NExt to our Laws, our Judges are arraigned, and though all Nations presume, that Judges understand, and that we should presume them Just, being ordinarly men of Integrity, who are ingadg'd upon Oath, and have both Soul and Reputation at Stake; And who know their Children are to be Judg'd by the preparatives they make. Yet our Phamphleters, who neither understand matter of Law, nor matter of Fact, stick not most soveraignly to decyde, that our Sentences, even in Criminals (in which men cannot Err wilfully, without murdering de­liberatly) are absurd, ridiculous and inhumane▪ And yet these same men (the great Patrons of Iustice) are the Secretaries of that Party, who after they had mur­dered Strafford, made an Act that none should dy by that preparative; in imitation of which horrid Injustice, our Rebellous Zealots did Execute Sir Iohn Gordon of Haddo, upon a Statute made by them, after they had Condemn'd him as a Traitor, for bearing Arms against the three Estates, tho he had a special Commission from the King their Soveraign. And hang'd the great Marques of Montrose, with his Declaration, Emited by His Majesties Authority about his Neck, though [Page 19] they had Treated and concluded with the King that gave it, by whom so many Noble-men and Gentle-men fell for doing their Duty: and so many innocent Cavaleers were Massacr'd after they got Quarters.

Then it was, That an Oath was taken by our States-men, not to spare the lives of either kin, Friend nor Ally. That three hundred were expos'd on a Rock to be starv'd, and as many murdered in cold Bloud after Quarter. And a Scaffold being Erected at the Cross of Edinburgh, on which in six Weeks time, multitudes of generous Gentle-men having dy'd, a Zealous Minister Thanked GOD for that Altar, on which so sweet smelling a Sacrifice was offer'd. Whereas our Merciful King, having had his Father Martyr'd, and being himself Banish'd; Pardon'd even His Fathers Mur­derers. And granted not only Pardons, but Indulgences after two inexcusable Rebellions. And it was very won­derful, to see His Royal Brother (this formidable Tyrant in our Pamphlets) pleading for Pardon even to such as owned a hatred against all the Royal Family. Nor can it be deny'd, but there is a gentleness in the old Cavalier Par­ty, which demonstrats that they are in the Right. And which is infinitly preferable to that soure Cruelty, and morose bitterness, which make the insolent Republicans, and bigot Fanaticks, humourous and dangerous. And as a Monarch the true father of his Subjects, thinks it generous to Pardon, so Republicans must be Cruel, to shew a Zeal for the Rabble which they Serve. Nor do I ever hear that any of those publick Spirited Authors, do turn the Edge of their Zeal against Ignoramus juries, false Witnesses, lying Scriblers against the Government, assassinats, &c.

[Page 20] I am now come to take notice of a late Pamphlet, called The Scots-mist, wherein, because the late Earl of Argyl's Pro­cess is founded upon Points in jure, and consequently not so obvious to the consideration of every Unlearn'd Man, the Author takes pains to make it appear an unanswerable Instance of the Arbitrariness of our Judges.

But before I answer his weak Reflections in Law, I must take notice of some few Particulars in Fact:

As first, His Judges were not Judges in a Packt Commission; but the learn'd and Ordinary Iudges of the Nation.

2ly, What Temptation could the King, or any who Served Him have to streatch Law in that case▪ for that, as to his Life there was no design, is clear from the express Or­der His Royal Highness gave, not to keep him strictly af­ter he was found guilty. Though great presumptions were offered to that generous Prince of a design'd Es­cape. And himself ordour'd in Council, that the most Learn­ed Advocats in Scotland, should be prest to appear for him. Nor was ever a Prisoner us'd, either by Judges, or by the Kings Advocat, with so much discretion and re­spect.

3ly, His Jurisdictions, nor Estate could be no Tempta­tion, for the late Advocat had Represented such Reasons against his Right to these Jurisdictions and Superiorities, as no man under Heaven could answer with any shadow of Reason: And the King got not one farthing of his Estate, for His Royal Highness by his generous Interpositi­on, procur'd more of it for his Children, then belonged to the Family, Debts being payed. And the remainder was gifted by our gracious and inimitable King amongst the Cre­ditors. And the Tithes possest by that Earl, returned to the Church.

[Page 21] Happy Kingdom, wherein the greatest Instance of Ar­bitrary Government, is a Person, who having nothing to lose, save what the King gave, had a fair Tryal by sworn Judges and Jurors: and lost upon the Event, neither Life nor Fortune. And whose Family after three capital Sentences, two by Parliaments, and one by a Solemn Iustice Court, is left without envy in a better condition, then almost any who Serv'd the King in His great Extremities.

4ly, All these Narratives and Apologies are founded on great mistakes, as if the Earl had been desired to take the Test; for we desire no man, but men in Office desire it, because they cannot enjoy their Offices till they take it: And that the Council was once pleased with the Explanation he gave, as if he had given in an Explanation: and the Council being pleased with it, allowed him to take it in these Terms: Whereas the true cas was, that the Earl had assured both His Royal Highness, and many others, that he would not take the Test. Notwithstanding whereof, coming in abruptly to the Council, he spoke something with so slow a Voice, that none say they heard him, and then clapping down-on his Knees, took the Test; but some Copies being dispersed of what he said, all Loyal Men murmured at the preparative, as tending to destroy, not only the Parliaments design in the Test, but to un­hing all Government. And the greatest Fanaticks in Scot­land, owned they would take it in that Sense; without prejudice to their Principles: and so they might, being allowed not to bind up themselves from endeavouring any alteration they should think fit for the advantage of Church and State: Which made the Oath no Oath, and the Test no Test. And therefore the next day, when he offered to take the Test, as a Commissioner of the Thesaury, [Page 22] he was desired first to give in his Explanation, which when he gave it in, it was enquir'd, if any man had heard that Ex­planation made in Council: and no man did remember he heard or understood it so. And thereafter it was Voted not satisfactory. And albeit His Majesties Advocat allow­ed the Earl to prove that the Council heard and approved it; yet his Lordship failed in the Probation: and it is ab­surd to think the Council would have allowed an Expla­nation, which would have Evacuated the whole Act, and the design of the Parliament in it: as shall fully hereafter be prov'd. Whereas if the Earl had only designed to Ex­oner his Conscience, he might either have abstained, for no man is obliged to take the Test; or if he had resolved to know if his meaning would have been acceptable, he might have given his Sense, and petitioned to know if that was acceptable, which had been a fair and sure way, both for Takers and Rulers. Whereas, first to take, and then give in his Explanation, is a certain way to secure ones own Employments, and a preparative to let in any, let their Principles be what they please, if they have the Wit to Salve their Principles by apposit Explications: and the dispersing Copies of that Paper, before it was presented in Council, cannot be said to have been done for Exonering his own Conscience, but is the ordinary way that men take, when they resolve to Defame the Government. Nor is our Government so unreasonable, as not to desire to satisfie such as scruple, without ill Designs. And this they shew in satisfying some of the Orthodox Clergy, who offered mo­destly some Scruples against the inconsistency of the Confes­sion of Faith, with Episcopacy: And which Scruples being easily cleared, they all obeyed save nineteen or twenty, in the whole Kingdom at most, some whereof had also [Page 23] inclinations however to the good old Cause. Nor can I pass by here a strange abuse put upon the World in that Pamphlet, as if those scruples there set down, were only the Scruples of the conform Clergy, whereas many Papers bearing that Title, were drawn by the Presbyterians, and found amongst their Papers; and the Paper ascryb'd to them in that Book, wants the chief Objection they stuck at, viz. That the Compylers of that Confession of Faith were Enemies to Episcopacy; and in place thereof, it asperses our present Episcopacy, the Kings Supremacy, and the Act of the Succession, which the conform Clergy never did.

For clearing this Process, modestly and meerly in defense of our Judges, I shal first set down the Earls Explanation, which runs thus,

I have considered the Test, and am very desirous to give Obedience as far as I can—

I am confident the Parliament never intended to Impose contradictory Oaths, and therefore I think no body can Ex­plain it but for himself, and Reconcile it, as it is Genuine, and agrees in his own Sense.

I take it as far as it is Consistent with it Self, and the Protestant Religion. And I do Declare, I mean not to bind up my self in my Station, and in a lawful way to wish, and endeavour any Alteration, I think to the advantage of Church, and State. Not Repugnant to the Protestant Religion, and my Loyalty, and this I understand as a part of my Oath.

The first Cryme Charged upon the Earl from this Pa­per, is, that albeit by the 107. Act of Parliament 7. I. 1. It be Statute, that no man Interpret the Kings Statutes, otherwise then the Statutes bears, and to the Intent and Effect [Page 24] they were made for. And as the Maker understood, and who­soever does the contrary, shall be punished at the Kings will. Yet the King and Parliament having appointed an Oath to be taken for Securing the Protestant Religion, and the Kings Prerogatives. And having to evite the old Fanatick Juglings; and Evasions of the Covenanters on the one hand; and the Equivocations and Mental Re­servations of the Papists on the other.

The Oath does expresly bear, these Words: And final­ly I affirm and swear, That this my solemn Oath is given in the plain and Genuine Sense and meaning of the words, with­out any Equivocation, Mental Reservation, or any manner of Evasion whatsoever. The said Earl did, notwithstanding of that Statute, and the foresaid Clause in the Oath it self, take the said Oath in such a Sense, as did not on­ly Evacuat his own taking of it, but did teach others how to swear to it, without being thereby obliged; and path a Way to Posterity, for Evacuating all the Acts that ever can be made for Security of Religion, King and Go­vernment, in so far as he declares, that he did take the Oath with these Qualifications only.

First, I will give Obedience as far as I ean.

2ly. I think no body can Explain it but for himself, and reconcile it as it is genuine, and agrees in his own Sense.

3ly, I mean not to bind up my himself in my Station, from making any alteration, I think to the advantage of Church or State, &c. Which is not to take it in the Imposers Sense, but his own, which will the more easily appear from these Reasons.

First, That the Design of all Laws, but especially the making of Oaths, is that the Subjects should be bound thereby, according to the Sense of the Legislator. Which [Page 25] is very clear from the express words of the former Statute, and by the Reason whereon it is founded, which is, that the Legislator may be sure of Obedience, and may know what to expect from those who are to obey. And who have taken the Oaths prescrib'd. And in which, Di­vines agree with Lawyers, for they tell us, that verba ju▪ ramenti intelliguntur secundum mentem & intentionem ejus cul sic juramentum, Sande: pag: 173. But this sense in which the Earl takes the Oath, does Evacuat all the de­signs of the Oath: For, first, Whereas the Oath design'd that this Act of Parliament should be simply obey'd, as a sure Foundation for the Security of Church and State; the Earl promises only to obey it as far as he can, with­out telling in what he will obey.

2ly, Whereas the Oath is to be taken in the plain genu­ine Sense of the Words; the Earl declares, that no body can Explain it but for himself. And reconcile it as it is genuine, and as it agrees in his own Sense. Which im­plys, that it had no plain genuine Sense, in which it could have been taken. 3ly, Whereas the Parliament design'd it as a Security for the Protestant Religion; he declares he takes it only in as far as it is consistent with the Pro­testant Religion. Which implys, that in some things it is not consistent with the Protestant Religion. 4ly, It can­not be pretended, that the Parliament design'd to make an Act that had contradictions in it; and yet the Earl says, he takes the Oath in so far as it is consistent with it self, which imports necessarly, that in some things it is not consistent with it self. 5ly, The design of this Oath was, to preclude all the Takers from reserving a Liberty to rise in Arms upon any pretext whatsoever▪ but by this Explication, the Earl reserves to himself a power to [Page 26] make any alterations that he shall think, for the advan­tage of Church and State. By all which, I conclude, that the Earl has interpret this Oath otherwise than it bears, and to the Intent, and Effect it was made for. And otherwise than the Maker understood. And there­fore this Explication does clearly fall under the foresaid Satute.

2ly. If this were allowable, no Member of Parliament needs hereafter propose any doubts in Parliament, but let the Parliament make what Oath they please, the Tak­er vvill Reform, and alter it as he pleases. When he takes the Oath. And I desire to knovv from any man of Sense, if the Earl would have obtained from the Parlia­ment at the passing of it, that every man should have been allowed to take it as far as it was consistent with it self, and the Protestant Religion. Or if they would have suffered the other Qualifications in that Paper to have been adjected, as a part of the Act. Which does demon­strat▪ that he did not only not take it in the Legislators Sense, as the former Statute Commands. But that he did not at all take the Oath that they made, but made a new Oath of his own.

3ly, If a man should oblige himself simply upon Oath, to make me a Right to such Lands, could this Sense be consistent with it, [...] make it as far as I can. Or would the making such a Right, with that quality, satisfie the Obligation. Or could he who receives the Obli­gation, be sure of a good Right, if the Person Obliged were bound to no further than he could per­form.

[Page 27] 4ly, All Oaths must be so taken, as that the Taker may be pursued for Perjury; but so it is, that when it is not known what the Taker is ty'd to, it cannot be known wherein he has fail'd. And consequently in how far he is Perjur'd.

5ly, I would willingly know, if the Covenanters would have allow'd any to have taken the Covenant with a Qualification that he should observe it as far as it was consistent with his Loyalty. And do not generally the greatest Enemies to the Kings Supremacy declare, that they are content to take the said Oath, in as far as it is consistent with the Word of God, and the Protestant Religion.

6ly, If this were allow'd, every man should take the Oath in a particular Sense, and upon his own Terms, nay and upon contrary Terms, according to mens con­trary Interests. So that it would not be the Parliaments Test, but every mans own Test. And there should be as many different Oaths, as there are different Tak­ers.

7ly, Former Statutes having discharged the Leidges to Convocat, or Assemble, or to enter into Bonds and Leagues without the Kings consent, the Covenanters did protest, that their taking the Covenant was not against these Acts; because these Acts could not be mean'd against any Leagues, or Meetings holden for Preservati­on of the King, Religion, and Laws. And yet the 4: Act Par: 1: Ch: 2: does positively declare, that all such Glosses are false and disloyal, and contrair to the true and genuine meaning of these Acts. And therefore this Glosse must be so too, because this Glosse is the ve­ry [Page 28] same, both in Words, and Design with those Glosses.

But though this Poynt be very clear, and undeny­able. Yet Mr. Mist (for so I must call the Author for distinctions sake) makes those three answers:

First, That if the Authority which is to administer the Oath, do's accept the Takers Sense, the Taker is only bound in the Sense he gives, and no other. But so it is the Council accepted his Sense. And if they had refused, the Earl had not taken the Oath, nor had his refusal been a Cryme.

To which it is replyed, That first, If it be a Cryme to Interpret the Kings Laws otherwise than they bear, and to the Effect for which they were design'd: Then cer­tainly it may be debated with very good Reason, that though the Council had conniv'd at the Earls misinter­preting the Law, neither their negligence, nor their mis­take could have prejudg'd the King; nor have been in place of a Remission. For though the Council be a more eminent Judicature than others, yet they cannot pardon Crymes, when committed. And consequently their al­lowance, cannot make that to be no Crime which is a Cryme. And we have a particular Statute in Scotland, That the negligence of the Kings Officers shall not prejudge Him. Nor is that Statute so Reasonable in any Case as in this. For since this, and all other Oaths are oft times administred by very ignorant Persons, we should have them a thousand times cheated, and impos'd upon, by the adjecting of such Qualifications as these; if the ad­jecting of such Qualifications as these were not punishable. Because he who did Administrat the Oath, did once al­low them. And I put the Case, that if a man who had [Page 29] many Friends in Council, should have given in an Expli­cation that was uncontravertedly Treasonable, by saying that he was content to take the Oath, but that he design'd not by it to preclude himself from rysing in Arms, when he thought fit, for the Defense of the Protestant Re­ligion. Would it have been a sufficient Defense, that the Council did not challenge it in the mean time. And therefore it this was a Cryme in it self, the Councils al­lowing the Explication, did not at all in strict Law take off the Cryme. But the Judges (resolv'd to do him all possible favour) were more merciful then to straiten the Earl upon this Point. For if the Earl had given in an Explication to the Council, and told that he sub­jected that Paper to their Consideration, and that he would take the Oath upon these Termes, and no otherwise, the Judges would have Interpos'd for the Kings Favour, if he had been so ensnared by the Councils connivance, or mistake. Nor would the King have pursued it. But the true matter of Fact is, that the said Paper was not given in, till the next day after the Earl had sworn the Test. And though the Judges allowed him to prove that he had adjected these Words at his first Swearing of the said Test, and that they were allow'd, yet he fail'd in the Probation, and so the Judicature is no way to be blam'd.

The second Defense is, that all that can be inferr'd from the above-cited Law is, that no man should put a Sense upon any Law that should bind another, or be the pub­lick Sense of that Law to all the Subjects, which is most false, for the Words of the Law are general. That no man shall Interpret the Kings Laws, but to the Intent and Effect for which they were made. And consequently this must be Extended to all Cases, where the Law is abus'd, and the [Page 30] Legislator disappointed by a misinterpretation. Et ubi lex non distinguit, nec nos. And there is as great Reason to Punish such as take Oaths under such wrested Senses, contrair to the Design of the Legislator, as there is for punishing any Cryme. And much more then for punish­ing such as misinterpret the Law to others in other Cases. Since if this be allow'd every man may by misinterpreting the Oath as to himself, evacuat all Oaths, and make them ridiculous: And so not only enjoy Employments contrair to the Legislators Design. But likewise cut down the greatest Fence of Government, such as Oaths are now esteemed to be by all Christians.

The third answer made to this Point is, that the Legis­lator is surest of those who give Explications of their Oaths; for they deal honestly: And it is impossible that any man can take an Oath, but he must take it in his own Sense. But neither is this of any moment; for if this An­swer prove any thing, it will prove that no man can be challenged for adjecting any Quality. And consequent­ly the Act of Parliament could take effect in no case. And so not only were this Act useless, but we would want an excellent Remedy for curbing such as resolve to abuse the Government, in rendring all Oaths that are invented for its Security, altogether ineffectual. And it is strange to see what absurd things men will run to, when they are put to Defend an Absurdity. And though every man must have a Sense when he takes an Oath, it does not there­fore at all follow, that men must be allowed to adject Senses that are inconsistent with the Oath, or render the Oath useless. And since this is not an Oath, that all the Subjects must take, it having no other Penalty adjected to the not taking, but the loss of the Employment, they [Page 31] possess by the Kings meer Favour. Every good Christi­an ought either to be satisfied of the design of the Legisla­tor, in the Oath, or else to abstain from it. And though the Mind of the Legislator might secure the Taker, yet that can only be when the Sense is previously offered to, and accepted by him, which cannot at all be said in this Case. And whatever favour may be pretended, where the Taker of the Oath condescends upon what he will ob­lige himself to; yet that cannot be pretended in this Case, where the Earl does not condescend how far he can obey. And does not specifie how far he thinks it consistent with the Protestant Religion, or with it Self. But only that he will obey it as far as he can; and as far as it is consistent with it self and the Protestant Religion. So that the Legislator is still unsecure, and the Earl himself still the only Judge. And I am desirous to know in what part of Europe such qualities were ever allowed.

It is also very absurd to contend, that the adjecting of these qualities can put the Taker in no worse case, then if he had refused the Test. And since that cannot amount to a Crime, so neither can this. For it is contended, that these qualities do infer a misinterpreting of the Kings Laws, and a Defaming of the Parliament. And it is most absurd to think, that such things as these should be suffered, because they are thrown in into Explications: For else under the pretence of Explaining Oaths, we should have virulent Libels dayly against King and Palliament. Nor can I see why Equivocations and Mental Reservati­ons should be condemned if this be allowed, for such as take the Test or any other Oath, may at the taking of them, Evacuat the Obligation of the Oath, by adjecting such qualities. And it is all one to the Legislator, whe­ther [Page 32] he be openly or secretly abas'd. Only this I must observe, that the open Abuse is the greater, because it adds publick Contempt to the design'd Cheat: And where­as it is pretended, that the Magistrat may choose whether he will admit of the quality or not, which he cannot do in mental Equivacations.

To this it is answered, that that could only hold if the qualities adjected to the Oath, were first offered by way of Petition to the Magistrat, that it might be known whether he would allow of them, which was not done in this Case, wherein without ever applying to the King or Council: The Earl did by his own Authority Swear in his own Terms.

Though the Council and the Reverend Bishops took pains to satisfie some scrupulous Ministers (whose Scruples were in Favours of the Government) and got them the Kings Sense, and told them their own. And which in­deed was the genuine Sense of the Parliament. Yet that did not at all allow the Earl, or any privat man to take it, in a Sense Inconsistent with the Oath. And that too with­out previously offering his doubt to the King and Coun­cil: And geting their Approbation as said is. Nor were they allowed to take it in such general Terms, as did [...]ecure the Legislator, and admit the Takers to be Judges.

The second Cryme fixt'd upon the Earl from this Pa­per, is, That albeit by the 10: Act Par: 10: Ia: 6: It is Satute, That none of His Majesties Subjects, pre­sume nor take upon hand, publickly to Declaim, or privat­ly to Speak, or Write any purpose of Reproach, or slander of His Majesties Person, Estate, or Government; or to Deprave His Laws, and Acts of Parliament; or misconstruct His [Page 33] Proceedings, whereby any misliking may be mov'd betwixt his Highness and his Nobility, and loving Subjects, in time com­ing, under the pain of death. Certifying them that do in the contrair, they shall be repute as seditious and wicked Instru­ments, enemies to his Highness, and the common well of the Realm; and the pain of death shall be Execute against them with all rigour, in example of others. Yet true it is, that the said Earl did endeavour all that in him lay, to De­fame the King, and Parliament, and Test, in so far as he did declare, That he would give Obedience to it as far as he could; Which imported that the Parliament had made an Oath which could not be absolutely obeyed. And though the Parliament never intended to impose contra­dictory Oaths, yet no body can Explain it but for him­self. Which did clearly import, that though the Parlia­ment design'd not to make an Oath that was contradicto­ry: yet they had made one that was indeed contradicto­ry. And could not be made Sense without privat Re­conciliations, and Explications. And by saying that he took this Oath only as far as it was consistent with it self and the Protestant Religion; he did clearly declare to all the world that he thought it in some things inconsistent with it self, and the Protestant Religion. And since there is nothing concerns Governours more than to have them­selves esteemed by the people, without which, or nume­rous Armies, Government cannot subsist. And there­fore our Parliaments, have in place of Armies, consent­ed in the former excellent Statute, that whosoever shall endeavour to deprave the Laws, or misconstruct the pro­ceedings of King and Parliament, shall be punished to the death. And what can be a greater reflection upon King and Parliament, in the age wherein we live, than to have [Page 34] made Laws which cannot be obeyed, and which are in­consistent with the Protestant Religion. And there was no man that ever hear'd that Paper, except this Author, but did conclude, that upon the matter, the people would from it entertain those scruples. Nor are these the infe­rences of people that live far from the Sun, as the undis­creet Author does object against this Nation. But men must be as disingenuous, as he, not to confess that these are most just and natural Inferences. And the Inferences are so much the stronger, that both this Author, and all such as were enemies to the Test, did take pains to make the People believe, that the Contrivers of the Test, were in so far, friends to Popery, and consequently, there was nothing drawn from this Paper by Inferences, but that which was too publickly owned by all, who were in the same Circumstances with him who gave it in.

Mr. Mist in answer to this part of the Accusation, does first cry out, that Crymes must not be inferred by Infe­rences, and Insinuations, seing these may be unjustly drawn against the design of the Party accus'd. And no man could be secure, if men could be made Criminal upon Insinuations, and Inferences. And this Paper having been given only for the Exoneration of his Conscience, it is not capable of any such Misconstruction, nor ought any such Construction be made, except where a ma­litious Design can be proved, in the Person accus­ed.

To which it is answered, That the Parliament having been very jealous of the honour of the Government, which ought to be Sacred. They discharg'd in general, all such Words, and Papers, whereby any mislyking might be mov'd betwixt the King and his Subjects. And there­fore [Page 35] since the effect was the thing they lookt to, and that it is all one to the Government, what the Authors design was, if the effect was wrought, and the dislike moved. They therefore ordained the effect to be punish­ed, without adding, as they do in other cases, that who­soever shall malitiously, or upon design, Write, or Speak, and it is very well known, that there are no Papers so dangerous, nor no Satyre so bitter as these, which are coloured with specious pretexts of Conscience, Respect and Kindness. And upon this accompt it was, that by the 9: Act Par: 20: Ia: 6: All Papers that tend to renew the re­membrance of the former feeds betwixt the two Nations, shall be punishable. And what can be more justly called Insinu­ations, and Inferences, then Tendencies are. And if the people be abus'd, and inflam'd, what advantage is it to the Government, that the Author design'd it not. And therefore it is much safer for the Government, as it is suf­ficiently safe for every Subject, that men rather secure their own innocence, by not medling in publick Matters of State, then that they should be encouraged to meddle, upon hopes, that they could not be reacht: since their design could not be prov'd. And which design and malice being latent Acts of the mind, can never be otherwise prov'd, than by the nature of the Action it self: And therefore, the dolus malus, or design, needs not in this case be otherwiseprov'd, than from the Nature, and whole strain of the Paper it self. Which was so fit to Inflame the people, and abuse the Parliament; that dole and pre­meditat malice, could not have done more prejudice. But if it were necessary to clear the Earls Design, further then from the Paper it self. These Circumstances might be conjoyn'd with what results from the Paper.

[Page 36] First, That the Earls Father and Family, had owned eminently the Principles against which this Oath was taken, viz. The Rising in Armes, for Reforming without the Kings Authority, and did still own the Co­venant.

Secondly, The Earl himself had taken the Cove­nant.

Thirdly, The, Earl had all along opposed the Test in Parliament.

Fourthly, The Earl had positively told his Royal High­ness, he would not take the Test.

Fifthly, Neither the Ministers, nor any other within his Countrey, upon whom he could have Influence, had taken the Test.

Sixthly, I am affraid that the kindness shew'd to the Earl by the Fanaticks during his Tryal, and the noise they have made for him since that time: may clear too convincingly, that he design'd in that Paper to own that Interest, for they never manifest any concern, save for those of their own perswasion. And where have we ever heard them re­sent the injustice done to any Cavaleer, or shew more re­sentment than in this Earls Case? So that this Author do's himself prove that design, which he desiderats, and add to the guilt, which he designs to lessen.

All which Demonstrat, that he had an aversion for the Test, and so what he did against it, was done dolo malo; and whoever writes for him, writes against the Test.

2ly, What juster measures could this Judicature take, then by considering what the Supream Judicature of the Nation, formerly did upon the like occasion. But so it is that the Lord Balmerino being accused for having misin­terpreted the Kings actions, in a Petition given in to himself; [Page 37] in which, against this Statute, he endeavoured to raise jealousies in the Peoples mind, of designs to bring in Popery, and that by far remoter Inferences than these now insisted on. He was found guilty, though his Law­yers Pleaded for many dayes together, that there could be no Cryme, but where there was a Design. And there could be no design of Defaming the King, in a Paper that was meerly a humble Petition presented to himself, and accepted, and Read once by him, without any show of displeasure; and wherein nothing could be challenged, but by way of Inserence, and Implication. As also, this same Earl of Argyle being accused before the Parliament, in anno 1662: for Leasing making, betwixt King and People, upon the Acts mentioned in the Earls Inditement. He was found guilty upon that Expression, viz. That that storm would blow over, and then the King would see their Tricks. Which Words, he pretended did relate to pri­vat Persons formerly mentioned in the Letter, and not to the Parliament. And that every man should be al­lowed to Interpret his own Words, Which Interpre­tations being refus'd then, ought much less to be allow'd now, nam semel malus semper praesumitur malus, in eodem ge­nere malitiae.

In the next place, Mr. Mist endeavours to justifie the particular Expressions, against the Consequences drawn from them, by the Lybel: And as to the first, He tells us, that in that Expression, I will give Obe­dience as far as I can. He did not at all imply, that the Law was unjust, but only that he could notgiv Obe­dience to it: which cannot be Treason, since the refusing it absolutely would not be Treason.

[Page 38] To which it is answered, that the Authors mistake is very grosse, for it was never design'd that Trea­son should be inferred from these Words: but that which was inferred from it was, that it was a gross Evacuating of an Oath, and a making it ineffectual, to say that a man should swear by way of quality, that he will obey as far as he can, and that he declares, this is a part of his Oath. For there is no man, but will take any Oath with that quality: and whatever he takes with that quality, is no Oath, nor Obligation at all, that can bind him in the Legislators Sense: and though we look upon it as no fault, nor Cryme, not to Take the Test; yet to Take the Test so, as not to remain bound by it; and so as to Teach others how to Evacuat it, and so as to defame it, as this Expression do's, is certainly an abusing, Evacuating, and Swearing to an Oath in express contradiction to the Act of Parliament, and to the Oath it self.

And though it be no Reproach, not to Take the Oath at all, for then a man expresses no Opinion con­cerning it; yet certainly, that with the subsequent Ex­pressions being Dispersed among the People, could not but raise in them Jealousies, and a Contempt of the Government. For having made Oaths which men could not Take, though they were desirous; and for which afterwards he Insinuats this Reason, viz. That though the Parliament designed not to make contradictory Oaths, yet he thinks, That no man can Take that Oath, lut in his own Sense.

And whereas Mr. Mist pretends, that these Words are no Reflection upon the Parliament, since he do's not for­mally say, that the Parliament has made an Oath that has [Page 39] contradictions in it; but on the contrair, That the Parliament did not Designe to make Contradictory Oaths.

To this it is answered, That the Words are a ve­ry plain Reflection upon the Parliament; for no man can hear one refuse to take an Oath simply, be­cause, though the Legislator Designed not to Impose contradictory Oaths; yet de facto, the Oath is such, as that no man can Take it but in his own Sense, and with­out a particular Reconciliation of his own. But the Hear­er will certainly conclude, that the Parliament has been so Weak, Malicious, or Inadvertent, as to have con­trived an Oath, which has in it self Contradictions. For else to what purpose was it said, That he believed the Par­liament designed not to Impose Contradictory Oaths. And it is an extraordinary affront to a Parliament, to have made contradictory Oaths, though they did not design it; and to have made made such an Oath especially; That no man could Take it but in his own Sense: Whereby the whole Security of the Government is Evacuted. For the Security of the Government, as well as the Nature of Oaths, requires that an Oath should be Taken in the Legislators Sense. And can there be a greater moving of the People to Sedition, than to tell them that no man that Takes that Oath is bound by it farther, then he pleases, and further then his own Sense leads him. And that the Legislator is Ridiculous in having made Contradictory Oaths, which without Debating whether it be true or false, is a Reflection upon the State; and is unlawful for any privat Subject. And if any such thing were suffered upon pretence that it were possible, or true. It should be lawful for every privat man to accuse the Go­vernment.

[Page 40] As to these Words, I Take it in so far as it is Con­sistent with it Self, and the protestant Religion. Do's so far openly import; That in some things it is Incon­sistent with it Self, and the Protestant Religion; that who­soever would perswade us to the contrary, must think us Fools and Idiots. And I almost charge my Self with Folly, for taking pains to clear this. Since, why should the Earl have Scrupled, to Take this Oath simply, and have thought it necessary to adject, that, He Took it only in so far as it was Consistent with it Self, and the Protestant Religion. If he had not thought it Inconsis­tent: and either he must say, he thought it Consistent, or not. If he thought it Consistent, why did he not Take it simply: and if he thought it not Consistent, then he owns that He thought the Parliament made an Oath which was Inconsistent with it Self, and the Protestant Religion. And this was to Inflame the People, who are so reasonably jealous of any thing that is Inconsistent with the Prote­stant Religion. Beside that it is a great Reflection upon their Prudence, and Conduct. And so every Expressi­on in this Paper, do's clear up one another: and do's clear unanswerably, to all the World, that this Paper is a Defaming of the Parliament, and a depraving of its Laws, and a moving of the People to a Dislike of it. Which are the Words of the above cited Statute. And what can be a greater Depraving of a Law, then to make it pravam legem, a pernicious Law. And what can be more pernicious, then that Law which is Inconsistent with the Protestant Religion? and which Tyes men to Swear things which are Contradictory? and having affirmed all this upon Oath, and having dispersed these his Explicati­ons amongst the People, he did thereby shew a firm, [Page 41] and passionat Design, to make the People believe all these ill things of the Parliament. For no man uses to Swear any thing to another, without a great Design to have him believe it. Nor do's any man disperse Pa­pers amongst the People, for the Exoneration of his privat Conscience. Nor could he have any Design in that, save to Poison them with those Jealousies against the Test, to which he himself had shown such an aversion in the whole Tract of the affair.

I cannot but smyle at Mr. Mists Critical Learning, when he contends that the 'Earles Paper does only bear, that the Earl did Take the Oath in so far as it was Con­sistent with it Self, and the Protestant Religion. But did not adject the Word Only, as the Libel does. For he who Takes it in so far as it is Consistent, does Take it only in so far. And certainly the Author must con­fess, that either he Designed to Take it further then it was Consistent with the Protestant Religion: or, as far only as it was Consistent with the Protestant Religion, there being no midst betwixt these two: and so our Critick may choose any of the two he pleases.

The third Cryme, is, Treason, which is Inferred from these Words; I do declare I mean not to b [...]d up my self in my station, and in a lawful way, to wish, and endeavour any alteration, I think to the advantage of Church, and State. No [...] Repugnant to the Proestant Religion, and my [...] this I understand as a part of my Oath. Which Treason may be founded up­on many Reasons; yet to convince any Reader, in a plain, familiar, and unanswerable way; I lay down [Page 42] for a Position which I hope no man will deny; that all Nations have made it Treason, for any privat man to assume, or reserve to himself, the power of Reform­ing Church and State. For that is the highest Point of Government. Which how soon any privat man arrogats to himself, he becomes presently Governour of that Kingdom, and Superiour both in Church and State, therein. And therefore by the 1: Act 2: Sess: Par: 1: Ch. 2: and 1: Act 2: Par: Ch: 2: The power of Reform­ing is declared His Majesties sole Prerogative: and all the Civilians agree with us in this. Inter caeteras solli­citudines (verba sunt Theodosi) & Valentiniani in No­vel: de Iudaeis sam: haer: & pag:) quas amor publicus pervigili cogitatione nobis indixit, praecipuam Majestatis curam esse perspicimus, veram religionis indaginem. Cujus si cultum tenere potuerimus, iter prosperitatis humanis aperie­mos inceptis. vid. Ziegler: de jur: Majest. cap: 13: num: 1: Arnis: de jur: Majest: cap: 6: num: 15: And which is most reasonable, for whoever pretends to have power of Reforming, must be greater then he who is Reform­ed. And we have found by woful Experience, that such as have endeavoured to Reform, have withdrawn themselves from the subjection of the Supream Power, under which they liv'd. And except they resolve to force the Supream Power as to this Point, there is no necessity of reserving a Power to themselves.

From all which, I form this Argument; First, It is Treason to any man to reserve to himself the power of Reforming Church or State, that being the Priviledge and Prerogative of the Prince, both by the Common [Page 43] Law, and the above-cited Statute: But so it is the Earl does reserve to himself, in this Explication, a power of Reforming. And therefore he commits Treason.

The first Proposition is founded upon the Nature of the Monarchy, and the Reasons and Citations above­mentioned.

The second Proposition is likewise very clear, because he who reserves to himself a Power to make any altera­tion, reserves a Power to make all Alterations in Church and State. And consequently reserves a Power to Re­form, in Matters of the greatest Importance. For in all Languages, Any, comprehends All. As for Instance, Does not he who sayes he'l do any thing for the King, say as much, as if he said, I will do all things for him. Or does not he, who confesses he believes any thing that is in the Scripture, Imply that he believes all things that are in the Scripture. And consequently, that Pro­position of the Earls, viz. I întend not to bind up my self from endeavouring any alteration, I think to the Ad­vantage of Church and State. Resolves in, and is equi­valent to this Proposition. I intend not to bind my self up from making all alterations, that I shall think to the ad­vantage of Church or State. And if that be not Treason, nothing can be Treason.

The second Argument is, That all Lawyers are clear, that it is Treason to attempt against the Security of the Government, l 2. ff. ad l. Iul. Majest. But so it is, that he who reserves to himself a Power to Reform; at­tempts against the Security of the State. Which is clear by all the Civilians, Amongst whom I shall only cite [Page 44] Arniseus, ad securitatem Majestatis & Reipublicae quietem ni­hil excogitari potest efficacius quam si summa religionis in­spectio Majestati reservetur.

My third Argument in Fortification of the Statutes, formerly insisted on at the Debate. And for farther clearing the extent of that Alleadgance, that is required by the common Law, is founded upon Act 2. Ses. 2. Par. 1. Ch. 1. The very words whereof are, Therefore the Kings Majesty and Estates of Parliament, Declare that these Po­sitions, That it is lawful to Subjects, upon pretence of Re­formation, or other pretence whatsoever, to enter into Leagues or Covenants, or to take up Arms against the King, or that it is lawful to Subjects, pretending his Majesties Au­thority, to take up Arms against his Person, or these Com­missiona'ed by him: Or to suspend him from the Exer­cise of His Royal Government: Or to put limitations on their due Obedience, and Alleadgance, are Rebellions and Treasonable.

In which Words it is observable, that it is not the do­ing of these Deeds, but the very asserting of these Po­sitions, that it is Treason.

2ly, That no pretence or caution adjected to these Po­sitions, can defend them from being Treasonable.

3ly, That the Parliament thought it not sufficient to acquiesce in the special Enumeration; But so Jealous were they of such Tricks, that they subjoyn this gene­ral Clause, That it shall be Treason to put Limitations, on their due obedience, and alleadgance.

From which Words, I infer most clearly, that for a Subject, to declare he is not Tyed up, To wish or en­deavour any alteration, is Treason, whatever pretence [Page 45] it be done upon. For any alteration, comprehends all al­terations: and what man of common Sense, or Ingenui­ty can deny, but this is a putting Limitations upon his Obedience, and Alleadgance, which is here declared Treason. For what is a greater Limitation, than to re­serve to himself to be Judge how far he is Tyed? And what Expression or Limitation can be Treason by this general Clause, if this be not? Or of what use can this general Clause be, if it secure not against such Limita­tions as this? Nor do I think this Limitation, where­in the Earl still reserves to himself to be Judge, a great­er Security to the King, or Kingdom, than if a man should tell me, that he would lock my Money in a se­cure place, but would keep the Key of it himself, In which case. I am sure, he, and not I, were Master of that ney. 2ly, It being then Treason for any man to reserve to himself the Power of making such alterations as he shall think for the advantage of Church and State, viz. not repugnant to my Loyalty, and the Protestant Religion. The adjecting these Cautions cannot hinder this Paper to be Criminal; else,

1. The Covenant had not been Criminal, for the ve­ry Words of this Caution are in Covenant; The very Words of the Covenant being, Art. 1. That we shall en­deavour in our several Places and Callings, the Preservation of the reformed Religion. And, Art. 3. We shall with the same sincerity, reality, and constancy, endeavour to pre­serve and Defend the Kings Majesties Person; and Autho­rity: In the Preservation, and Defense of the true Prote­stant Rèligion. That the world may bear witnesse with our Consciences, of our Loyalty, and that we have no Thoughts, nor Intentions to diminish His Majesties just Power, or great­ness. [Page 46] Here are the very same Expressions, accompanied with many moe, in favours of the King.

2ly, That cannot be a sufficient Caution against Trea­son, which never hindred any man to commit Treason; but so it is, that notwithstanding of these Words, all the Covenanters own'd that they might lawfully rise in Arms, hold Parliaments, impose Taxes, and Oaths, enter into Leagues with forraign Princes, Hang and Head for Serv­ing the King, &c. Ergo, These Words are not a suffi­cient Caution, when subjoyn'd as a Caution to the power of Reforming. Which is uncontraverted Treason in its self. And did the great Protestations of Loyalty annexed to the Lord Balmerino's Petition, defend it from being con­demn'd.

3ly, Do we not see dayly, that these who Rebelled in anno 1666: and 1679: did openly own, That they lov'd the King as well as their Accusers did. But when he was in opposition to Religion, it was lawful to rise in Arms against Him. So litle Security has the King in flow­rishing Professions, when the Prosessors are to be Judges.

4ly, The adjecting of this Protestation, is called by Lawyers, protestatio contraria facto. Which kind of Protestation, all Lawyers under Heaven reject, as in­consistent with the thing, to which they are adjected. And thus the League of France, was Treason, though they did assert under the deepest Protestations, the sincerest Loyalty.

5ly, By the foresaid 4. Act Par. 1. Ch. 2d. All Glosses put upon the Laws of this Nation, in the late Rebelli­ous [Page 47] Parliaments, to the prejudice of their Alleadgance, are declared to be false, and disloyal; and contrary to the true, and genuine meaning of these Acts. And par­ticularly that Gloss, or Explanation, that what they did, was for the Preservation of Religion. Which is the very Explanation put by the Earl upon this Oath. And from which it clearly follows by a demonstrative consequence, that Explanations and Glosses put upon Oaths, and Acts of Parliament, contrary to the meaning of the Acts them­selves, are not to be respected. And being in Law holden and repute, as unlawful, they are so far from defending the Contraveeners, that they are themselves lookt up­on as new Crymes.

From all which, it clearly follows, that the Earl hav­ing reserved to himself in this Explanation, a power to endeavour what he should think to the advantage of Church and State. He did thereby commit Treason, and that this Treason is not taken off by the Cautions adjected, viz. The not Repugnancy to the Protestant Religion, and his own Loyalty.

Whereas it is pretended; First, That Treason requires a special Law from, which it ought to be inferred, I deny this Position, for our Lybels are oftimes found Re­levant on the common Law, and the Laws and Customs of Nations, and the nature of the Monarchy.

There was Treason before there was Law, for how soon Kings were Elected, it was Treason to rise in Arms against them, or to Murder or Betray them; and many of our Laws being but lately made, declare oft times what has been Treason, not for necessity, but for the better In­formation of the Leidges. And though we have Laws [Page 48] declaring it Treason, to seek Benefices at Rome; yet we have none declaring it Treason to assume the Title, or Power of the King in general, that being inherent in the nature of the Monarchy it self, Treason is the Fense of the Government, as Murder is of privat mens Lives; and to rise in Arms was Treason before the Statute, King Ia. 1. Nor have we yet any clear Statute against Mur­der: and if special Statutes were requisit in every case of Treason, the greatest Treason should often escape unpunished. For Law thought it unnecessary to provide against these, and every age produces new kinds of Treasonable Extravagancies; and Traitors would easily elude and cheat the express Words of a Statue, if that were all that were necessary. But who can deny that the Justices condemned a man justly for Treason, for saying, when he was askt if the King was a Tyrant: let his Coronation Oath, and his Actions, and particular­ly his usurping over the Church of Christ be compar­ed: and that will be soon known. And yet here was no explicite assertion; but yet what all men easily un­derstood, and which reproacht, and mis-represented the King as much, as any open Expression: and there was no Statute condemning that Expression, expresly. nor can there be a Law for every Expression: But yet the Earls Treason is founded upon the express Statute abovementioned.

And whereas it is pretended, 2ly, That the Earl might have as a Privy Counsellor, propos'd any thing to the King: and so a Reservation was necessar upon that ac­count.

To this it may be easily answered, that no Oath does [Page 49] hinder a man from doing what is Lawful; and so there needed be no Reservation nor Exception upon that, or the like Consideration. For an Exception must be of some thing that could oppose the Rule. But so it is the Oath which is the Rule in that Case, did not exclude any lawful Endeavours, at the desire, or command of the Prince: and so there needed no Exception as to these. But the former argument still Recurs, viz. He that will not bind himself up, as to any thing, reserves a power as to all things, or at least it must be Interpret of unlaw­ful things: For lawful things need no exception. And if this were sufficient, then the Parliament did unjustly, in declaring that it is Treason, to put limitations on our alleadgance: and that notwithstanding of any pretence whatsoever. Nor could any man commit Treason, if that were allowed; for he himself would be still Judge.

And whereas it is pretended, 3ly, That he disclaims the Covenant, and rising in Arms expresly in this Oath; and so he could not reserve any thing, as to these.

It is answered, that this were undenyable, if he took the Oath simply; but having taken the Oath only, In so far as it is consistent with it Self, and the Protestant Re­ligion. This Oath does not tye him, if he think the Pro­testant Religion shall require rising in Arms. And hav­ing taken the Covenant, if he still thinks the Covenant binds him, he renunces it not by his Oath: For this Oath tyes him only as far as he can; that is to say as far as he is free: and no man is free who thinks himself bound. And taking it only, as far as it is consistent with it [Page 50] self, God only, and the Earl knows how far that is; for he has not told us, how far it is consistent with it self; and very probably, such as have taken the Covenant, think not that Oath consistent with the Protestant Religion, in so far as it binds us not to take up Arms, if the Prote­stant Religion be in danger: and the Antitesters Papers, Printed by Mr. Mist, tell us plainly, that it is not consistent with it self, in so far as we swear to own the Successor, though differing in Religion from us. And yet we swear to the preservation of the Laws, of which the Coronati­on Oath is one. But whatever might have been said in defense of such Limitations, before we saw what dread­ful effects they had produced, both in the last age, and this. And that Parliaments had so severely condemned them as Treason. It is the duty of Judges to be severe to such as use them, and they have only themselves to blame, who split on a Rock, when they see a Bea­con set up to them. And it is much safer for the Com­mon-wealth, that such Papers be punished, then that it should be in danger by such Reservations, as leave eve­ry man Judge how far he is oblieged to Obey. And as there is great danger to the State on the one hand, if it passe unpunished. So there is none on the other, seing men may be secure in abstaining from such Ex­pressions, and Papers. And there was never any so unnecessary as this was. And might not Strangers, and our own Posterity, think all the miseries that should fall on us by Rebellions, and Civil Wars, ve­ry just punishments of our senselesse Security, if af­ter we had not only seen, but felt the mischief of such Glosses. We stood still unconcernedly, as men seing [Page 51] their own House set on fire, by the same hands which had help't to burn it formerly.

If any by Ignorance, or Error, stumble into a Legal; tho undesign'd Crime. The Law allows not Judges, by an insolent pity to justifie the Guilt, but suffers the King by a Judicious Clemency, to mitigat, or remit the Pu­nishment. In which the Subjects under Monarchy, are much happier than these of a Common-wealth, where, in many cases the Law must be cruel, or Judges must be Arbitrary. This is that sure City of Refuge, into which, no man who flees, perisheth. And if the Earl of Argile, had come in Will during the Debate, as use is. I am sure he had been Securer there, than by his Defenses.

But why should I admire, that this Author, and those of his Principles, do not see that this Paper is Treason. Since I dare say, they will not acknow­ledge that it is Treason to oppose the Succession, and to say that it can be altered by a Parliament: and yet our Parliament unanimously thought that to be Treason. And in the last age, they thought it not Treason, but duty to rise in Arms against the King, and to Call Parliaments without him. Though all the World abhorr'd us for it. So that the fault is not in our Parliaments, and Judges; but in the depraved Sense, and debauched Intellectuals of such, as have (by a long Custom of hating Authority) bred in themselves also, a hatred of every Person, and thing that can maintain it.

[Page 52] Since then GOD Almighty amongst the other Miracles which he has wrought for his Darling, as well as Represen­tative CHARLES THE MERCIFUL, begins to open the Eyes of the Blind, and to make some who were Crooked Walk Straight: Let us who Serve this gracious Mo­narch, Reason whilst His Enemies Rail; and be Just, whilst they are Extravagant: but withal, let us be asham'd, that they dare do more for Humour and Errors, than we for Duty and Law; and we may expect amongst other Re­wards, which the Rabble has not to bestow; that we will get also that Applause which is alwise the Slave of Victory; and which of late seem'd to Fan them so pleasantly, meerly because they were like to prevail. And for which, too many of late sacrific'd their Honour, and Loyalty. VVithout remembring that tho just Applause, is an Elogie VVritten by the Hand of Vertue, and a Monument Built of solid Merit. Yet that Applause which is unjust, is on­ly a sweet Poyson, a plausible Cheat, and the Dream of one who is Drunk.