being now very few who go not to Church and almost all repenting that they went not sooner and I desire to know from these Authors if their Partie in England thinks that the true way of using Papists or if the Presbyterians allowed that way of arguing when they prevail'd and was it not that lenity which drew on the last Rebellion and our Slavery A short view of our Laws made on that Subject with the occasion of them will best clear this point In the last Rebellion defensive Armes and that the people had power to Depose or Suspend Kings were the great foundation and in defence whereof several Books have been lately written and therefore these were declared Treason and it is admir'd how any can be called good Subjects who maintain them The Parliament did see that the not going to Church occasioned much Atheism and Ignorance and that the hearing such as were not Authorized was a certain inlet to all Sedition and Herisie since every man might preach what he pleased and therefore they discharg'd House Conventicles and declar'd that meetings in the Fields were formall Rebellion since Rebellion is only a rising in Armes without and contrary to the Command of Authority and that sometimes there would be gathered together several thousands of people in Armes who might joyn when they pleased and from a Conjunction meerly of those proceeded the Rebellions 1666. and 1679. and they punished these with moderat Fynes far below the guilt And how dare men be so dissingenuous as to own themselves the only Protestants and yet to inveigh against Statutes made to hinder Jesuites Socinians and others to pervert the people as we certainly know they did for many years together at those meetings and how could this be prevented since the poor commens know not what is Orthodox And since they were perswaded not to ask who was to Preach least they should be oblidged to Witnesse against him and as the dangers on the onehand were great so on the other they were desired to go to that Church which the greatest and soberest of their own Ministers did and do still frequent Some Ministers fearing that their hearers might be led as Witnesses against them infused in them a dangerous and ridiculous principle that no man was oblidged to depone when he was called to be a Witness and that no man was oblig'd to Depone when the being at such illegal Meetings was referred to his Oath and this was called the accusing of ones self whereas all Laws under Heaven oblige a man to be a Witness else no Crime could be prov'd And if this were allowed we might have as many Masses as we pleas'd and when any thing is referred to a mans Oath he does not accuse himself for the Fiskal accuses him and do not all Nations prove Injuries and Misdemeanours by the Oaths of the Committers if these are not to be capitally punished And therefore the Parliament was forced to make a Statute obliging them to Depone as VVitnesses I need not tell the dreadful Equivocations lately invented to secure Rebels as when a Witness Depones he saw a Hilt and a Scabbart but yet knows not if there was a Sword The Pia fraus of Ignoramus Iuries and a hundreth other Cheats rather to be lamented then related And which tended to unhing all Property as well as Religion if God and zealous Magistrates had not prevented it And yet the opposing these which is a Duty must be represented as a Crime for deluding ignorant people The Parliament then having for the necessary Defense of the Kingdom by reiterated Laws commanded those things to be put to Execution Laws which did not only at first seem to be just but were thereafter upon experience found to be so Are not they promoters of Arbitrary Government who think that the Judges and Magistrats of the Nation should dispense with such Laws And whoever thinks he may dispense with the Law must certainly think that he is ty'd by no Law and that is to be truly Arbitrary And it is most observable that these who are Enemies to His Majesties Government and His Servants are of all men alive most guilty of that Arbiltariness which they would fix upon others It cannot be imagin'd that the King will contemn the Laws since they are his own Creatures as well as His Support whereas such as oppose Him or Rebell against Him must first trample under foot the Laws by which the King is Secur'd and by which they are to be punish't and it is not the Masters but Robbers who break the Fences 2ly Are not these honest and good Countrey-men who think it cruelty to punish such as did take up Arms twice in an open Rebellion and who own all the Cruelties that were committed in the late Civil Wars who burn publickly the Acts of Parliament and who joyn with Murderers 3ly Albeit those Crymes be very attrocious horrid in themselves and dreadful in the preparative inconsistent with humane Society and a Scandal to Religion Yet have not His Majesties Judicatures offered Remissions to all such as have been accus'd providing they would disown those Rebellious Principles so that such as dy are the Martyrs of their own Crymes and justifie their Judges even whilst they are Exclaiming against them And as no Government under Heaven did ever shew so many Instances of Clemency offering Indemnities when there was no necessity for them Renewing and Pressing those Indemnities when they were twice or thrice slighted and Remissions when all those gentle Offers were contemn'd so has any man dy'd amongst us by malicious Juries or false Witnesses 4ly Has not the Privy Council in their Fyning such as were guilty proceeded with such moderation that albeit for many years the Laws were absolutely contemned after many Reiterations by the Parliament and Proclamations from the Council pressing Obedience to them Yet they have Ordered Execution to be Suspended as for bypast times to all such as would Obey for the Future And I must beg leave to Observe that it has been upon an exact Review found that the Rebellious Parliament 1647. did Impose more by way of Fyne in one day than the Privy Council has done since His Majesties happy Restauration Such as differ'd from their Government Intreated for those Pardons which are now refus'd And it would have been then thought very ridiculous to offer a man his Life who had been in Arms for the King upon his offering to live peaceably 5ly If the Differences amongst us upon which all those Rebellions were founded were Matterial and did proceed from Conscience somewhat might be said to lessen though not to justifie the Guilt for Conscience should neither be a Cryme nor a defence for Crymes Yet what can now be said When all men willingly go to Church which certainly they would not do if their Conscience did not allow them And it being now clear that the former contempt of the Law proceeded from Humor and not from Conscience who can blame
you to be Slaves in their Plantations that fill'd your Pulpits with Buff-Coats and your Churches with Horses and did not they turn all your own Arguments against you that you had us'd against Episcopacy for as you said the Bishops should not have Revenues so they said your Ministers should not have Stipends as you contended that Lawn Sleeves were Popish they contended that Gowns were so too they in Enimity to Ceremony would cover their heads at Prayer as you did in Churches and by the same Rule that you taught that Subjects might Reform Kings they concluded against you that they might Execute them I shall likewise refer to your consideration that it is the Duty of every good Subject to obey the Laws of that Nation wherein he lives since they must either obey the Magistrate or overturn him and a Schism does breed so much Un-christian Heat and so many Civil Wars that no pious or reasonable Man should Engage in it except he be necessarly Obliged to separate from the the Church as absolutely Anti-christian But so it is that the Differences betwixt our Episcopacy and Presbytery which have occasioned all these dangerous Disorders are founded upon no express Text of Scripture else Forraign Churches would not acknowledge ours to be a True Church as they universally do nor had the Fathers of the Primitive Church owned a Government which stood in direct opposition to the Word of God And it seems strange that God Almighty should have designed to express a thing in Scripture as necessary for Salvation and yet we who are obliged to obey the same should not be able to find it out It is also very fit to be considered by you that the Reason why Monarchy has always preferred Episcopacy to Presbyterian Government proceeds not only from an aversion to Presbytery as neither Establisht by Scripture us'd in the Primitive Church nor recommended by the Holy Fathers but because it has been observed that your Government being founded on Equality amongst Presbyters resembles more a Common-wealth and that you have always in this Isle Reformed without the Monarchs approbation if not against it and so have Interwoven with your Religion Principles opposit to Monarchical Government resolving to ballance Establisht Authority with pretences of Religion from which necessity has at last forced many of you to oppose all Government And it is still observable that whatever opposes the Government of the Countrey where we live must at last end in Anarchy and Confusion Those great Idolizers of Parliaments in speaking so much against our last shew that they care no more for Parliaments then they do for Kings and think them only Infallible when they are such as themselves For where was there ever a Parliament so unanimous as ourswas in the matter of the Succession not one Man having proponed any one Argument against it And what a Villanous thing is it to assert that the Test is a Popish Contrivance when in it we Swear expresly to own the Protestant Religion and breed up our Children in it And that without all mental Reservations or Equivocations And to shew how well contriv'd that Oath is in opposition to Popery Not one Papist in all our Kingdom has taken the Test. What more could his Majesties Commissioner have done to show his willingness to have honest and loyal Protestants enjoy their own Religion And who after this should believe these lying Authors Who would Impose upon the World that as a mark of Popery which is the strongest Bulwark imaginable against it And though we make not the Protestant Religion the Instrument of Cruelty the Stirrup of preferment a Cloak for all manner Knavery and a Trumpet of Rebellion nor admire avowed Atheists nor pay Salaries to such as deny the Divinity of Jesus Christ if they be usefull to other Hypocritical designes as some do yet our Nation has reason to suspect such as will have them passe for Popishly inclined as if all Duty when it pleases not them were Popery for in our Chief City and it's Suburbs we have not 14 Popish Families in the whole Diocess of S. Andrews the far largest of Scotland we have not three and there are not 60. upon a sworn Report to be found in the Diocess of Aberdeen which is the most suspected of all others These wise States-men who think insolently that they though privat men may reform our Laws as well as their own Religion we appeal still to that Parliamentary Insallibility which they here deny And therefore we justly contemn these Pamphlets which inveigh against the 25 Act of the third Session of His Majesties first Parliament whereby the Estates of this Kingdom oblidge themselves to send 22000 Men into any part of His Majesties Dominions wherever His Authority Honour or Greatness may be concerned which was certainly their duty for if they defend it only at home their defense may prove useless both to themselves and Him and since he is our King every where we should assist Him every where And that the King may call his Subjects even without his own Territory is clear by all Lawyers and amongst whom I shall only cite Castallio de Imperatore quest 159. Where the question is expresly treated and this decided from the Law of Nations Nor need any honest Subject fear our assisting their King and Traitors should be terrified But in all this we were much Loyaler then that Peer of England who when our Rebellion rose in 1679 affirmed that His Majesty could not send down Forces into Scotland without consent of Parliament because by the Treaty of Rippon it was declar'd that the Subjects of one Kingdom should not in vade the other without the consent of the Parliaments of both Kingdoms which Treaty is Rescinded with us and we believe England will not think that a mutual Treaty can stand when one side is free nor consider we Parliaments as the Arbiters of Peace and War that being the Kings incommunicable Prerogative but this shews why our Acts are rail'd at and what Loyal Men they are who do it As also since all lawfull Parliaments have ever since the Reformation both Here and in England made very severe Laws against non Communicants or Schismaticks either no respect is to be had to those Parliaments or these Laws are Just and fit ard why the Laws should have been so severe to them in Queen Elizabeths Reign before they had rebelled and should now remit their severity when by frequent rebellions and extravagant Sermons Books and Assemblies they have incorporated so many dreadful principles inconsistant with all Government into the bodie of their Divinity I see not and shall be glad to be informed and if it be pretended that their numbers having infinitly increased since that time should prevail with a wise Magistrat to lessen his severity we conclude just the contrary especially since we find that an exact and firm though moderat execution of the Law is abler to lessen their fury then an indulgence there
and the Earl himself still the only Judge And I am desirous to know in what part of Europe such qualities were ever allowed It is also very absurd to contend that the adjecting of these qualities can put the Taker in no worse case then if he had refused the Test. And since that cannot amount to a Crime so neither can this For it is contended that these qualities do infer a misinterpreting of the Kings Laws and a Defaming of the Parliament And it is most absurd to think that such things as these should be suffered because they are thrown in into Explications For else under the pretence of Explaining Oaths we should have virulent Libels dayly against King and Palliament Nor can I see why Equivocations and Mental Reservations should be condemned if this be allowed for such as take the Test or any other Oath may at the taking of them Evacuat the Obligation of the Oath by adjecting such qualities And it is all one to the Legislator whether he be openly or secretly abas'd Only this I must observe that the open Abuse is the greater because it adds publick Contempt to the design'd Cheat And whereas it is pretended that the Magistrat may choose whether he will admit of the quality or not which he cannot do in mental Equivacations To this it is answered that that could only hold if the qualities adjected to the Oath were first offered by way of Petition to the Magistrat that it might be known whether he would allow of them which was not done in this Case wherein without ever applying to the King or Council The Earl did by his own Authority Swear in his own Terms Though the Council and the Reverend Bishops took pains to satisfie some scrupulous Ministers whose Scruples were in Favours of the Government and got them the Kings Sense and told them their own And which indeed was the genuine Sense of the Parliament Yet that did not at all allow the Earl or any privat man to take it in a Sense Inconsistent with the Oath And that too without previously offering his doubt to the King and Council And geting their Approbation as said is Nor were they allowed to take it in such general Terms as did â—â—â—ecure the Legislator and admit the Takers to be Judges The second Cryme fixt'd upon the Earl from this Paper is That albeit by the 10 Act Par 10 Ia 6 It is Satute That none of His Majesties Subjects presume nor take upon hand publickly to Declaim or privatly to Speak or Write any purpose of Reproach or slander of His Majesties Person Estate or Government or to Deprave His Laws and Acts of Parliament or misconstruct His Proceedings whereby any misliking may be mov'd betwixt his Highness and his Nobility and loving Subjects in time coming under the pain of death Certifying them that do in the contrair they shall be repute as seditious and wicked Instruments enemies to his Highness and the common well of the Realm and the pain of death shall be Execute against them with all rigour in example of others Yet true it is that the said Earl did endeavour all that in him lay to Defame the King and Parliament and Test in so far as he did declare That he would give Obedience to it as far as he could Which imported that the Parliament had made an Oath which could not be absolutely obeyed And though the Parliament never intended to impose contradictory Oaths yet no body can Explain it but for himself Which did clearly import that though the Parliament design'd not to make an Oath that was contradictory yet they had made one that was indeed contradictory And could not be made Sense without privat Reconciliations and Explications And by saying that he took this Oath only as far as it was consistent with it self and the Protestant Religion he did clearly declare to all the world that he thought it in some things inconsistent with it self and the Protestant Religion And since there is nothing concerns Governours more than to have themselves esteemed by the people without which or numerous Armies Government cannot subsist And therefore our Parliaments have in place of Armies consented in the former excellent Statute that whosoever shall endeavour to deprave the Laws or misconstruct the proceedings of King and Parliament shall be punished to the death And what can be a greater reflection upon King and Parliament in the age wherein we live than to have made Laws which cannot be obeyed and which are inconsistent with the Protestant Religion And there was no man that ever hear'd that Paper except this Author but did conclude that upon the matter the people would from it entertain those scruples Nor are these the inferences of people that live far from the Sun as the undiscreet Author does object against this Nation But men must be as disingenuous as he not to confess that these are most just and natural Inferences And the Inferences are so much the stronger that both this Author and all such as were enemies to the Test did take pains to make the People believe that the Contrivers of the Test were in so far friends to Popery and consequently there was nothing drawn from this Paper by Inferences but that which was too publickly owned by all who were in the same Circumstances with him who gave it in Mr. Mist in answer to this part of the Accusation does first cry out that Crymes must not be inferred by Inferences and Insinuations seing these may be unjustly drawn against the design of the Party accus'd And no man could be secure if men could be made Criminal upon Insinuations and Inferences And this Paper having been given only for the Exoneration of his Conscience it is not capable of any such Misconstruction nor ought any such Construction be made except where a malitious Design can be proved in the Person accused To which it is answered That the Parliament having been very jealous of the honour of the Government which ought to be Sacred They discharg'd in general all such Words and Papers whereby any mislyking might be mov'd betwixt the King and his Subjects And therefore since the effect was the thing they lookt to and that it is all one to the Government what the Authors design was if the effect was wrought and the dislike moved They therefore ordained the effect to be punished without adding as they do in other cases that whosoever shall malitiously or upon design Write or Speak and it is very well known that there are no Papers so dangerous nor no Satyre so bitter as these which are coloured with specious pretexts of Conscience Respect and Kindness And upon this accompt it was that by the 9 Act Par 20 Ia 6 All Papers that tend to renew the remembrance of the former feeds betwixt the two Nations shall be punishable And what can be more justly called Insinuations and Inferences then Tendencies are And if the people be abus'd and inflam'd what
should be Taken in the Legislators Sense And can there be a greater moving of the People to Sedition than to tell them that no man that Takes that Oath is bound by it farther then he pleases and further then his own Sense leads him And that the Legislator is Ridiculous in having made Contradictory Oaths which without Debating whether it be true or false is a Reflection upon the State and is unlawful for any privat Subject And if any such thing were suffered upon pretence that it were possible or true It should be lawful for every privat man to accuse the Government As to these Words I Take it in so far as it is Consistent with it Self and the protestant Religion Do's so far openly import That in some things it is Inconsistent with it Self and the Protestant Religion that whosoever would perswade us to the contrary must think us Fools and Idiots And I almost charge my Self with Folly for taking pains to clear this Since why should the Earl have Scrupled to Take this Oath simply and have thought it necessary to adject that He Took it only in so far as it was Consistent with it Self and the Protestant Religion If he had not thought it Inconsistent and either he must say he thought it Consistent or not If he thought it Consistent why did he not Take it simply and if he thought it not Consistent then he owns that He thought the Parliament made an Oath which was Inconsistent with it Self and the Protestant Religion And this was to Inflame the People who are so reasonably jealous of any thing that is Inconsistent with the Protestant Religion Beside that it is a great Reflection upon their Prudence and Conduct And so every Expression in this Paper do's clear up one another and do's clear unanswerably to all the World that this Paper is a Defaming of the Parliament and a depraving of its Laws and a moving of the People to a Dislike of it Which are the Words of the above cited Statute And what can be a greater Depraving of a Law then to make it pravam legem a pernicious Law And what can be more pernicious then that Law which is Inconsistent with the Protestant Religion and which Tyes men to Swear things which are Contradictory and having affirmed all this upon Oath and having dispersed these his Explications amongst the People he did thereby shew a firm and passionat Design to make the People believe all these ill things of the Parliament For no man uses to Swear any thing to another without a great Design to have him believe it Nor do's any man disperse Papers amongst the People for the Exoneration of his privat Conscience Nor could he have any Design in that save to Poison them with those Jealousies against the Test to which he himself had shown such an aversion in the whole Tract of the affair I cannot but smyle at Mr. Mists Critical Learning when he contends that the ' Earles Paper does only bear that the Earl did Take the Oath in so far as it was Consistent with it Self and the Protestant Religion But did not adject the Word Only as the Libel does For he who Takes it in so far as it is Consistent does Take it only in so far And certainly the Author must confess that either he Designed to Take it further then it was Consistent with the Protestant Religion or as far only as it was Consistent with the Protestant Religion there being no midst betwixt these two and so our Critick may choose any of the two he pleases The third Cryme is Treason which is Inferred from these Words I do declare I mean not to bâ—â—d up my self in my station and in a lawful way to wish and endeavour any alteration I think to the advantage of Church and State Noâ— Repugnant to the Proestant Religion and my 〈…〉 this I understand as a part of my Oath Which Treason may be founded upon many Reasons yet to convince any Reader in a plain familiar and unanswerable way I lay down for a Position which I hope no man will deny that all Nations have made it Treason for any privat man to assume or reserve to himself the power of Reforming Church and State For that is the highest Point of Government Which how soon any privat man arrogats to himself he becomes presently Governour of that Kingdom and Superiour both in Church and State therein And therefore by the 1 Act 2 Sess Par 1 Ch. 2 and 1 Act 2 Par Ch 2 The power of Reforming is declared His Majesties sole Prerogative and all the Civilians agree with us in this Inter caeteras sollicitudines verba sunt Theodosi Valentiniani in Novel de Iudaeis sam haer pag quas amor publicus pervigili cogitatione nobis indixit praecipuam Majestatis curam esse perspicimus veram religionis indaginem Cujus si cultum tenere potuerimus iter prosperitatis humanis aperiemos inceptis vid. Ziegler de jur Majest cap 13 num 1 Arnis de jur Majest cap 6 num 15 And which is most reasonable for whoever pretends to have power of Reforming must be greater then he who is Reformed And we have found by woful Experience that such as have endeavoured to Reform have withdrawn themselves from the subjection of the Supream Power under which they liv'd And except they resolve to force the Supream Power as to this Point there is no necessity of reserving a Power to themselves From all which I form this Argument First It is Treason to any man to reserve to himself the power of Reforming Church or State that being the Priviledge and Prerogative of the Prince both by the Common Law and the above-cited Statute But so it is the Earl does reserve to himself in this Explication a power of Reforming And therefore he commits Treason The first Proposition is founded upon the Nature of the Monarchy and the Reasons and Citations above-mentioned The second Proposition is likewise very clear because he who reserves to himself a Power to make any alteration reserves a Power to make all Alterations in Church and State And consequently reserves a Power to Reform in Matters of the greatest Importance For in all Languages Any comprehends All. As for Instance Does not he who sayes he 'l do any thing for the King say as much as if he said I will do all things for him Or does not he who confesses he believes any thing that is in the Scripture Imply that he believes all things that are in the Scripture And consequently that Proposition of the Earls viz. I întend not to bind up my self from endeavouring any alteration I think to the Advantage of Church and State Resolves in and is equivalent to this Proposition I intend not to bind my self up from making all alterations that I shall think to the advantage of Church or State And if that be not Treason nothing can be Treason The second Argument is That all Lawyers are
clear that it is Treason to attempt against the Security of the Government l 2. ff ad l. Iul. Majest But so it is that he who reserves to himself a Power to Reform attempts against the Security of the State Which is clear by all the Civilians Amongst whom I shall only cite Arniseus ad securitatem Majestatis Reipublicae quietem nihil excogitari potest efficacius quam si summa religionis inspectio Majestati reservetur My third Argument in Fortification of the Statutes formerly insisted on at the Debate And for farther clearing the extent of that Alleadgance that is required by the common Law is founded upon Act 2. Ses. 2. Par. 1. Ch. 1. The very words whereof are Therefore the Kings Majesty and Estates of Parliament Declare that these Positions That it is lawful to Subjects upon pretence of Reformation or other pretence whatsoever to enter into Leagues or Covenants or to take up Arms against the King or that it is lawful to Subjects pretending his Majesties Authority to take up Arms against his Person or these Commissiona'ed by him Or to suspend him from the Exercise of His Royal Government Or to put limitations on their due Obedience and Alleadgance are Rebellions and Treasonable In which Words it is observable that it is not the doing of these Deeds but the very asserting of these Positions that it is Treason 2ly That no pretence or caution adjected to these Positions can defend them from being Treasonable 3ly That the Parliament thought it not sufficient to acquiesce in the special Enumeration But so Jealous were they of such Tricks that they subjoyn this general Clause That it shall be Treason to put Limitations on their due obedience and alleadgance From which Words I infer most clearly that for a Subject to declare he is not Tyed up To wish or endeavour any alteration is Treason whatever pretence it be done upon For any alteration comprehends all alterations and what man of common Sense or Ingenuity can deny but this is a putting Limitations upon his Obedience and Alleadgance which is here declared Treason For what is a greater Limitation than to reserve to himself to be Judge how far he is Tyed And what Expression or Limitation can be Treason by this general Clause if this be not Or of what use can this general Clause be if it secure not against such Limitations as this Nor do I think this Limitation wherein the Earl still reserves to himself to be Judge a greater Security to the King or Kingdom than if a man should tell me that he would lock my Money in a secure place but would keep the Key of it himself In which case I am sure he and not I were Master of that ney 2ly It being then Treason for any man to reserve to himself the Power of making such alterations as he shall think for the advantage of Church and State viz. not repugnant to my Loyalty and the Protestant Religion The adjecting these Cautions cannot hinder this Paper to be Criminal else 1. The Covenant had not been Criminal for the very Words of this Caution are in Covenant The very Words of the Covenant being Art 1. That we shall endeavour in our several Places and Callings the Preservation of the reformed Religion And Art 3. We shall with the same sincerity reality and constancy endeavour to preserve and Defend the Kings Majesties Person and Authority In the Preservation and Defense of the true Protestant Rèligion That the world may bear witnesse with our Consciences of our Loyalty and that we have no Thoughts nor Intentions to diminish His Majesties just Power or greatness Here are the very same Expressions accompanied with many moe in favours of the King 2ly That cannot be a sufficient Caution against Treason which never hindred any man to commit Treason but so it is that notwithstanding of these Words all the Covenanters own'd that they might lawfully rise in Arms hold Parliaments impose Taxes and Oaths enter into Leagues with forraign Princes Hang and Head for Serving the King c. Ergo These Words are not a sufficient Caution when subjoyn'd as a Caution to the power of Reforming Which is uncontraverted Treason in its self And did the great Protestations of Loyalty annexed to the Lord Balmerino's Petition defend it from being condemn'd 3ly Do we not see dayly that these who Rebelled in anno 1666 and 1679 did openly own That they lov'd the King as well as their Accusers did But when he was in opposition to Religion it was lawful to rise in Arms against Him So litle Security has the King in flowrishing Professions when the Prosessors are to be Judges 4ly The adjecting of this Protestation is called by Lawyers protestatio contraria facto Which kind of Protestation all Lawyers under Heaven reject as inconsistent with the thing to which they are adjected And thus the League of France was Treason though they did assert under the deepest Protestations the sincerest Loyalty 5ly By the foresaid 4. Act Par. 1. Ch. 2d All Glosses put upon the Laws of this Nation in the late Rebellious Parliaments to the prejudice of their Alleadgance are declared to be false and disloyal and contrary to the true and genuine meaning of these Acts. And particularly that Gloss or Explanation that what they did was for the Preservation of Religion Which is the very Explanation put by the Earl upon this Oath And from which it clearly follows by a demonstrative consequence that Explanations and Glosses put upon Oaths and Acts of Parliament contrary to the meaning of the Acts themselves are not to be respected And being in Law holden and repute as unlawful they are so far from defending the Contraveeners that they are themselves lookt upon as new Crymes From all which it clearly follows that the Earl having reserved to himself in this Explanation a power to endeavour what he should think to the advantage of Church and State He did thereby commit Treason and that this Treason is not taken off by the Cautions adjected viz. The not Repugnancy to the Protestant Religion and his own Loyalty Whereas it is pretended First That Treason requires a special Law from which it ought to be inferred I deny this Position for our Lybels are oftimes found Relevant on the common Law and the Laws and Customs of Nations and the nature of the Monarchy There was Treason before there was Law for how soon Kings were Elected it was Treason to rise in Arms against them or to Murder or Betray them and many of our Laws being but lately made declare oft times what has been Treason not for necessity but for the better Information of the Leidges And though we have Laws declaring it Treason to seek Benefices at Rome yet we have none declaring it Treason to assume the Title or Power of the King in general that being inherent in the nature of the Monarchy it self Treason is the Fense of the Government as Murder is of
privat mens Lives and to rise in Arms was Treason before the Statute King Ia. 1. Nor have we yet any clear Statute against Murder and if special Statutes were requisit in every case of Treason the greatest Treason should often escape unpunished For Law thought it unnecessary to provide against these and every age produces new kinds of Treasonable Extravagancies and Traitors would easily elude and cheat the express Words of a Statue if that were all that were necessary But who can deny that the Justices condemned a man justly for Treason for saying when he was askt if the King was a Tyrant let his Coronation Oath and his Actions and particularly his usurping over the Church of Christ be compared and that will be soon known And yet here was no explicite assertion but yet what all men easily understood and which reproacht and mis-represented the King as much as any open Expression and there was no Statute condemning that Expression expresly nor can there be a Law for every Expression But yet the Earls Treason is founded upon the express Statute abovementioned And whereas it is pretended 2ly That the Earl might have as a Privy Counsellor propos'd any thing to the King and so a Reservation was necessar upon that account To this it may be easily answered that no Oath does hinder a man from doing what is Lawful and so there needed be no Reservation nor Exception upon that or the like Consideration For an Exception must be of some thing that could oppose the Rule But so it is the Oath which is the Rule in that Case did not exclude any lawful Endeavours at the desire or command of the Prince and so there needed no Exception as to these But the former argument still Recurs viz. He that will not bind himself up as to any thing reserves a power as to all things or at least it must be Interpret of unlawful things For lawful things need no exception And if this were sufficient then the Parliament did unjustly in declaring that it is Treason to put limitations on our alleadgance and that notwithstanding of any pretence whatsoever Nor could any man commit Treason if that were allowed for he himself would be still Judge And whereas it is pretended 3ly That he disclaims the Covenant and rising in Arms expresly in this Oath and so he could not reserve any thing as to these It is answered that this were undenyable if he took the Oath simply but having taken the Oath only In so far as it is consistent with it Self and the Protestant Religion This Oath does not tye him if he think the Protestant Religion shall require rising in Arms. And having taken the Covenant if he still thinks the Covenant binds him he renunces it not by his Oath For this Oath tyes him only as far as he can that is to say as far as he is free and no man is free who thinks himself bound And taking it only as far as it is consistent with it self God only and the Earl knows how far that is for he has not told us how far it is consistent with it self and very probably such as have taken the Covenant think not that Oath consistent with the Protestant Religion in so far as it binds us not to take up Arms if the Protestant Religion be in danger and the Antitesters Papers Printed by Mr. Mist tell us plainly that it is not consistent with it self in so far as we swear to own the Successor though differing in Religion from us And yet we swear to the preservation of the Laws of which the Coronation Oath is one But whatever might have been said in defense of such Limitations before we saw what dreadful effects they had produced both in the last age and this And that Parliaments had so severely condemned them as Treason It is the duty of Judges to be severe to such as use them and they have only themselves to blame who split on a Rock when they see a Beacon set up to them And it is much safer for the Common-wealth that such Papers be punished then that it should be in danger by such Reservations as leave every man Judge how far he is oblieged to Obey And as there is great danger to the State on the one hand if it passe unpunished So there is none on the other seing men may be secure in abstaining from such Expressions and Papers And there was never any so unnecessary as this was And might not Strangers and our own Posterity think all the miseries that should fall on us by Rebellions and Civil Wars very just punishments of our senselesse Security if after we had not only seen but felt the mischief of such Glosses We stood still unconcernedly as men seing their own House set on fire by the same hands which had help't to burn it formerly If any by Ignorance or Error stumble into a Legal tho undesign'd Crime The Law allows not Judges by an insolent pity to justifie the Guilt but suffers the King by a Judicious Clemency to mitigat or remit the Punishment In which the Subjects under Monarchy are much happier than these of a Common-wealth where in many cases the Law must be cruel or Judges must be Arbitrary This is that sure City of Refuge into which no man who flees perisheth And if the Earl of Argile had come in Will during the Debate as use is I am sure he had been Securer there than by his Defenses But why should I admire that this Author and those of his Principles do not see that this Paper is Treason Since I dare say they will not acknowledge that it is Treason to oppose the Succession and to say that it can be altered by a Parliament and yet our Parliament unanimously thought that to be Treason And in the last age they thought it not Treason but duty to rise in Arms against the King and to Call Parliaments without him Though all the World abhorr'd us for it So that the fault is not in our Parliaments and Judges but in the depraved Sense and debauched Intellectuals of such as have by a long Custom of hating Authority bred in themselves also a hatred of every Person and thing that can maintain it Since then GOD Almighty amongst the other Miracles which he has wrought for his Darling as well as Representative CHARLES THE MERCIFUL begins to open the Eyes of the Blind and to make some who were Crooked Walk Straight Let us who Serve this gracious Monarch Reason whilst His Enemies Rail and be Just whilst they are Extravagant but withal let us be asham'd that they dare do more for Humour and Errors than we for Duty and Law and we may expect amongst other Rewards which the Rabble has not to bestow that we will get also that Applause which is alwise the Slave of Victory and which of late seem'd to Fan them so pleasantly meerly because they were like to prevail And for which too many of late sacrific'd their Honour and Loyalty VVithout remembring that tho just Applause is an Elogie VVritten by the Hand of Vertue and a Monument Built of solid Merit Yet that Applause which is unjust is only a sweet Poyson a plausible Cheat and the Dream of one who is Drunk FINIS
down the Earls Explanation which runs thus I have considered the Test and am very desirous to give Obedience as far as I can I am confident the Parliament never intended to Impose contradictory Oaths and therefore I think no body can Explain it but for himself and Reconcile it as it is Genuine and agrees in his own Sense I take it as far as it is Consistent with it Self and the Protestant Religion And I do Declare I mean not to bind up my self in my Station and in a lawful way to wish and endeavour any Alteration I think to the advantage of Church and State Not Repugnant to the Protestant Religion and my Loyalty and this I understand as a part of my Oath The first Cryme Charged upon the Earl from this Paper is that albeit by the 107. Act of Parliament 7. I. 1. It be Statute that no man Interpret the Kings Statutes otherwise then the Statutes bears and to the Intent and Effect they were made for And as the Maker understood and whosoever does the contrary shall be punished at the Kings will Yet the King and Parliament having appointed an Oath to be taken for Securing the Protestant Religion and the Kings Prerogatives And having to evite the old Fanatick Juglings and Evasions of the Covenanters on the one hand and the Equivocations and Mental Reservations of the Papists on the other The Oath does expresly bear these Words And finally I affirm and swear That this my solemn Oath is given in the plain and Genuine Sense and meaning of the words without any Equivocation Mental Reservation or any manner of Evasion whatsoever The said Earl did notwithstanding of that Statute and the foresaid Clause in the Oath it self take the said Oath in such a Sense as did not only Evacuat his own taking of it but did teach others how to swear to it without being thereby obliged and path a Way to Posterity for Evacuating all the Acts that ever can be made for Security of Religion King and Government in so far as he declares that he did take the Oath with these Qualifications only First I will give Obedience as far as I ean 2ly I think no body can Explain it but for himself and reconcile it as it is genuine and agrees in his own Sense 3ly I mean not to bind up my himself in my Station from making any alteration I think to the advantage of Church or State c. Which is not to take it in the Imposers Sense but his own which will the more easily appear from these Reasons First That the Design of all Laws but especially the making of Oaths is that the Subjects should be bound thereby according to the Sense of the Legislator Which is very clear from the express words of the former Statute and by the Reason whereon it is founded which is that the Legislator may be sure of Obedience and may know what to expect from those who are to obey And who have taken the Oaths prescrib'd And in which Divines agree with Lawyers for they tell us that verba ju ramenti intelliguntur secundum mentem intentionem ejus cul sic juramentum Sande pag 173. But this sense in which the Earl takes the Oath does Evacuat all the designs of the Oath For first Whereas the Oath design'd that this Act of Parliament should be simply obey'd as a sure Foundation for the Security of Church and State the Earl promises only to obey it as far as he can without telling in what he will obey 2ly Whereas the Oath is to be taken in the plain genuine Sense of the Words the Earl declares that no body can Explain it but for himself And reconcile it as it is genuine and as it agrees in his own Sense Which implys that it had no plain genuine Sense in which it could have been taken 3ly Whereas the Parliament design'd it as a Security for the Protestant Religion he declares he takes it only in as far as it is consistent with the Protestant Religion Which implys that in some things it is not consistent with the Protestant Religion 4ly It cannot be pretended that the Parliament design'd to make an Act that had contradictions in it and yet the Earl says he takes the Oath in so far as it is consistent with it self which imports necessarly that in some things it is not consistent with it self 5ly The design of this Oath was to preclude all the Takers from reserving a Liberty to rise in Arms upon any pretext whatsoever but by this Explication the Earl reserves to himself a power to make any alterations that he shall think for the advantage of Church and State By all which I conclude that the Earl has interpret this Oath otherwise than it bears and to the Intent and Effect it was made for And otherwise than the Maker understood And therefore this Explication does clearly fall under the foresaid Satute 2ly If this were allowable no Member of Parliament needs hereafter propose any doubts in Parliament but let the Parliament make what Oath they please the Taker vvill Reform and alter it as he pleases When he takes the Oath And I desire to knovv from any man of Sense if the Earl would have obtained from the Parliament at the passing of it that every man should have been allowed to take it as far as it was consistent with it self and the Protestant Religion Or if they would have suffered the other Qualifications in that Paper to have been adjected as a part of the Act. Which does demonstrat that he did not only not take it in the Legislators Sense as the former Statute Commands But that he did not at all take the Oath that they made but made a new Oath of his own 3ly If a man should oblige himself simply upon Oath to make me a Right to such Lands could this Sense be consistent with it 〈◊〉 make it as far as I can Or would the making such a Right with that quality satisfie the Obligation Or could he who receives the Obligation be sure of a good Right if the Person Obliged were bound to no further than he could perform 4ly All Oaths must be so taken as that the Taker may be pursued for Perjury but so it is that when it is not known what the Taker is ty'd to it cannot be known wherein he has fail'd And consequently in how far he is Perjur'd 5ly I would willingly know if the Covenanters would have allow'd any to have taken the Covenant with a Qualification that he should observe it as far as it was consistent with his Loyalty And do not generally the greatest Enemies to the Kings Supremacy declare that they are content to take the said Oath in as far as it is consistent with the Word of God and the Protestant Religion 6ly If this were allow'd every man should take the Oath in a particular Sense and upon his own Terms nay and upon contrary Terms according to mens contrary Interests
So that it would not be the Parliaments Test but every mans own Test. And there should be as many different Oaths as there are different Takers 7ly Former Statutes having discharged the Leidges to Convocat or Assemble or to enter into Bonds and Leagues without the Kings consent the Covenanters did protest that their taking the Covenant was not against these Acts because these Acts could not be mean'd against any Leagues or Meetings holden for Preservation of the King Religion and Laws And yet the 4 Act Par 1 Ch 2 does positively declare that all such Glosses are false and disloyal and contrair to the true and genuine meaning of these Acts. And therefore this Glosse must be so too because this Glosse is the very same both in Words and Design with those Glosses But though this Poynt be very clear and undenyable Yet Mr. Mist for so I must call the Author for distinctions sake makes those three answers First That if the Authority which is to administer the Oath do's accept the Takers Sense the Taker is only bound in the Sense he gives and no other But so it is the Council accepted his Sense And if they had refused the Earl had not taken the Oath nor had his refusal been a Cryme To which it is replyed That first If it be a Cryme to Interpret the Kings Laws otherwise than they bear and to the Effect for which they were design'd Then certainly it may be debated with very good Reason that though the Council had conniv'd at the Earls misinterpreting the Law neither their negligence nor their mistake could have prejudg'd the King nor have been in place of a Remission For though the Council be a more eminent Judicature than others yet they cannot pardon Crymes when committed And consequently their allowance cannot make that to be no Crime which is a Cryme And we have a particular Statute in Scotland That the negligence of the Kings Officers shall not prejudge Him Nor is that Statute so Reasonable in any Case as in this For since this and all other Oaths are oft times administred by very ignorant Persons we should have them a thousand times cheated and impos'd upon by the adjecting of such Qualifications as these if the adjecting of such Qualifications as these were not punishable Because he who did Administrat the Oath did once allow them And I put the Case that if a man who had many Friends in Council should have given in an Explication that was uncontravertedly Treasonable by saying that he was content to take the Oath but that he design'd not by it to preclude himself from rysing in Arms when he thought fit for the Defense of the Protestant Religion Would it have been a sufficient Defense that the Council did not challenge it in the mean time And therefore it this was a Cryme in it self the Councils allowing the Explication did not at all in strict Law take off the Cryme But the Judges resolv'd to do him all possible favour were more merciful then to straiten the Earl upon this Point For if the Earl had given in an Explication to the Council and told that he subjected that Paper to their Consideration and that he would take the Oath upon these Termes and no otherwise the Judges would have Interpos'd for the Kings Favour if he had been so ensnared by the Councils connivance or mistake Nor would the King have pursued it But the true matter of Fact is that the said Paper was not given in till the next day after the Earl had sworn the Test. And though the Judges allowed him to prove that he had adjected these Words at his first Swearing of the said Test and that they were allow'd yet he fail'd in the Probation and so the Judicature is no way to be blam'd The second Defense is that all that can be inferr'd from the above-cited Law is that no man should put a Sense upon any Law that should bind another or be the publick Sense of that Law to all the Subjects which is most false for the Words of the Law are general That no man shall Interpret the Kings Laws but to the Intent and Effect for which they were made And consequently this must be Extended to all Cases where the Law is abus'd and the Legislator disappointed by a misinterpretation Et ubi lex non distinguit nec nos And there is as great Reason to Punish such as take Oaths under such wrested Senses contrair to the Design of the Legislator as there is for punishing any Cryme And much more then for punishing such as misinterpret the Law to others in other Cases Since if this be allow'd every man may by misinterpreting the Oath as to himself evacuat all Oaths and make them ridiculous And so not only enjoy Employments contrair to the Legislators Design But likewise cut down the greatest Fence of Government such as Oaths are now esteemed to be by all Christians The third answer made to this Point is that the Legislator is surest of those who give Explications of their Oaths for they deal honestly And it is impossible that any man can take an Oath but he must take it in his own Sense But neither is this of any moment for if this Answer prove any thing it will prove that no man can be challenged for adjecting any Quality And consequently the Act of Parliament could take effect in no case And so not only were this Act useless but we would want an excellent Remedy for curbing such as resolve to abuse the Government in rendring all Oaths that are invented for its Security altogether ineffectual And it is strange to see what absurd things men will run to when they are put to Defend an Absurdity And though every man must have a Sense when he takes an Oath it does not therefore at all follow that men must be allowed to adject Senses that are inconsistent with the Oath or render the Oath useless And since this is not an Oath that all the Subjects must take it having no other Penalty adjected to the not taking but the loss of the Employment they possess by the Kings meer Favour Every good Christian ought either to be satisfied of the design of the Legislator in the Oath or else to abstain from it And though the Mind of the Legislator might secure the Taker yet that can only be when the Sense is previously offered to and accepted by him which cannot at all be said in this Case And whatever favour may be pretended where the Taker of the Oath condescends upon what he will oblige himself to yet that cannot be pretended in this Case where the Earl does not condescend how far he can obey And does not specifie how far he thinks it consistent with the Protestant Religion or with it Self But only that he will obey it as far as he can and as far as it is consistent with it self and the Protestant Religion So that the Legislator is still unsecure