clear that it is Treason to attempt against the Security of the Government l 2. ff ad l. Iul. Majest But so it is that he who reserves to himself a Power to Reform attempts against the Security of the State Which is clear by all the Civilians Amongst whom I shall only cite Arniseus ad securitatem Majestatis Reipublicae quietem nihil excogitari potest efficacius quam si summa religionis inspectio Majestati reservetur My third Argument in Fortification of the Statutes formerly insisted on at the Debate And for farther clearing the extent of that Alleadgance that is required by the common Law is founded upon Act 2. Ses. 2. Par. 1. Ch. 1. The very words whereof are Therefore the Kings Majesty and Estates of Parliament Declare that these Positions That it is lawful to Subjects upon pretence of Reformation or other pretence whatsoever to enter into Leagues or Covenants or to take up Arms against the King or that it is lawful to Subjects pretending his Majesties Authority to take up Arms against his Person or these Commissiona'ed by him Or to suspend him from the Exercise of His Royal Government Or to put limitations on their due Obedience and Alleadgance are Rebellions and Treasonable In which Words it is observable that it is not the doing of these Deeds but the very asserting of these Positions that it is Treason 2ly That no pretence or caution adjected to these Positions can defend them from being Treasonable 3ly That the Parliament thought it not sufficient to acquiesce in the special Enumeration But so Jealous were they of such Tricks that they subjoyn this general Clause That it shall be Treason to put Limitations on their due obedience and alleadgance From which Words I infer most clearly that for a Subject to declare he is not Tyed up To wish or endeavour any alteration is Treason whatever pretence it be done upon For any alteration comprehends all alterations and what man of common Sense or Ingenuity can deny but this is a putting Limitations upon his Obedience and Alleadgance which is here declared Treason For what is a greater Limitation than to reserve to himself to be Judge how far he is Tyed And what Expression or Limitation can be Treason by this general Clause if this be not Or of what use can this general Clause be if it secure not against such Limitations as this Nor do I think this Limitation wherein the Earl still reserves to himself to be Judge a greater Security to the King or Kingdom than if a man should tell me that he would lock my Money in a secure place but would keep the Key of it himself In which case I am sure he and not I were Master of that ney 2ly It being then Treason for any man to reserve to himself the Power of making such alterations as he shall think for the advantage of Church and State viz. not repugnant to my Loyalty and the Protestant Religion The adjecting these Cautions cannot hinder this Paper to be Criminal else 1. The Covenant had not been Criminal for the very Words of this Caution are in Covenant The very Words of the Covenant being Art 1. That we shall endeavour in our several Places and Callings the Preservation of the reformed Religion And Art 3. We shall with the same sincerity reality and constancy endeavour to preserve and Defend the Kings Majesties Person and Authority In the Preservation and Defense of the true Protestant Rèligion That the world may bear witnesse with our Consciences of our Loyalty and that we have no Thoughts nor Intentions to diminish His Majesties just Power or greatness Here are the very same Expressions accompanied with many moe in favours of the King 2ly That cannot be a sufficient Caution against Treason which never hindred any man to commit Treason but so it is that notwithstanding of these Words all the Covenanters own'd that they might lawfully rise in Arms hold Parliaments impose Taxes and Oaths enter into Leagues with forraign Princes Hang and Head for Serving the King c. Ergo These Words are not a sufficient Caution when subjoyn'd as a Caution to the power of Reforming Which is uncontraverted Treason in its self And did the great Protestations of Loyalty annexed to the Lord Balmerino's Petition defend it from being condemn'd 3ly Do we not see dayly that these who Rebelled in anno 1666 and 1679 did openly own That they lov'd the King as well as their Accusers did But when he was in opposition to Religion it was lawful to rise in Arms against Him So litle Security has the King in flowrishing Professions when the Prosessors are to be Judges 4ly The adjecting of this Protestation is called by Lawyers protestatio contraria facto Which kind of Protestation all Lawyers under Heaven reject as inconsistent with the thing to which they are adjected And thus the League of France was Treason though they did assert under the deepest Protestations the sincerest Loyalty 5ly By the foresaid 4. Act Par. 1. Ch. 2d All Glosses put upon the Laws of this Nation in the late Rebellious Parliaments to the prejudice of their Alleadgance are declared to be false and disloyal and contrary to the true and genuine meaning of these Acts. And particularly that Gloss or Explanation that what they did was for the Preservation of Religion Which is the very Explanation put by the Earl upon this Oath And from which it clearly follows by a demonstrative consequence that Explanations and Glosses put upon Oaths and Acts of Parliament contrary to the meaning of the Acts themselves are not to be respected And being in Law holden and repute as unlawful they are so far from defending the Contraveeners that they are themselves lookt upon as new Crymes From all which it clearly follows that the Earl having reserved to himself in this Explanation a power to endeavour what he should think to the advantage of Church and State He did thereby commit Treason and that this Treason is not taken off by the Cautions adjected viz. The not Repugnancy to the Protestant Religion and his own Loyalty Whereas it is pretended First That Treason requires a special Law from which it ought to be inferred I deny this Position for our Lybels are oftimes found Relevant on the common Law and the Laws and Customs of Nations and the nature of the Monarchy There was Treason before there was Law for how soon Kings were Elected it was Treason to rise in Arms against them or to Murder or Betray them and many of our Laws being but lately made declare oft times what has been Treason not for necessity but for the better Information of the Leidges And though we have Laws declaring it Treason to seek Benefices at Rome yet we have none declaring it Treason to assume the Title or Power of the King in general that being inherent in the nature of the Monarchy it self Treason is the Fense of the Government as Murder is of
Martyr'd and being himself Banish'd Pardon'd even His Fathers Murderers And granted not only Pardons but Indulgences after two inexcusable Rebellions And it was very wonderful to see His Royal Brother this formidable Tyrant in our Pamphlets pleading for Pardon even to such as owned a hatred against all the Royal Family Nor can it be deny'd but there is a gentleness in the old Cavalier Party which demonstrats that they are in the Right And which is infinitly preferable to that soure Cruelty and morose bitterness which make the insolent Republicans and bigot Fanaticks humourous and dangerous And as a Monarch the true father of his Subjects thinks it generous to Pardon so Republicans must be Cruel to shew a Zeal for the Rabble which they Serve Nor do I ever hear that any of those publick Spirited Authors do turn the Edge of their Zeal against Ignoramus juries false Witnesses lying Scriblers against the Government assassinats c. I am now come to take notice of a late Pamphlet called The Scots-mist wherein because the late Earl of Argyl's Process is founded upon Points in jure and consequently not so obvious to the consideration of every Unlearn'd Man the Author takes pains to make it appear an unanswerable Instance of the Arbitrariness of our Judges But before I answer his weak Reflections in Law I must take notice of some few Particulars in Fact As first His Judges were not Judges in a Packt Commission but the learn'd and Ordinary Iudges of the Nation 2ly What Temptation could the King or any who Served Him have to streatch Law in that case for that as to his Life there was no design is clear from the express Order His Royal Highness gave not to keep him strictly after he was found guilty Though great presumptions were offered to that generous Prince of a design'd Escape And himself ordour'd in Council that the most Learned Advocats in Scotland should be prest to appear for him Nor was ever a Prisoner us'd either by Judges or by the Kings Advocat with so much discretion and respect 3ly His Jurisdictions nor Estate could be no Temptation for the late Advocat had Represented such Reasons against his Right to these Jurisdictions and Superiorities as no man under Heaven could answer with any shadow of Reason And the King got not one farthing of his Estate for His Royal Highness by his generous Interposition procur'd more of it for his Children then belonged to the Family Debts being payed And the remainder was gifted by our gracious and inimitable King amongst the Creditors And the Tithes possest by that Earl returned to the Church Happy Kingdom wherein the greatest Instance of Arbitrary Government is a Person who having nothing to lose save what the King gave had a fair Tryal by sworn Judges and Jurors and lost upon the Event neither Life nor Fortune And whose Family after three capital Sentences two by Parliaments and one by a Solemn Iustice Court is left without envy in a better condition then almost any who Serv'd the King in His great Extremities 4ly All these Narratives and Apologies are founded on great mistakes as if the Earl had been desired to take the Test for we desire no man but men in Office desire it because they cannot enjoy their Offices till they take it And that the Council was once pleased with the Explanation he gave as if he had given in an Explanation and the Council being pleased with it allowed him to take it in these Terms Whereas the true cas was that the Earl had assured both His Royal Highness and many others that he would not take the Test. Notwithstanding whereof coming in abruptly to the Council he spoke something with so slow a Voice that none say they heard him and then clapping down-on his Knees took the Test but some Copies being dispersed of what he said all Loyal Men murmured at the preparative as tending to destroy not only the Parliaments design in the Test but to unhing all Government And the greatest Fanaticks in Scotland owned they would take it in that Sense without prejudice to their Principles and so they might being allowed not to bind up themselves from endeavouring any alteration they should think fit for the advantage of Church and State Which made the Oath no Oath and the Test no Test. And therefore the next day when he offered to take the Test as a Commissioner of the Thesaury he was desired first to give in his Explanation which when he gave it in it was enquir'd if any man had heard that Explanation made in Council and no man did remember he heard or understood it so And thereafter it was Voted not satisfactory And albeit His Majesties Advocat allowed the Earl to prove that the Council heard and approved it yet his Lordship failed in the Probation and it is absurd to think the Council would have allowed an Explanation which would have Evacuated the whole Act and the design of the Parliament in it as shall fully hereafter be prov'd Whereas if the Earl had only designed to Exoner his Conscience he might either have abstained for no man is obliged to take the Test or if he had resolved to know if his meaning would have been acceptable he might have given his Sense and petitioned to know if that was acceptable which had been a fair and sure way both for Takers and Rulers Whereas first to take and then give in his Explanation is a certain way to secure ones own Employments and a preparative to let in any let their Principles be what they please if they have the Wit to Salve their Principles by apposit Explications and the dispersing Copies of that Paper before it was presented in Council cannot be said to have been done for Exonering his own Conscience but is the ordinary way that men take when they resolve to Defame the Government Nor is our Government so unreasonable as not to desire to satisfie such as scruple without ill Designs And this they shew in satisfying some of the Orthodox Clergy who offered modestly some Scruples against the inconsistency of the Confession of Faith with Episcopacy And which Scruples being easily cleared they all obeyed save nineteen or twenty in the whole Kingdom at most some whereof had also inclinations however to the good old Cause Nor can I pass by here a strange abuse put upon the World in that Pamphlet as if those scruples there set down were only the Scruples of the conform Clergy whereas many Papers bearing that Title were drawn by the Presbyterians and found amongst their Papers and the Paper ascryb'd to them in that Book wants the chief Objection they stuck at viz. That the Compylers of that Confession of Faith were Enemies to Episcopacy and in place thereof it asperses our present Episcopacy the Kings Supremacy and the Act of the Succession which the conform Clergy never did For clearing this Process modestly and meerly in defense of our Judges I shal first set
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
and the Earl himself still the only Judge And I am desirous to know in what part of Europe such qualities were ever allowed It is also very absurd to contend that the adjecting of these qualities can put the Taker in no worse case then if he had refused the Test. And since that cannot amount to a Crime so neither can this For it is contended that these qualities do infer a misinterpreting of the Kings Laws and a Defaming of the Parliament And it is most absurd to think that such things as these should be suffered because they are thrown in into Explications For else under the pretence of Explaining Oaths we should have virulent Libels dayly against King and Palliament Nor can I see why Equivocations and Mental Reservations should be condemned if this be allowed for such as take the Test or any other Oath may at the taking of them Evacuat the Obligation of the Oath by adjecting such qualities And it is all one to the Legislator whether he be openly or secretly abas'd Only this I must observe that the open Abuse is the greater because it adds publick Contempt to the design'd Cheat And whereas it is pretended that the Magistrat may choose whether he will admit of the quality or not which he cannot do in mental Equivacations To this it is answered that that could only hold if the qualities adjected to the Oath were first offered by way of Petition to the Magistrat that it might be known whether he would allow of them which was not done in this Case wherein without ever applying to the King or Council The Earl did by his own Authority Swear in his own Terms Though the Council and the Reverend Bishops took pains to satisfie some scrupulous Ministers whose Scruples were in Favours of the Government and got them the Kings Sense and told them their own And which indeed was the genuine Sense of the Parliament Yet that did not at all allow the Earl or any privat man to take it in a Sense Inconsistent with the Oath And that too without previously offering his doubt to the King and Council And geting their Approbation as said is Nor were they allowed to take it in such general Terms as did â—â—â—ecure the Legislator and admit the Takers to be Judges The second Cryme fixt'd upon the Earl from this Paper is That albeit by the 10 Act Par 10 Ia 6 It is Satute That none of His Majesties Subjects presume nor take upon hand publickly to Declaim or privatly to Speak or Write any purpose of Reproach or slander of His Majesties Person Estate or Government or to Deprave His Laws and Acts of Parliament or misconstruct His Proceedings whereby any misliking may be mov'd betwixt his Highness and his Nobility and loving Subjects in time coming under the pain of death Certifying them that do in the contrair they shall be repute as seditious and wicked Instruments enemies to his Highness and the common well of the Realm and the pain of death shall be Execute against them with all rigour in example of others Yet true it is that the said Earl did endeavour all that in him lay to Defame the King and Parliament and Test in so far as he did declare That he would give Obedience to it as far as he could Which imported that the Parliament had made an Oath which could not be absolutely obeyed And though the Parliament never intended to impose contradictory Oaths yet no body can Explain it but for himself Which did clearly import that though the Parliament design'd not to make an Oath that was contradictory yet they had made one that was indeed contradictory And could not be made Sense without privat Reconciliations and Explications And by saying that he took this Oath only as far as it was consistent with it self and the Protestant Religion he did clearly declare to all the world that he thought it in some things inconsistent with it self and the Protestant Religion And since there is nothing concerns Governours more than to have themselves esteemed by the people without which or numerous Armies Government cannot subsist And therefore our Parliaments have in place of Armies consented in the former excellent Statute that whosoever shall endeavour to deprave the Laws or misconstruct the proceedings of King and Parliament shall be punished to the death And what can be a greater reflection upon King and Parliament in the age wherein we live than to have made Laws which cannot be obeyed and which are inconsistent with the Protestant Religion And there was no man that ever hear'd that Paper except this Author but did conclude that upon the matter the people would from it entertain those scruples Nor are these the inferences of people that live far from the Sun as the undiscreet Author does object against this Nation But men must be as disingenuous as he not to confess that these are most just and natural Inferences And the Inferences are so much the stronger that both this Author and all such as were enemies to the Test did take pains to make the People believe that the Contrivers of the Test were in so far friends to Popery and consequently there was nothing drawn from this Paper by Inferences but that which was too publickly owned by all who were in the same Circumstances with him who gave it in Mr. Mist in answer to this part of the Accusation does first cry out that Crymes must not be inferred by Inferences and Insinuations seing these may be unjustly drawn against the design of the Party accus'd And no man could be secure if men could be made Criminal upon Insinuations and Inferences And this Paper having been given only for the Exoneration of his Conscience it is not capable of any such Misconstruction nor ought any such Construction be made except where a malitious Design can be proved in the Person accused To which it is answered That the Parliament having been very jealous of the honour of the Government which ought to be Sacred They discharg'd in general all such Words and Papers whereby any mislyking might be mov'd betwixt the King and his Subjects And therefore since the effect was the thing they lookt to and that it is all one to the Government what the Authors design was if the effect was wrought and the dislike moved They therefore ordained the effect to be punished without adding as they do in other cases that whosoever shall malitiously or upon design Write or Speak and it is very well known that there are no Papers so dangerous nor no Satyre so bitter as these which are coloured with specious pretexts of Conscience Respect and Kindness And upon this accompt it was that by the 9 Act Par 20 Ia 6 All Papers that tend to renew the remembrance of the former feeds betwixt the two Nations shall be punishable And what can be more justly called Insinuations and Inferences then Tendencies are And if the people be abus'd and inflam'd what
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
privat mens Lives and to rise in Arms was Treason before the Statute King Ia. 1. Nor have we yet any clear Statute against Murder and if special Statutes were requisit in every case of Treason the greatest Treason should often escape unpunished For Law thought it unnecessary to provide against these and every age produces new kinds of Treasonable Extravagancies and Traitors would easily elude and cheat the express Words of a Statue if that were all that were necessary But who can deny that the Justices condemned a man justly for Treason for saying when he was askt if the King was a Tyrant let his Coronation Oath and his Actions and particularly his usurping over the Church of Christ be compared and that will be soon known And yet here was no explicite assertion but yet what all men easily understood and which reproacht and mis-represented the King as much as any open Expression and there was no Statute condemning that Expression expresly nor can there be a Law for every Expression But yet the Earls Treason is founded upon the express Statute abovementioned And whereas it is pretended 2ly That the Earl might have as a Privy Counsellor propos'd any thing to the King and so a Reservation was necessar upon that account To this it may be easily answered that no Oath does hinder a man from doing what is Lawful and so there needed be no Reservation nor Exception upon that or the like Consideration For an Exception must be of some thing that could oppose the Rule But so it is the Oath which is the Rule in that Case did not exclude any lawful Endeavours at the desire or command of the Prince and so there needed no Exception as to these But the former argument still Recurs viz. He that will not bind himself up as to any thing reserves a power as to all things or at least it must be Interpret of unlawful things For lawful things need no exception And if this were sufficient then the Parliament did unjustly in declaring that it is Treason to put limitations on our alleadgance and that notwithstanding of any pretence whatsoever Nor could any man commit Treason if that were allowed for he himself would be still Judge And whereas it is pretended 3ly That he disclaims the Covenant and rising in Arms expresly in this Oath and so he could not reserve any thing as to these It is answered that this were undenyable if he took the Oath simply but having taken the Oath only In so far as it is consistent with it Self and the Protestant Religion This Oath does not tye him if he think the Protestant Religion shall require rising in Arms. And having taken the Covenant if he still thinks the Covenant binds him he renunces it not by his Oath For this Oath tyes him only as far as he can that is to say as far as he is free and no man is free who thinks himself bound And taking it only as far as it is consistent with it self God only and the Earl knows how far that is for he has not told us how far it is consistent with it self and very probably such as have taken the Covenant think not that Oath consistent with the Protestant Religion in so far as it binds us not to take up Arms if the Protestant Religion be in danger and the Antitesters Papers Printed by Mr. Mist tell us plainly that it is not consistent with it self in so far as we swear to own the Successor though differing in Religion from us And yet we swear to the preservation of the Laws of which the Coronation Oath is one But whatever might have been said in defense of such Limitations before we saw what dreadful effects they had produced both in the last age and this And that Parliaments had so severely condemned them as Treason It is the duty of Judges to be severe to such as use them and they have only themselves to blame who split on a Rock when they see a Beacon set up to them And it is much safer for the Common-wealth that such Papers be punished then that it should be in danger by such Reservations as leave every man Judge how far he is oblieged to Obey And as there is great danger to the State on the one hand if it passe unpunished So there is none on the other seing men may be secure in abstaining from such Expressions and Papers And there was never any so unnecessary as this was And might not Strangers and our own Posterity think all the miseries that should fall on us by Rebellions and Civil Wars very just punishments of our senselesse Security if after we had not only seen but felt the mischief of such Glosses We stood still unconcernedly as men seing their own House set on fire by the same hands which had help't to burn it formerly If any by Ignorance or Error stumble into a Legal tho undesign'd Crime The Law allows not Judges by an insolent pity to justifie the Guilt but suffers the King by a Judicious Clemency to mitigat or remit the Punishment In which the Subjects under Monarchy are much happier than these of a Common-wealth where in many cases the Law must be cruel or Judges must be Arbitrary This is that sure City of Refuge into which no man who flees perisheth And if the Earl of Argile had come in Will during the Debate as use is I am sure he had been Securer there than by his Defenses But why should I admire that this Author and those of his Principles do not see that this Paper is Treason Since I dare say they will not acknowledge that it is Treason to oppose the Succession and to say that it can be altered by a Parliament and yet our Parliament unanimously thought that to be Treason And in the last age they thought it not Treason but duty to rise in Arms against the King and to Call Parliaments without him Though all the World abhorr'd us for it So that the fault is not in our Parliaments and Judges but in the depraved Sense and debauched Intellectuals of such as have by a long Custom of hating Authority bred in themselves also a hatred of every Person and thing that can maintain it Since then GOD Almighty amongst the other Miracles which he has wrought for his Darling as well as Representative CHARLES THE MERCIFUL begins to open the Eyes of the Blind and to make some who were Crooked Walk Straight Let us who Serve this gracious Monarch Reason whilst His Enemies Rail and be Just whilst they are Extravagant but withal let us be asham'd that they dare do more for Humour and Errors than we for Duty and Law and we may expect amongst other Rewards which the Rabble has not to bestow that we will get also that Applause which is alwise the Slave of Victory and which of late seem'd to Fan them so pleasantly meerly because they were like to prevail And for which too many of late sacrific'd their Honour and Loyalty VVithout remembring that tho just Applause is an Elogie VVritten by the Hand of Vertue and a Monument Built of solid Merit Yet that Applause which is unjust is only a sweet Poyson a plausible Cheat and the Dream of one who is Drunk FINIS