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
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
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
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
we do not evacuate our natural liberty whereby we are in freedom innocently without reflection upon or derogation to Authority or persons intrusted with it to discourse in any occasional meeting of these things so we exclude not those other meetings which are necessary for the well-being and Discipline of the Church IV. By our swearing it unlawful to endeavour any change or alteration in the Government either of Church or State we mean that it is unlawfal for us to endeavour the alteration of the specifick Government of Monarchy in the true and lineal Descent and Episcopacy V. When we swear in the genuine and literal sense c. we understand it so far as it is not opposite or contradictory to the foresaid exceptions They were allowed to insert after the Oath before their Subscriptions these words or to this purpose We Under-written do take this Oath according to the Explanation made by the Council approved by His Majesties Letter and we declare we are no further bound by this Oath A Paraphrase on the Test emitted by one of the conformed Clergy I A. B. solemnly swear in presence of the Eternal God whom I invocate as judge and witness of my sincere intention of this my Oath That I A. B. being fully assured without the least doubt or hesitation of the truth of all that I am now to assert and of the lawfulness of all that I am now to promise Do in the most solemn manner swear in the sight and presence of the Eternal God whom I here call upon to witness against me in the Great Day and to pass Sentence of Condemnation upon me if I affirm any thing by this my Oath of the certainty whereof I am not fully assured or promise any thing of the lawfulness whereof I have any scruples and which I am not sincerely resolved to perform viz. That I own and sincerely profess the true Protestant Religion contained in the Confession of Faith recorded in the first Parliament of James the VI c. That I cordially own without any dissimulation profess the true Protestant Religion And because there are many doctrines and opinions that pass under that name that it may be known what I do mean by the true Protestant Religion I declare That I own that Confession of Faith which is recorded in the first Parliament of King James the VI. as the true test and standard thereof And that I believe the same to be founded on and agreeable to the written Word of God And because it would not be a just standard if some part of it were taken and others left unless these parts that are to be sworn to were expresly condescended on by the same Authority whereby it is imposed For if it were left arbitrary for every one to pitch on these parts of it he pleases as the measure of his Faith it would be useless for the end for which it is adduced Therefore I embrace the whole Confession and do swear by the same solemn Oath That I believe every Article and every Proposition therein to be true as being evidently founded on and agreeable to the Word of God As for instance Art 3. I swear by this my solemn Oath That Adam's Transgression is commonly called Original Sin And Art 12. That men have as little hand in their Regeneration and Sanctification as they have in their Creation and Redemption And Art 14. That to suppress Tyranny is one of the good works of the Second Table most pleasing and acceptable to God and commanded by himself the contrary whereof is 〈◊〉 sin most odious which always displeaseth and provokes him to anger that is When the Civil Mastrate comes to act arbitrarily and against Law when he invades the established Religion the Priviledges of Parliament or the Liberties and Properties of Subjects he is to be opposed and resisted Or when our Ecclesiastical Superiors usurp a Dominion over the Inferior Clergy or behave themselves as Lords over Gods Heritage or require absolute obedience to their Dictates and Determinations they are to be withstood and born down And as it is in the same Article I swear That I believe our resistance of these whom God hath placed in Authority over us is a sin when they do not pass over the bounds of their Office but if they pass over these bounds it is a duty to resist them which is evident being compared with the former Proposition and the practices of them who composed the Confession And in the same Article I swear and believe all these to be evil works in matters of Religion and the worship of God which have no other assurance but the invention and opinion of men So that whatsoever our Superiors determine in this matter tho only for Decency if they cannot shew it to be clearly founded on the Word of God it is to be looked on as an evil work And I swear I shall so reckon it Art 16. I swear That I think it blasphemy to affirm that men who live acording to natural light and moral equity shall be saved unless they profess the Christian Religion And that out of the true Church there is neither life nor eternal felicity So that I not only condemn all Pagans and Papists to Hell fire but I declare upon Oath That I think it Blasphemy to affirm the contrary And Art 18. I believe That Ecclesiastical Discipline rightly administred as Gods Word prescribeth is as essential a note of the true Church as the right administration of the Word and Sacraments So that the Church of England or any other Church that has not Discipline rightly administred tho they have the Word and Sacraments pure and uncorrupted wants an essential Note of a true a Church And Art 21. I declare That I perfectly understand this Proposition and do solemnly swear that it 's true that the faithful in the right use of the Lords Table are so made flesh of his flesh and bone of his bone that as the eternal Godhead has given to the flesh of Iesus Christ which of its own condition and nature was mortal and corruptible Life and Immortality so does Christ Iesus his flesh and blood eaten and drunken by us give unto us the same Prerogatives And Art 22. I declare and swear by this my solemn Oath That the Ministers of the Church of Rome are not Ministers of Iesus Christ and that they have no true Sacraments So that our first Reformers having both their Baptism and Ordination from them we have neither among us truly baptized persons nor rightly ordained Ministers And Art 24 I believe That the resisting the Supreme Power doing that which appertains to his charge is to resist the Ordinance of God So that to resist when he goes beyond his charge is not to resist the Ordinance of God but to repress Tyranny according to Art 14 And I promise and swear That I shall adhere thereto during all the days of my life shall endeavour to educate my
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
us were judged by all both in Articles and Parliament and that after long and strenuous application and endeavour in contriving ane new Act for these ends not only sufficient but the best security for our Religion against all hazards and contingencies in which the best and wisest part of the Parliament acquiesced till the importunity and repeated clamours of some who needs would appear more warmly concerned in this mater than others they offering new overtures to the Articles for the securing of the Protestant Religion of which they often received an account in open Parliament did awaken a more narrow inspection into this more concerning Affair And therefore for the farther security of Religion from the danger of Popery on the one hand and of Principles and Practices of Rebellion and fanatical Schism on the other did judg it necessary that ane Act should be past disabling Papists and Fanaticks from any power or capacity to subvert or overthrow it which in their deep wisdom they found could never be so effectually done as by keeping all such out of places of publik Trust and Employment Civil Ecclesiastik or Military And in regard that the good and wholesom Laws and the steady and vigorus execution thereof are the best and most firm human security of Religion Therefore such wise provisions were piously made by that Act as might bar all disaffected to the Protestant Religion from electing or being elected Members of Parliament wherein the Law making power is lodged or from creeping into any Office or Trust whereby the execution of the Law is managed So that our established Religion might never be endangered or subverted by evil or corrupt Laws or by the remiss and negligent execution of good ones Notwithstanding such is the fate of the best of human Constitutions that nothing can be so piously intended or prudently contrived but either through ignorance or malice misprision or mistake it may be misrepresented misconstrued and many groundless and unaccountable jealousies by scruples and prejudices entertained against it as is but too clearly instanced in the matter of the present Oath and Test which the wisdom of our Governours hath enacted and appointed to be taken by all persons employed in Offices of publik Trust as the best fence of the Church and security of the Protestant Religion against the invasion and encroachments they stand in danger of from the restless adversaries Some of the Regular and Orthodox Clergy and other well-meaning Subjects having entertained some jealousies which far exceed their causes and vented some scruples and objections against it which are most part founded on mistakes and unnecessary not to say uncharitable stretching and extending the meaning thereof far beyond either the genuine sense of the words or design and intention of the Parliament in framing and enjoyning that Test tenderness and compassion towards these conform and loyal persons who may either be imposed upon by the malice and craft of the Church's Adversaries to stumble at or by their own fears and misapprehensions may be led into mistakes of the meaning and design of this excellent mean for securing our Church and Religion hath prevailed with us to endeavour a short Essay for vindicating this Oath and Test from all mistakes and scruples by answering and satisfying the Objections which are commonly moved against it and that thereby the plain and genuine sense in which this Oath is required by Authority to be taken by all persons in Trust may be clear and apparent Pursuant to this it will be fit to read and consider the Oath or Test it self as it is contained in the sixth Act of the last Session of this Currant Parliament In the next place it will not be amiss to rank up the doubts and objections moved against it in their several Heads and Classes and to resolve and answer them accordingly in their respective place and order Of these Scruples and Objections some are founded upon the Consession of Faith contained in the foresaid Oath others arise from the Oath of Allegiance and Supremacy and the asserting therein of the Kings Prerogative some are taken from that part of the Test wherein the unlawfulness of assembling in any Councils or Conventions to treat consult or determine in any mater of State Civil or Ecclesiastik without the Kings special command and license had thereto is asserted and sworn and finally others arise from the Clause asserting that no obligation lyes from the late Covenants or any other manner of way whatsoever to endeavour any change or alteration in the Government either in Church or State as the same is now established by the Laws of this Kingdom It is beyond all peradventure that as Conscience is the most tender thing in the Soul of man so Oaths are of the strictest force and obligation and are to be taken in Truth Righteousness and Iudgment which is the Doctrine of all sound Casuists Juramenti obligatio est stricti juris yet this strictum jus is not so to be understood as if it did exclude all sensing and interpreting of it the interpretation thereof amounting to no more than meerly to make clear and plain any word or sentence therein which may seem to be dark doubtful and ambiguous It is excellently said by that judicious Casuist Doctor Sandersone Prel 2. De juramenti obligatione p. 8. De lege Charitatis aliena dicta facta praesertim Principum Parentum aliorumque Rectorum sunt benignae interpretationis Juxta id quod dici solet dubia esse interpretanda in meliorem partem That is by the Law of Charity the words and deeds of others especially of our Princes Parents and other Governours are to be moderated by a favourable interpretation according to the usual maxim That things doubtful are to be interpreted to the best sense This being premised the Objections of the first Classis arising upon the Confession of Faith are to be first considered and in order to this it must be remembered that this Confession is not to be lookt upon as fully comprehensive of all the Protestant Doctrine in opposition to all the Errors and Superstition of the Romish Church and other Heresies nor is there any one amongst the Harmony of the Confessions of the Reformed Churches which can challenge this perfection to it self nor is it to be thought strange that in many things it should be defective if we consider that it was hastily compiled in the short space of four days by a select number of Barons and Ministers in the very Infancy of our Reformation as the History of the Reformation of the Church of Scotland commonly ascribed to John Knox Printed at London in the Year 1644 in Fol. p. 252. doth inform Nor are the Authors of the foresaid Confession so prositive as to look upon all therein contained as infallible or to be received as Articles of Faith as appears from the Preface prefixed thereto as it is set down in the History of the Reformation
foresaid p. 253. wherein they promise upon their Honours and Fidelity Reformation of any Article or Sentence therein which shall be proved to be amisle or Erroneous so that it is not to be considered as the compleat Standard of the Protestant Faith and Doctrine in which nothing is wanting but is inserted in the body of this Oath as being the only Protestant Confession in this Church which is stamped with the impress of Lawful Authority it being ratified by the first Parliament James the VI Anno 1567. and is the most Ancient being received for six score years without any contradiction in this Kingdom and is only used in this Oath designotive to express that as a particular systeme wherein the main Substantials of the Protestant Religion sworn unto are contained If it be asked What or where is the Protestant Religion The answer is plain that it is the true Christian Religion as it is reformed from the Errors and Superstitions of the Popish Church and is contained in the harmony of the Protestant Church's Confessions which agree in the chief and principal Substantials tho they may differ in lesser maters and opinions disputable among which this our Confession is recorded But tho we are under no obligation to justifie every Sentence or Article thereof yet it deserves so much reverence from us as to justifie it so far as we may from any charge of Error or Heterodoxy and the rather that upon due tryal and examination there seemeth nothing to be contained in it which is not agreeable to the charitable Analogy of Faith and may not admit of a very fair true and orthodox sense and interpretation as the following Answers to the Scruples and Objections arising upon it will sufficiently evince It is objected by some then 1. That in the third Arâ— of Original Sin it is said That by it the Image of God was utterly defaced in man which seems to run cross to the stream of the Protestant Doctrine which aslerts That the Remains of the Divine Image still abide in the Soul notwithstanding of mans fall The answer is easie if we shall carefully distinguish betwixt defacing of the Image of God which imports no more than a darkning or maiming thereof and utter destroying of that Image which implies the total subversion or abolition of it and that the former is allowed by all sound Protestants It is objected 2. That Art 17. it is said That it is blasphemy to affirm that men who live according to equity and justice shall be saved whatsoever Religion they professe since without Christ Jesus there is neither life nor salvation which some think a very uncharitable doctrine barring all the Ancient Philosophers and Moralists such as Plato Seneca Socrates Plutarch c. from eternal life and salvation Answer 1. That Clause is but a consequence drawn from the 16 th Article rather than any essential part of its doctrine as will appear upon the perusal 2. It is most infallibly true that there is no Name under Heaven by which salvation can be obtained but the Name of Jesus which imports at least a sense of sin and of the necessity of expiating the same and of propitiating God toward the sinner in every one that shall be saved which by some is termed an implicite knowledg of Christ Jesus who alone is the grand Propitiation and such a knowledg as the moral Gentiles and even the Jews had before the Revelation and Exhibition of the Person of the Messiah in the fulness of time and how far an implicite knowledg of Jesus Christ in his Doctrine and Offices before his exhibition in time is necessary to salvation is not of easie determination And therefore 3. This Clause must be supposed to respect the Gospel Oeconomy and Evangelical dispensation and to extend to such as are blessed with the manifestation of the Gospel and clear revelation of Jesus Christ thereby And in this sense it is beyond all doubt that none come to age and the clear exercise of Reason in an ordinary way shall be saved but such only as believe in him own his Doctrine and sincerely obey his holy Precepts It is objected 3. That from the 19 th Article the interpretation of the sacred Scripture appertaineth to the Spirit of God by which the Scripture was dictate and written and noâ— to any person or Church for any Preheminence or Prerogative personal or local which seems to cut off all power of interpreting Scriptures from the Ancient Fathers or General Councils Answ. The harmonious Doctrine of the Protestant Church is That the Spirit of God speaking in the Scriptures is as the best Judg so the only best and infallible Interpreter of Scripture whereby tho the primary and authoritative Interpretation of the Scripture is ascribed to that blessed Spirit yet thereby is not denied to the Fathers and Councils a ministerial and declaratory power in expounding the sacred Word which is of great weight and authority with all Christians who needs must believe these holy persons and Assemblies to be ordinarily assisted by the light and conduct of his holy Spirit who promised to be with his Church to the end of the world It is objected 4. That Article 19. the right administration of the Sacraments is one of the Notes of the true Church of God And Art 23. requires to the right administration of the Sacraments that they be ministred in such Elements and in such sort as God hath appointed whence some would infer That all such Churches as use circumstances in the administration thereof which are not appointed by God as the mixing of Water with Wine in the holy Eucharist or of Oyl with Water in Baptism must be by this Doctrine unchurched Ans. When the 23 d. Article requireth to a true Church that the Sacraments be administred in such sort as God has appointed it mainly relateth to the words of Consecration and to the institution which indeed are essentially requisite to the very being of the Sacraments these being null which are celebrated without them and not according to the institution As for the Elements tho these be necessary at least in ordinary cases yet the mixtures and superadditions to these appointed Elements do not absolutely nullifie tho they do corrupt the Sacraments And that this is the meaning of the 23 d Article appears clear from the words immediately following viz. else we affirm that they cease to be the right Sacraments of Christ Jesus where they are not denied simply to be Sacraments but are charged as Sacraments not rightly and duely administred as these are which are not vitiated and adulterated by superstitious mixtures It is objected 5. from that same Article 23. That to the being of lawful Ministers it is required that they be men lawfully chosen thereto by some Kirk which seems to import the necessity of popular Elections and to cancel the Rights of Patronages and to unminister such as are presented by them Answ. All Ministers presented by Patrons are elected
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
libelled does not at all import all or any of the Crimes contained in the said Libel so by the common Principles of all Law where a person does emit words for the clearing and exoneration of his own Conscience altho there were any ambiguity or unclearness or involvedness in the tenor or import of the expressions or words yet they are ever to be interpreted Interpretatione benigna favorab ili according to the general Principles of Law and Reason And it never was nor can be refused to any person to interpret and put a congruous sense upon his own words especially the Pannel being a person of eminent Quality and who hath given great demonstration and undeniable evidences of his fixt and unalterable Loyalty to His Majesties Interest and Service and at the time of emiting the said Explication was invested and entrusted in publik Capacites And it is a just and rational interpretation and caution which Sanderson that judicious and eminent Casuist gives Praelect 2. That dicta facta principum parentum rectorum are ever to be looked upon as benignae Interpretationis and that Dubia sunt interpretanda in meliorem partem And there is nothing in the Explication libelled which without detortion and violence and in the true sense and design of the Pannel is not capable of this benign Interpretation and construction especially respect being had to the Circumstances wherein it was emitted and given after a great many Objections Scruples and alledged Inconsistencies were owned vented and spread abroad which was a rise to the Earl for using the expressions contained in the pretended Declaration libelled 10. These words whereby it is pretended the Pannel declares he was ready to give obedience as far as he could first do not in the least import That the Parliament had imposed any Oath which was in it self unlawful but only the Pannel's scrupulosity and unclearness in matter of Conscience And it is hoped it cannot be a Crime because all men cannot go the same length And if any such thing were argued it might be argued ten times more strongly from a simple refusing of the Oath as if any thing were enjoyned which were so hard that it is not possible to comply with it And yet such Implications are most irrational and inconsequential and neither in the case of a simple and absolute refusing or the Oath nor in the case of an Explication of the parties sense wherein he is willing to take the Oath is there any impeachment of the Justice and prudence of the Legislator who imposeth this Oath but singly a declaration of the scrupulosity and weakness of the party why he cannot take the Oath in other terms and such Explications have been allowed by the Laws and Customs of all Nations and are advised by all Divines of whatsoever Principles for the solace and security of a Man's Conscience 2. As to that point of the Explication libelled That I am confident the Parliament never intended to impose contradictory Oaths it respects the former answer which considering the plain and down right Objections which were spread abroad and made against the Oath as containing inconsistencies and contradictions was an high Vindication of the Justice and Prudence of the Parliament 3. As to these words And therefore I think no body can explain it but for himself The plain and clear meaning is nothing else but that the Oath being imposed by Act of Parliament it was of no private interpretation And that therefore every man who was to take it behooved to take it in that sense which he apprehended to be the genuine sense of the Parliament And it is impossible without impugning common sense that any man could take it in any other sense it being as impossible to see with another mans eyes as to see with his private Reason And a mans own private sense and apprehension of the genuine sense was the only proper way wherein any man could rationally take the Oath And as to these words That he takes it as far as it is consistent with it self and the Protestant Religion The Pannel neither intended nor exprest more but that he did take it as a true Protestant and he hopes all men have taken it as such And as to that Clause Wherein the Pannel is made to declare That he does not bind up himself in his station in a lawful way to wish and endeavour any alteration he thinks to the advantage of Church or State not repugnant to the Protestant Religion and his Loyalty It is answered There is nothing in this expression that can import the least Crime or give the least umbrage for any Mistake For 1. It is most certain it is impossible to elicite any such thing from the Oath but that it was the intention of the Parliament That persons notwithstanding of the Oath might concur in their stations and in a lawful way in any Law to the advantage of Church and State And no rational man ever did or can take the Oath in other terms that being contrary to his Allegiance and Duty to His Sacred Majesty and Prince 2. There is nothing in the said Expression which does in the least point at any alteration in the Fundamentals of Government either in Church or State but on the contrary by the plain and clear words and meaning rather for its perpetuity stability and security The Expression being cautioned to the utmost scrupulosity as that it was to be done in a lawful manner that it was to be to the advantage of Church or State that it was to be consistent with the Protestant Religion and with his Loyalty which was no other but the duty and Loyalty of all faithful Subjects and which he has signally and eminently expressed upon all occasions So that how such an expression can be drawn to import all or any of the Crimes libelled passeth all Natural Understanding And as to the last words And this I understand as a part of my Oath which is libelled to be a treasonable Invasion and assuming of the Legislative Power It is answered It is most unwarrantable and a Parties declaring the sense and meaning in which he was free to take an Oath does not at all respect or invade the Legislative Power of which the Pannel never entertained a thought but has an absolute abhorrence and detestation of such practices But the plain and clear meaning is That the Sense and Explication was a part of his Oath and not of the Law imposing the Oath these being as distant as the Two Poles and which Sense was taken off the Earl's Hands and he accordingly was allowed to take his Place at the Council-Board and therefore repeats the former general Defences And to convince the Lords of Justitiary that there is nothing in the pretended Explication libelled which can be drawn to import any Crime even of the lowest size and degree and that there is no expression therein contained that can be detorted or wrested to import the same is
more strongly be said against the General 2. The 130. Act. Par. 8. James VI. is expresly founded on because nothing can be a greater diminution of the power of the Parliament than to introduce a way or mean whereby all their Acts and Oaths shall be made insignificant and ineffectual as this Paper does make them for the Reasons represented Nor are any of the Estates of Parliament secure at this rate but that they who reserved a general power to make all alterations may under that General come to alter any of them 3. What can be a greater impugning of the Dignity and Authority of Parliaments than to say That the Parliament has made Acts for the security of the Kingdom which are in themselves ridiculous inconsistent with themselves and the Protestant Religion And as to what is answered against invading the Kings Prerogative and the Legislative Power in Parliaments in adding a part to an Oath or Act is not relevantly inferred since the sense of these words And this I understand as a part of my Oath is not to be understood as if any thing were to be added to the Law but only to the Oath and to be an interpretation of the Oath It is replied That after this no man needs to add a Caution to the Oath in Parliament But when he comes to take the Oath do the Parliament what they please he will add his own part Nor can this part be looked upon as a sense For if this were the sense before this Paper he needed not understand it as a part of it for it wanted not that part And in general as every man may add his own part so the King can be secure of no part But your Lordships of Justitiary are desired to consider how dangerous it would be in this Kingdom and how ill it would sound in any other Kingdom That men should be allowed to reserve to themselves liberty to make any alteration they thought fit in Church or State as to the legality of which they were themselves to be Judges And how far from Degree to Degree this at last may come to absolute Anarchy and how scandalous a thing as well as unsecure this new way may look in an Age wherein we are too much tracing the steps of our rebellious Progenitors in the last whose great detection and error was That they thought themselves and not the King the Authors of Reformation in Church and State And no man ever was barred by that that the way he was upon was not a lawful way For if it be allowed to every man to take his own way every man will think his own way to be the lawful way As to the Perjury it is founded on this first That perjury may be committed not only by breaking an Oath but even in the swearing of it viz. to swear it with such Evasions as make the Oath ineffectual For which Sandersone is cited Pag. 138. Alterum Perjurii genus est novo aliquo excogitato Commento Iuramenti vim declinare aut eludere Iurans tenetur sub poena Perjurii implere Secundum Intentionem deferentus both which are here For the Earl being bound by the very Oath to swear in the genuine meaning without any evasion he has sworn so as he has evaded every word there being not one word to which it can be said particularly he is bound as is said And it is undeniable that he has not sworn in the sense of the makers of the Law but in his own sense which is Perjury as is said And consequentially whatever sense may be allowed in ambiguous Cases yet there can be none where the Paper clearly bears Generals And where he declares That he takes it in his own sense His Majesties Advocate declares he will not burden himself that Copies were disperst tho it is certain since the very Paper it self by the giving in is chargeable with all that is above charged upon it Sir John Dalrymple's Defence and Plea for the Earl of Argyle by way of Reply upon the King's Advocate SIR John Dalrymple replies for the Pannel That since the solid grounds of Law adduced in the Defences have received no particular Answers in relation to the common consent of all Casuists viz. That a party who takes an Oath is bound in Conscience to clear and propose the terms and sense in which he does understand the Oath Nor in relation to the several Grounds adduced concerning the legal and rational Interpretation of dubious Clauses And since these have received no Answers the Grounds are not to be repeated but the Proctors for the Pannel do farther insist on these Defences 1. It is not alledged That any Explanation was given in by the Pannel to any person or any Copy spread before the Pannel did take the Test in Council So that it cannot be pretended That the many Scruples that have been moved concerning the Test did arise from the Pannel's Explication But on the contrary all the Objections that are answered and obviated in the Pannel's Explication were not only privately muttered or were the thoughts of single or illiterate persons but they were the difficulties proposed by Synods and Presbyteries long before the Pannel came from home or was required to take the Test So that the general terms of the Acts of Parliament founded upon in the Libel are not applicable to this Case For as these Laws in relation to Leasing makers are only relative to atrocious wilful Insinuations or misconstructions of His Majesties Person or Government or the open depraving of his Laws so the restrictive Clause whereby sedition or misconstructions may be moved raised or engendered betwixt His Majesty and his Liedges cannot be applied to this Case where all these Apprehensions and Scruples were on foot and agitated long before the Pannel's Explanation As it cannot be pretended That any new dust was raised by the Pannel's Explanation so it is positively offered to be proved That there is not one word contained in this Explanation but that either these individual words or much worse had been publikly proposed and verbatim read in Council without the least discouragement or the least objection made by any Member of the Council And where a Writing ex proposito read in so high a Court was universally agreed upon without the alteration of a Syllable how can it be pretended That any person thereafter using the said in â—ividual terms in any Explanation and far easier terms that they shall incur the high and infamous Crimes libelled And the question is not here Whether the Council was a proper Judicature to have proposed or imposed a sense or allowed any Explanation of the Test to be published but that it is impossible that a sense they allowed or being publikly read beâ—ore them and which the Kings Advocate did not controll that this should import Treason or any Crime And tho the Pannels Advocate will not pursue or follow the Reply that has been made to this point yet
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
use of Times and Places and Companies of another nature on whom their suggestions and insinuations may prevail But it is a violence to the common Reason of mankind to pretend that a person of the Pannel's Quality having the honour to serve His Majesty in most eminent Capacities and devoted to His Majesties Interest and Service beyond the strictest ties of Duty and Allegiance by the transcendent Favours he had received that the Pannel in those Circumstances and in presence of his Royal Highness and Lords of Privy-Council should design to declame and de facto declame against and defame His Majesties Government To suppose this is absolutely contradictory to the common Principles and Practices of Law and common Topiks of Reason And as to Balmerino's Case it is answered That the Lords of Justitiary are humbly desired to call for and peruse the said Petition and Books of Adjournal which was certainly a defamatory Libel of His Majesties Father of blessed Memory and of the States of Parliament in the highest degree bearing expresly that there was nothing designed but an innovation of the Protestant Religion and the subversion and over-turning the Liberties and Priviledges of the Parliament and the Constitutions of the Articles and other things of that kind which made certainly of it self a most villanous and execrable Libel containing the highest Crimes of Treason and Perduellion and was not capable of any good sense or interpretation but was absolutely pernicious and destructive So that it is in vain to pretend that the said Libel did contain Prefaces and Protestations of Loyalty which no Law regards even in simplici injuria maledicto tho committed by a private person cum praefatione salvo honore or the like and which were certainly ridiculous to sustain in a Libel concerning Crimes of Treason And whereas it is pretended That tho others were guilty of these Crimes it does not excuse the Earl and that the Lords of Privy-Council cannot remit Crimes and the negligence of the Kings Officers cannot prejudg his Interest It is answered The Pannel is very confident that neither the Lords of His Majesties Privy-Council consisting of persons of eminent Loyalty and Judgment nor His Majesties Officers were capable of any such escape as is pretended and if the tenor of the Pannels Explication did in the least import the high and infamous Crimes libelled as beyond all peradventure it does not it were strange how the same being contained in the foresaid vindication and the whole Clauses thereof justified that this should have been looked on as no Crime and allowed to be published And the Pannel neither does nor needs to make farther use thereof but to convince all dis-interested persons that his Explication can import no Crime And whereas it is pretended That the Crime of Treason is inferred from the fundamental Laws of the Kingdom and from that Clause of the Pannel's Explication wherereby he declares he is not bound up by any thing in this Oath not to endeavour any alteration in a lawful way which being an indefinite Proposition is equipollent to an univetsal and is upon the matter coincident with a Clause which was rebellious in its consequences contained in the Solemn League and Covenant It is answered That it is strange how such a plain and innocent Clause whereby beyond all question he does express no more than was naturally imported in the Oath it self whether exprest or not should be made a foundation to import the Crime of Treason which no Lawyer ever allowed except where it was founded upon express Law Luce Meridiana Clariâ—r And indeed if such stretches and inferences can make men guilty of Treason no man can be secure And the words in the Pannel's Declaration are plain and clear yet non sunt cavillanda and import no more but that in his station and in a lawful way and consistent with the Protestant Religion and his Loyalty he might endeavour any alteration to the advantage of Church and State And was there ever any loyal or rational Subject that does or can doubt that this is the natural import of the Oath And indeed it were a strange Oath if it were capable of another sense and being designed for the security of the Government should bind up mens hands to concur for its advantage And how was it possible that the Pannel or any other in the capacity of a Privy-Councellor or a Member of the Parliament would have satisfied his Duty and Allegiance in other terms And whereas it is pretended that there was the like case in the pretended League and Covenant it is answered The Assertion is evidently a Mistake and tho it were the Argument is altogether inconsequential For that League and Covenant was treasonable in it self as being a Combination entered into without His Majesties Authority and was treasonable in the glosses that were put upon it and was imposed by absolute violence on the Subjects of this Kingdom And how can the Pannel be in the least supposed to have had any respect to the said League and Covenant when he had so often taken the Declaration disowning and renouncing it as an unlawful and sinful Oath and concurred in the many excellent Laws and Acts of Parliament made by His Majesty condemning the same as seditious and treasonable And whereas it is pretended That the Pannel is guilty of Perjury having taken the Oath in another sense than was consistent with the genuine sense of the Parliament and that by the Authority cited he doth commento eludere Iuramentum which ought always to be taken in the sense of him that imposeth the Oath It is answered The Pretence is most groundless and Perjury never was nor can be inferred but by the commission or omission of something directly contrary to the Oath And altho it it is true That where an Oath is taken without any Declaration of the express sense of the persons who take it it obliges sub poena Perjurii in the sense not of the taker but of the imposer of the Oath because expressing no Sense Law and Reason presumes there is a full acquiescence in the sense and meaning of the imposer of the Oath and then if an Oath be not so taken he that takes it is guilty of Perjury Yet there was never Lawyer nor Divine Popish or Protestant but agree in this That whatever be the tenor of the Oath if before the taking thereof the party in express terms does publikly openly declare the sense in which he takes it it is impossible it can infer the Crime of Perjury against him in any other sense this not being Commentum excogitatum after the taking of the Oath And if this were not so how is it possible in Sense and Reason that ever any Explication or Sense could solve the Scruples of a mans Conscience For it might be always pretended That notwithstanding of the express sense wherein he took it he should be guilty of Perjury from another sense And that this is
is neither just nor equall so to all interested it is the meanest of Securities For His Majesties Advocate hath already told us that His Majesties Officers can never wrong him And although the Lords and He should conceal what others had done it might make themselves more guilty But not prove any Exoneration to those concerned without a down-right Remission Whereas it is manifest that if their Lordships had admitted the Earl's Exculpation upon the sure and evident grounds therein contained it would not only have answered the Justice of his case but vindicated all concerned And lastly he was to tell them that possibly they might be inclined to go on because they were already so far engaged as they knew not how to retreat with their honour but as there can be no true honour where there is manifest wrong and injustice so in the frail and fallible condition of human things there can be no delusion more dangerous and pernicious then this that unum scelus est alio scelere tegendum And here the Earl thought to lay before them very plainly and pertinently some remarkable and excellent Rules whereby L. Chief justice Hales a renouned judge of our nighbour nation tells he did govern himself in all criminal cases which adds the Earl if they took a due impression would certainly give them peace and joy when all the vain considerations that now amuse will avail them nothing The Rules are these I. Not to be rigid in matters purely consciencions where all the harm is diversity of judgment II. That Popular or Court applause or distaste have no influence on any thing is to be done in point of distribution of justice III. In a criminal case if it be a measuring cast then to incline to mercie and acquital IV. In criminal things that consist only of words where no more harm ensues moderation is then no injustice V. To abhor all privat solicitations of what kynd soever and by whomsoever VI. In maters depending not to be solicitous what men will say or think so long as the rule of justice is exactly kept VII And lastly never to ingage themselves in the begining of a cause but reserve themselves un-prejudged till the whole bussines be heard Then the Earl goes on and makes notes for additional defences reducible to these heads I. The absolute innocence of his Explication in its true and genuine meaning from all crime or offence far more from the horrible crimes libelled II. The impertinency and absurdity of His Majesties Advocat's arguings for inferring the crimes libelled from the Earl's words III. The reasonableness of the Exculpation IV. The Earl's Answers to the Advocat's groundlesse pretences for aggravating of his case As to the first the Earl waving what hath been said from common reason and humanity it self and from the whole tenour and circumstances of his life comes closs to the point by offering that just and genuine Explanation of his Explication which you have above Num. 21. I have delayed hitherto to take the Oath appointed by the Parliament to be taken betwixt and the first of January nixt But now being required near two moneths sooner to take it this day peremptorly or to refuse I have considered the Test and have seen several objections moved against it especially by many of the Orthodox clergie notwithstanding whereof I have endeavoured to satisfie my self with a just explication which I haâ—e 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 every thing as far as I can and that which clears me is that I am confident what ever 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 enjoyned is of no privat interpretation nor are the Kings Statuts to be Interpreted but as they bear and to the intent they are made therefore I think no man that is no privat Person can Explain it for another to amuse or trouble him with It may be mistaken glosses But every man as he is to take it so is to explain it For himself and to endeavour to understand iâ— notwithstanding all these exceptions 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 contrair But to clear my self from 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 Oblgation on me c. I mean not to bind up my self in my station and in a lawfull way still disclaiming all unlawfull 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 Royall 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 Which Explanation doth manifestly appear to be so just and true without violence or straining so clear full without the least impertinency so notour and obvious to common sense without any Commentary so Loyal and honest without ambiguity and lastly so far from all or any of the crimes libelled that it most evidently evinceth that the words thereby explained are altogether innocent And therefore it were lost time to use any arguments to enforce it Yet seing this is no trial of wit but to find out Common sense let us examine the Advocats fantastical paraphrase upon which he bottoms all the alledged crimes and see whether it agrees in one jot with the true and right meaning of the Earl's words and as you may gather from the indictment It is plainly thus I have Considered the Test which ought not to be done
And am very desirous to give obedience as far as I can but am not willing to give full obedience I am confident the Parliament never intended to impose contradictory Oaths that is I am confident they did intend to impose contradictory Oaths And therefor I think no man can explain it but for himself that is to say every man may take it in any sense he pleases to devise and thereby render this Law and also all other Laws though not at all concerned in this affair useless And so make himself a Legislator and usurp the supreme Authority And I take it in so far as it is consistent with it self and the Protestant Religion whereby I suppose that it is not at all consistent with either nor was ever intended by the Parliament it should be consistent And I declare that by taking this Test I mean not to bind up my self in my station and in a lawfull way to wish or endeavour any alteration I think to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty Whereby I declare my self and all others free from all obligation to the Government either of Church or State as by law established and from the duty and Loyalty of good Subjects Resolving of my self to alter all the Fundamentals both of Law and Religion as I shall think fit And this I understand as a part of my Oath that is as a part of the Act of Parliament by which I take upon me and usurp the Royal Legislative power Which sense and Explanation as it consists of the Advocat's own words and was indeed every word necessar to infer these horrible crimes contained in the Indictment So to speak with all the modesty that truth will allow I am sure it is so violent false and absurd that the greatest difficulty must be to beleeve that any such thing was alledged far more receaved and sustained in Judgment by men professing only Reason far less Religion But thirdly if neither the Earl's true genuine and honest sense nor this violent corrupt and false sense will satisfy let us try what transprosing the Earl's Explanation will do and see how the just contrary will look And it must be thus I Have considered the Test nor am I at all desirous to give Obedience so far as I can I am confident the Parliament intended to impose contradictory Oaths And therefor I think every man can explain it for others as well as for himself and take it without reconciling it either to it self or his own sense of it And I doe take it though it be inconsistent with it self and the Protestant Religion And I declare that I mean thereby to bind up my self never either in my station or in any lawfull way whatsoever to wish or endeavour in the least any alteration tho to the advantage of Church or State and tho never so suitable and no way repugnant to the Protestant Religion and my Loyalty And though this be the express quality of my swearing yet I understand it to be no part of my Oath Now whether this contradictory conversion be not treason or highly criminal at best I leave all the World to Judge and to make both sâ—â—es of a contradiction that is both the Affirmative and Negative of the same proposition treason is beyond ordinary Logik Escobar finds two contrary wayes may both be probable and safe wayes to go to heaven but neither he nor the Devil himself have hâ—thâ—rto adventured to declare two contradictory propositions both damnable and either of them a just cause to take away mens Lives Honours and Fortunes But where the disease is in the will it is lost Labour to apply Remedies to the understanding and must not this be indeed either the oddest treason or strangest discovery that ever was hear'd of The Bishop of Edinburgh sees it not witnesse his Vindication saying the same and more Nor many of the Orthodox Clergie witness their Explanations Nor his Royall Highness in privat nor at first in Council nor all the Councellors when together at the Council-board Nor the President of the Council nor the then President of the Session now Chancellour though He rose from his seat to be sure to hear nor any of the most learned lawyers witness their signed Opinion nor the most learned of the Judges on the bench nor the Generality of the knowing persons either in Scotland or England wonderfull treason one day seen by none another day seen by so many A stander-by hearing the trial and the Sentence said he beleeved the Earl's words were by Popish magik transsubstantiat for he saw them the same as before Another answered that he verily thought it was so for he was confident none could see Treason in the words that would not when ever it was a proper time readily also profess his beleefe of transubstantiation but he beleeved many that professed both beleeved neither The second Head of the Earl's additional defences contains the impertinencies absurdities of the Advocat's Arguings And here you must not expect any solid debate For as there is no disputing with those that deny Principles so as litle with those who heap up Phantastical and inconsequential inferences without all shadow of Reason If a stone be thrown though it may do hurt yet having some weight it may be thrown back with equall or more force But if a man trig up a feather and fling it It is in vain to throw it back and the more strength the less success It shall therefor serve by acursoâ—y discourse to expose his arguments which are in effect easier answered then understood and without any serious arguing which they cannot bear rather leave him to be wise in his own eyes then by too much empty talk hazard to be like him He alledges first that the Earl instead of taking the Test in its plain and genuine meaning as he ought doth declare against and defame the Act that enjoyned it which is certainly a great crime But how In as much sayes the Advocate as he tells us That he had considered the Test Which I have indeed hear'd say was his greatest crime and that he ought to have taken it with a profound and devout ignorance as some of our most inventive Politicians boasted they had done But the Earl sayes that he was desirous to give obedience as far as he could whereby sayes the Advcat He insinuats that he was not able to give full obedience This is not the meaning but what if it were and that indeed he coud not Have not thousands given no obedience yet even in law are guiltlesse And ought not that to please his Highnesse and the Council that is accepted of God Almighty and is all any Mortal can perform But the Earl sayes the Advocate Goes on that he was confident the Parliament never intended to impose contradictory Oaths whereby sayes the Advocat He abuses the people with a beleef that the Parliament did intend to impose such
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
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
to either occasion time place manner or end albeit the principal significators in cases of this nature and in effect the main hinges of all morality A Logick capable to pervert the best words and subvert all ingenuity and honesty amongst men For put the case that to satisfy the apprehensions and doubts that were so frequent of Contradictions and Inconsistencies in the Test His Highness himself or the President of the Council had said to these Scruplers in these or the like words That he was confident the Parliament had no intention to impose contradictory Oaths It is evident That by our Author 's reasoning this very apology how fairly soever intended in charity to these dissenters and for the Parliaments vindication might as well as the Earl's words be urged with all our Author's misconstructions and made a mortall Crime But leaving things so obvious and already so fully cleared take a short account of the Circumstances wherewith our Author doth further charge the Earl And first He sayes That the Earl's Father and Family had owned eminently the Principles against which this Oath was taken But our Author cannot deny that they owned yet more eminently the Protestant Religion the only subject of this Part of the Test and of the Earl's Explanation now questioned And for the other Principles here named they owned them no otherwise then the Parliaments of both Kingdoms did 2ly He says The Earl himself had taken the Covenant And so did And many thousands of his good Subjects beside 3ly He tells us The Earl had all along opposed the Test in Parliament But therefore there was the greater reason that his offer to take it with an Explanation should have been favourably accepted 4ly Our Author adds The Earl had positivly told his Royal Highness he would not take the Test. But this is both false and impertinent 5ly He says Neither the Ministers nor others in the Earl's countrey upon whom he had influence had taken the Test. But beside that this is not true absolutly and that in effect Few Ministers in Scotland had at that time taken the Test in respect there were about two moneths of the time allowed by the Act of Parliament then to run how iniquous is it to make the Earl accountable for other mens inclinations 6ly The Concern and Kindness the Fanatiks shew for the Earl is also objected but with the same truth and pertinency as all the rest And yet our Author concluds All which demonstrate That he had an aversion from the Test. Which indeed might very well have been without this demonstration But that therefore what he said about it or as our Author speaks did against it was done dolo malo is just as much as to say that he who in candid and honest dealing goes about to explain an ambiguous Oath before he take it speaks maliciously against it But our Author tells us That the Lords of Justitiary had a clear Precedent for what they did against the Earl in the like Iudgment given in the same Court against the Lord Balmerino Who for a Petition presented to and accepted and once read by his late Majesty vvas found guilty upon far remoter inferences of Misconstruing his Majesties Proceedings But this being particularly answered by the Earl's Lawyers in the Process I shall only here add 1. That Balmerino's Petition containing many positive alledgeances reflecting on several passages of the Government in order to a redress wherein his design might very readily fall under suspicion holds no parallel with the Earl's Explanation on his part a mere Proposal made with all due respect to the Parliament and simply tendered for the clearing of his Oath and Conscience and not indeed capable of another construction 2ly The King never accepted Balmerino's Petition by way of Approbation nor was it so much as delivered to him by Balmerino But our Author by this false phrasing of the King 's having seen and read this Petition would take off the Councils formal and direct Acceptance of the Earl's Explanation And 3ly That albeit Balmerino's Petition and the Earl's Explanation hold no manner of proportion yet even Balmerino's case was generally judged so hard that his Jurours themselves divided upon it and he was only found guilty by eight of them against seven that assoiled him and immediatly after Sentence he was freely pardoned As to what our Author adds Of this same Earl's being formerly found guilty Anno 1662. Of the like Crime upon the like Ground It is very true He was indeed then found guilty of the like Crime and upon the like Ground And not only by the same partie but by some of the same Persons who semel semper are and will be in eodem genere But of this you have already had a large and full account Our Author comes to review the Mist's Justification of the Earl's words To which opposing his former Perversions he only repeats with some new extravagancies what is already answered Thus for instance where the Earl in duty and civility sayes by way of Preface That he was desirous to give obedience as far as he could which clearly refers to the Act of Parliament and the Councils Requisition whereunto he professes his willingness to give all possible satisfaction Our Author to shew his good Breeding and better sense tells us That these words vvere intended by the Earl for a quality and part of his Oath as if he had said that though he vvas content to svvear yet he vvas only minded to keep so as far as he could Whereas it is evident as the sun-light that the quality that the Earl adjects and which he would have understood for a part of his Oath begins after these words And therefore I take the Test And that this quality is both certain sound and most genuine But having already told you that before the Earl's appearance the Countrey was filled with the noise of Contradictions and Inconsistencies in the Test So that the Earl's words in stead of Reproaching were in effect a direct and very seasonable Vindication of the Government as well as of his own Conscience And that the Security of the Government as to Oaths is not concerned in the senses that men devise or propose as our Author perpetually mistakes but in such as it pleaseth the Council the grand Administrators to accept I shall not trouble you with further Reflections on this head Specially seeing that albeit the importunity of the Earl's Accuser have occasioned what in the Narrative and what in this Preface a sensing and resensing of his words almost ad Nauseam Yet the plain truth and my opinion is that the Earl's words never had nor can have but two senses and these most distinct and constant The one genuine just and honest which all indifferent men ever did and do acknowledge The other most strained crooked and calumnious which yet his Adversaries will alwise adhere to But sayes our Author these words I take it in so far as it
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
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