word of God be the certain and infallible signs of the true Kirk we mean not that every particular person joyned with such company be an elect member of Christ iesus For we acknowledg and confess that dornel cockle and chaff may be sown grow and in great abundancely in the midst of the wheat that is the Reprobate may be joyned in the society of the Elect and may externally use with them the benefits of the word and Sacraments But such being but temporal professors in mouth but not in heart do fall back and continue not to the end And therefore have they no fruit of Christs Death Resurrection nor Ascension but such as with heart unfeignedly believe with mouth boldly confess the Lord Iesus as before we have said shall most assuredly receive these gifts First In this life remission of sins and that by only Faith in Christs blood in so much that albeit sin remains and continually abides in these our mortal bodies yet it is not imputed unto us but is remitted and covered with Christs Justice Secondly in the general Judgment there shall be given to everyman and woman resurrection of the flesh for the Sea shall give her dead the Earth these that therein be inclosed yea the Eternal God shall stretch out his hand on the dust and the dead shall arise uncorruptible and that in the substance of the self-same flesh that every man now bears to receive according to their works glory or punishment For such as now delight in vanity cruelty filthiness superstition or idolatry shall be adjudged to the fire unquenchable in which they shall be tormented for ever as well in their bodies as in their souls which now they give to serve the Devil in all abomination But such as continue in well-doing to the end boldly professing the Lord Jesus we constantly believe that they shall receive glory honour and immortality to reign for ever in life everlasting with Christ Iesus to whose glorified body all his Elect shall be made like when he shall appear again in Iudgment shall render up the Kingdom to God his Father who then shall be and ever shall remain in all things God blessed for ever To whom with the Son and with the Holy Ghost se all honour and glory now and ever So be it Arise O Lord and let thine enemies be confounded let them flee from thy presence that hate thy godly Name Give thy Servants strength to speak thy VVord in boldnessâ— and let all Nations cleave to thy true Knowledge Amen Thir Acts and Articles were read in the face of Parliament and ratified by the three Estates at Edinburgh the 17. day of August the year of God 1560. years Act I. 6. P. 1. C. 8. Anno 1567. Anent the Kings Aith to be given at His Coronation ITem Because that the increase of vertue suppressing of Idolatrie craves that the Prince and the People be of ane perfite Religion quhilk of Gods mercie is now presently professed within this Realm Therefore it is statute and ordained be our Soveraign Lord my Lord Regent and the three Estates of this present Parliament that all Kings and Princes or Magistrats whatsoever holding their place quhilk hereafter in any time sall happen to reigne and bear rule over this realm at the time of their Coronation and receipt of their Princely Authoritie make their faithfull promise be aith in presence of the eternal God that during the haill course of their lives they sall serve the samin eternall God to the uttermost of their power according as he hes required in his maist haly Word revieled and contained in the new and auld Testaments And according to the samin word sall maintaine the trew Religion of Christ Iesus the preaching of his halie word and due and right ministration of the Sacraments now received and preached within this realme And sall abolish and gainstand all false Religion contrare to the samin And sall rule the people committed to their charge according to the will and command of God revealed in his foresaid Word and according to the laudable Lawes and Constitutions received in this realme nawise repugnant to the said Word of the eternal God And sall procure to the uttermaist of their power to the Kirk of God and haill Christian people trew and perfite peace in all time cumming The Rights and rents with all just Priviledges of the Croun of Scotland to preserve and keep inviolated nouther sall they transfer nor alienate the samin They sall forbid and represse in all estates and degrees reife oppression and all kinde of wrang In all judgements they sall command and procure that justice and equitie de keeped to all creatures without exception as the Lord and father of all mercies be mereyful to them And out of their Lands and Empyre they sall be carefull to root out all heretikes and enemies to the trew worship of God that shall be convict be the trew Kirk of God of the foresaid crymes And that they fall faithfullie affirme the things above written be their solemn aith Act. J. 6. P. 1. C. 9. Anno 1567. No person may be judge Procurator Notar nor Member of Court quha professis not the Religion ITem The Kings grace with advice of my Lord Regent and the three Estates of this present Parliament statutes and ordains That no manner of person nor persons be received in any times hereafter to bear publick office removabill of judgment within this Realm but sik as profess the puritie of Religion and Doctrine now presently established And that nane be permitted to procure nor admitted Notar or created a Mâ—mber of Court in any time coming without he in likewise professe the Evangel and Religion foresaid Providing alwayes that this Act be on no wise extended to any manner of person or persons havand their offices heritable or in life-rent but that they may use the samin conforme to their infeftments and dispositions granted to them thereof Which Act was thereafter Anno 1609. explained and extended in this manner Part of the Act I. 6. P. 2. C. 5. Anno 1609. intituled c. AND that the Act made in His Highness first Parliament bearing that nane that professe not the true Religion presently professed within this Realm may be judge Procurator or Member of Court be extended to all and whatsomever offices without any exception or restriction in all time coming Act. J. 6. P. 3. C. 47. Anno 1572. Adversaries of the true Religion are not Subjects of the King Of Apostats ITem Forsameikle as there hes been great rebellion and disobedience against our Soveraign Lords authoritie in time bypast and seeing the cause of Gods true Religion and His Highness authoritie foresaid are so joyned as the hurt of the ane is common to baith It is therefore declared statute and ordained by our Soveraign Lord with advice and consent of his Regents grace with the three Estates and hail bodie of this present Parliament That
lawful for you to make to your self an Act of Parliament since he who can make any part of an Act may make the whole the Power and Authority in both being the same Of the which Crimes above-mentioned you the said Archibald Earl of Argyle are Actor Art and Part which being found by the Assize you ought to be punished with the pains of Death for faulture and escheat of Lands and Goods to the terror of others to commit the like hereafter An Abstract of the several Acts of Parliament upon which the Indictment against the Earl of Argyle was grounded Concerning Raisers of Rumors betwixt the King and his People Chap 20. 1. Statutes of King Robert 1. IT is defended and forbidden That no man be a Conspirator or Inventer of Narrations or Rumors by the which occasion of discord may arise betwixt the King and his People And if any such man shall be found and attainted thereof incontinent he shall be taken and put in Prison and there shall be surely keeped up ay and while the King declare his will anent him Act 43. of Par. 2. King James 1. March 11. 1424. Leasing-makers for fault Life and Goods Item it is ordained by the King and whole Parliament that all Leasing makers and tellers of them which may engender discord betwixt the King and his People wherever they may be gotten shall be challenged by them that power has and tyne Life and Goods to the King Act 83. Par 6. James 5. Dec. 10. 1540. Of Leasing-makers ITem Touching the Article of Leasing-makers to the Kings Grace of his Barons Great-men and Leidges and for punishment to be put to them therefore the Kings Grace with advice of his three Estates ratifies and approves the Acts and Statutes made thereupon before and ordains the same to be put in execution in all Points and also Statutes and ordains That if any manner of person makes any evil Information of his Highness to his Barons and Leidges that they shall be punished in such manner and by the same punishment as they that make Leasings to his Grace of his Lords Barons and Leidges Act 134. Par. 8 James 6. May 22. 1584. Anent Slandereres of the King his Progenitors Estate and Realm FOrasmuch as it is understood to our Soveraign Lord and his Three Estates assembled in this present Parliament what great harm and inconveniency has fallen in this Realm chiefly since the beginning of the Civil Troubles occurred in the time of His Highness minority through the wicked and licentious publik and private speeches and untrue Calumnies of divers of his Subjects to the disdain contempt and reproach of His Majesty his Council and Proceedings and to the dishonour and prejudice of His Highness his Parents Progenitors and Estate stirring up His Highness's Subjects thereby to misliking sedition unquietness and to cast off their due obedience to His Majesty to their evident peril tinsil and destruction His Highness continuing always in love and clemency toward all his good Subjects and most willing to seek the safety and preservation of them all which wilfully needlesly and upon plain malice after His Highness's mercy and pardon oft-times afore granted has procured themselves by their treasonable deeds to be cut off as corrupt Members of this Commonwealth Therefore it is statut and ordained by our Soveraign Lord and his Three Estates in this present Parliament that none of his Subjects of whatsoever Function Degree or Quality in time coming shall presume or take upon hand privately or publikly in Sermons Declamations and familiar Conferences to utter any false slanderous or untrue speeches to the disdain reproach and contempt of His Majesty his Council and Proceedings or to the dishonour hurt or prejudice of His Highness his Parents and Progenitors or to meddle in the Affairs of His Highness and his Estate present by-gone and in time coming under the pains contained in the Acts of Parliament anent makers and tellers of Leesings certifying them that shall be tryed contraveeners thereof or that hear such slanderous speeches and reports not the same with diligence the said pain shall be executed against them with all rigour in example of others Act 205. Par. 14 King James 6. June 8. 1594. Anent Leasing-makers and Authors of Slanders OUr Soveraign Lord with advice of his Estates in this present Parliament ratifies approves and for His Highness and Successors perpetually confirms the Act made by his Noble Progenitors King James the First of Worthy Memory against Leasing-makers the Act made by King James the Second entituled Against Leasing-makers and tellers of them the Act made by King James the Fifth entituled Of Leasing-makers and the Act made by his Highness's self with advice of his Estates in Parliament upon the 22 day of May 1584. entituled For the punishment of the Authors of Slanders and untrue Calumnies against the Kings Majesty his Council and Proceedings to the dishonour and prejudice of His Highness his Parents Progenitors Crown and Estate as also the Act made in His Highness's Parliament holden at Linlithgow upon the 10 of December 1585. entituled Against the Authors of slanderous speeches or Writs and statutes and ordains all the said Acts to be published of new and to be put in execution in time coming with this addition That whoever hears the said Leasings Calumnies or slanderous Speeches or Writs to be made and apprehends not the Authors thereof if it lyes in his power and reveals not the same to His Highness or one of his Privy-Council or to the Sheriff Steward or Bayliff of the Shire Stewards in Regality or Royalty or to the Provost or any of the Bayliffs within Burgh by whom the same may come to the knowledg of his Highness or his said Privy-Council wherethrough the said Leasing-makers and Authors of slanderous Speeches may be called tryed and punished according to the said Acts The hearer and not apprehender if it lye in his power and concealer and not revealer of the said Leasing-makers and Authors of the said slanderous Speeches or Writs shall incur the like pain and punishment as the Principal Offender Act 107. Par. 7. King James 1. March 1. 1427. That none interpret the Kings Statutes wrongously ITem The King by deliverance of Council by manner of Statute forbids That no man interpret his Statutes otherwise than the Statutes bear and to the intent and effect that they were made for and as the maker of them understood and whoso does in the contrary shall be punished at the Kings will Act 10. Par 10. King James 6. Dec. 10. 1585. Authors of slanderous Speeches or Writs should be punished to the death IT is statuted and ordained by our Soveraign Lord and Three Estates That all his Highness's Subjects content themselves in quietness and dutiful obedience to his Highness and his Authority and that none of them presume or take upon hand publikly to declaim or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate
evident from that learned Vindication published and spread abroad by an eminent Bishop and which was read in the face of the Privy-Council and does contain expressions of the same nature and to the same import contained in the pretended Explication libelled as the ground of this Indictment libelled against the Pannel And it is positively offered to be proven That these terms were given in and read and allowed to be Printed and without taking notice of the whole tenor of the said Vindication which the Lords of Justiciary are humbly desired to peruse and consider and compare the same with the Explication libelled the same acknowledgeth that Scruples had been raised and spread abroad against the Oath and also acknowledgeth that there were Expressions therein that were dark and obscure and likewise takes notice that the Confession ratified Par. 1 James 6. to which the Oath relates was hastily made and takes notice of that Authority that made it and acknowledges in plain terms that the Oath does not hinder any regular endeavour to regulate or better the Establisht Government but only prohibits irregular endeavours and attempts to invert the substance or body of the Government and does likewise explain the Act of Parliament anent His Majesties Supremacy that it does not reach the alteration of the external Government of the Church And the Pannel and his Proctors are far from insinuating in the least that there is any thing in the said Vindication but what is consistent with the exemplary Loyalty Piety and Learning of the Writer of the same And tho others perhaps may differ in their private opinion as to this interpretation of the Act of Parliament anent the Kings â—upremacy yet it were most absurd and irrational to pretend that whether the mistake were upon the interpretation of the Writer or the sense of others as to that point that such mistakes or misapprehensions upon either hand should import or infer against them the Crimes of Leasing-making or depraving His Majesties Laws For if such Foundations were laid Judges and Lawyers had a dangerous employment there being nothing more ordinarâ— than to fall into differences and mistakes of the sense and meaning of the Laws and Acts of Parliament But such Crimes cannot be inferred but with and under the qualifications above-mentioned of malicious and perverse designs joyned with licentious wicked and reproachful speeches spread abroad to move sedition and dislike of the Government And the said Laws were never otherwise interpreted nor extended in any case And therefore the Explication libelled neither as taken complexly nor in the several expressions thereof nor in the design of the ingiver of the same can in Law import against him all or any of the Crimes libelled In like manner the Pannel conjoins with the grounds above-mentioned the Proclamation issued forth by His Majesties privy-Council which acknowledges and proceeds upon a Narrative that scruples and jealousies were raised and spread abroad against the Act of Parliament enjoyning the Test. For clearing and satisfaction whereof the said Proclamation was issued forth and is since approved by His Sacred Majesty The Kings Advocate 's Argument and Plea against the Earl of Argyle HIS Majesties Advocate for the foundation of his Debate does represent That His Majesty to secure the Government from the Rebellious Principles of the last Age and the unjust Pretexts made use of in this from Popery and other Jealousies as also to secure the Protestant Religion and the Crown called a Parliament and that the great security resolved on by the Parliament was this excellent Test in which that the old jugling Principles of the Covenant might not be renewed wherein they still swore to serve the King in their own way the Parliament did positively ordain That this Oath should be taken in the plain genuine meaning or the words without any evasion whatsoever Notwithstanding whereof the Earl of Argyle by this Paper does invent a new way whereby no man is at all bound to it For how can any person be bound if every man will only obey it as far as he can and as far as he conceives it consistent with the Protestant Religion and with it self and reserve to himself notwithstanding thereof to make any alteration that he thinks consistent with his Loyalty And therefore His Majesties Advocate desires to know to what the Earl of Argyle or any man else can be bound by this Test what the Magistrate can expect or what way he can punish his Perjury For if he be bound no farther than he himself can obey or so far as this Oath is consistent with the Protestant Religion or it self quomodo constat to whom or what he is bound And who can determine that Or against what alteration is the Government secured since he is Judg of his own alteration So that that Oath that was to be taken without any evasion is evaded in every single word or Letter and the Government as insecure as before the Act was made because the taker is no farther bound than he pleases From which it cannot be denied but his Interpretation destroys not only this Act but all Government since it takes away the security of all Government and makes every mans Conscience under which Name there goes ordinarily in this Age Humour and Interest to be the rule of the takers obedience Nor can it be conceived to what purpole Laws but especially Oaths needed to be made if this were allowed or how this cannot fall under the 107th Act Par. 7. James 6. whereby it is statuted That no man interpret the Statutes otherwise than the maker understood For what can be more contrary to the taking of them in the makers sense than that every man should obey as far as he can and be allowed to take them in a general sense so far as they are consistent with themselves and the Protestant Religion without condescending wherein they do not agree with the Protestant Religion and that they are not bound not to make any alteration which they think good for the States For all these make the rule of obedience in the taker whereas the positiue Law makes it to be in the maker Oâ— how could they be punished for Perjury after this Oath For when he were quarrelled for making alterations against this Oath and so to be perjured he might easily ansvver That he took this Oath only in so far as it was consistent with the Protestant Religion and with a Salvo that he might make any alteration that he thought consistent with his Loyalty And as to these Points upon which he were to be quarrelled he might say he did not think them to be inconsistent with his Loyalty think we what we pleased and so needed not be perjured except he pleased to decide against himself For in these Generals he reserves to himself to be still Judg. And this were indeed a fine security for any Government And by the same rule that it looses this Oath it shews a way of loosing
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
turned out it was yeelded to and added without a vote and this Act being still not thought sufficient and several Members desiring other additions and other Acts a promise was made by His Royal Highness in open Parliament that time and opportunity should be given to bring in any other Act which should be thought necessary for further securing the Protestant Religion But though several persons both befor and after passing the Act for the Test here subjoyned did give in memorials and overtures yet they were never suffered to be read either in Articles or Parliament but in place of all this Act for the Test was still obtruded and nothing of that nature suffered to be heard after once that Act past though even at passing it the promise was renewed As for the Test it was first brought into the Parliament without mentioning the Confession of Faith and after several hours debate for adding the Confession of Faith and many other additions and alterations it was past at the first presenting albeit it was earnestly prest by near half the Parliament that it might be delayed till nixt morning the draught being so much changed and interlined that many even of the most engaged in the debate did not sufficiently understand it and though they took notes knew not precisely how it stood And this was indeed the Earls case in particular and the cause why in voting he did forbear either to approve or disapprove His part in the debate was that in the entrie of it he said that he thought as few Oaths should be required as could be and these as short and clear as possible That it was his humble opiâ—ion that a very small alteration in these Acts which had been used these twentie years might serve for it was manifest and he attested the whole Parliament upon it That the Oath of allegiance and Declaration had effectually debarred all Fanaticks from getting into places of trust all that time It was true some Papists had swallowed the Oath of allegiance and therefore a word or two only of addition to guard against them was all he judged necessary And there after where in the close of the Act The Kings Sons Brothers were intended to be dispensed with from taking the Test He opposed the exception said it was our happiness that King people were of one Religion and that they were so by Law That he hoped the Parliament would doe nothing to loose what was fast nor open a gap for the Royal Family to differ in Religion their example was of great consequence one of them was as a thousand and would draw the more followers if once it appeared to the people that it were honourable and a priviledge to be of an other Religion And therefor he wished if any exception vvere it might be particular for his Royal H s but His H s himselfe opposing this the Earl concluded vvith his fear that if this exception did pass it vvould doe more hurt to the Protestant Religion then all the rest of that Act and many other Acts could doe good Whilst these Acts about Religion were in agitation his H s told the Earl one day in privat to beware of himselfe for the Earl of Erroll and others were to give in a bill to the Parliament to get him made liable to some debts they pretended to be cautioners in for his Father and that those that were most forward in His Majesties service must be had a care of The Earl said He knew there was no ground for any such bill and he hoped neither the Earl of Errol nor any other should have any advantage of him upon any head relating to His Majesties service His Highness told others likewise he had given the Earl good advice But shortly after the above mentioned debates there were two bills given in to the meeting of the Articles against the Earl one by the Earl of Errol the other by His Majesties advocat who alledged he did it by command for otherwise he acknowledged it was without his line The Earl of Erroll's clame was that the Earl of Argyl might be declared liable to releeve him and others of a debt wherein they alleadged they stood bound as cautioners for the late Marques of Argyll the Earl's Father To which the Earl answered that he had not got his Fathers whole estate but only a part of it and that expresly burdened with all the debts he was liable to pay whereof this pretended debt was none and that the Marquess of Huntlie who at that time was owing to the Marquess of Argyl 35000. l. sâ—erl had got 4000 l. sterl of yearly rent out of the Marques of Argyll's forsaulture without the burden of any debt so that both by Law and equity the Earl could not be liable the Marquess of Huntlie and not he having got that which should bear this releefe and which should indeed have payed the far greatest part of the Marques of Argyll's debt the same having been undertaken for Huntlie by Argyll either as cautioner for Huntlie or to raise money to pay his debt Besides that the Earl of Erroll can never make it appear that he or his predecessors were bound for the Marques of Argyll in the third part of the summes he acclaimes Yet some were much inclined to beleive Erroll on his bare assertion His Majestie 's Advocat's clame was to take from the Earl his heritable offices of Sheriffe c. especially that of justice General of Argyll-Shire the â—sles and other places which last is nevertheless only a part of the generall Justitiarie of all Scotland granted to his Predecessors some hundred of years agoe for honourable and onerous causes and constantly enjoyed by them until expresly surrendered in his late Majesties hands for a new grant of the above mentioned Justitiary of Argyl c And this new grant was also confirmed by many Acts of Parliament and particularly by his Majesties Royall Father of blissed memorie in the Parliament holden by him Anno 1633. as likewise by his Majestie that now is whom God long preserve his new Gift and Chartour after several Debates before him in Anno 1663. and 1672. which new Gifts and Chartours were again ratified by a special instruction from His Majestie in the Parliament 1672. So that albeit several late Gifts of Regalitie granted to the Marqueis of Athol Marqueis of Queensberrie and others may be questioned because granted since the Acts of Parliament discharging all such Gifts in time coming yet the Earl of Argyl's rights are good as being both of a far different nature and granted long before the said Acts of Parliament and in effect the Earl his rights are rather confirmed by these prohibitive Acts because both anterior to and excepted from them as appears by the Act Salvo Iure 1633. wherein the Earls rights are particularly and fully excepted in the body of the printed Act. When these things appeared so plain as not to be answered It was alledged that
and when his Highness was told it was hard measure by such a process and on such pretensions to thereaten life and fortune his Highness said life and fortune God forbid What happened after these things and how the processe was carried on followes now in order and for your more clear and distinct information I have sent you several very necessary and useful papers with indexes on the margin pointing at such passages as more remarkably concern this affair And the papers are I. Act Char. 2. P. 3. C. 6 Aug. 31. 1681. Anent Religion and the Test. II. Act I. 6. P. 1. C. 3. Anno 1567. Anent the annulling of the Acts of Parliament made against God's Word and for maintainance of Idolatry in any times by past III. Act I. 6. P. 1. C. 4. Anno 1567. The Confession of the Faith and Doctrine c. IV. Act I. 6. P. 1 C. 8. Anno 1567. Anent the Kings Oath to be given at his Coronation V. Act I 6. P. 1. C. 9. No Person may be judge Procurator Notar nor member of Court who professeth not the Religion c. VI. Part of the Act I. 6. P. 2. C. 5. Anno 1609. entituled Act against Jesuits seminary Priests sayers or hearers of Messe Papists and receptors of them VII Act I 6. P 3. C. 47. Anno 1572. Adversaries of the true Religion are not Subjects to the King Of Apostats VIII Act Char. 2. P. 2. C 1. 16 Nov. 1669. Act asserting his Majesties Supremacy over all persons and in all causes ecclesiastical IX The Bishop of Aberdeens explication of the Test. X. The explication of the Test by the Synod and Clergie of Perth XI Paraphrase on the Test XII Grounds wherupon some of the conform Ministers scruple to take the Test. XIII Sederunt of the Council 22. September 1681. XIV The Earl of Queensberries explanation XV. Sederunt 21 October 1681. XVI The Bishop of Edinburgh's paper and vindication of the Test. XVII Sederunt 3 November 1681. XVIII Privy Councils explanation XIX Sederunt 4. Nov. 1681. XX. The Earl of Argyl's explication of the Test. XXI The explanation of his explication XXII The Councils Letter to the King XXIII The Kings Answer XXIV The inditement XXV Abstract of the Acts of Parliament whereupon the inditment is founded XXVI The Earl of Argyl's first Petition for Advocats XXVII The Councils Answer XXVIII The Earl of Argyl's second Petition XXIX The Councils Answer XXX The Earl of Argyl's Letter of Atturney XXXI Instrument thereon XXXII Opinion of Lawyers of the Earl's Case Which Papers may give you much light in this whole matter Anâ— ACT For securing the Protestant Religion and enjoyning a Test. OUR Soveraign Lord with his Estates of Parliament considering That albeit by many good and wholsom Laws made by his Royal Grandfather and Father of glorious Memory and by himself in this and the other Parliaments since his happy restauration The Protestant Religion is carefully asserted established and secured against Popery and Fanaticisme yet the restless Adversaries of our Religion do not cease to propagate their errors and to seduce His Majesties Subjects from their duty to God and loyalty to his Vicegerent and to overturn the established Religion by introducing their superstitions and delusions into this Church and Kingdom And knowing that nothing can more encrease the numbers and confidence of Papists and Schismatical Dissenters from the established Church then the supine neglect of putting in execution the good Laws provided against them together with their hopes to insinuate themselves into Offices and places of trust and publick employment Therefore His Majesty from his Princely and pious Zeal to maintain and preserve the true Protestant Religion contained in the Confession of Faith recorded in the first Parliament of King James the VI. which is founded on and agreeable to the written word of God Doeth with advice and consent of his Estates of Parliament require and command all his Officers Judges and Magistrates to put the Laws made against Popery and Papists Priests Jesuits and all persons of any other Order in the Popish Church especially against all sayers and hearers of Messe venters and dispensers of forbidden books and resetters of popish Priests and excommunicat Papists as also against all fanitical Separatists from this National Church against Preachers at house or field Conventicles and the resetters and harbourers of preachers who are intercommuned against disorderly Baptisms and Marriages and irregular Ordinations and all other schismatical disorders to full and vigorous execution according to the tenor of the respective Acts of Parliament thereanent provided And that His Majesties Princely Care to have these Laws put in execution against these enemies of the Protestant Religion may the more clearly appear He doth with aduice and consent foresaid statute and ordain that the Ministers of each Parish give up in October yearly to their respective Ordinaries true and compleat Lists of all Papists and schismatical with-drawers from the publick worship in their respective Parishes which Lists are to be subscribed by them and that the Bishops give in a double of the said Lists subscribed by them to the respective Sheriffs Steuards Bayliffs of Royalty and Regality and Magistrates of Burghs to the effect the said Judges may proceed against them according to Law As also the Sheriffs and other Magistrats foresaid are hereby ordained to give an accompt to His Majesties Privy Council in December yearly of their prooceedings against those Papists and fanatical separatists as they will be answerable at their highest peril And that the diligence done by the Sheriffs Baylies of Regalities and other Magistrates foresaid may be the better enquired into by the Council the Bishops of the respective Diocesses are to send exact doubles of the Lists of the Papists and Fanatiks to the Clerk of the Privy Council whereby the diligence of the Sheriffs and other Iudges of Courts may be comptrolled and examined And to cut off all hopes from Papists and Fanatiks of their being imployed in Offices and Places of publick trust It is hereby statute and ordained That the following Oath shall be taken by all persons in Offices and Places of publick trust Civil Ecclesiastical and Military especially by all Members of Parliament and all Electors of Members of Parliament all Privy-Councellors Lords of Session Members of the Exchequer Lords of Justitiary and all other Members of these Courts all Officers of the Crown and State all Archbishops and Bishops and all Preachers and Ministers of the Gospel whatsoever all persons of this Kingdom named or to be named Commissioners of the Borders all Members of the Commission for Church affaires all Sheriffs Steuards Baylies of of Royalties and Regalities Iustices of Peace Officers of the Mint Commisaries and their Deputies their Clerks and Fiscals all Advocats and Procurators before any of these Courts all Writers to the Signet all publick Notars and other persons imployed in writing and agenting The Lyon King at arms Heraulds Pursevants Messengers at
children therein shall never consent to any change contrary thereto And that I disown all such Doctrines whether Popish or Fanatical which are contrary to inconsistent with the true Protestant Religion this Confession of Faith All these Propositions and every thing contained therein I firmly believe and embrace and I promise and swear that I shall adhere to them so long as I live without ever changing my opinion about them and that I shall carefully educate my children according to them i. e. I shall teach them to repress Tyranny and if the Authority should make any alteration in the said Confession or any of the Propositions therein I swear that I shall neuer consent thereto And I swear also That I shall renounce all Principles Doctrines and Practices whether Popish or Fanatical which are contrary to any Article or proposition of the foresaid Confession of Faith And for testification of my obedience to my most Gracious Soveraign Charles the Second I do affirm and swear by this my solemn Oath That the Kings Majesty is the only Supreme Governour over this Realm over all Persons and Causes as well Ecclesiastick as Civil and that no Foreign Prince c. As I have declared my Faith toward God so now to testifie that I am a good Subject to the King I affirm and swear by this my solemn Oath That the Kings Majesty is the onely Supreme Governour over all Persons not only Civil but also Ecclesiastical By which I understand that Ecclesiastical Supremacy which the Parliament by Act Nov. 1669. has declared to belong to him as an inherent Right of the Crown By vertue whereof His Majesty and Successors may dispose of the external Governement and Policy of the Church as they please i. e. of all Church-Government there being no other Government exercised in the Church by men but that which is external And that they may settle enact and emit any Constitutions Acts or Orders concerning the Government or persons employed therein and concerning all Ecclesiastical meetings and matters to be proposed and determined therein as they shall think fit So that I affirm that His Majesty and Successors may alter change or abolish the form of Church-Government now established by Law that he may commit it into the hands of persons of a different Religion from what is presently professed in this Realm that he may discharge all meetings of Synods Presbyteries and Sessions for ever Or if he shall please to continue them that he may chuse one delegated or deputed by himself to propose and determine all-matters therein as he thinks â—it That he may by vertue of his Supreme Power iuhibit Church-Officers to meet or meddle in any matter eisher Doctrine or Discipline without his special Order to persue or process any Delinquent or to consider of means to prevent any change or alteration in Religion tho it should be in never so great hazard except only as he shall determine and appoint therein All which he may do by himself and his Councill without any new Law or Act of Parliament And I affirm swear that tho any of His Majesties Successors shall happen to be of another Religion as God forbid yet all this Ecclesiastical Power does belong to him it being declared to be an inherent Right in the Crown and so not to belong to him as a Christian or Protestant Magistrate but as a Magistrate precisely And to my power I shall defend all Rights Jurisdictions Prerogatives Priviledges Preheminencies belonging to His Majesty and lawful Successors And also I swear by this my solemn Oath that so far as I am able I shall assist and defend His Majesties Rights and Prerogatives which because I do not know therefore whatsoever the King and Parliament or King and Council shall declare to belong to him as a Right Jurisdiction and Prerogative either in Civil or Ecclesiastical Affairs either concerning Religion Liberty or Property by Ecclesiastical Supremacy I swear I shall own and approve assist and defend the same as far as possibly I can And further I affirm and swear by this my solemn Oath That I judge it unlawful for Subjects upon pretext of Reformation or any other pretence whatsoever to enter into Covenants or Leagues or to convocate conveene or assemble in any Council Convocation or Assembly to treat consult or determine in any matter of State Civil or Ecclesiastick without His Majesties special Licence or express Warrant had thereto or to take up Arms against the King or those commissionated by him And that I shall never so rise in Arms nor enter into such Covenants or Assemblies c And I further swear That I think it utterly unlawful for any Subject of whatsoever quality or condition many or few for whatsoever Cause not only to make any Covenants but not so much as to meet together in any kind of Meeting to hear see or consult about any matter belonging to the Civil or Ecclesiastical Estate without His Majesties special Command and express Licence So that whatsoever corruption or abuse may be in the Civil Government through the fault of the King or Council or whatsoever hazard or danger the true Religion and Church of God within this land may be in I judg it unlawful for any Subject whether Pastors or others to meet together that they may consider what way to remedy or prevent the same tho it were only by humble Addresses and Petitions And I sâ—ear That there can never fall out a Case wherein Subjects may rise in Arms against their King or any Commissionated by him even though it were meerly to defend themselves tho never so cruelly persecuted and invaded by any who pretend his Name and Authority And I promise and swear That if any shall rise in Arms or meet together in a peaceable way for the ends foresaid that I shall never joyn with them And that there lies no Obligation on me from the National Covenant or the Solemn League and Covenant so commonly called or any manner of way whatsoever to endeavour any change or alteration in the Government either in Church or State as it is now established by the Laws of this Kingdom c. And I also affirm and swear by this Oath That there lies no Obligation on me either by the National or Solemn League and Covenant or any other way imaginable whatsoever to endeavour the least change or alteration in the Government either in Church or State as they are now established So that I am never to endeavour any alteration not only in the Civil Government but also in the Govern of the Church as it is now established among us though it should be found never so prejudicial to Religion to His Majesties Service or to the good of the Countrey Yea whatever corruptions may come to be in either of the Govern I swear That I am obliged never to endeavour the least alteration of them And particularly 1. As to the Ecclesiastical Govern it being established by
doubtful and uncertain in themselves to say no worse but in the judgment of wise and sober men inconsistent one with another 4. It 's granted by all that this Oath cannot be taken without several glosses and explications And these which are commonly offered cannot be admitted for divers Reasons 1. Because they seem to overthrow the genuine sense and meaning of the Oath 2. Because in the Oath we swear That we take it in the plain genuine sense and meaning of the words without any equivocation mental reservation or evasion whatsoever So that altho these glosses should be conceived in the plainest terms and we suffered to write them down under our hands and so cannot come under the notion of equivocation or mental reservation yet that cannot but be considered as evasions it being only by the help of them that we pretend to escape the fearful crime of perjury 3 There is no Authority that can give us Explications but the same who has imposed the Oath that is the King and Parliament For tho the King and Lords of Council and Session be considered as Interpreters and Explainers of the Laws yet that is only in matters of Right or Wrong to which men ought to submit But it 's another thing in matter of an Oath For that is always to be taken only in the sense of the Imposers And we being required not to submit to it but to swear to it no Explication given by any other but by him or them who gives us the Oath can secure or quiet our Consciences 4. These Explications tho given by the same Authority who imposed the Oath seem both useless and unsafe unless published and recorded as the Oath it self otherways the Explication will soon be forgotten whereas the Oath stands still as it was 5. It must be also considered that tho men take this Test it seems it will not secure them in their places For why may not the same alterations be made in the Church which are made in the State the Supreme Power and Prerogative being alike over both And tho this Argument will be of small force unto some yet it may have its own weight unto others 6. If it be said That divers Articles and Parts of the Test are asserted and enacted by former Laws as partly that against meeting conveening or Assembling to treat consult c. which is in the very same terms discharged and forbidden not only by Act. 4. Sess 1. Par. 1 Char. 2. but also by an old Law Act. 31. Par. 8. James 6. It is answered That there is this considerable difference therein in those Acts viz. that the ordinary judgments are excepted And it is not without reason that this clause is left out here and it is one thing to submit to a Law another to swear it 7. But some may say that we have already sworn the Oath of Supremacy to which they who took it before the year 1669. had little or no ground of scruple but by the Act assertory the Supremacy being declared to be quite another thing than ever it was understood before there are many conscientious men and the best friends to Episcopacy who cannot take that Oath now though that alone should be made the Test As for others of the Clergy who have taâ—en it since that Act of Parliament they were told by the Bishop that administred it to them that the Assertory Act had no relation to the Oath and therefore they gave it them only in the old sense whereby they were perswaded to take it But now the matter is put beyond all doubt For the Kings Ecclesiastical Supremacy as it is explained in the Act being declared to be an inherent Right of the Crown and we swearing in the Test to maintain and defend all His Majesties Rights and Prerâ—gatives we do clearly swear to own and maintain the Supremacy as itis there asserted and declared 8. But we are told we should not oppose our sentiments to the wisdom of the Nation And if the meaning of this be that we ought to reverence our Superiours submit to their Laws and live peaceably under their Government it is willingly granted But if the meaning of the Test be that we are to believe whatsoever they say blindly swear whatever they bid us this is to erect an infallible chair in the State in the stead of the Church which is a new unheard of piece of Popery But if we stand out and refuse the Test how shall the Credit and Honour of Authority be saved It were to be wished it did consult its own Credit more before the making of any Laws and Edicts for there cannot be too great deliberation used in enacting such things as are to oblige the whole Nation at present and their Posterity for the time to come And much more heed ought to be had in appointing an Oath to be sworn by the most considerable part thereof If our Ecclesiastik Superiors had been so kind and just to themselves and their Clergy as to have consulted the wisest of their Presbyters within the Kingdom it 's like it might have prevented much of this inconveniency But now that it 's done all who can take this Oath with a clear Conscience let them take it and much good may it do them But as for these who cannot take it let them suffer patiently the penaltly inflicted by the Law and let them behave themselves orderly and peaceably without making any rent in the State or Schism in the Church and without reflecting on their Governours Yeâ— that it may be seen by all men they are acted by Principles of Conscience And this seems to be the best way that is now left for salving the Credit of Authority And yet many wise men think that it would be no reflection on Authority if His Majesty out of his Goodness finding how great a Grievance the urging of the Test is like to prove to his best and most loyal Subjects which could not be so well known till it was tryed should suspend the Execution of the Law till further advice It obligeth us to swear That we believe the Confession recorded in the 1. Par. James 6. is founded on and agreeable to the written Word of God Now if there be but one single proposition in that Confession either false or dubious not exprest in or clearly deduced from the Scriptures can we sweaâ— it with a good Conscience Surely whoever reads it with understanding will find many things doubtful and uncertain at least But it deserves to be particularly remarked that it contains Doctrines which manifestly cross the many ends of the Test This was certainly designed to guard and engage men against Fanatical principles and yet for all that it obliges all that swear it to own the most capital and fundamental principles of those who are called Fanatiks They maintain that our obedience to the supreme Magistrate is to be limited and that if he be an enemy to the Truth and Cause of
God Subjects may take up Arms against him 2. They maintain That nothing is to be allowed in the worship of God but what is prescribed in his Word Were not these the Principles that embroiled these Kingdoms that raised a Combustion and that turned all things upside down both in Church and State And are not these Principles plainly taught in this Confession It is reckoned Art 15 a duty to repress Tyranny and to disobey and resist Kings is a sin with this caution and limitation while they pass not over the bounds of their Office or do that thing which appertains to their charge And in like manner the assistance we ow them is cautioned and limited while they vigilantly travel in the execution of their Office Is not this the very Doctrine of the Solemn League and Covenant by which they bind themselves to defend the Kings Majesty's Person and Authority in the preservation and defence of the true Religion and Liberties of the Kingdom Let any but read Spotswood's History of the Resormation Anno 1558 1559 1560. among others how Subjects did bind themselves by Oaths and Subscriptions to assist one another for advancing the Cause of Religion how by the advice of the Ministers they deprived the Queen Regent of her Government and this very year this Confession was compiled and ratified in Parliament And I am sure there can remain no doubt about the sense of the Confession in this point But to render the matter beyond exception It is declared rebellious and treasonable by Act of Parliament for Subjects to put limitations on their due obedience and allegiance And for the other Principles about Divine Worship the Confession affirms these to be evil works that in matters of Religion and Worship of God have no other assurance but the invention and opinion men In this principle they condemn very Ancient and laudable Customs of Churches as singing the Doxology and the most innocent and indifferent Ceremonies for decency and helps for Devotion calling them by the odious titles of Superstition and Will-worship But be these Principles true or false in themselves certainly they are utterly inconsistent with these other clauses in the Test that assert it unlawful on any pretence whatsoever to take Arms against the King and invest him with such a Supremacy as impowers him to erect such Constitutions and orders about Ecclesiastical matters as His Majesty thinks fit And in this also there is a palpable Contradiction that the Test binds us not to consent to any change contrary to the Confession and by and by enjoyns to swear what is flatly contradictory to it We cannot take this Test unless with the same breath we swear and forswear under Oath protest onething and forthwith under Oath protest the quite contrary It obliges us to swear we shall with our utmost power defend assist and maintain all the Kings Rights And is not this to swear we know not what or is it not to swear we shall maintain and defend with the greatest zeal and concernedness whatsoever the King challenges or the Parliament votes to belong to him And may not a Prince come to claim a Right to act Arbitrarily and may not iniquity happen to be established by Law Nay doth not the King de facto challenge and has not the Parliament declared Supremacy to be an inherent Right of the Crown by which His Majesty may settle and emit such Acts and Orders as he pleases about Ecclesiastical matters And are not Articles of Faith Ecclesiastical maters And what is this but to avow we hold our selves obliged to believe as the King believes And so ere long the Rights Jurisdictions Prerogatives Priviledges Preeminences and Authorities that may be v ted to belong to our Prince may come to swallow up Religion Liberty Property and all our Priviledges We do not see how any man of Sense and Conscience can swear this clause in so great a Latitude and so illimited Terms It obliges us to swear That we acknowledg it unlawful without the Kings special Command to convocate conveen or assemble in any Council Convention or Assembly to treat consult or determine in any matter of State Civil or Ecclesiastik The clause excepting ordinary judgments which was added in all such convocating conveening and assembling which were declared unlawful Anno 1661. 1. Par. Char. 2. Act 21. being left out here we have reason to think that all such Sessions Presbyteries and Synods are discharged there being no special Command or Express for them that we know of And these meetings being of great use for curbing of Vice and Prophanesse and for setling and entertaining Peace and good Order in the Church we cannot swear to forbear holding of them tho we have not an express License from the King We acknowledg Princes have Power and Authority to inhibit their Subjects to meet as they see cause but we cannot bind our selves to obey them against such liberty which Christ hath conferred on his Church This is a Priviledg the Church ever enjoyed since it was founded and erected by our Saviour and in all Ages used as the state of affairs required So we cannot devoid our selves of it without proving betrayers of our Trust and condemning the conduct of the Primitive Christians who without special command nay contrary to the express Edict of Princes did convocate conveen or assemble in Councils and Conventions to treat consult and determine about Ecclesiastical matters and yet for all that have been no less commended and admired for loyalty and peaceableness than for piety and zeal And seeing that in the present juncture its notour that there are Cabals and Engines formed and carried on to undermine the Protestant Religion and to bereave us of the Truth which our Lord has committed to us as so many Depositaries Can we without the most horrid guilt and the blackest infamy swear That we shall not so much as meet Two or Three of us together till we have the Kings Warrant perhaps never to consult about the Welfare of the Church and the Salvation of our own and other Mens Souls It obliges us to swear there is no obligation on us any manner of way whatsoever to endeavour any change or alteration in the Government either in Church or State Is not this to swear what no man living can assuredly know And are there not indeed many tyes on us as Men as Christians as Pastors to procure as far as in us lyes the happiness of the Church and State Now if we discern and it be acknowledged by wise and good men that the Government may be bettered by enacting wholsome new Laws and abrogating corrupt old ones might we not ought we not in our stations endeavour such an alteration The Constitution of a National Synod e. g. gives the Archbishop of St. Andrew's a Negative when the whole Clergy is contrary so that were all our Bishops and other Members of the Synod men of Apostolick sanctity and zeal yet nothing could be done
for reforming the Church if one man who may happen to be an enemy both to Truth and Vertue shall dissent And how can honest conscientious Church-men swear they shall never endeavour to have this helped By the same Act no matter is to be debated consulted or concluded but what shall be allowed by His Majesty What now if the Prince come to be Popish or altogether unconcerned about Religion shall we can we in Conscience bind our selves to propose treat and conclude nothing but what he pleases By the explicatory Act itis put in the Kings power to cut and carve in the external Government of the Church at his pleasure And so he may without consent of Parliament or Clergy restore Presbytery he may turn out all the Bishops and Pastors and plant in their room men of his own persuasion whatever it be he may casheer all our spiritual Fathers and substitute Noble-men Gentle-men Lawyers or any other kind of Laiks to be Superintendents of the Church or his Commissioners in Ecclesiastical affairs And shall we oblige our selves by an Oath to endeavour no rectification of so unreasonable a Statute If we see and it cannot be denied that Episcopal Government might contribute more to maintain Truth and advance Piety and Peace than hitherto it has done might we not ought we not to use our utmost endeavours to procure such Laws and Canons to be enacted as should oblige Bishops to manage their Power and Authority to such noble and excellent ends and not put off the respect to the souls committed to their charge We are to endeavour such a change which might conduce mightily for changing and reforming them Out of the veneration we bear to Episcopacy we cannot but pray and with for such a change and do our best to effectuate it because otherways Episcopal Government would come to be despised and derided not only as useless but pernicious Unless then we would intirely abandon Episcopacy unless we would express no regard for or concern our selves with the flourishing of piety unless we would sit down contented and satisfied without ever complaining of and opposing the corruptions of the Church we can by no means swear this Clause of the Test But we would with a very good Conscience testifie by our Solemn Oath if we were put to it that we judge our selvès obliged to endeavour a change both of the Government and Governors of the Church There are several other things that beget in our minds an utter dislike of the Act anent Religion We shall touch Two or Three things more It commands us to become a kind of Sycophants Delators and Informers against Dissenters Hardly could our mortal enemies fall upon a course more likely to blast our Ministry and expose us to hatred and obloquy Had it been designed we should give an account of Schismatical Withdrawers that our spiritual Fathers might bear with them in the spirit of meekness and charity for clearing their prejudices we would have most readily and joyfully served them in so worthy an enterprise But to delate them that they may be fined and imprisoned or banished or sustain any bodily or temporal damages is a thing we abhor We judg it more eligible to be no Pastors than to be on such terms 2. It weakens the Protestant Interest by dividing Protestants and treating sober Dissenters with as great severity as Papists or wildest Fanatiks 3. It leaves a wide postern for Popery for it exempts from the Test such as should have been first of all put to it and so provides most effectually for perpetuating Popery in the Royal Family And what could have been contrived more grateful and advantageous to the Church of Rome and what more grievous and fatal to the Reformed Grounds wherupon some of the Conformed Ministers scruple to take the Test. FIrst passing by the danger of Oaths when pressed so generally men of the least tenderness ordinarily swallow them easily and make small Conscience of observing them while they that fear Oaths are hardly induced to take them and by their strict observance make themselves a Prey we think it strange that this Oath should be injoyned to us who cannot be suspected rationally to incline either to Fanaticism or Popery since by our Subscriptions to the Oath of Supremacy and canonical obedience we have sufficiently purged our selves of the first and by our refuting Popish errors daily in our Pulpits do shew an utter abhorrence of the other and further since meerly our owning of Episcopal Government has begot and still increases in the minds of our People such an Aversion from and dislike of us we would have expected that our spiritual Fathers would not have exposed us to greater loathing and contempt by such engagements which although it should be granted to be causeless and unjust yet we think our selves bound to shun it that our Ministry may be the more taking with them since the thing pressed upon us is neither absolutely necessarie nor yet so evident in what is asserted for truth as may incourage us for to underlie their prejudice conceived thereupon And finallie since it is known that abjuring the Covenant did hinder many Ministers to conform and People to joyn in Ordinances dispensed by Conformists and our Parliaments had hitherto shewed such civil Moderation as to free us from the Declaration we cannot look at it but as bad and fatal that our Church should be dashed on this Rock which may occasion its splitting and instead of quenching this former evil create new Flames Secondly as we wish for the suppressing of the growth of Popery a more particular way had been made use of even for the discovering of such as are of no publick Trust so we cannot but regret that this Test has been so framed as to divide the sound sober Presbyterians amongst themselves whereby our Common Enemies are gratify'd and the true Faith indangered we being perswaded that there are many Presbyterians in the Kingdom Gentlemen Ministers and others who cannot in conscience take this Test who yet do dayly come and are ready to joyne with us in Ordinances We think it had been fitter to have condescended something for gaining of such then to have put such a brand upon them which may more alienate them and weaken us Thirdly that Confession of Faith Recorded in the first Parliament of King James the 6th has some things in it which may scarre the Swearing to it without Limitation as 1. Section 15th it Asserts those to be evil works which are done not only contra but praeter verbum Dei 2dly Section 25th It Asserts such as resist the Supreme Power doing that which pertains to his charge and while he vigilantly travels in his office doe resist the Ordinance of God which clauses may bear an exclusive sense especially when in the 5th Section it is reckoned among good works to suppress Tyranny 3dly Section 15th Jesus Christ is asserted to be the only Head and Law-giver of his Kirk and it
is counted Blasphemy for Angels or Men to intrude themselves into the said Honor and Office 4 th Section the 23 th on the Sacraments Popish Baptism is denyed as to its validity and Popish Priests denyed to be true Ministers which expressions if narrowly scanned will be found of dangerous consequence and contradictory to other positions in the Confession it self Fourthly we fear that our People may look on us rather as Countenancers and Incouragers then Suppressors of Popery seeing by the Act we are obliged to delate yearly in October such as withdraw from our Ministry that they may be punished by the civil Magistrats and yet by the same Act the Kings lawful Brother and Sons in perpetuum are exempt from taking the Test and consequently left at liberty to be Papists or Protestants and what bad influence their example may have on inferior People may easily be apprehended and our taking the Test will be reputed an approving of that exemption which will be more stumbling That all former Acts against Papists were made without any exemption and they all declared to be disloyal who embraced not the Reformed Religion particularly in the 47 th Act of the third Parliament of James the V I. and the 8 th Act of the I. Parliament of Charles the II. Fifthly We are to swear that there lyes no obligation on us by vertue of the late Covenants or any other manner of way to endeavour the change of the Government either in Church or State as it is established by Law where we suppose we are sworn not only to maintain Monarchy but also as our Law tyes us in the present line and in the nearest in kin to our present King altho they should be Papists altho we judge the Coronation Oath in the eight Act of the first Parliament of James the VI. to be contradictory which yet is a standing unrepealed Law since this currant Parliament hath ratified and confirmed all Acts made in savour of the Protestant Religion whereof this is one so that we swear Contradictions Sixthly as for the Church Government as it is now establisht by Law there hath not been nor are yet wanting sound Protestants who assert the Jus divinum of Episcopacy such could not in conscience take this Oath seeing the King by vertue of his Prerogative and Supremacy is impowered by Law to dispose of the External Government and Policy of the Church as he pleases as for such as look upon Episcopal Government as indifferent in it self notwithstanding the submission that we give to it or have ingaged for they can as litle swear on these terms for why should they swear never to endeavor to alter that which in it self they look upon as alterable there being no indifferent thing which in tract of time through the corruption of Men may not prove hurtful and why might not men in their Station endeavor the redressing by fair means of any such evil and advise his Majesty if he be willing to exert the power setled on him by the law for freeing the Church from any inconveniency and altho we have engaged to obey Bishops yet we ever did wish that they may be setled aâ—ongst us in a way more suitable to the primitive times viz. That their number might be more encreased that they might by called by the Church allenarly to that office and that they might be made liable to the censure of the Church for their doctrine life and diligence that they might not be such pragmatical Medlers in Civil affairs and that Synods and Presbyteries might have more power then is assigned them by the Act of Restitution from the seeking a Remedy in any of which things this Oath doth tye us up Seventhly the power given to the King by the present laws if he should be popish should be very prejudicial to the Protestant Interest for by the first Act of the 2d Parliament of Charles the 2d he may not only dispose of the external Policy of the Church but may emit such Acts concerning the Persons imployed therein all Ecclesiastical Meetings and Matters to be treated upon therein as he shall think fit and this Act only published is to oblige all his Subjects and by the Act for a National Synod no Doctrinal Matter may be proposed debated or concluded without his express allowance in the foresaid case it is easie to divine what advantage the Enemies of our Religion will have for the overturning of all Hoc â—thacusvelit magno mercentur Atridâ— EDENBURGH The sederunt of the Council Sederunt vigesimo secundo Die Septembris 1681. His Royal Highness c. Montrose Errall Marshall Marr Glencarne Winton Linlithgow Perth Strathmore Roxburgh Queensberry Airley Kintore Breadalbane Lorne Levingston Bishop of Edenburgh Elphinston Rosse Dalziel Treasurer Deputy Praeses Advocate Justice Clerk Collintoun Tarbet Haddo Lundie This day the Test was subscribed by the above-written Privy Councellors and by the Earl of Queensberry who coming in after the rest had taken it declared that he took it with the Explication following The Earl of Queensberrie's Explanation of the Test when he took it HIS Lordship declared that by that part of the Test That there lyes no obligation to endeavour any change or alteration in the Government c. He did not understand himself to be oblidged against Alterations In case it should please His Majestie to make alterations of of the Government of Church or State HALYRUDEHOUSE Sederunt vigesimo primo Die Octobris 1681. His Royal Highness c. Winton Perth Strathmore Queensberry Ancram Airley Lorne Levingston Bishop of Edenburgh Treasurer Deputy Praeses Register Advocate Collintoun This day the Bishop of Edenburgh having drawn up a long Explication of the Test to satisfie the many Objections and Scruples moved against it especially by the conformed Clergie presented it to the Council for their Lp's Approbation which was ordered to be read But the paper proving prolixe and tedious His Highness after reading of a few leaves interrupted saying very wittyly and pertinently that the first Chapter of John with a stone will chase away a dog and so brake it off Yet the Bishop was afterward allowed to print it if he pleased and here you have it The Bishop of Edenburgh's Explanatory Vindication of the Test. THE last Session of this currant Parliament considering the interest of the true Protestant Religion to be the most sacred and important of all others doth by the first Act revive ratifie and confirm all Acts and Statutes made in our former Parliaments establishing the same in this Kingdom which Acts being made by our wise Ancestors when the Protestant Religion was in greatest danger not only from the great number of Popish Subjects in this Kingdom many whereof were persons of greatest interest power and influence therein but from the Power of France as well as of the Pope both which were zealously bent to re-establish and confirm the setlement of Popery in its Jurisdictions and Superstitions amongst
close up this Head of Objections drawn from the Confession foresaid it is to be considered that the famous and â—earned Doctors of Aberdeen Anno 1638. in their Demands and Duplys do in Demand 11. declare and take God to witness that they and other people were willing to subscribe this very Confession of Faith And 11 Duply They assert that they are ready not only to subscribe but to swear this National Confession of Faith so they call it ratified and registred in Parliament To which Declaration they add the Oath sworn by them when they received the degree of Doctorat in Theology which Oath they solemnly again renew in the 7. Duply And this they judged necessary for them to do to satisfie the world that they were no favourers of Popery which as then so now is the Engine whereby to calumniate loyal Subjects and soundest Protestants as Papists in masquerade By which we understand that these learned loyal Divines and Orthodox the glory of the Reformed Church in their Age who well understood the Protestant Doctrine the unlawfulness of resisting the supreme Magistrate upon any pretence whatsoever the intrinsik power of the Church together with the Interests and Rights of Episcopal Government did not scruple to subscribe and swear this Confession of Faith and that as a Test against Popish Errors and Supersition So that they who shall now refuse to swear to own and believe the true Protestant Religion reformed from Popery contained in this Confession do occasion too much umbrage of suspicion and jealousie that they are not sound nor solid Protestants As to the second Head or Classis of Objections drawn from the Oath of Allegiance and Supremacy which together with the maintenance of the Kings Prerogative is asserted and sworn in the Test the great stress of the Objections founded thereupon lies in these two Particulars That the Kings Supremacy as it is asserted by the Act of Parliament viz 16 Anno 1669. seems to deprive and devest the Church of all its intrinsick Power as if all Ecclesiastical Authority were derived not from Jesus Christ the alone Prince and Vital Head of his Church but from secular Princes and Magistrates And 2. That by the foresaid Act there seems to be a Power lodged in the King to alter and change the established Episcopal Government of the Church at his Royal pleasure which they can never swear to maintain as a Prerogative of the Crown who believe Episcopacy to be of Divine Right and Apostolical Institution and by consequence an oecumenick and unalterable Government by any power on earth For the more clear satisfaction of these Objections it will be convenient to read and consider that Act of Parliament November the 16th 1669 in which upon due perusal and examination nothing new or dangerous to the setlement of our National Church will be found comprehended Our Saviour was very unconcerned to regulate the bounds of Soveraign Powers he doth not examine Pilate's Power to judg of Blasphemy or Treason but acknowledgeth and submits unto it And so his Apostles neither enquire into the Rights of the Roman Emperors nor limit the exercise of their Power but seriously recommend to all good Subjects as their duty submission and obedience to the higher Powers and they leave the secular Powers of the world in possession of whatever Authority either over persons or matters they found them invested with The Magistrate doth not intitle himself to the Spiritual Function in preaching the Word administring the Sacraments exercising the Power of Ordination or the Keys c. Our gracious King never challenged these spiritual Powers which indeed belong to the Bishops and other Ministers of the Church The holiest and best Kings of Israel and Judah are famous for abolishing false Worship asserting and setling of the Truth Many excellent Ordinances concerning Religion were made by Moses Ioshua David Solomon Asa Iosiab c. which are recorded and applauded by the Spirit of God in the Scriptures These ordered and regulated divine worship Sacraments and Covenants with God they erected Altars Temples and Tabernacles and dedicated them to God They destroyed Idolatry reformed abuses in Gods House and service and both setled the standing worship and ordained Thanksgivings and Humiliations so that the ordering of matters of Religion was not exempted from the supreme secular Power under the Law nor did the Emperors and Sovereign Princes of the earth by imbracing Christianity lose their Power injoyed by all their Predecessors which if they had they should have been thereby inevitably exposed to the disturbances of their Government by Seditions and Rebellions upon every frantick eruption of religious Melancholy If Constantine had not interposed his Authority for suppressing the Arrian Heresie what had become either of Government or Religion The drawing up of Canons for regulating Religion our Lord committed to the Apostles and their Successors the Bishops with other Ecclesiastical persons but that these Canons should be inforced as Laws by temporal sanctions and penalties this flowed from the authority of the Civil Power And accordingly in the second oecumenical Council the Bishops and Fathers assembled at Constantinople beseech Theodosius the elder to ratifie the Decrees of that Synod Justinian established the main Canon or Codâ—x of the Universal Church consisting of the Canons of the first general and five Ancient provincial Councils commanding them to be keept as Laws As matters of Religion have not been exempted from the cognizance and regulation of the Supreme Civil Powers much less can the exemption of Ecclesiastical persons be pretended Under the Law we find Solomon judging an High Priest offending viz. Abiathar whom he turned out and placed Zadock in his Room and Office 1 King 2. 27 35. and as single persons so if we consider Church-Officers in their Ecclesiastical Meetings and Assemblies we find the Calling thereof lodged in the supreme Magistrate for Moses not Aaron David not Abiathar Solomon not Zadock summoned the Priests and Levites to the Meetings so under the Gospel in the pure and primitive times we find no Councils nor Synods called by the Bishop of Rome nor by any other Bishop or by any other Ministers forming themselves into Classical and Synodical Meetings against or without the Consent of the Christan Prince or Magistrate To any who will be at the pains to consult Antiquty or Ecclesiastical History it will evidently appear that the indiction of times and places the convocating of persons the precedency the ordering of debates the dismission of Assemblies the confirmation of Canons so as to enforce them as Laws in the General or Provincial Councils were all performed by the supreme Magistrate St. Paul himself appealed to Caesar when arraigned and called in question for his Religion and Athanasius appealed from the Synod at Tyre to Constantine to whom were two appeals made in the case of Cassianus and Donatus besides many other instances of the like nature And it were heartily to be wished that all Church-men and Ministers
whatsoever were throughly convinced of the doctrine and duty of their obedience to the Supreme Powers otherways as they grow popular they become dangerous Sacerdoces eo quidem sunt ingenio ut ni pareant territent St. Chrysostom comments excellently on Rom. 13 v. 1. 2. Let every soul be subject saying whether he be an Apostle or Evangelist a Prophet c. let him be subject to the higher Powers Our blessed Saviour and the Apostles were the most eminent Ecclesiastical persons yet did not think themselves exempted from the Authority and Jurisdiction of the Civil Powers and if the 24th Article of the Confession of Faith mentioned in the Test be considered it will be found to grant as much to the Civil Magistrate as here is asserted and yeelded Yet all this power belonging to the supreme Magistrate over religious persons and matters doth not interfer with nor suppress the intrinsik and essential Power and Authority of the Church for the Church's power is internal and spiritual and the power of the supreme Magistrate is external coercive and temporal which when duely weighed in a just balance will be found not only to be poised of just different kinds and natures but so far from interfering with or destroying one another that if duely and rightly managed they do mutually assist and support each other Beside the sense of the Oath of Supremacy asserted in a Speech delivered by B. James Usher then Bishop of Meath and afterwards Primate of Ireland at Dublin Novemb. 22. 1622. for which he received the thinks of King James the sixth the Solomon of his Age by a Letter from His Majesty dated the 11. day of January 1623. is so clear and plain that it leaves no place for any manner of scruple concerning the intrinsick power of the Church as if it were invaded and incroached upon by the foresaid Oath where it is said That the Kings Supremacy reacheth the outward man only but the spiritual and intrinsick power of the Church reacheth to the inward this binding or loosing the soul that laying hold only on the body and things belonging thereto Yea there is an Act of the Parliament of England 13. Eliz. declaring That by the supreme Government given to the Prince is understood that kind of Government only which is exercised with the Civil Sword So that there is nothing can be more evident than that by the Kings Supremacy as asserted by the Act November 16. 1669. no incroachment or invasion is made upon the spiritual intrinsick power of the Church Besides by the very express words of that assertory Act No more is declared to belong to the King save the ordering and disposal of the external Government and Policy of the Church And again The administration of the external Government of the Church where not a syllable can be found touching upon the internal spiritual and essential power and iurisdiction thereof And as to the word matters contained in that Act the Kings emitting Orders concerning religious matters as well as persons it needs stumble no thinking person as if our Religion were thereby exposed to dangers at the pleasure of the Prince if we consider the following words viz. Matters to be proposed and determined in Ecclesiastical Meetings or Assemblies which reserves the power of determining matters of Religion still in the hands of that Meeting or Assembly So that tho the King may by vertue of his RoyalSupremacy propose any matter of Religion to a National Asâ— Yet it is not to pass unto an act till first it be determined by the deliberate and free consent vote and suffrage of the major part of that Ecclesiastical Meeting And now let the Impartial Judg if any so great security for the true Protestant Religion can be devised as to have all Bishops Ministers and Members of a National Synod to whom the determining of matters of Religion by Law belongs solemnly sworn and bound by this Oath and Test to adhere to the same Protestant Religion all the days of their lives and never to consent to any alteration or change thereof As for the other Objection of these who think that by this assertory Act 1669. there is a power declared to be vested in the King to alter and change the Established Episcopal Government of this National Church which these who believe Episcopacy to be of Divine Right and Apostolical Institution and by consequence unalterable by any humane Authority can never swear to belong to the Crown as an Inherent Right and Prerogative thereof For answer Tho this point of the Divine Right of Episcopacy is tenderly to be touched the Phrase of Jus Divinum being in terms subject to misconstruction yet it must be acknowledged that no form of Church Government was ever yet modelled or set up which hath not claimed to a Jus Divinum as well as Episcopacy tho every one of them with far more noise but with far less reason than this hath done For the Papists ground the Popes Oecumenical Supremacy upon Christs Commands to St. Peter to execute it and to all the Flock of Christ Soveraign Princes as well as others to submit to him as to their Universal Pastor The Presbyterians cry up their model of Government tho of a very late Edition as the very Scepter of Christs Kingdom to which all Kings are bound to submit theirs making it also unalterable and as inevitably necessary to the being of a Church as the Word and Sacraments The Independents assert that any single Confederate Congregation is Jure Divino free and absolute within it self to govern it self by such Rules as shall be consented to by its Members without dependance from any except Jesus Christ alone or subjection to any Prince Bishop or any other Person or Consistory whatsoever So that all these other flatly deny the Kings Supremacy and claim a Power and Jurisdiction over him The Presbyterians agreeing with the Papists in this branch of Antichristianism and claiming to their Consistories as full and absolute Jurisdiction over Princes even to the highest censure by Excommunication as the Romanists challenge to belong to the Pope or pleading at least a priviledg of exemption from the Kings Authority and Jurisdiction The Independents exempting their Congregations from all Ecclesiastical subjection to Christian Kings in asample manner as ther Papists do their Clergy whereas the Protestant Bishop and regular Ministers as becometh good Christians and dutiful Subjects do neither pretend to any Jurisdiction over the King nor withdraw their Subjection from him but humbly acknowledg His Majesty to have Soveraign Power over them as well as over his other Subjects and that in all matters Ecclesiastical as well as Temporal But for a more closse Answer to this Objection They who believe the Indifferency of the forms and models of Church-Goverment cannot have any scruple on this Head in regard of the present Church-Government For should it be changed by Authority then are they not obliged by this Oath any longer
c are contradictions but to deny aid counsel c. while Princes and Rulers vigilantly travel and to deny aid counsel c. to Princes and Rulers upon no pretence whatsoever implies nothing of a contradiction 3. When it is told That at the very time of the framing and enacting of the Test this Confession was represented to be wanting and defective in the Doctrine of the absolute unlawfulness of resisting the Soveraign Magistrate and that therefore it was necessary that agreeably to the peaceable and loyal protestant Doctrine something might be inserted in the Test to make that point more clear full and perspicuous which accordingly was done And whatever bad use might be made of the clause in the 25th Article the scruple it self not being exempted from the wresting of unlearned and perverse men for serving ill designs and purposes by some busâ—ie and seditious Spirits to introduce the Doctrine of Conditional Allegiance which was openly advanced by the late Covenant and solemn League Yet the Assertion contained in the words of that Article is undoubtedly true and certain viâ— That the lawful Magistrate is not to be resisted while he does what pertains to his charge and travels vigilantly in the execution of his Office tho it be not full enough or sufficiently extensive but is more clearly and fully supplied and asserted in the Oath or Test it self So that the Doctrine of the unlawfulness of resistance asserted in the Test is more comprehensive and full but no way contrary or contradictory thereto And indeed it were most impious uncharitableness for any to suppose that the same Persons and Authority which asserteth and determineth the absolute unlawfulness of resisting in one branch of an Oath should in another branch of the same Oath allow of conditional resistance especially while they proceed gravely and deliberately after a plain representation of the defects of the Confession in this very point of Doctrine So that the Oath being to be taken according to the sense and meaning of the framers and imposers thereof It is clear as light that the late Session of Parliament which injoins this Oath understood the Doctrine concerning the unlawfulness of resistance in the simple and absolute sense supplied and exprest in the later part of the â—est that thereby the Protestant Doctrine might be vindicated from all imputations of disloyalty in seeming to countenance any pretence of resisting and rebelling against the Lawful Power which God in his providence had set over them The 3d. head or classis of Objections is drawn from that of asserting the unlawfulness of convocating or assembling in any Councils Conventions c. to consult or determine in any matter of State c. whence some Object and say That this cuts off intrinsick power from the Church of holding Religious Assemblies and Church Courts for giving ordination and for spiritual censures c. To which it is sufficiently replied already by shewing that the spiritual and intrinsick power of the Church as to this matter is no ways hurt and damnified by making Church meetings as to their external and coercive power depend upon the Supreme Magistrate his allowance and regulation The words of the Oath and Test do sufficiently clear up this mistake which do not bar Christian Subjects from Godly communications or quiet and peaceable meetings for Religious Worship in preaching the word Administration of the Sacraments and the internal exercises of the power of the keys by ordination and spiritual jurisdiction censuring Offenders and absolving penitents as the Apostles and the Primitive Christians used in Ancient times of Infidelity and persecution but only obliges not to hold meetings or assemblies for treating consulting and determining in any matter of State Civil or Ecclesiastical c. which in the plain sense and meaning relates to the external policy of the Church and Peace Order and Government of the World viz. That they shall not meet nor form themselves in Judicatories to make Laws or to invade or overturn the setled Estate and Government of the Church or Kingdom without the Kings express Warrant or consent which every sound and Loyal Protestant must needs acknowledg he is bound not to endeavour unless he should conclude that the Sons of Peace are by the most peaceful institutions of the Word obliged to turn Sons of Thunder to disturb and inflame the tranquillity of mankind 3. When we assert the unlawfulness of meetings and conventions it is understood except in ordinary Judgments Which clause is expresly inserted in the 4th Act 1 Sess. 1. Par. Char. 2d whereby His Majesties Royal Prerogative is recognized and which Prerogative is Sworn in the Test to be maintained and defended The holding of Green Tables and Church assemblies in the beginning of the late fatal Rebellion against our late blessed King and Martyr without and against His Majesties Warrant and Licence doth sufficiently discover the dangers as well as the sinfulness of Church Convocations and Illegal Meetings so that unless a man discover himself too forward to commence new Tumults and Insurrections he will beware to entertain such Principles which tend so openly to advance and promote them The 4. and last classis of Objections which militate against the Oath and Test is drawn from that clause which asserts That there lies no obligation from the Covenants or Solemn League or Covenant or any other manner of way whatsoever to endeavour any Change or Alteration in the Government either in Church or State as it is now established by the Laws of this Kingdom Whence some object and say That no Policy or Government in the world is so perfect as not in something to need correction and amendment which every one that is entrusted with the management thereof ought to endeavour and in his proper station to reform and better it and therefore it seems unlawful to swear never to endeavour any alteration in the Government Civil or Ecclesiastik And seeing endeavour here may refer to the forementioned means of Leagues Covenants Councils Conventions and Assemblies relating to State-Affairs Ecelesiastik or Civil or of taking up of Arms which no pious or loyal Subject will decline to renounce without the Kings express licence It is obvious that by change or alteration in the Government nothing else can be reasonably understood but the subversion of the specifik established Government or of the fundamental Constitution thereof and not of every circumstance or unnecessary part thereof as is cleared beyond doubt by the same Parliament which formed and enjoyned this Oath and Test. Wherein many excellent Acts are made for bettering and securing the Government both in Church and State So that it cannot be supposed that by this clause any regular endeavour to rectifie or better the established Government of both is renounced but only such impious and irregular endeavours and attempts as intend to shake or subvert the substance species and body of the Monarchy and Episcopacy or the fundamental Laws and Constitutions
whoso does in the contrary to be punished at the Kings will And by the 10th Act Par. 10. James 6. it is statuted That none of His Majesties Subjects presume or take upon him publikly to declare or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws or Acts of Parliament or mistconstrue his Proceedings whereby any mistaking may be moved betwixt his Highness his Nobility and loving Subjects in time coming under pain of death certifying them that does in the contrary they shall be reputed as seditious and wicked instruments enemies to his Highness and to the Commonwealth of this Realm and the said pain of death shall be executed against them with all rigour to the example of others And by the second Act Ses. 2. Par. 1 Char. 2. it is statuted That whosoever shall by writing libelling remonstrating express publish or declare any words or sentences to stir up the people to the dislike of His Majesties Prerogative and Supremacy in causes Ecclesiastik or of the Government of the Church by Archbishops and Bishops as it is now setled by Law is under the pain of being declared incapable to exercise any Office Civil Ecclesiastik or Military within this Kingdom in any time coming Like as by the fundamental Laws of this Nation By the 130th Act Par 8. James 6. it is declared That none of His Majesties Subjects presume to impugn the Dignity or Authority of the Three Estates or to procure innovation or diminution of their Power and Authority under the pain of Treason And that it is much more Treason in any of His Majesties Subjects to presume to alter Laws already made or to make new Laws or to add any part to any Law by their own Authority that being to assume the Legislative Power to themselves with his Majesties highest and most incommunicable Prerogative Yet true it is That albeit His Sacred Majesty did not only bestow on you the said Archibald Earl of Argyle those vast Lands Jurisdictons and Superiorities justly for faulted to His Majesty by the Crimes of your deceased Father preferring your Family to those who had served His Majesty against it in the late Rebellion but also pardoned and remitted to you the Crimes of leasing making and misconstruing His Majesties and his Parliaments proceedings against the very Laws above written whereof you were found guilty and condemned to die therefore by the High Court of Parliament the 25. of August 1662. And raised you to the Title and Dignity of an Earl and being a member of all His Majesties Judicatures Notwithstanding of all these and many other Favours you the said Archibald Earl of Argyle Being put by the Lords of His Majesties Privy-Council to take the Test appointed by the Act of the last Parliament to be taken by all persons in publik Trust you insteed of taking the said Test and swearing the same in the plain genuine sense and meaning of the words without any equivocation mental reservation or evasion whatsoever you did declare against and defame the said Act and having to the end you might corrupt others by your pernicious sense drawn the same in a Libel of which Libel you dispersed and gave abroad Copies whereby ill impressions were given of the King and Parliaments Proceedings at a time especially when his Majesties Subjects were expecting what submission should be given to the said Test and being desired the next day to take the same as one of the Commissioners of His Majesties Treasury you did give in to the Lords of His Majesties Privy-Council and owned twice in plain judgment before them the said defamatory Libel against the said Test and Act of Parliament declaring That you had considered the said â—est and was desirous to give obedience as far as you could whereby you clearly insinuated that you was not able to give full obedience In the second Article of which Libel you declare That you were confident the Parliament never intended to impose contradictory Oaths thereby to abuse the people with a belief that the Parliament had been so impious as really and actually to have imposed contradictory Oaths and so ridiculous as to have made an act of Parliament which should be most deliberate of all humane Actions quite contrary to their own intentions after which you subsumed contrary to the nature of all Oaths and to the Acts of Parliament above-cited that every man must explain it for himself and take it in his own sense by which not only that excellent Law and the Oath therein specified which is intended to be a Fence to the Government both of Church and State but all other Oaths and Laws shall be rendered altogether uselesse to the Government If every man take the Oaths imposed by Law in his own sense then the Oath imposed is to no purpose for the Legislator cannot be sure that the Oath imposed by him will bind the takers according to the design and intent for which he appointed it and the Legislative Power is taken from the Imposers and setled in the taker of the Oath And so he is allowed to be the Legislator which is not only an open and violent depraving of His Majesties Laws and Acts of Parliament but is likewise a setling of the Legistative Power on private Subjects who are to take such Oaths In the third Article of that Paper you declare That you take the Test in so far only as it is consistent with it self and the Protestant Religion by which you maliciously intimate to the people That the said Oath is inconsistent with it self and with the Protestant Religion which is not only a down-right depraving of the said Act of Parliament but is likewise a misconstruing of His Majesties and the Parliaments Proceedings and misrepresenting them to the people in the highest degree in the tenderest points they can be concerned and implying that the King and the Parliament have done things inconsistent with the Protestant Religion for securing of which that Test was particularly intended In the Fourth Article you do expresly declare that you mean not by taking the said Test to bind up your self from wishing and endeavouring any alteration in a lawful way that you shall think fit for advancing of Church and State whereby also it was designed by the said Act of Parliament and Oath That no man should make any alteration in the Government of Church and State as it is now established and that it is the duty of all good Subjects in humble and quiet manner to obey the present Government Yet you not only declare your self but by your example you invite others to think themselves â—oosed from that Obligation and that it is free for them to make any alteration in either as they shall think fit concluding your whole Paper with these words And this I understand as a part of my Oath which is a treasonable invasion upon the Royal Legislative Power as if it were
or Government or to deprave his Laws and Acts of Parliament or misconstrue his Proceedings whereby any misliking may be moved betwixt his Highness and his Nobility and loving Subjects in time coming under the pain of death certifying them that do in the contrary they shall be reputed as seditious and wicked instruments enemies to his Highness and the Commonwealth of this Realm and the said pain of death shall be executed upon them with all rigour in example of others Act for preservation of His Majesties Person Authority and Government May 16â—2 And further it is by His Majesty and Estates of Parliament declared statuted and enacted That if any person or persons shall by writing printing praying preaching libelling remonstrating or by any malicious or advised speaking express publish or declare any words or sentences to stir up the people to the hatred or dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastical or of the Government of the Church by Archbishops and Bishops as it is now setled by Law That every such person or persons so offending and being Legally Convicted thereof are hereby declared incapable to enjoy or exercise any place or employment Civil Ecclesiastik or Military within this Church and Kingdom and shall be liable to such further pains as are due by the Law in such Cases Act 130. Par. 8. James 6. May 22. 1584 Anent the Authority of the Three Estates of Parliament THe Kings Majesty considering the Honour and the Authority of his Supreme Court of Parliament continued past all memory of man unto their days as constitut upon the free Votes of the Three Estates of this ancient Kingdom by whom the same under God has ever been upholden rebellious and traiterous Subjects punished the good and faithful preserved and maintained and the Laws and Acts of Parliament by which all men are governed made and established And finding the Power Dignity and Authority of the said Court of Parliament of late years called in some doubt at least some curiously travelling to have introduced some Innovation thereanent His Majesties firm will and mind always being as it is yet That the Honour Authority and Dignity of his said Three Estates shall stand and continue in their own Integrity according to the ancient and laudable custom by-gone without any alteration or diminution Therefore it is statuted and ordained by our said Soveraign Lord and his said Three Estates in this present Parliament That none of his Leidges or Subjects presume or take upon hand to impugn the Dignity and Authority of the said Three Estates or to seek or procure the innovation or diminution of the power and Authority of the same Three Estates or any of them in time coming under the pain of Treason The Earl of Argyle's first Petition for Advocats or Council to be allovved him To his Royal Highness His Majesties High Commissioner and to the Right Honourable the Lords of His Majesties Privy-Council The Humble Petition of Archibald Earl of Argyle SHEWETH THat your Petitioner being Criminally Indicted before the Lords Commissioners of ustitiary at the instance of His Majesties Advocate for Crimes of an high Nature And whereas in this Case no Advocate will readily plead for the Petitioner unless they have your Royal Higâ—ness's and â—ordships Special Licence and Warrant to that Effect which is usual in the like Cases It is therefore humbly desired that Your Royal Highness and Lordships would give special Order and Warrant to Sir George Lockhart his ordinary Advocate to consâ—lt and plead for him in the foresaid Criminal Process without incurring â—ny hazard upon that account and your Petitioner shall ever pray Edenburgh Novemb. 22. 1681. The Councils Answer to the Earl of Argyl's first Petition about his having Advocates allowed him HIS Royal Highness his Majesties High Commissioner and Lords of Privy-Council do refuse the desire of the above-written Bill but allows any Lawyers the Petitioners shall employ to consult and plead for him in the Processof Treason and other Crimes to be pursued against him at the instance of His Majesties Advocate Extr. By me Will. Paterson The Earl of Argyl's second Petition for Council to be allovved him To His Royal Highness His Majesties High Commissioner and to the Right Honourable the Lords of His Majesties Privy-Council The humble Petition of Archibald Earl of Argyle SHEWETH THat your Petitioner having given in a former Petition humbly representing That he being Criminally Indicted before the Lords Commissioners of Justitiary at the instance of His Majesties Advocate for Crimes of an high Nature And therefore desiring that your Royal Highness and Lordships would give special Warrant to Sir George Lockhart to consult and plead for him Whereupon your Royal Highness and Lordships did allow the Petitioner to make use of such Advocates as he should think fit to call Accordingly your Petitioner having desired Sir George Lockhart to consult and plead for him he hath as yet refused your Petitioner And by the 11. Parliament of King James the VI. Cap. 38. As it is the undeniable priviledg of all Subjects accused for any Crimes to have liberty to provide themselves of Advocates to defend their Lives Honour and Lands against whatsoever accusation so the same Priviledg is not only by Parliament 11. King James the VI. Cap. 90. farther asserted and confirmed but also it is declared That in case the Advocates refuse the Judges are to compel them lest the party accused should be prejudged And this being an affair of great importance to your Petitioner and Sir George Lockhart having been not only still his ordinary Advocate but also by his constant converse with him is best known to your Petitioners Principles and of whose eminent abilities and fidelity your Petitioner as many others have hath had special proof all along in his Concerns and hath such singular confidence in him that he is most necessary to your Petitioner at this occasion May it therefore please Your Royal Highness and Lordships to interpose your Authority by giving a special Order and Warrant to the said Sir George Lockhart to consult and plead for him in the said Criminal Process conform to the tenor of the said Acts of Parliament and constant known practice in the like Cases which was never refused to any Subject of the meanest quality even to the greatest Criminals And Your Royal Highness's and Lordships Answer is humbly craved Edenburgh Novemb. 24. 1681. The Councils Answer to the Earl of Argyle's second Petition HIS Royal Highness His Majesties High Commissioner and Lords of Privy Council having considered the foresaid Petition do adhere to their former Order allowing Advocates to appear for the Petitioner in the Process foresaid Extr. By me Will. Paterson The Earl of Argyle's Letter of Attorney constituting Alexander Dunbar his Procurator for requiring Sir George Lockhart to plead for him WE Archibald Earl of Argyle do hereby substitute constitute and ordain Alexander Dunbar our Servitor to be our Procurator to pass and require
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
all Oaths and Obedience And consequently strikes at the root of all Laws as well as this Whereas to shun all this not only this excellent Statute 107. has secured all the rest but this is common Reason And in the opinion of all Divines as well as Lawyers in all Nations Verba juramenti intelliguntur secundum ment em intentionem ejus cui fit juramentum Which is set down as the grand position by Sandersone whom they cite Pag. 137. and is founded upon that Mother-Law Leg. 10. cui interrogatus f. f. de interrogationibus in Iure faciendis and without which no man can have sense of Government in his head or practise it in any Nation Whereas on the other hand there is no danger to any tender Conscience since there was no force upon the Earl to take the Oath but he took it for his own advantage and might have abstained 2. It is inferred from the above-written matter of Fact That the Earl is clearly guilty of contravention of the 10. Act Parl. 10. James VI. Whereby the Liedges are commanded not to write any purpose of Reproach of His Majesties Government or misconstrue his Proceedings whereby any misliking may be raised betwixt his Highness his Nobility or his People And who can read this Paper without seeing the King and Parliament reproached openly in it For who can hear that the Oath is only taken as far as it is consistent with it self and the Protestant Religion but must necessarily conclude that in several things it is inconsistent with it self and the Protestant Religion For if it were not inconsistent with it self and the Protestant Religion why this Clause at all but it might have been simply taken For the only reason of hindering it to be taken simply was because of the inconsistency ergo there behoved necessarily to be an inconsistency And if there be any inconsistency with the Protestant Religion or any contradiction in the Oath it self can there be any thing a greater Reproach on the Parliament or a greater ground of mislike to the People And whereas it is pretended That all Laws and Subsumptions should be clear and these are only Inferences It is answered That there are some things which the Law can only forbid in general And there are many Inferences which are as strong and natural and reproach as soon or sooner than the plainest defamations in the world do For what is openly said of reproach to the King does not wound him so much as many seditious Insinuations have done in this Age and the last So that whatever was the Earl's design albeit it is always conceived to be unkind to the Act against which himself debated in Parliament yet certainly the Law in such cases is only to consider what essect this may have amongst the People And therefore the Acts of Parliament that were to guard against the misconstruing of His Majesties Government do not only speak of what was designed but where a disliking may be caused and so judgeth ab effectu And consequentially to the same emergent Reason it makes all things tending to the raising of dislike to be punishable by the Act 60. Parl. 6. Queen Mary and the 9. Act. Parl. 20. James VI. So that the Law designed to deter all men by these indefinite and comprehensive Expressions And both in this and all the Laws of Leasing-making the Iudges are to consider what falls under these general and comprehensive words Nor could the Law be more special here since the makers of Reproach and Slander are so various that they could not be bound up or exprest in any Law But as it evidently appears that no man can hear the words exprest if he believe this Paper but he must think the Parliament has made a very ridiculous Oath inconsistent with it self and the Protestant Religion the words allowing no other sense and having that natural tendency Even as if a man would say I love such a man only in so far as he is an honest man he behoved certainly to conclude that the man was not every way honest So if your Lordships will take measures by other Parliaments or your Predecessors ye will clearly see That they thought less than this a defaming of the Government and misconstruing His Majesties Proceedings For in Balmerino's Case the Justices find an humble Supplication made to the King himself to fall under these Acts now cited Albeit as that was a Supplication so it contained the greatest expressions of Loyalty and offers of Life and Fortune that could be exprest Yet because it insinuates darkly That the King in the preceeding Parliament had not favoured the Protestant Religion and they were sorry he should have taken Notes with his own hands of what they said which seems to be most innocent yet he was found guilty upon those same very Acts. And the Parliament 1661. found his Lordship himself guilty of Leasing making tho he had only written a Letter to a private Friend which requires no great care nor observation but this Paper which was to be a part of his own Oath does because after he had spoken of the Parliament in the first part of this Letter he thereafter added That the King would know their Tricks Which words might be much more applicable to the private Persons therein designed than that the words now insisted on can be capable of any such Interpretation And if either Interpretations upon pretext of exonering of Conscience or otherwise be allowed a man may easily defame as much as he pleases And have we not seen the King most defamed by Covenants entered into upon pretence to make him great and glorious By Remonstrances made to take away his Brother and best Friend upon pretence of preserving the Protestant Religion and His Sacred Person And did not all who rebelled against him in the last Age declare That they thought themselves bound in duty to obey him but still as far as that could consist with their respect to the Protestant Religion and the Laws and Liberties which made all the rest ineffectual And whereas it is pretended That by these words I take the same in as far as it is consistent with it self and the Protestant Religion nothing more is meant but that he takes it as a true Protestant His Majesties Advocate appeals to your Lordships and all the Hearers if upon hearing this Expression they should take it in this sense and not rather think that there is an inconsistency For if that were possible to be the sense what need he say at all as far as it is consistent with it self Nor had the other part as far as it is consistent with the Protestant Religion been necessary For it is either consistent with the Protestant Religion or otherwise they were Enemies to the Protestant Religion that made it Nor are any Lawyers or others in danger by pleading or writing For these are very different from and may be very easily pleaded without defaming a Law and an
Oath when they go to take it But if any Lawyer should say in pleading or writing That the Test was inconsistent or which is all one that it were not to be taken by any man but so far as it was consistent with it self and the Protestant Religion no doubt this would be a crime even in pleading tho pleading has a greater allowance than deliberate swearing has And as there is nothing wherein there is not some inconveniency so the inconveniency of defaming the Government is much greater than that of any private mans hazard who needs not err except he please Whereas it is pretended That before the Earl gave in this Explication there were other Explications spread abroad and Answers read to them in Council and that the Council it self gave an Explication It is answered That if this Paper be Leasing-making or misconstruing His Majesties Proceedings and Treasonable as is contended then a thousand of the like offences cannot excuse it And when the King accused Noblemen Ministers and others in the Year 1661. for going on in the Rebellions of that Age first with the Covenanters and then with the usurpers it was found no Defence That the Nation was over-grown with those Crimes and that they were thought to be duties in those days Yea this were to invite men to offend in multitudes And albeit sometimes these who follow the examples of multitudes may thereby pretend this as an excuse to many yet this was never a formal Defence against Guilt nor was ever the chief of the Offenders favourable on that Head And it is to be presumed That the Earl of Argyle would rather be followed by others than that he would follow any example But His Majesties Advocate does absolutely decline to debate a point that may defame a constant and standing Act of Parliament by leaving upon record a memory of its being opposed Nor were this Relevant except it could be said the Council had allowed such Explications which reflected upon the King and the Government For the writing an Answer is no allowance but a condemning Not can the Council allow any more than they can remit And tho it may justly be denied that the Council heard even the Earl's own Explanation yet the hearing or allowing him to sit is no Relevant Plea because they might very justly have taken a time to consider how far it was fit to accuse upon that Head And it is both just and fit for the Council to take time and by express Act of Parliament the negligence of the Kings Officers does not bind them For if this were allowed Leading men in the Council might commit what Crimes they pleased in the Council which certainly the King may quarrel many years after And tho all the Council had allowed him that day any one Officer of State might have quarrelled it the next day As to the Opinion of Bellarmine Sanderson and others it is ever contended that the Principles of the Covenant agree very well with those of the Iesuits and both dostill allow Equivocations and Evasions But no solid Orthodox Divine ever allowed That a man who was to swear without any Evasion should swear so as he is bound to nothing as it is contended the Earl is not for the Reasons represented And as they still recommend That when men are not cleare they might abstain as the Earl might have done in this Case so they still conclude That men should tell in clear terms what the sense is by which they are to be bound to the State Whereas the Earl here tels only in the general and in most ambiguous terms That he takes it as far as he can obey and as far as it is consistent with the Protestant Religion and that he takes it in his own sense and that he is not bound by it from making alterations but as far as he thinks it for the advantage of Church or State Which sense is a thousand times more doubtful than the Test and is in effect nothing but what the taker pleases himself As to the Treason founded on His Majesties Advocate founds it first upon the Fundamental and Common Laws of this and all Nations whereby it is Treason for any man to make any alteration he shall think for the advantage of Church or State Which he hopes is a Principle cannot be denied in the general And whereas it is pretended That this cannot be understood of mean alterations and of alterations to be made in a lawful way It is answered That as the thing it self is Treason so this Treason is not taken off by any of these qualifications because he declares he will wish and endeavour any alteration he thinks fit And any alteration comprehends all alterations that he thinks fit Nam propositio indefinita aequipollet universali And the word any is general in its own nature and is in plain terms a reserving to himself to make alterations both great and small And the restriction is not all alterations that the King shall think fit or are consistent with the Laws and Acts of Parliament but he is still to be Judge of this and his Loyalty is to be the Standard Nor did the Covenanters in the last Age nor do these who are daily executed decline that they are bound to obey the King simply but only that they are bound to obey him no otherwise than as far as his Commands are consistent with the Law of God of Nature and of this Kingdom and with the Covenant And their Treason lies in this And when it is asked them Who shall be judge in this they still make themselves Judges And the reason of all Treason being that the Government is not secure it is desired to be known what way the Government can be secured after this Paper since the Earl is still Judge how far he is obliged and what is his Loyalty And if this had been sufficient the Covenant had been a very excellent Paper for they are there bound to endeavour in their several stations to defend the Kings Person but when the King challenged them how they came to make War against him their great Refuge was That they were themselves still ludges as to that And for illustrating this Power the Lords of Justitiary are desired to consider quid Iuris if the Earl or any man else should have reserved to himself in this Oath a liberty to rise in Arms or to oppose the lineal Succession tho he had added in a lawful manner For the thing being in it self unlawful this is but shamm and Protestatio contraria facto And if these be unlawful notwithstanding of such additions so much more must this general reservation of making any alterations likewise be unlawful notwithstanding of these additions For he that reserves the general power of making any alteration does a fortiori reserve power to make any alteration tho never so fundamental For all particulars are included in the General and whatever may be said against the Particulars may much
more strongly be said against the General 2. The 130. Act. Par. 8. James VI. is expresly founded on because nothing can be a greater diminution of the power of the Parliament than to introduce a way or mean whereby all their Acts and Oaths shall be made insignificant and ineffectual as this Paper does make them for the Reasons represented Nor are any of the Estates of Parliament secure at this rate but that they who reserved a general power to make all alterations may under that General come to alter any of them 3. What can be a greater impugning of the Dignity and Authority of Parliaments than to say That the Parliament has made Acts for the security of the Kingdom which are in themselves ridiculous inconsistent with themselves and the Protestant Religion And as to what is answered against invading the Kings Prerogative and the Legislative Power in Parliaments in adding a part to an Oath or Act is not relevantly inferred since the sense of these words And this I understand as a part of my Oath is not to be understood as if any thing were to be added to the Law but only to the Oath and to be an interpretation of the Oath It is replied That after this no man needs to add a Caution to the Oath in Parliament But when he comes to take the Oath do the Parliament what they please he will add his own part Nor can this part be looked upon as a sense For if this were the sense before this Paper he needed not understand it as a part of it for it wanted not that part And in general as every man may add his own part so the King can be secure of no part But your Lordships of Justitiary are desired to consider how dangerous it would be in this Kingdom and how ill it would sound in any other Kingdom That men should be allowed to reserve to themselves liberty to make any alteration they thought fit in Church or State as to the legality of which they were themselves to be Judges And how far from Degree to Degree this at last may come to absolute Anarchy and how scandalous a thing as well as unsecure this new way may look in an Age wherein we are too much tracing the steps of our rebellious Progenitors in the last whose great detection and error was That they thought themselves and not the King the Authors of Reformation in Church and State And no man ever was barred by that that the way he was upon was not a lawful way For if it be allowed to every man to take his own way every man will think his own way to be the lawful way As to the Perjury it is founded on this first That perjury may be committed not only by breaking an Oath but even in the swearing of it viz. to swear it with such Evasions as make the Oath ineffectual For which Sandersone is cited Pag. 138. Alterum Perjurii genus est novo aliquo excogitato Commento Iuramenti vim declinare aut eludere Iurans tenetur sub poena Perjurii implere Secundum Intentionem deferentus both which are here For the Earl being bound by the very Oath to swear in the genuine meaning without any evasion he has sworn so as he has evaded every word there being not one word to which it can be said particularly he is bound as is said And it is undeniable that he has not sworn in the sense of the makers of the Law but in his own sense which is Perjury as is said And consequentially whatever sense may be allowed in ambiguous Cases yet there can be none where the Paper clearly bears Generals And where he declares That he takes it in his own sense His Majesties Advocate declares he will not burden himself that Copies were disperst tho it is certain since the very Paper it self by the giving in is chargeable with all that is above charged upon it Sir John Dalrymple's Defence and Plea for the Earl of Argyle by way of Reply upon the King's Advocate SIR John Dalrymple replies for the Pannel That since the solid grounds of Law adduced in the Defences have received no particular Answers in relation to the common consent of all Casuists viz. That a party who takes an Oath is bound in Conscience to clear and propose the terms and sense in which he does understand the Oath Nor in relation to the several Grounds adduced concerning the legal and rational Interpretation of dubious Clauses And since these have received no Answers the Grounds are not to be repeated but the Proctors for the Pannel do farther insist on these Defences 1. It is not alledged That any Explanation was given in by the Pannel to any person or any Copy spread before the Pannel did take the Test in Council So that it cannot be pretended That the many Scruples that have been moved concerning the Test did arise from the Pannel's Explication But on the contrary all the Objections that are answered and obviated in the Pannel's Explication were not only privately muttered or were the thoughts of single or illiterate persons but they were the difficulties proposed by Synods and Presbyteries long before the Pannel came from home or was required to take the Test So that the general terms of the Acts of Parliament founded upon in the Libel are not applicable to this Case For as these Laws in relation to Leasing makers are only relative to atrocious wilful Insinuations or misconstructions of His Majesties Person or Government or the open depraving of his Laws so the restrictive Clause whereby sedition or misconstructions may be moved raised or engendered betwixt His Majesty and his Liedges cannot be applied to this Case where all these Apprehensions and Scruples were on foot and agitated long before the Pannel's Explanation As it cannot be pretended That any new dust was raised by the Pannel's Explanation so it is positively offered to be proved That there is not one word contained in this Explanation but that either these individual words or much worse had been publikly proposed and verbatim read in Council without the least discouragement or the least objection made by any Member of the Council And where a Writing ex proposito read in so high a Court was universally agreed upon without the alteration of a Syllable how can it be pretended That any person thereafter using the said in â—ividual terms in any Explanation and far easier terms that they shall incur the high and infamous Crimes libelled And the question is not here Whether the Council was a proper Judicature to have proposed or imposed a sense or allowed any Explanation of the Test to be published but that it is impossible that a sense they allowed or being publikly read beâ—ore them and which the Kings Advocate did not controll that this should import Treason or any Crime And tho the Pannels Advocate will not pursue or follow the Reply that has been made to this point yet
the irrefragable opinion of all Divines of whatever perswasion is not only clear from the Authority above-mentioned even those who allow of reserved senses but more especially by the universal suffrage of all Protestant Divines who tho they do abominate all thoughts of Subterfuges or Evasions after taking of the Oath yet they do always allow and advise for the safety and security of a doubting and scrupulous Conscience that they should express and declare before the taking of the Oath the true sense and meaning wherein they have freedom to take it and for which Sandersone de Iuramento is cited Prelect 6. Sect. 10. pag. 75. where his words are Sane ut inter Iurandum omnia recte fiant expedit ut de verborum sensu inter omnes partes quarum interest liquido constet quod veteribus dictum liquido Iurare And an Oath being one of the highest Acts of Devotion containing Cultum Latriae there is nothing more consonant to the Nature of all Oaths and to that Candor Ingenuity and Christian simplicity which all Law and Religion requires in such cases The Kings Advocate 's Third Plea against the Earl of Argyle HIS Majesties Advocate conceives he has nothing to answer as to depraving Leasing-making and mis-interpreting c. save that this Oath was only designed to exclude Recusants and consequently the Pannel may thereby be debarred from his Offices but not made guilty of a Crime To which he Triplies 1. If ever the Earl had simply refused that had been true but that did not at all excuse from defaming the Law for a defamer is not punished for refusing but for defaming 2. If he had simply refused the Government had been in no more hazard but if men will both retain their Places and yet take the same in such words as secure not the Government it were strange to think that the design of the Law being to secure against mens possessing who will not obey that yet it should allow them possession who do not obey Nor is the Refuser here in a better Case than the Earl and others who offered to obey because it is the defaming the Law as ridiculous and inconsistent with that Protestant Religion and Leasing-making betwixt the King the Nobility and the People the misconstruing and misrepresenting as hath been formerly urged that puts the Earl in a worse Condition And all those Arguments might be as well urged for any who had uncontrovertedly contraveened these Acts as for the Pannel Whereas it is pretended That the King emitted a Proclamation to satisfie Dissenters it is answered That the Proclamation was designed for none who had been Members of Parliament and so should have known the sense but it was designed for meer ignorants not for such as had defamed the Law which is still here charged upon the Pannel As to the Article of Treason it is conceived That it is unanswerably founded upon the Common Law discharging all men to make alteration of the Government As to which there needs no express Statute that being the very essence of Government and needing no Laws Like as it falls positively under all the Laws that discharge the assuming the Royal or Legislative Power For to alter the Government is inseparably united to the Crown Like as the Subsumption is as clear the express words not bearing That the Earl reserves to himself a power to propose to His Majesty any alterations or to concur to serve His Majesty in making alterations but owning in most general and arbitrary terms to wish and endeavour any alteration he should think fit for the advantage of Church or State and not determining any thing that could bind him otherwise than according to his own pleasure For the word lawful is still subjected to himself and has subjoyned to it as he should think fit which governs the whole Proposition and in that sense and as the words are here set down the greatest Rebel in Scotland will subscribe that Explanation For there is no man but will restrict himself to a lawful obedience providing he be Judg of the lawfulness And seeing all Oaths proposed for the security of Government require a certain depending upon the Legislator and not upon the Taker it is impossible that that end could be attained by any qualification how special soever which is made to depend absolutely upon the Taker and not upon the Legislator And we have often seen how little security there is in those specious words the very Covenant it self having not only the very words above-repeated but attesting all the world to be witnesses to their Loyalty and Sincerity And as to the former Instances viz. rising in Arms or opposing the lawful Successor there is no Covenanter in Scotland but will say he will do neither but in a lawful way and in his station and in a way consistent with his Loyalty for a man were mad to say otherwise But yet when they come to explain this they will only do it as they think fit and will be Judges themselves and then will tell us That defensive Arms are lawful and that no Popish Successor should succeed nor no Successor unless he subscribe the Covenant And whereas it is pretended That no Clause in the Test does exclude a man from making alterations it is answered That the alterations which the Test allows are none at all but in subordination to Authority And as to the Two Points above-mentioned it excludes all alterations as to these Points And as to the making fundamental alterations this reservation allows to make any alteration and consequently fundamental alterations to preclude which Libertinisme this excellent Law was invented Whereas it is pretended That the Pannel designs not to add any thing as a part of the Law but as a part of his Oath it is duplied Since the Oath is a part of the Law whoever adds to the Oath adds to the Law Whereas it is pretended That the Crime of Perjury cannot be inferred here because all Divines allow That the Taker of an Oath is still allowed to declare in what sense he takes the Oath and that this is clear from Sandersone Pag. 175. It is triplied That where there are two dubious senses Lawyers and Divines allow That the Taker should clear himself which of the Two he should take which is very just because to which soever of the two he determines himself the Legislator in that Case is sure of him But here it is not pretended That there are two senses nor does the Pannel declare in which of the two he takes it or in what clear sense at all he takes it which is indeed liquido Iurare But here the Pannel neither condescends what particular clause of the Test is unclear nor after he has condescended upon the Articles does he condescend upon the sense but in general mysterious words where he can neither be followed nor found out He only takes it in so far as it is consistent with it self and the Protestant Religion
the impugning of the Authority of Parliament as the Earl may appeal not only to his Majesties true and Royal sense but to the most scrupulous and nyce affecters of the exactest discerning besids that they were first formally tendered in Council for their approbation and by them directly allowed How then can any man think that they could be charged with the greatest and vilest of crimes Leasing-making depraving perjury and treason But the Advocate tells us That there are some things which the law commonly forbids in general and that some inferences are as natural and strong and reproach as soon or sooner then the plainest defamations But what of all this Must therefore such generalls be left to the phantastik application of every wild imagination to the confounding of the use of speach and subverting of of humane Society and not rather be still submitted to the Judgement of common sense for their true and right understanding and the deducing thence these strong and natural inferences talk't of Of which good sense if the Advocate do but allow a grain weight it is evident that the inferences he here libells against the Earl must infallibly be cast and by all rational unbyassed men be found strange unnaturall and monstrous For S r 2ly pray observe these rational and sound Maxims he sounds his inferences on and they are manifestly these First That he who sayes he will onely obey as far as he can invents a new way whereby no man is at all bound to obey 2ly That he who in the midst of hundreds of exceptions and contradictions objected against on Oath injoyned by Act of Parliament and still unanswered sayes that he is confident the Parliament never intended to impose contradictory Oaths reproaches the Parliament 3ly That he that sayes he must explain an ambiguous Oath for himself before he take it renders all Laws and Oaths useless and makes himself the Legislator 4ly That he that sayes that he takes this Oath as far as it is consistent with it self and the Protestant Religion swears nothing 5ly That he that declars himself not tyed up by the Test from endeavouring in a lawful way such alterations as he thinks to the advantage of Church and State consistent with Religion and Loyalty declares himself and all others loosed from the Government and all duty to it and free to make any and all alterations that he pleases And 6ly That he that takes the Test with an explanation and holds it to be a part of his Oath invads the Legislative power and makes Acts of Parliament Upon which rare and excellent propositions I dar say The Earl is content according to the best Judgment that you and all unbyassed men can make either of their truth or of my ingenuity in excerping them to be adjudged guilty or not guilty without the least fear or apprehension of the issue And in the third and last place I shall only intreat you to try how the Advocat's reasoning will proceed in other cases and what brave work may be wrought by so usefull a tool Suppose then a man refuse the Test simply or falls into any other kind of non-conformity either civil or Ecclesiastik or pay's not the Kings custom or other dues or lastly understands an Act otherwise then the Advocate thinks he should is not his Indictement already formed and his process as good as made viz. That he reguards not the Law that he thinks it is unjustly or foolishly enacted that he will only obey as far as he can and as he pleases and thereby renders all Laws useless and so reproaches the King and Parliament and impugns their Authority and assumes to himself the Legislative power and therefore is guilty of Leasing-making depraving his Majesties Lavvs and of treason of which crimes above mentioned or one or other of them he is actor art and part Which being found by an Assize he ought to be punished with the pains of death forfaulture and escheat of lands and goods to the terror of others to doe or commit the like hereafter And if there be found a convenient Judge the poor man is undoubtedly lost But Sir having drawn this parallel rather to retrive the Earl's case then to make it a precedent which I hope it shall never be and choosing rather to leave the Advocate then follow him in his follies I forbear to urge it further These things considered must it not appear strange beyond expression how the Earl's Explanation such as it is did fall under such enormous and grievous misconstructions For setting aside the Councils allowance and approbation which comes to be considered under the next head suppose the Earl or any other person called before the Council and there required to take the Test had in all due humility said either that he could not at all take it or at least not without an Explanation because the Test did contain such things as not only he but many other and those the best of the Loyal and Orthodox Clergy did apprehend to be contradictions and inconsistencies And thereupon had proponed one or two such as the Papers above set down do plainly eneugh hold out and the Bishop in his Explanation rather evades then answers would it not be hard beyond all the measures of equity and charity to look upon this as a designed reflection far more a malicious and wicked slander and the blackest treason We see the Act of Parliament doth not absolutly injoyn the taking of the Test but only proposeth it to such as are intrusted in the Government with the ordinary certification either of losing or holding their Trusts at their option We know also that in cases of this nature it is far more suitable both to our christian liberty and the respect we ow to a christian Magistrat to give a reason of our consciencious non-complyance with meekness and fear then by a mute compearance to fall under the censure of a stubborn obstinacy And lastly it is certain and may safely be affirmed without the least reproach that Parliaments are not infallible as witness the frequent changes and abrogations of their own Acts and their altering of Oaths imposed by themselves and even of this Oath after it was presented which the Earl was not for altering so much as it was done as I told you before How then can it be that the Earl appearing befor a christian Council and there declaring in terms at the worst a litle obscure because too tender modest his Scruples at an Oath presented to him either to be freely taken or refused should fall under any censure If the Earl had in this occasion said he could not take the Test. unless liberty were given him first to explain himself as to some contradictions inconsistencies which he conceaved to be in it though he had said far more then is contained in his contraverted Explanation yet he had said nothing but what Christian liberty hath often freely allowed and christian charity would readily construe
for an honest expression of a commendable tenderness without any imputation of reproach against either King or Parliament How much more then is his part clear and innocent when albeit so many thought the contradictions to be undeniable yet such was his well tempered respect both to God and man to his own conscience and his Majesties Authority that before and not after the taking of this Oath to clear himself in the midst of the many exceptions and scruples raised of all ambiguities in swearing he first applies himself for a satisfying Explanation to the Parliament the prime imposers their true intentions and genuine meaning and then gathering it very rationally from the Oaths consistency with it self and with the Protestant Religion the Parliaments aim and scope and so asserting the King and Parliaments truth and honour he places the reliefe and quiet of his own Conscience in his taking the Test with this Explanation and in declaring its congruity with his Oath and duty of Allegiance The third Head of the Earl's additional defences is the further clearing and improving of his grounds of Exculpation above adduced and repelled Which were first that before the Earl did offer his Explanation to the Council a great many Papers were spread abroad by some of the Orthodox Clergy charging the Test with contradictions inconsistencies 2ly That there was a paper penned by a reverend Bishop and presented and read in Council and by them allowed to be printed which did contain the same and far more important things then any can be found in the Earl's Explanation And consequently far more obnoxious to all His Majesties Advocat's accusations 3ly That the Explanation upon which he was indicted was publikly by himself declared in Council and by the Council allowed so that the Oath was administrat to him and he received to sit in Council and vote by His Highness and the rest of the Members with and under this express qualification But to all urged for the Earl's Exculpation the Advocate makes one short answer viz. That if the Earl's paper did infer the crimes charged on it a thousand the like offences cannot excuse it And his Majesty is free to pursue the offenders when and in what Order he thinks fit which answer doth indeed leave the Council and all concerned in his Majesties mercy But that it doth no way satisfie the Earl's plea is manifest For the first ground of Exculpation viz. that before the Earl did offer his Explanation a great many papers writ by the Orthodox Clergy and others were abroad charging the Test with Contradictions c. was not alledged by the Earl merely to justify his Explanation by the multitude of the like papers and so to provide for an escape in the croud But the Earl having most rationally pleaded that his Explanation was given in by him after these many Scruples and Objections raised by others were abroad it was a good Plea from a most pregnant circumstance clearing both the design and sense of his words from the soul aspersions of reproaching and depraving thrown upon them Seing the words spoken by him under the motive of such a circumstance by all fair rules of interpretation insteed of being judged misconstrueing and depraving could only be understood as a seasonable asserting of the integrity of the Parliaments intentions and the uprightness of the Earl's Conscience which argument being in reason unanswerable it necessarly follows that the Advocat's return to the first ground was neither sufficient nor pertinent and that therefore the Exculpation was unjustly repelled But next the second ground of Exculpation is so far from being answered by the Advocate that it does not appear it was so much as understood For the Earl's argument being That words allowed approven by the Council can never fall under the accusation either of Leasing-making or slandering his Majeslies proceedings or depraving Laws and Acts of Parliament as is evident in it self and granted by the Advocate where he say's that an Explanation though reflecting on the King and Goverment which the Earl's was not yet if allowed by the Council is to be sustained But so it is that the Council hath allowed the words contained in this Explanation contraverted both in themselves and also in their equivalent and far more important expressions As for instance not only by accepting the Earl's Explanation as shall be cleared in the next place but by giving warrand for the publication of the Bishop of Edinburgh his Vindication wherein First for obviating the contradictions objected from the Confession of Faith he positively asserts that by the Test men do not swear to own every Article of that Confession and yet the Test binds expresly to beleeve that Confession to be founded on and agreable to the Word of God and never to consent to any alteration contrary thereto or inconsistent therewith So that he gives both the Test and the Parliament the Lye And then for removing another Scruple he tells us that By the Test men are not bound up from regular endeavours to rectify or better the established government both of Church and State which is clearly the same thing but not so well cautioned with that which in the Earl's case is made a ground of treason From which it unquestionably followes that the Earl's words having been allowed and approven by the Council could never in Law or reason be thereafter made a ground of accusation by any much less by themselves Now I desire to know where the Advocate in all his Plea doth so much as notice far less answer this defence or what his telling us A thousand offences of the like nature doth not excuse one either doth or can signify seeing this argument for the Farl insteed of pleading excuses doth justify the matter and for ever purge all shadow of offence or ground of quarrel which will be yet more apparent when you shall adde to this the third ground of the Earl's exculpation viz. That the explanation whereupon the Earl was indicted was publikly by himself declared in Council and by the Council allowed and accepted In so much as after he had given his Explanation as the sense wherein he was free to swear the Test the Oath was thereupon administrat to him and he received to sit and vote as a Councellour Whereby it is evident That by this allowance and acceptance the Earl's Explanation became the Councils as much as if after the Earl's pronouncing the words they had verbatim repeated them and told him they were satisfied he should swear the Test in these terms And whether this ought not to be a sufficient exoneration to the Earl let all men judge The Advocate makes a noise That in the case of an Oath required the taker ought to swear it in the sense of the imposer which none doubts and then runs out That The Earl in place of taking it in the imposers sense did unwarrantably intend a sense of his own to the eluding and frustrating of the
ambiguous and needs to be explained And the Earl may confidently averr that of all the Explanations that have been offered even the Councils not excepted his is the mostsafe sound and least disagreeable to the Parliaments true sense and meaning And yet when all others escape he alone must be seased and for a thing so openly innocent clearly justifiable and undeniably allowed found guilty of the worst of crimes even Leasing-making Leasing-telling Depraving of Laws and Treason but all these things God almighty sees and to him the judgment yet belongs And thus I leave this dscourse shutting it up with the case of Archbishop Cranmer plainly parallel to the Earl's to show how much he was more favourably dealt with by the King and Government in those dayes then the Earl now is though he live under a much more merciful and just Prince then that worthy Prelate did for Cranmer being called and promoted by Henry VIII of England to be Archbishop of Canterbury and finding an Oath was to be offered to him which in his apprehension would bind him up from what he accounted his duty he altogether declined the dignity and preferment unless he were allowed to take the Oath with such an Explanation as he himself proposed for salving of his Conscience and though this Oath was no other then the statut and solemn Oath that all his Predecessors in that See and all the mitered Clergy in England had sworn yet he was admitted to take it as you see in Fuller's Church hist Of Britain Lib 5 p. 185 and 186 with this formal Protestation In nomine Domini Amen Coramvobis c. Non est aut erit meae voluntatis aut intentionis per hujusmodi juramentum veljuramenta qualitereunque verba in ipsis posita sonare videbuntur me obligare ad aliquid ratione â—orundum post hac dicendum faciendum aut attentandum quod erit aut esse videbitur contra Legem Dei vel contra illustrissimum Regem nostrum Angliae Legesve aut Praerogativas Esusdem Et quod non intendo per hujusmodi juramentum veljuramentâ— quovis modo me obligare quo minus libere loqui consulere aut consentire valeam in omnibus singulâ—s Reformationem Religionis Christianae Gubernationem Ecclesiae Anglicanae Praerogativam Coronae ejusdâ—m Reipublicae vel commoditatem earundem quoquo modo concernentibus eâ— ubique exequi reformare quae mihi in Ecclesia Anglicana reformanda videbuntur Et secundum hanc interpretationem intellectum hunc non aliter neque alio modo dictum juramentum me praestiturum protestor profiteor That is to say In the Name of God Amen Before yow c. It neither is nor shall be my will or meaning by this kind of Oath or Oaths and however the words of themselves shall seem to sound or signify to bind up my self by vertue hereof to say do or endeavour any thing which shall really be or appear to be against the Law of God or against our most illustrious King of England or against his Laws and Prerogatives And that I mean not by this my Oath or Oaths any wayes to bind up my self from speaking consulting and consenting freely in all and every thing in any sort concerning the Reformation of the Christian Religion the Government of the Church of England and the Prerogative of the Crown of the Commonwealth thereof or their advantage and from executing and reforming such things as I shall think need to be reformed in the Church of England And according to this Explanaton and sense and not otherwise nor in any other manner do I protest and profess that I am to take and perform this Oath Nor did that excellent Person sayes Mr Fuller smother this privatly in a corner but publikly interposed it three severall times once in the Charter-house before authentik witnesses again upon his bended knees befor the high Alter in view and hearing of many people and Bishops beholding him when he was consecrated and the third time when he received the Pall in the same place Now would it not be very strange if the like liberty should not be allowed to the â—arl under His Majesty in reference to the Test which Henry the VIII a Prince that stood as much on his Prerogative as ever any did vouchafe to this Thomas Cranmer who as another Historian observes acted fairly and above-board But there wanted then the high and excellent designs of the great Ministers The rare fidelity of Councellors sound Religion and tender piety of Bishops solid Law and Learning of Advocates incorruptible integrity of Judges and upright honesty of Assizers that now we have to get Archbishop Cranmer accused and condemned for Leasing-making depraving Laws Perjury and Treason to which accusation his Explanation was certainly no less obnoxious then the Earl's But I hasten to the fourth and last head of the Earl's additional defences viz The removing certain groundless pretences alledged by the Advocate for aggravating the Earl's offence ASI That the Earl being a Peer and Member of Parliament should have known the sense of the Parliament and that neither the Scruples of the Clergy nor the Councils proclamation designed for meer Ignorants could any way excuse the Earl for offering such an Explanation But first the Advocate might have remembred that in another passage he taxes the Earl as having debated in Parliament against the Test whereby it is easy to gather that the Earl having been in the matter of the Test a dissenter this quality doth rather justify then aggravat the Earl's Scrupling 2ly If the proclamation was designed for the meer Ignorants of the Clergy as the Advocate calls them who knew nothing of what had past in Parliament an Explanation was far more necessary for the Earl who knows so little of what the Advocate alledges to have past in Parliament viz. That the Confession of Faith was not to be sworn to as a part of the Test that of necessity as I think he must know the contrary In as much as first this is obvious from the express tenor of the Test which binds to own and profess the true Protestant Religion contained in the Confession of Faith and to believe the same to be agreable to the Word of God as also to adhere thereto and never to consent to any change contrary to or inconsistent with the said Protestant Religion Confession of Faith Which to common sense appears as plain and evident as can be contrived or desired But 2ly It is very well known that it was expresly endeavoured and carried in Parliament that the Confession of Faith should be a part of the Test and Oath For the Confession of Faith being designed to be sworn to by an Act for securing the Protestant Religion which you have heard was prepared in the Articles but afterwards thrown out when this Act for the Test was brought in to the Parliament some dayes after by the Bishop of Edinburgh and others the
to defend it in cold blood And vvere it not to digress too much I could name the persons and make them if capable think shame of their falshood and prevarications in that point and of their abusing His Majestie and prostrating Justice but I forbear The Advocate in his book of pleadings makes this a Stretch and sayes His Majesty rescinded it And His Majesty himself hath several times exprest his sense of the stretches made by some against the Earl at that time It is well known the Family of Argyle is both ancient and honourable and hath been Loyal and serviceable to the Crown for several hundreds of years but they must now be destroyed for having done and being able as they say to doe too much which others neither can nor will do Neither is the Advocate ignorant that the only failing that Family hath been charged with in all that long tract of time was a complyance of the late Marqueis of Argyle the Earl's Father in the time of the late Usurpation by sitting in the then Parliament of England some years after all the standing forces of the Kingdom were broken His Majesty beyond sea the whole Countrey overrun the Usurpers universally acknowledged and neither probability of resistance nor possibility of shelter left to any that were most willing to serve His Majesty as the Advocate himself hath published in his printed pleadings in which he likewise layes out the special and extraordinary Circumstances whereby the Marqueis was necessitate to do what he did And the compliance charged on him was so epidemik that all others were pardoned for the same except he alone though none had such favourable Arguments to plead and though he pleaded the same indemnity that saved others And seeing he submitted and delivered up himself and lost his life and seeing at the same time of the compliance that he suffered for the Earl his son was actually serving and suffering for his Majesty as you find in the former part of this Letter the Earl's restitution was no less then He and his Family might well expect of his Majesties Goodness and Iustice. It is true the Earl was again accused and condemned which may appear indeed strange to such as know not all particulars upon the same Old Acts of Leasing-making and with as little ground if possible as now and was pardoned by his Majestie for which he hath often and doth alwayes acknowledge that he owes to his Majesty both his Life and Fortune But upon this occasion and being baited as he is he hopes his Majesty will not take it ill that he say That his Majesties mercy was in this case determined by Justice And for proof that his Majesty did then know him to be innocent did not his Majesty then say It was impossible to take a mans life upon so smal an account Tho nevertheless it had been done if his Majesty had not interposed and pardoned him Did not the Chancellour Clarendoun who was Patron to the most considerable of the Earl's pursuers hearing of his condemnation Blesse God he lived not in a Countrey where there were such Laws He should have said such Iudges And I believe many more will say the same now Did it not plainly appear at that time that his principal pursuers were very bitter malicious and unjust to him For the Earl had not only served his Majesty in that troublesome and hazardous appearance in the Hills but he had been particularly useful to Earl Midletoun then his Majesties Lieutenent General and had stood by him when these deserted him whom notwithstanding he took afterwards by the hand when he was his Majesties Commissioner in the Year 1661 then designed new Interests and new alliances whereof some did hold and some never held And then indeed it was that he and others thought it proper for them to destroy the Family of Argyle to make their own Fortunes But it pleased God and his Majesty to dispose otherwise Then it was that the Earl was so hotly pursued for his life having at that time no Fortune all being in his Majesties hands Then was the accusation of Treason likewise urged by the samepersons and must have carried but it was not found necessary Leasing-making being sufficient to take his life and as it falls out when any game is started and the hounds in chase all the little currs run alongs So the Earl wanted not then many pursuers that are now scarce to be heard of And further some of the parties themselves confessed the particulars to the Earl afterwards vvho yet novv return to Act their former parts and that they had then laid dovvn a resolution to intrap him per fas aut nefas but notvvithstanding all this ill humour and violence all the ground they could get for a quarrell in tvvo Years time vvas one single letter among many they intercepted the occasion and import vvhereof vvas as follows About a tvvelve-month after the death of the late Marqueis of Argyle The Earl his son being by the loss of his estate and burden of his debts brought into straits a friend from Edenburgh wrote to him then at London to do what he could for himself at Court and the sooner the better For he needed neither expect favour nor Justice from some in Scotland and if matters were delayed his Fathers whole estate would be begg'd away in parcels His Friend likewise complained that the Earl did not write to inform his friends in Scotland and on this he insisted severall post-dayes which at last drew an answer from the Earl that he had been to wait upon his Majesty and had found him both just and kind to him and doubted not the effects of his Royalfavour that he was sensible of his loss by delay yet must proceed discreetly and not press to give His Majesty trouble but must take His Majesties method and wait his time That he judged much of what his Friend told him was true but he must have patience It was his misfortune that some took pains to make His Majesty believe that the Parliament was his Enemy and the Parliament to believe the King was his Enemy and by such informations he was like to be a sufferer but he hoped in God all should be well This blast must blow out and will blow over The King will see their tricks And upon this letter specially those last words the Earl was accused of Leasing-making betwixt King and Parliament and that he expected changes and so had a great deal of the same stuff laid to his charge as now you have heard And if the now Register will produce the Earl's principal Letter and the Paper the Earl gave in to the Parliament these two would clear all the case then and now as yow may see Mutatis Mutandis being much the same and some of the same tooles used But to go on The Earl's words in that Letter being clear and plain viz. That he complained of others that reported lies to King and
Parliament but did himself report none to either He acknowledged the Letter which could never have been proven to be his and as soon as he heard that it was intercepted did render himself to his Majesty before he was called for But which very much troubled him had not access Yet his Majesty was so gracious that in stead of sending him prisoner to Scotland with a guard as was much pressed he allowed him to go down on a verbal bale And his Majesty was pleased to say That he saw nothing in the Earl's Letter against his Majesty or the Parliament but believed the Earl did design to reflect on the Earl of Midletoun The Earl came to Edinburgh a fourthnight before the day appointed by his Majesty and thought to have had the liberty of the city till that day should come but was sent to the Castle the next day after his arrival Upon which he advertised his Majesty of his condition who would hardly believe they would take his life till it was told plainly it was designed and if he died it lay at his Majesties door upon which his Majesty was graciously pleased to send immediatly an order to the Earl of Midletoun not to proceed to Execution against him Yet the Sentence of death was pronounced and the day of Execution remitted by the Parliament to the Earl of Midletoun Which he accepted of albeit he had no particular instruction for it from his Majesty which before a year went about Earl Midletoun found could not be justified by him and some of the Earl's chief accusers were declared by his Majesty to be themselves Leasing-makers And then the Earl by his Majesties favour and goodness was restored to a part of his Predecessors estate and titles which he took as thankfully as if a new estate and new and greater honours had been conferred upon him And though His Majesty was pleased at the granting of these titles to say he could help them when he pleased yet his Majesty knows that the Earl never troubled him about any such matter nor solicitedh im now these eighteen years for any Title Office or Imployment though he confesses he had of all sorts nor hath he been burthensome to his Majesties Exchequer 500 l yearly for 4 or 5 years that the Earl served in the Treasury being all that ever he touched of his Majesties money albeit few attended more and none so much that lived at his distance He was also twice at London to kiss his Majesties hands but still on his own charges Which things are not said to lessen his Majesties bounty and goodness whereof the Earl still retaines all just tender and dutifull impressions but to answer the Advocate and to teach others to hold their peace that cannot say so much His life is known to have been true honest and of a peece and all alongs he hath walked with that straightness that he can compare his integrity with all that now attacque him By all which it is apparent that what the Advocate here pretends for an aggravation may well be accounted a second part of the Earl's persecutions but cannot in the least impair either his innocence or his honour Seeing therefore the ground of the Earl's present accusation with all he either designed said or did in this matter was only that when called nay required to take the Test and after leave first obtained from his Highness and Council he did in their presence before the giving of his Oath declare and propose to them the sense wherein he was willing to take it That this his sense neither containes nor insinuats the least slander reproach or reflection either upon the King the Parliament or any Person whatsomever but on the contrair is in effect ten fold more agreeable to the words of the Test and meaning of the Parliament that framed it then the Explanation emitted by the Council and was also most certainly the first day by them accepted and when the next day challenged by him offered to be retracted refused to be signed That the whole Indictment more especially that part of it about the Treason is a meer Rapsody of the most irrational absurd and pernicious consequences that ever the sun beheld not only forcing the Common rules of speech charity and humanity but ranversing all the Topiks of Law Reason and Religion and threatning no less in the Earl's person then the ruine of every mans fortune life and honour That the Earl's Defences and grounds of Exculpation were most pregnant and unanswerable and either in themselves notour or offered to be instantly verified And lastly That the aggravations pretended against him do either directly make for him or most evidently discover the restless malice of some of his implacable enemies Shall our Gracious King who not only clearly understands right and hates oppression but also to all his other excellent qualities hath by his Gentleness and Clemency even towards his Enemie added that great Character of Goodness upon vain and false insinuat ions and unreasonable and violent stretches not only take away the Life of an innocent person but of one who himself and his family be it said without disparagment have for a longer time and more faithfully and signally served His Majesty and the Croun then any person or family of his degree and quality of all his Persecuters can pretend to Shall his numerous family hopeful children his friends and creditors all be destroyed Shall both former services be forgot innocence oppressed and all rules of justice and Laws of society and humanity for his sake overturned Shall not only the Earl be cut off and his noble and ancient Family extinguished but his Blood and Memory tainted with as black and horrible a stain as if he had conspired with Jacques Clement Ravillack The gun-pouder Miscreants The bloody Irish Rebells and all the other most wicked hainous traitours of that gang And all this for a meer imaginary crime whereof it is most certain that no man living hath or can have the least reall conviction and upon such frivolous allegations as all men see to be at the top meer moon shine and at the bottom villanie unmixed After clearing these things the Earl it seems intended to have addressed himself to his Majesties Advocate in particular and to have told him that he had begun very timously in Parliament to fall first on his heritable jurisdictions and then upon his Estate and that now he was fallen upon his life and honour whereby it was easy to divine that more was intended from the beginning then the simple taking away of his Offices seeing that some of them on his refusing the Test were taken away by the certification of the Act of Parliament and that those that were heritable he offered in Parliament to present and surrender to his Majesty on his knee if his Majesty after hearing him should think it fit only he was not willing to have them torn from him as hath been said and if
Explanation at or before his taking of the Test Which emitting as it plainly differs from the point of Acceptance so was the proving of it justly neglected by the Earl because the Emission notour and the charge of Perjury ridiculous as you have it more fully in the Narrative But these things our Author willfully mistakes that he may the more easily abuse strangers As for what our Author here adds That the Earl's Explanation made the Oath no Oath and the Test no Test and would have evacuated the whole Act as he sayes he will prove shall be noticed when he comes to his proofs Only where he sayes The greatest Fanatiks in Scotland owned they would take the Test in the Earl's Sense without prejudice to their Principles It is a groundless assertion and by all of them utterly denyed He sayes The Mist puts a strange abuse upon the world as if the scruples that he sets down were only the scruples of the conformed Clergy whereas many Papers bearing that title were drawn by the Presbyterians But seeing the Paper that the Mist sets down was certainly emitted by one of the conformed Clergy and doth fully homologat with the Rest above-insert in the Narrative which without doubt are all of their fabrik the pretended abuse is altogether groundless But now our Author comes to make good the Earl's Indictment in point of Law And though here we find nothing new or repeated with any advantage and though all be already fully answered in the Narrative yet lest he complain of neglect I shall run over what he alledges as briefly as I can And having set down the words of the Earl's Explanation The first Crime sayes he charged upon the Earl from this Paper is that albeit it be statut That no man interpret the King's Statuts otherways then they bear and to the intent and effect they were made for And that the King and Parliament did appoint the Test to be taken for securing the Protestant Religion and the King's Prerogative without any evasion Yet notwithstanding thereof the Earl did take the Oath in such a sense as did not only evacuate his own taking but learn others how to do the like and evacuate all Acts of the same nature that can be made But seeing that in matter of crimes Statuts are certainly designed for Beacons Land-marks and the most clear distinctive Directions that could be invented as well to hinder men from transgressing as to guard them against the Pains and therefore are to be understood in the most obvious signification that the words do bear Is it not an odd stretch for our Author to think that a man's taking of an Oath enjoined by a Statut in any sense whether true or false pertinent or impertinent if simply offered by him for expeding of his own Conscience should be look't upon as an interpreting or misinterpreting of the Statute which oftentimes happens to be but to clear when the Oath is confessedly ambiguous Thus as to the sense and meaning of the Act in hand viz. That all men therein comprehended should take the Test in manner and under the certification therein contained the Earl never had the least hesitation about it All his difficulty was to clear himself and his own Oath as to the ambiguities acknowledged even by the Council to be in the Test though not in the Act and this he does by referring explicitly to the Parliaments sense and design as it stands expressed in the Act without ranversing either the words of the Test or meaning of the Act as an other approven Explication doth How is it then possible that for this he should be thought concern'd in this Statute as a Misinterpreter And is it not on the other hand very evident that both the Advocate and our Author and their Associats in wresting this Statute which seems principally to have been made against the misinterpreting and wresting of Laws in Iudgment to so remote and extraneous a case are themselves the only Misinterpreters and Transgressours But waving the connexion let us hear how our Author proves the subsumption viz. That the Earl did take the Test in such a sense as did evacuate his own and teach others to do the like and evacuate all other Acts of that nature And to repeat as little as possible he sayes That the design of Laws and Oaths is to procure a certainty of obedience and performance but the Earl's qualified Oath everts this design Wonderfull The Test is in it self granted to be ambiguous and reaches not this design The Earl that he may deal more clearly with God and the Government declares explicitly a plain and certain sense wherein he is willing to take it and the Council who might and ought to have rejected it if not satisfieing do accept of it And yet hereupon he is immediatly by them staged as an Everter Depraver and Traitour And wherefore Because forsooth the Earl promises only to obey the Act as far as he can A most absurd and ridiculous pretence And tells us not in what he will obey Which albeit no crime though true is yet a great falshood For the Earl immediatly subjoins a very certain and congruous sense in which he is willing to take the Test all the obedience here in controversie 2ly Because the Earl sayes that no body can explain it but for himself and reconcile it as it is geuuine c. which adds our Author implyes that it had no plain genuine sense But though the Council did explain this Oath and in so far grant that it had no plain genuine sense for what is already plain without doubt needs no Explanation yet the Earl goes not so far But all he meant was that in the midst of so many Objections made against the Test he could only clear it for himself Which also he does most safely and soundly in referring to its self-consistency and the Parliaments sense and scope the best Rules of interpretation 3ly Because the Parliament designed the Test as a security for the Protestant Religion But sayes our Author The Earl by saying He did only take it in as far as it is consistent with itself and with the Protestant Religion implyes that in some things it is not consistent But 1. Implications which may be so easily strained and oftentimes are found to be as the Fool thinks are terrible grounds of Crimes 2ly If the Parliament designed the Test as a security for the Protestant Religion and the Earl did take it in so far as it is consistent with the same Protestant Religion what can be more agreeable And 3ly It was neither the Earl's words nor intention that the Parliament had framed a Test in some things not consistent with it self and the Protestant Religion but the true sense of his words was and is That however many did alledge both yet he took it in as far as it was consistent which he vvas sure as our Author sayes vvas the Parliaments purpose 4ly Because the design of this
doth still retain its outmost and best Security viz. The Fidelity of such as it intrusts without whose allowance all senses and Explications are utterly insignificant In the 3d. place Our Author offends at the Mist for saying That the Legislator is surest of those who give Explanations plain dealing is alwayes honest dealing Because sayes our Author If this prove any thing it vvill prove that any man may adject any quality and so render all Oaths useless c. But. 1. You have just now heard That the Takers adjecting without the Administators accepting signifies nothing 2ly Our Author acknowledges That vvhere the sense is previously offered to and accepted by the Legislator or such who are by him authorized to administrate which certainly in Law and sense is the same thing it secures the Taker Which notwithstanding of our Author 's reasonless denial is in terminis the Earl's case But 3ly Our Author adds That the Earl's saying He is content to take the Test as far as it is consistent with it self and the Protestant Religion condescends to nothing Strange The Parliament in the Test expressly make the Confession the standard of the Protestant Religion The Council in their Explanation ran verse this and make the Protestant Religion the standard of the Confession and the very fixed point of the Test. And yet when the Earl swears the Test without the least reflection on the Confession as far as it is consistent vvith it self and the Protestant Religion All this must be nothing As to what our Author adds That he is desirous to knovv in vvhat part of Europe such Qualities vvere ever allovved Would he allow me the like liberty I would ask him 1. In what part of Europe was ever such a Test framed 2ly In what part of it was ever such an Explanation as the Earl's after acceptance made a crime And 3ly In what part of the whole world was ever such an Indictment contrived and Judgment past And in the mean time he may find in the Narrative just such a quality as the Earl's allowed in a far plainer Oath by a far severer Prince and in a far more publik manner to Archbishop Cranmer in England And. 2. ly A much more odd One in the same matter by the Scotch Council to the Scotch Clergy Our Author repeats And sayes It vvere most absurd to think that misinterpreting of Laws and defaming of Parliaments should be suffered because thrown in into Explications and that adjected Qualities are worse then Equivocations and mentall Reservations But there being neither Misinterpreting nor Defaming in the Earl's case and the Quality by him adjected being in itself sound and congruous and by the Council accepted Notwithstanding our Author's foolish pretence That it was not first offered by vvay of Petition I cannot stand to refute all impertinencies And as to what he adds about the Councils Explanation emitted in favours of the Clergy that it doth not unsecure the Legislator not admitt the Takers to be Judges as he falsly insinuats that the Earl's doth all these things are already fully examined The second Crime sayes our Author fixed upon the Earl from his Explanation vvas grounded on the Act Ja 6. Par 10. c. 10. Made against defaming of King and Parliament and depraving their Laws But this Crime and all that our Author sayes for enforcing it being so largely and clearly answered in the Narrative I freely grant That Defaming and Depraving are great Crimes That it is one of the principal Concerns of Governours to have themselves esteemed by their People That Lavvs for this effect have been consented to by our Parliaments to serve as our Author loves to speak instead of Armies though yet we have the misfortune to have both That even Insinuations and Inferences if plainly tending to the Reproach and Slander of Rulers may be in so far criminal as to deserve an extraordinary though not the ordinary pain And lastly That in Crimes Dolus malus is for the most part presumed from the nature and circumstances of the Deed it self And shall only adde 1. That where our Author asserts That the forementioned Act of Parliament was made against Words and Papers in general vvhereby misliking might be moved betwixt the King and his Subjects And that it regards the effect only vvithout respect to the Author's design the same is false inconsistent and dangerous False because it is a known Maxime of Lavv and Reason That Maleficia Voluntas Propositum Delinquentis distinguit l. 53 ff de Furtis And to think that the Lavv punishes any thing without either apparent or presumed dole and malice is to confound Crime and Chance Guilt and Innocence 2. Inconsistent because albeit our Author do here tell us that the Parliament look't only to the effect yet afterwards He not only alledges that the Earl's malice may be gathered from the nature and strain of the Paper but endeavours to clear it by several circumstances And lastly Dangerous because thereby a man's best security Innocence and a Conscience void of offence is quite taken away and the man and his words and writings exposed to every perverse Inference that Madness prompted by Malice may suggest 2ly That notwithstanding all the evil inferences and worse consequences that our Author charges upon the Earl's words yet it is impossible for any man considering without prejudice the Circumstances wherein they were emitted not to acknowledge that as they were plainly intended by the Earl for the Exoneration of his ovvn Conscience so in place of Defaming Depraving they evidently contain a very seasonable Vindication of the Parliaments honour and integrity If the Test had been unanimously concluded in Parliament and universally received by the People without hesitation or exception And if in that case a man had idlely and officiously said That he believed that the Parliament did not intend to impose contradictory Oaths and that he for his part could take it as far as it is consistent vvith it self and the Protestant Religion I grant that a nice or malicious Hearer might possibly have formalized and made it a matter of Explication But when it was notour and offered to be proven that contradictions in the Test were the common discourse That almost a third of the orthodox Clergy did on this account scruple at it And severall of them had published their scruples in writing That the Earl when desirous to absent was ordered to be called to the Council either to take the Test or refuse it And that the very day he appeared before them they voted their own Explanation in favours of the Clergy I appeal to all impartial men if the Earl's Asserting publikly his Confidence and Willingness as you have heard instead of a Reflection was not in such a juncture a most just and fair Declaration as well in behalf of the Parliament as of his ovvn Conscience But our Author strains and insists upon Consequences from the precise and abstract words without regaird
needless is found guilty condemned of high Treason which is as full a Concession in my opinion as could have been desired Ay but sayes our Author The former argument still recurs viz. He that will not bind up himself as to any thing reserves a power as to all things which must at least be interpret of unlawful things for lavvful things need no Exception But not to notice our Authors Christian charity and far more observable justice that because Lavvful things need not be reserved though in all cases dubious it be certainly the more tender part to reserve them will therefore have the Earl's Reservation to be of Things unlawful and treasonable The Earl's Reservation is most expresly of Things lawfull in so far as he only refuses to bind up himself in his Station and in a lawfull way as to things advantageous to Church and State not repugnant to Religion and Loyalty Which is a full and cumulative Expression of their Lawfulness And as to what our Author subjoyns of the Earl's putting Limitations on his Allegiance in so far as what he sayes is intelligible it is already answered It being manifest that the Earl's words in stead of being a Limitation are a designed and ample Extension In the next place our Author comes to tell us That the Earl's Qualifications take off the whole force of his Oath either as to rising in Arms or any other unlawfull thing For. 1. Sayes he He takes the Oath only in so far as it is consistent with it self and the Protestant Religion So that if he think the Protestant Religion shall require rising in Arms he is not tyed But. 1. I have told you how false it is that the Earl resolves the force of his Oath upon his own thinking which here he doth not so much as mention 2ly Is it not strange how our Author should judge that the Protestant Religion may not make as certain a Qualification in the Earl's Explanation as it doth in the Councils Where yet in liew of the Confession of Faith the standard appointed by the Parliament it is made the only bar against Popery 3ly What a ridiculous Conceit it is to think that the Earl by offering to take the Test in as far as it is consistent with it self and the Protestant Religion did reserve to himself a liberty to rise in Arms when by an Article of the Test which can neither be taken off nor eluded by any part of the Earl's Explanation he was to swear liquidly and distinctly not to rise in Arms 2ly Sayes our Author The Earl's Oath only tyes him as far as he can which may leave him yet bound by the Covenant But I have already cleared how the Earl did only profess his readiness to obey the Act of Parliament as far as he could without intending by these Words any restriction of his Oath and that to wrest them as if designed for that end is an absurd and willfull errour 3ly Sayes he The Earl takes it only as far as it is consistent with it self And God and the Earl only know how far that is A noble Testimony to the Test And as plain a declaration that our Author neither knows nor caâ—es to know how far it is consistent But having already told you that the Earl did certainly use this Expression to vindicate the Test and his own Conscience from other mens Exceptions and Scruples And that no man in reason either ought to take it or can be bound by it otherwise I shall not here adde any thing And lastly our Author repeates the danger of Limitations telling us That if after the dreadfull effects we have seen produced by them and that Parliaments have condemned them as Treason we should still be secure and unconcerned all the vvorld might laugh at our ruine But seeing it is 1. Most ridiculous to call a manifest Extension an undue Limitation 2ly Most false that ever the Parliament condemned any Limitation of the nature of the Earl's Reservation or that ever a Deed qualified in the Earl's terms was or can be thought dangerous far less rebellious 3ly Most certain that nothing in all times hath so much ruined Government and Governours as the unjust Iealousies and pretended legal but really violent Proceedings of its Ministers I shall not trouble our Author with any further Remarks In the close of his Discourse he thinks fit to instigate Judges to Severity and to guard them against insolent Pity as he calls it which truly after what all men have seen of their frank Procedure against the Earl appeared to me at first reading a very superfluous Caution But my Surprise was only from the want of our Author's fore-sight and was soon intirely discussed For just as I am writing there is come to my hand His Majesties gracious Proclamation for compleeting no doubt the selicity of our Author 's happy Kingdom by ordering the Prosecution of all Rebells and their Resetters c. In the Execution whereof now after the Government had for severall years connived at many hundreds of these Rebells and out-Lavvs and thereby rendered the people secure and careless It is easy to demonstrate that more then ten thousand of his Majesties peaceable Subjects may be prosecute and punished as Traitors and above fourty thousand beside made liable to Fining and Imprisonment at the Councils pleasure A work which I confess requires the highest measures of severity that our Author could prompt to doth indeed leave the far better part of the Kingdom without all refuge or relief save in his Majesties Clemency But where I also hope they shall seasonably and comfortably find it notwithstanding all our Author 's many sly and mischievous Insinuations to the contrair He vvishes the Earl had come in vvill as if forsooth he had proven him to be guilty And as falsly insinuats this to be usual that he may represent him not only as Criminal but a Contemner of his Majesties Mercy He likewise tells us That he doth not admire that this Author and these of his vvay see not this Paper to be Treason since they vvill not acknovvledge it to be Treason to oppose the Succession and to say that it can be altered by a Parliament Which yet the Scotch Parliament thought to be Treason Nor in the last age thought they it Treason to rise in arms against the King and call Parliaments vvithout him So that sayes our Author The fault is only in the depraved Intellectuals of such as have by a long custome of hating Authority bred in themselves a hatred of every Person and thing that can maintain it But not to stay here to discuss all the Calumny and Envy wrap't up in this passage I shall only desire you to consider 1. That our Author would have it a transcendent wonder that the Author of the Mist should say The Succession can be altered by a Parliament And yet he cannot but know that that Person lives under an express Act of Parliament declaring it Treason to say the contrary 2ly He sayes The Scotch Parliament thought it to be Treason to oppose the Succession and to say that it can be altered by Parliament And yet the same Scotch Parliament judged it proper for them to declare and confirm the Succession And Law and Reason say that Constituere destituere sunt ejusdem facultatis But not to insist upon these things For a Conclusion I shall only take the liberty to protest for my self without offering to anticipate the better judgment of others as our Author visibly doth That were I as clear for the Succession as his Royal Highness As dissatisfied with the old Statut and late Proceedings of the English Parliaments about it as our Author As zealous for the Honour and Infallibility of the last Scotch Parliament as his Majesties Advocate As enraged against former Practices as the greatest Torry in Britain And yet more tender and respective of Authority then my ovvn heart I could not have imagined that either Misinterpreting Defaming Depraving or Treason should have been found in the Earl's words And am very apprehensive that the Judgment so given against him may prove a greater bar to the Succession and Reflection on Scotch Parliaments and Judges then all that our Author hath laboured to squeese out of them COPPY OF His Majesties Letter ordering the passing of his two former Signatures for the Earl's Offices and Jurisdictions AT Edinburgh the fifteenth day of January 1669 Years His Majesties Letter under-vvritten direct to the Lords Commissioners of his Treasury and Exchequer vvas presented and read and ordained to be recorded whereof the Tenor followeth Sic suprascribitur CHARLES R. Right trusty and right well beloved Cousins and Councellors and right trusty and well beloved Councellors we greet you well Wee did upon the fyfteenth day of October 1667 sign a Signature in favours of the Earl of Argyle and another shortly after for the Lands of Knoydart The Signatures we are informed are not past And in August last our Secretary acquainted us with a Letter which he had received from our Advocate bearing date the thirteenth day of August 1668 Years together with an Information containing thirteen Reasons against some heritable Offices comprehended in the said Signature We are also acquainted vvith the Earl of Argyle's Ansvvers All vvhich vve have taken into our consideration And although we are very well satisfied with our Advocate in his doing of his duty in representing to us what he conceives to be fit for our service in this particular as also vvith his Fiaelity and Diligence in other things relating to his Place Yet upon serious Consideration of the vvhole matter It is our Gracious Pleasure That the said Signatures vvith these Offices be past our Exchequer and that in the terms exprest in our Letter signed by us soon after the signature any thing in our Instructions to the contrary notvvithstanding For all vvhich this shall be your vvarant And so we bid you farewel Given at our Court at Whiteâ—al the seventh day of January 166 9 8 and of our Reign the 20 Year By His Majesties Command Sic subscribitur Lawderdale Extractum de Libris Actorum Scacarii per me Sic subscribitur THO. MURRAY Clericus Reg. FINIS ☜ ☞ ☞ ☜ ☜ ☜ ☜ ☞ ☜ ☜ ☞ ☞ ☜ ☜ ☞ ☞ ☜ ☜ ☜ ☜ ☜ ☜ ☞ ☞ ☞ ☞ ☞ ☜ ☜ ☜ ☜ ☜ ☜ ☜ ☜ ☜
nane shall be repute as loyal and faithful Subjects to our said Soveraign Lord or his Authority but be punishable as Rebellars and Gainstanders of the samine quhilk shall not give their confession and make their profession of the said true Religion And that all sik as makes profession thereof and yet hes made defection fra their dew obedience ought to our Soveraign Lord shall be admonished be the Pastors and Ministers of the Kirk to acknowledge their offence and turn to their dutieful obedience And if they failzie therein to be excommunicat and secluded from the Society of the Kirk as rebellious and corrupt Members betwixt and the first of Jun nixt to come and that alwayes before sik persons as hes made defection be received to our Soveraign Lords mercie and favour they shall give the Confession of their Faith of new and promise to continue in the Confession of the true Religion in time coming and maintaine our Soveraign Lords Authoritie and that they shall at the utmost of their power fortifie assist and maintaine the true Preachers and Professors of Christs Religion against whatsomever enemies and gainstanders of the same and namely against all sik of whatsomever Nation Estate or degree they be of that hes joyned and bound themselves or hes assisted or assist to set forward and execut the cruel decreits of the Councel of Trent quhilk most injuriously is called by the adversaries of Gods Truth the halie league contrary the Preachers and true Professors of the Word of God Many other Acts and these most peremptory and strict against the Popish Religion as Idolatrie and very pernicious to the Kingdom might here be added But these are set down as most apposite to the purpose and the rest may be seen at length in the printed Acts of Parliament Act Ch. 2. P. 2. C. 1. Anno 1669. Act asserting His Majesties Supremacy over all Persons and in all Causes Ecclesiastik THE Estates of Parliament having seriously considered how necessary it is for the good and peace of Church and State that His Majesties Power and Authoritie in relation to maters and Persons Ecclesiastical be more clearly asserted by ane Act of Parliament Have therefore thought fit it be enacted asserted and declared Likeas His Majestie with advice and consent of his Estates of Parliament doth hereby enact assert and declare that His Majesty hath the supreme Authority and Supremacie over all Persons and in all causes Ecclesiastical within this his Kingdom And that by vertue thereof the ordering and disposal of the external Government and Policie of the Church doth properly belong to His Majestie and his Successors as ane inherent right of the Crown and that His Majesty and his Successors may setle enact and emit such Constitutions Acts and Orders concerning the administration of the external Government of the Church and the Persons imployed in the same and concerning all Ecclesiastical meetings and maters to be proposed and determined therein as they in their Royal Wisdom shall think fit Which Acts Orders and Constitutions being recorded in the Books of Councel and duelie published are to be observed and obeyed by all His Majesties Subjects any Law Act or Custom to the contrary notwithstanding likeas His Majesty with advice and consent foresaid doth rescind and annull all Lawes Acts and Clauses thereof and all Customs and Constitions Civil or Ecclesiastick which are contrary to or inconsistent with His Majesties Supremacy as it is hereby asserted and declares the same void and null in all time coming The Bishop of Aberdeen and the Synods Explanation of the Test. I. WE do not hereby swear to all the particular Assertions and Expressions of the Confession of Faith mentioned in the Test but only to the uniform Doctrine of the Reformed Churches contained therein II. We do not hereby prejudg the Church's Right to and Power of making any alteration in the said Confession as to the ambiguity and obscure expressions thereof or of making a more unexceptionable frame III. When we swear That the King is Supreme Governour over all Persons and in all Causes as well Ecclesiastick as Civil and when we swear to assert and defend all His Majesties Rights and Prerogatives this is reserving always the intrinsick unalterable power of the Church immediately derived from Jesus Christ to wit the power of the Keys consisting in the preaching of the Word administration of the Sacraments ordaining of Pastors exercise of Discipline and the holding of such Assemblies as are necessary for preservation of Peace and Unity Truth and Purity in the Church and withal we do not hereby think that the King has a power to alter the Government of the Church at his pleasure IV. When we swear That it is unlawful for subjects to meet or conveen to treat or consult c. about matters of State Civil and Ecclesiastick this is excepting meetings for Ordination publick Worship and Discipline and such meetings as are necessary for the conservation of the Church and true Protestant Religion V. When we swear there lyes no obligation on us c. to endeavour any change or alteration in Government either in Church or State we mean by Arms or any seditious way VI. When we swear That we take the Test in the plain and genuine sense of the words c. we understand it only in so far as it does not contradict these Exceptions The Explanation of the Test by the Synode and Clergy of Perth BEcause our Consciences require the publishing and declaring of that express meaning we have in taking the Test that we be not mis-interpreted to swear it in these glosses which men uncharitable to it and enemies to us are apt to put upon it and because some men ill affected to the Government who are daily broachers of odious and calumnious slanders against our Persons and Ministry are apt to deduce inferences and conclusions from the alledged ambiguity of some Propositions of the Test that we charitably and firmly do believe were never intended by the Imposers nor received by the Takers Therefore to satisfie our Consciences and to save our Credit from these unjust imputations we expresly declare That we swear the Test in this following meaning I. By taking the Test we do not swear to every Proposition and Clause contained in the Confession of Faith but only to the true Protestant Religion founded upon the Word of God contained in that Confession as it is opposed to Popery and Fanaticism II. By swearing the Ecclesiastick Supremacy we swear it as we have done formerly without any reference to the assertory Act we also reserve intire unto the Church it s own intrinsick and unalterable power of the Keys as it was exercised by the Apostles and the pure primitive Church for the first three Centuries III. By swearing That it is unlawful to convocate conveen or assemble in any Councils Conventions or Assemblies to treat consult c. in any matter of State Civil or Ecclesiastick as