reserving the squaring all by his own Loyalty as he did in the beginning declare That he took it in his own sense By which general sense neither is the Government secure of any thing it does enjoin nor could he be punished if he transgressed Nor can it be doubted but Perjury may be inferred by any equivocal or evading sense inter Iurandum as well as by breaking an Oath afterwards Which is very clear from Sandersone Pag. 138. The words whereof are alterum Perjurii genus estinter Iurandum detorquere verba and which is farther clear by the 28. Page but above all from the Principles of Reason and the necessity of Commerceand Government For if men may adhibit such glosses even whilst they swear as may make the Oath useless what way will either Government or Commerce be maintained And he deceives as much that deceives in swearing salvis verbis as he who after he has sworn does break the Oath nay and more too because the breaking may come rom forgetfulness or other accidents but the evading by general Clauses which bind no man does from the first Instance originally make all Oaths useless and dangerous and that this interpretation eludes the Oath absolutely is very clear from what hath been formerly debated For It may be argued That the Earl broke the Oath in so far as the first day he swears the Oath which bears to be without any evasion and must be so notwithstanding of whatever he could say And the next day he gives in this evasion which is a down-right violation of that Oath and inconsistent with it Nor was this Oath forced but voluntarily emitted to keep his own Places And it was the greater Crime that it was done in the Council because that was to make it the more publik and consequently the more to misrepresent the Government After this debate which according to the custom of the Court was verbatim dictat by the Advocats of either side and written by the Clerk and so took up much time and the Court having sat at least twelve hours without intermission it adjourned till the nixt day being Tuesday the 13. of December at two of the clock in the afternoon And then the Earl being again brought to the Barr the following Interloquutour that is judgment and sentence of the Lords of Iustitiary on the forgoing debate was read and pronounced in open Court Edenburgh December 12. 1681. The Interloquutour of the Lords of Iustitiarie 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 knowledg of an Assize Thereafter the Assize that is the Jury being constitut and sworn viz. List of the Assizers Marquis Montross E. Middleton E. Airlie E. Perth P. C r E. Dalhousie E. Roxburgh P. C r E Dumfries E. Linlithgow P. C r 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. Iohn Drummond of Lundie then Governour of the Castle of Edenburgh now Treasurer-depute Sir William Paterson and Mr Patrik Menzies Clerks of the privy Council and H. Stevenson their Under-clerk Who deponed That on the 4. 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 selfe so clear and notour But the truth is the Interloquutour pronounced was so amazing that both the Earl and his Advocats were struk 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 Earis innocnce 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 Advocats 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 Earl's Advocats 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 demonstrat that the depositions instead of proving the indictment did rather prove the Earle's 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 sense 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 misconstruction But upon this silence the Advocat taking instruments Protests whether in forme 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 vvas inclosed And after sometime returned their Verdict vvhich vvas read in open Court of this tenour The Verdict of the Assize THE Assize having elected and chosen the Marques of Montrole 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 Earlinnocent and not guilty of Perjury And then
THE CASE OF THE EARL of ARGYLE OR An exact and full Account of his Trial Escape and Sentence Wherein are insert the Act of Parliament injoining the Test the Confession of Faith the old Act of the King's Oath to be given at His Coronation With several other old Acts made for establishing the Protestant Religion As also several Explications made of the Test by the Conformed Clergy With the Secret Councils Explanation thereof Together with several Papers of Objections against the Test all framed and emitted by Conformists With the Bishop of Edinburgh's Vindication of the Test in answer thereto As likewise a Relation of several Matters of fact for better clearing of the said Case Whereunto is added An APPENDIX in answer to a late Pamphlet called A Vindication of His Majestie 's Government and Judicatories in Scotland Especially with Relation to the Earl of Argyle's Process In so far as concerns the Earl's Trial Printed in the Year M. D. C. LXXXIII THE PUBLISHER TO THE READER HAving received the ensuing Narrative of the Case and Trial of the Earl of Argyle under the Caution you may find in the close of it not to hasten the publication but rather to vvait for a more convenient season It 's like I had continued to comply as I have done hitherto vvith the Earl's inclination if not excited to the contrary by a Paper called A Vindication of His Majestie 's Government and Judicatories in Scotland Especially with relation to the late Earl of Argyle's Process printed at Edinburgh and reprinted at London vvith the appearance of a publick allovvance For albeit all wise and sober men not only in Scotland but also in the vvorld vvho have heard this affair do at this day sufficiently understand its rise procedure issue and tendency vvith all the just consideration that either oppressed innocence abused justice or impotent and ill contrived malice do deserve Yet seeing these concerned have had the confidence to subject their Res Judicata to an unexpected review and vvithall the equitie to leave their advantages and sist themselves on even ground vvith an open defiance to all contradictors and fair submission to the common sense and reason of mankind I thought I could not be vvanting to such an happy opportunity vvithout disappointing so generous an offer deserting my good Friend the Author of the Mist and failing of the second and principal part of my Trust And therefore resolved vvithout further delay to give the follovving sheets their long desired licence Purposing to subjoyn as an Appendix any further animadversions that the above-mentioned Pamphlet may seem to deserve ERRATA PAg. 2. L. 48. Acts r. Oaths p. 6. l. 39. Tursday r. Thursday p. 8. I. 9. peased r. pleased l. 20. And r. But. p. 40. l. 24. prositive r. positive p. 41. l. 38. 1667. r. 1567. p. 44. l. 61. ther r the. p. 64. l. 6. King r. Kingdom p. 66. l. 48 the Earl's hand r. the Earl of Glencairn first Chancellour after His Majesties Return his hand p. 76. l. 2. is not r. as not p. 82. l. 34. yet r. et p. 86. l. 3. Governour r. Deputy Governour p. 94. l. 3. I have considered r. I have not considered Edinburgh 30. May 1682. SIR The case of the late Earl of Argyl which even before the Process led against him you was earnest to know was at first I thought so plain that I needed not and grew afterwards so exceedingly mysterious that I could not for some time give you so perfect ane accompt of it as I wished But this time being still no less proper the exactness of mynarrative will I hope excuse all delays The design against him being now so clear and the grounds founded on so slender that to satisfie all unbyassed Persons of his integrity there needs no more but barely to represent matter of fact I should think shame to spend so many words either on arguments or relation were it not lest to strangers some mystery might still be suspected to remain concealed And therefore to make plain what they can hardly believe though we clearly see it At His Royal Highness arrival in Scotland the Earl was one of the first to wait upon him and until the meeting of our last Parliament the world believed the Earl was as much in His Highness favour as any intrusted in His Majestie 's affairs in this Kingdom When it was resolved and His Majestie moved to call the Parliament the Earl was in the countrey and at the opening of it he appeared as forward as any in His Majestie 's and His Highness service but it had not fat many dayes when a change was noticed in His Highness and the Earl observed to decline in His Highness favour In the beginning of the Parliament the Earl was appointed one of the Lords of the Articles to prepare matters for the Parliament and named by His Highness to be one of a Committee of the Articles for Religion which by the custom of all Scots Parliaments and His Majestie 's instructions to his Commissioner at this time was the first thing treated of In this Committee there was ane Act prepared for securing the Protestant Religion which Act did ratify the Act approving the Confession of Faith and also the Act containing the Coronation Oath appointed by several standing Acts of Parliament to be taken by all our Kings Regents before their entrie to the exercise of the Government This Act was drawn somewhat less binding upon the Successor as to his own profession But full as strictly tying him to maintain the Protestant Religion in the publick profession thereof and to put the Laws concerning it in execution and also appointing a further Test beside the former to exclude Papists from places of publick trust and because the fines of such as should act without taking the Test appeared no better then discharged if falling in the hands of a Popish Successor and some accounting any limitation worse then ane exclusion and all being conâ—ent to put no limitation on the Crown so it might consist with the safety and security of the Protestant Religion it was ordained that all such fines and forfaultures should appertain the one half to the informers and the other half should be bestowed on pious uses according to certain Rules expressed in the Act. But this Act being no wise pleasing to some it was laid aside and the Committee discharged any more to meet and instead of this Act there was brought in to the Parliament at the same time with the Act of succession a short Act ratifying all former Acts made for the securitie of the Protestant Religion which is the first of the printed Acts of this Parliament At the passing of this Act the Earl proposed that these words And all Acts against Poperie might be added which was opposed by the Advocat and some of the Clergie as unnecessary But the motion being seconded by Sir George Lockhart and the then President of the Session now
or Government or to deprave his Laws and Acts of Parliament or misconstrue his Proceedings whereby any misliking may be moved betwixt his Highness and his Nobility and loving Subjects in time coming under the pain of death certifying them that do in the contrary they shall be reputed as seditious and wicked instruments enemies to his Highness and the Commonwealth of this Realm and the said pain of death shall be executed upon them with all rigour in example of others Act for preservation of His Majesties Person Authority and Government May 16â—2 And further it is by His Majesty and Estates of Parliament declared statuted and enacted That if any person or persons shall by writing printing praying preaching libelling remonstrating or by any malicious or advised speaking express publish or declare any words or sentences to stir up the people to the hatred or dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastical or of the Government of the Church by Archbishops and Bishops as it is now setled by Law That every such person or persons so offending and being Legally Convicted thereof are hereby declared incapable to enjoy or exercise any place or employment Civil Ecclesiastik or Military within this Church and Kingdom and shall be liable to such further pains as are due by the Law in such Cases Act 130. Par. 8. James 6. May 22. 1584 Anent the Authority of the Three Estates of Parliament THe Kings Majesty considering the Honour and the Authority of his Supreme Court of Parliament continued past all memory of man unto their days as constitut upon the free Votes of the Three Estates of this ancient Kingdom by whom the same under God has ever been upholden rebellious and traiterous Subjects punished the good and faithful preserved and maintained and the Laws and Acts of Parliament by which all men are governed made and established And finding the Power Dignity and Authority of the said Court of Parliament of late years called in some doubt at least some curiously travelling to have introduced some Innovation thereanent His Majesties firm will and mind always being as it is yet That the Honour Authority and Dignity of his said Three Estates shall stand and continue in their own Integrity according to the ancient and laudable custom by-gone without any alteration or diminution Therefore it is statuted and ordained by our said Soveraign Lord and his said Three Estates in this present Parliament That none of his Leidges or Subjects presume or take upon hand to impugn the Dignity and Authority of the said Three Estates or to seek or procure the innovation or diminution of the power and Authority of the same Three Estates or any of them in time coming under the pain of Treason The Earl of Argyle's first Petition for Advocats or Council to be allovved him To his Royal Highness His Majesties High Commissioner and to the Right Honourable the Lords of His Majesties Privy-Council The Humble Petition of Archibald Earl of Argyle SHEWETH THat your Petitioner being Criminally Indicted before the Lords Commissioners of ustitiary at the instance of His Majesties Advocate for Crimes of an high Nature And whereas in this Case no Advocate will readily plead for the Petitioner unless they have your Royal Higâ—ness's and â—ordships Special Licence and Warrant to that Effect which is usual in the like Cases It is therefore humbly desired that Your Royal Highness and Lordships would give special Order and Warrant to Sir George Lockhart his ordinary Advocate to consâ—lt and plead for him in the foresaid Criminal Process without incurring â—ny hazard upon that account and your Petitioner shall ever pray Edenburgh Novemb. 22. 1681. The Councils Answer to the Earl of Argyl's first Petition about his having Advocates allowed him HIS Royal Highness his Majesties High Commissioner and Lords of Privy-Council do refuse the desire of the above-written Bill but allows any Lawyers the Petitioners shall employ to consult and plead for him in the Processof Treason and other Crimes to be pursued against him at the instance of His Majesties Advocate Extr. By me Will. Paterson The Earl of Argyl's second Petition for Council to be allovved him To His Royal Highness His Majesties High Commissioner and to the Right Honourable the Lords of His Majesties Privy-Council The humble Petition of Archibald Earl of Argyle SHEWETH THat your Petitioner having given in a former Petition humbly representing That he being Criminally Indicted before the Lords Commissioners of Justitiary at the instance of His Majesties Advocate for Crimes of an high Nature And therefore desiring that your Royal Highness and Lordships would give special Warrant to Sir George Lockhart to consult and plead for him Whereupon your Royal Highness and Lordships did allow the Petitioner to make use of such Advocates as he should think fit to call Accordingly your Petitioner having desired Sir George Lockhart to consult and plead for him he hath as yet refused your Petitioner And by the 11. Parliament of King James the VI. Cap. 38. As it is the undeniable priviledg of all Subjects accused for any Crimes to have liberty to provide themselves of Advocates to defend their Lives Honour and Lands against whatsoever accusation so the same Priviledg is not only by Parliament 11. King James the VI. Cap. 90. farther asserted and confirmed but also it is declared That in case the Advocates refuse the Judges are to compel them lest the party accused should be prejudged And this being an affair of great importance to your Petitioner and Sir George Lockhart having been not only still his ordinary Advocate but also by his constant converse with him is best known to your Petitioners Principles and of whose eminent abilities and fidelity your Petitioner as many others have hath had special proof all along in his Concerns and hath such singular confidence in him that he is most necessary to your Petitioner at this occasion May it therefore please Your Royal Highness and Lordships to interpose your Authority by giving a special Order and Warrant to the said Sir George Lockhart to consult and plead for him in the said Criminal Process conform to the tenor of the said Acts of Parliament and constant known practice in the like Cases which was never refused to any Subject of the meanest quality even to the greatest Criminals And Your Royal Highness's and Lordships Answer is humbly craved Edenburgh Novemb. 24. 1681. The Councils Answer to the Earl of Argyle's second Petition HIS Royal Highness His Majesties High Commissioner and Lords of Privy Council having considered the foresaid Petition do adhere to their former Order allowing Advocates to appear for the Petitioner in the Process foresaid Extr. By me Will. Paterson The Earl of Argyle's Letter of Attorney constituting Alexander Dunbar his Procurator for requiring Sir George Lockhart to plead for him WE Archibald Earl of Argyle do hereby substitute constitute and ordain Alexander Dunbar our Servitor to be our Procurator to pass and require
Sir George Lockhart Advocate to consult and plead for us in the Criminal Process intended against us at the instance of His Majesties Advocate and to compear with us before the Lords Commissioners of Justitiary upon the 12th of December next conform to an Act of Council dated the 22d of Novemb. instant allowing any Lawyers that we should employ to consult and plead for us in the said Process and to another Act of Council of the 24th of Novemb. instant relative to the former and conform to the Acts of Parliament In witness whereof we have Subscribed these Presents at Edenburgh-Castle Nov 26. 1681. before these Witnesses Duncan Campbell Servitor to James Glen Stationer in Edenburgh and John Thom Merchant in the said Burgh ARGYLE Duncan Campbell Iohn Thom Witnesses An Instrument whereby the Earl of Argyle required Sir George Lockhart to appear and plead for him Apud Edenburgum vigesimo sexto die Mensis Novembris Anno Domini millesimo sexcentesimo octuagesimo primo Anno Regni Car. 2. Regis trigesimo tertio THe which day in presence of Me Notar publik and Witnesses under-subscribed compeared personally Alexander Dunbar Servitor to a Noble Earl Archibald Earl of Argyle as Procurator and in name of the said Earl conform to a Procuration subscribed by the said Earl at the Castle of Edenburgh upon the twenty first day of November 1681. making and constituting the said Alexander Dunbar his Procurator to the effect under-written and past to the personal presence of Sir George Lockhart Advocate in his own lodging in Edenburgh having and holding in his hands an Act of his Majesties Privy Council of the date the 22 of November 1681. instant proceeding upon a Petition given in by the said Earl of Argyle to the said Lords shewing That he being Criminally indicted before the Lords Commissioners of Justitiary at the instance of His Majesties Advocate for Crimes of an high Nature and whereas in that case no Advocates would readily plead for the said Earl unless they had his Royal Highness's and their Lordships special Licence and Warrant to that effect which is usual in the like Cases And by the said Petition humbly supplicated That his Highness and the Council would give special Order and Command to the said Sir George Lockhart the said Earl's ordinary Advocate to consult and plead for him in the foresaid Criminal Process without incurring any hazard upon that account His Royal Highness and Lords of the said Privy-Council did refuse the desire of the said Petition but allowed any Lawyers the Petitioner should employ to consult and plead for him in the Process of Treason and other Crimes to be pursued against him at the instance of His Majesties Advocate And also the said Alexander Dunbar having and holding in his hands another Act of the said Lords of Privy-Council of the date the 24th of the said moneth relative to and nar rating the foresaid first Act and Proceeding upon another supplication given in by the said Earl to the said-said-Lords craving That his Royal Highness and the said Lords would interâ—ose their Authority by giving a positive and special Order and Warrant to the said Sir George Lockhart to consult and plead with him in the foresaid Criminal Process conform to the tenor of the Acts of Parliament mentioned and particularized in the said Petition and frequent and known practice in the like cases which was never refused to any Subjects of the meanest quality His Royal Highness and Lords of Privy-Council having considered the foresaid Petition did by the said Act adhere to their former Order allowing Advocates to appear for the said Earl in the Process foresaid as the said Acts bear and produced the said Acts and Procuratory foresaid to the said Sir George Lockhart who took the same in his hands and read them over successive and after reading thereof the said Alexander Dunbar Procurator and in name and behalf foresaid solemnly required the said Sir George Lockhart as the said Noble Earl's ordinary Advocate and as a Lawyer and Advocate upon the said Earl's reasonable expence to consult and advise the said Earl's said Processe at any time and place the said Sir George should appoint to meet thereupon conform to the foresaid Two Acts of Council and Acts of Parliament therein mentioned appointing Advocates to consult in such matters Which the said Sir George Lockhart altogether refused Whereupon the said Alexander Dunbar as Procurator and in Name foresaid asked and took Instruments one or more in the hands of me Notary publik undersubscribed And these things were done within the said Sir George Lockhart's Lodging on the South side of the Street of Edenburgh in the Lane-Mercat within the Dining-room of the said Lodging betwixt Four and Five hours in the Afternoon Day Moneth Year Place and of His Majesties Reign respective foresaid before Robert Dicksone and John Lesly Servitors to John Campbell Writer to His Majesties Signet and Doâ—gall Maâ— Alester Messenger in Edenburgh with divers others called and required to the Premisses Ita esse Ego Johannes Broun Notarius publicui in Praemissis requisitus Attestor Testantibus his meis signe subscriptione manualibus solitis consuetis Broun Witnesses Robert Dicksone Dowgall Mac. Alester Iohn Lesly Decemb. 5. 1682. The Opinion of divers Lawyers concerning the Case of the Earl of Argyle WE have considered the Criminal Letters raised at the instance of His Majesties Advocate against the Earl of Argyle with the Acts of Parliament contained and narrated in the same Criminal Letters and have compared the same with a Paper or Explication which is libelled to have been given in by the Earl to the Lords of His Majesties Privy-Council and owned by him as the sense and explication in which he did take the Oath imposed by the late Act of Parliament Which Paper is of this tenor I have considered the Test and am very desirous to give obedience as far as I can c. And having likewise considered that the Earl after he had taken the Oath with the explication and sense then put upon it it was acquiesced to by the Lords of Privy-Council and he allowed to take his Place and to sit and vote And that before the Earl's taking of the Oath there were several Papers spread abroad containing Objections and alledging inconsistencies and contradictions in the Oath and some thereof were presented by Synods and Presbyteries of the Orthodox Clergy to some of the Bishops of the Church It is our humble Opinion that seeing the Earls design and meaning in offering the said Explication was allenarly for the clearing of his own Conscience and upon no factious or seditious design and that the matter and import of the said Paper is no contradiction of the Laws and Acts of Parliament It doth not at all import any of the Crimes libelled against him viz. Treason Leasing-making depraving of His Majesties Laws or the Crime of Perjury but that the Glosses and Inferences put by the Libel upon the said Paper
are altogether strained and unwarrantable and inconsistent with the Earle true design and the sincerity of his meaning and intention in making of the said Explication Wednesday the 12. of December the day of compearance assigned to the Earl being novv come he was brought by a guard of Souldiers from the Castle to the place appointed for the trial and the justice Court being met and fenced the Earl now Marques of Queensberry then Justice General the Lords Nairn Collingtoun Forret Newtoun and Hirkhouse the Lords of Justitiary sitting in judgment and the other formalities also performed the indictment above set down Num 24. was read and the Earl spoke as followes The Earl of Argyle's Speech to the Lord Justice General and the Lords of the Justitiary after he had been arraigned and his Indictment read My Lord Iustice General c. I Look upon it as the undeniable priviledg of the meanest Subject to explain his own words in the most benign sense and even when persons are under an ill Character the misconstruction of words in themselves not ill can only reach a presumption or aggravation but not any more But it is strange to alledg as well as I hope impossible to make any that know me believe that I could intend any thing but what was honest and honourable suitable to the Principles of my Religion and Loyalty tho I did not explain my self at all My Lord I pray you be not offended that I take up a little of your time to tell you I have from my Youth made it my business to serve His Majesty faithfully and have constantly to my power appeared in his Service especially in all times of difficulty and have never joyned nor complyed with any Interest or Party contrary to His Majesties Authority and have all along served him in his own way without a frown from His Majesty these Thirty years As soon as I passed the Schools and Colledges I went to travel to France and Italy and was abroad 1647 1648 and till the end of 1649. My first appearance in the world was to serve His Majesty as Collonel of his Foot-Guards And tho at that time all the Commissions were given by the then Parliament yet I would not serve without a Commission from His Majesty which I have still the Honour to have by me After the misfortune of Worcester I continued in Arms for His Majesties Service when Scotland was over-run with the Usurpers and was alone with some of my Friends in Arms in the Year 1652. and did then keep up some appearance of opposition to them And General Major Dean coming to Argyleshire and planting several Garisons he no sooner went away but we fell upon the Garisons he had left and in one day took two of them and cut off a considerable part of a third and carried away in all about Three hundred Prisoners And in the end of that year I sent Captain Shaw to His Majesty with my humble Opinion how the War might be carried on who returned to me with Instructions and Orders which I have yet lying by me After which I joyned with those His Majesty did Commissionate and stood out till the last that the Earl of Middleton His Majesties Lieutenant General gave me Orders to capitulate vvhich I did vvithout any other Engagements to the Rebels but allovving persons to give bale for my living peaceably and did aâ— my capitulating relieve several Prisoners by exchange vvhereof my Lord Granard out of the Castle of Edenburgh vvas one It is notarly knovvn that I vvas forefaulted by the Usurpers vvho vvere so jealous of me that contrary to their Faith vvithin Eight Moneths after my Capitulation upon pretence I keep'd Horses above the value they seased on me and keeped me in one Prison after another till His Majesties happy Restauration and this only because I vvould not engage not to serve His Majesty tho there vvas no Oath required I do with all gratitude acknowledg His Majesties Goodness Bounty and Royal Favours to me when I was pursued before the Parliament in the Year 1662. His Majesty was graciously pleased not to send me here in any opprobrious way but upon a bare verbal Paroll Upon which I came down poste and presented my self a Fourthnight before the day Notwithstanding whereof I was immediately clapt up in the Castle but having satisfied His Majesty at that time of my entire Loyalty I did not offer to plead by Advocates And His Majesty was not only pleased to pardon my Life and to restore me to a Title and Fortune but to put me in trust in his Service in the most eminent Judicatories of this Kingdom and to heap Favours upon me far beyond what ever I did or can deserve tho I hope His Majesty hath always found me faithful and thankful and ready to bestow all I have or can have for his Service And I hope never hath had nor ever shall have ground to repent any Favour he hath done me And if I were now really guilty of the Crimes libelled I should think my self a great Villain The next occasion I had to shew my particular zeal to His Majesties Service was in Anno 1666. when the insurrection was made that was represt at Pentland-Hills At the very first the intercourse betwixt this place and me was stopt so that I had neither Intelligence nor Orders from the Council nor from the General but upon a Letter from the now Archbishop of St. Andrews telling me there was a Rebellion like to be in the three Kingdoms and bidding me beware of Ireland and Kintyre I brought together about Two thousand men I seased all the Gentlemen in Kintyre that had not taken the Declaration tho I found them peaceable And I sent a Gentleman to General Dalziel to receive his Orders who came to him just as they were going to the Action at Pentland and vvas with him in it and I keept my Men together till his return And when I met with considerable trouble from my Neighbours rebelliously in Arms and had Commissions both on publik and private Accounts have I not carried dutifully to His Majesty and done what was commanded with a just moderation which I can prove under the hands of my enemies and by many infallible demonstrations Pardon me a few words Did I not in this present Parliament shew my readiness to serve His Majesty and the Royal Family in asserting vigorously â—â—e lineal legal Succession of the Crown and had a care to have it exprest in the Commissions of the Shires and Burghs I had interest in Was I not for offering proper Supplies to His Majesty and his Successor And did I not concur to bind the Landlords for their Tenants altho I was mainly concerned And have I not always keept my Tenants in obedience to His Majesty I say all this not to arrogate any thing for doing what was my Honour and Duty to His Majesty but if after all this upon no other ground but words that
were spoken in absolute innocence and without the least design except for clearing my own Conscience and that are not capable of the ill sense wrested from them by the Libel I should be further troubled what assurance can any of the greatest Quality Trust or Innocence have that they are secure especially considering that so many Scruples have been started as all know not only by many of the Orthodox Clergy but by whole Presbyteries Synods and some Bishops which were thought so considerable that an eminent Bishop took the pains to write a Treatise that was read over in Council and allovved to be Printed and a Copy given to me vvhich contains all the expressions I am charged for and many more that may be stretched to a vvorse sense Have I not shewed my zeal to all the ends of the Test How then can it be imagined that I have any sinister design in any thing that I have said If I had done any thing contrary to it all the course of my life which I hope shall not be found yet one act might pretend to be excused by a habit But nothing being questioned but the sense of words misconstrued to the greatest height and stretched to imaginary insinuations quite contrary to my scope and design and so far contrary not only to my sense but my principles Interest and duty That I hope my Lord Advocate will think he hath gone too far on in this Process and say plainly what he knows to be truth by his acquaintance with me both in publik and private viz. That I am neither Papist nor Fanatik but truly loyal in my principles and practices The hearing of this Libel would trouble me beyond most of the sufferings of my Life if my innocence did not support me and the hopes of being vindicated of this and other Calumnies before this publik and Noble Auditory I leave my Defences to these Gentlemen that plead for me they know my innocence and how groundless that Libel is I shall only say As my Life hath most of it been spent in serving and suffering for his Majesty so whatever be the event of this Process I resolve while I breath to be loyal and faithful to His Majesty And whether I live publikly or in obscurity my head my heart nor my hand shall never be wanting where I can be useful to His Majesties Service And while I live and when I die I shall pray That God Almighty would bless His Majesty with a long happy and prosperous Reign and that the lineal legal successors of the Crown may continue Monarchs of all His Majesties Dominions and be Defenders of the True Primitive Christian Apostolik Catholik Protestant Religion while Sun and Moon endure God save the King The Kings own Letter to this Nobleman when he was Lord Lorn Collogne December 20. 1654. My Lord Lorn I Am very glad to hear from Middleton what affection and zeal you show to my Service how constantly you adhere to him in all his distresses and what good Service you have performed upon the Rebels I assure you you shall find me very just and kind to you in rewarding what you have done and suffered for me and I hope you will have more Credit and Power with those of your Kindred and Dependants upon your Family to engage them with you for me than any body else can have to seduce them against me and I shall look upon all those who shall refuse to follow you as unworthy of any protection hereafter from me which you will let them know This honest Bearer M will form you of my Condition and Purposes to vvhom you will give Credit and he will tell you That I am very much Your very affectionate Friend C. R. General Middleton's Order to the Earl of Argyle who vvas then Lord Lorn for capitulating vvith the English vvherein he largely expresseth his Worth and Loyalty John Middleton Lieutenant General next and immediate under His Majesty and Commander in chief of all the Forces raised and to be raised vvithin the King of Scotland SEeing the Lord Lorn hath given so singular proofs of clear and perfect Loalty to the Kings Majesty and of pure and constant affection to the good of His Majesties Affairs as never hitherto to have any ways complyed with the Enemy and to have been principally instrumental in the enlivening of this late War and one of the chief and first movers in it and hath readily chearfully and gallantly engaged and resolutly and constantly continued active in it notwithstanding the many powerful disswasions discouragements and oppositions he hath met withal from divers hands and hath in the carrying on of the Service shown such signal Fidelity Integrity Generosity Prudence Courage and Conduct and such high Vertue Industry and Ability as are suitable to the Dignity of his Noble Family and the Trust His Majesty reposed in him and hath not only stood out against all temptations and enticements but hath most nobly crossed and repressed designs and attempts of deserting the Service and persisted loyally and firmly in it to the very last through excessive â—oil and many great difficulties misregarding all personal inconveniences and chusing the loss of Friends Fortune and all private Concernments and to endure the utmost extremities rather than to swerve in the least from his Duty or taint his Reputation with the meanest shadow of disloyalty and dishonour I do therefore hereby testify and declare That I am perfectly satisfied with his whole Deportments in relation to the Enemy and this late War and do highly approve them as being not only above all I can express of their worth but almost beyond all parallel And I do withall hereby both allow and most earnestly desire and wish him to lose no time in taking such course for his safety and preservation by Treaty Agreement or Capitulation as he shall judg most fit and expedient for the good of his Person Family and Estate since inevitable and invincible necessity hath forced us to lay aside this War And I can now no other way express my respects to him nor contribute my endeavour to do him Honour and Service In testimony whereof I have signed and sealed these Presents at Dunveagave the last day of March 1655. IOHN MIDDLETON Another Letter from the Earl of Middleton to the same purpose Paris April 17. 1655. My Noble Lord I Am hopeful that the Bearer of this Letter will be found one who has been a most faithful Servant to your Lordship and my kind Friend and a sharer in my Troubles Indeed I have been strengthned by him to support and overcome many difficulties He will acquaint you with what hath past which truly was strange to both of us but your own Re-encounters will lessen them My Lord I shall be faithful in giving you that Character which your Worth and Merit may justly challenge I profess it is next to the ruine of the Service one of my chiefest Regrets that I could not possibly wait
the Court again adjourned And the Privy-Council wrote the following Letter to His Majestie The Councils Letter to the King desiring leave to pronounce Sentence against the Earl of Argyle May it please Your Sacred Majesty Halyrudhouse December 14. 1681. IN Obedience to your Majesties Letter dated the 15th of November last we ordered your Majesties Advocat 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 Majesties 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 Iustices proceedings therein And to signifie to your Majesty with all Submission That it is usual and most fit for your Majesties 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 Prudence and Clemency shall think fit Ordain all farther execution to be sisted during your Maesties pleasure Which shall be dutifully obeyed by Your Majesties 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 Io. Edinburgens Elphingstoun Dalziell Geo. Gordon Ch. Maitland Geo Mc kenzie G. Mc kenzie Ramsay I. Drummond THE Earl as well as the Lords of privy Council waited some dayes 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 ane account of some thoughts that the Earl had set down in writing in order to some discourse he intended to have made to the Lords of Justitiary before their pronouncing sentence And then I shall subjoyn the motives and arguments which as he hath since informed some of his friends did induce him to make his escape Which with what I have said before will give you a full account of all matters till His Majesties return came and the sentence past And first he takes notice that on Moonday the twelfth of December the day of his arraignment the Court adjourned before he was aware And it being then late about nine of the clock and after a sederunt of twelve houres He did not imagine they would have proceeded further that night But only heard afterwards that they sat it out till two or three after midnight And was surprised the next morning to understand that without calling him again or asking at him or hearing or considering his own sense of his own words they had not only found the Libel relevant but repelled his defences and with one breath rejected all his most material reasons of exculpation root and branch This seemed hard though the words had been worse and no way capable of a favourable construction which none no not the judges themselves can be so void of sense as to think really they were not and this was so far beyond all imagination that neither the Earl nor his Advocats did ever dream it could fall out though all was not said might have been said nor what was said so fully enforced as the Earls Advocats could easily have done if the case had not been thought so very clear and the Earl his innocence so obvious and apparent and they unwilling unnecessarily to irritat many concerned This great haste and strange proceeding did so surprise and astonish him as I have said that it caused him the next day when the Sentence was read to keep deep silence and suffer the Interloquutour to be pronounced the Assizers chosen and sworn and the Witnesses receaved and examined without once offering to say or object any thing or so much as inquiring at either Assizers or Witnesses whether they had not been tampered with and practised by promises and threatnings or whether some of them had not previously and publikly declared themselves in the Case and others of them had not partially advised and solicited against him Which as they are just and competent exceptions So he was able to have proven them against most of them instantly and fully And indeed as to such of the Assizers as were Councellors whom for your better information I have marked in the list of Assizers thus P. C. and had first ordered his imprisonment next signed the Letter to His Majesty and then ordered the Process and therein manifestly fore-stalled their own judgment had they done no more it was a wonder beyond parallel That neither their own honour nor the common decency of justice nor even His Majesties Advocat's interest did prevent their being impannelled on that Assize But the truth is the Earl did so far neglect and abandon himself and give way to the Court that he did not so much as open his mouth to clear himself of the Perjury laid to his charge which yet God Almighty was pleased to do by the plurality of voices of the same Assize who it appeares plainly did bear him little kindness For whereas Assizers do usually return their Verdict proven or not proven rather then guilty or not guilty and ought alwise to do so where the relevancie is in dubio and especially in a case of this nature in which the alledged treason is no ouvert act and indeed no act nor so much as a real ground of offence But plainly such a subtile chimerical and non-sensical consequence that the finding it doth quite surpass the comprehension of all unbyassed men it might have been expected that persons of their quality would have chosen the more moderate form of proven or not proven and not involved themselves unnecessarily upon Oath in adjudging the relevancy of a guilt which so few are able to imagine and none will ever make out Yet you see in their Verdict that all in one voice they did find the Earl guilty in the most positive and strong form Adding for superabundance culpable for sooth the better to demonstrate their good will Nor is it unworthy of remark that when such of the Assizers as were present at the Council declared the Earl innocent of the Perjury which His Majesties Advocate did only pretend to infer from the Earls alledged silence or not speaking loud eneugh the first day when he signed the Test. Because they heard him at the same time pronounce his explanation Yet some other Assizers that were no Councellors and knew nothing of that matter of fact but by hear-say without all regard to the witnessing of these Councellors their fellow
needless is found guilty condemned of high Treason which is as full a Concession in my opinion as could have been desired Ay but sayes our Author The former argument still recurs viz. He that will not bind up himself as to any thing reserves a power as to all things which must at least be interpret of unlawful things for lavvful things need no Exception But not to notice our Authors Christian charity and far more observable justice that because Lavvful things need not be reserved though in all cases dubious it be certainly the more tender part to reserve them will therefore have the Earl's Reservation to be of Things unlawful and treasonable The Earl's Reservation is most expresly of Things lawfull in so far as he only refuses to bind up himself in his Station and in a lawfull way as to things advantageous to Church and State not repugnant to Religion and Loyalty Which is a full and cumulative Expression of their Lawfulness And as to what our Author subjoyns of the Earl's putting Limitations on his Allegiance in so far as what he sayes is intelligible it is already answered It being manifest that the Earl's words in stead of being a Limitation are a designed and ample Extension In the next place our Author comes to tell us That the Earl's Qualifications take off the whole force of his Oath either as to rising in Arms or any other unlawfull thing For. 1. Sayes he He takes the Oath only in so far as it is consistent with it self and the Protestant Religion So that if he think the Protestant Religion shall require rising in Arms he is not tyed But. 1. I have told you how false it is that the Earl resolves the force of his Oath upon his own thinking which here he doth not so much as mention 2ly Is it not strange how our Author should judge that the Protestant Religion may not make as certain a Qualification in the Earl's Explanation as it doth in the Councils Where yet in liew of the Confession of Faith the standard appointed by the Parliament it is made the only bar against Popery 3ly What a ridiculous Conceit it is to think that the Earl by offering to take the Test in as far as it is consistent with it self and the Protestant Religion did reserve to himself a liberty to rise in Arms when by an Article of the Test which can neither be taken off nor eluded by any part of the Earl's Explanation he was to swear liquidly and distinctly not to rise in Arms 2ly Sayes our Author The Earl's Oath only tyes him as far as he can which may leave him yet bound by the Covenant But I have already cleared how the Earl did only profess his readiness to obey the Act of Parliament as far as he could without intending by these Words any restriction of his Oath and that to wrest them as if designed for that end is an absurd and willfull errour 3ly Sayes he The Earl takes it only as far as it is consistent with it self And God and the Earl only know how far that is A noble Testimony to the Test And as plain a declaration that our Author neither knows nor caâ—es to know how far it is consistent But having already told you that the Earl did certainly use this Expression to vindicate the Test and his own Conscience from other mens Exceptions and Scruples And that no man in reason either ought to take it or can be bound by it otherwise I shall not here adde any thing And lastly our Author repeates the danger of Limitations telling us That if after the dreadfull effects we have seen produced by them and that Parliaments have condemned them as Treason we should still be secure and unconcerned all the vvorld might laugh at our ruine But seeing it is 1. Most ridiculous to call a manifest Extension an undue Limitation 2ly Most false that ever the Parliament condemned any Limitation of the nature of the Earl's Reservation or that ever a Deed qualified in the Earl's terms was or can be thought dangerous far less rebellious 3ly Most certain that nothing in all times hath so much ruined Government and Governours as the unjust Iealousies and pretended legal but really violent Proceedings of its Ministers I shall not trouble our Author with any further Remarks In the close of his Discourse he thinks fit to instigate Judges to Severity and to guard them against insolent Pity as he calls it which truly after what all men have seen of their frank Procedure against the Earl appeared to me at first reading a very superfluous Caution But my Surprise was only from the want of our Author's fore-sight and was soon intirely discussed For just as I am writing there is come to my hand His Majesties gracious Proclamation for compleeting no doubt the selicity of our Author 's happy Kingdom by ordering the Prosecution of all Rebells and their Resetters c. In the Execution whereof now after the Government had for severall years connived at many hundreds of these Rebells and out-Lavvs and thereby rendered the people secure and careless It is easy to demonstrate that more then ten thousand of his Majesties peaceable Subjects may be prosecute and punished as Traitors and above fourty thousand beside made liable to Fining and Imprisonment at the Councils pleasure A work which I confess requires the highest measures of severity that our Author could prompt to doth indeed leave the far better part of the Kingdom without all refuge or relief save in his Majesties Clemency But where I also hope they shall seasonably and comfortably find it notwithstanding all our Author 's many sly and mischievous Insinuations to the contrair He vvishes the Earl had come in vvill as if forsooth he had proven him to be guilty And as falsly insinuats this to be usual that he may represent him not only as Criminal but a Contemner of his Majesties Mercy He likewise tells us That he doth not admire that this Author and these of his vvay see not this Paper to be Treason since they vvill not acknovvledge it to be Treason to oppose the Succession and to say that it can be altered by a Parliament Which yet the Scotch Parliament thought to be Treason Nor in the last age thought they it Treason to rise in arms against the King and call Parliaments vvithout him So that sayes our Author The fault is only in the depraved Intellectuals of such as have by a long custome of hating Authority bred in themselves a hatred of every Person and thing that can maintain it But not to stay here to discuss all the Calumny and Envy wrap't up in this passage I shall only desire you to consider 1. That our Author would have it a transcendent wonder that the Author of the Mist should say The Succession can be altered by a Parliament And yet he cannot but know that that Person lives under an express Act of Parliament declaring it Treason to say the contrary 2ly He sayes The Scotch Parliament thought it to be Treason to oppose the Succession and to say that it can be altered by Parliament And yet the same Scotch Parliament judged it proper for them to declare and confirm the Succession And Law and Reason say that Constituere destituere sunt ejusdem facultatis But not to insist upon these things For a Conclusion I shall only take the liberty to protest for my self without offering to anticipate the better judgment of others as our Author visibly doth That were I as clear for the Succession as his Royal Highness As dissatisfied with the old Statut and late Proceedings of the English Parliaments about it as our Author As zealous for the Honour and Infallibility of the last Scotch Parliament as his Majesties Advocate As enraged against former Practices as the greatest Torry in Britain And yet more tender and respective of Authority then my ovvn heart I could not have imagined that either Misinterpreting Defaming Depraving or Treason should have been found in the Earl's words And am very apprehensive that the Judgment so given against him may prove a greater bar to the Succession and Reflection on Scotch Parliaments and Judges then all that our Author hath laboured to squeese out of them COPPY OF His Majesties Letter ordering the passing of his two former Signatures for the Earl's Offices and Jurisdictions AT Edinburgh the fifteenth day of January 1669 Years His Majesties Letter under-vvritten direct to the Lords Commissioners of his Treasury and Exchequer vvas presented and read and ordained to be recorded whereof the Tenor followeth Sic suprascribitur CHARLES R. Right trusty and right well beloved Cousins and Councellors and right trusty and well beloved Councellors we greet you well Wee did upon the fyfteenth day of October 1667 sign a Signature in favours of the Earl of Argyle and another shortly after for the Lands of Knoydart The Signatures we are informed are not past And in August last our Secretary acquainted us with a Letter which he had received from our Advocate bearing date the thirteenth day of August 1668 Years together with an Information containing thirteen Reasons against some heritable Offices comprehended in the said Signature We are also acquainted vvith the Earl of Argyle's Ansvvers All vvhich vve have taken into our consideration And although we are very well satisfied with our Advocate in his doing of his duty in representing to us what he conceives to be fit for our service in this particular as also vvith his Fiaelity and Diligence in other things relating to his Place Yet upon serious Consideration of the vvhole matter It is our Gracious Pleasure That the said Signatures vvith these Offices be past our Exchequer and that in the terms exprest in our Letter signed by us soon after the signature any thing in our Instructions to the contrary notvvithstanding For all vvhich this shall be your vvarant And so we bid you farewel Given at our Court at Whiteâ—al the seventh day of January 166 9 8 and of our Reign the 20 Year By His Majesties Command Sic subscribitur Lawderdale Extractum de Libris Actorum Scacarii per me Sic subscribitur THO. MURRAY Clericus Reg. FINIS ☜ ☞ ☞ ☜ ☜ ☜ ☜ ☞ ☜ ☜ ☞ ☞ ☜ ☜ ☞ ☞ ☜ ☜ ☜ ☜ ☜ ☜ ☞ ☞ ☞ ☞ ☞ ☜ ☜ ☜ ☜ ☜ ☜ ☜ ☜ ☜
whoso does in the contrary to be punished at the Kings will And by the 10th Act Par. 10. James 6. it is statuted That none of His Majesties Subjects presume or take upon him publikly to declare or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws or Acts of Parliament or mistconstrue his Proceedings whereby any mistaking may be moved betwixt his Highness his Nobility and loving Subjects in time coming under pain of death certifying them that does in the contrary they shall be reputed as seditious and wicked instruments enemies to his Highness and to the Commonwealth of this Realm and the said pain of death shall be executed against them with all rigour to the example of others And by the second Act Ses. 2. Par. 1 Char. 2. it is statuted That whosoever shall by writing libelling remonstrating express publish or declare any words or sentences to stir up the people to the dislike of His Majesties Prerogative and Supremacy in causes Ecclesiastik or of the Government of the Church by Archbishops and Bishops as it is now setled by Law is under the pain of being declared incapable to exercise any Office Civil Ecclesiastik or Military within this Kingdom in any time coming Like as by the fundamental Laws of this Nation By the 130th Act Par 8. James 6. it is declared That none of His Majesties Subjects presume to impugn the Dignity or Authority of the Three Estates or to procure innovation or diminution of their Power and Authority under the pain of Treason And that it is much more Treason in any of His Majesties Subjects to presume to alter Laws already made or to make new Laws or to add any part to any Law by their own Authority that being to assume the Legislative Power to themselves with his Majesties highest and most incommunicable Prerogative Yet true it is That albeit His Sacred Majesty did not only bestow on you the said Archibald Earl of Argyle those vast Lands Jurisdictons and Superiorities justly for faulted to His Majesty by the Crimes of your deceased Father preferring your Family to those who had served His Majesty against it in the late Rebellion but also pardoned and remitted to you the Crimes of leasing making and misconstruing His Majesties and his Parliaments proceedings against the very Laws above written whereof you were found guilty and condemned to die therefore by the High Court of Parliament the 25. of August 1662. And raised you to the Title and Dignity of an Earl and being a member of all His Majesties Judicatures Notwithstanding of all these and many other Favours you the said Archibald Earl of Argyle Being put by the Lords of His Majesties Privy-Council to take the Test appointed by the Act of the last Parliament to be taken by all persons in publik Trust you insteed of taking the said Test and swearing the same in the plain genuine sense and meaning of the words without any equivocation mental reservation or evasion whatsoever you did declare against and defame the said Act and having to the end you might corrupt others by your pernicious sense drawn the same in a Libel of which Libel you dispersed and gave abroad Copies whereby ill impressions were given of the King and Parliaments Proceedings at a time especially when his Majesties Subjects were expecting what submission should be given to the said Test and being desired the next day to take the same as one of the Commissioners of His Majesties Treasury you did give in to the Lords of His Majesties Privy-Council and owned twice in plain judgment before them the said defamatory Libel against the said Test and Act of Parliament declaring That you had considered the said â—est and was desirous to give obedience as far as you could whereby you clearly insinuated that you was not able to give full obedience In the second Article of which Libel you declare That you were confident the Parliament never intended to impose contradictory Oaths thereby to abuse the people with a belief that the Parliament had been so impious as really and actually to have imposed contradictory Oaths and so ridiculous as to have made an act of Parliament which should be most deliberate of all humane Actions quite contrary to their own intentions after which you subsumed contrary to the nature of all Oaths and to the Acts of Parliament above-cited that every man must explain it for himself and take it in his own sense by which not only that excellent Law and the Oath therein specified which is intended to be a Fence to the Government both of Church and State but all other Oaths and Laws shall be rendered altogether uselesse to the Government If every man take the Oaths imposed by Law in his own sense then the Oath imposed is to no purpose for the Legislator cannot be sure that the Oath imposed by him will bind the takers according to the design and intent for which he appointed it and the Legislative Power is taken from the Imposers and setled in the taker of the Oath And so he is allowed to be the Legislator which is not only an open and violent depraving of His Majesties Laws and Acts of Parliament but is likewise a setling of the Legistative Power on private Subjects who are to take such Oaths In the third Article of that Paper you declare That you take the Test in so far only as it is consistent with it self and the Protestant Religion by which you maliciously intimate to the people That the said Oath is inconsistent with it self and with the Protestant Religion which is not only a down-right depraving of the said Act of Parliament but is likewise a misconstruing of His Majesties and the Parliaments Proceedings and misrepresenting them to the people in the highest degree in the tenderest points they can be concerned and implying that the King and the Parliament have done things inconsistent with the Protestant Religion for securing of which that Test was particularly intended In the Fourth Article you do expresly declare that you mean not by taking the said Test to bind up your self from wishing and endeavouring any alteration in a lawful way that you shall think fit for advancing of Church and State whereby also it was designed by the said Act of Parliament and Oath That no man should make any alteration in the Government of Church and State as it is now established and that it is the duty of all good Subjects in humble and quiet manner to obey the present Government Yet you not only declare your self but by your example you invite others to think themselves â—oosed from that Obligation and that it is free for them to make any alteration in either as they shall think fit concluding your whole Paper with these words And this I understand as a part of my Oath which is a treasonable invasion upon the Royal Legislative Power as if it were
that were all were designed as was at first given out the Advocate needed not have set him oâ— high as Naboth and accusâ— him as a blasphemer of God and the King Then turning his speech to the Lords of Iustitiary he thought to have desired that they would yet seriously consider his words in their true sense and circumstances his own Explanation of his Explication and especially the forgoing matter of fact to have been laid before them with his Defences and grounds of Exculpation as also to have told them that they could not but observe how that he was singled out amongst thousands against whom much more then all he is charged with could be alledged and that they must of necessity acknowledge if they would speak out their own conscience that what he had said was spoke in pure innocence and duty and only for the exoneration of himself as a Christian and one honoured to be of His Majesties Privy Council where he was bound by his Oath to speak truth freely And not to throw the smallest reproach on either person or thing Adding that he was â—oath to say any thing that lookes like a reflection upon His Majesties Privy Council but if the Council can wrong one of their own number he thought he might demand if he had not met with hard measure For first he was pressed and perswaded to come to the Council then they receive his Explanation and take his Oath then they complain of him to His Majesty where he had no access to be heard and by their Letter under their hands affirm that they had been careful not to suffer any to take the Test with their own Explanations albeit they had allowed a thing very like it first to Earl Queensberry then to the Clergy And the President now Chancellour had permitted several members of the Colledge of Iustice to premise when they sware the Test some one sense some another and some non-sense as one saying he took it in sane sensu another making a speech that no man understood a third all the time of the reading repeating Lord have mercy upon me miserable sinner Nay even an Advocate after being debarred a few dayes because albeit no Clerk yet he would not take it without the benefit of his clergy viz. the Councils Explanation was yet thereafter admitted without the Warrant of the Councils Act but all this in the case of so many other was right and good Further the Council expresly declare the Earl to be Guilty before he had ever said one word in his own defence Thereafter some of them become his Assizers and others of them witness against him and after all they do of new concern themselves by a second Letter to His Majesty wherein they assert That after full debate and clear probation he was found guilty of Treason c. to have a sentence past against him and that of so high a nature and so dreadfull a consequence as suffers no person to be inconcerned far less their Lordships his Iudges who upon grounds equally just and which is more already predetermined by themselves may soon meet with the same measure not only as Concealers of Treason but upon the least pretended disobedience or non-compliance with any Act of Parliament and after all must infallibly render an accunt to God Almighty He bids them therefore Lay their hands to their hearts and whatever they shall judge he is assured that God knows and he hopes all unbyassed men in the world will or may know he is neither Guilty of Treason nor any of the Crimes libelled He sayes he is glad how many out do him in asserting the true Protestant Religion and their Loyalty to His Majesty Only he addes If he could justify himself to God as he can to His Majesty he is sure he might account himself the happiest man alive But yet seeing he hath a better hope in the mercy of God through Jesus Christ he thereupon rests whether he find Justice here on earth or not He sayes he will adde nothing to move them either to tenderness or pity he knows that not to be the place and pretends to neither from them He pleads his Innocence and craves Justice leaving it to their Lordships to consider not so much his particular case as what a Preparative it may be made and what may be its consequences And if all he hath said do neither convince nor perswade them to alter their judgment yet he desires them to consider whether the case do not at least deserve to be more fully represented and left to His Majesties wisdom and justice seeing that if once the matter pass upon record for Treason it is undoubted that hundreds of the best and who think themselves most innocent may by the same methods fall under the like Condemnation when ever the Kings Advocate shall be thereto prompted And thus you have a part of what the Earl intended to have said before pronouncing Sentence if he had not made his Escape before the day Yet some things I perceive by his notes are still in his own breast as only proper to be said to His Majesty I find several Quotations out of the Advocates printed books that it seemes he was to make some use of but seeing it would have been too great an interruption to have applyed them to the places designed I have subjoyned them together leaving them to the Advocate 's own and all mens consideration It was by some remarked That when the Lords of Iustitiary after the ending of the first dayes debate resolved that same night to give Judgment upon it they sent for the Lord Nairn one of their number an old and infirm man who being also a Lord of the Session is so decayed through age that he hath not for a considerable time been allowed to take his turn in the Outer house as they call it where they judgelesser causes alone But notwithstanding both his age and infirmity and that he was gone to bed he was raised and brought to the Court to consider a debate a great deal whereof he had not heard in full Court and withall as is informed while the Clerk was reading some of it fell of new asleep It was also remarked that the Lords of Justitiary being in all five viz. the Lord Nairn above-mentioned with the Lords Collintoun Newtoun Hirkhouse and Forret the Libell was found relevant only by the odds of three to two viz. the Lord Nairn foresaid the Lord Newtoun since made President of the Session and the Lord Forret both well enough known against the Lord Collintoun a very ingenuous Gentleman and a true old Cavalier and the Lord Hirkhouse a learned and upright judge As for the Lord Justice General who was also present and presided his vote according to the constitution of the Court was not asked yet he is since made a Marquies and Lord high Treasurer But to return to my Narrative the Earl as I have already told you did not think fit
December or because of Christmas to the first Moonday of January was for the Earl's sake adjourned till Fryday the 23. to the end that immediatly upon the Kings Return they might pronounce Sentence He was moreover informed that his Royal Highness was heard say that if the express returned not timeously he would take upon himself what was to be done Which being general and dark was the more to be suspected All this the Earl told made him the same Moonday late cast in his thoughts whether it were not fit for him to attempt an escape but his doubtings were so many he could resolve nothing that night except to put off till Wednesday Yet on Twesday morning he began to think if he did at all design to escape he had best do it that same evening However he was even then not fully resolved not had he as yet spoke one word of it to any mortal But about ten of the Clock this Twesday his Highness absolute refusal to suffer the Earl to see him untill his Majesties Return came was confirmed And about Noon the Earl heard that some Troups and a Regiment of foot were come to Town And that the Next day he was to be brought down from the Castle to the common Jail from which Criminals are ordinarily carried to Execution and then he resolved to make his escape that very night and yet did not conclud it throughly till five of the Clock in the evening At which time he gave directions about it not thinking to essay it till near ten But at seven one coming up from the city and telling him that new orders were privatly given for further securing of him that the Castle guards were doubled and none suffered to go out without showing their faces and that some Ladies had been already put to do it and therefore disswading him to attempt any escape because it was impossible the Earl said No then it is full time And so he made haste and within half an hour after by Gods blessing got safe out questioned pretty warmly by the first sentry but not at all by the main guard and then after the great gate was opened and the lower guard drawn out double to make a lane for his company one of the guard who opened the gate took him by the arm and viewed him But it pleased God he was not discerned When he was out he was not fully resolved whither to go Home he had judged safest But he thought it might breed Mistakes and Trouble that he designed not So he resolved to go for England and to take the road That by Post he might be his Majesties first informer of his escape But being disappointed of horses that he expected he found that the notice of his escape was got before him And soon after as he came the length of Newcastle heard that his Majesty had given way to pronounce Sentence against him according as he had apprehended from the circumstances and other grounds I have told you which made him judge it would be an undiscreet presumption in that state to offer himself to his Majesty while he knew none durst address him and so he rather choosed to shift in the wide World till his Majesty might be at some greater freedom both to understand his case and apply suitable remedies His Majesties clear and excellent understanding and gracious and benign disposition do fully assure him that his Majesty doth not in his thoughts charge him with the least Disloyalty and that he hath no Complacence in his ruine But if His Majesty do at present ly under the pressure ofsome unlucky influences not so easy to his Royal inclinations the Earl it seemes thinks it reasonable to wait patiently for a better opportunity It may indeed appear strange that Innocence Honour oppressed in his Person almost beyond a parallel should not ere now have constrained him to some publik Vindication Especially when to the horrid Sentence given against him his Adversaries have further prevailed to cause His Majesty dispose not only of his Heritable Offices and Jurisdictions the pretended eye sore But also upon his whole Estate and Fortune with as little consideration of the Earl's personal Interest as if he had fallen for the blackest Treason and most atrocious Perduellion But besides that some things are of themselves so absurdly wicked that all palliating pretences do only render them the more hateful and the very simple hearing doth strike with an horrour not to be hightned by any representation Next that the Earl being so astonishingly overtaken for words as fairly and honestly uttered as he could possibly devise doth with reason apprehend that there is nothing he can say in this matter though with the serenest mind and in the greatest truth and sobriety that may not be construed to flow from a design to lay blame where hitherto he hath been tender to give any ground of offence I say beside these things he is withall I know most firmly perswaded That if ever he shall have the happiness to be once heard by His Majesty and in his presence allowed to explain a few Particulars in duty here omitted His Majesties justice and goodness will quickly dispell all the clouds that now hang over him and restore him to that favour wherein he hath sometime reckoned himself very happy and which he will ever be most ready to acknowledge And therefore all that in the mean time he judged necessary or would give way to was that for preserving the remembrance of so odd a Transaction untill a more seasonable juncture some Memorials should be drawn and deposited in sure keeping which being grown under my hand unto this Narrative I thought I could not better observe his order then by transmitting it to your faithful custody I have carefully there in observed the truth in point of fact avouching nothing but upon the best and clearest evidence can possibly be expected not have I as to the manner licenced or indulged my self in any severity of expression which I thought could be justly in such a case omitted without betraying the Cause Yet if you now or any other hereafter shall judge that I do sometime exceed let it not be imputed to him for as he did indeed charge me to guard against any more warm or vehement expression then the merit and exigence of the subject do indispensibly require so I am assured that he silently and patiently waits on the Lord committing his way to him and trusting in him that he may bring it to passe and that he shall bring forth his righteousness as the light and his judgment as the noon-day POSTSCRIPT SIR HAving in this Narrative sometimes adduced as you have seen the Advocate 's own authority ad hominem I shall here as I promised subjoin such passages out of his printed Book as though they deserved not a place above may yet make a pertinent POSTSCRIPT And omitting what in that Book called The Laws and Customs of Scotland in matters
Arms all Collectors Sub Collectors and Fermers of His Majesties Customes and Excise all Magistrats Deans of Gild Councellors and Clerks of Boroughs Royal Regality all Deacons of trades and Deâ—con-conveeners in the said Burghs all Masters and Doctors in Universities Colledges or Schools all Chaplans in families Pedagogues to children and all Officers and Soldiers in Armies Forts or Militia And all other persons in any publick Trust or office within this Kingdom who shall publickly swear and subscribe the said Oath as follows viz. Archbishops Chief Commanders of the Forces and Officers of the Crown and State and Councellors before the Secret Council all the Lords of Session and all members of the Colledg of Justice and others depending upon them before the Lords of Session the Lords of lustitiary and all these depending upon that Court in the Iustice-Court the Lords and other Members of the Exchequer before the exchequer all Bishops before the Archibishops all the Inferior Clergy Commisaries Masters Doctors of Universities Schools Chaiplans Pedagogues before the Bishops of the respective Diocesses Sheriffs Stewards Baylies of Royalty and Regality and these depending on these Iurisdictions before their respective Courts all Provosts Baylies and others of the Boroughs before the Town-Council all Collectors and Fermers of the Kings Customs and Excise before the Exchequer the Commissioners of the Borders before the Privy-Council all Iustices of the Peace before the Conveeners and the Officers of the Mint before the General of the Mint and the Officers of the Forces before the Commander in chief and common Soldiers before their respective Officers The Lyon before the Privy Council and Heraulds Pursevants and Messengers at Arms before the Lyon And His Majesty with consent foresaid Statutes and ordains that all these who presently possess and enjoy any of the foresaid offices publick Trusts and Imployments shall take and subscribe the following Oath in one of the foresaid Offices in manner before prescribed betwixt and the first of January next which is to be recorded in the Registers of the respective Courts and extracts thereof under the Clerks hand to be reported to His Majesties Privy-Council betwixt and the first of March 1682. and hereafter in any other Courts whereof they are Iudges or Members the first time they shall sit or exercise in any of these respective Courts and ordains That all who shall hereafter be promoted to or imployed in any of the foresaid Offices Trusts or Imployments shall at their entry into and before their exercising thereof take and subscribe the said Oath in manner foresaid to be recorded in the Registers of their respective Courts and reported to His Majesties Privy Council within the space of fourty days after their taking of the same And if any shall presume to exercise any of the faid offices or Imployments or any publick Office or Trust within this Kingdom the Kings Brothers and Sons only excepted until they take the Oath foresaid and subscribe the same to be recorded in the Registers of the respective Courts they shall be declared incapable of all publick trust thereafter and be further punished with the loss of their moveables and liferent-escheats the one half whereof is to be given to the Informer and the other half to belong to his Majesty and his Majesty with advice foresaid recommends to his Privy-Council to see this Act put to due and vigorous execution The TEST Containing the Oath to be taken by all Persons in publick Trust. I Solemnly swear in the presence of the eternal God whom I invoke as Judge and witnesse of the sincere intention of this my Oath That I own and sincerely profess the true Protestant Religion contained in the Confession of Faith recorded in the first Parliament of King James the VI and that I believe the same to be founded on and agreeable to the written Word of God And I promise and swear That I shall adhere thereunto during all the dayes of my life-time and shall endeavour to educate my Children therein And shall never consent to any change or alteration contrary thereto and that I disoun and renounce all such Principles Doctrines or practices whether Popish or Fanatical which are contrare unto and inconsistent with the said Protestant Religion and Confession of Faith And for testification of my obedience â—o my most gracious Soveraign Charles the II. I do affirm and swear by this my solemn Oath that the Kings Majesty is the only Supreme Governour of this Realm over all persons and in all causes as well ecclesiastical as civil And that no forreign Prince Person Pope Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminency or Authority Ecclesiastical or Civil within this Realm And therefore I do utterly renounce and forsake all foreign Jurisdictions Powers Superiorities and Authorities And do promise that from henceforth I shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to my power shall assist and defend all Rights Jurisdictions Prerogatives Priviledges Preferments and Authorities belonging to the Kings Majesty his Heirs and lawful Successors And I further affirm and swear by this my solemn Oath That I judge it unlawful for Subjects upon pretence of Reformation or any other pretence whatsoever to enter into Covenants or Leagues or to convocar conveen or assemble in any Councils Conventions or Assemblies to treat consult or determine in any matter of State Civil or Ecclesiastick without his Majesties special command or express licence had thereto or to take up arms against the King or these Commissionate by him And that I shall never so rise in arms or enter into such Covenants or Assemblies And that there lies no obligation on me from the National Covenant or the Solemn League and Covenant commonly so called or any other manner of way whatsoever to endeavour any change or alteration in the Government either in Church or State as it is now established by the Laws of this Kingdom And I promise and swear That I shall with my utmost power defend assist and maintain his Majesties Jurisdiction foresaid against all deadly And I shall never decline his Majesties Power and Jurisdiction as I shall answer to God And finally I affirm and swear That this my solemn Oath is given in the plain genuine sense and meaning of the words without any equivocation mental reservation or any manner of evasion whatsoever and that I shall not accept or use any dispensation from any creature whatsoever So help me God Act J. 6. P. 1. C. 3. Anno 1567. Anent the annulling of the Acts of Parliament made against God His Word and for maintainance of Idolatrie in any tymes bypast ITem our Soveraigne Lord with advice of his dearest Regent and three Estates of this present Parliament ratifies and approves the Act under-written made in the Parliament holden at Edinburgh the 24. day of August the year of God anâ— thousand five hundred threescore years And
of new in this present Parliament statutes and ordains the said Act to be as a perpetual Law to all our Soveraigne Lords leiges in all times coming Of the quhilk the tenour followes The quhilk day for sameâ—â—le as there has been divers and sundrie Acts of Parliament made in King James the I. II. III. IV. and V's times Kings of Scotland for the time and also in our soveraigne Ladies time not agreeing with Gods holy Word and by them divers persons take occasion to maintaine Idolatrie and Superstition within the Kirk of God and repâ—esse such persons as were professors of the said Word wherethrow divers innocents did suffer And for escheving such inconveniences in time coming the three Estates of Parliament has annulled and declared all such Acts made in tymes bypast not agreeing with God His Word and now contrary to the Confession of Faith according to the said Word published in this Parliament to be of none availe force nor effect And decerns the said Acts and every ane of them to have no effect nor strength in time to come But the same to be abolished and extinguished for ever in so far as any of the foresaid Acts are repugnant and contrary to the Confession of Faith and Word of God foresaid ratified and approved by the Estates in this present Parliament And therefore decerns and ordains the Contraveeners of the famine Act in any time hereafter to be punished according to the Lawes Of the Quhilk Confession of the Faith the â—â—nour follows THE Confession of the Faith and Doctrine Believed and professed by the Protestants of Scotland exhibited to the Estates of the same in Parliament and by their publick Vots authorized as a Doctrine grounded upon the infallible Word of God As the same Confession stands recorded Ja. 6. p. 1. c 4. Anno 1567. I. Of God WE confesse and acknowledge ane onely God to whom onely we must cleave whom onely we must serve whom only we must worship and in whom onely we must put our trust who is Eternal Infinit Unmeasurable Incomprehensible Omnipotent Invisible ane in substance and yet distinct in three Persons the Father the Sonne and the holie Ghost By whom we confesse and believe all things in heaven and earth aswel Visible as Invisible to have been created to be retained in their being and to be ruled and guided by his inscrutable Providence to sik end as his Eternal Wisdome Goodness and Justice has appointed them to the manifestation of his own glorie II. Of the Creation of Man WE confess and acknowledge this our God to have created man to wit our first father Adam in his own Image and similitude to whom he gave Wisedome Lordship Iustice Free will and clear knowledge of himself so that in the hail nature of man there could be noted no imperfection Fra quhilk honour and perfection Man and Woman did both fall the Woman being deceived be the Serpent and Man obeying the voyce of the Woman both conspiring against the Soveraign Majestie of God who in expresse words had before threatned death if they presumed to eat of the forbidden Tree III. Of Original Sinne. BE quhilk transgression commonlie called Original Sinne was the image of God utterlie defaced in Man and he and his posteritie of nature became enemies to God slaves to Sathan and servants unto sin in samiekle that death everlasting has had and shall have power and dominion over all that have not been are not or shall not be regenerated from above quhilk regeneration is wrought by the power of the holie Ghost working in the hearts of the elect of God ane assured faith in the promise of God revealed to us in his word be quilk Faith we apprehend Christ Jesus with the graces and benefits promised in him IV. Of the Revelation of the Promise FOR this we constantlie believe that God after the fearful and horrible defection of man fra his obedience did seek Adam again call upon him rebuke his sin convict him of the same and in the end made unto him ane most joyful promise to wit that the seed of the woman should break down the serpents head that is he should destroy the works of the Devil quhilk promise as it was repeated and made mair cleare from time to time so was it embraced with joy and maist constantly received of all the faithful from Adam to Noah from Noah to Abraham from Abraham to David and so forth to the incarnation of Christ Jesus all we mean the faithful fathers under the law did see the joyful day of Christ Jesus and did rejoyce V. Of The continuance increase and preservation of the Kirk WE maist constantly believe that God preserved instructed multiplyed honoured decored and from death called to life his Kiâ—k in all ages fra Adam till the coming of Christ Jesus in the flesh For Abraham he called from his fathers countrey him he instructed his seedhe multiplyed the same he marvelously preserved and mair marvelously delivered from the bondage and tyranny of Pharaoh to them he gave his Laws constitutions and ceremonies them he possessed in the Land of Canaan to them after Iudges and after Saul he gave David to be King to whom he made promise that of the fruit of his Ioynes should ane sit for ever upon his regnall seat To this same people from time to time he sent Prophets to reduce them to the right way of their God from the quhilk oftentimes they declined by Idolatry and albeit that for their stubborn contempt of justice he was compelled to give them into the hands of their enemies as before was threatned by the mouth of Moses in sameikle that the hally City was destroyed the temple burnt with fire and the haile land left desolate the space of lxx years yet of mercy did he reduce them again to Jerusalem where the City and Temple were reedified and they against all temptations and assaults of Sathan did abide till the Messias came according to the promise VI. Of the Incarnation of Christ Jesus WHEN the fulness of time came God sent his Son his eternal wisdome the substance of his own glory into this World who took the nature of man-head of the substance of woman to wit of a virgin and that by operation of the Holy Ghost and so was born the just seed of â—avid the Angel of thâ— great counsell of God the very Messias promised whom we confess and acknowledge Emmanuel very God and very man two perfect natures united and joyned in one person By quhilk our Confession we condemn the damnable and pestilent herefies of Arrius Marchion Eutiches Nestâ—rius and sik others as either did deny the eternity of his God-head or the verity of his human nature or confounded them or yet divided them VII Why it behoved the Mediator to be very God and very man WE acknowledge and confess that this maist wonderous conjunction betwixt the God-head and the man-head in Christ Jesus did proceed from the