THE CASE OF THE EARL of ARGYLE OR An exact and full Account of his Trial Escape and Sentence Wherein are insert the Act of Parliament injoining the Test the Confession of Faith the old Act of the King's Oath to be given at His Coronation With several other old Acts made for establishing the Protestant Religion As also several Explications made of the Test by the Conformed Clergy With the Secret Councils Explanation thereof Together with several Papers of Objections against the Test all framed and emitted by Conformists With the Bishop of Edinburgh's Vindication of the Test in answer thereto As likewise a Relation of several Matters of fact for better clearing of the said Case Whereunto is added An APPENDIX in answer to a late Pamphlet called A Vindication of His Majestie 's Government and Judicatories in Scotland Especially with Relation to the Earl of Argyle's Process In so far as concerns the Earl's Trial Printed in the Year M. D. C. LXXXIII THE PUBLISHER TO THE READER HAving received the ensuing Narrative of the Case and Trial of the Earl of Argyle under the Caution you may find in the close of it not to hasten the publication but rather to vvait for a more convenient season It 's like I had continued to comply as I have done hitherto vvith the Earl's inclination if not excited to the contrary by a Paper called A Vindication of His Majestie 's Government and Judicatories in Scotland Especially with relation to the late Earl of Argyle's Process printed at Edinburgh and reprinted at London vvith the appearance of a publick allovvance For albeit all wise and sober men not only in Scotland but also in the vvorld vvho have heard this affair do at this day sufficiently understand its rise procedure issue and tendency vvith all the just consideration that either oppressed innocence abused justice or impotent and ill contrived malice do deserve Yet seeing these concerned have had the confidence to subject their Res Judicata to an unexpected review and vvithall the equitie to leave their advantages and sist themselves on even ground vvith an open defiance to all contradictors and fair submission to the common sense and reason of mankind I thought I could not be vvanting to such an happy opportunity vvithout disappointing so generous an offer deserting my good Friend the Author of the Mist and failing of the second and principal part of my Trust And therefore resolved vvithout further delay to give the follovving sheets their long desired licence Purposing to subjoyn as an Appendix any further animadversions that the above-mentioned Pamphlet may seem to deserve ERRATA PAg. 2. L. 48. Acts r. Oaths p. 6. l. 39. Tursday r. Thursday p. 8. I. 9. peased r. pleased l. 20. And r. But. p. 40. l. 24. prositive r. positive p. 41. l. 38. 1667. r. 1567. p. 44. l. 61. ther r the. p. 64. l. 6. King r. Kingdom p. 66. l. 48 the Earl's hand r. the Earl of Glencairn first Chancellour after His Majesties Return his hand p. 76. l. 2. is not r. as not p. 82. l. 34. yet r. et p. 86. l. 3. Governour r. Deputy Governour p. 94. l. 3. I have considered r. I have not considered Edinburgh 30. May 1682. SIR The case of the late Earl of Argyl which even before the Process led against him you was earnest to know was at first I thought so plain that I needed not and grew afterwards so exceedingly mysterious that I could not for some time give you so perfect ane accompt of it as I wished But this time being still no less proper the exactness of mynarrative will I hope excuse all delays The design against him being now so clear and the grounds founded on so slender that to satisfie all unbyassed Persons of his integrity there needs no more but barely to represent matter of fact I should think shame to spend so many words either on arguments or relation were it not lest to strangers some mystery might still be suspected to remain concealed And therefore to make plain what they can hardly believe though we clearly see it At His Royal Highness arrival in Scotland the Earl was one of the first to wait upon him and until the meeting of our last Parliament the world believed the Earl was as much in His Highness favour as any intrusted in His Majestie 's affairs in this Kingdom When it was resolved and His Majestie moved to call the Parliament the Earl was in the countrey and at the opening of it he appeared as forward as any in His Majestie 's and His Highness service but it had not fat many dayes when a change was noticed in His Highness and the Earl observed to decline in His Highness favour In the beginning of the Parliament the Earl was appointed one of the Lords of the Articles to prepare matters for the Parliament and named by His Highness to be one of a Committee of the Articles for Religion which by the custom of all Scots Parliaments and His Majestie 's instructions to his Commissioner at this time was the first thing treated of In this Committee there was ane Act prepared for securing the Protestant Religion which Act did ratify the Act approving the Confession of Faith and also the Act containing the Coronation Oath appointed by several standing Acts of Parliament to be taken by all our Kings Regents before their entrie to the exercise of the Government This Act was drawn somewhat less binding upon the Successor as to his own profession But full as strictly tying him to maintain the Protestant Religion in the publick profession thereof and to put the Laws concerning it in execution and also appointing a further Test beside the former to exclude Papists from places of publick trust and because the fines of such as should act without taking the Test appeared no better then discharged if falling in the hands of a Popish Successor and some accounting any limitation worse then ane exclusion and all being conâ—ent to put no limitation on the Crown so it might consist with the safety and security of the Protestant Religion it was ordained that all such fines and forfaultures should appertain the one half to the informers and the other half should be bestowed on pious uses according to certain Rules expressed in the Act. But this Act being no wise pleasing to some it was laid aside and the Committee discharged any more to meet and instead of this Act there was brought in to the Parliament at the same time with the Act of succession a short Act ratifying all former Acts made for the securitie of the Protestant Religion which is the first of the printed Acts of this Parliament At the passing of this Act the Earl proposed that these words And all Acts against Poperie might be added which was opposed by the Advocat and some of the Clergie as unnecessary But the motion being seconded by Sir George Lockhart and the then President of the Session now
children therein shall never consent to any change contrary thereto And that I disown all such Doctrines whether Popish or Fanatical which are contrary to inconsistent with the true Protestant Religion this Confession of Faith All these Propositions and every thing contained therein I firmly believe and embrace and I promise and swear that I shall adhere to them so long as I live without ever changing my opinion about them and that I shall carefully educate my children according to them i. e. I shall teach them to repress Tyranny and if the Authority should make any alteration in the said Confession or any of the Propositions therein I swear that I shall neuer consent thereto And I swear also That I shall renounce all Principles Doctrines and Practices whether Popish or Fanatical which are contrary to any Article or proposition of the foresaid Confession of Faith And for testification of my obedience to my most Gracious Soveraign Charles the Second I do affirm and swear by this my solemn Oath That the Kings Majesty is the only Supreme Governour over this Realm over all Persons and Causes as well Ecclesiastick as Civil and that no Foreign Prince c. As I have declared my Faith toward God so now to testifie that I am a good Subject to the King I affirm and swear by this my solemn Oath That the Kings Majesty is the onely Supreme Governour over all Persons not only Civil but also Ecclesiastical By which I understand that Ecclesiastical Supremacy which the Parliament by Act Nov. 1669. has declared to belong to him as an inherent Right of the Crown By vertue whereof His Majesty and Successors may dispose of the external Governement and Policy of the Church as they please i. e. of all Church-Government there being no other Government exercised in the Church by men but that which is external And that they may settle enact and emit any Constitutions Acts or Orders concerning the Government or persons employed therein and concerning all Ecclesiastical meetings and matters to be proposed and determined therein as they shall think fit So that I affirm that His Majesty and Successors may alter change or abolish the form of Church-Government now established by Law that he may commit it into the hands of persons of a different Religion from what is presently professed in this Realm that he may discharge all meetings of Synods Presbyteries and Sessions for ever Or if he shall please to continue them that he may chuse one delegated or deputed by himself to propose and determine all-matters therein as he thinks â—it That he may by vertue of his Supreme Power iuhibit Church-Officers to meet or meddle in any matter eisher Doctrine or Discipline without his special Order to persue or process any Delinquent or to consider of means to prevent any change or alteration in Religion tho it should be in never so great hazard except only as he shall determine and appoint therein All which he may do by himself and his Councill without any new Law or Act of Parliament And I affirm swear that tho any of His Majesties Successors shall happen to be of another Religion as God forbid yet all this Ecclesiastical Power does belong to him it being declared to be an inherent Right in the Crown and so not to belong to him as a Christian or Protestant Magistrate but as a Magistrate precisely And to my power I shall defend all Rights Jurisdictions Prerogatives Priviledges Preheminencies belonging to His Majesty and lawful Successors And also I swear by this my solemn Oath that so far as I am able I shall assist and defend His Majesties Rights and Prerogatives which because I do not know therefore whatsoever the King and Parliament or King and Council shall declare to belong to him as a Right Jurisdiction and Prerogative either in Civil or Ecclesiastical Affairs either concerning Religion Liberty or Property by Ecclesiastical Supremacy I swear I shall own and approve assist and defend the same as far as possibly I can And further I affirm and swear by this my solemn Oath That I judge it unlawful for Subjects upon pretext of Reformation or any other pretence whatsoever to enter into Covenants or Leagues or to convocate conveene or assemble in any Council Convocation or Assembly to treat consult or determine in any matter of State Civil or Ecclesiastick without His Majesties special Licence or express Warrant had thereto or to take up Arms against the King or those commissionated by him And that I shall never so rise in Arms nor enter into such Covenants or Assemblies c And I further swear That I think it utterly unlawful for any Subject of whatsoever quality or condition many or few for whatsoever Cause not only to make any Covenants but not so much as to meet together in any kind of Meeting to hear see or consult about any matter belonging to the Civil or Ecclesiastical Estate without His Majesties special Command and express Licence So that whatsoever corruption or abuse may be in the Civil Government through the fault of the King or Council or whatsoever hazard or danger the true Religion and Church of God within this land may be in I judg it unlawful for any Subject whether Pastors or others to meet together that they may consider what way to remedy or prevent the same tho it were only by humble Addresses and Petitions And I sâ—ear That there can never fall out a Case wherein Subjects may rise in Arms against their King or any Commissionated by him even though it were meerly to defend themselves tho never so cruelly persecuted and invaded by any who pretend his Name and Authority And I promise and swear That if any shall rise in Arms or meet together in a peaceable way for the ends foresaid that I shall never joyn with them And that there lies no Obligation on me from the National Covenant or the Solemn League and Covenant so commonly called or any manner of way whatsoever to endeavour any change or alteration in the Government either in Church or State as it is now established by the Laws of this Kingdom c. And I also affirm and swear by this Oath That there lies no Obligation on me either by the National or Solemn League and Covenant or any other way imaginable whatsoever to endeavour the least change or alteration in the Government either in Church or State as they are now established So that I am never to endeavour any alteration not only in the Civil Government but also in the Govern of the Church as it is now established among us though it should be found never so prejudicial to Religion to His Majesties Service or to the good of the Countrey Yea whatever corruptions may come to be in either of the Govern I swear That I am obliged never to endeavour the least alteration of them And particularly 1. As to the Ecclesiastical Govern it being established by
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 for faulture 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 Rumors 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 Rumors 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 he 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 for fault Life and Goods Item it is ordained by the King and whole Parliament that all Leasing makers 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 tyne Life 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 Leidges 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 Leidges 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 Leidges Act 134. Par. 8 James 6. May 22. 1584. Anent Slandereres 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 publik 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 needlesly 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 statut 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 publikly in Sermons Declamations 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 Leesings 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 22 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 10 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 lyes 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 knowledg of his Highness or his said Privy-Council wherethrough 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 Speeches 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 whoso 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 publikly to declaim or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate
and when his Highness was told it was hard measure by such a process and on such pretensions to thereaten life and fortune his Highness said life and fortune God forbid What happened after these things and how the processe was carried on followes now in order and for your more clear and distinct information I have sent you several very necessary and useful papers with indexes on the margin pointing at such passages as more remarkably concern this affair And the papers are I. Act Char. 2. P. 3. C. 6 Aug. 31. 1681. Anent Religion and the Test. II. Act I. 6. P. 1. C. 3. Anno 1567. Anent the annulling of the Acts of Parliament made against God's Word and for maintainance of Idolatry in any times by past III. Act I. 6. P. 1. C. 4. Anno 1567. The Confession of the Faith and Doctrine c. IV. Act I. 6. P. 1 C. 8. Anno 1567. Anent the Kings Oath to be given at his Coronation V. Act I 6. P. 1. C. 9. No Person may be judge Procurator Notar nor member of Court who professeth not the Religion c. VI. Part of the Act I. 6. P. 2. C. 5. Anno 1609. entituled Act against Jesuits seminary Priests sayers or hearers of Messe Papists and receptors of them VII Act I 6. P 3. C. 47. Anno 1572. Adversaries of the true Religion are not Subjects to the King Of Apostats VIII Act Char. 2. P. 2. C 1. 16 Nov. 1669. Act asserting his Majesties Supremacy over all persons and in all causes ecclesiastical IX The Bishop of Aberdeens explication of the Test. X. The explication of the Test by the Synod and Clergie of Perth XI Paraphrase on the Test XII Grounds wherupon some of the conform Ministers scruple to take the Test. XIII Sederunt of the Council 22. September 1681. XIV The Earl of Queensberries explanation XV. Sederunt 21 October 1681. XVI The Bishop of Edinburgh's paper and vindication of the Test. XVII Sederunt 3 November 1681. XVIII Privy Councils explanation XIX Sederunt 4. Nov. 1681. XX. The Earl of Argyl's explication of the Test. XXI The explanation of his explication XXII The Councils Letter to the King XXIII The Kings Answer XXIV The inditement XXV Abstract of the Acts of Parliament whereupon the inditment is founded XXVI The Earl of Argyl's first Petition for Advocats XXVII The Councils Answer XXVIII The Earl of Argyl's second Petition XXIX The Councils Answer XXX The Earl of Argyl's Letter of Atturney XXXI Instrument thereon XXXII Opinion of Lawyers of the Earl's Case Which Papers may give you much light in this whole matter Anâ— ACT For securing the Protestant Religion and enjoyning a Test. OUR Soveraign Lord with his Estates of Parliament considering That albeit by many good and wholsom Laws made by his Royal Grandfather and Father of glorious Memory and by himself in this and the other Parliaments since his happy restauration The Protestant Religion is carefully asserted established and secured against Popery and Fanaticisme yet the restless Adversaries of our Religion do not cease to propagate their errors and to seduce His Majesties Subjects from their duty to God and loyalty to his Vicegerent and to overturn the established Religion by introducing their superstitions and delusions into this Church and Kingdom And knowing that nothing can more encrease the numbers and confidence of Papists and Schismatical Dissenters from the established Church then the supine neglect of putting in execution the good Laws provided against them together with their hopes to insinuate themselves into Offices and places of trust and publick employment Therefore His Majesty from his Princely and pious Zeal to maintain and preserve the true Protestant Religion contained in the Confession of Faith recorded in the first Parliament of King James the VI. which is founded on and agreeable to the written word of God Doeth with advice and consent of his Estates of Parliament require and command all his Officers Judges and Magistrates to put the Laws made against Popery and Papists Priests Jesuits and all persons of any other Order in the Popish Church especially against all sayers and hearers of Messe venters and dispensers of forbidden books and resetters of popish Priests and excommunicat Papists as also against all fanitical Separatists from this National Church against Preachers at house or field Conventicles and the resetters and harbourers of preachers who are intercommuned against disorderly Baptisms and Marriages and irregular Ordinations and all other schismatical disorders to full and vigorous execution according to the tenor of the respective Acts of Parliament thereanent provided And that His Majesties Princely Care to have these Laws put in execution against these enemies of the Protestant Religion may the more clearly appear He doth with aduice and consent foresaid statute and ordain that the Ministers of each Parish give up in October yearly to their respective Ordinaries true and compleat Lists of all Papists and schismatical with-drawers from the publick worship in their respective Parishes which Lists are to be subscribed by them and that the Bishops give in a double of the said Lists subscribed by them to the respective Sheriffs Steuards Bayliffs of Royalty and Regality and Magistrates of Burghs to the effect the said Judges may proceed against them according to Law As also the Sheriffs and other Magistrats foresaid are hereby ordained to give an accompt to His Majesties Privy Council in December yearly of their prooceedings against those Papists and fanatical separatists as they will be answerable at their highest peril And that the diligence done by the Sheriffs Baylies of Regalities and other Magistrates foresaid may be the better enquired into by the Council the Bishops of the respective Diocesses are to send exact doubles of the Lists of the Papists and Fanatiks to the Clerk of the Privy Council whereby the diligence of the Sheriffs and other Iudges of Courts may be comptrolled and examined And to cut off all hopes from Papists and Fanatiks of their being imployed in Offices and Places of publick trust It is hereby statute and ordained That the following Oath shall be taken by all persons in Offices and Places of publick trust Civil Ecclesiastical and Military especially by all Members of Parliament and all Electors of Members of Parliament all Privy-Councellors Lords of Session Members of the Exchequer Lords of Justitiary and all other Members of these Courts all Officers of the Crown and State all Archbishops and Bishops and all Preachers and Ministers of the Gospel whatsoever all persons of this Kingdom named or to be named Commissioners of the Borders all Members of the Commission for Church affaires all Sheriffs Steuards Baylies of of Royalties and Regalities Iustices of Peace Officers of the Mint Commisaries and their Deputies their Clerks and Fiscals all Advocats and Procurators before any of these Courts all Writers to the Signet all publick Notars and other persons imployed in writing and agenting The Lyon King at arms Heraulds Pursevants Messengers at
of new in this present Parliament statutes and ordains the said Act to be as a perpetual Law to all our Soveraigne Lords leiges in all times coming Of the quhilk the tenour followes The quhilk day for sameâ—â—le as there has been divers and sundrie Acts of Parliament made in King James the I. II. III. IV. and V's times Kings of Scotland for the time and also in our soveraigne Ladies time not agreeing with Gods holy Word and by them divers persons take occasion to maintaine Idolatrie and Superstition within the Kirk of God and repâ—esse such persons as were professors of the said Word wherethrow divers innocents did suffer And for escheving such inconveniences in time coming the three Estates of Parliament has annulled and declared all such Acts made in tymes bypast not agreeing with God His Word and now contrary to the Confession of Faith according to the said Word published in this Parliament to be of none availe force nor effect And decerns the said Acts and every ane of them to have no effect nor strength in time to come But the same to be abolished and extinguished for ever in so far as any of the foresaid Acts are repugnant and contrary to the Confession of Faith and Word of God foresaid ratified and approved by the Estates in this present Parliament And therefore decerns and ordains the Contraveeners of the famine Act in any time hereafter to be punished according to the Lawes Of the Quhilk Confession of the Faith the â—â—nour follows THE Confession of the Faith and Doctrine Believed and professed by the Protestants of Scotland exhibited to the Estates of the same in Parliament and by their publick Vots authorized as a Doctrine grounded upon the infallible Word of God As the same Confession stands recorded Ja. 6. p. 1. c 4. Anno 1567. I. Of God WE confesse and acknowledge ane onely God to whom onely we must cleave whom onely we must serve whom only we must worship and in whom onely we must put our trust who is Eternal Infinit Unmeasurable Incomprehensible Omnipotent Invisible ane in substance and yet distinct in three Persons the Father the Sonne and the holie Ghost By whom we confesse and believe all things in heaven and earth aswel Visible as Invisible to have been created to be retained in their being and to be ruled and guided by his inscrutable Providence to sik end as his Eternal Wisdome Goodness and Justice has appointed them to the manifestation of his own glorie II. Of the Creation of Man WE confess and acknowledge this our God to have created man to wit our first father Adam in his own Image and similitude to whom he gave Wisedome Lordship Iustice Free will and clear knowledge of himself so that in the hail nature of man there could be noted no imperfection Fra quhilk honour and perfection Man and Woman did both fall the Woman being deceived be the Serpent and Man obeying the voyce of the Woman both conspiring against the Soveraign Majestie of God who in expresse words had before threatned death if they presumed to eat of the forbidden Tree III. Of Original Sinne. BE quhilk transgression commonlie called Original Sinne was the image of God utterlie defaced in Man and he and his posteritie of nature became enemies to God slaves to Sathan and servants unto sin in samiekle that death everlasting has had and shall have power and dominion over all that have not been are not or shall not be regenerated from above quhilk regeneration is wrought by the power of the holie Ghost working in the hearts of the elect of God ane assured faith in the promise of God revealed to us in his word be quilk Faith we apprehend Christ Jesus with the graces and benefits promised in him IV. Of the Revelation of the Promise FOR this we constantlie believe that God after the fearful and horrible defection of man fra his obedience did seek Adam again call upon him rebuke his sin convict him of the same and in the end made unto him ane most joyful promise to wit that the seed of the woman should break down the serpents head that is he should destroy the works of the Devil quhilk promise as it was repeated and made mair cleare from time to time so was it embraced with joy and maist constantly received of all the faithful from Adam to Noah from Noah to Abraham from Abraham to David and so forth to the incarnation of Christ Jesus all we mean the faithful fathers under the law did see the joyful day of Christ Jesus and did rejoyce V. Of The continuance increase and preservation of the Kirk WE maist constantly believe that God preserved instructed multiplyed honoured decored and from death called to life his Kiâ—k in all ages fra Adam till the coming of Christ Jesus in the flesh For Abraham he called from his fathers countrey him he instructed his seedhe multiplyed the same he marvelously preserved and mair marvelously delivered from the bondage and tyranny of Pharaoh to them he gave his Laws constitutions and ceremonies them he possessed in the Land of Canaan to them after Iudges and after Saul he gave David to be King to whom he made promise that of the fruit of his Ioynes should ane sit for ever upon his regnall seat To this same people from time to time he sent Prophets to reduce them to the right way of their God from the quhilk oftentimes they declined by Idolatry and albeit that for their stubborn contempt of justice he was compelled to give them into the hands of their enemies as before was threatned by the mouth of Moses in sameikle that the hally City was destroyed the temple burnt with fire and the haile land left desolate the space of lxx years yet of mercy did he reduce them again to Jerusalem where the City and Temple were reedified and they against all temptations and assaults of Sathan did abide till the Messias came according to the promise VI. Of the Incarnation of Christ Jesus WHEN the fulness of time came God sent his Son his eternal wisdome the substance of his own glory into this World who took the nature of man-head of the substance of woman to wit of a virgin and that by operation of the Holy Ghost and so was born the just seed of â—avid the Angel of thâ— great counsell of God the very Messias promised whom we confess and acknowledge Emmanuel very God and very man two perfect natures united and joyned in one person By quhilk our Confession we condemn the damnable and pestilent herefies of Arrius Marchion Eutiches Nestâ—rius and sik others as either did deny the eternity of his God-head or the verity of his human nature or confounded them or yet divided them VII Why it behoved the Mediator to be very God and very man WE acknowledge and confess that this maist wonderous conjunction betwixt the God-head and the man-head in Christ Jesus did proceed from the
God Subjects may take up Arms against him 2. They maintain That nothing is to be allowed in the worship of God but what is prescribed in his Word Were not these the Principles that embroiled these Kingdoms that raised a Combustion and that turned all things upside down both in Church and State And are not these Principles plainly taught in this Confession It is reckoned Art 15 a duty to repress Tyranny and to disobey and resist Kings is a sin with this caution and limitation while they pass not over the bounds of their Office or do that thing which appertains to their charge And in like manner the assistance we ow them is cautioned and limited while they vigilantly travel in the execution of their Office Is not this the very Doctrine of the Solemn League and Covenant by which they bind themselves to defend the Kings Majesty's Person and Authority in the preservation and defence of the true Religion and Liberties of the Kingdom Let any but read Spotswood's History of the Resormation Anno 1558 1559 1560. among others how Subjects did bind themselves by Oaths and Subscriptions to assist one another for advancing the Cause of Religion how by the advice of the Ministers they deprived the Queen Regent of her Government and this very year this Confession was compiled and ratified in Parliament And I am sure there can remain no doubt about the sense of the Confession in this point But to render the matter beyond exception It is declared rebellious and treasonable by Act of Parliament for Subjects to put limitations on their due obedience and allegiance And for the other Principles about Divine Worship the Confession affirms these to be evil works that in matters of Religion and Worship of God have no other assurance but the invention and opinion men In this principle they condemn very Ancient and laudable Customs of Churches as singing the Doxology and the most innocent and indifferent Ceremonies for decency and helps for Devotion calling them by the odious titles of Superstition and Will-worship But be these Principles true or false in themselves certainly they are utterly inconsistent with these other clauses in the Test that assert it unlawful on any pretence whatsoever to take Arms against the King and invest him with such a Supremacy as impowers him to erect such Constitutions and orders about Ecclesiastical matters as His Majesty thinks fit And in this also there is a palpable Contradiction that the Test binds us not to consent to any change contrary to the Confession and by and by enjoyns to swear what is flatly contradictory to it We cannot take this Test unless with the same breath we swear and forswear under Oath protest onething and forthwith under Oath protest the quite contrary It obliges us to swear we shall with our utmost power defend assist and maintain all the Kings Rights And is not this to swear we know not what or is it not to swear we shall maintain and defend with the greatest zeal and concernedness whatsoever the King challenges or the Parliament votes to belong to him And may not a Prince come to claim a Right to act Arbitrarily and may not iniquity happen to be established by Law Nay doth not the King de facto challenge and has not the Parliament declared Supremacy to be an inherent Right of the Crown by which His Majesty may settle and emit such Acts and Orders as he pleases about Ecclesiastical matters And are not Articles of Faith Ecclesiastical maters And what is this but to avow we hold our selves obliged to believe as the King believes And so ere long the Rights Jurisdictions Prerogatives Priviledges Preeminences and Authorities that may be v ted to belong to our Prince may come to swallow up Religion Liberty Property and all our Priviledges We do not see how any man of Sense and Conscience can swear this clause in so great a Latitude and so illimited Terms It obliges us to swear That we acknowledg it unlawful without the Kings special Command to convocate conveen or assemble in any Council Convention or Assembly to treat consult or determine in any matter of State Civil or Ecclesiastik The clause excepting ordinary judgments which was added in all such convocating conveening and assembling which were declared unlawful Anno 1661. 1. Par. Char. 2. Act 21. being left out here we have reason to think that all such Sessions Presbyteries and Synods are discharged there being no special Command or Express for them that we know of And these meetings being of great use for curbing of Vice and Prophanesse and for setling and entertaining Peace and good Order in the Church we cannot swear to forbear holding of them tho we have not an express License from the King We acknowledg Princes have Power and Authority to inhibit their Subjects to meet as they see cause but we cannot bind our selves to obey them against such liberty which Christ hath conferred on his Church This is a Priviledg the Church ever enjoyed since it was founded and erected by our Saviour and in all Ages used as the state of affairs required So we cannot devoid our selves of it without proving betrayers of our Trust and condemning the conduct of the Primitive Christians who without special command nay contrary to the express Edict of Princes did convocate conveen or assemble in Councils and Conventions to treat consult and determine about Ecclesiastical matters and yet for all that have been no less commended and admired for loyalty and peaceableness than for piety and zeal And seeing that in the present juncture its notour that there are Cabals and Engines formed and carried on to undermine the Protestant Religion and to bereave us of the Truth which our Lord has committed to us as so many Depositaries Can we without the most horrid guilt and the blackest infamy swear That we shall not so much as meet Two or Three of us together till we have the Kings Warrant perhaps never to consult about the Welfare of the Church and the Salvation of our own and other Mens Souls It obliges us to swear there is no obligation on us any manner of way whatsoever to endeavour any change or alteration in the Government either in Church or State Is not this to swear what no man living can assuredly know And are there not indeed many tyes on us as Men as Christians as Pastors to procure as far as in us lyes the happiness of the Church and State Now if we discern and it be acknowledged by wise and good men that the Government may be bettered by enacting wholsome new Laws and abrogating corrupt old ones might we not ought we not in our stations endeavour such an alteration The Constitution of a National Synod e. g. gives the Archbishop of St. Andrew's a Negative when the whole Clergy is contrary so that were all our Bishops and other Members of the Synod men of Apostolick sanctity and zeal yet nothing could be done
is counted Blasphemy for Angels or Men to intrude themselves into the said Honor and Office 4 th Section the 23 th on the Sacraments Popish Baptism is denyed as to its validity and Popish Priests denyed to be true Ministers which expressions if narrowly scanned will be found of dangerous consequence and contradictory to other positions in the Confession it self Fourthly we fear that our People may look on us rather as Countenancers and Incouragers then Suppressors of Popery seeing by the Act we are obliged to delate yearly in October such as withdraw from our Ministry that they may be punished by the civil Magistrats and yet by the same Act the Kings lawful Brother and Sons in perpetuum are exempt from taking the Test and consequently left at liberty to be Papists or Protestants and what bad influence their example may have on inferior People may easily be apprehended and our taking the Test will be reputed an approving of that exemption which will be more stumbling That all former Acts against Papists were made without any exemption and they all declared to be disloyal who embraced not the Reformed Religion particularly in the 47 th Act of the third Parliament of James the V I. and the 8 th Act of the I. Parliament of Charles the II. Fifthly We are to swear that there lyes no obligation on us by vertue of the late Covenants or any other manner of way to endeavour the change of the Government either in Church or State as it is established by Law where we suppose we are sworn not only to maintain Monarchy but also as our Law tyes us in the present line and in the nearest in kin to our present King altho they should be Papists altho we judge the Coronation Oath in the eight Act of the first Parliament of James the VI. to be contradictory which yet is a standing unrepealed Law since this currant Parliament hath ratified and confirmed all Acts made in savour of the Protestant Religion whereof this is one so that we swear Contradictions Sixthly as for the Church Government as it is now establisht by Law there hath not been nor are yet wanting sound Protestants who assert the Jus divinum of Episcopacy such could not in conscience take this Oath seeing the King by vertue of his Prerogative and Supremacy is impowered by Law to dispose of the External Government and Policy of the Church as he pleases as for such as look upon Episcopal Government as indifferent in it self notwithstanding the submission that we give to it or have ingaged for they can as litle swear on these terms for why should they swear never to endeavor to alter that which in it self they look upon as alterable there being no indifferent thing which in tract of time through the corruption of Men may not prove hurtful and why might not men in their Station endeavor the redressing by fair means of any such evil and advise his Majesty if he be willing to exert the power setled on him by the law for freeing the Church from any inconveniency and altho we have engaged to obey Bishops yet we ever did wish that they may be setled aâ—ongst us in a way more suitable to the primitive times viz. That their number might be more encreased that they might by called by the Church allenarly to that office and that they might be made liable to the censure of the Church for their doctrine life and diligence that they might not be such pragmatical Medlers in Civil affairs and that Synods and Presbyteries might have more power then is assigned them by the Act of Restitution from the seeking a Remedy in any of which things this Oath doth tye us up Seventhly the power given to the King by the present laws if he should be popish should be very prejudicial to the Protestant Interest for by the first Act of the 2d Parliament of Charles the 2d he may not only dispose of the external Policy of the Church but may emit such Acts concerning the Persons imployed therein all Ecclesiastical Meetings and Matters to be treated upon therein as he shall think fit and this Act only published is to oblige all his Subjects and by the Act for a National Synod no Doctrinal Matter may be proposed debated or concluded without his express allowance in the foresaid case it is easie to divine what advantage the Enemies of our Religion will have for the overturning of all Hoc â—thacusvelit magno mercentur Atridâ— EDENBURGH The sederunt of the Council Sederunt vigesimo secundo Die Septembris 1681. His Royal Highness c. Montrose Errall Marshall Marr Glencarne Winton Linlithgow Perth Strathmore Roxburgh Queensberry Airley Kintore Breadalbane Lorne Levingston Bishop of Edenburgh Elphinston Rosse Dalziel Treasurer Deputy Praeses Advocate Justice Clerk Collintoun 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 Queensberrie's Explanation of the Test when he took it HIS Lordship declared that by that part of the Test That there lyes no obligation to endeavour any change or alteration in the Government c. He did not understand himself to be oblidged against Alterations In case it should please His Majestie to make alterations of of the Government of Church or State HALYRUDEHOUSE Sederunt vigesimo primo Die Octobris 1681. His Royal Highness c. Winton Perth Strathmore Queensberry Ancram Airley Lorne Levingston Bishop of Edenburgh Treasurer Deputy Praeses Register Advocate Collintoun This day the Bishop of Edenburgh having drawn up a long Explication of the Test to satisfie the many Objections and Scruples moved against it especially by the conformed Clergie presented it to the Council for their Lp's Approbation which was ordered to be read But the paper proving prolixe and tedious His Highness after reading of a few leaves interrupted saying very wittyly and pertinently that the first Chapter of John with a stone will chase away a dog and so brake it off Yet the Bishop was afterward allowed to print it if he pleased and here you have it The Bishop of Edenburgh's Explanatory Vindication of the Test. THE last Session of this currant Parliament considering the interest of the true Protestant Religion to be the most sacred and important of all others doth by the first Act revive ratifie and confirm all Acts and Statutes made in our former Parliaments establishing the same in this Kingdom which Acts being made by our wise Ancestors when the Protestant Religion was in greatest danger not only from the great number of Popish Subjects in this Kingdom many whereof were persons of greatest interest power and influence therein but from the Power of France as well as of the Pope both which were zealously bent to re-establish and confirm the setlement of Popery in its Jurisdictions and Superstitions amongst
whatsoever were throughly convinced of the doctrine and duty of their obedience to the Supreme Powers otherways as they grow popular they become dangerous Sacerdoces eo quidem sunt ingenio ut ni pareant territent St. Chrysostom comments excellently on Rom. 13 v. 1. 2. Let every soul be subject saying whether he be an Apostle or Evangelist a Prophet c. let him be subject to the higher Powers Our blessed Saviour and the Apostles were the most eminent Ecclesiastical persons yet did not think themselves exempted from the Authority and Jurisdiction of the Civil Powers and if the 24th Article of the Confession of Faith mentioned in the Test be considered it will be found to grant as much to the Civil Magistrate as here is asserted and yeelded Yet all this power belonging to the supreme Magistrate over religious persons and matters doth not interfer with nor suppress the intrinsik and essential Power and Authority of the Church for the Church's power is internal and spiritual and the power of the supreme Magistrate is external coercive and temporal which when duely weighed in a just balance will be found not only to be poised of just different kinds and natures but so far from interfering with or destroying one another that if duely and rightly managed they do mutually assist and support each other Beside the sense of the Oath of Supremacy asserted in a Speech delivered by B. James Usher then Bishop of Meath and afterwards Primate of Ireland at Dublin Novemb. 22. 1622. for which he received the thinks of King James the sixth the Solomon of his Age by a Letter from His Majesty dated the 11. day of January 1623. is so clear and plain that it leaves no place for any manner of scruple concerning the intrinsick power of the Church as if it were invaded and incroached upon by the foresaid Oath where it is said That the Kings Supremacy reacheth the outward man only but the spiritual and intrinsick power of the Church reacheth to the inward this binding or loosing the soul that laying hold only on the body and things belonging thereto Yea there is an Act of the Parliament of England 13. Eliz. declaring That by the supreme Government given to the Prince is understood that kind of Government only which is exercised with the Civil Sword So that there is nothing can be more evident than that by the Kings Supremacy as asserted by the Act November 16. 1669. no incroachment or invasion is made upon the spiritual intrinsick power of the Church Besides by the very express words of that assertory Act No more is declared to belong to the King save the ordering and disposal of the external Government and Policy of the Church And again The administration of the external Government of the Church where not a syllable can be found touching upon the internal spiritual and essential power and iurisdiction thereof And as to the word matters contained in that Act the Kings emitting Orders concerning religious matters as well as persons it needs stumble no thinking person as if our Religion were thereby exposed to dangers at the pleasure of the Prince if we consider the following words viz. Matters to be proposed and determined in Ecclesiastical Meetings or Assemblies which reserves the power of determining matters of Religion still in the hands of that Meeting or Assembly So that tho the King may by vertue of his RoyalSupremacy propose any matter of Religion to a National Asâ— Yet it is not to pass unto an act till first it be determined by the deliberate and free consent vote and suffrage of the major part of that Ecclesiastical Meeting And now let the Impartial Judg if any so great security for the true Protestant Religion can be devised as to have all Bishops Ministers and Members of a National Synod to whom the determining of matters of Religion by Law belongs solemnly sworn and bound by this Oath and Test to adhere to the same Protestant Religion all the days of their lives and never to consent to any alteration or change thereof As for the other Objection of these who think that by this assertory Act 1669. there is a power declared to be vested in the King to alter and change the Established Episcopal Government of this National Church which these who believe Episcopacy to be of Divine Right and Apostolical Institution and by consequence unalterable by any humane Authority can never swear to belong to the Crown as an Inherent Right and Prerogative thereof For answer Tho this point of the Divine Right of Episcopacy is tenderly to be touched the Phrase of Jus Divinum being in terms subject to misconstruction yet it must be acknowledged that no form of Church Government was ever yet modelled or set up which hath not claimed to a Jus Divinum as well as Episcopacy tho every one of them with far more noise but with far less reason than this hath done For the Papists ground the Popes Oecumenical Supremacy upon Christs Commands to St. Peter to execute it and to all the Flock of Christ Soveraign Princes as well as others to submit to him as to their Universal Pastor The Presbyterians cry up their model of Government tho of a very late Edition as the very Scepter of Christs Kingdom to which all Kings are bound to submit theirs making it also unalterable and as inevitably necessary to the being of a Church as the Word and Sacraments The Independents assert that any single Confederate Congregation is Jure Divino free and absolute within it self to govern it self by such Rules as shall be consented to by its Members without dependance from any except Jesus Christ alone or subjection to any Prince Bishop or any other Person or Consistory whatsoever So that all these other flatly deny the Kings Supremacy and claim a Power and Jurisdiction over him The Presbyterians agreeing with the Papists in this branch of Antichristianism and claiming to their Consistories as full and absolute Jurisdiction over Princes even to the highest censure by Excommunication as the Romanists challenge to belong to the Pope or pleading at least a priviledg of exemption from the Kings Authority and Jurisdiction The Independents exempting their Congregations from all Ecclesiastical subjection to Christian Kings in asample manner as ther Papists do their Clergy whereas the Protestant Bishop and regular Ministers as becometh good Christians and dutiful Subjects do neither pretend to any Jurisdiction over the King nor withdraw their Subjection from him but humbly acknowledg His Majesty to have Soveraign Power over them as well as over his other Subjects and that in all matters Ecclesiastical as well as Temporal But for a more closse Answer to this Objection They who believe the Indifferency of the forms and models of Church-Goverment cannot have any scruple on this Head in regard of the present Church-Government For should it be changed by Authority then are they not obliged by this Oath any longer
whoso does in the contrary to be punished at the Kings will And by the 10th Act Par. 10. James 6. it is statuted That none of His Majesties Subjects presume or take upon him publikly to declare or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws or Acts of Parliament or mistconstrue his Proceedings whereby any mistaking may be moved betwixt his Highness his Nobility and loving Subjects in time coming under pain of death certifying them that does in the contrary they shall be reputed as seditious and wicked instruments enemies to his Highness and to the Commonwealth of this Realm and the said pain of death shall be executed against them with all rigour to the example of others And by the second Act Ses. 2. Par. 1 Char. 2. it is statuted That whosoever shall by writing libelling remonstrating express publish or declare any words or sentences to stir up the people to the dislike of His Majesties Prerogative and Supremacy in causes Ecclesiastik or of the Government of the Church by Archbishops and Bishops as it is now setled by Law is under the pain of being declared incapable to exercise any Office Civil Ecclesiastik or Military within this Kingdom in any time coming Like as by the fundamental Laws of this Nation By the 130th Act Par 8. James 6. it is declared That none of His Majesties Subjects presume to impugn the Dignity or Authority of the Three Estates or to procure innovation or diminution of their Power and Authority under the pain of Treason And that it is much more Treason in any of His Majesties Subjects to presume to alter Laws already made or to make new Laws or to add any part to any Law by their own Authority that being to assume the Legislative Power to themselves with his Majesties highest and most incommunicable Prerogative Yet true it is That albeit His Sacred Majesty did not only bestow on you the said Archibald Earl of Argyle those vast Lands Jurisdictons and Superiorities justly for faulted 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 25. 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-Council to take the Test appointed by the Act of the last Parliament to be taken by all persons in publik Trust you insteed 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 in to the Lords of His Majesties 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 â—est 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 uselesse 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 setled 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 setling of the Legistative 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 in the tenderest points they can be concerned and implying that the King and the 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 â—oosed 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
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 16â—2 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 setled 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 Ecclesiastik 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 constitut 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 thereanent 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 by-gone 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 Leidges 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 Advocats or Council to be allovved 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 ustitiary 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 Higâ—ness's and â—ordships Special Licence 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 consâ—lt and plead for him in the foresaid Criminal Process without incurring â—ny hazard upon that account and your Petitioner shall ever pray Edenburgh 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 Processof 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 allovved 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 Lockhart 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. Parliament of King James the VI. Cap. 38. As it is the undeniable priviledg 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 Priviledg 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 lest 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 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 Edenburgh 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
are ever to be interpreted and understood in meliorem partem And by way of Implication and Inference to conclud 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 foresaid 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 publik udicature 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 imâ—osing and enjoyning the Test There being nothing more opposite to the Acts of Parliamenâ— 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 inter 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 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 â—aws 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 Lavvs can only be understood in the express terms and qualifications â—oresaid 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-council to take the Oath did ever by word or practice use any reproachful speeches of the said Act of Parliament or of His Majestâ—es 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 publik Trust Which bein an Oath to be taken by so solemn an invocation of the Name of Almighty God it is not only allowable by the Lavvs and customs of all Nations and the Opinion of all Divines ad 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 maxime 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 t e 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 o the party is allowed and commended as much more ingenuous and tutius Remedium Conscientiae ne illaqueetur as appears by Bellarmine de Iuramento and upon the same Title de Interpretatione Iuramenti and Lessius that famous Casuist de Iustitia Iure Dubitatione 8 9. utrum siquis salvo animo aliquid Iuramento 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 Iuramento 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 publik 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 publikly and openly to clear and declare the same 4. Albeit it is not controverted but that a Legislator imposing an Oath or any publik 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 publikly 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 withalledged 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 Prejury 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 before his being required or appearing to take the Oath there were spread abroad such Scruples and Objections by some of the Orthodox Clergy and others So that the Earl can never in any sense be construed in his Explication wherein he took the Oath to have done it animo infamandi and to declaim against the Government For the Scruples and Objections that were spread abroad by others were a fair and rational occasion why the Earl in any sense or explication which he offered might have said that he was confident the Parliament never intended to impose contradictory Oaths and this is so far from importing the insinuation and inference made by the Libel that thereby the Parliament were so impious as to impose contradictory Oaths as on the contrary considering the Circumstances forementioned that there were Papers spread abroad insinuating That there were inconsiltencies and contradictions contained therein the said expression was an high Vindication of the Honour and Justice of the Parliament against the Calumnies and Mis-representations which were cast upon it and was also a just Rise for the Pannel for the clearing and exonoration of his own Conscience in the various senses and apprehensions which he found were going abroad as to the said Test humbly to offer his sense in which he was clear and satisfied to take the Oath 7. To the Libel in so far as it is founded upon the Act of Parliament viz. Act 130 Par. 8 James 6 declaring That none should presume to impugn the Dignity or Authority of the Three Estates of Parliament or procure any invasion or diminution thereof under the pain of Treason as also in so far as it is pretended in the Libel That the Pannel by offering the Sense and Explication libelled has assumed the Legislative Power which is incommunicable and has made a Law or a part of a Law It is answered The Libel is most groundless and irrelevant and against which the Act of Parliament is opponed which is so plain and evident upon the reading thereof that it neither is nor can be subject to the least cavillation And the plain meaning whereof is nothing else but to impugn the Authority of Parliaments as if the King and Parliament had not a Legislative Power or were not the highest Representative of the Kingdom or that any of the Three Estates were not essentially requisit to constitut the Parliament And besides there is nothing more certain than that the occasion of the said Act its being made was in relation to the Bishops and Clergy And there is nothing in the pretended Explanation that can be wrested to import the least Contravention of the said Act or to be an impugning of the Three Estates of Parliament or a seeking any innovation therein And it is admired with what shadow of Reason it can be pretended That the Pannel has assumed a Legislative Power or made a part of a Law seeing all that is contained in the alledged Explication libelled is only a Declaration of the Earl's sense in which he was satisfied to take the Oath and so respected none but himself and for the clearing of his own Conscience which justly indeed the Word of God calls a Law to himself without any incroaching upon the Legislative Power And where was it ever debated but that a man in the taking of an Oath if as to his apprehensions he thought any thing in it deserved to be cleared might declare the same or that his exhibiting at the time of the taking of the Oath his sense and explication wherein he did take it was ever reputed or pretended to be the assuming of a Legislative Power it being the universal practice of all Nations to allow this liberty and which sense may be either rejected or accepted as the Legislator shall think fit importing no more but a Parties private senseâ— for the exoneration of his own Conscience And as to that Member of the Libel founded upon Act 19. Par. 3. Queen Mary it contains nothing but a Declaration of the pain of â—erjury and there is nothing in the Explication libelled which can in the least be inferred as a Contravention of the said Act in respect if it should be proved That the Pannel at the time of the taking of the Oath did take it in the words of the said Explication as his sense of the Oath it is clear that the sense being declared at the time of taking the Oath and allowed as the sense wherein it was taken the Pannel can only be understood to have taken it in that sense And although publik Authority may consider whether the sense given by the Pannel does satisfie the Law or not yet that can import no more though it was found not to satisfie but to hold the Pannel as a Refuser of the Oath but it is absolutely impossible to infer the Crimes of Perjury upon it being as is pretended by the Libel the Pannel did only take it with the Declaration of the Sense and Explication libelled 8. As the Explication
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 ment em intentionem ejus cui fit juramentum Which is set down as the grand position by Sandersone whom they cite Pag. 137. and is founded upon that Mother-Law Leg. 10. cui interrogatus f. f. de interrogationibus in Iure 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 Liedges 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 behoved 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 any thing a greater Reproach on the Parliament or a greater ground of mislike to the People And whereas it is pretended That all Laws and Subsumptions should be clear and these are only Inferences It is answered That there are some things which the Law can only forbid in general And there are many Inferences which are as strong and natural and reproach as soon or sooner than the plainest defamations in the world do For what is openly said of reproach to the King does not wound him so much as many seditious Insinuations have done in this Age and the last So that whatever was the Earl's design albeit it is always conceived to be unkind to the Act against which himself debated in Parliament yet certainly the Law in such cases is only to consider what essect this may have amongst the People And therefore the Acts of Parliament that were to guard against the misconstruing of His Majesties Government do not only speak of what was designed but where a disliking may be caused and so judgeth ab effectu And consequentially to the same emergent Reason it makes all things tending to the raising of dislike to be punishable by the Act 60. Parl. 6. Queen Mary and the 9. Act. Parl. 20. James VI. So that the Law designed to deter all men by these indefinite and comprehensive Expressions And both in this and all the Laws of Leasing-making the Iudges are to consider what falls under these general and comprehensive words Nor could the Law be more special here since the makers of Reproach and Slander are so various that they could not be bound up or exprest in any Law But as it evidently appears that no man can hear the words exprest if he believe this Paper but he must think the Parliament has made a very ridiculous Oath inconsistent with it self and the Protestant Religion the words allowing no other sense and having that natural tendency Even as if a man would say I love such a man only in so far as he is an honest man he behoved certainly to conclude that the man was not every way honest So if your Lordships will take measures by other Parliaments or your Predecessors ye will clearly see That they thought less than this a defaming of the Government and misconstruing His Majesties Proceedings For in Balmerino's Case the Justices find an humble Supplication made to the King himself to fall under these Acts now cited Albeit as that was a Supplication so it contained the greatest expressions of Loyalty and offers of Life and Fortune that could be exprest Yet because it insinuates darkly That the King in the preceeding Parliament had not favoured the Protestant Religion and they were sorry he should have taken Notes with his own hands of what they said which seems to be most innocent yet he was found guilty upon those same very Acts. And the Parliament 1661. found his Lordship himself guilty of Leasing making tho he had only written a Letter to a private Friend which requires no great care nor observation but this Paper which was to be a part of his own Oath does because after he had spoken of the Parliament in the first part of this Letter he thereafter added That the King would know their Tricks Which words might be much more applicable to the private Persons therein designed than that the words now insisted on can be capable of any such Interpretation And if either Interpretations upon pretext of exonering of Conscience or otherwise be allowed a man may easily defame as much as he pleases And have we not seen the King most defamed by Covenants entered into upon pretence to make him great and glorious By Remonstrances made to take away his Brother and best Friend upon pretence of preserving the Protestant Religion and His Sacred Person And did not all who rebelled against him in the last Age declare That they thought themselves bound in duty to obey him but still as far as that could consist with their respect to the Protestant Religion and the Laws and Liberties which made all the rest ineffectual And whereas it is pretended That by these words I take the same in as far as it is consistent with it self and the Protestant Religion nothing more is meant but that he takes it as a true Protestant His Majesties Advocate appeals to your Lordships and all the Hearers if upon hearing this Expression they should take it in this sense and not rather think that there is an inconsistency For if that were possible to be the sense what need he say at all as far as it is consistent with it self Nor had the other part as far as it is consistent with the Protestant Religion been necessary For it is either consistent with the Protestant Religion or otherwise they were Enemies to the Protestant Religion that made it Nor are any Lawyers or others in danger by pleading or writing For these are very different from and may be very easily pleaded without defaming a Law and an
more strongly be said against the General 2. The 130. Act. Par. 8. James VI. is expresly founded on because nothing can be a greater diminution of the power of the Parliament than to introduce a way or mean 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 General 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 only 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 State as to the legality of which they were themselves to be Judges And how far from Degree to Degree this at last may come to absolute Anarchy and how scandalous a thing as well as unsecure this new way may look in an Age wherein we are too much tracing the steps of our rebellious Progenitors in the last whose great detection and error was That they thought themselves and not the King the Authors of Reformation in Church and State And no man ever was barred by that that the way he was upon was not a lawful way For if it be allowed to every man to take his own way every man will think his own way to be the lawful way As to the Perjury it is founded on this first That perjury may be committed not only by breaking an Oath but even in the swearing of it viz. to swear it with such Evasions as make the Oath ineffectual For which Sandersone is cited Pag. 138. Alterum Perjurii genus est novo aliquo excogitato Commento Iuramenti vim declinare aut eludere Iurans tenetur sub poena Perjurii implere Secundum Intentionem deferentus both which are here For the Earl being bound by the very Oath to swear in the genuine meaning without any evasion he has sworn so as he has evaded every word there being not one word to which it can be said particularly he is bound as is said And it is undeniable that he has not sworn in the sense of the makers of the Law but in his own sense which is Perjury as is said And consequentially whatever sense may be allowed in ambiguous Cases yet there can be none where the Paper clearly bears Generals And where he declares That he takes it in his own sense His Majesties Advocate declares he will not burden himself that Copies were disperst tho it is certain since the very Paper it self by the giving in is chargeable with all that is above charged upon it Sir John Dalrymple's Defence and Plea for the Earl of Argyle by way of Reply upon the King's Advocate SIR John Dalrymple replies for the Pannel That since the solid grounds of Law adduced in the Defences have received no particular Answers in relation to the common consent of all Casuists viz. That a party who takes an Oath is bound in Conscience to clear and propose the terms and sense in which he does understand the Oath Nor in relation to the several Grounds adduced concerning the legal and rational Interpretation of dubious Clauses And since these have received no Answers the Grounds are not to be repeated but the Proctors for the Pannel do farther insist on these Defences 1. It is not alledged That any Explanation was given in by the Pannel to any person or any Copy spread before the Pannel did take the Test in Council So that it cannot be pretended That the many Scruples that have been moved concerning the Test did arise from the Pannel's Explication But on the contrary all the Objections that are answered and obviated in the Pannel's Explication were not only privately muttered or were the thoughts of single or illiterate persons but they were the difficulties proposed by Synods and Presbyteries long before the Pannel came from home or was required to take the Test So that the general terms of the Acts of Parliament founded upon in the Libel are not applicable to this Case For as these Laws in relation to Leasing makers are only relative to atrocious wilful Insinuations or misconstructions of His Majesties Person or Government or the open depraving of his Laws so the restrictive Clause whereby sedition or misconstructions may be moved raised or engendered betwixt His Majesty and his Liedges cannot be applied to this Case where all these Apprehensions and Scruples were on foot and agitated long before the Pannel's Explanation As it cannot be pretended That any new dust was raised by the Pannel's Explanation so it is positively offered to be proved That there is not one word contained in this Explanation but that either these individual words or much worse had been publikly proposed and verbatim read in Council without the least discouragement or the least objection made by any Member of the Council And where a Writing ex proposito read in so high a Court was universally agreed upon without the alteration of a Syllable how can it be pretended That any person thereafter using the said in â—ividual terms in any Explanation and far easier terms that they shall incur the high and infamous Crimes libelled And the question is not here Whether the Council was a proper Judicature to have proposed or imposed a sense or allowed any Explanation of the Test to be published but that it is impossible that a sense they allowed or being publikly read beâ—ore them and which the Kings Advocate did not controll that this should import Treason or any Crime And tho the Pannels Advocate will not pursue or follow the Reply that has been made to this point yet
for reasons that you shall hear to stay till his Majesties return came to the Councils 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 Majesties answer here subjoyned The Kings Answer to the Councils Letter 18 Decemb 1681. C. R. MOst dearly c. having this day received your Letter of the 14. 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 15. of November last hereby to authorize you to grant a warrand to our Iustice General and the remanent Iudges of our Iustice Court for proceeding to pronounce a Sentence upon the Verdict of the Iury 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 untill 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 Iustitiary according to its last adjournment as shall be told you being to meet upon the fryday after a little hesitation in Council whether the Court of Iustitiary 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 precisly 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 ordinarly discoursed a part whereof I also find in a petition given in by the Countess of Argyle to the Lords of Justitiary before pronouncing sentence but without any answer or effect It was then commonly said that by the old Law and custom the Court of Iustitiary could no more in the case of Treason then of any other Crime proceed further against a person not compearing and absent then to declare him Out-Law and Fugitive And that albeit it be singlar in the case of Treason that the trial may go on even to a final sentence tho the partie be absent yet such trials were only proper to alwayes reserved for Parliaments And that so it had been constantly observed untill after the Rebellion in the Year 1666 But there being severall persones Notourly engaged in that rebellion who had escaped and thereby withdrawn themselves from Justice it was thought that the want of a Parliament for the time ought not to afford them any immunity and therefore it was resolved by the Council with advice of the Lords of Session that the Court of Iustitiary should summond and proceed to trial and sentence against these absents whether they compeared or not and so it was done Only because the thing was new and indeed an innovation of the old custom to make all sure in the first Parliament held thereafter in the Year 1669 it was thought fit to confirm these proceedings of the Justitiary in that point and also to make a perpetual statut that in case of open Rebellion and Rising in armes against the King and Government the Treason in all time coming might by an order from his Majestie 's Council be tried and the actors proceeded against by the Lords of Iustitiary even to final sentence whether the traitours compeared or not This being then the present Law and custom it is apparent in the first place that the Earl's case not being that of an open Rebellion and Rising in Armes is not at all comprehended in the Act of Parliament So that it is without question that if in the beginning he had not entered himself prisoner but absented himself the Lords of Iustitiary could not have gone further then upon a citation to have declared him fugitive But others said that the Earl having both entered himself prisoner and compeared and after debate having been found guilty before he made his escape the case was much altered And whether the Court could notwithstanding of the Earl's interveening escape yet go on to sentence was still debatable for it was alledged for the affirmative that seeing the Earl had twice compeared and that after debate the Court had given judgment and the Assize returned their Verdict so that nothing remained but the pronouncing of sentence It was absurd to think that it should be in the power of the partie thus accused and found guilty by his escape to frustrate justice and withdraw himself from the punishment he deserved But on the other hand it was pleaded for the Eâ—rl That first It was a fundamental rule That until once the cause were concluded no sentence could be pronounced Nixt that it was a sure Maxime in Law that in Criminal Actions there neither is nor can be any other conclusion of the cause then the parties presence and silence So that after all that had past the Earl had still freedom to adde what he thought fit in his own defence before pronouncing sentence and therefore the Lords of Iustitiary could no more proceed to sentence against him being escaped then if he had been absent from the beginning the cause being in both cases equally not concluded and the principle of Law uniformly the same viz. that in criminals except in cases excepted no final sentence can be given in absence For as the Law in case of absence from the beginning doth hold that just temper as neither to suffer the contumacious to go altogether unpunished nor on the other hand finally to condemn a partie unheard And therefore doth only declare him fugitive and there stops So in the case of an escape before sentence where it cannot be said the partie was fully heard and the cause concluded the Law doth not distinguish nor can the parity of reason be refused Admitting then that the Cause was so far advanced against the Earl that he was found Guilty Yet 1. This is but a declaring of what the Law doth as plainly presume against the partie absent from the beginning and consequently of it self can operate no further 2ly The finding of a partie Guilty is no Conclusion of the cause And 3ly As it was never seen nor heard that a Partie was condemned in absence except in excepted cases whereof the Earl's is none so he having escaped and the Cause remaining thereby unconcluded the general rule did still hold and no sentence could be given against him It was also remembred that the dyets and dayes of the justice Court are peremptour and that in that case even in Civil â—ar more in Criminal Courts and Causes a Citation to hear
Explanation at or before his taking of the Test Which emitting as it plainly differs from the point of Acceptance so was the proving of it justly neglected by the Earl because the Emission notour and the charge of Perjury ridiculous as you have it more fully in the Narrative But these things our Author willfully mistakes that he may the more easily abuse strangers As for what our Author here adds That the Earl's Explanation made the Oath no Oath and the Test no Test and would have evacuated the whole Act as he sayes he will prove shall be noticed when he comes to his proofs Only where he sayes The greatest Fanatiks in Scotland owned they would take the Test in the Earl's Sense without prejudice to their Principles It is a groundless assertion and by all of them utterly denyed He sayes The Mist puts a strange abuse upon the world as if the scruples that he sets down were only the scruples of the conformed Clergy whereas many Papers bearing that title were drawn by the Presbyterians But seeing the Paper that the Mist sets down was certainly emitted by one of the conformed Clergy and doth fully homologat with the Rest above-insert in the Narrative which without doubt are all of their fabrik the pretended abuse is altogether groundless But now our Author comes to make good the Earl's Indictment in point of Law And though here we find nothing new or repeated with any advantage and though all be already fully answered in the Narrative yet lest he complain of neglect I shall run over what he alledges as briefly as I can And having set down the words of the Earl's Explanation The first Crime sayes he charged upon the Earl from this Paper is that albeit it be statut That no man interpret the King's Statuts otherways then they bear and to the intent and effect they were made for And that the King and Parliament did appoint the Test to be taken for securing the Protestant Religion and the King's Prerogative without any evasion Yet notwithstanding thereof the Earl did take the Oath in such a sense as did not only evacuate his own taking but learn others how to do the like and evacuate all Acts of the same nature that can be made But seeing that in matter of crimes Statuts are certainly designed for Beacons Land-marks and the most clear distinctive Directions that could be invented as well to hinder men from transgressing as to guard them against the Pains and therefore are to be understood in the most obvious signification that the words do bear Is it not an odd stretch for our Author to think that a man's taking of an Oath enjoined by a Statut in any sense whether true or false pertinent or impertinent if simply offered by him for expeding of his own Conscience should be look't upon as an interpreting or misinterpreting of the Statute which oftentimes happens to be but to clear when the Oath is confessedly ambiguous Thus as to the sense and meaning of the Act in hand viz. That all men therein comprehended should take the Test in manner and under the certification therein contained the Earl never had the least hesitation about it All his difficulty was to clear himself and his own Oath as to the ambiguities acknowledged even by the Council to be in the Test though not in the Act and this he does by referring explicitly to the Parliaments sense and design as it stands expressed in the Act without ranversing either the words of the Test or meaning of the Act as an other approven Explication doth How is it then possible that for this he should be thought concern'd in this Statute as a Misinterpreter And is it not on the other hand very evident that both the Advocate and our Author and their Associats in wresting this Statute which seems principally to have been made against the misinterpreting and wresting of Laws in Iudgment to so remote and extraneous a case are themselves the only Misinterpreters and Transgressours But waving the connexion let us hear how our Author proves the subsumption viz. That the Earl did take the Test in such a sense as did evacuate his own and teach others to do the like and evacuate all other Acts of that nature And to repeat as little as possible he sayes That the design of Laws and Oaths is to procure a certainty of obedience and performance but the Earl's qualified Oath everts this design Wonderfull The Test is in it self granted to be ambiguous and reaches not this design The Earl that he may deal more clearly with God and the Government declares explicitly a plain and certain sense wherein he is willing to take it and the Council who might and ought to have rejected it if not satisfieing do accept of it And yet hereupon he is immediatly by them staged as an Everter Depraver and Traitour And wherefore Because forsooth the Earl promises only to obey the Act as far as he can A most absurd and ridiculous pretence And tells us not in what he will obey Which albeit no crime though true is yet a great falshood For the Earl immediatly subjoins a very certain and congruous sense in which he is willing to take the Test all the obedience here in controversie 2ly Because the Earl sayes that no body can explain it but for himself and reconcile it as it is geuuine c. which adds our Author implyes that it had no plain genuine sense But though the Council did explain this Oath and in so far grant that it had no plain genuine sense for what is already plain without doubt needs no Explanation yet the Earl goes not so far But all he meant was that in the midst of so many Objections made against the Test he could only clear it for himself Which also he does most safely and soundly in referring to its self-consistency and the Parliaments sense and scope the best Rules of interpretation 3ly Because the Parliament designed the Test as a security for the Protestant Religion But sayes our Author The Earl by saying He did only take it in as far as it is consistent with itself and with the Protestant Religion implyes that in some things it is not consistent But 1. Implications which may be so easily strained and oftentimes are found to be as the Fool thinks are terrible grounds of Crimes 2ly If the Parliament designed the Test as a security for the Protestant Religion and the Earl did take it in so far as it is consistent with the same Protestant Religion what can be more agreeable And 3ly It was neither the Earl's words nor intention that the Parliament had framed a Test in some things not consistent with it self and the Protestant Religion but the true sense of his words was and is That however many did alledge both yet he took it in as far as it was consistent which he vvas sure as our Author sayes vvas the Parliaments purpose 4ly Because the design of this
doubtful and uncertain in themselves to say no worse but in the judgment of wise and sober men inconsistent one with another 4. It 's granted by all that this Oath cannot be taken without several glosses and explications And these which are commonly offered cannot be admitted for divers Reasons 1. Because they seem to overthrow the genuine sense and meaning of the Oath 2. Because in the Oath we swear That we take it in the plain genuine sense and meaning of the words without any equivocation mental reservation or evasion whatsoever So that altho these glosses should be conceived in the plainest terms and we suffered to write them down under our hands and so cannot come under the notion of equivocation or mental reservation yet that cannot but be considered as evasions it being only by the help of them that we pretend to escape the fearful crime of perjury 3 There is no Authority that can give us Explications but the same who has imposed the Oath that is the King and Parliament For tho the King and Lords of Council and Session be considered as Interpreters and Explainers of the Laws yet that is only in matters of Right or Wrong to which men ought to submit But it 's another thing in matter of an Oath For that is always to be taken only in the sense of the Imposers And we being required not to submit to it but to swear to it no Explication given by any other but by him or them who gives us the Oath can secure or quiet our Consciences 4. These Explications tho given by the same Authority who imposed the Oath seem both useless and unsafe unless published and recorded as the Oath it self otherways the Explication will soon be forgotten whereas the Oath stands still as it was 5. It must be also considered that tho men take this Test it seems it will not secure them in their places For why may not the same alterations be made in the Church which are made in the State the Supreme Power and Prerogative being alike over both And tho this Argument will be of small force unto some yet it may have its own weight unto others 6. If it be said That divers Articles and Parts of the Test are asserted and enacted by former Laws as partly that against meeting conveening or Assembling to treat consult c. which is in the very same terms discharged and forbidden not only by Act. 4. Sess 1. Par. 1 Char. 2. but also by an old Law Act. 31. Par. 8. James 6. It is answered That there is this considerable difference therein in those Acts viz. that the ordinary judgments are excepted And it is not without reason that this clause is left out here and it is one thing to submit to a Law another to swear it 7. But some may say that we have already sworn the Oath of Supremacy to which they who took it before the year 1669. had little or no ground of scruple but by the Act assertory the Supremacy being declared to be quite another thing than ever it was understood before there are many conscientious men and the best friends to Episcopacy who cannot take that Oath now though that alone should be made the Test As for others of the Clergy who have taâ—en it since that Act of Parliament they were told by the Bishop that administred it to them that the Assertory Act had no relation to the Oath and therefore they gave it them only in the old sense whereby they were perswaded to take it But now the matter is put beyond all doubt For the Kings Ecclesiastical Supremacy as it is explained in the Act being declared to be an inherent Right of the Crown and we swearing in the Test to maintain and defend all His Majesties Rights and Prerâ—gatives we do clearly swear to own and maintain the Supremacy as itis there asserted and declared 8. But we are told we should not oppose our sentiments to the wisdom of the Nation And if the meaning of this be that we ought to reverence our Superiours submit to their Laws and live peaceably under their Government it is willingly granted But if the meaning of the Test be that we are to believe whatsoever they say blindly swear whatever they bid us this is to erect an infallible chair in the State in the stead of the Church which is a new unheard of piece of Popery But if we stand out and refuse the Test how shall the Credit and Honour of Authority be saved It were to be wished it did consult its own Credit more before the making of any Laws and Edicts for there cannot be too great deliberation used in enacting such things as are to oblige the whole Nation at present and their Posterity for the time to come And much more heed ought to be had in appointing an Oath to be sworn by the most considerable part thereof If our Ecclesiastik Superiors had been so kind and just to themselves and their Clergy as to have consulted the wisest of their Presbyters within the Kingdom it 's like it might have prevented much of this inconveniency But now that it 's done all who can take this Oath with a clear Conscience let them take it and much good may it do them But as for these who cannot take it let them suffer patiently the penaltly inflicted by the Law and let them behave themselves orderly and peaceably without making any rent in the State or Schism in the Church and without reflecting on their Governours Yeâ— that it may be seen by all men they are acted by Principles of Conscience And this seems to be the best way that is now left for salving the Credit of Authority And yet many wise men think that it would be no reflection on Authority if His Majesty out of his Goodness finding how great a Grievance the urging of the Test is like to prove to his best and most loyal Subjects which could not be so well known till it was tryed should suspend the Execution of the Law till further advice It obligeth us to swear That we believe the Confession recorded in the 1. Par. James 6. is founded on and agreeable to the written Word of God Now if there be but one single proposition in that Confession either false or dubious not exprest in or clearly deduced from the Scriptures can we sweaâ— it with a good Conscience Surely whoever reads it with understanding will find many things doubtful and uncertain at least But it deserves to be particularly remarked that it contains Doctrines which manifestly cross the many ends of the Test This was certainly designed to guard and engage men against Fanatical principles and yet for all that it obliges all that swear it to own the most capital and fundamental principles of those who are called Fanatiks They maintain that our obedience to the supreme Magistrate is to be limited and that if he be an enemy to the Truth and Cause of
close up this Head of Objections drawn from the Confession foresaid it is to be considered that the famous and â—earned Doctors of Aberdeen Anno 1638. in their Demands and Duplys do in Demand 11. declare and take God to witness that they and other people were willing to subscribe this very Confession of Faith And 11 Duply They assert that they are ready not only to subscribe but to swear this National Confession of Faith so they call it ratified and registred in Parliament To which Declaration they add the Oath sworn by them when they received the degree of Doctorat in Theology which Oath they solemnly again renew in the 7. Duply And this they judged necessary for them to do to satisfie the world that they were no favourers of Popery which as then so now is the Engine whereby to calumniate loyal Subjects and soundest Protestants as Papists in masquerade By which we understand that these learned loyal Divines and Orthodox the glory of the Reformed Church in their Age who well understood the Protestant Doctrine the unlawfulness of resisting the supreme Magistrate upon any pretence whatsoever the intrinsik power of the Church together with the Interests and Rights of Episcopal Government did not scruple to subscribe and swear this Confession of Faith and that as a Test against Popish Errors and Supersition So that they who shall now refuse to swear to own and believe the true Protestant Religion reformed from Popery contained in this Confession do occasion too much umbrage of suspicion and jealousie that they are not sound nor solid Protestants As to the second Head or Classis of Objections drawn from the Oath of Allegiance and Supremacy which together with the maintenance of the Kings Prerogative is asserted and sworn in the Test the great stress of the Objections founded thereupon lies in these two Particulars That the Kings Supremacy as it is asserted by the Act of Parliament viz 16 Anno 1669. seems to deprive and devest the Church of all its intrinsick Power as if all Ecclesiastical Authority were derived not from Jesus Christ the alone Prince and Vital Head of his Church but from secular Princes and Magistrates And 2. That by the foresaid Act there seems to be a Power lodged in the King to alter and change the established Episcopal Government of the Church at his Royal pleasure which they can never swear to maintain as a Prerogative of the Crown who believe Episcopacy to be of Divine Right and Apostolical Institution and by consequence an oecumenick and unalterable Government by any power on earth For the more clear satisfaction of these Objections it will be convenient to read and consider that Act of Parliament November the 16th 1669 in which upon due perusal and examination nothing new or dangerous to the setlement of our National Church will be found comprehended Our Saviour was very unconcerned to regulate the bounds of Soveraign Powers he doth not examine Pilate's Power to judg of Blasphemy or Treason but acknowledgeth and submits unto it And so his Apostles neither enquire into the Rights of the Roman Emperors nor limit the exercise of their Power but seriously recommend to all good Subjects as their duty submission and obedience to the higher Powers and they leave the secular Powers of the world in possession of whatever Authority either over persons or matters they found them invested with The Magistrate doth not intitle himself to the Spiritual Function in preaching the Word administring the Sacraments exercising the Power of Ordination or the Keys c. Our gracious King never challenged these spiritual Powers which indeed belong to the Bishops and other Ministers of the Church The holiest and best Kings of Israel and Judah are famous for abolishing false Worship asserting and setling of the Truth Many excellent Ordinances concerning Religion were made by Moses Ioshua David Solomon Asa Iosiab c. which are recorded and applauded by the Spirit of God in the Scriptures These ordered and regulated divine worship Sacraments and Covenants with God they erected Altars Temples and Tabernacles and dedicated them to God They destroyed Idolatry reformed abuses in Gods House and service and both setled the standing worship and ordained Thanksgivings and Humiliations so that the ordering of matters of Religion was not exempted from the supreme secular Power under the Law nor did the Emperors and Sovereign Princes of the earth by imbracing Christianity lose their Power injoyed by all their Predecessors which if they had they should have been thereby inevitably exposed to the disturbances of their Government by Seditions and Rebellions upon every frantick eruption of religious Melancholy If Constantine had not interposed his Authority for suppressing the Arrian Heresie what had become either of Government or Religion The drawing up of Canons for regulating Religion our Lord committed to the Apostles and their Successors the Bishops with other Ecclesiastical persons but that these Canons should be inforced as Laws by temporal sanctions and penalties this flowed from the authority of the Civil Power And accordingly in the second oecumenical Council the Bishops and Fathers assembled at Constantinople beseech Theodosius the elder to ratifie the Decrees of that Synod Justinian established the main Canon or Codâ—x of the Universal Church consisting of the Canons of the first general and five Ancient provincial Councils commanding them to be keept as Laws As matters of Religion have not been exempted from the cognizance and regulation of the Supreme Civil Powers much less can the exemption of Ecclesiastical persons be pretended Under the Law we find Solomon judging an High Priest offending viz. Abiathar whom he turned out and placed Zadock in his Room and Office 1 King 2. 27 35. and as single persons so if we consider Church-Officers in their Ecclesiastical Meetings and Assemblies we find the Calling thereof lodged in the supreme Magistrate for Moses not Aaron David not Abiathar Solomon not Zadock summoned the Priests and Levites to the Meetings so under the Gospel in the pure and primitive times we find no Councils nor Synods called by the Bishop of Rome nor by any other Bishop or by any other Ministers forming themselves into Classical and Synodical Meetings against or without the Consent of the Christan Prince or Magistrate To any who will be at the pains to consult Antiquty or Ecclesiastical History it will evidently appear that the indiction of times and places the convocating of persons the precedency the ordering of debates the dismission of Assemblies the confirmation of Canons so as to enforce them as Laws in the General or Provincial Councils were all performed by the supreme Magistrate St. Paul himself appealed to Caesar when arraigned and called in question for his Religion and Athanasius appealed from the Synod at Tyre to Constantine to whom were two appeals made in the case of Cassianus and Donatus besides many other instances of the like nature And it were heartily to be wished that all Church-men and Ministers
to own it Cessante enim materia juramenti cessat ejusdem obligatio radice obligationis sublata tollitur â—â—â pullulans inde obligatio according to all Casuists Juramentum sequitur naturam conditionem actus cui adjungitur id est materiae circa quam versatur sicut accessorium sequitur naturam sui principalis accessorium extinguitur cum principale cadit D. Sandersone These who believe Episcopacy to be of Divine Right have no cause to fear that ever the King will alter this specifick form of Church-Government neither inclination nor interest moving him to it The Aphorism so usual with His Majesties Royal Grandfather No Bishop no King cannot but make deep impression on His Majesty and must be considered not only as a sentence full of present truth when it was uttered but a sad prophecy of the Tragical events which after ensued And as the greatest and most politick Underminers of the Monarchy did of late so their successors continue still to make their oblique and first assaults upon it by raising their batteries against the setled Episcopacy 3 If the words of that assertory Act be sedately weighed they will not be found to bear the weight of this Objection for the odds are vast betwixt them a power to order and dispose the external Government and Policy of the Church together with the ordering of the administration of the external Government of the Church which are the words of that Act and the power of altering and changing the specifick and essential Government of the Church the former relating to the Ecclesiastical ordering of Ecclesiastical Persons Matters and Meetings as the Act it self expresly bears The King may and ought to have the ordering and disposing and administration of the external Government of the Church without claiming a power to alter or change the very Species Body and essence of it Nor may we in charity presume that our Gracious King challenges any such power to himself by vertue of that Act assertory nor doth it hinder any to believe Episcopal Government to be institute of God that in the exercise and external administration thereof it is subject to the Orders and Authority of the Prince for the same power may be said to be from Heaven and to be of men under different notions and respects to be from Heaven and of God in respect of the substance of the thing in general and to be of men in respect of the determination of sundry particulars requisite to the lawful and laudable exercise thereof Tho the Ministerial Power be of God yet are the Ministers in executing the Acts proper to their Ministerial Functions regulated and ordered by Ecclesiastical Laws Canons of the Church or Acts of General Assemblies Nor doth the derivation of any power from God necessarily infer the Non-subjection of the persons in whom that power is vested to any others as to the managing and exercise thereof For the power which Fathers have over their Children Husbands over their Wives Masters over their Servants is from Heaven of God and not of Men yet are Parents Husbands Masters in the exercise of their several respective powers subject to the powers Jurisdictions and Laws of the lawful Soveraigns It will prove a very difficult task for any man to find out a clear and satisfying reason of difference in this present case betwixt the Ecclesiastical power Oeconomical why the one because it claimeth to be of Divine Right should be therefore exempted from the Regulation of it in its exercise by humane Laws and not the other which flows from Heaven and is equally of Divine Right with the former 5. In fine All such who have sworn the Oath of Allegiance and Supremacy since the assertory Act was made Anno 1669 can have no pretence to scruple the taking of this Test upon account of any thing contained in the Act of Supremacy already sworn by them in as much as they must be understood to have taken that Oath in the sense of the Lawgivers who framed that Act. Before we come to the Third Classis of Objections it will be necessary to say something for satisfaction of the Doubts of some who apprehend contradictions betwixt some expressions in the Consession of Faith and others in the same Consession and betwixt some assertions therein and others in the Test So that they think by taking this Oath they shall he ensnared to swear to contradictory Propositions Two are instanced that in the Article concerning the Immortality of Souls it is said That the Elect departed this life are delivered from all torment And yet in the same Article it is asserted That neither the Elect nor Reprobate are in such sleep after death that they feel no torment To this seeming contradiction it is answered 1. That this flows from the mistake and error of the Printer alone and not from any fault in the Confession For in that History of the Reformation of the Kirk of Scotland of the foresaid Edition the later part of the Article runs thus So that neither the one nor the other are in such sleep that they feel nothing Which clearly takes off all shadow of Contradiction as well as the error of those against whom that Article seemsto be levelled But finally the Latin Paraphrase of it in the Harmony of Confessions takes off all difficultly For there the words run thus Adeo ut neque hi neque illi ita dormiant ut non sentiant in qua conditione versentur Another seeming contradiction is betwixt the Confession and the Test viz. Art 25. it is said That they who resist the supreme Powers doing that which belongs to their charge resist Gods Ordinance and they who deny to them their aid counsel comfort c while the Princeâ— and Rulers vigilantly travel in the execution of their Office these deny their help and support to God which words seem to disallow the resisting of the supreme Magistrate only conditionally and in a limited and restricted sense Again the Oath and Test assert That it is unlawful upon any pretence whatsoever to take up arms against the King or these commissionate by him which doth declare the resisting of the Soveraign power to be simply and absolutely unlawful without any restriction or limitation Ans. Here is no Contradiction if the Logical Rules be observed For to resist the Supreme Powers doing that which pertains to their charge is to resist Gods Ordinance and not to resist the Supreme Powers doing that which pertains to their charge is to resist Gods Ordinance were indeed a contradiction but to resist the Supreme Powers doing that which appertains to their charge is to resist Gods Ordinance and to resist the Supreme Powers upon whatsoever pretence is to resist Gods Ordinance imports no manner of contradiction And so of the other proposition To deny aid counsel c. while Princes and Rulers vigilantly travel c. in the execution of their Office and not to deny aid counsel c. while
Oath when they go to take it But if any Lawyer should say in pleading or writing That the Test was inconsistent or which is all one that it were not to be taken by any man but so far as it was consistent with it self and the Protestant Religion no doubt this would be a crime even in pleading tho pleading has a greater allowance than deliberate swearing has And as there is nothing wherein there is not some inconveniency so the inconveniency of defaming the Government is much greater than that of any private mans hazard who needs not err except he please Whereas it is pretended That before the Earl gave in this Explication there were other Explications spread abroad and Answers read to them in Council and that the Council it self gave an Explication It is answered That if this Paper be Leasing-making or misconstruing His Majesties Proceedings and Treasonable as is contended then a thousand of the like offences cannot excuse it And when the King accused Noblemen Ministers and others in the Year 1661. for going on in the Rebellions of that Age first with the Covenanters and then with the usurpers it was found no Defence That the Nation was over-grown with those Crimes and that they were thought to be duties in those days Yea this were to invite men to offend in multitudes And albeit sometimes these who follow the examples of multitudes may thereby pretend this as an excuse to many yet this was never a formal Defence against Guilt nor was ever the chief of the Offenders favourable on that Head And it is to be presumed That the Earl of Argyle would rather be followed by others than that he would follow any example But His Majesties Advocate does absolutely decline to debate a point that may defame a constant and standing Act of Parliament by leaving upon record a memory of its being opposed Nor were this Relevant except it could be said the Council had allowed such Explications which reflected upon the King and the Government For the writing an Answer is no allowance but a condemning Not can the Council allow any more than they can remit And tho it may justly be denied that the Council heard even the Earl's 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 Kings 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 Iesuits and both dostill 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 cleare 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 tels only in the general and in most ambiguous 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 ludges as to that And for illustrating this Power the Lords of Justitiary are desired to consider quid Iuris 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 shamm 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
the irrefragable opinion of all Divines of whatever perswasion is not only clear from the Authority above-mentioned even those who allow of reserved senses but more especially by the universal suffrage of all Protestant Divines who tho they do abominate all thoughts of Subterfuges or Evasions after taking of the Oath yet they do always allow and advise for the safety and security of a doubting and scrupulous Conscience that they should express and declare before the taking of the Oath the true sense and meaning wherein they have freedom to take it and for which Sandersone de Iuramento is cited Prelect 6. Sect. 10. pag. 75. where his words are Sane ut inter Iurandum omnia recte fiant expedit ut de verborum sensu inter omnes partes quarum interest liquido constet quod veteribus dictum liquido Iurare And an Oath being one of the highest Acts of Devotion containing Cultum Latriae there is nothing more consonant to the Nature of all Oaths and to that Candor Ingenuity and Christian simplicity which all Law and Religion requires in such cases The Kings Advocate 's Third Plea against the Earl of Argyle HIS Majesties Advocate conceives he has nothing to answer as to depraving Leasing-making and mis-interpreting c. save that this Oath was only designed to exclude Recusants and consequently the Pannel may thereby be debarred from his Offices but not made guilty of a Crime To which he Triplies 1. If ever the Earl had simply refused that had been true but that did not at all excuse from defaming the Law for a defamer is not punished for refusing but for defaming 2. If he had simply refused the Government had been in no more hazard but if men will both retain their Places and yet take the same in such words as secure not the Government it were strange to think that the design of the Law being to secure against mens possessing who will not obey that yet it should allow them possession who do not obey Nor is the Refuser here in a better Case than the Earl and others who offered to obey because it is the defaming the Law as ridiculous and inconsistent with that Protestant Religion and Leasing-making betwixt the King the Nobility and the People the misconstruing and misrepresenting as hath been formerly urged that puts the Earl in a worse Condition And all those Arguments might be as well urged for any who had uncontrovertedly contraveened these Acts as for the Pannel Whereas it is pretended That the King emitted a Proclamation to satisfie Dissenters it is answered That the Proclamation was designed for none who had been Members of Parliament and so should have known the sense but it was designed for meer ignorants not for such as had defamed the Law which is still here charged upon the Pannel As to the Article of Treason it is conceived That it is unanswerably founded upon the Common Law discharging all men to make alteration of the Government As to which there needs no express Statute that being the very essence of Government and needing no Laws Like as it falls positively under all the Laws that discharge the assuming the Royal or Legislative Power For to alter the Government is inseparably united to the Crown Like as the Subsumption is as clear the express words not bearing That the Earl reserves to himself a power to propose to His Majesty any alterations or to concur to serve His Majesty in making alterations but owning in most general and arbitrary terms to wish and endeavour any alteration he should think fit for the advantage of Church or State and not determining any thing that could bind him otherwise than according to his own pleasure For the word lawful is still subjected to himself and has subjoyned to it as he should think fit which governs the whole Proposition and in that sense and as the words are here set down the greatest Rebel in Scotland will subscribe that Explanation For there is no man but will restrict himself to a lawful obedience providing he be Judg of the lawfulness And seeing all Oaths proposed for the security of Government require a certain depending upon the Legislator and not upon the Taker it is impossible that that end could be attained by any qualification how special soever which is made to depend absolutely upon the Taker and not upon the Legislator And we have often seen how little security there is in those specious words the very Covenant it self having not only the very words above-repeated but attesting all the world to be witnesses to their Loyalty and Sincerity And as to the former Instances viz. rising in Arms or opposing the lawful Successor there is no Covenanter in Scotland but will say he will do neither but in a lawful way and in his station and in a way consistent with his Loyalty for a man were mad to say otherwise But yet when they come to explain this they will only do it as they think fit and will be Judges themselves and then will tell us That defensive Arms are lawful and that no Popish Successor should succeed nor no Successor unless he subscribe the Covenant And whereas it is pretended That no Clause in the Test does exclude a man from making alterations it is answered That the alterations which the Test allows are none at all but in subordination to Authority And as to the Two Points above-mentioned it excludes all alterations as to these Points And as to the making fundamental alterations this reservation allows to make any alteration and consequently fundamental alterations to preclude which Libertinisme this excellent Law was invented Whereas it is pretended That the Pannel designs not to add any thing as a part of the Law but as a part of his Oath it is duplied Since the Oath is a part of the Law whoever adds to the Oath adds to the Law Whereas it is pretended That the Crime of Perjury cannot be inferred here because all Divines allow That the Taker of an Oath is still allowed to declare in what sense he takes the Oath and that this is clear from Sandersone Pag. 175. It is triplied That where there are two dubious senses Lawyers and Divines allow That the Taker should clear himself which of the Two he should take which is very just because to which soever of the two he determines himself the Legislator in that Case is sure of him But here it is not pretended That there are two senses nor does the Pannel declare in which of the two he takes it or in what clear sense at all he takes it which is indeed liquido Iurare But here the Pannel neither condescends what particular clause of the Test is unclear nor after he has condescended upon the Articles does he condescend upon the sense but in general mysterious words where he can neither be followed nor found out He only takes it in so far as it is consistent with it self and the Protestant Religion
endeavouring for such as are good and lawful and in a lawful way which no man can disown without denying common reason nor no sworn Councellour disclaime without manifest perjury But the Advocat's last conceit is That the Earl's restriction is not as the King shall think fitt or as is consistent with the Law but that himself is still to be judge of this and his Loyalty to be the standard But first The Earl's restriction is expresly according to Loyalty which in good sense is the same with according to Law and the very thing that the King is ever supposed to think Secondly as neither the Advocate nor any other hitherto have had reason to distinguish the exercise and actings of the Earl's Loyalty from those of His Majesties best Subjects so is it not a marvellous thing that the Advocate should prosesse to think for in reality he cannot think it the Earl's words His Loyalty which all men see to to be the same with his duty and sidelity or what else can bind him to his Prince capable of any quible farr more to be a ground of so horrid an accusation And whereas the Advocate sayes The Earl is still to be judge of this It is but an insipid calumny it being as plain as any thing can be that the Earl doth nowise design His thinking to be the rule of right and wrong but only mentions it as the necessary application of these excellent and unerring rules of Religion Law and Reason to which he plainly resers and subjects both his thinking and himself to be judged accordingly By which it is evident that the Earl's restriction is rather better and more dutyful then that which the Advocate seems to desiderat And if the Earl's restrictions had not been full eneugh it was the Advocat's part before administrating the Oath to have craved what more he thought necessary which the Earl in the case would not have refused But it is beleeved the Advocate can yet hardly propose restrictions more full and suitable to duty then the fore-mentioned of Religion Law and Reason which the Earl did of himself profer As for what His Majesties Advocate add's That under such professions and reserves the late Rebellions and disorders have all been carried on and fomented It is but 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 vindicat 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 these 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 saâ— 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 yeelded 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 lavvful 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 sayes 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 generall who were allowed by the Council so to do seing that whether they hold their Explanation for a part of their Oath or not yet others may and in effect all men of sense doe understand it so and thus in the Advocat's Opinion they have treasonably invaded the Legislative povver and made an Act of Parliament to themselves Neither in that case can the Councils allovvance excuse them seing 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 sounds 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 lyes the uttering 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 hatred and dislike betwixt the King and his People And as to treason in these yet more positive terms That none impugne the dignity and authority of the three Estats or seek or procure the innovation or diminution thereof Which are things so palpbale and easily discerned and withall so infinitly remote both from the Earl's words and intentions or any tolerable construction can be put on either that I confess I never read this indictment but I was made to wonder that its forget 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 duty fully 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 Majesties true and Royal sense but to the most scrupulous and nyce affecters of the exactest discerning besids 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 then the plainest defamations But what of all this Must therefore such generalls be left to the phantastik application of every wild imagination to the confounding of the use of speach and subverting of of humane Society and not rather be still submitted to the Judgement of common sense for their true and right understanding and the deducing thence these strong and natural inferences talk't of Of which good sense if the Advocate do but allow a grain weight it is evident that the inferences he here libells against the Earl must infallibly be cast and by all rational unbyassed men be found strange unnaturall and monstrous For S r 2ly pray observe these rational and sound Maxims he sounds his inferences on and they are manifestly these First That he who sayes he will onely obey as far as he can invents a new way whereby no man is at all bound to obey 2ly That he who in the midst of hundreds of exceptions and contradictions objected against on Oath injoyned by Act of Parliament and still unanswered sayes that he is confident the Parliament never intended to impose contradictory Oaths reproaches the Parliament 3ly That he that sayes he must explain an ambiguous Oath for himself before he take it renders all Laws and Oaths useless and makes himself the Legislator 4ly That he that sayes that he takes this Oath as far as it is consistent with it self and the Protestant Religion swears nothing 5ly That he that declars himself not tyed up by the Test from endeavouring in a lawful way such alterations as he thinks to the advantage of Church and State consistent with Religion and Loyalty declares himself and all others loosed from the Government and all duty to it and free to make any and all alterations that he pleases And 6ly That he that takes the Test with an explanation and holds it to be a part of his Oath invads the Legislative power and makes Acts of Parliament Upon which rare and excellent propositions I dar say The Earl is content according to the best Judgment that you and all unbyassed men can make either of their truth or of my ingenuity in excerping them to be adjudged guilty or not guilty without the least fear or apprehension of the issue And in the third and last place I shall only intreat you to try how the Advocat's reasoning will proceed in other cases and what brave work may be wrought by so usefull a tool Suppose then a man refuse the Test simply or falls into any other kind of non-conformity either civil or Ecclesiastik or pay's not the Kings custom or other dues or lastly understands an Act otherwise then the Advocate thinks he should is not his Indictement already formed and his process as good as made viz. That he reguards not the Law that he thinks it is unjustly or foolishly enacted that he will only obey as far as he can and as he pleases and thereby renders all Laws useless and so reproaches the King and Parliament and impugns their Authority and assumes to himself the Legislative power and therefore is guilty of Leasing-making depraving his Majesties Lavvs and of treason of which crimes above mentioned or one or other of them he is actor art and part Which being found by an Assize he ought to be punished with the pains of death forfaulture and escheat of lands and goods to the terror of others to doe or commit the like hereafter And if there be found a convenient Judge the poor man is undoubtedly lost But Sir having drawn this parallel rather to retrive the Earl's case then to make it a precedent which I hope it shall never be and choosing rather to leave the Advocate then follow him in his follies I forbear to urge it further These things considered must it not appear strange beyond expression how the Earl's Explanation such as it is did fall under such enormous and grievous misconstructions For setting aside the Councils allowance and approbation which comes to be considered under the next head suppose the Earl or any other person called before the Council and there required to take the Test had in all due humility said either that he could not at all take it or at least not without an Explanation because the Test did contain such things as not only he but many other and those the best of the Loyal and Orthodox Clergy did apprehend to be contradictions and inconsistencies And thereupon had proponed one or two such as the Papers above set down do plainly eneugh hold out and the Bishop in his Explanation rather evades then answers would it not be hard beyond all the measures of equity and charity to look upon this as a designed reflection far more a malicious and wicked slander and the blackest treason We see the Act of Parliament doth not absolutly injoyn the taking of the Test but only proposeth it to such as are intrusted in the Government with the ordinary certification either of losing or holding their Trusts at their option We know also that in cases of this nature it is far more suitable both to our christian liberty and the respect we ow to a christian Magistrat to give a reason of our consciencious non-complyance with meekness and fear then by a mute compearance to fall under the censure of a stubborn obstinacy And lastly it is certain and may safely be affirmed without the least reproach that Parliaments are not infallible as witness the frequent changes and abrogations of their own Acts and their altering of Oaths imposed by themselves and even of this Oath after it was presented which the Earl was not for altering so much as it was done as I told you before How then can it be that the Earl appearing befor a christian Council and there declaring in terms at the worst a litle obscure because too tender modest his Scruples at an Oath presented to him either to be freely taken or refused should fall under any censure If the Earl had in this occasion said he could not take the Test. unless liberty were given him first to explain himself as to some contradictions inconsistencies which he conceaved to be in it though he had said far more then is contained in his contraverted Explanation yet he had said nothing but what Christian liberty hath often freely allowed and christian charity would readily construe
Slandering Reproaching or Depraving charged against him except the injuriandi animus as well as the words had been both libelled and proven But so it is that his words do manifestly a low of a good sense that there is not the least presumption of injurie can be alledged against him That he did most plainly purge himself of all suspicion of guilt by declaring his sound and upright intention And that his words do not inferre either clearly or unclearly the smallest measure of guilt And withall neither was the injuriandi animus at all proven But on the contrary the words at first were taken for no injurie so that they could not afterward become such As is above fully cleared Ergo even the Advocate being judge the Earl is no Slanderer 6ly If it were necessary I could further tell you several things that he alledges to be sufficient for purging a man of any criminal intention As where he sayes ibid. p. 563. l. 2. That in matters of fact persons even judicious following the Faith of such as understand are to be excused And l. 30. That if it appear by the meanness of the crime he should say the smalness of the deed And what can be less then the uttering of a few words in the manner that the Earl spoke them That there was no design of transgression And that the committer designed not for so small a matter to committ a crime much less such horrid ones as Depraving and Treason In that case the meanness of the transgression or deed ought to defend against the relevancy c. But to give you one instance for all how much the Advocate may one day or other be oblidged to plead the innocence of his intentions to free himself of words downright in themselves slanderous and depraving an act of Parliament much better nor he understands it and in fresh and constant observance Ibid. p 139 towards the middle speaking of the 151. Act. Ja. 6. P. 12. Whereby it is statut That seeing diverse exceptions and objections riles upon criminal libells and parties are frustrate of Justice by the alledged irrelevancy thereof That in time coming all criminal libells shall contain that the persons complained on are Art Part of the crimes libelled which shall be relevant to accuse them thereof swa that no exception or objection take away that part of the libell in time coming He sayes That he finds no Act of Parliament more unreasonable For the statutory part of that Act committing the triall of Art and Part to Assizers seemes most unjust Seeing in committing the greatest questions of the Law to the most ignorant of the Subjects it puts a sharp sword in the hands of blind men And the reason of this Act specified in the Narrative is likewise most inept and no wayes illative c. What reproaches What Blasp hemies The Earl said not one word against any Act of Parliament But on the contrary that he was confident the Parliament intended no contradiction and that he was willing to take the Test in the Parliaments sense But here the Adâ—ocate both sayes and prints it That an Act of Parliament is most unreasonable and most unjust and its reason most inept and that it puts a sharp sword in the hands of blind men Whereof the smallest branch is infinitly more reproachfull then all can be strained out of the Earl's words But Sir Speculation is but Speculation and if the Advocate when his day comes be as able to purge himself of practical depravations as I am inclined to excuse all his visionarie lapses notwithstanding of the famous Title Quod quisque juris in altâ—râ—m statuerit utipse eodem jure utatur he shall never be the worse of my censure FINIS APPENDIX In Answer to a late Pamphlet called A Vindication of His Majesties Government and Judicatories in Scotland Especially with a Relation to the late Earl of Argyl's Process In so far as concerns the said Process IT now remains that we consider the fore-mentioned Paper called a Vindication c. And though the account you have had in the Narrative may abundantly satisfy all rational men as to any thing contained in this Vindication in relation to the Earl's process my only concern yet because the Writer of it hath taken liberty to vent many falshoods known to be such to himself and the whole Kingdom and that in such a positive presuming Stile as with his insinuat character seems to be purposely designed to impose upon strangers and lead them from the Mist he pretends to discuss into gross Darkness I shall here without giving you the trouble of letter upon letter transcribe shortly what my friend who sent me the Narrative hath since given me the occasion to remark upon this Vindication in so far as it refers to it without digressing to other things which no doubt others more concerned and better qualified will not fail to examin And after having first wisely projected to disarm all his opponents by robbing them of the liberty of the press that himself may use it without control and spread his informations and vindications without reply as Diurnals writ for Regulation Of Lying to enform the Nation And in the nixt place chaffed himself by some rambling reflections on past controversies which yet for all the boast he makes of the present blessed composure of affairs in Scotland if he and his associats still persist to treat them after their manner will I fear never finally end untill they be reacted and all former errors for ever corrected He comes to notice the Earl's Process and a pamphlet called the Scotch mist that takes pains as he sayes to make it appear an unanswerable instance of the arbitraryness of Scotch Iudges Where having prefaced just as much in their vindication as may be said for all the Judges of the world whereof yet we know that thousands are ignorant corrupt and violent And nixt told us very discreetly that Earl Strafford was murthered by King Lords and Commons because forsooth that they following the known rule of the civil Law Si quam paenam Princeps irrogavit nec ad exemplum trahitur nec per sonam transgreditur made an Act That none should die by that preparative with some other stories of the like nature backed with a few fables of his own invention For clearing matter of Fact he sayes first That the Earl of Argyl's learned Iudges were not a pack't Commission but the ordinary judges of the Nation But what then if this lessen their tentation doth it not rather aggravat their injustice But 2ly Not to trouble you with the just and true characters of some of them which to persons unacquainted might possibly appear a libel is it not well known that at the first and untill sufficient assurances of the bench were obtained there was a resolution to have given or pack't as our Author speaks Assessors with them 3ly Were they not all Judges of the late edition to wit no more advitam
Oath being to preclude the Takers from reserving a liberty to rise in arms upon any pretext whatsoever The Earl sayes our Author by his Explication reserves to himself a power to make any alterations that he shall think for the advantage of Church and State But not to stay you here with what you have so fully cleared in the Narrative Dare any man even our Author not excepted say That he who reserves a liberty to himself in his station and in a lawfull way to wish and endeavour any alteration he thinks to the advantage of Church and State not repugnant to the Protestant Religion and his Loyalty which are the Earl's words eo ipso reserves to himself a liberty to rise in arms upon any pretext whatsoever Certainly to assert this as our Author here does is not only to deny common sense but desperatly to affirm That to rise in arms upon any pretence whatsoever is a lavvful thing advantageous to Church and State and agreeable both to Religion and Loyalty The most traiterous and irreligious Position that can be devised and which one day or other our Author may be more straitned to answer then at present he is to maintain the grosâ—est absurdities Now whether by all these fyne Remarks our Author hes concluded as he alledges that the Earl hes interpret his Oath otherwise then it bears although this be also a wide and weak impertinency as to the inferring of any crime let the world judge But. 2ly Sayes our Author If the Earl's glossing vvere allovvable then there vvere no need to propose doubts in Parliament but Oaths might be left to be formed at the Takers pleasure But. 1. Is not this consequence far more clearly deducible from the Councils emitting their Explanation 2ly What sense or non-sense could induce our Author to dream that because Inadvertency may necessarily occasion Explications therefore men should be still Inadvertent Our Author desires to knovv from any man of sense if the Earl vvould have obtained from the Parliament at the passing of the Test That everyman should be allovved to take it as far as it was consistent with it self and the Protestant Religion and with the Earl's other Qualifications And if I in this contest may pretend to this quality I would answer him roundly That albeit I think hardly any man of sense could make a proposition in thir terms to that soveraign Court that had full power to change the Test at their pleasure Yet I am very confident that had any man suggested the half of the objections that have since been started against it they would very readyly have endeavoured to obviat all reasonable exceptions of Inconsistency though neither by our Author 's wise Expedient nor yet by reserring them to the Councils just and accurate Explanation And for the other Qualifications in the Earl's words I am most assured and have his Highness for my Voucher that had the Parliament been ask't Whether or not the Test did bind up a man in a lawfull way and in his station c They would have answered Not and that therefore though they might have judged the Reservation not necessary yet for the greater ease of conscience they would never have stuck to allow any honest man in swearing to express it or not at his pleasure 3ly Our Author asks If a man should by Oath oblige himself simply to make me a Right to Lands could this sense be consistent with it I 'le make it as far as I can Or would a Right so qualified satisfy the Obligation But if I were to oblige a man simply by his Oath to make me a Right and he should answer I le do all I can to satisfy you and then tell me distinctly what he would sweat to do and what not which is the plain parallel of the Earl's case cleared from our Author's Inversions I should think my self bound whether I accepted his offer or not to judge him a fair plain-dealing man But if once I accepted and should afterward call him a Cheat certainly all men would esteem me the greater Cheat of the two 4ly 5ly and 6ly Sayes Our Author Oaths should be so taken as that the Taker may be persued for perjury That the Covenanters would not have suffered a man to take the Covenant as far as consistent with his Loyalty And are not the enemies of the King's Supremacy content to swear in so far as is consistent with the Word of God So that if the Earl's sense were allowed every man should swear upon his own terms and upon contrary terms But 1. Without question the Earl turning either Papist or Disloyal might have been persued for perjury upon his Oath as qualified 2ly Albeit the Covenanters might have laughed at a man for adjecting a caution which they thought expressed yet I am sure at worst they would never have judged the offer a crime much less accused the offerer after having accepted it 3ly It is nothing to the purpose what Declarations the enemies of the Supremacy make But if these our Author mentions be criminal as he would have us to believe I would intreat him to tell us why their makers are not persued and unless he say It is because these Declarations were not made before accepted by the Council I hope he will be so ingenuous as to confess that it is because albeit these Declarations be judged eversive of the Oath yet they are not accounted Crimes in respect they are only well mean't proposals which when rejected evanish And 4ly Our Author's Consequence If the Earl's sense be allowed then every man should swear upon his own terms as it doth not at all concern the Earl so hath it no connexion except in so far as it reflects on His Majesties Council the alone Masters of such Allowances 7ly Sayes Our Author Former Statuts having discharged Conventions or Convocations and Bonds or Leagues without the Kings consent The Covenanters protested that their Covenant was not against these Acts because they could not be meaned of Meetings and Bonds for preservation of the King Religion and Laws And the 4. Act Par 1661. Declares all such glosses false and disloyal And therefore the Earl's gloss must be so too But 1. The Earl's gloss is no such gloss it doth not at all touch these Conventions or Bonds said to be discharged therefore it must not be so 2ly The Earl's Explanation is expresly qualified in a lawful way and not repugnant to his Loyalty which words plainly respect the Act 1661. as well as all other Acts made for defining our allegiance and duty And therefore it cannot possibly fall under its compass as a Contravention But now after we have done with our Author's Critique which he sayes makes his subsumption clear and undeniable I freely appeal to all men of ordinary ingenuitie whether he hath proved so much as the first Article of it viz. That the Earl took the Test in such a sense as did evacuate his own Oath much less the
other parts of it mere extravagant improvements of a lesed phansy viz. That he did thereby teach others to do the like And evacuate all other acts of that nature And yet our Author as if he had fully made out his Charge goes on to answer not the Mist in the pertinent contexture of its whole discourse but a few such Objections as he thought fit lamely to excerp out of it And the first he takes notice of is where the Mist or M r Mist as this Brouillon calls him sayes That if the Authority vvhich is to administer the Oath accept the Takers sense the Taker is only bound in that sense But so it is the Council accepted the Earl's sense and if they had refused it the Earl had not taken the Oath nor had his refusal been a crime Which being indeed an unanswerable Defence for the Earl and largely insisted on in the Narrative I shall only shortly consider our Author's Reply whereof the summe and force is That the Council not having the povver to pardon Crimes their connivance at the Earl's misinterpreting the Law cannot exoner him Which he illustrats by putting the case That a man having many Friends in Council gives in an Explication incontrovertedly treasonable for example That he minds not thereby to bind up himself from rising in Arms yet it would be no defence sayes our Author that the Council did not challenge it for the time But waving the Author's confounding of misinterpreting of a Law with the missensing of an Oath His lessening the Councils Acceptance of the Earl's Explanation into a bare connivance and lastly his reproaching their Lordships with a very palpable insinuation of partiality The question is not If the Council have the power of pardoning as our Author goes about to pervert the argument on purpose that he may presuppose a Crime but plainly If they have not the Authority to administer the Oath of the Test by express provision of the Act of Parliament Which our Author cannot deny Now If the Council by the Act of Parliament have the Authority to administer and did really accept the Earl's Explanation and not only connive at it which on his part was a mere proposal and in effect by their acceptance became as truly their Explanation as if they themselves had emitted it how is it possible that in this matter he should be thought guilty without overturning all the principles of Reason Sense and common Honesty I grant If the Earl or any man else had under the pretext of offering an Explanation taken occasion openly to misinterpret the Laws or utter speaches manifestly treasonable the Councils connivance could not fully assoil him But 1. What have we to do with such absurd and incredible suppositions And is it not the hight of calumnie to compare the Earl's Explanation which both in it self and in all its circumstances manifestly appears to be most ingenuously and dutyfully by him tendered for the exoneration of his conscience and was no less really accepted as such by the Council with imaginary criminal Wrestings and treasonable Declamations which as proposed scarce any man in his right wits can judge caseable 2 ly The Earl and his words being charged with Misinterpreting Slandering Reproaching and Depraving his Majesties Statuts and Proceedings If the Lords of Council who represent his Majesty by a commission unaccountable save to his Majesty alone accept his words is it not the same thing as if his Majesty himself had done it Which certainly is more significant as to the cutting off of any pretence of Injury then either Dissimulation or Remission which yet all Law doth constantly sustain for that end 3ly As to the Treason objected though there were some ground for it as there is none yet seeing the Earl's Explanation was tendered to the Council to be by them authorized and if by them rejected had indeed evanished as never uttered It 's yet further evident that their Acceptance could not be made a snare to the Earl without the greatest injustice But 4ly The Council being impowered by the Parliament to administer and having accepted the Earl's Explanation it is the same thing as if the Parliament had accepted it in which case even our Author must acknowledge that all ground of accusation would have been for ever excluded But instead of noticing these things all that our Author sayes is 1. That the Paper containing the Earl's Explanation was not given in till the next day after that the Earl had sworn the Test. But was it therefore not delivered verbally in Council the day before And was not this Delivery enough And 2ly That tho the Judges had allowed the Earl to prove that he had emitted these words at the swearing of the Test yet he failed in the probation But in what manner and for what intent this Allowance was given and how disingenuously it is here obtruded I have already cleared In the 2d Place Our Author affirms the Mists alledgeance for clearing the Earl of the Charge of Misinterpreting viz. That the Law doth only discharge publik Misinterpreting to the abusing of others to be most false But althouh I have already told you that to extend the Law against Misinterpreting the King's Statuts to a man's Missensing of an Oath is a wide stretch which both Papists and Fanatiks who vastly disagree from our Author as to the sense of the Oath of Supremacy and yet have no difference with him as to the sense of the Acts imposing it may justly call absurd Yet to assist my Friend the Mist who tho a stranger hath yet said things ten times more justly then our Author albeit apparently a piece of a Scotch aspiring Lawyer 1. I would be content to know If so be our Author think every private misinterpretation of Laws to be a transgression of this Act of Parliament What shall become not only of thousands of the King 's best subjects who fall dayly in such mistakes but also of Advocates and Lawyers themselves who are continually by the Ears about such controversies Nay even of his Majesties Advocate who in his prined Criminals as you may see above in the first Posâ—script to the Narrative calls an Act of Parliament an unreasonable unjust murthering and inept Act And I am very confident whatever our Author shall think fit to alledge either from the Direction of the Intention or favour of Circumstances for acquitting these Misinterpreters it shall fully quadrate to the Earl's case and with many and clear advantages 2ly When our Author jumps from the Misinterpreting of Lavvs to the Missensing of Oaths and thereon tells us how dangerous and criminal it is to take Oaths in wrested senses contrair to the design of the Legislator He first supposes what is already shewed to be false viz. That the Earl's Explanation of the Test is wrested And next he quite forgets that no sense of the Test can avail unless accepted by the Council the great Administrators So that for all his flanting the Government
to understand it notwithstanding all these exce 〈…〉 on s in the Parliaments which is its true and genuine sense I take it therefore notwithstanding any scruple made by any as far as it is consistent 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 I. 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 bound up further then the true meaning of the Oath I doe declare that by that part of the Test that there lyes no obligation on me c. I mean not to bind up my self in my station and in a lawfull way still disclaming 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 if Your Royal Highness and Your Lordships allow me or otherwise in submission to Your Highness 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 for securing all these appointed a Test to be taken by all who should be entrusted with the Government which bears expresly That the same should be taken in the plain and genuine sense and meaning of the words We were very careful not to suffer any to take the said Oath or Test with their own Glosses or Explications but the Earl of Argyle having after some delays come to Council to take the said Oath as a Privy-Councellor spoke some things which were not then heard nor adverted to and when his Lordship at his next offering to take it in Coâ—ncil as one of the Commissioners of your Majesties Tresury was commanded to take it simply he refused to do so but gave in a Paper shewing the only sense in which he would take it which Paper we all considered as that which had in it gross and scandalous Reflections upon that excellent Act of Parliament making it to contain things contradictory and inconsistent and thereby depraving your Majesties Laws misrepresenting your Parliament and teaching your Subjects to evacuate and disappoint all Laws and Securities that can be enacted for the preservation of the Government suitable to which his Lordship declares in that Paper That he means not to bind up himself from making any alterations he shall think fit for the advantage of Church or State and which Paper he desires may be looked upon as a part of his Oath as if he were the Legislator and able to add a part to the Act of Parliament Upon serious perusal of which Paper we found our selves obliged to send the said Earl to the Castle of Edenburgh and to to transmit the Paper to your Majesty being expresly obliged to both these by your Majesties express Laws And we have commanded your Majesties Advocate to raise a pursuit against the said Earl forbeing Author and having given in the said Paper And for the further prosecution of all relating to this Affair we expect your Majesties Commands which shall be most humbly and faithfully obeyed by Your Majesties most Humble most Faithful and most Obedient Subjects and Servants Edenburgh Nov. 8. 1681. Sic Subscribitur Glencairne Winton Linlithgow Perth Roxburgh Ancram Airlie Levingstoun Io. Edinburgen Ross Geo. Gordoun Ch. Maitland G. M ckenzie Ja. Foulis I. Drumond The Kings Answer to the Councils Letter C. R. Novemb. 15. 1681. MOst dear c. having in one of your Letters directed unto us of the 8. Instant received a particular account of the Earl of Argyle's refusing to take the Test simply and of your proceedings against him upon the occasion of his giving in a Paper shewing the only sense in which he will take it which had in it gross and scandalous Reflections upon that excellent late Act of our Parliament there by which the said Test was enjoyned to be taken we have now thought fit to let you know that as we do hereby approve these your Proceedings particularly your sending the said Earl to our Castle of Edenburgh and your commanding our Advocate to raise a Pursuit against him for being Author of and having given in the said Paper so we do also authorize you to do all things that may concern the further prosecution of all relating to this Affair Nevertheless it is our express will and pleasure That before any Sentence shall be pronounced against him at the Conclusion of the Process you send us a particular account of what he shall be found guilty of to the end that after our being fully informed thereof we may signifie our further pleasure in this matter For doing whereof c. But as notwithstanding the Councils demanding by their letter His Majestie 's allowance for prosecuting the Earl they before any return caused His Majestie 's Advocat exhibit ane indictment against him upon the points of slandering and depraving as hath been already remarked so after having receaved His Majestie 's answer the design growes and they thought fit to order a new indictment containing beside the former Points the crimes of treason and perjury which accordingly was exhibit and is here subjoyned the difference betwixt the tvvo indictments being only in the particulars above noted The Copy of the Indictment against the Earl of Argyle Archibald Earl of Argyle YOU are indicted and accused That albeit by the Common Law of all well-govern'd Nations and by the Municipal Law and Acts of Parliament of this Kingdom and particularly by the 21 and by the 43d Act Par. 2 James 1. and by the 83d Act Par. 6. James 5. and by the 34th Act Par. 8. James 6. and the 134th Act Par 8 James 6. and the 205th Act Par. 14. James 6. All leasing-makers and tellers of them are punishable with tinsel of Life and Goods like as by the 107th Act. Par. 7. James 1 it is statuted That no man interpret the Kings Statutes otherwise than the Statute bears and to the intent and effect that they were made for and as the makers of them understood and