THE Earl, as well as the Lords of privy Council, waited some dayes for the Answer of this Letter: But the Earl making his escape, a day or two, before it came, I shall take occasion to entertain you, in the mean time, with ane account of some thoughts that the Earl had set down in writing, in order to some dis­course he intended to have made to the Lords of Justitiary, 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 Majesties return came, and the sen­tence past.

And first, he takes notice, that on Moonday 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 houres, 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 surprised 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 Advocats 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 Earls Advocats 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 irritat 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 Interloquutour to be pro­nounced, the Assizers chosen, and sworn, and the Witnesses receaved, and examined, without once offering to say, or object any thing, or so much as inquiring, at either Assizers, or Witnesses, whether they had not been tampered with, and practised by promises, and threatnings, or whether some of them had not previously, and publikly 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 Assizers thus P. C.) 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 [Page 89] common decency of justice, nor even His Majesties Advocat'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 appeares plainly did bear him little kindness: For whereas Assizers do usually return their Verdict, proven or not proven rather then guilty or not guilty, and ought alwise to do so, where the relevancie is in dubio, and especially in a case of this nature, in which the alledged treason is no ouvert act, and indeed no act, nor so much as a real ground of of­fence, But plainly such a subtile, 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, for sooth, 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 Majesties Advocate did only pretend to infer from the Earls alledged silence, or not speaking loud eneugh, 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 that matter of fact, but by hear-say, with­out all regard to the witnessing of these Councellors 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 scarce 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 Majesties Advocate to get him made guilty of that point, to render him for ever uncapable of publik employment. And the Clerk of the Assize was so concerned in it that He twice misreckoned the votes, before he would yeeld that the Earl was assoyled, or acquit of the Perjury And this, a­mong other things, may serve to clear, how that whole matter was influ­enced, and mannaged: 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, thir 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 sound 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 [Page 90] spoken, and some of themselves had 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 Verdict of Treason might have the greater colour, and shew of candor, and sincerity. However it seems to be without measure hard to be prosecut with such a deadly Di­lemma of either Treason or Perjury, for you see, in their account, if the Earl swear with an Explanation, his Life is knockt down by Treason, and if without an Explanation, his Honour, which is dearer to him then his Life, is run thorow with Perjury. But, to compleat a fancie beyond bedlam, The Advocate urges, and several Assizers agree, at the same time, to condemn the Earl as Perjured, for not Explaining, and for Treason, for Explaining: Quis talia fando?

In the next place, the Earl's Papers contain some thoughts, and endea­vours, to remove certain mistakes, which, he had good ground to beleeve, did so much prompt, and precipitat the Iudges to pronounce so important a sentence against him, upon so weak and sandy foundations, and which were indeed either meer fancies, or so frivolous that though they were true they could never excuse them before men, far less exoner them before God Almighty. Where, laying down a true ground, that nunquam conclu­ditur in criminalibus, &c. and withall representing, how his Advocats were questioned, in so extraordinary a manner, for signing their opinion (which you have above Num. 32. Where you may see how fair, just, and safe it was) that now they da [...] no more plead for him, He sayes, He cannot be denyed to plead for himself, as he best may.

The first ground of mistake then that he was to represent was that he knew it had been told them, it was very much His Majesties Interest, and necessary for the support of the Government, to devest, and render him uncapable of publik trust: Which words had been oft said, and said to himself to perswade him there was no further rigour intended: But as he is very confident, our gracious King will never, upon any such pretence, allow any innocent person to be condemned, far less to be destroyed, in a picque or frolik, where his Majesty can reap no advantage; So he is perswaded, His Majesty hath no design to render him miserable, far less to cut him off, without a cause. And therefor concluds, it is only his misfortune, in his present circumstances, never having access to, nor being heard by His Ma­jesty, nor the case perfectly understood by him, that hath made His Ma­jesty give so much as way to a process to be raised or led, far less to a Sen­tence to be pronounced against him. But in effect, as this affair hath been managed all alongs, and somany engaged, in so extraordinary wayes, to act, and write against him, first and last, nothing should appear strange or surprising: However, as their own consciences, and God Almighty, knows how they have been brought to medle, and act, as they have done, So, one day or other, the world may likewise know it:

A second ground of mistake, which, he say's may impose upon them, is a confidence of his Majesties pardon intended for him, a pretence only given out to render the condemnation more easy; yet indeed least wish­ed for by those who where readyest to spread the report, and whereof the Earl had indeed more confidence then any that talked of it, if His Majesty were left to himself, and had the Case fully, and truely repre­sented [Page 91] to him: but as His Majesty needs not this false occasion to make his clemency appear, which is so well known over all his Dominions, by far more true and genuine discoveries, so it were the hight of injustice in their Lordships of the justitiary to proceed to sentence against him, upon such apprehensions, in case in their hearts they beleeve him inno­cent (as he certainly knowes they doe) besids, they cannot but see, their acting, upon so unjust a ground, will not only stain their names, and memories, but instead of alleviating rather aggravat their guilt, both in their own consciences when they reflect on it in cold blood, and in the sight of God Almighty: And if His Majesty, on importunity and a third application, should give way to execution, as he hath already given way, first to the process, and then to the sentence; or if (as some may design) execution shall be adventured on, without the formality of a new order (as the process was at first commenced, before His Majesties return, and so is not impossible) would not their Lordships be as guilty of his blood as if they had cut his throat?

And in effect, these are the grounds and excuses pretended, at this day, in privat, by such of his Judges, for their procedour, who are not yet come to have the Confidence, at all Occasions, to own directly what they have done.

A third reason why his Exculpation was not allowed, he says, might be, because the sustaining of it might have brought other Explanations above board, and discover both these who had made, and those who had ac­cepted them, and perhaps not have left their own bench untoutched. But as this Artifice will not keep up the Secret; And as this way of shift­ing is neither just nor equall, so to all interested it is the meanest of Secu­rities; For His Majesties Advocate hath already told us, that His Maje­sties Officers can never wrong him: And although the Lords and He should conceal what others had done, it might make themselves more guilty, But not prove any Exoneration to those concerned, without a down-right Remission: Whereas it is manifest, that if their Lordships had admitted the Earl's Exculpation, upon the sure and evident grounds therein contained, it would not only have answered the Justice of his case but vin­dicated all concerned.

And lastly, he was to tell them, that possibly they might be inclined to go on, because they were already so far engaged as they knew not how to retreat with their honour: but, as there can be no true honour where there is manifest wrong, and injustice, so, in the frail and fallible condition of human things, there can be no delusion more dangerous, and pernicious then this, that unum scelus est alio scelere tegendum. And here, the Earl thought to lay before them, very plainly and pertinent­ly, some remarkable and excellent Rules, whereby L. Chief justice Hales, a renouned judge of our nighbour nation, tells he did govern himself, in all criminal cases, which (adds the Earl) if they took a due impression, would certainly give them peace, and joy, when all the vain considerati­ons that now amuse will avail them nothing.

The Rules are these

• I. Not to be rigid in matters purely consciencions, where all the harm is diversity of judgment.
• [Page 92] II. That Popular, or Court applause, or distaste, have no influence on any thing is to be done, in point of distribution of justice.
• III. In a criminal case, if it be a measuring cast, then to incline to mercie and acquital.
• IV. In criminal things, that consist only of words, where no more harm ensues, moderation is then no injustice.
• V. To abhor all privat solicitations, of what kynd soever, and by whomsoever.
• VI. In maters depending, not to be solicitous what men will say or think, so long as the rule of justice is exactly kept.
• VII. And lastly, never to ingage themselves in the begining of a cause, but reserve themselves un-prejudged, till the whole bussines be heard.

Then the Earl goes on, and makes notes, for additional defences, reducible to these heads.

• I. The absolute innocence of his Explication, in its true, and genuine meaning, from all crime or offence, far more from the horrible crimes libelled.
• II. The impertinency, and absurdity of His Majesties Advocat's arguings, for inferring the crimes libelled from the Earl's words.
• III. The reasonableness of the Exculpation.
• IV. The Earl's Answers to the Advocat's groundlesse pretences for aggravating of his case.

As to the first, the Earl, waving what hath been said, from common rea­son, and humanity it self, and from the whole tenour, and circumstanc­es of his life, comes closs to the point by offering that just, and genuine Explanation of his Explication which you have above Num. 21.

I have delayed hitherto to take the Oath appointed by the Parliament to be taken, betwixt and the first of January nixt: But now being required, near two moneths sooner, to take it: this day peremptorly, or to refuse: I have considered the Test, and have seen several objections moved against it, especially by many of the Orthodox clergie, not­withstanding whereof, I have endeavoured to satisfie my self with a just explication, which I ha [...]e offer, that I may both satisfie my Conscience, and obey Your Highness, and Your Lordships Commands in taking the Test, though the Act of Parliament do not simply com­mand the thing, but only under a certification, which I could easily submit to, if it were with Your Highness favour, and might be without offence; But I love not to be singular: and I am very desirous to give obedience in this and every thing, as far as I can, and that which clears me is that I am confident, what ever any man may think or say to the preju­dice of this Oath, the Parliament never intended to impose contradictory Oaths, and be­cause their sense (they being the framers and imposers) is the true sense, and that this Test, enjoyned, is of no privat interpretation, nor are the Kings Statuts to be Inter­preted, but as they bear, and to the intent they are made, therefore I think no man, that is no privat Person, can Explain it for another, to amuse or trouble him with (It may be) mistaken glosses: But every man, as he is to take it, so is to explain it, For himself, and to endeavour to understand i [...], notwithstanding all these exceptions, in the Parliaments which is its true, and genuine sense; I take it therefore, notwithstanding any scruple made by any, As far as it is consistent with it self, and the Protestant Religion, which is wholly in the Parliaments sense and their true meaning; Which (being present). I am sure, was owned by all to be the securing of the Protestant Religion, founded on the Word of God, and contained in the Confession of Faith recorded I. 6. p. 1. c. 4. And not out of Scruple as if any thing in the Test did import the contrair: But to clear my self from Cavils, as if thereby I were bound up further then the true meaning of the Oath; I doe declare that by that part [Page 93] of the Test that there lyes no Oblgation on me &c. I mean not to bind up my self in my station, and in a lawfull way; still disclaiming all unlawfull endeavours, To wish, and endeavour any alteration, I think, According to my conscience, to the advantage of Church, or State, not repugnant to the Protestant Religion, and my Loyalty: And by my Loyalty I understand no other thing then the words plainly bear, to wit the duty and alle­giance of all Loyal Subjects; and this Explanation I understand as a part, not of the Test or Act of Parliament, but as a qualifying part of my Oath that I am to swear, and with it I am willing to take the Test, if your Royall Highness and your Lordships allow me. Or otherwise, in submission to Your Highness and the Councils pleasure, I am content to be held as a refuser, at present.

Which Explanation doth manifestly appear to be so just, and true, without violence or straining, so clear & full without the least impertinency, so notour and obvious to common sense, without any Commentary, so Loy­al, and honest, without ambiguity, and lastly so far from all, or any of the crimes libelled that it most evidently evinceth that the words thereby explained are altogether innocent: And therefore it were lost time to use any arguments to enforce it.

Yet seing this is no trial of wit, but to find out Common sense, let us examine the Advocats fantastical paraphrase, upon which he bottoms all the alledged crimes, and see whether it agrees, in one jot, with the true and right meaning of the Earl's words; and (as you may gather from the indict­ment) It is plainly thus.

I have Considered the Test; which ought not to be done, And am very desirous to give obedience, as far as I can, but am not willing to give full obedience; I am confident, the Parliament never intended to impose con­tradictory Oaths; that is, I am confident they did intend to impose con­tradictory Oaths; And therefor I think no man can explain it but for him­self; that is to say, every man may take it in any sense he pleases to de­vise, and thereby render this Law, and also all other Laws, though not at all concerned in this affair, useless: And so make himself a Legislator, and usurp the supreme Authority: And I take it, in so far as it is consistent with it self, and the Protestant Religion, whereby I suppose that it is not at all consistent with either; nor was ever intended by the Parliament it should be consistent: And I declare that, by taking this Test, I mean not to bind up my self, in my station, and in a lawfull way, to wish, or endea­vour any alteration, I think, to the advantage of Church, or State, not repugnant to the Protestant Religion, and my Loyalty: Whereby I de­clare my self, and all others, free from all obligation to the Government, either of Church, or State, as by law established, and from the duty, and Loyalty of good Subjects; Resolving of my self to alter all the Fun­damentals, both of Law, and Religion, as I shall think fit: And this I un­derstand as a part of my Oath: that is as a part of the Act of Parliament, by which I take upon me, and usurp the Royal Legislative power.

Which sense and Explanation as it consists of the Advocat's own words, and was indeed, every word, necessar to infer these horrible crimes con­tained in the Indictment, So, to speak with all the modesty that truth will allow, I am sure, it is so violent, false, and absurd, that the greatest difficulty must be to beleeve that any such thing was alledged, far more receaved, and sustained in Judgment, by men professing only Reason, far less Religion.

But thirdly, if neither the Earl's true, genuine, and honest sense, nor this violent, corrupt, and false sense, will satisfy, let us try what transpros­ing [Page 94] the Earl's Explanation will do, and see how the just contrary will look.—And it must be thus.

I Have considered the Test, nor am I at all desirous to give Obedience, so far as I can; I am confident the Parliament intended to impose contradictory Oaths; And therefor I think, every man can explain it for others, as well as for himself, and take it, without reconciling it, either to it self or his own sense of it: And I doe take it, though it be inconsistent with it self, and the Protestant Religion: And I declare, that I mean thereby to bind up my self never (either in my station, or in any lawfull way whatsoever) to wish; or endeavour, in the least, any alteration, tho to the advantage of Church, or State, and tho never so suitable, and no way repugnant, to the Protestant Religion, and my Loyalty: And, though this be the express quality of my swear­ing, yet I understand it to be no part of my Oath.

Now whether this contradictory conversion be not treason or highly cri­minal, at best, I leave all the World to Judge; and to make both s [...]es of a contradiction, that is both the Affirmative and Negative of the same pro­position, treason is beyond ordinary Logik. Escobar finds two contrary wayes may both be probable and safe wayes to go to heaven but neither he nor the Devil himself have h [...]th [...]rto adventured to declare two contradi­ctory propositions both damnable, and either of them a just cause to take away mens Lives, Honours, and Fortunes.

But where the disease is in the will it is lost Labour to apply Remedies to the understanding; and must not this be indeed either the oddest trea­son, or strangest discovery that ever was hear'd of? The Bishop of Edin­burgh sees it not, witnesse his Vindication saying the same, and more, Nor many of the Orthodox Clergie, witness their Explanations, Nor his Royall Highness, in privat, nor at first in Council nor all the Councellors, when together at the Council-board, Nor the President of the Council nor the then President of the Session (now Chancellour) though He rose from his seat, to be sure to hear, nor any of the most learned lawyers, witness their signed Opinion, nor the most learned of the Judges on the bench, nor the Generality of the knowing persons, either in Scotland, or England: wonderfull treason one day seen by none, another day seen by so many! A stander-by hearing the trial, and the Sentence, said, he beleeved the Earl's words were by Popish magik transsubstantiat, for he saw them the same as before; Another answered, that he verily thought it was so, for he was confident, none could see Treason in the words that would not, when ever it was a proper time, readily also profess his beleefe of transubstan­tiation, but he beleeved many that professed both beleeved neither.

The second Head of the Earl's additional defences contains the imperti­nencies, & absurdities of the Advocat's Arguings: And here you must not expect any solid debate, For as there is no disputing with those that deny Principles, so as litle with those who heap up Phantastical, and inconse­quential inferences, without all shadow of Reason. If a stone be thrown though it may do hurt, yet having some weight it may be thrown back, with equall or more force: But if a man trig up a feather, and fling it, It is in vain to throw it back, and the more strength the less success: It shall therefor serve, by acurso [...]y discourse, to expose his arguments, which [Page 95] are in effect easier answered then understood; and, without any serious arguing, which they cannot bear, rather leave him to be wise in his own eyes then by too much empty talk hazard to be like him.

He alledges first, that the Earl, instead of taking the Test in its plain and genuine meaning, as he ought, doth declare against, and defame the Act that enjoyned it, which is certainly a great crime: But how? In as much, sayes the Advocate, as he tells us, That he had considered the Test: Which I have indeed hear'd say was his greatest crime, and that he ought to have taken it, with a profound and devout ignorance, as some of our most inventive Politicians boasted they had done. But the Earl sayes, that he was desirous to give obedience, as far as he could; whereby, sayes the Advcat, He insinuats that he was not able to give full obedience. This is not the meaning; but what if it were, and that indeed he coud not? Have not thousands given no obedience yet even in law are guiltlesse? And ought not that to please his Highnesse, and the Council, that is ac­cepted of God Almighty, and is all any Mortal can perform? But the Earl, sayes the Advocate, Goes on, that he was confident the Parliament never intended to impose contradictory Oaths; whereby, sayes the Advocat, He abuses the people with a beleef that the Parliament did intend to impose such. Wonderfull reasoning! All men know that Parliaments neither are, nor pretend to be infallible: And in our present case, hun­dreds of Loyall subjects complain of contradictions, and inconsistencies, some way or other, creept into this Oath; And even the Council have yeelded, so far, to their Exceptions, as to make an alteration upon it, for satisfying those scruples, far beyond any thing the Earl said; and such an alteration, as, I beleeve, few dreamed of, and I am certain, none durst have attempted, without their express command and Authority: and yet, in the midst of all this, the Farl's charitable, and honest Opi­nion, in behalf of the Parliaments good intentions, must be perverted to a direct slander. But, the Earl sayes That every man must explain it for himself; And so, no doubt, he must, if the Test be either in it self, or in his apprehension, ambiguous, otherwise how can he swear in Iudg­ment? But this the Advocate will have to be a mans own sense, and there­upon runs out, That Hereby this Law, and Oath, and all Laws, and Oaths are rendered useless, and to no purpose: And further the le­gislative Power is taken from the Imposer, and setled in the Taker of the Oath, Which certainly is a most treasonable presumption. But first, although there be no Reason to strain, or mistake the Expression, yet the Earl did not say, That every man must take the Test in his own sense.

II. The Council hath now explained the Test, for the clergy: Might not then the Earl, before their Explanation was devised, say, by the Coun­cils allowance, which he had, That he might explain it for himself? For if an ambiguous proposition, (the Test for example) may be reconciled to it self, two different wayes, must not the Taker reconcile it, as in his own sense he thinks it doth best agree with the genuine meaning of the words themselves, and with the sense, he conceaves, was intended by the Par­liament that formed it; especially before the Parliament emitt their own Explanation? And is it not juster to do it so then in any other mans sense, which he thinks agreesless with the words, abeit they may be thought by others to be reconciliable another way?

III. All this looks like designed mistakes and traps; for should any [Page 96] man swear, unless he understand? And where an Oath is granted to be am­biguous, can any man understand, unless, in want of the imposers help, he explain it for himself?

IV. Was ever a man's Explaining an Oath for himself, before taking it, far less his bare saying that he must explain it, before he take it, al­ledged to be, The overturning of all Laws, and Oaths, and the usurp­ing of the Legislative power, and making of new Laws? certainly to offer to answer such things were to disparage common Reason.

And lastly this is strange Doctrine from the Advocate, who himself, in Council, did allow, not only the Earl his Explanation, but that Ex­planation to the Clergie, contrary, as appeares by their Scruples, to what they that took it thought either the Parliaments design or the plain words of the Test could bear, and certainly different from the sense many had already taken it in, and wherein others were commanded to take it. And whatever the Advocate may cavil to insnare the Earl, sure he will not allow that by his explaining this Oath he himself hath taken on him the Legislative power of the Parliament. far less, though he should acknowledge it, will any beleeve that he hath, or could thereby make all Laws or Oaths useless. By this you see what strange stuffe he pleads which deserves no answer.

But, sayes the Advocate, the Earl affirms, He takes the Test, only as far as it consists with it self, and with the Protestant Religion, by which he most maliciously insinuats that it is inconsistent with both. But, first this only is not the Earl's but the Advocat's addition. 2 ^ly I would soberly ask the Advocate, or any man, whether the Test, as it includs the Confession in general, and consequently all contained in it, was not either really, or at least might not have been apprehended to be inconsistent with it self? Else what was the use or sense of the Councils explanation, wherein it is de­clared, that men doe not swear to every proposition of the Confession, but only to the Protestant Religion therein contained? And if it was either in­consistent, or apprehended to be so, how could the Earl, or any honest man swear it in other terms, with a safe Conscience? But thirdly. If Par­liaments be fallible, and this Oath, as being ambiguous, needed the Councils Explanation to clear it from inconsistencies, must the Earl's words, when he was to swear, that he took it in so far as it was consist­ent, be in this case understood as spoken maliciously, and with a criminal intent, when all Sense, Reason, and Religion, made this caution his duty? And if it be so criminal for one going to swear to suppose a possi­bility of inconsistencies in it, Is it not manifestly more criminal in others plainly to confess, and grant that there are inconsistencies in it, after they have swallowed it in gross, without any explanation whatsoever?

But, sayes the Advocate, The Earl hath invented a nevv vvay, vvhere­by no man is at all bound to the Test; For hovv can any man be bound, if he vvill obey only as far as he can? And yet, it will be hard even for the Advocate, tho hesometimes attempts indeed more then he and all the World with him can do, to tell how a man can obey farther: and I am sure, that in a matter of this kind, viz. the free tender of an Oath, all discreet men will Judge the Earl's offer both frank and obliging. Then he asks, To vvhat the Earl is bound, if he be bound no further then he himself can obey? manifest confusion! and never either spoke by the Earl, nor at all pertinent to his case; besides he freely acknowledges, that all men are bound to more then [Page 97] they can do) or so far as the Test is consistent vvith it self, and the Pro­testant Religion (a strange doubting or! yet, I dare say, imports as much as his Majesty expects of any, and more then the Advocate will ever per­form) But, sayes the Advocate, vvho can determine to vvhat the Earl is bound? Which sayes plainly, that either the Test agrees with it self, and the Protestant Religion in nothing, or that the Protestant Religion is no­thing, Both which the Earl thinks far from truth. But the Advocat's rea­soning reflects far more on the Councils Explanation, where it is plainly said, That the Confession is not svvorn to in the Test, but only the Protestant Religion contained in the Confession, so that the Protestant Religion indefi­nitly is that which is said to be sworn to: Now, pray, is it not much worse for a man to say, that by taking the Test he svvears only to the Con­fession as it contains or agrees vvith the Protestant Religion (which is in effect to set the Protestant Religion at variance with its own Confession, and so to reproach and ranverse the standard, & make void the very security that the Parliament intended) then to say, That he swears the Test as it a­grees with it self & the Protestant Religion, which imports no such insinua­tion? But from these pleasant Principles He jumps in to this Fantastik Conclusion, That therefore it cannot be denyed but the Earl's interpreta­tion destroyes, not only this Act, but all Government, and makes every mans conscience or humour the Rule of his obedience.

But first, as to the whole of his arguing, the Earl neither invents, sayes, nor does any thing, except that he offered his Explanation to the Coun­cil, which they likewise accepted. 2ly. What mad inferences are these, You say, you will explain this Oath for your self, therefore you over­turn all Government, and vvhat not? Whereas it is manifest, on the other hand, that if the Earl apprehending, as he had reason, the Oath to be ambiguous, and in some things inconsistent, had taken it vvithout ex­plaining it for himself, or respect to its inconsistency, it might have been most rationally concluded, that in so doing he was both impious and per­jured. 3ly. It is false, that the Earl doth make his Conscience, any other way, the rule of his obedience, then as all honest men ought to do: That is, as they say, To be Regula regulata, in conformity to the undoubted Regula regulans, the eternal rules of truth and righteousness, as is manifest by his plain words. As for what the Advocate insinuats of humour insteed of Conscience, it is very well known to be the Ordinary reproach whereby men that have no Conscience endeavour to defame it in others.

But the Advocate is again at it, and having run himself out of all conse­quences, he insists and inculcats, that the Earl hath sworn nothing. But, it is plain that to swear nothing is none of the crimes libelled. 2ly. The Earl swears positivly to the Test as it is consistent vvith it self and the Prote­stant Religion, which certainly is something; unless the Advocate prove, as he insinuats, that there is nothing in the Test consistent with either. And 3ly. if the Protestant Religion, and the Earl his reference to it be no­thing, then is not only the Council sadly reproached, who, in their Expla­nation, declare this to be the only thing sworn to, in the first part of the Test, but our Religion quite subverted, as far as this Test can do it.

But next for the treason, the Advocate sayes, That the Earl expresly declares, he means not by the Test to bind up himself, from vvishing, or endeavouring, in his station, and in a lavvful vvay, any alteration he shall think for the advantage of Church, or State; whereby, sayes he, [Page 98] the Earl declares himself, and others, loosed from any obligation to the Government, and from the duty of all good Subjects, and that they may make vvhat alterations they please. A direct contrariety, insteed of a just consequence; as if to be tyed to Lavv, Religion, and Loyalty, were to be loosed from all three; can there be a flatter and more ridiculous contradiction? Next the Advocate pretends to found upon the fundamental Laws of this, and all nations, whereby it is treason for any man to make any alteration he thinks fit for the advantage of Church or State. But first, The Earl is not, nor cannot be accused of so much as wishing, much less endeavouring or making any alteration, either in Church or State, only he reserves to himself the same freedom, for wishing, which he had before his Oath, and that all that have taken it do in effect say they still retain. 2ly. For a man to endeavour, in his station and in a lavvful vvay, such altera­tions in Church, or state, as he conceives to their advantage, not re­pugnant to Religion, and Loyalty, is so far from being treason that it is the duty of every subject, and the Svvorn duty of all His Majesties Councel­lors, and of all Members of Parliament: But the Advocate by fan­cying, and misapplying Lavvs of Nations, wresting Acts of Parlia­ments, adding, taking away, chopping and changing words, thinks to conclude what he pleases. And thus he proceeds, That the treason of making alterations is not taken off by such qualifications, of making them in a lavvful vvay, in ones station, to the advantage of Church, or State, and not repugnant to Religion or Loyalty. But how then? Here is a strange matter! Hundreds of alterations have been made, within these few years, in our Government, & in very material points, & the Kings best Subjects, and greatest Favourits, have both endeavoured, and effectuat them: And yet, because the things were done according to the Earl's qualificati­ons, insteed of being accounted treason they have been highly commended & rewarded. The Treasury hath been sometimes in the hands of a Treasurer, sometimes put into a Commission, backward and forward: And the Senators of the Colledge of Iustice (the right of whose places was thought to be found­ed on an Act of Parliament giving His Majestie the Prerogative onely of pre­senting) are now commissioned by a Patent under the great Seal, both which are considerable alterations in the Government, which some have opposed, others have vvished and endeavoured, and yet without all fear of treason, on either hand; only because they acted according to these qualifications, in a lawful way, and not repugnant to Religion and Loyalty. But that which the Advocate wilfully mistakes (for it is impossible he could do it ignorant­ly) is, that he will have the endeavouring of alteractions in general not to be of it self a thing indifferent, & only determinable to be good or evil by its qualifications (as all men see it plainly to be) but to be, forsooth, in this very generality intrinsecally evil; a notion never to be admitted on earth, in the frail and fallible condition of human affairs. And then he would establish this wise Position by an example he adduces, That rising in arms against the King (for so sure he means, it being otherwise cer­tain that rising in arms in general is also a thing indifferent, and plainly determinable to be either good or evil as done with or against the Kings Authority) is treason, and sayes, If the Earl had reserved to himself a liberty to rise in arms against the King, though he had added in a lavv­ful manner, yet it would not have availed, because, (and he sayes well) This being in it self unlavvful the qualifications had been but shamms and [Page 99] contrariae facto. But why then doth not his own reason convince him, [...]here the difference lyes? viz. That rising in arms against the King is in itself unlawful, whereas endeavouring alterations is only lawful, or un­lawful, as it is qualified; and, if qualified in the Earl's Terms, can never be unlawful. But, sayes the Advocate, The Earl declares himself free to make all alterations, and so he would make men beleeve that the Earl is for making All or Any, without any reserve, whereas the Earl's words are most express, that he is, Neither for making all or any, but only for wishing and endeavouring for such as are good, and lawful, and in a lawful way, which no man can disown, without denying common reason, nor no sworn Councellour disclaime, without manifest perjury. But the Advocat's last conceit is, That the Earl's restriction is not as the King shall think fitt, or as is consistent with the Law, but that himself is still to be judge of this, and his Loyalty to be the standard. But first, The Earl's restriction is expresly according to Loyalty, which in good sense is the same with according to Law, and the very thing that the King is ever supposed to think. Secondly, as neither the Advocate, nor any other, hitherto, have had reason to distinguish the exercise, and actings of the Earl's Loyalty from those of His Majesties best Subjects, so is it not a marvellous thing that the Advocate should prosesse to think (for in reality he cannot think it) the Earl's words, His Loyalty, which all men see to to be the same with his duty, and sidelity, or what else can bind him to his Prince, capable of any quible, farr more to be a ground of so horrid an accusation? And whereas the Advocate sayes, The Earl is still to be judge of this; It is but an insipid calumny, it being as plain as any thing can be that the Earl doth nowise design His thinking to be the rule of right, and wrong, but only mentions it as the necessary application of these excellent, and unerring rules of Religion, Law, and Reason, to which he plainly resers, and subjects, both his thinking and himself, to be judged accordingly. By which it is evident, that the Earl's restri­ction is rather better, and more dutyful then that which the Advocate seems to desiderat: And, if the Earl's restrictions had not been full eneugh, it was the Advocat's part, before administrating the Oath, to have craved what more he thought necessary, which the Earl, in the case, would not have refused. But it is beleeved, the Advocate can yet hard­ly propose restrictions more full and suitable to duty then the fore-men­tioned of Religion, Law, and Reason, which the Earl did of himself profer. As for what His Majesties Advocate add's, That under such professions, and reserves, the late Rebellions, and disorders, have all been carried on, and fomented; It is but meer vapour; for, no rebel­lion ever was, or can be, without a breach of one, or other of the Earl's Qualifications; which doth sufficiently vindicat that part of the Earl's Ex­planation.

The Advocate insists much, that Any is equivalent to All; and that All comprehends Every particular under it; which he would have to be the deadly poyson in the Earl's words: And yet the Earl may defy him, and all his detracters, to find out a case of the least undutifulness, much less of rebellion, that a man can be guilty of, while he keeps within the excellent Rules, and limitations, wherewith his words are cautioned. I could tell you further, that so imaginary, or rather extravagant, and ri­diculous is this pretended Treason that there is not a person in Scotland, either of these who have refused, or who by the Act are not called to take [Page 100] 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 sa [...] it) by the Test, in their station, &c. to wish and endeavour any altera­tion, &c. Nay I desire the Advocate to produce the man, among those that have taken the Test, that will affirm, that by taking it he hath bound up himself never to wish or endeavour any alteration, &c. according to the Earl's Qualifications, and I shall name hundreds (to Whom his High­ness, as you have heard, may be added) that will say they are not bound up.

So that by this conclusion, if it were yeelded, all Scotland are equally guilty of treason, the Advocate himself, to say nothing of His Royal High­ness, not excepted: Or if he still think he is, I wish he would testify un­der his hand to the World, that, by his Oath he is bound up never to wish, nor endeavour any alteration he thinks to the advantage of Church or State. in a lavvful way, nor in his station, though neither repugnant to the Protestant Religion, nor his Loyalty. And if this he do, he does as a man, if not of sense, at least of honour; but if not, I leave a blank for his Epithets.

But that you may see that this whole affair is a deep Mystery, Pray, notice what is objected against the last part of the Explanation. This I un­derstand as a part of my Oath. Which, sayes the Advocate, Is a treason­able invasion upon the Royal Legislative power, as if the Earl could make to himself an Act of Parliament, since he who can make any part of an Act may make the whole. And then, say I, farewell all Takers of the Test with an Explanation, whether the Orthodox clergy, or Earl Queens­berry (tho himself Justice generall) who were allowed by the Council so to do: seing that whether they hold their Explanation for a part of their Oath or not yet others may, and in effect all men of sense doe understand it so: and thus, in the Advocat's Opinion, they have treasonably invaded the Legislative povver, and made an Act of Parliament to themselves: Neither, in that case, can the Councils allovvance excuse them, seing not only the Earl had it, as well as they, but even the Council it self can­not make an Act of Parliament, either for themselves, or others. But Sir, I protest, I am both ashamed, and wearied of this trifling; And therefore to shut up this Head, I shall only give a few remarks. First, you may see, by the Acts of Parliament upon which the Advocate sounds his indictment, that as to Leasing-making and depraving Laws, all of them run in these plain, and sensible terms; The inventing of narrations, the making, and telling of lyes, the uttering of wicked, and untrue calumnies, to the slander of King, and Government, the depraving of his Laws, and misconstruing his proceedings, to the engendering of dis­cord, moving and raising of hatred, and dislike betwixt the King and his People. And, as to treason, in these yet more positive terms; That none impugne the dignity and authority of the three Estats, or seek, or procure the innovation, or diminution thereof. Which are things so palpbale, and easily discerned, and withall so infinitly remote both from the Earl's words and intentions, or any tolerable construction can be put on either, that I confess, I never read this indictment but I was made to wonder that its forget and maker was not in looking on it deterred by the just apprehensions he might have not only to be sometime accused as a manifest depraver of all Law but to be for ever accounted a gross, and [Page 101] most disingenuous perverter of common sense. The Earl's words are sober, respectful, and duty fully spoken, for the exoneration of his own Conscience, without the least insinuation of either reflection or slander. much less the impugning of the Authority of Parliament, as the Earl may appeal not only to his Majesties true and Royal sense, but to the most scrupulous, and nyce affecters of the exactest discerning, besids 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 then the plainest defamations. But what of all this? Must there­fore such generalls be left to the phantastik application of every wild imagination, to the confounding of the use of speach, and subverting of of humane Society, and not rather be still submitted to the Judgement of common sense, for their true and right understanding, and the deduc­ing thence these strong and natural inferences talk't of? Of which good sense if the Advocate do but allow a grain weight, it is evident that the inferences he here libells against the Earl must infallibly be cast, and by all rational unbyassed men be found strange, unnaturall, and monstrous.

For S ^r 2ly, pray, observe these rational, and sound Maxims he sounds his inferences on, and they are manifestly these. First, That he who sayes he will onely obey as far as he can invents a new way whereby no man is at all bound to obey. 2ly, That he who in the midst of hundreds of ex­ceptions, and contradictions objected against on Oath, injoyned by Act of Parliament, and still unanswered, sayes, that he is confident the Parliament never intended to impose contradictory Oaths, reproaches the Parliament. 3ly. That he that sayes he must explain an ambiguous Oath for himself, before he take it, renders all Laws, and Oaths useless and makes himself the Legislator. 4ly, That he that sayes that he takes this Oath, as far as it is consistent with it self, and the Protestant Reli­gion, swears nothing. 5ly, That he that declars himself not tyed up by the Test from endeavouring, in a lawful way, such alterations as he thinks to the advantage of Church, and State, consistent with Religion, and Loyalty, declares himself, and all others, loosed from the Govern­ment, and all duty to it, and free to make any, and all alterations that he pleases. And 6ly That he that takes the Test with an expla­nation, and holds it to be a part of his Oath, invads the Legislative pow­er, and makes Acts of Parliament.

Upon which rare, and excellent propositions, I dar say, The Earl is content, according to the best Judgment, that you, and all unbyassed men, can make either of their truth, or of my ingenuity in excerping them, to be adjudged guilty or not guilty, without the least fear, or apprehension of the issue.

And in the third and last place, I shall only intreat you to try how the Advocat's reasoning will proceed in other cases, and what brave work may be wrought by so usefull a tool. Suppose then a man refuse the Test simply, or falls into any other kind of non-conformity, either civil, or Eccle­siastik, [Page 102] or pay's not the Kings custom, or other dues, or lastly under­stands an Act otherwise then the Advocate thinks he should, is not his Indictement already formed, and his process as good as made? viz. That he reguards not the Law, that he thinks it is unjustly, or foolishly enacted, that he will only obey as far as he can, and as he pleases, and thereby renders all Laws useless, and so reproaches the King and Par­liament, and impugns their Authority, and assumes to himself the Legislative power, and therefore is guilty of Leasing-making, depra­ving his Majesties Lavvs, and of treason; of which crimes above men­tioned or one or other of them, he is actor art and part: Which being found by an Assize, he ought to be punished, with the pains of death, forfaul­ture and escheat of lands and goods, to the terror of others to doe or com­mit the like hereafter. And, if there be found a convenient Judge, the poor man is undoubtedly lost.

But, Sir, having drawn this parallel, rather to retrive the Earl's case, then to make it a precedent, which, I hope, it shall never be, and choosing ra­ther to leave the Advocate then follow him in his follies, I forbear to urge it further.

These things considered, must it not appear strange, beyond expressi­on, how the Earl's Explanation, such as it is, did fall under such enor­mous and grievous misconstructions: For, setting aside the Councils allow­ance, and approbation, (which comes to be considered under the next head) suppose the Earl, or any other person, called before the Council, and there required to take the Test, had, in all due humility, said, either that he could not at all take it, or, at least not without an Explanation; because the Test did contain such things as, not only he, but many other, and those the best of the Loyal and Orthodox Clergy, did apprehend to be contradictions, and inconsistencies: And thereupon had proponed one or two such as the Papers above set down do plainly eneugh hold out, and the Bishop in his Explanation rather evades then answers; would it not be hard, beyond all the measures of equity, and charity, to look upon this as a designed reflection, far more a malicious and wicked slander and the blackest treason? We see the Act of Parliament doth not absolutly injoyn the taking of the Test, but only proposeth it to such as are intrusted in the Government, with the ordinary certification, either of losing, or holding their Trusts, at their option. We know also, that, in cases of this nature, it is far more suitable both to our christian liberty, and the respect we ow to a christian Magistrat, to give a reason of our conscien­cious non-complyance, with meekness, and fear, then, by a mute com­pearance, to fall under the censure of a stubborn obstinacy. And lastly, it is certain, and may safely be affirmed, without the least reproach, that Parliaments are not infallible, as witness the frequent changes, and abro­gations of their own Acts, and their altering of Oaths imposed by them­selves, and even of this Oath, after it was presented, which the Earl was not for altering, so much as it was done, as I told you before: How then can it be that the Earl appearing befor a christian Council, and there declaring in terms, at the worst a litle obscure, because too tender, & modest, his Scruples at an Oath presented to him, either to be freely taken, or refused, should fall under any censure? If the Earl had, in this occasion, said, he could not take the Test. unless liberty were given him first to explain himself, as to some con­tradictions, & inconsistencies, which he conceaved to be in it, though he had [Page 103] said far more then is contained in his contraverted Explanation, yet he had said nothing but what Christian liberty hath often freely allowed, and chri­stian charity would readily construe for an honest expression of a commend­able tenderness, without any imputation of reproach against either King or Parliament. How much more then is his part clear and innocent, when, albeit so many thought the contradictions to be undeniable, yet such was his well tempered respect, both to God, and man, to his own conscience, and his Majesties Authority, that before, and not after, the taking of this Oath, to clear himself (in the midst of the many exceptions, and scruples raised) of all ambiguities in swearing, he first applies himself, for a satisfying Explanation, to the Parliament, the prime imposers, their true intentions and genuine meaning, and then gathering it, very ra­tionally, from the Oaths consistency with it self, and with the Protestant Religion, the Parliaments aim and scope, and so asserting the King and Parliaments truth, and honour, he places the reliefe, and quiet of his own Conscience in his taking the Test with this Explanation, and in declaring its congruity with his Oath, and duty of Allegiance.

The third Head of the Earl's additional defences is the further clearing, and improving of his grounds of Exculpation, above adduced, and repell­ed: Which were, first, that, before the Earl did offer his Explanation to the Council, a great many Papers were spread abroad, by some of the Orthodox Clergy, charging the Test with contradictions & incon­sistencies. 2ly. That there was a paper penned by a reverend Bishop, and presented and read in Council, and by them allowed to be printed, which did contain the same, and far more important things then any can be found in the Earl's Explanation: And consequently, far more obnoxious to all His Majesties Advocat's accusations. 3ly. That the Explanation upon which he was indicted was publikly by himself declared in Council, and by the Council allowed, so that the Oath was administrat to him, and he received to sit in Council and vote, by His Highness, and the rest of the Members, with and under this express qualification.

But, to all urged for the Earl's Exculpation the Advocate makes 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 Majesties mercy: But that it doth no way satisfie 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 soul aspersi­ons of reproaching, and depraving, thrown upon them: Seing the words spoken by him under the motive of such a circumstance, by all fair rules of interpretation, insteed of being judged misconstrueing and depraving, could only be understood as a seasonable asserting of the integrity of the Parliaments intentions, and the uprightness of the Earl's Conscience: [Page 104] which argument being in reason unanswerable, it necessarly follows that the Advocat'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 & approven by the Council can never fall under the accusation, either of Leasing-making, or slandering his Maje­slies proceedings, or depraving Laws, and Acts of Parliament, as is evi­dent in it self, and granted by the Advocate, where he say's that an Ex­planation, though reflecting on the King, and Goverment (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 beleeve that Confession to be founded on and agreable 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 followes, that the Earl's words, having been allowed, and approven 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 Farl, insteed 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 adde to this the third ground of the Earl's ex­culpation, viz. That the explanation, whereupon the Earl was indi­cted, was publikly by himself declared in Council, and by the Council allowed and accepted: In so much 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 Councellour. 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 [Page 105] 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 joyns 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, in as much 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 then it is, yet being offered to the Council, and submitted to their judgment, and they having accepted it, the thing became quasi res judicata, and cannot be retracted, without subverting the surest Rules, both of truth, and government. The Advo­cate indeed tels 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 distinctly, (As what thing spoke in Council is distinctly heard and considered by all?) Yet it being certain that they did all approve it it is sufficient to the Earl: And it is only their concern, whether in approving what they did not hear they observed their Oath De fideli, &c. or not. His Highness, who the Earl was most concerned should hear, did certainly hear, as him­self afterwards acknowledged. 2. The Advocate sayes, That the hear­ing and allowing the [...]arl to sit is no relevant plea; yea further though all the Council had allowed him that day, yet any of his Majesties Officers might have quarrelled him the next day. But first, I would gladly know, upon what head? For if upon obtruding a sense of his own, it is undeny­able that whatever the sense was the obtruding of it was purged by the Coun­cils acceptation, and it became theirs, and was no more his. Butif the Advocate doth think, that even the matter of the Explanation, though allowed and accepted, may still be quarrelled: Then. 1. I hope, he will consider in what terms he doth it, for if he charge it after it beco­mes the Councils (as in truth he hath done already) with the same liberty wherewith he treats it as the Earl's, he runs fair to make himself the Arrantest defamer and slanderer of the King and Council, that ever yet attempted it. But 2ly, It merits a worse name then I am free to give it to say, That an Explanation allowed by the Council, in the administrating of an Oath proper to be administrat by them, doth not secure the taker as to that sense, both in Law and Conscience: Seeing in effect this quite takes away the best grounds of assurance among men, and turns their greatest security to their greatest snare. And 3ly, If this be sound Doctrine, it is worth the enquiring, what security the Clergy, to whom the Council, as [Page 106] you have hear'd, did indulge an explanation, have thereby obtained: For as to such Laiks as did only at their own hand take hold of, and snatch at this indulgence, not provided for them by the Councils Act, it is clear their doom is dight. It is not here debated how far that Expli­cation of the Councils may satisfy, and quiet Conscience, let such con­cerned see to it. Some please themselves with a general notion. That if the sense given by the Administrator be sound then it is also safe, whe­ther it be agreeable to the plain, and genuine meaning of the Oath or not, nay whether it be agreeable to the sense of the first Imposers or not: But others, who consider, more rendetly, what it is to swear in Truth, and in Iudgment, think it rather a prophanation, and a sinful preferring of the credit of men to the glory of the Almighty, to offer to smooth an Oath by a disagreeable interpretation, when in effect the Oath it self ought to be changed: But the thing in question is about the security of life and fortune, for seeing the Councils Explanation is, at least, to say no worse, lyable e­nough to the calumnies of an inventive malice, and the Advocate telleth us, Though all the Council had allowed a man to swear with an Explanation, yet any of His Majesties Officers may, the next day, quarrel him, It is evident that this allowance can affoord him no security. It is true the Ad­vocate may alledge, and possibly find a difference betwixt the Councils emitting and their accepting of an Explanation But as in truth there is none, more then betwixt a Mandat and a Ratihabition, so I am confident, if ever the thing come to be questioned, this pretence will evanish and come to nothing.

It is likewise to be remembred, that when the Earl, the next day after he took the Test; was questioned for the Explanation he had made, and required to exhibit a copie (which was afterwards made the ground of his indictment) so soon as he observed that some began to carp, he refused to sign it, demanded it back, and would have destroyed it, as you have heard, which were all clear Acts of disowning and retracting, for eviting offence, and of themselves sufficient to have prevented any further enquiry, there being nothing more just and humain then that words, though at the first hearing offensive, yet if instantly retracted when questioned, should be past: But this, as well as other things, must in the Earl's case be sin­gular, and whether he plead the Councils allowing or his own disown­ing (as in effect he doth both) it is equally to no purpose, the thing de­termined must be accomplished. You heard before, how that a reverend Bishop, and many of the Orthodox Clergy did take a far greater liberty of Explanation then the Earl pretended to: you see also that first the Coun­cil allowes his words, whereupon he rests: And when he finds that they begin to challenge he is willing to disown: And withall it is undeniable, and acknowledged by the Council themselves, that the Test, as it stands in the Act of Parliament, is ambiguous, and needs to be explained: And the Earl may confidently averr, that of all the Explanations that have been offered (even the Councils not excepted) his is the mostsafe, sound, and least disagreeable to the Parliaments true sense and meaning. And yet, when all others escape, he alone must be seased, and for a thing so openly innocent, clearly justifiable, and undeniably allowed, found guilty of the worst of crimes, even Leasing-making, Leasing-telling, Depraving of Laws, and Treason; but all these things God almighty sees, and to him the judgment yet belongs.

[Page 107] And thus I leave this dscourse shutting it up with the case of Archbishop Cranmer, plainly parallel to the Earl's, to show how much he was more favourably dealt with by the King, and Government, in those dayes, then the Earl now is, though he live under a much more merciful; and just Prince then that worthy Prelate did, for Cranmer being called and promoted by Henry VIII. of England to be Archbishop of Canterbury, and finding an Oath was to be offered to him, which, in his apprehension, would bind him up from what he accounted his duty, he altogether de­clined the dignity and preferment, unless he were allowed to take the Oath with such an Explanation as he himself proposed, for salving of his Conscience; and though this Oath was no other then the statut, and so­lemn Oath, that all his Predecessors in that See, and all the mitered Cler­gy in England had sworn, yet he was admitted to take it, as you see in Fuller's Church hist: Of Britain Lib: 5 p. 185 and 186, with this formal Protestation.

That is to say. In the Name of God, Amen. Before yow &c. It neither is, nor shall be, my will or meaning, by this kind of Oath, or Oaths, and however the words of them­selves shall seem to sound or signify, to bind up my self, by vertue hereof to say, do or endeavour any thing, which shall really be, or appear to be, against the Law of God, or against our most illustrious King of England or against his Laws and Prerogatives: And that I mean not, by this my Oath, or Oaths any wayes to bind up my self from speak­ing, consulting, and consenting freely, in all, and every thing in any sort concern­ing the Reformation of the Christian Religion, the Government of the Church of Eng­land, and the Prerogative of the Crown of the Commonwealth thereof, or their advan­tage and from executing, and reforming such things as I shall think need to be reformed in the Church of England: And according to this Explanaton, and sense, and not otherwise nor in any other manner, do I protest, and profess, that I am to take, and perform this Oath.

Nor did that excellent Person, sayes Mr Fuller, smother this privatly in a corner, but publikly interposed it, three severall times, once in the Charter-house, before authentik witnesses, again upon his bended knees, befor the high Alter, in view and hearing of many people, and Bishops be­holding him, when he was consecrated, and the third time, when he re­ceived the Pall, in the same place.

Now would it not be very strange if the like liberty should not be allowed to the [...]arl, under His Majesty, in reference to the Test, which Henry the VIII. a Prince that stood as much on his Prerogative as ever any, did vouchafe to this Thomas Cranmer, who, as another Historian observes [Page 108] acted fairly, and above-board: But there wanted then the high and ex­cellent designs of the great Ministers, The rare fidelity of Councellors, sound Religion and tender piety of Bishops, solid Law and Learning of Advo­cates, incorruptible integrity of Judges, and upright honesty of Assizers, that now we have, to get Archbishop Cranmer accused, and condemned, for Leasing-making, depraving Laws, Perjury, and Treason, to which accusation his Explanation was certainly no less obnoxious then the Earl's.

But I hasten to the fourth, and last head of the Earl's additional de­fences, viz The removing certain groundless pretences, alledged by the Ad­vocate, for aggravating the Earl's offence: ASI. That the Earl, being a Peer, and Member of Parliament, should have known the sense of the Parliament, and that neither the Scruples of the Clergy, nor the Coun­cils proclamation, designed for meer Ignorants, could any way excuse the Earl for offering such an Explanation. But, first, the Advocate might have remembred, that in another passage he taxes the Earl as having debated in Parliament against the Test, whereby it is easy to gather, that the Earl having been in the matter of the Test a dissenter, this quality doth rather justify then aggravat the Earl's Scrupling. 2ly. If the proclamation was designed for the meer Ignorants of the Clergy, as the Advocate calls them, who knew nothing of what had past in Parliament, an Explanation was far more necessary for the Earl, who knows so little of what the Advocate alledges to have past in Parliament, viz. That the Confession of Faith was not to be sworn to as a part of the Test, that of necessity (as I think) he must know the contrary; In as much as, first, this is obvious from the express tenor of the Test, which binds to own, and profess the true Pro­testant Religion, contained in the Confession of Faith, and to believe the same to be agreable to the Word of God; as also to adhere thereto, and never to consent to any change contrary to, or inconsistent with the said Protestant Religion, & Confession of Faith: Which to common sense appears as plain, and evident, as can be contrived, or desired. But 2ly, It is very well known, that it was expresly endeavoured, and carried in Parliament, that the Confession of Faith should be a part of the Test and Oath: For the Confession of Faith being designed to be sworn to, by an Act, for securing the Protestant Religion (which you have heard was prepared in the Articles, but afterwards thrown out) when this Act for the Test was brought in to the Parliament, some dayes after, by the Bishop of Edinburgh, and others, the 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 subjoyned: 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 yeelded, 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 [Page 109] 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 dayes, by some Barrons 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, vvere yet vvilling not only to subscribe, but to svvear this Confession of Faith. Which again, to answer the Bishops critik of four dayes, was more then 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 Orelans) whereby the Protestant Religion is made to be sworn to only as far as every man pleases to interpret, & as far as may be consistent with any new principles of state. But the Parliament cer­tainly (I do not speak ironically) did intend by this Test to swear & assert the True Protestant Religion, and the said Confession of Faith, whatever may be now pretended. The Earl could not also but very well remember what His Highness had said to himself, about the inserting of the Confession, and no doubt, the Advocate, if ingenuous, knows all this: For the thing was at that time mater of common talk, and indeed, till Papers objecting contra­dictions, and inconsistencies betwixt the Confession and the rest of the Test began to be so numerous (which was about the end of October) that there was no possibility left to answer them, but by alledging. That in the Test men do not swear to every article and proposition of the Confession, but only to the Protestant Religion therein contained, this point was never doubted. And whether this answer be true, and a solid Vindication, consonant to the words of the Test, or a circulating evasion enervating all its force, let others judge. But the Advocate sayes, When it was moved in Parliament to read the Confession it was waved: Most true: & the reason given by the Bishops for it was that it was notour, they knew it. and it was already insert in the Acts of Parliament: And, the truth was, the reading of it would have spent more time then was allowed on examining the whole Test. It was likewise late, after a long Sederunt, and it was resolved to have the Act passed that night, & so it went on. But it was likewise moved to read the Covenant, seing it was to be disclaimed, and this was flatly refused. And will the Advocate thence infer, That by the Test the Covenant is not abjured, albeit it be most certain, that many in the Parliament, at that time, had never read the one or the other? But to follow the Advocat's excursions, and answer them more particularly: The motion for reading the Confession being made, on this very occasion, because it was to be insert in the Test and sworn to, concluds enough against him: For no body can be so effronted as to say, it was used in Parliament as an argument not to read it, because it was not to be sworn to, but (though it cost a debate) it was plainly agreed to be sworn to, and therefore insert. 2ly. Can any man doubt, the Confession was to be sworn to, when it is notour that severalls who were members of Parliament, and, by reason of offices they enjoyed, were called to swear the Test, pretending, with reason, tenderness of an Oath, did, before swear­ing, make a fashion at least of reading and studying the Confession, to satisfy themselves how far they might swear it. And that this was done by an [Page 110] hundred, I can attest themselves. Lastly it is certain that, vvhen, in the end of October, the Bishop of Edenburgh did quarrel S ^r George Lockhart for caus­ing the Confession to be insert in the Test, & he answered that without it a Turk might sign the Test, it vvas not then pretended by the Bishop that the Confession vvas not to be svvorn to, and therefore he at that time had no reply

But this is a debate, I confess, not altogether necessary for my present task, only thereby you may see ground enough for the Earl to believe the Confession vvas svvorn to: And all that did svvear, before the Councils Ex­planation, having svvorn in that sense, and, for ought I knovv, all (except the Clergy) being by the Councils Act still bound to do so, It vvas not strange the Earl might be of this Opinion. And seeing that many of the Contradictions vvere alledged to arise hence, and the Earl being a dis­senter, it vvas yet less strange that the Earl did scruple; nor is it unrea­sonable that his modest Explanation should have a most benign ac­ceptance.

The second pretence of aggravation is, That his Majesty did not only bestow on the Earl his Lands, and Iurisdictions fallen into his Majesties hands by the forfaulture of his Father, but also pardon him the crimes of Leasing-making and Misconstruing, whereof he was found guilty by the Parliament 1662. And raised him to the title and dignity of an Earl, and to be a member of all his Majesties Iudicatories. All vvhich the Earl, as he hath ever, doth still most thankfully acknovvledge. But seeing the Advocate hath no vvarrand to upbraid him vvith his Majesties favours, and that these things are novv remembred vvith a manifest design to raise dust, and blind strangers, and to add a very ill thing, Ingratitude, to the heap of groundless calumnies cast upon him, I must crave leave to ansvver a little more particularly, and refute this new tout (as the scots proverb is) in an old horn. This old Leasing-making is then novv brought in seriously after it hath been treated in ridicule for 18 years, by the very Actors vvho did never pretend to defend it in cold blood: And, vvere it not to digress too much, I could name the persons, and make them (if capable) think shame of their falshood, and prevarications in that point, and of their abus­ing His Majestie, and prostrating Justice, but I forbear.

The Advocate, in his book of pleadings, makes this a Stretch, and sayes, His Majesty rescinded it. And His Majesty himself hath, several times, exprest his sense of the stretches made by some against the Earl, at that time. It is well known the Family of Argyle is both ancient and honourable, and hath been Loyal and serviceable to the Crown for several hundreds of years: but they must now be destroyed, for having done, and being able, as they say, to doe too much, which others nei­ther can nor will do.

Neither is the Advocate ignorant that the only failing that Family hath been charged with, in all that long tract of time, was a complyance of the late Marqueis of Argyle the Earl's Father, in the time of the late Usurpation, by sitting in the then Parliament of England, some years after all the standing forces of the Kingdom were broken, His Majesty be­yond sea, the whole Countrey overrun, the Usurpers universally ac­knowledged, and neither probability of resistance, nor possibility of shelter left to any that were most willing to serve His Majesty, as the Advocate himself hath published in his printed pleadings, in which he likewise layes out the special and extraordinary Circumstances whereby the Marqueis [Page 111] was necessitate to do what he did. And the compliance charged on him was so epidemik that all others were pardoned for the same, except he alone, though none had such favourable Arguments to plead, and though he pleaded the same indemnity that saved others. And seeing he submitt­ed, and delivered up himself, and lost his life, and seeing, at the same time of the compliance that he suffered for, the Earl his son was actu­ally serving and suffering for his Majesty, as you find in the former part of this Letter, the Earl's restitution was no less then He and his Family might well expect of his Majesties Goodness and Iustice. It is true the Earl was again accused and condemned (which may appear indeed strange to such as know not all particulars) upon the same Old Acts of Leasing­making, and with as little ground (if possible) as now, and was par­doned by his Majestie, for which he hath often, and doth alwayes acknow­ledge that he owes to his Majesty both his Life and Fortune: But upon this occasion, and being baited as he is, he hopes his Majesty will not take it ill that he say, That his Majesties mercy was in this case determined by Ju­stice: And for proof that his Majesty did then know him to be innocent, did not his Majesty then say, It was impossible to take a mans life upon so smal an account? Tho nevertheless it had been done, if his Majesty had not interposed and pardoned him. Did not the Chancellour Clarendoun (who was Patron to the most considerable of the Earl's pursuers) hearing of his condemnation, Blesse God, he lived not in a Countrey where there were such Laws? (He should have said such Iudges) And I believe many more will say the same now. Did it not plainly appear, at that time, that his principal pursuers were very bitter, malicious, and unjust to him? For the Earl had not only served his Majesty in that troublesome and hazardous ap­pearance in the Hills, but he had been particularly useful to Earl Midle­toun then his Majesties Lieutenent General, and had stood by him, when these deserted him, whom notwithstanding he took afterwards by the hand, when he was his Majesties Commissioner in the Year 1661, & then designed new Interests and new alliances, whereof some did hold and some never held. And then indeed it was that he and others thought it proper for them to destroy the Family of Argyle, to make their own Fortunes; But it pleased God and his Majesty to dispose otherwise: Then it was that the Earl was so hotly pursued for his life; having at that time no Fortune, all being in his Majesties hands: Then was the accusation of Treason likewise urged by the samepersons, and must have carried, but it was not found necessary, Leasing-making being sufficient to take his life, and, as it falls out when any game is started and the hounds in chase, all the little currs run alongs, So the Earl wanted not then many pursuers that are now scarce to be heard of. And further, some of the parties themselves confessed the particulars to the Earl afterwards, vvho yet novv return to Act their former parts, and that they had then laid dovvn a resolution to intrap him, per fas, aut nefas, but notvvithstanding all this ill humour and violence, all the ground they could get for a quarrell, in tvvo Years time, vvas one single letter, among many they intercepted, the occasion and import vvhereof vvas as follows. About a tvvelve-month after the death of the late Marqueis of Ar­gyle, The Earl his son being, by the loss of his estate, and burden of his debts, brought into straits, a friend from Edenburgh wrote to him, then at London, to do what he could for himself at Court, and the sooner the better; For he needed neither expect favour nor Justice from some in Scot­land, [Page 112] and, if matters were delayed, his Fathers whole estate would be begg'd away in parcels. His Friend likewise complained, that the Earl did not write to inform his friends in Scotland; and on this he insisted severall post-dayes, which, at last, drew an answer from the Earl, that he had been to wait upon his Majesty, and had found him both just and kind to him, and doubted not the effects of his Royalfavour, that he was sensible of his loss by delay, yet must proceed discreetly, and not press to give His Majesty trouble, but must take His Majesties method, and wait his time; That he judged, much of what his Friend told him was true, but he must have patience: It was his misfortune that some took pains to make His Majesty believe, that the Parliament was his Enemy, and the Parliament to believe, the King was his Enemy, and by such informations he was like to be a sufferer, but he hoped in God all should be well. This blast must blow out, and will blow over. The King will see their tricks: And upon this letter, specially those last words, the Earl was accused of Leasing-making betwixt King and Parliament, and that he expected changes, and so had a great deal of the same stuff laid to his charge, as now you have heard: And if the now Register will produce the Earl's principal Letter, and the Paper the Earl gave in to the Parliament, these two would clear all, the case then, and now, as yow may see, Mutatis Mu­tandis, being much the same, and some of the same tooles used. But to go on. The Earl's words in that Letter being clear, and plain viz. That he complained of others that reported lies to King and Parliament but did himself report none to either, He acknowledged the Letter, which could never have been proven to be his, and as soon as he heard that it was in­tercepted did render himself to his Majesty before he was called for. But, which very much troubled him, had not access: Yet his Majesty was so gracious that in stead of sending him prisoner to Scotland with a guard (as was much pressed) he allowed him to go down on a verbal bale: And his Majesty was pleased to say, That he saw nothing in the Earl's Letter against his Majesty or the Parliament, but believed the Earl did design to reflect on the Earl of Midletoun. The Earl came to Edinburgh, a fourth­night before the day appointed by his Majesty, and thought to have had the liberty of the city, till that day should come, but was sent to the Castle, the next day after his arrival: Upon which he advertised his Ma­jesty of his condition, who would hardly believe they would take his life, till it was told plainly it was designed, and if he died it lay at his Majesties door, upon which his Majesty was graciously pleased to send immediatly an order to the Earl of Midletoun not to proceed to Execution against him: Yet the Sentence of death was pronounced, and the day of Execution remitted by the Parliament to the Earl of Midletoun: Which he accepted of, albeit he had no particular instruction for it from his Majesty, which, before a year went about, Earl Midletoun found could not be justified by him, and some of the Earl's chief accusers were declared by his Majesty to be themselves Leasing-makers; And then the Earl, by his Maje­sties favour, and goodness, was restored to a part of his Predecessors estate, and titles, which he took as thankfully as if a new estate, and new and greater honours had been conferred upon him. And though His Ma­jesty was pleased, at the granting of these titles, to say he could help them when he pleased, yet his Majesty knows, that the Earl never troubled him about any such matter, nor solicitedh im now these eighteen years, [Page 113] for any Title, Office, or Imployment (though he confesses he had of all sorts) nor hath he been burthensome to his Majesties Exchequer (500 ^l yearly for 4 or 5 years that the Earl served in the Treasury being all that ever he touched of his Majesties money) albeit few attended more, and none so much that lived at his distance. He was also twice at London, to kiss his Majesties hands, but still on his own charges: Which things are not said to lessen his Majesties bounty, and goodness, whereof the Earl still retaines all just, tender, and dutifull 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 peece, 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 well 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, or 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 containes, nor insinuats, the least slander, reproach, or reflection, either upon the King, the Parliament, or any Person whatsomever, but, on the contrair, is in effect ten fold more agreeable to the words of the Test, and meaning of the Parliament that framed it, then 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, & refused to be signed: That the whole Indict­ment, & 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 Topiks of Law, Reason, and Reli­gion, and threatning no less, in the Earl's person, then the ruine of every mans 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 Enemie, added that great Character of Goodness, upon vain, and false insinuat ions, 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 disparagment) have, for a longer time, and more faithfully, and si­gnally served His Majesty and the Croun, then any person, or family of his degree and quality, of all his Persecuters 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 [Page 114] 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-pouder Mis­creants, The bloody Irish Rebells, and all the other most wicked & hainous traitours 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 reall con­viction, and upon such frivolous allegations as all men see to be, at the top, meer moon - shine, and at the bottom, villanie unmixed.

After clearing these things, the Earl, it seems, intended to have addressed himself to his Majesties Advocate, in particular, and to have told him, that he had begun very timously 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 easy to divine that more was intended, from the beginning, then 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 needed not have set him o [...] high as Naboth, and accus [...] him as a blasphemer of God, and the King.

Then turning his speech to the Lords of Iustitiary he thought to have desired that they would yet seriously consider his words, in their true sense and circumstances, his own Explanation of his Explication, and especi­ally the forgoing matter of fact, to have been laid before them, with his Defences, and grounds of Exculpation; as also to have told them that they could not but observe how that he was singled out amongst thousands, (against whom much more then all he is charged with could be alledged) and that they must of necessity acknowledge (if they would speak out their own conscience) that what he had said was spoke in pure innocence, and duty, and only for the exoneration of himself, as a Christian, and one honoured to be of His Majesties Privy Council (where he was bound, by his Oath, to speak truth freely) And not to throw the smallest reproach on either person or thing. Adding that he was [...]oath to say any thing that lookes like a reflection upon His Majesties Privy Council: but if the Council can wrong one of their own number, he thought he might de­mand if he had not met with hard measure? For first he was pressed, and perswaded to come to the Council, then they receive his Explanation, and take his Oath, then they complain of him to His Majesty, where he had no access to be heard, and by their Letter, under their hands, affirm that they had been careful not to suffer any to take the Test with their own Ex­planations, albeit they had allowed a thing very like it, first to Earl Queensberry, then to the Clergy; And the President now Chancellour had permitted several members of the Colledge of Iustice to premise, when they sware the Test, some one sense, some another, and some non­sense, as one saying he took it, in sane sensu, another making a speech that no man understood, a third, all the time of the reading, repeating, Lord have mercy upon me miserable sinner: Nay even an Advocate, after being debarred, a few dayes, because albeit no Clerk yet he would not take it without the benefit of his clergy, viz. the Councils Explanation, was [Page 115] yet, thereafter admitted without the Warrant of the Councils Act: but all this in the case of so many other was right and good. Further the Council expresly declare the Earl to be Guilty, before he had ever said one word in his own defence. Thereafter some of them become his Assizers, and others of them witness against him; and after all, they do of new concern themselves, by a second Letter to His Majesty (wherein they assert, That after full debate, and clear probation, he was found guilty of Treason &c.) to have a sentence past against him, and that of so high a na­ture, and so dreadfull a consequence, as suffers no person to be inconcern­ed, far less their Lordships his Iudges, who upon grounds equally just, and, which is more, already predetermined by themselves, may soon meet with the same measure, not only as Concealers of Treason; but upon the least pretended disobedience, or non-compliance with any Act of Par­liament: and, after all, must infallibly render an accunt to God Almighty. He bids them therefore Lay their hands to their hearts, and whatever they shall judge, he is assured that God knows, and he hopes all unby­assed men in the world will or may know, he is neither Guilty of Treason, nor any of the Crimes libelled. He sayes he is glad how many out - do him in asserting the true Protestant Religion, and their Loyalty to His Majesty; Only, he addes, If he could justify himself to God as he can to His Ma­jesty, he is sure, he might account himself the happiest man alive. But yet, seeing he hath a better hope in the mercy of God through Jesus Christ, he thereupon rests, whether he find Justice here on earth or not. He sayes, he will adde nothing to move them either to tenderness or pity; he knows that not to be the place, and pretends to neither from them; He pleads his Innocence, and craves Justice, leaving it to their Lordships to consider not so much his particular case as what a Preparative it may be made, and what may be its consequences: And if all he hath said do neither convince, nor perswade them to alter their judgment, yet he desires them to consider, whether the case do not, at least, deserve to be more fully represented, and left to His Majesties wisdom and justice, seeing that if once the matter pass upon record for Treason, it is undoubted, that hundreds of the best, and who think themselves most innocent, may, by the same methods, fall under the like Condemnation, when ever the Kings Advocate shall be thereto prompted.

And thus you have a part of what the Earl intended to have said, before pronouncing Sentence, if he had not made his Escape before the day: Yet some things I perceive by his notes are still in his own breast, as only proper to be said to His Majesty. I find several Quotations out of the Advocates printed books, that, it seemes, he was to make some use of, but, seeing it would have been too great an interruption to have applyed them to the places designed, I have subjoyned them together, leaving them to the Advocate's own, and all mens consideration.

It was by some remarked, That when the Lords of Iustitiary, after the ending of the first dayes debate, resolved that same night to give Judg­ment upon it, they sent for the Lord Nairn, one of their number, an old and infirm man, who being also a Lord of the Session, is so decayed through age, that he hath not, for a considerable time, been allowed to take his turn, in the Outer▪ house (as they call it) where they judgelesser causes alone: But notwithstanding both his age, and infirmity, and that he was gone to bed, he was raised, and brought to the Court, to consider a [Page 116] debate, a great deal whereof he had not heard, in full Court, and withall, as is informed, while the Clerk was reading some of it, fell of new a­sleep.

It was also remarked that the Lords of Justitiary being, in all, five, viz. the Lord Nairn above-mentioned, with the Lords, Collintoun, New­toun, Hirkhouse, and Forret, the Libell was found relevant only by the odds of three to two viz. the Lord Nairn foresaid, the Lord Newtoun since made President of the Session, and the Lord Forret, both well enough known, against the Lord Collintoun, a very ingenuous Gentleman, and a true old Cavalier, and the Lord Hirkhouse a learned and upright judge: As for the Lord Justice General, who was also present, and presided, his vote, according to the constitution of the Court, was not asked, yet he is since made a Marquies, and Lord high Treasurer.

But to return to my Narrative, the Earl, as I have already told you, did not think fit, for reasons that you shall hear, to stay till his Maje­sties return came to the Councils last Letter, but, taking his opportunity, made his escape out of the Castle of Edinburgh, upon tuesday the twen­tieth of December, about eight at night, and, in a day or two after, came his Majesties answer here subjoyned.

Which answer being read in Council on the thursday, and the Court of Iustitiary, according to its last adjournment, as shall be told you, being to meet upon the fryday, after a little hesitation in Council whether the Court of Iustitiary could proceed to the sentence of forfaulture against the Earl he being absent, it was resolved in the affirmative; And what were the grounds urged, either of hesitation or resolution, I cannot precisly say, there being nothing on record that I can learn. But that you may have a full, and satisfying account, I shall briefly tell you what was ordinar­ly discoursed, a part whereof I also find in a petition given in by the Coun­tess of Argyle to the Lords of Justitiary, before pronouncing sentence, but without any answer or effect. It was then commonly said, that by the old Law, and custom, the Court of Iustitiary could no more in the case of Treason then of any other Crime proceed further against a person not compearing, and absent, then to declare him Out-Law, and Fugitive: And that, albeit it be singlar, in the case of Treason that the trial may go on, even to a final sentence, tho the partie be absent, yet such trials were [Page 117] only proper, to & alwayes reserved for Parliaments: And that so it had been constantly observed untill after the Rebellion in the Year 1666: But there being severall persones Notourly engaged in that rebellion, who had e­scaped, and thereby withdrawn themselves from Justice, it was thought, that the want of a Parliament, for the time, ought not to afford them any immunity; and therefore it was resolved by the Council, with advice of the Lords of Session, that the Court of Iustitiary should summond, and pro­ceed to trial, and sentence, against these absents, whether they com­peared or not, and so it was done: Only because the thing was new and indeed an innovation of the old custom, to make all sure, in the first Par­liament held thereafter, in the Year 1669, it was thought fit to confirm these proceedings of the Justitiary, in that point, and also to make a perpetual statut, that, in case of open Rebellion, and Rising in armes against the King, and Government, the Treason, in all time coming, might by an order from his Majestie's Council be tried, and the actors pro­ceeded against by the Lords of Iustitiary, even to final sentence, whe­ther the traitours compeared or not. This being then the present Law, and custom, it is apparent in the first place that the Earl's case, not being that of an open Rebellion and Rising in Armes, is not at all compre­hended in the Act of Parliament, So that it is without question that, if in the beginning he had not entered himself prisoner, but ab­sented himself, the Lords of Iustitiary could not have gone further, then, upon a citation, to have declared him fugitive. But others said that the Earl having both entered himself prisoner, and compeared, and after debate having been found guilty, before he made his escape, the case was much altered. And whether the Court could, notwithstand­ing of the Earl's interveening escape, yet go on to sentence was still de­batable: for it was alledged for the affirmative that seeing the Earl had twice compeared, and that, after debate, the Court had given judgment, and the Assize returned their Verdict, so that nothing remained but the pronouncing of sentence, It was absurd to think that it should be in the power of the partie, thus accused, and found guilty, by his escape to frustrate justice, and withdraw himself from the punishment he deserved. But on the other hand it was pleaded for the E [...]rl; That first, It was a funda­mental rule, That until once the cause were concluded no sentence could be pronounced: Nixt that it was a sure Maxime in Law, that in Criminal Actions there neither is nor can be any other conclusion of the cause then the parties presence and silence; So that, after all that had past, the Earl had still freedom to adde what he thought fit, in his own defence, before pro­nouncing sentence, and therefore the Lords of Iustitiary could no more proceed to sentence against him being escaped then if he had been absent from the beginning, the cause being in both cases equally not concluded, and the principle of Law uniformly the same, viz. that in criminals (except in cases excepted) no final sentence can be given in absence: For, as the Law, in case of absence from the beginning, doth hold that just temper as neither to suffer the contumacious to go altogether unpunished, nor, on the other hand, finally to condemn a partie unheard. And there­fore doth only declare him fugitive, and there stops: So in the case of an escape, before sentence, where it cannot be said the partie was fully heard, and the cause concluded, the Law doth not distinguish, nor can the parity of reason be refused. Admitting then [Page 118] that the Cause was so far advanced, against the Earl, that he was found Guilty; Yet 1. This is but a declaring of what the Law doth as plainly pre­sume against the partie absent from the beginning, and consequently, of it self can operate no further. 2ly. The finding of a partie Guilty is no Con­clusion of the cause. And 3ly. As it was never seen, nor heard, that a Partie was condemned in absence, (except in excepted cases) whereof the Earl's is none, so he having escaped and the Cause remaining thereby unconcluded, the general rule did still hold, and no sentence could be giv­en against him,

It was also remembred that the dyets and dayes of the justice Court are peremptour; and that in that case, even in Civil [...]ar more in Criminal Courts and Causes, a Citation to hear Sentence is constantly required: which in­duced some to think, that at least the Earl should have been lawfully cited to hear Sentence, before it could be pronounced. But it is like this course, as confessing a difficulty, and occasioning too long a delay, was therefore not made use of. However, upon the whole, it was the Gene­ral Opinion, that seeing the denouncing the Earl Fugitive would have wrought much more in Law then all that was commonly said, at first, to be designed against him: And that his Case did appear every way so favour­able, that impartial men still wondered how it came to be at all questioned, It had been better to have sisted the process, with his escape, and taken the ordinary course of Law, without making any more stretches.

But as I have told you, when the Fryday came, the Lords of Iustitiary, without any respect, or answer given to the Petition above-mentioned, given in by the Countess of Argyle to the Court for a stop, pronounced Sentence, first in the Court, and then caused publish the same, with all solemnity, at the Mercat Cross of Edinburgh.

After the reading (and publishing) whereof, The Earl's Coat of Armes, by order of the Court, was also torn, and ranversed, both in the Court, and at the Mercat Cross: Albeit some thought that this was rather a part of the Execution, which his Majesties Letter discharges, then a necessary Solemnity, in the Publication, and the Advocate himself sayes. p 61. of his printed Criminals. That it should only be practised in the crime of Per­duellion but not in other Treasons.