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
first motion to sign it But the then new President of the Session now Chancellour and the new Register could not agree whither it was fit or not the treason not yet appearing when read in Council as when they had talked of it in privat So the Earl was removed and then called in and after these two had wheted and adjusted their inventions he was desired positivly to sign the paper he had given in To which he answered he meant well and truely did see no ill in the paper why he might not and if the words did please them then as they did when they were first pronounced he would do it But if they found the least matter of displeasure in them he would forbear Whereupon being again removed and called in he was told he had not given the satisfaction required by the Act of Parliament in taking the Test And so could not sit in the Council and somewhat more was added as if the matter drew deeper but the particular words I doe not know To which the Earl said that he judged All the Parliament meant was to exclud refusers of the Test from places of trust And if he were judged a refuser he submitted but could conceave no greater danger in the matter for he had served his Majesty faithfully within doors and was resolved to doe so without doors and so he made his obeisance and went out Nixt morning being Saturday November 5. The Earl waited on his Royall Highness and amongst other things told his Highness he was strangely surprised that the saying He could not bind up himself in his station and in a lawful way c. as was contained in that paper was lookt on as a crime â—eing he had said the same words to his Highness formerly in privat without any offence to which His Highness gave no answer but held his peace which made the Earl make bold to put him to remember his own words and to ask him what he had said when the Earl formerly spoke to him Then His Highness was pleased to say he had forgot what he had said To which the Earl answered the worse indeed for me But Sir here are the same words I formerly said without offence what sayes your Highness now What ill is in them Let me know I will vindicat my selfe And all his Highness at this second time said was what hath been above remarked That they were unnecessary words that the Earl scrupled needlesly that he was not tyed up by that Oath as he imagined And after a pause added As I have already told you Well you have cheated your self you have taken the Test To which the Earl replyed he hoped then his Highness was satisfied as above His Highness then began to complain that the Earl the litle while he sat in Council after he had taken the Oath had not gone along to approve the Councils explanation The Earl said he had not heard the debate And therefore it was reasonable to excuse him from voting His Highness returned a litle warmly that the Earl knew the case will enough which indeed was not unlike and yet not at all strange that the Earl could not vote for that explanation Seing he could not but know the Parliament did intend the Confession should be sworn And that he himselfe had taken it in that sense as all others had done before that explanation past in Councill but the Earl replying nothing His Highness continued That the Earl and others had designed to bring trouble upon an handfull of poor Catholicks that would live peaceably however they were used but it should light upon others A litle after His Highness commanded the Earl not to go out of Town till he waited on him which the Earl said he should obey But notwithstanding thereof one of the Clerks of the Council was sent to the Earl that same night late to intimat to him not to go out of Town till the Council should sit upon the Tuesday thereafter Upon Moonday the seventh of November the Earle waited on His Highness again and told him he was surprised to get such a message from the Council after his Highness had laid his own commands upon him and asked what the Councils meaning could be his Highness was pleased to say he knew nothing but referred all to themselves at their meeting Upon Tuesday the 8. of November when the Council met without ever calling the Earl ane order was sent to him by one of their Clerks to enter himself prisoner in the Castle of Edinburgh before twelve of the Clock the nixt day with a warrant to the Deputie Governour to keep him prisoner wherein the word Sure firmance was struk out which appeared to have been fairly writ This order the Earl receaved and obeyed it with great submission entering all alone in ane haikny Coatch And when some of his relations and persons of quality offered to go along with him he refused saying that if he were pursued at the instance of any other he would accept of their civility but seing he was pursued at the instance of his Majesties Advocat he would go in the most humble way that he could think on and have no body concerned but himself But all this did not hinder the Council to write to his Majesty the Letter hereafter insert giving judgment before trial without any hearing and sâ—eking leeve to proceed to a process which they likewise proceeded in before any return came as likewise about the very date of this Letter they emitted their explanation of the Test Albeit in their Letter they assert That they had been very careful not to suffer any to take the Test with glosses and explanations The Earl some dayes after his entering prisoner into the Castle of Edinburgh did write a Letter to his Royal Highness telling him that he had obeyed his Highness and the Councils order in entering prisoner in that place that he had not written sooner lest he might be thought too impatient of his punishment which appeared to be the effects of an high displeasure which he hoped he nowise deserved that he was resolved to continue in all duty and obedience to his Majesty and his R. Highness and never to fail in any profession thereof he had made and begged to know what satisfaction was expected and where and how he might live with his Highness favour This Letter at first seemed to please and the Earl heard it did But the only answer directly returned was Summonds charging the Earl with leasing making and depraving of Laws before any return from His Majestie And after a return came an other Sumonds with sound of trumpet containing perjury and treason added to the former crimes Notwithstanding all which fair weather was made and it was given out and likewise intimat to the Earl by a particular message from one of the Club that no more was designed but to humble the Earl and to take his heritable and other offices from him and his family
is counted Blasphemy for Angels or Men to intrude themselves into the said Honor and Office 4 th Section the 23 th on the Sacraments Popish Baptism is denyed as to its validity and Popish Priests denyed to be true Ministers which expressions if narrowly scanned will be found of dangerous consequence and contradictory to other positions in the Confession it self Fourthly we fear that our People may look on us rather as Countenancers and Incouragers then Suppressors of Popery seeing by the Act we are obliged to delate yearly in October such as withdraw from our Ministry that they may be punished by the civil Magistrats and yet by the same Act the Kings lawful Brother and Sons in perpetuum are exempt from taking the Test and consequently left at liberty to be Papists or Protestants and what bad influence their example may have on inferior People may easily be apprehended and our taking the Test will be reputed an approving of that exemption which will be more stumbling That all former Acts against Papists were made without any exemption and they all declared to be disloyal who embraced not the Reformed Religion particularly in the 47 th Act of the third Parliament of James the V I. and the 8 th Act of the I. Parliament of Charles the II. Fifthly We are to swear that there lyes no obligation on us by vertue of the late Covenants or any other manner of way to endeavour the change of the Government either in Church or State as it is established by Law where we suppose we are sworn not only to maintain Monarchy but also as our Law tyes us in the present line and in the nearest in kin to our present King altho they should be Papists altho we judge the Coronation Oath in the eight Act of the first Parliament of James the VI. to be contradictory which yet is a standing unrepealed Law since this currant Parliament hath ratified and confirmed all Acts made in savour of the Protestant Religion whereof this is one so that we swear Contradictions Sixthly as for the Church Government as it is now establisht by Law there hath not been nor are yet wanting sound Protestants who assert the Jus divinum of Episcopacy such could not in conscience take this Oath seeing the King by vertue of his Prerogative and Supremacy is impowered by Law to dispose of the External Government and Policy of the Church as he pleases as for such as look upon Episcopal Government as indifferent in it self notwithstanding the submission that we give to it or have ingaged for they can as litle swear on these terms for why should they swear never to endeavor to alter that which in it self they look upon as alterable there being no indifferent thing which in tract of time through the corruption of Men may not prove hurtful and why might not men in their Station endeavor the redressing by fair means of any such evil and advise his Majesty if he be willing to exert the power setled on him by the law for freeing the Church from any inconveniency and altho we have engaged to obey Bishops yet we ever did wish that they may be setled aâ—ongst us in a way more suitable to the primitive times viz. That their number might be more encreased that they might by called by the Church allenarly to that office and that they might be made liable to the censure of the Church for their doctrine life and diligence that they might not be such pragmatical Medlers in Civil affairs and that Synods and Presbyteries might have more power then is assigned them by the Act of Restitution from the seeking a Remedy in any of which things this Oath doth tye us up Seventhly the power given to the King by the present laws if he should be popish should be very prejudicial to the Protestant Interest for by the first Act of the 2d Parliament of Charles the 2d he may not only dispose of the external Policy of the Church but may emit such Acts concerning the Persons imployed therein all Ecclesiastical Meetings and Matters to be treated upon therein as he shall think fit and this Act only published is to oblige all his Subjects and by the Act for a National Synod no Doctrinal Matter may be proposed debated or concluded without his express allowance in the foresaid case it is easie to divine what advantage the Enemies of our Religion will have for the overturning of all Hoc â—thacusvelit magno mercentur Atridâ— EDENBURGH The sederunt of the Council Sederunt vigesimo secundo Die Septembris 1681. His Royal Highness c. Montrose Errall Marshall Marr Glencarne Winton Linlithgow Perth Strathmore Roxburgh Queensberry Airley Kintore Breadalbane Lorne Levingston Bishop of Edenburgh Elphinston Rosse Dalziel Treasurer Deputy Praeses Advocate Justice Clerk Collintoun Tarbet Haddo Lundie This day the Test was subscribed by the above-written Privy Councellors and by the Earl of Queensberry who coming in after the rest had taken it declared that he took it with the Explication following The Earl of Queensberrie's Explanation of the Test when he took it HIS Lordship declared that by that part of the Test That there lyes no obligation to endeavour any change or alteration in the Government c. He did not understand himself to be oblidged against Alterations In case it should please His Majestie to make alterations of of the Government of Church or State HALYRUDEHOUSE Sederunt vigesimo primo Die Octobris 1681. His Royal Highness c. Winton Perth Strathmore Queensberry Ancram Airley Lorne Levingston Bishop of Edenburgh Treasurer Deputy Praeses Register Advocate Collintoun This day the Bishop of Edenburgh having drawn up a long Explication of the Test to satisfie the many Objections and Scruples moved against it especially by the conformed Clergie presented it to the Council for their Lp's Approbation which was ordered to be read But the paper proving prolixe and tedious His Highness after reading of a few leaves interrupted saying very wittyly and pertinently that the first Chapter of John with a stone will chase away a dog and so brake it off Yet the Bishop was afterward allowed to print it if he pleased and here you have it The Bishop of Edenburgh's Explanatory Vindication of the Test. THE last Session of this currant Parliament considering the interest of the true Protestant Religion to be the most sacred and important of all others doth by the first Act revive ratifie and confirm all Acts and Statutes made in our former Parliaments establishing the same in this Kingdom which Acts being made by our wise Ancestors when the Protestant Religion was in greatest danger not only from the great number of Popish Subjects in this Kingdom many whereof were persons of greatest interest power and influence therein but from the Power of France as well as of the Pope both which were zealously bent to re-establish and confirm the setlement of Popery in its Jurisdictions and Superstitions amongst
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
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
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
Explanation no addition or extention of the Oath So that for all this Explanation the Oath is neither broader nor longer than it was And as to these words I do not mean 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 It is a strange thing how this Clause can be drawn in question as treasonable when it may with better Reason be alledged That there is no good Subject but is bound to say it And albeit the words to endeavour in my station be words contained in the Covenant yet that is no Reason why two words in the Covenant may not be made use of in another very good and loyal sense And there is no man that shall have the honour either to be entrusted by His Majesty in his Council or any other Judicature or to be a Member of Parliament but he is bound by his Loyalty to say the same thing And there was never a Clause more cautiously exprest for the words run to endeavour any alteration I shall think to the advantage of Church and State And tho that was sufficient yet the Clause is so cautiously conceived that it contains another Restriction not repugnant to Religion and his Loyalty So that except it could be alledged That a man by lawful means to the advantage of Church and State consistent with his Religion and Loyalty could make treasonable alterations and invasions upon the Government and Monarchy which are the highest Contradictions imaginable there can be nothing against the Pannel And albeit the Clause any alterations might without the Restrictions and Qualifications foresaid be generally extended yet the preceeding words of lawful way and the rational Interpretation of the emission of words especially before a solemn Judicatory leaves no place or shadow to doubt that these alterations were no fundamental or treasonable alterations but such as the frailty of humane Affairs and Constitutions and vicissitude of things and circumstances do constantly require in the most exact Constitutions under Heaven And the clause does not so much as import that there is a present necessity of alteration but it was a necessary and rational prospect That albeit at present all things under Heaven had been done to secure the Religion and Government yet there might occur Cases that would require new helps alterations and remedies And it is not pretended in this Case for the Pannel That he desires to alleviate or take off words truly treasonable or having an ill design by the mixing of fair and safe dutiful and submissive Expressions which indeed are Protestations contrariâ— facto For there is nothing in his Explanation that either in his design or in the words themselves being rationally and naturally interpreted can infer the Crimes libelled or any of them And the Pannel's known Principles and known Practices do not only clear that Loyalty that he has profest before the Lords of Justitiary and instructed by unquestionable Documents but they put him far from the suspicion of these damnable Principles related in the Reply Of which the whole tract of his Life hath been an intire evidence of his abhorrency and detestation And in the last place It is thought strange why that should be represented as an affront or disgrace to the Government That the Parliament imposed a Test which the Pannel is not able to take simply And it is not pretended That he hath defamed written or spoken against the Test it self or for the inconvenience of it but only that he hath not been able to see the good ground upon which it may be simply taken And this were to condemn him for want of sight or sense when the Law hath punished no man for not taking the Test but only turned him out of the Government And it is as strange an Inference That because the Pannel declares He believes the Parliament meaned no Contradiction and would take the Test in as far as it is consistent that therefore he said the Parliament imposed Contradictions Which is so far from a rational Induction that the Contradiction of these Subsumptions in all congruity of Language and Sense is necessarily true And therefore the last part of that Clause in so far as it is consistent is a Consequence inferred upon the former viz. I believe the Parliament designed to impose no Contradictions ergo I take the Test as consistent and in so far as it must be consistent if the Parliament did not impose Contradictions as certainly they have not and to convince the world that in this sense this Explanation is receivable it was proposed in Council and allowed and therefore without the highest reflection it cannot now be quarrelled Sir George Lockhart's second Plea for the Earl of Argyle by way of Reply upon the King's Advocate SIR George Lockhart Duplies That the Defender repeats and oppones his former Defences which are no ways elided nor satisfied by the Reply made by His Majesties Advocate And altho it be easie for the Kings Advocate out of his zeal to pretend and argue Crimes of the highest Nature upon Inferences and Consequences neither consistent with the Pannel's design nor with his words and expressions yet there cannot be a more dangerous foundation laid for the security and interest of the Government and the security and protection of the Subjects than that Crimes should be inferred but from clear evident and express Laws and plain palpable Contravention of these Laws It being both against the Laws of God and Man that a Man should be made an Offender for a word and especially for expressions which according to Sense and Reason and considering the time and place where they were spoken by the Pannel viz. as a Member of His Majesties Privy-Council and in presence of his Royal Highnes and the Members of Council and when required to take the Test were safe and Innocent and it were against all Law and Reason to suppose that the Pannel either did or designed to do any thing which may or did import the Crimes libelled against him And whereas it is pretended That the Oath required and imposed by Act of Parliament was for the security of the Government and that the Pannel by his Explication does evade the Oath by taking it only so far as it is consistent with the Protestant Religon and his own Loyalty whereof he was Judge It is answered That the pretence is most unwarrantable and the security of His Majesties Government is not at all endangered as God forbid it should tho the Pannel and a Thousand more had simply refused the Test or had taken it in a sense which does not satisfie the Law it being competent to publik Authority to consider whether the Pannels Oath in the terms of the Explication wherein he did take it does satisfie the Act of Parliament or not And if not there can be no rational consequence inferred thereupon but
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
reserving the squaring all by his own Loyalty as he did in the beginning declare That he took it in his own sense By which general sense neither is the Government secure of any thing it does enjoin nor could he be punished if he transgressed Nor can it be doubted but Perjury may be inferred by any equivocal or evading sense inter Iurandum as well as by breaking an Oath afterwards Which is very clear from Sandersone Pag. 138. The words whereof are alterum Perjurii genus estinter Iurandum detorquere verba and which is farther clear by the 28. Page but above all from the Principles of Reason and the necessity of Commerceand Government For if men may adhibit such glosses even whilst they swear as may make the Oath useless what way will either Government or Commerce be maintained And he deceives as much that deceives in swearing salvis verbis as he who after he has sworn does break the Oath nay and more too because the breaking may come rom forgetfulness or other accidents but the evading by general Clauses which bind no man does from the first Instance originally make all Oaths useless and dangerous and that this interpretation eludes the Oath absolutely is very clear from what hath been formerly debated For It may be argued That the Earl broke the Oath in so far as the first day he swears the Oath which bears to be without any evasion and must be so notwithstanding of whatever he could say And the next day he gives in this evasion which is a down-right violation of that Oath and inconsistent with it Nor was this Oath forced but voluntarily emitted to keep his own Places And it was the greater Crime that it was done in the Council because that was to make it the more publik and consequently the more to misrepresent the Government After this debate which according to the custom of the Court was verbatim dictat by the Advocats of either side and written by the Clerk and so took up much time and the Court having sat at least twelve hours without intermission it adjourned till the nixt day being Tuesday the 13. of December at two of the clock in the afternoon And then the Earl being again brought to the Barr the following Interloquutour that is judgment and sentence of the Lords of Iustitiary on the forgoing debate was read and pronounced in open Court Edenburgh December 12. 1681. The Interloquutour of the Lords of Iustitiarie THE Lords Justice general and Commissioners of the Justitiary having considered the Libel and debate they sustain the defence proponed for the Earl of Argyle the Pannel in relation to the perjury libelled viz. That he emitted this Explanation at or before his taking the Test first before His Royal Highness His Majesties High Commissioner and the Lords of His Majesties Privy Council relevant to elude that Article of the Libel The Lords sustain the Libel as being founded upon the common Law and Explication libelled and upon Act 130 Parl. 8. James VI. to infer the pain of Treason They likewise sustain the Libel as founded upon the 10. Act Parl. 10. James VI. to infer the pain of death and likewise sustain that part of the Libel anent Leasing-making and Leasing-telling to infer the particular pains mentioned in the several acts libelled And repel the whole other defences duplies and quadruplies and remits the Libel with the defences anent the Perjury to the knowledg of an Assize Thereafter the Assize that is the Jury being constitut and sworn viz. List of the Assizers Marquis Montross E. Middleton E. Airlie E. Perth P. C r E. Dalhousie E. Roxburgh P. C r E Dumfries E. Linlithgow P. C r Lord Lindoors Lord Sinclare Lord Bruntisland Laird of Gosfoord Laird of Claverhouse Laird of Balnamoon Laird of Park Gordon HIS Majesties Advocate adduced four witnesses to prove the points of the indictment remitted to the knowledge of the Assize viz. Iohn Drummond of Lundie then Governour of the Castle of Edenburgh now Treasurer-depute Sir William Paterson and Mr Patrik Menzies Clerks of the privy Council and H. Stevenson their Under-clerk Who deponed That on the 4. of November the Earl did give in an unsubscribed Explanation of the Test which he refused to sign One of the witnesses also adding That he heard him make the same Explanation the day before in Council and that it was there accepted Then His Majesties Advocate asked if the Earl would make use of his Exculpation for eliding the perjury libelled to wit That he had emitted the same Explanation before taking the Test in presence of His Royal Highness and the Council To which the Earl answered That seeing they had sustain'd the Libel as to the alledged Treason he would not trouble them about the Perjury Especially the matter of fact referred by the Interloquutour to his probation being of it selfe so clear and notour But the truth is the Interloquutour pronounced was so amazing that both the Earl and his Advocats were struk with deep silence For they plainly perceived that after such a Judgment in the case all further endeavours would be in vain It being now manifest that seeing the Earis innocnce had so little availed as that his plain and honest words purely uttered for the necessary satisfaction of his own conscience and clearing of his Loyalty had been construed and detorted to infer Leasing-making Depraving and Treason The tongues of men and Angels as some of his Advocats also said could not do any good And therefore neither did the Earl nor they Object any thing either against the Assizers or Witnesses though liable to obvious and unanswerable exceptions Nor did the Earl's Advocats say any thing to the Assize as the custom is and as in this case they might well have done to take off the force of the Evidence and to demonstrat that the depositions instead of proving the indictment did rather prove the Earle's defences But as I have said they now plainly saw that all this had been unnecessary work And in effect were of opinion that after so black and dreadful a sense put upon what the Earl had spoke and done in such fair and favourable circumstances there could be nothing said before such a Court which might not expose themselves to the like hazard and more easily be made liable to the same misconstruction But upon this silence the Advocat taking instruments Protests whether in forme only or from a real fear let others judge for an Assize of error in case the Assizers should Assoil or acquit Whereupon the Assize removing vvas inclosed And after sometime returned their Verdict vvhich vvas read in open Court of this tenour The Verdict of the Assize THE Assize having elected and chosen the Marques of Montrole to be their Chancellor they all in one voice find the Earl of Argyle guilty and culpable of the Crimes of Treason Leasing-making and Leasing-telling And find by plurality of votes the said Earlinnocent and not guilty of Perjury And then
early the design against the Earl began to grow and how easily it took encrease from the least encouragment 3ly When the Earl petitioned the Council for Advocates to plead for him Albeit he petitioned twice and upon clear Acts of Parliament yet he had no beâ—ter answer then what you have above set down And when the Earl's Petition naming Sir George Lockhart as his ordinary Advocate was read in Council his Highness openly threatned that in case Sir George should undertake for the Earl he should never more plead for the King nor Him But the Earl taking Instruments upon Sir George his refusal and giving out that he would not answer a word at the Bar seeing â—he benefite of Lawyers according to Law was denyed him Sir George and other lawyers were allowed to assist him but still with a Grudge Likeas afterwards they were quâ—stioned and conveened before the Council for having at the Earl's desire signed their positive Opinion of the case At which time it was also said in Council by His Highness That their fault was greater then the Earl's However we see that as he was the occasion of the anger so he hath only found the smart of it 4ly The whole Process with the Judgment of the Lords of Iustitiary anâ— Verdict of the Assize whereby the Earl was found guilty as you have seen notwithstanding of what hath so plainly appeared and was so strongly pleaâ—ed in his behalf of Leasing-making Depraving and Treason Is of it self a clear Demonstration that either the highest punishment was intended for so high a guilt or that at least it was no smal Humilation that some designed for him It being equally against reason and prudence setting aside the Interest of Justice to strain things of this nature beyond the ends truly purposed and which in effect are only the more to be suspected the more they are concealed 5ly The Process being carried on to the Verdict of the Assize and the Council being tyed up by His Majesties Letter before pronouncing Sentence to send a particular account to his Majesty of what the Earl should be found guilty of for His Majesties full information The Council doth indeed dispatch away a new Letter immediatly for His Majesties leave to proceed but in stead of that particular account required by his Majesty for his full information all the information was eveâ— heard of to be sent by the Council was what is contained in the body of the Letter wherein they briefly buâ— positively affirm That after full debate and clear probation he was found guilty of Treason Which all men must say was far better contrived to prompt his Majesty to a speedy allowance then to give him that particular information of the case which His Majesties Letter expresly requires and the Earl expected should have been performed But further the Council was commanded to sign this Letter not simply in the ordinary form but by a special Command laid on every Member and the Clerk appointed to go about and get their Subscriptions telling them they were Commanded and complaining to the Duke when any scrupled to do it The strictness of which orders is apparent enough from the very Subscriptions where you may not only read the names of Bishops subscribing in causa sanguinis but some of the Earl's Friends and Relations who wanted courage to refuse And in effect how many of all the Members did it willingly is hard to say seeing generally they excuse the deed in private 6ly About a week or two before the Trial the Earl had notice that at a closs Iuncto where were Persons of the greatest eminency it was remembered by one present how that Anno 1663. The Earl had been pardoned by his Majestie after he had been found guilty by the Earl of Middletoun and that Parliament And that then it was looked on as an error in the Earl of Middletoun that he had not proceeded to Execution albeit his Majesty had given command to the contrary because as it was said it would have been but the same thing to him But now adds this Kind Remembrancer The case is much more easie Now His Royal Highness is on the throne It might have cost Earl Middletoun a frown but now it can signify nothing but will rather be commended in His Royal Highness as acting freely like himself The stop of the sentence looks like a distrust but this will vindicate all and secure all And as the first part of the Story the Earl remembered well he had hear'd it from the same Person An 1664 had reported it to the Duke of Lawderdale a little after So the second part being of a very wellknown dialect could not but give the Earl the deeper impressions It was further told the Earl at the same time when the Councils Letter to obtain his Majesties assent to the pronouncing Sentence leaving all to discretion was sent that it was thought fit that nothing should appear but fair weather till the very close Yet was the Earl so confident of his own innocence and His Majesties Justice that he did not doubt but his Majesty seeing the Process would at least put a stop to the Sentence But after the Councils Letter was gone in such Terms as you have seen to seek Liberty from his Majesty to proceed to Sentence without either double or abbreviat of the Process sent with it and no doubt smooth insinuations made with it that all designed was to humble the Earl or clip his wings And that this Letter was hasted away by a fleeing packet to prevent the Earl's Application which it could not but do and so could not but have weight and prevail with his Majesty to whom the Earl's Petition as coming too late was indeed never presented Then and not till then The Earl began to have new thoughts 7ly The Earl's Trial having been upon moonday and twesday the 12th and 13th of December upon the 14th the Councils Letter was dispatched and upon the 15th The Earl intreated by a â—riend for liberty to speak to His Royal Highness whose answer was That it was not ordinary to speak to criminals except with Rogues on some plot where discoveries might be expected Yet his Highness said he would advise upon it But upon fryday the 16. he did refuse it Yet the Earl did renew his suit and urged that he had sent a Petition to his Majesty which was the first he had sent upon that occsiaon that before the return should come he was desirous to have his Highness answer that he might owe some part of the favour he expected to his Highness But on Moonday morning the 19. the Earl was told he was not like to have any access and in the afternoon he heard that the return of the Councils Express was looked for on thursday the 22. being the Council day And further That the Justice court which according to its custom had sat the same Moonday and in course should have adjourned till Moonday the 26 of
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
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
Arms all Collectors Sub Collectors and Fermers of His Majesties Customes and Excise all Magistrats Deans of Gild Councellors and Clerks of Boroughs Royal Regality all Deacons of trades and Deâ—con-conveeners in the said Burghs all Masters and Doctors in Universities Colledges or Schools all Chaplans in families Pedagogues to children and all Officers and Soldiers in Armies Forts or Militia And all other persons in any publick Trust or office within this Kingdom who shall publickly swear and subscribe the said Oath as follows viz. Archbishops Chief Commanders of the Forces and Officers of the Crown and State and Councellors before the Secret Council all the Lords of Session and all members of the Colledg of Justice and others depending upon them before the Lords of Session the Lords of lustitiary and all these depending upon that Court in the Iustice-Court the Lords and other Members of the Exchequer before the exchequer all Bishops before the Archibishops all the Inferior Clergy Commisaries Masters Doctors of Universities Schools Chaiplans Pedagogues before the Bishops of the respective Diocesses Sheriffs Stewards Baylies of Royalty and Regality and these depending on these Iurisdictions before their respective Courts all Provosts Baylies and others of the Boroughs before the Town-Council all Collectors and Fermers of the Kings Customs and Excise before the Exchequer the Commissioners of the Borders before the Privy-Council all Iustices of the Peace before the Conveeners and the Officers of the Mint before the General of the Mint and the Officers of the Forces before the Commander in chief and common Soldiers before their respective Officers The Lyon before the Privy Council and Heraulds Pursevants and Messengers at Arms before the Lyon And His Majesty with consent foresaid Statutes and ordains that all these who presently possess and enjoy any of the foresaid offices publick Trusts and Imployments shall take and subscribe the following Oath in one of the foresaid Offices in manner before prescribed betwixt and the first of January next which is to be recorded in the Registers of the respective Courts and extracts thereof under the Clerks hand to be reported to His Majesties Privy-Council betwixt and the first of March 1682. and hereafter in any other Courts whereof they are Iudges or Members the first time they shall sit or exercise in any of these respective Courts and ordains That all who shall hereafter be promoted to or imployed in any of the foresaid Offices Trusts or Imployments shall at their entry into and before their exercising thereof take and subscribe the said Oath in manner foresaid to be recorded in the Registers of their respective Courts and reported to His Majesties Privy Council within the space of fourty days after their taking of the same And if any shall presume to exercise any of the faid offices or Imployments or any publick Office or Trust within this Kingdom the Kings Brothers and Sons only excepted until they take the Oath foresaid and subscribe the same to be recorded in the Registers of the respective Courts they shall be declared incapable of all publick trust thereafter and be further punished with the loss of their moveables and liferent-escheats the one half whereof is to be given to the Informer and the other half to belong to his Majesty and his Majesty with advice foresaid recommends to his Privy-Council to see this Act put to due and vigorous execution The TEST Containing the Oath to be taken by all Persons in publick Trust. I Solemnly swear in the presence of the eternal God whom I invoke as Judge and witnesse of the sincere intention of this my Oath That I own and sincerely profess the true Protestant Religion contained in the Confession of Faith recorded in the first Parliament of King James the VI and that I believe the same to be founded on and agreeable to the written Word of God And I promise and swear That I shall adhere thereunto during all the dayes of my life-time and shall endeavour to educate my Children therein And shall never consent to any change or alteration contrary thereto and that I disoun and renounce all such Principles Doctrines or practices whether Popish or Fanatical which are contrare unto and inconsistent with the said Protestant Religion and Confession of Faith And for testification of my obedience â—o my most gracious Soveraign Charles the II. I do affirm and swear by this my solemn Oath that the Kings Majesty is the only Supreme Governour of this Realm over all persons and in all causes as well ecclesiastical as civil And that no forreign Prince Person Pope Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminency or Authority Ecclesiastical or Civil within this Realm And therefore I do utterly renounce and forsake all foreign Jurisdictions Powers Superiorities and Authorities And do promise that from henceforth I shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to my power shall assist and defend all Rights Jurisdictions Prerogatives Priviledges Preferments and Authorities belonging to the Kings Majesty his Heirs and lawful Successors And I further affirm and swear by this my solemn Oath That I judge it unlawful for Subjects upon pretence of Reformation or any other pretence whatsoever to enter into Covenants or Leagues or to convocar conveen or assemble in any Councils Conventions or Assemblies to treat consult or determine in any matter of State Civil or Ecclesiastick without his Majesties special command or express licence had thereto or to take up arms against the King or these Commissionate by him And that I shall never so rise in arms or enter into such Covenants or Assemblies And that there lies no obligation on me from the National Covenant or the Solemn League and Covenant commonly so called or any other manner of way whatsoever to endeavour any change or alteration in the Government either in Church or State as it is now established by the Laws of this Kingdom And I promise and swear That I shall with my utmost power defend assist and maintain his Majesties Jurisdiction foresaid against all deadly And I shall never decline his Majesties Power and Jurisdiction as I shall answer to God And finally I affirm and swear That this my solemn Oath is given in the plain genuine sense and meaning of the words without any equivocation mental reservation or any manner of evasion whatsoever and that I shall not accept or use any dispensation from any creature whatsoever So help me God Act J. 6. P. 1. C. 3. Anno 1567. Anent the annulling of the Acts of Parliament made against God His Word and for maintainance of Idolatrie in any tymes bypast ITem our Soveraigne Lord with advice of his dearest Regent and three Estates of this present Parliament ratifies and approves the Act under-written made in the Parliament holden at Edinburgh the 24. day of August the year of God anâ— thousand five hundred threescore years And
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 own it Cessante enim materia juramenti cessat ejusdem obligatio radice obligationis sublata tollitur â—â—â pullulans inde obligatio according to all Casuists Juramentum sequitur naturam conditionem actus cui adjungitur id est materiae circa quam versatur sicut accessorium sequitur naturam sui principalis accessorium extinguitur cum principale cadit D. Sandersone These who believe Episcopacy to be of Divine Right have no cause to fear that ever the King will alter this specifick form of Church-Government neither inclination nor interest moving him to it The Aphorism so usual with His Majesties Royal Grandfather No Bishop no King cannot but make deep impression on His Majesty and must be considered not only as a sentence full of present truth when it was uttered but a sad prophecy of the Tragical events which after ensued And as the greatest and most politick Underminers of the Monarchy did of late so their successors continue still to make their oblique and first assaults upon it by raising their batteries against the setled Episcopacy 3 If the words of that assertory Act be sedately weighed they will not be found to bear the weight of this Objection for the odds are vast betwixt them a power to order and dispose the external Government and Policy of the Church together with the ordering of the administration of the external Government of the Church which are the words of that Act and the power of altering and changing the specifick and essential Government of the Church the former relating to the Ecclesiastical ordering of Ecclesiastical Persons Matters and Meetings as the Act it self expresly bears The King may and ought to have the ordering and disposing and administration of the external Government of the Church without claiming a power to alter or change the very Species Body and essence of it Nor may we in charity presume that our Gracious King challenges any such power to himself by vertue of that Act assertory nor doth it hinder any to believe Episcopal Government to be institute of God that in the exercise and external administration thereof it is subject to the Orders and Authority of the Prince for the same power may be said to be from Heaven and to be of men under different notions and respects to be from Heaven and of God in respect of the substance of the thing in general and to be of men in respect of the determination of sundry particulars requisite to the lawful and laudable exercise thereof Tho the Ministerial Power be of God yet are the Ministers in executing the Acts proper to their Ministerial Functions regulated and ordered by Ecclesiastical Laws Canons of the Church or Acts of General Assemblies Nor doth the derivation of any power from God necessarily infer the Non-subjection of the persons in whom that power is vested to any others as to the managing and exercise thereof For the power which Fathers have over their Children Husbands over their Wives Masters over their Servants is from Heaven of God and not of Men yet are Parents Husbands Masters in the exercise of their several respective powers subject to the powers Jurisdictions and Laws of the lawful Soveraigns It will prove a very difficult task for any man to find out a clear and satisfying reason of difference in this present case betwixt the Ecclesiastical power Oeconomical why the one because it claimeth to be of Divine Right should be therefore exempted from the Regulation of it in its exercise by humane Laws and not the other which flows from Heaven and is equally of Divine Right with the former 5. In fine All such who have sworn the Oath of Allegiance and Supremacy since the assertory Act was made Anno 1669 can have no pretence to scruple the taking of this Test upon account of any thing contained in the Act of Supremacy already sworn by them in as much as they must be understood to have taken that Oath in the sense of the Lawgivers who framed that Act. Before we come to the Third Classis of Objections it will be necessary to say something for satisfaction of the Doubts of some who apprehend contradictions betwixt some expressions in the Consession of Faith and others in the same Consession and betwixt some assertions therein and others in the Test So that they think by taking this Oath they shall he ensnared to swear to contradictory Propositions Two are instanced that in the Article concerning the Immortality of Souls it is said That the Elect departed this life are delivered from all torment And yet in the same Article it is asserted That neither the Elect nor Reprobate are in such sleep after death that they feel no torment To this seeming contradiction it is answered 1. That this flows from the mistake and error of the Printer alone and not from any fault in the Confession For in that History of the Reformation of the Kirk of Scotland of the foresaid Edition the later part of the Article runs thus So that neither the one nor the other are in such sleep that they feel nothing Which clearly takes off all shadow of Contradiction as well as the error of those against whom that Article seemsto be levelled But finally the Latin Paraphrase of it in the Harmony of Confessions takes off all difficultly For there the words run thus Adeo ut neque hi neque illi ita dormiant ut non sentiant in qua conditione versentur Another seeming contradiction is betwixt the Confession and the Test viz. Art 25. it is said That they who resist the supreme Powers doing that which belongs to their charge resist Gods Ordinance and they who deny to them their aid counsel comfort c while the Princeâ— and Rulers vigilantly travel in the execution of their Office these deny their help and support to God which words seem to disallow the resisting of the supreme Magistrate only conditionally and in a limited and restricted sense Again the Oath and Test assert That it is unlawful upon any pretence whatsoever to take up arms against the King or these commissionate by him which doth declare the resisting of the Soveraign power to be simply and absolutely unlawful without any restriction or limitation Ans. Here is no Contradiction if the Logical Rules be observed For to resist the Supreme Powers doing that which pertains to their charge is to resist Gods Ordinance and not to resist the Supreme Powers doing that which pertains to their charge is to resist Gods Ordinance were indeed a contradiction but to resist the Supreme Powers doing that which appertains to their charge is to resist Gods Ordinance and to resist the Supreme Powers upon whatsoever pretence is to resist Gods Ordinance imports no manner of contradiction And so of the other proposition To deny aid counsel c. while Princes and Rulers vigilantly travel c. in the execution of their Office and not to deny aid counsel c. while
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
are altogether strained and unwarrantable and inconsistent with the Earle true design and the sincerity of his meaning and intention in making of the said Explication Wednesday the 12. of December the day of compearance assigned to the Earl being novv come he was brought by a guard of Souldiers from the Castle to the place appointed for the trial and the justice Court being met and fenced the Earl now Marques of Queensberry then Justice General the Lords Nairn Collingtoun Forret Newtoun and Hirkhouse the Lords of Justitiary sitting in judgment and the other formalities also performed the indictment above set down Num 24. was read and the Earl spoke as followes The Earl of Argyle's Speech to the Lord Justice General and the Lords of the Justitiary after he had been arraigned and his Indictment read My Lord Iustice General c. I Look upon it as the undeniable priviledg of the meanest Subject to explain his own words in the most benign sense and even when persons are under an ill Character the misconstruction of words in themselves not ill can only reach a presumption or aggravation but not any more But it is strange to alledg as well as I hope impossible to make any that know me believe that I could intend any thing but what was honest and honourable suitable to the Principles of my Religion and Loyalty tho I did not explain my self at all My Lord I pray you be not offended that I take up a little of your time to tell you I have from my Youth made it my business to serve His Majesty faithfully and have constantly to my power appeared in his Service especially in all times of difficulty and have never joyned nor complyed with any Interest or Party contrary to His Majesties Authority and have all along served him in his own way without a frown from His Majesty these Thirty years As soon as I passed the Schools and Colledges I went to travel to France and Italy and was abroad 1647 1648 and till the end of 1649. My first appearance in the world was to serve His Majesty as Collonel of his Foot-Guards And tho at that time all the Commissions were given by the then Parliament yet I would not serve without a Commission from His Majesty which I have still the Honour to have by me After the misfortune of Worcester I continued in Arms for His Majesties Service when Scotland was over-run with the Usurpers and was alone with some of my Friends in Arms in the Year 1652. and did then keep up some appearance of opposition to them And General Major Dean coming to Argyleshire and planting several Garisons he no sooner went away but we fell upon the Garisons he had left and in one day took two of them and cut off a considerable part of a third and carried away in all about Three hundred Prisoners And in the end of that year I sent Captain Shaw to His Majesty with my humble Opinion how the War might be carried on who returned to me with Instructions and Orders which I have yet lying by me After which I joyned with those His Majesty did Commissionate and stood out till the last that the Earl of Middleton His Majesties Lieutenant General gave me Orders to capitulate vvhich I did vvithout any other Engagements to the Rebels but allovving persons to give bale for my living peaceably and did aâ— my capitulating relieve several Prisoners by exchange vvhereof my Lord Granard out of the Castle of Edenburgh vvas one It is notarly knovvn that I vvas forefaulted by the Usurpers vvho vvere so jealous of me that contrary to their Faith vvithin Eight Moneths after my Capitulation upon pretence I keep'd Horses above the value they seased on me and keeped me in one Prison after another till His Majesties happy Restauration and this only because I vvould not engage not to serve His Majesty tho there vvas no Oath required I do with all gratitude acknowledg His Majesties Goodness Bounty and Royal Favours to me when I was pursued before the Parliament in the Year 1662. His Majesty was graciously pleased not to send me here in any opprobrious way but upon a bare verbal Paroll Upon which I came down poste and presented my self a Fourthnight before the day Notwithstanding whereof I was immediately clapt up in the Castle but having satisfied His Majesty at that time of my entire Loyalty I did not offer to plead by Advocates And His Majesty was not only pleased to pardon my Life and to restore me to a Title and Fortune but to put me in trust in his Service in the most eminent Judicatories of this Kingdom and to heap Favours upon me far beyond what ever I did or can deserve tho I hope His Majesty hath always found me faithful and thankful and ready to bestow all I have or can have for his Service And I hope never hath had nor ever shall have ground to repent any Favour he hath done me And if I were now really guilty of the Crimes libelled I should think my self a great Villain The next occasion I had to shew my particular zeal to His Majesties Service was in Anno 1666. when the insurrection was made that was represt at Pentland-Hills At the very first the intercourse betwixt this place and me was stopt so that I had neither Intelligence nor Orders from the Council nor from the General but upon a Letter from the now Archbishop of St. Andrews telling me there was a Rebellion like to be in the three Kingdoms and bidding me beware of Ireland and Kintyre I brought together about Two thousand men I seased all the Gentlemen in Kintyre that had not taken the Declaration tho I found them peaceable And I sent a Gentleman to General Dalziel to receive his Orders who came to him just as they were going to the Action at Pentland and vvas with him in it and I keept my Men together till his return And when I met with considerable trouble from my Neighbours rebelliously in Arms and had Commissions both on publik and private Accounts have I not carried dutifully to His Majesty and done what was commanded with a just moderation which I can prove under the hands of my enemies and by many infallible demonstrations Pardon me a few words Did I not in this present Parliament shew my readiness to serve His Majesty and the Royal Family in asserting vigorously â—â—e lineal legal Succession of the Crown and had a care to have it exprest in the Commissions of the Shires and Burghs I had interest in Was I not for offering proper Supplies to His Majesty and his Successor And did I not concur to bind the Landlords for their Tenants altho I was mainly concerned And have I not always keept my Tenants in obedience to His Majesty I say all this not to arrogate any thing for doing what was my Honour and Duty to His Majesty but if after all this upon no other ground but words that
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
the impugning of the Authority of Parliament as the Earl may appeal not only to his Majesties true and Royal sense but to the most scrupulous and nyce affecters of the exactest discerning besids that they were first formally tendered in Council for their approbation and by them directly allowed How then can any man think that they could be charged with the greatest and vilest of crimes Leasing-making depraving perjury and treason But the Advocate tells us That there are some things which the law commonly forbids in general and that some inferences are as natural and strong and reproach as soon or sooner then the plainest defamations But what of all this Must therefore such generalls be left to the phantastik application of every wild imagination to the confounding of the use of speach and subverting of of humane Society and not rather be still submitted to the Judgement of common sense for their true and right understanding and the deducing thence these strong and natural inferences talk't of Of which good sense if the Advocate do but allow a grain weight it is evident that the inferences he here libells against the Earl must infallibly be cast and by all rational unbyassed men be found strange unnaturall and monstrous For S r 2ly pray observe these rational and sound Maxims he sounds his inferences on and they are manifestly these First That he who sayes he will onely obey as far as he can invents a new way whereby no man is at all bound to obey 2ly That he who in the midst of hundreds of exceptions and contradictions objected against on Oath injoyned by Act of Parliament and still unanswered sayes that he is confident the Parliament never intended to impose contradictory Oaths reproaches the Parliament 3ly That he that sayes he must explain an ambiguous Oath for himself before he take it renders all Laws and Oaths useless and makes himself the Legislator 4ly That he that sayes that he takes this Oath as far as it is consistent with it self and the Protestant Religion swears nothing 5ly That he that declars himself not tyed up by the Test from endeavouring in a lawful way such alterations as he thinks to the advantage of Church and State consistent with Religion and Loyalty declares himself and all others loosed from the Government and all duty to it and free to make any and all alterations that he pleases And 6ly That he that takes the Test with an explanation and holds it to be a part of his Oath invads the Legislative power and makes Acts of Parliament Upon which rare and excellent propositions I dar say The Earl is content according to the best Judgment that you and all unbyassed men can make either of their truth or of my ingenuity in excerping them to be adjudged guilty or not guilty without the least fear or apprehension of the issue And in the third and last place I shall only intreat you to try how the Advocat's reasoning will proceed in other cases and what brave work may be wrought by so usefull a tool Suppose then a man refuse the Test simply or falls into any other kind of non-conformity either civil or Ecclesiastik or pay's not the Kings custom or other dues or lastly understands an Act otherwise then the Advocate thinks he should is not his Indictement already formed and his process as good as made viz. That he reguards not the Law that he thinks it is unjustly or foolishly enacted that he will only obey as far as he can and as he pleases and thereby renders all Laws useless and so reproaches the King and Parliament and impugns their Authority and assumes to himself the Legislative power and therefore is guilty of Leasing-making depraving his Majesties Lavvs and of treason of which crimes above mentioned or one or other of them he is actor art and part Which being found by an Assize he ought to be punished with the pains of death forfaulture and escheat of lands and goods to the terror of others to doe or commit the like hereafter And if there be found a convenient Judge the poor man is undoubtedly lost But Sir having drawn this parallel rather to retrive the Earl's case then to make it a precedent which I hope it shall never be and choosing rather to leave the Advocate then follow him in his follies I forbear to urge it further These things considered must it not appear strange beyond expression how the Earl's Explanation such as it is did fall under such enormous and grievous misconstructions For setting aside the Councils allowance and approbation which comes to be considered under the next head suppose the Earl or any other person called before the Council and there required to take the Test had in all due humility said either that he could not at all take it or at least not without an Explanation because the Test did contain such things as not only he but many other and those the best of the Loyal and Orthodox Clergy did apprehend to be contradictions and inconsistencies And thereupon had proponed one or two such as the Papers above set down do plainly eneugh hold out and the Bishop in his Explanation rather evades then answers would it not be hard beyond all the measures of equity and charity to look upon this as a designed reflection far more a malicious and wicked slander and the blackest treason We see the Act of Parliament doth not absolutly injoyn the taking of the Test but only proposeth it to such as are intrusted in the Government with the ordinary certification either of losing or holding their Trusts at their option We know also that in cases of this nature it is far more suitable both to our christian liberty and the respect we ow to a christian Magistrat to give a reason of our consciencious non-complyance with meekness and fear then by a mute compearance to fall under the censure of a stubborn obstinacy And lastly it is certain and may safely be affirmed without the least reproach that Parliaments are not infallible as witness the frequent changes and abrogations of their own Acts and their altering of Oaths imposed by themselves and even of this Oath after it was presented which the Earl was not for altering so much as it was done as I told you before How then can it be that the Earl appearing befor a christian Council and there declaring in terms at the worst a litle obscure because too tender modest his Scruples at an Oath presented to him either to be freely taken or refused should fall under any censure If the Earl had in this occasion said he could not take the Test. unless liberty were given him first to explain himself as to some contradictions inconsistencies which he conceaved to be in it though he had said far more then is contained in his contraverted Explanation yet he had said nothing but what Christian liberty hath often freely allowed and christian charity would readily construe
Sentence is constantly required which induced some to think that at least the Earl should have been lawfully cited to hear Sentence before it could be pronounced But it is like this course as confessing a difficulty and occasioning too long a delay was therefore not made use of However upon the whole it was the General Opinion that seeing the denouncing the Earl Fugitive would have wrought much more in Law then all that was commonly said at first to be designed against him And that his Case did appear every way so favourable that impartial men still wondered how it came to be at all questioned It had been better to have sisted the process with his escape and taken the ordinary course of Law without making any more stretches But as I have told you when the Fryday came the Lords of Iustitiary without any respect or answer given to the Petition above-mentioned given in by the Countess of Argyle to the Court for a stop pronounced Sentence first in the Court and then caused publish the same with all solemnity at the Mercat Cross of Edinburgh FOr as much as it is found by an Assize That Archibald Earl of Argyle is guilty culpable of the crimes of Treason Leasing-making Leasing-â—elling for which he was detained within the castle of Edinburgh out of which he â—es now since the said Verdict made his Escape Therefore the Lords Commissioners of Justitiarâ— decern and adjudge the said Archibald Earl of Argyle to be execute to the death demained as a traitour and to underly the paines of Treason other punishments appointed by the lawes of this Kingdom when he shall be apprehended at such a time and place and in such manner as his Majesty in his Royall pleasure shall think fit to declare and appoint And his Name Memory and Honours to be extinct And his Armes to be riven forth and delete out of the Books of Armes swa that his Posterity may never have place nor be able hereafter to bruick or joyse any Honour Offices Titles or Dignities within this Realme in time coming and to have for faulted â—mitted and tint all and sundry his Lands Tenements Annua-rents Offices Titles Dignities Tacks Steedings Rowmes Possessiones Goods and Geere what suâ—ever pertaining to him to our Soveraign Lord to remain perpetually with his Highness in property Which was pronounced for Doom 23 December 1681. After the reading and publishing whereof The Earl's Coat of Armes by order of the Court was also torn and ranversed both in the Court and at the Mercat Cross Albeit some thought that this was rather a part of the Execution which his Majesties Letter discharges then a necessary Solemnity in the Publication and the Advocate himself sayes p 61. of his printed Criminals That it should only be practised in the crime of Perduellion but not in other Treasons The Reasons and Motives of the Earl's escape with the Conclusion of the whole Narrative THE Earl's escape was at first a great surprise both to his friends and unfriends for as it is known that his Process in the beginning did appear to the less concerned more like a piece of pageantry then any reality and even by the more concerned was accounted but a politik design to take away his Offices and lesâ—en his Power and Interest So neither did any of his Friends fear any greater hazard noâ— did most of his unfriends imagine them to be more apprehensive Whereby it fell out that upon report of his escape many and some of his well-wishers thought he had too lightly abandoned a fair Estate and the probable expectation he might have had of His Majesties favour As also some that were judged his greatest adversaries did appear very angry as if the Earl had taken that course on purpose to load them with the odium of a design against his life And truly I am apt to think it was not only hard and uneasie for others to believe that a Person of the Earl's quality and character should upon so slendeâ— a pretence be destroyed both as to life and fortune but also that he himself was slow enough to receive the impressions necessary to ripen his resolution and that if a few Accidents as he sayes himself happening a little before his escape had not as it were opened his eyes and brought back and presented to him several things past in a new light and so made all to operate to his final determination he had stayed it out to the last Which that you may the better understand you may here consider the several particulars that together with what he himself hath since told some frineds apparently occurred to him in these his second thoughts in their following order And first you have heard in the beginning of this Narrative what was the first occasion of the Earl his declining in his Highness favour You may also remember that his Majesties Advocate takes notice that he debated against the Act enjoyning the Test in the Parliament And as I have told you he was indeed the Person that spoke against excepting the King's Brothers and Sons from the Oath then intended for securing the Protestant Religion and the Subjects Loyalty not thinking it fit to complement with a Priviledge where all possible caution appears rather to be necessary And this a reverend Bishop told the Earl afterwards had downright fired the kilâ— What thereafter happened in Parliament and how the Earl was alwise ready to have laid all his Offices at his Majesties feet And how he was content in Council to be held a Refuser of the Test and thereby incurr an intire deprivation of all publik Trust is above fully declared and only here remembred to show what Reason the Earl had from his first coming to Edinburgh in the end of October to think that something else was intended against him then the simple devesting him of his Employments and Jurisdictions And yet such was his Assurance of his Innocence that when ordered by the Council to enter his Person in Prison under the pain of Treason he entered freely in an Hakney coach without either hesitation or noise as you have heard 2ly The same day of the Earl's commitment the Council met and wrote as I have told you their Letter to His Majesty above set down Num. 22. Wherein they expresly charge him with Reproaching and Depraving But yet neither with Perjury noâ— Treason and a few dayes after the Earl wrote a Letter to his Highness Wherein he did endeavour to remove his offence in termes that it was said at first had given satisfaction But yet the only return the Earl had was a criminal Summonds containing an Indictment and that before any answer was come from hiâ— Majesty And then so soon as his Majesties answer came there was a new Summonds sent him with a new Indictment adding the crimes of Treason and â—erjury to these of Reproaching and Depraving which were in the first Libel as you have heard above whereby you may perceive how
December or because of Christmas to the first Moonday of January was for the Earl's sake adjourned till Fryday the 23. to the end that immediatly upon the Kings Return they might pronounce Sentence He was moreover informed that his Royal Highness was heard say that if the express returned not timeously he would take upon himself what was to be done Which being general and dark was the more to be suspected All this the Earl told made him the same Moonday late cast in his thoughts whether it were not fit for him to attempt an escape but his doubtings were so many he could resolve nothing that night except to put off till Wednesday Yet on Twesday morning he began to think if he did at all design to escape he had best do it that same evening However he was even then not fully resolved not had he as yet spoke one word of it to any mortal But about ten of the Clock this Twesday his Highness absolute refusal to suffer the Earl to see him untill his Majesties Return came was confirmed And about Noon the Earl heard that some Troups and a Regiment of foot were come to Town And that the Next day he was to be brought down from the Castle to the common Jail from which Criminals are ordinarily carried to Execution and then he resolved to make his escape that very night and yet did not conclud it throughly till five of the Clock in the evening At which time he gave directions about it not thinking to essay it till near ten But at seven one coming up from the city and telling him that new orders were privatly given for further securing of him that the Castle guards were doubled and none suffered to go out without showing their faces and that some Ladies had been already put to do it and therefore disswading him to attempt any escape because it was impossible the Earl said No then it is full time And so he made haste and within half an hour after by Gods blessing got safe out questioned pretty warmly by the first sentry but not at all by the main guard and then after the great gate was opened and the lower guard drawn out double to make a lane for his company one of the guard who opened the gate took him by the arm and viewed him But it pleased God he was not discerned When he was out he was not fully resolved whither to go Home he had judged safest But he thought it might breed Mistakes and Trouble that he designed not So he resolved to go for England and to take the road That by Post he might be his Majesties first informer of his escape But being disappointed of horses that he expected he found that the notice of his escape was got before him And soon after as he came the length of Newcastle heard that his Majesty had given way to pronounce Sentence against him according as he had apprehended from the circumstances and other grounds I have told you which made him judge it would be an undiscreet presumption in that state to offer himself to his Majesty while he knew none durst address him and so he rather choosed to shift in the wide World till his Majesty might be at some greater freedom both to understand his case and apply suitable remedies His Majesties clear and excellent understanding and gracious and benign disposition do fully assure him that his Majesty doth not in his thoughts charge him with the least Disloyalty and that he hath no Complacence in his ruine But if His Majesty do at present ly under the pressure ofsome unlucky influences not so easy to his Royal inclinations the Earl it seemes thinks it reasonable to wait patiently for a better opportunity It may indeed appear strange that Innocence Honour oppressed in his Person almost beyond a parallel should not ere now have constrained him to some publik Vindication Especially when to the horrid Sentence given against him his Adversaries have further prevailed to cause His Majesty dispose not only of his Heritable Offices and Jurisdictions the pretended eye sore But also upon his whole Estate and Fortune with as little consideration of the Earl's personal Interest as if he had fallen for the blackest Treason and most atrocious Perduellion But besides that some things are of themselves so absurdly wicked that all palliating pretences do only render them the more hateful and the very simple hearing doth strike with an horrour not to be hightned by any representation Next that the Earl being so astonishingly overtaken for words as fairly and honestly uttered as he could possibly devise doth with reason apprehend that there is nothing he can say in this matter though with the serenest mind and in the greatest truth and sobriety that may not be construed to flow from a design to lay blame where hitherto he hath been tender to give any ground of offence I say beside these things he is withall I know most firmly perswaded That if ever he shall have the happiness to be once heard by His Majesty and in his presence allowed to explain a few Particulars in duty here omitted His Majesties justice and goodness will quickly dispell all the clouds that now hang over him and restore him to that favour wherein he hath sometime reckoned himself very happy and which he will ever be most ready to acknowledge And therefore all that in the mean time he judged necessary or would give way to was that for preserving the remembrance of so odd a Transaction untill a more seasonable juncture some Memorials should be drawn and deposited in sure keeping which being grown under my hand unto this Narrative I thought I could not better observe his order then by transmitting it to your faithful custody I have carefully there in observed the truth in point of fact avouching nothing but upon the best and clearest evidence can possibly be expected not have I as to the manner licenced or indulged my self in any severity of expression which I thought could be justly in such a case omitted without betraying the Cause Yet if you now or any other hereafter shall judge that I do sometime exceed let it not be imputed to him for as he did indeed charge me to guard against any more warm or vehement expression then the merit and exigence of the subject do indispensibly require so I am assured that he silently and patiently waits on the Lord committing his way to him and trusting in him that he may bring it to passe and that he shall bring forth his righteousness as the light and his judgment as the noon-day POSTSCRIPT SIR HAving in this Narrative sometimes adduced as you have seen the Advocate 's own authority ad hominem I shall here as I promised subjoin such passages out of his printed Book as though they deserved not a place above may yet make a pertinent POSTSCRIPT And omitting what in that Book called The Laws and Customs of Scotland in matters