or Government or to deprave his Laws and Acts of Parliament or misconstrue his Proceedings whereby any misliking may be moved betwixt his Highness and his Nobility and loving Subjects in time coming under the pain of death certifying them that do in the contrary they shall be reputed as seditious and wicked instruments enemies to his Highness and the Commonwealth of this Realm and the said pain of death shall be executed upon them with all rigour in example of others Act for preservation of His Majesties Person Authority and Government May 16â—2 And further it is by His Majesty and Estates of Parliament declared statuted and enacted That if any person or persons shall by writing printing praying preaching libelling remonstrating or by any malicious or advised speaking express publish or declare any words or sentences to stir up the people to the hatred or dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastical or of the Government of the Church by Archbishops and Bishops as it is now setled by Law That every such person or persons so offending and being Legally Convicted thereof are hereby declared incapable to enjoy or exercise any place or employment Civil Ecclesiastik or Military within this Church and Kingdom and shall be liable to such further pains as are due by the Law in such Cases Act 130. Par. 8. James 6. May 22. 1584 Anent the Authority of the Three Estates of Parliament THe Kings Majesty considering the Honour and the Authority of his Supreme Court of Parliament continued past all memory of man unto their days as constitut upon the free Votes of the Three Estates of this ancient Kingdom by whom the same under God has ever been upholden rebellious and traiterous Subjects punished the good and faithful preserved and maintained and the Laws and Acts of Parliament by which all men are governed made and established And finding the Power Dignity and Authority of the said Court of Parliament of late years called in some doubt at least some curiously travelling to have introduced some Innovation thereanent His Majesties firm will and mind always being as it is yet That the Honour Authority and Dignity of his said Three Estates shall stand and continue in their own Integrity according to the ancient and laudable custom by-gone without any alteration or diminution Therefore it is statuted and ordained by our said Soveraign Lord and his said Three Estates in this present Parliament That none of his Leidges or Subjects presume or take upon hand to impugn the Dignity and Authority of the said Three Estates or to seek or procure the innovation or diminution of the power and Authority of the same Three Estates or any of them in time coming under the pain of Treason The Earl of Argyle's first Petition for Advocats or Council to be allovved him To his Royal Highness His Majesties High Commissioner and to the Right Honourable the Lords of His Majesties Privy-Council The Humble Petition of Archibald Earl of Argyle SHEWETH THat your Petitioner being Criminally Indicted before the Lords Commissioners of ustitiary at the instance of His Majesties Advocate for Crimes of an high Nature And whereas in this Case no Advocate will readily plead for the Petitioner unless they have your Royal Higâ—ness's and â—ordships Special Licence and Warrant to that Effect which is usual in the like Cases It is therefore humbly desired that Your Royal Highness and Lordships would give special Order and Warrant to Sir George Lockhart his ordinary Advocate to consâ—lt and plead for him in the foresaid Criminal Process without incurring â—ny hazard upon that account and your Petitioner shall ever pray Edenburgh Novemb. 22. 1681. The Councils Answer to the Earl of Argyl's first Petition about his having Advocates allowed him HIS Royal Highness his Majesties High Commissioner and Lords of Privy-Council do refuse the desire of the above-written Bill but allows any Lawyers the Petitioners shall employ to consult and plead for him in the Processof Treason and other Crimes to be pursued against him at the instance of His Majesties Advocate Extr. By me Will. Paterson The Earl of Argyl's second Petition for Council to be allovved him To His Royal Highness His Majesties High Commissioner and to the Right Honourable the Lords of His Majesties Privy-Council The humble Petition of Archibald Earl of Argyle SHEWETH THat your Petitioner having given in a former Petition humbly representing That he being Criminally Indicted before the Lords Commissioners of Justitiary at the instance of His Majesties Advocate for Crimes of an high Nature And therefore desiring that your Royal Highness and Lordships would give special Warrant to Sir George Lockhart to consult and plead for him Whereupon your Royal Highness and Lordships did allow the Petitioner to make use of such Advocates as he should think fit to call Accordingly your Petitioner having desired Sir George Lockhart to consult and plead for him he hath as yet refused your Petitioner And by the 11. Parliament of King James the VI. Cap. 38. As it is the undeniable priviledg of all Subjects accused for any Crimes to have liberty to provide themselves of Advocates to defend their Lives Honour and Lands against whatsoever accusation so the same Priviledg is not only by Parliament 11. King James the VI. Cap. 90. farther asserted and confirmed but also it is declared That in case the Advocates refuse the Judges are to compel them lest the party accused should be prejudged And this being an affair of great importance to your Petitioner and Sir George Lockhart having been not only still his ordinary Advocate but also by his constant converse with him is best known to your Petitioners Principles and of whose eminent abilities and fidelity your Petitioner as many others have hath had special proof all along in his Concerns and hath such singular confidence in him that he is most necessary to your Petitioner at this occasion May it therefore please Your Royal Highness and Lordships to interpose your Authority by giving a special Order and Warrant to the said Sir George Lockhart to consult and plead for him in the said Criminal Process conform to the tenor of the said Acts of Parliament and constant known practice in the like Cases which was never refused to any Subject of the meanest quality even to the greatest Criminals And Your Royal Highness's and Lordships Answer is humbly craved Edenburgh Novemb. 24. 1681. The Councils Answer to the Earl of Argyle's second Petition HIS Royal Highness His Majesties High Commissioner and Lords of Privy Council having considered the foresaid Petition do adhere to their former Order allowing Advocates to appear for the Petitioner in the Process foresaid Extr. By me Will. Paterson The Earl of Argyle's Letter of Attorney constituting Alexander Dunbar his Procurator for requiring Sir George Lockhart to plead for him WE Archibald Earl of Argyle do hereby substitute constitute and ordain Alexander Dunbar our Servitor to be our Procurator to pass and require
Sir George Lockhart Advocate to consult and plead for us in the Criminal Process intended against us at the instance of His Majesties Advocate and to compear with us before the Lords Commissioners of Justitiary upon the 12th of December next conform to an Act of Council dated the 22d of Novemb. instant allowing any Lawyers that we should employ to consult and plead for us in the said Process and to another Act of Council of the 24th of Novemb. instant relative to the former and conform to the Acts of Parliament In witness whereof we have Subscribed these Presents at Edenburgh-Castle Nov 26. 1681. before these Witnesses Duncan Campbell Servitor to James Glen Stationer in Edenburgh and John Thom Merchant in the said Burgh ARGYLE Duncan Campbell Iohn Thom Witnesses An Instrument whereby the Earl of Argyle required Sir George Lockhart to appear and plead for him Apud Edenburgum vigesimo sexto die Mensis Novembris Anno Domini millesimo sexcentesimo octuagesimo primo Anno Regni Car. 2. Regis trigesimo tertio THe which day in presence of Me Notar publik and Witnesses under-subscribed compeared personally Alexander Dunbar Servitor to a Noble Earl Archibald Earl of Argyle as Procurator and in name of the said Earl conform to a Procuration subscribed by the said Earl at the Castle of Edenburgh upon the twenty first day of November 1681. making and constituting the said Alexander Dunbar his Procurator to the effect under-written and past to the personal presence of Sir George Lockhart Advocate in his own lodging in Edenburgh having and holding in his hands an Act of his Majesties Privy Council of the date the 22 of November 1681. instant proceeding upon a Petition given in by the said Earl of Argyle to the said Lords shewing That he being Criminally indicted before the Lords Commissioners of Justitiary at the instance of His Majesties Advocate for Crimes of an high Nature and whereas in that case no Advocates would readily plead for the said Earl unless they had his Royal Highness's and their Lordships special Licence and Warrant to that effect which is usual in the like Cases And by the said Petition humbly supplicated That his Highness and the Council would give special Order and Command to the said Sir George Lockhart the said Earl's ordinary Advocate to consult and plead for him in the foresaid Criminal Process without incurring any hazard upon that account His Royal Highness and Lords of the said Privy-Council did refuse the desire of the said Petition but allowed any Lawyers the Petitioner should employ to consult and plead for him in the Process of Treason and other Crimes to be pursued against him at the instance of His Majesties Advocate And also the said Alexander Dunbar having and holding in his hands another Act of the said Lords of Privy-Council of the date the 24th of the said moneth relative to and nar rating the foresaid first Act and Proceeding upon another supplication given in by the said Earl to the said-Lords craving That his Royal Highness and the said Lords would interâ—ose their Authority by giving a positive and special Order and Warrant to the said Sir George Lockhart to consult and plead with him in the foresaid Criminal Process conform to the tenor of the Acts of Parliament mentioned and particularized in the said Petition and frequent and known practice in the like cases which was never refused to any Subjects of the meanest quality His Royal Highness and Lords of Privy-Council having considered the foresaid Petition did by the said Act adhere to their former Order allowing Advocates to appear for the said Earl in the Process foresaid as the said Acts bear and produced the said Acts and Procuratory foresaid to the said Sir George Lockhart who took the same in his hands and read them over successive and after reading thereof the said Alexander Dunbar Procurator and in name and behalf foresaid solemnly required the said Sir George Lockhart as the said Noble Earl's ordinary Advocate and as a Lawyer and Advocate upon the said Earl's reasonable expence to consult and advise the said Earl's said Processe at any time and place the said Sir George should appoint to meet thereupon conform to the foresaid Two Acts of Council and Acts of Parliament therein mentioned appointing Advocates to consult in such matters Which the said Sir George Lockhart altogether refused Whereupon the said Alexander Dunbar as Procurator and in Name foresaid asked and took Instruments one or more in the hands of me Notary publik undersubscribed And these things were done within the said Sir George Lockhart's Lodging on the South side of the Street of Edenburgh in the Lane-Mercat within the Dining-room of the said Lodging betwixt Four and Five hours in the Afternoon Day Moneth Year Place and of His Majesties Reign respective foresaid before Robert Dicksone and John Lesly Servitors to John Campbell Writer to His Majesties Signet and Doâ—gall Maâ— Alester Messenger in Edenburgh with divers others called and required to the Premisses Ita esse Ego Johannes Broun Notarius publicui in Praemissis requisitus Attestor Testantibus his meis signe subscriptione manualibus solitis consuetis Broun Witnesses Robert Dicksone Dowgall Mac. Alester Iohn Lesly Decemb. 5. 1682. The Opinion of divers Lawyers concerning the Case of the Earl of Argyle WE have considered the Criminal Letters raised at the instance of His Majesties Advocate against the Earl of Argyle with the Acts of Parliament contained and narrated in the same Criminal Letters and have compared the same with a Paper or Explication which is libelled to have been given in by the Earl to the Lords of His Majesties Privy-Council and owned by him as the sense and explication in which he did take the Oath imposed by the late Act of Parliament Which Paper is of this tenor I have considered the Test and am very desirous to give obedience as far as I can c. And having likewise considered that the Earl after he had taken the Oath with the explication and sense then put upon it it was acquiesced to by the Lords of Privy-Council and he allowed to take his Place and to sit and vote And that before the Earl's taking of the Oath there were several Papers spread abroad containing Objections and alledging inconsistencies and contradictions in the Oath and some thereof were presented by Synods and Presbyteries of the Orthodox Clergy to some of the Bishops of the Church It is our humble Opinion that seeing the Earls design and meaning in offering the said Explication was allenarly for the clearing of his own Conscience and upon no factious or seditious design and that the matter and import of the said Paper is no contradiction of the Laws and Acts of Parliament It doth not at all import any of the Crimes libelled against him viz. Treason Leasing-making depraving of His Majesties Laws or the Crime of Perjury but that the Glosses and Inferences put by the Libel upon the said Paper
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
that were all were designed as was at first given out the Advocate needed not have set him oâ— high as Naboth and accusâ— him as a blasphemer of God and the King Then turning his speech to the Lords of Iustitiary he thought to have desired that they would yet seriously consider his words in their true sense and circumstances his own Explanation of his Explication and especially the forgoing matter of fact to have been laid before them with his Defences and grounds of Exculpation as also to have told them that they could not but observe how that he was singled out amongst thousands against whom much more then all he is charged with could be alledged and that they must of necessity acknowledge if they would speak out their own conscience that what he had said was spoke in pure innocence and duty and only for the exoneration of himself as a Christian and one honoured to be of His Majesties Privy Council where he was bound by his Oath to speak truth freely And not to throw the smallest reproach on either person or thing Adding that he was â—oath to say any thing that lookes like a reflection upon His Majesties Privy Council but if the Council can wrong one of their own number he thought he might demand if he had not met with hard measure For first he was pressed and perswaded to come to the Council then they receive his Explanation and take his Oath then they complain of him to His Majesty where he had no access to be heard and by their Letter under their hands affirm that they had been careful not to suffer any to take the Test with their own Explanations albeit they had allowed a thing very like it first to Earl Queensberry then to the Clergy And the President now Chancellour had permitted several members of the Colledge of Iustice to premise when they sware the Test some one sense some another and some non-sense as one saying he took it in sane sensu another making a speech that no man understood a third all the time of the reading repeating Lord have mercy upon me miserable sinner Nay even an Advocate after being debarred a few dayes because albeit no Clerk yet he would not take it without the benefit of his clergy viz. the Councils Explanation was yet thereafter admitted without the Warrant of the Councils Act but all this in the case of so many other was right and good Further the Council expresly declare the Earl to be Guilty before he had ever said one word in his own defence Thereafter some of them become his Assizers and others of them witness against him and after all they do of new concern themselves by a second Letter to His Majesty wherein they assert That after full debate and clear probation he was found guilty of Treason c. to have a sentence past against him and that of so high a nature and so dreadfull a consequence as suffers no person to be inconcerned far less their Lordships his Iudges who upon grounds equally just and which is more already predetermined by themselves may soon meet with the same measure not only as Concealers of Treason but upon the least pretended disobedience or non-compliance with any Act of Parliament and after all must infallibly render an accunt to God Almighty He bids them therefore Lay their hands to their hearts and whatever they shall judge he is assured that God knows and he hopes all unbyassed men in the world will or may know he is neither Guilty of Treason nor any of the Crimes libelled He sayes he is glad how many out do him in asserting the true Protestant Religion and their Loyalty to His Majesty Only he addes If he could justify himself to God as he can to His Majesty he is sure he might account himself the happiest man alive But yet seeing he hath a better hope in the mercy of God through Jesus Christ he thereupon rests whether he find Justice here on earth or not He sayes he will adde nothing to move them either to tenderness or pity he knows that not to be the place and pretends to neither from them He pleads his Innocence and craves Justice leaving it to their Lordships to consider not so much his particular case as what a Preparative it may be made and what may be its consequences And if all he hath said do neither convince nor perswade them to alter their judgment yet he desires them to consider whether the case do not at least deserve to be more fully represented and left to His Majesties wisdom and justice seeing that if once the matter pass upon record for Treason it is undoubted that hundreds of the best and who think themselves most innocent may by the same methods fall under the like Condemnation when ever the Kings Advocate shall be thereto prompted And thus you have a part of what the Earl intended to have said before pronouncing Sentence if he had not made his Escape before the day Yet some things I perceive by his notes are still in his own breast as only proper to be said to His Majesty I find several Quotations out of the Advocates printed books that it seemes he was to make some use of but seeing it would have been too great an interruption to have applyed them to the places designed I have subjoyned them together leaving them to the Advocate 's own and all mens consideration It was by some remarked That when the Lords of Iustitiary after the ending of the first dayes debate resolved that same night to give Judgment upon it they sent for the Lord Nairn one of their number an old and infirm man who being also a Lord of the Session is so decayed through age that he hath not for a considerable time been allowed to take his turn in the Outer house as they call it where they judgelesser causes alone But notwithstanding both his age and infirmity and that he was gone to bed he was raised and brought to the Court to consider a debate a great deal whereof he had not heard in full Court and withall as is informed while the Clerk was reading some of it fell of new asleep It was also remarked that the Lords of Justitiary being in all five viz. the Lord Nairn above-mentioned with the Lords Collintoun Newtoun Hirkhouse and Forret the Libell was found relevant only by the odds of three to two viz. the Lord Nairn foresaid the Lord Newtoun since made President of the Session and the Lord Forret both well enough known against the Lord Collintoun a very ingenuous Gentleman and a true old Cavalier and the Lord Hirkhouse a learned and upright judge As for the Lord Justice General who was also present and presided his vote according to the constitution of the Court was not asked yet he is since made a Marquies and Lord high Treasurer But to return to my Narrative the Earl as I have already told you did not think fit
THE CASE OF THE EARL of ARGYLE OR An exact and full Account of his Trial Escape and Sentence Wherein are insert the Act of Parliament injoining the Test the Confession of Faith the old Act of the King's Oath to be given at His Coronation With several other old Acts made for establishing the Protestant Religion As also several Explications made of the Test by the Conformed Clergy With the Secret Councils Explanation thereof Together with several Papers of Objections against the Test all framed and emitted by Conformists With the Bishop of Edinburgh's Vindication of the Test in answer thereto As likewise a Relation of several Matters of fact for better clearing of the said Case Whereunto is added An APPENDIX in answer to a late Pamphlet called A Vindication of His Majestie 's Government and Judicatories in Scotland Especially with Relation to the Earl of Argyle's Process In so far as concerns the Earl's Trial Printed in the Year M. D. C. LXXXIII THE PUBLISHER TO THE READER HAving received the ensuing Narrative of the Case and Trial of the Earl of Argyle under the Caution you may find in the close of it not to hasten the publication but rather to vvait for a more convenient season It 's like I had continued to comply as I have done hitherto vvith the Earl's inclination if not excited to the contrary by a Paper called A Vindication of His Majestie 's Government and Judicatories in Scotland Especially with relation to the late Earl of Argyle's Process printed at Edinburgh and reprinted at London vvith the appearance of a publick allovvance For albeit all wise and sober men not only in Scotland but also in the vvorld vvho have heard this affair do at this day sufficiently understand its rise procedure issue and tendency vvith all the just consideration that either oppressed innocence abused justice or impotent and ill contrived malice do deserve Yet seeing these concerned have had the confidence to subject their Res Judicata to an unexpected review and vvithall the equitie to leave their advantages and sist themselves on even ground vvith an open defiance to all contradictors and fair submission to the common sense and reason of mankind I thought I could not be vvanting to such an happy opportunity vvithout disappointing so generous an offer deserting my good Friend the Author of the Mist and failing of the second and principal part of my Trust And therefore resolved vvithout further delay to give the follovving sheets their long desired licence Purposing to subjoyn as an Appendix any further animadversions that the above-mentioned Pamphlet may seem to deserve ERRATA PAg. 2. L. 48. Acts r. Oaths p. 6. l. 39. Tursday r. Thursday p. 8. I. 9. peased r. pleased l. 20. And r. But. p. 40. l. 24. prositive r. positive p. 41. l. 38. 1667. r. 1567. p. 44. l. 61. ther r the. p. 64. l. 6. King r. Kingdom p. 66. l. 48 the Earl's hand r. the Earl of Glencairn first Chancellour after His Majesties Return his hand p. 76. l. 2. is not r. as not p. 82. l. 34. yet r. et p. 86. l. 3. Governour r. Deputy Governour p. 94. l. 3. I have considered r. I have not considered Edinburgh 30. May 1682. SIR The case of the late Earl of Argyl which even before the Process led against him you was earnest to know was at first I thought so plain that I needed not and grew afterwards so exceedingly mysterious that I could not for some time give you so perfect ane accompt of it as I wished But this time being still no less proper the exactness of mynarrative will I hope excuse all delays The design against him being now so clear and the grounds founded on so slender that to satisfie all unbyassed Persons of his integrity there needs no more but barely to represent matter of fact I should think shame to spend so many words either on arguments or relation were it not lest to strangers some mystery might still be suspected to remain concealed And therefore to make plain what they can hardly believe though we clearly see it At His Royal Highness arrival in Scotland the Earl was one of the first to wait upon him and until the meeting of our last Parliament the world believed the Earl was as much in His Highness favour as any intrusted in His Majestie 's affairs in this Kingdom When it was resolved and His Majestie moved to call the Parliament the Earl was in the countrey and at the opening of it he appeared as forward as any in His Majestie 's and His Highness service but it had not fat many dayes when a change was noticed in His Highness and the Earl observed to decline in His Highness favour In the beginning of the Parliament the Earl was appointed one of the Lords of the Articles to prepare matters for the Parliament and named by His Highness to be one of a Committee of the Articles for Religion which by the custom of all Scots Parliaments and His Majestie 's instructions to his Commissioner at this time was the first thing treated of In this Committee there was ane Act prepared for securing the Protestant Religion which Act did ratify the Act approving the Confession of Faith and also the Act containing the Coronation Oath appointed by several standing Acts of Parliament to be taken by all our Kings Regents before their entrie to the exercise of the Government This Act was drawn somewhat less binding upon the Successor as to his own profession But full as strictly tying him to maintain the Protestant Religion in the publick profession thereof and to put the Laws concerning it in execution and also appointing a further Test beside the former to exclude Papists from places of publick trust and because the fines of such as should act without taking the Test appeared no better then discharged if falling in the hands of a Popish Successor and some accounting any limitation worse then ane exclusion and all being conâ—ent to put no limitation on the Crown so it might consist with the safety and security of the Protestant Religion it was ordained that all such fines and forfaultures should appertain the one half to the informers and the other half should be bestowed on pious uses according to certain Rules expressed in the Act. But this Act being no wise pleasing to some it was laid aside and the Committee discharged any more to meet and instead of this Act there was brought in to the Parliament at the same time with the Act of succession a short Act ratifying all former Acts made for the securitie of the Protestant Religion which is the first of the printed Acts of this Parliament At the passing of this Act the Earl proposed that these words And all Acts against Poperie might be added which was opposed by the Advocat and some of the Clergie as unnecessary But the motion being seconded by Sir George Lockhart and the then President of the Session now
whoso does in the contrary to be punished at the Kings will And by the 10th Act Par. 10. James 6. it is statuted That none of His Majesties Subjects presume or take upon him publikly to declare or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws or Acts of Parliament or mistconstrue his Proceedings whereby any mistaking may be moved betwixt his Highness his Nobility and loving Subjects in time coming under pain of death certifying them that does in the contrary they shall be reputed as seditious and wicked instruments enemies to his Highness and to the Commonwealth of this Realm and the said pain of death shall be executed against them with all rigour to the example of others And by the second Act Ses. 2. Par. 1 Char. 2. it is statuted That whosoever shall by writing libelling remonstrating express publish or declare any words or sentences to stir up the people to the dislike of His Majesties Prerogative and Supremacy in causes Ecclesiastik or of the Government of the Church by Archbishops and Bishops as it is now setled by Law is under the pain of being declared incapable to exercise any Office Civil Ecclesiastik or Military within this Kingdom in any time coming Like as by the fundamental Laws of this Nation By the 130th Act Par 8. James 6. it is declared That none of His Majesties Subjects presume to impugn the Dignity or Authority of the Three Estates or to procure innovation or diminution of their Power and Authority under the pain of Treason And that it is much more Treason in any of His Majesties Subjects to presume to alter Laws already made or to make new Laws or to add any part to any Law by their own Authority that being to assume the Legislative Power to themselves with his Majesties highest and most incommunicable Prerogative Yet true it is That albeit His Sacred Majesty did not only bestow on you the said Archibald Earl of Argyle those vast Lands Jurisdictons and Superiorities justly for faulted to His Majesty by the Crimes of your deceased Father preferring your Family to those who had served His Majesty against it in the late Rebellion but also pardoned and remitted to you the Crimes of leasing making and misconstruing His Majesties and his Parliaments proceedings against the very Laws above written whereof you were found guilty and condemned to die therefore by the High Court of Parliament the 25. of August 1662. And raised you to the Title and Dignity of an Earl and being a member of all His Majesties Judicatures Notwithstanding of all these and many other Favours you the said Archibald Earl of Argyle Being put by the Lords of His Majesties Privy-Council to take the Test appointed by the Act of the last Parliament to be taken by all persons in publik Trust you insteed of taking the said Test and swearing the same in the plain genuine sense and meaning of the words without any equivocation mental reservation or evasion whatsoever you did declare against and defame the said Act and having to the end you might corrupt others by your pernicious sense drawn the same in a Libel of which Libel you dispersed and gave abroad Copies whereby ill impressions were given of the King and Parliaments Proceedings at a time especially when his Majesties Subjects were expecting what submission should be given to the said Test and being desired the next day to take the same as one of the Commissioners of His Majesties Treasury you did give in to the Lords of His Majesties Privy-Council and owned twice in plain judgment before them the said defamatory Libel against the said Test and Act of Parliament declaring That you had considered the said â—est and was desirous to give obedience as far as you could whereby you clearly insinuated that you was not able to give full obedience In the second Article of which Libel you declare That you were confident the Parliament never intended to impose contradictory Oaths thereby to abuse the people with a belief that the Parliament had been so impious as really and actually to have imposed contradictory Oaths and so ridiculous as to have made an act of Parliament which should be most deliberate of all humane Actions quite contrary to their own intentions after which you subsumed contrary to the nature of all Oaths and to the Acts of Parliament above-cited that every man must explain it for himself and take it in his own sense by which not only that excellent Law and the Oath therein specified which is intended to be a Fence to the Government both of Church and State but all other Oaths and Laws shall be rendered altogether uselesse to the Government If every man take the Oaths imposed by Law in his own sense then the Oath imposed is to no purpose for the Legislator cannot be sure that the Oath imposed by him will bind the takers according to the design and intent for which he appointed it and the Legislative Power is taken from the Imposers and setled in the taker of the Oath And so he is allowed to be the Legislator which is not only an open and violent depraving of His Majesties Laws and Acts of Parliament but is likewise a setling of the Legistative Power on private Subjects who are to take such Oaths In the third Article of that Paper you declare That you take the Test in so far only as it is consistent with it self and the Protestant Religion by which you maliciously intimate to the people That the said Oath is inconsistent with it self and with the Protestant Religion which is not only a down-right depraving of the said Act of Parliament but is likewise a misconstruing of His Majesties and the Parliaments Proceedings and misrepresenting them to the people in the highest degree in the tenderest points they can be concerned and implying that the King and the Parliament have done things inconsistent with the Protestant Religion for securing of which that Test was particularly intended In the Fourth Article you do expresly declare that you mean not by taking the said Test to bind up your self from wishing and endeavouring any alteration in a lawful way that you shall think fit for advancing of Church and State whereby also it was designed by the said Act of Parliament and Oath That no man should make any alteration in the Government of Church and State as it is now established and that it is the duty of all good Subjects in humble and quiet manner to obey the present Government Yet you not only declare your self but by your example you invite others to think themselves â—oosed from that Obligation and that it is free for them to make any alteration in either as they shall think fit concluding your whole Paper with these words And this I understand as a part of my Oath which is a treasonable invasion upon the Royal Legislative Power as if it were
were spoken in absolute innocence and without the least design except for clearing my own Conscience and that are not capable of the ill sense wrested from them by the Libel I should be further troubled what assurance can any of the greatest Quality Trust or Innocence have that they are secure especially considering that so many Scruples have been started as all know not only by many of the Orthodox Clergy but by whole Presbyteries Synods and some Bishops which were thought so considerable that an eminent Bishop took the pains to write a Treatise that was read over in Council and allovved to be Printed and a Copy given to me vvhich contains all the expressions I am charged for and many more that may be stretched to a vvorse sense Have I not shewed my zeal to all the ends of the Test How then can it be imagined that I have any sinister design in any thing that I have said If I had done any thing contrary to it all the course of my life which I hope shall not be found yet one act might pretend to be excused by a habit But nothing being questioned but the sense of words misconstrued to the greatest height and stretched to imaginary insinuations quite contrary to my scope and design and so far contrary not only to my sense but my principles Interest and duty That I hope my Lord Advocate will think he hath gone too far on in this Process and say plainly what he knows to be truth by his acquaintance with me both in publik and private viz. That I am neither Papist nor Fanatik but truly loyal in my principles and practices The hearing of this Libel would trouble me beyond most of the sufferings of my Life if my innocence did not support me and the hopes of being vindicated of this and other Calumnies before this publik and Noble Auditory I leave my Defences to these Gentlemen that plead for me they know my innocence and how groundless that Libel is I shall only say As my Life hath most of it been spent in serving and suffering for his Majesty so whatever be the event of this Process I resolve while I breath to be loyal and faithful to His Majesty And whether I live publikly or in obscurity my head my heart nor my hand shall never be wanting where I can be useful to His Majesties Service And while I live and when I die I shall pray That God Almighty would bless His Majesty with a long happy and prosperous Reign and that the lineal legal successors of the Crown may continue Monarchs of all His Majesties Dominions and be Defenders of the True Primitive Christian Apostolik Catholik Protestant Religion while Sun and Moon endure God save the King The Kings own Letter to this Nobleman when he was Lord Lorn Collogne December 20. 1654. My Lord Lorn I Am very glad to hear from Middleton what affection and zeal you show to my Service how constantly you adhere to him in all his distresses and what good Service you have performed upon the Rebels I assure you you shall find me very just and kind to you in rewarding what you have done and suffered for me and I hope you will have more Credit and Power with those of your Kindred and Dependants upon your Family to engage them with you for me than any body else can have to seduce them against me and I shall look upon all those who shall refuse to follow you as unworthy of any protection hereafter from me which you will let them know This honest Bearer M will form you of my Condition and Purposes to vvhom you will give Credit and he will tell you That I am very much Your very affectionate Friend C. R. General Middleton's Order to the Earl of Argyle who vvas then Lord Lorn for capitulating vvith the English vvherein he largely expresseth his Worth and Loyalty John Middleton Lieutenant General next and immediate under His Majesty and Commander in chief of all the Forces raised and to be raised vvithin the King of Scotland SEeing the Lord Lorn hath given so singular proofs of clear and perfect Loalty to the Kings Majesty and of pure and constant affection to the good of His Majesties Affairs as never hitherto to have any ways complyed with the Enemy and to have been principally instrumental in the enlivening of this late War and one of the chief and first movers in it and hath readily chearfully and gallantly engaged and resolutly and constantly continued active in it notwithstanding the many powerful disswasions discouragements and oppositions he hath met withal from divers hands and hath in the carrying on of the Service shown such signal Fidelity Integrity Generosity Prudence Courage and Conduct and such high Vertue Industry and Ability as are suitable to the Dignity of his Noble Family and the Trust His Majesty reposed in him and hath not only stood out against all temptations and enticements but hath most nobly crossed and repressed designs and attempts of deserting the Service and persisted loyally and firmly in it to the very last through excessive â—oil and many great difficulties misregarding all personal inconveniences and chusing the loss of Friends Fortune and all private Concernments and to endure the utmost extremities rather than to swerve in the least from his Duty or taint his Reputation with the meanest shadow of disloyalty and dishonour I do therefore hereby testify and declare That I am perfectly satisfied with his whole Deportments in relation to the Enemy and this late War and do highly approve them as being not only above all I can express of their worth but almost beyond all parallel And I do withall hereby both allow and most earnestly desire and wish him to lose no time in taking such course for his safety and preservation by Treaty Agreement or Capitulation as he shall judg most fit and expedient for the good of his Person Family and Estate since inevitable and invincible necessity hath forced us to lay aside this War And I can now no other way express my respects to him nor contribute my endeavour to do him Honour and Service In testimony whereof I have signed and sealed these Presents at Dunveagave the last day of March 1655. IOHN MIDDLETON Another Letter from the Earl of Middleton to the same purpose Paris April 17. 1655. My Noble Lord I Am hopeful that the Bearer of this Letter will be found one who has been a most faithful Servant to your Lordship and my kind Friend and a sharer in my Troubles Indeed I have been strengthned by him to support and overcome many difficulties He will acquaint you with what hath past which truly was strange to both of us but your own Re-encounters will lessen them My Lord I shall be faithful in giving you that Character which your Worth and Merit may justly challenge I profess it is next to the ruine of the Service one of my chiefest Regrets that I could not possibly wait
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
have heard and by the above-mentioned Restitution of the Marquess of Huntly were miserably cut off But upon the Earl's present disaster what neither material justice nor the merit of the Persons could obtain against the House of Huntly is now by importunity procured against the Earl of Argyle for the more effectual ruine of his Family and Friends and these old Creditors of Huntly who were no original Creditors of Argyle brought in upon Argyl's Estate to the exclusion of his proper Creditors And further least the real Securities by Morgages and otherwise that some of the Earl's Creditors have should avail them these are also made void by the Act of Quinquennial Possession and the other Rigours of forfaultures only accustomed to be practised and yet not without some mitigation in the case of atrocious and open Rebellion against the King and Kingdom And besides all this his Majesty hath been also moved to give away considerable Superiorities and Lands pertaining to the Earl to several Persons having no other pretension or merit saving an unreasonable enmity against the Family of Argyle By all which it is evident that besides the horrible usage the Earl met with in his Trial and Sentence not only is He himself wholly neglected and his Children little regarded in this late disposal of his Estate but his proper Creditors and Friends are also prejudged and postponed And in effect his whole Estate fair and opulent enough to have payed all his debts honestly provided his Children competently and sustained the dignity of his Rank honourably cutted and carved on before his eyes at pleasure and much of it parcelled out and bestowed upon the worst of his neighbors and his greatest enemies But to make a mends for all our Author sayes The Tiends are returned to the Church But seeing the Earl possessed all his tithes by good and lawfull purchases and undoubted rights from the Church whereof the Church neither did nor could complain our Author should have remembered that The Lord loves Iudgment and hates Robbery for burnt offering Yet in all this the Earl doth not intertain one hard thought of His Majesty knowing certainly that notwithstanding all was prepared for him by his learned Iudges and wife Councellours Yet he hath not stept one step in this affair but by importunity even tho all access to represent any thing to him on the Earl's behalf was way-laid Nor did his Majesty yeeld to pass the late Signature disposing of the Earl's Estate albeit the Earl of Middletoun was sent express about it until his Royal Highness arrived from Scotland at Newmarket and prevailed As for the three capital Sentences against the Earl's Family which our Author mentions you have a full account of them in the Narrative What return shall we then make to our Author 's Euge for a happy Kingdom but O unhappy happy Kingdom Wherein the fairest words are made the foulest offence and the smallest offence punished as the greatest Treason where dreames and visions are exhibited for Indictments and Judges and Jurors find them to be Realities where Right is turned to precarious Gift and then taken and retaken at pleasure And yet all these things gloried in as the greatest marks of its felicity And in a word whose misery is lamented by all except a few that enrich themselves with its spoyls and triumph in its Ruines Our Author comes in the next place to give an account in what manner the Earl gave in his Explanation and took the Test Where denying and affirming many things at random which are all distinctly set down and cleared in the Narrative I shall here only briefly remark his own as he pretends to do other mens Mistakes And first albeit the Earl was not publikly desired to take the Test yet it is most true that in private his Royal Highness did much press him to it and after a meeting of Council had been designedly appointed for the Earl's taking or resussing his Highness did peremptorily oblidge him to attend the next Council-day in course and plainly refused to give him leave to withdraw and take the benefite of the two moneths longer time allowed by the Act of Parliament 2ly It is false That the Earl had assured both his Royal Highness and many others that he would not take the Test that he came in abruptly to the Council that he spoke with so slow or soft a voice that none say they hear'd him that he clapt down on his knees and took the Test. When as 3ly It is certain That what passed betwixt his Royal Highness and the Earl about the Test is faithfully setdown in the Narrative and the Earl was not more positive with any other on that subject That it was with difficulty that the Earl got his appearance before the Council delayed untill the day he presented hemself And that that day he was expected and also spoke to and treated with by several Councellors before he entred about the swearing with an Explication That being entred and a stool set to him to kneel upon he first gave in or which is more declared openly and word by word directed toward his Royal Highness the Sense and Explanation wherein he was content to swear That his Highness heard it and told the Earl so much the next morning That the Clerks heard it and repeated it to several persons and one of them in his Witnessing against the Earl expresly swears that he heard it and saw it accepted That some that sate remotest in the Council both heard and repeated the Earl's words That after the Earl had pronounced them the Oath was administrat to and sworn by him Which was the most proper natural and direct Acceptance that could be desired So that after this business was thus publikly transacted for our Author to say either that the Earl spoke softly or that he specially being himself a Privy Councellour should first have given in his Sense and petitioned to know if it was acceptable is a silly pretence But 4ly Our Author not only contrary to truth but which is more remarkable in contradiction even to his Majesties Advocate and the Records of the Court proceeds to affirm 1. That the Earl dispersed copies of his Explanation albeit his Majesties Advocate having libelled the same thing was necessitat to pass from it because absolutly false and destitute of all evidence And next That his Majesties Advocate having allowed the Earl to prove That the Council heard and approved it yet he failed in the probation Whereas it is manifest from the Process that the Earl having alledged for a defence against the crimes of Leasing making Depraving and Treason That the Council had accepted his Explanation in manner above declared and that therefore it could not be made a ground to infer any of these crimes against him The Lords by their Judgment Interloquutour did expresly repell this defence And all they sustained was a defence proponed to elude the Perjury to witt That the Earl emitted his
other parts of it mere extravagant improvements of a lesed phansy viz. That he did thereby teach others to do the like And evacuate all other acts of that nature And yet our Author as if he had fully made out his Charge goes on to answer not the Mist in the pertinent contexture of its whole discourse but a few such Objections as he thought fit lamely to excerp out of it And the first he takes notice of is where the Mist or M r Mist as this Brouillon calls him sayes That if the Authority vvhich is to administer the Oath accept the Takers sense the Taker is only bound in that sense But so it is the Council accepted the Earl's sense and if they had refused it the Earl had not taken the Oath nor had his refusal been a crime Which being indeed an unanswerable Defence for the Earl and largely insisted on in the Narrative I shall only shortly consider our Author's Reply whereof the summe and force is That the Council not having the povver to pardon Crimes their connivance at the Earl's misinterpreting the Law cannot exoner him Which he illustrats by putting the case That a man having many Friends in Council gives in an Explication incontrovertedly treasonable for example That he minds not thereby to bind up himself from rising in Arms yet it would be no defence sayes our Author that the Council did not challenge it for the time But waving the Author's confounding of misinterpreting of a Law with the missensing of an Oath His lessening the Councils Acceptance of the Earl's Explanation into a bare connivance and lastly his reproaching their Lordships with a very palpable insinuation of partiality The question is not If the Council have the power of pardoning as our Author goes about to pervert the argument on purpose that he may presuppose a Crime but plainly If they have not the Authority to administer the Oath of the Test by express provision of the Act of Parliament Which our Author cannot deny Now If the Council by the Act of Parliament have the Authority to administer and did really accept the Earl's Explanation and not only connive at it which on his part was a mere proposal and in effect by their acceptance became as truly their Explanation as if they themselves had emitted it how is it possible that in this matter he should be thought guilty without overturning all the principles of Reason Sense and common Honesty I grant If the Earl or any man else had under the pretext of offering an Explanation taken occasion openly to misinterpret the Laws or utter speaches manifestly treasonable the Councils connivance could not fully assoil him But 1. What have we to do with such absurd and incredible suppositions And is it not the hight of calumnie to compare the Earl's Explanation which both in it self and in all its circumstances manifestly appears to be most ingenuously and dutyfully by him tendered for the exoneration of his conscience and was no less really accepted as such by the Council with imaginary criminal Wrestings and treasonable Declamations which as proposed scarce any man in his right wits can judge caseable 2 ly The Earl and his words being charged with Misinterpreting Slandering Reproaching and Depraving his Majesties Statuts and Proceedings If the Lords of Council who represent his Majesty by a commission unaccountable save to his Majesty alone accept his words is it not the same thing as if his Majesty himself had done it Which certainly is more significant as to the cutting off of any pretence of Injury then either Dissimulation or Remission which yet all Law doth constantly sustain for that end 3ly As to the Treason objected though there were some ground for it as there is none yet seeing the Earl's Explanation was tendered to the Council to be by them authorized and if by them rejected had indeed evanished as never uttered It 's yet further evident that their Acceptance could not be made a snare to the Earl without the greatest injustice But 4ly The Council being impowered by the Parliament to administer and having accepted the Earl's Explanation it is the same thing as if the Parliament had accepted it in which case even our Author must acknowledge that all ground of accusation would have been for ever excluded But instead of noticing these things all that our Author sayes is 1. That the Paper containing the Earl's Explanation was not given in till the next day after that the Earl had sworn the Test. But was it therefore not delivered verbally in Council the day before And was not this Delivery enough And 2ly That tho the Judges had allowed the Earl to prove that he had emitted these words at the swearing of the Test yet he failed in the probation But in what manner and for what intent this Allowance was given and how disingenuously it is here obtruded I have already cleared In the 2d Place Our Author affirms the Mists alledgeance for clearing the Earl of the Charge of Misinterpreting viz. That the Law doth only discharge publik Misinterpreting to the abusing of others to be most false But althouh I have already told you that to extend the Law against Misinterpreting the King's Statuts to a man's Missensing of an Oath is a wide stretch which both Papists and Fanatiks who vastly disagree from our Author as to the sense of the Oath of Supremacy and yet have no difference with him as to the sense of the Acts imposing it may justly call absurd Yet to assist my Friend the Mist who tho a stranger hath yet said things ten times more justly then our Author albeit apparently a piece of a Scotch aspiring Lawyer 1. I would be content to know If so be our Author think every private misinterpretation of Laws to be a transgression of this Act of Parliament What shall become not only of thousands of the King 's best subjects who fall dayly in such mistakes but also of Advocates and Lawyers themselves who are continually by the Ears about such controversies Nay even of his Majesties Advocate who in his prined Criminals as you may see above in the first Posâ—script to the Narrative calls an Act of Parliament an unreasonable unjust murthering and inept Act And I am very confident whatever our Author shall think fit to alledge either from the Direction of the Intention or favour of Circumstances for acquitting these Misinterpreters it shall fully quadrate to the Earl's case and with many and clear advantages 2ly When our Author jumps from the Misinterpreting of Lavvs to the Missensing of Oaths and thereon tells us how dangerous and criminal it is to take Oaths in wrested senses contrair to the design of the Legislator He first supposes what is already shewed to be false viz. That the Earl's Explanation of the Test is wrested And next he quite forgets that no sense of the Test can avail unless accepted by the Council the great Administrators So that for all his flanting the Government
to either occasion time place manner or end albeit the principal significators in cases of this nature and in effect the main hinges of all morality A Logick capable to pervert the best words and subvert all ingenuity and honesty amongst men For put the case that to satisfy the apprehensions and doubts that were so frequent of Contradictions and Inconsistencies in the Test His Highness himself or the President of the Council had said to these Scruplers in these or the like words That he was confident the Parliament had no intention to impose contradictory Oaths It is evident That by our Author 's reasoning this very apology how fairly soever intended in charity to these dissenters and for the Parliaments vindication might as well as the Earl's words be urged with all our Author's misconstructions and made a mortall Crime But leaving things so obvious and already so fully cleared take a short account of the Circumstances wherewith our Author doth further charge the Earl And first He sayes That the Earl's Father and Family had owned eminently the Principles against which this Oath was taken But our Author cannot deny that they owned yet more eminently the Protestant Religion the only subject of this Part of the Test and of the Earl's Explanation now questioned And for the other Principles here named they owned them no otherwise then the Parliaments of both Kingdoms did 2ly He says The Earl himself had taken the Covenant And so did And many thousands of his good Subjects beside 3ly He tells us The Earl had all along opposed the Test in Parliament But therefore there was the greater reason that his offer to take it with an Explanation should have been favourably accepted 4ly Our Author adds The Earl had positivly told his Royal Highness he would not take the Test. But this is both false and impertinent 5ly He says Neither the Ministers nor others in the Earl's countrey upon whom he had influence had taken the Test. But beside that this is not true absolutly and that in effect Few Ministers in Scotland had at that time taken the Test in respect there were about two moneths of the time allowed by the Act of Parliament then to run how iniquous is it to make the Earl accountable for other mens inclinations 6ly The Concern and Kindness the Fanatiks shew for the Earl is also objected but with the same truth and pertinency as all the rest And yet our Author concluds All which demonstrate That he had an aversion from the Test. Which indeed might very well have been without this demonstration But that therefore what he said about it or as our Author speaks did against it was done dolo malo is just as much as to say that he who in candid and honest dealing goes about to explain an ambiguous Oath before he take it speaks maliciously against it But our Author tells us That the Lords of Justitiary had a clear Precedent for what they did against the Earl in the like Iudgment given in the same Court against the Lord Balmerino Who for a Petition presented to and accepted and once read by his late Majesty vvas found guilty upon far remoter inferences of Misconstruing his Majesties Proceedings But this being particularly answered by the Earl's Lawyers in the Process I shall only here add 1. That Balmerino's Petition containing many positive alledgeances reflecting on several passages of the Government in order to a redress wherein his design might very readily fall under suspicion holds no parallel with the Earl's Explanation on his part a mere Proposal made with all due respect to the Parliament and simply tendered for the clearing of his Oath and Conscience and not indeed capable of another construction 2ly The King never accepted Balmerino's Petition by way of Approbation nor was it so much as delivered to him by Balmerino But our Author by this false phrasing of the King 's having seen and read this Petition would take off the Councils formal and direct Acceptance of the Earl's Explanation And 3ly That albeit Balmerino's Petition and the Earl's Explanation hold no manner of proportion yet even Balmerino's case was generally judged so hard that his Jurours themselves divided upon it and he was only found guilty by eight of them against seven that assoiled him and immediatly after Sentence he was freely pardoned As to what our Author adds Of this same Earl's being formerly found guilty Anno 1662. Of the like Crime upon the like Ground It is very true He was indeed then found guilty of the like Crime and upon the like Ground And not only by the same partie but by some of the same Persons who semel semper are and will be in eodem genere But of this you have already had a large and full account Our Author comes to review the Mist's Justification of the Earl's words To which opposing his former Perversions he only repeats with some new extravagancies what is already answered Thus for instance where the Earl in duty and civility sayes by way of Preface That he was desirous to give obedience as far as he could which clearly refers to the Act of Parliament and the Councils Requisition whereunto he professes his willingness to give all possible satisfaction Our Author to shew his good Breeding and better sense tells us That these words vvere intended by the Earl for a quality and part of his Oath as if he had said that though he vvas content to svvear yet he vvas only minded to keep so as far as he could Whereas it is evident as the sun-light that the quality that the Earl adjects and which he would have understood for a part of his Oath begins after these words And therefore I take the Test And that this quality is both certain sound and most genuine But having already told you that before the Earl's appearance the Countrey was filled with the noise of Contradictions and Inconsistencies in the Test So that the Earl's words in stead of Reproaching were in effect a direct and very seasonable Vindication of the Government as well as of his own Conscience And that the Security of the Government as to Oaths is not concerned in the senses that men devise or propose as our Author perpetually mistakes but in such as it pleaseth the Council the grand Administrators to accept I shall not trouble you with further Reflections on this head Specially seeing that albeit the importunity of the Earl's Accuser have occasioned what in the Narrative and what in this Preface a sensing and resensing of his words almost ad Nauseam Yet the plain truth and my opinion is that the Earl's words never had nor can have but two senses and these most distinct and constant The one genuine just and honest which all indifferent men ever did and do acknowledge The other most strained crooked and calumnious which yet his Adversaries will alwise adhere to But sayes our Author these words I take it in so far as it
Cautions Where that you may understand the Man and then see how fairly and justly he draâ—s this Conclusion be pleased to notice That where the Earl declares in one speach That he meanes not to bind up himself in his Station and in a lawfull way to endeavour Alterations not repugnant to Religion and Loyalty Our Author not to speak of his changing first honestly divides the Earl's words whereby he or any man may with the same ease turn Scripture into Blasphemy telling us That the Earl reserves to himself a power to make any Alterations Just as if he had said this simply and no more Then straining and affirming these words to be Treason he rejects all the Earl's Cautions in the same manner as if they had not been manifest parts of his Declaration uttered with one and the same breath but adjected ex post facto to palliate some high Rebellion According to the Candor and Justice of which Procedure it is obvious That a man's professing he would take up Arms at his Majesties Command for the advantage of Church and State conform to his Allegiance and Loyalty might be equally judged to be Traiterous and Rebellious For Rising in Arms sounding evidently much worse then the endeavouring of Alterations Let our Author once divide the words and affirm That the first Part of them is Treason and then all that followes shall be held for Insufficient Cheating and contrary Cautions and the man irrecoverably cast as guilty of Treason How justly or unjustly let all men judge But our Author proceeds to answer what the Mist objects And. 1. Where the Mist sayes That Treason requires a special Law Our Author denyes it telling us That so soon as Kings were and before there was Law it was Treason to rise in Arms against them That Treason is the fence of the Government as murder is of private mens lives as our Author strangely words it That Law thought it unnecessary to provide against the greatest Treasons and that Traitors vvould easily elude the expressvvords of a Statut. Which things albeit they be partly true Yet 1. I hope these who in the beginnings of Kingdoms died for Treason died by lesse then bills of Attainder viz. by bare Royall Decrees which I cannot think our Author imagines were then drawn in Exemplum 2ly It is to be considered that because in these beginnings of Kingdoms some Crimes that are such by the light of Reason were necessarily punished without Statut it will not follow That therefore Crimes may now be made at Random and punished at Pleasure 3ly It is without controversy That whatever at present is not Treason jure gentium ought not to be persued and punished as such without a positive Lavv Specially to inferr the pains of For faulture which exceeding the prescript of common Reason do certainly in all cases require an Express Statut. 4ly It is most dangerons and tends visibly to defeate all the providence and security of Law to alledge That even in the case of an express Statut Traitors may elude its vvords And that therefore something else no doubt the Judge's arbitrary Arbitriment must be necessary And 5ly It is most certain and evident that neither by Statut Law Reason nor Sense the Earl's words are chargeable with the smallest delinquency much less the heavy Crime of Treason 2ly Where it is objected That the Earl by his Oath as a Privy Councellour is obliged in that his Station and in a Lawful way to propone and advise and so to wish and endeavour any Alteration he thinks to the advantage of Church and State not repugnant to Religion and Loyalty And that therefore his Reservation in these terms was necessary at least unde nyably good and lawful Our Author knowing this to be an unanswer able Defence against this imaginary Treason first propones it most lamely and overly and then for a Reply returns us a full Concession Which that you may the better perceive take the Argument for the Earl thus What the Earl is certainly bound to both by his Peerage and Oath as a Councellour the Reservation of a freedom to do it cannot be Treason But to wish and endeavour in his Station and in a lawful way any Alteration he thinks to the advantage of Church and State not repugnant to Religion and Loyalty is that which the Earl is bound to both by his Peerage and Oath as a Councellour Therefore the Reservation of a freedom to do it cannot be Treason The Proposition is founded on clear Law and Reason it being evidently impossible to conceive that the Reservation of a freedom to do what is my bound duty by Oath should fall under the construction of Treason The Subsumption is proven thus The Earl is bound by his Peerage and by his Oath as a Councellour to assist His Majesty with his best advice and concurrence in all things Ergo By his Peerage and Oath he is bound to wish and endeavour in his Station and in a lawful way any Alteration he shall think to the advantage of Church and State not repugnant to Religion and Loyalty The reason of the Connexion is because as our Author sayes All comprehends Any and Things no doubt includs Alterations and Wishes and Endeavours in a lawful way for Alterations to seen advantage not only may but must be imported by the Advice and Assistance sworn to when ever His Majesties Command or undoubted Interest shall call for them It being undenyable that as Wishes and Endeavours are included in Advice and Concurrence so for a sworn Member of His Majesties Privie Council not to give His Majesty in such an exigent his best Wishes and Advice and his most heartie Endeavour and Concurrence would be manifest Perjury and Disloyalty Nor does it at all alter the Case though we restrict the Quality precisely to His Majesties Pleasure For if that be the only Lawful and Loyal Way of Wishing Advising Endeavouring and Concurring It is evident that the Earl's words do reserve this alone and no other way beside So that there could be nothing more justly said by him for asserting that due liberty which his Peerage and Oath do indispensibly require and consequently his Words being plain Duty and Conscience could never be made Treason Now after our Author hath shuffled over this Defence and Exception as you may see in his Vindication For an easie answer as he calls it he tells us frankly That no Oath doth hinder a man from doing what is lawful and so there needed be no Reservation nor Exception on that Consideration And again that the Oath did not exclude any Lawful Endeavours at the Desire or Command of the Prince which the Earl as I have told you is here as well content to admit for the qualification of Lawfulness as our Author and so there needed no Exception as to these And thus you see that the Earl for a Reservation even in our Author's judgment neither false nor unlawful but only judged by him to be
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
upon the foâ—faulture of the late Marqueis of Argyl his Estate was annexed to the Croun and so could not be gifted to the Earl by His Majestie wherein they soon discovered a design to forfault him if any pretence could be found But the Act of Forfaulture being read and containing no such thing but on the contrary a clear power left to His Majestie to dispose of the whole and the Earl telling them plainly that these that were most active to have his Father forfaulted were very far from desiring his Estate to be annexed to the Croun seeing it was in expectation of Gifts out of it they were so diligent that pretence of the annexation was past from but yet the designe was nowise given over for there was a proposition made and a vote caried in the Articles that a Committee should be appointed with Parliamentary power to meet in the intervals of Parliament to determine all controversies could be moved against any of the Earls rights Which was a very extraordinary device and plainly caried by extraordinary influences Upon this the Earl applyed to the Parliament where this vote was to be brought and having informed the members of his right and the consequences of such a new Judicature he had good hope to get the vote ranversed when his Royal H s on second thoughts judged it fit to put a stop to it and excused himselfe saying it was his not being acquaint and but lately in affairs had made him go along with it for he found it did plainly impugn His Majesties prerogative and might be of ill consequence and indeed it is plain enough It would have exposed the Marqueis of Huntli'es gift which proceeded on the same forfaulture as well as the Earl of Argyls to the same and far greater hazard as some came to be sensible when they heard all You see here at what rate the Earl was pursued and on what grounds before his taking of the Test came in hand After the Parliament was adjurned there was a new design to apply to His Majestie for a Commission of the same nature for reviewing all the Earls rights and to deprive him of his heritable offices and if possible to burden him with more debts then his Estate was worth Upon which the Earl waited on his Highness and informed him more particularly offering to make it appear by unquestionable rights and evidences That his Estate was not subject to any such review as was intended And that it might breed the Earle great trouble but could have no effect in Law To which his Highness answered That a review could do no hurt The Earl said If a commission for a review were granted some thing must be intended and some thing must be done and it was very like that some of these put into such a commission would be his enemies at least small friends and therefore intreated that if any intended to quarrel his rights they and he and all their debates might be remitted to the Ordinary Iudicatories And indeed he had reason to desire it might be so the Ordinary Iudicatories being established by the ancient Laws of the Kingdom not in order or with respect to particular causes and persons but for the general equal and impartial administration of Justice to all Whereas the granting particular Commissions for trying and judging such and such cases and persons cannot but expose to the just contrary inconveniences there being certainly a vast difference betwixt a mans finding a judge indifferently constitut and his having one expresly and particularly appointed for his single affair who might possibly think himself commissionat rather to serve a turn in ane arbitrary way then to administer fair Justice but all this prevailed not Only his Highness said The commission should not be expede untill the Earl knew the names of the Persons insert in it Whereunto the Earl answered That their might be many Persons against whom he could make no legal exception whom yet he might have very good reason to decline to be his particular judges and to have his rights taken from the ordinary Judges and committed to their examination and all he might possibly gain by excepting would be to irritat Adding that as to his heritable offices he had undoubtedly right to them and they were rather honourable then of advantage that his family had them for faithful services to the Crown and because they had served more faithfully then their Neighbours and been more useful then others in keeping the Countrey in peace from Thieves and Robbers therefore all the broken men and their patrons were enemies to him and his family and desirous to have these offices out of his hands but he resolved to doe as he had alwise done to put himself in His Majest will and if His Majest were resolved to have back all heritable offices and should think fit after hearing him to have back his His Majestie should have them either freely or for a just value For though they rendered the Earl no free yearly rent as the Earl used them yet he might be a sufferer in the want of them if the Country were left open to Thieves and Robbers which he hoped His Majestie would repair His rights as he had said in Parliament were unquestionable and oftentimes confirmed Yet he was willing to surrender them all on his knee to His Majestie but was not willing to have them â—orn from him with ane affront by any other Upon this his Highness was pleased to allow the Earl a time to go to the Country to bring his Papers and he was put in hopes no Commission should passe till his return which was indeed observed In the mean time the Earl did write to the Earl of Murray His Majest Secretary that he might have leave to wait upon His Majesty which His Majesty did graciously and readily grant The Earl purposing at his return to Edinburgh to beg the same favour of His Highness But he found this motion more fatal to him then he could have at first expected so innocent a design could prove For it was at first told him he could not have access to kiss His Majesty's hand without taking the Test then it dropt out that it was ill taken His Majesty was at all addressed to for leeve to kiss his hand And at length it became plain that takeing the Test would not clear the way As the Earl was on his return to Edinburgh to wait upon His Highness and come the length of Glasgow he got the news that the late President of the Session and He were both turned out of it and at his arrival at Edinburgh several meetings of Council were appointed only to occasion his takeing of the Test But the Earl having gone some miles out of town was not present At last a meeting of the Council was appointed expresly and one of the clerks ordered to warn the Earl particularly to be present whereof the Earl being advertised before the clerk came to him he waited
on His Highness and had the honour of ane opportunity after supper to speak to His Royall Highness in his bed chamber The Earl told His Highness he was now returned to make good his word and to shew those writts and rights he had promised But Sir said the Earl I haveheard by the way of alterations and that I am turn'd out of the Session His Highness said it was so The Earl asked what nixt His Highness said he knew no more The Earl said he had never sought that nor any place and he knew that place was at His Maj. dispose and it might soon be better filled But said the Earl if it be to express a frown it is the first I have had from His Majesty thir thirty years I know I have enemies but they shall never make me alter my duetie and resolution to serve His Majesty I have served His Majesty in armes and in his judicatures when I knew I had enemies on my right hand and on my left and I will doe so still But if any have power to render His Majesty or your highness jealous of me it will make my service the more useless to both and the less comfortable to my selfe His Highness said he knew no more then what he had said the Earl then said it was late and he would wait on His Highnesse some other time about these matters But the thing that at present presses Sayes the Earle is That I hear one of the Clerks of Council is appointed to tell me to be at the Council to morrow I conceave to take the Test Pray what is the haste may not I with Your Highnesses favour have the time allowed by the Act of Parliament His Highnesse said No. The Earl urged it again but in vain And all the delay he could obtain was till tursday the third of November the nixt Council day in course The Earl said he was the less fond of the Test that he found that some that refused it were still in favour and others that had taken it turned out as the Register At which His Highnesse only laught But Sir said the Earl how comes your Highnesse to press the Test so hastily Sure there are some things in it Your Highnesse doth not over much like Then said His Highnesse angrily and in a passion most true that Test was brought into the Parliament without the Confession of Faith But the late President caused put in the Confession which makes it such as no honest man can take it The Earl said he had the more reason to advise Whereby you may see whether His Highness then thought the Confession was to be sworn to in the Test â—or not After this the Earl waited several times on His Highness and made new attempts for the favour of a delay but with no successe What passed in Privat shall not be repeated except so far as is absolutly necessary to evince the Earl his innocency and to shew that in what he did he had no ill design nor did in the least prevaricat or give any offence willingly but was ready to comply as far as he could with a good conscience It was in this interval that the Earl spoke with the Bishop of Edinburgh saw his Vindication of the Test and all the Explanations I here send yow only the Councils explanation was not yet thought on And that all the Bishop did then urge the Earl with beyond what is in his Vindication was to have a care of a noble Family and to tell him that the opposing the exception of the Kings Sons and Brothers from taking the Test had fired the kiln At the last upon Wednesday the second of November late the Earl waited on his Highness and did in the most humble and easie expressions he could devise decline the present taking of the Test But if h 〈…〉 Hâ— would needs have a present answer he beg'd his favour that he would accept of his refusing it in privat which was denied again Then he said if his Highness would allow him time to goe home and consider he would either give satisfaction or the time prescribed by the Act of Parliament would elapse and so he would go off in Course and without noise But this also His Highness absolutly refused Upon which the Earl asked what good his appearing in Council to refuse there would doe His Highness was pleased to answer that he needed not appear but to imploy some friend to speak for him And His Highness himselfe named one this the Earl yielded to as the best of a bad choice and said he should either use the person named by His Highness or some other relation that were a Councellor and in toun And in compliance with his Highness pleasure the nixt morning the Earl drew a letter for a warrand to the same Person his Hâ— had named for declaring his mind in Council wherein he exprest his constant resolution to continue a true Protestant and Loyal Subject which were the true ends of the Test But the letter concluding on a delay of taking the Oath and his Highness having given some indication how litle pleasing that office was to him neither that friend nor any other would by any means accept of it Upon this the Earl drew a second and shorter letter to any that should that day Preside in Council but after much discourse it being suggested that an explanation would be allowed and the shorter the better the Earl first drew one suitable to his own thoughts and it being thought too long did instantly shorten it and put it into his pocket but withall said he would not offer it till he knew His Highness pleasure lest his Highness might take it ill that any had prevailed more with him then himselfe and therefore the Earl did refuse to go to the Council or out of his chamber till he had his approbation A litle after a coatch was sent for the Earl and it was told him in the room without the Council chamber that the Bishop of Edinburgh had spoke to His Highness and signified to him that the Earl was willing to take the Test with an Explanation and that the Bishop said it would be very kindly accepted These were the express words and then and not till then the Earl went in to the Council and delivered that is pronounced his Explanation closs by His Highness and directly towards him so loud and audible that some in the furthest corner of the room acknowledged they heard it Whereupon the Oath was administred and the Earl took it and His Highness with a well satisfied Countenance and the honour of a smile Commanded him to take his place And while he sat by His Highness which was his honour to do that day His Highness spake several times privatly to him and alwise very pleasantly And the Earl hath since protested to his freinds that he thinks his Highness was at the time well peased though some others that wisht the Earl out of
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
and when his Highness was told it was hard measure by such a process and on such pretensions to thereaten life and fortune his Highness said life and fortune God forbid What happened after these things and how the processe was carried on followes now in order and for your more clear and distinct information I have sent you several very necessary and useful papers with indexes on the margin pointing at such passages as more remarkably concern this affair And the papers are I. Act Char. 2. P. 3. C. 6 Aug. 31. 1681. Anent Religion and the Test. II. Act I. 6. P. 1. C. 3. Anno 1567. Anent the annulling of the Acts of Parliament made against God's Word and for maintainance of Idolatry in any times by past III. Act I. 6. P. 1. C. 4. Anno 1567. The Confession of the Faith and Doctrine c. IV. Act I. 6. P. 1 C. 8. Anno 1567. Anent the Kings Oath to be given at his Coronation V. Act I 6. P. 1. C. 9. No Person may be judge Procurator Notar nor member of Court who professeth not the Religion c. VI. Part of the Act I. 6. P. 2. C. 5. Anno 1609. entituled Act against Jesuits seminary Priests sayers or hearers of Messe Papists and receptors of them VII Act I 6. P 3. C. 47. Anno 1572. Adversaries of the true Religion are not Subjects to the King Of Apostats VIII Act Char. 2. P. 2. C 1. 16 Nov. 1669. Act asserting his Majesties Supremacy over all persons and in all causes ecclesiastical IX The Bishop of Aberdeens explication of the Test. X. The explication of the Test by the Synod and Clergie of Perth XI Paraphrase on the Test XII Grounds wherupon some of the conform Ministers scruple to take the Test. XIII Sederunt of the Council 22. September 1681. XIV The Earl of Queensberries explanation XV. Sederunt 21 October 1681. XVI The Bishop of Edinburgh's paper and vindication of the Test. XVII Sederunt 3 November 1681. XVIII Privy Councils explanation XIX Sederunt 4. Nov. 1681. XX. The Earl of Argyl's explication of the Test. XXI The explanation of his explication XXII The Councils Letter to the King XXIII The Kings Answer XXIV The inditement XXV Abstract of the Acts of Parliament whereupon the inditment is founded XXVI The Earl of Argyl's first Petition for Advocats XXVII The Councils Answer XXVIII The Earl of Argyl's second Petition XXIX The Councils Answer XXX The Earl of Argyl's Letter of Atturney XXXI Instrument thereon XXXII Opinion of Lawyers of the Earl's Case Which Papers may give you much light in this whole matter Anâ— ACT For securing the Protestant Religion and enjoyning a Test. OUR Soveraign Lord with his Estates of Parliament considering That albeit by many good and wholsom Laws made by his Royal Grandfather and Father of glorious Memory and by himself in this and the other Parliaments since his happy restauration The Protestant Religion is carefully asserted established and secured against Popery and Fanaticisme yet the restless Adversaries of our Religion do not cease to propagate their errors and to seduce His Majesties Subjects from their duty to God and loyalty to his Vicegerent and to overturn the established Religion by introducing their superstitions and delusions into this Church and Kingdom And knowing that nothing can more encrease the numbers and confidence of Papists and Schismatical Dissenters from the established Church then the supine neglect of putting in execution the good Laws provided against them together with their hopes to insinuate themselves into Offices and places of trust and publick employment Therefore His Majesty from his Princely and pious Zeal to maintain and preserve the true Protestant Religion contained in the Confession of Faith recorded in the first Parliament of King James the VI. which is founded on and agreeable to the written word of God Doeth with advice and consent of his Estates of Parliament require and command all his Officers Judges and Magistrates to put the Laws made against Popery and Papists Priests Jesuits and all persons of any other Order in the Popish Church especially against all sayers and hearers of Messe venters and dispensers of forbidden books and resetters of popish Priests and excommunicat Papists as also against all fanitical Separatists from this National Church against Preachers at house or field Conventicles and the resetters and harbourers of preachers who are intercommuned against disorderly Baptisms and Marriages and irregular Ordinations and all other schismatical disorders to full and vigorous execution according to the tenor of the respective Acts of Parliament thereanent provided And that His Majesties Princely Care to have these Laws put in execution against these enemies of the Protestant Religion may the more clearly appear He doth with aduice and consent foresaid statute and ordain that the Ministers of each Parish give up in October yearly to their respective Ordinaries true and compleat Lists of all Papists and schismatical with-drawers from the publick worship in their respective Parishes which Lists are to be subscribed by them and that the Bishops give in a double of the said Lists subscribed by them to the respective Sheriffs Steuards Bayliffs of Royalty and Regality and Magistrates of Burghs to the effect the said Judges may proceed against them according to Law As also the Sheriffs and other Magistrats foresaid are hereby ordained to give an accompt to His Majesties Privy Council in December yearly of their prooceedings against those Papists and fanatical separatists as they will be answerable at their highest peril And that the diligence done by the Sheriffs Baylies of Regalities and other Magistrates foresaid may be the better enquired into by the Council the Bishops of the respective Diocesses are to send exact doubles of the Lists of the Papists and Fanatiks to the Clerk of the Privy Council whereby the diligence of the Sheriffs and other Iudges of Courts may be comptrolled and examined And to cut off all hopes from Papists and Fanatiks of their being imployed in Offices and Places of publick trust It is hereby statute and ordained That the following Oath shall be taken by all persons in Offices and Places of publick trust Civil Ecclesiastical and Military especially by all Members of Parliament and all Electors of Members of Parliament all Privy-Councellors Lords of Session Members of the Exchequer Lords of Justitiary and all other Members of these Courts all Officers of the Crown and State all Archbishops and Bishops and all Preachers and Ministers of the Gospel whatsoever all persons of this Kingdom named or to be named Commissioners of the Borders all Members of the Commission for Church affaires all Sheriffs Steuards Baylies of of Royalties and Regalities Iustices of Peace Officers of the Mint Commisaries and their Deputies their Clerks and Fiscals all Advocats and Procurators before any of these Courts all Writers to the Signet all publick Notars and other persons imployed in writing and agenting The Lyon King at arms Heraulds Pursevants Messengers at
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
to understand it notwithstanding all these exce 〈…〉 on s in the Parliaments which is its true and genuine sense I take it therefore notwithstanding any scruple made by any as far as it is consistent with it self and the Protestant Religion which is wholly in the Parliaments sense and their true meaning which being present I am sure was owned by all to be the securing of the Protestant Religion founded on the word of God and contained in the Confession of Faith recorded I. 6 p. 1. c. 4. And not out of scruple as if any thing in the Test did import the contrary but to clear my self from all cavils as if thereby I were bound up further then the true meaning of the Oath I doe declare that by that part of the Test that there lyes no obligation on me c. I mean not to bind up my self in my station and in a lawfull way still disclaming all unlawful endeavours to wish and endeavour any alteration I think according to my conscience to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty and by my Loyalty I understand no other thing then the words plainly bear to wit the duty and allegiance of all Loyal Subjects and this explanation I understand as a part not of the Test or Act of Parliament but as a qualifying part of my Oath that I am to swear and with it I am willing to take the Test if Your Royal Highness and Your Lordships allow me or otherwise in submission to Your Highness and the Councils pleasure I am content to be held as a refuser at present The Councils Letter to His Majesty concerning their having committed the Earl of Argyle May it please your Sacred Majesty THE last Parliament having made so many and so advantageous Acts for securing the Protestant Religion the Imperial Crown of this Kingdom and your Majesties Sacred Person whom God Almighty long preserve and having for the last and as the best way for securing all these appointed a Test to be taken by all who should be entrusted with the Government which bears expresly That the same should be taken in the plain and genuine sense and meaning of the words We were very careful not to suffer any to take the said Oath or Test with their own Glosses or Explications but the Earl of Argyle having after some delays come to Council to take the said Oath as a Privy-Councellor spoke some things which were not then heard nor adverted to and when his Lordship at his next offering to take it in Coâ—ncil as one of the Commissioners of your Majesties Tresury was commanded to take it simply he refused to do so but gave in a Paper shewing the only sense in which he would take it which Paper we all considered as that which had in it gross and scandalous Reflections upon that excellent Act of Parliament making it to contain things contradictory and inconsistent and thereby depraving your Majesties Laws misrepresenting your Parliament and teaching your Subjects to evacuate and disappoint all Laws and Securities that can be enacted for the preservation of the Government suitable to which his Lordship declares in that Paper That he means not to bind up himself from making any alterations he shall think fit for the advantage of Church or State and which Paper he desires may be looked upon as a part of his Oath as if he were the Legislator and able to add a part to the Act of Parliament Upon serious perusal of which Paper we found our selves obliged to send the said Earl to the Castle of Edenburgh and to to transmit the Paper to your Majesty being expresly obliged to both these by your Majesties express Laws And we have commanded your Majesties Advocate to raise a pursuit against the said Earl forbeing Author and having given in the said Paper And for the further prosecution of all relating to this Affair we expect your Majesties Commands which shall be most humbly and faithfully obeyed by Your Majesties most Humble most Faithful and most Obedient Subjects and Servants Edenburgh Nov. 8. 1681. Sic Subscribitur Glencairne Winton Linlithgow Perth Roxburgh Ancram Airlie Levingstoun Io. Edinburgen Ross Geo. Gordoun Ch. Maitland G. M ckenzie Ja. Foulis I. Drumond The Kings Answer to the Councils Letter C. R. Novemb. 15. 1681. MOst dear c. having in one of your Letters directed unto us of the 8. Instant received a particular account of the Earl of Argyle's refusing to take the Test simply and of your proceedings against him upon the occasion of his giving in a Paper shewing the only sense in which he will take it which had in it gross and scandalous Reflections upon that excellent late Act of our Parliament there by which the said Test was enjoyned to be taken we have now thought fit to let you know that as we do hereby approve these your Proceedings particularly your sending the said Earl to our Castle of Edenburgh and your commanding our Advocate to raise a Pursuit against him for being Author of and having given in the said Paper so we do also authorize you to do all things that may concern the further prosecution of all relating to this Affair Nevertheless it is our express will and pleasure That before any Sentence shall be pronounced against him at the Conclusion of the Process you send us a particular account of what he shall be found guilty of to the end that after our being fully informed thereof we may signifie our further pleasure in this matter For doing whereof c. But as notwithstanding the Councils demanding by their letter His Majestie 's allowance for prosecuting the Earl they before any return caused His Majestie 's Advocat exhibit ane indictment against him upon the points of slandering and depraving as hath been already remarked so after having receaved His Majestie 's answer the design growes and they thought fit to order a new indictment containing beside the former Points the crimes of treason and perjury which accordingly was exhibit and is here subjoyned the difference betwixt the tvvo indictments being only in the particulars above noted The Copy of the Indictment against the Earl of Argyle Archibald Earl of Argyle YOU are indicted and accused That albeit by the Common Law of all well-govern'd Nations and by the Municipal Law and Acts of Parliament of this Kingdom and particularly by the 21 and by the 43d Act Par. 2 James 1. and by the 83d Act Par. 6. James 5. and by the 34th Act Par. 8. James 6. and the 134th Act Par 8 James 6. and the 205th Act Par. 14. James 6. All leasing-makers and tellers of them are punishable with tinsel of Life and Goods like as by the 107th Act. Par. 7. James 1 it is statuted That no man interpret the Kings Statutes otherwise than the Statute bears and to the intent and effect that they were made for and as the makers of them understood and
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
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
evident from that learned Vindication published and spread abroad by an eminent Bishop and which was read in the face of the Privy-Council and does contain expressions of the same nature and to the same import contained in the pretended Explication libelled as the ground of this Indictment libelled against the Pannel And it is positively offered to be proven That these terms were given in and read and allowed to be Printed and without taking notice of the whole tenor of the said Vindication which the Lords of Justiciary are humbly desired to peruse and consider and compare the same with the Explication libelled the same acknowledgeth that Scruples had been raised and spread abroad against the Oath and also acknowledgeth that there were Expressions therein that were dark and obscure and likewise takes notice that the Confession ratified Par. 1 James 6. to which the Oath relates was hastily made and takes notice of that Authority that made it and acknowledges in plain terms that the Oath does not hinder any regular endeavour to regulate or better the Establisht Government but only prohibits irregular endeavours and attempts to invert the substance or body of the Government and does likewise explain the Act of Parliament anent His Majesties Supremacy that it does not reach the alteration of the external Government of the Church And the Pannel and his Proctors are far from insinuating in the least that there is any thing in the said Vindication but what is consistent with the exemplary Loyalty Piety and Learning of the Writer of the same And tho others perhaps may differ in their private opinion as to this interpretation of the Act of Parliament anent the Kings â—upremacy yet it were most absurd and irrational to pretend that whether the mistake were upon the interpretation of the Writer or the sense of others as to that point that such mistakes or misapprehensions upon either hand should import or infer against them the Crimes of Leasing-making or depraving His Majesties Laws For if such Foundations were laid Judges and Lawyers had a dangerous employment there being nothing more ordinarâ— than to fall into differences and mistakes of the sense and meaning of the Laws and Acts of Parliament But such Crimes cannot be inferred but with and under the qualifications above-mentioned of malicious and perverse designs joyned with licentious wicked and reproachful speeches spread abroad to move sedition and dislike of the Government And the said Laws were never otherwise interpreted nor extended in any case And therefore the Explication libelled neither as taken complexly nor in the several expressions thereof nor in the design of the ingiver of the same can in Law import against him all or any of the Crimes libelled In like manner the Pannel conjoins with the grounds above-mentioned the Proclamation issued forth by His Majesties privy-Council which acknowledges and proceeds upon a Narrative that scruples and jealousies were raised and spread abroad against the Act of Parliament enjoyning the Test. For clearing and satisfaction whereof the said Proclamation was issued forth and is since approved by His Sacred Majesty The Kings Advocate 's Argument and Plea against the Earl of Argyle HIS Majesties Advocate for the foundation of his Debate does represent That His Majesty to secure the Government from the Rebellious Principles of the last Age and the unjust Pretexts made use of in this from Popery and other Jealousies as also to secure the Protestant Religion and the Crown called a Parliament and that the great security resolved on by the Parliament was this excellent Test in which that the old jugling Principles of the Covenant might not be renewed wherein they still swore to serve the King in their own way the Parliament did positively ordain That this Oath should be taken in the plain genuine meaning or the words without any evasion whatsoever Notwithstanding whereof the Earl of Argyle by this Paper does invent a new way whereby no man is at all bound to it For how can any person be bound if every man will only obey it as far as he can and as far as he conceives it consistent with the Protestant Religion and with it self and reserve to himself notwithstanding thereof to make any alteration that he thinks consistent with his Loyalty And therefore His Majesties Advocate desires to know to what the Earl of Argyle or any man else can be bound by this Test what the Magistrate can expect or what way he can punish his Perjury For if he be bound no farther than he himself can obey or so far as this Oath is consistent with the Protestant Religion or it self quomodo constat to whom or what he is bound And who can determine that Or against what alteration is the Government secured since he is Judg of his own alteration So that that Oath that was to be taken without any evasion is evaded in every single word or Letter and the Government as insecure as before the Act was made because the taker is no farther bound than he pleases From which it cannot be denied but his Interpretation destroys not only this Act but all Government since it takes away the security of all Government and makes every mans Conscience under which Name there goes ordinarily in this Age Humour and Interest to be the rule of the takers obedience Nor can it be conceived to what purpole Laws but especially Oaths needed to be made if this were allowed or how this cannot fall under the 107th Act Par. 7. James 6. whereby it is statuted That no man interpret the Statutes otherwise than the maker understood For what can be more contrary to the taking of them in the makers sense than that every man should obey as far as he can and be allowed to take them in a general sense so far as they are consistent with themselves and the Protestant Religion without condescending wherein they do not agree with the Protestant Religion and that they are not bound not to make any alteration which they think good for the States For all these make the rule of obedience in the taker whereas the positiue Law makes it to be in the maker Oâ— how could they be punished for Perjury after this Oath For when he were quarrelled for making alterations against this Oath and so to be perjured he might easily ansvver That he took this Oath only in so far as it was consistent with the Protestant Religion and with a Salvo that he might make any alteration that he thought consistent with his Loyalty And as to these Points upon which he were to be quarrelled he might say he did not think them to be inconsistent with his Loyalty think we what we pleased and so needed not be perjured except he pleased to decide against himself For in these Generals he reserves to himself to be still Judg. And this were indeed a fine security for any Government And by the same rule that it looses this Oath it shews a way of loosing
all Oaths and Obedience And consequently strikes at the root of all Laws as well as this Whereas to shun all this not only this excellent Statute 107. has secured all the rest but this is common Reason And in the opinion of all Divines as well as Lawyers in all Nations Verba juramenti intelliguntur secundum ment em intentionem ejus cui fit juramentum Which is set down as the grand position by Sandersone whom they cite Pag. 137. and is founded upon that Mother-Law Leg. 10. cui interrogatus f. f. de interrogationibus in Iure faciendis and without which no man can have sense of Government in his head or practise it in any Nation Whereas on the other hand there is no danger to any tender Conscience since there was no force upon the Earl to take the Oath but he took it for his own advantage and might have abstained 2. It is inferred from the above-written matter of Fact That the Earl is clearly guilty of contravention of the 10. Act Parl. 10. James VI. Whereby the Liedges are commanded not to write any purpose of Reproach of His Majesties Government or misconstrue his Proceedings whereby any misliking may be raised betwixt his Highness his Nobility or his People And who can read this Paper without seeing the King and Parliament reproached openly in it For who can hear that the Oath is only taken as far as it is consistent with it self and the Protestant Religion but must necessarily conclude that in several things it is inconsistent with it self and the Protestant Religion For if it were not inconsistent with it self and the Protestant Religion why this Clause at all but it might have been simply taken For the only reason of hindering it to be taken simply was because of the inconsistency ergo there behoved necessarily to be an inconsistency And if there be any inconsistency with the Protestant Religion or any contradiction in the Oath it self can there be any thing a greater Reproach on the Parliament or a greater ground of mislike to the People And whereas it is pretended That all Laws and Subsumptions should be clear and these are only Inferences It is answered That there are some things which the Law can only forbid in general And there are many Inferences which are as strong and natural and reproach as soon or sooner than the plainest defamations in the world do For what is openly said of reproach to the King does not wound him so much as many seditious Insinuations have done in this Age and the last So that whatever was the Earl's design albeit it is always conceived to be unkind to the Act against which himself debated in Parliament yet certainly the Law in such cases is only to consider what essect this may have amongst the People And therefore the Acts of Parliament that were to guard against the misconstruing of His Majesties Government do not only speak of what was designed but where a disliking may be caused and so judgeth ab effectu And consequentially to the same emergent Reason it makes all things tending to the raising of dislike to be punishable by the Act 60. Parl. 6. Queen Mary and the 9. Act. Parl. 20. James VI. So that the Law designed to deter all men by these indefinite and comprehensive Expressions And both in this and all the Laws of Leasing-making the Iudges are to consider what falls under these general and comprehensive words Nor could the Law be more special here since the makers of Reproach and Slander are so various that they could not be bound up or exprest in any Law But as it evidently appears that no man can hear the words exprest if he believe this Paper but he must think the Parliament has made a very ridiculous Oath inconsistent with it self and the Protestant Religion the words allowing no other sense and having that natural tendency Even as if a man would say I love such a man only in so far as he is an honest man he behoved certainly to conclude that the man was not every way honest So if your Lordships will take measures by other Parliaments or your Predecessors ye will clearly see That they thought less than this a defaming of the Government and misconstruing His Majesties Proceedings For in Balmerino's Case the Justices find an humble Supplication made to the King himself to fall under these Acts now cited Albeit as that was a Supplication so it contained the greatest expressions of Loyalty and offers of Life and Fortune that could be exprest Yet because it insinuates darkly That the King in the preceeding Parliament had not favoured the Protestant Religion and they were sorry he should have taken Notes with his own hands of what they said which seems to be most innocent yet he was found guilty upon those same very Acts. And the Parliament 1661. found his Lordship himself guilty of Leasing making tho he had only written a Letter to a private Friend which requires no great care nor observation but this Paper which was to be a part of his own Oath does because after he had spoken of the Parliament in the first part of this Letter he thereafter added That the King would know their Tricks Which words might be much more applicable to the private Persons therein designed than that the words now insisted on can be capable of any such Interpretation And if either Interpretations upon pretext of exonering of Conscience or otherwise be allowed a man may easily defame as much as he pleases And have we not seen the King most defamed by Covenants entered into upon pretence to make him great and glorious By Remonstrances made to take away his Brother and best Friend upon pretence of preserving the Protestant Religion and His Sacred Person And did not all who rebelled against him in the last Age declare That they thought themselves bound in duty to obey him but still as far as that could consist with their respect to the Protestant Religion and the Laws and Liberties which made all the rest ineffectual And whereas it is pretended That by these words I take the same in as far as it is consistent with it self and the Protestant Religion nothing more is meant but that he takes it as a true Protestant His Majesties Advocate appeals to your Lordships and all the Hearers if upon hearing this Expression they should take it in this sense and not rather think that there is an inconsistency For if that were possible to be the sense what need he say at all as far as it is consistent with it self Nor had the other part as far as it is consistent with the Protestant Religion been necessary For it is either consistent with the Protestant Religion or otherwise they were Enemies to the Protestant Religion that made it Nor are any Lawyers or others in danger by pleading or writing For these are very different from and may be very easily pleaded without defaming a Law and an
Oath when they go to take it But if any Lawyer should say in pleading or writing That the Test was inconsistent or which is all one that it were not to be taken by any man but so far as it was consistent with it self and the Protestant Religion no doubt this would be a crime even in pleading tho pleading has a greater allowance than deliberate swearing has And as there is nothing wherein there is not some inconveniency so the inconveniency of defaming the Government is much greater than that of any private mans hazard who needs not err except he please Whereas it is pretended That before the Earl gave in this Explication there were other Explications spread abroad and Answers read to them in Council and that the Council it self gave an Explication It is answered That if this Paper be Leasing-making or misconstruing His Majesties Proceedings and Treasonable as is contended then a thousand of the like offences cannot excuse it And when the King accused Noblemen Ministers and others in the Year 1661. for going on in the Rebellions of that Age first with the Covenanters and then with the usurpers it was found no Defence That the Nation was over-grown with those Crimes and that they were thought to be duties in those days Yea this were to invite men to offend in multitudes And albeit sometimes these who follow the examples of multitudes may thereby pretend this as an excuse to many yet this was never a formal Defence against Guilt nor was ever the chief of the Offenders favourable on that Head And it is to be presumed That the Earl of Argyle would rather be followed by others than that he would follow any example But His Majesties Advocate does absolutely decline to debate a point that may defame a constant and standing Act of Parliament by leaving upon record a memory of its being opposed Nor were this Relevant except it could be said the Council had allowed such Explications which reflected upon the King and the Government For the writing an Answer is no allowance but a condemning Not can the Council allow any more than they can remit And tho it may justly be denied that the Council heard even the Earl's own Explanation yet the hearing or allowing him to sit is no Relevant Plea because they might very justly have taken a time to consider how far it was fit to accuse upon that Head And it is both just and fit for the Council to take time and by express Act of Parliament the negligence of the Kings Officers does not bind them For if this were allowed Leading men in the Council might commit what Crimes they pleased in the Council which certainly the King may quarrel many years after And tho all the Council had allowed him that day any one Officer of State might have quarrelled it the next day As to the Opinion of Bellarmine Sanderson and others it is ever contended that the Principles of the Covenant agree very well with those of the Iesuits and both dostill allow Equivocations and Evasions But no solid Orthodox Divine ever allowed That a man who was to swear without any Evasion should swear so as he is bound to nothing as it is contended the Earl is not for the Reasons represented And as they still recommend That when men are not cleare they might abstain as the Earl might have done in this Case so they still conclude That men should tell in clear terms what the sense is by which they are to be bound to the State Whereas the Earl here tels only in the general and in most ambiguous terms That he takes it as far as he can obey and as far as it is consistent with the Protestant Religion and that he takes it in his own sense and that he is not bound by it from making alterations but as far as he thinks it for the advantage of Church or State Which sense is a thousand times more doubtful than the Test and is in effect nothing but what the taker pleases himself As to the Treason founded on His Majesties Advocate founds it first upon the Fundamental and Common Laws of this and all Nations whereby it is Treason for any man to make any alteration he shall think for the advantage of Church or State Which he hopes is a Principle cannot be denied in the general And whereas it is pretended That this cannot be understood of mean alterations and of alterations to be made in a lawful way It is answered That as the thing it self is Treason so this Treason is not taken off by any of these qualifications because he declares he will wish and endeavour any alteration he thinks fit And any alteration comprehends all alterations that he thinks fit Nam propositio indefinita aequipollet universali And the word any is general in its own nature and is in plain terms a reserving to himself to make alterations both great and small And the restriction is not all alterations that the King shall think fit or are consistent with the Laws and Acts of Parliament but he is still to be Judge of this and his Loyalty is to be the Standard Nor did the Covenanters in the last Age nor do these who are daily executed decline that they are bound to obey the King simply but only that they are bound to obey him no otherwise than as far as his Commands are consistent with the Law of God of Nature and of this Kingdom and with the Covenant And their Treason lies in this And when it is asked them Who shall be judge in this they still make themselves Judges And the reason of all Treason being that the Government is not secure it is desired to be known what way the Government can be secured after this Paper since the Earl is still Judge how far he is obliged and what is his Loyalty And if this had been sufficient the Covenant had been a very excellent Paper for they are there bound to endeavour in their several stations to defend the Kings Person but when the King challenged them how they came to make War against him their great Refuge was That they were themselves still ludges as to that And for illustrating this Power the Lords of Justitiary are desired to consider quid Iuris if the Earl or any man else should have reserved to himself in this Oath a liberty to rise in Arms or to oppose the lineal Succession tho he had added in a lawful manner For the thing being in it self unlawful this is but shamm and Protestatio contraria facto And if these be unlawful notwithstanding of such additions so much more must this general reservation of making any alterations likewise be unlawful notwithstanding of these additions For he that reserves the general power of making any alteration does a fortiori reserve power to make any alteration tho never so fundamental For all particulars are included in the General and whatever may be said against the Particulars may much
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
the irrefragable opinion of all Divines of whatever perswasion is not only clear from the Authority above-mentioned even those who allow of reserved senses but more especially by the universal suffrage of all Protestant Divines who tho they do abominate all thoughts of Subterfuges or Evasions after taking of the Oath yet they do always allow and advise for the safety and security of a doubting and scrupulous Conscience that they should express and declare before the taking of the Oath the true sense and meaning wherein they have freedom to take it and for which Sandersone de Iuramento is cited Prelect 6. Sect. 10. pag. 75. where his words are Sane ut inter Iurandum omnia recte fiant expedit ut de verborum sensu inter omnes partes quarum interest liquido constet quod veteribus dictum liquido Iurare And an Oath being one of the highest Acts of Devotion containing Cultum Latriae there is nothing more consonant to the Nature of all Oaths and to that Candor Ingenuity and Christian simplicity which all Law and Religion requires in such cases The Kings Advocate 's Third Plea against the Earl of Argyle HIS Majesties Advocate conceives he has nothing to answer as to depraving Leasing-making and mis-interpreting c. save that this Oath was only designed to exclude Recusants and consequently the Pannel may thereby be debarred from his Offices but not made guilty of a Crime To which he Triplies 1. If ever the Earl had simply refused that had been true but that did not at all excuse from defaming the Law for a defamer is not punished for refusing but for defaming 2. If he had simply refused the Government had been in no more hazard but if men will both retain their Places and yet take the same in such words as secure not the Government it were strange to think that the design of the Law being to secure against mens possessing who will not obey that yet it should allow them possession who do not obey Nor is the Refuser here in a better Case than the Earl and others who offered to obey because it is the defaming the Law as ridiculous and inconsistent with that Protestant Religion and Leasing-making betwixt the King the Nobility and the People the misconstruing and misrepresenting as hath been formerly urged that puts the Earl in a worse Condition And all those Arguments might be as well urged for any who had uncontrovertedly contraveened these Acts as for the Pannel Whereas it is pretended That the King emitted a Proclamation to satisfie Dissenters it is answered That the Proclamation was designed for none who had been Members of Parliament and so should have known the sense but it was designed for meer ignorants not for such as had defamed the Law which is still here charged upon the Pannel As to the Article of Treason it is conceived That it is unanswerably founded upon the Common Law discharging all men to make alteration of the Government As to which there needs no express Statute that being the very essence of Government and needing no Laws Like as it falls positively under all the Laws that discharge the assuming the Royal or Legislative Power For to alter the Government is inseparably united to the Crown Like as the Subsumption is as clear the express words not bearing That the Earl reserves to himself a power to propose to His Majesty any alterations or to concur to serve His Majesty in making alterations but owning in most general and arbitrary terms to wish and endeavour any alteration he should think fit for the advantage of Church or State and not determining any thing that could bind him otherwise than according to his own pleasure For the word lawful is still subjected to himself and has subjoyned to it as he should think fit which governs the whole Proposition and in that sense and as the words are here set down the greatest Rebel in Scotland will subscribe that Explanation For there is no man but will restrict himself to a lawful obedience providing he be Judg of the lawfulness And seeing all Oaths proposed for the security of Government require a certain depending upon the Legislator and not upon the Taker it is impossible that that end could be attained by any qualification how special soever which is made to depend absolutely upon the Taker and not upon the Legislator And we have often seen how little security there is in those specious words the very Covenant it self having not only the very words above-repeated but attesting all the world to be witnesses to their Loyalty and Sincerity And as to the former Instances viz. rising in Arms or opposing the lawful Successor there is no Covenanter in Scotland but will say he will do neither but in a lawful way and in his station and in a way consistent with his Loyalty for a man were mad to say otherwise But yet when they come to explain this they will only do it as they think fit and will be Judges themselves and then will tell us That defensive Arms are lawful and that no Popish Successor should succeed nor no Successor unless he subscribe the Covenant And whereas it is pretended That no Clause in the Test does exclude a man from making alterations it is answered That the alterations which the Test allows are none at all but in subordination to Authority And as to the Two Points above-mentioned it excludes all alterations as to these Points And as to the making fundamental alterations this reservation allows to make any alteration and consequently fundamental alterations to preclude which Libertinisme this excellent Law was invented Whereas it is pretended That the Pannel designs not to add any thing as a part of the Law but as a part of his Oath it is duplied Since the Oath is a part of the Law whoever adds to the Oath adds to the Law Whereas it is pretended That the Crime of Perjury cannot be inferred here because all Divines allow That the Taker of an Oath is still allowed to declare in what sense he takes the Oath and that this is clear from Sandersone Pag. 175. It is triplied That where there are two dubious senses Lawyers and Divines allow That the Taker should clear himself which of the Two he should take which is very just because to which soever of the two he determines himself the Legislator in that Case is sure of him But here it is not pretended That there are two senses nor does the Pannel declare in which of the two he takes it or in what clear sense at all he takes it which is indeed liquido Iurare But here the Pannel neither condescends what particular clause of the Test is unclear nor after he has condescended upon the Articles does he condescend upon the sense but in general mysterious words where he can neither be followed nor found out He only takes it in so far as it is consistent with it self and the Protestant Religion
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
Assizers voted him guilty And so took it formally on their consciences that he had said nothing in the Council at his taking the Test Albeit all the Council knew the contrary by which they are clearly perjured nay such was the earnestness of some who thought it scarce possible to carry the treason upon words so safe and innocent to have the Earl found guilty of Perjury that it was particularly recommended to His Majesties Advocate to get him made guilty of that point to render him for ever uncapable of publik employment And the Clerk of the Assize was so concerned in it that He twice misreckoned the votes before he would yeeld that the Earl was assoyled or acquit of the Perjury And this among other things may serve to clear how that whole matter was influenced and mannaged For as the Earl cannot be charged with Perjury the second day because he swore none at all So as little the first day seeing whether he took the Test with an Explanation as certainly he did or simply without saying any thing It is equally apparent there was no Perjury in the case But it appears thir Assizers were of the Opinion that the Indictment or Libel alone as it was indeed the only evidence was a sufficient proof of the Earl his being guilty of Perjury And indeed for any other Rule or Reason that occurs They might as well have sound him Guilty of the Perjury as of the Treason But the Assizers that were Councellors being under a Particular check apprehending they might be found perjured themselves if they had not acknowledged the hearing of the words that all others present could have attested to have been audibly spoken and some of themselves had confessed to have heard before they knew the tenor of the Libel And the great crime of Treason being sufficient to do the Job it is like they judged it advisable to give this insignificant absolution from Perjury That their Verdict of Treason might have the greater colour and shew of candor and sincerity However it seems to be without measure hard to be prosecut with such a deadly Dilemma of either Treason or Perjury for you see in their account if the Earl swear with an Explanation his Life is knockt down by Treason and if without an Explanation his Honour which is dearer to him then his Life is run thorow with Perjury But to compleat a fancie beyond bedlam The Advocate urges and several Assizers agree at the same time to condemn the Earl as Perjured for not Explaining and for Treason for Explaining Quis talia fando In the next place the Earl's Papers contain some thoughts and endeavours to remove certain mistakes which he had good ground to beleeve did so much prompt and precipitat the Iudges to pronounce so important a sentence against him upon so weak and sandy foundations and which were indeed either meer fancies or so frivolous that though they were true they could never excuse them before men far less exoner them before God Almighty Where laying down a true ground that nunquam concluditur in criminalibus c. and withall representing how his Advocats were questioned in so extraordinary a manner for signing their opinion which you have above Num. 32. Where you may see how fair just and safe it was that now they daâ— no more plead for him He sayes He cannot be denyed to plead for himself as he best may The first ground of mistake then that he was to represent was that he knew it had been told them it was very much His Majesties Interest and necessary for the support of the Government to devest and render him uncapable of publik trust Which words had been oft said and said to himself to perswade him there was no further rigour intended But as he is very confident our gracious King will never upon any such pretence allow any innocent person to be condemned far less to be destroyed in a picque or frolik where his Majesty can reap no advantage So he is perswaded His Majesty hath no design to render him miserable far less to cut him off without a cause And therefor concluds it is only his misfortune in his present circumstances never having access to nor being heard by His Majesty nor the case perfectly understood by him that hath made His Majesty give so much as way to a process to be raised or led far less to a Sentence to be pronounced against him But in effect as this affair hath been managed all alongs and somany engaged in so extraordinary wayes to act and write against him first and last nothing should appear strange or surprising However as their own consciences and God Almighty knows how they have been brought to medle and act as they have done So one day or other the world may likewise know it A second ground of mistake which he say's may impose upon them is a confidence of his Majesties pardon intended for him a pretence only given out to render the condemnation more easy yet indeed least wished for by those who where readyest to spread the report and whereof the Earl had indeed more confidence then any that talked of it if His Majesty were left to himself and had the Case fully and truely represented to him but as His Majesty needs not this false occasion to make his clemency appear which is so well known over all his Dominions by far more true and genuine discoveries so it were the hight of injustice in their Lordships of the justitiary to proceed to sentence against him upon such apprehensions in case in their hearts they beleeve him innocent as he certainly knowes they doe besids they cannot but see their acting upon so unjust a ground will not only stain their names and memories but instead of alleviating rather aggravat their guilt both in their own consciences when they reflect on it in cold blood and in the sight of God Almighty And if His Majesty on importunity and a third application should give way to execution as he hath already given way first to the process and then to the sentence or if as some may design execution shall be adventured on without the formality of a new order as the process was at first commenced before His Majesties return and so is not impossible would not their Lordships be as guilty of his blood as if they had cut his throat And in effect these are the grounds and excuses pretended at this day in privat by such of his Judges for their procedour who are not yet come to have the Confidence at all Occasions to own directly what they have done A third reason why his Exculpation was not allowed he says might be because the sustaining of it might have brought other Explanations above board and discover both these who had made and those who had accepted them and perhaps not have left their own bench untoutched But as this Artifice will not keep up the Secret And as this way of shifting
is neither just nor equall so to all interested it is the meanest of Securities For His Majesties Advocate hath already told us that His Majesties Officers can never wrong him And although the Lords and He should conceal what others had done it might make themselves more guilty But not prove any Exoneration to those concerned without a down-right Remission Whereas it is manifest that if their Lordships had admitted the Earl's Exculpation upon the sure and evident grounds therein contained it would not only have answered the Justice of his case but vindicated all concerned And lastly he was to tell them that possibly they might be inclined to go on because they were already so far engaged as they knew not how to retreat with their honour but as there can be no true honour where there is manifest wrong and injustice so in the frail and fallible condition of human things there can be no delusion more dangerous and pernicious then this that unum scelus est alio scelere tegendum And here the Earl thought to lay before them very plainly and pertinently some remarkable and excellent Rules whereby L. Chief justice Hales a renouned judge of our nighbour nation tells he did govern himself in all criminal cases which adds the Earl if they took a due impression would certainly give them peace and joy when all the vain considerations that now amuse will avail them nothing The Rules are these I. Not to be rigid in matters purely consciencions where all the harm is diversity of judgment II. That Popular or Court applause or distaste have no influence on any thing is to be done in point of distribution of justice III. In a criminal case if it be a measuring cast then to incline to mercie and acquital IV. In criminal things that consist only of words where no more harm ensues moderation is then no injustice V. To abhor all privat solicitations of what kynd soever and by whomsoever VI. In maters depending not to be solicitous what men will say or think so long as the rule of justice is exactly kept VII And lastly never to ingage themselves in the begining of a cause but reserve themselves un-prejudged till the whole bussines be heard Then the Earl goes on and makes notes for additional defences reducible to these heads I. The absolute innocence of his Explication in its true and genuine meaning from all crime or offence far more from the horrible crimes libelled II. The impertinency and absurdity of His Majesties Advocat's arguings for inferring the crimes libelled from the Earl's words III. The reasonableness of the Exculpation IV. The Earl's Answers to the Advocat's groundlesse pretences for aggravating of his case As to the first the Earl waving what hath been said from common reason and humanity it self and from the whole tenour and circumstances of his life comes closs to the point by offering that just and genuine Explanation of his Explication which you have above Num. 21. I have delayed hitherto to take the Oath appointed by the Parliament to be taken betwixt and the first of January nixt But now being required near two moneths sooner to take it this day peremptorly or to refuse I have considered the Test and have seen several objections moved against it especially by many of the Orthodox clergie notwithstanding whereof I have endeavoured to satisfie my self with a just explication which I haâ—e 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 every thing as far as I can and that which clears me is that I am confident what ever 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 enjoyned is of no privat interpretation nor are the Kings Statuts to be Interpreted but as they bear and to the intent they are made therefore I think no man that is no privat Person can Explain it for another to amuse or trouble him with It may be mistaken glosses But every man as he is to take it so is to explain it For himself and to endeavour to understand iâ— notwithstanding all these exceptions in the Parliaments which is its true and genuine sense I take it therefore notwithstanding any scruple made by any As far as it is consistent with it self and the Protestant Religion which is wholly in the Parliaments sense and their true meaning Which being present I am sure was owned by all to be the securing of the Protestant Religion founded on the Word of God and contained in the Confession of Faith recorded I. 6. p. 1. c. 4. And not out of Scruple as if any thing in the Test did import the contrair But to clear my self from Cavils as if thereby I were bound up further then the true meaning of the Oath I doe declare that by that part of the Test that there lyes no Oblgation on me c. I mean not to bind up my self in my station and in a lawfull way still disclaiming all unlawfull endeavours To wish and endeavour any alteration I think According to my conscience to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty And by my Loyalty I understand no other thing then the words plainly bear to wit the duty and allegiance of all Loyal Subjects and this Explanation I understand as a part not of the Test or Act of Parliament but as a qualifying part of my Oath that I am to swear and with it I am willing to take the Test if your Royall Highness and your Lordships allow me Or otherwise in submission to Your Highness and the Councils pleasure I am content to be held as a refuser at present Which Explanation doth manifestly appear to be so just and true without violence or straining so clear full without the least impertinency so notour and obvious to common sense without any Commentary so Loyal and honest without ambiguity and lastly so far from all or any of the crimes libelled that it most evidently evinceth that the words thereby explained are altogether innocent And therefore it were lost time to use any arguments to enforce it Yet seing this is no trial of wit but to find out Common sense let us examine the Advocats fantastical paraphrase upon which he bottoms all the alledged crimes and see whether it agrees in one jot with the true and right meaning of the Earl's words and as you may gather from the indictment It is plainly thus I have Considered the Test which ought not to be done
Wonderfull reasoning All men know that Parliaments neither are nor pretend to be infallible And in our present case hundreds of Loyall subjects complain of contradictions and inconsistencies some way or other creept into this Oath And even the Council have yeelded so far to their Exceptions as to make an alteration upon it for satisfying those scruples far beyond any thing the Earl said and such an alteration as I beleeve few dreamed of and I am certain none durst have attempted without their express command and Authority and yet in the midst of all this the Farl's charitable and honest Opinion in behalf of the Parliaments good intentions must be perverted to a direct slander But the Earl sayes That every man must explain it for himself And so no doubt he must if the Test be either in it self or in his apprehension ambiguous otherwise how can he swear in Iudgment But this the Advocate will have to be a mans own sense and thereupon runs out That Hereby this Law and Oath and all Laws and Oaths are rendered useless and to no purpose And further the legislative Power is taken from the Imposer and setled in the Taker of the Oath Which certainly is a most treasonable presumption But first although there be no Reason to strain or mistake the Expression yet the Earl did not say That every man must take the Test in his own sense II. The Council hath now explained the Test for the clergy Might not then the Earl before their Explanation was devised say by the Councils allowance which he had That he might explain it for himself For if an ambiguous proposition the Test for example may be reconciled to it self two different wayes must not the Taker reconcile it as in his own sense he thinks it doth best agree with the genuine meaning of the words themselves and with the sense he conceaves was intended by the Parliament that formed it especially before the Parliament emitt their own Explanation And is it not juster to do it so then in any other mans sense which he thinks agreesless with the words abeit they may be thought by others to be reconciliable another way III. All this looks like designed mistakes and traps for should any man swear unless he understand And where an Oath is granted to be ambiguous can any man understand unless in want of the imposers help he explain it for himself IV. Was ever a man's Explaining an Oath for himself before taking it far less his bare saying that he must explain it before he take it alledged to be The overturning of all Laws and Oaths and the usurping of the Legislative power and making of new Laws certainly to offer to answer such things were to disparage common Reason And lastly this is strange Doctrine from the Advocate who himself in Council did allow not only the Earl his Explanation but that Explanation to the Clergie contrary as appeares by their Scruples to what they that took it thought either the Parliaments design or the plain words of the Test could bear and certainly different from the sense many had already taken it in and wherein others were commanded to take it And whatever the Advocate may cavil to insnare the Earl sure he will not allow that by his explaining this Oath he himself hath taken on him the Legislative power of the Parliament far less though he should acknowledge it will any beleeve that he hath or could thereby make all Laws or Oaths useless By this you see what strange stuffe he pleads which deserves no answer But sayes the Advocate the Earl affirms He takes the Test only as far as it consists with it self and with the Protestant Religion by which he most maliciously insinuats that it is inconsistent with both But first this only is not the Earl's but the Advocat's addition 2 ly I would soberly ask the Advocate or any man whether the Test as it includs the Confession in general and consequently all contained in it was not either really or at least might not have been apprehended to be inconsistent with it self Else what was the use or sense of the Councils explanation wherein it is declared that men doe not swear to every proposition of the Confession but only to the Protestant Religion therein contained And if it was either inconsistent or apprehended to be so how could the Earl or any honest man swear it in other terms with a safe Conscience But thirdly If Parliaments be fallible and this Oath as being ambiguous needed the Councils Explanation to clear it from inconsistencies must the Earl's words when he was to swear that he took it in so far as it was consistent be in this case understood as spoken maliciously and with a criminal intent when all Sense Reason and Religion made this caution his duty And if it be so criminal for one going to swear to suppose a possibility of inconsistencies in it Is it not manifestly more criminal in others plainly to confess and grant that there are inconsistencies in it after they have swallowed it in gross without any explanation whatsoever But sayes the Advocate The Earl hath invented a nevv vvay vvhereby no man is at all bound to the Test For hovv can any man be bound if he vvill obey only as far as he can And yet it will be hard even for the Advocate tho hesometimes attempts indeed more then he and all the World with him can do to tell how a man can obey farther and I am sure that in a matter of this kind viz. the free tender of an Oath all discreet men will Judge the Earl's offer both frank and obliging Then he asks To vvhat the Earl is bound if he be bound no further then he himself can obey manifest confusion and never either spoke by the Earl nor at all pertinent to his case besides he freely acknowledges that all men are bound to more then they can do or so far as the Test is consistent vvith it self and the Protestant Religion a strange doubting or yet I dare say imports as much as his Majesty expects of any and more then the Advocate will ever perform But sayes the Advocate vvho can determine to vvhat the Earl is bound Which sayes plainly that either the Test agrees with it self and the Protestant Religion in nothing or that the Protestant Religion is nothing Both which the Earl thinks far from truth But the Advocat's reasoning reflects far more on the Councils Explanation where it is plainly said That the Confession is not svvorn to in the Test but only the Protestant Religion contained in the Confession so that the Protestant Religion indefinitly is that which is said to be sworn to Now pray is it not much worse for a man to say that by taking the Test he svvears only to the Confession as it contains or agrees vvith the Protestant Religion which is in effect to set the Protestant Religion at variance with its own Confession and so to
endeavouring for such as are good and lawful and in a lawful way which no man can disown without denying common reason nor no sworn Councellour disclaime without manifest perjury But the Advocat's last conceit is That the Earl's restriction is not as the King shall think fitt or as is consistent with the Law but that himself is still to be judge of this and his Loyalty to be the standard But first The Earl's restriction is expresly according to Loyalty which in good sense is the same with according to Law and the very thing that the King is ever supposed to think Secondly as neither the Advocate nor any other hitherto have had reason to distinguish the exercise and actings of the Earl's Loyalty from those of His Majesties best Subjects so is it not a marvellous thing that the Advocate should prosesse to think for in reality he cannot think it the Earl's words His Loyalty which all men see to to be the same with his duty and sidelity or what else can bind him to his Prince capable of any quible farr more to be a ground of so horrid an accusation And whereas the Advocate sayes The Earl is still to be judge of this It is but an insipid calumny it being as plain as any thing can be that the Earl doth nowise design His thinking to be the rule of right and wrong but only mentions it as the necessary application of these excellent and unerring rules of Religion Law and Reason to which he plainly resers and subjects both his thinking and himself to be judged accordingly By which it is evident that the Earl's restriction is rather better and more dutyful then that which the Advocate seems to desiderat And if the Earl's restrictions had not been full eneugh it was the Advocat's part before administrating the Oath to have craved what more he thought necessary which the Earl in the case would not have refused But it is beleeved the Advocate can yet hardly propose restrictions more full and suitable to duty then the fore-mentioned of Religion Law and Reason which the Earl did of himself profer As for what His Majesties Advocate add's That under such professions and reserves the late Rebellions and disorders have all been carried on and fomented It is but meer vapour for no rebellion ever was or can be without a breach of one or other of the Earl's Qualifications which doth sufficiently vindicat that part of the Earl's Explanation The Advocate insists much that Any is equivalent to All and that All comprehends Every particular under it which he would have to be the deadly poyson in the Earl's words And yet the Earl may defy him and all his detracters to find out a case of the least undutifulness much less of rebellion that a man can be guilty of while he keeps within the excellent Rules and limitations wherewith his words are cautioned I could tell you further that so imaginary or rather extravagant and ridiculous is this pretended Treason that there is not a person in Scotland either of these who have refused or who by the Act are not called to take the Test that may not upon the same ground and words be impeach't viz. That they are not bound and so without doubt both may and do saâ— it by the Test in their station c. to wish and endeavour any alteration c. Nay I desire the Advocate to produce the man among those that have taken the Test that will affirm that by taking it he hath bound up himself never to wish or endeavour any alteration c. according to the Earl's Qualifications and I shall name hundreds to Whom his Highness as you have heard may be added that will say they are not bound up So that by this conclusion if it were yeelded all Scotland are equally guilty of treason the Advocate himself to say nothing of His Royal Highness not excepted Or if he still think he is I wish he would testify under his hand to the World that by his Oath he is bound up never to wish nor endeavour any alteration he thinks to the advantage of Church or State in a lavvful way nor in his station though neither repugnant to the Protestant Religion nor his Loyalty And if this he do he does as a man if not of sense at least of honour but if not I leave a blank for his Epithets But that you may see that this whole affair is a deep Mystery Pray notice what is objected against the last part of the Explanation This I understand as a part of my Oath Which sayes the Advocate Is a treasonable invasion upon the Royal Legislative power as if the Earl could make to himself an Act of Parliament since he who can make any part of an Act may make the whole And then say I farewell all Takers of the Test with an Explanation whether the Orthodox clergy or Earl Queensberry tho himself Justice generall who were allowed by the Council so to do seing that whether they hold their Explanation for a part of their Oath or not yet others may and in effect all men of sense doe understand it so and thus in the Advocat's Opinion they have treasonably invaded the Legislative povver and made an Act of Parliament to themselves Neither in that case can the Councils allovvance excuse them seing not only the Earl had it as well as they but even the Council it self cannot make an Act of Parliament either for themselves or others But Sir I protest I am both ashamed and wearied of this trifling And therefore to shut up this Head I shall only give a few remarks First you may see by the Acts of Parliament upon which the Advocate sounds his indictment that as to Leasing-making and depraving Laws all of them run in these plain and sensible terms The inventing of narrations the making and telling of lyes the uttering of wicked and untrue calumnies to the slander of King and Government the depraving of his Laws and misconstruing his proceedings to the engendering of discord moving and raising of hatred and dislike betwixt the King and his People And as to treason in these yet more positive terms That none impugne the dignity and authority of the three Estats or seek or procure the innovation or diminution thereof Which are things so palpbale and easily discerned and withall so infinitly remote both from the Earl's words and intentions or any tolerable construction can be put on either that I confess I never read this indictment but I was made to wonder that its forget and maker was not in looking on it deterred by the just apprehensions he might have not only to be sometime accused as a manifest depraver of all Law but to be for ever accounted a gross and most disingenuous perverter of common sense The Earl's words are sober respectful and duty fully spoken for the exoneration of his own Conscience without the least insinuation of either reflection or slander much less
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
for an honest expression of a commendable tenderness without any imputation of reproach against either King or Parliament How much more then is his part clear and innocent when albeit so many thought the contradictions to be undeniable yet such was his well tempered respect both to God and man to his own conscience and his Majesties Authority that before and not after the taking of this Oath to clear himself in the midst of the many exceptions and scruples raised of all ambiguities in swearing he first applies himself for a satisfying Explanation to the Parliament the prime imposers their true intentions and genuine meaning and then gathering it very rationally from the Oaths consistency with it self and with the Protestant Religion the Parliaments aim and scope and so asserting the King and Parliaments truth and honour he places the reliefe and quiet of his own Conscience in his taking the Test with this Explanation and in declaring its congruity with his Oath and duty of Allegiance The third Head of the Earl's additional defences is the further clearing and improving of his grounds of Exculpation above adduced and repelled Which were first that before the Earl did offer his Explanation to the Council a great many Papers were spread abroad by some of the Orthodox Clergy charging the Test with contradictions inconsistencies 2ly That there was a paper penned by a reverend Bishop and presented and read in Council and by them allowed to be printed which did contain the same and far more important things then any can be found in the Earl's Explanation And consequently far more obnoxious to all His Majesties Advocat's accusations 3ly That the Explanation upon which he was indicted was publikly by himself declared in Council and by the Council allowed so that the Oath was administrat to him and he received to sit in Council and vote by His Highness and the rest of the Members with and under this express qualification But to all urged for the Earl's Exculpation the Advocate makes one short answer viz. That if the Earl's paper did infer the crimes charged on it a thousand the like offences cannot excuse it And his Majesty is free to pursue the offenders when and in what Order he thinks fit which answer doth indeed leave the Council and all concerned in his Majesties mercy But that it doth no way satisfie the Earl's plea is manifest For the first ground of Exculpation viz. that before the Earl did offer his Explanation a great many papers writ by the Orthodox Clergy and others were abroad charging the Test with Contradictions c. was not alledged by the Earl merely to justify his Explanation by the multitude of the like papers and so to provide for an escape in the croud But the Earl having most rationally pleaded that his Explanation was given in by him after these many Scruples and Objections raised by others were abroad it was a good Plea from a most pregnant circumstance clearing both the design and sense of his words from the soul aspersions of reproaching and depraving thrown upon them Seing the words spoken by him under the motive of such a circumstance by all fair rules of interpretation insteed of being judged misconstrueing and depraving could only be understood as a seasonable asserting of the integrity of the Parliaments intentions and the uprightness of the Earl's Conscience which argument being in reason unanswerable it necessarly follows that the Advocat's return to the first ground was neither sufficient nor pertinent and that therefore the Exculpation was unjustly repelled But next the second ground of Exculpation is so far from being answered by the Advocate that it does not appear it was so much as understood For the Earl's argument being That words allowed approven by the Council can never fall under the accusation either of Leasing-making or slandering his Majeslies proceedings or depraving Laws and Acts of Parliament as is evident in it self and granted by the Advocate where he say's that an Explanation though reflecting on the King and Goverment which the Earl's was not yet if allowed by the Council is to be sustained But so it is that the Council hath allowed the words contained in this Explanation contraverted both in themselves and also in their equivalent and far more important expressions As for instance not only by accepting the Earl's Explanation as shall be cleared in the next place but by giving warrand for the publication of the Bishop of Edinburgh his Vindication wherein First for obviating the contradictions objected from the Confession of Faith he positively asserts that by the Test men do not swear to own every Article of that Confession and yet the Test binds expresly to beleeve that Confession to be founded on and agreable to the Word of God and never to consent to any alteration contrary thereto or inconsistent therewith So that he gives both the Test and the Parliament the Lye And then for removing another Scruple he tells us that By the Test men are not bound up from regular endeavours to rectify or better the established government both of Church and State which is clearly the same thing but not so well cautioned with that which in the Earl's case is made a ground of treason From which it unquestionably followes that the Earl's words having been allowed and approven by the Council could never in Law or reason be thereafter made a ground of accusation by any much less by themselves Now I desire to know where the Advocate in all his Plea doth so much as notice far less answer this defence or what his telling us A thousand offences of the like nature doth not excuse one either doth or can signify seeing this argument for the Farl insteed of pleading excuses doth justify the matter and for ever purge all shadow of offence or ground of quarrel which will be yet more apparent when you shall adde to this the third ground of the Earl's exculpation viz. That the explanation whereupon the Earl was indicted was publikly by himself declared in Council and by the Council allowed and accepted In so much as after he had given his Explanation as the sense wherein he was free to swear the Test the Oath was thereupon administrat to him and he received to sit and vote as a Councellour Whereby it is evident That by this allowance and acceptance the Earl's Explanation became the Councils as much as if after the Earl's pronouncing the words they had verbatim repeated them and told him they were satisfied he should swear the Test in these terms And whether this ought not to be a sufficient exoneration to the Earl let all men judge The Advocate makes a noise That in the case of an Oath required the taker ought to swear it in the sense of the imposer which none doubts and then runs out That The Earl in place of taking it in the imposers sense did unwarrantably intend a sense of his own to the eluding and frustrating of the
obligation of this and all other Oaths But all this is nothing to the purpose for waving that in the Earl's case it is most impertinent to talk of his obtruding of a sense to the eluding and frustrating of the obligation of his Oath seeing his Oath was not then given or at all in being it is expresly alledged by the Earl and notour that the Explanation tendered by him when called to take the Test was accepted by the Council and the Oath thereupon administrated and so the Earl freely joyns issue with the Advocate and acknowledging that the taker of the Oath ought to swear in the sense of the imposer subsumes in terminis that he himself did swear so and not otherwise in as much as he did swear in a sense accepted by the Council before he gave his Oath as is evident 1. By their commanding him to sit after he had sworn and 2. In that neither the Advocate nor any other had ever the confidence to quarrel his sitting as a breach of the Law which no doubt they had done if not convinced that by taking the Oath he had satisfied the Act of Parliament which things in true dealing and the construction of all honest men are the same as if the Oath had been required of him by the Council in the very sense and words of this Explanation Neither is it material whether the Explanation offered by the Earl doth deserve as certainly it doth not these many ill names which the Advocate would fix upon it because though it had been much worse then it is yet being offered to the Council and submitted to their judgment and they having accepted it the thing became quasi res judicata and cannot be retracted without subverting the surest Rules both of truth and government The Advocate indeed tels us 1 That the Council heard not the Earl's Explanation But I have already told you they did hear it and the Earl is still ready to prove it And suppose some say they did not hear it distinctly As what thing spoke in Council is distinctly heard and considered by all Yet it being certain that they did all approve it it is sufficient to the Earl And it is only their concern whether in approving what they did not hear they observed their Oath De fideli c. or not His Highness who the Earl was most concerned should hear did certainly hear as himself afterwards acknowledged 2. The Advocate sayes That the hearing and allowing the â—arl to sit is no relevant plea yea further though all the Council had allowed him that day yet any of his Majesties Officers might have quarrelled him the next day But first I would gladly know upon what head For if upon obtruding a sense of his own it is undenyable that whatever the sense was the obtruding of it was purged by the Councils acceptation and it became theirs and was no more his Butif the Advocate doth think that even the matter of the Explanation though allowed and accepted may still be quarrelled Then 1. I hope he will consider in what terms he doth it for if he charge it after it becomes the Councils as in truth he hath done already with the same liberty wherewith he treats it as the Earl's he runs fair to make himself the Arrantest defamer and slanderer of the King and Council that ever yet attempted it But 2ly It merits a worse name then I am free to give it to say That an Explanation allowed by the Council in the administrating of an Oath proper to be administrat by them doth not secure the taker as to that sense both in Law and Conscience Seeing in effect this quite takes away the best grounds of assurance among men and turns their greatest security to their greatest snare And 3ly If this be sound Doctrine it is worth the enquiring what security the Clergy to whom the Council as you have hear'd did indulge an explanation have thereby obtained For as to such Laiks as did only at their own hand take hold of and snatch at this indulgence not provided for them by the Councils Act it is clear their doom is dight It is not here debated how far that Explication of the Councils may satisfy and quiet Conscience let such concerned see to it Some please themselves with a general notion That if the sense given by the Administrator be sound then it is also safe whether it be agreeable to the plain and genuine meaning of the Oath or not nay whether it be agreeable to the sense of the first Imposers or not But others who consider more rendetly what it is to swear in Truth and in Iudgment think it rather a prophanation and a sinful preferring of the credit of men to the glory of the Almighty to offer to smooth an Oath by a disagreeable interpretation when in effect the Oath it self ought to be changed But the thing in question is about the security of life and fortune for seeing the Councils Explanation is at least to say no worse lyable enough to the calumnies of an inventive malice and the Advocate telleth us Though all the Council had allowed a man to swear with an Explanation yet any of His Majesties Officers may the next day quarrel him It is evident that this allowance can affoord him no security It is true the Advocate may alledge and possibly find a difference betwixt the Councils emitting and their accepting of an Explanation But as in truth there is none more then betwixt a Mandat and a Ratihabition so I am confident if ever the thing come to be questioned this pretence will evanish and come to nothing It is likewise to be remembred that when the Earl the next day after he took the Test was questioned for the Explanation he had made and required to exhibit a copie which was afterwards made the ground of his indictment so soon as he observed that some began to carp he refused to sign it demanded it back and would have destroyed it as you have heard which were all clear Acts of disowning and retracting for eviting offence and of themselves sufficient to have prevented any further enquiry there being nothing more just and humain then that words though at the first hearing offensive yet if instantly retracted when questioned should be past But this as well as other things must in the Earl's case be singular and whether he plead the Councils allowing or his own disowning as in effect he doth both it is equally to no purpose the thing determined must be accomplished You heard before how that a reverend Bishop and many of the Orthodox Clergy did take a far greater liberty of Explanation then the Earl pretended to you see also that first the Council allowes his words whereupon he rests And when he finds that they begin to challenge he is willing to disown And withall it is undeniable and acknowledged by the Council themselves that the Test as it stands in the Act of Parliament is
Confession was designedly left out of it But it being again debated that the bare naming of the Protestant Religion without condescending on a Standard for it was not sufficient the Confession of Faith was of new added And after the affirmative clause for owning it and adhering to it was insert upon a new motion the negative never to consent to any alteration contrary to or inconsistent with the said Protestant Religion and Confession of Faith was also subjoyned But not without a new debate and opposition made against the words And Confession of Faith by the Bishop of Edinburgh until at length he also yeelded All which it is hoped was done for some purpose And if at that time any had doubted of the thing he had certainly been judged most ridiculous For it was by that addition concluded by all that the Confession was to be sworn and further it appears plainly by the Bishop of Edinburgh his vindication that when he wrote it he believed the Confession was to be sworn to for he takes pains to justify it though calumniously enough alledging That it was hastily compiled in the short space of four dayes by some Barrons and Ministers in the infancy of our Reformation Where by the by you see that he makes no reckoning of what the Act of Parliament to which the Test refers expresly bears viz. That that second Ratification 1567. which we only have recorded was no less then seven years after this Confession was first exhibited and approven Anno 1560. But moreover he tells us That the Doctors of Aberdeen who refused the Covenant vvere yet vvilling not only to subscribe but to svvear this Confession of Faith Which again to answer the Bishops critik of four dayes was more then 70. years after it was universally received It 's true that when the Bishop finds himself straitned how to answer objections he is forced to make use of the new Gloss I shall not call it of Orelans whereby the Protestant Religion is made to be sworn to only as far as every man pleases to interpret as far as may be consistent with any new principles of state But the Parliament certainly I do not speak ironically did intend by this Test to swear assert the True Protestant Religion and the said Confession of Faith whatever may be now pretended The Earl could not also but very well remember what His Highness had said to himself about the inserting of the Confession and no doubt the Advocate if ingenuous knows all this For the thing was at that time mater of common talk and indeed till Papers objecting contradictions and inconsistencies betwixt the Confession and the rest of the Test began to be so numerous which was about the end of October that there was no possibility left to answer them but by alledging That in the Test men do not swear to every article and proposition of the Confession but only to the Protestant Religion therein contained this point was never doubted And whether this answer be true and a solid Vindication consonant to the words of the Test or a circulating evasion enervating all its force let others judge But the Advocate sayes When it was moved in Parliament to read the Confession it was waved Most true the reason given by the Bishops for it was that it was notour they knew it and it was already insert in the Acts of Parliament And the truth was the reading of it would have spent more time then was allowed on examining the whole Test. It was likewise late after a long Sederunt and it was resolved to have the Act passed that night so it went on But it was likewise moved to read the Covenant seing it was to be disclaimed and this was flatly refused And will the Advocate thence infer That by the Test the Covenant is not abjured albeit it be most certain that many in the Parliament at that time had never read the one or the other But to follow the Advocat's excursions and answer them more particularly The motion for reading the Confession being made on this very occasion because it was to be insert in the Test and sworn to concluds enough against him For no body can be so effronted as to say it was used in Parliament as an argument not to read it because it was not to be sworn to but though it cost a debate it was plainly agreed to be sworn to and therefore insert 2ly Can any man doubt the Confession was to be sworn to when it is notour that severalls who were members of Parliament and by reason of offices they enjoyed were called to swear the Test pretending with reason tenderness of an Oath did before swearing make a fashion at least of reading and studying the Confession to satisfy themselves how far they might swear it And that this was done by an hundred I can attest themselves Lastly it is certain that vvhen in the end of October the Bishop of Edenburgh did quarrel S r George Lockhart for causing the Confession to be insert in the Test he answered that without it a Turk might sign the Test it vvas not then pretended by the Bishop that the Confession vvas not to be svvorn to and therefore he at that time had no reply But this is a debate I confess not altogether necessary for my present task only thereby you may see ground enough for the Earl to believe the Confession vvas svvorn to And all that did svvear before the Councils Explanation having svvorn in that sense and for ought I knovv all except the Clergy being by the Councils Act still bound to do so It vvas not strange the Earl might be of this Opinion And seeing that many of the Contradictions vvere alledged to arise hence and the Earl being a dissenter it vvas yet less strange that the Earl did scruple nor is it unreasonable that his modest Explanation should have a most benign acceptance The second pretence of aggravation is That his Majesty did not only bestow on the Earl his Lands and Iurisdictions fallen into his Majesties hands by the forfaulture of his Father but also pardon him the crimes of Leasing-making and Misconstruing whereof he was found guilty by the Parliament 1662. And raised him to the title and dignity of an Earl and to be a member of all his Majesties Iudicatories All vvhich the Earl as he hath ever doth still most thankfully acknovvledge But seeing the Advocate hath no vvarrand to upbraid him vvith his Majesties favours and that these things are novv remembred vvith a manifest design to raise dust and blind strangers and to add a very ill thing Ingratitude to the heap of groundless calumnies cast upon him I must crave leave to ansvver a little more particularly and refute this new tout as the scots proverb is in an old horn This old Leasing-making is then novv brought in seriously after it hath been treated in ridicule for 18 years by the very Actors vvho did never pretend
to defend it in cold blood And vvere it not to digress too much I could name the persons and make them if capable think shame of their falshood and prevarications in that point and of their abusing His Majestie and prostrating Justice but I forbear The Advocate in his book of pleadings makes this a Stretch and sayes His Majesty rescinded it And His Majesty himself hath several times exprest his sense of the stretches made by some against the Earl at that time It is well known the Family of Argyle is both ancient and honourable and hath been Loyal and serviceable to the Crown for several hundreds of years but they must now be destroyed for having done and being able as they say to doe too much which others neither can nor will do Neither is the Advocate ignorant that the only failing that Family hath been charged with in all that long tract of time was a complyance of the late Marqueis of Argyle the Earl's Father in the time of the late Usurpation by sitting in the then Parliament of England some years after all the standing forces of the Kingdom were broken His Majesty beyond sea the whole Countrey overrun the Usurpers universally acknowledged and neither probability of resistance nor possibility of shelter left to any that were most willing to serve His Majesty as the Advocate himself hath published in his printed pleadings in which he likewise layes out the special and extraordinary Circumstances whereby the Marqueis was necessitate to do what he did And the compliance charged on him was so epidemik that all others were pardoned for the same except he alone though none had such favourable Arguments to plead and though he pleaded the same indemnity that saved others And seeing he submitted and delivered up himself and lost his life and seeing at the same time of the compliance that he suffered for the Earl his son was actually serving and suffering for his Majesty as you find in the former part of this Letter the Earl's restitution was no less then He and his Family might well expect of his Majesties Goodness and Iustice. It is true the Earl was again accused and condemned which may appear indeed strange to such as know not all particulars upon the same Old Acts of Leasing-making and with as little ground if possible as now and was pardoned by his Majestie for which he hath often and doth alwayes acknowledge that he owes to his Majesty both his Life and Fortune But upon this occasion and being baited as he is he hopes his Majesty will not take it ill that he say That his Majesties mercy was in this case determined by Justice And for proof that his Majesty did then know him to be innocent did not his Majesty then say It was impossible to take a mans life upon so smal an account Tho nevertheless it had been done if his Majesty had not interposed and pardoned him Did not the Chancellour Clarendoun who was Patron to the most considerable of the Earl's pursuers hearing of his condemnation Blesse God he lived not in a Countrey where there were such Laws He should have said such Iudges And I believe many more will say the same now Did it not plainly appear at that time that his principal pursuers were very bitter malicious and unjust to him For the Earl had not only served his Majesty in that troublesome and hazardous appearance in the Hills but he had been particularly useful to Earl Midletoun then his Majesties Lieutenent General and had stood by him when these deserted him whom notwithstanding he took afterwards by the hand when he was his Majesties Commissioner in the Year 1661 then designed new Interests and new alliances whereof some did hold and some never held And then indeed it was that he and others thought it proper for them to destroy the Family of Argyle to make their own Fortunes But it pleased God and his Majesty to dispose otherwise Then it was that the Earl was so hotly pursued for his life having at that time no Fortune all being in his Majesties hands Then was the accusation of Treason likewise urged by the samepersons and must have carried but it was not found necessary Leasing-making being sufficient to take his life and as it falls out when any game is started and the hounds in chase all the little currs run alongs So the Earl wanted not then many pursuers that are now scarce to be heard of And further some of the parties themselves confessed the particulars to the Earl afterwards vvho yet novv return to Act their former parts and that they had then laid dovvn a resolution to intrap him per fas aut nefas but notvvithstanding all this ill humour and violence all the ground they could get for a quarrell in tvvo Years time vvas one single letter among many they intercepted the occasion and import vvhereof vvas as follows About a tvvelve-month after the death of the late Marqueis of Argyle The Earl his son being by the loss of his estate and burden of his debts brought into straits a friend from Edenburgh wrote to him then at London to do what he could for himself at Court and the sooner the better For he needed neither expect favour nor Justice from some in Scotland and if matters were delayed his Fathers whole estate would be begg'd away in parcels His Friend likewise complained that the Earl did not write to inform his friends in Scotland and on this he insisted severall post-dayes which at last drew an answer from the Earl that he had been to wait upon his Majesty and had found him both just and kind to him and doubted not the effects of his Royalfavour that he was sensible of his loss by delay yet must proceed discreetly and not press to give His Majesty trouble but must take His Majesties method and wait his time That he judged much of what his Friend told him was true but he must have patience It was his misfortune that some took pains to make His Majesty believe that the Parliament was his Enemy and the Parliament to believe the King was his Enemy and by such informations he was like to be a sufferer but he hoped in God all should be well This blast must blow out and will blow over The King will see their tricks And upon this letter specially those last words the Earl was accused of Leasing-making betwixt King and Parliament and that he expected changes and so had a great deal of the same stuff laid to his charge as now you have heard And if the now Register will produce the Earl's principal Letter and the Paper the Earl gave in to the Parliament these two would clear all the case then and now as yow may see Mutatis Mutandis being much the same and some of the same tooles used But to go on The Earl's words in that Letter being clear and plain viz. That he complained of others that reported lies to King and
Parliament but did himself report none to either He acknowledged the Letter which could never have been proven to be his and as soon as he heard that it was intercepted did render himself to his Majesty before he was called for But which very much troubled him had not access Yet his Majesty was so gracious that in stead of sending him prisoner to Scotland with a guard as was much pressed he allowed him to go down on a verbal bale And his Majesty was pleased to say That he saw nothing in the Earl's Letter against his Majesty or the Parliament but believed the Earl did design to reflect on the Earl of Midletoun The Earl came to Edinburgh a fourthnight before the day appointed by his Majesty and thought to have had the liberty of the city till that day should come but was sent to the Castle the next day after his arrival Upon which he advertised his Majesty of his condition who would hardly believe they would take his life till it was told plainly it was designed and if he died it lay at his Majesties door upon which his Majesty was graciously pleased to send immediatly an order to the Earl of Midletoun not to proceed to Execution against him Yet the Sentence of death was pronounced and the day of Execution remitted by the Parliament to the Earl of Midletoun Which he accepted of albeit he had no particular instruction for it from his Majesty which before a year went about Earl Midletoun found could not be justified by him and some of the Earl's chief accusers were declared by his Majesty to be themselves Leasing-makers And then the Earl by his Majesties favour and goodness was restored to a part of his Predecessors estate and titles which he took as thankfully as if a new estate and new and greater honours had been conferred upon him And though His Majesty was pleased at the granting of these titles to say he could help them when he pleased yet his Majesty knows that the Earl never troubled him about any such matter nor solicitedh im now these eighteen years for any Title Office or Imployment though he confesses he had of all sorts nor hath he been burthensome to his Majesties Exchequer 500 l yearly for 4 or 5 years that the Earl served in the Treasury being all that ever he touched of his Majesties money albeit few attended more and none so much that lived at his distance He was also twice at London to kiss his Majesties hands but still on his own charges Which things are not said to lessen his Majesties bounty and goodness whereof the Earl still retaines all just tender and dutifull impressions but to answer the Advocate and to teach others to hold their peace that cannot say so much His life is known to have been true honest and of a peece and all alongs he hath walked with that straightness that he can compare his integrity with all that now attacque him By all which it is apparent that what the Advocate here pretends for an aggravation may well be accounted a second part of the Earl's persecutions but cannot in the least impair either his innocence or his honour Seeing therefore the ground of the Earl's present accusation with all he either designed said or did in this matter was only that when called nay required to take the Test and after leave first obtained from his Highness and Council he did in their presence before the giving of his Oath declare and propose to them the sense wherein he was willing to take it That this his sense neither containes nor insinuats the least slander reproach or reflection either upon the King the Parliament or any Person whatsomever but on the contrair is in effect ten fold more agreeable to the words of the Test and meaning of the Parliament that framed it then the Explanation emitted by the Council and was also most certainly the first day by them accepted and when the next day challenged by him offered to be retracted refused to be signed That the whole Indictment more especially that part of it about the Treason is a meer Rapsody of the most irrational absurd and pernicious consequences that ever the sun beheld not only forcing the Common rules of speech charity and humanity but ranversing all the Topiks of Law Reason and Religion and threatning no less in the Earl's person then the ruine of every mans fortune life and honour That the Earl's Defences and grounds of Exculpation were most pregnant and unanswerable and either in themselves notour or offered to be instantly verified And lastly That the aggravations pretended against him do either directly make for him or most evidently discover the restless malice of some of his implacable enemies Shall our Gracious King who not only clearly understands right and hates oppression but also to all his other excellent qualities hath by his Gentleness and Clemency even towards his Enemie added that great Character of Goodness upon vain and false insinuat ions and unreasonable and violent stretches not only take away the Life of an innocent person but of one who himself and his family be it said without disparagment have for a longer time and more faithfully and signally served His Majesty and the Croun then any person or family of his degree and quality of all his Persecuters can pretend to Shall his numerous family hopeful children his friends and creditors all be destroyed Shall both former services be forgot innocence oppressed and all rules of justice and Laws of society and humanity for his sake overturned Shall not only the Earl be cut off and his noble and ancient Family extinguished but his Blood and Memory tainted with as black and horrible a stain as if he had conspired with Jacques Clement Ravillack The gun-pouder Miscreants The bloody Irish Rebells and all the other most wicked hainous traitours of that gang And all this for a meer imaginary crime whereof it is most certain that no man living hath or can have the least reall conviction and upon such frivolous allegations as all men see to be at the top meer moon shine and at the bottom villanie unmixed After clearing these things the Earl it seems intended to have addressed himself to his Majesties Advocate in particular and to have told him that he had begun very timously in Parliament to fall first on his heritable jurisdictions and then upon his Estate and that now he was fallen upon his life and honour whereby it was easy to divine that more was intended from the beginning then the simple taking away of his Offices seeing that some of them on his refusing the Test were taken away by the certification of the Act of Parliament and that those that were heritable he offered in Parliament to present and surrender to his Majesty on his knee if his Majesty after hearing him should think it fit only he was not willing to have them torn from him as hath been said and if
Sentence is constantly required which induced some to think that at least the Earl should have been lawfully cited to hear Sentence before it could be pronounced But it is like this course as confessing a difficulty and occasioning too long a delay was therefore not made use of However upon the whole it was the General Opinion that seeing the denouncing the Earl Fugitive would have wrought much more in Law then all that was commonly said at first to be designed against him And that his Case did appear every way so favourable that impartial men still wondered how it came to be at all questioned It had been better to have sisted the process with his escape and taken the ordinary course of Law without making any more stretches But as I have told you when the Fryday came the Lords of Iustitiary without any respect or answer given to the Petition above-mentioned given in by the Countess of Argyle to the Court for a stop pronounced Sentence first in the Court and then caused publish the same with all solemnity at the Mercat Cross of Edinburgh FOr as much as it is found by an Assize That Archibald Earl of Argyle is guilty culpable of the crimes of Treason Leasing-making Leasing-â—elling for which he was detained within the castle of Edinburgh out of which he â—es now since the said Verdict made his Escape Therefore the Lords Commissioners of Justitiarâ— decern and adjudge the said Archibald Earl of Argyle to be execute to the death demained as a traitour and to underly the paines of Treason other punishments appointed by the lawes of this Kingdom when he shall be apprehended at such a time and place and in such manner as his Majesty in his Royall pleasure shall think fit to declare and appoint And his Name Memory and Honours to be extinct And his Armes to be riven forth and delete out of the Books of Armes swa that his Posterity may never have place nor be able hereafter to bruick or joyse any Honour Offices Titles or Dignities within this Realme in time coming and to have for faulted â—mitted and tint all and sundry his Lands Tenements Annua-rents Offices Titles Dignities Tacks Steedings Rowmes Possessiones Goods and Geere what suâ—ever pertaining to him to our Soveraign Lord to remain perpetually with his Highness in property Which was pronounced for Doom 23 December 1681. After the reading and publishing whereof The Earl's Coat of Armes by order of the Court was also torn and ranversed both in the Court and at the Mercat Cross Albeit some thought that this was rather a part of the Execution which his Majesties Letter discharges then a necessary Solemnity in the Publication and the Advocate himself sayes p 61. of his printed Criminals That it should only be practised in the crime of Perduellion but not in other Treasons The Reasons and Motives of the Earl's escape with the Conclusion of the whole Narrative THE Earl's escape was at first a great surprise both to his friends and unfriends for as it is known that his Process in the beginning did appear to the less concerned more like a piece of pageantry then any reality and even by the more concerned was accounted but a politik design to take away his Offices and lesâ—en his Power and Interest So neither did any of his Friends fear any greater hazard noâ— did most of his unfriends imagine them to be more apprehensive Whereby it fell out that upon report of his escape many and some of his well-wishers thought he had too lightly abandoned a fair Estate and the probable expectation he might have had of His Majesties favour As also some that were judged his greatest adversaries did appear very angry as if the Earl had taken that course on purpose to load them with the odium of a design against his life And truly I am apt to think it was not only hard and uneasie for others to believe that a Person of the Earl's quality and character should upon so slendeâ— a pretence be destroyed both as to life and fortune but also that he himself was slow enough to receive the impressions necessary to ripen his resolution and that if a few Accidents as he sayes himself happening a little before his escape had not as it were opened his eyes and brought back and presented to him several things past in a new light and so made all to operate to his final determination he had stayed it out to the last Which that you may the better understand you may here consider the several particulars that together with what he himself hath since told some frineds apparently occurred to him in these his second thoughts in their following order And first you have heard in the beginning of this Narrative what was the first occasion of the Earl his declining in his Highness favour You may also remember that his Majesties Advocate takes notice that he debated against the Act enjoyning the Test in the Parliament And as I have told you he was indeed the Person that spoke against excepting the King's Brothers and Sons from the Oath then intended for securing the Protestant Religion and the Subjects Loyalty not thinking it fit to complement with a Priviledge where all possible caution appears rather to be necessary And this a reverend Bishop told the Earl afterwards had downright fired the kilâ— What thereafter happened in Parliament and how the Earl was alwise ready to have laid all his Offices at his Majesties feet And how he was content in Council to be held a Refuser of the Test and thereby incurr an intire deprivation of all publik Trust is above fully declared and only here remembred to show what Reason the Earl had from his first coming to Edinburgh in the end of October to think that something else was intended against him then the simple devesting him of his Employments and Jurisdictions And yet such was his Assurance of his Innocence that when ordered by the Council to enter his Person in Prison under the pain of Treason he entered freely in an Hakney coach without either hesitation or noise as you have heard 2ly The same day of the Earl's commitment the Council met and wrote as I have told you their Letter to His Majesty above set down Num. 22. Wherein they expresly charge him with Reproaching and Depraving But yet neither with Perjury noâ— Treason and a few dayes after the Earl wrote a Letter to his Highness Wherein he did endeavour to remove his offence in termes that it was said at first had given satisfaction But yet the only return the Earl had was a criminal Summonds containing an Indictment and that before any answer was come from hiâ— Majesty And then so soon as his Majesties answer came there was a new Summonds sent him with a new Indictment adding the crimes of Treason and â—erjury to these of Reproaching and Depraving which were in the first Libel as you have heard above whereby you may perceive how
early the design against the Earl began to grow and how easily it took encrease from the least encouragment 3ly When the Earl petitioned the Council for Advocates to plead for him Albeit he petitioned twice and upon clear Acts of Parliament yet he had no beâ—ter answer then what you have above set down And when the Earl's Petition naming Sir George Lockhart as his ordinary Advocate was read in Council his Highness openly threatned that in case Sir George should undertake for the Earl he should never more plead for the King nor Him But the Earl taking Instruments upon Sir George his refusal and giving out that he would not answer a word at the Bar seeing â—he benefite of Lawyers according to Law was denyed him Sir George and other lawyers were allowed to assist him but still with a Grudge Likeas afterwards they were quâ—stioned and conveened before the Council for having at the Earl's desire signed their positive Opinion of the case At which time it was also said in Council by His Highness That their fault was greater then the Earl's However we see that as he was the occasion of the anger so he hath only found the smart of it 4ly The whole Process with the Judgment of the Lords of Iustitiary anâ— Verdict of the Assize whereby the Earl was found guilty as you have seen notwithstanding of what hath so plainly appeared and was so strongly pleaâ—ed in his behalf of Leasing-making Depraving and Treason Is of it self a clear Demonstration that either the highest punishment was intended for so high a guilt or that at least it was no smal Humilation that some designed for him It being equally against reason and prudence setting aside the Interest of Justice to strain things of this nature beyond the ends truly purposed and which in effect are only the more to be suspected the more they are concealed 5ly The Process being carried on to the Verdict of the Assize and the Council being tyed up by His Majesties Letter before pronouncing Sentence to send a particular account to his Majesty of what the Earl should be found guilty of for His Majesties full information The Council doth indeed dispatch away a new Letter immediatly for His Majesties leave to proceed but in stead of that particular account required by his Majesty for his full information all the information was eveâ— heard of to be sent by the Council was what is contained in the body of the Letter wherein they briefly buâ— positively affirm That after full debate and clear probation he was found guilty of Treason Which all men must say was far better contrived to prompt his Majesty to a speedy allowance then to give him that particular information of the case which His Majesties Letter expresly requires and the Earl expected should have been performed But further the Council was commanded to sign this Letter not simply in the ordinary form but by a special Command laid on every Member and the Clerk appointed to go about and get their Subscriptions telling them they were Commanded and complaining to the Duke when any scrupled to do it The strictness of which orders is apparent enough from the very Subscriptions where you may not only read the names of Bishops subscribing in causa sanguinis but some of the Earl's Friends and Relations who wanted courage to refuse And in effect how many of all the Members did it willingly is hard to say seeing generally they excuse the deed in private 6ly About a week or two before the Trial the Earl had notice that at a closs Iuncto where were Persons of the greatest eminency it was remembered by one present how that Anno 1663. The Earl had been pardoned by his Majestie after he had been found guilty by the Earl of Middletoun and that Parliament And that then it was looked on as an error in the Earl of Middletoun that he had not proceeded to Execution albeit his Majesty had given command to the contrary because as it was said it would have been but the same thing to him But now adds this Kind Remembrancer The case is much more easie Now His Royal Highness is on the throne It might have cost Earl Middletoun a frown but now it can signify nothing but will rather be commended in His Royal Highness as acting freely like himself The stop of the sentence looks like a distrust but this will vindicate all and secure all And as the first part of the Story the Earl remembered well he had hear'd it from the same Person An 1664 had reported it to the Duke of Lawderdale a little after So the second part being of a very wellknown dialect could not but give the Earl the deeper impressions It was further told the Earl at the same time when the Councils Letter to obtain his Majesties assent to the pronouncing Sentence leaving all to discretion was sent that it was thought fit that nothing should appear but fair weather till the very close Yet was the Earl so confident of his own innocence and His Majesties Justice that he did not doubt but his Majesty seeing the Process would at least put a stop to the Sentence But after the Councils Letter was gone in such Terms as you have seen to seek Liberty from his Majesty to proceed to Sentence without either double or abbreviat of the Process sent with it and no doubt smooth insinuations made with it that all designed was to humble the Earl or clip his wings And that this Letter was hasted away by a fleeing packet to prevent the Earl's Application which it could not but do and so could not but have weight and prevail with his Majesty to whom the Earl's Petition as coming too late was indeed never presented Then and not till then The Earl began to have new thoughts 7ly The Earl's Trial having been upon moonday and twesday the 12th and 13th of December upon the 14th the Councils Letter was dispatched and upon the 15th The Earl intreated by a â—riend for liberty to speak to His Royal Highness whose answer was That it was not ordinary to speak to criminals except with Rogues on some plot where discoveries might be expected Yet his Highness said he would advise upon it But upon fryday the 16. he did refuse it Yet the Earl did renew his suit and urged that he had sent a Petition to his Majesty which was the first he had sent upon that occsiaon that before the return should come he was desirous to have his Highness answer that he might owe some part of the favour he expected to his Highness But on Moonday morning the 19. the Earl was told he was not like to have any access and in the afternoon he heard that the return of the Councils Express was looked for on thursday the 22. being the Council day And further That the Justice court which according to its custom had sat the same Moonday and in course should have adjourned till Moonday the 26 of
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
or culpam as of old but durante beneplacito And 4ly Are not such as were most forward and active in the Earl's comdemnation proportionally rewarded And as for the Earl's Jurors or Assizers you have heard a full account of them in the Narrative 2ly Our Author tells us That the King and his Ministers were under no tentation against the Earl That there was no design against his life That His Royal Highness albeit informed of an escape intended yet gave express order not to keep him strictly even after he was found guilty As also His Highness ordered that Advocates should be prest to appear for him And in fine that the Earl was very discreetly and respectfully used And. 1. As to His Majesty He is indeed most freely assoiled of all either inclination or tentation in this matter except that of importunity But 2ly For His Ministers the contrivers and actors their tentations may be guessed at by what is said in the Narrative And if they also had none it only sayes that they run without driving and are the lesse excusable 3ly How forward His Highness and the Council were to press Advocates in the Earl's cause and to grant his Petitions though founded on clear Acts of Parliament how false it is that his Royal Highness had any information of the Earl's intention to escape and notwithstanding ordered that he should not be strictly keept and whether or not there was a design to take the Earl's life you have already and I hope plainly and satisfyingly seen in the Narrative But pray remark the solly of this self-condemned reasoning For. 1. If the Earl was truly guilty of these worst of crimes Leasing-making Depraving and Treason why should he not have died And if he was not guilty what wickedness was it to give Sentence against both his Life and Fortune and since by disposing on his whole estate to execut it as far as possible And 2ly Is it not a pleasant conceit to imprison arraign for Treason and find guilty and crave leave to Sentence a Person of the Earl's quality And then to take away all his Estate and yet to tell the world there was no design against his Life Solomon sayes As a Mad man who casteth firebrands arrows and death so is the man that deceiveth much more condemneth his nighbour and saith am not I in sport And Machiavel whose Politiks may be with some are in more request then Solomons Proverbs taxeth it as no less impolitik to take away a man's Estate and yet spare his Life And yet notwithstanding ouâ— wiser and more politik Author will have us to believe neither But 4ly Yet the Earl was very respectfully used And this must go far from such hands And was he not indeed so when he was 1. Summarly imprisoned without Bale or Mainprise 2ly Arraigned before the Justice-Court and not reserved to the Parliament as is usual for Persons of his rank especially the Parliament being then current and its next Session near approaching 3ly Refused access to or opportunity to speak with His Royal Highness though it was often and much desired And 4â—ly When by the Sentence his Blood was tainted his Posterity disabled and his Escucheon and Arms thereafter torn and ranversed as if he had been the worst of traitors I grant it was observed that the debate in the Process was managed on both hands with a more then ordinary coolness but as something must be imputed on the one part to His Majesties Advocat's secret conviction of these strange impertinencies whereunto the discharge of his Office obliged him and on the other hand to the Earl's Advocates their perswasion that his words were so innocent that hardly any thing could be said that was not equally criminal so it is certain that the main cause was that both the one and the other knew that the design was laid and the issue inevitable Thirdly This Vindicator sayes That the Earl's Jurisdictions and Estate could be no tentation for the late Advocate had given such reasons against his Right to these Iurisdictions and Superiorities as could not be answered and that the King got nothing for his Royal Highness procured more of it to his children then belonged to the Family debts being payed And the remainder was given among the Creditors and the tithes returned to the Church But. I. Our Author goes on still to disown tentations which can signify nothing save to confirm more and more that the Earl was overthrown and ruined by pure Malâ—ce For if there was no tentation either against his Person or Estate and yet notwithstanding of his innocence which all men see the former be subjected to a Sentence of death and the later quite taken from him must not this strange severity proceed from a very extraordinary good Nature 2ly Our Author disowns any design against the Earl's life But affirms That there are reasons unanswerable against his Iurisdictions and Estate And yet instead of making use of these reasons civily to take away his Jurisdictions and Estate his life is criminally and principally persued How are these things consistent But that which is crooked cannot be made straight 3ly It is false that ever the late Advocate or any other represented any reasons far less unanswerable ones against the Earl's Rights either to his Estate or Superiorities And the whole truth in this matter is that he did indeed offer some reasons to the Exchequer against the Earl's Right to his Jurisdictions but which at the same time were so evidently refelled by shewing that the Earl's Rights were long anterior and no way touched by all the Acts of Parliament whereon he founded that His Majesty after full information did first by his Letter a copy whereof ye will find subjoyned expressly order the passing and confirming of the Earl's Rights and then give a special Instruction unto his Commissioner to ratify it in plene Parliament which was also done And what the present Advocate did in the last Parliament and how it succeeded with what else may be needful for clearing of this point you have already in the Narrative 4ly Our Author first confounds the Earl's Estate and his Superiorities as if one and the same thing Whereas a man's Estate includs also his Property But the Second mistake and the greater cheat is because the word Superiority sounds more of power then the word Property doth therefore the Earl's enemies do in his case constantly joyn his Jurisdictions and Superiorities as if both of the same nature and equally amissable for not taking the Test or any the like cause And hereby have they so far impressed His Majesty as to cause him also speak at the same rate Whereas it is an uncontestable truth that a Superiority in its Right and as to the person that enjoyes it is plainly Property and is only called Superiority because the Owner by granting according to the use of the Feudal Law a Subaltern Right to a Vassal holding or releving of himself for certain Services
or for a Quit-rent thereby becomes his Vassal's Superior a practice plainly authorized and much recommended by old Acts of Parliament as the best advancement of Policy Which things are not said as if the Earl had not as good a Right to his Jurisdictions as to his Superiorities Seeing he is fully secured in both by the Laws of the land but Jurisdictions being of their own nature subject to many Laws and regulations that nowise concern Superiorities or Property and the Earl's Superiorities being in effect a considerable part of his Estate it is very much his interest that they be distinguished to prevent his adversaries imposings But 5ly That you may the better discover their designs against the Earl Here you see the world is told that he hes no right to his Jurisdictions and Superiorities But in the Gift that they have lately moved His Majesty to grant of the Earl's forfaulture they make His Majesties deed to proceed upon quite different reasons in these terms viz That His Majesty in the first place wills and declares that all the Earl's Iurisaictions Offices Superiorities c. Shall for ever be consolidat and remain with the Croun as being necessary for the support of his Government and too dangerous for him and his people to be heritably in the hand of any of his subjects and his Majesty never having designed to dispon the same Which considerations though they might be of some moment in the case of a just forfaulture yet in the Earl's case wherein it is known that before his trial they were the main reasons pretended to work his overthrow by this sham-Treason they can nowise be regarded because it is most certain 1. That the Earl's Superiorities do no more concern the Crown and Government then his Property and that by the same reasoning or rather Ostracism any man's Estate whether Superiority or Property as men may phansie them to exceed their arbitrary measures may be taken from him on as good pretexts 2ly That the reasons assigned do so little militate against the Earl's Iurisdictions that these Jurisdictions were expressly given to his Predecessors and made heritable in his Family for eminent Services peformed to the Crown and upon convincing experience that they could not be better disposed on for the support of his Majesties Government and protection of his people especially against the savage Islanders and their partakers However some because of their Popery and Barbarity think fit at present to patronize them 3ly With what colour can these things be alledged for consolidating with the Crown the Earl's Jurisdictions and Superiorities When we see Jurisdictions and Superiorities as considerable that were taken from his Family by his Father's forfaulture whereof you have a just account in the Narrative conferred upon the Marquess of Huntly and new Regalities and Jurisdictions of as great import bestowed upon the Marquess of Queensberry and others against most express Acts of Parliament But 4ly The Truth and ingenuity of all this procedure may be best judged by the last allegiance wherein they cause His Majesty affirm under his great Seal That he never designed to dispon these Superiorities and Iurisdictions to the Earl Albeit as to the Superiorities his Majesty never scrupled and as to the Jurisdictions he did not only actually dispon them but after being fully informed of all the objections could be moved in the contrary he did expresly own ratify and confirm the deed first by his Letter hereafter set down then by his special Instruction to his Commissioner and 3ly by his solemn Ratification in Parliament But suppose the Earl be unjustly spoiled ofall his fortune yet sayes our Author the King by the generous interposition of his Royal Highness for if you will believe this Loyal Vindicator it is still His Highness Clemency that mitigats His Majesties rigours hath administrat very honestly getting nothing to himself for as to the Earl's Iurisdictions and Superiorities though they were just now of that value as to be necessary to the King for the support of the Government and dangerous in the Earl's person to both King and people yet here they are accounted less then nothing but giving more of it to his Children then belonged to the Family debts being payed and the rest to the Creditors and the tythes to the Church A short specious account of a world of iniquity for though the Earl be fully perswaded that his Majesty neither desires any thing of his Estate nor expects any advantage by the destruction of his Family yet is it not in the first place hard above measure that the Earl should be in the same manner deprived divested of all without the least consideration of his Person as if he had been sentenced for the most hainous Perduellion 2ly Notwithstanding all here said and though it was once given out that the Earl's eldest Son should have a considerable addition to what he presently enjoyes and that the rest of the Children should get their just Provisions yet the eldest is still left lyable to the provisions of his Brothers Sisters and to severall of his Father's debts without any releef and hath not yet got one farthing either in money or security more then the setlement made upon him by the Earl at his marriage wherein he was is in Law secured beyond the reach of any forfaulture could fall upon his Father And for the rest of the Children not only have they got no sufficient security but some smal Payments appointed them by his Majesty are said to be restrained unless the Earl's Rights be delivered up A thing altogether unusual which argues in the Demanders a manifest diffidence of the Right of forfaulture and were both inhumane and is impossible for the Children to do 3ly Waving the false and invidious insinuation here made of the Earl's debts take this brief account of the condition whereunto at present his Estate and Creditors are reduced When His Majesty returned the late Marquess of Argyle as you may read in the Narrative had undertaken and stood engaged for debts of the House of Huntly amounting to 35000 l Sterl Yet upon Argyle's forfaulture the Marquess of Huntly's Estate extending to 4000 l Ster yearly Rent whereof Argyle was legally possest for his releef was taken from Argyle and given to Huntly without any burthen and all that debt left on the Family of Argyle Thereafter his Majesty thought fit to restore this Earl of Argyle to a part of his Father's old Estate and to appoint the rest of it for payment of Creditors in the order then prescribed whereupon the Earl agreeing with as many of the Creditors as according to His Majesty's assignment acclaimed the remainder he was setled in what he possesses with a considerable burthen And thus his Right was then established though with the heavy prejudice of a great many other Creditors who being truly Creditors of the House of Huntly became only Creditors to the late Marquess of Argyle in the manner you
Oath being to preclude the Takers from reserving a liberty to rise in arms upon any pretext whatsoever The Earl sayes our Author by his Explication reserves to himself a power to make any alterations that he shall think for the advantage of Church and State But not to stay you here with what you have so fully cleared in the Narrative Dare any man even our Author not excepted say That he who reserves a liberty to himself in his station and in a lawfull way to wish and endeavour any alteration he thinks to the advantage of Church and State not repugnant to the Protestant Religion and his Loyalty which are the Earl's words eo ipso reserves to himself a liberty to rise in arms upon any pretext whatsoever Certainly to assert this as our Author here does is not only to deny common sense but desperatly to affirm That to rise in arms upon any pretence whatsoever is a lavvful thing advantageous to Church and State and agreeable both to Religion and Loyalty The most traiterous and irreligious Position that can be devised and which one day or other our Author may be more straitned to answer then at present he is to maintain the grosâ—est absurdities Now whether by all these fyne Remarks our Author hes concluded as he alledges that the Earl hes interpret his Oath otherwise then it bears although this be also a wide and weak impertinency as to the inferring of any crime let the world judge But. 2ly Sayes our Author If the Earl's glossing vvere allovvable then there vvere no need to propose doubts in Parliament but Oaths might be left to be formed at the Takers pleasure But. 1. Is not this consequence far more clearly deducible from the Councils emitting their Explanation 2ly What sense or non-sense could induce our Author to dream that because Inadvertency may necessarily occasion Explications therefore men should be still Inadvertent Our Author desires to knovv from any man of sense if the Earl vvould have obtained from the Parliament at the passing of the Test That everyman should be allovved to take it as far as it was consistent with it self and the Protestant Religion and with the Earl's other Qualifications And if I in this contest may pretend to this quality I would answer him roundly That albeit I think hardly any man of sense could make a proposition in thir terms to that soveraign Court that had full power to change the Test at their pleasure Yet I am very confident that had any man suggested the half of the objections that have since been started against it they would very readyly have endeavoured to obviat all reasonable exceptions of Inconsistency though neither by our Author 's wise Expedient nor yet by reserring them to the Councils just and accurate Explanation And for the other Qualifications in the Earl's words I am most assured and have his Highness for my Voucher that had the Parliament been ask't Whether or not the Test did bind up a man in a lawfull way and in his station c They would have answered Not and that therefore though they might have judged the Reservation not necessary yet for the greater ease of conscience they would never have stuck to allow any honest man in swearing to express it or not at his pleasure 3ly Our Author asks If a man should by Oath oblige himself simply to make me a Right to Lands could this sense be consistent with it I 'le make it as far as I can Or would a Right so qualified satisfy the Obligation But if I were to oblige a man simply by his Oath to make me a Right and he should answer I le do all I can to satisfy you and then tell me distinctly what he would sweat to do and what not which is the plain parallel of the Earl's case cleared from our Author's Inversions I should think my self bound whether I accepted his offer or not to judge him a fair plain-dealing man But if once I accepted and should afterward call him a Cheat certainly all men would esteem me the greater Cheat of the two 4ly 5ly and 6ly Sayes Our Author Oaths should be so taken as that the Taker may be persued for perjury That the Covenanters would not have suffered a man to take the Covenant as far as consistent with his Loyalty And are not the enemies of the King's Supremacy content to swear in so far as is consistent with the Word of God So that if the Earl's sense were allowed every man should swear upon his own terms and upon contrary terms But 1. Without question the Earl turning either Papist or Disloyal might have been persued for perjury upon his Oath as qualified 2ly Albeit the Covenanters might have laughed at a man for adjecting a caution which they thought expressed yet I am sure at worst they would never have judged the offer a crime much less accused the offerer after having accepted it 3ly It is nothing to the purpose what Declarations the enemies of the Supremacy make But if these our Author mentions be criminal as he would have us to believe I would intreat him to tell us why their makers are not persued and unless he say It is because these Declarations were not made before accepted by the Council I hope he will be so ingenuous as to confess that it is because albeit these Declarations be judged eversive of the Oath yet they are not accounted Crimes in respect they are only well mean't proposals which when rejected evanish And 4ly Our Author's Consequence If the Earl's sense be allowed then every man should swear upon his own terms as it doth not at all concern the Earl so hath it no connexion except in so far as it reflects on His Majesties Council the alone Masters of such Allowances 7ly Sayes Our Author Former Statuts having discharged Conventions or Convocations and Bonds or Leagues without the Kings consent The Covenanters protested that their Covenant was not against these Acts because they could not be meaned of Meetings and Bonds for preservation of the King Religion and Laws And the 4. Act Par 1661. Declares all such glosses false and disloyal And therefore the Earl's gloss must be so too But 1. The Earl's gloss is no such gloss it doth not at all touch these Conventions or Bonds said to be discharged therefore it must not be so 2ly The Earl's Explanation is expresly qualified in a lawful way and not repugnant to his Loyalty which words plainly respect the Act 1661. as well as all other Acts made for defining our allegiance and duty And therefore it cannot possibly fall under its compass as a Contravention But now after we have done with our Author's Critique which he sayes makes his subsumption clear and undeniable I freely appeal to all men of ordinary ingenuitie whether he hath proved so much as the first Article of it viz. That the Earl took the Test in such a sense as did evacuate his own Oath much less the
every good subject much more of one of his Majesties svvorn Councellors Our Author sayes indeed well but to no purpose That it is Treason L. 1. § Majestatis ff ad L. Iuliam Majestatis to attempt against the security of the Government But can he or any man in his right senses conceive that for a man to endeavour any or all Alterations as above qualified by the Earl is to attempt against the Government Certainly he may as soon prove that to assist and advance the Government faithfully and strenuously the true and obvious import of the Earl's words is to overturn it traiterously But our Author hath a clear Statut for him viz. P. 1. Sess 2. Act. 2. Ch. 2. Whereby it is declared that these Positions That it is lawfull for subjects upon any pretence to enter into Leagues or take up Arms against the King Or that it is lawfull for subjects pretending his Authority to take up Arms against his Person or those commissionat by him Or to suspend him from the exercise of his Royal Government Or to put Limitations on their due Obedience and Allegiance are rebellious and treasonable From vvhich vvords sayes he I infer most clearly That for a subject to declare he is not tyed up from wishing any Alteration is Treason For any Alteration comprehending all Alterations can any man of sense and ingenuity deny but this is a putting Limitations upon his Obedience why not due obedience and Allegiance But admitting any to be comprehensive of all Alterations can any man of common ingenuity say That he that declares himself not tyed up from endeavouring in his station and in a lawfull way all Alterations to the advantage of Church and State not repugnant to Religion and Loyalty declares himself not tyed up from endeavouring all simply Which is a quite different thing Or that he that purposely declares in the former manner that he may preserve the just latitude of his Allegiance doth put Limitations upon his due Obedience and Allegiance when in effect he most expressly ampliats and explains it But our Author coming to see that the deadly thing in the Eal's vvords is neither the Any nor the All addes For vvhat is a greater Limitation then to reserve to himself to be Iudge hovv far he is tyed But because the Earl in his sincerity professes that he minded to endeavour in his Station and in a Lawfull way such Alterations as he should truly think and not barely alledge to be to the advantage of Church and State Doth he therefore make Himself or his Opinion the only Rule of his Oath and performance and not rather the Lavv to which he so plainly refers Or hath our Author either so little Understanding or so little Honesty as not to acknowledge that though de jure all men be obliged to regard Lavv and Reason as the great Directors of duty Yet de facto they can only apply them providing they would do it ingenuously according to their ovvn conceptions So that to accuse a man for such an Expression is to put off all professions of Sincerity and to subvert the very use of thinking among men as is more fully above held forth Our Author in the next place gives us many reasons why the Earl's Cautions in my Station and in a Lawfull way not repugnant to Religion and Loyalty cannot salve his Reservation But still seduced by one and the same foolish and wretched Error viz. That because such Cautions do not justify the contrarie Transgressions therefore all Professions so cautioned are a crime Thus he tells us first That the Covenant as criminal as it was vvas so qualified But who ever thought that these qualified Professions in the Covenant condescended on by our Author were the Covenanters guilt Sure I am it is only for the opposite Practices and not at all for these Professions that the Act of Parliament condemns them 2ly He sayes These Cautions never hindered any man to committ Treason And what then Have not the best Cautions and highest Professions in the world been in like manner violate Whereas the thing our Author should have said is That an Endeavour every vvay qualified as the Earl professes hath been found treasonable But knowing this to be certainly false you see how he here declines to averr it 3ly He tells us That they that rebelled in the 1666 and 1679. professed great love to his Majesty And had they never said or done more does our Author think they had been found guilty of Treason 4ly He tells us That the adjecting of such Cautions is reckoned by Lawyers as Protestatio contraria facto And so indeed they may justly be as they only are when any Fact is committed contrary to them as for example when the Earl shall turn Papist But was it ever heard since Law was named or Reason understood amongst men that a man's declaration That he did not mean to bind up himself in his Station and in a lawfull way to endeavour Alterations he should think to the advantage of Church and State not repugnant to Religion and Loyalty was judged either Protestatio illicita aut cuivis facto licito contraria And 5ly Our Author repeats the Statut condemning glosses put upon the Laws by the late Rebellious Parliaments to the prejudice of their Allegiance But I have already told you there is no such gloss contained in the Earl's words And I further appeal to all men our Author not excepted whether ever these Parliaments if they had only professed That in their station and in a lawfull way they would endeavour any Alteration they thought to the advantage of Church and State not repugnant to Religion and Loyalty would have incurred his late Majesties displeasure much less the atrocious Character of Rebellious here cast upon them But sayes our Author Their Explanation declaring that what they did was for the preservation of Religion which is the very Explanation put by the Earl upon this Oath was particularly condemned as false and disloyal But not to tell you that by our Author's words a man would think that even to say The Test was made for the preservation of Religion may be found both false and disloyal which I heartily wish may never come to pass may not this passage alone convince our Author That it neither was nor could be the Parliaments precise professing themselves to be for Religion but only their professing and justifying of what they did to be for Religion which was judged false and disloyal And that because their Profession or Protestation was thought contrary to their Deed with which the Earl's case Qui adeo factorum innocens ut verba ejus arguantur as a noble Roman said in the like case and who is not so much as accused of having done any thing holds not the least similitude And yet sayes our Author From all this it clearly follows That the Earl by reserving a power to himself to endeavour Alterations did committ Treason notwithstanding all his
needless is found guilty condemned of high Treason which is as full a Concession in my opinion as could have been desired Ay but sayes our Author The former argument still recurs viz. He that will not bind up himself as to any thing reserves a power as to all things which must at least be interpret of unlawful things for lavvful things need no Exception But not to notice our Authors Christian charity and far more observable justice that because Lavvful things need not be reserved though in all cases dubious it be certainly the more tender part to reserve them will therefore have the Earl's Reservation to be of Things unlawful and treasonable The Earl's Reservation is most expresly of Things lawfull in so far as he only refuses to bind up himself in his Station and in a lawfull way as to things advantageous to Church and State not repugnant to Religion and Loyalty Which is a full and cumulative Expression of their Lawfulness And as to what our Author subjoyns of the Earl's putting Limitations on his Allegiance in so far as what he sayes is intelligible it is already answered It being manifest that the Earl's words in stead of being a Limitation are a designed and ample Extension In the next place our Author comes to tell us That the Earl's Qualifications take off the whole force of his Oath either as to rising in Arms or any other unlawfull thing For. 1. Sayes he He takes the Oath only in so far as it is consistent with it self and the Protestant Religion So that if he think the Protestant Religion shall require rising in Arms he is not tyed But. 1. I have told you how false it is that the Earl resolves the force of his Oath upon his own thinking which here he doth not so much as mention 2ly Is it not strange how our Author should judge that the Protestant Religion may not make as certain a Qualification in the Earl's Explanation as it doth in the Councils Where yet in liew of the Confession of Faith the standard appointed by the Parliament it is made the only bar against Popery 3ly What a ridiculous Conceit it is to think that the Earl by offering to take the Test in as far as it is consistent with it self and the Protestant Religion did reserve to himself a liberty to rise in Arms when by an Article of the Test which can neither be taken off nor eluded by any part of the Earl's Explanation he was to swear liquidly and distinctly not to rise in Arms 2ly Sayes our Author The Earl's Oath only tyes him as far as he can which may leave him yet bound by the Covenant But I have already cleared how the Earl did only profess his readiness to obey the Act of Parliament as far as he could without intending by these Words any restriction of his Oath and that to wrest them as if designed for that end is an absurd and willfull errour 3ly Sayes he The Earl takes it only as far as it is consistent with it self And God and the Earl only know how far that is A noble Testimony to the Test And as plain a declaration that our Author neither knows nor caâ—es to know how far it is consistent But having already told you that the Earl did certainly use this Expression to vindicate the Test and his own Conscience from other mens Exceptions and Scruples And that no man in reason either ought to take it or can be bound by it otherwise I shall not here adde any thing And lastly our Author repeates the danger of Limitations telling us That if after the dreadfull effects we have seen produced by them and that Parliaments have condemned them as Treason we should still be secure and unconcerned all the vvorld might laugh at our ruine But seeing it is 1. Most ridiculous to call a manifest Extension an undue Limitation 2ly Most false that ever the Parliament condemned any Limitation of the nature of the Earl's Reservation or that ever a Deed qualified in the Earl's terms was or can be thought dangerous far less rebellious 3ly Most certain that nothing in all times hath so much ruined Government and Governours as the unjust Iealousies and pretended legal but really violent Proceedings of its Ministers I shall not trouble our Author with any further Remarks In the close of his Discourse he thinks fit to instigate Judges to Severity and to guard them against insolent Pity as he calls it which truly after what all men have seen of their frank Procedure against the Earl appeared to me at first reading a very superfluous Caution But my Surprise was only from the want of our Author's fore-sight and was soon intirely discussed For just as I am writing there is come to my hand His Majesties gracious Proclamation for compleeting no doubt the selicity of our Author 's happy Kingdom by ordering the Prosecution of all Rebells and their Resetters c. In the Execution whereof now after the Government had for severall years connived at many hundreds of these Rebells and out-Lavvs and thereby rendered the people secure and careless It is easy to demonstrate that more then ten thousand of his Majesties peaceable Subjects may be prosecute and punished as Traitors and above fourty thousand beside made liable to Fining and Imprisonment at the Councils pleasure A work which I confess requires the highest measures of severity that our Author could prompt to doth indeed leave the far better part of the Kingdom without all refuge or relief save in his Majesties Clemency But where I also hope they shall seasonably and comfortably find it notwithstanding all our Author 's many sly and mischievous Insinuations to the contrair He vvishes the Earl had come in vvill as if forsooth he had proven him to be guilty And as falsly insinuats this to be usual that he may represent him not only as Criminal but a Contemner of his Majesties Mercy He likewise tells us That he doth not admire that this Author and these of his vvay see not this Paper to be Treason since they vvill not acknovvledge it to be Treason to oppose the Succession and to say that it can be altered by a Parliament Which yet the Scotch Parliament thought to be Treason Nor in the last age thought they it Treason to rise in arms against the King and call Parliaments vvithout him So that sayes our Author The fault is only in the depraved Intellectuals of such as have by a long custome of hating Authority bred in themselves a hatred of every Person and thing that can maintain it But not to stay here to discuss all the Calumny and Envy wrap't up in this passage I shall only desire you to consider 1. That our Author would have it a transcendent wonder that the Author of the Mist should say The Succession can be altered by a Parliament And yet he cannot but know that that Person lives under an express Act of Parliament declaring it Treason to say the contrary 2ly He sayes The Scotch Parliament thought it to be Treason to oppose the Succession and to say that it can be altered by Parliament And yet the same Scotch Parliament judged it proper for them to declare and confirm the Succession And Law and Reason say that Constituere destituere sunt ejusdem facultatis But not to insist upon these things For a Conclusion I shall only take the liberty to protest for my self without offering to anticipate the better judgment of others as our Author visibly doth That were I as clear for the Succession as his Royal Highness As dissatisfied with the old Statut and late Proceedings of the English Parliaments about it as our Author As zealous for the Honour and Infallibility of the last Scotch Parliament as his Majesties Advocate As enraged against former Practices as the greatest Torry in Britain And yet more tender and respective of Authority then my ovvn heart I could not have imagined that either Misinterpreting Defaming Depraving or Treason should have been found in the Earl's words And am very apprehensive that the Judgment so given against him may prove a greater bar to the Succession and Reflection on Scotch Parliaments and Judges then all that our Author hath laboured to squeese out of them COPPY OF His Majesties Letter ordering the passing of his two former Signatures for the Earl's Offices and Jurisdictions AT Edinburgh the fifteenth day of January 1669 Years His Majesties Letter under-vvritten direct to the Lords Commissioners of his Treasury and Exchequer vvas presented and read and ordained to be recorded whereof the Tenor followeth Sic suprascribitur CHARLES R. Right trusty and right well beloved Cousins and Councellors and right trusty and well beloved Councellors we greet you well Wee did upon the fyfteenth day of October 1667 sign a Signature in favours of the Earl of Argyle and another shortly after for the Lands of Knoydart The Signatures we are informed are not past And in August last our Secretary acquainted us with a Letter which he had received from our Advocate bearing date the thirteenth day of August 1668 Years together with an Information containing thirteen Reasons against some heritable Offices comprehended in the said Signature We are also acquainted vvith the Earl of Argyle's Ansvvers All vvhich vve have taken into our consideration And although we are very well satisfied with our Advocate in his doing of his duty in representing to us what he conceives to be fit for our service in this particular as also vvith his Fiaelity and Diligence in other things relating to his Place Yet upon serious Consideration of the vvhole matter It is our Gracious Pleasure That the said Signatures vvith these Offices be past our Exchequer and that in the terms exprest in our Letter signed by us soon after the signature any thing in our Instructions to the contrary notvvithstanding For all vvhich this shall be your vvarant And so we bid you farewel Given at our Court at Whiteâ—al the seventh day of January 166 9 8 and of our Reign the 20 Year By His Majesties Command Sic subscribitur Lawderdale Extractum de Libris Actorum Scacarii per me Sic subscribitur THO. MURRAY Clericus Reg. FINIS ☜ ☞ ☞ ☜ ☜ ☜ ☜ ☞ ☜ ☜ ☞ ☞ ☜ ☜ ☞ ☞ ☜ ☜ ☜ ☜ ☜ ☜ ☞ ☞ ☞ ☞ ☞ ☜ ☜ ☜ ☜ ☜ ☜ ☜ ☜ ☜
for reasons that you shall hear to stay till his Majesties return came to the Councils last Letter but taking his opportunity made his escape out of the Castle of Edinburgh upon tuesday the twentieth of December about eight at night and in a day or two after came his Majesties answer here subjoyned The Kings Answer to the Councils Letter 18 Decemb 1681. C. R. MOst dearly c. having this day received your Letter of the 14. instant giving an account that our Advocate having been ordered by you to insist in that Process raised at our instance against the Earl of Argyle he was after full debate and clear probation found guilty of Treason and Leasing making betwixt us our Parliament and our people and the reproaching our Laws and Acts of Parliament We have now thought fit notwithstanding of what was ordered by us in our Letter to you of the 15. of November last hereby to authorize you to grant a warrand to our Iustice General and the remanent Iudges of our Iustice Court for proceeding to pronounce a Sentence upon the Verdict of the Iury against the said Earl nevertheless it is our express pleasure and we do hereby require you to take care that all execution of the Sentence be stopped untill we shall think fit to declare our further pleasure in this affair For doing whereof c. Which answer being read in Council on the thursday and the Court of Iustitiary according to its last adjournment as shall be told you being to meet upon the fryday after a little hesitation in Council whether the Court of Iustitiary could proceed to the sentence of forfaulture against the Earl he being absent it was resolved in the affirmative And what were the grounds urged either of hesitation or resolution I cannot precisly say there being nothing on record that I can learn But that you may have a full and satisfying account I shall briefly tell you what was ordinarly discoursed a part whereof I also find in a petition given in by the Countess of Argyle to the Lords of Justitiary before pronouncing sentence but without any answer or effect It was then commonly said that by the old Law and custom the Court of Iustitiary could no more in the case of Treason then of any other Crime proceed further against a person not compearing and absent then to declare him Out-Law and Fugitive And that albeit it be singlar in the case of Treason that the trial may go on even to a final sentence tho the partie be absent yet such trials were only proper to alwayes reserved for Parliaments And that so it had been constantly observed untill after the Rebellion in the Year 1666 But there being severall persones Notourly engaged in that rebellion who had escaped and thereby withdrawn themselves from Justice it was thought that the want of a Parliament for the time ought not to afford them any immunity and therefore it was resolved by the Council with advice of the Lords of Session that the Court of Iustitiary should summond and proceed to trial and sentence against these absents whether they compeared or not and so it was done Only because the thing was new and indeed an innovation of the old custom to make all sure in the first Parliament held thereafter in the Year 1669 it was thought fit to confirm these proceedings of the Justitiary in that point and also to make a perpetual statut that in case of open Rebellion and Rising in armes against the King and Government the Treason in all time coming might by an order from his Majestie 's Council be tried and the actors proceeded against by the Lords of Iustitiary even to final sentence whether the traitours compeared or not This being then the present Law and custom it is apparent in the first place that the Earl's case not being that of an open Rebellion and Rising in Armes is not at all comprehended in the Act of Parliament So that it is without question that if in the beginning he had not entered himself prisoner but absented himself the Lords of Iustitiary could not have gone further then upon a citation to have declared him fugitive But others said that the Earl having both entered himself prisoner and compeared and after debate having been found guilty before he made his escape the case was much altered And whether the Court could notwithstanding of the Earl's interveening escape yet go on to sentence was still debatable for it was alledged for the affirmative that seeing the Earl had twice compeared and that after debate the Court had given judgment and the Assize returned their Verdict so that nothing remained but the pronouncing of sentence It was absurd to think that it should be in the power of the partie thus accused and found guilty by his escape to frustrate justice and withdraw himself from the punishment he deserved But on the other hand it was pleaded for the Eâ—rl That first It was a fundamental rule That until once the cause were concluded no sentence could be pronounced Nixt that it was a sure Maxime in Law that in Criminal Actions there neither is nor can be any other conclusion of the cause then the parties presence and silence So that after all that had past the Earl had still freedom to adde what he thought fit in his own defence before pronouncing sentence and therefore the Lords of Iustitiary could no more proceed to sentence against him being escaped then if he had been absent from the beginning the cause being in both cases equally not concluded and the principle of Law uniformly the same viz. that in criminals except in cases excepted no final sentence can be given in absence For as the Law in case of absence from the beginning doth hold that just temper as neither to suffer the contumacious to go altogether unpunished nor on the other hand finally to condemn a partie unheard And therefore doth only declare him fugitive and there stops So in the case of an escape before sentence where it cannot be said the partie was fully heard and the cause concluded the Law doth not distinguish nor can the parity of reason be refused Admitting then that the Cause was so far advanced against the Earl that he was found Guilty Yet 1. This is but a declaring of what the Law doth as plainly presume against the partie absent from the beginning and consequently of it self can operate no further 2ly The finding of a partie Guilty is no Conclusion of the cause And 3ly As it was never seen nor heard that a Partie was condemned in absence except in excepted cases whereof the Earl's is none so he having escaped and the Cause remaining thereby unconcluded the general rule did still hold and no sentence could be given against him It was also remembred that the dyets and dayes of the justice Court are peremptour and that in that case even in Civil â—ar more in Criminal Courts and Causes a Citation to hear
is consistent with it self and the Protestant Religion do so openly import that in some things it is inconsistent that vvhosoever vvould persuade him to the contrary must think him Fool or Idiote But. 1. Since the Earl doth not say what our Author would have openly imported either positively or designedly it is impossible he could say it Criminally 2ly Since his words do manifestly referr to the many Exceptions that were abroad against the Test And that it is no less evident that by his Explanation he singlely intended to clear his own Conscience and deal candidly with the Government Whosoever would perswade that there is in it any ground of Offence or Crime specially after it was accepted by the Council must be really either Fool or Worse Our Author indeed tells us That the words vvere spoke by the Earl to inflame the people That they reflect upon the Prudence and Conduct of the Parliament and so prove Defaming and Depraving unansvverably And vvhat can be more Depraving of a Law then to make it Pravam Legem And vvhat Law can be more prava or pernicious then that vvhich is inconsistent vvith the Protestant Religion and vvhich tyes to svvear things contradictory And the having svvorn and dispersed his Explications shevves a firm and passionat Design to poyson the People vvith a belief of all these ill things of the Parliament But seeing the common and certain understanding of Depraving is to wrest by a false and malicious construction to a bad end what was designed for a good That for certain there is no falshood so much as alledged by our Author to be in the Earl's vvords And for malice all the circumstances above adduced do undoubtedly purge them of it That no man in a studied Apology can say The Parliament did not intend contradictions but his vvords by this calumnious Logick may be charged with the same train of absurd Consequences That the Councils Explication is in every respect more obnoxious to them then the Earl's That our Author knows Dispersing neither was nor could be proven And that in effect the Earl's Explanation was accepted by and so became the Councils more then his as you have fully heard in the Narrative This groundless violent Invective is already answered But if I may take a little more liberty then my Narrator thought fit to use Dare our Author state the controversie upon this issue Whether there be Contradictions and Inconsistencies in the Test or not Or if they be as the Council hath implicitly granted and all men may explicitly see in the Paraphrase above set doun will he have it a Crime for a man to say He believes the Parliament intended no Contradictions and that he is content to take the Test in so far as it is consistent Or would he have us to believe either that all Scotch Parliaments or at least the Last by reason of an extraordinary assistance are infallible Or if they be fallible as they confess themselves thinks he the People either so Blockish as not to see their Failings tho never so palpable and also important to mens salvation or so Brutal as to break all Measures if once they conceive their Rulers to be but Men But though here you may indeed perceive the Grounds whereupon all our Author's discourses in this Pamphlet do proceed Yet seeing they are manifestly calculate to some mens unhappy Designes who on purpose inveigh against the People as either ignorant or insolent that they may be arbitrary and would have all Dissenters from their designes to be Suspect and all Suspect to be Traitors that they may be uncontrollable I hope men are not yet brought to that pass either of Simplicity or Terrour as to be cajolled or cudgelled into a complyance with such pernicious Insinuations The third Crime wherewith the Earl was charged was Treason A Crime now become with us and so much the more pity that we live under a Prince so quite different as it was of old said to be under Tiberius Omnium accusationum complementum And which sayes our Author was inferred against the Earl from these words I doe declare I mean not to bind up my self in my station and in a Lawfull way to wish and endeavour any Alteration I think to the advantage of Church and State not repugnant to the Protestant Religion and my Loyalty And this I understand as a part of my Oath And this our Author tells us he will make out in a plain familiar unanswerable way And for that effect gives us this demonstration in Mode and Figure He that reserves to himself the power of reforming Church or State commits Treason But the Earl in his Explication reserves to himself a povver of reforming Ergo. And not to amuse you with repeating what is already so fully said in answer to this Pretence equally ridiculous and pernicious To this formal Argument take this formall Answer He that reserves to himself the povver of reforming c. By asserting or assuming to himself the povver of reforming either proper to the Prince alone or in a way without his line or without warrant of Law or to the hurt of Church and State and repugnant to the Protestant Religion and his Loyalty commits Treason Transeat be it so He that reserves to himself the povver of reforming c. By declaring he minds not to bind up himself in his Station and in a lawfull way to endeavour Alterations he thinks to the advantage of Church and State not repugnant to the Protestant Religion and his Loyalty commits Treason Is denyed Nay in effect this is so far from being Treason that the thing thus reserved is the indispensible duty of our Allegiance And for a subject specially a privy Councellor not to wish and endeavour in his station and in a lawfull way such Alterations as he thinks to the advantage of Church and State and not repugnant to the Protestant Religion his Loyalty were a Lash Disloyalty and plain Perjury But so it is that the Earl in his Explication reserves to himself a povver of reforming in the former sense is false and the very thing denyed by his vvords In the later and second sense it is indeed true but in steed of being a Crime a most clear and certain duty But our Author sayes That any is as comprehensive as all which he gravely proves by several instances and thence infers That therefore the Earl has reserved to himself to endeavour all Alterations And sayes he If that be not Treason nothing can be Treason But albeit to endeavour any or all Alterations simply as our Author sophistically and calumniously divides the Earl's words may be Treason dare he affirm That for a man in his station and in a lawfull way to endeavour any or all alterations to the better and not repugnant to Religion and Loyalty which are the Earl's words is Treason Or can he or any man deny that the doing of this very thing may be the necessary duty of