworn to concludes enough against him For no body can be so effronted as to say it was used in Parliament as an argument not to read it because it was not to be sworn to but though it cost a debate it was plainly agreed to be sworn to and therefore insert 2dly Can any man doubt the Confession was to be sworn to when it is notour that severals who were members of Parliament and by reason of offices they enjoyed were called to swear the Test pretending with reason tenderness of an Oath did before swearing make a fashion at least of reading and studying the Confession to satisfy themselves how far they might swear it And that this was done by an Hundred I can attest themselves Lastly It is certain that when in the end of October the Bishop of Edenburgh did quarrel Sir George Lockhart for causing the Confession to be insert in the Test and he answered that without it a Turk might sign the Test it was not then pretended by the Bishop that the Confession was not to be sworn to and therefore he at that time had no reply But this is a debate I confess not altogether necessary for my present task only thereby you may see ground enough for the Earl to believe the Confession was sworn to And all that did swear before the Councils Explanation having sworn in that sense and for ought I know all except the Clergy being by the Councils Act still bound to do so It was not strange the Earl might be of this Opinion And seeing that many of the Contradictions were alledged to arise hence and the Earl being a Dissenter it was yet less strange that the Earl did scruple nor is it unreasonable that his modest Explanation should have a most benign acceptance This second pretence of aggravation is That His Majesty did not only bestow on the Earl his Lands and Jurisdictions fallen into His Majesty's hands by the forfaulture of his Father but also pardon him the crimes of Leasing-making and Misconstruing whereof he was found guilty by the Parliament 1662. And raised him to the title and dignity of an Earl and to be a member of all His Majesty's Judicatories All which the Earl as he hath ever doth still most thankfully acknowledg But seeing the Advocate hath no warrand to upbraid him with His Majesty's favours and that these things are now remembred with a manifest design to raise dust and blind strangers and to add a very ill thing Ingratitude to the heap of groundless calumnies cast upon him I must crave leave to answer a little more particularly and refute this new Tout as the Scots Proverb is in an old Horn. This old Leasing making is then now brought in seriously after it hath been treated in ridicule for Eighteen years by the very Actors who did never pretend to defend it in cold blood And were it not to digress too much I could name the persons and make them if capable think shame of their falshood and prevarications in that point and of their abusing His Majesty and prostrating Justice but I forbear The Advocate in his Book of Pleadings makes this a Stretch and says His Majesty rescinded it And His Majesty himself hath several times exprest his sense of the stretches made by some against the Earl at that time It is well known the Family of Argyle is both Ancient and Honourable and hath been Loyal and Serviceable to the Crown for several Hundreds of years but they must now be destroyed for having done and being able as they say to do too much which others neither can nor will do Neither is the Advocate ignorant that the only failing that Family hath been charged with in all that long tract of time was a compliance of the late Marquess of Argyle the Earl's Father in the time of the late Usurpation by sitting in the then Parliament of England some years after all the standing Forces of the Kingdom were broken His Majesty beyond Sea the whole Countrey over-run the Usurpers universally acknowledged and neither probability of resistance nor possibility of shelter left to any that were most willing to serve His Majesty as the Advocate himself hath published in his Printed Pleadings in which he likewise lays out the special and extraordinary Circumstances whereby the Marquess was necessitate to do what he did And the compliance charged on him was so epidemick that all others were pardoned for the same except he alone though none had such favourable Arguments to plead and though he pleaded the same Indemnity that saved others And seeing he submitted and delivered up himself and lost his Life and seeing at the same time of the Compliance that he suffered for the Earl his Son was actually serving and suffering for His Majesty as you find in the former part of this Letter
time coming and to have forfaulted amitted and tint all and sundry his Lands Tenements annual-rents Offices Titles Dignities Tacks Steedings Rowmes Possessions Goods and Geere whatsumever pertaining to him to our Sovereign Lord to remain perpetually with his Highness in property Which was pronounced for Doom 23 Dec. 1681. After the reading and publshing whereof The Earl's Coat of Arms by order of the Court was also torn and ranversed both in the Court and at the Mercat-Cross Albeit some thought that this was rather a part of the Execution which His Majesty's Letter discharges than a necessary Solemnity in the Publication and the Advocate himself says p. 61. of his printed Criminals That it should only be practised in the Crime of Perduellion but not in other Treasons The Reasons and Motives of the Earl's Escape with the Conclusion of the whole Narrative THE Earl's Escape was at first a great surprise both to his Friends and Unfriends for as it is known that his Process in the beginning did appear to the less concerned more like a piece of pageantry than any reality and even by the more concerned was accounted but a politick Design to take away his Offices and lessen his Power and Interest So neither did any of his Friends fear any greater hazard nor did most of his Unfriends imagine them to be more apprehensive Whereby it fell out that upon report of his Escape many and some of his Well-wishers thought he had too lightly abandoned a fair Estate and the probable expectation he might have had of His Majesty's favour As also some that were judged his greatest Adversaries did appear very angry as if the Earl had taken that course on purpose to load them with the odium of a design against his life And truly I am apt to think it was not only hard and uneasie for others to believe that a Person of the Earl's quality and character should upon so slender a pretence be destroyed both as to life and fortune but also that he himself was slow enough to receive the impressions necessary to ripen his Resolution and that if a few Accidents as he says himself happening a little before his escape had not as it were opened his eyes and brought back and presented to him several things past in a new light and so made all to operate to his final determination he had stayed it out to the last Which that you may the better understand you may here consider the several Particulars that together with what he himself hath since told some Friends apparently occurred to him in these his second thoughts in their following order And first you have heard in the beginning of this Narrative what was the first occasion of the Earl his declining in his Highness's favour You may also remember that his Majesty's Advocate takes notice that he debated against the Act enjoining the Test in the Parliament And as I have told you he was indeed the Person that spoke against excepting the King's Brothers and Sons from the Oath then intended for securing the Protestant Religion and the Subjects Loyalty not thinking it fit to complement with a Privilege where all possible caution appears rather to be necessary And this a Reverend Bishop told the Earl afterwards had downright fired the kiln What thereafter happened in Parliament and how the Earl was always ready to have laid all his Offices at his Majesty's feet And how he was content in Council to be held a Refuser of the Test and thereby incur an intire deprivation of all publick Trust is above fully declared and only here remembred to shew what Reason the Earl had from his first coming to Edinburgh in the end of October to think that something else was intended against him than the simple devesting him of his Employments and Jurisdictions And yet such was his assurance of his Innocence that when ordered by the Council to enter his Person in Prison under the pain of Treason he entered freely in an Hackney Coach without either hesitation or noise as you have heard 2dly The same day of the Earl's Commitment the Council met and wrote as I have told you their Letter to his Majesty above set down Num. 22. Wherein they expresly charge him with Reproaching and depraving but yet neither with Perjury nor Treason and a few days after the Earl wrote a Letter to his Highness wherein he did endeavour to remove his Offence in terms that it was said at first had given satisfaction But yet the only return the Earl had was a Criminal Summons containing an Indictment and that before any Answer was come from His Majesty And then so soon as his Majesty's Answer came there was a new Summons sent him with a new Indictment adding the Crimes of Treason and Perjury to those of Reproaching and Depraving which were in the first Libel as you have heard above whereby you may perceive how early the Design against the Earl began to grow and how easily it took encrease from the least encouragement 3dly When the Earl petitioned the Council for Advocates to plead for him Albeit he petitioned twice and upon clear Acts of Parliament yet he had no better Answer than what you have above set down And when the Earl's Petition naming Sir George Lockhart as his ordinary Advocate was read in Council his Highness openly threatned that in case Sir George should undertake for the Earl he should never more plead for the King nor him But the Earl taking Instruments upon Sir George his refusal and giving out that he would not answer a word at the Bar seeing the benefit of Lawyers according to Law was denied him Sir George and other Lawyers were allowed to assist him but still with a grudge Likewise afterwards they were questioned and convened before the Council for having at the Earl's desire signed their positive Opinion of the Case At which time it was also said in Council by his Highness That their fault was greater than the Earl's However we see that as he was the occasion of the anger so he hath only found the smart of it 4thly The whole Process with the Judgment of the Lords of Justitiary and Verdict of the Assize whereby the Earl was found guilty as you have seen notwithstanding of what hath so plainly appeared and was so strongly pleaded in his behalf of Leasing-making Depraving and Treason Is of it self a clear demonstration that either the highest punishment was intended for so high a guilt or that at least it was no small humiliation that some designed for him It being equally against reason and prudence setting aside the Interest of Justice to strain things of this nature beyond the ends truly purposed and which in effect are only the more to be suspected the more they are concealed 5thly The Process being carried on to the Verdict of the Assize and the Council being tied up by His Majesty's Letter before pronouncing Sentence to send a particular account to His Majesty of what
and Modesty there would be no great danger of many Divisions but this is the great Secret of the providence of God that men are still men and both Pastors and People mix their Passions and Interests so with matters of Religion that as there is a great deal of Sin and Vice still in the World so that appears in the Matters of Religion as well as in other things but the ill Consequences of this tho' they are bad enough yet are not equal Effects that ignorant Superstition and Obedient Zeal have produced in the World Witness the Rebellions and Wars for establishing the Worship of Images the Croissades against the Saracens in which many Millions were lost those against Hereticks and Princes deposed by Popes which lasted for some Ages and the Massacre of Paris with the Butcheries of the Duke of Alva in the last Age and that of Ireland in this which are I suppose far greater Mischiefs than any that can be imagined to arise out of a small Diversion of Opinions and the present State of this Church notwithstanding all those unhappy Rents that are in it is a much more desirable thing than the gross Ignorance and blind Superstition that reigns in Italy and Spain at this day IX All these reasonings concerning the Infallibility of the Church signifie nothing unless we can certainly know whither we must go for this Decision for while one Party shews us that it must be in the Pope or is no where and another Party says it cannot be in the Pope because as many Popes have erred so this is a Doctrine that was not known in the Church for a thousand Years and that has been disputed ever since it was first asserted we are in the right to believe both sides first that if it is not in the Pope it is no where and than that certainly it is not in the Pope and it is very Incongruous to say that there is an Infallible Authority in the Church and that yet it is not certain where one must seek for it for the one ought to be as clear as the other and it is also plain that what Primacy soever St. Peter may be supposed to have had the Scripture says not one word of his Successors at Rome so at least this is not so clear as a matter of this Consequence must have been if Christ had intended to have lodged such an Authority in that See X. It is no less Incongruous to say that this Infallibility is in a General Council for it must be somewhere else otherwise it will return only to the Church by some starts and other long intervals and as it was not in the Church for the first Three Hundred and Twenty years so it has not been in the Church these last 120 years It is plain also that there is no Regulation given in the Scriptures concerning this great Assembly who have a right to come and Vote and what forfeits this right and what numbers must concur in a Decision to assure us of the Infallibility of the Judgment It is certain there was never a General Council of all the Pastors of the Church for those of which we have the Acts were only the Council of the Roman Empire but for those Churches that were in the South of Africk or the Eastern parts of Asia beyond the bounds of the Roman Empire as they could not be summoned by the Emperours Authority so it is certain none of them were present unless one or two of Persia at Nice which perhaps was a Corner of Persia belonging to the Empire and unless it can be proved that the Pope has an Absolute Authority to cut off whole Churches from their right of coming to Councils there has been no General Council these last 700 years in the World ever since the Bishops of Rome have Excommunicated all the Greek Churches upon such trifling Reasons that their own Writers are now ashamed of them and I will ask no more of a Man of a Competent Understanding to satisfie him that the Council of Trent was no General Council acting in that Freedom that became Bishops than that he will be at the pains to read Card. Pallavicin's History of that Council XI If it is said that this Infallibility is to be fought for in the Tradition of the Doctrine in all Ages and that every particular Person must examine this here is a Sea before him and instead of examining the small Book of the New Testament he is involved in a study that must cost a Man an Age to go thro' it and many of the Ages thro' which he carries this Enquiry are so dark and have produced so few Writers at least so few are preserved to our days that it is not possible to find out their Belief We find also Traditions have varied so much that it is hard to say that there is much weight to be laid on this way of Conveyance A Tradition concerning Matters of Fact that all People see is less apt to fail than a Tradition of Points of Speculation and yet we see very near the Age of the Apostles contrary Traditions touching the Observation of Easter from which we must conclude that either the Matter of Fact of one side or the other as it was handed down was not true or at least that it was not rightly understood A Tradition concerning the Use of the Sacraments being a visible thing is the more likely to be exact than a Speculation concerning their Nature and yet we find a Tradition of giving Infants the Communion grounded on the indispensible necessity of the Sacrament continued 1000 years in the Church A Tradition on which the Christians founded their Joy and Hope is less like to be changed than a more remote Speculation and yet the first Writers of the Christian Religion had a Tradition handed down to them by those who saw the Apostles of the Reign of Christ for a Thousand Years upon Earth and if those who had Matters at second hand from the Apostles could be thus mistaken it is more reasonable to apprehend greater Errors at such a distance A Tradition concerning the Book of the Scriptures is more like to be exact than the Expositions of some passages in it and yet we find the Church did unanimously believe the Translation of the 70 Interpreters to have been the effect of a miraculous Inspiration till St. Jerome examined this matter better and made a New Translation from the Hebrew Copies But which is more than all the rest it seems plain that the Fathers before the Council of Nice believed the Divinity of the Son of God to be in some sort inferiour to that of the Father and for some Ages after the Council of Nice they believed them indeed both equal but they considered these as two different Beings and only one in Essence as three men have the same Humane Nature in common among them and that as one Candle lights another so the one flowed from another and
the frailty of humane Affairs and Constitutions and vicissitude of things and circumstances do constantly require in the most exact Constitutions under Heaven And the clause does not so much as import that there is a present necessity of alteration but it was a necessary and rational prospect That albeit at present all things under Heaven had been done to secure the Religion and Government yet there might occur Cases that would require new helps alterations and remedies And it is not pretended in this Case for the Pannel That he desires to alleviate or take off words truly treasonable or having an ill design by the mixing of fair and safe dutiful and submissive Expressions which indeed are Protestations contrariae facto For there is nothing in his Explanation that either in his design or in the words themselves being rationally and naturally interpreted can infer the Crimes libelled or any of them And the Pannel's known Principles and known Practices do not only clear that Loyalty that he has profest before the Lords of Justitiary and instructed by unquestionable Docuements but they put him far from the suspicion of these damnable Principles related in the Reply Of which the whole tract of his Life hath been an intire evidence of his abhorrency and detestation And in the last place It is thought strange why that should be represented as an affront or disgrace to the Government That the Parliament imposed a Test which the Pannel is not able to take simply And it is not pretended That he hath defamed written or spoken against the Test it self or for the inconvenience of it but only that he hath not been able to see the good ground upon which it may be simply taken And this were to condemn him for want of sight or sense when the Law hath punished no man for not taking the Test but only turned him out of the Government And it is as strange an Inference That because the Pannel declares He believes the Parliament meaned no Contradiction and would take the Test in as far as it is consistent that therefore he said the Parliament imposed Contradictions Which is so far from a rational Induction that the Contradiction of these Subsumptions in all congruity of Language and Sense is necessarily true And therefore the last part of that Clause in so far as it is consistent is a Consequence inferred upon the former viz. I believe the Parliament designed to impose no Contradictions ergo I take the Test as consistent and in so far as it must be consistent if the Parliament did not impose Contradictions as certainly they have not and to convince the world that in this sense this Explanation is receivable it was proposed in Council and allowed and therefore without the highest reflection it cannot now be quarrelled Sir George Lockhart 's second Plea for the Earl of Argyle by way of Reply upon the King's Advocate SIR George Lockhart Duplies That the Defender repeats and oppones his former Desences which are no ways eluded nor satisfied by the Reply made by His Majesties Advocate And altho it be easie for the Kings Advocate out of his zeal to pretend and argue Crimes of the highest Nature upon Inferences and Consequences neither consistent with the Pannel's designs nor with his words and expressions yet there cannot be a more dangerous foundation laid for the security and interest of the Government and the security and protection of the Subjects than that Crimes should be inferred but from clear evident and express Laws and plain palpable Contravention of these Laws it being both against the Laws of God and Man that a Man should be made an Offender for a word and especially for expressions which according to Sense and Reason and considering the time and place where they were spoken by the Pannel viz. as a Member of His Majesties Privy-Council and in presence of his Royal Highness and the Members of Council and when required to take the Test were safe and Innocent and it were against all Law and Reason to suppose that the Pannel either did or designed to do any thing which may or did import the Crimes libelled against him And whereas it is pretended That the Oath required and imposed by Act of Parliament was for the security of the Government and that the Pannel by his Explanation does evade the Oath by taking it only so far as it is consistent with the Protestant Religion and his own Loyalty whereof he was Judge It is answered That the pretence is most unwarrantable and the security of His Majesties Government is not at all endangered as God forbid it should tho the Pannel and a Thousand more had simply refused the Test or had taken it in a sense which does not satisfie the Law it being competent to publick Authority to consider whether the Pannels Oath in the terms of the Explication wherein he did take it does satisfie the Act of Palriament or not And if not there can be no rational consequence inferred thereupon but that he is holden as a Refuser of the Oath and liable to the Certification of the Act of Parliament of not assuming and continuing in any publick Trust And no more was intended or designed by the Act of Parliament it self than strictly to make the Oath in the true and genuine sense and meaning of the Parliament an indispensible qualification of persons admitted to publick Trust So that it is not at all material to dispute whether the Pannel's Explication can be looked upon as a full satisfaction of the Act which whether it should or not it can import no Crime against him it not being consistent with Sense and Reason that a person who absolutely refuseth the Test upon the scrupulosity of his Conscience albeit he be not capable of publick Trust should be notwithstanding looked upon as guilty of no Crime and yet another who was willing to go to a greater length albeit he did demur and scruple as to the full length that he should be reputed criminal and guilty of a Crime 2. The Pannel repeats and conjoyns with this the grounds above mentioned contained in his Defences viz. That neither the Crimes libelled nor any other Crime were ever pretended or made use of against any others who did spread abroad Objections of an high nature which yet were so favourably looked upon as to be construed only to proceed from scrupulosity of Conscience as also the satisfaction endeavoured is in such terms and by such condescensions as do take in and justifie the whole terms of the Explication libelled It is of great moment and whereof the Lords of Justitiary are desired to take special notice both for clearing the absolute innocence of the Pannel's meaning and intention and to take off all possible misconstruction that can be wrested or detorted from the tenor and expressions of the libelled Explication That the Pannel was put to and required to take the Oath before the Lords of His Majesties privy-Privy-Council did pass