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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	court_n	justice_n	law_n	3,065	5	4.7299	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A69685	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 thereunto : 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.	Stewart, James, Sir, 1635-1713.; Mackenzie, George, Sir, 1636-1691. Vindication of His Majesties government, and judicatories in Scotland.	1683 (1683)	Wing C1066; ESTC R15874	208,604	158

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 E●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 ●ar more in Criminal Courts and Causes a Citation to hear Sentence is constantly required which induced some to think that at least the Earl should have been lawfully cited to hear Sentence before it could be pronounced But it is like this course as confessing a difficulty and occasioning too long a delay was therefore not made use of However upon the whole it was the General Opinion that seeing the denouncing the Earl Fugitive would have wrought much more in Law then

received the same For we dare not receive nor admit any interpretation which repugnes to any principal point of our faith or to any other plain text of Scripture or yet unto the rule of charity XIX Of The Authority of the Scriptures AS we believe and confess the Scriptures of God sufficient to instruct and make the man of God perfect so do we affirm and avow the Authority of the same to be of God and neither to depend on Men nor Angels We affirm therefore that such as alledg the Scripture to have no other Authority but that which it has received from the Kirk to be blasphemous against God and ●njurious to the true Kirk which always hears and obeys the voice of her own Spouse and Pastor but takes not upon her to be Mistres over the same XX. Of General Councils of their Power Authority and cause of their Convention AS we do not rashly damn that which godly men assembled together in General Council lawfully gathered have proponed unto us so without just examination dare we not receive whatsoever is obtruded unto men under the name of General Councils For plain it is as they were men so have some of them manifestly erred and that in matters of great weight and importance So far then as the Council proves the determination and commandment that it gives by the plain word of God so soon do we reverence and embrace the same But if men under the name of a Council pretend to forge unto us new Articles of our Faith or to make Constitutions repugning to the Word of God then utterly we must refuse the same as the Doctrine of Devils which draws our souls from the voice of our only God to follow the Doctrines and Constitutions of men The cause then why that General Councils conveened was neither to make any perpetual Law which God before had not made neither yet to forge new Articles of our Belief nor to give the Word of God Authority much less to make that to be his Word or yet the true Interpretation of the same which was not before by his holy will expressed in his word But the cause of Councils we mean of such as merit the name of Councils was partly for confutation of Heresies and for giving publick confession of their Faith to Posterity following which both they did by the authority of Gods written Word and not by any Opinion or Prerogative that they could not erre by reason of their general Assembly-And this we judg to have been the chief cause of General Councils The other was for good Policy and Order to be constitute and observed in the Kirk in which as in the house of God it becomes all things to be done decently and in order Not that we think that any policy and order in Ceremonies can be appointed for all ages times and places For as Ceremonies such as men have devised are but temporal so may and ought they to be changed when they rather foster Superstition than that they edifie the Kirk using the same XXI Of the Sacraments AS the Fathers under the Law besides the verity of the Sacrifices had two chief Sacraments to wit Circumcision and the Passeover the despisers and contemners whereof were not reputed of Gods People so do we acknowledg and confess that we now in the time of the Evangel have two chief Sacraments only instituted by the Lord Jesus and commanded to be used of all these that will be re●uted Members of his Body to wit Baptism and the Supper or Table of the Lord Jesus called the Communion of his Body and Blood And these Sacraments as well of Old as New Testament were instituted of God not only to make a visible difference betwixt his People and these that were without his League but also to exercise the faith of his Children and by participation of the same Sacraments to seal in their hearts the assurance of his promise and of that most blessed conjunction union and society which the Elect have with their Head Christ Jesus And thus we utterly damn the vanity of them that affirm Sacraments to be nothing else but naked and bare signs No we assuredly believe that by Baptism we are ingrafted in Christ Jesus to be made pertakers of his Justice by which our sins are covered and remitted And also that in the Supper rightly used Christ Jesus is so joyned with us that he becomes very nourishment and food of our souls Not that we imagine any Transubstantiation of Bread into Christs natural Body of Wine into his natural Blood as the Papists have perniciously taught and damnably believed but this Union and Conjunction which we have with the Body and Blood of Christ Iesus in the right use of the Sacraments is wrought by the operation of the Holy Ghost who by true faith carries us above all things that are visible carnal and earthly and makes us to feed upon the Body and Blood of Christ Iesus which was once broken and shed for us who now is in Heaven and appears in the presence of his Father for us And yet notwithstanding the far distance of place which is betwixt his body now glorified in Heaven and us now mortal in this earth yet we most assuredly believe that the bread which we break is the Communion of Christs Body and the Cup which we bless is the Communion of his Blood So that we confess and undoubtedly believe that the faithful in the right use of the Lords Table do so eat the Body and drink the Blood of the Lord Iesus that he remains in them and they in him Yea they are so made flesh of his flesh and bone of his bones that as the eternal Godhead has given to the flesh of Christ Iesus which of its own condition and nature was mortal and corruptible life and immortality so does Christ Iesus his flesh and blood eaten and drunken by us give unto us the same Prerogatives Which albeit we confess are neither given unto us at that time only neither yet by the proper power and virtue of the Sacrament only yet we affirm that the faithful in the right use of the Lords Table has such Conjunction with Christ Iesus as the natural man cannot apprehend Yea and further we affirm That albeit the faithful oppressed by negligence and manly infirmity does not profit so much as they would in the very instant Action of the Supper yet shall it after bring fruit forth as lively seed sown in good ground For the Holy Spirit which can never be divided from the right Institution of the Lord Iesus will not frustrate the faithful of the fruit of that mystical Action but all this we say comes of true faith which apprehends Christ Iesus who only makes this Sacrament effectual unto us And therefore whosoever slanders us as that we affirm or believe Sacraments to be naked and bare signs do injury unto us and speak against the manifest truth But this liberally and frankly

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 ●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 ●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 16●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 Hig●ness's and ●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 cons●lt and plead for him in the foresaid Criminal Process without incurring ●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

criminal he frequently repeats from the known grounds of Law of the nature of crimes and the design of criminal Laws viz. That as there can be no crime without a fraudulent purpose either apparent or proven So it was the design of Lawgivers only to punish such acts as are designedly malicious I desire you only to consider the particulars following And 1 Pag. 〈◊〉 l. 7. of his Book of Criminals having made the question Whether what tends to a crime not perfected doth fall under the Statut or Law by which that crime to which it approaches is punished He instances in the crime of Misconstruing His Majesties Government and Proceedings or depraving his Laws which as he sayes is punishable by death Ja. 6. Par. 10. Act 10. And then further moves Whether papers as tending to misconstrue His Majesties proceedings and Government or bearing insinuations which may raise in the people jealousy against the Government be punished by that Law Which being one of the great crimes pretended and libelled against the Earl I shall here omitting his reasons in the affirmative which have not the least ground in the Earl's case as you have heard represent to you how exactly he himself and others have acted for the Earl's overthrow all these dangerous and pernicious things from which he argues in the negative His words then are these And that such insinuations and tendencies are not punished criminally he sayes 1. It is the interest of mankind to know expresly what they are to obey especially where such great certifications are annexed as in crimes 2. The Law having taken under its consideration this guilt hes punished the actual misconstruing or depraving but hes not declared such insinuations or tendencies punishable Et in statutis casus omissus habetur pro omisso 3. This would infallibly tend to render all judges arbitrary for tendencies and insinuations are in effect the product of conjecture and papers may seem innocent or criminall according to the zeal or humour as well as malice of judges men being naturally prone to differ in such consequentiall inferences and too apt to make constructions in such according to the favour or malice they bear to the Person or Cause Are not some men apt to construct that to tend to their dishonour which was designed for their honour and to think every thing an innovation of Law or Priviledge which checks their inclination and design Whereas some judges are so violent in their Loyalty as to imagine the meanest mistaks do tend to an opposition against Authority and thus Zeal Iealousie Malice or Interest would become judges 4. Men are so silly or may be in such haste or so confounded and the best are subject to such mistakes as that no man could know when he were innocent simplicity might oft times become a crime and the fear of offending might occasion offence and how uncomfortably would the people live if they knew not how to be innocent 2ly p 47 l 9. Of the same Book he sayes That the 8th Point of Treason is to impugn the dignity and Authority of the three Estates or to seek and procure the innovat on and diminution of their Power and Authority Act 103. Ja. 6. p. 6. Now this being another of the crimes charged upon the Earl hear how the Advocate there understands it But this he adds immediatly is to be understood of a N. B. direct impugning of their Authority as if it were contended that Parliaments were not necessary or that one of the three Estates might be turned out Which how vastly different from his indirect forced and horrible inferences in the Earl's case is plain and obvious 3ly ibid. p. 58. l. 2. After having said That according to former Laws no sort of Treason was to be persued in absence before the Justices And urging it to be reasonable he adds Nor is it imaginable but if it had been safe it had been granted formerly And l. 31. he sayes The Justices are never allowed even by the late Act of Parliament to proceed to sentence against absents but such as are persued for Rising in Armes against the King The true reason whereof he tells us is that the Law is not so inhumane as to punish equally presumed and reall guilt And that it hath been often found that men have absented themselves rather out of fear of a prevailing Faction or currupt witnesses c. then out of consciousness of guilt Reasons which albeit neither true nor just seeing that the Law punishes nothing even in case of absence but either manifest contumacie or crimes fully proven And that the only reason why it allowes no other crime save Perduellion to be proceeded against in absence is because it judges no other crime tanti yet you see how this whole passage quadrats with the Earl's case Who being neither persued for perduellion nor present at giving sentence was yet sentenced in absence as a most desperate traitour 4ly ibid p. 60. l. 24. Speaking of the Solemnities used in Parliament at the pronouncing sentences for Treason viz. That the Pannel receives his sentence kneeling and that after the doom of for faulture pronounced against him the Lyon and his Brethren the Heraulds in their formalities come tear his Coat of armes at the Throne and thereafter hang up his Eschucheon ranversed upon the mercat Crosse he adds But this I think should only hold in the crime of Perduellion and then goes on to add That the children of the delinquent are declared incapable to bruik any Office or Estate is another Speciality introduced in the punishment of Perduellion only And yet both these terrible Solemnities were practised against the Earl even by a Court of Iustitiary and not in Parliament albeit he was not accused of Perduellion nor be indeed more guilty of any crime then all the world sees 5ly ibid page 303 l. ult he sayes That verbal injuries are these that are committed by unwarrantable expressions as to call a man a Cheat a woman whore But because expressions may vary according to the intention of the speaker therefore except the words can allow of no good sense as whore or thief or that there be strong presumptions against the speaker the injuriandi animus or design of injuring as well as the injuring words must be proven and the speaker will be allowed to purge his guilt by declaring his intention and his declaration without an Oath will be sufficient 2ly The persuer should libell the design and prove it except the words clearly inferre it 3ly The persuer is presently to resent the injurie and if at first the words be taken for no injurie they cannot afterward become such Which things being applied to the Earl's words do evident I say That unless his words could allow of no good sense or that there were strong presumptions against him or that he could not purge his guilt by declaring his intention or that his words did clearly inferre the guilt there could be no crime of