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
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
THE CASE OF THE EARL of ARGYLE OR An exact and full Account of his Trial Escape and Sentence Wherein are insert the Act of Parliament injoining the Test the Confession of Faith the old Act of the King's Oath to be given at His Coronation With several other old Acts made for establishing the Protestant Religion As also several Explications made of the Test by the Conformed Clergy With the Secret Councils Explanation thereof Together with several Papers of Objections against the Test all framed and emitted by Conformists With the Bishop of Edinburgh's Vindication of the Test in answer thereto As likewise a Relation of several Matters of fact for better clearing of the said Case Whereunto is added An APPENDIX in answer to a late Pamphlet called A Vindication of His Majestie 's Government and Judicatories in Scotland Especially with Relation to the Earl of Argyle's Process In so far as concerns the Earl's Trial Printed in the Year M. D. C. LXXXIII THE PUBLISHER TO THE READER HAving received the ensuing Narrative of the Case and Trial of the Earl of Argyle under the Caution you may find in the close of it not to hasten the publication but rather to vvait for a more convenient season It 's like I had continued to comply as I have done hitherto vvith the Earl's inclination if not excited to the contrary by a Paper called A Vindication of His Majestie 's Government and Judicatories in Scotland Especially with relation to the late Earl of Argyle's Process printed at Edinburgh and reprinted at London vvith the appearance of a publick allovvance For albeit all wise and sober men not only in Scotland but also in the vvorld vvho have heard this affair do at this day sufficiently understand its rise procedure issue and tendency vvith all the just consideration that either oppressed innocence abused justice or impotent and ill contrived malice do deserve Yet seeing these concerned have had the confidence to subject their Res Judicata to an unexpected review and vvithall the equitie to leave their advantages and sist themselves on even ground vvith an open defiance to all contradictors and fair submission to the common sense and reason of mankind I thought I could not be vvanting to such an happy opportunity vvithout disappointing so generous an offer deserting my good Friend the Author of the Mist and failing of the second and principal part of my Trust And therefore resolved vvithout further delay to give the follovving sheets their long desired licence Purposing to subjoyn as an Appendix any further animadversions that the above-mentioned Pamphlet may seem to deserve ERRATA PAg. 2. L. 48. Acts r. Oaths p. 6. l. 39. Tursday r. Thursday p. 8. I. 9. peased r. pleased l. 20. And r. But. p. 40. l. 24. prositive r. positive p. 41. l. 38. 1667. r. 1567. p. 44. l. 61. ther r the. p. 64. l. 6. King r. Kingdom p. 66. l. 48 the Earl's hand r. the Earl of Glencairn first Chancellour after His Majesties Return his hand p. 76. l. 2. is not r. as not p. 82. l. 34. yet r. et p. 86. l. 3. Governour r. Deputy Governour p. 94. l. 3. I have considered r. I have not considered Edinburgh 30. May 1682. SIR The case of the late Earl of Argyl which even before the Process led against him you was earnest to know was at first I thought so plain that I needed not and grew afterwards so exceedingly mysterious that I could not for some time give you so perfect ane accompt of it as I wished But this time being still no less proper the exactness of mynarrative will I hope excuse all delays The design against him being now so clear and the grounds founded on so slender that to satisfie all unbyassed Persons of his integrity there needs no more but barely to represent matter of fact I should think shame to spend so many words either on arguments or relation were it not lest to strangers some mystery might still be suspected to remain concealed And therefore to make plain what they can hardly believe though we clearly see it At His Royal Highness arrival in Scotland the Earl was one of the first to wait upon him and until the meeting of our last Parliament the world believed the Earl was as much in His Highness favour as any intrusted in His Majestie 's affairs in this Kingdom When it was resolved and His Majestie moved to call the Parliament the Earl was in the countrey and at the opening of it he appeared as forward as any in His Majestie 's and His Highness service but it had not fat many dayes when a change was noticed in His Highness and the Earl observed to decline in His Highness favour In the beginning of the Parliament the Earl was appointed one of the Lords of the Articles to prepare matters for the Parliament and named by His Highness to be one of a Committee of the Articles for Religion which by the custom of all Scots Parliaments and His Majestie 's instructions to his Commissioner at this time was the first thing treated of In this Committee there was ane Act prepared for securing the Protestant Religion which Act did ratify the Act approving the Confession of Faith and also the Act containing the Coronation Oath appointed by several standing Acts of Parliament to be taken by all our Kings Regents before their entrie to the exercise of the Government This Act was drawn somewhat less binding upon the Successor as to his own profession But full as strictly tying him to maintain the Protestant Religion in the publick profession thereof and to put the Laws concerning it in execution and also appointing a further Test beside the former to exclude Papists from places of publick trust and because the fines of such as should act without taking the Test appeared no better then discharged if falling in the hands of a Popish Successor and some accounting any limitation worse then ane exclusion and all being conâ—ent to put no limitation on the Crown so it might consist with the safety and security of the Protestant Religion it was ordained that all such fines and forfaultures should appertain the one half to the informers and the other half should be bestowed on pious uses according to certain Rules expressed in the Act. But this Act being no wise pleasing to some it was laid aside and the Committee discharged any more to meet and instead of this Act there was brought in to the Parliament at the same time with the Act of succession a short Act ratifying all former Acts made for the securitie of the Protestant Religion which is the first of the printed Acts of this Parliament At the passing of this Act the Earl proposed that these words And all Acts against Poperie might be added which was opposed by the Advocat and some of the Clergie as unnecessary But the motion being seconded by Sir George Lockhart and the then President of the Session now
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
to understand it notwithstanding all these exce 〈…〉 on s in the Parliaments which is its true and genuine sense I take it therefore notwithstanding any scruple made by any as far as it is consistent with it self and the Protestant Religion which is wholly in the Parliaments sense and their true meaning which being present I am sure was owned by all to be the securing of the Protestant Religion founded on the word of God and contained in the Confession of Faith recorded I. 6 p. 1. c. 4. And not out of scruple as if any thing in the Test did import the contrary but to clear my self from all cavils as if thereby I were bound up further then the true meaning of the Oath I doe declare that by that part of the Test that there lyes no obligation on me c. I mean not to bind up my self in my station and in a lawfull way still disclaming all unlawful endeavours to wish and endeavour any alteration I think according to my conscience to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty and by my Loyalty I understand no other thing then the words plainly bear to wit the duty and allegiance of all Loyal Subjects and this explanation I understand as a part not of the Test or Act of Parliament but as a qualifying part of my Oath that I am to swear and with it I am willing to take the Test if Your Royal Highness and Your Lordships allow me or otherwise in submission to Your Highness and the Councils pleasure I am content to be held as a refuser at present The Councils Letter to His Majesty concerning their having committed the Earl of Argyle May it please your Sacred Majesty THE last Parliament having made so many and so advantageous Acts for securing the Protestant Religion the Imperial Crown of this Kingdom and your Majesties Sacred Person whom God Almighty long preserve and having for the last and as the best way for securing all these appointed a Test to be taken by all who should be entrusted with the Government which bears expresly That the same should be taken in the plain and genuine sense and meaning of the words We were very careful not to suffer any to take the said Oath or Test with their own Glosses or Explications but the Earl of Argyle having after some delays come to Council to take the said Oath as a Privy-Councellor spoke some things which were not then heard nor adverted to and when his Lordship at his next offering to take it in Coâ—ncil as one of the Commissioners of your Majesties Tresury was commanded to take it simply he refused to do so but gave in a Paper shewing the only sense in which he would take it which Paper we all considered as that which had in it gross and scandalous Reflections upon that excellent Act of Parliament making it to contain things contradictory and inconsistent and thereby depraving your Majesties Laws misrepresenting your Parliament and teaching your Subjects to evacuate and disappoint all Laws and Securities that can be enacted for the preservation of the Government suitable to which his Lordship declares in that Paper That he means not to bind up himself from making any alterations he shall think fit for the advantage of Church or State and which Paper he desires may be looked upon as a part of his Oath as if he were the Legislator and able to add a part to the Act of Parliament Upon serious perusal of which Paper we found our selves obliged to send the said Earl to the Castle of Edenburgh and to to transmit the Paper to your Majesty being expresly obliged to both these by your Majesties express Laws And we have commanded your Majesties Advocate to raise a pursuit against the said Earl forbeing Author and having given in the said Paper And for the further prosecution of all relating to this Affair we expect your Majesties Commands which shall be most humbly and faithfully obeyed by Your Majesties most Humble most Faithful and most Obedient Subjects and Servants Edenburgh Nov. 8. 1681. Sic Subscribitur Glencairne Winton Linlithgow Perth Roxburgh Ancram Airlie Levingstoun Io. Edinburgen Ross Geo. Gordoun Ch. Maitland G. M ckenzie Ja. Foulis I. Drumond The Kings Answer to the Councils Letter C. R. Novemb. 15. 1681. MOst dear c. having in one of your Letters directed unto us of the 8. Instant received a particular account of the Earl of Argyle's refusing to take the Test simply and of your proceedings against him upon the occasion of his giving in a Paper shewing the only sense in which he will take it which had in it gross and scandalous Reflections upon that excellent late Act of our Parliament there by which the said Test was enjoyned to be taken we have now thought fit to let you know that as we do hereby approve these your Proceedings particularly your sending the said Earl to our Castle of Edenburgh and your commanding our Advocate to raise a Pursuit against him for being Author of and having given in the said Paper so we do also authorize you to do all things that may concern the further prosecution of all relating to this Affair Nevertheless it is our express will and pleasure That before any Sentence shall be pronounced against him at the Conclusion of the Process you send us a particular account of what he shall be found guilty of to the end that after our being fully informed thereof we may signifie our further pleasure in this matter For doing whereof c. But as notwithstanding the Councils demanding by their letter His Majestie 's allowance for prosecuting the Earl they before any return caused His Majestie 's Advocat exhibit ane indictment against him upon the points of slandering and depraving as hath been already remarked so after having receaved His Majestie 's answer the design growes and they thought fit to order a new indictment containing beside the former Points the crimes of treason and perjury which accordingly was exhibit and is here subjoyned the difference betwixt the tvvo indictments being only in the particulars above noted The Copy of the Indictment against the Earl of Argyle Archibald Earl of Argyle YOU are indicted and accused That albeit by the Common Law of all well-govern'd Nations and by the Municipal Law and Acts of Parliament of this Kingdom and particularly by the 21 and by the 43d Act Par. 2 James 1. and by the 83d Act Par. 6. James 5. and by the 34th Act Par. 8. James 6. and the 134th Act Par 8 James 6. and the 205th Act Par. 14. James 6. All leasing-makers and tellers of them are punishable with tinsel of Life and Goods like as by the 107th Act. Par. 7. James 1 it is statuted That no man interpret the Kings Statutes otherwise than the Statute bears and to the intent and effect that they were made for and as the makers of them understood and
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
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
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
Arms all Collectors Sub Collectors and Fermers of His Majesties Customes and Excise all Magistrats Deans of Gild Councellors and Clerks of Boroughs Royal Regality all Deacons of trades and Deâ—con-conveeners in the said Burghs all Masters and Doctors in Universities Colledges or Schools all Chaplans in families Pedagogues to children and all Officers and Soldiers in Armies Forts or Militia And all other persons in any publick Trust or office within this Kingdom who shall publickly swear and subscribe the said Oath as follows viz. Archbishops Chief Commanders of the Forces and Officers of the Crown and State and Councellors before the Secret Council all the Lords of Session and all members of the Colledg of Justice and others depending upon them before the Lords of Session the Lords of lustitiary and all these depending upon that Court in the Iustice-Court the Lords and other Members of the Exchequer before the exchequer all Bishops before the Archibishops all the Inferior Clergy Commisaries Masters Doctors of Universities Schools Chaiplans Pedagogues before the Bishops of the respective Diocesses Sheriffs Stewards Baylies of Royalty and Regality and these depending on these Iurisdictions before their respective Courts all Provosts Baylies and others of the Boroughs before the Town-Council all Collectors and Fermers of the Kings Customs and Excise before the Exchequer the Commissioners of the Borders before the Privy-Council all Iustices of the Peace before the Conveeners and the Officers of the Mint before the General of the Mint and the Officers of the Forces before the Commander in chief and common Soldiers before their respective Officers The Lyon before the Privy Council and Heraulds Pursevants and Messengers at Arms before the Lyon And His Majesty with consent foresaid Statutes and ordains that all these who presently possess and enjoy any of the foresaid offices publick Trusts and Imployments shall take and subscribe the following Oath in one of the foresaid Offices in manner before prescribed betwixt and the first of January next which is to be recorded in the Registers of the respective Courts and extracts thereof under the Clerks hand to be reported to His Majesties Privy-Council betwixt and the first of March 1682. and hereafter in any other Courts whereof they are Iudges or Members the first time they shall sit or exercise in any of these respective Courts and ordains That all who shall hereafter be promoted to or imployed in any of the foresaid Offices Trusts or Imployments shall at their entry into and before their exercising thereof take and subscribe the said Oath in manner foresaid to be recorded in the Registers of their respective Courts and reported to His Majesties Privy Council within the space of fourty days after their taking of the same And if any shall presume to exercise any of the faid offices or Imployments or any publick Office or Trust within this Kingdom the Kings Brothers and Sons only excepted until they take the Oath foresaid and subscribe the same to be recorded in the Registers of the respective Courts they shall be declared incapable of all publick trust thereafter and be further punished with the loss of their moveables and liferent-escheats the one half whereof is to be given to the Informer and the other half to belong to his Majesty and his Majesty with advice foresaid recommends to his Privy-Council to see this Act put to due and vigorous execution The TEST Containing the Oath to be taken by all Persons in publick Trust. I Solemnly swear in the presence of the eternal God whom I invoke as Judge and witnesse of the sincere intention of this my Oath That I own and sincerely profess the true Protestant Religion contained in the Confession of Faith recorded in the first Parliament of King James the VI and that I believe the same to be founded on and agreeable to the written Word of God And I promise and swear That I shall adhere thereunto during all the dayes of my life-time and shall endeavour to educate my Children therein And shall never consent to any change or alteration contrary thereto and that I disoun and renounce all such Principles Doctrines or practices whether Popish or Fanatical which are contrare unto and inconsistent with the said Protestant Religion and Confession of Faith And for testification of my obedience â—o my most gracious Soveraign Charles the II. I do affirm and swear by this my solemn Oath that the Kings Majesty is the only Supreme Governour of this Realm over all persons and in all causes as well ecclesiastical as civil And that no forreign Prince Person Pope Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminency or Authority Ecclesiastical or Civil within this Realm And therefore I do utterly renounce and forsake all foreign Jurisdictions Powers Superiorities and Authorities And do promise that from henceforth I shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to my power shall assist and defend all Rights Jurisdictions Prerogatives Priviledges Preferments and Authorities belonging to the Kings Majesty his Heirs and lawful Successors And I further affirm and swear by this my solemn Oath That I judge it unlawful for Subjects upon pretence of Reformation or any other pretence whatsoever to enter into Covenants or Leagues or to convocar conveen or assemble in any Councils Conventions or Assemblies to treat consult or determine in any matter of State Civil or Ecclesiastick without his Majesties special command or express licence had thereto or to take up arms against the King or these Commissionate by him And that I shall never so rise in arms or enter into such Covenants or Assemblies And that there lies no obligation on me from the National Covenant or the Solemn League and Covenant commonly so called or any other manner of way whatsoever to endeavour any change or alteration in the Government either in Church or State as it is now established by the Laws of this Kingdom And I promise and swear That I shall with my utmost power defend assist and maintain his Majesties Jurisdiction foresaid against all deadly And I shall never decline his Majesties Power and Jurisdiction as I shall answer to God And finally I affirm and swear That this my solemn Oath is given in the plain genuine sense and meaning of the words without any equivocation mental reservation or any manner of evasion whatsoever and that I shall not accept or use any dispensation from any creature whatsoever So help me God Act J. 6. P. 1. C. 3. Anno 1567. Anent the annulling of the Acts of Parliament made against God His Word and for maintainance of Idolatrie in any tymes bypast ITem our Soveraigne Lord with advice of his dearest Regent and three Estates of this present Parliament ratifies and approves the Act under-written made in the Parliament holden at Edinburgh the 24. day of August the year of God anâ— thousand five hundred threescore years And
we consess that we make a distinction betwixt Christ Iesus in his Eternal substance and betwixt the Elements in the sacramental signs so that we will neither worship the signs in the place of that which is signified by them neither yet do we despise and interpret them as junprofitable and vain but do use them with all reverence examining our selves diligently before that so we do because we are assured by the mouth of the Apostle that such as eat of that Bread and drink of that Cup unworthily are guilty of the Body and Blood of Christ Iesus XXII Of the right Administration of the Sacraments THAT Sacraments be rightly ministred we judge two things requisite the one that they be ministred by lawful Ministers whom we affirm to be only these that are appointed to the preaching of the word into whose mouths God has put some sermon of Exhortation they being men lawfully chosen thereto by some Kirk The other that they be ministred in such Elements and in such sort as God has appointed else we affirm that they cease to be the right Sacraments of Christ Jesus And therefore it is that we fly the Doctrine of the Papistical Kirk in participation of their Sacraments First because their Ministers are no Ministers of Christ Jesus yea which is more horrible they suffer Women whom the Holy Ghost will not suffer to teach in the Congregation to Baptize And secondly because they have so adulterated both the one Sacrament and the other with their own inventions that no part of Christs Action abides in the original purity For Oyl Salt Spitle and such like in Baptism are but mens inventions Adoration Veneration bearing throw Streets and Towns and keeping of bread in boxes are Prophanation of Christs Sacraments and no use of the same For Christ Jesus said Take eat c. do ye this in rememberance of me By which words and charge he sanctified Bread and Wine to the Sacrament of his Holy Body and Blood to the end that the one should be eaten and that all should drink of the other and not that they should be keeped to be worshipped and honoured as God as the Papists have done heretofore who also commited Sacriledg stealing from the people the one part of the Sacrament to wit the blessed Cup. Moreover that the Sacraments be rightly used it is required that the end and cause why the Sacraments were institute be understood and observed as well of the Ministers as the Receivers For if the opinion be changed in the Receiver the right use ceases which is most evident by the rejection of the Sacrifice as also if the Teacher plainly teach false Doctrines which were odious and abominable before God albeit they were his own Ordinance because that wicked men use them to another end than God has ordained The same affirm we of the Sacraments in the Papistical Kirk in which we affirm the whole action of the Lord Iesus to be adulterated as well in the external form as in the end and opinion What Christ Iesus did and commanded to be done is evident by the Evangelists and by Saint Paul What the Priest does at his Altar we need not to rehearse The end and cause of Christs institution and why the selfsame should be used is expressed in these words Do ye this in rememberance of me as oft as ye shall eat of this bread and drink of this cup ye shall shew forth that is extol preach magnifie and praise the Lords death till he come But to what end and in what opinion the Priests say their Mass let the words of the same their own Doctors and Writings witness to wit that they as Mediators betwixt Christ and his Kirk do offer unto God the Father a Sacrifice propitiatory for the sins of the quick and the dead Which Doctrine as blasphemous to Christ Jesus and making derogation to the sufficiency of his only sacrifice once oftered for Purgation of all these that shall be sanctified we utterly abhor detest and renounce XXIII To whom Sacraments appertain WE confess and acknowledg that Baptism appertains as well to the Infants of the faithful as unto them that be of age and discretion and so we damn the error of the Anabaptists who deny Baptism to appertain to children before that they have Faith and Understanding but the Supper of the Lord we confess to appertain to such only as be of the houshold of Faith and can try and examine themselves as well in their Faith as in their duty towards their Neighbours Such as eat and drink at that holy Table without Faith or being at dissension and division with their brethren do eat unworthily And therefore it is that in our Kirk our Ministers take publick and particular examination of the knowledg and conversation of such as are to be admitted to the Table of the Lord Jesus XXIV Of the Civil Magistrate WE confess and acknowledg Empires Kingdoms Dominions and Cities to be distincted and ordained by God the powers and authority in the same be it of Emperors in their Empires of Kings in their Realms Dukes and Princes in their Dominions and of other Magistrates in the Cities to be Gods holy Ordinance ordained for manifestation of his own Glory and for the singular profit and commodity of Mankind So that whosoever goeth about to take away or to confound the whole state of Civil Policies now long established we affirm the same men not only to be enemies to mankind but also wickedly to fight against God's express will We farther confess and acknowledg that such persons as are placed in Authority are to be loved honoured feared and holden in most reverent estimation because that they are the Lieutenants of God in whose Sessions God himself does sit and judg yea even the Iudges and Princes themselves to whom by God is given the sword to the praise and defence of good men and to revenge and punish all open malefactors Moreover to Kings Princes Rulers and Magistrates we affirm that chiefly and most principally the conservation and purgation of the Religion appertains so that not only they are appointed for Civil Policy but also for maintenance of the true Religion and for suppressing of Idolatry and Superstition whatsoever as in David Iehosaphat Ezechias Iâ—sias and others highly commended for their zeal in that case may be espied And therefore we confess and avow that such as resist the supreme Power doing that thing which appertains to his charge do resist Gods Ordinance and therefore cannot be guiltless And farther we affirm that whosoever denies unto them their aid counsel and comfort whist the Princes and Rulers vigilantly travel in execution of their Office that the same men deny their help support and counsel to God who by the presence of his Lieutenant does crave it of them XXV Of the gifts freely given to the Kirk ALbeit the word of God truly preached and the Sacraments rightly ministred and Discipline executed according to the
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
the Civil Magistrate I am never to endeavour that it may be setled by the consent of the Church 2. The Bishops by the Act of Restitution Art 1. Ses. 2. Par. 1. Char 2. being allowed to inflict Censures and to exercise all other Discipline only with advice and consent of such of the Clergy as shall be found to be of known loyalty and prudence yet tho they should utterly neglect Synods and Presbyteries and call only such Ministers as they please tho it were but Two or Three and let them make Canons concerning Doctrine and Worship suspend and depose Ministers inflict the highest Censures either upon Church-men or Laicks I am not to endeavour an alteration of these things 3. There being no Obligation on them by that Law which gives them their Legal Establishment either to reside in their Diocesses or to visit their Churches or to hold but one Benefice I am to use no endeavour that this may be helped 4. They being by the same Act only accountable to His Majesty I am not to endeavour that they may be accountable to the Church tho they be convicted in a National Synod for any of their Administrations 5. Whereas by the Act establishing a National Synod Act 4. Ses. 2. Par. 1. Char. 2. the Moderators of every Presbytery who are nominated to that Office by the Bishop are appointed to be of the Commissioners for the National Synod and the Moderators declared to have a Negative Voice for the chusing of the other Commissioners And so the whole Asseâ—bly is nominated by the Bishops And it being further enacted That nothing is to be debated and considered in the said Assembly but as it is proposed by His Majesty and Successors And that the Archbishop of St. Andrews as President of the Assembly is declared to have a Negative Voice not only in the whole Synod but even on His Majesty himself So that whatever should be agreed on by all the rest of the Bishops and Clergy His Majesty consenting thereto yet it cannot be concluded and emitted without consent of the President Yet I am to affirm and swear That I am not to endeavour the alteration of any of these things And that there lies no Obligation on me either from respect to Religion or duty to my Prince and Native Countrey or any regard to Episcopacy or any other manner of way whatsoever to endeavour the least change of any of these fore-mentioned And I promise and swear That I shall from henceforth with my utmost power defend assist and maintain His Majesties Jurisdiction foresaid against all deadly c. And I shall never decline His Majesties Jurisdiction as I shall answer to God c. And finally I affirm and swear by this c. That I shall not only submit unto but that I shall own and approve His Majesties Jurisdiction i e. all â—is Rigâ—ts and Prerogatives especially his Ecclesiastical Supremacy Yea that I shall with my utmost power both of body and mind defend and maintain the same against all creatures whatsoever And tho His Majesty should by himself or any Laick deputed by him inflict a Church-censure or an Excommunication it self yet I shall never decline this his Power and Jurisdiction as I shall answer to God at the great day And finally I affirm and swear That this my solemn Oath is given in the plain genuine meaning of tâ—e words without any equivocation mental reservation or any manner of evasion whatsoever and that I shall not accept or use any dispensation from any creature whatsoever So help me God c. And lastly I affirm and swear That I have sworn all these things in the plaâ—â— sense and meaning of the words not only without equivocation or mental reservation buâ— without any manner of evasion whatsoever So that I renounce all senses and glosses and explications whatsoever which seem any way disagreeable to the plain sense of the words of this Oath as they are commonly understood by meâ— And that as I shall not accept or use any dispensation from any creature whatsoever so I shall never make use orrely upon such glosses as explications to help me out or set me free from Perjâ—ry Wherefore being fully perswaded of the truth and lawfulness of all that I have now sworn and as sincerely resolved to perform it in every Arâ—icle thereof I do confidently pray to God to help me to this Grace to do so and I wish he may make me so speed here and hereafter as I am perswaded and resolved 1. An Oath being considered bâ— all men who have any sense of a Deity as a most Sacred Bond and of the straitest Obligation It 's to be presumed that no man who truely fears God will rashly adventure on it For if I affirm any thing upon Oath of the truth whereof I am not certain or if I promise any thing of the justice or lawfulness whereof I have any doubt or which I am not fully resolved to perform I make my self guilty of Perjury which even the most barbarous Nations have ever looked on as the foulest of Crimes For it 's both the greatest affront that can be put on God in calling him to be Judge and Witness to a Lye and one of the greatest injuries that can be done to men in overthrowing the best security and chiefest ground of trust that they have It were therefore to be wished that Oaths were never imposed except in cases of absolute necessity For it is certain that the most part of â—en being acted â—ore by interest then by conscience will be too easily perswaded to swallow them that they may shun a present inconveniency whatever daâ—ger or damage it mâ—y import to them in the Life to come And it has been always observed that these wâ—o have been most forward to take Oaths are most forward to break them 2. But all who truely fear the Lord who prefer the peace of their Conscience to their worldly interest and who look more to the things that are not seen then to the things that are seen will think themselves obliged to advise well before they adventure on an Oath that if they swear at all they may do it as the Lord himself requires Jer. 4 2. in truth in judgment and in righteousness i e. that they know what they affirm to be true and what they promise to be just and righteous and that in neither of these they be rash or inconsiderate but have their judgments truly informed and sufficiently instructed in both If a man be uncertain or doubtful in any of these he is by no means to adventure on an Oath but rather to suffer the loss of all things than to take it 3. Now if an Oath containing one single Proposition and contrived in the plainest and easiest terms ought to be diligently weighed and pondered before it can be taken how much more such an Oath as this which consists of so many different and various matters Some of which are not only
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
studying the peace of this Church and Kingdom will receive without peevishnesse prejudice or partiality the satisfaction which herein is with so much affection and charity endeavoured and tendered then the pains herein taken shall be thought well placed and imployed EDENBURGH Sederunt tertio Die Novembris 1681. His Royal Highness c. Athol Praeses Montrose Argyle Winton Linlithgow Perth Strathmore Roxburgh Ancram Airley Balcarres Lorn Levingston Bishop of Edenburgh Elphinston Rosse Dalziel President of Session Treasurer Deputy Register Advocate Justice Clerk Collintoun Lundie This day the Earl of Argyll having first openly declared his sense as you have it hereafter set down in his explication took the Test as a Privy Councellor and after he was called to and had taken his place the Councils explication which I have already mentioned having been formerly read and debated was put to the vote and passed the Earl not voting thereto as hath been remarked Edenburgh the 3d day of November 1681. The Privy Councils Explanation of the Test. FOrasmuch as some have entertained jealousies and prejudices aganst the Oath and Test appointed to be taken by all persons in publik Trust. Civil Ecclesiastical or Military in this Kingdom by the Sixth Act of His Maje 〈…〉 ies Third Parliament as if thereby they were to swear to every Proposition or Clause of the Confession of Faith therein mentioned or that invasion were made by it upon the intrinsik spiritual Power of the Church or Power of the Keys or as if the present Episcopal Government of this National Church by Law established were thereby exposed to the hazard of alteration or subversion All which are far from the intention or design of the Parliament's imposing this Oath and from the genuine sense and meaning thereof Therefore His Royal Highness His Majesties High Commissioner and Lords of Privy-Council do allow authorise and impower the Archbishops and Bishops to administer this Oath and Test to the Ministers in their respective Diocesses in this express sense 1. That tho the Confession of Faith ratified in Parliament 1567. was framed in the Infancy of Reformation and deserves its due praise yet by the Test we do not swear to every Proposition or clause therein contained but only to the true Protestant Religion founded on the word of God contained in that Confession as it as opposed to Popery and Fanaticism 2. That by the Test or any clause therein contained no invasion or encroatchment is made or intended upon the intrinsik spiritual power of the Church or power of the Keys as it was exercised by the Apostles and the most pure and primitive Church in the first three Centuries after Christ and which is still reserved intirely to the Church 3. That the Oath and Test is without any prejudice to the Episcopal Government of this National Church which is declared by the first Act of the second Session of His Majesties first Parliament to be most agreeable to the word of God and most suitable to Monarchy and which upon all occasions His Majesty hath declared he will inviolably and unalterably preserve And appoint the Archbishops and Bishops to require the Ministers in their respective Diocesses with their first conveniency to obey the Law in swearing and subscribing the foresaid Oath and Test with certification that the refusers shall be esteemed persons disaffected to the Protestant Religion and to his Majesties Government and that the punishment appointed by the foresaid sixth Act of His Majesties third Parliament shall be impartially and without delay inflicted upon them By me Pet. Menzeis Sederunt quarto Die Novembris 1681. His Royal Highness c. Montrose Praeses Perth Ancram Levingston President of Session Advocate Winton Strathmore Airley Bishop of Edenburgh Treasurer Deputy Lundie Linlithgow Roxburgh Balcaras Elphynstoun Register This day the Earl of Argyle being about to take the Test as a Commissioner of the Treasury and having uponcommand produced a paper bearing the sense in which he took the Test the preceeding day and in which he would take the same as a Commissioner of the Treasury Upon consideration thereof it was resolved that he cannot sit in Council not having taken the Test in thesense and meaning of the Act of Parliament and therefore was removed The Earl of Argyle's Explication of the Test vvhen he took it I Have considered the Test and I am very desirous to give obedience as far as I can I 'm confident the Parliament never intended to impose contradictory Oaths Therefore I think no man can explain it but for himself Accordingly I take it as far as it is consistent with it self and the Protestant Religion And I do declare That I mean not to bind up my self in my station and in a lawful way to wish and endeavour any alteration I think to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty And this I understand as a part of my Oath But the Earl finding as hath been narrated this his Explication though accepted and approven by His Highness and Council the day before to be this day carped and offended at and advantages thereupon sought and designed against him did immediatlie draw up the following Explanation of his Explication and for his own vindication did first communicat it to some privatlie and thereafter intended to have offered it at his trial for clearing of his defences The Explanation of his Explication I Have delayed hitherto to take the Oath appointed by the Pa 〈…〉 ent to be taken betwixt and the first of January nixt but now being required 〈◊〉 two moneths sooner to take it this day peremptourly or to refuse I have considered the Test and have seen several Objections moved against it especially by many of the Orthodox Clergy notwithstanding whereof I have endeavoured to satisfie my self with a just explanation which I here offer that I may both satisfie my conscience and obey Your Highness and Your Lordships commands in taking the Test though the Act of Parliament do not simply command the thing but only under a certification which I could easily submit to if it were with Your Highness favour and might be without offence but I love not to be singular and I am very desirous to give obedience in this and everything as far as I can and that which clears me is that I am confident whatever any man may think or say to the prejudice of this Oath the Parliament never intended to impose contradictory Oaths and because their sense they being the framers and imposers is the true sense and that this Test injoyned is of no privat interpretation nor are the Kings Statuts to be interpreted but as they â—ear and to the intent they are made Therefor I 〈…〉 nk no man that is no privat person can explain it for another to amuse or trouble â—im with it may be mistaken glosses But every man as he is to take it so is to ex 〈…〉 ain it for himself and to endeavour
are altogether strained and unwarrantable and inconsistent with the Earle true design and the sincerity of his meaning and intention in making of the said Explication Wednesday the 12. of December the day of compearance assigned to the Earl being novv come he was brought by a guard of Souldiers from the Castle to the place appointed for the trial and the justice Court being met and fenced the Earl now Marques of Queensberry then Justice General the Lords Nairn Collingtoun Forret Newtoun and Hirkhouse the Lords of Justitiary sitting in judgment and the other formalities also performed the indictment above set down Num 24. was read and the Earl spoke as followes The Earl of Argyle's Speech to the Lord Justice General and the Lords of the Justitiary after he had been arraigned and his Indictment read My Lord Iustice General c. I Look upon it as the undeniable priviledg of the meanest Subject to explain his own words in the most benign sense and even when persons are under an ill Character the misconstruction of words in themselves not ill can only reach a presumption or aggravation but not any more But it is strange to alledg as well as I hope impossible to make any that know me believe that I could intend any thing but what was honest and honourable suitable to the Principles of my Religion and Loyalty tho I did not explain my self at all My Lord I pray you be not offended that I take up a little of your time to tell you I have from my Youth made it my business to serve His Majesty faithfully and have constantly to my power appeared in his Service especially in all times of difficulty and have never joyned nor complyed with any Interest or Party contrary to His Majesties Authority and have all along served him in his own way without a frown from His Majesty these Thirty years As soon as I passed the Schools and Colledges I went to travel to France and Italy and was abroad 1647 1648 and till the end of 1649. My first appearance in the world was to serve His Majesty as Collonel of his Foot-Guards And tho at that time all the Commissions were given by the then Parliament yet I would not serve without a Commission from His Majesty which I have still the Honour to have by me After the misfortune of Worcester I continued in Arms for His Majesties Service when Scotland was over-run with the Usurpers and was alone with some of my Friends in Arms in the Year 1652. and did then keep up some appearance of opposition to them And General Major Dean coming to Argyleshire and planting several Garisons he no sooner went away but we fell upon the Garisons he had left and in one day took two of them and cut off a considerable part of a third and carried away in all about Three hundred Prisoners And in the end of that year I sent Captain Shaw to His Majesty with my humble Opinion how the War might be carried on who returned to me with Instructions and Orders which I have yet lying by me After which I joyned with those His Majesty did Commissionate and stood out till the last that the Earl of Middleton His Majesties Lieutenant General gave me Orders to capitulate vvhich I did vvithout any other Engagements to the Rebels but allovving persons to give bale for my living peaceably and did aâ— my capitulating relieve several Prisoners by exchange vvhereof my Lord Granard out of the Castle of Edenburgh vvas one It is notarly knovvn that I vvas forefaulted by the Usurpers vvho vvere so jealous of me that contrary to their Faith vvithin Eight Moneths after my Capitulation upon pretence I keep'd Horses above the value they seased on me and keeped me in one Prison after another till His Majesties happy Restauration and this only because I vvould not engage not to serve His Majesty tho there vvas no Oath required I do with all gratitude acknowledg His Majesties Goodness Bounty and Royal Favours to me when I was pursued before the Parliament in the Year 1662. His Majesty was graciously pleased not to send me here in any opprobrious way but upon a bare verbal Paroll Upon which I came down poste and presented my self a Fourthnight before the day Notwithstanding whereof I was immediately clapt up in the Castle but having satisfied His Majesty at that time of my entire Loyalty I did not offer to plead by Advocates And His Majesty was not only pleased to pardon my Life and to restore me to a Title and Fortune but to put me in trust in his Service in the most eminent Judicatories of this Kingdom and to heap Favours upon me far beyond what ever I did or can deserve tho I hope His Majesty hath always found me faithful and thankful and ready to bestow all I have or can have for his Service And I hope never hath had nor ever shall have ground to repent any Favour he hath done me And if I were now really guilty of the Crimes libelled I should think my self a great Villain The next occasion I had to shew my particular zeal to His Majesties Service was in Anno 1666. when the insurrection was made that was represt at Pentland-Hills At the very first the intercourse betwixt this place and me was stopt so that I had neither Intelligence nor Orders from the Council nor from the General but upon a Letter from the now Archbishop of St. Andrews telling me there was a Rebellion like to be in the three Kingdoms and bidding me beware of Ireland and Kintyre I brought together about Two thousand men I seased all the Gentlemen in Kintyre that had not taken the Declaration tho I found them peaceable And I sent a Gentleman to General Dalziel to receive his Orders who came to him just as they were going to the Action at Pentland and vvas with him in it and I keept my Men together till his return And when I met with considerable trouble from my Neighbours rebelliously in Arms and had Commissions both on publik and private Accounts have I not carried dutifully to His Majesty and done what was commanded with a just moderation which I can prove under the hands of my enemies and by many infallible demonstrations Pardon me a few words Did I not in this present Parliament shew my readiness to serve His Majesty and the Royal Family in asserting vigorously â—â—e lineal legal Succession of the Crown and had a care to have it exprest in the Commissions of the Shires and Burghs I had interest in Was I not for offering proper Supplies to His Majesty and his Successor And did I not concur to bind the Landlords for their Tenants altho I was mainly concerned And have I not always keept my Tenants in obedience to His Majesty I say all this not to arrogate any thing for doing what was my Honour and Duty to His Majesty but if after all this upon no other ground but words that
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
Explanation no addition or extention of the Oath So that for all this Explanation the Oath is neither broader nor longer than it was And as to these words I do not mean to bind up my self in my station and in a lawful way to wish and endeavour any alteration I think to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty It is a strange thing how this Clause can be drawn in question as treasonable when it may with better Reason be alledged That there is no good Subject but is bound to say it And albeit the words to endeavour in my station be words contained in the Covenant yet that is no Reason why two words in the Covenant may not be made use of in another very good and loyal sense And there is no man that shall have the honour either to be entrusted by His Majesty in his Council or any other Judicature or to be a Member of Parliament but he is bound by his Loyalty to say the same thing And there was never a Clause more cautiously exprest for the words run to endeavour any alteration I shall think to the advantage of Church and State And tho that was sufficient yet the Clause is so cautiously conceived that it contains another Restriction not repugnant to Religion and his Loyalty So that except it could be alledged That a man by lawful means to the advantage of Church and State consistent with his Religion and Loyalty could make treasonable alterations and invasions upon the Government and Monarchy which are the highest Contradictions imaginable there can be nothing against the Pannel And albeit the Clause any alterations might without the Restrictions and Qualifications foresaid be generally extended yet the preceeding words of lawful way and the rational Interpretation of the emission of words especially before a solemn Judicatory leaves no place or shadow to doubt that these alterations were no fundamental or treasonable alterations but such as the frailty of humane Affairs and Constitutions and vicissitude of things and circumstances do constantly require in the most exact Constitutions under Heaven And the clause does not so much as import that there is a present necessity of alteration but it was a necessary and rational prospect That albeit at present all things under Heaven had been done to secure the Religion and Government yet there might occur Cases that would require new helps alterations and remedies And it is not pretended in this Case for the Pannel That he desires to alleviate or take off words truly treasonable or having an ill design by the mixing of fair and safe dutiful and submissive Expressions which indeed are Protestations contrariâ— facto For there is nothing in his Explanation that either in his design or in the words themselves being rationally and naturally interpreted can infer the Crimes libelled or any of them And the Pannel's known Principles and known Practices do not only clear that Loyalty that he has profest before the Lords of Justitiary and instructed by unquestionable Documents but they put him far from the suspicion of these damnable Principles related in the Reply Of which the whole tract of his Life hath been an intire evidence of his abhorrency and detestation And in the last place It is thought strange why that should be represented as an affront or disgrace to the Government That the Parliament imposed a Test which the Pannel is not able to take simply And it is not pretended That he hath defamed written or spoken against the Test it self or for the inconvenience of it but only that he hath not been able to see the good ground upon which it may be simply taken And this were to condemn him for want of sight or sense when the Law hath punished no man for not taking the Test but only turned him out of the Government And it is as strange an Inference That because the Pannel declares He believes the Parliament meaned no Contradiction and would take the Test in as far as it is consistent that therefore he said the Parliament imposed Contradictions Which is so far from a rational Induction that the Contradiction of these Subsumptions in all congruity of Language and Sense is necessarily true And therefore the last part of that Clause in so far as it is consistent is a Consequence inferred upon the former viz. I believe the Parliament designed to impose no Contradictions ergo I take the Test as consistent and in so far as it must be consistent if the Parliament did not impose Contradictions as certainly they have not and to convince the world that in this sense this Explanation is receivable it was proposed in Council and allowed and therefore without the highest reflection it cannot now be quarrelled Sir George Lockhart's second Plea for the Earl of Argyle by way of Reply upon the King's Advocate SIR George Lockhart Duplies That the Defender repeats and oppones his former Defences which are no ways elided nor satisfied by the Reply made by His Majesties Advocate And altho it be easie for the Kings Advocate out of his zeal to pretend and argue Crimes of the highest Nature upon Inferences and Consequences neither consistent with the Pannel's design nor with his words and expressions yet there cannot be a more dangerous foundation laid for the security and interest of the Government and the security and protection of the Subjects than that Crimes should be inferred but from clear evident and express Laws and plain palpable Contravention of these Laws It being both against the Laws of God and Man that a Man should be made an Offender for a word and especially for expressions which according to Sense and Reason and considering the time and place where they were spoken by the Pannel viz. as a Member of His Majesties Privy-Council and in presence of his Royal Highnes and the Members of Council and when required to take the Test were safe and Innocent and it were against all Law and Reason to suppose that the Pannel either did or designed to do any thing which may or did import the Crimes libelled against him And whereas it is pretended That the Oath required and imposed by Act of Parliament was for the security of the Government and that the Pannel by his Explication does evade the Oath by taking it only so far as it is consistent with the Protestant Religon and his own Loyalty whereof he was Judge It is answered That the pretence is most unwarrantable and the security of His Majesties Government is not at all endangered as God forbid it should tho the Pannel and a Thousand more had simply refused the Test or had taken it in a sense which does not satisfie the Law it being competent to publik Authority to consider whether the Pannels Oath in the terms of the Explication wherein he did take it does satisfie the Act of Parliament or not And if not there can be no rational consequence inferred thereupon but
that he is holden as a Refuser of the Oath and liable to the Certification of the Act of Parliament of not assuming and continuing in any publik Trust And no more was intended or designed by the Act of Parliament it self than strictly to make the Oath in the true and genuine sense and meaning of the Parliament an indispensible qualification of persons admitted to publik Trust. So that it is not at all material to dispute whether the Pannel's Explication can be looked upon as a full satisfaction of the Act which whether it should or not it can import no Crime against him it not being consistent with Sense and Reason that a person who absolutely refuseth the Test upon the scrupulosity of his Conscience albeit he be not capable of publik Trust should be notwithstanding looked upon as guilty of no Crime and yet another who was willing to go a greater length albeit he did demur and scruple as to the full length that he should be reputed criminal and guilty of a Crime 2. The Pannel repeats and conjoyns with this the grounds above-mentioned contained in his Defences viz. That neither the Crimes libelled nor any other Crime were ever pretended or made use of against any others who did spread abroad Objections of an high nature which yet were so favourably looked upon as to be construed only to proceed from scrupulosity of Conscience as also the satisfaction endeavoured is in such terms and by such condescensions as do take in and justifie the whole terms of the Explication libelled It is of great moment and whereof the Lords of Justitiary are desired to take special notice both for clearing the absolute innocence of the Pannel's meaning and intention and to take off all possible misconstruction that can be wrested or detorted from the tenor and expressions of the libelled Explication That the Pannel was put to and required to take the Oath before the Lords of His Majesties Privy-Council did pass and pubish their Proclamation explaining the Oath and declaring the genuine sense and meaning thereof namely That it did not tye to the whole Articles of the Confession of Faith ratified by Act of Parliament James 6. and which as to several Articles thereof had occasioned the scruples and difficulties and alledged inconsistency and contradiction betwixt the last part of the Oath and the said Confession and betwixt some of these Articles and the Currant of the Protestant Doctrine received and contained in the Syntagma of the Protestant Confessions And therefore if the Pannel at that time did think fit for the clearing and exoneration of his own Conscience to use the expressions in the Explication libelled and yet with so much duty and confidence of the Parliaments Justice as to their meaning and intention That the Parliament never intended to impose contradictory Oaths and that he did take it so far as it was consistent with it self and the Protestant Religion not knowing then whether the whole Confession was to be reputed a part of the Oath and doubting there-anent and which the Lords of His Majestie 's Privy-Council his Sacred Majesty by his approbation since have thought a difficulty of so great moment as it was fit to clear the same by a publik Proclamation How now is it possible that any Judicatory under Heaven which proceeds upon the solid grounds of Law and Reason and who it cannot be doubted will have a just regard to the intrinsik Principles of Justice and to all mens security that they can now believe all or any of the Crimes libelled should be in the least inferred from all or any of the expressions contained in the said Explication But that on the contrary it was a warrantable allowance and Christian practice condemned by the Law and Custom of no Nation That having scruples in the matter of an Oath which should be taken in Truth Iudgment Righteousness and upon full deliberation and with a full assurance and sincerity of mind That he did plainly openly and clearly declare the sense in which he was willing to take it and if Authority did allow it as the genuine sense of the Oath the Pannel to be holden as a Taker of the Oath And if upon farther consideration Authority think not that habetur pro Recusante and a Refuser of the Oath but no ways to be looked upon as a criminal or guilty person And the Pannel repeats and conjoyns with this point of the Reply that point in his Defence whereby he positively offers to prove 1. That his Explication and the sense wherein he took the Oath was heard and publikly given and received in Council and the Pannel thereafter allowed to take his place and sit and vote in that Sederunt 2. The Pannel also offers positively to prove That the tenor and terms of his Sense and Explication wherein he did take the Oath is contained in that Solid Learned and Pious Vindication written by the Bishop of Edenburgh in answer to the Objections and alledged inconsistencies and contradictions in the Oath and which Vindication was publikly read in Council and so far approved that it was allowed to be printed and published and was accordingly dispersed and spread abroad And it is not of the least import that the Proclamation of the Lords of Privy-Council altho it does only allow the same to be taken by the Clergy yet at the same time they expresly declare the genuine sense and meaning of the Parliament not to comprehend the whole Articles of the Confession which was not cleared before the Pannel's taking his Oath And whereas it is pretended That the Acts of Parliament libelled upon against Leasing makers depravers of His Majesties Laws do obtain and take place where-ever there are any words or expressions that have a tendency in themselves or by a natural consequence and rational inferences to reflect upon the Government or misconstrue His Majesties Prooceedings and that the Explication libelled is such and that it was found so in the Case of Balmerino albeit it was drawn up by way of humble Petition and Address to His Majesty and with great Protestations and Expressions of Loyalty It is answered The Acts of Parliament libelled upon are opponed and the 43d Act Par. 8. James 6. and the other Acts making the depraving of His Majesties Laws to be Crimes do expresly require that Speeches so judged be perverse and licentious Speeches ex natura sua probrosae and reproachful and spoke animo defamandi and which could not receive any other rational Construction which cannot in the least be applied to or subsumed upon the words or Explication given in by the Pannel And Law and Reason never infers or presumes a Crime where the thing is capable of a fair and rational Construction and where it was done palam and publikly and in presence of His Majesties High Commissioner and Lords of His Majesties Privy-Council whereof the Pannel had the honour to be a Member Persons commiting and designing to commit Crimes making
the 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
Wonderfull reasoning All men know that Parliaments neither are nor pretend to be infallible And in our present case hundreds of Loyall subjects complain of contradictions and inconsistencies some way or other creept into this Oath And even the Council have yeelded so far to their Exceptions as to make an alteration upon it for satisfying those scruples far beyond any thing the Earl said and such an alteration as I beleeve few dreamed of and I am certain none durst have attempted without their express command and Authority and yet in the midst of all this the Farl's charitable and honest Opinion in behalf of the Parliaments good intentions must be perverted to a direct slander But the Earl sayes That every man must explain it for himself And so no doubt he must if the Test be either in it self or in his apprehension ambiguous otherwise how can he swear in Iudgment But this the Advocate will have to be a mans own sense and thereupon runs out That Hereby this Law and Oath and all Laws and Oaths are rendered useless and to no purpose And further the legislative Power is taken from the Imposer and setled in the Taker of the Oath Which certainly is a most treasonable presumption But first although there be no Reason to strain or mistake the Expression yet the Earl did not say That every man must take the Test in his own sense II. The Council hath now explained the Test for the clergy Might not then the Earl before their Explanation was devised say by the Councils allowance which he had That he might explain it for himself For if an ambiguous proposition the Test for example may be reconciled to it self two different wayes must not the Taker reconcile it as in his own sense he thinks it doth best agree with the genuine meaning of the words themselves and with the sense he conceaves was intended by the Parliament that formed it especially before the Parliament emitt their own Explanation And is it not juster to do it so then in any other mans sense which he thinks agreesless with the words abeit they may be thought by others to be reconciliable another way III. All this looks like designed mistakes and traps for should any man swear unless he understand And where an Oath is granted to be ambiguous can any man understand unless in want of the imposers help he explain it for himself IV. Was ever a man's Explaining an Oath for himself before taking it far less his bare saying that he must explain it before he take it alledged to be The overturning of all Laws and Oaths and the usurping of the Legislative power and making of new Laws certainly to offer to answer such things were to disparage common Reason And lastly this is strange Doctrine from the Advocate who himself in Council did allow not only the Earl his Explanation but that Explanation to the Clergie contrary as appeares by their Scruples to what they that took it thought either the Parliaments design or the plain words of the Test could bear and certainly different from the sense many had already taken it in and wherein others were commanded to take it And whatever the Advocate may cavil to insnare the Earl sure he will not allow that by his explaining this Oath he himself hath taken on him the Legislative power of the Parliament far less though he should acknowledge it will any beleeve that he hath or could thereby make all Laws or Oaths useless By this you see what strange stuffe he pleads which deserves no answer But sayes the Advocate the Earl affirms He takes the Test only as far as it consists with it self and with the Protestant Religion by which he most maliciously insinuats that it is inconsistent with both But first this only is not the Earl's but the Advocat's addition 2 ly I would soberly ask the Advocate or any man whether the Test as it includs the Confession in general and consequently all contained in it was not either really or at least might not have been apprehended to be inconsistent with it self Else what was the use or sense of the Councils explanation wherein it is declared that men doe not swear to every proposition of the Confession but only to the Protestant Religion therein contained And if it was either inconsistent or apprehended to be so how could the Earl or any honest man swear it in other terms with a safe Conscience But thirdly If Parliaments be fallible and this Oath as being ambiguous needed the Councils Explanation to clear it from inconsistencies must the Earl's words when he was to swear that he took it in so far as it was consistent be in this case understood as spoken maliciously and with a criminal intent when all Sense Reason and Religion made this caution his duty And if it be so criminal for one going to swear to suppose a possibility of inconsistencies in it Is it not manifestly more criminal in others plainly to confess and grant that there are inconsistencies in it after they have swallowed it in gross without any explanation whatsoever But sayes the Advocate The Earl hath invented a nevv vvay vvhereby no man is at all bound to the Test For hovv can any man be bound if he vvill obey only as far as he can And yet it will be hard even for the Advocate tho hesometimes attempts indeed more then he and all the World with him can do to tell how a man can obey farther and I am sure that in a matter of this kind viz. the free tender of an Oath all discreet men will Judge the Earl's offer both frank and obliging Then he asks To vvhat the Earl is bound if he be bound no further then he himself can obey manifest confusion and never either spoke by the Earl nor at all pertinent to his case besides he freely acknowledges that all men are bound to more then they can do or so far as the Test is consistent vvith it self and the Protestant Religion a strange doubting or yet I dare say imports as much as his Majesty expects of any and more then the Advocate will ever perform But sayes the Advocate vvho can determine to vvhat the Earl is bound Which sayes plainly that either the Test agrees with it self and the Protestant Religion in nothing or that the Protestant Religion is nothing Both which the Earl thinks far from truth But the Advocat's reasoning reflects far more on the Councils Explanation where it is plainly said That the Confession is not svvorn to in the Test but only the Protestant Religion contained in the Confession so that the Protestant Religion indefinitly is that which is said to be sworn to Now pray is it not much worse for a man to say that by taking the Test he svvears only to the Confession as it contains or agrees vvith the Protestant Religion which is in effect to set the Protestant Religion at variance with its own Confession and so to
reproach and ranverse the standard make void the very security that the Parliament intended then to say That he swears the Test as it agrees with it self the Protestant Religion which imports no such insinuation But from these pleasant Principles He jumps in to this Fantastik Conclusion That therefore it cannot be denyed but the Earl's interpretation destroyes not only this Act but all Government and makes every mans conscience or humour the Rule of his obedience But first as to the whole of his arguing the Earl neither invents sayes nor does any thing except that he offered his Explanation to the Council which they likewise accepted 2ly What mad inferences are these You say you will explain this Oath for your self therefore you overturn all Government and vvhat not Whereas it is manifest on the other hand that if the Earl apprehending as he had reason the Oath to be ambiguous and in some things inconsistent had taken it vvithout explaining it for himself or respect to its inconsistency it might have been most rationally concluded that in so doing he was both impious and perjured 3ly It is false that the Earl doth make his Conscience any other way the rule of his obedience then as all honest men ought to do That is as they say To be Regula regulata in conformity to the undoubted Regula regulans the eternal rules of truth and righteousness as is manifest by his plain words As for what the Advocate insinuats of humour insteed of Conscience it is very well known to be the Ordinary reproach whereby men that have no Conscience endeavour to defame it in others But the Advocate is again at it and having run himself out of all consequences he insists and inculcats that the Earl hath sworn nothing But it is plain that to swear nothing is none of the crimes libelled 2ly The Earl swears positivly to the Test as it is consistent vvith it self and the Protestant Religion which certainly is something unless the Advocate prove as he insinuats that there is nothing in the Test consistent with either And 3ly if the Protestant Religion and the Earl his reference to it be nothing then is not only the Council sadly reproached who in their Explanation declare this to be the only thing sworn to in the first part of the Test but our Religion quite subverted as far as this Test can do it But next for the treason the Advocate sayes That the Earl expresly declares he means not by the Test to bind up himself from vvishing or endeavouring in his station and in a lavvful vvay any alteration he shall think for the advantage of Church or State whereby sayes he the Earl declares himself and others loosed from any obligation to the Government and from the duty of all good Subjects and that they may make vvhat alterations they please A direct contrariety insteed of a just consequence as if to be tyed to Lavv Religion and Loyalty were to be loosed from all three can there be a flatter and more ridiculous contradiction Next the Advocate pretends to found upon the fundamental Laws of this and all nations whereby it is treason for any man to make any alteration he thinks fit for the advantage of Church or State But first The Earl is not nor cannot be accused of so much as wishing much less endeavouring or making any alteration either in Church or State only he reserves to himself the same freedom for wishing which he had before his Oath and that all that have taken it do in effect say they still retain 2ly For a man to endeavour in his station and in a lavvful vvay such alterations in Church or state as he conceives to their advantage not repugnant to Religion and Loyalty is so far from being treason that it is the duty of every subject and the Svvorn duty of all His Majesties Councellors and of all Members of Parliament But the Advocate by fancying and misapplying Lavvs of Nations wresting Acts of Parliaments adding taking away chopping and changing words thinks to conclude what he pleases And thus he proceeds That the treason of making alterations is not taken off by such qualifications of making them in a lavvful vvay in ones station to the advantage of Church or State and not repugnant to Religion or Loyalty But how then Here is a strange matter Hundreds of alterations have been made within these few years in our Government in very material points the Kings best Subjects and greatest Favourits have both endeavoured and effectuat them And yet because the things were done according to the Earl's qualifications insteed of being accounted treason they have been highly commended rewarded The Treasury hath been sometimes in the hands of a Treasurer sometimes put into a Commission backward and forward And the Senators of the Colledge of Iustice the right of whose places was thought to be founded on an Act of Parliament giving His Majestie the Prerogative onely of presenting are now commissioned by a Patent under the great Seal both which are considerable alterations in the Government which some have opposed others have vvished and endeavoured and yet without all fear of treason on either hand only because they acted according to these qualifications in a lawful way and not repugnant to Religion and Loyalty But that which the Advocate wilfully mistakes for it is impossible he could do it ignorantly is that he will have the endeavouring of alteractions in general not to be of it self a thing indifferent only determinable to be good or evil by its qualifications as all men see it plainly to be but to be forsooth in this very generality intrinsecally evil a notion never to be admitted on earth in the frail and fallible condition of human affairs And then he would establish this wise Position by an example he adduces That rising in arms against the King for so sure he means it being otherwise certain that rising in arms in general is also a thing indifferent and plainly determinable to be either good or evil as done with or against the Kings Authority is treason and sayes If the Earl had reserved to himself a liberty to rise in arms against the King though he had added in a lavvful manner yet it would not have availed because and he sayes well This being in it self unlavvful the qualifications had been but shamms and contrariae facto But why then doth not his own reason convince him â—here the difference lyes viz. That rising in arms against the King is in itself unlawful whereas endeavouring alterations is only lawful or unlawful as it is qualified and if qualified in the Earl's Terms can never be unlawful But sayes the Advocate The Earl declares himself free to make all alterations and so he would make men beleeve that the Earl is for making All or Any without any reserve whereas the Earl's words are most express that he is Neither for making all or any but only for wishing and
endeavouring for such as are good and lawful and in a lawful way which no man can disown without denying common reason nor no sworn Councellour disclaime without manifest perjury But the Advocat's last conceit is That the Earl's restriction is not as the King shall think fitt or as is consistent with the Law but that himself is still to be judge of this and his Loyalty to be the standard But first The Earl's restriction is expresly according to Loyalty which in good sense is the same with according to Law and the very thing that the King is ever supposed to think Secondly as neither the Advocate nor any other hitherto have had reason to distinguish the exercise and actings of the Earl's Loyalty from those of His Majesties best Subjects so is it not a marvellous thing that the Advocate should prosesse to think for in reality he cannot think it the Earl's words His Loyalty which all men see to to be the same with his duty and sidelity or what else can bind him to his Prince capable of any quible farr more to be a ground of so horrid an accusation And whereas the Advocate sayes The Earl is still to be judge of this It is but an insipid calumny it being as plain as any thing can be that the Earl doth nowise design His thinking to be the rule of right and wrong but only mentions it as the necessary application of these excellent and unerring rules of Religion Law and Reason to which he plainly resers and subjects both his thinking and himself to be judged accordingly By which it is evident that the Earl's restriction is rather better and more dutyful then that which the Advocate seems to desiderat And if the Earl's restrictions had not been full eneugh it was the Advocat's part before administrating the Oath to have craved what more he thought necessary which the Earl in the case would not have refused But it is beleeved the Advocate can yet hardly propose restrictions more full and suitable to duty then the fore-mentioned of Religion Law and Reason which the Earl did of himself profer As for what His Majesties Advocate add's That under such professions and reserves the late Rebellions and disorders have all been carried on and fomented It is but meer vapour for no rebellion ever was or can be without a breach of one or other of the Earl's Qualifications which doth sufficiently vindicat that part of the Earl's Explanation The Advocate insists much that Any is equivalent to All and that All comprehends Every particular under it which he would have to be the deadly poyson in the Earl's words And yet the Earl may defy him and all his detracters to find out a case of the least undutifulness much less of rebellion that a man can be guilty of while he keeps within the excellent Rules and limitations wherewith his words are cautioned I could tell you further that so imaginary or rather extravagant and ridiculous is this pretended Treason that there is not a person in Scotland either of these who have refused or who by the Act are not called to take the Test that may not upon the same ground and words be impeach't viz. That they are not bound and so without doubt both may and do saâ— it by the Test in their station c. to wish and endeavour any alteration c. Nay I desire the Advocate to produce the man among those that have taken the Test that will affirm that by taking it he hath bound up himself never to wish or endeavour any alteration c. according to the Earl's Qualifications and I shall name hundreds to Whom his Highness as you have heard may be added that will say they are not bound up So that by this conclusion if it were yeelded all Scotland are equally guilty of treason the Advocate himself to say nothing of His Royal Highness not excepted Or if he still think he is I wish he would testify under his hand to the World that by his Oath he is bound up never to wish nor endeavour any alteration he thinks to the advantage of Church or State in a lavvful way nor in his station though neither repugnant to the Protestant Religion nor his Loyalty And if this he do he does as a man if not of sense at least of honour but if not I leave a blank for his Epithets But that you may see that this whole affair is a deep Mystery Pray notice what is objected against the last part of the Explanation This I understand as a part of my Oath Which sayes the Advocate Is a treasonable invasion upon the Royal Legislative power as if the Earl could make to himself an Act of Parliament since he who can make any part of an Act may make the whole And then say I farewell all Takers of the Test with an Explanation whether the Orthodox clergy or Earl Queensberry tho himself Justice generall who were allowed by the Council so to do seing that whether they hold their Explanation for a part of their Oath or not yet others may and in effect all men of sense doe understand it so and thus in the Advocat's Opinion they have treasonably invaded the Legislative povver and made an Act of Parliament to themselves Neither in that case can the Councils allovvance excuse them seing not only the Earl had it as well as they but even the Council it self cannot make an Act of Parliament either for themselves or others But Sir I protest I am both ashamed and wearied of this trifling And therefore to shut up this Head I shall only give a few remarks First you may see by the Acts of Parliament upon which the Advocate sounds his indictment that as to Leasing-making and depraving Laws all of them run in these plain and sensible terms The inventing of narrations the making and telling of lyes the uttering of wicked and untrue calumnies to the slander of King and Government the depraving of his Laws and misconstruing his proceedings to the engendering of discord moving and raising of hatred and dislike betwixt the King and his People And as to treason in these yet more positive terms That none impugne the dignity and authority of the three Estats or seek or procure the innovation or diminution thereof Which are things so palpbale and easily discerned and withall so infinitly remote both from the Earl's words and intentions or any tolerable construction can be put on either that I confess I never read this indictment but I was made to wonder that its forget and maker was not in looking on it deterred by the just apprehensions he might have not only to be sometime accused as a manifest depraver of all Law but to be for ever accounted a gross and most disingenuous perverter of common sense The Earl's words are sober respectful and duty fully spoken for the exoneration of his own Conscience without the least insinuation of either reflection or slander much less
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
that were all were designed as was at first given out the Advocate needed not have set him oâ— high as Naboth and accusâ— him as a blasphemer of God and the King Then turning his speech to the Lords of Iustitiary he thought to have desired that they would yet seriously consider his words in their true sense and circumstances his own Explanation of his Explication and especially the forgoing matter of fact to have been laid before them with his Defences and grounds of Exculpation as also to have told them that they could not but observe how that he was singled out amongst thousands against whom much more then all he is charged with could be alledged and that they must of necessity acknowledge if they would speak out their own conscience that what he had said was spoke in pure innocence and duty and only for the exoneration of himself as a Christian and one honoured to be of His Majesties Privy Council where he was bound by his Oath to speak truth freely And not to throw the smallest reproach on either person or thing Adding that he was â—oath to say any thing that lookes like a reflection upon His Majesties Privy Council but if the Council can wrong one of their own number he thought he might demand if he had not met with hard measure For first he was pressed and perswaded to come to the Council then they receive his Explanation and take his Oath then they complain of him to His Majesty where he had no access to be heard and by their Letter under their hands affirm that they had been careful not to suffer any to take the Test with their own Explanations albeit they had allowed a thing very like it first to Earl Queensberry then to the Clergy And the President now Chancellour had permitted several members of the Colledge of Iustice to premise when they sware the Test some one sense some another and some non-sense as one saying he took it in sane sensu another making a speech that no man understood a third all the time of the reading repeating Lord have mercy upon me miserable sinner Nay even an Advocate after being debarred a few dayes because albeit no Clerk yet he would not take it without the benefit of his clergy viz. the Councils Explanation was yet thereafter admitted without the Warrant of the Councils Act but all this in the case of so many other was right and good Further the Council expresly declare the Earl to be Guilty before he had ever said one word in his own defence Thereafter some of them become his Assizers and others of them witness against him and after all they do of new concern themselves by a second Letter to His Majesty wherein they assert That after full debate and clear probation he was found guilty of Treason c. to have a sentence past against him and that of so high a nature and so dreadfull a consequence as suffers no person to be inconcerned far less their Lordships his Iudges who upon grounds equally just and which is more already predetermined by themselves may soon meet with the same measure not only as Concealers of Treason but upon the least pretended disobedience or non-compliance with any Act of Parliament and after all must infallibly render an accunt to God Almighty He bids them therefore Lay their hands to their hearts and whatever they shall judge he is assured that God knows and he hopes all unbyassed men in the world will or may know he is neither Guilty of Treason nor any of the Crimes libelled He sayes he is glad how many out do him in asserting the true Protestant Religion and their Loyalty to His Majesty Only he addes If he could justify himself to God as he can to His Majesty he is sure he might account himself the happiest man alive But yet seeing he hath a better hope in the mercy of God through Jesus Christ he thereupon rests whether he find Justice here on earth or not He sayes he will adde nothing to move them either to tenderness or pity he knows that not to be the place and pretends to neither from them He pleads his Innocence and craves Justice leaving it to their Lordships to consider not so much his particular case as what a Preparative it may be made and what may be its consequences And if all he hath said do neither convince nor perswade them to alter their judgment yet he desires them to consider whether the case do not at least deserve to be more fully represented and left to His Majesties wisdom and justice seeing that if once the matter pass upon record for Treason it is undoubted that hundreds of the best and who think themselves most innocent may by the same methods fall under the like Condemnation when ever the Kings Advocate shall be thereto prompted And thus you have a part of what the Earl intended to have said before pronouncing Sentence if he had not made his Escape before the day Yet some things I perceive by his notes are still in his own breast as only proper to be said to His Majesty I find several Quotations out of the Advocates printed books that it seemes he was to make some use of but seeing it would have been too great an interruption to have applyed them to the places designed I have subjoyned them together leaving them to the Advocate 's own and all mens consideration It was by some remarked That when the Lords of Iustitiary after the ending of the first dayes debate resolved that same night to give Judgment upon it they sent for the Lord Nairn one of their number an old and infirm man who being also a Lord of the Session is so decayed through age that he hath not for a considerable time been allowed to take his turn in the Outer house as they call it where they judgelesser causes alone But notwithstanding both his age and infirmity and that he was gone to bed he was raised and brought to the Court to consider a debate a great deal whereof he had not heard in full Court and withall as is informed while the Clerk was reading some of it fell of new asleep It was also remarked that the Lords of Justitiary being in all five viz. the Lord Nairn above-mentioned with the Lords Collintoun Newtoun Hirkhouse and Forret the Libell was found relevant only by the odds of three to two viz. the Lord Nairn foresaid the Lord Newtoun since made President of the Session and the Lord Forret both well enough known against the Lord Collintoun a very ingenuous Gentleman and a true old Cavalier and the Lord Hirkhouse a learned and upright judge As for the Lord Justice General who was also present and presided his vote according to the constitution of the Court was not asked yet he is since made a Marquies and Lord high Treasurer But to return to my Narrative the Earl as I have already told you did not think fit
Sentence is constantly required which induced some to think that at least the Earl should have been lawfully cited to hear Sentence before it could be pronounced But it is like this course as confessing a difficulty and occasioning too long a delay was therefore not made use of However upon the whole it was the General Opinion that seeing the denouncing the Earl Fugitive would have wrought much more in Law then all that was commonly said at first to be designed against him And that his Case did appear every way so favourable that impartial men still wondered how it came to be at all questioned It had been better to have sisted the process with his escape and taken the ordinary course of Law without making any more stretches But as I have told you when the Fryday came the Lords of Iustitiary without any respect or answer given to the Petition above-mentioned given in by the Countess of Argyle to the Court for a stop pronounced Sentence first in the Court and then caused publish the same with all solemnity at the Mercat Cross of Edinburgh FOr as much as it is found by an Assize That Archibald Earl of Argyle is guilty culpable of the crimes of Treason Leasing-making Leasing-â—elling for which he was detained within the castle of Edinburgh out of which he â—es now since the said Verdict made his Escape Therefore the Lords Commissioners of Justitiarâ— decern and adjudge the said Archibald Earl of Argyle to be execute to the death demained as a traitour and to underly the paines of Treason other punishments appointed by the lawes of this Kingdom when he shall be apprehended at such a time and place and in such manner as his Majesty in his Royall pleasure shall think fit to declare and appoint And his Name Memory and Honours to be extinct And his Armes to be riven forth and delete out of the Books of Armes swa that his Posterity may never have place nor be able hereafter to bruick or joyse any Honour Offices Titles or Dignities within this Realme in time coming and to have for faulted â—mitted and tint all and sundry his Lands Tenements Annua-rents Offices Titles Dignities Tacks Steedings Rowmes Possessiones Goods and Geere what suâ—ever pertaining to him to our Soveraign Lord to remain perpetually with his Highness in property Which was pronounced for Doom 23 December 1681. After the reading and publishing whereof The Earl's Coat of Armes by order of the Court was also torn and ranversed both in the Court and at the Mercat Cross Albeit some thought that this was rather a part of the Execution which his Majesties Letter discharges then a necessary Solemnity in the Publication and the Advocate himself sayes p 61. of his printed Criminals That it should only be practised in the crime of Perduellion but not in other Treasons The Reasons and Motives of the Earl's escape with the Conclusion of the whole Narrative THE Earl's escape was at first a great surprise both to his friends and unfriends for as it is known that his Process in the beginning did appear to the less concerned more like a piece of pageantry then any reality and even by the more concerned was accounted but a politik design to take away his Offices and lesâ—en his Power and Interest So neither did any of his Friends fear any greater hazard noâ— did most of his unfriends imagine them to be more apprehensive Whereby it fell out that upon report of his escape many and some of his well-wishers thought he had too lightly abandoned a fair Estate and the probable expectation he might have had of His Majesties favour As also some that were judged his greatest adversaries did appear very angry as if the Earl had taken that course on purpose to load them with the odium of a design against his life And truly I am apt to think it was not only hard and uneasie for others to believe that a Person of the Earl's quality and character should upon so slendeâ— a pretence be destroyed both as to life and fortune but also that he himself was slow enough to receive the impressions necessary to ripen his resolution and that if a few Accidents as he sayes himself happening a little before his escape had not as it were opened his eyes and brought back and presented to him several things past in a new light and so made all to operate to his final determination he had stayed it out to the last Which that you may the better understand you may here consider the several particulars that together with what he himself hath since told some frineds apparently occurred to him in these his second thoughts in their following order And first you have heard in the beginning of this Narrative what was the first occasion of the Earl his declining in his Highness favour You may also remember that his Majesties Advocate takes notice that he debated against the Act enjoyning the Test in the Parliament And as I have told you he was indeed the Person that spoke against excepting the King's Brothers and Sons from the Oath then intended for securing the Protestant Religion and the Subjects Loyalty not thinking it fit to complement with a Priviledge where all possible caution appears rather to be necessary And this a reverend Bishop told the Earl afterwards had downright fired the kilâ— What thereafter happened in Parliament and how the Earl was alwise ready to have laid all his Offices at his Majesties feet And how he was content in Council to be held a Refuser of the Test and thereby incurr an intire deprivation of all publik Trust is above fully declared and only here remembred to show what Reason the Earl had from his first coming to Edinburgh in the end of October to think that something else was intended against him then the simple devesting him of his Employments and Jurisdictions And yet such was his Assurance of his Innocence that when ordered by the Council to enter his Person in Prison under the pain of Treason he entered freely in an Hakney coach without either hesitation or noise as you have heard 2ly The same day of the Earl's commitment the Council met and wrote as I have told you their Letter to His Majesty above set down Num. 22. Wherein they expresly charge him with Reproaching and Depraving But yet neither with Perjury noâ— Treason and a few dayes after the Earl wrote a Letter to his Highness Wherein he did endeavour to remove his offence in termes that it was said at first had given satisfaction But yet the only return the Earl had was a criminal Summonds containing an Indictment and that before any answer was come from hiâ— Majesty And then so soon as his Majesties answer came there was a new Summonds sent him with a new Indictment adding the crimes of Treason and â—erjury to these of Reproaching and Depraving which were in the first Libel as you have heard above whereby you may perceive how
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
Oath being to preclude the Takers from reserving a liberty to rise in arms upon any pretext whatsoever The Earl sayes our Author by his Explication reserves to himself a power to make any alterations that he shall think for the advantage of Church and State But not to stay you here with what you have so fully cleared in the Narrative Dare any man even our Author not excepted say That he who reserves a liberty to himself in his station and in a lawfull way to wish and endeavour any alteration he thinks to the advantage of Church and State not repugnant to the Protestant Religion and his Loyalty which are the Earl's words eo ipso reserves to himself a liberty to rise in arms upon any pretext whatsoever Certainly to assert this as our Author here does is not only to deny common sense but desperatly to affirm That to rise in arms upon any pretence whatsoever is a lavvful thing advantageous to Church and State and agreeable both to Religion and Loyalty The most traiterous and irreligious Position that can be devised and which one day or other our Author may be more straitned to answer then at present he is to maintain the grosâ—est absurdities Now whether by all these fyne Remarks our Author hes concluded as he alledges that the Earl hes interpret his Oath otherwise then it bears although this be also a wide and weak impertinency as to the inferring of any crime let the world judge But. 2ly Sayes our Author If the Earl's glossing vvere allovvable then there vvere no need to propose doubts in Parliament but Oaths might be left to be formed at the Takers pleasure But. 1. Is not this consequence far more clearly deducible from the Councils emitting their Explanation 2ly What sense or non-sense could induce our Author to dream that because Inadvertency may necessarily occasion Explications therefore men should be still Inadvertent Our Author desires to knovv from any man of sense if the Earl vvould have obtained from the Parliament at the passing of the Test That everyman should be allovved to take it as far as it was consistent with it self and the Protestant Religion and with the Earl's other Qualifications And if I in this contest may pretend to this quality I would answer him roundly That albeit I think hardly any man of sense could make a proposition in thir terms to that soveraign Court that had full power to change the Test at their pleasure Yet I am very confident that had any man suggested the half of the objections that have since been started against it they would very readyly have endeavoured to obviat all reasonable exceptions of Inconsistency though neither by our Author 's wise Expedient nor yet by reserring them to the Councils just and accurate Explanation And for the other Qualifications in the Earl's words I am most assured and have his Highness for my Voucher that had the Parliament been ask't Whether or not the Test did bind up a man in a lawfull way and in his station c They would have answered Not and that therefore though they might have judged the Reservation not necessary yet for the greater ease of conscience they would never have stuck to allow any honest man in swearing to express it or not at his pleasure 3ly Our Author asks If a man should by Oath oblige himself simply to make me a Right to Lands could this sense be consistent with it I 'le make it as far as I can Or would a Right so qualified satisfy the Obligation But if I were to oblige a man simply by his Oath to make me a Right and he should answer I le do all I can to satisfy you and then tell me distinctly what he would sweat to do and what not which is the plain parallel of the Earl's case cleared from our Author's Inversions I should think my self bound whether I accepted his offer or not to judge him a fair plain-dealing man But if once I accepted and should afterward call him a Cheat certainly all men would esteem me the greater Cheat of the two 4ly 5ly and 6ly Sayes Our Author Oaths should be so taken as that the Taker may be persued for perjury That the Covenanters would not have suffered a man to take the Covenant as far as consistent with his Loyalty And are not the enemies of the King's Supremacy content to swear in so far as is consistent with the Word of God So that if the Earl's sense were allowed every man should swear upon his own terms and upon contrary terms But 1. Without question the Earl turning either Papist or Disloyal might have been persued for perjury upon his Oath as qualified 2ly Albeit the Covenanters might have laughed at a man for adjecting a caution which they thought expressed yet I am sure at worst they would never have judged the offer a crime much less accused the offerer after having accepted it 3ly It is nothing to the purpose what Declarations the enemies of the Supremacy make But if these our Author mentions be criminal as he would have us to believe I would intreat him to tell us why their makers are not persued and unless he say It is because these Declarations were not made before accepted by the Council I hope he will be so ingenuous as to confess that it is because albeit these Declarations be judged eversive of the Oath yet they are not accounted Crimes in respect they are only well mean't proposals which when rejected evanish And 4ly Our Author's Consequence If the Earl's sense be allowed then every man should swear upon his own terms as it doth not at all concern the Earl so hath it no connexion except in so far as it reflects on His Majesties Council the alone Masters of such Allowances 7ly Sayes Our Author Former Statuts having discharged Conventions or Convocations and Bonds or Leagues without the Kings consent The Covenanters protested that their Covenant was not against these Acts because they could not be meaned of Meetings and Bonds for preservation of the King Religion and Laws And the 4. Act Par 1661. Declares all such glosses false and disloyal And therefore the Earl's gloss must be so too But 1. The Earl's gloss is no such gloss it doth not at all touch these Conventions or Bonds said to be discharged therefore it must not be so 2ly The Earl's Explanation is expresly qualified in a lawful way and not repugnant to his Loyalty which words plainly respect the Act 1661. as well as all other Acts made for defining our allegiance and duty And therefore it cannot possibly fall under its compass as a Contravention But now after we have done with our Author's Critique which he sayes makes his subsumption clear and undeniable I freely appeal to all men of ordinary ingenuitie whether he hath proved so much as the first Article of it viz. That the Earl took the Test in such a sense as did evacuate his own Oath much less the
every good subject much more of one of his Majesties svvorn Councellors Our Author sayes indeed well but to no purpose That it is Treason L. 1. § Majestatis ff ad L. Iuliam Majestatis to attempt against the security of the Government But can he or any man in his right senses conceive that for a man to endeavour any or all Alterations as above qualified by the Earl is to attempt against the Government Certainly he may as soon prove that to assist and advance the Government faithfully and strenuously the true and obvious import of the Earl's words is to overturn it traiterously But our Author hath a clear Statut for him viz. P. 1. Sess 2. Act. 2. Ch. 2. Whereby it is declared that these Positions That it is lawfull for subjects upon any pretence to enter into Leagues or take up Arms against the King Or that it is lawfull for subjects pretending his Authority to take up Arms against his Person or those commissionat by him Or to suspend him from the exercise of his Royal Government Or to put Limitations on their due Obedience and Allegiance are rebellious and treasonable From vvhich vvords sayes he I infer most clearly That for a subject to declare he is not tyed up from wishing any Alteration is Treason For any Alteration comprehending all Alterations can any man of sense and ingenuity deny but this is a putting Limitations upon his Obedience why not due obedience and Allegiance But admitting any to be comprehensive of all Alterations can any man of common ingenuity say That he that declares himself not tyed up from endeavouring in his station and in a lawfull way all Alterations to the advantage of Church and State not repugnant to Religion and Loyalty declares himself not tyed up from endeavouring all simply Which is a quite different thing Or that he that purposely declares in the former manner that he may preserve the just latitude of his Allegiance doth put Limitations upon his due Obedience and Allegiance when in effect he most expressly ampliats and explains it But our Author coming to see that the deadly thing in the Eal's vvords is neither the Any nor the All addes For vvhat is a greater Limitation then to reserve to himself to be Iudge hovv far he is tyed But because the Earl in his sincerity professes that he minded to endeavour in his Station and in a Lawfull way such Alterations as he should truly think and not barely alledge to be to the advantage of Church and State Doth he therefore make Himself or his Opinion the only Rule of his Oath and performance and not rather the Lavv to which he so plainly refers Or hath our Author either so little Understanding or so little Honesty as not to acknowledge that though de jure all men be obliged to regard Lavv and Reason as the great Directors of duty Yet de facto they can only apply them providing they would do it ingenuously according to their ovvn conceptions So that to accuse a man for such an Expression is to put off all professions of Sincerity and to subvert the very use of thinking among men as is more fully above held forth Our Author in the next place gives us many reasons why the Earl's Cautions in my Station and in a Lawfull way not repugnant to Religion and Loyalty cannot salve his Reservation But still seduced by one and the same foolish and wretched Error viz. That because such Cautions do not justify the contrarie Transgressions therefore all Professions so cautioned are a crime Thus he tells us first That the Covenant as criminal as it was vvas so qualified But who ever thought that these qualified Professions in the Covenant condescended on by our Author were the Covenanters guilt Sure I am it is only for the opposite Practices and not at all for these Professions that the Act of Parliament condemns them 2ly He sayes These Cautions never hindered any man to committ Treason And what then Have not the best Cautions and highest Professions in the world been in like manner violate Whereas the thing our Author should have said is That an Endeavour every vvay qualified as the Earl professes hath been found treasonable But knowing this to be certainly false you see how he here declines to averr it 3ly He tells us That they that rebelled in the 1666 and 1679. professed great love to his Majesty And had they never said or done more does our Author think they had been found guilty of Treason 4ly He tells us That the adjecting of such Cautions is reckoned by Lawyers as Protestatio contraria facto And so indeed they may justly be as they only are when any Fact is committed contrary to them as for example when the Earl shall turn Papist But was it ever heard since Law was named or Reason understood amongst men that a man's declaration That he did not mean to bind up himself in his Station and in a lawfull way to endeavour Alterations he should think to the advantage of Church and State not repugnant to Religion and Loyalty was judged either Protestatio illicita aut cuivis facto licito contraria And 5ly Our Author repeats the Statut condemning glosses put upon the Laws by the late Rebellious Parliaments to the prejudice of their Allegiance But I have already told you there is no such gloss contained in the Earl's words And I further appeal to all men our Author not excepted whether ever these Parliaments if they had only professed That in their station and in a lawfull way they would endeavour any Alteration they thought to the advantage of Church and State not repugnant to Religion and Loyalty would have incurred his late Majesties displeasure much less the atrocious Character of Rebellious here cast upon them But sayes our Author Their Explanation declaring that what they did was for the preservation of Religion which is the very Explanation put by the Earl upon this Oath was particularly condemned as false and disloyal But not to tell you that by our Author's words a man would think that even to say The Test was made for the preservation of Religion may be found both false and disloyal which I heartily wish may never come to pass may not this passage alone convince our Author That it neither was nor could be the Parliaments precise professing themselves to be for Religion but only their professing and justifying of what they did to be for Religion which was judged false and disloyal And that because their Profession or Protestation was thought contrary to their Deed with which the Earl's case Qui adeo factorum innocens ut verba ejus arguantur as a noble Roman said in the like case and who is not so much as accused of having done any thing holds not the least similitude And yet sayes our Author From all this it clearly follows That the Earl by reserving a power to himself to endeavour Alterations did committ Treason notwithstanding all his
is consistent with it self and the Protestant Religion do so openly import that in some things it is inconsistent that vvhosoever vvould persuade him to the contrary must think him Fool or Idiote But. 1. Since the Earl doth not say what our Author would have openly imported either positively or designedly it is impossible he could say it Criminally 2ly Since his words do manifestly referr to the many Exceptions that were abroad against the Test And that it is no less evident that by his Explanation he singlely intended to clear his own Conscience and deal candidly with the Government Whosoever would perswade that there is in it any ground of Offence or Crime specially after it was accepted by the Council must be really either Fool or Worse Our Author indeed tells us That the words vvere spoke by the Earl to inflame the people That they reflect upon the Prudence and Conduct of the Parliament and so prove Defaming and Depraving unansvverably And vvhat can be more Depraving of a Law then to make it Pravam Legem And vvhat Law can be more prava or pernicious then that vvhich is inconsistent vvith the Protestant Religion and vvhich tyes to svvear things contradictory And the having svvorn and dispersed his Explications shevves a firm and passionat Design to poyson the People vvith a belief of all these ill things of the Parliament But seeing the common and certain understanding of Depraving is to wrest by a false and malicious construction to a bad end what was designed for a good That for certain there is no falshood so much as alledged by our Author to be in the Earl's vvords And for malice all the circumstances above adduced do undoubtedly purge them of it That no man in a studied Apology can say The Parliament did not intend contradictions but his vvords by this calumnious Logick may be charged with the same train of absurd Consequences That the Councils Explication is in every respect more obnoxious to them then the Earl's That our Author knows Dispersing neither was nor could be proven And that in effect the Earl's Explanation was accepted by and so became the Councils more then his as you have fully heard in the Narrative This groundless violent Invective is already answered But if I may take a little more liberty then my Narrator thought fit to use Dare our Author state the controversie upon this issue Whether there be Contradictions and Inconsistencies in the Test or not Or if they be as the Council hath implicitly granted and all men may explicitly see in the Paraphrase above set doun will he have it a Crime for a man to say He believes the Parliament intended no Contradictions and that he is content to take the Test in so far as it is consistent Or would he have us to believe either that all Scotch Parliaments or at least the Last by reason of an extraordinary assistance are infallible Or if they be fallible as they confess themselves thinks he the People either so Blockish as not to see their Failings tho never so palpable and also important to mens salvation or so Brutal as to break all Measures if once they conceive their Rulers to be but Men But though here you may indeed perceive the Grounds whereupon all our Author's discourses in this Pamphlet do proceed Yet seeing they are manifestly calculate to some mens unhappy Designes who on purpose inveigh against the People as either ignorant or insolent that they may be arbitrary and would have all Dissenters from their designes to be Suspect and all Suspect to be Traitors that they may be uncontrollable I hope men are not yet brought to that pass either of Simplicity or Terrour as to be cajolled or cudgelled into a complyance with such pernicious Insinuations The third Crime wherewith the Earl was charged was Treason A Crime now become with us and so much the more pity that we live under a Prince so quite different as it was of old said to be under Tiberius Omnium accusationum complementum And which sayes our Author was inferred against the Earl from these words I doe declare I mean not to bind up my self in my station and in a Lawfull way to wish and endeavour any Alteration I think to the advantage of Church and State not repugnant to the Protestant Religion and my Loyalty And this I understand as a part of my Oath And this our Author tells us he will make out in a plain familiar unanswerable way And for that effect gives us this demonstration in Mode and Figure He that reserves to himself the power of reforming Church or State commits Treason But the Earl in his Explication reserves to himself a povver of reforming Ergo. And not to amuse you with repeating what is already so fully said in answer to this Pretence equally ridiculous and pernicious To this formal Argument take this formall Answer He that reserves to himself the povver of reforming c. By asserting or assuming to himself the povver of reforming either proper to the Prince alone or in a way without his line or without warrant of Law or to the hurt of Church and State and repugnant to the Protestant Religion and his Loyalty commits Treason Transeat be it so He that reserves to himself the povver of reforming c. By declaring he minds not to bind up himself in his Station and in a lawfull way to endeavour Alterations he thinks to the advantage of Church and State not repugnant to the Protestant Religion and his Loyalty commits Treason Is denyed Nay in effect this is so far from being Treason that the thing thus reserved is the indispensible duty of our Allegiance And for a subject specially a privy Councellor not to wish and endeavour in his station and in a lawfull way such Alterations as he thinks to the advantage of Church and State and not repugnant to the Protestant Religion his Loyalty were a Lash Disloyalty and plain Perjury But so it is that the Earl in his Explication reserves to himself a povver of reforming in the former sense is false and the very thing denyed by his vvords In the later and second sense it is indeed true but in steed of being a Crime a most clear and certain duty But our Author sayes That any is as comprehensive as all which he gravely proves by several instances and thence infers That therefore the Earl has reserved to himself to endeavour all Alterations And sayes he If that be not Treason nothing can be Treason But albeit to endeavour any or all Alterations simply as our Author sophistically and calumniously divides the Earl's words may be Treason dare he affirm That for a man in his station and in a lawfull way to endeavour any or all alterations to the better and not repugnant to Religion and Loyalty which are the Earl's words is Treason Or can he or any man deny that the doing of this very thing may be the necessary duty of