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
upon you before my going from Scotland that I might have setled a way of Correspondence with you and that your Lordship might have understood me better than yet you do I should have been plain in every thing and indeed have made your Lordship my Confessor and I am hopeful the Bearer will say somewhat for me and I doubt not but your Lordship will trust him If it shall please God to bring me safe from beyond Sea your Lordship shall hear from me by a sure hand Sir Ro M. will tell you a way of corresponding So that I shall say no more at present but that I am without possibility of change My Noble Lord Your Lordships most Faithful and most Humble Servant JO. MIDDLETON A Letter from the Earl of Glencairn testifying his esteem for this Noble Person and the sense he had of his loyalty to the King vvhen fevv had the Courage to ovvn him My Lord LEst it may be my misfortune in all these great Revolutions to be misrepresented to your Lordship as a person unworthy of your favourable Opinion an Artifice very frequent in these times I did take occasion to call for a Friend and Servant of yours the Laird of Spanie on whose discretion I did adventure to lay forth my hearts desire to obviate in the bud any of these misunderstandings Your Lordships true worth and zeal to your Countries happiness being so well known to me 〈◊〉 and confirmed by our late suffering acquaintance And now finding how much it may conduce to these great ends we all wish that a perfect Unity may be amongst all good and honest hearted Scotchmen tho there be few more insignificant than my self yet my zeal for those ends obligesme to say that if your Lordships health and affairs could have permitted you to have been at Edenburgh in these late times you would have seen a great inclination and desire amongst all here of a perfect Unity and of a mutual respect to your Person as of chief eminence and worth And I here shall set it under my Hand to witness against all my Informers that none did with more passion nor shall with more continued zeal witness themselves to be true Honourers of you than he who desires infinitely to be esteemed My Lord Your most Humble Servant GLENCAIRN What I cannot vvell vvrit e I hope this discreet Gentleman vvill tell you in my Name and I shall only beg leave to say that I am your most Noble Ladies Humble Servant After the reading of which order and letters which yet the Court refused to record The Earl's Advocator Council Sir George Lockhart said in his defence as follovves Sir George Lockhart's Argument and Plea for the Earl of Argyle SIR George Lockhart for the Earl of Argyle alledgeth That the Libel is not Relevant and whereupon he ought to be put to the knowledg of an Inquest For It is alledged in the general That all Criminal Libels whereupon any persons Life Estate and Reputation can be drawn in question should be founded upon clear positive and express Acts of Parliament and the matter of Fact which is libelled to be the Contravention of those Laws should be plain clear and direct Contraventions of the same and not argued by way of Implications and Inferences Whereas in this Case neither the Acts of Parliament founded upon and libelled can be in the least the foundation of this Libel nor is the Explication which is pretended to be made by the Pannel at the time of the taking of his Oath if considered any Contravention of those Laws which being premised and the Pannel denying the Libel as to the whole Articles and Points therein contained it is alledged in special That the Libel in so far as it is founded upon the 21 st Chap. Stat. 1. Robert 1. and upon 83d Act Par. 〈◊〉 James 5. the 43d Act Par. 2. James 1. and upon the 83d Act Par. 10. James 5. and upon 84th Act Par. 8. James 6. and upon the 10th Act Par. 10. James 6. and upon the 2d Act Par. 1. Ses. 2. of His Sacred Majesty and inferring thereupon That the Pannel by the pretended Explication given in by him to the Lords of His Majesties Privy-Council as the sense of the Oath he had taken doth commit the Crime of Leasing-making and depraving His Majesties Laws The Inference and Subsumption is most unwarrantable and the Pannel tho any such thing were acknowledged or proved can never be found guilty of contraveening these Acts of Parliament In respect it is evident upon perusal and consideration of these Acts of Parliament that they only concern the case of Leasing-making tending to Sedition and to beget Discord betwixt His Majesty and His Subjects and the dislike of His Majesties Government and the reproach of the same And the said Laws and Acts of Parliament were never understood or libelled upon in any other Sense And all the former Acts of Parliament which relate to the crime of Leasing-making in general terms and under the qualification foresaid as tending to beget discord betwixt His Majesty and his Subjects are explained and fully declared as to what is the true meaning and import thereof by the 134th Act Par. 8. James 6. which relates to the same Crime of Leasing-making and which is expresly described in these terms To be wicked and licentious publik and private Speeches and untrue Calumnies to the disdain and contempt of His Majesties Council and Proceedings and to the dishonour and prejudice of his Highness and his Estate stirring up his Highness's Subjects to misliking and Sedition and unquietness which being the true sense and import of the Acts of Parliament made against Leasing-makers there is nothing can be inferred from the Pannel's alledged Explicâ—tion which can be wrested or construed to be a Contravention of these Laws In respect First It is known by the whole tenor of his Life and graciously acknowledged by His Sacred Majesty by a Letter under His Royal Hand that the Pannel did ever most zealously vigotously and faithfully promote and carry on His Majesties Service and Interest even in the worst and most difficult times Which is also ackowledged by a Pals under the Earl of Middleton's hand who had then a special Commission from His Majesty for carrying on His Majesties Service in this Kingdom as Lieutenant General under His Majesty and by a Letter under the Earl's hand of the date both which do contain high expressions of the Pannels Loyalty and of the great Services he had performed for His Majesties Interest And His Majesty as being conscious thereof and perfectly knowing the Pannels Loyalty and his zeal and faithfulness for his Service did think fit to entrust the Pannel in Offices and Capacities of the greatest trust of the Kingdom And it is a just and rational presumption which all Law makes and infers That the words and expressions of persons who by the tenor and course of their Lives have expressed their Duty and Loyalty to His Majesties Interest
use of Times and Places and Companies of another nature on whom their suggestions and insinuations may prevail But it is a violence to the common Reason of mankind to pretend that a person of the Pannel's Quality having the honour to serve His Majesty in most eminent Capacities and devoted to His Majesties Interest and Service beyond the strictest ties of Duty and Allegiance by the transcendent Favours he had received that the Pannel in those Circumstances and in presence of his Royal Highness and Lords of Privy-Council should design to declame and de facto declame against and defame His Majesties Government To suppose this is absolutely contradictory to the common Principles and Practices of Law and common Topiks of Reason And as to Balmerino's Case it is answered That the Lords of Justitiary are humbly desired to call for and peruse the said Petition and Books of Adjournal which was certainly a defamatory Libel of His Majesties Father of blessed Memory and of the States of Parliament in the highest degree bearing expresly that there was nothing designed but an innovation of the Protestant Religion and the subversion and over-turning the Liberties and Priviledges of the Parliament and the Constitutions of the Articles and other things of that kind which made certainly of it self a most villanous and execrable Libel containing the highest Crimes of Treason and Perduellion and was not capable of any good sense or interpretation but was absolutely pernicious and destructive So that it is in vain to pretend that the said Libel did contain Prefaces and Protestations of Loyalty which no Law regards even in simplici injuria maledicto tho committed by a private person cum praefatione salvo honore or the like and which were certainly ridiculous to sustain in a Libel concerning Crimes of Treason And whereas it is pretended That tho others were guilty of these Crimes it does not excuse the Earl and that the Lords of Privy-Council cannot remit Crimes and the negligence of the Kings Officers cannot prejudg his Interest It is answered The Pannel is very confident that neither the Lords of His Majesties Privy-Council consisting of persons of eminent Loyalty and Judgment nor His Majesties Officers were capable of any such escape as is pretended and if the tenor of the Pannels Explication did in the least import the high and infamous Crimes libelled as beyond all peradventure it does not it were strange how the same being contained in the foresaid vindication and the whole Clauses thereof justified that this should have been looked on as no Crime and allowed to be published And the Pannel neither does nor needs to make farther use thereof but to convince all dis-interested persons that his Explication can import no Crime And whereas it is pretended That the Crime of Treason is inferred from the fundamental Laws of the Kingdom and from that Clause of the Pannel's Explication wherereby he declares he is not bound up by any thing in this Oath not to endeavour any alteration in a lawful way which being an indefinite Proposition is equipollent to an univetsal and is upon the matter coincident with a Clause which was rebellious in its consequences contained in the Solemn League and Covenant It is answered That it is strange how such a plain and innocent Clause whereby beyond all question he does express no more than was naturally imported in the Oath it self whether exprest or not should be made a foundation to import the Crime of Treason which no Lawyer ever allowed except where it was founded upon express Law Luce Meridiana Clariâ—r And indeed if such stretches and inferences can make men guilty of Treason no man can be secure And the words in the Pannel's Declaration are plain and clear yet non sunt cavillanda and import no more but that in his station and in a lawful way and consistent with the Protestant Religion and his Loyalty he might endeavour any alteration to the advantage of Church and State And was there ever any loyal or rational Subject that does or can doubt that this is the natural import of the Oath And indeed it were a strange Oath if it were capable of another sense and being designed for the security of the Government should bind up mens hands to concur for its advantage And how was it possible that the Pannel or any other in the capacity of a Privy-Councellor or a Member of the Parliament would have satisfied his Duty and Allegiance in other terms And whereas it is pretended that there was the like case in the pretended League and Covenant it is answered The Assertion is evidently a Mistake and tho it were the Argument is altogether inconsequential For that League and Covenant was treasonable in it self as being a Combination entered into without His Majesties Authority and was treasonable in the glosses that were put upon it and was imposed by absolute violence on the Subjects of this Kingdom And how can the Pannel be in the least supposed to have had any respect to the said League and Covenant when he had so often taken the Declaration disowning and renouncing it as an unlawful and sinful Oath and concurred in the many excellent Laws and Acts of Parliament made by His Majesty condemning the same as seditious and treasonable And whereas it is pretended That the Pannel is guilty of Perjury having taken the Oath in another sense than was consistent with the genuine sense of the Parliament and that by the Authority cited he doth commento eludere Iuramentum which ought always to be taken in the sense of him that imposeth the Oath It is answered The Pretence is most groundless and Perjury never was nor can be inferred but by the commission or omission of something directly contrary to the Oath And altho it it is true That where an Oath is taken without any Declaration of the express sense of the persons who take it it obliges sub poena Perjurii in the sense not of the taker but of the imposer of the Oath because expressing no Sense Law and Reason presumes there is a full acquiescence in the sense and meaning of the imposer of the Oath and then if an Oath be not so taken he that takes it is guilty of Perjury Yet there was never Lawyer nor Divine Popish or Protestant but agree in this That whatever be the tenor of the Oath if before the taking thereof the party in express terms does publikly openly declare the sense in which he takes it it is impossible it can infer the Crime of Perjury against him in any other sense this not being Commentum excogitatum after the taking of the Oath And if this were not so how is it possible in Sense and Reason that ever any Explication or Sense could solve the Scruples of a mans Conscience For it might be always pretended That notwithstanding of the express sense wherein he took it he should be guilty of Perjury from another sense And that this is
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
and when his Highness was told it was hard measure by such a process and on such pretensions to thereaten life and fortune his Highness said life and fortune God forbid What happened after these things and how the processe was carried on followes now in order and for your more clear and distinct information I have sent you several very necessary and useful papers with indexes on the margin pointing at such passages as more remarkably concern this affair And the papers are I. Act Char. 2. P. 3. C. 6 Aug. 31. 1681. Anent Religion and the Test. II. Act I. 6. P. 1. C. 3. Anno 1567. Anent the annulling of the Acts of Parliament made against God's Word and for maintainance of Idolatry in any times by past III. Act I. 6. P. 1. C. 4. Anno 1567. The Confession of the Faith and Doctrine c. IV. Act I. 6. P. 1 C. 8. Anno 1567. Anent the Kings Oath to be given at his Coronation V. Act I 6. P. 1. C. 9. No Person may be judge Procurator Notar nor member of Court who professeth not the Religion c. VI. Part of the Act I. 6. P. 2. C. 5. Anno 1609. entituled Act against Jesuits seminary Priests sayers or hearers of Messe Papists and receptors of them VII Act I 6. P 3. C. 47. Anno 1572. Adversaries of the true Religion are not Subjects to the King Of Apostats VIII Act Char. 2. P. 2. C 1. 16 Nov. 1669. Act asserting his Majesties Supremacy over all persons and in all causes ecclesiastical IX The Bishop of Aberdeens explication of the Test. X. The explication of the Test by the Synod and Clergie of Perth XI Paraphrase on the Test XII Grounds wherupon some of the conform Ministers scruple to take the Test. XIII Sederunt of the Council 22. September 1681. XIV The Earl of Queensberries explanation XV. Sederunt 21 October 1681. XVI The Bishop of Edinburgh's paper and vindication of the Test. XVII Sederunt 3 November 1681. XVIII Privy Councils explanation XIX Sederunt 4. Nov. 1681. XX. The Earl of Argyl's explication of the Test. XXI The explanation of his explication XXII The Councils Letter to the King XXIII The Kings Answer XXIV The inditement XXV Abstract of the Acts of Parliament whereupon the inditment is founded XXVI The Earl of Argyl's first Petition for Advocats XXVII The Councils Answer XXVIII The Earl of Argyl's second Petition XXIX The Councils Answer XXX The Earl of Argyl's Letter of Atturney XXXI Instrument thereon XXXII Opinion of Lawyers of the Earl's Case Which Papers may give you much light in this whole matter Anâ— ACT For securing the Protestant Religion and enjoyning a Test. OUR Soveraign Lord with his Estates of Parliament considering That albeit by many good and wholsom Laws made by his Royal Grandfather and Father of glorious Memory and by himself in this and the other Parliaments since his happy restauration The Protestant Religion is carefully asserted established and secured against Popery and Fanaticisme yet the restless Adversaries of our Religion do not cease to propagate their errors and to seduce His Majesties Subjects from their duty to God and loyalty to his Vicegerent and to overturn the established Religion by introducing their superstitions and delusions into this Church and Kingdom And knowing that nothing can more encrease the numbers and confidence of Papists and Schismatical Dissenters from the established Church then the supine neglect of putting in execution the good Laws provided against them together with their hopes to insinuate themselves into Offices and places of trust and publick employment Therefore His Majesty from his Princely and pious Zeal to maintain and preserve the true Protestant Religion contained in the Confession of Faith recorded in the first Parliament of King James the VI. which is founded on and agreeable to the written word of God Doeth with advice and consent of his Estates of Parliament require and command all his Officers Judges and Magistrates to put the Laws made against Popery and Papists Priests Jesuits and all persons of any other Order in the Popish Church especially against all sayers and hearers of Messe venters and dispensers of forbidden books and resetters of popish Priests and excommunicat Papists as also against all fanitical Separatists from this National Church against Preachers at house or field Conventicles and the resetters and harbourers of preachers who are intercommuned against disorderly Baptisms and Marriages and irregular Ordinations and all other schismatical disorders to full and vigorous execution according to the tenor of the respective Acts of Parliament thereanent provided And that His Majesties Princely Care to have these Laws put in execution against these enemies of the Protestant Religion may the more clearly appear He doth with aduice and consent foresaid statute and ordain that the Ministers of each Parish give up in October yearly to their respective Ordinaries true and compleat Lists of all Papists and schismatical with-drawers from the publick worship in their respective Parishes which Lists are to be subscribed by them and that the Bishops give in a double of the said Lists subscribed by them to the respective Sheriffs Steuards Bayliffs of Royalty and Regality and Magistrates of Burghs to the effect the said Judges may proceed against them according to Law As also the Sheriffs and other Magistrats foresaid are hereby ordained to give an accompt to His Majesties Privy Council in December yearly of their prooceedings against those Papists and fanatical separatists as they will be answerable at their highest peril And that the diligence done by the Sheriffs Baylies of Regalities and other Magistrates foresaid may be the better enquired into by the Council the Bishops of the respective Diocesses are to send exact doubles of the Lists of the Papists and Fanatiks to the Clerk of the Privy Council whereby the diligence of the Sheriffs and other Iudges of Courts may be comptrolled and examined And to cut off all hopes from Papists and Fanatiks of their being imployed in Offices and Places of publick trust It is hereby statute and ordained That the following Oath shall be taken by all persons in Offices and Places of publick trust Civil Ecclesiastical and Military especially by all Members of Parliament and all Electors of Members of Parliament all Privy-Councellors Lords of Session Members of the Exchequer Lords of Justitiary and all other Members of these Courts all Officers of the Crown and State all Archbishops and Bishops and all Preachers and Ministers of the Gospel whatsoever all persons of this Kingdom named or to be named Commissioners of the Borders all Members of the Commission for Church affaires all Sheriffs Steuards Baylies of of Royalties and Regalities Iustices of Peace Officers of the Mint Commisaries and their Deputies their Clerks and Fiscals all Advocats and Procurators before any of these Courts all Writers to the Signet all publick Notars and other persons imployed in writing and agenting The Lyon King at arms Heraulds Pursevants Messengers at
of new in this present Parliament statutes and ordains the said Act to be as a perpetual Law to all our Soveraigne Lords leiges in all times coming Of the quhilk the tenour followes The quhilk day for sameâ—â—le as there has been divers and sundrie Acts of Parliament made in King James the I. II. III. IV. and V's times Kings of Scotland for the time and also in our soveraigne Ladies time not agreeing with Gods holy Word and by them divers persons take occasion to maintaine Idolatrie and Superstition within the Kirk of God and repâ—esse such persons as were professors of the said Word wherethrow divers innocents did suffer And for escheving such inconveniences in time coming the three Estates of Parliament has annulled and declared all such Acts made in tymes bypast not agreeing with God His Word and now contrary to the Confession of Faith according to the said Word published in this Parliament to be of none availe force nor effect And decerns the said Acts and every ane of them to have no effect nor strength in time to come But the same to be abolished and extinguished for ever in so far as any of the foresaid Acts are repugnant and contrary to the Confession of Faith and Word of God foresaid ratified and approved by the Estates in this present Parliament And therefore decerns and ordains the Contraveeners of the famine Act in any time hereafter to be punished according to the Lawes Of the Quhilk Confession of the Faith the â—â—nour follows THE Confession of the Faith and Doctrine Believed and professed by the Protestants of Scotland exhibited to the Estates of the same in Parliament and by their publick Vots authorized as a Doctrine grounded upon the infallible Word of God As the same Confession stands recorded Ja. 6. p. 1. c 4. Anno 1567. I. Of God WE confesse and acknowledge ane onely God to whom onely we must cleave whom onely we must serve whom only we must worship and in whom onely we must put our trust who is Eternal Infinit Unmeasurable Incomprehensible Omnipotent Invisible ane in substance and yet distinct in three Persons the Father the Sonne and the holie Ghost By whom we confesse and believe all things in heaven and earth aswel Visible as Invisible to have been created to be retained in their being and to be ruled and guided by his inscrutable Providence to sik end as his Eternal Wisdome Goodness and Justice has appointed them to the manifestation of his own glorie II. Of the Creation of Man WE confess and acknowledge this our God to have created man to wit our first father Adam in his own Image and similitude to whom he gave Wisedome Lordship Iustice Free will and clear knowledge of himself so that in the hail nature of man there could be noted no imperfection Fra quhilk honour and perfection Man and Woman did both fall the Woman being deceived be the Serpent and Man obeying the voyce of the Woman both conspiring against the Soveraign Majestie of God who in expresse words had before threatned death if they presumed to eat of the forbidden Tree III. Of Original Sinne. BE quhilk transgression commonlie called Original Sinne was the image of God utterlie defaced in Man and he and his posteritie of nature became enemies to God slaves to Sathan and servants unto sin in samiekle that death everlasting has had and shall have power and dominion over all that have not been are not or shall not be regenerated from above quhilk regeneration is wrought by the power of the holie Ghost working in the hearts of the elect of God ane assured faith in the promise of God revealed to us in his word be quilk Faith we apprehend Christ Jesus with the graces and benefits promised in him IV. Of the Revelation of the Promise FOR this we constantlie believe that God after the fearful and horrible defection of man fra his obedience did seek Adam again call upon him rebuke his sin convict him of the same and in the end made unto him ane most joyful promise to wit that the seed of the woman should break down the serpents head that is he should destroy the works of the Devil quhilk promise as it was repeated and made mair cleare from time to time so was it embraced with joy and maist constantly received of all the faithful from Adam to Noah from Noah to Abraham from Abraham to David and so forth to the incarnation of Christ Jesus all we mean the faithful fathers under the law did see the joyful day of Christ Jesus and did rejoyce V. Of The continuance increase and preservation of the Kirk WE maist constantly believe that God preserved instructed multiplyed honoured decored and from death called to life his Kiâ—k in all ages fra Adam till the coming of Christ Jesus in the flesh For Abraham he called from his fathers countrey him he instructed his seedhe multiplyed the same he marvelously preserved and mair marvelously delivered from the bondage and tyranny of Pharaoh to them he gave his Laws constitutions and ceremonies them he possessed in the Land of Canaan to them after Iudges and after Saul he gave David to be King to whom he made promise that of the fruit of his Ioynes should ane sit for ever upon his regnall seat To this same people from time to time he sent Prophets to reduce them to the right way of their God from the quhilk oftentimes they declined by Idolatry and albeit that for their stubborn contempt of justice he was compelled to give them into the hands of their enemies as before was threatned by the mouth of Moses in sameikle that the hally City was destroyed the temple burnt with fire and the haile land left desolate the space of lxx years yet of mercy did he reduce them again to Jerusalem where the City and Temple were reedified and they against all temptations and assaults of Sathan did abide till the Messias came according to the promise VI. Of the Incarnation of Christ Jesus WHEN the fulness of time came God sent his Son his eternal wisdome the substance of his own glory into this World who took the nature of man-head of the substance of woman to wit of a virgin and that by operation of the Holy Ghost and so was born the just seed of â—avid the Angel of thâ— great counsell of God the very Messias promised whom we confess and acknowledge Emmanuel very God and very man two perfect natures united and joyned in one person By quhilk our Confession we condemn the damnable and pestilent herefies of Arrius Marchion Eutiches Nestâ—rius and sik others as either did deny the eternity of his God-head or the verity of his human nature or confounded them or yet divided them VII Why it behoved the Mediator to be very God and very man WE acknowledge and confess that this maist wonderous conjunction betwixt the God-head and the man-head in Christ Jesus did proceed from the
we consess that we make a distinction betwixt Christ Iesus in his Eternal substance and betwixt the Elements in the sacramental signs so that we will neither worship the signs in the place of that which is signified by them neither yet do we despise and interpret them as junprofitable and vain but do use them with all reverence examining our selves diligently before that so we do because we are assured by the mouth of the Apostle that such as eat of that Bread and drink of that Cup unworthily are guilty of the Body and Blood of Christ Iesus XXII Of the right Administration of the Sacraments THAT Sacraments be rightly ministred we judge two things requisite the one that they be ministred by lawful Ministers whom we affirm to be only these that are appointed to the preaching of the word into whose mouths God has put some sermon of Exhortation they being men lawfully chosen thereto by some Kirk The other that they be ministred in such Elements and in such sort as God has appointed else we affirm that they cease to be the right Sacraments of Christ Jesus And therefore it is that we fly the Doctrine of the Papistical Kirk in participation of their Sacraments First because their Ministers are no Ministers of Christ Jesus yea which is more horrible they suffer Women whom the Holy Ghost will not suffer to teach in the Congregation to Baptize And secondly because they have so adulterated both the one Sacrament and the other with their own inventions that no part of Christs Action abides in the original purity For Oyl Salt Spitle and such like in Baptism are but mens inventions Adoration Veneration bearing throw Streets and Towns and keeping of bread in boxes are Prophanation of Christs Sacraments and no use of the same For Christ Jesus said Take eat c. do ye this in rememberance of me By which words and charge he sanctified Bread and Wine to the Sacrament of his Holy Body and Blood to the end that the one should be eaten and that all should drink of the other and not that they should be keeped to be worshipped and honoured as God as the Papists have done heretofore who also commited Sacriledg stealing from the people the one part of the Sacrament to wit the blessed Cup. Moreover that the Sacraments be rightly used it is required that the end and cause why the Sacraments were institute be understood and observed as well of the Ministers as the Receivers For if the opinion be changed in the Receiver the right use ceases which is most evident by the rejection of the Sacrifice as also if the Teacher plainly teach false Doctrines which were odious and abominable before God albeit they were his own Ordinance because that wicked men use them to another end than God has ordained The same affirm we of the Sacraments in the Papistical Kirk in which we affirm the whole action of the Lord Iesus to be adulterated as well in the external form as in the end and opinion What Christ Iesus did and commanded to be done is evident by the Evangelists and by Saint Paul What the Priest does at his Altar we need not to rehearse The end and cause of Christs institution and why the selfsame should be used is expressed in these words Do ye this in rememberance of me as oft as ye shall eat of this bread and drink of this cup ye shall shew forth that is extol preach magnifie and praise the Lords death till he come But to what end and in what opinion the Priests say their Mass let the words of the same their own Doctors and Writings witness to wit that they as Mediators betwixt Christ and his Kirk do offer unto God the Father a Sacrifice propitiatory for the sins of the quick and the dead Which Doctrine as blasphemous to Christ Jesus and making derogation to the sufficiency of his only sacrifice once oftered for Purgation of all these that shall be sanctified we utterly abhor detest and renounce XXIII To whom Sacraments appertain WE confess and acknowledg that Baptism appertains as well to the Infants of the faithful as unto them that be of age and discretion and so we damn the error of the Anabaptists who deny Baptism to appertain to children before that they have Faith and Understanding but the Supper of the Lord we confess to appertain to such only as be of the houshold of Faith and can try and examine themselves as well in their Faith as in their duty towards their Neighbours Such as eat and drink at that holy Table without Faith or being at dissension and division with their brethren do eat unworthily And therefore it is that in our Kirk our Ministers take publick and particular examination of the knowledg and conversation of such as are to be admitted to the Table of the Lord Jesus XXIV Of the Civil Magistrate WE confess and acknowledg Empires Kingdoms Dominions and Cities to be distincted and ordained by God the powers and authority in the same be it of Emperors in their Empires of Kings in their Realms Dukes and Princes in their Dominions and of other Magistrates in the Cities to be Gods holy Ordinance ordained for manifestation of his own Glory and for the singular profit and commodity of Mankind So that whosoever goeth about to take away or to confound the whole state of Civil Policies now long established we affirm the same men not only to be enemies to mankind but also wickedly to fight against God's express will We farther confess and acknowledg that such persons as are placed in Authority are to be loved honoured feared and holden in most reverent estimation because that they are the Lieutenants of God in whose Sessions God himself does sit and judg yea even the Iudges and Princes themselves to whom by God is given the sword to the praise and defence of good men and to revenge and punish all open malefactors Moreover to Kings Princes Rulers and Magistrates we affirm that chiefly and most principally the conservation and purgation of the Religion appertains so that not only they are appointed for Civil Policy but also for maintenance of the true Religion and for suppressing of Idolatry and Superstition whatsoever as in David Iehosaphat Ezechias Iâ—sias and others highly commended for their zeal in that case may be espied And therefore we confess and avow that such as resist the supreme Power doing that thing which appertains to his charge do resist Gods Ordinance and therefore cannot be guiltless And farther we affirm that whosoever denies unto them their aid counsel and comfort whist the Princes and Rulers vigilantly travel in execution of their Office that the same men deny their help support and counsel to God who by the presence of his Lieutenant does crave it of them XXV Of the gifts freely given to the Kirk ALbeit the word of God truly preached and the Sacraments rightly ministred and Discipline executed according to the
word of God be the certain and infallible signs of the true Kirk we mean not that every particular person joyned with such company be an elect member of Christ iesus For we acknowledg and confess that dornel cockle and chaff may be sown grow and in great abundancely in the midst of the wheat that is the Reprobate may be joyned in the society of the Elect and may externally use with them the benefits of the word and Sacraments But such being but temporal professors in mouth but not in heart do fall back and continue not to the end And therefore have they no fruit of Christs Death Resurrection nor Ascension but such as with heart unfeignedly believe with mouth boldly confess the Lord Iesus as before we have said shall most assuredly receive these gifts First In this life remission of sins and that by only Faith in Christs blood in so much that albeit sin remains and continually abides in these our mortal bodies yet it is not imputed unto us but is remitted and covered with Christs Justice Secondly in the general Judgment there shall be given to everyman and woman resurrection of the flesh for the Sea shall give her dead the Earth these that therein be inclosed yea the Eternal God shall stretch out his hand on the dust and the dead shall arise uncorruptible and that in the substance of the self-same flesh that every man now bears to receive according to their works glory or punishment For such as now delight in vanity cruelty filthiness superstition or idolatry shall be adjudged to the fire unquenchable in which they shall be tormented for ever as well in their bodies as in their souls which now they give to serve the Devil in all abomination But such as continue in well-doing to the end boldly professing the Lord Jesus we constantly believe that they shall receive glory honour and immortality to reign for ever in life everlasting with Christ Iesus to whose glorified body all his Elect shall be made like when he shall appear again in Iudgment shall render up the Kingdom to God his Father who then shall be and ever shall remain in all things God blessed for ever To whom with the Son and with the Holy Ghost se all honour and glory now and ever So be it Arise O Lord and let thine enemies be confounded let them flee from thy presence that hate thy godly Name Give thy Servants strength to speak thy VVord in boldnessâ— and let all Nations cleave to thy true Knowledge Amen Thir Acts and Articles were read in the face of Parliament and ratified by the three Estates at Edinburgh the 17. day of August the year of God 1560. years Act I. 6. P. 1. C. 8. Anno 1567. Anent the Kings Aith to be given at His Coronation ITem Because that the increase of vertue suppressing of Idolatrie craves that the Prince and the People be of ane perfite Religion quhilk of Gods mercie is now presently professed within this Realm Therefore it is statute and ordained be our Soveraign Lord my Lord Regent and the three Estates of this present Parliament that all Kings and Princes or Magistrats whatsoever holding their place quhilk hereafter in any time sall happen to reigne and bear rule over this realm at the time of their Coronation and receipt of their Princely Authoritie make their faithfull promise be aith in presence of the eternal God that during the haill course of their lives they sall serve the samin eternall God to the uttermost of their power according as he hes required in his maist haly Word revieled and contained in the new and auld Testaments And according to the samin word sall maintaine the trew Religion of Christ Iesus the preaching of his halie word and due and right ministration of the Sacraments now received and preached within this realme And sall abolish and gainstand all false Religion contrare to the samin And sall rule the people committed to their charge according to the will and command of God revealed in his foresaid Word and according to the laudable Lawes and Constitutions received in this realme nawise repugnant to the said Word of the eternal God And sall procure to the uttermaist of their power to the Kirk of God and haill Christian people trew and perfite peace in all time cumming The Rights and rents with all just Priviledges of the Croun of Scotland to preserve and keep inviolated nouther sall they transfer nor alienate the samin They sall forbid and represse in all estates and degrees reife oppression and all kinde of wrang In all judgements they sall command and procure that justice and equitie de keeped to all creatures without exception as the Lord and father of all mercies be mereyful to them And out of their Lands and Empyre they sall be carefull to root out all heretikes and enemies to the trew worship of God that shall be convict be the trew Kirk of God of the foresaid crymes And that they fall faithfullie affirme the things above written be their solemn aith Act. J. 6. P. 1. C. 9. Anno 1567. No person may be judge Procurator Notar nor Member of Court quha professis not the Religion ITem The Kings grace with advice of my Lord Regent and the three Estates of this present Parliament statutes and ordains That no manner of person nor persons be received in any times hereafter to bear publick office removabill of judgment within this Realm but sik as profess the puritie of Religion and Doctrine now presently established And that nane be permitted to procure nor admitted Notar or created a Mâ—mber of Court in any time coming without he in likewise professe the Evangel and Religion foresaid Providing alwayes that this Act be on no wise extended to any manner of person or persons havand their offices heritable or in life-rent but that they may use the samin conforme to their infeftments and dispositions granted to them thereof Which Act was thereafter Anno 1609. explained and extended in this manner Part of the Act I. 6. P. 2. C. 5. Anno 1609. intituled c. AND that the Act made in His Highness first Parliament bearing that nane that professe not the true Religion presently professed within this Realm may be judge Procurator or Member of Court be extended to all and whatsomever offices without any exception or restriction in all time coming Act. J. 6. P. 3. C. 47. Anno 1572. Adversaries of the true Religion are not Subjects of the King Of Apostats ITem Forsameikle as there hes been great rebellion and disobedience against our Soveraign Lords authoritie in time bypast and seeing the cause of Gods true Religion and His Highness authoritie foresaid are so joyned as the hurt of the ane is common to baith It is therefore declared statute and ordained by our Soveraign Lord with advice and consent of his Regents grace with the three Estates and hail bodie of this present Parliament That
God Subjects may take up Arms against him 2. They maintain That nothing is to be allowed in the worship of God but what is prescribed in his Word Were not these the Principles that embroiled these Kingdoms that raised a Combustion and that turned all things upside down both in Church and State And are not these Principles plainly taught in this Confession It is reckoned Art 15 a duty to repress Tyranny and to disobey and resist Kings is a sin with this caution and limitation while they pass not over the bounds of their Office or do that thing which appertains to their charge And in like manner the assistance we ow them is cautioned and limited while they vigilantly travel in the execution of their Office Is not this the very Doctrine of the Solemn League and Covenant by which they bind themselves to defend the Kings Majesty's Person and Authority in the preservation and defence of the true Religion and Liberties of the Kingdom Let any but read Spotswood's History of the Resormation Anno 1558 1559 1560. among others how Subjects did bind themselves by Oaths and Subscriptions to assist one another for advancing the Cause of Religion how by the advice of the Ministers they deprived the Queen Regent of her Government and this very year this Confession was compiled and ratified in Parliament And I am sure there can remain no doubt about the sense of the Confession in this point But to render the matter beyond exception It is declared rebellious and treasonable by Act of Parliament for Subjects to put limitations on their due obedience and allegiance And for the other Principles about Divine Worship the Confession affirms these to be evil works that in matters of Religion and Worship of God have no other assurance but the invention and opinion men In this principle they condemn very Ancient and laudable Customs of Churches as singing the Doxology and the most innocent and indifferent Ceremonies for decency and helps for Devotion calling them by the odious titles of Superstition and Will-worship But be these Principles true or false in themselves certainly they are utterly inconsistent with these other clauses in the Test that assert it unlawful on any pretence whatsoever to take Arms against the King and invest him with such a Supremacy as impowers him to erect such Constitutions and orders about Ecclesiastical matters as His Majesty thinks fit And in this also there is a palpable Contradiction that the Test binds us not to consent to any change contrary to the Confession and by and by enjoyns to swear what is flatly contradictory to it We cannot take this Test unless with the same breath we swear and forswear under Oath protest onething and forthwith under Oath protest the quite contrary It obliges us to swear we shall with our utmost power defend assist and maintain all the Kings Rights And is not this to swear we know not what or is it not to swear we shall maintain and defend with the greatest zeal and concernedness whatsoever the King challenges or the Parliament votes to belong to him And may not a Prince come to claim a Right to act Arbitrarily and may not iniquity happen to be established by Law Nay doth not the King de facto challenge and has not the Parliament declared Supremacy to be an inherent Right of the Crown by which His Majesty may settle and emit such Acts and Orders as he pleases about Ecclesiastical matters And are not Articles of Faith Ecclesiastical maters And what is this but to avow we hold our selves obliged to believe as the King believes And so ere long the Rights Jurisdictions Prerogatives Priviledges Preeminences and Authorities that may be v ted to belong to our Prince may come to swallow up Religion Liberty Property and all our Priviledges We do not see how any man of Sense and Conscience can swear this clause in so great a Latitude and so illimited Terms It obliges us to swear That we acknowledg it unlawful without the Kings special Command to convocate conveen or assemble in any Council Convention or Assembly to treat consult or determine in any matter of State Civil or Ecclesiastik The clause excepting ordinary judgments which was added in all such convocating conveening and assembling which were declared unlawful Anno 1661. 1. Par. Char. 2. Act 21. being left out here we have reason to think that all such Sessions Presbyteries and Synods are discharged there being no special Command or Express for them that we know of And these meetings being of great use for curbing of Vice and Prophanesse and for setling and entertaining Peace and good Order in the Church we cannot swear to forbear holding of them tho we have not an express License from the King We acknowledg Princes have Power and Authority to inhibit their Subjects to meet as they see cause but we cannot bind our selves to obey them against such liberty which Christ hath conferred on his Church This is a Priviledg the Church ever enjoyed since it was founded and erected by our Saviour and in all Ages used as the state of affairs required So we cannot devoid our selves of it without proving betrayers of our Trust and condemning the conduct of the Primitive Christians who without special command nay contrary to the express Edict of Princes did convocate conveen or assemble in Councils and Conventions to treat consult and determine about Ecclesiastical matters and yet for all that have been no less commended and admired for loyalty and peaceableness than for piety and zeal And seeing that in the present juncture its notour that there are Cabals and Engines formed and carried on to undermine the Protestant Religion and to bereave us of the Truth which our Lord has committed to us as so many Depositaries Can we without the most horrid guilt and the blackest infamy swear That we shall not so much as meet Two or Three of us together till we have the Kings Warrant perhaps never to consult about the Welfare of the Church and the Salvation of our own and other Mens Souls It obliges us to swear there is no obligation on us any manner of way whatsoever to endeavour any change or alteration in the Government either in Church or State Is not this to swear what no man living can assuredly know And are there not indeed many tyes on us as Men as Christians as Pastors to procure as far as in us lyes the happiness of the Church and State Now if we discern and it be acknowledged by wise and good men that the Government may be bettered by enacting wholsome new Laws and abrogating corrupt old ones might we not ought we not in our stations endeavour such an alteration The Constitution of a National Synod e. g. gives the Archbishop of St. Andrew's a Negative when the whole Clergy is contrary so that were all our Bishops and other Members of the Synod men of Apostolick sanctity and zeal yet nothing could be done
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
lawful for you to make to your self an Act of Parliament since he who can make any part of an Act may make the whole the Power and Authority in both being the same Of the which Crimes above-mentioned you the said Archibald Earl of Argyle are Actor Art and Part which being found by the Assize you ought to be punished with the pains of Death for faulture and escheat of Lands and Goods to the terror of others to commit the like hereafter An Abstract of the several Acts of Parliament upon which the Indictment against the Earl of Argyle was grounded Concerning Raisers of Rumors betwixt the King and his People Chap 20. 1. Statutes of King Robert 1. IT is defended and forbidden That no man be a Conspirator or Inventer of Narrations or Rumors by the which occasion of discord may arise betwixt the King and his People And if any such man shall be found and attainted thereof incontinent he shall be taken and put in Prison and there shall be surely keeped up ay and while the King declare his will anent him Act 43. of Par. 2. King James 1. March 11. 1424. Leasing-makers for fault Life and Goods Item it is ordained by the King and whole Parliament that all Leasing makers and tellers of them which may engender discord betwixt the King and his People wherever they may be gotten shall be challenged by them that power has and tyne Life and Goods to the King Act 83. Par 6. James 5. Dec. 10. 1540. Of Leasing-makers ITem Touching the Article of Leasing-makers to the Kings Grace of his Barons Great-men and Leidges and for punishment to be put to them therefore the Kings Grace with advice of his three Estates ratifies and approves the Acts and Statutes made thereupon before and ordains the same to be put in execution in all Points and also Statutes and ordains That if any manner of person makes any evil Information of his Highness to his Barons and Leidges that they shall be punished in such manner and by the same punishment as they that make Leasings to his Grace of his Lords Barons and Leidges Act 134. Par. 8 James 6. May 22. 1584. Anent Slandereres of the King his Progenitors Estate and Realm FOrasmuch as it is understood to our Soveraign Lord and his Three Estates assembled in this present Parliament what great harm and inconveniency has fallen in this Realm chiefly since the beginning of the Civil Troubles occurred in the time of His Highness minority through the wicked and licentious publik and private speeches and untrue Calumnies of divers of his Subjects to the disdain contempt and reproach of His Majesty his Council and Proceedings and to the dishonour and prejudice of His Highness his Parents Progenitors and Estate stirring up His Highness's Subjects thereby to misliking sedition unquietness and to cast off their due obedience to His Majesty to their evident peril tinsil and destruction His Highness continuing always in love and clemency toward all his good Subjects and most willing to seek the safety and preservation of them all which wilfully needlesly and upon plain malice after His Highness's mercy and pardon oft-times afore granted has procured themselves by their treasonable deeds to be cut off as corrupt Members of this Commonwealth Therefore it is statut and ordained by our Soveraign Lord and his Three Estates in this present Parliament that none of his Subjects of whatsoever Function Degree or Quality in time coming shall presume or take upon hand privately or publikly in Sermons Declamations and familiar Conferences to utter any false slanderous or untrue speeches to the disdain reproach and contempt of His Majesty his Council and Proceedings or to the dishonour hurt or prejudice of His Highness his Parents and Progenitors or to meddle in the Affairs of His Highness and his Estate present by-gone and in time coming under the pains contained in the Acts of Parliament anent makers and tellers of Leesings certifying them that shall be tryed contraveeners thereof or that hear such slanderous speeches and reports not the same with diligence the said pain shall be executed against them with all rigour in example of others Act 205. Par. 14 King James 6. June 8. 1594. Anent Leasing-makers and Authors of Slanders OUr Soveraign Lord with advice of his Estates in this present Parliament ratifies approves and for His Highness and Successors perpetually confirms the Act made by his Noble Progenitors King James the First of Worthy Memory against Leasing-makers the Act made by King James the Second entituled Against Leasing-makers and tellers of them the Act made by King James the Fifth entituled Of Leasing-makers and the Act made by his Highness's self with advice of his Estates in Parliament upon the 22 day of May 1584. entituled For the punishment of the Authors of Slanders and untrue Calumnies against the Kings Majesty his Council and Proceedings to the dishonour and prejudice of His Highness his Parents Progenitors Crown and Estate as also the Act made in His Highness's Parliament holden at Linlithgow upon the 10 of December 1585. entituled Against the Authors of slanderous speeches or Writs and statutes and ordains all the said Acts to be published of new and to be put in execution in time coming with this addition That whoever hears the said Leasings Calumnies or slanderous Speeches or Writs to be made and apprehends not the Authors thereof if it lyes in his power and reveals not the same to His Highness or one of his Privy-Council or to the Sheriff Steward or Bayliff of the Shire Stewards in Regality or Royalty or to the Provost or any of the Bayliffs within Burgh by whom the same may come to the knowledg of his Highness or his said Privy-Council wherethrough the said Leasing-makers and Authors of slanderous Speeches may be called tryed and punished according to the said Acts The hearer and not apprehender if it lye in his power and concealer and not revealer of the said Leasing-makers and Authors of the said slanderous Speeches or Writs shall incur the like pain and punishment as the Principal Offender Act 107. Par. 7. King James 1. March 1. 1427. That none interpret the Kings Statutes wrongously ITem The King by deliverance of Council by manner of Statute forbids That no man interpret his Statutes otherwise than the Statutes bear and to the intent and effect that they were made for and as the maker of them understood and whoso does in the contrary shall be punished at the Kings will Act 10. Par 10. King James 6. Dec. 10. 1585. Authors of slanderous Speeches or Writs should be punished to the death IT is statuted and ordained by our Soveraign Lord and Three Estates That all his Highness's Subjects content themselves in quietness and dutiful obedience to his Highness and his Authority and that none of them presume or take upon hand publikly to declaim or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate
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
libelled does not at all import all or any of the Crimes contained in the said Libel so by the common Principles of all Law where a person does emit words for the clearing and exoneration of his own Conscience altho there were any ambiguity or unclearness or involvedness in the tenor or import of the expressions or words yet they are ever to be interpreted Interpretatione benigna favorab ili according to the general Principles of Law and Reason And it never was nor can be refused to any person to interpret and put a congruous sense upon his own words especially the Pannel being a person of eminent Quality and who hath given great demonstration and undeniable evidences of his fixt and unalterable Loyalty to His Majesties Interest and Service and at the time of emiting the said Explication was invested and entrusted in publik Capacites And it is a just and rational interpretation and caution which Sanderson that judicious and eminent Casuist gives Praelect 2. That dicta facta principum parentum rectorum are ever to be looked upon as benignae Interpretationis and that Dubia sunt interpretanda in meliorem partem And there is nothing in the Explication libelled which without detortion and violence and in the true sense and design of the Pannel is not capable of this benign Interpretation and construction especially respect being had to the Circumstances wherein it was emitted and given after a great many Objections Scruples and alledged Inconsistencies were owned vented and spread abroad which was a rise to the Earl for using the expressions contained in the pretended Declaration libelled 10. These words whereby it is pretended the Pannel declares he was ready to give obedience as far as he could first do not in the least import That the Parliament had imposed any Oath which was in it self unlawful but only the Pannel's scrupulosity and unclearness in matter of Conscience And it is hoped it cannot be a Crime because all men cannot go the same length And if any such thing were argued it might be argued ten times more strongly from a simple refusing of the Oath as if any thing were enjoyned which were so hard that it is not possible to comply with it And yet such Implications are most irrational and inconsequential and neither in the case of a simple and absolute refusing or the Oath nor in the case of an Explication of the parties sense wherein he is willing to take the Oath is there any impeachment of the Justice and prudence of the Legislator who imposeth this Oath but singly a declaration of the scrupulosity and weakness of the party why he cannot take the Oath in other terms and such Explications have been allowed by the Laws and Customs of all Nations and are advised by all Divines of whatsoever Principles for the solace and security of a Man's Conscience 2. As to that point of the Explication libelled That I am confident the Parliament never intended to impose contradictory Oaths it respects the former answer which considering the plain and down right Objections which were spread abroad and made against the Oath as containing inconsistencies and contradictions was an high Vindication of the Justice and Prudence of the Parliament 3. As to these words And therefore I think no body can explain it but for himself The plain and clear meaning is nothing else but that the Oath being imposed by Act of Parliament it was of no private interpretation And that therefore every man who was to take it behooved to take it in that sense which he apprehended to be the genuine sense of the Parliament And it is impossible without impugning common sense that any man could take it in any other sense it being as impossible to see with another mans eyes as to see with his private Reason And a mans own private sense and apprehension of the genuine sense was the only proper way wherein any man could rationally take the Oath And as to these words That he takes it as far as it is consistent with it self and the Protestant Religion The Pannel neither intended nor exprest more but that he did take it as a true Protestant and he hopes all men have taken it as such And as to that Clause Wherein the Pannel is made to declare That he does not bind up himself in his station in a lawful way to wish and endeavour any alteration he thinks to the advantage of Church or State not repugnant to the Protestant Religion and his Loyalty It is answered There is nothing in this expression that can import the least Crime or give the least umbrage for any Mistake For 1. It is most certain it is impossible to elicite any such thing from the Oath but that it was the intention of the Parliament That persons notwithstanding of the Oath might concur in their stations and in a lawful way in any Law to the advantage of Church and State And no rational man ever did or can take the Oath in other terms that being contrary to his Allegiance and Duty to His Sacred Majesty and Prince 2. There is nothing in the said Expression which does in the least point at any alteration in the Fundamentals of Government either in Church or State but on the contrary by the plain and clear words and meaning rather for its perpetuity stability and security The Expression being cautioned to the utmost scrupulosity as that it was to be done in a lawful manner that it was to be to the advantage of Church or State that it was to be consistent with the Protestant Religion and with his Loyalty which was no other but the duty and Loyalty of all faithful Subjects and which he has signally and eminently expressed upon all occasions So that how such an expression can be drawn to import all or any of the Crimes libelled passeth all Natural Understanding And as to the last words And this I understand as a part of my Oath which is libelled to be a treasonable Invasion and assuming of the Legislative Power It is answered It is most unwarrantable and a Parties declaring the sense and meaning in which he was free to take an Oath does not at all respect or invade the Legislative Power of which the Pannel never entertained a thought but has an absolute abhorrence and detestation of such practices But the plain and clear meaning is That the Sense and Explication was a part of his Oath and not of the Law imposing the Oath these being as distant as the Two Poles and which Sense was taken off the Earl's Hands and he accordingly was allowed to take his Place at the Council-Board and therefore repeats the former general Defences And to convince the Lords of Justitiary that there is nothing in the pretended Explication libelled which can be drawn to import any Crime even of the lowest size and degree and that there is no expression therein contained that can be detorted or wrested to import the same is
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 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
for reasons that you shall hear to stay till his Majesties return came to the Councils last Letter but taking his opportunity made his escape out of the Castle of Edinburgh upon tuesday the twentieth of December about eight at night and in a day or two after came his Majesties answer here subjoyned The Kings Answer to the Councils Letter 18 Decemb 1681. C. R. MOst dearly c. having this day received your Letter of the 14. instant giving an account that our Advocate having been ordered by you to insist in that Process raised at our instance against the Earl of Argyle he was after full debate and clear probation found guilty of Treason and Leasing making betwixt us our Parliament and our people and the reproaching our Laws and Acts of Parliament We have now thought fit notwithstanding of what was ordered by us in our Letter to you of the 15. of November last hereby to authorize you to grant a warrand to our Iustice General and the remanent Iudges of our Iustice Court for proceeding to pronounce a Sentence upon the Verdict of the Iury against the said Earl nevertheless it is our express pleasure and we do hereby require you to take care that all execution of the Sentence be stopped untill we shall think fit to declare our further pleasure in this affair For doing whereof c. Which answer being read in Council on the thursday and the Court of Iustitiary according to its last adjournment as shall be told you being to meet upon the fryday after a little hesitation in Council whether the Court of Iustitiary could proceed to the sentence of forfaulture against the Earl he being absent it was resolved in the affirmative And what were the grounds urged either of hesitation or resolution I cannot precisly say there being nothing on record that I can learn But that you may have a full and satisfying account I shall briefly tell you what was ordinarly discoursed a part whereof I also find in a petition given in by the Countess of Argyle to the Lords of Justitiary before pronouncing sentence but without any answer or effect It was then commonly said that by the old Law and custom the Court of Iustitiary could no more in the case of Treason then of any other Crime proceed further against a person not compearing and absent then to declare him Out-Law and Fugitive And that albeit it be singlar in the case of Treason that the trial may go on even to a final sentence tho the partie be absent yet such trials were only proper to alwayes reserved for Parliaments And that so it had been constantly observed untill after the Rebellion in the Year 1666 But there being severall persones Notourly engaged in that rebellion who had escaped and thereby withdrawn themselves from Justice it was thought that the want of a Parliament for the time ought not to afford them any immunity and therefore it was resolved by the Council with advice of the Lords of Session that the Court of Iustitiary should summond and proceed to trial and sentence against these absents whether they compeared or not and so it was done Only because the thing was new and indeed an innovation of the old custom to make all sure in the first Parliament held thereafter in the Year 1669 it was thought fit to confirm these proceedings of the Justitiary in that point and also to make a perpetual statut that in case of open Rebellion and Rising in armes against the King and Government the Treason in all time coming might by an order from his Majestie 's Council be tried and the actors proceeded against by the Lords of Iustitiary even to final sentence whether the traitours compeared or not This being then the present Law and custom it is apparent in the first place that the Earl's case not being that of an open Rebellion and Rising in Armes is not at all comprehended in the Act of Parliament So that it is without question that if in the beginning he had not entered himself prisoner but absented himself the Lords of Iustitiary could not have gone further then upon a citation to have declared him fugitive But others said that the Earl having both entered himself prisoner and compeared and after debate having been found guilty before he made his escape the case was much altered And whether the Court could notwithstanding of the Earl's interveening escape yet go on to sentence was still debatable for it was alledged for the affirmative that seeing the Earl had twice compeared and that after debate the Court had given judgment and the Assize returned their Verdict so that nothing remained but the pronouncing of sentence It was absurd to think that it should be in the power of the partie thus accused and found guilty by his escape to frustrate justice and withdraw himself from the punishment he deserved But on the other hand it was pleaded for the Eâ—rl That first It was a fundamental rule That until once the cause were concluded no sentence could be pronounced Nixt that it was a sure Maxime in Law that in Criminal Actions there neither is nor can be any other conclusion of the cause then the parties presence and silence So that after all that had past the Earl had still freedom to adde what he thought fit in his own defence before pronouncing sentence and therefore the Lords of Iustitiary could no more proceed to sentence against him being escaped then if he had been absent from the beginning the cause being in both cases equally not concluded and the principle of Law uniformly the same viz. that in criminals except in cases excepted no final sentence can be given in absence For as the Law in case of absence from the beginning doth hold that just temper as neither to suffer the contumacious to go altogether unpunished nor on the other hand finally to condemn a partie unheard And therefore doth only declare him fugitive and there stops So in the case of an escape before sentence where it cannot be said the partie was fully heard and the cause concluded the Law doth not distinguish nor can the parity of reason be refused Admitting then that the Cause was so far advanced against the Earl that he was found Guilty Yet 1. This is but a declaring of what the Law doth as plainly presume against the partie absent from the beginning and consequently of it self can operate no further 2ly The finding of a partie Guilty is no Conclusion of the cause And 3ly As it was never seen nor heard that a Partie was condemned in absence except in excepted cases whereof the Earl's is none so he having escaped and the Cause remaining thereby unconcluded the general rule did still hold and no sentence could be given against him It was also remembred that the dyets and dayes of the justice Court are peremptour and that in that case even in Civil â—ar more in Criminal Courts and Causes a Citation to hear
Sentence is constantly required which induced some to think that at least the Earl should have been lawfully cited to hear Sentence before it could be pronounced But it is like this course as confessing a difficulty and occasioning too long a delay was therefore not made use of However upon the whole it was the General Opinion that seeing the denouncing the Earl Fugitive would have wrought much more in Law then all that was commonly said at first to be designed against him And that his Case did appear every way so favourable that impartial men still wondered how it came to be at all questioned It had been better to have sisted the process with his escape and taken the ordinary course of Law without making any more stretches But as I have told you when the Fryday came the Lords of Iustitiary without any respect or answer given to the Petition above-mentioned given in by the Countess of Argyle to the Court for a stop pronounced Sentence first in the Court and then caused publish the same with all solemnity at the Mercat Cross of Edinburgh FOr as much as it is found by an Assize That Archibald Earl of Argyle is guilty culpable of the crimes of Treason Leasing-making Leasing-â—elling for which he was detained within the castle of Edinburgh out of which he â—es now since the said Verdict made his Escape Therefore the Lords Commissioners of Justitiarâ— decern and adjudge the said Archibald Earl of Argyle to be execute to the death demained as a traitour and to underly the paines of Treason other punishments appointed by the lawes of this Kingdom when he shall be apprehended at such a time and place and in such manner as his Majesty in his Royall pleasure shall think fit to declare and appoint And his Name Memory and Honours to be extinct And his Armes to be riven forth and delete out of the Books of Armes swa that his Posterity may never have place nor be able hereafter to bruick or joyse any Honour Offices Titles or Dignities within this Realme in time coming and to have for faulted â—mitted and tint all and sundry his Lands Tenements Annua-rents Offices Titles Dignities Tacks Steedings Rowmes Possessiones Goods and Geere what suâ—ever pertaining to him to our Soveraign Lord to remain perpetually with his Highness in property Which was pronounced for Doom 23 December 1681. After the reading and publishing whereof The Earl's Coat of Armes by order of the Court was also torn and ranversed both in the Court and at the Mercat Cross Albeit some thought that this was rather a part of the Execution which his Majesties Letter discharges then a necessary Solemnity in the Publication and the Advocate himself sayes p 61. of his printed Criminals That it should only be practised in the crime of Perduellion but not in other Treasons The Reasons and Motives of the Earl's escape with the Conclusion of the whole Narrative THE Earl's escape was at first a great surprise both to his friends and unfriends for as it is known that his Process in the beginning did appear to the less concerned more like a piece of pageantry then any reality and even by the more concerned was accounted but a politik design to take away his Offices and lesâ—en his Power and Interest So neither did any of his Friends fear any greater hazard noâ— did most of his unfriends imagine them to be more apprehensive Whereby it fell out that upon report of his escape many and some of his well-wishers thought he had too lightly abandoned a fair Estate and the probable expectation he might have had of His Majesties favour As also some that were judged his greatest adversaries did appear very angry as if the Earl had taken that course on purpose to load them with the odium of a design against his life And truly I am apt to think it was not only hard and uneasie for others to believe that a Person of the Earl's quality and character should upon so slendeâ— a pretence be destroyed both as to life and fortune but also that he himself was slow enough to receive the impressions necessary to ripen his resolution and that if a few Accidents as he sayes himself happening a little before his escape had not as it were opened his eyes and brought back and presented to him several things past in a new light and so made all to operate to his final determination he had stayed it out to the last Which that you may the better understand you may here consider the several particulars that together with what he himself hath since told some frineds apparently occurred to him in these his second thoughts in their following order And first you have heard in the beginning of this Narrative what was the first occasion of the Earl his declining in his Highness favour You may also remember that his Majesties Advocate takes notice that he debated against the Act enjoyning the Test in the Parliament And as I have told you he was indeed the Person that spoke against excepting the King's Brothers and Sons from the Oath then intended for securing the Protestant Religion and the Subjects Loyalty not thinking it fit to complement with a Priviledge where all possible caution appears rather to be necessary And this a reverend Bishop told the Earl afterwards had downright fired the kilâ— What thereafter happened in Parliament and how the Earl was alwise ready to have laid all his Offices at his Majesties feet And how he was content in Council to be held a Refuser of the Test and thereby incurr an intire deprivation of all publik Trust is above fully declared and only here remembred to show what Reason the Earl had from his first coming to Edinburgh in the end of October to think that something else was intended against him then the simple devesting him of his Employments and Jurisdictions And yet such was his Assurance of his Innocence that when ordered by the Council to enter his Person in Prison under the pain of Treason he entered freely in an Hakney coach without either hesitation or noise as you have heard 2ly The same day of the Earl's commitment the Council met and wrote as I have told you their Letter to His Majesty above set down Num. 22. Wherein they expresly charge him with Reproaching and Depraving But yet neither with Perjury noâ— Treason and a few dayes after the Earl wrote a Letter to his Highness Wherein he did endeavour to remove his offence in termes that it was said at first had given satisfaction But yet the only return the Earl had was a criminal Summonds containing an Indictment and that before any answer was come from hiâ— Majesty And then so soon as his Majesties answer came there was a new Summonds sent him with a new Indictment adding the crimes of Treason and â—erjury to these of Reproaching and Depraving which were in the first Libel as you have heard above whereby you may perceive how
early the design against the Earl began to grow and how easily it took encrease from the least encouragment 3ly When the Earl petitioned the Council for Advocates to plead for him Albeit he petitioned twice and upon clear Acts of Parliament yet he had no beâ—ter answer then what you have above set down And when the Earl's Petition naming Sir George Lockhart as his ordinary Advocate was read in Council his Highness openly threatned that in case Sir George should undertake for the Earl he should never more plead for the King nor Him But the Earl taking Instruments upon Sir George his refusal and giving out that he would not answer a word at the Bar seeing â—he benefite of Lawyers according to Law was denyed him Sir George and other lawyers were allowed to assist him but still with a Grudge Likeas afterwards they were quâ—stioned and conveened before the Council for having at the Earl's desire signed their positive Opinion of the case At which time it was also said in Council by His Highness That their fault was greater then the Earl's However we see that as he was the occasion of the anger so he hath only found the smart of it 4ly The whole Process with the Judgment of the Lords of Iustitiary anâ— Verdict of the Assize whereby the Earl was found guilty as you have seen notwithstanding of what hath so plainly appeared and was so strongly pleaâ—ed in his behalf of Leasing-making Depraving and Treason Is of it self a clear Demonstration that either the highest punishment was intended for so high a guilt or that at least it was no smal Humilation that some designed for him It being equally against reason and prudence setting aside the Interest of Justice to strain things of this nature beyond the ends truly purposed and which in effect are only the more to be suspected the more they are concealed 5ly The Process being carried on to the Verdict of the Assize and the Council being tyed up by His Majesties Letter before pronouncing Sentence to send a particular account to his Majesty of what the Earl should be found guilty of for His Majesties full information The Council doth indeed dispatch away a new Letter immediatly for His Majesties leave to proceed but in stead of that particular account required by his Majesty for his full information all the information was eveâ— heard of to be sent by the Council was what is contained in the body of the Letter wherein they briefly buâ— positively affirm That after full debate and clear probation he was found guilty of Treason Which all men must say was far better contrived to prompt his Majesty to a speedy allowance then to give him that particular information of the case which His Majesties Letter expresly requires and the Earl expected should have been performed But further the Council was commanded to sign this Letter not simply in the ordinary form but by a special Command laid on every Member and the Clerk appointed to go about and get their Subscriptions telling them they were Commanded and complaining to the Duke when any scrupled to do it The strictness of which orders is apparent enough from the very Subscriptions where you may not only read the names of Bishops subscribing in causa sanguinis but some of the Earl's Friends and Relations who wanted courage to refuse And in effect how many of all the Members did it willingly is hard to say seeing generally they excuse the deed in private 6ly About a week or two before the Trial the Earl had notice that at a closs Iuncto where were Persons of the greatest eminency it was remembered by one present how that Anno 1663. The Earl had been pardoned by his Majestie after he had been found guilty by the Earl of Middletoun and that Parliament And that then it was looked on as an error in the Earl of Middletoun that he had not proceeded to Execution albeit his Majesty had given command to the contrary because as it was said it would have been but the same thing to him But now adds this Kind Remembrancer The case is much more easie Now His Royal Highness is on the throne It might have cost Earl Middletoun a frown but now it can signify nothing but will rather be commended in His Royal Highness as acting freely like himself The stop of the sentence looks like a distrust but this will vindicate all and secure all And as the first part of the Story the Earl remembered well he had hear'd it from the same Person An 1664 had reported it to the Duke of Lawderdale a little after So the second part being of a very wellknown dialect could not but give the Earl the deeper impressions It was further told the Earl at the same time when the Councils Letter to obtain his Majesties assent to the pronouncing Sentence leaving all to discretion was sent that it was thought fit that nothing should appear but fair weather till the very close Yet was the Earl so confident of his own innocence and His Majesties Justice that he did not doubt but his Majesty seeing the Process would at least put a stop to the Sentence But after the Councils Letter was gone in such Terms as you have seen to seek Liberty from his Majesty to proceed to Sentence without either double or abbreviat of the Process sent with it and no doubt smooth insinuations made with it that all designed was to humble the Earl or clip his wings And that this Letter was hasted away by a fleeing packet to prevent the Earl's Application which it could not but do and so could not but have weight and prevail with his Majesty to whom the Earl's Petition as coming too late was indeed never presented Then and not till then The Earl began to have new thoughts 7ly The Earl's Trial having been upon moonday and twesday the 12th and 13th of December upon the 14th the Councils Letter was dispatched and upon the 15th The Earl intreated by a â—riend for liberty to speak to His Royal Highness whose answer was That it was not ordinary to speak to criminals except with Rogues on some plot where discoveries might be expected Yet his Highness said he would advise upon it But upon fryday the 16. he did refuse it Yet the Earl did renew his suit and urged that he had sent a Petition to his Majesty which was the first he had sent upon that occsiaon that before the return should come he was desirous to have his Highness answer that he might owe some part of the favour he expected to his Highness But on Moonday morning the 19. the Earl was told he was not like to have any access and in the afternoon he heard that the return of the Councils Express was looked for on thursday the 22. being the Council day And further That the Justice court which according to its custom had sat the same Moonday and in course should have adjourned till Moonday the 26 of
Slandering Reproaching or Depraving charged against him except the injuriandi animus as well as the words had been both libelled and proven But so it is that his words do manifestly a low of a good sense that there is not the least presumption of injurie can be alledged against him That he did most plainly purge himself of all suspicion of guilt by declaring his sound and upright intention And that his words do not inferre either clearly or unclearly the smallest measure of guilt And withall neither was the injuriandi animus at all proven But on the contrary the words at first were taken for no injurie so that they could not afterward become such As is above fully cleared Ergo even the Advocate being judge the Earl is no Slanderer 6ly If it were necessary I could further tell you several things that he alledges to be sufficient for purging a man of any criminal intention As where he sayes ibid. p. 563. l. 2. That in matters of fact persons even judicious following the Faith of such as understand are to be excused And l. 30. That if it appear by the meanness of the crime he should say the smalness of the deed And what can be less then the uttering of a few words in the manner that the Earl spoke them That there was no design of transgression And that the committer designed not for so small a matter to committ a crime much less such horrid ones as Depraving and Treason In that case the meanness of the transgression or deed ought to defend against the relevancy c. But to give you one instance for all how much the Advocate may one day or other be oblidged to plead the innocence of his intentions to free himself of words downright in themselves slanderous and depraving an act of Parliament much better nor he understands it and in fresh and constant observance Ibid. p 139 towards the middle speaking of the 151. Act. Ja. 6. P. 12. Whereby it is statut That seeing diverse exceptions and objections riles upon criminal libells and parties are frustrate of Justice by the alledged irrelevancy thereof That in time coming all criminal libells shall contain that the persons complained on are Art Part of the crimes libelled which shall be relevant to accuse them thereof swa that no exception or objection take away that part of the libell in time coming He sayes That he finds no Act of Parliament more unreasonable For the statutory part of that Act committing the triall of Art and Part to Assizers seemes most unjust Seeing in committing the greatest questions of the Law to the most ignorant of the Subjects it puts a sharp sword in the hands of blind men And the reason of this Act specified in the Narrative is likewise most inept and no wayes illative c. What reproaches What Blasp hemies The Earl said not one word against any Act of Parliament But on the contrary that he was confident the Parliament intended no contradiction and that he was willing to take the Test in the Parliaments sense But here the Adâ—ocate both sayes and prints it That an Act of Parliament is most unreasonable and most unjust and its reason most inept and that it puts a sharp sword in the hands of blind men Whereof the smallest branch is infinitly more reproachfull then all can be strained out of the Earl's words But Sir Speculation is but Speculation and if the Advocate when his day comes be as able to purge himself of practical depravations as I am inclined to excuse all his visionarie lapses notwithstanding of the famous Title Quod quisque juris in altâ—râ—m statuerit utipse eodem jure utatur he shall never be the worse of my censure FINIS APPENDIX In Answer to a late Pamphlet called A Vindication of His Majesties Government and Judicatories in Scotland Especially with a Relation to the late Earl of Argyl's Process In so far as concerns the said Process IT now remains that we consider the fore-mentioned Paper called a Vindication c. And though the account you have had in the Narrative may abundantly satisfy all rational men as to any thing contained in this Vindication in relation to the Earl's process my only concern yet because the Writer of it hath taken liberty to vent many falshoods known to be such to himself and the whole Kingdom and that in such a positive presuming Stile as with his insinuat character seems to be purposely designed to impose upon strangers and lead them from the Mist he pretends to discuss into gross Darkness I shall here without giving you the trouble of letter upon letter transcribe shortly what my friend who sent me the Narrative hath since given me the occasion to remark upon this Vindication in so far as it refers to it without digressing to other things which no doubt others more concerned and better qualified will not fail to examin And after having first wisely projected to disarm all his opponents by robbing them of the liberty of the press that himself may use it without control and spread his informations and vindications without reply as Diurnals writ for Regulation Of Lying to enform the Nation And in the nixt place chaffed himself by some rambling reflections on past controversies which yet for all the boast he makes of the present blessed composure of affairs in Scotland if he and his associats still persist to treat them after their manner will I fear never finally end untill they be reacted and all former errors for ever corrected He comes to notice the Earl's Process and a pamphlet called the Scotch mist that takes pains as he sayes to make it appear an unanswerable instance of the arbitraryness of Scotch Iudges Where having prefaced just as much in their vindication as may be said for all the Judges of the world whereof yet we know that thousands are ignorant corrupt and violent And nixt told us very discreetly that Earl Strafford was murthered by King Lords and Commons because forsooth that they following the known rule of the civil Law Si quam paenam Princeps irrogavit nec ad exemplum trahitur nec per sonam transgreditur made an Act That none should die by that preparative with some other stories of the like nature backed with a few fables of his own invention For clearing matter of Fact he sayes first That the Earl of Argyl's learned Iudges were not a pack't Commission but the ordinary judges of the Nation But what then if this lessen their tentation doth it not rather aggravat their injustice But 2ly Not to trouble you with the just and true characters of some of them which to persons unacquainted might possibly appear a libel is it not well known that at the first and untill sufficient assurances of the bench were obtained there was a resolution to have given or pack't as our Author speaks Assessors with them 3ly Were they not all Judges of the late edition to wit no more advitam
have heard and by the above-mentioned Restitution of the Marquess of Huntly were miserably cut off But upon the Earl's present disaster what neither material justice nor the merit of the Persons could obtain against the House of Huntly is now by importunity procured against the Earl of Argyle for the more effectual ruine of his Family and Friends and these old Creditors of Huntly who were no original Creditors of Argyle brought in upon Argyl's Estate to the exclusion of his proper Creditors And further least the real Securities by Morgages and otherwise that some of the Earl's Creditors have should avail them these are also made void by the Act of Quinquennial Possession and the other Rigours of forfaultures only accustomed to be practised and yet not without some mitigation in the case of atrocious and open Rebellion against the King and Kingdom And besides all this his Majesty hath been also moved to give away considerable Superiorities and Lands pertaining to the Earl to several Persons having no other pretension or merit saving an unreasonable enmity against the Family of Argyle By all which it is evident that besides the horrible usage the Earl met with in his Trial and Sentence not only is He himself wholly neglected and his Children little regarded in this late disposal of his Estate but his proper Creditors and Friends are also prejudged and postponed And in effect his whole Estate fair and opulent enough to have payed all his debts honestly provided his Children competently and sustained the dignity of his Rank honourably cutted and carved on before his eyes at pleasure and much of it parcelled out and bestowed upon the worst of his neighbors and his greatest enemies But to make a mends for all our Author sayes The Tiends are returned to the Church But seeing the Earl possessed all his tithes by good and lawfull purchases and undoubted rights from the Church whereof the Church neither did nor could complain our Author should have remembered that The Lord loves Iudgment and hates Robbery for burnt offering Yet in all this the Earl doth not intertain one hard thought of His Majesty knowing certainly that notwithstanding all was prepared for him by his learned Iudges and wife Councellours Yet he hath not stept one step in this affair but by importunity even tho all access to represent any thing to him on the Earl's behalf was way-laid Nor did his Majesty yeeld to pass the late Signature disposing of the Earl's Estate albeit the Earl of Middletoun was sent express about it until his Royal Highness arrived from Scotland at Newmarket and prevailed As for the three capital Sentences against the Earl's Family which our Author mentions you have a full account of them in the Narrative What return shall we then make to our Author 's Euge for a happy Kingdom but O unhappy happy Kingdom Wherein the fairest words are made the foulest offence and the smallest offence punished as the greatest Treason where dreames and visions are exhibited for Indictments and Judges and Jurors find them to be Realities where Right is turned to precarious Gift and then taken and retaken at pleasure And yet all these things gloried in as the greatest marks of its felicity And in a word whose misery is lamented by all except a few that enrich themselves with its spoyls and triumph in its Ruines Our Author comes in the next place to give an account in what manner the Earl gave in his Explanation and took the Test Where denying and affirming many things at random which are all distinctly set down and cleared in the Narrative I shall here only briefly remark his own as he pretends to do other mens Mistakes And first albeit the Earl was not publikly desired to take the Test yet it is most true that in private his Royal Highness did much press him to it and after a meeting of Council had been designedly appointed for the Earl's taking or resussing his Highness did peremptorily oblidge him to attend the next Council-day in course and plainly refused to give him leave to withdraw and take the benefite of the two moneths longer time allowed by the Act of Parliament 2ly It is false That the Earl had assured both his Royal Highness and many others that he would not take the Test that he came in abruptly to the Council that he spoke with so slow or soft a voice that none say they hear'd him that he clapt down on his knees and took the Test. When as 3ly It is certain That what passed betwixt his Royal Highness and the Earl about the Test is faithfully setdown in the Narrative and the Earl was not more positive with any other on that subject That it was with difficulty that the Earl got his appearance before the Council delayed untill the day he presented hemself And that that day he was expected and also spoke to and treated with by several Councellors before he entred about the swearing with an Explication That being entred and a stool set to him to kneel upon he first gave in or which is more declared openly and word by word directed toward his Royal Highness the Sense and Explanation wherein he was content to swear That his Highness heard it and told the Earl so much the next morning That the Clerks heard it and repeated it to several persons and one of them in his Witnessing against the Earl expresly swears that he heard it and saw it accepted That some that sate remotest in the Council both heard and repeated the Earl's words That after the Earl had pronounced them the Oath was administrat to and sworn by him Which was the most proper natural and direct Acceptance that could be desired So that after this business was thus publikly transacted for our Author to say either that the Earl spoke softly or that he specially being himself a Privy Councellour should first have given in his Sense and petitioned to know if it was acceptable is a silly pretence But 4ly Our Author not only contrary to truth but which is more remarkable in contradiction even to his Majesties Advocate and the Records of the Court proceeds to affirm 1. That the Earl dispersed copies of his Explanation albeit his Majesties Advocate having libelled the same thing was necessitat to pass from it because absolutly false and destitute of all evidence And next That his Majesties Advocate having allowed the Earl to prove That the Council heard and approved it yet he failed in the probation Whereas it is manifest from the Process that the Earl having alledged for a defence against the crimes of Leasing making Depraving and Treason That the Council had accepted his Explanation in manner above declared and that therefore it could not be made a ground to infer any of these crimes against him The Lords by their Judgment Interloquutour did expresly repell this defence And all they sustained was a defence proponed to elude the Perjury to witt That the Earl emitted his
other parts of it mere extravagant improvements of a lesed phansy viz. That he did thereby teach others to do the like And evacuate all other acts of that nature And yet our Author as if he had fully made out his Charge goes on to answer not the Mist in the pertinent contexture of its whole discourse but a few such Objections as he thought fit lamely to excerp out of it And the first he takes notice of is where the Mist or M r Mist as this Brouillon calls him sayes That if the Authority vvhich is to administer the Oath accept the Takers sense the Taker is only bound in that sense But so it is the Council accepted the Earl's sense and if they had refused it the Earl had not taken the Oath nor had his refusal been a crime Which being indeed an unanswerable Defence for the Earl and largely insisted on in the Narrative I shall only shortly consider our Author's Reply whereof the summe and force is That the Council not having the povver to pardon Crimes their connivance at the Earl's misinterpreting the Law cannot exoner him Which he illustrats by putting the case That a man having many Friends in Council gives in an Explication incontrovertedly treasonable for example That he minds not thereby to bind up himself from rising in Arms yet it would be no defence sayes our Author that the Council did not challenge it for the time But waving the Author's confounding of misinterpreting of a Law with the missensing of an Oath His lessening the Councils Acceptance of the Earl's Explanation into a bare connivance and lastly his reproaching their Lordships with a very palpable insinuation of partiality The question is not If the Council have the power of pardoning as our Author goes about to pervert the argument on purpose that he may presuppose a Crime but plainly If they have not the Authority to administer the Oath of the Test by express provision of the Act of Parliament Which our Author cannot deny Now If the Council by the Act of Parliament have the Authority to administer and did really accept the Earl's Explanation and not only connive at it which on his part was a mere proposal and in effect by their acceptance became as truly their Explanation as if they themselves had emitted it how is it possible that in this matter he should be thought guilty without overturning all the principles of Reason Sense and common Honesty I grant If the Earl or any man else had under the pretext of offering an Explanation taken occasion openly to misinterpret the Laws or utter speaches manifestly treasonable the Councils connivance could not fully assoil him But 1. What have we to do with such absurd and incredible suppositions And is it not the hight of calumnie to compare the Earl's Explanation which both in it self and in all its circumstances manifestly appears to be most ingenuously and dutyfully by him tendered for the exoneration of his conscience and was no less really accepted as such by the Council with imaginary criminal Wrestings and treasonable Declamations which as proposed scarce any man in his right wits can judge caseable 2 ly The Earl and his words being charged with Misinterpreting Slandering Reproaching and Depraving his Majesties Statuts and Proceedings If the Lords of Council who represent his Majesty by a commission unaccountable save to his Majesty alone accept his words is it not the same thing as if his Majesty himself had done it Which certainly is more significant as to the cutting off of any pretence of Injury then either Dissimulation or Remission which yet all Law doth constantly sustain for that end 3ly As to the Treason objected though there were some ground for it as there is none yet seeing the Earl's Explanation was tendered to the Council to be by them authorized and if by them rejected had indeed evanished as never uttered It 's yet further evident that their Acceptance could not be made a snare to the Earl without the greatest injustice But 4ly The Council being impowered by the Parliament to administer and having accepted the Earl's Explanation it is the same thing as if the Parliament had accepted it in which case even our Author must acknowledge that all ground of accusation would have been for ever excluded But instead of noticing these things all that our Author sayes is 1. That the Paper containing the Earl's Explanation was not given in till the next day after that the Earl had sworn the Test. But was it therefore not delivered verbally in Council the day before And was not this Delivery enough And 2ly That tho the Judges had allowed the Earl to prove that he had emitted these words at the swearing of the Test yet he failed in the probation But in what manner and for what intent this Allowance was given and how disingenuously it is here obtruded I have already cleared In the 2d Place Our Author affirms the Mists alledgeance for clearing the Earl of the Charge of Misinterpreting viz. That the Law doth only discharge publik Misinterpreting to the abusing of others to be most false But althouh I have already told you that to extend the Law against Misinterpreting the King's Statuts to a man's Missensing of an Oath is a wide stretch which both Papists and Fanatiks who vastly disagree from our Author as to the sense of the Oath of Supremacy and yet have no difference with him as to the sense of the Acts imposing it may justly call absurd Yet to assist my Friend the Mist who tho a stranger hath yet said things ten times more justly then our Author albeit apparently a piece of a Scotch aspiring Lawyer 1. I would be content to know If so be our Author think every private misinterpretation of Laws to be a transgression of this Act of Parliament What shall become not only of thousands of the King 's best subjects who fall dayly in such mistakes but also of Advocates and Lawyers themselves who are continually by the Ears about such controversies Nay even of his Majesties Advocate who in his prined Criminals as you may see above in the first Posâ—script to the Narrative calls an Act of Parliament an unreasonable unjust murthering and inept Act And I am very confident whatever our Author shall think fit to alledge either from the Direction of the Intention or favour of Circumstances for acquitting these Misinterpreters it shall fully quadrate to the Earl's case and with many and clear advantages 2ly When our Author jumps from the Misinterpreting of Lavvs to the Missensing of Oaths and thereon tells us how dangerous and criminal it is to take Oaths in wrested senses contrair to the design of the Legislator He first supposes what is already shewed to be false viz. That the Earl's Explanation of the Test is wrested And next he quite forgets that no sense of the Test can avail unless accepted by the Council the great Administrators So that for all his flanting the Government
to either occasion time place manner or end albeit the principal significators in cases of this nature and in effect the main hinges of all morality A Logick capable to pervert the best words and subvert all ingenuity and honesty amongst men For put the case that to satisfy the apprehensions and doubts that were so frequent of Contradictions and Inconsistencies in the Test His Highness himself or the President of the Council had said to these Scruplers in these or the like words That he was confident the Parliament had no intention to impose contradictory Oaths It is evident That by our Author 's reasoning this very apology how fairly soever intended in charity to these dissenters and for the Parliaments vindication might as well as the Earl's words be urged with all our Author's misconstructions and made a mortall Crime But leaving things so obvious and already so fully cleared take a short account of the Circumstances wherewith our Author doth further charge the Earl And first He sayes That the Earl's Father and Family had owned eminently the Principles against which this Oath was taken But our Author cannot deny that they owned yet more eminently the Protestant Religion the only subject of this Part of the Test and of the Earl's Explanation now questioned And for the other Principles here named they owned them no otherwise then the Parliaments of both Kingdoms did 2ly He says The Earl himself had taken the Covenant And so did And many thousands of his good Subjects beside 3ly He tells us The Earl had all along opposed the Test in Parliament But therefore there was the greater reason that his offer to take it with an Explanation should have been favourably accepted 4ly Our Author adds The Earl had positivly told his Royal Highness he would not take the Test. But this is both false and impertinent 5ly He says Neither the Ministers nor others in the Earl's countrey upon whom he had influence had taken the Test. But beside that this is not true absolutly and that in effect Few Ministers in Scotland had at that time taken the Test in respect there were about two moneths of the time allowed by the Act of Parliament then to run how iniquous is it to make the Earl accountable for other mens inclinations 6ly The Concern and Kindness the Fanatiks shew for the Earl is also objected but with the same truth and pertinency as all the rest And yet our Author concluds All which demonstrate That he had an aversion from the Test. Which indeed might very well have been without this demonstration But that therefore what he said about it or as our Author speaks did against it was done dolo malo is just as much as to say that he who in candid and honest dealing goes about to explain an ambiguous Oath before he take it speaks maliciously against it But our Author tells us That the Lords of Justitiary had a clear Precedent for what they did against the Earl in the like Iudgment given in the same Court against the Lord Balmerino Who for a Petition presented to and accepted and once read by his late Majesty vvas found guilty upon far remoter inferences of Misconstruing his Majesties Proceedings But this being particularly answered by the Earl's Lawyers in the Process I shall only here add 1. That Balmerino's Petition containing many positive alledgeances reflecting on several passages of the Government in order to a redress wherein his design might very readily fall under suspicion holds no parallel with the Earl's Explanation on his part a mere Proposal made with all due respect to the Parliament and simply tendered for the clearing of his Oath and Conscience and not indeed capable of another construction 2ly The King never accepted Balmerino's Petition by way of Approbation nor was it so much as delivered to him by Balmerino But our Author by this false phrasing of the King 's having seen and read this Petition would take off the Councils formal and direct Acceptance of the Earl's Explanation And 3ly That albeit Balmerino's Petition and the Earl's Explanation hold no manner of proportion yet even Balmerino's case was generally judged so hard that his Jurours themselves divided upon it and he was only found guilty by eight of them against seven that assoiled him and immediatly after Sentence he was freely pardoned As to what our Author adds Of this same Earl's being formerly found guilty Anno 1662. Of the like Crime upon the like Ground It is very true He was indeed then found guilty of the like Crime and upon the like Ground And not only by the same partie but by some of the same Persons who semel semper are and will be in eodem genere But of this you have already had a large and full account Our Author comes to review the Mist's Justification of the Earl's words To which opposing his former Perversions he only repeats with some new extravagancies what is already answered Thus for instance where the Earl in duty and civility sayes by way of Preface That he was desirous to give obedience as far as he could which clearly refers to the Act of Parliament and the Councils Requisition whereunto he professes his willingness to give all possible satisfaction Our Author to shew his good Breeding and better sense tells us That these words vvere intended by the Earl for a quality and part of his Oath as if he had said that though he vvas content to svvear yet he vvas only minded to keep so as far as he could Whereas it is evident as the sun-light that the quality that the Earl adjects and which he would have understood for a part of his Oath begins after these words And therefore I take the Test And that this quality is both certain sound and most genuine But having already told you that before the Earl's appearance the Countrey was filled with the noise of Contradictions and Inconsistencies in the Test So that the Earl's words in stead of Reproaching were in effect a direct and very seasonable Vindication of the Government as well as of his own Conscience And that the Security of the Government as to Oaths is not concerned in the senses that men devise or propose as our Author perpetually mistakes but in such as it pleaseth the Council the grand Administrators to accept I shall not trouble you with further Reflections on this head Specially seeing that albeit the importunity of the Earl's Accuser have occasioned what in the Narrative and what in this Preface a sensing and resensing of his words almost ad Nauseam Yet the plain truth and my opinion is that the Earl's words never had nor can have but two senses and these most distinct and constant The one genuine just and honest which all indifferent men ever did and do acknowledge The other most strained crooked and calumnious which yet his Adversaries will alwise adhere to But sayes our Author these words I take it in so far as it
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 ☜ ☞ ☞ ☜ ☜ ☜ ☜ ☞ ☜ ☜ ☞ ☞ ☜ ☜ ☞ ☞ ☜ ☜ ☜ ☜ ☜ ☜ ☞ ☞ ☞ ☞ ☞ ☜ ☜ ☜ ☜ ☜ ☜ ☜ ☜ ☜