recites the daily Experiences that many of his Majesty's Subjects that adhere in their Hearts to the Popish Religion by the Infection drawn from thence by the wicked and devillish Counsel of Jesuits Seminaries and other like Persons dangerous to the Church and State are so far perverted in the point of their Loyalties and due Allegiance to the King's Majesty and the Crown of England as they are ready to entertain and execute any Treasonable Conspiracies and Practices And for the better Trial how his Majesty's Subjects stand affected in point of their Loyalties and due Obedience Enacts that it shall be lawful for any Bishop in his Diocess or any two Justices of the Peace whereof one to be of the Quorum within the Limits of their Jurisdiction out of the Session to require any Person of the age of eighteen Years or above which shall be convict or indicted of Recusancy other than Noblemen c. or which shall not have received the Sacrament twice within the Year then next past or any Person passing in or through the Country unknown that being examined upon Oath shall confess or not deny him or her self to be a Recusant and to take the Oath therein after expressed viz. c. The Oath of Allegiance So that by the occasion of imposing the Oath and by the appointing it to be tendred only to Papists or suspected Papists it is apparent that the Design of the Law-makers was to detect such Persons as were perverted or in danger to be perverted in their Loyalty by Infection drawn from the Popish Religion The form of the Oath makes it yet more evident being wholly levell'd against any Opinion of the Lawfulness of deposing the King or practising any Treason against him upon pretence of his being excommunicated or deprived by the Pope and against any Opinion of the Pope's Power to discharge Subjects from their Oaths of Fidelity to their Princes It runs thus viz. I A. B. Do truly and sincerely profess testify and declare in my Conscience before God and the World that our Soveraign Lord King James is lawful and rightful King of this Realm and of all his Majesty's Dominions and Countries And that the Pope neither of himself nor by any Authority of the Church or See of Rome or by any other means with any other hath any Power or Authority to depose the King or to dispose any of his Majesty's Kingdoms or Dominions or to authorize any Foreign Prince to invade or annoy him or his Countries or to discharge any of his Subjects of their Allegiance or Obedience to his Majesty or to give licence or leave to any of them to bear Arms raise Tumults or to offer any Violence or Hurt to his Majesty's Royal Person State or Government or to any of his Majesty's Subjects within his Majesty's Dominions Also I do swear from my Heart that notwithstanding any Declaration or Sentence of Excommunication or Deprivation made or granted or to be made or granted by the Pope or his Successors or by any Authority derived or pretended to be derived from him or his See against the said King his Heirs and Successors or any Absolution of the said Subjects from their Obedience I will bear Faith and true Allegiance to his Majesty his Heirs and Successors and him and them will defend to the uttermost of my Power against all Conspiracies and Attempts whatsoever which shall be made against his or their Persons their Crown and Dignity by reason or colour of any such Sentence or Declaration or otherwise and will do my best endeavour to disclose and make known unto his Majesty his Heirs and Successors all Treasons and traiterous Conspiracies which I shall know or hear of to be against him or any of them And I do further swear that I do from my Heart abhor and detest and abjure as impious and heretical this damnable Doctrine and Position That Princes which be excommunicated or deprived by the Pope may be deposed or murthered by their Subjects or any other whatsoever And I do believe and in Conscience am perswaded that neither the Pope nor any Person whatsoever hath Power to absolve me of this Oath or any part thereof which I acknowledg by good and lawful Authority to be lawfully administred unto me and I do renounce all Parsons and Dispensations to the contrary And all these things I do plainly and sincerely acknowledg and swear according to these express words by me spoken and according to the plain and common Sense and Vnderstanding of the same words without any Equivocation or mental Evasion or secret Reservation whatsoever And I do make this Recognition and Acknowledgment heartily willingly and truly upon the true Faith of a Christian So help me God And the Statute of 7 Jacobi cap. 6. recites that Whereas by a Statute made in the third Year of the said King's Reign the form of an Oath to be ministred and given to certain Persons in the same Act mentioned is limited and prescribed tending only to the Declaration of such Duty as every true and well affected Subject not only by bond of Allegiance but also by the Commandment of Almighty God ought to bear to the King his Heirs and Successors Which Oath such are infected with Popish Superstition do oppugne with many false and unsound Arguments the just defence whereof the King had therefore undertaken and worthily performed to the great contentment of all his Subjects notwithstanding the Gainsayings of Contentious Adversaries And to shew how greatly the King 's Loyal Subjects do approve the said Oath they beseech his Majesty that the said Oath be administred to all his Subjects The Pope and Authority of the See of Rome run through the first Paragraph Notwithstanding any Declaration or Sentence of Excommunication c. Governs the second Paragraph Excommunicated and deprived the Pope are the material words in the third Paragraph The fourth is added in Majorem cautelam in opposition to the Popish Doctrine of Dispensing with Oaths Absolving Subjects from their Allegiance Equivocations Mental Evasions c. So that as the Oath of Supremacy did but enforce the Antient Oath of Fealty with an acknowledgment of the Queen 's supream Authority in Ecclesiastial Causes and things as well as Temporal and a Renunciation of all Foreign Jurisdictions so the Oath of Allegiance does but enforce the same old Oath of Fealty by obliging the Subjects of England expresly to disown any lawful Authority in the Pope or See of Rome to depose invade or annoy the King his Dominions or Subjects And notwithstanding any Sentence of Excommunication Deprivation c. by the Pope c. to bear Faith and true Allegiance to the King his Heirs and lawful Successors And to abjure that Position that it is lawful to depose Princes that are Excommunicated or Deprived by the Pope Whatever is added is either Oath over and above what was exprest in the old Oath of Fealty is but as Explanatory of it and branching it out
History likewise doth shew us how that all our Alliances with the house of Burgundy have still been glorious and useful and all those with France unfortunate and prejudicial 'T is ever more dangerous to go out of the beaten Road to travel through By-lanes unknown and dark untried Paths You 'l easily agree with me that the Union of the United Provinces with France is the thing of all others which we ought the most to apprehend as fatal to our Crown and therefore by consequence nothing can be more safe for England than to disunite them Heaven furnishes us now with an occasion of doing that which we shall never be able to recover again should it be neglected and if we do suffer it to slip away we shall bring that Republick into a necessity of tying this fatal Knot with France stronglier than ever it was fastned before This Union therefore above all others must be the Object of our Care as it hath of late demonstratively been the cause of our Misfortunes I conclude then upon solid Foundations without hesitating That in the first place we must necessarily take part in this War either with Spain or France and next that we must not engage blind-fold without taking right Measures with those who have the same Interest that England hath in the Case thirdly that we must knit our Party firmly together and get all the Advantages we can in this Treaty with Spain as well as all the Security possible with other States without yet exacting from Spain things which are intolerable unto them whom the loss of the Low Countries for fear of being reduced by the Exorbitancy of our Demands may plunge into a necessity of according to whatever France shall require This Discourse being ended I observed by their Countenances that the two Persons who spake first applauded this Opinion and that the third man was much shaken They had some farther speech together but so softly that I cannot well collect the sense of it after which all the Company embraced and gave one another their hand with a reciprocal promise of secrecy as well as an Union in the same Design And thus they separated each a several way with evidence of great satisfaction and friendship And as soon as ever they were gone I slipped back insensibly again into the former obscurity near the Bed without being seen by any of the Domesticks And thus whilst these particulars were fresh in memory I did set them down in Paper and all that I could remember of their Discouse only to satisfie my own Curiosity and the Curiousness of my Friends OF THE FUNDAMENTAL LAWS OR Politick Constitution OF THIS KINGDOM FUndamental Laws are not or at least need not be any written Agreement like Meer-stones between King and People the King himself being a part not party in those Laws and the Commonwealth not being like a Corporation treated by Charter but treating it self But the Fundamental Law or Laws is a settling of the Laws of Nature and Common Equity by common consent in such a form of Polity and Government as that they may be administred amongst us with honour and safety For the first of which therefore we are governed by a King and for the second by a Parliament to oversee and take order that that honourable trust that is put into the hands of the King for the Dignity of the Kingdom be rightly executed and not abused to the alteration of the Politick Constitution taken up and approved or to the destruction of that for whose preservation it was ordered and intended A principal part of which honour is that Royal Assent he is to give for the Enacting of such good Laws as the People shall choose for they are first to consult their own safety and welfare and then be who is to be intrusted with it is to give an honourable Confirmation to it and so to put an Impress of Majesty and Royal Authority upon it Fundamental Laws then are not things of Capitulation between King and People as if they were Foreigners and Strangers on to another nor ought they or any other Laws so to be for then the King should govern for himself not for his People but they are things of Constitution treating such a relation and giving such an Existence and being by an external Polity to King and Subjects as Head and Members which Constitution in the very being of it is a Law held forth with more evidence and written in the very heart of the Republick far firmlier then can be by Pen and Paper and in which sense we owe our Allegiance to the King as Head not only by power but influence and so part of the Constitution not as a party capitulating for a Prerogative against or contrary to it which whosoever seeks to set up or side with do break their Allegiance and rebel against the State going about to deprive the King of his juridical and lawful Authority conferred upon him by the Constitution of this State under the pretence of investing him with an illegal and unconstitutive Power whereupon may follow this grand Inconvenience The withdrawment of his Peoples Allegiance which as a Body connexed with the Head by the Constitution of this Kingdom is owing to him his Person in relation to the Body as the enlivening and quickâ—ing Head thereof being sacred and taken notice of by the Laws in that capacity and under that notion is made inviolate And if it be conceived that Fundamental Laws must needs be only extant in writing this is the next way to bring all to confusion for then by the same Rule the King bids the Parliament produce those Laws that fundamentally give them their being priviledge and power Which by the way is not like the Power of inferiour Courts that are Springs of the Parliament dealing between Party and Party but is answerable to their trust this Court being it self Fundamental and Paramount comprehending Law and Fquity and being intrusted by the whole for the whole is not therefore to be circumscribed by any other Laws which have their being from it not it from them but only by that Law which at first gave its being to wit Salus Populi By the same Rule I say the Parliament may also intreat the King to produce those Laws that Fundamentally give him his being power and honour Both which must therefore be determined not by Laws for they themselves are Laws yea the most supreme and fundamental Law giving Laws to Laws themselves but by the received Constitution or Polity which they themselves are and the end of their Constitution is the Law or Rule of their Power to wit An honourable and safe Regiment of the Common-wealth which Two whosoever goeth about to divide the one of them from the other breaks the fundamental constitutive Law or Laws and Polity of this Kingdom that Ordinance of Man which we are to submit unto nor can or ought any Statute or written Law whatsoever which is of latter Edition and
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 Earâ— 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 Council as one of the Commissioners of Your Majesties Treasury 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 inconstant 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 apart 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 Edinburgh and 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 for being 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 Edinburgh Nov. 8. 1681. Your Majesties most Humble most Faithful and most Obedient Subjects and Servants Sic Subscribitur Glencairne Winton Linlithgow Perth Roxburgh Ancram Airlie Levingstoun Jo. Edinburgen Ross Geo. Gordoun Ch. Maitland G. Mekenzie Ja. Foulis J. Drumond Novemb. 15. 1681. The Kings Answer to the Councils Letter C. R. 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 Edinburgh 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 Majesties allowance for prosecuting the Earl they before any return caused His Majesties Advocate to exhibit an Indictment against him upon the points of slandering and depraving as hath been already remarked so after having received His Majesties answer the design grows and they thought fit to order a new Indictment containing beside the former points the Crimes of Treason and Perjury which accordingly was exhibited and is here subjoyned the difference betwixt the two 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 Laws and Acts of Parliament of this Kingdom and particularly by the 21st 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 who so does in the contrary to be punished at the Kings will And by the 10th Act Par. 10. James 6. it is statuted That none of His Majesties Subjects presume or take upon him publickly to declare or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws or Acts of Parliament or misconstrue his proceedings whereby any mistaking may be moved betwixt his Highness his Nobility and loving Subjects in time coming under pain of death certifying them that does in the contrary they shall be reputed as seditious and wicked Instruments enemies to his Highness and to the Commonwealth of this Realm and the said pain of death shall be executed against them with all rigour to the example of others And by the second Act Ses 2. Par. 1. Char. 2. it is statuted That whosoever shall by Writing Libelling Remonstrating express publish or declare any words or sentences to stir up the people to the dislike of His Majesties Prerogative and Supremacy in causes Ecclesiastick or of the Government of the Church by Archbishops and Bishops as it is now settled by Law is under the pain of being declared incapable to exercise any Office Civil Ecclesiastick or Military within this Kingdom in any time coming Like as by the fundamental Laws of this Nation by the 130th Act Par. 8. James 6. it is declared That none of His Majesties Subjects presume to impugn the Dignity or Authority of the three Estates or to procure innevation or diminution of their Power and Authority under the pain of Treason And that it is much more Treason in any of His Majesties Subjects to presume to alter Laws already made or to make new Laws or to add any part to any Law by their own Authority that being to assume the Legislative Power to themselves with His Majesties highest and most incommunicable Prerogative Yet true it is that albeit His Sacred Majesty did not only bestow on you the said Archibald Earl of Argyle
before his being required or appearing to take the Oath there were spread abroad such Scruples and Objections by some of the Orthodox Clergy and others so that the Earl can never in any sense be construed in his Explication wherein he took the Oath to have done it animo infamandi and to declaim against the Government for the Scruples and Objections that were spread abroad by others were a fair and rational occasion why the Earl in any sense or explication which he offered might have said that he was confident the Parliament never intended to impose contradictory Oaths and this is so far from importing the insinuation and inferenâ— made by the Libel that thereby the Parliament were so impious as to impose contradictory Oaths as on the contrary considering the circumstances fore-mentioned that there were papers spread abroad insinuating That there were inconsistencies and contradictions contained therein the said expression was an high Vindication of the Honour and Justice of the Parliament against the Calumnies and Mis-representations which were cast upon it and was also a just Rise for the Pannel for the clearing and exonoration of his own Conscience in the various senses and apprehensions which he found were going abroad as to the said Test humbly to offer his sense in which he was clear and satisfied to take the Oath 7. To the Libel in so far as it is founded upon the Act of Parliament viz. Act 130. Par. 8. James 6. declaring That none should presume to impugn the Dignity or Authority of the three Estates of Parliament or procure any Invasion or diminution thereof under the pain of Treason as also in so far as it is pretended in the Libel That the Pannel by offering the sense and explication libelled has assumed the Legislative power which is incommunicable and has made a Law or a part of a Law It is answered The Libel is most groundless and irrelevant and against which the Act of Parliament is opponed which is so plain and evident upon the reading thereof that it neither is nor can be subject to the least cavillation And the plain meaning whereof is nothing else but to impugn the Authority of Parliaments as if the King and Parliament had not a Legislative Power or were not the highest Representative of the Kingdom or that any of the three Estates were not essentially requisite to constitute the Parliament And besides there is nothing more certain than that the occasion of the said Act its being made was in relation to the Bishops and Clergy and there is nothing in the pretended Explanation that can be wrested to import the least Contravention of the said Act or to be an impugning of the three Estates of Parliament or a seeking any innovation therein And it is admired with what shadow of Reason it can be pretended that the Pannel has assumed a Legislative power or made a part of a Law seeing all that is contained in the alledged Explication libelled is only a Declaration of the Earls sense in which he was satisfied to take the Oath and so respected none but himself and for the clearing of his own Conscience which justly indeed the Word of God calls a Law to himself without any incroaching upon the Legislative power And where was it ever debated but that a man in the taking of an Oath if as to his apprehensions he thought any thing in it deserved to be cleared might declare the same or that his exhibiting at the time of the taking of the Oath his sense and explication wherein he did take it was ever reputed or pretended to be the assuming of a Legislative power it being the universal practice of all Nations to allow this liberty and which sense may be either rejected or accepted as the Legislator shall think fit importing no more but a parties private sense for the exoneration of his own Conscience And as to that Member of the Libel founded upon Act 19. Par. 3. Queen Mary it contains nothing but a Declaration of the pain of Perjury and there is nothing in the Explication libelled which can in the least be inferred as a Contravention of the said Act in respect if it should be proved That the Pannel at the time of the taking of the Oath did take it in the words of the said Explication as his sense of the Oath it is clear that the sense being declared at the time of taking the Oath and allowed as the sense wherein it was taken the Pannel can only be understood to have taken it in that sense And although publick Authority may consider whether the sense given by the Pannel does satisfie the Law or not yet that can import no more though it was found not to satisfie but to hold the Pannel as a Refuser of the Oath but it is absolutely impossible to infer the Crimes of perjury upon it being as is pretended by the Libel the â—annel did only take it with the Declaration of the Sense and Explication Libelled 8. As the Explication 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 favorabili 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 emitting the said Explication was invested and intrusted in publick Capacities 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 Pannels scrupulosity and unclearness in matter of Conscience And it is hoped it cannot be a Crime because all men cannot
and others who offered to obey because it is the defaming the Law as ridiculous and inconsistent with that Protestant Religion and Leasing-making betwixt the King the Nobility and the people the misconstruing and misrepresenting as hath been formerly urged that puts the Earl in a worse condition And all those arguments might be as well urged for any who had uncontrovertedly contravened these Acts as for the Pannel Whereas it is pretended That the King emitted a Proclamation to satisfie Dissenters it is answered That the Proclamation was designed for none who had been Members of Parliament and so should have known the sense but it was designed for meer ignorants not for such as had defamed the Law which is still here charged upon the Pannel As to the Article of Treason it is conceived That it is unanswerably founded upon the Common Law discharging all men to make alteration of the Government as to which there needs no express Statute that being the very essence of Government and needing no Laws Like as it falls positively under all the Laws that discharge the assuming the Royal or Legislative power for to alter the Government is inseparably united to the Crown Like as the Subsumption is as clear the express words not bearing That the Earl reserves to himself a power to propose to His Majesty any alterations or to concur to serve His Majesty in making alterations but owning in most general and arbitrary terms to wish and endeavour any alteration he should think fit for the advantage of Church or State and not determining any thing that could bind him otherwise than according to his own pleasure for the word lawful is still subjected to himself and has subjoyned to it as he should think fit which governs the whole proposition and in that sense and as the words are here set down the greatest Rebel in Scotland will subscribe that Explanation for there is no man but will restrict himself to a lawful obedience provided he be Judge of the lawfulness And seeing all Oaths proposed for the security of Government require a certain depending upon the Legislator and not upon the Taker it is impossible that that end could be attained by any qualification how special soever which is made to depend absolutely upon the Taker and not upon the Legislator And we have often seen how little security there is in those specious words the very Covenant it self having not only the very words above-repeated but attesting all the world to be witnesses to their Loyalty and Sincerity And as to the former instances viz. Rising in Arms or opposing the lawful Successor there is no Covenanter in Scotland but will say he will do neither but in a lawful way and in his station and in a way consistent with his Loyalty for a man were mad to say otherwise but yet when they come to explain this they will only do it as they think fit and will be Judges themselves and then will tell us That defensive Arms are lawful and that no Popish Successor should succeed nor no Successor unless he subscribe the Covenant And whereas it is pretended That no clause in the Test does exclude a man from making alterations it is answered That the alterations which the Test allows are none at all but in subordination to Authority And as to the two points above mentioned it excludes all alterations as to these points And as to the making fundamental alterations this reservation allows to make any alteration and consequently fundamental alterations to preclude which Libertinism this excellent Law was invented Whereas it is pretended That the Pannel designs not to add any thing as a part of the Law but as a part of his Oath it is duplied Since the Oath is a part of the Law whoever adds to the Oath adds to the Law Whereas it is pretended That the Crime of Perjury cannot be inferred here because all Divines allow That the Taker of an Oath is still allowed to declare in what sense he takes the Oath and that this is clear from Sanderson p. 175. It is triplied That where there are two dubious senses Lawyers and Divines allow That the taker should clear himself which of the two he should take which is very just because to which soever of the two he determines himself the Legislator in that case is sure of him But here it is not pretended That there are two senses nor does the Pannel declare in which of the two he takes it or in what clear sence at all he takes it which is indeed liquido Jurare But here the Pannel neither condescends what particular clause of the Test is unclear nor after he has condescended upon the Articles does he condescend upon the sense but in general mysterious words where he can neither be followed or found out he only takes it in so far as it is consistent with it self and the Protestant Religion reserving the squaring all by his own Loyalty as he did in the beginning declare That he took it in his own sense by which general sense neither is the Government secure of any thing it does enjoyn nor could he be punished if he transgressed Nor can it be doubted but Perjury may be inferred by any equivocal or evading sense inter Jurandum as well as by breaking an oath afterwards which is very clear from Sanderson p. 138. The words whereof are alterum perjurii genus est inter Jurandum detorquere verba and which is farther clear by the 28. page but above all from the principles of Reason and the necessity of Commerce and Government For if men may adhibit such glosses even whilst they swear as may make the Oath useless what way will either Government or Commerce be maintained And he deceives as much that deceives in swearing salvis verbis as he who after he has sworn does break the Oath Nay and more too because the breaking may come from forgetfulness or other accidents but the evading by general Clauses which bind no man does from the first instance originally make all Oaths useless and dangerous and that this interpretation eludes the Oath absolutely is very clear from what hath been formerly debated For it may be argued That the Earl broke the Oath in so far as the first day he swears the Oath which bears to be without any evasion and must be so notwithstanding of whatever he could say And the next day he gives in this evasion which is a down-right violation of that Oath and inconsistent with it Nor was this Oath forced but voluntarily emitted to keep his own places And it was the greater Crime that it was done in the Council because that was to make it the more publick and consequently the more to misrepresent the Government After this debate which according to the custom of the Court was verbatim dictate by the Advocates of either side and written by the Clerk and so took up much time and the Court having sate at least twelve
Justice is exactly kept VII And lastly Never to ingage themselves in the beginning of a Cause but reserve themselves unprejudged till the whole business be heard Then the Earl goes on and makes notes for Additional Defences reducible to these Heads I. The absolute innocence af 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 Majesty's Advocate '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 Advocate 's groundless 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 close 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 next But now being required near two months sooner to take it this day peremptorily or to refuse I have considered the Test and have seen several Objections moved against it especially by many of the Orthodox Clergy notwithstanding whereof I have endeavoured to satisfy my self with a just Explication which I here offer that I may both satisfy 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's 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 whatever any man may think or say to the prejudice of this Oath the Parliament never intended to impose contradictory Oaths and because their sense they being the Framers and Imposers is the true sense and this Test enjoined is of no private interpretation nor are the King's Statutes to be interpreted but as they bear and to the intent they are made therefore I think no man that is no private 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 it notwithstanding all these Exceptions in the Parliament's 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 Parliament's 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 J. 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 than the true meaning of the Oath I do declare That by that part of the Test that there lies lies no obligation on me c. I mean not to bind up my self in my station and in a lawful way still disclaiming 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 than 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 Which Explanation doth manifestly appear to be so just and true without violence or straining so clear and full without the least impertinency so notore 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 seeing this is no trial of wit but to find out common sense let us examine the Advocate 's 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 therefore 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 tho 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 lawful 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 Advocate '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 believe that any such thing was alledged far more received 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
than the fore-mentioned of Religion Law and Reason which the Earl did of himself profer As for what His Majesty's Advocate adds That under such professions and reserves the late Rebellions and disorders have all been câ—rried on and fomented It is but a 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 vindicate 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 those 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 say 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 yielded 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 lawful 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 says 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 General who were allowed by the Council so to do seeing that whether they hold their Explanation for a part of their Oath or not yet others may and in effect all men of sense do understand it so And thus in the Advocate 's Opinion they have Treasonably invaded the Legislative Power and made an Act of Parliament to themselves Neither in that Case can the Councils allowance excuse them seeing 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 founds 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 Lies the â—ttering 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 batred and dislike betwixt the King and his People And as to Treason in these yet more positive terms That none impugn the dignity and authority of the Three Estates or seek or procure the innovation or diminution thereof Which are things so palpable and easily discerned and withal so infinitely remote both from the Earl's words and intentions or any tollerable construction can be put on either that I confess I never read this Indictment but I was made to wonder that its forger 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 dutifully spoken for the exoneration of his own Conscience without the least insinuation of either reflection or slander much less the impugning of the Authority of Parliament as the Earl may appeal not only to His Majesty's true and Royal sense but to the most scrupulous and nice affecters of the exactest discerning besides that they were first formally tendered in Council for their approbation and by them directly allowed How then can any Man think that they could be charged with the greatest and vilest of crimes Leasing-making Depraving Perjury and Treason But the Advocate tells us That there are some things which the Law commonly forbids in general and that some inferences are as natural and strong and reproach as soon or sooner than the plainest defamations But what of all this Must therefore such generals be left to the phantastick application of every wild imagination to the confounding of the use of Speech and subverting of humane Society and not rather be still submitted to the judgment of common sense for their true and right understanding and the deducing thence these strong and natural inferences talk'd of Of which good sense if the Advocate do but allow a grain weight it is evident that the inferences he here Libels against the Earl must infallibly be cast and by all rational unbiassed men be found strange unnatural and monstrous For Sir Secondly pray observe these rational and sound Maxims he founds his Inferences on and they are manifestly these First That he who says he will only obey as far as be can invents a new way whereby no man is at all bound to obey 2dly That he who in the midst of Hundreds of exceptions and contradictions objected against an Oath injoyned by Act of Parliament and still unanswered says That he is confident the Parliament never intended to impose contradictory Oaths reproaches the Parliament 3dly That he that says he must explain an ambiguous Oath for himself before he take it renders all Laws and Oaths useless and makes himself the Legislator 4thly That he that says that he takes this Oath as far as it is consistent with it self and the Protestant
one short Answer viz. That if the Earl's Paper did infer the Crimes charged on it a thousand the like offences cannot excuse it And His Majesty is free to pursue the Offenders when and in what order he thinks fit which Answer doth indeed leave the Council and all concerned in His Majesty's mercy But that it doth no way satisfy the Earl's Plea is manifest For the first ground of Exculpation viz. That before the Earl did offer his Explanation a great many Papers writ by the Orthodox Clergy and others were abroad charging the Test with Contradictions c. was not alledged by the Earl merely to justify his Explanation by the multitude of the like Papers and so to provide for an escape in the croud But the Earl having most rationally pleaded that his Explanation was given in by him after these many Scruples and Objections raised by others were abroad it was a good Plea from a most pregnant circumstance clearing both the design and sense of his words from the foul aspersions of reproaching and depraving thrown upon them Seeing the words spoken by him under the motive of such a circumstance by all fair rules of interpretation instead of being judged misconstruing and depraving could only be understood as a seasonable asserting of the Integrity of the Parliament's Intentions and the uprightness of the Earl's Conscience Which Argument being in reason unanswerable it necessarly follows that the Advocate 's return to the first ground was neither sufficient nor pertinent and that therefore the Exculpation was unjustly repelled But next The second ground of Exculpation is so far from being answered by the Advocate that it does not appear it was so much as understood For the Earl's Argument being That words allowed and approven by the Council can never fall under the Accusation either of Leasing-making or slandering His Majesty's Proceedings or depraving Laws and Acts of Parliament as is evident in it self and granted by the Advocate where he says that an Explanation tho reflecting on the King and Government which the Earl's was not yet if allowed by the Council is to be sustained But so it is that the Council hath allowed the words contained in this Explanation contraverted both in themselves and also in their equivalent and far more important Expressions As for instance not only by accepting the Earl's Explanation as shall be cleared in the next place but by giving warrand for the publication of the Bishop of Edinburgh his Vindication wherein first for obviating the contradictions objected from the Confession of Faith he positively asserts that by the Test men do not swear to own every Article of that Confession and yet the Test binds expresly to believe that Confession to be founded on and agreeable to the Word of God and never to consent to any alteration contrary thereto or inconsistent therewith So that he gives both the Test and the Parliament the Lye And then for removing another Scruple he tells us That by the Test men are not bound up from regular endeavours to rectify or better the Established Government both of Church and State which is clearly the same thing but not so well cautioned with that which in the Earl's Case is made a ground of Treason From which it unquestionably follows that the Earl's words having been allowed and approved by the Council could never in Law or Reason be thereafter made a ground of accusation by any much less by themselves Now I desire to know where the Advocate in all his Plea doth so much as notice far less answer this Defence or what his telling us A thousand Offences of the like nature doth not excuse one either doth or can signify seeing this Argument for the Earl instead of pleading excuses doth justify the matter and for ever purge all shadow of offence or ground of quarrel which will be yet more apparent when you shall add to this the third ground of the Earl's Exculpation viz. That the Explanation whereupon the Earl was indicted was publickly by himself declared in Council and by the Council allowed and accepted Insomuch as after he had given his Explanation as the sense wherein he was free to swear the Test the Oath was thereupon administrat to him and he received to sit and vote as a Councellor Whereby it is evident That by this allowance and acceptance the Earl's Explanation became the Councils as much as if after the Earl's pronouncing the words they had verbatim repeated them and told him they were satisfied he should swear the Test in these terms And whether this ought not to be a sufficient exoneration to the Earl let all men judge The Advocate makes a noise That in the case of an Oath required the Taker ought to swear it in the sense of the Imposer which none doubts and then runs out That the Earl in place of taking it in the Imposers sense did unwarrantably intend a sense of his own to the eluding and frustrating of the obligation of this and all other Oaths But all this is nothing to the purpose for waving that in the Earl's Case it is most impertinent to talk of his obtruding of a sense to the eluding and frustrating of the obligation of his Oath seeing his Oath was not then given or at all in being it is expresly alledged by the Earl and notour that the Explanation tendered by him when called to take the Test was accepted by the Council and the Oath thereupon administrated and so the Earl freely joins issue with the Advocate and acknowledging that the Taker of the Oath ought to swear in the sense of the Imposer subsumes in terminis that he himself did swear so and not otherwise inasmuch as he did swear in a sense accepted by the Council before he gave his Oath as is evident 1. By their commanding him to sit after he had sworn and 2. In that neither the Advocate nor any other had ever the confidence to quarrel his sitting as a breach of the Law which no doubt they had done if not convinced that by taking the Oath he had satisfied the Act of Parliament which things in true dealing and the construction of all honest men are the same as if the Oath had been required of him by the Council in the very sense and words of this Explanation Neither is it material whether the Explanation offered by the Earl doth deserve as certainly it doth not these many ill names which the Advocate would fix upon it because though it had been much worse than it is yet being offered to the Council and submitted to their judgment and they having accepted of it the thing became quasi res judicata and cannot be retracted without subverting the surest Rules both of Truth and Government The Advocate indeed tells us 1. That the Council heard not the Earl's Explanation But I have already told you they did hear it and the Earl is still ready to prove it And suppose some say they did not hear it
and too apt to make constructions in such according to the favour or malice they bear to the Person or Cause Are not some men apt to construct that to tend to their dishonour which was designed for their honour and to think every thing an innovation of Law or Privilege which checks their inclination and design Whereas some Judges are so violent in their Loyalty as to imagine the meanest mistakes do tend to an opposition against Authority and thus Zeal Jealousie Malice or Interest would become Judges 4. Men are so silly or may be in such haste or so confounded and the best are subject to such mistakes as that no Man could know when he were innocent simplicity might oft times become a Crime and the fear of offending might occasion offence and how uncomfortably would the people live if they knew not how to be innocent 2dly P. 47. l. 9. Of the same Book he says That the eighth point of Treason is to impugn the Dignity and Authority of the three Estates or to seek and procure the innovation and diminution of their Power and Authority Act 103. Ja. 6. p. 6. Now this being another of the Crimes charged upon the Earl hear how the Advocate there understands it But this he adds immediately is to be understood of a N. B. direct impugning of their Authority as if it were contended that Parliaments were not necessary or that one of the three Estates might be turned out Which how vastly different from his indirect forced and horrible inferences in the Earl's Case is plain and obvious 3dly Ibid. p. 58 l. 2. After having said That according to former Laws no sort of Treason was to be pursued in absence before the Justices and urging it to be reasonable he adds ' Nor is it imaginable but if it had been safe it had been granted formerly And l. 31. he says The Justices are never allowed even by the late Act of Parliament to proceed to sentence against absents but such as are pursued for Rising in Arms against the King The true reason whereof he tells us is that the Law is not so inhumane as to punish equally presumed and real guilt And that it hath been often found that men have absented themselves rather out of fear of a prevailing Faction or corrupt Witnesses c. than out of consciousness of guilt Reasons which albeit neither true nor just seeing that the Law punishes nothing even in case of absence but either manifest contumacy or Crimes fully proven And that the only reason why it allows no other Crime save Perduellion to be proceeded against in absence is because it judges no other Crime tanti yet you see how this whole passage quadrats with the Earl's Case who being neither pursued for Perduellion nor present at giving Sentence was yet sentenced in absence as a most desperate Traytor 4thly Ibid. p. 60. l. 24. Speaking of the Solemnities used in Parliament at the pronouncing Sentences for Treason viz. That the Pannel receives his Sentence kneeling and that after the doom of Forfaulture pronounced against him the Lyon and his Brethren the Heraulds in their Formalities come and tear his Coat of Arms at the Throne and thereafter hang up his Escutchion ranversed upon the Mercat-Cross He adds But this I think should only hold in the Crime of Perduellion and then goes on to add That the Children of the Delinquent are declared incapable to bruik any Office or Estate is another Speciality introduced in the punishment of Perduellion only And yet both these terrible Solemnities were practised against the Earl even by a Court of Justitiary and not in Parliament albeit he was not accused of Perduellion nor be indeed more guilty of any Crime than all the World sees 5thly Ibid. page 303. ult He says That verbal injuries are these that are committed by unwarrantable expressions as to call a Man a Cheat a Woman Whore But because expressions may vary according to the intention of the speaker therefore except the words can allow of no good sense as Whore or Thief or that there be strong presumptions against the speaker the injuriandi animus or design of injuring as well as the injuring words must be proven and the speaker will be allowed to purge his guilt by declaring his intention and his declaration without an Oath will be sufficient 2dly The pursuer should libel the design and prove it except the words clearly infer it 3dly The pursuer is presently to resent the injury and if at first the words be taken for no injury they cannot afterward become such Which things being applied to the Earl's words do evidently say That unless his words could allow of no good sense or that there were strong presumptions against him or that he could not purge his guilt by declaring his intention or that his words did clearly infer the guilt there could be no Crime of Slandering Reproaching or Depraving charged against him except the injuriandi animus as well as the words had been both libelled and proven But so it is that his words do manifestly allow of a good sense that there is not the least presumption of injury can be alledged against him That he did most plainly purge himself of all suspition of guilt by declaring his sound and upright intention and that his words do not infer either clearly or unclearly the smallest measure of guilt and withal neither was the injuriandi animus at all proven But on the contrary the words at first were taken for no injury so that they could not afterward become such as is above fully cleared Ergo Even the Advocate being Judge the Earl is no Slanderer 6thly If it were necessary I could further tell you several things that he alledges to be sufficient for purging a Man of any criminal intention As where he says Ibid. p. 563. l. 2. That in matters of fact persons even judicious following the Faith of such as understand are to be excused And l. 30. That if it appear by the meanness of the crime he should say the smallness of the deed And what can be less than the uttering of a few words in the manner that the Earl spoke them that there was no design of transgression And that the committer designed not for so small a matter to commit a crime much less such horrid ones as Depraving and Treason In that case the meanness of the transgression or deed ought to defend against the relevancy c. But to give you one instance for all how much the Advocate may one day or other be obliged to plead the innocence of his intentions to free himself of words downright in themselves slanderous and depraving an Act of Parliament much better nor he understands it and in fresh and constant observance Ibid. p. 139. towards the middle speaking of the 151 Act Ja. 6. P. 12. Whereby it is Statute That seeing divers exceptions and objections rises upon criminal Libels and parties are frustrate of Justice by the
that I disown and renounce all such Principles Doctrins or Practices whether Popish or Fanatical which are contrary unto and inconsistent with the said Protestant Religion and Confession of Faith And for testification of my obedience to my most gracious Soveraign Charles the II. I do affirm and swear by this my solemn Oath that the Kings Majesty is the only Supreme Governour of this Realm over all Persons and in all Causes as well Ecclesiastical as Civil And that no Foreign Prince Person Pope Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminency or Authority Ecclesiastical or Civil within this Realm And therefore I do utterly renounce and forsake all Foreign Jurisdictions Powers Superiorities and Authorities And do promise that from henceforth I shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to my power shall assist and defend all Rights Jurisdictions Prerogatives Priviledges Preferments and Authorities belonging to the Kings Majesty his Heirs and lawful Successors And I further affirm and swear by this my solemn Oath That I judge it unlawful for Subjects upon pretence of Reformation or any other pretence whatsoever to enter into Covenants or Leagues or to Gonvocate Conveen or Assemble in any Councils Conventions or Assemblies to Treat Consult or Determine in any matter of State Civil or Ecclesiastick without His Majesties special Command or Express License had thereto or to take up Arms against the King or these Commissionate by him And that I shall never so rise in Arms or enter into such Covenants or Assemblies And that there lies no obligation on me from the National Covenant or the Solemn Leagâ—e and Covenant commonly so called or any other manner of way whatsoever to endeavour any Change or Alteration in the Government either in Church or State as it is now established by the Laws of this Kingdome And I Promise and Swear That I shall with my utmost power Defend Assist and Maintain His Majesties Jurisdiction foresaid against all deadly And I shall never decline His Majesties Power and Jurisdiction as I shall answer to God And finally I affirm and swear That this my solemn Oath is given in the plain genuine sense and meaning of the words without any equivocation mental reservation or any manner of evasion whatsoever and that I shall not accept or use any dispensation from any creature whatsoever So help ne God The Bishop of Aberdeen and the Synods Explanation of the Test WE do not hereby swear to all the particular Assertions and Expressions of the Confession of Faith mentioned in the Test but only to the uniform Doctrine of the Reformed Churches contained therein II. We do not hereby prejudge the Churches Right to and Power of making any alteration in the said Confession as to the ambiguity and obscure expressions thereof or of making a more unexceptionable frame III. When we swear That the King is Supreme Governour over all Persons and in all Causes as well Ecclesiastick as Civil and when we swear to assert and defend all His Majesties Rights and Prerogatives this is reserving always the intrinsick unalterable power of the Church immediately derived from Jesus Christ to wit the power of the Keys consisting in the preaching of the Word administration of the Sacraments ordaining of Pastors exercise of Discipline and the holding of such Assemblies as are necessary for preservation of Peace and Vnity Truth and Purity in the Church and withal we do hereby think that the King has a power to alter the Government of the Church at his pleasure IV. When we swear That it is unlawful for Subjects to meet or convene to treat or consult c. about matters of State Civil and Ecclesiastick this is excepting meetings for Ordination publick Worship and Discipline and such meetings as are necessary for the conservation of the Church and true Protestant Religion V. When we swear There lies no obligation on us c. to endeavour any change or alteration in Government either in Church or State we mean by Arms or any seditious way VI. When we swear That we take the Test in the plain and genuine sense of the words c. we understand it only in so far as it does not contradict these Exceptions The Explanation of the Test by the Synod and Clergy of Perth BEcause our Consciences require the publishing and declaring of that express meaning we have in taking the Test that we be not mis-interpreted to swear it in these glosses which men uncharitable to it and enemies to us are apt to put upon it and because some men ill affected to the Government who are daily broachers of odious and calumnious Slanders against our Persons and Ministry are apt to deduce inferences and conclusions from the alledged ambiguity of some Propositions of the Test that we charitably and firmly do believe were never intended by the Imposers nor received by the Takers Therefore to satisfie our Consciences and to save our Credit from these unjust imputations we expressly declare That we swear the Test in this following meaning I. By taking the Test we do not swear to every Proposition and Clause contained in the Confession of Faith but only to the true Protestant Religion founded upon the Word of God contained in that Confession as it is opposed to Popery and Fanaticism II. By swearing the Ecclesiastick Supremacy we swear it as we have done formerly without any reference to the assertory Act. We also reserve intire unto the Church it s own intrinsick and unalterable power of the Keys as it was exercised by the Apostles and the pure primitive Church for the first three Centuries III. By swearing That it is unlawful to Convocate convene or assemble in any Council Conventions or Assemblies to treat consult c. in any matter of State Civil or Ecclesiastick as we do not evacuate our natural Liberty whereby we are in freedom innocently without reflection upon or derogating 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 unlawful 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 EDINBVRGH The sederunt of the Council Sederunt vigesimo secundo Die Septembris 1681. His Royal
Highness c. Montrose Errol Marshall Marr Glencarne Winton Linlithgow Perth Strathmore Roxburgh Queensberry Airley Kintore Breadalbane Lorne Levingston Bishop of Edinburgh Elphinston Rosse Dalziel Treasurer Deputy Praeses Advocate Justice Clerk Collinâ—oun 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 Queensberries Explanation of the Test when he took it HIS Lordship declared that by that part of the Test That there lies no obligation to endeavour any change or alteration in the Government c. He did not understand himself to be obliged against Alterations in case it should please His Majesty to make alterations of the Government of Church or State HALYRVDEHOVSE Sederunt vigesimo primo Die Octobris 1681. His Royal Highness c. Winton Perth Strathmore Queensberry Ancram Airley Lorne Levingston Bishop of Edinburgh Treasurer Deputy Praeses Register Advocate Collintoun This day the Bishop of Edinburgh having drawn up a long Explication of the Test to satisfie the many Objections and Scruples moved against it especially by the conformed Clergy presented it to the Council for their Lordships Approbation which was ordered to be read but the Paper proving prolix and tedious his Highness after reading of a few Leaves interrupted saying very wittily and pertinently That the first Chapter of John with a Stone will chase away a Dog and so break it off Yet the Bishop was afterward allowed to print it if he pleased Sederunt quarto Die Novembris 1681. His Royal Highness c. Montrose Praeses Perth Ancram Levingston President of Session Advocate Winton Strathmore Airley Bishop of Edinburgh Treasurer Deputy Lundie Linlithgow Roxburgh Balcaras Esphynstoun Register This day the Eari of Argyle being about to take the Test as a Commissioner of the Treasury and having upon Command produced a Paper bearing the sense in which he took the Test the precedeing day and in which he would take the same as a Commissioner of the Treasury Upon consideration thereof it was resolved that he cannot sit in Council not having taken the Test in the sense and meaning of the Act of Parliament and therefore was removed The Earl of Argyle's Explication of the Test when he took it I Have considered the Test and I am very desirous to give obedience as far as I can I 'm confident the Parliament never intended to impose contradictory Oaths Therefore I think no Man can explain it but for himself Accordingly I take it as far as it is consistent with it self and the Protestant Religion And I do declare That I mean not to bind up my self in my station and in a lawful way to wish and endeavour any alteration I think to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty And this I understand as a part of my Oath But the Earl finding as hath been narrated this his Explication though accepted and approven by his Highness and Council the day before to be this day carped and offended at and advantages thereupon soughtand designed against him did immediately draw up the following Explanation of his Explication and for his own vindication did first communicate it to some privately and thereafter intended to have offered it at his Trial for clearing of his defences The Explanation of his Explication I Have delayed hitherto to take the Oath appointed by the Parliament to be taken by the first of January next But now being required near two Months sooner to take it this day peremptorily or to refuse I have considered the Test and have seen several Objections moved against it especially by many of the Orthodox Clergy notwithstand whereof I have endeavoured to satisfie my self with a just Explanation which I here offer that I may both satisfie my conscience and obey Your Highness and Your Lordships commands in taking the Test though the Act of Parliament do not simply command the thing but only under a Certification which I could easily submit to if it were with Your Highness favour and might be without offence but I love not to be singular and I am very desirous to give obedience in this and 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 injoyned is of no private interpretation nor are the Kings Statutes to be interpreted but as they bear and to the intent they are made Therefore I think no Man that is no private 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 it notwithstanding all these exceptions in the Parliament which is its true and genuine sense I take it therefore notwithstanding any scruple made by any as far as it is consistant 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 J. 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 hand up further then the true meaning of the Oath I do declare that by that part of the Test that there lies no obligation on me c. I mean not to bind up my self in my station and in a lawful way still disclaiming 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 〈◊〉 Your Royal Highness and Your Lordships allow me or otherwise in submission to Your High 〈◊〉 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
those vast Lands Jurisdictions and Superiorities justly forfaulted to His Majesty by the Crimes of your deceased Father preferring your Family to those who had served His Majesty against it in the late Rebellion but also pardoned and remitted to you the Crimes of Leasing-making and misconstruing His Majesties and his Parliaments proceedings against the very Laws above-written whereof you were found guilty and condemned to die therefore by the High Court of Parliament the 25th of August 1662. and raised you to the Title and Dignity of an Earl and being a Member of all His Majesties Judicatures Notwithstanding of all these and many other favours you the said Archibald Earl of Argyle being put by the Lords of His Majesties Privy-Council to take the Test appointed by the Act of the last Parliament to be taken by all persons in publick Trust you instead of taking the said Test and swearing the same in the plain genuine sense and meaning of the words without any equivocation mental reservation or evasion whatsoever you did declare against and defame the said Act and having to the end you might corrupt others by your pernicious sense drawn the same in a Libel of which Libel you dispersed and gave abroad Copies whereby ill impressions were given of the King and Parliaments proceedings at a time especially when His Majesties Subjects were expecting what submission should be given to the said Test and being desired the next day to take the same as one of the Commissioners of His Majesties Treasury you did give into the Lords of His Majesties Privy-Council and owned twice in plain judgment before them the said defamatory Libel against the said Test and Act of Parliament declaring That you had considered the said Test and was desirous to give obedience as far as you could whereby you clearly insinuated that you was not able to give full obedience In the second Article of which Libel you declare That you were confident the Parliament never intended to impose contradictory Oaths thereby to abuse the people with a belief that the Parliament had been so impious as really and actually to have imposed contradictory Oaths and so ridiculous as to have made an Act of Parliament which should be most deliberate of all humane actions quite contrary to their own intentions after which you subsumed contrary to the nature of all Oaths and to the Acts of Parliament above cited that every man must explain it for himself and take it in his own sense by which not only that excellent Law and the Oath therein specified which is intended to be a Fence to the Government both of Church and State but all other Oaths and Laws shall be rendered altogether useless to the Government If every man take the Oaths imposed by Law in his own sense then the Oath imposed is to no purpose for the Legislator cannot be sure that the Oath imposed by him will bind the takers according to the design and intent for which he appointed it and the Legislative Power is taken from the Imposers and settled in the taker of the Oath and so he is allowed to be the Legislator which is not only an open and violent depraving of His Majesties Laws and Acts of Parliament but is likewise a settling of the Legislative Power on private Subjects who are to take such Oaths In the third Article of that Paper you declare That you take the Test in so far only as it is consistent with it self and the Protestant Religion by which you maliciously intimate to the people That the said Oath is inconsistent with it self and with the Protestant Religion which is not only a down right depraving of the said Act of Parliament but is likewise a misconstruing of His Majesties and the Parliaments proceedings and misrepresenting them to the people in the highest degree and in the tenderest points they can be concerned and implying that the King and Parliament have done things inconsistent with the Protestant Religion for securing of which that Test was particularly intended In the Fourth Article you do expresly declare that you mean not by taking the said Test to bind up your self from wishing and endeavouring any alteration in a lawful way that you shall think fit for advancing of Church and State whereby also it was designed by the said Act of Parliament and Oath That no man should make any alteration in the Government of Church and State as it is now established and that it is the Duty of all good Subjects in humble and quiet manner to obey the present Government Yet you not only declare your self but by your example you invite others to think themselves loosed from that Obligation and that it is free for them to make any alteration in either as they shall think fit concluding your whole Paper with these words And this I understand as a part of my Oath which is a treasonable invasion upon the Royal Legislative Power as if it were lawful for you to make to your self an Act of Parliament since he who can make any part of an Act may make the whole the Power and Authority in both being the same Of the which Crimes above mentioned you the said Archibald Earl of Argyle are Actor Art and Part which being found by the Assize you ought to be punished with the pains of Death fortâ—ulture and escheat of Lands and Goods to the terror of others to commit the like hereafter An Abstract of the several Acts of Parliament upon which the Indictment against the Earl of Argyle was grounded Concerning raisers of Rumours betwixt the King and his people Chap. 20.1 Statutes of King Robert 1. IT is defended and forbidden That no man be a Conspirator or Inventer of Narrations or Rumours by the which occasion of discord may arise betwixt the King and his people And if any such man shall be found and attainted thereof incontinent be shall be taken and put in Prison and there shall be surely keeped up ay and while the King declare his will anent him Act 43. of Par. 2. King James 1. March 11. 1424. Leasing-makers forfault Life and Goods ITem It is ordained by the King and whole Parliament that all Leasingmakers and tellers of them which may engender discord betwixt the King and his people wherever they may be gotten shall be challenged by them that power has and ryne Lâ—â—e and Goods to the King Act 83. Par. 6. James 5. Dec. 10. 1540. Of Leasing-makers ITem Touching the Article of Leasing-makers to the Kings Grace of his Barons great men and Leiges and for punishment to be put to them therefore the Kings Grace with advice of his three Estates ratifies and approves the Acts and Statutes made thereupon before and ordains the same to be put in execution in all points and also Statutes and ordains That if any manner of person makes any evil Information of his Highness to his Barons and Leiges that they shall be punished in such manner and by the same punishment as
Earl unless they had his Royal Highness's and their Lordships special License and Warrant to that effect which is usual in the like Cases And by the said Petition humbly supplicated that his Highness and the Council would give special Order and Command to the said Sir George Lockhart the said Earls ordinary Advocate to consult and plead for him in the foresaid Criminal Process without incurring any hazard upon that account His Royal Highness and Lords of the said Privy Council did refuse the desire of the said Petition but allowed any Lawyers the Petitioner should employ to consult and plead for him in the Process of Treason and other Crimes to be pursued against him at the instance of His Majesties Advocate And also the said Alexander Dunbar having and holding in his hands another Act of the said Lords of Privy Council of the date the 24th of the said month relative to and narrating the said first Act and proceeding upon another supplication given in by the said Earl to the said Lords craving That his Royal Highness and the said Lords would interpose their Authority by giving a positive and special Order and Warrant to the said Sir George Lockhart to consult and plead with him in the foresaid Criminal Process conform to the tenor of the Acts of Parliament mentioned and particularized in the said Petition and frequent and known practice in the like cases which was never refused to any Subjects of the meanest quality His Royal Highness and Lords of Privy Council having considered the foresaid Petition did by the said Act adhere to their former Order allowing Advocates to appear for the said Earl in the Process foresaid as the said Acts bear and produced the said Acts and Procuratory foresaid to the said Sir George Lockhart who took the same in his hands and read them over successive and after reading thereof the said Alexander Dunbar Procurator and in name and behalf foresaid solemnly required the said Sir George Lockhart as the said Noble Earls ordinary Advocate and as a Lawyer and Advocate upon the said Earls reasonable expence to consult and advise the said Earls said Process at any time and place the said Sir George should appoint to meet thereupon conform to the foresaid two Acts of Council and Acts of Parliament therein mentioned appointing Advocates to consult in such matters which the said Sir George Lockhart altogether refused Whereupon the said Alexander Dunbar as Procurator and in Name foresaid asked and took Instruments one or more in the hands of me Notary publick undersubscribed And these things were done within the said Sir George Lockhart's Lodging on the South side of the Street of Edinburgh in the Lane-Mercat within the Dining-room of the said Lodging betwixt Four and Five hours in the Afternoon Day Month Year Place and of His Majesties Reign respective foresaid before Robert Dicksone and John Lesly Servitors to John Camphell Writer to His Majesties Signet and Dowgall Mac. Alester Messenger in Edinburgh with divers others called and required to the Premisses Ita esse Ego Johannes Broun Notarius publicus in Premissis requisitus Attestor Testantibus his meis signo subscriptione manualibus solitis consuetis Broun Witnesses Robert Dicksone Dowgall Mac. Alester John Lesly Decemb. 5. 1682. The Opinion of divers Lawyers concerning the Case of the Earl of Argyle WE have considered the Criminal Letters raised at the instance of His Majesties Advocate against the Earl of Argyle with the Acts of Parliament contained and narrated in the same Criminal Letters and have compared the same with a Paper or Explication which is libelled to have been given in by the Earl to the Lords of His Majesties Privy-Council and owned by him as the sense and explication in which he did take the Oath imposed by the late Act of Parliament Which Paper is of this tenor I have considered the Test and am very desirous to give chedience as far as I can c. And having likewise considered that the Earl after he had taken the Oath with the explication and sense then put upon it it was acquiesced to by the Lords of Privy-Council and he allowed to take his place and to sit and Vote And that before the Earls taking of the Oath there were several papers spread abroad containing objections and alledging inconsistencies and contradictions in the Oath and some thereof were presented by Synods and Presbyteries of the Orthodox Clergy to some of the Bishops of the Church It is our humble Opinion that seeing the Earls design and meaning in offering the said Explication was allenarly for the clearing of his own Conscience and upon no facrious or seditious design and that the matter and import of the said paper is no contradiction of the Laws and Acts of Parliament it doth not at all import any of the Crimes libelled against him viz. Treason Leasing making depraving of His Majesties Laws or the Crime of Perjury but that the glosses and inferences put by the Libel upon the said paper are altogether strained and unwarrantable and inconsistent with the Earls true design and the sincerity of his meaning and intention in making of the said Explication Wednesday the 12th of December the day of compearance assigned to the Earl being now come he was brought by a guard of Souldiers from the Castle to the place appointed for the Trial and the Justice Court being met and fenced the Earl now Marquess of Queensberry then Justice-General the Lords Nairn Collingtoun Forret Newtoun and Hirkhouse the Lords of Justitiary sitting in Judgment and the other formalities also performed the Indictment above set down Num. 24. was read and the Earl spoke as follows The Earl of Argyle's Speech to the Lord Justice General and the Lords of the Justitiary after he had been arraigned and his Indictment read My Lord Justice General c. I Look upon it as the undeniable priviledge of the meanest Subject to explain his own words in the most benign sense and even when persons are under an ill Character the misconstruction of words in themselves not ill can only reach a presumption or aggravation but not any more But it is strange to alledge as well as I hope impossible to make any that know me believe that I could intend any thing but what was honest and honourable suitable to the Principles of my Religion and Loyalty tho I did not explain my self at all My Lord I pray you be not offended that I take up a little of your time to tell you I have from my Youth made it my business to serve His Majesty faithfully and have constantly to my power appeared in his Service especially in all times of difficulty and have never joined nor complied with any Interest or Party contrary to His Majesties Authority and have all along served him in his own way without a frown from His Majesty these thirty years As soon as I passed the Schools and Colledges I went to travel to France and Italy and
was abroad 1647 1648 and till the end of 1649. My first appearance in the World was to serve His Majesty as Collonel in his Foot-Guards and tho at that time all the Commissions were given by the then Parliament yet I would not serve without a Commission from His Majesty which I have still the Honour to have by me After the misfortune of Worcester I continued in Arms for His Majesties Service when Scotland was over-run with the Usurpers and was alone with some of my Friends in Arms in the Year 1652. and did then keep up some appearance of opposition to them And General Major Dean coming to Argyleshire and planting several Garrisons he no sooner went away but we fell upon the Garrisons he had left and in one day took two of them and cut off a considerable part of a third and carried away in all about three hundred Prisoners And in the end of that year I sent Captain Shaw to His Majesty with my humble Opinion how the War might be carried on who returned to me with Instructions and Orders which I have yet lying by me After which I joyned with those His Majesty did Commissionate and stood out till the last that the Earl of Middleton His Majesties Lieutenant General gave me Orders to Capitulate which I did without any other Engagements to the Rebels but allowing persons to give Bail for my living peaceably and did at my Capitulating relieve several Prisoners by exchange whereof my Lord Granard out of the Castle of Edinburgh was one It is notarly known that I was forefaulted by the Usurpers who were so jealous of me that contrary to their Faith within eight months after my Capitulation upon pretence I keep'd Horses above the value they seized on me and keeped me in one Prison after another till His Majesties happy Restauration and this only because I would not engage not to serve His Majesty tho there was no Oath required I do with all gratitude acknowledge His Majesties goodness bounty and Royal favours to me when I was pursued before the Parliament in the year 1662. His Majesty was graciously pleased not to send me here in any opprobrious way but upon a bare verbal Parole upon which I came down Post and presented my self a Fourthnight before the day Notwithstanding whereof I was immediately clapt up in the Castle but having satisfied His Majesty at that time of my entire Loyalty I did not offer to plead by Advocates And His Majesty was not only pleased to pardon my Life and to restore me to a Title and Fortune but to put me in trust in his Service in the most eminent Judicatories of this Kingdom and to heap favours upon me far beyond what ever I did or can deserve tho I hope His Majesty hath always found me faithful and thankful and ready to bestow all I have or can have for his Service And I hope never hath had nor ever shall have ground to repent any favour he hath done me And if I were now really guilty of the Crimes libelled I should think my self a great Villain The next occasion I had to shew my particular zeal to His Majesties Service was in Anno 1666. when the Insurrection was made that was represt at Pentland-Hills At the very first the intercourse betwixt this place and me was stopt so that I had neither Intelligence nor Orders from the Council nor from the General but upon a Letter from the now Archbishop of St. Andrews telling me there was a Rebellion like to be in the three Kingdoms and bidding me beware of Ireland and Kintyre I brought together about two thousand men I seized all the Gentlemen in Kintyre that had not taken the Declaration tho I found them peaceable And I sent a Gentleman to General Dalziel to receive his Orders who came to him just as they were going to the Action at Pentland and was with him in it and I kept my men together till his return And when I met with considerable trouble from my Neighbours rebelliously in Arms and had Commissions both on publick and private accounts have I not carried dutifully to His Majesty and done what was commanded with a just moderation which I can prove under the hands of my enemies and by many infallible demonstrations Pardon me a few words Did I not in this present Parliament shew my readiness to serve His Majesty and the Royal Family in asserting vigorously the lineal legal Succession of the Crown and had a care to have it exprest in the Commissions of the Shires and Burghs I had interest in Was I not for offering proper Supplies to His Majesty and his Successor And did I not concur to bind the Landlords for their Tenants altho I was mainly concerned And have I not always kept my Tenants in obedience to His Majesty I say all this not to arrogate any thing for doing what was my Honour and Duty to His Majesty but if after all this upon no other ground but words that were spoken in absolute innocence and without the least design except for clearing my own Conscience and that are not capable of the ill sense wrested from them by the Libel I should be further troubled what assurance can any of the greatest Quality Trust or Innocence have that they are fecure Especially considering that so many Scruples have been started as all know not only by many of the Orthodox Clergy but by whole Presbyteries Synods and some Bishops which were thought so considerable that an eminent Bishop took the pains to write a Treatise that was read over in Council and allowed to be Printed and a Copy given to me which contains all the expressions I am charged for and many more that may be stretched to a worse sense Have I not shewed my zeal to all the ends of the Test How then can it be imagined that I have any sinister design in any thing that I have said If I had done any thing contrary to it all the course of my life which I hope shall not be found yet one act might pretend to be excused by a habit But nothing being questioned but the sense of words misconsirued to the greatest height and stretched to imaginary insinuations quite contrary to my scope and design and so far contrary not only to my sense but my principles Interest and duty That I hope my Lord Advocate will think he hath gone too far on in this Process and say plainly what he knows to be truth by his acquaintance with me both in publick and private viz. That I am neither Papist nor Fanatick but truly loyal in my principles and practices The hearing of this Libel would trouble me beyond most of the sufferings of my Life if my innocence did not support me and the hopes of being vindicated of this and other Calumnies before this publick and Noble Auditory I leave my Defences to these Gentlemen that plead for me they know my innocence and how ground less that Libel
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 of 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 Mans 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 downright Objections that 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 fence it being as impossible to see with anothers 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 touch 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 Earls 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 evident from the learned Vindication published and spread abroad by an eminent Bishop and which was read in the face of the Privy Council and does contain expressions of the same nature and to the same import contained in the pretended Explication libelled as the ground of this Indictment libelled against the Pannel And it is positively offered to be proven That these terms were given in and read and allowed to be printed and without taking notice of the whole tenor of the said Vindication which the Lords of Justitiary are humbly desired to peruse and consider and compare the same with the Explication libelled the same acknowledgeth that scruples had been raised and spread abroad against the Oath and also acknowledgeth that there were expressions therein that were dark and obscure and likewise takes notice that the Confession ratified Par. 1. James 6. to which the Oath relates was hastily made and takes notice of that Authority that made it and acknowledges in plain terms that the Oath does not hinder any regular endeavour to regulate or better the Establisht Government but only prohibits irregular endeavours and attempts to invert the substance or body of the Government and does likewise explain the Act of Parliament anent His Majesties Supremacy that it does not reach the alteration of the external Government of the Church And the Pannel and his Proctors are far from insinuating in the least that there is any thing in the said Vindication but what is consistent with the exemplary Loyalty Piety and Learning of the Writer of the same And tho others perhaps may differ in their private opinion as to this interpetation of the Act of Parliament anent the Kings Supremacy yet it were most absurd and irrational to pretend that whether the mistake were upon the interpretation of the Writer or the sense of others as to that point that such mistakes or misapprehensions upon either hand should import or infer against them the Crimes of Leasing making or
upon the King and the Government For the writing an answer is no allowance but a condemning Nor can the Council allow any more than they can remit And tho it may justly be denied that the Council heard even the Earls own Explanation yet the hearing or allowing him to sit is no Relevant Plea because they might very justly have taken a time to consider how far it was fit to accuse upon that Head And it is both just and fit for the Council to take time and by express Act of Parliament the negligence of the King Officers does not bind them For if this were allowed Leading men in the Council might commit what Crimes they pleased in the Council which certainly the King may quarrel many years after And tho all the Council had allowed him that day any one Officer of State might have quarrelled it the next day As to the Opinion of Bellarmine Sanderson and others it is ever contended that the principles of the Covenant agree very well with those of the Jesuites and both do still allow Equivocations and Evasions But no solid Orthodox Divine ever allowed That a man who was to swear without any Evasion should swear so as he is bound to nothing as it is contended the Earl is not for the Reasons represented And as they still recommend That when men are not clear they might abstain as the Earl might have done in this case so they still conclude That men should tell in clear terms what the sense is by which they are to be bound to the State Whereas the Earl here tells only in the general and in most ambigious terms That he takes it as far as he can obey and as far as it is consistent with the Protestant Religion and that he takes it in his own sense and that he is not bound by it from making alterations but as far as he thinks it for the advantage of Church or State which sense is a thousand times more doubtful than the Test and is in effect nothing but what the taker pleases himself As to the Treason founded on His Majesties Advocate founds it first upon the Fundamental and Common Laws of this and all Nations whereby it is Treason for any man to make any alteration he shall think for the advantage of Church or State which he hopes is a principle cannot be denied in the general And whereas it is pretended That this cannot be understood of mean alterations and of alterations to be made in a lawful way It is answered That as the thing it self is Treason so this Treason is not taken off by any of these qualifications because he declares he will wish and endeavour any alteration he thinks fit and any alteration comprehends all alterations that he thinks fit Nam propositio indefinita aequipollet universali And the word any is general in its own nature and is in plain terms a reserving to himself to make alterations both great and small And the restriction is not all alterations that the King shall think fit or are consistent with the Laws and Acts of Parliament but he is still to be Judge of this and his Loyalty is to be the Standard Nor did the Covenanters in the last Age nor do these who are daily executed decline that they are bound to obey the King simply but only that they are bound to obey him no otherwise than as far as his Commands are consistent with the Law of God of Nature and of this Kingdom and with the Covenant And their Treason lies in this And when it is asked them Who shall be judge in this they still make themselves Judges And the reason of all Treason being that the Government is not secure it is desired to be known what way the Government can be secured after this paper since the Earl is still Judge how far he is obliged and what is his Loyalty And if this had been sufficient the Covenant had been a very excellent paper for they are there bound to endeavour in their several stations to defend the Kings person but when the King challenged them how they came to make War against him their great Refuge was That they were themselves still Judges as to that And for illustrating this power the Lords of Justitiary are desired to consider Quid Juris if the Earl or any man else should have reserved to himself in this Oath a liberty to rise in Arms or to oppose the lineal Succession tho he had added In a lawful manner for the thing being in it self unlawful this is but sham and Protestatio contraria facto And if these be unlawful notwithstanding of such additions so much more must this general reservation of making any alterations likewise be unlawful notwithstanding of these additions For he that reserves the general power of making any alteration does a fortiori reserve power to make any alteration tho never so fundamental For all particulars are included in the General and whatever may be said against the particulars may much more strongly be said against the general 2. The 130. Act Par. 8. James VI is expressly founded on because nothing can be a greater diminution of the power of the Parliament than to introduce a way or means 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 â—eneral 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 â—â—ly 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
if then he gives in an Explication of the sense which in his private judgment doth apprehend to be the genuine meaning if that private sense be disconform to the Legislators sense in the Oath then the Imposer of the Oath or he that has power to offer it to the party if he consider the parties sense disconform he ought to reject the Oath as not fulfilling the intent of the Law imposing it But it is impossible to state that as a Crime That a party should neither believe what is proposed in the Oath nor be able to take it And he can run no farther hazard but the penalty imposed upon the Refuser And therefore in all Oaths there must be a concourse both of the sense imposed by Authority and of the private Sense Judgment or Conscience of the party And therefore if a party should take an Oath in the Sense proposed by Authority contrary to his own sense he were perjured whereby it is evident that the sense of Authority is not sufficient without the acquiescence and consent of the private person And therefore it is very strange why that part of the Pannel's Explanation should be challenged that he takes it in his own Sense the posterior words making it as plain as the light that that sense of his own is not what he â—pleases to make of the Oath for it bears expresly that no body can explain it but for himself and reconcile it as it is genuine and agrees in its own sense So that there must be a Reconciliation bewixt his own sense and the genuine sense which upon all hands is acknowledged to be the Sense of Authority And if the Pannel had been of these lax and debaucht Principles that he might have evaded the meaning and energy of the Oath by imposing upon it what sense he pleased certainly he would have contented himself in the general refuge of Equivocation or Mental Reservation and he would never have exposed his sense to the world in which he took this Oath whereby he became absolutely fixed and determined to the Oath in that particular sense and so had no latitude of shuffling off the Energy or Obligation of the Oath And it is likewise acknowledged That the Cases alledged in the Reply are true viz. That the person is guilty of Perjury si aliquo novo Commento he would elude his Oath or who doth not fulfil the Oath in the sense of the Imposer But that does not concern this Case For in the foresaid Citation a person after he has taken an Oath finding out some new conceit to elude it he is perjured but in this Case the Pannel did at and before his taking the Test declare the tâ—â—â—s in which he understood it So that this was not novo aliquo commento to elude it And the other Case where a party takes it in the sense of Authority but has some subterfuge or concealed Explanation it is acknowledged to be Perjury But in this Case there was no concealed Explanation but it was publickly exprest and an Explanation given which the Pannel designed and understood as the meaning of Authority and had ground to believe he was not mistaken since upon that Explanation he was received and allowed to sit and vote in Council And as to that part of the Reply that explains the Treason there can be no Treason in the Pannel's Case because the express Act of Parliament founded upon doth relate only to the Constitution of the Parliament And I am sure His Majesties Advocate cannot subsume in theâ—e terms And therefore in the Reply he recurs to the general Grounds of the Law That the usurping of His Majesties Authority in making a part of the Law and to make alterations in general and without the King are high and treasonable words or designs and such as the party pleases and such designs as have been practised the late times And that even the adjection of fair and safe words as in the Covenant does not secure from treasonable Designs and that it was so found in Balmerino's Case tho it bear a fair Narrative of an humble Supplication It is replied That the usurpation of making of Laws is undoubtedly treasonable but no such thing can be pretended or subsumed in this Case For albeit the Pannel declares his Explanation to be a part of his Oath yet he never meaned to impose it as even a part of the Law or that his Explanation should be a thing distinct or a separate part of his Oath For this Explanation being but exegetick of the several parts of the Oath it is no distinct thing from the Oath but declared to be a part of the Oath de natura rei And it was never pretended That he that alledged any thing to be de natura rei did say That that was distinct and separate which were a contradiction And therefore the Argument is retorted the Pannel having declared this Explanation was de natura rei implied in the Oath he necessarily made this 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 not 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 contrariae 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 Docuements 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 Desences which are no ways eluded 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 designs 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 Highness 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 Explanation does evade the Oath by taking it only so far as it is consistent with the Protestant Religion 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 publick Authority to consider whether the Pannels Oath in the terms of the Explication wherein he did take it does satisfie the Act of Palriament or not And if not there can be no rational consequence inferred thereupon but that he is holden as a Refuser of the Oath and liable to the Certification of the Act of Parliament of not assuming and continuing in any publick Trust And no more was intended or designed by the Act of Parliament it self than strictly to make the Oath in the true and genuine sense and meaning of the Parliament an indispensible qualification of persons admitted to publick Trust So that it is not at all material to dispute whether the Pannel's Explication can be looked upon as a full satisfaction of the Act which whether it should or not it can import no Crime against him it not being consistent with Sense and Reason that a person who absolutely refuseth the Test upon the scrupulosity of his Conscience albeit he be not capable of publick Trust should be notwithstanding looked upon as guilty of no Crime and yet another who was willing to go to a greater length albeit he did demur and scruple as to the full length that he should be reputed criminal and guilty of a Crime 2. The Pannel repeats and conjoyns with this the grounds above mentioned contained in his Defences viz. That neither the Crimes libelled nor any other Crime were ever pretended or made use of against any others who did spread abroad Objections of an high nature which yet were so favourably looked upon as to be construed only to proceed from scrupulosity of Conscience as also the satisfaction endeavoured is in such terms and by such condescensions as do take in and justifie the whole terms of the Explication libelled It is of great moment and whereof the Lords of Justitiary are desired to take special notice both for clearing the absolute innocence of the Pannel's meaning and intention and to take off all possible misconstruction that can be wrested or detorted from the tenor and expressions of the libelled Explication That the Pannel was put to and required to take the Oath before the Lords of His Majesties Privy-Council did pass
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 Pannel's 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 aforesaid 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 whereby 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 universal 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 the Crime of Treason which no Lawyer ever allowed except where it was founded upon express Law Luce Meridiana Clarior 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 entred 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 Juramentum 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 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 publickly and 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 the irrefragable opinion of all Divines of whatever peswasion is not only clear from the Authority above-mentioned even those who allow of reserved senses but more especially by the universal suffrage of all Protestant Divines who tho they do abominate all thoughts of Subterfuges or Evasions after taking of the Oath yet they do always allow and advise for the safety and security of a doubting and scrupulous Conscience that they should express and declare before the taking of the Oath the true sense and meaning wherein they have freedom to take it and for which Sandersone de Juramento is cited Prelct 6. Sect. 10. pag. 75. where his words are Sane ut inter Jurandum omnia recte fiant expedit ut de verborum sensu inter omnes partes quarum interest liquido constet quod veteribus dictum liquido Jurare And an Oath being one of the highest Acts of Devotion containing Cultum Latriae there is nothing more consonant to the Nature of all Oaths and to that Candor Ingenuity and Chrstian simplicity which all Law and Religion requires in such cases The Kings Advocate 's Third Plea against the Earl of Argyle HIS Majesties Advocate conceives he has nothing to answer as to depraving Leasing-making and mis-interpreting c. save that this Oath was only designed to exclude Recusants and consequently the Pannel may thereby be debarred from his Offices but not made guilty of a Crime To which he Triplies 1. If ever the Earl had simply refused that had been true but that did not at all excuse from defaming the Law for a defamer is not punished for refusing but for defaming 2. It he had simply refused the Government had been in no more hazard but if men will both retain their places and yet take the same in such words as secure not the Government it were strange to think that the design of the Law being to secure against mens possessing who will not obey that yet it should allow them possession who do not obey Nor is the refuser here in a better case than the Earl
some thoughts that the Earl had set down in Writing in order to some discourse he intended to have made to the Lords of Justiciary before their pronouncing Sentence And then I shall subjoyn the Motives and Arguments which as he hath since informed some of his Friends did induce him to make his escape Which with what I have said before will give you a full account of all matters till His Majesty's return came and the Sentence past And first he takes notice That on Monday the Twelfth of December the day of his Arraignment the Court adjourned before he was aware And it being then late about nine of the Clock and after a sederunt of twelve hours He did not imagine they would have proceeded further that night but only heard afterwards that they sat it out till two or three after midnight And was surprized the next morning to understand that without calling him again or asking at him or hearing or considering his own sense of his own words they had not only found the Libel relevant but repelled his defences and with one breath rejected all his most material reasons of Exculpation root and branch This seemed hard though the words had been worse and no way capable of a favourable construction which none no not the Judges themselves can be so void of sense as to think really they were not and this was so far beyond all imagination that neither the Earl nor his Advocates did ever dream it could fall out though all was not said might have been said nor what was said so fully enforced as the Earl's Advocates could easily have done if the case had not been thought so very clear and the Earl his innocence so obvious and apparent and they unwilling unnecessarily to irritate many concerned This great haste and strange proceeding did so surprise and astonish him as I have said that it caused him the next day when the Sentence was read to keep deep silence and suffer the Interloquutor to be pronounced the Assizers chosen and sworn and the Witnesses received and examined without once offering to say or object any thing or so much as inquiring at either Assizers or VVitnesses whether they had not been tampered with and practised by promises and threatnings or whether some of them had not previously and publickly declared themselves in the Case and others of them had not partially advised and solicited against him Which as they are just and competent Exceptions so he was able to have proven them against most of them instantly and fully And indeed as to such of the Assizers as were Councellors whom for your better information I have marked in the List of Assuzers thus P. Cr. and had first ordered his Imprisonment next signed the Letter to His Majesty and then ordered the Process and therein manifestly fore-stalled their own judgment had they done no more it was a wonder beyond parallel That neither their own Honour nor the common decency of Justice nor even His Majesty's Advocate 's Interest did prevent their being impannelled on that Assize But the truth is the Earl did so far neglect and abandon himself and give way to the Court that he did not so much as open his mouth to clear himself of the Perjury laid to his charge which yet God Almighty was pleased to do by the plurality of voices of the same Assize who it appears plainly did bear him little kindness For whereas Assizers do usually return their Verdict Proven or not Proven rather than Guilty or not Guilty and ought alwise to do so where the relevancy is in dubio and especially in a case of this nature in which the alledged Treason is no overt act and indeed no act nor so much as a real ground of offence but plainly such a subtil chimerical and non-sensical consequence that the finding it doth quite surpass the comprehension of all unbyassed men It might have been expected that persons of their quality would have chosen the more moderate form of proven or not proven and not involved themselves unnecessarily upon Oath in adjudging the relevancy of a guilt which so few are able to imagine and none will ever make out yet you see in their Verdict that all in one voice they did find the Earl Guilty in the most positive and strong form adding for superabundance culpable forsooth the better to demonstrate their good will Nor is it unworthy of remark that when such of the Assizers as were present at the Council declared the Earl Innocent of the Perjury which His Majesty's Advocate did only pretend to infer from the Earls alledged silence or not speaking loud enough the first day when he signed the Test because they heard him at the same time pronounce his explanation Yet some other Assizers that were no Councellors and knew nothing of the matter of fact but by hear-say without all regard to the witnessing of these Counsellors their fellow Assizers voted him Guilty And so took it formally on their Consciences that he had said nothing in the Council at his taking the Test albeit all the Council knew the contrary by which they are clearly perjured Nay such was the earnestness of some who thought it scazce possible to carry the Treason upon words so safe and innocent to have the Earl found guilty of Perjury that it was particularly recommended to His Majesty's Advocate to get him made guilty of that point to render him for ever uncapable of publick employment And the Clerk of the Assize was so concerned in it that he twice misreckoned the Votes before he would yield that the Earl was assoiled or acquit of the Perjury And this among other things may serve to clear how that whole matter was influenced and managed For as the Earl cannot be charged with Perjury the second day because he swore none at all so as little the first day seeing whether he took the Test with an Explanation as certainly he did or simply without saying any thing It is equally apparent there was no Perjury in the case But it appears their Assizers were of the Opinion that the Indictment or Libel alone as it was indeed the only evidence was a sufficient proof of the Earl his being guilty of Perjury And indeed for any other Rule or Reason that occurs They might as well have found him guilty of the Perjury as of the Treason But the Assizers that were Councellors being under a particular check apprehending they might be found perjured themselves if they had not acknowledged the hearing of the words that all others present could have attested to have been audibly spoken and some of themselves have confessed to have heard before they knew the tenor of the Libel And the great Crime of Treason being sufficient to do the Job it is like they judged it advisable to give this insignificant absolution from Perjury That their Virdict of Treason might have the greater colour and shew of candor and sincerity However it seems to be without
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 therefore 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 do take it tho 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 lawful 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 tho 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 sides of a contradiction that is both the Affirmative and Negative of the same Proposition Treason is beyound ordinary Logick Escobar finds two contrary ways may both be probable and safe ways to go to Heaven but neither he nor the Devil himself have hitherto 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 heard of The Bishop of Edinburgh sees it not witness his Vindication saying the same and more nor many of the Orthodox Clergy witness their Explanations nor his Royal Highness in private 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 Chancellor 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 wonderful Treason one day seen by none another day seen by so many A Stander-by hearing the Trial and the Sentence said He believed the Earl's words were by Popish Magick transubstantiate 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 belief of Transubstantiation but he believed many that professed both believed neither The second Head of the Earl's Additional Defence contains the impertinencies and absurdities of the Advocate 's Arguings And here you must not expect any solid debate For as there is no disputing with those that deny Principles so as little 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 equal 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 therefore serve by a cursory Discourse to expose his Arguments which are in effect easier answered than understood and without any serious arguing which they cannot bear rather leave him to be wise in his own eyes than 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 enjoined it which is certainly a great Crime But now Inasmuch says the Advocate as he tells us That he had considered the Test Which I have indeed heard 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 says that he was desirous to give obedience as far as he could whereby says the Advocate he insinuates that he was not able to give full obedience This is not the meaning but what if it were and that indeed he could not Have not thousands given no obedience yet even in Law are guiltless And ought not that to please his Highness and the Council that is accepted of God Almighty and is all any Mortal can perform But the Earl says the Advocate goes on That he was confident the Parliament never intended to impose contradictory Oaths whereby says the Advocate he abuses the People with a belief that the Parliament did intend to impose such Wonderful reasoning All men know that Parliaments neither are nor pretend to be infallible And in our present Case hundreds of Loyal Subjects complain of Contradictions and Inconsistencies some way or other crept into this Oath And even the Council have yielded so far to their Exceptions as to make an alteration upon it for satisfying those scruples far beyond any thing the Earl said and such an alteration as I believe few dreamed of and I am certain none durst have attempted without their express command and authority and yet in the midst of all this the Earl's charitable and honest Opinion in behalf of the Parliaments good Intentions must be perverted to a direct slander But the Earl says That every man must explain it for himself and so no doubt he must if the Test be either in it self or in his apprehension ambiguous otherwise how can he swear in Judgment But this the Advocate will have to be a man 's own sense and thereupon runs out That hereby this Law and Oath and all Laws and Oaths are rendred useless and to no purpose And further the Legislative Power is taken from the Imposer and setled in the Taker of the Oath which certainly is a most treasonable presumption But first although there be no reason to strain or mistake the Expression yet the Earl did not say That every man must take the Test in his own sense II. The Council hath now explained the Test for the Clergy Might not then the Earl before their Explanation was devised say by the Councils allowance which he had That he might explain it for himself For if an ambiguous Proposition the Test for example may be reconciled to it self two different ways must not the Taker reconcile it as in his own sense he thinks it doth best agree with the genuine meaning of the words themselves and with the sense he conceives was intended by the Parliament that formed it especially before the Parliament emit their own Explanation And is it not juster to do it so than in any other
man's sense which he thinks agrees less with the words albeit they may be thought by others to be reconcileable another way III. All this looks like designed Mistakes and Traps for should any man swear unless he understand And where an Oath is granted to be ambiguous can any man understand unless in want of the Imposers help he explain it for himself IV. Was ever a Man's explaining an Oath for himself before taking it far less his bare saying that he must explain it before he take it alledged to be The overturning of all Laws and Oaths and the usurping of the Legislative power and making of new Laws Certainly to offer to answer such things were to disparage common Reason And lastly this is strange Doctrine from the Advocate who himself in Council did allow not only the Earl his Explanation but that Explanation to the Clergy contrary as appears by their Scruples to what they that took it thought either the Parliaments design or the plain words of the Test could bear and certainly different from the sense many had already taken it in and wherein others were commanded to take it And whatever the Advocate may cavil to insnare the Earl sure he will not allow that by his explaining this Oath he himself hath taken on him the Legislative power of the Parliament far less though he should acknowledg it will any believe that he hath or could thereby make all Laws or Oaths useless By this you see what strange stuff he pleads which deserves no answer But says the Advocate the Earl affirms He takes the Test only as far as it consists with it self and with the Protestant Religion by which he most maliciously insinuates that it is inconsistent with both But first this only is not the Earl's but the Advocates addition Secondly I would soberly ask the Advocate or any Man Whether the Test as it includes the Confession in general and consequently all contained in it was not either really or at least might not have been apprehended to be inconsistent with it self Else what was the use or sense of the Councils explanation wherein it is declared That men do not swear to every proposition of the Confession but only to the Protestant Religion therein contained And if it was either inconsistent or apprehended to be so how could the Earl or any honest Man swear it in other terms with a safe Conscience But Thirdly If Parliaments be fallible and this Oath as being ambiguous needed the Councils explanation to clear it from inconsistencies must the Earl's words when he was to swear That he took it in so far as it was consistent be in this Case understood as spoken maliciously and with a criminal intent when all Sense Reason and Religion made this caution his duty And if it be so criminal for one going to swear to suppose a possibility of inconsistencies in it Is it not manifestly more criminal in others plainly to confess and grant that there are inconsistencies in it after they have swallowed it in gross without any explanation whatsoever But says the Advocate The Earl hath invented a new way whereby no Man is at all bound to the Test For how can any Man be bound if he will obey only as far as he can And yet it will be hard even for the Advocate tho he sometimes attempts indeed more than he and all the World with him can do To tell how a Man can obey farther And I am sure that in a matter of this kind viz. The free tender of an Oath all discreet men will judge the Earl's offer both frank and obliging Then he asks To what the Earl is bound if he be bound no further than he himself can obey Manifest confusion and never either spoke by the Earl nor at all pertinent to his case besides he freely acknowledges that all men are bound to more than they can do or so far as the Test is consistent with it self and the Protestant Religion a strange doubting or yet I dare say imports as much as His Majesty expects of any and more than the Advocate will ever perform But says the Advocate who can determine to what the Earl is bound Which says plainly That either the Test agrees with it self and the Protestant Religion in nothing or that the Protestant Religion is nothing both which the Earl thinks far from truth But the Advocate 's reasoning reflects far more on the Councils Explanation where it is plainly said That the Confession is not sworn to in the Test but only the Protestant Religion contained in the Confession so that the Protestant Religion indefinitely is that which is said to be sworn to Now pray is it not much worse for a Man to say That by taking the Test he swears only to the Confession as it contains or agrees with the Protestant Religion which is in effect to set the Protestant Religion at variance with its own Confession and so to reproach and ranverse the standard and make void the very security that the Parliament intended than to say That he swears the Test as it agrees with it self and the Protestant Religion which imports no such insinuation But from these pleasant Principles he jumps into this Fantastick Conclusion That therefore it cannot be denied but the Earl's interpretation destroys not only this Act but all Government and makes every Man's Conscience or Humour the Rule of his obedience But first as to the whole of his arguing the Earl neither invents says nor does any thing except that he offered his Explanation to the Council which they likewise accepted Secondly What mad inferences are these You say you will explain this Oath for your self therefore you overturn all Government and what 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 without 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 Thirdly It is false that the Earl doth make his Conscience any other way the rule of his obedience than 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 insinuates of Humour instead 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 inculcates that the Earl had sworn nothing But it is plain that to swear nothing is none of the crimes libelled Secondly The Earl swears positively to the Test as it is consistent with it self and the Protestant Religion which certainly is something unless the Advocate prove as he insinuates that there is
nothing in the Test consistent with either And 3dly 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 says That the Earl expresly declares he means not by the Test to bind up himself from wishing or endeavouring in his station and in a lawful way any alteration he shall think for the advantage of Church or State whereby says 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 what alterations they please A direct contrariety instead of a just consequence as if to be tied to Law 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 alterations 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 2dly For a man to endeavour in his station and in a lawful way 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 sworn Duty of all His Majesty's Councellors and of all Members of Parliament But the Advocate by fancying and misapplying Laws 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 lawful way 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 and in very material Points and the King 's best Subjects and greatest Favourites have both endeavoured and effectuate them And yet because the things were done according to the Earl's qualifications instead of being accounted Treason they have been highly commended and 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 College of Justice the right of whose places was thought to be founded on an Act of Parliament giving His Majesty the prerogative only 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 wished 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 alterations in general not to be of it self a thing indifferent and 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 intrinsically evil a Notion never to be admitted on Earth in the frail and fallible condition of humane 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 King's Authority is Treason and says If the Earl had reserved to himself a liberty to rise in Arms against the King tho he had added in a lawful manner yet it would not have availed because and he says well This being in it self unlawful the qualification had been but shams and contrariae facto But why then doth not his own reason convince him where the difference lies viz. That rising in Arms against the King is in it self 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 says the Advocate The Earl declares himself free to make all alterations and so he would make Men believe that the Earl is for making All or Any without any reserve whereas the Earl's words are most express that he is Neither for making all or any but only for wishing and endeavouring for such as are good and lawful and in a lawful way which no Man can disown without denying common reason nor no sworn Councellor disclaim without manifest Perjury But the Advocate 's last conceit is That the Earl's restriction is not as the King shall think fit 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 Earlâ—s Loyalty from those of His Majesty's best Subjects so Is it not a marvellous thing that the Advocate should profess to think for in reality he cannot think it the Earl's words His Loyalty which all men see to be the same with his Duty and Fidelity or what else can bind him to his Prince capable of any quibble far more to be a ground of so horrid an accusation And whereas the Advocate says 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 refers 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 dutiful than that which the Advocate seems to desiderate And if the Earl's restrictions had not been full enough it was the Advocate '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 believed the Advocate can yet hardly propose restrictions more full and suitable to Duty
Praerogativas Ejusdem Et quod non intendo per hujusmodi juramentum vel juramenta quovis modo me obligare qui minus libere loqui consulere aut consentire valeam in omnibus singulis Reformationem Religionis Christianae Gubernationem Ecclesiae Anglicanae Praerogativam Coronae ejusdem Reipublicae vel commoditatem earundem quoquo modo concernentibus ea ubique exequi reformare quae mihi in Ecclesia Anglicana reformanda videbuntur Et secundum hanc interpretationem intellectum hunc non aliter nequa alia modo dictum juramentum me praestiturum protestor profiteor That is to say In the name of God Amen Before you c. It neither is nor shall be my will or meaning by this kind of Oath or Oaths and however the words of themselves shall seem to sound or signify to bind up my self by vertue hereof to say do or endeavour any thing which shall really be or appear to be against the Law of God or against our most Illustrious King of England or against his Laws and Prerogatives And that I mean not by this my Oath or Oaths any ways to bind up my self from speaking consulting and consenting freely in all and every thing in any sort concerning the Reformation of the Christian Religion the Government of the Church of England and the Prerogative of the Crown of the Commonwealth thereof or their advantage and from executing and reforming such things as I shall think need to be reformed in the Church of England And according to this Explanation and sense and not otherwise nor in any other manner do I protest and profess that I am to take and perform this Oath Nor did that excellent Person says Mr. Fuller smother this privately in a corner but publickly interposed it three several times once in the Charter-house before authentick Witnesses again upon his bended knees before the high Altar in view and hearing of many People and Bishops beholding him when he was consecrated and the third time when he received the Pall in the same place Now would it not be very strange if the like liberty should not be allowed to the Earl under His Majesty in reference to the Test which Henry the VIIIth a Prince that stood as much on his Prerogative as ever any did vouchsafe to this Thomas Cranmer who as another Historian observes acted fairly and above-board But there wanted then the high and excellent Designs of the great Ministers the rare fidelity of Councellors sound Religion and tender piety of Bishops solid Law and Learning of Advocates incorruptible Integrity of Judges and upright honesty of Assizers that now we have to get Archbishop Cranmer accused and condemned for Leasing-making depraving Laws Perjury and Treason to which Accusation his Explanation was certainly no less obnoxious than the Earl's But I hasten to the fourth and last Head of the Earl's Additional Defences viz. The removing certain groundless Pretences alledged by the Advocate for aggravating the Earl's Offence As 1. That the Earl being a Peer and Member of Parliament should have known the sense of the Parliament and that neither the Scruples of the Clergy nor the Council's Proclamation designed for meer Ignorants could any way excuse the Earl for offering such an Explanation But first the Advocate might have remembred that in another Passage he taxes the Earl as having debated in Parliament against the Test whereby it is easie to gather that the Earl having been in the matter of the Test a dissenter this quality doth rather justify than aggravate the Earl's Scrupling 2dly If the Proclamation was designed for the meer Ignorants of the Clergy as the Advocate calls them who knew nothing of what had past in Parliament an Explanation was far more necessary for the Earl who knows so little of what the Advocate alledges to have past in Parliament viz. That the Confession of Faith was not to be sworn to as a part of the Test that of necessity as I think he must know the contrary Inasmuch as first this is obvious from the express tenor of the Test which binds to own and profess the true Protestant Religion contained in the Confession of Faith and to believe the same to be agreeable to the Word of God as also to adhere thereto and never to consent to any change contrary to or inconsistent with the said Protestant Religion and Confession of Faith Which to common sense appears as plain and evident as can be contrived or desired But 2dly It is very well known that it was expresly endeavoured and carried in Parliament that the Confession of Faith should be a part of the Test and Oath For the Confession of Faith being designed to be sworn to by an Act for securing the Protestant Religion which you have heard was prepared in the Articles but afterwards thrown out when this Act for the Test was brought into the Parliament some days after by the Bishop of Edinburgh and others the Confession was designedly left out of it But it being again debated that the bare naming of the Protestant Religion without condescending on a Standard for it was not sufficient the Confession of Faith was of new added And after the affirmative Clause for owning it and adhering to it was insert upon a new motion the negative never to consent to any alteration contrary to or inconsistent with the said Protestant Religion and Confession of Faith was also subjoined But not without a new debate and opposition made against the words And Confession of Faith by the Bishop of Edinburgh until at length he also yielded All which it is hoped was done for some purpose And if at that time any had doubted of the thing he had certainly been judged most ridiculous For it was by that addition concluded by all That the Confession was to be sworn And further it appears plainly by the Bishop of Edinburgh his Vindication that when he wrote it he believed the Confession was to be sworn to for he takes pains to justify it though calumniously enough alledging That it was hastily compiled in the short space of four days by some Barons and Ministers in the infancy of our Reformation Where by the by you see that he makes no reckoning of what the Act of Parliament to which the Test refers expresly bears viz. That that second Ratification 1567. which we only have recorded was no less then seven years after this Confession was first exhibited and approven Anno 1560. But moreover he tells us That the Doctors of Aberdeen who refused the Covenant were yet willing not only to subscribe but to swear this Confession of Faith Which again to answer the Bishops Critick of Four days was more than 70. years after it was universally received It 's true that when the Bishop finds himself straitned how to answer Objections he is forced to make use of the new Gloss I shall not call it of Orleans whereby the Protestant Religion is made to be
that the Earl never troubled him about any such matter nor solicited him now these Eighteen years for any Title Office or Imployment though he confesses he had of all sorts nor hath he been burthensom to His Majesty's Exchequer 500 l. yearly for four or five years that the Earl served in the Treasury being all that ever he touched of his Majesty's Money albeit few attended more and none so much that lived at his distance He was also twice at London to kiss His Majesty's hand but still on his own Charges Which things are not said to lessen His Majesty's bounty and goodness whereof the Earl still retains all just tender and dutiful impressions but to answer the Advocate and to teach others to hold their peace that cannot say so much His Life is known to have been True Honest and of a piece and all alongs he hath walked with that straightness that he can compare his Integrity with all that now attacque him By all which it is apparent That what the Advocate here pretends for an aggravation may wâ—ll be accounted a Second part of the Earl's Persecutions but cannot in the least impair either his Innocence or his Honour Seeing therefore the ground of the Earl's present accusation with all he either designed said oâ— did in this matter was only that when called nay required to take the Test and after leave first obtained from his Highness and Council he did in their presence before the giving of his Oath declare and propose to them the sense wherein he was willing to take it That this his sense neither contains nor insinuates the least slander reproach or reflection either upon the King the Parliament or any Person whatsomeever but on the contrair is in effect tenfold more agreeable to the words of the Test and meaning of the Parliament that framed it than the Explanation emitted by the Council and was also most certainly the first day by them accepted and when the next day challenged by him offered to be retracted and refused to be signed That the whole Indictment and more especially that part of it about the Treason is a meer Rapsody of the most irrational absurd and pernicious consequences that ever the Sun beheld not only forcing the Common rules of Speech Charity and Humanity but ranversing all the Topicks of Law Reason and Religion and threatning no less in the Earl's person than the ruine of every Man's Fortune Life and Honour That the Earl's Defences and grounds of Exculpation were most pregnant and unanswerable and either in themselves notour or offered to be instantly verified And lastly That the aggravations pretended against him do either directly make for him or most evidently discover the restless malice of some of his implacable enemies Shall our Gracious King who not only clearly understands Right and hates Oppression but also to all his other excellent qualities hath by his Gentleness and Clemency even towards his Enemies added that great Character of Goodness upon vain and false insinuations and unreasonable and violent stretches not only take away the Life of an innocent person but of one who himself and his Family be it said without disparagement have for a longer time and more faithfully and signally served His Majesty and the Crown than any person or Family of his degree and quality of all his Persecutors can pretend to Shall his numerous Family hopeful Children his Friends and Creditors all be destroyed Shall both former Services be forgot Innocence oppressed and all Rules of Justice and Laws of society and humanity for his sake overturned Shall not only the Earl be cut off and his noble and ancient Family extinguished but his Blood and Memory tainted with as black and horrible a stain as if he had conspired with Jacques Clement Ravillack The Gun-powder Miscreants The Bloody Irish Rebels and all the other most wicked and hainous Traytors of that Gang And all this for a meer imaginary Crime whereof it is most certain that no Man living hath or can have the least real conviction and upon such frivolous allegations as all men see to be at the top meer Moon-shine and at the bottom Villany unmixed After clearing these things the Earl it seems intended to have addressed himself to His Majesty's Advocate in particular and to have told him that he had begun very timeously in Parliament to fall first on his heritable jurisdictions and then upon his Estate and that now he was fallen upon his Life and Honour whereby it was easie to divine that more was intended from the beginning than the simple taking away of his Offices seeing that some of them on his refusing the Test were taken away by the Certification of the Act of Parliament and that those that were heritable he offered in Parliament to present and surrender to His Majesty on his knee if His Majesty after hearing him should think it fit only he was not willing to have them torn from him as hath been said and if that were all were designed as was at first given out the Advocate need not have set him on high as Naboth and accuse him as a Blasphemer of God and the King Then turning his Speech to the Lords of Justitiary he thought to have desired that they would yet seriously consider his words in their true sense and circumstances his own Explanation of his Explication and especially the foregoing matter of Fact to have been laid before them with his Defences and grounds of Exculpation as also to have told them That they could not but observe how that he was singled out amongst Thousands against whom much more then all he is charged with could be alledged and that they must of necessity acknowledg if they would speak out their own Conscience that what he had said was spoke in pure innocence and duty and only for the exoneration of himself as a Christian and one honoured to be of His Majesty's Privy Council where he was bound by his Oath to speak truth freely and not to throw the smallest reproach on either person or thing Adding That he was loath to say any thing that looks like a reflection upon His Majesty's Privy Council but if the Council can wrong one of their own number he thought he might demand If he had not met with hard measure For first he was pressed and persuaded to come to the Council then they receive his Explanation and take his Oath then they complain of him to His Majesty where he had no access to be heard and by their Letter under their hands affirm That they had been careful not to suffer any to take the Test with their own Explanations albeit they had allowed a thing very like it first to Earl Queensberry then to the Clergy And the President now Chancellour had permitted several Members of the College of Justice to premise when they swear the Test some one sense and some another and some nonsense as one saying he took it in sano sensu
It seems therefore from the words of the Oath that there is no bound or limit set save their own understanding or Conscience to restrain them to any number or sort of persons of whom they are bound to enquire they ought first and principally to enquire of one another mutually what knowledg each of them hath of any matters in question before them the Law presumes that some at least of so many sufficient men of a County must know or have heard of all notable things done there against the publick peace for that end the Juries are by the Law to be of the Neighbourhood to the place where the crimes are committed If the parties and the facts where of they are accused be known to the Jury or any of them their own knowledg will supply the room of many Witnesses Next they ought to enquire of all such Witnesses as the Prosecutors will produce against the Accused they are bound to examine all fully and prudently to the best of their skill every Jury-man ought to ask such questions by the Fore-man at least as he thinks necessary to resolve any doubt that may arise in him either about the Fact or the Witnesses or otherwise if the Jury be then doubtful they ought to receive all such further Testimony as shall be offered them and to send for such as any of them do think able to give Testimony in the case depending If it be asked how or in what manner the Juries shall enquire the Answer is ready According to the best of their understandings They only not the Judges are sworn to search diligently to find out all Treasons c. within their charge and they must and ought to use their own discretion in the way and manner of their Enquiry No directions can legally be imposed upon them by any Court or Judges An honest Jury will thankfully accept good Advice from Judges as they are Assistants but they are bound by their Oaths to present the Truth the whole Truth and nothing but the Truth to the best of their own not the Judges knowledg Neither can they without breach of that Oath resign their Consciences or blindly submit to the dictates of others and therefore ought to receive or reject such Advices as they judge them good or bad If the Jury suspect a Combination of Witnesses against any Man's Life which perhaps the Judges do not discern and think it needful to examine them privately and separately the discretion of the Juries in such a case is their only best and lawful guide though the example of all Ages and Countries in examining suspected Witnesses privately and separately may be a good direction to them Nothing can be more plain and express than the words of the Oath are to this purpose The Jurors need not search the Law-Books nor tumble over heaps of old Records for the explanation of them Our geatest Lawyers may from hence learn more certainly our ancient Law in this case than from all the Books in their Studies The Language wherein the Oath is penned is known and understood by every Man and the words in it have the same signification as they have wheresoever else they are used The Judges without assuming to themselves a Legislative Power cannot put a new sense upon them other than according to their genuine common meaning They cannot Magisterially impose their Opinions upon the Jury and make them forsake the direct words of their Oath to pursue their glosses The Grand Inquest are bound to observe alike strictly every part of their Oath and to use all just and proper ways which may enable them fully to perform it otherwise it were to say that after men had sworn to enquire diligently after the Truth according to the best of their knowledg they were bound to forsake all the natural and proper means which their Understandings suggest for the Discovery of it if it be commanded by the Judges And therefore if they are jealous of a Combination of the Witnesses or that Corruption and Subornation hath been made use of they cannot be restrained from asking all such Questions as may conduce to the sifting out of the Truth nor from examining the Witnesses privately and separately Fort. D. Laud. Leg. Ang. cap. 26. lest as Fortescue says the saying of one should provoke or instruct others to say the like Nor are the Jury tied up to enquire only of such Crimes as the Judges shall think fit to give them directly in charge much less of such Bills only as shall be offered to them but their Enquiry ought to extend to All other Matters and Things which shall come to their Knowledg touching the present Service If they have ground to suspect that any Accusation before them proceeds from a Conspiracy they are obliged by their Oaths to turn the Enquiry that way and if they find cause not only to reject the Bills offered upon such Testimonies but to Indict such Witnesses and all the Abettors of their Villany They are carefully to examine what sort of men the Witnesses are for 't is a Rule in all Laws That Turpes à Tribunalibus arcentur Vile Persons ought to be rejected by Courts of Justice Such Witnesses would destroy Justice instead of promoting it And the Grand Jury are to take care of admitting such They may and ought if they have no certain knowledge of them to ask the Witnesses themselves of their Condition and way of living and all other Questions which may best inform them what sort of men they are 'T is true it may be lawful for the Witnesses in many cases to refuse to give answer to some demands which the Jury may make as where it would be to accuse themselves of Crimes but yet that very refusal or avoiding to give direct Answers may be of great use to the Jury whose only business is to find out the Truth and who will be in a good measure enabled to judge of the Credit of such Witnesses as dare not clear themselves of Crimes which common Fame or the knowledg of some of the Grand Inquest has charged them with If the Witnesses which come before the Grand Jury upon an Indictment for Treason should discover upon their examination that they concealed it a long time without just Impediment The presumption of Law will be strong against them that no sense of Honesty or of their duty brought them at last to reveal it It appears by Bracton that ancient Writer of our Laws Brac. L. 3. c. 3. Non morari debet c. nec debet ad aliqua negotia quamvis urgentissima se convertere quia vix permittitur ei quod retro aspiciat c. Si post intervallum accusare velit non erit de Jure audiendus S.G. Mackenzy Crim. Law lib. 26.3 that in Cases of Treason the Juries were in his days advised as now they ought to be so severe in their Enquiry within what time the Witnesses discovered the Treason after it came
Witnesses ought to be free from all blemish that good and Conscientious Men may rationally rely upon them in matters of so great moment as the blood of a Man It must also be certainly evident that all the matters which they depose are consistent with each other and accompanied with such Circumstances as in their Judgment render it credible All just Indictments must be built upon these moral assurances which the wisdom of all Nations hath devised as the best and only way of deciding Controversies Neither can a Grand Jury Man who swears to present nothing but the Truth be satisfied with less 'T is scarce credible that any learned in our Laws should tell a Grand Jury that a far less Evidence will warrant their Indictment being but an Accusation than the Petit Jury ought to have for their Verdict Both of them do in like manner plainly and positively affirm upon their Oaths the Truth of the Accusation Their Verdicts are indeed one and the same in substance and sence tho' not in words There is no real difference between affirming in writing that an Indictment of Treason is true as is the practice of Grand Juries and saying that the party tried thereupon is guilty of the Treason whereof he is indicted as is the course of Petit Juries They are both upon their Oaths they are equally obligatory unto both the one therefore must expect the same proof for their satisfaction as the other and as clear Evidence must be required for an Indictment as for a Verdict It is unreasonable to think that a slighter proof should satisfie the Consciences of the greater Jury than is requisite to convince the less and uncharitable to imagine that those should not be as sensible as the others of the Sacred security they have given by Oath to do nothing in their Offices but according to truth If there ought to be any difference in the Proceedings of the Grand and Petit Juries the greater exactness and diligence seems to be required in the Grand For as the same work of finding out the truth in order to the doing of Justice is allotted unto both the greatest part of the burthen ought to lye upon them that have the best opportunities of performing it The invalidity weakness or defects of the Proofs may be equally evident to either of them But if there be deceit in stifling true Testimonies or malice in suborning wicked Persons to bring in such as are false the Grand Jury may most easily nay probably can only discover it They are not straitned in time they may freely examine in private without interruption from the Council or Court such Witnesses as are presented unto them or they shall think fit to call they may joyntly or severally enquire of their Friends or Acquaintance after the Lives and Reputations of the Witnesses or the accused Persons and all circumstances relating unto the matter in question and consult together under the Seal of Secrecy On the other side the Petty Jury being charged with the Prisoner acts in open Court under the awe of the Judges is subject to be disturb'd or interrupted by Council deprived of all opportunity of consulting one another until the Evidence be summ'd up and not suffered to eat or drink until they bring in a Verdict so it is almost impossible for them thus limited to discover such evil practices as may be used for or against the Prisoner by Subornation or Perjury to pervert Justice if therefore the Grand Jury be not permitted to perform this part of their duty it is hard to imagine how it should be done at all And it is much more inconceivable how they can satisfie their Consciences if they so neglect as to find a Bill upon an imperfect Evidence in the absence of the Prisoner in expectation that it will be supplied at the Bar It concerns them therefore to remember that if they proceed upon such uncertainties they will certainly give incurable wounds into their Neighbours Reputations in order unto the destruction of their Persons Whatever ground this Doctrine of Indicting upon slight proofs may have got in our days it is as we have seen both against Law and Reason and contrary to the practice of former times My Lord Coke in his Comment on Westm 2d tells us That in those days and as yet it ought to be Indictments taken in the Absence of the Party were formed upon plain and direct Proofs and not upon Probabilities and Inferences Herein we see that the practice of our Fore-Fathers and the opinion of this great and judicious Lawyer were directly against this new Doctrine and some that have carefully looked backward observed that there are very few Examples of men acquitted by Petit Juries because Grand Juries of old were so wary in canvasing every thing narrowly and so sensible of their Duty in proceeding according unto truth upon satisfactory Evidence that few or none were brought unto Trial till their guilt seemed evident It is therefore a great mistake to think that the second Juries were instituted for the hearing of fuller proofs that was not their work but to give an opportunity to the accused persons to answer for themselves and make their defence which cannot be thought to strengthen the Evidence unless they be supposed to play booty against their own Lives By way of answer the Prisoner may avoid the Charge He is permitted to take exceptions he may demur or plead to the Indictments in points of Law Herein the Judges ought to assist him and appoint Councel if he desire it He may shew that the Indictors i. e. the Grand Jury or some of them are not lawful men or not lawfully returned by the Sheriffs embracery or practice may be proved in the packing of the Jury A Conspiracy or Subornation may be discovered falshood may be found out in the Witnesses by questions about some circumstances that none could have asked or imagined except the party accused And besides doing right to the Indicted in these and many other things 't is the Peoples due to have all the Evidence first taken in private to be afterwards made publick at the Trial that the Kingdom may be satisfied in the equal administration of Justice and that the Judgments against Criminals may be of greater terrour and more useful to preserve the common peace If any object that this Doctrine would introduce double Trials for every offence and all the delays that accompany them it may be answered That Nulla unquam de morte hominis cunctatio Longa est Ju. Sat. No delay is to be esteemed long when the life of a man is in question The punishment of an Offender that is a little deferred may be compensated by its severity but blood rashly spilt cannot be gathered up and a Land polluted by it is hardly cleansed Wise and good men in matters of this nature have ever proceeded with extream caution whilst the swift of foot are in the Scripture represented under an ill
had received from Christ they were the Judges even of the Scripture it self many years after the Apostles which Books were Canonical and which were not And if they had this power then I desire to know how they came to lose it and by what Authority men separate themselves from that Church The only pretence I ever heard of was because the Church has fail'd in wresting and interpreting the Scripture contrary to the true sence and meaning of it and that they have imposed Articles of Faith upon us which are not to be warranted by God's word I do desire to know who is to be Judge of that whether the whole Church the Succession whereof has continued to this day without interruption or particular men who have raised Schims for their own advantage This is a true Copy of a Paper I found in the late King my Brothers Strong Box written in his own Hand JAMES R. The Second Paper IT is a sad thing to consider what a world of Heresies are crept into this Nation Every man thinks himself as competent a Judge of the Scriptures as the very Apostles themselves and 't is no wonder that it should be so since that part of the Nation which looks most like a Church dares not bring the true Arguments against the other Sects for fear they should be turned against themselves and confuted by their own Arguments The Church of England as 't is call'd would fain have it thought that they are the Judges in matters Spiritual and yet dare not say positively that there is no Appeal from them for either they must say that they are Infallible which they cannot pretend to or confess that what they decide in matters of Conscience is no further to be followed then it agrees with every mans private Judgment If Christ did leave a Church here upon Earth and we were all once of that Church how and by what Authority did we separate from that Church If the power of Interpreting of Scripture be in every mans brain what need have we of a Church or Church-men To what purpose then did our Saviour after he had given his Apostles power to Bind and Loose in Heaven and Earth add to it that he would be with them even to the end of the World These words were not spoken Parabolically or by way of Figure Christ was then ascending into his Glory and left his Power with his Church even to the End of the World We have had these hundred years past the sad effects of denying to the Church that Power in matters Spiritual without an Appeal What Country can subsist in peace or quiet where there is not a Supream Judge from whence there can be no Appeal Can there be any Justice done where the Offenders are their own Judges and equal Interpreters of the Law with those that are appointed to administer Justice This is our Case here in England in matters Spiritual for the Protestants are not of the Church of England as 't is the true Church from whence there can be no Appeal but because the Discipline of that Church is conformable at that present to their fancies which as soon as it shall contradict or vary from they are ready to embrace or joyn with the next Congregation of People whose Discipline and Worship agrees with their Opinion at that time so that according to this Doctrine there is no other Church nor Interpreter of Scripture but that which lies in every mans giddy brain I desire to know therefore of every serious Considerer of these things whether the great work of our Salvation ought to depend upon such a Sandy Foundation as this Did Christ ever say to the Civil Magistrate much less to the People that he would be with them to the end of the World Or did he give them the Power to forgive Sins St. Paul tells the Corinthians Ye are Gods Husbandry ye are Gods Building we are Labourers with God This shews who are the Labourers and who are the Husbandry and Building And in this whole Chapter and in the preceeding one St. Paul takes great pains to set forth that they the Clergy have the Spirit of God without which no man searcheth the deep things of God and he concludeth the Chapter with this Verse For who hath known the mind of the Lord that he may instruct him But we have the mind of Christ Now if we do but consider in humane probability and reason the powers Christ leaves to his Church in the Gospel and St. Paul explains so distinctly afterwards we cannot think that our Saviour said all these things to no purpose And pray consider on the other side that those who resist the truth and will not submit to his Church draw their Arguments from Implications and far fetch'd Interpretations at the same time that they deny plain and positive words which is so great a Disingenuity that 't is not almost to be thought that they can believe themselves Is there any other foundation of the Protestant Church but that if the Civil Magistrate please he may call such of the Clergy as he thinks fit for his turn at that time and turn the Church either to Presbytery Independency or indeed what he pleases This was the way of our pretended Reformation here in England and by the same Rule and Authority it may be altered into as many more Shapes and Forms as there are Fancies in mens Heads This is a true Copy of a Paper written by the late King my Brother in his own Hand which I found in his Closet JAMES R. A LETTER Containing some Remarks on the Two Papers writ by His late Majesty King CHARLES the Second Concerning Religion SIR I Thank you for the two Royal Papers that you have sent me I had heard of them before but now we have them so well attested that there is no hazard of being deceived by a false Copy you expect that in return I should let you know what impression they have made upon me I pay all the reverence that is due to a Crowned Head even in Ashes to which I will never be wanting far less am I capable of suspecting the Royal Attestation that accompanies them of the truth of which I take it for granted no man doubts but I must crave leave to tell you that I am confident the late King only copied them and that they are not of his Composing for as they have nothing of that free Air with which he expressed himself so there is a Contexture in them that does not look like a Prince and the beginning of the first shews it was the effect of a Conversation and was to be communicated to another so that I am apt to think they were Composed by another and were so well relished by the late King that he thought fit to keep them in order to his examining them more particularly and that he was prevailed with to Copy them lest a Paper of that nature might have been made a
Bargain till it is fully stated and cleared or indeed so much as engage in a Treaty till by way of preliminary all possibility shall be remov'd of any Trouble or Dispute XVI There is a collateral Circumstance in making a Contract which yet deserveth to be considered as much as any thing that belongeth to it and that is the Character and Figure of the Parties contracting if they treat only by themselves and if by others the Qualifications of the Instruments they employ The Proposer especially must not be so low as to want Credit or so raised as to carry him above the Reach of ordinary Dealing In the first There is Scandal in the other Danger There is no Rule without some Exception but generally speaking the Means should be suited to the End and since all Men who treat pretend an equal Bargain it is desirable that there may be Equality in the Persons as well as in the Thing The Manner of doing things hath such an Influence upon the Matter that Men may guess at the End by the Instruments that are used to obtain it who are a very good Direction how far to rely upon or suspect the Sincerity of that which is proposed An Absurdity in the way of carrying on a Treaty in any one Circumstance if it is very gross is enough to perswade a thinking Man to break off and take warning from such an ill Appearance Some things are so glaring that it is impossible to see and consequently not to suspect them as suppose in a private Case there should be a Treaty of Marriage between two Honorable Families and the proposing side should think fit to send a Woman that had been Carted to perswade the young Lady to an Approbation and Consent the unfitness of the Messenger must naturally dispose the other Party to distrust the Message and to resist the Temptation of the best Match that could be offered when conveyed by that Hand and ushered in by such a doscouraging Preluminary In a publick Instance the Suspicion arising from unfit Mediators still groweth more reasonable in Proportion as the Consequence is much greater of being deceived If a Jew should be employed to sollicit all sorts of Christians to unite and agree the Contrariety of his Profession would not allow Men to stay till they heard his Arguments they would conclude from his Religion that either the Man himself was mad or that he thought those to be so whom he had the Impudence to endeavour to perswade Or suppose an Adamite should be very sollicitous and active in all places and with all sorts of Persons to settle the Church of England in particular and a fair Liberty of Conscience for all Dissenters though nothing in the World has more to be said for it than naked Truth yet if such a Man should run up and down without Cloaths let his Arguments be never so good or his Commission never so Authentick his Figure would be such a Contradiction to his Business that how serious soever that might be in it self his Interposition would make a Jest of it Though it should not go so far as this yet if Men have Contrarieties in their Way of Living not to be reconciled as if they should pretend infinite Zeal for Liberty and at that time be in great Favour and employed by those who will not endure it If they are effectually singular and conform to the Generality of the World in no one thing but in playing the Knave If Demonstration is a familiar Word with them most especially where the thing is impossible If they quote Authority to supply their Want of Sense and justifie the Value of their Arguments not by Reason but by their being paid for them in which by the way those who pay them have probably a very melancholly Equivalent If they brandish a Prince's Word like a Sword in a Crowd to make way for their own Impertinence and in dispute as Criminals formerly fled to the Statue of the Prince for Sanctuary if they should now when baffled creep under the Protection of a Kings Name where out of respect they are no farther to be pursued In these Cases Though the Propositions should be really good they will be corrupted by passing through such Conduits and it would be a sufficient Mistake to enter into a Treaty but it would be little less than Madness from such Hands to expect an Equivalent XVII Having touched upon these Particulars as necessary in order to the stating the Nature of an equal Bargain and the Circumstances belonging to it let it now be examined in two or three Instances what things are not to be admitted by way of Contract to pass under the Name of an Equivalent First Though it will be allowed that in the general Corruption of Mankind which will not admit Justice alone to be a sufficient Tye to make good a Contract that a Punishment added for the Breach of it is a fitting or rather a necessary Circumstance yet it does not follow that in all Cases a great Penalty upon the Party offending is an absolute and entire Security It must be considered in every particular Case how far the Circumstances may rationally lead a Man to rely more or less upon it In a private Instance the Penalty inflicted upon the Breach of Contract must be First such a one as the Party injured can enforce and Secondly such a one as he will enforce when it is in his Power If the Offending Party is in a capacity of hindring the other from bringing the Vengeance of the Law upon him If he hath Strength or Priviledge sufficient to over-rule the Letter of the Contract in that Case a Penalty is but a Word there is no Consequence belonging to it Secondly The Forfeiture or Punishment must be such as the Man aggrieved will take For Example if upon a Bargain one of the Parties shall stipulate to subject himself in case of his Failure to have his Ears cut or his Nose slit by the other with Security given that he shall not be prosecuted for executing this part of the Agreement the Penalty is heavy enough to discourage a Man from breaking his Contract but on the other side it is of such a kind that the other how much soever he may be provoked will not in cold Blood care to inflict it Such an extravagant Clause would seem to be made only for Shew and Sound and no Man would think himself safer by a thing which one way or other is sure to prove ineffectual In a publick Case Suppose a Government so constituted that a Law may be made in the Nature of a Bargain it is in it self no more than a dead Letter the Life is given to it by the Execution of what it containeth so that let it in its self be never so perfect it dependeth upon those who are intrusted with seeing it observed If it is in any Country where the Chief Magistrate chuseth the Judges and the Judges interpret the
which can never have any success for as such a Law in it self would be a madness so the Penalty would be a Jest which may be thus made out XXII A Law that carrieth in it self Reason enough to support it is so far from wanting the protection of such a Clause or from needing to take such an extraordinary receipt for long Life that the admitting it must certainly be the likeliest and the shortest way to destroy it such a Clause in a Law must imply an opinion that the greatest part of mankind is against it since it is impossible such an exorbitance should be done for its own sake the end of it must be to force Men by a Penalty to that which they could not be perswaded to whilst their Reason is left at Liberty This Position being granted which I think can hardly be denied put the case that a Law should be made with this imaginary Clause of Immortality after which another Assembly is chosen and if the majority of the Electors shall be against this Law the greater part of the Elected must be so too if the choice is fair and regular which must be presumed since the supposition of the contrary is not to come within this Argument When these Men shall meet the Majority will be visible before-hand of those who are against such a Law so that there will be no hazard to any single Man in proposing the Repeal of it when he cannot be punished but by the Majority and he hath such a kind of assurance as cometh near a Demonstration that the greater Number will be of his mind and consequently that for their own sâ—kes they will secure him from any danger For these Reasons where-ever in order to the making a Bargain a Proposition is advanc'd to make a New Law which is to tye up those who neither can nor will be bound by it it may be a good Jâ—st but it will never be a good Equivalent XXIII In the last place let it be examined how far a Promise ought to be taken for a Sectirity in a Bargain There is a great variety of Methods for the Security of those that deal according to their Dispssitions and Interests some are binding others inducing circumstances and are to be so distinguished First Ready Payment is without exception so of that there can be no dispute in default of that the good Opinion Mâ—n may have of one another is a great ingredient to supply the want of immediate Performances Where the Trust is grounded upon Inclination only the Generosity is not always return'd but where iâ— sprinketh from a long Experience it is a better foundation and yet that is not always secure In ordinary dealing one Promise may be an Equivalent to another but it is not so for a thing actually granted or conveyed especially if the thing required in exchange for it is of great value either in it self or in its consequences A bare Promise as a sangle Security in such a case is not an equal proposal if it is offered by way of Addition it generally giveth cause to doubt the Title is crazy where so slender a thing is brought in to be a supplement XXIV The Earnest of making good a Promise must be such a behaviour proceding as may â—â—â—urage the party to whom it is made to depend upon it Where instead of that there saith been want of kindness and which is worse an Invasion of Right a Promise hath no perswading force and till the Objection to such a proceeding is forgotten which can only be the work of time and the skin is a little grown over the tender part the wound must not be touch'd There must be some Intermission at least to abate the smart of unkind usage or else a Promise in the Eye of the party injur'd is so far from strentghning a Security that it raiseth more doubts and giveth more justifiable cause to suspect it A Word is not like a Bone that being broken and well set again is said to be sometimes stronget in that very part It is far from being so in a Word given and not made good Every single Act either weakeneth or improveth our Credit with oâ—her Men and as an Habit of being just to our Word will confirm so an Habit of too freely dispensing with it must necessarily destroy it A Promise hath its effect to perswade a man to lay some weight upon it where the Promises hath not only the power but may reasonably be supposed to have the will of performing it and further that there be no visible Interest of the party promising to excuse himself from it or to evade it All Obligations are comparative and where they seem to be opposite or between the greater and the Lesser which of them ought to have precedence in all respects every man is apt to be his own Judge XXV If it should fall out that the Promiser with full intent at the time to perform might by the interposition of new Arguments or differing Advice think himself oblig'd to turn the matter of Conscience on the other side and should look upon it to be much a greater fault to keep his word than to break it such a Belief will untye the strictest Promise that can be made and though the Party thus absolving himself should do it without the mixture or temptation of pritaâ—e Interest being moved to it meerly by his Conscience as then informed yet how far soever that might diminish the Fault in him it would in no degree lessen the inconveniences to the party who is disappointed by the breach of an engagement upon which he relyed XXVI A Promise is to be understood in the plain and natural sense of the words and to be fare not in his who made it if it was given as part of a Bargain That would be like giving a Man power to raise the value of his Mony in the payment of his Debt by which though he paid but half or less he might pretend according to the letter to have made good the contract The power of interpreting a Promise intirely taketh away the virtue of it A Merchant who should once assume that priviledge would save himself the trouble of making any more Bargains It is still worse if this Jurisdiction over a Man's Promise should be lodg'd in hands that have Power to support such an extraordinary Claim and if in other Cases for bearing to deal upon these terms is advisable in this it becometh absolutely necessary XXVII There must in all respects be a full liberty to claim a Promise to make it reasonable to take it in any part of payment else it would be like agreeing for a Rent and at the same time making it Criminal to demand it A superiority of Dignity or Power in the Party promising maketh it a more tender thing for the other party to treat upon that security The first maketh it a nice thing to claim the latter maketh it a difficult thing to obtain In
then first of all assure you very positively that their Highnesses have often declared as they did it more particularly to the Marquiss of Albeville His Majesties Envoy Extraordinary to the States that it is Their Opinion That no Christian ought to be persecuted for his conscience or be ill used because he differs from the publick and Established Religion And therefore They can consent that the Papists in England Scotland and Ireland be suffered to continue in their Religion with as much Liberty as is allowed them by the States in these Provinces in which it cannot be denied that they enjoy a full Liberty of conscience And as for the Dissenters Their Highnesses do not only consent but do heartily approve of their having an entire Liberty for the full exercise of their Religion without any trouble or hindrance so that none may be able to give them the least disturbance upon that account And their Highnesses are very ready in case his Majesty shall think fit to desire it to declare their willingness to concur in the setling and confirming this Liberty and as far as it lies in them they will protect and defend it and according to the Language of Treaties They will confirm it with their Guaranty of which you made mention in yours And if his Majesty shall think fit further to desire their concurrence in the repealing of the Penal Laws they are ready to give it provided always that those Laws remain still in their full vigour by which the Roman Catholicks are shut out of both Houses of Parliament and out of all publick Employments Ecclesiastical Civil and Military As likewise all those other Laws which confirm the Protestant Religion and which secures it against all the attempts of the Roman Catholicks But their Highnesses cannot agree to the repeal of the Test or of those other Penal Laws last mentioned that tend to the security of the Protestant Religion since the Roman Catholicks receive no other prejudice from these then the being excluded from Parliaments or from publick Employments And that by them the Protestant Religion is covered from all the Designs of the Roman Catholicks against it or against the publick safety and neither the Test nor these other Laws can be said to carry in them any severity against the Roman Catholicks upon account of their Consciences They are only provisions qualifying men to be Members of Parliament or to be capable of bearing Office by which they must declare before God and Men that they are for the Protestant Religion So that indeed all this amounts to no more than a securing the Protestant Religion from any prejudices that it may receive from the Roman Catholicks Their Highnesses have thought and do still think that more than this ought not to be ask'd or expected from them since by this means the Roman Catholicks and their posterity will be for ever secured from all trouble in their Persons or Estates or in the Exercise of their Religion and that the Roman Catholicks ought to be satisfied with this and not to disquiet the Kingdom because they cannot be admitted to sit in Parliament or to be in Employments or because those Laws in which the Security of the Protestant Religion does chiefly consist are not repealed by which they may be put in a condition to overturn it Their Highnesses do also believe that the Dissenters will be fully satisfied when they shall be for ever covered from all danger of being disturbed or punished for the free Exercise of their Religion upon any sort of pretence whatsoever Their Highnesses having declared themselves so positively in these matters it seems very plain to me that They are far from being any hindrance to the Freeing Dissenters from the Severity of Penal Laws since they are ready to use their utmost endeavours for the Establishing of it Nor do They at all press the denying to the Roman Catholicks the Exercise of their Religion provided it be managed modestly and without Pomp or Ostentation As for my own part I ever was and still am very much against all those who would persecute any Christian because he differs from the publick and established Religion And I hope by the Grace of God to continue still in the same mind for since that Light with which Religion illuminates our minds is according to my sense of things purely an effect of the Mercy of God to us we ought then as I think to render to God all possible Thanks for his Goodness to us and to have pity for those who are still shut up in Error even as God has pitied us and to put up most earnest prayers to God for bringing those into the way of Truth who stray from it and to use all gentle and friendly methods for reducing them to it But I confess I could never comprehend how any that profess themselves Christians and that may enjoy their Religion freely and without any disturbance can judge it lawful for them to go about to disturb the Quiet of any Kingdom or State or to overturn Constitutions that so they themselves may be admitted to Employments and that those Laws in which the Security and Quiet of the established Religion consists should be shaken It is plain that the Reformed Religion is by the Grace of God and by the Laws of the Land enacted both by King and Parliament the publick and established Religion both in England Scotland and Ireland and that it is provided by those Laws that none can be admitted either to a place in Parliament or to any publick Employment except those that do openly declare that they are of the Protestant Religion and not Roman Catholicks and it is also provided by those Laws that the Protestant Religion shall be in all time coming secured from the Designs of the Roman Catholicks against it In all which I do not see that these Laws contain any Severity either against the Persons or Estates of those who cannot take those Tests that are contrary to the Roman Catholick Religion all the inconveniences that can redound to them from thence is that their Persons their Estates and even the Exercise of their Religion being assured to them only they can have no share in the Government nor in Offices of Trust as long as their Consciences do not allow them to take these Tests and they are not suffered to do any thing that is to the prejudice of the Reformed Religion Since as I have already told you Their Highnesses are ready to concur with his Majesty for the Repeal of those Penal Laws by which Men are made liable to fines or other Punishments So I see there remains no difficulty concerning the Repealing the Penal Laws but only this that some would have the Roman Catholicks render'd capable of all publick Trusts and Employments and that by consequence all those should be repealed that have secured the Protestant Religion against the designs of the Roman Catholicks where others at the same time are not less
secured of an Asiatick Tameness in his Prelatical People by a Principle which they have lately imbib'd but neither learned from their Bibles nor the Statutes of the Land For the Clergy upon thinking that the Wind would always blow out of one quarter and being resolved to make that a Duty by their Learning which their Interest at that season made convenient have preached up the Doctrine of Passive Obedience to such a boundless height that they have done what in them lyes to give up themselves and all that had the Weakness to believe them fettered and bound for Sacrifices to Popish Rage and Despotical Tyranny But for my self and I hope the like of many others I thank God I am not tainted with that slavish and adulatory Doctrine as having always thought that the first Duty of every Member of a Body Politick is to the Community for whose Safety and Good Governors are instituted and that it is only to Rulers as they are found to answer the main Ends they are appointed for and to Act by the legal Rules that are Chalk'd out unto them Whether it be from my Dullness or that my Understanding is of a perverser make than other Mens I cannot tell but I could never yet be otherways minded than that the Rules of the Constitution and the Laws of the Republick or Kingdom are to be the Measures both of the Sovereign's Commands and of the Subjects Obedience and that as we are not to invade what by Concessions and Stipulations belongs unto the Ruler so we may not only Lawfully but we ought to defend what is reserved to our selves if it be invaded and broken in upon And as without such a Right in the Subjects all legal Governments and mix'd Monarchies were but empty Names and ridiculous things so wheresoever the Constitution of a Nation is such there the Prince who strives to subvert the Laws of the Society is the Traytor and Rebel and not the People who endeavor to preserve and defend them There is yet another Branch of the foresaid Oath that is of a much more unreasonable Strain than the former which is That they shall to the utmost of their Power assist defend and maintain him in the Exercise of this Absolute Power and Authority which being tack'd to our Obeying without reserve make us the greatest Slaves that eitheâ— are or ever were in the Universe Our Kings were heretofore bound to Govern according to Law and so is his present Majesty if a Coronation Oath and faith to Hereticks were not weaker than Sampson's cords proved to be but instead of that here is a new Oath imposed upon the Subjects by which they are bound to protect and defend the King in his ruling Arbitrarily It had been more than enough to have required only a calm submitting to the exercise of Absolute Power but to be enjoined to swear to assist and defend his Majesty and Successors in all things wherein they shall exert it is a plain destroying of all natural as well as civil Liberty and a robbing us of that freedom that belongs unto us both as we are men and as we are born under a free and legal Government For by this we become bound to drag our Brethren to the Stake to cut their Throats plunder their Houses imbrew our hands in the Blood of our Wives and Children if his Majesty please to make these the Instances wherein he will exert his Absolute Power and require us to assist him in the exercise of it As it was necessary to cancel all other Oaths and Tests as being directly inconsistent with this so the requiring the Scots to swear this Oath is the highest revenge he could take for their Solemn League and Covenant and for all other Oaths that lust after Arbitrariness and Popish Bigottry will pronounce to have been injurious to the Crown But no words are sufficient to express the mischiefs wrapt up in that new Oath or to declare the abhorrency that all who value the Rights and Liberties of Mankind ought to entertain for it nor to proclaim the Villany of those who shall by Addresses give thanks for the Proclamation There may a fourth thing be added whereby it will appear that his Majesty's assuming Absolute Power stands recorded in Capital Letters in his Declaration for liberty of Conscience For not being contented to omit the requiring the Oaths of Allegiance and Supremacy and the Test Oaths to be taken nor being satisfied to suspend for a season the enjoining any to be demanded to take them he tells us that it is his Royal will and pleasure that the aforesaid Oaths shall not at any time hereafter be required to be taken which is a full and direct Repealing of the Laws in which they are Enacted It hath hitherto passed for an undoubted Maxim that eorum est tollere quorum est condere they can only abrogate Laws who have Power and Authority to make them and we have heretofore been made believe that the Legislative power was not in the King alone but that the two Houses of Parliament had at least a share in it whereas here by the disabling and suspending Laws for ever the whole Legislative Power is challenged to be vested in the King and at one dash the Government of England is Subverted and changed Tho it hath been much disputed whether the King had a liberty of refusing to Assent to Bills relating to the benefit of the Publick that had passed the two Houses and if there be any sense in those words of the Coronation Oath of his being bound to Govern according to the Laws quas vulgus Elegerit he had not yet none till now that his Majesty doth it had the impudence to affirm that he might abrogate Laws without the concurrence and assent of the Lords and Commons For to say that Oaths enjoined by Laws to be required to be taken shall not at any time hereafter be required to be taken is a plain Cancelling and Repealing of these Laws or nothing of this World ever was or is nor can the wisdom of the Nation in Parliament Assembled find words more emphatical to declare their Abrogation without saying so which at this time it was necessary to forbear for fear of allarming the Kingdon too far before his Majesty be sufficiently provided against it For admitting them to continue still in being and force tho the King may promise for the non execution of them during his own time which is even a pretty bold undertaking yet he cannot assure us that the Oaths shall not be required to be taken at any time hereafter unless he have provided for an eternal Line of Popish Successors which God will not be so unmerciful as to plague us with or have gotten a Lease of a longer Life than Methusalah's which is much more than the full Century of years wished him in a late Dedication by one that stiles himself an Irishman a thing he might have forborn telling us because the Size
relate to the Executive Power which is in the King and not to the Legislative in which we cannot suppose that our Legislators who made that Law intended to give up that which we plainly see they resolved still to preserve entire according to the Antient Constitution So then the not resisting the King can only be applied to the Executive Power that so upon no pretence of ill Administrations in the Execution of the Law it should be lawful to resist him but this cannot with any reason be extended to an Invasion of the Legislative Power or to a total Subversion of the Government For it being plain that the Law did not design to lodg that Power in the King it is also plain that it did not intend to secure him in it in case he should set about it 4. The Law mentioning the King or those Commissionated by him shews plainly that it only designed to secure the King in the Executive Power for the word Commission necessarily imports this since if it is not according to Law it is no Commission and by consequence those who act in virtue of it are not commissionated by the King in the Sense of the Law The King likewise imports a Prince clothed by Law with the Regal Prerogative but if he goes to subvert the whole Foundation of the Government he subverts that by which he himself has his Power and by consequence he annuls his own Power and then he ceases to be King having endeavoured to destroy that upon which his own Authority is founded XV. It is acknowledged by the greatest Assertors of Monarchial Power that in some Cases a King may fall from his Power and in other Cases that he may fall from the Exercise of it His deserting his People his going about to enslave or sell them to any other or a furious going about to destroy them are in the opinion of the most Monarchical Lawyers such Abuses that they naturally divest those that are guilty of them of their whole Authority Infancy or Phrenzy do also put them under the Guardianship of others All the crowned Heads of Europe have at least secretly approved of the putting the late King of Portugal under a Guardianship and the keeping him still Prisoner for a few Acts of Rage that had been fatal to a very few persons And even our Court gave the first countenance to it though of all others the late King had the most reason to have done it at least last of all since it justified a younger Brother's supplanting the Elder yet the evidence of the thing carried it even against Interest Therefore if a King goes about to subvert the Government and to overturn the whole Constitution he by this must be supposed either to fall from his Power or at least from the Exercise of it so far as that he ought to be put under Guardians and according to the Case of Portugal the next Heir falls naturally to be the Guardian XVI The next thing to be considered is to see in Fact whether the Foundations of this Government have been struck at and whether those Errors that have been perhaps committed are only such Malversations as ought to be imputed only to human Frailty and to the Ignorance Inadvertencies or Passions to which all Princes may be subject as well as other Men. But this will best appear if we consider what are the Fundamental Points of our Government and the chief Securities that we have for our Liberties The Authority of the Law is indeed all in one word so that if the King pretends to a Power to dispence with Laws there is nothing left upon which the Subject can depend and yet as if Dispensing Power were not enough if Laws are wholly suspended for all time coming this is plainly a repealing of them when likewise the Men in whose hands the Administration of Justice is put by Law such as Judges and Sheriffs are allowed to tread all Laws under foot even those that infer an Incapacity on themselves if they violate them this is such a breaking of the whole Constitution that we can no more have the Administration of Justice so that it is really a Dissolution of the Government since all Trials Sentences and the Executions of them are become so many unlawful Acts that are null and void of themselves The next thing in our Constitution which secures to us our Laws and Liberties is a free and Lawful Parliament Now not to mention the breach of the Law of Triennial Parliaments it being above three years since we had a Session that enacted any Law Methods have been taken and are daily a taking that render this impossible Parliaments ought to be chosen with an entire Liberty and without either Force or Preingagements whereas if all Men are required beforehand to enter into Engagements how they will vote if they are chosen themselves or how they will give their Voices in the Electing of others This is plainly such a preparation to a Parliament as would indeed make it no Parliament but a Cabal if one were chosen after all that Corruption of Persons who had preingaged themselves and after the Threatning and Turning out of all Persons out of Imployments who had refused to do it and if there are such daily Regulations made in the Towns that it is plain those who manage them intend at last to put such a number of Men in the Corporations as will certainly chuse the Persons who are recommended to them But above all if there are such a number of Sheriffs and Mayors made over England by whom the Elections must be conducted and returned who are now under an Incapacity by Law and so are no Legal Officers and by consequence those Elections that pass under their Authority are null and void if I say it is clear that things are brought to this then the Government is dissolved because it is impossible to have a Free and Legal Parliament in this state of things If then both the Authority of the Law and the Constitution of the Parliament are struck at and dissolved here is a plain Subversion of the whole Government But if we enter next into the particular Branches of the Government we will find the like Disorder among them all The Protestant Religion and the Church of England make a great Article of our Government the latter being secured not only of old by Magna Charta but by many special Laws made of late and there are particular Laws made in K. Charles the First and the late King's time securing them from all Commissions that the King can raise for Judging or Censuring them if then in opposition to this a Court so condemned is erected which proceeds to judg and censure the Clergy and even to disseise them of their Freeholds without so much as the form of a Trial though this is the most indispensable Law of all those that secures the Property of England and if the King pretends that he can require the Clergy