children therein shall never consent to any change contrary thereto And that I disown all such Doctrines whether Popish or Fanatical which are contrary to inconsistent with the true Protestant Religion this Confession of Faith All these Propositions and every thing contained therein I firmly believe and embrace and I promise and swear that I shall adhere to them so long as I live without ever changing my opinion about them and that I shall carefully educate my children according to them i. e. I shall teach them to repress Tyranny and if the Authority should make any alteration in the said Confession or any of the Propositions therein I swear that I shall neuer consent thereto And I swear also That I shall renounce all Principles Doctrines and Practices whether Popish or Fanatical which are contrary to any Article or proposition of the foresaid Confession of Faith And for testification of my obedience to my most Gracious Soveraign Charles the Second I do affirm and swear by this my solemn Oath That the Kings Majesty is the only Supreme Governour over this Realm over all Persons and Causes as well Ecclesiastick as Civil and that no Foreign Prince c. As I have declared my Faith toward God so now to testifie that I am a good Subject to the King I affirm and swear by this my solemn Oath That the Kings Majesty is the onely Supreme Governour over all Persons not only Civil but also Ecclesiastical By which I understand that Ecclesiastical Supremacy which the Parliament by Act Nov. 1669. has declared to belong to him as an inherent Right of the Crown By vertue whereof His Majesty and Successors may dispose of the external Governement and Policy of the Church as they please i. e. of all Church-Government there being no other Government exercised in the Church by men but that which is external And that they may settle enact and emit any Constitutions Acts or Orders concerning the Government or persons employed therein and concerning all Ecclesiastical meetings and matters to be proposed and determined therein as they shall think fit So that I affirm that His Majesty and Successors may alter change or abolish the form of Church-Government now established by Law that he may commit it into the hands of persons of a different Religion from what is presently professed in this Realm that he may discharge all meetings of Synods Presbyteries and Sessions for ever Or if he shall please to continue them that he may chuse one delegated or deputed by himself to propose and determine all-matters therein as he thinks â—it That he may by vertue of his Supreme Power iuhibit Church-Officers to meet or meddle in any matter eisher Doctrine or Discipline without his special Order to persue or process any Delinquent or to consider of means to prevent any change or alteration in Religion tho it should be in never so great hazard except only as he shall determine and appoint therein All which he may do by himself and his Councill without any new Law or Act of Parliament And I affirm swear that tho any of His Majesties Successors shall happen to be of another Religion as God forbid yet all this Ecclesiastical Power does belong to him it being declared to be an inherent Right in the Crown and so not to belong to him as a Christian or Protestant Magistrate but as a Magistrate precisely And to my power I shall defend all Rights Jurisdictions Prerogatives Priviledges Preheminencies belonging to His Majesty and lawful Successors And also I swear by this my solemn Oath that so far as I am able I shall assist and defend His Majesties Rights and Prerogatives which because I do not know therefore whatsoever the King and Parliament or King and Council shall declare to belong to him as a Right Jurisdiction and Prerogative either in Civil or Ecclesiastical Affairs either concerning Religion Liberty or Property by Ecclesiastical Supremacy I swear I shall own and approve assist and defend the same as far as possibly I can And further I affirm and swear by this my solemn Oath That I judge it unlawful for Subjects upon pretext of Reformation or any other pretence whatsoever to enter into Covenants or Leagues or to convocate conveene or assemble in any Council Convocation or Assembly to treat consult or determine in any matter of State Civil or Ecclesiastick without His Majesties special Licence or express Warrant had thereto or to take up Arms against the King or those commissionated by him And that I shall never so rise in Arms nor enter into such Covenants or Assemblies c And I further swear That I think it utterly unlawful for any Subject of whatsoever quality or condition many or few for whatsoever Cause not only to make any Covenants but not so much as to meet together in any kind of Meeting to hear see or consult about any matter belonging to the Civil or Ecclesiastical Estate without His Majesties special Command and express Licence So that whatsoever corruption or abuse may be in the Civil Government through the fault of the King or Council or whatsoever hazard or danger the true Religion and Church of God within this land may be in I judg it unlawful for any Subject whether Pastors or others to meet together that they may consider what way to remedy or prevent the same tho it were only by humble Addresses and Petitions And I sâ—ear That there can never fall out a Case wherein Subjects may rise in Arms against their King or any Commissionated by him even though it were meerly to defend themselves tho never so cruelly persecuted and invaded by any who pretend his Name and Authority And I promise and swear That if any shall rise in Arms or meet together in a peaceable way for the ends foresaid that I shall never joyn with them And that there lies no Obligation on me from the National Covenant or the Solemn League and Covenant so commonly called or any manner of way whatsoever to endeavour any change or alteration in the Government either in Church or State as it is now established by the Laws of this Kingdom c. And I also affirm and swear by this Oath That there lies no Obligation on me either by the National or Solemn League and Covenant or any other way imaginable whatsoever to endeavour the least change or alteration in the Government either in Church or State as they are now established So that I am never to endeavour any alteration not only in the Civil Government but also in the Govern of the Church as it is now established among us though it should be found never so prejudicial to Religion to His Majesties Service or to the good of the Countrey Yea whatever corruptions may come to be in either of the Govern I swear That I am obliged never to endeavour the least alteration of them And particularly 1. As to the Ecclesiastical Govern it being established by
studying the peace of this Church and Kingdom will receive without peevishnesse prejudice or partiality the satisfaction which herein is with so much affection and charity endeavoured and tendered then the pains herein taken shall be thought well placed and imployed EDENBURGH Sederunt tertio Die Novembris 1681. His Royal Highness c. Athol Praeses Montrose Argyle Winton Linlithgow Perth Strathmore Roxburgh Ancram Airley Balcarres Lorn Levingston Bishop of Edenburgh Elphinston Rosse Dalziel President of Session Treasurer Deputy Register Advocate Justice Clerk Collintoun Lundie This day the Earl of Argyll having first openly declared his sense as you have it hereafter set down in his explication took the Test as a Privy Councellor and after he was called to and had taken his place the Councils explication which I have already mentioned having been formerly read and debated was put to the vote and passed the Earl not voting thereto as hath been remarked Edenburgh the 3d day of November 1681. The Privy Councils Explanation of the Test. FOrasmuch as some have entertained jealousies and prejudices aganst the Oath and Test appointed to be taken by all persons in publik Trust. Civil Ecclesiastical or Military in this Kingdom by the Sixth Act of His Maje 〈…〉 ies Third Parliament as if thereby they were to swear to every Proposition or Clause of the Confession of Faith therein mentioned or that invasion were made by it upon the intrinsik spiritual Power of the Church or Power of the Keys or as if the present Episcopal Government of this National Church by Law established were thereby exposed to the hazard of alteration or subversion All which are far from the intention or design of the Parliament's imposing this Oath and from the genuine sense and meaning thereof Therefore His Royal Highness His Majesties High Commissioner and Lords of Privy-Council do allow authorise and impower the Archbishops and Bishops to administer this Oath and Test to the Ministers in their respective Diocesses in this express sense 1. That tho the Confession of Faith ratified in Parliament 1567. was framed in the Infancy of Reformation and deserves its due praise yet by the Test we do not swear to every Proposition or clause therein contained but only to the true Protestant Religion founded on the word of God contained in that Confession as it as opposed to Popery and Fanaticism 2. That by the Test or any clause therein contained no invasion or encroatchment is made or intended upon the intrinsik spiritual power of the Church or power of the Keys as it was exercised by the Apostles and the most pure and primitive Church in the first three Centuries after Christ and which is still reserved intirely to the Church 3. That the Oath and Test is without any prejudice to the Episcopal Government of this National Church which is declared by the first Act of the second Session of His Majesties first Parliament to be most agreeable to the word of God and most suitable to Monarchy and which upon all occasions His Majesty hath declared he will inviolably and unalterably preserve And appoint the Archbishops and Bishops to require the Ministers in their respective Diocesses with their first conveniency to obey the Law in swearing and subscribing the foresaid Oath and Test with certification that the refusers shall be esteemed persons disaffected to the Protestant Religion and to his Majesties Government and that the punishment appointed by the foresaid sixth Act of His Majesties third Parliament shall be impartially and without delay inflicted upon them By me Pet. Menzeis Sederunt quarto Die Novembris 1681. His Royal Highness c. Montrose Praeses Perth Ancram Levingston President of Session Advocate Winton Strathmore Airley Bishop of Edenburgh Treasurer Deputy Lundie Linlithgow Roxburgh Balcaras Elphynstoun Register This day the Earl of Argyle being about to take the Test as a Commissioner of the Treasury and having uponcommand produced a paper bearing the sense in which he took the Test the preceeding day and in which he would take the same as a Commissioner of the Treasury Upon consideration thereof it was resolved that he cannot sit in Council not having taken the Test in thesense and meaning of the Act of Parliament and therefore was removed The Earl of Argyle's Explication of the Test vvhen he took it I Have considered the Test and I am very desirous to give obedience as far as I can I 'm confident the Parliament never intended to impose contradictory Oaths Therefore I think no man can explain it but for himself Accordingly I take it as far as it is consistent with it self and the Protestant Religion And I do declare That I mean not to bind up my self in my station and in a lawful way to wish and endeavour any alteration I think to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty And this I understand as a part of my Oath But the Earl finding as hath been narrated this his Explication though accepted and approven by His Highness and Council the day before to be this day carped and offended at and advantages thereupon sought and designed against him did immediatlie draw up the following Explanation of his Explication and for his own vindication did first communicat it to some privatlie and thereafter intended to have offered it at his trial for clearing of his defences The Explanation of his Explication I Have delayed hitherto to take the Oath appointed by the Pa 〈…〉 ent to be taken betwixt and the first of January nixt but now being required 〈◊〉 two moneths sooner to take it this day peremptourly or to refuse I have considered the Test and have seen several Objections moved against it especially by many of the Orthodox Clergy notwithstanding whereof I have endeavoured to satisfie my self with a just explanation which I here offer that I may both satisfie my conscience and obey Your Highness and Your Lordships commands in taking the Test though the Act of Parliament do not simply command the thing but only under a certification which I could easily submit to if it were with Your Highness favour and might be without offence but I love not to be singular and I am very desirous to give obedience in this and everything as far as I can and that which clears me is that I am confident whatever any man may think or say to the prejudice of this Oath the Parliament never intended to impose contradictory Oaths and because their sense they being the framers and imposers is the true sense and that this Test injoyned is of no privat interpretation nor are the Kings Statuts to be interpreted but as they â—ear and to the intent they are made Therefor I 〈…〉 nk no man that is no privat person can explain it for another to amuse or trouble â—im with it may be mistaken glosses But every man as he is to take it so is to ex 〈…〉 ain it for himself and to endeavour
turned out it was yeelded to and added without a vote and this Act being still not thought sufficient and several Members desiring other additions and other Acts a promise was made by His Royal Highness in open Parliament that time and opportunity should be given to bring in any other Act which should be thought necessary for further securing the Protestant Religion But though several persons both befor and after passing the Act for the Test here subjoyned did give in memorials and overtures yet they were never suffered to be read either in Articles or Parliament but in place of all this Act for the Test was still obtruded and nothing of that nature suffered to be heard after once that Act past though even at passing it the promise was renewed As for the Test it was first brought into the Parliament without mentioning the Confession of Faith and after several hours debate for adding the Confession of Faith and many other additions and alterations it was past at the first presenting albeit it was earnestly prest by near half the Parliament that it might be delayed till nixt morning the draught being so much changed and interlined that many even of the most engaged in the debate did not sufficiently understand it and though they took notes knew not precisely how it stood And this was indeed the Earls case in particular and the cause why in voting he did forbear either to approve or disapprove His part in the debate was that in the entrie of it he said that he thought as few Oaths should be required as could be and these as short and clear as possible That it was his humble opiâ—ion that a very small alteration in these Acts which had been used these twentie years might serve for it was manifest and he attested the whole Parliament upon it That the Oath of allegiance and Declaration had effectually debarred all Fanaticks from getting into places of trust all that time It was true some Papists had swallowed the Oath of allegiance and therefore a word or two only of addition to guard against them was all he judged necessary And there after where in the close of the Act The Kings Sons Brothers were intended to be dispensed with from taking the Test He opposed the exception said it was our happiness that King people were of one Religion and that they were so by Law That he hoped the Parliament would doe nothing to loose what was fast nor open a gap for the Royal Family to differ in Religion their example was of great consequence one of them was as a thousand and would draw the more followers if once it appeared to the people that it were honourable and a priviledge to be of an other Religion And therefor he wished if any exception vvere it might be particular for his Royal H s but His H s himselfe opposing this the Earl concluded vvith his fear that if this exception did pass it vvould doe more hurt to the Protestant Religion then all the rest of that Act and many other Acts could doe good Whilst these Acts about Religion were in agitation his H s told the Earl one day in privat to beware of himselfe for the Earl of Erroll and others were to give in a bill to the Parliament to get him made liable to some debts they pretended to be cautioners in for his Father and that those that were most forward in His Majesties service must be had a care of The Earl said He knew there was no ground for any such bill and he hoped neither the Earl of Errol nor any other should have any advantage of him upon any head relating to His Majesties service His Highness told others likewise he had given the Earl good advice But shortly after the above mentioned debates there were two bills given in to the meeting of the Articles against the Earl one by the Earl of Errol the other by His Majesties advocat who alledged he did it by command for otherwise he acknowledged it was without his line The Earl of Erroll's clame was that the Earl of Argyl might be declared liable to releeve him and others of a debt wherein they alleadged they stood bound as cautioners for the late Marques of Argyll the Earl's Father To which the Earl answered that he had not got his Fathers whole estate but only a part of it and that expresly burdened with all the debts he was liable to pay whereof this pretended debt was none and that the Marquess of Huntlie who at that time was owing to the Marquess of Argyl 35000. l. sâ—erl had got 4000 l. sterl of yearly rent out of the Marques of Argyll's forsaulture without the burden of any debt so that both by Law and equity the Earl could not be liable the Marquess of Huntlie and not he having got that which should bear this releefe and which should indeed have payed the far greatest part of the Marques of Argyll's debt the same having been undertaken for Huntlie by Argyll either as cautioner for Huntlie or to raise money to pay his debt Besides that the Earl of Erroll can never make it appear that he or his predecessors were bound for the Marques of Argyll in the third part of the summes he acclaimes Yet some were much inclined to beleive Erroll on his bare assertion His Majestie 's Advocat's clame was to take from the Earl his heritable offices of Sheriffe c. especially that of justice General of Argyll-Shire the â—sles and other places which last is nevertheless only a part of the generall Justitiarie of all Scotland granted to his Predecessors some hundred of years agoe for honourable and onerous causes and constantly enjoyed by them until expresly surrendered in his late Majesties hands for a new grant of the above mentioned Justitiary of Argyl c And this new grant was also confirmed by many Acts of Parliament and particularly by his Majesties Royall Father of blissed memorie in the Parliament holden by him Anno 1633. as likewise by his Majestie that now is whom God long preserve his new Gift and Chartour after several Debates before him in Anno 1663. and 1672. which new Gifts and Chartours were again ratified by a special instruction from His Majestie in the Parliament 1672. So that albeit several late Gifts of Regalitie granted to the Marqueis of Athol Marqueis of Queensberrie and others may be questioned because granted since the Acts of Parliament discharging all such Gifts in time coming yet the Earl of Argyl's rights are good as being both of a far different nature and granted long before the said Acts of Parliament and in effect the Earl his rights are rather confirmed by these prohibitive Acts because both anterior to and excepted from them as appears by the Act Salvo Iure 1633. wherein the Earls rights are particularly and fully excepted in the body of the printed Act. When these things appeared so plain as not to be answered It was alledged that
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
nane shall be repute as loyal and faithful Subjects to our said Soveraign Lord or his Authority but be punishable as Rebellars and Gainstanders of the samine quhilk shall not give their confession and make their profession of the said true Religion And that all sik as makes profession thereof and yet hes made defection fra their dew obedience ought to our Soveraign Lord shall be admonished be the Pastors and Ministers of the Kirk to acknowledge their offence and turn to their dutieful obedience And if they failzie therein to be excommunicat and secluded from the Society of the Kirk as rebellious and corrupt Members betwixt and the first of Jun nixt to come and that alwayes before sik persons as hes made defection be received to our Soveraign Lords mercie and favour they shall give the Confession of their Faith of new and promise to continue in the Confession of the true Religion in time coming and maintaine our Soveraign Lords Authoritie and that they shall at the utmost of their power fortifie assist and maintaine the true Preachers and Professors of Christs Religion against whatsomever enemies and gainstanders of the same and namely against all sik of whatsomever Nation Estate or degree they be of that hes joyned and bound themselves or hes assisted or assist to set forward and execut the cruel decreits of the Councel of Trent quhilk most injuriously is called by the adversaries of Gods Truth the halie league contrary the Preachers and true Professors of the Word of God Many other Acts and these most peremptory and strict against the Popish Religion as Idolatrie and very pernicious to the Kingdom might here be added But these are set down as most apposite to the purpose and the rest may be seen at length in the printed Acts of Parliament Act Ch. 2. P. 2. C. 1. Anno 1669. Act asserting His Majesties Supremacy over all Persons and in all Causes Ecclesiastik THE Estates of Parliament having seriously considered how necessary it is for the good and peace of Church and State that His Majesties Power and Authoritie in relation to maters and Persons Ecclesiastical be more clearly asserted by ane Act of Parliament Have therefore thought fit it be enacted asserted and declared Likeas His Majestie with advice and consent of his Estates of Parliament doth hereby enact assert and declare that His Majesty hath the supreme Authority and Supremacie over all Persons and in all causes Ecclesiastical within this his Kingdom And that by vertue thereof the ordering and disposal of the external Government and Policie of the Church doth properly belong to His Majestie and his Successors as ane inherent right of the Crown and that His Majesty and his Successors may setle enact and emit such Constitutions Acts and Orders concerning the administration of the external Government of the Church and the Persons imployed in the same and concerning all Ecclesiastical meetings and maters to be proposed and determined therein as they in their Royal Wisdom shall think fit Which Acts Orders and Constitutions being recorded in the Books of Councel and duelie published are to be observed and obeyed by all His Majesties Subjects any Law Act or Custom to the contrary notwithstanding likeas His Majesty with advice and consent foresaid doth rescind and annull all Lawes Acts and Clauses thereof and all Customs and Constitions Civil or Ecclesiastick which are contrary to or inconsistent with His Majesties Supremacy as it is hereby asserted and declares the same void and null in all time coming The Bishop of Aberdeen and the Synods Explanation of the Test. I. WE do not hereby swear to all the particular Assertions and Expressions of the Confession of Faith mentioned in the Test but only to the uniform Doctrine of the Reformed Churches contained therein II. We do not hereby prejudg the Church's Right to and Power of making any alteration in the said Confession as to the ambiguity and obscure expressions thereof or of making a more unexceptionable frame III. When we swear That the King is Supreme Governour over all Persons and in all Causes as well Ecclesiastick as Civil and when we swear to assert and defend all His Majesties Rights and Prerogatives this is reserving always the intrinsick unalterable power of the Church immediately derived from Jesus Christ to wit the power of the Keys consisting in the preaching of the Word administration of the Sacraments ordaining of Pastors exercise of Discipline and the holding of such Assemblies as are necessary for preservation of Peace and Unity Truth and Purity in the Church and withal we do not hereby think that the King has a power to alter the Government of the Church at his pleasure IV. When we swear That it is unlawful for subjects to meet or conveen to treat or consult c. about matters of State Civil and Ecclesiastick this is excepting meetings for Ordination publick Worship and Discipline and such meetings as are necessary for the conservation of the Church and true Protestant Religion V. When we swear there lyes no obligation on us c. to endeavour any change or alteration in Government either in Church or State we mean by Arms or any seditious way VI. When we swear That we take the Test in the plain and genuine sense of the words c. we understand it only in so far as it does not contradict these Exceptions The Explanation of the Test by the Synode and Clergy of Perth BEcause our Consciences require the publishing and declaring of that express meaning we have in taking the Test that we be not mis-interpreted to swear it in these glosses which men uncharitable to it and enemies to us are apt to put upon it and because some men ill affected to the Government who are daily broachers of odious and calumnious slanders against our Persons and Ministry are apt to deduce inferences and conclusions from the alledged ambiguity of some Propositions of the Test that we charitably and firmly do believe were never intended by the Imposers nor received by the Takers Therefore to satisfie our Consciences and to save our Credit from these unjust imputations we expresly declare That we swear the Test in this following meaning I. By taking the Test we do not swear to every Proposition and Clause contained in the Confession of Faith but only to the true Protestant Religion founded upon the Word of God contained in that Confession as it is opposed to Popery and Fanaticism II. By swearing the Ecclesiastick Supremacy we swear it as we have done formerly without any reference to the assertory Act we also reserve intire unto the Church it s own intrinsick and unalterable power of the Keys as it was exercised by the Apostles and the pure primitive Church for the first three Centuries III. By swearing That it is unlawful to convocate conveen or assemble in any Councils Conventions or Assemblies to treat consult c. in any matter of State Civil or Ecclesiastick as
to understand it notwithstanding all these exce 〈…〉 on s in the Parliaments which is its true and genuine sense I take it therefore notwithstanding any scruple made by any as far as it is consistent with it self and the Protestant Religion which is wholly in the Parliaments sense and their true meaning which being present I am sure was owned by all to be the securing of the Protestant Religion founded on the word of God and contained in the Confession of Faith recorded I. 6 p. 1. c. 4. And not out of scruple as if any thing in the Test did import the contrary but to clear my self from all cavils as if thereby I were bound up further then the true meaning of the Oath I doe declare that by that part of the Test that there lyes no obligation on me c. I mean not to bind up my self in my station and in a lawfull way still disclaming all unlawful endeavours to wish and endeavour any alteration I think according to my conscience to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty and by my Loyalty I understand no other thing then the words plainly bear to wit the duty and allegiance of all Loyal Subjects and this explanation I understand as a part not of the Test or Act of Parliament but as a qualifying part of my Oath that I am to swear and with it I am willing to take the Test if Your Royal Highness and Your Lordships allow me or otherwise in submission to Your Highness and the Councils pleasure I am content to be held as a refuser at present The Councils Letter to His Majesty concerning their having committed the Earl of Argyle May it please your Sacred Majesty THE last Parliament having made so many and so advantageous Acts for securing the Protestant Religion the Imperial Crown of this Kingdom and your Majesties Sacred Person whom God Almighty long preserve and having for the last and as the best way for securing all these appointed a Test to be taken by all who should be entrusted with the Government which bears expresly That the same should be taken in the plain and genuine sense and meaning of the words We were very careful not to suffer any to take the said Oath or Test with their own Glosses or Explications but the Earl of Argyle having after some delays come to Council to take the said Oath as a Privy-Councellor spoke some things which were not then heard nor adverted to and when his Lordship at his next offering to take it in Coâ—ncil as one of the Commissioners of your Majesties Tresury was commanded to take it simply he refused to do so but gave in a Paper shewing the only sense in which he would take it which Paper we all considered as that which had in it gross and scandalous Reflections upon that excellent Act of Parliament making it to contain things contradictory and inconsistent and thereby depraving your Majesties Laws misrepresenting your Parliament and teaching your Subjects to evacuate and disappoint all Laws and Securities that can be enacted for the preservation of the Government suitable to which his Lordship declares in that Paper That he means not to bind up himself from making any alterations he shall think fit for the advantage of Church or State and which Paper he desires may be looked upon as a part of his Oath as if he were the Legislator and able to add a part to the Act of Parliament Upon serious perusal of which Paper we found our selves obliged to send the said Earl to the Castle of Edenburgh and to to transmit the Paper to your Majesty being expresly obliged to both these by your Majesties express Laws And we have commanded your Majesties Advocate to raise a pursuit against the said Earl forbeing Author and having given in the said Paper And for the further prosecution of all relating to this Affair we expect your Majesties Commands which shall be most humbly and faithfully obeyed by Your Majesties most Humble most Faithful and most Obedient Subjects and Servants Edenburgh Nov. 8. 1681. Sic Subscribitur Glencairne Winton Linlithgow Perth Roxburgh Ancram Airlie Levingstoun Io. Edinburgen Ross Geo. Gordoun Ch. Maitland G. M ckenzie Ja. Foulis I. Drumond The Kings Answer to the Councils Letter C. R. Novemb. 15. 1681. MOst dear c. having in one of your Letters directed unto us of the 8. Instant received a particular account of the Earl of Argyle's refusing to take the Test simply and of your proceedings against him upon the occasion of his giving in a Paper shewing the only sense in which he will take it which had in it gross and scandalous Reflections upon that excellent late Act of our Parliament there by which the said Test was enjoyned to be taken we have now thought fit to let you know that as we do hereby approve these your Proceedings particularly your sending the said Earl to our Castle of Edenburgh and your commanding our Advocate to raise a Pursuit against him for being Author of and having given in the said Paper so we do also authorize you to do all things that may concern the further prosecution of all relating to this Affair Nevertheless it is our express will and pleasure That before any Sentence shall be pronounced against him at the Conclusion of the Process you send us a particular account of what he shall be found guilty of to the end that after our being fully informed thereof we may signifie our further pleasure in this matter For doing whereof c. But as notwithstanding the Councils demanding by their letter His Majestie 's allowance for prosecuting the Earl they before any return caused His Majestie 's Advocat exhibit ane indictment against him upon the points of slandering and depraving as hath been already remarked so after having receaved His Majestie 's answer the design growes and they thought fit to order a new indictment containing beside the former Points the crimes of treason and perjury which accordingly was exhibit and is here subjoyned the difference betwixt the tvvo indictments being only in the particulars above noted The Copy of the Indictment against the Earl of Argyle Archibald Earl of Argyle YOU are indicted and accused That albeit by the Common Law of all well-govern'd Nations and by the Municipal Law and Acts of Parliament of this Kingdom and particularly by the 21 and by the 43d Act Par. 2 James 1. and by the 83d Act Par. 6. James 5. and by the 34th Act Par. 8. James 6. and the 134th Act Par 8 James 6. and the 205th Act Par. 14. James 6. All leasing-makers and tellers of them are punishable with tinsel of Life and Goods like as by the 107th Act. Par. 7. James 1 it is statuted That no man interpret the Kings Statutes otherwise than the Statute bears and to the intent and effect that they were made for and as the makers of them understood and
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-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
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
are ever to be interpreted and understood in meliorem partem And by way of Implication and Inference to conclud and infer crimes from the same which the user of such words and expressions never mean'd nor designed is both unreasonable and unjust 2. As the foresaid Acts of Parliament made against Leasing-makers and depravers of His Majesties Laws only proceed in the terms foresaid where the words and speeches are plain tending to beget discord between the King and his Subjects and to the reproach and dislike of his Government and when the same are spoke and vented in a subdolous pernicious and fraudulent manner So they never were nor can be understood to proceed in the case of a person offering in the presence of a publik udicature whereof he had the honour to be a Member his sincere and plain meaning and apprehension of what he conceived to be the true sense of the Act of Parliament imâ—osing and enjoyning the Test There being nothing more opposite to the Acts of Parliamenâ— made against Leasing-making and venting and spreading abroad the same upon seditious designs than the foresaid plain and open declaration of his sense and apprehension what was the meaning of the said Act of Parliament And it is of no import to inter any crime and much less any of the crimes libelled albeit the Pannel had erred and mistaken in his apprehension of the Act of Parliament And it were a strange extention of the Act of Parliament made against Leasing makers requiring the qualifications foresaid the Acts against depraving His Majesties Laws to make the Pannel or any other person guilty upon the mistakes and misapprehensions of the sense of the â—aws wherein men may mistake and differ very much and even eminent Lawyers and Judges So that the Acts of Parliament against Leasing-making and depraving His Majesties Lavvs can only be understood in the express terms and qualifications â—oresaid Like as it neither is libelled nor can be proven that the Pannel before he was called and required by the Lords of His Majesties Privy-council to take the Oath did ever by word or practice use any reproachful speeches of the said Act of Parliament or of His Majestâ—es Government But being required to take the Oath he did humbly with all submission declare what he apprehended to be the sense of the Act of the Parliament enjoyning the Test and in what sense he had freedom to take the same 3. The Act of Parliament enjoyning the Test does not enjoyn the same to be taken by all persons whatsoever but only prescribes it as a qualification without which persons could not assume or continue to act in publik Trust Which bein an Oath to be taken by so solemn an invocation of the Name of Almighty God it is not only allowable by the Lavvs and customs of all Nations and the Opinion of all Divines ad Casuists Popish or Protestant but also commended that where a Party has any scrupulosity or unclearness in his conscience as to the matter of the Oath that he should exhibit and declare the sense and meaning in which he is willing and able to take the Oath And it is not at all material whether the scruples of a mans conscience in the matter of an Oath be in themselves just or groundless it being a certain maxime both in Law and Divinity that Conscientia etiam erronea ligat And therefore tho the Pannel had thought fit for the clearing and exoneration of his own conscience in a matter of the highest concern as to his peace and repose to have exprest and declared t e express sense in which he could take the Oath whether the said sense was consistent with the Act of Parliament or not yet it does not in the least import any matter of reproach or reflection upon the justice or prudence of the Parliament in imposing the said Oath but alenarly does evince the weakness and scrupulosity of a mans conscience who neither did nor ought to have taken the Oath but with an explanation that would have saved his conscience to his apprehension Otherwise he had grosly sinned before God even tho it was Conscientia errans And this is allowed and prescribed by all Protestant Divines as indispensibly necessary and was never thought to import any crime and is also commended even by Popish Casuists themselves who tho they allow in some cases of mental reservations and equivocations yet the express declaration of the sense o the party is allowed and commended as much more ingenuous and tutius Remedium Conscientiae ne illaqueetur as appears by Bellarmine de Iuramento and upon the same Title de Interpretatione Iuramenti and Lessius that famous Casuist de Iustitia Iure Dubitatione 8 9. utrum siquis salvo animo aliquid Iuramento promittat obligetur quale peccatum hoc sit And which is the general opinion of all Casuists and all Divines as may appear by Amesius in his Treatise de Conscientia Sanderson de Iuramento Praelectione secunda And such an express Declaration of the sense and meaning of any party when required to take an Oath for no other end but for the clearing and exoneration of his own Conscience was never in the opinion of any Lawyer or any Divine construed to be the Crime of Leasing-making or of defamatory Libels or depraving of publik Laws or reproaching or misconstruing of the Government but on the contrary by the universal suffrage of all Protestant Divines there is expresly required in Cases of a scrupulous Conscience an abhorrence and detestation of all reserved senses and of all Amphibologies and Equivocations which are in themselves unlawful and reprobate upon that unanswerable Reason that Juramentum being the highest Act of Devotion and Religion in eo requiritur maxima simplicitas and that a party is obliged who has any scruples of Conscience publikly and openly to clear and declare the same 4. Albeit it is not controverted but that a Legislator imposing an Oath or any publik Authority before whom the Oath is taken may after hearing of the Sense and Explication which a person is willing to put upon it either reject or accept of the same if it be conceived not to be consistent with the genuine sense of the Oath Yet tho it were rejected it was never heard of or pretended that the offering of a sense does import a crime but that notwithstanding thereof Habetur pro Recusante and as if he had not taken the Oath and to be liable to the certification of Law as if he had been a Refuser 5. The Pannel having publikly and openly declared the sense in which he was free to take the Oath it is offered to be proved that he was allowed and did accordingly proceed to the taking of the Oath and did thereafter take his place and sit and vote during that Sederunt of Privy Council So as the pretended Sense and Explication which he did then emit and give can import no Crime against
evident from that learned Vindication published and spread abroad by an eminent Bishop and which was read in the face of the Privy-Council and does contain expressions of the same nature and to the same import contained in the pretended Explication libelled as the ground of this Indictment libelled against the Pannel And it is positively offered to be proven That these terms were given in and read and allowed to be Printed and without taking notice of the whole tenor of the said Vindication which the Lords of Justiciary are humbly desired to peruse and consider and compare the same with the Explication libelled the same acknowledgeth that Scruples had been raised and spread abroad against the Oath and also acknowledgeth that there were Expressions therein that were dark and obscure and likewise takes notice that the Confession ratified Par. 1 James 6. to which the Oath relates was hastily made and takes notice of that Authority that made it and acknowledges in plain terms that the Oath does not hinder any regular endeavour to regulate or better the Establisht Government but only prohibits irregular endeavours and attempts to invert the substance or body of the Government and does likewise explain the Act of Parliament anent His Majesties Supremacy that it does not reach the alteration of the external Government of the Church And the Pannel and his Proctors are far from insinuating in the least that there is any thing in the said Vindication but what is consistent with the exemplary Loyalty Piety and Learning of the Writer of the same And tho others perhaps may differ in their private opinion as to this interpretation of the Act of Parliament anent the Kings â—upremacy yet it were most absurd and irrational to pretend that whether the mistake were upon the interpretation of the Writer or the sense of others as to that point that such mistakes or misapprehensions upon either hand should import or infer against them the Crimes of Leasing-making or depraving His Majesties Laws For if such Foundations were laid Judges and Lawyers had a dangerous employment there being nothing more ordinarâ— than to fall into differences and mistakes of the sense and meaning of the Laws and Acts of Parliament But such Crimes cannot be inferred but with and under the qualifications above-mentioned of malicious and perverse designs joyned with licentious wicked and reproachful speeches spread abroad to move sedition and dislike of the Government And the said Laws were never otherwise interpreted nor extended in any case And therefore the Explication libelled neither as taken complexly nor in the several expressions thereof nor in the design of the ingiver of the same can in Law import against him all or any of the Crimes libelled In like manner the Pannel conjoins with the grounds above-mentioned the Proclamation issued forth by His Majesties privy-Council which acknowledges and proceeds upon a Narrative that scruples and jealousies were raised and spread abroad against the Act of Parliament enjoyning the Test. For clearing and satisfaction whereof the said Proclamation was issued forth and is since approved by His Sacred Majesty The Kings Advocate 's Argument and Plea against the Earl of Argyle HIS Majesties Advocate for the foundation of his Debate does represent That His Majesty to secure the Government from the Rebellious Principles of the last Age and the unjust Pretexts made use of in this from Popery and other Jealousies as also to secure the Protestant Religion and the Crown called a Parliament and that the great security resolved on by the Parliament was this excellent Test in which that the old jugling Principles of the Covenant might not be renewed wherein they still swore to serve the King in their own way the Parliament did positively ordain That this Oath should be taken in the plain genuine meaning or the words without any evasion whatsoever Notwithstanding whereof the Earl of Argyle by this Paper does invent a new way whereby no man is at all bound to it For how can any person be bound if every man will only obey it as far as he can and as far as he conceives it consistent with the Protestant Religion and with it self and reserve to himself notwithstanding thereof to make any alteration that he thinks consistent with his Loyalty And therefore His Majesties Advocate desires to know to what the Earl of Argyle or any man else can be bound by this Test what the Magistrate can expect or what way he can punish his Perjury For if he be bound no farther than he himself can obey or so far as this Oath is consistent with the Protestant Religion or it self quomodo constat to whom or what he is bound And who can determine that Or against what alteration is the Government secured since he is Judg of his own alteration So that that Oath that was to be taken without any evasion is evaded in every single word or Letter and the Government as insecure as before the Act was made because the taker is no farther bound than he pleases From which it cannot be denied but his Interpretation destroys not only this Act but all Government since it takes away the security of all Government and makes every mans Conscience under which Name there goes ordinarily in this Age Humour and Interest to be the rule of the takers obedience Nor can it be conceived to what purpole Laws but especially Oaths needed to be made if this were allowed or how this cannot fall under the 107th Act Par. 7. James 6. whereby it is statuted That no man interpret the Statutes otherwise than the maker understood For what can be more contrary to the taking of them in the makers sense than that every man should obey as far as he can and be allowed to take them in a general sense so far as they are consistent with themselves and the Protestant Religion without condescending wherein they do not agree with the Protestant Religion and that they are not bound not to make any alteration which they think good for the States For all these make the rule of obedience in the taker whereas the positiue Law makes it to be in the maker Oâ— how could they be punished for Perjury after this Oath For when he were quarrelled for making alterations against this Oath and so to be perjured he might easily ansvver That he took this Oath only in so far as it was consistent with the Protestant Religion and with a Salvo that he might make any alteration that he thought consistent with his Loyalty And as to these Points upon which he were to be quarrelled he might say he did not think them to be inconsistent with his Loyalty think we what we pleased and so needed not be perjured except he pleased to decide against himself For in these Generals he reserves to himself to be still Judg. And this were indeed a fine security for any Government And by the same rule that it looses this Oath it shews a way of loosing
all Oaths and Obedience And consequently strikes at the root of all Laws as well as this Whereas to shun all this not only this excellent Statute 107. has secured all the rest but this is common Reason And in the opinion of all Divines as well as Lawyers in all Nations Verba juramenti intelliguntur secundum ment em intentionem ejus cui fit juramentum Which is set down as the grand position by Sandersone whom they cite Pag. 137. and is founded upon that Mother-Law Leg. 10. cui interrogatus f. f. de interrogationibus in Iure faciendis and without which no man can have sense of Government in his head or practise it in any Nation Whereas on the other hand there is no danger to any tender Conscience since there was no force upon the Earl to take the Oath but he took it for his own advantage and might have abstained 2. It is inferred from the above-written matter of Fact That the Earl is clearly guilty of contravention of the 10. Act Parl. 10. James VI. Whereby the Liedges are commanded not to write any purpose of Reproach of His Majesties Government or misconstrue his Proceedings whereby any misliking may be raised betwixt his Highness his Nobility or his People And who can read this Paper without seeing the King and Parliament reproached openly in it For who can hear that the Oath is only taken as far as it is consistent with it self and the Protestant Religion but must necessarily conclude that in several things it is inconsistent with it self and the Protestant Religion For if it were not inconsistent with it self and the Protestant Religion why this Clause at all but it might have been simply taken For the only reason of hindering it to be taken simply was because of the inconsistency ergo there behoved necessarily to be an inconsistency And if there be any inconsistency with the Protestant Religion or any contradiction in the Oath it self can there be any thing a greater Reproach on the Parliament or a greater ground of mislike to the People And whereas it is pretended That all Laws and Subsumptions should be clear and these are only Inferences It is answered That there are some things which the Law can only forbid in general And there are many Inferences which are as strong and natural and reproach as soon or sooner than the plainest defamations in the world do For what is openly said of reproach to the King does not wound him so much as many seditious Insinuations have done in this Age and the last So that whatever was the Earl's design albeit it is always conceived to be unkind to the Act against which himself debated in Parliament yet certainly the Law in such cases is only to consider what essect this may have amongst the People And therefore the Acts of Parliament that were to guard against the misconstruing of His Majesties Government do not only speak of what was designed but where a disliking may be caused and so judgeth ab effectu And consequentially to the same emergent Reason it makes all things tending to the raising of dislike to be punishable by the Act 60. Parl. 6. Queen Mary and the 9. Act. Parl. 20. James VI. So that the Law designed to deter all men by these indefinite and comprehensive Expressions And both in this and all the Laws of Leasing-making the Iudges are to consider what falls under these general and comprehensive words Nor could the Law be more special here since the makers of Reproach and Slander are so various that they could not be bound up or exprest in any Law But as it evidently appears that no man can hear the words exprest if he believe this Paper but he must think the Parliament has made a very ridiculous Oath inconsistent with it self and the Protestant Religion the words allowing no other sense and having that natural tendency Even as if a man would say I love such a man only in so far as he is an honest man he behoved certainly to conclude that the man was not every way honest So if your Lordships will take measures by other Parliaments or your Predecessors ye will clearly see That they thought less than this a defaming of the Government and misconstruing His Majesties Proceedings For in Balmerino's Case the Justices find an humble Supplication made to the King himself to fall under these Acts now cited Albeit as that was a Supplication so it contained the greatest expressions of Loyalty and offers of Life and Fortune that could be exprest Yet because it insinuates darkly That the King in the preceeding Parliament had not favoured the Protestant Religion and they were sorry he should have taken Notes with his own hands of what they said which seems to be most innocent yet he was found guilty upon those same very Acts. And the Parliament 1661. found his Lordship himself guilty of Leasing making tho he had only written a Letter to a private Friend which requires no great care nor observation but this Paper which was to be a part of his own Oath does because after he had spoken of the Parliament in the first part of this Letter he thereafter added That the King would know their Tricks Which words might be much more applicable to the private Persons therein designed than that the words now insisted on can be capable of any such Interpretation And if either Interpretations upon pretext of exonering of Conscience or otherwise be allowed a man may easily defame as much as he pleases And have we not seen the King most defamed by Covenants entered into upon pretence to make him great and glorious By Remonstrances made to take away his Brother and best Friend upon pretence of preserving the Protestant Religion and His Sacred Person And did not all who rebelled against him in the last Age declare That they thought themselves bound in duty to obey him but still as far as that could consist with their respect to the Protestant Religion and the Laws and Liberties which made all the rest ineffectual And whereas it is pretended That by these words I take the same in as far as it is consistent with it self and the Protestant Religion nothing more is meant but that he takes it as a true Protestant His Majesties Advocate appeals to your Lordships and all the Hearers if upon hearing this Expression they should take it in this sense and not rather think that there is an inconsistency For if that were possible to be the sense what need he say at all as far as it is consistent with it self Nor had the other part as far as it is consistent with the Protestant Religion been necessary For it is either consistent with the Protestant Religion or otherwise they were Enemies to the Protestant Religion that made it Nor are any Lawyers or others in danger by pleading or writing For these are very different from and may be very easily pleaded without defaming a Law and an
more strongly be said against the General 2. The 130. Act. Par. 8. James VI. is expresly founded on because nothing can be a greater diminution of the power of the Parliament than to introduce a way or mean whereby all their Acts and Oaths shall be made insignificant and ineffectual as this Paper does make them for the Reasons represented Nor are any of the Estates of Parliament secure at this rate but that they who reserved a general power to make all alterations may under that General come to alter any of them 3. What can be a greater impugning of the Dignity and Authority of Parliaments than to say That the Parliament has made Acts for the security of the Kingdom which are in themselves ridiculous inconsistent with themselves and the Protestant Religion And as to what is answered against invading the Kings Prerogative and the Legislative Power in Parliaments in adding a part to an Oath or Act is not relevantly inferred since the sense of these words And this I understand as a part of my Oath is not to be understood as if any thing were to be added to the Law but only to the Oath and to be an interpretation of the Oath It is replied That after this no man needs to add a Caution to the Oath in Parliament But when he comes to take the Oath do the Parliament what they please he will add his own part Nor can this part be looked upon as a sense For if this were the sense before this Paper he needed not understand it as a part of it for it wanted not that part And in general as every man may add his own part so the King can be secure of no part But your Lordships of Justitiary are desired to consider how dangerous it would be in this Kingdom and how ill it would sound in any other Kingdom That men should be allowed to reserve to themselves liberty to make any alteration they thought fit in Church or State as to the legality of which they were themselves to be Judges And how far from Degree to Degree this at last may come to absolute Anarchy and how scandalous a thing as well as unsecure this new way may look in an Age wherein we are too much tracing the steps of our rebellious Progenitors in the last whose great detection and error was That they thought themselves and not the King the Authors of Reformation in Church and State And no man ever was barred by that that the way he was upon was not a lawful way For if it be allowed to every man to take his own way every man will think his own way to be the lawful way As to the Perjury it is founded on this first That perjury may be committed not only by breaking an Oath but even in the swearing of it viz. to swear it with such Evasions as make the Oath ineffectual For which Sandersone is cited Pag. 138. Alterum Perjurii genus est novo aliquo excogitato Commento Iuramenti vim declinare aut eludere Iurans tenetur sub poena Perjurii implere Secundum Intentionem deferentus both which are here For the Earl being bound by the very Oath to swear in the genuine meaning without any evasion he has sworn so as he has evaded every word there being not one word to which it can be said particularly he is bound as is said And it is undeniable that he has not sworn in the sense of the makers of the Law but in his own sense which is Perjury as is said And consequentially whatever sense may be allowed in ambiguous Cases yet there can be none where the Paper clearly bears Generals And where he declares That he takes it in his own sense His Majesties Advocate declares he will not burden himself that Copies were disperst tho it is certain since the very Paper it self by the giving in is chargeable with all that is above charged upon it Sir John Dalrymple's Defence and Plea for the Earl of Argyle by way of Reply upon the King's Advocate SIR John Dalrymple replies for the Pannel That since the solid grounds of Law adduced in the Defences have received no particular Answers in relation to the common consent of all Casuists viz. That a party who takes an Oath is bound in Conscience to clear and propose the terms and sense in which he does understand the Oath Nor in relation to the several Grounds adduced concerning the legal and rational Interpretation of dubious Clauses And since these have received no Answers the Grounds are not to be repeated but the Proctors for the Pannel do farther insist on these Defences 1. It is not alledged That any Explanation was given in by the Pannel to any person or any Copy spread before the Pannel did take the Test in Council So that it cannot be pretended That the many Scruples that have been moved concerning the Test did arise from the Pannel's Explication But on the contrary all the Objections that are answered and obviated in the Pannel's Explication were not only privately muttered or were the thoughts of single or illiterate persons but they were the difficulties proposed by Synods and Presbyteries long before the Pannel came from home or was required to take the Test So that the general terms of the Acts of Parliament founded upon in the Libel are not applicable to this Case For as these Laws in relation to Leasing makers are only relative to atrocious wilful Insinuations or misconstructions of His Majesties Person or Government or the open depraving of his Laws so the restrictive Clause whereby sedition or misconstructions may be moved raised or engendered betwixt His Majesty and his Liedges cannot be applied to this Case where all these Apprehensions and Scruples were on foot and agitated long before the Pannel's Explanation As it cannot be pretended That any new dust was raised by the Pannel's Explanation so it is positively offered to be proved That there is not one word contained in this Explanation but that either these individual words or much worse had been publikly proposed and verbatim read in Council without the least discouragement or the least objection made by any Member of the Council And where a Writing ex proposito read in so high a Court was universally agreed upon without the alteration of a Syllable how can it be pretended That any person thereafter using the said in â—ividual terms in any Explanation and far easier terms that they shall incur the high and infamous Crimes libelled And the question is not here Whether the Council was a proper Judicature to have proposed or imposed a sense or allowed any Explanation of the Test to be published but that it is impossible that a sense they allowed or being publikly read beâ—ore them and which the Kings Advocate did not controll that this should import Treason or any Crime And tho the Pannels Advocate will not pursue or follow the Reply that has been made to this point yet
certainly no man of sober sense will think that it is fit to insinuate that so high a judicature might have authorized or acquiescedin such Explanations as the Liedges thereafter should be entrapped to have used If the Pannel had officiously or ultrâ—neously offered a sense or Explanation of His Majesties Laws which the Laws themselves could not have born it might justly have been alledged that he was extraordinem and medling in a matter he was not concerned in but where the Act of Council did enjoyn and he was required and cited to that effect It could neither be constructed as ostentation or to move or encourage Scruples or Resistance but it was absolutely necessary either for to have refused the Test or else to have declared what he thought to be the true and genuine meaning of it And there being so many objections publikly moved and known his Explanation was nothing else but to clear That he did not look upon these Scruples and Objections moved by others as well founded and rational in themselves and therefore he was able to take the Test in that sense the Council had heard or allowed And it is not controverted that the sense of the Legislator is the genuine sense both of Laws and Oaths And if a person were only interpreting the meaning of either a Law or an Oath imposed he should deprave and misconstruct the Law and Oath if he rendered it wittingly and willingly in terms inconsistent with the meaning of the imposer But there is a great difference betwixt taking of Oaths and interpreting Oaths For when a man comes to take an Oath except his particular sense did agree with the genuine meaning of the imposer he cannot take that Oath tho he may very well interpret and declare what is the sense of the Legislator which he may know and yet perhaps not be able to take the Oath And therefore when there is any doubtfulness in an Oath and a party is bound to take it if then he gives in an Explication of the sense which he in his private judgment doth apprehend to be the genuine meaning if that private sense be disconform to the Legislators sense in the Oath then the Imposer of the Oath or he that has power to offer it to the party if he consider the parties sense disconform he ought to reject the Oath as not fulfilling the intent of the Law imposing it But it is impossible to state that as a Crime That a party should neither believe what is proposed in the Oath nor be able to take it And he can run no farther hazard but the penalty imposed upon the Refuser And therefore in all Oaths there must be a concourse both of the sense imposed by Authority and of the private Sense Iudgment or Conscience of the party And therefore if a party should take an Oath in the Sense proposed by Authority contrary to his own sense he were perjured whereby it is evident that the sense of Authority is not sufficient without the acquiescence and consent of the private person And therefore it is very strange why that part of the Pannel's Explanation should be challenged that he takes it in his own Sense the posterior words making it as plain as the light that that sense of his own is not what he pleases to make of the Oath for it bears expresly that no body can explain it but for himself and reconcile it as it is genuine and agrees in its own sense So that there must be a Reconciliation betwixt his own sense and the genuine sense which upon all hands is acknowledged to be the Sense of Authority And if the Pannel had been of these lax and debaucht Principles that he might have evaded the meaning and energy of the Oath by imposing upon it what sense he pleased certainly he would have contented himself in the general refuge of Equivocation or Mental Reservation and he would never have exposed his sense to the world in which he took this Oath whereby he became absolutely fixed and determined to the Oath in that particular sense and so had no latitude of shuffling off the Energy or Obligation of the Oath And it is likewise acknowledged That the Cases alledged in the Reply are true viz. That the person is guilty of Perjury si aliquo novo Commento he would elude his Oath or who doth not fulfil the Oath in the sense of the Imposer But that does not concern this Case For in the foresaid Citation a person after he has taken an Oath finding out some new conceit to elude it he is perjured but in this Case the Pannel did at and before his taking the Test declare the terms in which he understood it So that this was not novâ— aliquo commento to elude it And the other Case where a party takes it in the sense of Authority but has some subterfuge or concealed Explanation it is acknowledged to be Perjury But in this Case there was no concealed Explanation but it was publikly exprest and an Explanation given which the Pannel designed and understood as the meaning of Authority and had ground to believe he was not mistaken since upon that Explanation he was received and allowed to sit and vote in Council And as to that part of the Reply that explains the Treason there can be no Treason in the Pannel's Case because the express Act of Parliament founded upon doth relate only to the Constitution of the Parliament And I am sure His Majesties Advocate cannot subsume in these terms And therefore in the Reply he recurs to the general Grounds of the Law That the usurping of His Majesties Authority in making a part of the Law and to make alterations in general and without the King are high and treasonable words or designs and such as the party pleases and such designs as have been practised in the late times And that even the adjection of fair and safe words as in the Covenant does not secure from treasonable Designs and that it was so found in Balmerino's Case tho it bear a fair Narrative of an humble Supplication It is replied That the usurpation of making of Laws is undoubtedly treasonable but no such thing can be pretended or subsumed in this Case For albeit the Pannel declares his Explanation to be a part of his Oath yet he never meaned to impose it as a part of the Law or that this Explanation should be a thing distinct or a separate part even of his Oath For his Explanation being but exegetik of the several parts of the Oath it is no distinct thing from the Oath but declared to be a part of the Oath de natura rei And it was never pretended That he that alledged any thing to be de natura rei did say That that was distinct and separate which were a Contradiction And therefore the Argument is retorted the Pannel having declared this Explanation was de natura rei implied in the Oath he necessarily made this
that he is holden as a Refuser of the Oath and liable to the Certification of the Act of Parliament of not assuming and continuing in any publik Trust And no more was intended or designed by the Act of Parliament it self than strictly to make the Oath in the true and genuine sense and meaning of the Parliament an indispensible qualification of persons admitted to publik Trust. So that it is not at all material to dispute whether the Pannel's Explication can be looked upon as a full satisfaction of the Act which whether it should or not it can import no Crime against him it not being consistent with Sense and Reason that a person who absolutely refuseth the Test upon the scrupulosity of his Conscience albeit he be not capable of publik Trust should be notwithstanding looked upon as guilty of no Crime and yet another who was willing to go a greater length albeit he did demur and scruple as to the full length that he should be reputed criminal and guilty of a Crime 2. The Pannel repeats and conjoyns with this the grounds above-mentioned contained in his Defences viz. That neither the Crimes libelled nor any other Crime were ever pretended or made use of against any others who did spread abroad Objections of an high nature which yet were so favourably looked upon as to be construed only to proceed from scrupulosity of Conscience as also the satisfaction endeavoured is in such terms and by such condescensions as do take in and justifie the whole terms of the Explication libelled It is of great moment and whereof the Lords of Justitiary are desired to take special notice both for clearing the absolute innocence of the Pannel's meaning and intention and to take off all possible misconstruction that can be wrested or detorted from the tenor and expressions of the libelled Explication That the Pannel was put to and required to take the Oath before the Lords of His Majesties Privy-Council did pass and pubish their Proclamation explaining the Oath and declaring the genuine sense and meaning thereof namely That it did not tye to the whole Articles of the Confession of Faith ratified by Act of Parliament James 6. and which as to several Articles thereof had occasioned the scruples and difficulties and alledged inconsistency and contradiction betwixt the last part of the Oath and the said Confession and betwixt some of these Articles and the Currant of the Protestant Doctrine received and contained in the Syntagma of the Protestant Confessions And therefore if the Pannel at that time did think fit for the clearing and exoneration of his own Conscience to use the expressions in the Explication libelled and yet with so much duty and confidence of the Parliaments Justice as to their meaning and intention That the Parliament never intended to impose contradictory Oaths and that he did take it so far as it was consistent with it self and the Protestant Religion not knowing then whether the whole Confession was to be reputed a part of the Oath and doubting there-anent and which the Lords of His Majestie 's Privy-Council his Sacred Majesty by his approbation since have thought a difficulty of so great moment as it was fit to clear the same by a publik Proclamation How now is it possible that any Judicatory under Heaven which proceeds upon the solid grounds of Law and Reason and who it cannot be doubted will have a just regard to the intrinsik Principles of Justice and to all mens security that they can now believe all or any of the Crimes libelled should be in the least inferred from all or any of the expressions contained in the said Explication But that on the contrary it was a warrantable allowance and Christian practice condemned by the Law and Custom of no Nation That having scruples in the matter of an Oath which should be taken in Truth Iudgment Righteousness and upon full deliberation and with a full assurance and sincerity of mind That he did plainly openly and clearly declare the sense in which he was willing to take it and if Authority did allow it as the genuine sense of the Oath the Pannel to be holden as a Taker of the Oath And if upon farther consideration Authority think not that habetur pro Recusante and a Refuser of the Oath but no ways to be looked upon as a criminal or guilty person And the Pannel repeats and conjoyns with this point of the Reply that point in his Defence whereby he positively offers to prove 1. That his Explication and the sense wherein he took the Oath was heard and publikly given and received in Council and the Pannel thereafter allowed to take his place and sit and vote in that Sederunt 2. The Pannel also offers positively to prove That the tenor and terms of his Sense and Explication wherein he did take the Oath is contained in that Solid Learned and Pious Vindication written by the Bishop of Edenburgh in answer to the Objections and alledged inconsistencies and contradictions in the Oath and which Vindication was publikly read in Council and so far approved that it was allowed to be printed and published and was accordingly dispersed and spread abroad And it is not of the least import that the Proclamation of the Lords of Privy-Council altho it does only allow the same to be taken by the Clergy yet at the same time they expresly declare the genuine sense and meaning of the Parliament not to comprehend the whole Articles of the Confession which was not cleared before the Pannel's taking his Oath And whereas it is pretended That the Acts of Parliament libelled upon against Leasing makers depravers of His Majesties Laws do obtain and take place where-ever there are any words or expressions that have a tendency in themselves or by a natural consequence and rational inferences to reflect upon the Government or misconstrue His Majesties Prooceedings and that the Explication libelled is such and that it was found so in the Case of Balmerino albeit it was drawn up by way of humble Petition and Address to His Majesty and with great Protestations and Expressions of Loyalty It is answered The Acts of Parliament libelled upon are opponed and the 43d Act Par. 8. James 6. and the other Acts making the depraving of His Majesties Laws to be Crimes do expresly require that Speeches so judged be perverse and licentious Speeches ex natura sua probrosae and reproachful and spoke animo defamandi and which could not receive any other rational Construction which cannot in the least be applied to or subsumed upon the words or Explication given in by the Pannel And Law and Reason never infers or presumes a Crime where the thing is capable of a fair and rational Construction and where it was done palam and publikly and in presence of His Majesties High Commissioner and Lords of His Majesties Privy-Council whereof the Pannel had the honour to be a Member Persons commiting and designing to commit Crimes making
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 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
reproach and ranverse the standard make void the very security that the Parliament intended then to say That he swears the Test as it agrees with it self the Protestant Religion which imports no such insinuation But from these pleasant Principles He jumps in to this Fantastik Conclusion That therefore it cannot be denyed but the Earl's interpretation destroyes not only this Act but all Government and makes every mans conscience or humour the Rule of his obedience But first as to the whole of his arguing the Earl neither invents sayes nor does any thing except that he offered his Explanation to the Council which they likewise accepted 2ly What mad inferences are these You say you will explain this Oath for your self therefore you overturn all Government and vvhat not Whereas it is manifest on the other hand that if the Earl apprehending as he had reason the Oath to be ambiguous and in some things inconsistent had taken it vvithout explaining it for himself or respect to its inconsistency it might have been most rationally concluded that in so doing he was both impious and perjured 3ly It is false that the Earl doth make his Conscience any other way the rule of his obedience then as all honest men ought to do That is as they say To be Regula regulata in conformity to the undoubted Regula regulans the eternal rules of truth and righteousness as is manifest by his plain words As for what the Advocate insinuats of humour insteed of Conscience it is very well known to be the Ordinary reproach whereby men that have no Conscience endeavour to defame it in others But the Advocate is again at it and having run himself out of all consequences he insists and inculcats that the Earl hath sworn nothing But it is plain that to swear nothing is none of the crimes libelled 2ly The Earl swears positivly to the Test as it is consistent vvith it self and the Protestant Religion which certainly is something unless the Advocate prove as he insinuats that there is nothing in the Test consistent with either And 3ly if the Protestant Religion and the Earl his reference to it be nothing then is not only the Council sadly reproached who in their Explanation declare this to be the only thing sworn to in the first part of the Test but our Religion quite subverted as far as this Test can do it But next for the treason the Advocate sayes That the Earl expresly declares he means not by the Test to bind up himself from vvishing or endeavouring in his station and in a lavvful vvay any alteration he shall think for the advantage of Church or State whereby sayes he the Earl declares himself and others loosed from any obligation to the Government and from the duty of all good Subjects and that they may make vvhat alterations they please A direct contrariety insteed of a just consequence as if to be tyed to Lavv Religion and Loyalty were to be loosed from all three can there be a flatter and more ridiculous contradiction Next the Advocate pretends to found upon the fundamental Laws of this and all nations whereby it is treason for any man to make any alteration he thinks fit for the advantage of Church or State But first The Earl is not nor cannot be accused of so much as wishing much less endeavouring or making any alteration either in Church or State only he reserves to himself the same freedom for wishing which he had before his Oath and that all that have taken it do in effect say they still retain 2ly For a man to endeavour in his station and in a lavvful vvay such alterations in Church or state as he conceives to their advantage not repugnant to Religion and Loyalty is so far from being treason that it is the duty of every subject and the Svvorn duty of all His Majesties Councellors and of all Members of Parliament But the Advocate by fancying and misapplying Lavvs of Nations wresting Acts of Parliaments adding taking away chopping and changing words thinks to conclude what he pleases And thus he proceeds That the treason of making alterations is not taken off by such qualifications of making them in a lavvful vvay in ones station to the advantage of Church or State and not repugnant to Religion or Loyalty But how then Here is a strange matter Hundreds of alterations have been made within these few years in our Government in very material points the Kings best Subjects and greatest Favourits have both endeavoured and effectuat them And yet because the things were done according to the Earl's qualifications insteed of being accounted treason they have been highly commended rewarded The Treasury hath been sometimes in the hands of a Treasurer sometimes put into a Commission backward and forward And the Senators of the Colledge of Iustice the right of whose places was thought to be founded on an Act of Parliament giving His Majestie the Prerogative onely of presenting are now commissioned by a Patent under the great Seal both which are considerable alterations in the Government which some have opposed others have vvished and endeavoured and yet without all fear of treason on either hand only because they acted according to these qualifications in a lawful way and not repugnant to Religion and Loyalty But that which the Advocate wilfully mistakes for it is impossible he could do it ignorantly is that he will have the endeavouring of alteractions in general not to be of it self a thing indifferent only determinable to be good or evil by its qualifications as all men see it plainly to be but to be forsooth in this very generality intrinsecally evil a notion never to be admitted on earth in the frail and fallible condition of human affairs And then he would establish this wise Position by an example he adduces That rising in arms against the King for so sure he means it being otherwise certain that rising in arms in general is also a thing indifferent and plainly determinable to be either good or evil as done with or against the Kings Authority is treason and sayes If the Earl had reserved to himself a liberty to rise in arms against the King though he had added in a lavvful manner yet it would not have availed because and he sayes well This being in it self unlavvful the qualifications had been but shamms and contrariae facto But why then doth not his own reason convince him â—here the difference lyes viz. That rising in arms against the King is in itself unlawful whereas endeavouring alterations is only lawful or unlawful as it is qualified and if qualified in the Earl's Terms can never be unlawful But sayes the Advocate The Earl declares himself free to make all alterations and so he would make men beleeve that the Earl is for making All or Any without any reserve whereas the Earl's words are most express that he is Neither for making all or any but only for wishing and
Parliament but did himself report none to either He acknowledged the Letter which could never have been proven to be his and as soon as he heard that it was intercepted did render himself to his Majesty before he was called for But which very much troubled him had not access Yet his Majesty was so gracious that in stead of sending him prisoner to Scotland with a guard as was much pressed he allowed him to go down on a verbal bale And his Majesty was pleased to say That he saw nothing in the Earl's Letter against his Majesty or the Parliament but believed the Earl did design to reflect on the Earl of Midletoun The Earl came to Edinburgh a fourthnight before the day appointed by his Majesty and thought to have had the liberty of the city till that day should come but was sent to the Castle the next day after his arrival Upon which he advertised his Majesty of his condition who would hardly believe they would take his life till it was told plainly it was designed and if he died it lay at his Majesties door upon which his Majesty was graciously pleased to send immediatly an order to the Earl of Midletoun not to proceed to Execution against him Yet the Sentence of death was pronounced and the day of Execution remitted by the Parliament to the Earl of Midletoun Which he accepted of albeit he had no particular instruction for it from his Majesty which before a year went about Earl Midletoun found could not be justified by him and some of the Earl's chief accusers were declared by his Majesty to be themselves Leasing-makers And then the Earl by his Majesties favour and goodness was restored to a part of his Predecessors estate and titles which he took as thankfully as if a new estate and new and greater honours had been conferred upon him And though His Majesty was pleased at the granting of these titles to say he could help them when he pleased yet his Majesty knows that the Earl never troubled him about any such matter nor solicitedh im now these eighteen years for any Title Office or Imployment though he confesses he had of all sorts nor hath he been burthensome to his Majesties Exchequer 500 l yearly for 4 or 5 years that the Earl served in the Treasury being all that ever he touched of his Majesties money albeit few attended more and none so much that lived at his distance He was also twice at London to kiss his Majesties hands but still on his own charges Which things are not said to lessen his Majesties bounty and goodness whereof the Earl still retaines all just tender and dutifull impressions but to answer the Advocate and to teach others to hold their peace that cannot say so much His life is known to have been true honest and of a peece and all alongs he hath walked with that straightness that he can compare his integrity with all that now attacque him By all which it is apparent that what the Advocate here pretends for an aggravation may well be accounted a second part of the Earl's persecutions but cannot in the least impair either his innocence or his honour Seeing therefore the ground of the Earl's present accusation with all he either designed said or did in this matter was only that when called nay required to take the Test and after leave first obtained from his Highness and Council he did in their presence before the giving of his Oath declare and propose to them the sense wherein he was willing to take it That this his sense neither containes nor insinuats the least slander reproach or reflection either upon the King the Parliament or any Person whatsomever but on the contrair is in effect ten fold more agreeable to the words of the Test and meaning of the Parliament that framed it then the Explanation emitted by the Council and was also most certainly the first day by them accepted and when the next day challenged by him offered to be retracted refused to be signed That the whole Indictment more especially that part of it about the Treason is a meer Rapsody of the most irrational absurd and pernicious consequences that ever the sun beheld not only forcing the Common rules of speech charity and humanity but ranversing all the Topiks of Law Reason and Religion and threatning no less in the Earl's person then the ruine of every mans fortune life and honour That the Earl's Defences and grounds of Exculpation were most pregnant and unanswerable and either in themselves notour or offered to be instantly verified And lastly That the aggravations pretended against him do either directly make for him or most evidently discover the restless malice of some of his implacable enemies Shall our Gracious King who not only clearly understands right and hates oppression but also to all his other excellent qualities hath by his Gentleness and Clemency even towards his Enemie added that great Character of Goodness upon vain and false insinuat ions and unreasonable and violent stretches not only take away the Life of an innocent person but of one who himself and his family be it said without disparagment have for a longer time and more faithfully and signally served His Majesty and the Croun then any person or family of his degree and quality of all his Persecuters can pretend to Shall his numerous family hopeful children his friends and creditors all be destroyed Shall both former services be forgot innocence oppressed and all rules of justice and Laws of society and humanity for his sake overturned Shall not only the Earl be cut off and his noble and ancient Family extinguished but his Blood and Memory tainted with as black and horrible a stain as if he had conspired with Jacques Clement Ravillack The gun-pouder Miscreants The bloody Irish Rebells and all the other most wicked hainous traitours of that gang And all this for a meer imaginary crime whereof it is most certain that no man living hath or can have the least reall conviction and upon such frivolous allegations as all men see to be at the top meer moon shine and at the bottom villanie unmixed After clearing these things the Earl it seems intended to have addressed himself to his Majesties Advocate in particular and to have told him that he had begun very timously in Parliament to fall first on his heritable jurisdictions and then upon his Estate and that now he was fallen upon his life and honour whereby it was easy to divine that more was intended from the beginning then the simple taking away of his Offices seeing that some of them on his refusing the Test were taken away by the certification of the Act of Parliament and that those that were heritable he offered in Parliament to present and surrender to his Majesty on his knee if his Majesty after hearing him should think it fit only he was not willing to have them torn from him as hath been said and if
or culpam as of old but durante beneplacito And 4ly Are not such as were most forward and active in the Earl's comdemnation proportionally rewarded And as for the Earl's Jurors or Assizers you have heard a full account of them in the Narrative 2ly Our Author tells us That the King and his Ministers were under no tentation against the Earl That there was no design against his life That His Royal Highness albeit informed of an escape intended yet gave express order not to keep him strictly even after he was found guilty As also His Highness ordered that Advocates should be prest to appear for him And in fine that the Earl was very discreetly and respectfully used And. 1. As to His Majesty He is indeed most freely assoiled of all either inclination or tentation in this matter except that of importunity But 2ly For His Ministers the contrivers and actors their tentations may be guessed at by what is said in the Narrative And if they also had none it only sayes that they run without driving and are the lesse excusable 3ly How forward His Highness and the Council were to press Advocates in the Earl's cause and to grant his Petitions though founded on clear Acts of Parliament how false it is that his Royal Highness had any information of the Earl's intention to escape and notwithstanding ordered that he should not be strictly keept and whether or not there was a design to take the Earl's life you have already and I hope plainly and satisfyingly seen in the Narrative But pray remark the solly of this self-condemned reasoning For. 1. If the Earl was truly guilty of these worst of crimes Leasing-making Depraving and Treason why should he not have died And if he was not guilty what wickedness was it to give Sentence against both his Life and Fortune and since by disposing on his whole estate to execut it as far as possible And 2ly Is it not a pleasant conceit to imprison arraign for Treason and find guilty and crave leave to Sentence a Person of the Earl's quality And then to take away all his Estate and yet to tell the world there was no design against his Life Solomon sayes As a Mad man who casteth firebrands arrows and death so is the man that deceiveth much more condemneth his nighbour and saith am not I in sport And Machiavel whose Politiks may be with some are in more request then Solomons Proverbs taxeth it as no less impolitik to take away a man's Estate and yet spare his Life And yet notwithstanding ouâ— wiser and more politik Author will have us to believe neither But 4ly Yet the Earl was very respectfully used And this must go far from such hands And was he not indeed so when he was 1. Summarly imprisoned without Bale or Mainprise 2ly Arraigned before the Justice-Court and not reserved to the Parliament as is usual for Persons of his rank especially the Parliament being then current and its next Session near approaching 3ly Refused access to or opportunity to speak with His Royal Highness though it was often and much desired And 4â—ly When by the Sentence his Blood was tainted his Posterity disabled and his Escucheon and Arms thereafter torn and ranversed as if he had been the worst of traitors I grant it was observed that the debate in the Process was managed on both hands with a more then ordinary coolness but as something must be imputed on the one part to His Majesties Advocat's secret conviction of these strange impertinencies whereunto the discharge of his Office obliged him and on the other hand to the Earl's Advocates their perswasion that his words were so innocent that hardly any thing could be said that was not equally criminal so it is certain that the main cause was that both the one and the other knew that the design was laid and the issue inevitable Thirdly This Vindicator sayes That the Earl's Jurisdictions and Estate could be no tentation for the late Advocate had given such reasons against his Right to these Iurisdictions and Superiorities as could not be answered and that the King got nothing for his Royal Highness procured more of it to his children then belonged to the Family debts being payed And the remainder was given among the Creditors and the tithes returned to the Church But. I. Our Author goes on still to disown tentations which can signify nothing save to confirm more and more that the Earl was overthrown and ruined by pure Malâ—ce For if there was no tentation either against his Person or Estate and yet notwithstanding of his innocence which all men see the former be subjected to a Sentence of death and the later quite taken from him must not this strange severity proceed from a very extraordinary good Nature 2ly Our Author disowns any design against the Earl's life But affirms That there are reasons unanswerable against his Iurisdictions and Estate And yet instead of making use of these reasons civily to take away his Jurisdictions and Estate his life is criminally and principally persued How are these things consistent But that which is crooked cannot be made straight 3ly It is false that ever the late Advocate or any other represented any reasons far less unanswerable ones against the Earl's Rights either to his Estate or Superiorities And the whole truth in this matter is that he did indeed offer some reasons to the Exchequer against the Earl's Right to his Jurisdictions but which at the same time were so evidently refelled by shewing that the Earl's Rights were long anterior and no way touched by all the Acts of Parliament whereon he founded that His Majesty after full information did first by his Letter a copy whereof ye will find subjoyned expressly order the passing and confirming of the Earl's Rights and then give a special Instruction unto his Commissioner to ratify it in plene Parliament which was also done And what the present Advocate did in the last Parliament and how it succeeded with what else may be needful for clearing of this point you have already in the Narrative 4ly Our Author first confounds the Earl's Estate and his Superiorities as if one and the same thing Whereas a man's Estate includs also his Property But the Second mistake and the greater cheat is because the word Superiority sounds more of power then the word Property doth therefore the Earl's enemies do in his case constantly joyn his Jurisdictions and Superiorities as if both of the same nature and equally amissable for not taking the Test or any the like cause And hereby have they so far impressed His Majesty as to cause him also speak at the same rate Whereas it is an uncontestable truth that a Superiority in its Right and as to the person that enjoyes it is plainly Property and is only called Superiority because the Owner by granting according to the use of the Feudal Law a Subaltern Right to a Vassal holding or releving of himself for certain Services
or for a Quit-rent thereby becomes his Vassal's Superior a practice plainly authorized and much recommended by old Acts of Parliament as the best advancement of Policy Which things are not said as if the Earl had not as good a Right to his Jurisdictions as to his Superiorities Seeing he is fully secured in both by the Laws of the land but Jurisdictions being of their own nature subject to many Laws and regulations that nowise concern Superiorities or Property and the Earl's Superiorities being in effect a considerable part of his Estate it is very much his interest that they be distinguished to prevent his adversaries imposings But 5ly That you may the better discover their designs against the Earl Here you see the world is told that he hes no right to his Jurisdictions and Superiorities But in the Gift that they have lately moved His Majesty to grant of the Earl's forfaulture they make His Majesties deed to proceed upon quite different reasons in these terms viz That His Majesty in the first place wills and declares that all the Earl's Iurisaictions Offices Superiorities c. Shall for ever be consolidat and remain with the Croun as being necessary for the support of his Government and too dangerous for him and his people to be heritably in the hand of any of his subjects and his Majesty never having designed to dispon the same Which considerations though they might be of some moment in the case of a just forfaulture yet in the Earl's case wherein it is known that before his trial they were the main reasons pretended to work his overthrow by this sham-Treason they can nowise be regarded because it is most certain 1. That the Earl's Superiorities do no more concern the Crown and Government then his Property and that by the same reasoning or rather Ostracism any man's Estate whether Superiority or Property as men may phansie them to exceed their arbitrary measures may be taken from him on as good pretexts 2ly That the reasons assigned do so little militate against the Earl's Iurisdictions that these Jurisdictions were expressly given to his Predecessors and made heritable in his Family for eminent Services peformed to the Crown and upon convincing experience that they could not be better disposed on for the support of his Majesties Government and protection of his people especially against the savage Islanders and their partakers However some because of their Popery and Barbarity think fit at present to patronize them 3ly With what colour can these things be alledged for consolidating with the Crown the Earl's Jurisdictions and Superiorities When we see Jurisdictions and Superiorities as considerable that were taken from his Family by his Father's forfaulture whereof you have a just account in the Narrative conferred upon the Marquess of Huntly and new Regalities and Jurisdictions of as great import bestowed upon the Marquess of Queensberry and others against most express Acts of Parliament But 4ly The Truth and ingenuity of all this procedure may be best judged by the last allegiance wherein they cause His Majesty affirm under his great Seal That he never designed to dispon these Superiorities and Iurisdictions to the Earl Albeit as to the Superiorities his Majesty never scrupled and as to the Jurisdictions he did not only actually dispon them but after being fully informed of all the objections could be moved in the contrary he did expresly own ratify and confirm the deed first by his Letter hereafter set down then by his special Instruction to his Commissioner and 3ly by his solemn Ratification in Parliament But suppose the Earl be unjustly spoiled ofall his fortune yet sayes our Author the King by the generous interposition of his Royal Highness for if you will believe this Loyal Vindicator it is still His Highness Clemency that mitigats His Majesties rigours hath administrat very honestly getting nothing to himself for as to the Earl's Iurisdictions and Superiorities though they were just now of that value as to be necessary to the King for the support of the Government and dangerous in the Earl's person to both King and people yet here they are accounted less then nothing but giving more of it to his Children then belonged to the Family debts being payed and the rest to the Creditors and the tythes to the Church A short specious account of a world of iniquity for though the Earl be fully perswaded that his Majesty neither desires any thing of his Estate nor expects any advantage by the destruction of his Family yet is it not in the first place hard above measure that the Earl should be in the same manner deprived divested of all without the least consideration of his Person as if he had been sentenced for the most hainous Perduellion 2ly Notwithstanding all here said and though it was once given out that the Earl's eldest Son should have a considerable addition to what he presently enjoyes and that the rest of the Children should get their just Provisions yet the eldest is still left lyable to the provisions of his Brothers Sisters and to severall of his Father's debts without any releef and hath not yet got one farthing either in money or security more then the setlement made upon him by the Earl at his marriage wherein he was is in Law secured beyond the reach of any forfaulture could fall upon his Father And for the rest of the Children not only have they got no sufficient security but some smal Payments appointed them by his Majesty are said to be restrained unless the Earl's Rights be delivered up A thing altogether unusual which argues in the Demanders a manifest diffidence of the Right of forfaulture and were both inhumane and is impossible for the Children to do 3ly Waving the false and invidious insinuation here made of the Earl's debts take this brief account of the condition whereunto at present his Estate and Creditors are reduced When His Majesty returned the late Marquess of Argyle as you may read in the Narrative had undertaken and stood engaged for debts of the House of Huntly amounting to 35000 l Sterl Yet upon Argyle's forfaulture the Marquess of Huntly's Estate extending to 4000 l Ster yearly Rent whereof Argyle was legally possest for his releef was taken from Argyle and given to Huntly without any burthen and all that debt left on the Family of Argyle Thereafter his Majesty thought fit to restore this Earl of Argyle to a part of his Father's old Estate and to appoint the rest of it for payment of Creditors in the order then prescribed whereupon the Earl agreeing with as many of the Creditors as according to His Majesty's assignment acclaimed the remainder he was setled in what he possesses with a considerable burthen And thus his Right was then established though with the heavy prejudice of a great many other Creditors who being truly Creditors of the House of Huntly became only Creditors to the late Marquess of Argyle in the manner you
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
upon the foâ—faulture of the late Marqueis of Argyl his Estate was annexed to the Croun and so could not be gifted to the Earl by His Majestie wherein they soon discovered a design to forfault him if any pretence could be found But the Act of Forfaulture being read and containing no such thing but on the contrary a clear power left to His Majestie to dispose of the whole and the Earl telling them plainly that these that were most active to have his Father forfaulted were very far from desiring his Estate to be annexed to the Croun seeing it was in expectation of Gifts out of it they were so diligent that pretence of the annexation was past from but yet the designe was nowise given over for there was a proposition made and a vote caried in the Articles that a Committee should be appointed with Parliamentary power to meet in the intervals of Parliament to determine all controversies could be moved against any of the Earls rights Which was a very extraordinary device and plainly caried by extraordinary influences Upon this the Earl applyed to the Parliament where this vote was to be brought and having informed the members of his right and the consequences of such a new Judicature he had good hope to get the vote ranversed when his Royal H s on second thoughts judged it fit to put a stop to it and excused himselfe saying it was his not being acquaint and but lately in affairs had made him go along with it for he found it did plainly impugn His Majesties prerogative and might be of ill consequence and indeed it is plain enough It would have exposed the Marqueis of Huntli'es gift which proceeded on the same forfaulture as well as the Earl of Argyls to the same and far greater hazard as some came to be sensible when they heard all You see here at what rate the Earl was pursued and on what grounds before his taking of the Test came in hand After the Parliament was adjurned there was a new design to apply to His Majestie for a Commission of the same nature for reviewing all the Earls rights and to deprive him of his heritable offices and if possible to burden him with more debts then his Estate was worth Upon which the Earl waited on his Highness and informed him more particularly offering to make it appear by unquestionable rights and evidences That his Estate was not subject to any such review as was intended And that it might breed the Earle great trouble but could have no effect in Law To which his Highness answered That a review could do no hurt The Earl said If a commission for a review were granted some thing must be intended and some thing must be done and it was very like that some of these put into such a commission would be his enemies at least small friends and therefore intreated that if any intended to quarrel his rights they and he and all their debates might be remitted to the Ordinary Iudicatories And indeed he had reason to desire it might be so the Ordinary Iudicatories being established by the ancient Laws of the Kingdom not in order or with respect to particular causes and persons but for the general equal and impartial administration of Justice to all Whereas the granting particular Commissions for trying and judging such and such cases and persons cannot but expose to the just contrary inconveniences there being certainly a vast difference betwixt a mans finding a judge indifferently constitut and his having one expresly and particularly appointed for his single affair who might possibly think himself commissionat rather to serve a turn in ane arbitrary way then to administer fair Justice but all this prevailed not Only his Highness said The commission should not be expede untill the Earl knew the names of the Persons insert in it Whereunto the Earl answered That their might be many Persons against whom he could make no legal exception whom yet he might have very good reason to decline to be his particular judges and to have his rights taken from the ordinary Judges and committed to their examination and all he might possibly gain by excepting would be to irritat Adding that as to his heritable offices he had undoubtedly right to them and they were rather honourable then of advantage that his family had them for faithful services to the Crown and because they had served more faithfully then their Neighbours and been more useful then others in keeping the Countrey in peace from Thieves and Robbers therefore all the broken men and their patrons were enemies to him and his family and desirous to have these offices out of his hands but he resolved to doe as he had alwise done to put himself in His Majest will and if His Majest were resolved to have back all heritable offices and should think fit after hearing him to have back his His Majestie should have them either freely or for a just value For though they rendered the Earl no free yearly rent as the Earl used them yet he might be a sufferer in the want of them if the Country were left open to Thieves and Robbers which he hoped His Majestie would repair His rights as he had said in Parliament were unquestionable and oftentimes confirmed Yet he was willing to surrender them all on his knee to His Majestie but was not willing to have them â—orn from him with ane affront by any other Upon this his Highness was pleased to allow the Earl a time to go to the Country to bring his Papers and he was put in hopes no Commission should passe till his return which was indeed observed In the mean time the Earl did write to the Earl of Murray His Majest Secretary that he might have leave to wait upon His Majesty which His Majesty did graciously and readily grant The Earl purposing at his return to Edinburgh to beg the same favour of His Highness But he found this motion more fatal to him then he could have at first expected so innocent a design could prove For it was at first told him he could not have access to kiss His Majesty's hand without taking the Test then it dropt out that it was ill taken His Majesty was at all addressed to for leeve to kiss his hand And at length it became plain that takeing the Test would not clear the way As the Earl was on his return to Edinburgh to wait upon His Highness and come the length of Glasgow he got the news that the late President of the Session and He were both turned out of it and at his arrival at Edinburgh several meetings of Council were appointed only to occasion his takeing of the Test But the Earl having gone some miles out of town was not present At last a meeting of the Council was appointed expresly and one of the clerks ordered to warn the Earl particularly to be present whereof the Earl being advertised before the clerk came to him he waited
the Civil Magistrate I am never to endeavour that it may be setled by the consent of the Church 2. The Bishops by the Act of Restitution Art 1. Ses. 2. Par. 1. Char 2. being allowed to inflict Censures and to exercise all other Discipline only with advice and consent of such of the Clergy as shall be found to be of known loyalty and prudence yet tho they should utterly neglect Synods and Presbyteries and call only such Ministers as they please tho it were but Two or Three and let them make Canons concerning Doctrine and Worship suspend and depose Ministers inflict the highest Censures either upon Church-men or Laicks I am not to endeavour an alteration of these things 3. There being no Obligation on them by that Law which gives them their Legal Establishment either to reside in their Diocesses or to visit their Churches or to hold but one Benefice I am to use no endeavour that this may be helped 4. They being by the same Act only accountable to His Majesty I am not to endeavour that they may be accountable to the Church tho they be convicted in a National Synod for any of their Administrations 5. Whereas by the Act establishing a National Synod Act 4. Ses. 2. Par. 1. Char. 2. the Moderators of every Presbytery who are nominated to that Office by the Bishop are appointed to be of the Commissioners for the National Synod and the Moderators declared to have a Negative Voice for the chusing of the other Commissioners And so the whole Asseâ—bly is nominated by the Bishops And it being further enacted That nothing is to be debated and considered in the said Assembly but as it is proposed by His Majesty and Successors And that the Archbishop of St. Andrews as President of the Assembly is declared to have a Negative Voice not only in the whole Synod but even on His Majesty himself So that whatever should be agreed on by all the rest of the Bishops and Clergy His Majesty consenting thereto yet it cannot be concluded and emitted without consent of the President Yet I am to affirm and swear That I am not to endeavour the alteration of any of these things And that there lies no Obligation on me either from respect to Religion or duty to my Prince and Native Countrey or any regard to Episcopacy or any other manner of way whatsoever to endeavour the least change of any of these fore-mentioned And I promise and swear That I shall from henceforth with my utmost power defend assist and maintain His Majesties Jurisdiction foresaid against all deadly c. And I shall never decline His Majesties Jurisdiction as I shall answer to God c. And finally I affirm and swear by this c. That I shall not only submit unto but that I shall own and approve His Majesties Jurisdiction i e. all â—is Rigâ—ts and Prerogatives especially his Ecclesiastical Supremacy Yea that I shall with my utmost power both of body and mind defend and maintain the same against all creatures whatsoever And tho His Majesty should by himself or any Laick deputed by him inflict a Church-censure or an Excommunication it self yet I shall never decline this his Power and Jurisdiction as I shall answer to God at the great day And finally I affirm and swear That this my solemn Oath is given in the plain genuine meaning of tâ—e words without any equivocation mental reservation or any manner of evasion whatsoever and that I shall not accept or use any dispensation from any creature whatsoever So help me God c. And lastly I affirm and swear That I have sworn all these things in the plaâ—â— sense and meaning of the words not only without equivocation or mental reservation buâ— without any manner of evasion whatsoever So that I renounce all senses and glosses and explications whatsoever which seem any way disagreeable to the plain sense of the words of this Oath as they are commonly understood by meâ— And that as I shall not accept or use any dispensation from any creature whatsoever so I shall never make use orrely upon such glosses as explications to help me out or set me free from Perjâ—ry Wherefore being fully perswaded of the truth and lawfulness of all that I have now sworn and as sincerely resolved to perform it in every Arâ—icle thereof I do confidently pray to God to help me to this Grace to do so and I wish he may make me so speed here and hereafter as I am perswaded and resolved 1. An Oath being considered bâ— all men who have any sense of a Deity as a most Sacred Bond and of the straitest Obligation It 's to be presumed that no man who truely fears God will rashly adventure on it For if I affirm any thing upon Oath of the truth whereof I am not certain or if I promise any thing of the justice or lawfulness whereof I have any doubt or which I am not fully resolved to perform I make my self guilty of Perjury which even the most barbarous Nations have ever looked on as the foulest of Crimes For it 's both the greatest affront that can be put on God in calling him to be Judge and Witness to a Lye and one of the greatest injuries that can be done to men in overthrowing the best security and chiefest ground of trust that they have It were therefore to be wished that Oaths were never imposed except in cases of absolute necessity For it is certain that the most part of â—en being acted â—ore by interest then by conscience will be too easily perswaded to swallow them that they may shun a present inconveniency whatever daâ—ger or damage it mâ—y import to them in the Life to come And it has been always observed that these wâ—o have been most forward to take Oaths are most forward to break them 2. But all who truely fear the Lord who prefer the peace of their Conscience to their worldly interest and who look more to the things that are not seen then to the things that are seen will think themselves obliged to advise well before they adventure on an Oath that if they swear at all they may do it as the Lord himself requires Jer. 4 2. in truth in judgment and in righteousness i e. that they know what they affirm to be true and what they promise to be just and righteous and that in neither of these they be rash or inconsiderate but have their judgments truly informed and sufficiently instructed in both If a man be uncertain or doubtful in any of these he is by no means to adventure on an Oath but rather to suffer the loss of all things than to take it 3. Now if an Oath containing one single Proposition and contrived in the plainest and easiest terms ought to be diligently weighed and pondered before it can be taken how much more such an Oath as this which consists of so many different and various matters Some of which are not only
doubtful and uncertain in themselves to say no worse but in the judgment of wise and sober men inconsistent one with another 4. It 's granted by all that this Oath cannot be taken without several glosses and explications And these which are commonly offered cannot be admitted for divers Reasons 1. Because they seem to overthrow the genuine sense and meaning of the Oath 2. Because in the Oath we swear That we take it in the plain genuine sense and meaning of the words without any equivocation mental reservation or evasion whatsoever So that altho these glosses should be conceived in the plainest terms and we suffered to write them down under our hands and so cannot come under the notion of equivocation or mental reservation yet that cannot but be considered as evasions it being only by the help of them that we pretend to escape the fearful crime of perjury 3 There is no Authority that can give us Explications but the same who has imposed the Oath that is the King and Parliament For tho the King and Lords of Council and Session be considered as Interpreters and Explainers of the Laws yet that is only in matters of Right or Wrong to which men ought to submit But it 's another thing in matter of an Oath For that is always to be taken only in the sense of the Imposers And we being required not to submit to it but to swear to it no Explication given by any other but by him or them who gives us the Oath can secure or quiet our Consciences 4. These Explications tho given by the same Authority who imposed the Oath seem both useless and unsafe unless published and recorded as the Oath it self otherways the Explication will soon be forgotten whereas the Oath stands still as it was 5. It must be also considered that tho men take this Test it seems it will not secure them in their places For why may not the same alterations be made in the Church which are made in the State the Supreme Power and Prerogative being alike over both And tho this Argument will be of small force unto some yet it may have its own weight unto others 6. If it be said That divers Articles and Parts of the Test are asserted and enacted by former Laws as partly that against meeting conveening or Assembling to treat consult c. which is in the very same terms discharged and forbidden not only by Act. 4. Sess 1. Par. 1 Char. 2. but also by an old Law Act. 31. Par. 8. James 6. It is answered That there is this considerable difference therein in those Acts viz. that the ordinary judgments are excepted And it is not without reason that this clause is left out here and it is one thing to submit to a Law another to swear it 7. But some may say that we have already sworn the Oath of Supremacy to which they who took it before the year 1669. had little or no ground of scruple but by the Act assertory the Supremacy being declared to be quite another thing than ever it was understood before there are many conscientious men and the best friends to Episcopacy who cannot take that Oath now though that alone should be made the Test As for others of the Clergy who have taâ—en it since that Act of Parliament they were told by the Bishop that administred it to them that the Assertory Act had no relation to the Oath and therefore they gave it them only in the old sense whereby they were perswaded to take it But now the matter is put beyond all doubt For the Kings Ecclesiastical Supremacy as it is explained in the Act being declared to be an inherent Right of the Crown and we swearing in the Test to maintain and defend all His Majesties Rights and Prerâ—gatives we do clearly swear to own and maintain the Supremacy as itis there asserted and declared 8. But we are told we should not oppose our sentiments to the wisdom of the Nation And if the meaning of this be that we ought to reverence our Superiours submit to their Laws and live peaceably under their Government it is willingly granted But if the meaning of the Test be that we are to believe whatsoever they say blindly swear whatever they bid us this is to erect an infallible chair in the State in the stead of the Church which is a new unheard of piece of Popery But if we stand out and refuse the Test how shall the Credit and Honour of Authority be saved It were to be wished it did consult its own Credit more before the making of any Laws and Edicts for there cannot be too great deliberation used in enacting such things as are to oblige the whole Nation at present and their Posterity for the time to come And much more heed ought to be had in appointing an Oath to be sworn by the most considerable part thereof If our Ecclesiastik Superiors had been so kind and just to themselves and their Clergy as to have consulted the wisest of their Presbyters within the Kingdom it 's like it might have prevented much of this inconveniency But now that it 's done all who can take this Oath with a clear Conscience let them take it and much good may it do them But as for these who cannot take it let them suffer patiently the penaltly inflicted by the Law and let them behave themselves orderly and peaceably without making any rent in the State or Schism in the Church and without reflecting on their Governours Yeâ— that it may be seen by all men they are acted by Principles of Conscience And this seems to be the best way that is now left for salving the Credit of Authority And yet many wise men think that it would be no reflection on Authority if His Majesty out of his Goodness finding how great a Grievance the urging of the Test is like to prove to his best and most loyal Subjects which could not be so well known till it was tryed should suspend the Execution of the Law till further advice It obligeth us to swear That we believe the Confession recorded in the 1. Par. James 6. is founded on and agreeable to the written Word of God Now if there be but one single proposition in that Confession either false or dubious not exprest in or clearly deduced from the Scriptures can we sweaâ— it with a good Conscience Surely whoever reads it with understanding will find many things doubtful and uncertain at least But it deserves to be particularly remarked that it contains Doctrines which manifestly cross the many ends of the Test This was certainly designed to guard and engage men against Fanatical principles and yet for all that it obliges all that swear it to own the most capital and fundamental principles of those who are called Fanatiks They maintain that our obedience to the supreme Magistrate is to be limited and that if he be an enemy to the Truth and Cause of
for reforming the Church if one man who may happen to be an enemy both to Truth and Vertue shall dissent And how can honest conscientious Church-men swear they shall never endeavour to have this helped By the same Act no matter is to be debated consulted or concluded but what shall be allowed by His Majesty What now if the Prince come to be Popish or altogether unconcerned about Religion shall we can we in Conscience bind our selves to propose treat and conclude nothing but what he pleases By the explicatory Act itis put in the Kings power to cut and carve in the external Government of the Church at his pleasure And so he may without consent of Parliament or Clergy restore Presbytery he may turn out all the Bishops and Pastors and plant in their room men of his own persuasion whatever it be he may casheer all our spiritual Fathers and substitute Noble-men Gentle-men Lawyers or any other kind of Laiks to be Superintendents of the Church or his Commissioners in Ecclesiastical affairs And shall we oblige our selves by an Oath to endeavour no rectification of so unreasonable a Statute If we see and it cannot be denied that Episcopal Government might contribute more to maintain Truth and advance Piety and Peace than hitherto it has done might we not ought we not to use our utmost endeavours to procure such Laws and Canons to be enacted as should oblige Bishops to manage their Power and Authority to such noble and excellent ends and not put off the respect to the souls committed to their charge We are to endeavour such a change which might conduce mightily for changing and reforming them Out of the veneration we bear to Episcopacy we cannot but pray and with for such a change and do our best to effectuate it because otherways Episcopal Government would come to be despised and derided not only as useless but pernicious Unless then we would intirely abandon Episcopacy unless we would express no regard for or concern our selves with the flourishing of piety unless we would sit down contented and satisfied without ever complaining of and opposing the corruptions of the Church we can by no means swear this Clause of the Test But we would with a very good Conscience testifie by our Solemn Oath if we were put to it that we judge our selvès obliged to endeavour a change both of the Government and Governors of the Church There are several other things that beget in our minds an utter dislike of the Act anent Religion We shall touch Two or Three things more It commands us to become a kind of Sycophants Delators and Informers against Dissenters Hardly could our mortal enemies fall upon a course more likely to blast our Ministry and expose us to hatred and obloquy Had it been designed we should give an account of Schismatical Withdrawers that our spiritual Fathers might bear with them in the spirit of meekness and charity for clearing their prejudices we would have most readily and joyfully served them in so worthy an enterprise But to delate them that they may be fined and imprisoned or banished or sustain any bodily or temporal damages is a thing we abhor We judg it more eligible to be no Pastors than to be on such terms 2. It weakens the Protestant Interest by dividing Protestants and treating sober Dissenters with as great severity as Papists or wildest Fanatiks 3. It leaves a wide postern for Popery for it exempts from the Test such as should have been first of all put to it and so provides most effectually for perpetuating Popery in the Royal Family And what could have been contrived more grateful and advantageous to the Church of Rome and what more grievous and fatal to the Reformed Grounds wherupon some of the Conformed Ministers scruple to take the Test. FIrst passing by the danger of Oaths when pressed so generally men of the least tenderness ordinarily swallow them easily and make small Conscience of observing them while they that fear Oaths are hardly induced to take them and by their strict observance make themselves a Prey we think it strange that this Oath should be injoyned to us who cannot be suspected rationally to incline either to Fanaticism or Popery since by our Subscriptions to the Oath of Supremacy and canonical obedience we have sufficiently purged our selves of the first and by our refuting Popish errors daily in our Pulpits do shew an utter abhorrence of the other and further since meerly our owning of Episcopal Government has begot and still increases in the minds of our People such an Aversion from and dislike of us we would have expected that our spiritual Fathers would not have exposed us to greater loathing and contempt by such engagements which although it should be granted to be causeless and unjust yet we think our selves bound to shun it that our Ministry may be the more taking with them since the thing pressed upon us is neither absolutely necessarie nor yet so evident in what is asserted for truth as may incourage us for to underlie their prejudice conceived thereupon And finallie since it is known that abjuring the Covenant did hinder many Ministers to conform and People to joyn in Ordinances dispensed by Conformists and our Parliaments had hitherto shewed such civil Moderation as to free us from the Declaration we cannot look at it but as bad and fatal that our Church should be dashed on this Rock which may occasion its splitting and instead of quenching this former evil create new Flames Secondly as we wish for the suppressing of the growth of Popery a more particular way had been made use of even for the discovering of such as are of no publick Trust so we cannot but regret that this Test has been so framed as to divide the sound sober Presbyterians amongst themselves whereby our Common Enemies are gratify'd and the true Faith indangered we being perswaded that there are many Presbyterians in the Kingdom Gentlemen Ministers and others who cannot in conscience take this Test who yet do dayly come and are ready to joyne with us in Ordinances We think it had been fitter to have condescended something for gaining of such then to have put such a brand upon them which may more alienate them and weaken us Thirdly that Confession of Faith Recorded in the first Parliament of King James the 6th has some things in it which may scarre the Swearing to it without Limitation as 1. Section 15th it Asserts those to be evil works which are done not only contra but praeter verbum Dei 2dly Section 25th It Asserts such as resist the Supreme Power doing that which pertains to his charge and while he vigilantly travels in his office doe resist the Ordinance of God which clauses may bear an exclusive sense especially when in the 5th Section it is reckoned among good works to suppress Tyranny 3dly Section 15th Jesus Christ is asserted to be the only Head and Law-giver of his Kirk and it
c are contradictions but to deny aid counsel c. while Princes and Rulers vigilantly travel and to deny aid counsel c. to Princes and Rulers upon no pretence whatsoever implies nothing of a contradiction 3. When it is told That at the very time of the framing and enacting of the Test this Confession was represented to be wanting and defective in the Doctrine of the absolute unlawfulness of resisting the Soveraign Magistrate and that therefore it was necessary that agreeably to the peaceable and loyal protestant Doctrine something might be inserted in the Test to make that point more clear full and perspicuous which accordingly was done And whatever bad use might be made of the clause in the 25th Article the scruple it self not being exempted from the wresting of unlearned and perverse men for serving ill designs and purposes by some busâ—ie and seditious Spirits to introduce the Doctrine of Conditional Allegiance which was openly advanced by the late Covenant and solemn League Yet the Assertion contained in the words of that Article is undoubtedly true and certain viâ— That the lawful Magistrate is not to be resisted while he does what pertains to his charge and travels vigilantly in the execution of his Office tho it be not full enough or sufficiently extensive but is more clearly and fully supplied and asserted in the Oath or Test it self So that the Doctrine of the unlawfulness of resistance asserted in the Test is more comprehensive and full but no way contrary or contradictory thereto And indeed it were most impious uncharitableness for any to suppose that the same Persons and Authority which asserteth and determineth the absolute unlawfulness of resisting in one branch of an Oath should in another branch of the same Oath allow of conditional resistance especially while they proceed gravely and deliberately after a plain representation of the defects of the Confession in this very point of Doctrine So that the Oath being to be taken according to the sense and meaning of the framers and imposers thereof It is clear as light that the late Session of Parliament which injoins this Oath understood the Doctrine concerning the unlawfulness of resistance in the simple and absolute sense supplied and exprest in the later part of the â—est that thereby the Protestant Doctrine might be vindicated from all imputations of disloyalty in seeming to countenance any pretence of resisting and rebelling against the Lawful Power which God in his providence had set over them The 3d. head or classis of Objections is drawn from that of asserting the unlawfulness of convocating or assembling in any Councils Conventions c. to consult or determine in any matter of State c. whence some Object and say That this cuts off intrinsick power from the Church of holding Religious Assemblies and Church Courts for giving ordination and for spiritual censures c. To which it is sufficiently replied already by shewing that the spiritual and intrinsick power of the Church as to this matter is no ways hurt and damnified by making Church meetings as to their external and coercive power depend upon the Supreme Magistrate his allowance and regulation The words of the Oath and Test do sufficiently clear up this mistake which do not bar Christian Subjects from Godly communications or quiet and peaceable meetings for Religious Worship in preaching the word Administration of the Sacraments and the internal exercises of the power of the keys by ordination and spiritual jurisdiction censuring Offenders and absolving penitents as the Apostles and the Primitive Christians used in Ancient times of Infidelity and persecution but only obliges not to hold meetings or assemblies for treating consulting and determining in any matter of State Civil or Ecclesiastical c. which in the plain sense and meaning relates to the external policy of the Church and Peace Order and Government of the World viz. That they shall not meet nor form themselves in Judicatories to make Laws or to invade or overturn the setled Estate and Government of the Church or Kingdom without the Kings express Warrant or consent which every sound and Loyal Protestant must needs acknowledg he is bound not to endeavour unless he should conclude that the Sons of Peace are by the most peaceful institutions of the Word obliged to turn Sons of Thunder to disturb and inflame the tranquillity of mankind 3. When we assert the unlawfulness of meetings and conventions it is understood except in ordinary Judgments Which clause is expresly inserted in the 4th Act 1 Sess. 1. Par. Char. 2d whereby His Majesties Royal Prerogative is recognized and which Prerogative is Sworn in the Test to be maintained and defended The holding of Green Tables and Church assemblies in the beginning of the late fatal Rebellion against our late blessed King and Martyr without and against His Majesties Warrant and Licence doth sufficiently discover the dangers as well as the sinfulness of Church Convocations and Illegal Meetings so that unless a man discover himself too forward to commence new Tumults and Insurrections he will beware to entertain such Principles which tend so openly to advance and promote them The 4. and last classis of Objections which militate against the Oath and Test is drawn from that clause which asserts That there lies no obligation from the Covenants or Solemn League or Covenant or any other manner of way whatsoever to endeavour any Change or Alteration in the Government either in Church or State as it is now established by the Laws of this Kingdom Whence some object and say That no Policy or Government in the world is so perfect as not in something to need correction and amendment which every one that is entrusted with the management thereof ought to endeavour and in his proper station to reform and better it and therefore it seems unlawful to swear never to endeavour any alteration in the Government Civil or Ecclesiastik And seeing endeavour here may refer to the forementioned means of Leagues Covenants Councils Conventions and Assemblies relating to State-Affairs Ecelesiastik or Civil or of taking up of Arms which no pious or loyal Subject will decline to renounce without the Kings express licence It is obvious that by change or alteration in the Government nothing else can be reasonably understood but the subversion of the specifik established Government or of the fundamental Constitution thereof and not of every circumstance or unnecessary part thereof as is cleared beyond doubt by the same Parliament which formed and enjoyned this Oath and Test. Wherein many excellent Acts are made for bettering and securing the Government both in Church and State So that it cannot be supposed that by this clause any regular endeavour to rectifie or better the established Government of both is renounced but only such impious and irregular endeavours and attempts as intend to shake or subvert the substance species and body of the Monarchy and Episcopacy or the fundamental Laws and Constitutions
the irrefragable opinion of all Divines of whatever perswasion is not only clear from the Authority above-mentioned even those who allow of reserved senses but more especially by the universal suffrage of all Protestant Divines who tho they do abominate all thoughts of Subterfuges or Evasions after taking of the Oath yet they do always allow and advise for the safety and security of a doubting and scrupulous Conscience that they should express and declare before the taking of the Oath the true sense and meaning wherein they have freedom to take it and for which Sandersone de Iuramento is cited Prelect 6. Sect. 10. pag. 75. where his words are Sane ut inter Iurandum omnia recte fiant expedit ut de verborum sensu inter omnes partes quarum interest liquido constet quod veteribus dictum liquido Iurare And an Oath being one of the highest Acts of Devotion containing Cultum Latriae there is nothing more consonant to the Nature of all Oaths and to that Candor Ingenuity and Christian simplicity which all Law and Religion requires in such cases The Kings Advocate 's Third Plea against the Earl of Argyle HIS Majesties Advocate conceives he has nothing to answer as to depraving Leasing-making and mis-interpreting c. save that this Oath was only designed to exclude Recusants and consequently the Pannel may thereby be debarred from his Offices but not made guilty of a Crime To which he Triplies 1. If ever the Earl had simply refused that had been true but that did not at all excuse from defaming the Law for a defamer is not punished for refusing but for defaming 2. If he had simply refused the Government had been in no more hazard but if men will both retain their Places and yet take the same in such words as secure not the Government it were strange to think that the design of the Law being to secure against mens possessing who will not obey that yet it should allow them possession who do not obey Nor is the Refuser here in a better Case than the Earl and others who offered to obey because it is the defaming the Law as ridiculous and inconsistent with that Protestant Religion and Leasing-making betwixt the King the Nobility and the People the misconstruing and misrepresenting as hath been formerly urged that puts the Earl in a worse Condition And all those Arguments might be as well urged for any who had uncontrovertedly contraveened these Acts as for the Pannel Whereas it is pretended That the King emitted a Proclamation to satisfie Dissenters it is answered That the Proclamation was designed for none who had been Members of Parliament and so should have known the sense but it was designed for meer ignorants not for such as had defamed the Law which is still here charged upon the Pannel As to the Article of Treason it is conceived That it is unanswerably founded upon the Common Law discharging all men to make alteration of the Government As to which there needs no express Statute that being the very essence of Government and needing no Laws Like as it falls positively under all the Laws that discharge the assuming the Royal or Legislative Power For to alter the Government is inseparably united to the Crown Like as the Subsumption is as clear the express words not bearing That the Earl reserves to himself a power to propose to His Majesty any alterations or to concur to serve His Majesty in making alterations but owning in most general and arbitrary terms to wish and endeavour any alteration he should think fit for the advantage of Church or State and not determining any thing that could bind him otherwise than according to his own pleasure For the word lawful is still subjected to himself and has subjoyned to it as he should think fit which governs the whole Proposition and in that sense and as the words are here set down the greatest Rebel in Scotland will subscribe that Explanation For there is no man but will restrict himself to a lawful obedience providing he be Judg of the lawfulness And seeing all Oaths proposed for the security of Government require a certain depending upon the Legislator and not upon the Taker it is impossible that that end could be attained by any qualification how special soever which is made to depend absolutely upon the Taker and not upon the Legislator And we have often seen how little security there is in those specious words the very Covenant it self having not only the very words above-repeated but attesting all the world to be witnesses to their Loyalty and Sincerity And as to the former Instances viz. rising in Arms or opposing the lawful Successor there is no Covenanter in Scotland but will say he will do neither but in a lawful way and in his station and in a way consistent with his Loyalty for a man were mad to say otherwise But yet when they come to explain this they will only do it as they think fit and will be Judges themselves and then will tell us That defensive Arms are lawful and that no Popish Successor should succeed nor no Successor unless he subscribe the Covenant And whereas it is pretended That no Clause in the Test does exclude a man from making alterations it is answered That the alterations which the Test allows are none at all but in subordination to Authority And as to the Two Points above-mentioned it excludes all alterations as to these Points And as to the making fundamental alterations this reservation allows to make any alteration and consequently fundamental alterations to preclude which Libertinisme this excellent Law was invented Whereas it is pretended That the Pannel designs not to add any thing as a part of the Law but as a part of his Oath it is duplied Since the Oath is a part of the Law whoever adds to the Oath adds to the Law Whereas it is pretended That the Crime of Perjury cannot be inferred here because all Divines allow That the Taker of an Oath is still allowed to declare in what sense he takes the Oath and that this is clear from Sandersone Pag. 175. It is triplied That where there are two dubious senses Lawyers and Divines allow That the Taker should clear himself which of the Two he should take which is very just because to which soever of the two he determines himself the Legislator in that Case is sure of him But here it is not pretended That there are two senses nor does the Pannel declare in which of the two he takes it or in what clear sense at all he takes it which is indeed liquido Iurare But here the Pannel neither condescends what particular clause of the Test is unclear nor after he has condescended upon the Articles does he condescend upon the sense but in general mysterious words where he can neither be followed nor found out He only takes it in so far as it is consistent with it self and the Protestant Religion
Assizers voted him guilty And so took it formally on their consciences that he had said nothing in the Council at his taking the Test Albeit all the Council knew the contrary by which they are clearly perjured nay such was the earnestness of some who thought it scarce possible to carry the treason upon words so safe and innocent to have the Earl found guilty of Perjury that it was particularly recommended to His Majesties Advocate to get him made guilty of that point to render him for ever uncapable of publik employment And the Clerk of the Assize was so concerned in it that He twice misreckoned the votes before he would yeeld that the Earl was assoyled or acquit of the Perjury And this among other things may serve to clear how that whole matter was influenced and mannaged For as the Earl cannot be charged with Perjury the second day because he swore none at all So as little the first day seeing whether he took the Test with an Explanation as certainly he did or simply without saying any thing It is equally apparent there was no Perjury in the case But it appears thir Assizers were of the Opinion that the Indictment or Libel alone as it was indeed the only evidence was a sufficient proof of the Earl his being guilty of Perjury And indeed for any other Rule or Reason that occurs They might as well have sound him Guilty of the Perjury as of the Treason But the Assizers that were Councellors being under a Particular check apprehending they might be found perjured themselves if they had not acknowledged the hearing of the words that all others present could have attested to have been audibly spoken and some of themselves had confessed to have heard before they knew the tenor of the Libel And the great crime of Treason being sufficient to do the Job it is like they judged it advisable to give this insignificant absolution from Perjury That their Verdict of Treason might have the greater colour and shew of candor and sincerity However it seems to be without measure hard to be prosecut with such a deadly Dilemma of either Treason or Perjury for you see in their account if the Earl swear with an Explanation his Life is knockt down by Treason and if without an Explanation his Honour which is dearer to him then his Life is run thorow with Perjury But to compleat a fancie beyond bedlam The Advocate urges and several Assizers agree at the same time to condemn the Earl as Perjured for not Explaining and for Treason for Explaining Quis talia fando In the next place the Earl's Papers contain some thoughts and endeavours to remove certain mistakes which he had good ground to beleeve did so much prompt and precipitat the Iudges to pronounce so important a sentence against him upon so weak and sandy foundations and which were indeed either meer fancies or so frivolous that though they were true they could never excuse them before men far less exoner them before God Almighty Where laying down a true ground that nunquam concluditur in criminalibus c. and withall representing how his Advocats were questioned in so extraordinary a manner for signing their opinion which you have above Num. 32. Where you may see how fair just and safe it was that now they daâ— no more plead for him He sayes He cannot be denyed to plead for himself as he best may The first ground of mistake then that he was to represent was that he knew it had been told them it was very much His Majesties Interest and necessary for the support of the Government to devest and render him uncapable of publik trust Which words had been oft said and said to himself to perswade him there was no further rigour intended But as he is very confident our gracious King will never upon any such pretence allow any innocent person to be condemned far less to be destroyed in a picque or frolik where his Majesty can reap no advantage So he is perswaded His Majesty hath no design to render him miserable far less to cut him off without a cause And therefor concluds it is only his misfortune in his present circumstances never having access to nor being heard by His Majesty nor the case perfectly understood by him that hath made His Majesty give so much as way to a process to be raised or led far less to a Sentence to be pronounced against him But in effect as this affair hath been managed all alongs and somany engaged in so extraordinary wayes to act and write against him first and last nothing should appear strange or surprising However as their own consciences and God Almighty knows how they have been brought to medle and act as they have done So one day or other the world may likewise know it A second ground of mistake which he say's may impose upon them is a confidence of his Majesties pardon intended for him a pretence only given out to render the condemnation more easy yet indeed least wished for by those who where readyest to spread the report and whereof the Earl had indeed more confidence then any that talked of it if His Majesty were left to himself and had the Case fully and truely represented to him but as His Majesty needs not this false occasion to make his clemency appear which is so well known over all his Dominions by far more true and genuine discoveries so it were the hight of injustice in their Lordships of the justitiary to proceed to sentence against him upon such apprehensions in case in their hearts they beleeve him innocent as he certainly knowes they doe besids they cannot but see their acting upon so unjust a ground will not only stain their names and memories but instead of alleviating rather aggravat their guilt both in their own consciences when they reflect on it in cold blood and in the sight of God Almighty And if His Majesty on importunity and a third application should give way to execution as he hath already given way first to the process and then to the sentence or if as some may design execution shall be adventured on without the formality of a new order as the process was at first commenced before His Majesties return and so is not impossible would not their Lordships be as guilty of his blood as if they had cut his throat And in effect these are the grounds and excuses pretended at this day in privat by such of his Judges for their procedour who are not yet come to have the Confidence at all Occasions to own directly what they have done A third reason why his Exculpation was not allowed he says might be because the sustaining of it might have brought other Explanations above board and discover both these who had made and those who had accepted them and perhaps not have left their own bench untoutched But as this Artifice will not keep up the Secret And as this way of shifting
endeavouring for such as are good and lawful and in a lawful way which no man can disown without denying common reason nor no sworn Councellour disclaime without manifest perjury But the Advocat's last conceit is That the Earl's restriction is not as the King shall think fitt or as is consistent with the Law but that himself is still to be judge of this and his Loyalty to be the standard But first The Earl's restriction is expresly according to Loyalty which in good sense is the same with according to Law and the very thing that the King is ever supposed to think Secondly as neither the Advocate nor any other hitherto have had reason to distinguish the exercise and actings of the Earl's Loyalty from those of His Majesties best Subjects so is it not a marvellous thing that the Advocate should prosesse to think for in reality he cannot think it the Earl's words His Loyalty which all men see to to be the same with his duty and sidelity or what else can bind him to his Prince capable of any quible farr more to be a ground of so horrid an accusation And whereas the Advocate sayes The Earl is still to be judge of this It is but an insipid calumny it being as plain as any thing can be that the Earl doth nowise design His thinking to be the rule of right and wrong but only mentions it as the necessary application of these excellent and unerring rules of Religion Law and Reason to which he plainly resers and subjects both his thinking and himself to be judged accordingly By which it is evident that the Earl's restriction is rather better and more dutyful then that which the Advocate seems to desiderat And if the Earl's restrictions had not been full eneugh it was the Advocat's part before administrating the Oath to have craved what more he thought necessary which the Earl in the case would not have refused But it is beleeved the Advocate can yet hardly propose restrictions more full and suitable to duty then the fore-mentioned of Religion Law and Reason which the Earl did of himself profer As for what His Majesties Advocate add's That under such professions and reserves the late Rebellions and disorders have all been carried on and fomented It is but meer vapour for no rebellion ever was or can be without a breach of one or other of the Earl's Qualifications which doth sufficiently vindicat that part of the Earl's Explanation The Advocate insists much that Any is equivalent to All and that All comprehends Every particular under it which he would have to be the deadly poyson in the Earl's words And yet the Earl may defy him and all his detracters to find out a case of the least undutifulness much less of rebellion that a man can be guilty of while he keeps within the excellent Rules and limitations wherewith his words are cautioned I could tell you further that so imaginary or rather extravagant and ridiculous is this pretended Treason that there is not a person in Scotland either of these who have refused or who by the Act are not called to take the Test that may not upon the same ground and words be impeach't viz. That they are not bound and so without doubt both may and do saâ— it by the Test in their station c. to wish and endeavour any alteration c. Nay I desire the Advocate to produce the man among those that have taken the Test that will affirm that by taking it he hath bound up himself never to wish or endeavour any alteration c. according to the Earl's Qualifications and I shall name hundreds to Whom his Highness as you have heard may be added that will say they are not bound up So that by this conclusion if it were yeelded all Scotland are equally guilty of treason the Advocate himself to say nothing of His Royal Highness not excepted Or if he still think he is I wish he would testify under his hand to the World that by his Oath he is bound up never to wish nor endeavour any alteration he thinks to the advantage of Church or State in a lavvful way nor in his station though neither repugnant to the Protestant Religion nor his Loyalty And if this he do he does as a man if not of sense at least of honour but if not I leave a blank for his Epithets But that you may see that this whole affair is a deep Mystery Pray notice what is objected against the last part of the Explanation This I understand as a part of my Oath Which sayes the Advocate Is a treasonable invasion upon the Royal Legislative power as if the Earl could make to himself an Act of Parliament since he who can make any part of an Act may make the whole And then say I farewell all Takers of the Test with an Explanation whether the Orthodox clergy or Earl Queensberry tho himself Justice generall who were allowed by the Council so to do seing that whether they hold their Explanation for a part of their Oath or not yet others may and in effect all men of sense doe understand it so and thus in the Advocat's Opinion they have treasonably invaded the Legislative povver and made an Act of Parliament to themselves Neither in that case can the Councils allovvance excuse them seing not only the Earl had it as well as they but even the Council it self cannot make an Act of Parliament either for themselves or others But Sir I protest I am both ashamed and wearied of this trifling And therefore to shut up this Head I shall only give a few remarks First you may see by the Acts of Parliament upon which the Advocate sounds his indictment that as to Leasing-making and depraving Laws all of them run in these plain and sensible terms The inventing of narrations the making and telling of lyes the uttering of wicked and untrue calumnies to the slander of King and Government the depraving of his Laws and misconstruing his proceedings to the engendering of discord moving and raising of hatred and dislike betwixt the King and his People And as to treason in these yet more positive terms That none impugne the dignity and authority of the three Estats or seek or procure the innovation or diminution thereof Which are things so palpbale and easily discerned and withall so infinitly remote both from the Earl's words and intentions or any tolerable construction can be put on either that I confess I never read this indictment but I was made to wonder that its forget and maker was not in looking on it deterred by the just apprehensions he might have not only to be sometime accused as a manifest depraver of all Law but to be for ever accounted a gross and most disingenuous perverter of common sense The Earl's words are sober respectful and duty fully spoken for the exoneration of his own Conscience without the least insinuation of either reflection or slander much less
to defend it in cold blood And vvere it not to digress too much I could name the persons and make them if capable think shame of their falshood and prevarications in that point and of their abusing His Majestie and prostrating Justice but I forbear The Advocate in his book of pleadings makes this a Stretch and sayes His Majesty rescinded it And His Majesty himself hath several times exprest his sense of the stretches made by some against the Earl at that time It is well known the Family of Argyle is both ancient and honourable and hath been Loyal and serviceable to the Crown for several hundreds of years but they must now be destroyed for having done and being able as they say to doe too much which others neither can nor will do Neither is the Advocate ignorant that the only failing that Family hath been charged with in all that long tract of time was a complyance of the late Marqueis of Argyle the Earl's Father in the time of the late Usurpation by sitting in the then Parliament of England some years after all the standing forces of the Kingdom were broken His Majesty beyond sea the whole Countrey overrun the Usurpers universally acknowledged and neither probability of resistance nor possibility of shelter left to any that were most willing to serve His Majesty as the Advocate himself hath published in his printed pleadings in which he likewise layes out the special and extraordinary Circumstances whereby the Marqueis was necessitate to do what he did And the compliance charged on him was so epidemik that all others were pardoned for the same except he alone though none had such favourable Arguments to plead and though he pleaded the same indemnity that saved others And seeing he submitted and delivered up himself and lost his life and seeing at the same time of the compliance that he suffered for the Earl his son was actually serving and suffering for his Majesty as you find in the former part of this Letter the Earl's restitution was no less then He and his Family might well expect of his Majesties Goodness and Iustice. It is true the Earl was again accused and condemned which may appear indeed strange to such as know not all particulars upon the same Old Acts of Leasing-making and with as little ground if possible as now and was pardoned by his Majestie for which he hath often and doth alwayes acknowledge that he owes to his Majesty both his Life and Fortune But upon this occasion and being baited as he is he hopes his Majesty will not take it ill that he say That his Majesties mercy was in this case determined by Justice And for proof that his Majesty did then know him to be innocent did not his Majesty then say It was impossible to take a mans life upon so smal an account Tho nevertheless it had been done if his Majesty had not interposed and pardoned him Did not the Chancellour Clarendoun who was Patron to the most considerable of the Earl's pursuers hearing of his condemnation Blesse God he lived not in a Countrey where there were such Laws He should have said such Iudges And I believe many more will say the same now Did it not plainly appear at that time that his principal pursuers were very bitter malicious and unjust to him For the Earl had not only served his Majesty in that troublesome and hazardous appearance in the Hills but he had been particularly useful to Earl Midletoun then his Majesties Lieutenent General and had stood by him when these deserted him whom notwithstanding he took afterwards by the hand when he was his Majesties Commissioner in the Year 1661 then designed new Interests and new alliances whereof some did hold and some never held And then indeed it was that he and others thought it proper for them to destroy the Family of Argyle to make their own Fortunes But it pleased God and his Majesty to dispose otherwise Then it was that the Earl was so hotly pursued for his life having at that time no Fortune all being in his Majesties hands Then was the accusation of Treason likewise urged by the samepersons and must have carried but it was not found necessary Leasing-making being sufficient to take his life and as it falls out when any game is started and the hounds in chase all the little currs run alongs So the Earl wanted not then many pursuers that are now scarce to be heard of And further some of the parties themselves confessed the particulars to the Earl afterwards vvho yet novv return to Act their former parts and that they had then laid dovvn a resolution to intrap him per fas aut nefas but notvvithstanding all this ill humour and violence all the ground they could get for a quarrell in tvvo Years time vvas one single letter among many they intercepted the occasion and import vvhereof vvas as follows About a tvvelve-month after the death of the late Marqueis of Argyle The Earl his son being by the loss of his estate and burden of his debts brought into straits a friend from Edenburgh wrote to him then at London to do what he could for himself at Court and the sooner the better For he needed neither expect favour nor Justice from some in Scotland and if matters were delayed his Fathers whole estate would be begg'd away in parcels His Friend likewise complained that the Earl did not write to inform his friends in Scotland and on this he insisted severall post-dayes which at last drew an answer from the Earl that he had been to wait upon his Majesty and had found him both just and kind to him and doubted not the effects of his Royalfavour that he was sensible of his loss by delay yet must proceed discreetly and not press to give His Majesty trouble but must take His Majesties method and wait his time That he judged much of what his Friend told him was true but he must have patience It was his misfortune that some took pains to make His Majesty believe that the Parliament was his Enemy and the Parliament to believe the King was his Enemy and by such informations he was like to be a sufferer but he hoped in God all should be well This blast must blow out and will blow over The King will see their tricks And upon this letter specially those last words the Earl was accused of Leasing-making betwixt King and Parliament and that he expected changes and so had a great deal of the same stuff laid to his charge as now you have heard And if the now Register will produce the Earl's principal Letter and the Paper the Earl gave in to the Parliament these two would clear all the case then and now as yow may see Mutatis Mutandis being much the same and some of the same tooles used But to go on The Earl's words in that Letter being clear and plain viz. That he complained of others that reported lies to King and
criminal he frequently repeats from the known grounds of Law of the nature of crimes and the design of criminal Laws viz. That as there can be no crime without a fraudulent purpose either apparent or proven So it was the design of Lawgivers only to punish such acts as are designedly malicious I desire you only to consider the particulars following And 1 Pag. 〈◊〉 l. 7. of his Book of Criminals having made the question Whether what tends to a crime not perfected doth fall under the Statut or Law by which that crime to which it approaches is punished He instances in the crime of Misconstruing His Majesties Government and Proceedings or depraving his Laws which as he sayes is punishable by death Ja. 6. Par. 10. Act 10. And then further moves Whether papers as tending to misconstrue His Majesties proceedings and Government or bearing insinuations which may raise in the people jealousy against the Government be punished by that Law Which being one of the great crimes pretended and libelled against the Earl I shall here omitting his reasons in the affirmative which have not the least ground in the Earl's case as you have heard represent to you how exactly he himself and others have acted for the Earl's overthrow all these dangerous and pernicious things from which he argues in the negative His words then are these And that such insinuations and tendencies are not punished criminally he sayes 1. It is the interest of mankind to know expresly what they are to obey especially where such great certifications are annexed as in crimes 2. The Law having taken under its consideration this guilt hes punished the actual misconstruing or depraving but hes not declared such insinuations or tendencies punishable Et in statutis casus omissus habetur pro omisso 3. This would infallibly tend to render all judges arbitrary for tendencies and insinuations are in effect the product of conjecture and papers may seem innocent or criminall according to the zeal or humour as well as malice of judges men being naturally prone to differ in such consequentiall inferences and too apt to make constructions in such according to the favour or malice they bear to the Person or Cause Are not some men apt to construct that to tend to their dishonour which was designed for their honour and to think every thing an innovation of Law or Priviledge which checks their inclination and design Whereas some judges are so violent in their Loyalty as to imagine the meanest mistaks do tend to an opposition against Authority and thus Zeal Iealousie Malice or Interest would become judges 4. Men are so silly or may be in such haste or so confounded and the best are subject to such mistakes as that no man could know when he were innocent simplicity might oft times become a crime and the fear of offending might occasion offence and how uncomfortably would the people live if they knew not how to be innocent 2ly p 47 l 9. Of the same Book he sayes That the 8th Point of Treason is to impugn the dignity and Authority of the three Estates or to seek and procure the innovat on and diminution of their Power and Authority Act 103. Ja. 6. p. 6. Now this being another of the crimes charged upon the Earl hear how the Advocate there understands it But this he adds immediatly is to be understood of a N. B. direct impugning of their Authority as if it were contended that Parliaments were not necessary or that one of the three Estates might be turned out Which how vastly different from his indirect forced and horrible inferences in the Earl's case is plain and obvious 3ly ibid. p. 58. l. 2. After having said That according to former Laws no sort of Treason was to be persued in absence before the Justices And urging it to be reasonable he adds Nor is it imaginable but if it had been safe it had been granted formerly And l. 31. he sayes The Justices are never allowed even by the late Act of Parliament to proceed to sentence against absents but such as are persued for Rising in Armes against the King The true reason whereof he tells us is that the Law is not so inhumane as to punish equally presumed and reall guilt And that it hath been often found that men have absented themselves rather out of fear of a prevailing Faction or currupt witnesses c. then out of consciousness of guilt Reasons which albeit neither true nor just seeing that the Law punishes nothing even in case of absence but either manifest contumacie or crimes fully proven And that the only reason why it allowes no other crime save Perduellion to be proceeded against in absence is because it judges no other crime tanti yet you see how this whole passage quadrats with the Earl's case Who being neither persued for perduellion nor present at giving sentence was yet sentenced in absence as a most desperate traitour 4ly ibid p. 60. l. 24. Speaking of the Solemnities used in Parliament at the pronouncing sentences for Treason viz. That the Pannel receives his sentence kneeling and that after the doom of for faulture pronounced against him the Lyon and his Brethren the Heraulds in their formalities come tear his Coat of armes at the Throne and thereafter hang up his Eschucheon ranversed upon the mercat Crosse he adds But this I think should only hold in the crime of Perduellion and then goes on to add That the children of the delinquent are declared incapable to bruik any Office or Estate is another Speciality introduced in the punishment of Perduellion only And yet both these terrible Solemnities were practised against the Earl even by a Court of Iustitiary and not in Parliament albeit he was not accused of Perduellion nor be indeed more guilty of any crime then all the world sees 5ly ibid page 303 l. ult he sayes That verbal injuries are these that are committed by unwarrantable expressions as to call a man a Cheat a woman whore But because expressions may vary according to the intention of the speaker therefore except the words can allow of no good sense as whore or thief or that there be strong presumptions against the speaker the injuriandi animus or design of injuring as well as the injuring words must be proven and the speaker will be allowed to purge his guilt by declaring his intention and his declaration without an Oath will be sufficient 2ly The persuer should libell the design and prove it except the words clearly inferre it 3ly The persuer is presently to resent the injurie and if at first the words be taken for no injurie they cannot afterward become such Which things being applied to the Earl's words do evident I say That unless his words could allow of no good sense or that there were strong presumptions against him or that he could not purge his guilt by declaring his intention or that his words did clearly inferre the guilt there could be no crime of
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