those vast Lands Jurisdictions and Superiorities justly forfaulted to His Majesty by the Crimes of your deceased Father preferring your Family to those who had served His Majesty against it in the late Rebellion but also pardoned and remitted to you the Crimes of Leasing-making and misconstruing His Majesties and his Parliaments proceedings against the very Laws above-written whereof you were found guilty and condemned to die therefore by the High Court of Parliament the 25th of August 1662. and raised you to the Title and Dignity of an Earl and being a Member of all His Majesties Judicatures Notwithstanding of all these and many other favours you the said Archibald Earl of Argyle being put by the Lords of His Majesties Privy-Council to take the Test appointed by the Act of the last Parliament to be taken by all persons in publick Trust you instead of taking the said Test and swearing the same in the plain genuine sense and meaning of the words without any equivocation mental reservation or evasion whatsoever you did declare against and defame the said Act and having to the end you might corrupt others by your pernicious sense drawn the same in a Libel of which Libel you dispersed and gave abroad Copies whereby ill impressions were given of the King and Parliaments proceedings at a time especially when His Majesties Subjects were expecting what submission should be given to the said Test and being desired the next day to take the same as one of the Commissioners of His Majesties Treasury you did give into the Lords of His Majesties Privy-Council and owned twice in plain judgment before them the said defamatory Libel against the said Test and Act of Parliament declaring That you had considered the said Test and was desirous to give obedience as far as you could whereby you clearly insinuated that you was not able to give full obedience In the second Article of which Libel you declare That you were confident the Parliament never intended to impose contradictory Oaths thereby to abuse the people with a belief that the Parliament had been so impious as really and actually to have imposed contradictory Oaths and so ridiculous as to have made an Act of Parliament which should be most deliberate of all humane actions quite contrary to their own intentions after which you subsumed contrary to the nature of all Oaths and to the Acts of Parliament above cited that every man must explain it for himself and take it in his own sense by which not only that excellent Law and the Oath therein specified which is intended to be a Fence to the Government both of Church and State but all other Oaths and Laws shall be rendered altogether useless to the Government If every man take the Oaths imposed by Law in his own sense then the Oath imposed is to no purpose for the Legislator cannot be sure that the Oath imposed by him will bind the takers according to the design and intent for which he appointed it and the Legislative Power is taken from the Imposers and settled in the taker of the Oath and so he is allowed to be the Legislator which is not only an open and violent depraving of His Majesties Laws and Acts of Parliament but is likewise a settling of the Legislative Power on private Subjects who are to take such Oaths In the third Article of that Paper you declare That you take the Test in so far only as it is consistent with it self and the Protestant Religion by which you maliciously intimate to the people That the said Oath is inconsistent with it self and with the Protestant Religion which is not only a down right depraving of the said Act of Parliament but is likewise a misconstruing of His Majesties and the Parliaments proceedings and misrepresenting them to the people in the highest degree and in the tenderest points they can be concerned and implying that the King and Parliament have done things inconsistent with the Protestant Religion for securing of which that Test was particularly intended In the Fourth Article you do expresly declare that you mean not by taking the said Test to bind up your self from wishing and endeavouring any alteration in a lawful way that you shall think fit for advancing of Church and State whereby also it was designed by the said Act of Parliament and Oath That no man should make any alteration in the Government of Church and State as it is now established and that it is the Duty of all good Subjects in humble and quiet manner to obey the present Government Yet you not only declare your self but by your example you invite others to think themselves loosed from that Obligation and that it is free for them to make any alteration in either as they shall think fit concluding your whole Paper with these words And this I understand as a part of my Oath which is a treasonable invasion upon the Royal Legislative Power as if it were lawful for you to make to your self an Act of Parliament since he who can make any part of an Act may make the whole the Power and Authority in both being the same Of the which Crimes above mentioned you the said Archibald Earl of Argyle are Actor Art and Part which being found by the Assize you ought to be punished with the pains of Death fortâ—ulture and escheat of Lands and Goods to the terror of others to commit the like hereafter An Abstract of the several Acts of Parliament upon which the Indictment against the Earl of Argyle was grounded Concerning raisers of Rumours betwixt the King and his people Chap. 20.1 Statutes of King Robert 1. IT is defended and forbidden That no man be a Conspirator or Inventer of Narrations or Rumours by the which occasion of discord may arise betwixt the King and his people And if any such man shall be found and attainted thereof incontinent be shall be taken and put in Prison and there shall be surely keeped up ay and while the King declare his will anent him Act 43. of Par. 2. King James 1. March 11. 1424. Leasing-makers forfault Life and Goods ITem It is ordained by the King and whole Parliament that all Leasingmakers and tellers of them which may engender discord betwixt the King and his people wherever they may be gotten shall be challenged by them that power has and ryne Lâ—â—e and Goods to the King Act 83. Par. 6. James 5. Dec. 10. 1540. Of Leasing-makers ITem Touching the Article of Leasing-makers to the Kings Grace of his Barons great men and Leiges and for punishment to be put to them therefore the Kings Grace with advice of his three Estates ratifies and approves the Acts and Statutes made thereupon before and ordains the same to be put in execution in all points and also Statutes and ordains That if any manner of person makes any evil Information of his Highness to his Barons and Leiges that they shall be punished in such manner and by the same punishment as
they that make Leasings to his Grace of his Lords Barons and Leiges Act 134. Par. 8. James 6. May 22. 1584. Anent Slanderers of the King his Progenitors Estate and Realm FOrasmuch as it is understood to our Soveraign Lord and his three Estates assembled in this present Parliament what great harm and inconveniency has fallen in this Realm chiefly since the beginning of the Civil troubles occurred in the time of his Highness minority through the wicked and licentious publick and private speeches and untrue calumnies of divers of his Subjects to the disdain contempt and reproach of His Majesty his Council and proceedings and to the dishonour and prejudice of his Highness his Parents Progenitors and Estate stirring up his Highness's Subjects thereby to misliking sedition unquietness and to cast off their due obedience to His Majesty to their evident peril tinsil and destruction his Highness continuing always in love and clemency toward all his good Subjects and most willing to seek the safety and preservation of them all which wilfully needlessly and upon plain malice after his Highness's mercy and pardon oft times afore granted has procured themselves by their treasonable deeds to be cut off as corrupt Members of this Commonwealth Therefore it is statute and ordained by our Soveraign Lord and his three Estates in this present Parliament that none of his Subjects of whatsoever Function Degree or Quality in time coming shall presume or take upon hand privately or publickly in Sermons Declanations and familiar Conferences to utter any false slanderous or untrue Speeches to the disdain reproach and contempt of His Majesty his Council and proceedings or to the dishonour hurt or prejudice of his Highness his Parents and Progenitors or to meddle in the Affairs of his Highness and his Estate present by-gone and in time coming under the pains contained in the Acts of Parliament anent makers and tellers of Leasings certifying them that shall be tryed contraveeners thereof or that hear such slanderous Speeches and reports not the same with diligence the said pain shall be executed against them with all rigour in example of others Act 205. Par. 14 King James 6. June 8. 1594. Anent Leasing-makers and Authors of Slanders OUR Soveraign Lord with advice of his Estates in this present Parliament ratifies approves and for his Highness and Successors perpetually confirms the Act made by his Noble Progenitors King James the First of Worthy Memory against Leasing-makers the Act made by King James the Second entituled Against Leasing-makers and tellers of them the Act made by King James the Fifth entituled Of Leasing-makers and the Act made by his Highness's self with advice of his Estates in Parliament upon the 22d day of May 1584. entituled For the punishment of the Authors of Slanders and untrue Calumnies against the Kings Majesty his Council and proceedings to the dishonour and prejudice of his Highness his Parents Progenitors Crown and Estate as also the Act made in his Highness's Parliament holden at Linlithgow upon the 10th of December 1585. entituled Against the Authors of slanderous Speeches or Writs and statutes and ordains all the said Acts to be published of new and to be put in execution in time coming with this addition That whoever hears the said Leasings Calumnies or slanderous Speeches or Writs to be made and apprehends not the Authors thereof if it lies in his power and reveals not the same to his Highness or one of his Privy Council or to the Sheriff Steward or Bayliff of the Shire Stewards in Regality or Royalty or to the Provost or any of the Bayliffs within Burgh by whom the same may come to the knowledge of his Highness or his said Privy-Council where through the said Leasing makers and Authors of slanderous Speeches may be called tryed and punished according to the said Acts The hearer and not apprehender if it lye in his power and concealer and not revealer of the said Leasing makers and Authors of the said slanderous Specches or Writs shall incur the like pain and punishment as the principal Offender Act 107. Par. 7. King James 1. March 1. 1427. That none interpret the Kings Statutes wrongously ITem the King by deliverance of Council by manner of Statute forbids That no man interpret his Statutes otherwise than the Statutes bear and to the intent and effect that they were made for and as the maker of them understood and who so does in the contrary shall be punished at the Kings will Act 10. Par. 10. King James 6. Dec. 10. 1585. Authors of slanderous Speeches or Writs should be punished to the Death IT is statuted and ordained by our Soveraign Lord and three Estates that all his Highness's Subjects content themselves in quietness and dutiful obedience to his Highness and his Authority and that none of them presume or take upon hand publickly to declaim or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws and Acts of Parliament or misconstrue his proceedings whereby any misliking may be moved betwixt his Highness and his Nobility and loving Subjects in time coming under the pain of Death certifying them that do in the contrary they shall be reputed as seditious and wicked Instruments enemies to his Highness and the Commonwealth of this Realm and the said pain of Death shall be executed upon them with all rigour in example of others Act for preservation of His Majesties Person Authority and Government May 1662. And further it is by His Majesty and Estates of Parliament declared statuted and enacted That if any person or persons shall by writing printing praying preaching libelling remonstrating or by any malicious or advised speaking express publish or declare any words or sentences to stir up the people to the hatred or dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastical or of the Government of the Church by Archbishops and Bishops as it is now settled by Law That every such person or persons so offending and being legally Convicted thereof are hereby declared incapable to enjoy or exercise any place or employment Civil Ecclesiastick or Military within this Church and Kingdom and shall be liable to such further pains as are due by the Law in such Cases Act 130. Par. 8. James 6. May 22. 1584. Anent the Authority of the three Estates of Parliament THE Kings Majesty considering the Honour and the Authority of his Supreme Court of Parliament continued past all memory of man unto their days as constitute upon the free Votes of the three Estates of this ancient Kingdom by whom the same under God has ever been upholden Rebellious and Traiterous Subjects punished the Good and Faithful preserved and maintained and the Laws and Acts of Parliament by which all men are governed made and established And finding the Power Dignity and Authority of the said Court of Parliament of late years called in some doubt at least some curiously travelling
the People 2. There is a mutual compact tacit or express between a Prince and his Subjects and that if he perform not his duty they are discharg'd from theirs 3. That if lawful Governors become Tyrants or govern otherwise than by the Laws of God and Man they ought to do they forfeit the Right they had unto their Government Lex Rex Buchanan de Jure Regni Vindiciae contra tyrannos Bellarmine de Conciliis de Pontifice Milton Goodwin Baxter H. C. 4. The Sovereignty of England is in the three Estates viz. King Lords and Commons The King has but a co-ordinate Power and may be over-ruled by the other two Lex Rex Hunton of a limited and mix'd Monarchy Baxter H. C. Polit. Catech. 5. Birthright and proximity of Blood give no title to Rule or Government and it is Lawful to preclude the next Heir from his Right of Succession to the Crown Lex Rex Hunt's Postscript Doleman History of Succession Julian the Apostate Mene Tekel 6. It is Lawful for Subjects without the Consent and against the Command of the Supreme Magistrate to enter into Leagues Covenants and Associations for defence of themselves and their Religion Solemn League and Covenant Late Association 7. Self-preservation is the Fundamental Law of Nature and supersedes the Obligation of all others whenever they stand in competition with it Hobbs de Cive Leviathan 8. The Doctrine of the Gospel concerning patient suffering of Injuries is not inconsistent with violent resisting of the higher Powers in case of Persecution for Religion Lex Rex Julian Apostat Apolog. Relat. 9. There lies no Obligation upon Christians to Passive Obedience when the Prince Commands any thing against the Laws of our Country And the Primitive Christians chose rather to die than resist because Christianity was not yet settled by the Laws of the Empire Julian Apostate 10. Possession and strength give a right to Govern and Success in a Cause or Enterprize proclaims it to be Lawful and Just to pursue it is to comply with the Will of God because it is to follow the Conduct of his Providence Hobbs Owen's Sermon before the Regicides Jan. 31. 1648. Baxter Jenkin's Petition Octob. 1651. 11. In the state of Nature there is no difference between good and evil right and wrong the state of Nature is a state of War in which every Man hath a right to all things 12. The Foundation of Civil Authority is this natural right which is not given but left to the Supreme Magistrate upon Men's entring into Societies and not only a Foreign Invader but a Domestick Rebel puts himself again into a state of nature to be proceeded against not as a Subject but an Enemy And consequently acquires by his Rebellion the same right over the Life of his Prince as the Prince for the most heinous Crimes has over the Life of his own Subjects 13. Every Man after his entring into a Society retains a right of defending himself against Force and cannot transfer that right to the Common-wealth when he consents to that Union whereby a Common-wealth is made and in case a great many Men together have already resisted the Common-wealth for which every one of them expecteth Death they have liberty then to joyn together to assist and defend one another Their bearing of Arms subsequent to the first breach of their Duty though it be to maintain what they have done is no new unjust act and if it be only to defend their Persons is not unjust at all 14. An Oath superadds no obligation to pact and a pact obliges no further than it is credited And consequently if a Prince gives any Indication that he does not believe the Promises of Fealty and Allegiance made by any of his Subjects they are thereby freed from their subjection and notwithstanding their Pacts and Oaths may lawfully rebel against and destroy their Sovereign Hobbs de Cive Leviathan 15. If a People that by Oath and Duty are oblig'd to a Sovereign shall sinfully dispossess him and contrary to their Covenants chuse and covenant with another they may be obliged by their latter Covenant notwithstanding their former Baxter H. C. 16. All Oaths are unlawful and contrary to the Word of God Quakers 17. An Oath obliges not in the sense of the Imposer but the Takers Sheriffs Case 18. Dominion is founded in Grace 19. The Powers of this World are Usurpations upon the Prerogative of Jesus Christ and it is the Duty of God's People to destroy them in order to the setting Christ upon his Throne Fifth-Monarchy Men. 20. The Presbyterian Government is the Scepter of Christ's Kingdom to which Kings as well as others are bound to submit and the King's Supremacy in Ecclesiastical Affairs asserted by the Church of England is injurious to Christ the sole King and Head of his Church Altare Damascenum Apolog. relat Hist Indulgen Cartwright Travers 21. It is not lawful for Superiors to impose any thing in the Worship of God that is not antecedently necessary 22. The duty of not offending a weak Brother is inconsistent with all human Authority of making Laws concerning indifferent things Protestant Reconciler 23. Wicked Kings and Tyrants ought to be put to Death and if the Judges and inferior Magistrates will not do their office the Power of the Sword devolves to the People if the major part of the People refuse to exercise this Power then the Ministers may Excommunicate such a King after which it is lawful for any of the Subjects to kill him as the People did Athaliah and Jehu Jezabel Buchanan Knox. Goodman Gilby Jesuits 24. After the sealing of the Scripture-Canon the People of God in all ages are to expect new Revelations for a rule of their Actions * Quakers and other Enthusiasts and it is lawful for a private Man having an inward motion from God to kill a Tyrant †Goodman 25. The example of Phineas is to us instead of a Command for what God has commanded or approved in one Age must needs oblige in all Goodman Knox. Naphtali 26. King Charles the First was lawfully put to Death and his Murtherers were the blessed Instruments of God's Glory in their Generation Milton Goodwin Owen 27. King Charles the First made War upon his Parliament and in such a case the King may not only be resisted but he ceaseth to be King Baxter We decree judge and declare all and every of these Propositions to be False Seditious and Impious and most of them to be also Heretical and Blasphemous infamous to Christian Religion and destructive of all Government in Church and State We farther decree that the Books which contain the foresaid Propositions and impious Doctrines are fitted to deprave good Manners corrupt the Minds of unwary Men stir up Seditions and Tumults overthrow States and Kingdoms and lead to Rebellion murther of Princes and Atheism it self And therefore we interdict all Members of the University from the reading the said Books under the Penalties
such Assemblies which times are as ancient as any Memory of the Nation it self hence I infer that no Summons from the King can be thought to have been necessary in those days because it was altogether needless Secondly The Succession to the Crown did not in those days nor till of late years run in a course of Lineal Succession by right of Inheritance But upon the death of a Prince those Persons of the Realm that Composed the then Parliament Assembled in order to the choosing of another That the Kingdom was then Elective though one or other of the Royal Blood was always chosen but the next in Lineal Succession very seldom is evident from the Genealogies of the Saxon Kings from an old Law made at Calchuyth appointing how and by whom Kings shall be chosen and from many express and particular Accounts given by our old Historians of such Assemblies held for Electing of Kings Now such Assemblies could not be Summon'd by any King and yet in conjunction with the King that themselves set up they made Laws binding the King and all the Realm Thirdly After the Death of King William Rufus Robert his Elder Brother being then in the Holy Land Henry the younger Son of King William the First procured an Assembly of the Clergy and People of England to whom he made large Promises of his good Government in case they would accept of him for their King and they agreeing that if he would restore to them the Laws of King Edward the Confessor then they would consent to make him their King He swore that he would do so and also free them from some oppressions which the Nation had groan'd under in his Brothers and his Fathers time Hereupon they chose him King and the Bishop of London and the Archbishop of York set the Crown upon his Head Which being done a Confirmation of the English Liberties passed the Royal Assent in that Assembly the same in substance though not so large as King John's and King Henry the Third's Magna Charta's afterwards were Fourthly After that King's Death in such another Parliament King Stephen was Elected and Mawd the Empress put by though not without some stain of perfidiousness upon all those and Stephen himself especially who had sworn in her Fathers Life-time to acknowledge her for their Soveraing after his decease Fifthly In King Richard the First 's time the King being absent in the Holy Land and the Bishop of Ely then his Chancellor being Regent of the Kingdom in his Absence whose Government was intolerable to the People for his Insolence and manifold Oppressions a Parliament was convened at London at the Instance of Earl John the Kings Brother to treat of the great and weighty affairs of the King and Kingdom in which Parliament this same Regent was depos'd from his Government and another set up viz. the Arch-Bishop of Roan in his stead This Assembly was not conven'd by the King who was then in Palaestine nor by any Authority deriv'd from him for then the Regent and Chancellor must have call'd them together but they met as the Historian says expresly at the Instance of Earl John And yet in the Kings Absence they took upon them to settle the publick Affairs of the Nation without Him Sixthly When King Henry the 3d. died his Eldest Son Prince Edward was then in the Holy Land and came not home till within the third year of his Reign yet immediately upon the Fathers Death all the Prelates and Nobles and 4 Knights for every Shire and 4 Burgesses for every Borough Assembled together in a great Council and setled the Government till the King should return Made a new Seal and a Chancellor c. I infer from what has been said that Writs of Summons are not so Essential to the being of Parliaments but that the People of England especially at a time when they cannot be had may by Law and according to our old Constitution Assemble together in a Parliamentary way without them to treat of and settle the publick Affairs of the Nation And that if such Assemblies so conven'd find the Throne Vacant they may proceed not only to set up a Prince but with the Assent and Concurrence of such Prince to transact all Publick business whatsoever without a new Election they having as great Authority as the People of England can deligate to their Representatives II. The Acts of Parliaments not Formal nor Legal in all their Circumstances are yet binding to the Nation so long as they continue in Force and not liable to be questioned as to the Validity of them but in subsequent Parliaments First The two Spencers Temp. Edvardi Secundi were banished by Act of Parliament and that Act of Parliament repealed by Dures Force yet was the Act of Repeal a good Law till it was Annulled 1 Ed. 3. Secondly Some Statutes of 11 Rich. 2. and attainders thereupon were repealed in a Parliament held Ann. 21. of that King which Parliament was procured by forced Elections and yet the Repeal stood good till such time as in 1 Henry 4. the Statutes of 11 Rich. 2. were revived and appointed to be firmly held and kept Thirdly The Parliament of 1 Hen. 4. consisted of the same Knights Citizens and Burgesses that had served in the then last dissolved Patliament and those Persons were by the Kings Writts to the Sheriffs commanded to be returned and yet they passed Acts and their Acts tho never confirmed continue to be Laws at this day Fourthly Queen Mary's Parliament that restored the Popes Supremacy was notoriously known to be pack'd inso much that it was debated in Queen Elizabeth's time whether or no to declare all their Acts void by Act of Parliament That course was then upon some prudential considerations declined and therefore the Acts of that Parliament not since repealed continue binding Laws to this day The reason of all this is Because no inferiour Courts have Authority to judge of the Validity or Invalidity of the Acts of such Assemblies as have but so much as a colour of Parliamentary Authority The Acts of such Assemblies being Entred upon the Parliament-Roll and certified before the Judges of Westminster-Hall as Acts of Parliament are conclusive and binding to them because Parliaments are the only Judges of the Imperfections Invalidities Illegalities c. of one another The Parliament that call'd in King Charles the Second was not assembled by the Kings Writ and yet they made Acts and the Royal assent was had to them many of which indeed were afterwards confirmed but not all and those that had no Confirmation are undoubted Acts of Parliament without it and have ever since obtained as such Hence I inferr that the present Convention may if they please assume to themselves a Parliamentary Power and in conjunction with such King or Queen as they shall declare may give Laws to the Kingdom as a legal Parliament The Thoughts of a Private Person about the Justice of the Gentlemens Vndertaking
most willingly bind our selves every one of us to the other joyntly and severally in the Band of one Firm and Loyal Society And do hereby Vow and Promise by the MAJESTY OF ALMIGHTY GOD That with our whole Powers Bodies Lives and Goods and with our Children and Servants We and every of us will faithfully serve and humbly obey our said Sovereign Lady Queen Elizabeth against all States Dignities and Earthly Powers whatsoever and will as well with our joynt and particular Forces during our Lives withstand offend and pursue as well by Force of Arms as by all other means of Revenge all manner of Persons of what State soever they shall be and their Abettors that shall attempt any Act Council or Consent to any thing that shall tend to the Harm of her Majesties Royal Person and will never desist from all manner of Forcible Pursuit against such Persons to the utter Extermination of them their Counsellors Aiders and Abettors And if any such wicked Attempt against her most Royal Person shall be taken in hand or procured whereby any that have may or shall pretend Title to come to this Crown by the untimely Death of her Majesty so wickedly procured which God for his Mercy sake forbid may be avenged We do not only bind our selves both joyntly and severally never to Allow Accept or Favour any such pretended Successor by whom or for whom any such detestable Act shall be Attempted or Committed as unworthy of all Government in any Christian Realm or Civil State But do also further Vow and Protest as we are most bound and that in the Presence of the Eternal and Everlasting God to Prosecute such Person and Persons to Death with our joynt or particular Forces and to ask the utmost Revenge upon them that by any means we or any of us can devise and do or cause to be devised and done for their utter Overthrow and Extirpation And to the better Corroboration of this our Loyal Band and Association We do also testifie by this Writing that we do confirm the Contents hereof by our Oaths corporally taken upon the Holy Evangelist with this express Condition That no one of us shall for any respect of Persons or Causes or for Fear or Reward separate our selves from this Association or fail in the Prosecution thereof during our Lives upon pain of being by the rest of us prosecuted and supprest as perjur'd Persons and as Publick Enemies to God our Queen and to our Native Country To which Punishment and Pains we do voluntarily submit ourselves and every of us without Benefit of any Colour or Pretence In Witness of all which Premises to be inviolably kept we do to this Writing put our Hands and Seals and shall be most ready to accept and admit any other hereafter to this Society and Association The ACT of Parliament of the 27th of Queen Elizabeth in Confirmation of the same FOrasmuch as the good Felicity and Comfort of the whole Estate of this Realm consisteth only next under God in the Surety and Preservation of the Queens most excellent Majesty And for that it hath manifestly appeared that sundry wicked Plots and Means have of late been devised and laid as well in Foreign Parts beyond the Seas as also within this Realm to the great indangering of his Highness most Royal Person and to the utter Ruine of the whole Commonweal if by Gods merciful Providence the same had not been revealed Therefore for preventing of such great Perils as might hereafter otherwise grow by the like detestable and divilish Practices at the humble Suit and earnest Petition and Desire of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same Parliament Be it Enacted and Ordained if at any Time after the end of this present Session of Parliament any open Invasion or Rebellion shall be had or made into or within any of Her Majesties Realms or Dominions or any Act attempted tending to the hurt of her Majesties most Royal Person by or for any Person that shall or may pretend any Title to the Crown of this Realm after her Majesties Decease or if any thing shall be compassed or imagined tending to the hurt of her Majesties Royal Person by any person or with the Privity of any person that shall or may pretend Title to the Crown of this Realm that then by Her Majesties Commission under Her Great Seal the Lords and other of Her Highness Privy Council and such other Lords of Parliament to be Named by her Majesty as with the said Privy Council shall make up the Number of Four and twenty at the least ving with them for their Assistance in that behalf such of the Judges of the Courts of Record at Westminster as Her Highness shall for that purpose assign and appoint or the more part of the same Council Lords and Judges shall by virtue of the Act have Authority to examine all and every the Offences aforesaid and all Circumstances thereof and thereupon to give Sentence or Judgment as upon good proof the matter shall appear unto them And that after such Sentence or Judgment given and Declaration thereof made and published by Her Majesties Proclamation under the Great Seal of England all persons against whom such Sentence or Judgment shall be so given and published shall be excluded and disabled for ever to have or claim or to pretend to have or claim the Crown of this Realm or of any Her Majesties Dominions any former Law or Statute whatsoever to the contrary in any wise notwithstanding And that thereupon All Her Highness Subjects shall and may lawfully by virtue of this Act and Her Majesties Direction in that behalf by forcible and possible means pursue to Death every such wicked person by whom or by whose means assent or privity any such Invasion or Rebellion shall be in Form aforesaid denounced to have been made or such wicked Act attempted or other thing compassed or imagined against Her Majesties Person and all their Aiders Comforters and Abettors And if any such detestible Act shall be Executed against her Highness most Royal Person whereby Her Majesties Life shall be taken away which God of his great mercy forbid that then every such person by or for whom any such Act shall be executed and their Issues being any wise assenting or privy to the same shall by virtue of this Act be excluded and disabled for ever to have or claim or pretend to have or claim the said Crown of this Realm or of any other Her Highness Dominions any former Law or Statute whatsoever to the contrary in any wise notwithstanding And that all the Subjects of this Realm and all other Her Majesties Dominions shall and may lawfully by virtue of this Act by all forcible and possible means pursue to Death every such wicked Person by whom or by whose means any such detestible Fact shall be in Form hereafter expressed denounced to have been
committed and also their Issues being any way assenting or privy to the same and all their Aiders Comforters and Abettors in that behalf And to the end that the intention of this Law may be effectually Executed if Her Majesties Life shall be taken away by any violent or unnatural means which God defend Be it further Enacted by the Authority aforesaid That the Lords and others which shall be of Her Majesties Privy Council at the time of such Her Decease or the more part of the same Council joyning unto them for their better Assistance five other Earls and seven other Lords of Parliament at the least foreseeing that none of the said Earls Lords or Council be known to be persons that may make any Title to the Crown those persons which were Chief Justices of either Bench Master of the Rolls and Chief Baron of the Exchequer at the time of Her Majesties Death or in Default of the said Justices Master of the Rolls and Chief Baron some other of those which were Justices of some of the Courts of Records at Westminster at the time of Her Highness Decease to supply their Places or any Four and twenty or more of them whereof Eight to be Lords of the Parliament not being of the Privy Council shall to the uttermost of their Power and Skill examine the cause and manner of such Her Majesties Death and what persons shall be any way Guilty thereof and all Circumstances concerning the same according to the true meaning of this Act and thereupon shall by open Proclamation publish the same and without any delay by all forcible and possible means prosecute to Death all their Aiders and Abettors And for the doing thertof and for the withstanding and suppressing of all such Power and Force as shall any way be levied or stirred in Disturbance of the due Execution of this Law shall by virtue of this Act have Power and Authority not only to raise and use such Forces as shall in that behalf be needful and convenient but also to use all other means and things possible and necessary for the maintenance of the same Forces and prosecution of the said Offenders And if any such Power and Force shall be levied or stirred in Disturbance of the due Execution of this Law by any person that shall or may pretend any Title to the Crown of this Realm whereby this Law may not in all things be fully Executed according to the effect and true meaning of the same That then every such person shall by virtue of this Act be therefore excluded and disabled for ever to have or claim or to pretend to have or claim the Crown of this Realm or of any other Her Highness Dominions any former Law or Statute whatsoever to the contrary notwithstanding And be it further Enacted by the Authority aforesaid and all and every the Subjects of all Her Majesties Realms and Dominions shall to the uttermost of their Power aid and assist the said Councel and all other the Lords and other Persons to be adjoyned to them for Assistance as is aforesaid in all things to be done and executed according to the effect and intention of this Law And that no Subject of this Realm shall in any wise be impeached in Body Lands or Goods at any time hereafter for any thing to be done or executed according to the Tenour of the Law any Law or Statute heretofore made to the contrary in any wise notwithstanding And whereas of late many of Her Majesties good and faithful Subjects have in the Name of God and with the Testimonies of good Consciences by one Uniform manner of Writing under their Hands land Seals and by their several Oaths voluntarily taken joyned themselves together in one Bond and Association to withstand and revenge to the uttermost all such malicious Actions and Attempts against Her Majesties most Royal Person Now for the full Explaining of all such Ambiguities and Questions as otherwise might happen to grow by reason of any sinister or wrong Construction or Interpretation to be made or inferred of or upon the words or meaning thereof Be it Declared and Enacted by the Authority of this present Parliament That the same Association and every Article and Sentence therein contained as well concerning the Disallowing Excluding or Disabling any Person that may or shall pretend any Title to come to the Crown of this Realm as also for the pursuing and taking Revenge of any person for any such wicked Act or Attempt as is mentioned in the same Association shall and ought to be in all things expounded and adjudged according to the true intent and meaning of this Act and not otherwise nor against any other person or persons A Word without Doors concerning the BILL for SUCCESSION SIR I AM very sensible of the great Honour you were pleas'd to do me in your last which I received immediately after our late unhappy Dissolution but could have wished you would have laid your Commands on some more able Person to have given you Satisfaction in the matter you there propose relating to the Duke who you seem to insinuate was like if the Parliament had continued to have received hard measure I must ingeniously confess to you I was not long since perfectly of your Opinion and thought it the highest Injustice imaginable for any Prince to be debar'd of his Native Right of Succession upon any pretence whatsoever But upon a more mature Deliberation and Enquiry I found my Error proceeded principally from the falso Notions I had took up of Government it self and from my Ignorance of the Practiâ—â—â— of all Communities of Men in all Ages whenever Self-preservation and Necessity of their Affairs obliged them to declare their Opinion in Cases of the like Nature To the knowledge of all which the following Accident I shall relate to you did very much contribute My Occasions obliging me one day to attend the coming of a Friend in a Coffee-house near Charing-Cross there happened to sit at the same Table with me Two Ingenious Gentlemen who according to the Frankness of Conversation now used in the Town began a Discourse on the same Subject you desire to be more particularly informed in and having Extolled the late House of Commons as the best number of Men that had ever sate within those Walls and that no House had ever more vigorously maintained and asserted English Liberty and Protestant Religion than they had done as far as the nature of the things that came before them and the Circumstances of time would admit to all which I very readily and heartily assented they then added That the great Wisdom and Zeal of that House had appeared in nothing more than in Ordering a Bill to be brought in for debarring the Duke of Y. from inheriting the Crown A Law they affirmed to be the most just and reasonable in the World and the only proper Remedy to establish this Nation on a true and solid Interest both Relation to the present
Nature and consequently the Ordinance of God but that the different forms of Government whether to reside in One Few or Many or whether it shall be continued by Succession or by Election together with the different measures and limitations of Power and Authority in Governours of the same kind in several Countries all these things I say are ordained by and purely depend upon positive and humane Laws From whence it will necessarily follow That the same human Authority residing in King Lords and Commons here in England which gave Being to those Laws for the good of the Community is Superintendent over them and both may and ought to make any Addition to or Alteration of them when the publick Good and Welfare of the Nation shall require it unless you will admit That an Human Authority establishing any thing intentionally for the common good of the Society which in tract of time by reason of unforeseen circumstances and emergencies proves destructive of it has by that Act concluded it self and made that accidental Evil moral and unchangeable which to affirm is sensless and repugnant And now Sir I hope by this time said the old Gentleman you begin to think that the Bill for disabling the Duke was not so unjust and unreasonable as was pretended and that the course of Succession being founded upon the same bottom with other Civil Constitutions might likewise as justly have been altered by the King Lords and Commons as any other Law or Custom whatever And here I might conclude but because a late Pensionary Pen has publickly arraign'd the Wisdom Loyalty and Justice of the Honourable House of Commons on the account of this Bill I will ex abundanti add a word or two more to that particular Whereupon he pluck'd a Paper out of his Pocket entituled Great and weighty Considerations relating to the Duke and Successor of the Crown c. Which as soon as he had read unto us You see here said he the true Temper of those men of whom I first gave you caution There never was an Endeavour though in a Legal and Parliamentary way after any Reformation either in Church or State but the Promoters of it were sure to be branded by them with the odious imputations of Fanaticism and Faction Nay if the Country-Electors of Parliament-men will not pitch upon such Rake-hells of the Nation as are usually proposed by them but on the contrary make use of their Freedom and Consciences in chusing able upright and deserving persons and if good men thus chosen do but according to their Duty in the House enquire into publick Grievances pursue in a legal course notorious Offenders and consult and advise the Security of the Government and Protestant Religion the high Church-man immediately swells and in a passion tells you That all this proceeds from the old Phanatick Leven not yet worn out amongst the People That we are going back again to Forty One and acting over afresh the Sins of our Forefathers Thus ignorantly do they complement the Times and Persons they endeavour to expose by appropriating to them such Virtues as were common to good men in all Ages But enough of this In the next place pray observe how hypocritically the Considerer puts this Question viz. Whether Protestant Religion was not settled in this Nation by the same mighty hand of God that establish'd Jeroboam in the Kingdom of Israel And then adds Whether we like that wicked King should so far despair of God's Providence in preserving the work of his own Hands as never to think it safe unless it be establish'd on the Quick-sands of our own wicked Inventions viz. the Bill against the Duke And throughout his whole Discourse he frequently calls all Care of preserving our Religion a Mistrust of God's Providence and on that score calls out to the Nation O ye of little Faith c. Now I will allow him That the least Evil is not to be done that the greatest and most important Good may ensue But that the Bill for disabling the Duke is highly justifiable both by the Laws of God and Constitution of our Government I think by my former Discourse I have left no room to doubt And the Considerer having scarce attempted to prove the contrary it 's preposterously done of him to give us his Use of Reproof before he has clear'd his Doctrine However I owe him many thanks for putting me in mind how Protestant Religion was first establish'd here in England it was indeed by the mighty Hand of God influencing the publick Councils of the Nation so that all imaginable care was taken both by Prince and People to rescue themselves from under the Romish Yoke and accordingly most excellent Laws were made against the usurpation and tyranny of that Man of Sin Our noble Ancestors in those days did not palliate a want of Zeal for their Religion with a lazy pretence of trusting in God's Providence but together with their Prayers to and Affiance in Heaven they joyned the Acts of their own Duty without which they very well knew they had no reason to expect a Blessing from it But now be pleased to take notice of the Candor of this worthy Considerer nothing less will serve his turn than the proving all the Voters for the Bill guilty of the highest Perjury For says he they have all sworn in the Oath of Allegiance to bear Faith and true Allegiance to His Majesty his Heirs and Successors but the Duke is Heir ergo c. A very hopeful Argument indeed But what if it should happen as it is neither impossible nor very improbable to imagin it that the next Heir to the Crown should commit Treason and conspire the Death of the present Possessor and for this Treason should not only be attainded by Parliament but executed too Pray Mr. Considerer would the Parliament in this case be guilty of Murder and Perjury I am confident you will not say it If therefore the next Heir become obnoxious to the Government in a lower degree why may not the same Authority proportion the Punishment and leave him his Life but debar him of the Succession This I say only to shew the absurdity of his Argument My Answer is this No man can bear Allegiance to two persons at the same time nor can Allegiance be ever due to a Subject and therefore my Obligation by the word Heir in the Oath does not commence till such Heir has a present Right to or actual Possession of the Crown which if he never attains either by reason of Death or any other Act that incapacitates and bars him then can my Obligation to him by the word Heir in the Oath never have a beginning But besides all this it cannot be denied but Mr. Considerer's Doctrine does bring great Inconveniences on Succession for the next Heir by his way of arguing is let loose from all the Restrictions and Penalties of Humane Laws and has no other tyes upon him not to snatch the Crown
lie under for want thereof 5. That you will use your utmost Endeavours to put a Brand upon those abominable Monsters which were the Pensioners in the late Long Parliament that thereby the Generations to come may be deterr'd from Attempting the like unheard of Villainy 6. That you will vigorously and carefully represent to the rest of your Fellow Members the present Condition of the Royal Navy as also of the Stores Castles and Forts which are under God the Bulwarks of England and that such effectual Ways and Means may be found out and prosecuted for the better Securing and Improving the Navy as also That none may be employed therein but such Persons who are of known Integrity and Loyalty both to the King and Nation and that all Debauch'd and Unskilful Persons now employ'd may be removed and Men fearing God loving Truth and hating Covetousness may be put into their Places that so our present Fears may be abated and thereby the dreadful growing Power of France may be timely check'd Gentlemen In the pursuance of these good Ends and such other as you shall think conducing to the Happiness of the King and Kingdom we shall stand by you with our Lives and Fortunes There were many more Addresses of like Nature and Purport made from divers other Parts of the Realm true Copies of which are not yet come to our hands But indeed the Re-election of so many of the former Members is it self a general Address and loudly speaks it The Voice of the People which we trust will be ratified by the Voice of Heaven No Popish Successor no French Slavery THE SPEECH Of the Honourable Henry Booth Esq Spoken in Chester March 2. 1680 1. at his being Elected one of the Knights of the Shire for that County to serve in the Parliament Summon'd to meet at Oxford the Twenty first of the said Month. Gentlemen and Countrymen I Must acknowledge that God hath been good unto me from my Cradle to this moment and of all his Providences to me there is none for which I have greater reason to bless his Holy Name than that he hath enabled me to govern my self and actions so as to gain your good opinion and kindness and I cannot but own I have your favour accompanied with all the obliging Circumstances imaginable for the first time that you were pleased to command my Service was in the Eighteen Years Parliament upon the death of Sir Foulk Lucy who had served you faithfully in that Parliament and though I was raw and unacquainted with those affairs and without any Tryal of my Integrity you ventured all you had in my hands at a time when England was in danger to be lost for want of a Vote For that Parliament chiefly consisted of such as sold their Country for private advantage and would have sold their King too if they could have made a better market I served you some time in that parliament at last it was Dissolved and a new one called and then as if you had approved of what I did you thought fit to imploy me again in that Service though you laid him aside who had been my Collegue that Parliament continued not long but was Dissolved and a new one called and then again a third time you thought me fit to represent you in Parliament though as you had done before you set him aside whom you had sent along with me and Chose a new one in his room but why you did me so Singular an honour as to continue me in your Service two Parliaments together and did not the like to the other Gentlemen it is not for me to give the reasons of it those are best known to your selves This is now the fourth time that I have waited on you on the like occasion and it is not a lessening of your former kindness that you have not changed my former Partner but rather a Confirmation of it because that the first time you have continued him is when he appears to be of my opinion and that which still adds weight to your kindness is that notwithstanding all this stir this bustle this unnecessary Charge and expence all the Stories by which I have been traduced you have not been prevailed upon to withdraw or diminish your favour Gentlemen I humbly beg your Patience to speak a few words in answer to what they say of me lest by Silence I may seem to cry Amen to their reports and Stories the first thing they reported was that I would not stand again but would decline your Service but withall they give no reason for it only it is so because they said it but what reason there is to contradict them now who said so the last time and how true it was you well remember So that this being the Second time that they have told you the self same falshoods I hope for the future that others will believe them as little as you have done It was reported that I was kill'd without giving any reasons or circumstances and that to this also they expected an implicit belief I wish they are not for an implicit faith in all things It was truly an excellent Artifice to threap you out of your Votes yet had I been kill'd had it been for your Service I should have thought my self well bestowed and rather meet than avoid the occasion of my Death They tell you also that I 〈◊〉 very obnoxious to the King but they do not tell you that I am restored to â—ny former Station of my Commission of the Peace without seeking or desiring it it cannot be imagined that his Majesty would be so Gracious to a man of whom he hath an ill opinion and it is a reflection to his Majesty to think he will do a thing of that Nature out of any regard whatsoever but when a thing carries its weight and reasons with it so that by this you may discern how all their reports are grounded being rather the effects of their desires than that the thing is truly so It seems the Gentlemen are much displeased that this County have frequently commanded those of my Family to serve them in Parliament they call it an entailing upon the Family but they are not pleased to vouchsafe the reasons why the Son may not be imployed as well as the Father in case he proves as fit for it but the truth is they would govern you and are angry that you will be your own chusers yet whether in this they design to serve you or their own ends I submit to your Judgment but as to my own particular they think the County highly that I have served you in several Parliaments Alas Gentlemen I know I am much inferiour in Parts and Learning to a great many but in saithfulness to your interest I will submit to no man but if you would observe it they would impose that upon you which they would not have done to themselves If they have a Servant who hath served them faithfully they
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 Earâ— 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 Council as one of the Commissioners of Your Majesties Treasury 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 inconstant 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 apart 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 Edinburgh and 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 for being 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 Edinburgh Nov. 8. 1681. Your Majesties most Humble most Faithful and most Obedient Subjects and Servants Sic Subscribitur Glencairne Winton Linlithgow Perth Roxburgh Ancram Airlie Levingstoun Jo. Edinburgen Ross Geo. Gordoun Ch. Maitland G. Mekenzie Ja. Foulis J. Drumond Novemb. 15. 1681. The Kings Answer to the Councils Letter C. R. 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 Edinburgh 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 Majesties allowance for prosecuting the Earl they before any return caused His Majesties Advocate to exhibit an Indictment against him upon the points of slandering and depraving as hath been already remarked so after having received His Majesties answer the design grows and they thought fit to order a new Indictment containing beside the former points the Crimes of Treason and Perjury which accordingly was exhibited and is here subjoyned the difference betwixt the two 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 Laws and Acts of Parliament of this Kingdom and particularly by the 21st 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 who so 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 publickly 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 misconstrue 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 Ecclesiastick or of the Government of the Church by Archbishops and Bishops as it is now settled by Law is under the pain of being declared incapable to exercise any Office Civil Ecclesiastick 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 innevation 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
hours without intermission it adjourned till the next day being Tuesday the 13th of December at Two of the Clock in the Afternoon And then the Earl being again brought to the Bar the following Interloquutour that is Judgment and Sentence of the Lords of Justitiary on the foregoing debate was read and pronounced in open Court Edinburgh December 12. 1681. The Interloquutour of the Lords of Justitiary THE Lords Justice General and Commissioners of the Justitiary having considered the Libel and Debate they sustain the defence proponed for the Earl of Argyle the Pannel in relation to the perjury Libelled viz. That he emitted this Explanation at or before his taking the Test first before his Royal Highness His Majesties High Commissioner and the Lords of His Majesties Privy Council relevant to elude that Article of the Libel The Lords sustain the Libel as being founded upon the Common Law and Explication Libelled and upon Act 130. Parl. 8. James VI. to infer the pain of Treason They likewise sustain the Libel as founded upon the 10. Act Parl. 10. James VI. to infer the pain of Death and likewise sustain that part of the Libel anent Leasing making and Leasing-telling to infer the particular pains mentioned in the several Acts Libelled And repel the whole other defences duplies and quadruplies and remits the Libel with the defences anent the Perjury to the knowledge of an Assize Thereafter the Assize that is the Jury being constitute and sworn viz. List of the Assizers Marquiss Montross E. Middleton E. Airlie E. Perth P. Cr. E. Dalhousie E. Roxburgh P. C. E. Dumfries E. Linlithgow P. Cr. Lord Lindoors Lord Sinclare Lord Bruntisland Laird of Gosfoord Laird of Claverhouse Laird of Balnamoon Laird of Park Gordon HIS Majesties Advocate adduced four Witnesses to prove the points of the Indictment remitted to the knowledge of the Assize viz. John Drummond of Lundie then Governour of the Castle of Edinburgh now Treasurer Deputy Sir William Paterson and Mr. Patrick Menzies Clerks of the Privy Council and H. Stevenson their under Clerk Who deponed That on the 4th of November the Earl did give in an unsubscribed Explanation of the Test which he refused to sign One of the Witnesses also adding That he heard him make the same Explanation the day before in Council and that it was there accepted Then His Majesties Advocate asked if the Earl would make use of his Exculpation for eliding the Perjury Libelled to wit That he had emitted the same Explanation before taking the Test in presence of his Royal Highness and the Council To which the Earl answered That seeing they had sustain'd the Libel as to the alledged Treason he would not trouble them about the Perjury especially the matter of Fact referred by the Interloquutour to his probation being of it self so clear and notour Fut the truth is the Interloquutour pronounced was so amazing that both the Earl and his Advocates were struck with deep silence for they plainly perceived that after such a Judgment in the case all further endeavours would be in vain it being now manifest that seeing the Earls innocence had so little availed as that his plain and honest words purely uttered for the necessary satisfaction of his own conscience and clearing of his Loyalty had been construed and detorted to infer Leasing-making Depraving and Treason the Tongues of men and Angels as some of his Advocates also said could not do any good and therefore neither did the Earl nor they object any thing either against the Assizers or Witnesses though liable to obvious and unanswerable exceptions Nor did the Earls Advocates say any thing to the Assize as the custom is and as in this case they might well have done to take off the force of the Evidence and to demonstrate that the Depositions instead of proving the Indictment did rather prove the Earls defences But as I have said they now plainly saw that all this had been unnecessary work and in effect were of opinion that after so black and dreadful a sence put upon what the Earl had spoke and done in such fair and favourable circumstances there could be nothing said before such a Court which might not expose themselves to the like hazard and more easily be made liable to the same mis-construction But upon this silence the Advocate taking Instruments protests whether in form only or from a real fear let others judge for an Assize of Error in case the Assizers should Assoil or acquit Whereupon the Assize removing was inclosed and after some time returned their Verdict which was read in open Court of this tenour The Verdict of the Assize THE Assize having Elected and Chosen the Marquess of Montrose to be their Chancellor they all in one voice find the Earl of Argyle guilty and culpable of the Crimes of Treason Leasing-making and Leasing-telling And find by plurality of Votes the said Earl innocent and not guilty of Perjury And then the Court again adjourned And the Privy-Council wrote the following Letter to His Majesty Halyrud-House December 14. 1681. The Councils Letter to the King desiring leave to pronounce Sentence against the Earl of Argyle May it please Your Sacred Majesty IN Obedience to Your Majesty's Letter dated the 15th of November last we ordered Your Majesty's Advocate to insist in that Process raised at your Instance against the Earl of Argyle And having allowed him a long time for his appearance and any Advocates he pleased to employ and Letters of Exculpation for his Defence He after full Debate and clear Probation was found guilty of Treason Leasing-making betwixt Your Majesty Your Parliament and Your People and the reproaching of Your Laws and Acts of Parliament But because of Your Majesty's Letter ordaining us to send Your Majesty a particular account of what he should be found guilty of before the pronouncing of any Sentence against him we thought it our duty to send Your Majesty this account of our and Your Justices proceedings therein And to signifie to Your Majesty with all Submission That it is usual and most fit for Your Majesty's Service and the Advantage of the Crown that a Sentence be pronounced upon the Verdict of the Assize without which the Process will be still imperfect After which Your Majesty may as you in Your Royal Prudenee and Clemency shall think fit Ordain all farther execution to be sisted during Your Majesty's pleasure Which shall be dutifully obeyed by Your MAJESTY's Most Humble Most Faithful and most Obedient Subjects and Servants Sic Subscribitur Alex. St. And. Athol Douglas Montrose Glencairn Wintoun Linlithgow Perth Roxburgh Dumfries Strathmore Airlie Ancram Livingstoun Jo. Edinburgens Elphingstoun Dalziell Geo. Gordon Ch. Maitland Geo. Mckenzie G. Mckenzie Ramsay J. Drummond THE Earl as well as the Lords of Privy Council waited some days for the Answer of this Letter But the Earl making his escape a day or two before it came I shall take occasion to entertain you in the mean time with an account of
the Earl's Restitution was no less than He and his Family might well expect of His Majesty's Goodness and Justice It is true The Earl was again accused and condemned which may appear indeed strange to such as know not all particulars upon the same old Acts of Leasing-making and with as little ground if possible as now and was Pardoned by His Majesty for which he hath often and doth always acknowledg that he owes to His Majesty both his Life and Fortune But upon this occasion and being baited as he is he hopes His Majesty will not take it ill that he say That His Majesty's Mercy was in this case determined by Justice And for proof that His Majesty did then know him to be innocent Did not His Majesty then say It was impossible to take a Man's Life upon so small an account Though nevertheless it had been done if His Majesty had not interposed and pardoned him Did not the Chancellor Clarendon who was Patron to the most considerable of the Earl's pursuers hearing of his Condemnation Bless God he lived not in a Countrey where there were such Laws He should have said such Judges And I believe many more will say the same now Did it not plainly appear at that time that his principal pursuers were very bitter malicious and unjust to him For the Earl had not only served His Majesty in that troublesome and hazardous appearance in the Hills but he had been particularly useful to Earl Middletoun then His Majesty's Lieutenant General and had stood by him when these deserted him whom notwithstanding he took afterwards by the hand when he was His Majesty's Commissioner in the year 1661. and then designed new Interests and new Alliances whereof some did hold and some never held And then indeed it was that he and others thought it proper for them to destroy the Family of Argyle to make their own Fortunes But it pleased God and His Majesty to dispose otherwise Then it was that the Earl was so hotly pursued for his Life having at that time no Fortune all being in His Majesty's hands Then was the accusation of Treason likewise urged by the same persons and must have carried but it was not found necessary Leasing-making being sufficient to take his Life and as it falls out when any Game is started and the Hounds in chase all the little Curs run alongs So the Earl wanted not then many pursuers that are now scarce to be heard of And further some of the parties themselves confessed the particulars to the Earl afterwards who yet now return to act their former parts and that they had then laid down a resolution to intrap him per fas aut nefas but notwithstanding all this ill humour and violence all the ground they could get for a quarrel in two years time was one single Letter among many they intercepted the occasion and import whereof was as follows About a Twelvemonth after the death of the late Marquess of Argyle The Earl his Son being by the loss of his Estate and burden of his Debts brought into straits a Friend from Edenburgh wrote to him then at London to do what he could for himself at Court and the sooner the better for he needed neither expect Favour nor Justice from some in Scotland and if matters were delayed his Father 's whole Estate would be begg'd away in parcels His Friend likewise complained that the Earl did not write to inform his Friends in Scotland and on this he insisted several post-days which at last drew an answer from the Earl that he had been to wait upon His Majesty and had found him both just and kind to him and doubted not the effects of his Royal favour that he was sensible of his loss by delay yet must proceed discreetly and not press to give His Majesty trouble but must take His Majesty's method and wait his time That he judged much of what his Friend told him was true but he must have patience It was his misfortune that some took pains to make His Majesty believe that the Parliament was his Enemy and the Parliament to believe the King was his Enemy and by such informations he was like to be a sufferer but he hoped in God all should be well This blast must blow out and will blow over The King will see their tricks And upon this Letter specially those last words the Earl was accused of Leasing-making betwixt King and Parliament and that he expected changes and so had a great deal of the same stuff laid to his charge as now you have heard And if the now Register will produce the Eal's principal Letter and the Paper the Earl gave in to the Parliament these two would clear all the Case then and now as you may see Mutatis Mutandis being much the same and some of the same Tools used But to go on The Earl's words in that Letter being clear and plain viz. That he complained of others that reported Lies to the King and Parliament but did himself report none to either He acknowledged the Letter which could never have been proven to be his and as soon as he heard that it was intercepted did render himself to His Majesty before he was called for But which very much troubled him had not access Yet His Majesty was so gracious that instead of sending him Prisoner to Scotland with a Guard as was much pressed he allowed him to go down on a Verbal Bail And His Majesty was pleased to say That he saw nothing in the Earl's Letter against His Majesty or the Parliament but believed the Earl did design to reflect on the Earl of Middleton The Earl came to Edinburgh a fourthnight before the day appointed by His Majesty and thought to have had the liberty of the City till that day should come but was sent to the Castle the next day after his arrival Upon which he advertised His Majesty of his condition who would hardly believe they would take his Life till it was told plainly it was designed and if he died it lay at His Majesty's door upon which His Majesty was graciously pleased to send immediately an Order to the Earl of Middleton not to proceed to Execution against him Yet the Sentence of Death was pronounced and the Day of Execution remitted by the Parliament to the Earl of Middleton Which he accepted of albeit he had no particular instruction for it from His Majesty which before a year went about Earl Middleton found could not be justified by him and some of the Earl's chief accusers were declared by His Majesty to be themselves Leasing-makers And then the Earl by His Majesty's favour and goodness was restored to a part of his Predecessors Estate and Titles which he took as thankfully as if a new Estate and new and greater Honours had been conferred upon him And though His Majesty was pleased at the granting of these Titles to say He could help them when he pleased yet His Majesty knows
Years after that he called no Parliament notwithstanding the Law for Triennial Parliaments and the manner of his Death and the Papers printed after his Death in his Name having sufficiently shewed that he was equally sincere in both those Assurances that he gave as well in that relating to Religion as in that other relating to frequent Parliaments yet upon his Death a new set of Addresses appeared in which all that Flattery couldinvent was brought forth in the Commendations of a Prince to whose Memory the greatest kindness can be done is to forget him and because his present Majesty upon his coming to the Throne gave some very general Promise of maintaining the Church of England this was magnified in so extravagant a strain as if it had been a Security greater than any that the Law could give tho' by the regard that the King has both to it and to the Laws it appears that he is resolved to maintain both equally since then the Nation has already made it self sufficiently ridiculous both to the present and to all succeeding Ages it is time that at last men should grow weary and become ashamed of their Folly XII The Nonconformists are now invited to set an Example to the rest and they who have valued themselves hitherto upon their Opposition to Popery and that have quarrelled with the Church of England for some small Approaches to it in a few Ceremonies are now solicited to rejoyce because the Laws that secure us against it are all plucked up since they enjoy at present and during pleasure leave to meet together It is natural for all men to love to be set at ease especially in the matter of their Consciences but it is visible that those who allow them this favour do it with no other design but that under a pretence of a General Toleration they may Introduce a Religion which must persecute all equally It is likewise apparent how much they are hated and how much they have been persecuted by the Instigation of those who now Court them and who have now no game that is more promising than the engaging them and the Church of England into new Quarrels and as for the Promises now made to them it cannot be supposed that they will be more lasting than those that were made some time ago to the Church of England who had both a better Title in Law and greater Merit upon the Crown to assure them that they should be well used than these can pretend to The Nation has scarce forgiven some of the Church of England the Persecution into which they have suffered themselves to be cosened tho' now that they see Popery barefaced the Stand that they have made and the vigorous Opposition that they have given to it is that which makes all men willing to forget what is past and raises again the Glory of a Church that was not a little stained by the Indiscretion and Weakness of those that were too apt to believe and hope and so suffered themselves to be made a Property to those who would make them a Sacrifice The Sufferings of the Nonconformists and the Fury that the Popish party expressed against them had recommended them so much to the Compassions of the Nation and had given them so just a pretension to favour in a better time that it will look like a Curse of God upon them if a few men whom the Court has gained to betray them can have such an ill Influence upon them as to make them throw away all that Merit and those Compassions which their Sufferings have procured them and to go and court those who are only seemingly kind to them that they may destroy both them and us They must remember that as the Church of England is the only Establishment that our Religion has by Law so it is the main body of the Nation and all the Sects are but small and stragling parties and if the Legal Settlement of the Church is dissolved and that body is once broken these lesser bodies will be all at Mercy and it is an easie thing to define what the Mercies of those of the Church of Rome are XIII But tho' it must be confessed that the Nonconformists are still under some Temptations to receive every thing that gives them present ease with a little too much kindness since they lie exposed to many severe Laws for which they have of late felt the weight very heavily and as they are men and some of them as ill Natured men as other people so it is no wonder if upon the first surprises of the Declaration they are a little delighted to see the Church of England after all its Services and Submissions to the Court so much mortified by it so that taking all together it will not be strange if they commit some Follies upon this occasion Yet on the other hand it passes all imagination to see some of the Church of England especially those whose Natures we know are so particularly sharpned in the point of Persecution chiefly when it is levelled against the Dissenters rejoice at this Declaration and make Addresses upon it It it hard to think that they have attained to so high a pitch of Christian Charity as to thank those who do now Despitefully use them and that as an earnest that within a little while they will Persecute them This will be an Original and a Master-piece in Flattery which must needs draw the last degrees of Contempt on such as are capable of so abject and sordid a Compliance and that not only from all the true Members of the Church of England but likewise from those of the Church Rome it self for every man is apt to esteem an Enemy that is brave even in his Misfortunes as much as he despises those whose minds sink with their Condition for what is it that these men would Address the King Is it because he breaks those Laws that are made in their Favour and for their Protection and is now striking at the Root of all Legal Settlement that they have for their Religion Or is it because that at the same time that the King professes a Religion that condemns his Supremacy yet he is not contented with the Exercise of it as it is warranted by Law but carries it so far as to erect a Court contrary to the express words of a Law so lately made That Court takes care to maintain a due proportion between their Constitution and all their Procedings that so all may be of a piece and all equally contrary to Law They have suspended one Bishop only because he would not do that which was not in his power to do for since there is no Extrajudiciary Authority in England a Bishop can no more proceed to the Sentence of Suspension against a Clergy-man without a Tryal and the hearing of Parties than a Judge can give a Sentence in his Chamber without an Indictment a Tryal or a Jury and because one of the greatest bodies of
impoverished and ruined by him at his pleasure especially when those whom they give up to be thus treated and entertained are at agreement with them in all the Essentials of Religion equally zealous as themselves for the Liberties of their Country and who for Sobriety in their Lives Industry in their Callings and Usefulness in the Common-Wealth are inferior to none of their Fellow-Subjects So it is obvious to any who give themselves leave to think that the King would long ere this have been stated in the Absoluteness that is aspired after and both Church and State reduced to lie at the discretion of the Monarch provided the Nonconformists for procuring his Favour in non-execution of the Laws had suffered themselves to be prevailed upon and drawn over to stand by and assist him in his Popish and Despotical Designs But that honest people though hated and maligned by their Brethren rather than be found aiding the King in his Usurpations over the Kingdom have chosen to undergoe the utmost Calamities they could be made subject unto either through the Execution of those Laws which had been made against them or through our Princes and their Ministers wrecking their Malice upon them in Arbitrary and Illegal Methods But what the Royal Brothers could not work the afflicted and persecuted Side unto they found the Art to engage the other Side in though not onely excepted from all Obnoxiousness to those Laws but strengthened and supported by them For as soon as the Court begun to despair of prevailing upon Dissenters to become their Tools and Instruments of enslaving the Nation and of exalting the Monarchy to a Despotical Absoluteness they applied to the Bigots of the Church of England whom by gratifying with a vigorous Execution of the Laws upon Dissenters they brought to abett applaud and justifie them in all those Counsels and Ways which have reduced us into that miserable condition wherein we not long since were The Clergy being advanced to Grandure and Opulency things which many of them are fonder of and lother to foregoe than Religion and the Rights of the Nation the Court made it their business to possess them with a Belief that unless the Fanaticks were suppressed and ruined they could not enjoy with Security their Dignities and Wealth Whereupon not onely the lesser Levites but the Superior Clergy having their Lesson and Cue given them from White-hall and St. James's fell upon pursuing the Nonconformists with Ecclesiastical Punishments and upon exciting and animating the Civil Officers against them And under pretence of preserving and defending the Church they gave themselves over to an implicit serving of the Court and became not onely Advocates but Instruments for the robbing of Corporations of their Charters for imposing Sheriffs upon the City of London who had not been legally elected and of fining and punishing Men arbitrarily for no Crime save the having asserted their own and the Nations Rights in modest and lawful ways Posterity will hardly believe that so many of the Prelatical Clergy and so great a number of Members of the Church of England should from an Enmity unto and pretended Jealousie of the Dissenters have become Tools under the late King for justifying the Dissolution of so many Parliaments the Invasion made upon their Priviledges the ridiculing and stifling of the Popish Plot the shamming of forged Conspiracies upon Protestants the condemning several to Death for High-Treason who could be rendred guilty by the Transgression of no known Law and finally for advancing a Gentleman to the Throne who had been engaged in a Conjuration against Religion and the Legal Government and whom three several Parliaments would have therefore Excluded from the Right of Succession And being seduced into an espousal of the Interests of the Court against Religion Parliaments and the Nation it is doleful to consider what Doctrines both from Pulpit and Press were thereupon brought forth and divulged Such as Monarchy's being a Government by Divine Right That it is in the Prince's Power to Rule as he pleaseth That it is a Grace and Condescention in the King to give an Account of what he does That for Parliaments to direct or regulate the Succession borders upon Treason and is an Offence against the Law of Nature And that the onely thing left to Subjects in case the King will Tyrannize over their Consciences Persons and Estates is tamely to suffer and as some of them did absurdly express it to exercise Passive Obedience So that by corrupting the Minds and Consciences of men with those pestilent and slavish Notions they betrayed the Nation both to the Mischiefs which have alrerdy overtaken us and to what further we were threatned with Nor did these Doctrines tend meerly to the fettering and enfeebling the Spirits of Men but they were a Temptation to the Royal Brothers to put in Execution what they had been so long contriving and travelling with and were a kind of reprimanding them for being ignorant of their own Right and Power and for not exerting it with that Vigour and Expedition which they might I do acknowledge that there were many both of the Sacred Order and of the Laick Communion of the Church of England who were far from being infected with those brutish Sentiments and Opinions and who were as zealous as any for having the Monarchy kept within its ancient limits Parliaments maintained in their wonted Reverence and Authority the Subjects preserved in the enjoyment of their immemorial Priviledges and who were far from sacrificing our Religion and Laws to Popery and Arbitrariness and from lulling us into a Tameness and Lethargy in case the Court should attempt the abolishing the established Doctrine and Worship and the subverting and changing the Civil Government But alass besides their being immediately branded with the Name of Trimmer and conformable Fanaticks and registred in the Kalender with those that stood precluded the King's Favour and merited his Animadversion their Modesty was soon drowned and silenced in the loud Noise of their clamorous Brethren and their retiredness from Conversation while the others frequented all places of Society and publick Concourse deprived the Nation of the benefit of their Example and the happiness of their Instructions Nor have I mentioned the Extravagancies of any of the Ecclesiasticks and Members of the Church of England with a design either of reproaching and upbraiding them or of provoking and exasperating the Dissenters to Resentments but onely to shew how fatal our Divisions have been unto us what excesses they have occasioned our being hurried and transported into and what mischievous Improvement our Enemies have made of them to the supplanting and almost subverting of all that is valuable unto us as we are English-men Christians and Protestants And as our Animosities through our Divisions gave the Courrt an advantage of suborning that Party which they pretended to befriend and uphold into a Ministration to all their Counsels and Projections against our Religion and Laws so by reason of the
thro a sentence inflicted upon them by no legal Court of Judicature but by 5 or 6 mercenary persons supported by a tyrannous and arbitrary Commission his Majesty in his Proclamation for Toleration in Scotland bearing date Febr. 12. doth among many other Laws cass disable and dispense with the Law enjoining the Scots Test tho it was not only enacted by himself while he represented his Brother as his high Commissioner but hath been confirmed by him in Parliament since he came to the Crown Surely it is as easie to depart from a promise made in a Declaration as 't is to absolve and discharge himself from the obligation of a Law which he first concurred to the enacting of and gave the creating Fiat unto as the late King's Commissioner and hath since ratified in Parliament after he was come to the Throne As there is no more infidelity dishonor and injustice so there is less of absolute power and illegality in doing the one than the other Nor is it possible for a rational man to place a confidence in his Majesty's Royal word for the protection of our Religion and the Ch. of England mens enjoying their possessions seeing he hath not only departed from his Promise made to the Council immediately after his Brother's death but hath violated his Faith given to the Parliament of England at their first Session which we might have thought would have been the more sacred and binding by reason of the Grandeur State and Quality of the Assembly to which it was pledged If we consider how much Protestants suffered what number of them was burnt at the Stake as well as Murdered in Goals beside the vast Multitudes who to avoid the Rage and Power of their Enemies were forced to abandon their Country and seek for shelter in foreign Parts and what Endeavors of all kinds were used for the Extirpation of our Religion under Q. Mary we may gather and learn from thence what is to be dreaded from James II. who is the next Popish Prince to her that since the Reformation hath sat on the Throne of England For though there be many things that administer grounds of Hope that the Papists will not find it so easie a matter to bring us in shoals to the stake nor of that quick and easie dispatch to suppress the Protestant Religion and set up Popery at this time as they found it then yet every thing that occurs to our Thoughts or that can affect our Understandings serves not only to perswade us into a belief that they will set upon and endeavor it but to work us up to an Assurance that his Majesty would take it for a diminution of his Glory as well as reflection upon his Zeal for the Church of Rome not to attempt what a Woman had both the Courage to undertake and the Fortune to go through with And there is withal a Concurrence of so many things both abroad and at home at this Juncture which if laid in the ballance with the Motives to our hope of the Papists miscarrying may justly raise our Fears of their prospering to a very sad and uncomfortable height Whosoever shall compare these two Princes together will find that there was less danger to be apprehended from Mary and that not only upon the score of her Sex but by reason of a certain gentleness and goodness of Nature which all Historians of Judgment and Credit ascribe unto her than is to be expected from the present King in whom a Sourness of Temper Fierceness of Disposition and Pride joined with a peevishness of humor not to bear the having his will disputed or controlled are the principal Ingredients into his Constitution and which are all strangely heightned and enflamed by contracted distempers of Body and thro' furious Principles of Mind which he hath imbib'd from the Jesuits who of all Men carry the Obligations arising from the Doctrines of the Popish Religion to the most outragious and inhuman Excesses Nor can I forbear to add that whereas the Cruelty which that Princess was hurried into even to the making her Cities common Shambles and her Streets Theatres of Murder for Innocent Persons for which she became hated while she lived and her Memory is rendred infamous to all Generations that come after was wholly and entirely owing to her Religion which not only proclaims it lawful but a necessary duty of Christianity and an Act meriting a peculiar Crown of Glory in Heaven to destroy Hereticks 't is to be feared there will be found in the present King a spice of revenge against us as we are Englishmen as well as a measure heapt up and running over of furious Papal Zeal against us as we are Protestants Beside the Wrath he bears unto us for our departure from the Communion of the Romish Church and our Rebellion against the Triple Crown the War wherein many of the Kingdom were engag'd against his Father and the issue of it in the Execution of that Monarch is what he hath been heard to say That he hopes to revenge upon the Nation And all that the City of London underwent thro' that dreadful Conflagration 1666. of which he was the great Author and Promoter as well as the Rescuer and Protector of the Varlets that were apprehended in their spreading and carrying on the fire is but earnest in respect of what is design'd farther to be paid them for the having been the great Supporters of that War both by continu'd Recruits of Men and repeated Supplies of Treasure Tho' it was Qu. Marys misfortune and proved the misery of Protestants that she was under the Influence of Popish Bishops and of Religious of several Orders by whom she was whetted on and provoked to those Barbarities wherewith her Reign is stain'd and reproach'd yet she had no Jesuits about her to whom all the other Orders are but punies in the arts of wheedling and frighting Princes forward to Cruelty The Society being then but in its Infancy and the distance between its Institution which was in 1540. and the time of her coming to the Crown which was A. 1553. not affording season enough for their spreading so far abroad as they have since done nor for the perfecting themselves to that degree in the methods of Butchery and in the Topicks whereby to delude Monarchs to serve and promote their sanguinary Passions as they have in process of time attain'd unto Nor have the Protestants now any security for their Religion whereby it or themselves may be preserv'd from the attempts of his Majesty for the Extirpation of both but what our Predecessors in the same Faith had in the like kind tho' not to the same measure and degree when Qu. Mary arrived at the Throne For tho' our Religion was of late fenced about with more Laws and we had Royal Promises oftner repeated for the having it preserv'd and our selves protected in the Profession of it yet it is certain that it had not only receiv'd a legal Establishment under K.
and then dissolved and that several Acts passed this is the plain Judgment of another Parliament 1. Because it says they were continued which shews they had a real being capable of being continued for a Confirmation of a void Grant has no effect and Confirmation shews a Grant only voidable so the continuance there shewed it at most but voidable and when the King came and confirm'd it all was good 2. The dissolving it then shews they had a being for as ex nihilo nihil fit so super nihil nil operatur as out of nothing nothing can be made so upon nothing nothing can operate Again the King Lords and Commons make the great Corporation or Body of the Kingdom and the Commons are legally taken for the Free-holders Inst 4. p. 2. Now the Lords and Commons having Proclaimed the King the defect of this great Corporation is cured and all the Essential parts of this great Body Politique united and made compleat as plainly as when the Mayor of a Corporation dies and another is chosen the Corporation is again perfect and to say that which perfects the great Body Politique should in the same instant destroy it I mean the Parliament is to make contradictions true simul semel the perfection and destruction of this great Body at one instant and by the same Act. Then if necessity of Affairs was a forcible Argument in 1660 a time of great peace not only in England but throughout Europe and almost in all the World certainly 't is of a greater force now when England is scarce delivered from Popery and Slavery when Ireland has a mighty Army of Papists and that Kingdom in hazard of final destruction if not speedily prevented and when France has destroyed most of the Protestants there and threatens the ruine of the Low-Countries from whence God has sent the wonderful Assistance of our Gracious and therefore most Glorious King and England cannot promise safety from that Foreign Power when forty days delay which is the least can be for a new Parliament and considering we can never hope to have one more freely chosen because first it was so free from Court-influence or likelihood of all design that the Letters of Summons issued by him whom the great God in infinite Mercy raised to save us to the hazard of his Life and this done to protect the Protestant Religion and at a time when the people were all concerned for one Common interest of Religion and Liberty it would be vain when we have the best King and Queen the World affords a full house of Lords the most solemnly chosen Commons that ever were in the remembrance of any Man Living to spend Money and lose time I had almost said to despise Providence and take great pains to destroy our selves If any object Acts of Parliament mentioning Writs and Summons c. I answer the Prededent in 1660 is after all those Acts. In private cases as much as has been done in point of necessity a Bishop Provincial dies and sede vacant a Clerk is presented to a Benefice the Presentation to the Dean and Chapter is good in this case of Necessity and if in a Vacancy by the Death of a Bishop a Presentation shall be good to the Dean and Chapter rather than a prejudice should happen by the Church lying void Surely a fortiori Vacancy of the Throne may be supplied without the formality of a Writ and the great Convention turn'd to a Real Parliament A Summons in all points is of the same real force as a Writ for a Summons and a Writ differ no more than in name the thing is the same in all Substantial parts the Writ is Recorded in Chancery so are His Highnesses Letters the proper Officer Endorses the Return so he does here for the Coroner in defect of the Sheriff is the proper Officer the People Choose by Virtue of the Letters c. quae re concordant parum differunt they agree in Reality and then what difference is there between the one and the other Object A Writ must be in Actions at Common Law else all Pleading after will not make it good but Judgment given may be Reversed by a Writ of Error Answ The case differs first because Actions between party and party are Adversary Actions but Summons to Parliament are not so but are Mediums only to have â—n Election 2. In Actions at Law the Defendant may plead to the Writ but there is no plea to a Writ for electing Members to serve in Parliament and for this I have Littleton's Argument there never was such a Plea therefore none lies Object That they have not taken the Test Answ They may take the Test yet and then all which they do will be good for the Test being the distinguishing Mark of a Protestant from a Papist when that is taken the end of the Law is performed Object That the Oaths of Allegiance and Supremacy ought to be taken and that the new ones are not legal Answ The Convention being the Supream Power have abolish'd the old Oaths and have made new ones and as to the making new Oaths the like was done in Alfreds time when they chose him King vide Mirror of Justice Chap. 1. for the Heptarchy being turn'd to a Monarchy the precedent Oaths of the seven Kings could not be the same King Alfred swore Many Precedents may be cited where Laws have been made in Parliament without the King 's Writ to summon them which for brevity's sake I forbear to mention For a farewel the Objections quarrel at our Happiness fight against our Safety and aim at that which may indanger Destruction The Present Convention a Parliament I. THat the formality of the Kings Writ of Summons is not so essential to an English Parliament but that the Peers of the Realm and the Commons by their Representatives duly Elected may legally act as the great Council and representative Body of the Nation though not summoned by the King especially when the circumstances of the time are such that such Summons cannot be had will I hope appear by these following Observations First The Saxon Government was transplanted hither out of Germany where the meeting of the Saxons in such Assemblies was at certain fixed times viz. at the New and Full Moon But after their Transmigration hither Religion changing other things changed with it and the times for their publick Assemblies in conformity to the great Solemnities celebrated by Christians came to be changed to the Feasts of Easter Pentecost and the Nativity The lower we come down in Story the seldomer we find these General Assemblies to have been held and sometimes even very anciently when upon extraordinary occasions they met out of course a Precept an Edict or Sanction is mentioned to have Issued from the King But the Times and the very place of their ordinary Meeting having been certain and determined in the very first and eldest times that we meet with any mention of