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
criminal he frequently repeats from the known grounds of Law of the nature of crimes and the design of criminal Laws viz. That as there can be no crime without a fraudulent purpose either apparent or proven So it was the design of Lawgivers only to punish such acts as are designedly malicious I desire you only to consider the particulars following And 1 Pag. 〈◊〉 l. 7. of his Book of Criminals having made the question Whether what tends to a crime not perfected doth fall under the Statut or Law by which that crime to which it approaches is punished He instances in the crime of Misconstruing His Majesties Government and Proceedings or depraving his Laws which as he sayes is punishable by death Ja. 6. Par. 10. Act 10. And then further moves Whether papers as tending to misconstrue His Majesties proceedings and Government or bearing insinuations which may raise in the people jealousy against the Government be punished by that Law Which being one of the great crimes pretended and libelled against the Earl I shall here omitting his reasons in the affirmative which have not the least ground in the Earl's case as you have heard represent to you how exactly he himself and others have acted for the Earl's overthrow all these dangerous and pernicious things from which he argues in the negative His words then are these And that such insinuations and tendencies are not punished criminally he sayes 1. It is the interest of mankind to know expresly what they are to obey especially where such great certifications are annexed as in crimes 2. The Law having taken under its consideration this guilt hes punished the actual misconstruing or depraving but hes not declared such insinuations or tendencies punishable Et in statutis casus omissus habetur pro omisso 3. This would infallibly tend to render all judges arbitrary for tendencies and insinuations are in effect the product of conjecture and papers may seem innocent or criminall according to the zeal or humour as well as malice of judges men being naturally prone to differ in such consequentiall inferences and too apt to make constructions in such according to the favour or malice they bear to the Person or Cause Are not some men apt to construct that to tend to their dishonour which was designed for their honour and to think every thing an innovation of Law or Priviledge which checks their inclination and design Whereas some judges are so violent in their Loyalty as to imagine the meanest mistaks do tend to an opposition against Authority and thus Zeal Iealousie Malice or Interest would become judges 4. Men are so silly or may be in such haste or so confounded and the best are subject to such mistakes as that no man could know when he were innocent simplicity might oft times become a crime and the fear of offending might occasion offence and how uncomfortably would the people live if they knew not how to be innocent 2ly p 47 l 9. Of the same Book he sayes That the 8th Point of Treason is to impugn the dignity and Authority of the three Estates or to seek and procure the innovat on and diminution of their Power and Authority Act 103. Ja. 6. p. 6. Now this being another of the crimes charged upon the Earl hear how the Advocate there understands it But this he adds immediatly is to be understood of a N. B. direct impugning of their Authority as if it were contended that Parliaments were not necessary or that one of the three Estates might be turned out Which how vastly different from his indirect forced and horrible inferences in the Earl's case is plain and obvious 3ly ibid. p. 58. l. 2. After having said That according to former Laws no sort of Treason was to be persued in absence before the Justices And urging it to be reasonable he adds Nor is it imaginable but if it had been safe it had been granted formerly And l. 31. he sayes The Justices are never allowed even by the late Act of Parliament to proceed to sentence against absents but such as are persued for Rising in Armes against the King The true reason whereof he tells us is that the Law is not so inhumane as to punish equally presumed and reall guilt And that it hath been often found that men have absented themselves rather out of fear of a prevailing Faction or currupt witnesses c. then out of consciousness of guilt Reasons which albeit neither true nor just seeing that the Law punishes nothing even in case of absence but either manifest contumacie or crimes fully proven And that the only reason why it allowes no other crime save Perduellion to be proceeded against in absence is because it judges no other crime tanti yet you see how this whole passage quadrats with the Earl's case Who being neither persued for perduellion nor present at giving sentence was yet sentenced in absence as a most desperate traitour 4ly ibid p. 60. l. 24. Speaking of the Solemnities used in Parliament at the pronouncing sentences for Treason viz. That the Pannel receives his sentence kneeling and that after the doom of for faulture pronounced against him the Lyon and his Brethren the Heraulds in their formalities come tear his Coat of armes at the Throne and thereafter hang up his Eschucheon ranversed upon the mercat Crosse he adds But this I think should only hold in the crime of Perduellion and then goes on to add That the children of the delinquent are declared incapable to bruik any Office or Estate is another Speciality introduced in the punishment of Perduellion only And yet both these terrible Solemnities were practised against the Earl even by a Court of Iustitiary and not in Parliament albeit he was not accused of Perduellion nor be indeed more guilty of any crime then all the world sees 5ly ibid page 303 l. ult he sayes That verbal injuries are these that are committed by unwarrantable expressions as to call a man a Cheat a woman whore But because expressions may vary according to the intention of the speaker therefore except the words can allow of no good sense as whore or thief or that there be strong presumptions against the speaker the injuriandi animus or design of injuring as well as the injuring words must be proven and the speaker will be allowed to purge his guilt by declaring his intention and his declaration without an Oath will be sufficient 2ly The persuer should libell the design and prove it except the words clearly inferre it 3ly The persuer is presently to resent the injurie and if at first the words be taken for no injurie they cannot afterward become such Which things being applied to the Earl's words do evident I say That unless his words could allow of no good sense or that there were strong presumptions against him or that he could not purge his guilt by declaring his intention or that his words did clearly inferre the guilt there could be no crime of
are ever to be interpreted and understood in meliorem partem And by way of Implication and Inference to conclud and infer crimes from the same which the user of such words and expressions never mean'd nor designed is both unreasonable and unjust 2. As the foresaid Acts of Parliament made against Leasing-makers and depravers of His Majesties Laws only proceed in the terms foresaid where the words and speeches are plain tending to beget discord between the King and his Subjects and to the reproach and dislike of his Government and when the same are spoke and vented in a subdolous pernicious and fraudulent manner So they never were nor can be understood to proceed in the case of a person offering in the presence of a publik udicature whereof he had the honour to be a Member his sincere and plain meaning and apprehension of what he conceived to be the true sense of the Act of Parliament imâ—osing and enjoyning the Test There being nothing more opposite to the Acts of Parliamenâ— made against Leasing-making and venting and spreading abroad the same upon seditious designs than the foresaid plain and open declaration of his sense and apprehension what was the meaning of the said Act of Parliament And it is of no import to inter any crime and much less any of the crimes libelled albeit the Pannel had erred and mistaken in his apprehension of the Act of Parliament And it were a strange extention of the Act of Parliament made against Leasing makers requiring the qualifications foresaid the Acts against depraving His Majesties Laws to make the Pannel or any other person guilty upon the mistakes and misapprehensions of the sense of the â—aws wherein men may mistake and differ very much and even eminent Lawyers and Judges So that the Acts of Parliament against Leasing-making and depraving His Majesties Lavvs can only be understood in the express terms and qualifications â—oresaid Like as it neither is libelled nor can be proven that the Pannel before he was called and required by the Lords of His Majesties Privy-council to take the Oath did ever by word or practice use any reproachful speeches of the said Act of Parliament or of His Majestâ—es Government But being required to take the Oath he did humbly with all submission declare what he apprehended to be the sense of the Act of the Parliament enjoyning the Test and in what sense he had freedom to take the same 3. The Act of Parliament enjoyning the Test does not enjoyn the same to be taken by all persons whatsoever but only prescribes it as a qualification without which persons could not assume or continue to act in publik Trust Which bein an Oath to be taken by so solemn an invocation of the Name of Almighty God it is not only allowable by the Lavvs and customs of all Nations and the Opinion of all Divines ad Casuists Popish or Protestant but also commended that where a Party has any scrupulosity or unclearness in his conscience as to the matter of the Oath that he should exhibit and declare the sense and meaning in which he is willing and able to take the Oath And it is not at all material whether the scruples of a mans conscience in the matter of an Oath be in themselves just or groundless it being a certain maxime both in Law and Divinity that Conscientia etiam erronea ligat And therefore tho the Pannel had thought fit for the clearing and exoneration of his own conscience in a matter of the highest concern as to his peace and repose to have exprest and declared t e express sense in which he could take the Oath whether the said sense was consistent with the Act of Parliament or not yet it does not in the least import any matter of reproach or reflection upon the justice or prudence of the Parliament in imposing the said Oath but alenarly does evince the weakness and scrupulosity of a mans conscience who neither did nor ought to have taken the Oath but with an explanation that would have saved his conscience to his apprehension Otherwise he had grosly sinned before God even tho it was Conscientia errans And this is allowed and prescribed by all Protestant Divines as indispensibly necessary and was never thought to import any crime and is also commended even by Popish Casuists themselves who tho they allow in some cases of mental reservations and equivocations yet the express declaration of the sense o the party is allowed and commended as much more ingenuous and tutius Remedium Conscientiae ne illaqueetur as appears by Bellarmine de Iuramento and upon the same Title de Interpretatione Iuramenti and Lessius that famous Casuist de Iustitia Iure Dubitatione 8 9. utrum siquis salvo animo aliquid Iuramento promittat obligetur quale peccatum hoc sit And which is the general opinion of all Casuists and all Divines as may appear by Amesius in his Treatise de Conscientia Sanderson de Iuramento Praelectione secunda And such an express Declaration of the sense and meaning of any party when required to take an Oath for no other end but for the clearing and exoneration of his own Conscience was never in the opinion of any Lawyer or any Divine construed to be the Crime of Leasing-making or of defamatory Libels or depraving of publik Laws or reproaching or misconstruing of the Government but on the contrary by the universal suffrage of all Protestant Divines there is expresly required in Cases of a scrupulous Conscience an abhorrence and detestation of all reserved senses and of all Amphibologies and Equivocations which are in themselves unlawful and reprobate upon that unanswerable Reason that Juramentum being the highest Act of Devotion and Religion in eo requiritur maxima simplicitas and that a party is obliged who has any scruples of Conscience publikly and openly to clear and declare the same 4. Albeit it is not controverted but that a Legislator imposing an Oath or any publik Authority before whom the Oath is taken may after hearing of the Sense and Explication which a person is willing to put upon it either reject or accept of the same if it be conceived not to be consistent with the genuine sense of the Oath Yet tho it were rejected it was never heard of or pretended that the offering of a sense does import a crime but that notwithstanding thereof Habetur pro Recusante and as if he had not taken the Oath and to be liable to the certification of Law as if he had been a Refuser 5. The Pannel having publikly and openly declared the sense in which he was free to take the Oath it is offered to be proved that he was allowed and did accordingly proceed to the taking of the Oath and did thereafter take his place and sit and vote during that Sederunt of Privy Council So as the pretended Sense and Explication which he did then emit and give can import no Crime against
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
him 6. It is also offered to be proved that before the Pannel was required to take the Oath or did appear before his Royal Highness and Lords of Privy-Council to take the same there were a great many Papers spread abroad from persons and Ministers of the Orthodox Clergy and as the Pannel is informed some thereof presented to the Bishops of the Church in the name of Synods and Presbyteries which did in downright terms charge the Test and Oath withalledged contradictions and inconsistencies And for satisfaction whereof some of the Learned and Reverend Bishops of the Church did write a learned and satisfying Answer called A Vindication of the Test for clearing the Scruples Difficulties and mistakes that were objected against it And which Vindication and Answer was exhibited and read before the Lords of His Majesties Privy-Council and allowed to be printed And from which the Pannel argues 1. That it neither is nor can be pretended in this Libel that the alledged Explication wherein he did take the Oath does propose the scruples of his Conscience in these terms which were proposed by the Authors of these Objections which do flatly and positively assert that the Oath and Test do contain matters of inconsistency and contradiction whereas all that is pretended in this Libel with the most absolute violence can be put upon the words is arguing Implications and Inferences which neither the words are capable to bear nor the sincerity of the Earls intention and design nor the course of his by past Life can possibly admit of And yet none of the persons who were the Authors of such Papers were ever judged or reputed Criminal or Guilty and to be prosecuted for the odious and infamous Crimes libelled of Treason Leasing-making Prejury and the like 2. The Pannel does also argue from the said matter of Fact that the alledged Explication libelled can neither in his intention and design nor in the words infer or import any Crime against him because before his being required or appearing to take the Oath there were spread abroad such Scruples and Objections by some of the Orthodox Clergy and others So that the Earl can never in any sense be construed in his Explication wherein he took the Oath to have done it animo infamandi and to declaim against the Government For the Scruples and Objections that were spread abroad by others were a fair and rational occasion why the Earl in any sense or explication which he offered might have said that he was confident the Parliament never intended to impose contradictory Oaths and this is so far from importing the insinuation and inference made by the Libel that thereby the Parliament were so impious as to impose contradictory Oaths as on the contrary considering the Circumstances forementioned that there were Papers spread abroad insinuating That there were inconsiltencies and contradictions contained therein the said expression was an high Vindication of the Honour and Justice of the Parliament against the Calumnies and Mis-representations which were cast upon it and was also a just Rise for the Pannel for the clearing and exonoration of his own Conscience in the various senses and apprehensions which he found were going abroad as to the said Test humbly to offer his sense in which he was clear and satisfied to take the Oath 7. To the Libel in so far as it is founded upon the Act of Parliament viz. Act 130 Par. 8 James 6 declaring That none should presume to impugn the Dignity or Authority of the Three Estates of Parliament or procure any invasion or diminution thereof under the pain of Treason as also in so far as it is pretended in the Libel That the Pannel by offering the Sense and Explication libelled has assumed the Legislative Power which is incommunicable and has made a Law or a part of a Law It is answered The Libel is most groundless and irrelevant and against which the Act of Parliament is opponed which is so plain and evident upon the reading thereof that it neither is nor can be subject to the least cavillation And the plain meaning whereof is nothing else but to impugn the Authority of Parliaments as if the King and Parliament had not a Legislative Power or were not the highest Representative of the Kingdom or that any of the Three Estates were not essentially requisit to constitut the Parliament And besides there is nothing more certain than that the occasion of the said Act its being made was in relation to the Bishops and Clergy And there is nothing in the pretended Explanation that can be wrested to import the least Contravention of the said Act or to be an impugning of the Three Estates of Parliament or a seeking any innovation therein And it is admired with what shadow of Reason it can be pretended That the Pannel has assumed a Legislative Power or made a part of a Law seeing all that is contained in the alledged Explication libelled is only a Declaration of the Earl's sense in which he was satisfied to take the Oath and so respected none but himself and for the clearing of his own Conscience which justly indeed the Word of God calls a Law to himself without any incroaching upon the Legislative Power And where was it ever debated but that a man in the taking of an Oath if as to his apprehensions he thought any thing in it deserved to be cleared might declare the same or that his exhibiting at the time of the taking of the Oath his sense and explication wherein he did take it was ever reputed or pretended to be the assuming of a Legislative Power it being the universal practice of all Nations to allow this liberty and which sense may be either rejected or accepted as the Legislator shall think fit importing no more but a Parties private senseâ— for the exoneration of his own Conscience And as to that Member of the Libel founded upon Act 19. Par. 3. Queen Mary it contains nothing but a Declaration of the pain of â—erjury and there is nothing in the Explication libelled which can in the least be inferred as a Contravention of the said Act in respect if it should be proved That the Pannel at the time of the taking of the Oath did take it in the words of the said Explication as his sense of the Oath it is clear that the sense being declared at the time of taking the Oath and allowed as the sense wherein it was taken the Pannel can only be understood to have taken it in that sense And although publik Authority may consider whether the sense given by the Pannel does satisfie the Law or not yet that can import no more though it was found not to satisfie but to hold the Pannel as a Refuser of the Oath but it is absolutely impossible to infer the Crimes of Perjury upon it being as is pretended by the Libel the Pannel did only take it with the Declaration of the Sense and Explication libelled 8. As the Explication
libelled does not at all import all or any of the Crimes contained in the said Libel so by the common Principles of all Law where a person does emit words for the clearing and exoneration of his own Conscience altho there were any ambiguity or unclearness or involvedness in the tenor or import of the expressions or words yet they are ever to be interpreted Interpretatione benigna favorab ili according to the general Principles of Law and Reason And it never was nor can be refused to any person to interpret and put a congruous sense upon his own words especially the Pannel being a person of eminent Quality and who hath given great demonstration and undeniable evidences of his fixt and unalterable Loyalty to His Majesties Interest and Service and at the time of emiting the said Explication was invested and entrusted in publik Capacites And it is a just and rational interpretation and caution which Sanderson that judicious and eminent Casuist gives Praelect 2. That dicta facta principum parentum rectorum are ever to be looked upon as benignae Interpretationis and that Dubia sunt interpretanda in meliorem partem And there is nothing in the Explication libelled which without detortion and violence and in the true sense and design of the Pannel is not capable of this benign Interpretation and construction especially respect being had to the Circumstances wherein it was emitted and given after a great many Objections Scruples and alledged Inconsistencies were owned vented and spread abroad which was a rise to the Earl for using the expressions contained in the pretended Declaration libelled 10. These words whereby it is pretended the Pannel declares he was ready to give obedience as far as he could first do not in the least import That the Parliament had imposed any Oath which was in it self unlawful but only the Pannel's scrupulosity and unclearness in matter of Conscience And it is hoped it cannot be a Crime because all men cannot go the same length And if any such thing were argued it might be argued ten times more strongly from a simple refusing of the Oath as if any thing were enjoyned which were so hard that it is not possible to comply with it And yet such Implications are most irrational and inconsequential and neither in the case of a simple and absolute refusing or the Oath nor in the case of an Explication of the parties sense wherein he is willing to take the Oath is there any impeachment of the Justice and prudence of the Legislator who imposeth this Oath but singly a declaration of the scrupulosity and weakness of the party why he cannot take the Oath in other terms and such Explications have been allowed by the Laws and Customs of all Nations and are advised by all Divines of whatsoever Principles for the solace and security of a Man's Conscience 2. As to that point of the Explication libelled That I am confident the Parliament never intended to impose contradictory Oaths it respects the former answer which considering the plain and down right Objections which were spread abroad and made against the Oath as containing inconsistencies and contradictions was an high Vindication of the Justice and Prudence of the Parliament 3. As to these words And therefore I think no body can explain it but for himself The plain and clear meaning is nothing else but that the Oath being imposed by Act of Parliament it was of no private interpretation And that therefore every man who was to take it behooved to take it in that sense which he apprehended to be the genuine sense of the Parliament And it is impossible without impugning common sense that any man could take it in any other sense it being as impossible to see with another mans eyes as to see with his private Reason And a mans own private sense and apprehension of the genuine sense was the only proper way wherein any man could rationally take the Oath And as to these words That he takes it as far as it is consistent with it self and the Protestant Religion The Pannel neither intended nor exprest more but that he did take it as a true Protestant and he hopes all men have taken it as such And as to that Clause Wherein the Pannel is made to declare That he does not bind up himself in his station in a lawful way to wish and endeavour any alteration he thinks to the advantage of Church or State not repugnant to the Protestant Religion and his Loyalty It is answered There is nothing in this expression that can import the least Crime or give the least umbrage for any Mistake For 1. It is most certain it is impossible to elicite any such thing from the Oath but that it was the intention of the Parliament That persons notwithstanding of the Oath might concur in their stations and in a lawful way in any Law to the advantage of Church and State And no rational man ever did or can take the Oath in other terms that being contrary to his Allegiance and Duty to His Sacred Majesty and Prince 2. There is nothing in the said Expression which does in the least point at any alteration in the Fundamentals of Government either in Church or State but on the contrary by the plain and clear words and meaning rather for its perpetuity stability and security The Expression being cautioned to the utmost scrupulosity as that it was to be done in a lawful manner that it was to be to the advantage of Church or State that it was to be consistent with the Protestant Religion and with his Loyalty which was no other but the duty and Loyalty of all faithful Subjects and which he has signally and eminently expressed upon all occasions So that how such an expression can be drawn to import all or any of the Crimes libelled passeth all Natural Understanding And as to the last words And this I understand as a part of my Oath which is libelled to be a treasonable Invasion and assuming of the Legislative Power It is answered It is most unwarrantable and a Parties declaring the sense and meaning in which he was free to take an Oath does not at all respect or invade the Legislative Power of which the Pannel never entertained a thought but has an absolute abhorrence and detestation of such practices But the plain and clear meaning is That the Sense and Explication was a part of his Oath and not of the Law imposing the Oath these being as distant as the Two Poles and which Sense was taken off the Earl's Hands and he accordingly was allowed to take his Place at the Council-Board and therefore repeats the former general Defences And to convince the Lords of Justitiary that there is nothing in the pretended Explication libelled which can be drawn to import any Crime even of the lowest size and degree and that there is no expression therein contained that can be detorted or wrested to import the same is
that he is holden as a Refuser of the Oath and liable to the Certification of the Act of Parliament of not assuming and continuing in any publik Trust And no more was intended or designed by the Act of Parliament it self than strictly to make the Oath in the true and genuine sense and meaning of the Parliament an indispensible qualification of persons admitted to publik Trust. So that it is not at all material to dispute whether the Pannel's Explication can be looked upon as a full satisfaction of the Act which whether it should or not it can import no Crime against him it not being consistent with Sense and Reason that a person who absolutely refuseth the Test upon the scrupulosity of his Conscience albeit he be not capable of publik Trust should be notwithstanding looked upon as guilty of no Crime and yet another who was willing to go a greater length albeit he did demur and scruple as to the full length that he should be reputed criminal and guilty of a Crime 2. The Pannel repeats and conjoyns with this the grounds above-mentioned contained in his Defences viz. That neither the Crimes libelled nor any other Crime were ever pretended or made use of against any others who did spread abroad Objections of an high nature which yet were so favourably looked upon as to be construed only to proceed from scrupulosity of Conscience as also the satisfaction endeavoured is in such terms and by such condescensions as do take in and justifie the whole terms of the Explication libelled It is of great moment and whereof the Lords of Justitiary are desired to take special notice both for clearing the absolute innocence of the Pannel's meaning and intention and to take off all possible misconstruction that can be wrested or detorted from the tenor and expressions of the libelled Explication That the Pannel was put to and required to take the Oath before the Lords of His Majesties Privy-Council did pass and pubish their Proclamation explaining the Oath and declaring the genuine sense and meaning thereof namely That it did not tye to the whole Articles of the Confession of Faith ratified by Act of Parliament James 6. and which as to several Articles thereof had occasioned the scruples and difficulties and alledged inconsistency and contradiction betwixt the last part of the Oath and the said Confession and betwixt some of these Articles and the Currant of the Protestant Doctrine received and contained in the Syntagma of the Protestant Confessions And therefore if the Pannel at that time did think fit for the clearing and exoneration of his own Conscience to use the expressions in the Explication libelled and yet with so much duty and confidence of the Parliaments Justice as to their meaning and intention That the Parliament never intended to impose contradictory Oaths and that he did take it so far as it was consistent with it self and the Protestant Religion not knowing then whether the whole Confession was to be reputed a part of the Oath and doubting there-anent and which the Lords of His Majestie 's Privy-Council his Sacred Majesty by his approbation since have thought a difficulty of so great moment as it was fit to clear the same by a publik Proclamation How now is it possible that any Judicatory under Heaven which proceeds upon the solid grounds of Law and Reason and who it cannot be doubted will have a just regard to the intrinsik Principles of Justice and to all mens security that they can now believe all or any of the Crimes libelled should be in the least inferred from all or any of the expressions contained in the said Explication But that on the contrary it was a warrantable allowance and Christian practice condemned by the Law and Custom of no Nation That having scruples in the matter of an Oath which should be taken in Truth Iudgment Righteousness and upon full deliberation and with a full assurance and sincerity of mind That he did plainly openly and clearly declare the sense in which he was willing to take it and if Authority did allow it as the genuine sense of the Oath the Pannel to be holden as a Taker of the Oath And if upon farther consideration Authority think not that habetur pro Recusante and a Refuser of the Oath but no ways to be looked upon as a criminal or guilty person And the Pannel repeats and conjoyns with this point of the Reply that point in his Defence whereby he positively offers to prove 1. That his Explication and the sense wherein he took the Oath was heard and publikly given and received in Council and the Pannel thereafter allowed to take his place and sit and vote in that Sederunt 2. The Pannel also offers positively to prove That the tenor and terms of his Sense and Explication wherein he did take the Oath is contained in that Solid Learned and Pious Vindication written by the Bishop of Edenburgh in answer to the Objections and alledged inconsistencies and contradictions in the Oath and which Vindication was publikly read in Council and so far approved that it was allowed to be printed and published and was accordingly dispersed and spread abroad And it is not of the least import that the Proclamation of the Lords of Privy-Council altho it does only allow the same to be taken by the Clergy yet at the same time they expresly declare the genuine sense and meaning of the Parliament not to comprehend the whole Articles of the Confession which was not cleared before the Pannel's taking his Oath And whereas it is pretended That the Acts of Parliament libelled upon against Leasing makers depravers of His Majesties Laws do obtain and take place where-ever there are any words or expressions that have a tendency in themselves or by a natural consequence and rational inferences to reflect upon the Government or misconstrue His Majesties Prooceedings and that the Explication libelled is such and that it was found so in the Case of Balmerino albeit it was drawn up by way of humble Petition and Address to His Majesty and with great Protestations and Expressions of Loyalty It is answered The Acts of Parliament libelled upon are opponed and the 43d Act Par. 8. James 6. and the other Acts making the depraving of His Majesties Laws to be Crimes do expresly require that Speeches so judged be perverse and licentious Speeches ex natura sua probrosae and reproachful and spoke animo defamandi and which could not receive any other rational Construction which cannot in the least be applied to or subsumed upon the words or Explication given in by the Pannel And Law and Reason never infers or presumes a Crime where the thing is capable of a fair and rational Construction and where it was done palam and publikly and in presence of His Majesties High Commissioner and Lords of His Majesties Privy-Council whereof the Pannel had the honour to be a Member Persons commiting and designing to commit Crimes making
the Court again adjourned And the Privy-Council wrote the following Letter to His Majestie The Councils Letter to the King desiring leave to pronounce Sentence against the Earl of Argyle May it please Your Sacred Majesty Halyrudhouse December 14. 1681. IN Obedience to your Majesties Letter dated the 15th of November last we ordered your Majesties Advocat to insist in that Process raised at your Instance against the Earl of Argyle And having allowed him a long time for his appearance and any Advocates he pleased to employ and Letters of exculpation for his Defence He after full Debate and clear Probation was found guilty of Treason Leasing-making betwixt your Majesty your Parliament and your People and the reproaching of your Laws and Acts of Parliament But because of your Majesties Letter ordaining us to send your Majesty a particular account of what he should be found guilty of before the pronouncing of any Sentence against him we thought it our duty to send your Majesty this account of our and your Iustices proceedings therein And to signifie to your Majesty with all Submission That it is usual and most fit for your Majesties service and the Advantage of the Crown that a Sentence be pronounced upon the Verdict of the Assize without which the process will be still imperfect After which your Majesty may as you in your Royal Prudence and Clemency shall think fit Ordain all farther execution to be sisted during your Maesties pleasure Which shall be dutifully obeyed by Your Majesties most Humble Most Faithful and most Obedient Subjects and Servants Sic Subscribitur Alex. St. And. Athol Douglas Montrose Glencairn Wintoun Linlithgow Perth Roxburgh Dumfries Strathmore Airlie Ancram Livingstoun Io. Edinburgens Elphingstoun Dalziell Geo. Gordon Ch. Maitland Geo Mc kenzie G. Mc kenzie Ramsay I. Drummond THE Earl as well as the Lords of privy Council waited some dayes for the Answer of this Letter But the Earl making his escape a day or two before it came I shall take occasion to entertain you in the mean time with ane account of some thoughts that the Earl had set down in writing in order to some discourse he intended to have made to the Lords of Justitiary before their pronouncing sentence And then I shall subjoyn the motives and arguments which as he hath since informed some of his friends did induce him to make his escape Which with what I have said before will give you a full account of all matters till His Majesties return came and the sentence past And first he takes notice that on Moonday the twelfth of December the day of his arraignment the Court adjourned before he was aware And it being then late about nine of the clock and after a sederunt of twelve houres He did not imagine they would have proceeded further that night But only heard afterwards that they sat it out till two or three after midnight And was surprised the next morning to understand that without calling him again or asking at him or hearing or considering his own sense of his own words they had not only found the Libel relevant but repelled his defences and with one breath rejected all his most material reasons of exculpation root and branch This seemed hard though the words had been worse and no way capable of a favourable construction which none no not the judges themselves can be so void of sense as to think really they were not and this was so far beyond all imagination that neither the Earl nor his Advocats did ever dream it could fall out though all was not said might have been said nor what was said so fully enforced as the Earls Advocats could easily have done if the case had not been thought so very clear and the Earl his innocence so obvious and apparent and they unwilling unnecessarily to irritat many concerned This great haste and strange proceeding did so surprise and astonish him as I have said that it caused him the next day when the Sentence was read to keep deep silence and suffer the Interloquutour to be pronounced the Assizers chosen and sworn and the Witnesses receaved and examined without once offering to say or object any thing or so much as inquiring at either Assizers or Witnesses whether they had not been tampered with and practised by promises and threatnings or whether some of them had not previously and publikly declared themselves in the Case and others of them had not partially advised and solicited against him Which as they are just and competent exceptions So he was able to have proven them against most of them instantly and fully And indeed as to such of the Assizers as were Councellors whom for your better information I have marked in the list of Assizers thus P. C. and had first ordered his imprisonment next signed the Letter to His Majesty and then ordered the Process and therein manifestly fore-stalled their own judgment had they done no more it was a wonder beyond parallel That neither their own honour nor the common decency of justice nor even His Majesties Advocat's interest did prevent their being impannelled on that Assize But the truth is the Earl did so far neglect and abandon himself and give way to the Court that he did not so much as open his mouth to clear himself of the Perjury laid to his charge which yet God Almighty was pleased to do by the plurality of voices of the same Assize who it appeares plainly did bear him little kindness For whereas Assizers do usually return their Verdict proven or not proven rather then guilty or not guilty and ought alwise to do so where the relevancie is in dubio and especially in a case of this nature in which the alledged treason is no ouvert act and indeed no act nor so much as a real ground of offence But plainly such a subtile chimerical and non-sensical consequence that the finding it doth quite surpass the comprehension of all unbyassed men it might have been expected that persons of their quality would have chosen the more moderate form of proven or not proven and not involved themselves unnecessarily upon Oath in adjudging the relevancy of a guilt which so few are able to imagine and none will ever make out Yet you see in their Verdict that all in one voice they did find the Earl guilty in the most positive and strong form Adding for superabundance culpable for sooth the better to demonstrate their good will Nor is it unworthy of remark that when such of the Assizers as were present at the Council declared the Earl innocent of the Perjury which His Majesties Advocate did only pretend to infer from the Earls alledged silence or not speaking loud eneugh the first day when he signed the Test. Because they heard him at the same time pronounce his explanation Yet some other Assizers that were no Councellors and knew nothing of that matter of fact but by hear-say without all regard to the witnessing of these Councellors their fellow
reproach and ranverse the standard make void the very security that the Parliament intended then to say That he swears the Test as it agrees with it self the Protestant Religion which imports no such insinuation But from these pleasant Principles He jumps in to this Fantastik Conclusion That therefore it cannot be denyed but the Earl's interpretation destroyes not only this Act but all Government and makes every mans conscience or humour the Rule of his obedience But first as to the whole of his arguing the Earl neither invents sayes nor does any thing except that he offered his Explanation to the Council which they likewise accepted 2ly What mad inferences are these You say you will explain this Oath for your self therefore you overturn all Government and vvhat not Whereas it is manifest on the other hand that if the Earl apprehending as he had reason the Oath to be ambiguous and in some things inconsistent had taken it vvithout explaining it for himself or respect to its inconsistency it might have been most rationally concluded that in so doing he was both impious and perjured 3ly It is false that the Earl doth make his Conscience any other way the rule of his obedience then as all honest men ought to do That is as they say To be Regula regulata in conformity to the undoubted Regula regulans the eternal rules of truth and righteousness as is manifest by his plain words As for what the Advocate insinuats of humour insteed of Conscience it is very well known to be the Ordinary reproach whereby men that have no Conscience endeavour to defame it in others But the Advocate is again at it and having run himself out of all consequences he insists and inculcats that the Earl hath sworn nothing But it is plain that to swear nothing is none of the crimes libelled 2ly The Earl swears positivly to the Test as it is consistent vvith it self and the Protestant Religion which certainly is something unless the Advocate prove as he insinuats that there is nothing in the Test consistent with either And 3ly if the Protestant Religion and the Earl his reference to it be nothing then is not only the Council sadly reproached who in their Explanation declare this to be the only thing sworn to in the first part of the Test but our Religion quite subverted as far as this Test can do it But next for the treason the Advocate sayes That the Earl expresly declares he means not by the Test to bind up himself from vvishing or endeavouring in his station and in a lavvful vvay any alteration he shall think for the advantage of Church or State whereby sayes he the Earl declares himself and others loosed from any obligation to the Government and from the duty of all good Subjects and that they may make vvhat alterations they please A direct contrariety insteed of a just consequence as if to be tyed to Lavv Religion and Loyalty were to be loosed from all three can there be a flatter and more ridiculous contradiction Next the Advocate pretends to found upon the fundamental Laws of this and all nations whereby it is treason for any man to make any alteration he thinks fit for the advantage of Church or State But first The Earl is not nor cannot be accused of so much as wishing much less endeavouring or making any alteration either in Church or State only he reserves to himself the same freedom for wishing which he had before his Oath and that all that have taken it do in effect say they still retain 2ly For a man to endeavour in his station and in a lavvful vvay such alterations in Church or state as he conceives to their advantage not repugnant to Religion and Loyalty is so far from being treason that it is the duty of every subject and the Svvorn duty of all His Majesties Councellors and of all Members of Parliament But the Advocate by fancying and misapplying Lavvs of Nations wresting Acts of Parliaments adding taking away chopping and changing words thinks to conclude what he pleases And thus he proceeds That the treason of making alterations is not taken off by such qualifications of making them in a lavvful vvay in ones station to the advantage of Church or State and not repugnant to Religion or Loyalty But how then Here is a strange matter Hundreds of alterations have been made within these few years in our Government in very material points the Kings best Subjects and greatest Favourits have both endeavoured and effectuat them And yet because the things were done according to the Earl's qualifications insteed of being accounted treason they have been highly commended rewarded The Treasury hath been sometimes in the hands of a Treasurer sometimes put into a Commission backward and forward And the Senators of the Colledge of Iustice the right of whose places was thought to be founded on an Act of Parliament giving His Majestie the Prerogative onely of presenting are now commissioned by a Patent under the great Seal both which are considerable alterations in the Government which some have opposed others have vvished and endeavoured and yet without all fear of treason on either hand only because they acted according to these qualifications in a lawful way and not repugnant to Religion and Loyalty But that which the Advocate wilfully mistakes for it is impossible he could do it ignorantly is that he will have the endeavouring of alteractions in general not to be of it self a thing indifferent only determinable to be good or evil by its qualifications as all men see it plainly to be but to be forsooth in this very generality intrinsecally evil a notion never to be admitted on earth in the frail and fallible condition of human affairs And then he would establish this wise Position by an example he adduces That rising in arms against the King for so sure he means it being otherwise certain that rising in arms in general is also a thing indifferent and plainly determinable to be either good or evil as done with or against the Kings Authority is treason and sayes If the Earl had reserved to himself a liberty to rise in arms against the King though he had added in a lavvful manner yet it would not have availed because and he sayes well This being in it self unlavvful the qualifications had been but shamms and contrariae facto But why then doth not his own reason convince him â—here the difference lyes viz. That rising in arms against the King is in itself unlawful whereas endeavouring alterations is only lawful or unlawful as it is qualified and if qualified in the Earl's Terms can never be unlawful But sayes the Advocate The Earl declares himself free to make all alterations and so he would make men beleeve that the Earl is for making All or Any without any reserve whereas the Earl's words are most express that he is Neither for making all or any but only for wishing and
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