down the Earls Explanation which runs thus I have considered the Test and am very desirous to give Obedience as far as I can I am confident the Parliament never intended to Impose contradictory Oaths and therefore I think no body can Explain it but for himself and Reconcile it as it is Genuine and agrees in his own Sense I take it as far as it is Consistent with it Self and the Protestant Religion And I do Declare I mean not to bind up my self in my Station and in a lawful way to wish and endeavour any Alteration I think to the advantage of Church and State Not Repugnant to the Protestant Religion and my Loyalty and this I understand as a part of my Oath The first Cryme Charged upon the Earl from this Paper is that albeit by the 107. Act of Parliament 7. I. 1. It be Statute that no man Interpret the Kings Statutes otherwise then the Statutes bears and to the Intent and Effect they were made for And as the Maker understood and whosoever does the contrary shall be punished at the Kings will Yet the King and Parliament having appointed an Oath to be taken for Securing the Protestant Religion and the Kings Prerogatives And having to evite the old Fanatick Juglings and Evasions of the Covenanters on the one hand and the Equivocations and Mental Reservations of the Papists on the other The Oath does expresly bear these Words And finally I affirm and swear That this my solemn Oath is given in the plain and Genuine Sense and meaning of the words without any Equivocation Mental Reservation or any manner of Evasion whatsoever The said Earl did notwithstanding of that Statute and the foresaid Clause in the Oath it self take the said Oath in such a Sense as did not only Evacuat his own taking of it but did teach others how to swear to it without being thereby obliged and path a Way to Posterity for Evacuating all the Acts that ever can be made for Security of Religion King and Government in so far as he declares that he did take the Oath with these Qualifications only First I will give Obedience as far as I ean 2ly I think no body can Explain it but for himself and reconcile it as it is genuine and agrees in his own Sense 3ly I mean not to bind up my himself in my Station from making any alteration I think to the advantage of Church or State c. Which is not to take it in the Imposers Sense but his own which will the more easily appear from these Reasons First That the Design of all Laws but especially the making of Oaths is that the Subjects should be bound thereby according to the Sense of the Legislator Which is very clear from the express words of the former Statute and by the Reason whereon it is founded which is that the Legislator may be sure of Obedience and may know what to expect from those who are to obey And who have taken the Oaths prescrib'd And in which Divines agree with Lawyers for they tell us that verba ju ramenti intelliguntur secundum mentem intentionem ejus cul sic juramentum Sande pag 173. But this sense in which the Earl takes the Oath does Evacuat all the designs of the Oath For first Whereas the Oath design'd that this Act of Parliament should be simply obey'd as a sure Foundation for the Security of Church and State the Earl promises only to obey it as far as he can without telling in what he will obey 2ly Whereas the Oath is to be taken in the plain genuine Sense of the Words the Earl declares that no body can Explain it but for himself And reconcile it as it is genuine and as it agrees in his own Sense Which implys that it had no plain genuine Sense in which it could have been taken 3ly Whereas the Parliament design'd it as a Security for the Protestant Religion he declares he takes it only in as far as it is consistent with the Protestant Religion Which implys that in some things it is not consistent with the Protestant Religion 4ly It cannot be pretended that the Parliament design'd to make an Act that had contradictions in it and yet the Earl says he takes the Oath in so far as it is consistent with it self which imports necessarly that in some things it is not consistent with it self 5ly The design of this Oath was to preclude all the Takers from reserving a Liberty to rise in Arms upon any pretext whatsoever but by this Explication the Earl reserves to himself a power to make any alterations that he shall think for the advantage of Church and State By all which I conclude that the Earl has interpret this Oath otherwise than it bears and to the Intent and Effect it was made for And otherwise than the Maker understood And therefore this Explication does clearly fall under the foresaid Satute 2ly If this were allowable no Member of Parliament needs hereafter propose any doubts in Parliament but let the Parliament make what Oath they please the Taker vvill Reform and alter it as he pleases When he takes the Oath And I desire to knovv from any man of Sense if the Earl would have obtained from the Parliament at the passing of it that every man should have been allowed to take it as far as it was consistent with it self and the Protestant Religion Or if they would have suffered the other Qualifications in that Paper to have been adjected as a part of the Act. Which does demonstrat that he did not only not take it in the Legislators Sense as the former Statute Commands But that he did not at all take the Oath that they made but made a new Oath of his own 3ly If a man should oblige himself simply upon Oath to make me a Right to such Lands could this Sense be consistent with it 〈◊〉 make it as far as I can Or would the making such a Right with that quality satisfie the Obligation Or could he who receives the Obligation be sure of a good Right if the Person Obliged were bound to no further than he could perform 4ly All Oaths must be so taken as that the Taker may be pursued for Perjury but so it is that when it is not known what the Taker is ty'd to it cannot be known wherein he has fail'd And consequently in how far he is Perjur'd 5ly I would willingly know if the Covenanters would have allow'd any to have taken the Covenant with a Qualification that he should observe it as far as it was consistent with his Loyalty And do not generally the greatest Enemies to the Kings Supremacy declare that they are content to take the said Oath in as far as it is consistent with the Word of God and the Protestant Religion 6ly If this were allow'd every man should take the Oath in a particular Sense and upon his own Terms nay and upon contrary Terms according to mens contrary Interests
So that it would not be the Parliaments Test but every mans own Test. And there should be as many different Oaths as there are different Takers 7ly Former Statutes having discharged the Leidges to Convocat or Assemble or to enter into Bonds and Leagues without the Kings consent the Covenanters did protest that their taking the Covenant was not against these Acts because these Acts could not be mean'd against any Leagues or Meetings holden for Preservation of the King Religion and Laws And yet the 4 Act Par 1 Ch 2 does positively declare that all such Glosses are false and disloyal and contrair to the true and genuine meaning of these Acts. And therefore this Glosse must be so too because this Glosse is the very same both in Words and Design with those Glosses But though this Poynt be very clear and undenyable Yet Mr. Mist for so I must call the Author for distinctions sake makes those three answers First That if the Authority which is to administer the Oath do's accept the Takers Sense the Taker is only bound in the Sense he gives and no other But so it is the Council accepted his Sense And if they had refused the Earl had not taken the Oath nor had his refusal been a Cryme To which it is replyed That first If it be a Cryme to Interpret the Kings Laws otherwise than they bear and to the Effect for which they were design'd Then certainly it may be debated with very good Reason that though the Council had conniv'd at the Earls misinterpreting the Law neither their negligence nor their mistake could have prejudg'd the King nor have been in place of a Remission For though the Council be a more eminent Judicature than others yet they cannot pardon Crymes when committed And consequently their allowance cannot make that to be no Crime which is a Cryme And we have a particular Statute in Scotland That the negligence of the Kings Officers shall not prejudge Him Nor is that Statute so Reasonable in any Case as in this For since this and all other Oaths are oft times administred by very ignorant Persons we should have them a thousand times cheated and impos'd upon by the adjecting of such Qualifications as these if the adjecting of such Qualifications as these were not punishable Because he who did Administrat the Oath did once allow them And I put the Case that if a man who had many Friends in Council should have given in an Explication that was uncontravertedly Treasonable by saying that he was content to take the Oath but that he design'd not by it to preclude himself from rysing in Arms when he thought fit for the Defense of the Protestant Religion Would it have been a sufficient Defense that the Council did not challenge it in the mean time And therefore it this was a Cryme in it self the Councils allowing the Explication did not at all in strict Law take off the Cryme But the Judges resolv'd to do him all possible favour were more merciful then to straiten the Earl upon this Point For if the Earl had given in an Explication to the Council and told that he subjected that Paper to their Consideration and that he would take the Oath upon these Termes and no otherwise the Judges would have Interpos'd for the Kings Favour if he had been so ensnared by the Councils connivance or mistake Nor would the King have pursued it But the true matter of Fact is that the said Paper was not given in till the next day after the Earl had sworn the Test. And though the Judges allowed him to prove that he had adjected these Words at his first Swearing of the said Test and that they were allow'd yet he fail'd in the Probation and so the Judicature is no way to be blam'd The second Defense is that all that can be inferr'd from the above-cited Law is that no man should put a Sense upon any Law that should bind another or be the publick Sense of that Law to all the Subjects which is most false for the Words of the Law are general That no man shall Interpret the Kings Laws but to the Intent and Effect for which they were made And consequently this must be Extended to all Cases where the Law is abus'd and the Legislator disappointed by a misinterpretation Et ubi lex non distinguit nec nos And there is as great Reason to Punish such as take Oaths under such wrested Senses contrair to the Design of the Legislator as there is for punishing any Cryme And much more then for punishing such as misinterpret the Law to others in other Cases Since if this be allow'd every man may by misinterpreting the Oath as to himself evacuat all Oaths and make them ridiculous And so not only enjoy Employments contrair to the Legislators Design But likewise cut down the greatest Fence of Government such as Oaths are now esteemed to be by all Christians The third answer made to this Point is that the Legislator is surest of those who give Explications of their Oaths for they deal honestly And it is impossible that any man can take an Oath but he must take it in his own Sense But neither is this of any moment for if this Answer prove any thing it will prove that no man can be challenged for adjecting any Quality And consequently the Act of Parliament could take effect in no case And so not only were this Act useless but we would want an excellent Remedy for curbing such as resolve to abuse the Government in rendring all Oaths that are invented for its Security altogether ineffectual And it is strange to see what absurd things men will run to when they are put to Defend an Absurdity And though every man must have a Sense when he takes an Oath it does not therefore at all follow that men must be allowed to adject Senses that are inconsistent with the Oath or render the Oath useless And since this is not an Oath that all the Subjects must take it having no other Penalty adjected to the not taking but the loss of the Employment they possess by the Kings meer Favour Every good Christian ought either to be satisfied of the design of the Legislator in the Oath or else to abstain from it And though the Mind of the Legislator might secure the Taker yet that can only be when the Sense is previously offered to and accepted by him which cannot at all be said in this Case And whatever favour may be pretended where the Taker of the Oath condescends upon what he will oblige himself to yet that cannot be pretended in this Case where the Earl does not condescend how far he can obey And does not specifie how far he thinks it consistent with the Protestant Religion or with it Self But only that he will obey it as far as he can and as far as it is consistent with it self and the Protestant Religion So that the Legislator is still unsecure
advantage is it to the Government that the Author design'd it not And therefore it is much safer for the Government as it is sufficiently safe for every Subject that men rather secure their own innocence by not medling in publick Matters of State then that they should be encouraged to meddle upon hopes that they could not be reacht since their design could not be prov'd And which design and malice being latent Acts of the mind can never be otherwise prov'd than by the nature of the Action it self And therefore the dolus malus or design needs not in this case be otherwiseprov'd than from the Nature and whole strain of the Paper it self Which was so fit to Inflame the people and abuse the Parliament that dole and premeditat malice could not have done more prejudice But if it were necessary to clear the Earls Design further then from the Paper it self These Circumstances might be conjoyn'd with what results from the Paper First That the Earls Father and Family had owned eminently the Principles against which this Oath was taken viz. The Rising in Armes for Reforming without the Kings Authority and did still own the Covenant Secondly The Earl himself had taken the Covenant Thirdly The Earl had all along opposed the Test in Parliament Fourthly The Earl had positively told his Royal Highness he would not take the Test. Fifthly Neither the Ministers nor any other within his Countrey upon whom he could have Influence had taken the Test. Sixthly I am affraid that the kindness shew'd to the Earl by the Fanaticks during his Tryal and the noise they have made for him since that time may clear too convincingly that he design'd in that Paper to own that Interest for they never manifest any concern save for those of their own perswasion And where have we ever heard them resent the injustice done to any Cavaleer or shew more resentment than in this Earls Case So that this Author do's himself prove that design which he desiderats and add to the guilt which he designs to lessen All which Demonstrat that he had an aversion for the Test and so what he did against it was done dolo malo and whoever writes for him writes against the Test. 2ly What juster measures could this Judicature take then by considering what the Supream Judicature of the Nation formerly did upon the like occasion But so it is that the Lord Balmerino being accused for having misinterpreted the Kings actions in a Petition given in to himself in which against this Statute he endeavoured to raise jealousies in the Peoples mind of designs to bring in Popery and that by far remoter Inferences than these now insisted on He was found guilty though his Lawyers Pleaded for many dayes together that there could be no Cryme but where there was a Design And there could be no design of Defaming the King in a Paper that was meerly a humble Petition presented to himself and accepted and Read once by him without any show of displeasure and wherein nothing could be challenged but by way of Inserence and Implication As also this same Earl of Argyle being accused before the Parliament in anno 1662 for Leasing making betwixt King and People upon the Acts mentioned in the Earls Inditement He was found guilty upon that Expression viz. That that storm would blow over and then the King would see their Tricks Which Words he pretended did relate to privat Persons formerly mentioned in the Letter and not to the Parliament And that every man should be allowed to Interpret his own Words Which Interpretations being refus'd then ought much less to be allow'd now nam semel malus semper praesumitur malus in eodem genere malitiae In the next place Mr. Mist endeavours to justifie the particular Expressions against the Consequences drawn from them by the Lybel And as to the first He tells us that in that Expression I will give Obedience as far as I can He did not at all imply that the Law was unjust but only that he could notgiv Obedience to it which cannot be Treason since the refusing it absolutely would not be Treason To which it is answered that the Authors mistake is very grosse for it was never design'd that Treason should be inferred from these Words but that which was inferred from it was that it was a gross Evacuating of an Oath and a making it ineffectual to say that a man should swear by way of quality that he will obey as far as he can and that he declares this is a part of his Oath For there is no man but will take any Oath with that quality and whatever he takes with that quality is no Oath nor Obligation at all that can bind him in the Legislators Sense and though we look upon it as no fault nor Cryme not to Take the Test yet to Take the Test so as not to remain bound by it and so as to Teach others how to Evacuat it and so as to defame it as this Expression do's is certainly an abusing Evacuating and Swearing to an Oath in express contradiction to the Act of Parliament and to the Oath it self And though it be no Reproach not to Take the Oath at all for then a man expresses no Opinion concerning it yet certainly that with the subsequent Expressions being Dispersed among the People could not but raise in them Jealousies and a Contempt of the Government For having made Oaths which men could not Take though they were desirous and for which afterwards he Insinuats this Reason viz. That though the Parliament designed not to make contradictory Oaths yet he thinks That no man can Take that Oath lut in his own Sense And whereas Mr. Mist pretends that these Words are no Reflection upon the Parliament since he do's not formally say that the Parliament has made an Oath that has contradictions in it but on the contrair That the Parliament did not Designe to make Contradictory Oaths To this it is answered That the Words are a very plain Reflection upon the Parliament for no man can hear one refuse to take an Oath simply because though the Legislator Designed not to Impose contradictory Oaths yet de facto the Oath is such as that no man can Take it but in his own Sense and without a particular Reconciliation of his own But the Hearer will certainly conclude that the Parliament has been so Weak Malicious or Inadvertent as to have contrived an Oath which has in it self Contradictions For else to what purpose was it said That he believed the Parliament designed not to Impose Contradictory Oaths And it is an extraordinary affront to a Parliament to have made contradictory Oaths though they did not design it and to have made made such an Oath especially That no man could Take it but in his own Sense Whereby the whole Security of the Government is Evacuted For the Security of the Government as well as the Nature of Oaths requires that an Oath