A vindication of His Majesties government and judicatures in Scotland from some aspersions thrown on them by scandalous pamphlets and news-books, and especially with relation to the late Earl of Argiles Process. Mackenzie, George, Sir, 1636-1691. 1683 Approx. 88 KB of XML-encoded text transcribed from 27 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2004-08 (EEBO-TCP Phase 1). A50897 Wing M211 ESTC R31147 11780927 ocm 11780927 49047 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A50897) Transcribed from: (Early English Books Online ; image set 49047) Images scanned from microfilm: (Early English books, 1641-1700 ; 1487:3) A vindication of His Majesties government and judicatures in Scotland from some aspersions thrown on them by scandalous pamphlets and news-books, and especially with relation to the late Earl of Argiles Process. Mackenzie, George, Sir, 1636-1691. 52 p. Printed by the heir of Andrew Anderson ..., Edinburgh : 1683. Attributed to Sir George Mackenzie by Wing and NUC pre-1956 imprints. "Reflections on the Earl of Argil's Process" begins on p. 18. Reproduction of original in the Harvard University Library. Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford. Re-processed by University of Nebraska-Lincoln and Northwestern, with changes to facilitate morpho-syntactic tagging. Gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. 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Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements). Keying and markup guidelines are available at the Text Creation Partnership web site . eng Jesuits -- Scotland. Church and state -- Great Britain -- 17th century. 2004-03 TCP Assigned for keying and markup 2004-04 Apex CoVantage Keyed and coded from ProQuest page images 2004-05 Olivia Bottum Sampled and proofread 2004-05 Olivia Bottum Text and markup reviewed and edited 2004-07 pfs Batch review (QC) and XML conversion A VINDICATION OF His Majesties GOVERNMENT , & IUDICATURES , IN SCOTLAND ; From some Aspersions thrown on them by scandalous Pamphlets , and News-books : and especially , with Relation to the late Earl of Argiles Process . EDINBURGH , Printed by the Heir of Andrew Anderson , Printer to His most Sacred Majesty , Anno DOM. 1683. A Vindication of His Majesties Government , and Judicatures , in SCOTLAND , &c. ALL wise and sober Men in Scotland , do with a just mixture of pity , and contempt , Read those infamous Pamphlets , wherein this Kingdom is so maliciously traduced by some in our Neighbour-Nation ; and when they consider that the Licentiousness of the Press , does so much weaken all Government , corrupt all Intelligence , and blast so unavoidably the Reputation of the best , and most Innocent : They conclude justly , that to deny their King the necessary priviledge and prerogative of restraining the Press , were to refuse to the Master of a Ship , the power to prevent its Leaking : To deny the Magistrat the power of punishing these , who corrupt the Springs and Fountains of a City : And to refuse to the Master of a Family , the Power of Chastising his Servants when they rail at one another . I am very desirous also to be informed , how the King can by the Priviledge and Prerogative of His Crown , have the absolute power of making Peace and War ? Calling and Dissolving of Parliaments , and a Negative Voice in them ? and yet should be denyed the far less priviledge of restraining the Press : Especially after so many proofs of its having been so dangerous , and Seditious . How the Magistrats of the meanest Hanse-Town should enjoy this priviledge , and yet that it should be deny'd to the King of Great-Britain . Or how he should have the power to punish Lybels , and yet should want the power of stopping them , it being both much safer , and easier , to prevent , then to punish . Nor can I dissemble , that our Nation has found the happy Effects of discharging all Printing without Licence by an express Statute , whereby we find the publick Government , and every privat Mans Reputation most happily secured : Whilst on the other hand , It is very observable , that that Peer , who told it was not yet time to restrain the Press in England , has liv'd to see a famous Library of Libels and Pasquills against himself , for the Conviction of this Age , and the Information of those who shall succeed us . We glory also in the justice of our Law , that has by a special Statute , Ordained all such to be severely punished , who by Word , or Writ , Devise , Utter , or publish any false , slanderous , or reproachful Speeches , or Writs against the State , People or Countrey of England , or to the Dishonour of any Privy Councellour thereof : and therefore , we hope , that so wise and just a Nation as England , which punishes those who injure a privat Peer , will not suffer them to go unpunished , who rail at a Nation , that is obliged to hazard their Lives and Fortuns for their preservation . Unhappy Liberty which consists in the priviledge of doing ill , and which serves for nothing , but to make the Authors be contemn'd for want of Breeding , and despis'd for want of Sense : Nor does this Crime want a sufficient punishment , since it has convinced us , that the Enemies of the Monarchy are such liars , and so malicious , that they deserve neither to be believed , nor followed ; and how can any amongst us believe these in Matters of Right ? who every day lie so scandalously in Matters of Fact. Upon this Ground , I confidently believe , that no honest man , will think we in Scotland have owned his Royal Highness , because England had an aversion for him , as a late Pamphlet has maliciously asserted ; for as their worthy Peers did wisely reject the Bill of Exclusion ; so our Predecessours were obliged to this by so many Oaths , and through a Series of so many Ages , and GOD had so severely punished us in the last Age , for having joyned with our Rebellious Neighbours against our Native Prince , that we had been the greatest Fools and Rogues upon Earth , to have Relaps'd so soon into the fame Errors ; and especially in following the Example and Advice of those very Rebels , or their impenitent Heirs , who had in ten years Exercised that Arbitrary Government over us , against which themselves had Exclaimed , and to a hight , that we had never known , and as it is very well known , that every honest Man in Scotland rejoyces , when they hear of the prosperity of the Royal Family in England , and esteem highly ▪ and love passionatly all such as have , or do contribute to it ( an Union in Principles , being stronger then that of the Kingdoms ) So Scotland being the less powerful Nation , what can they gain in the contest ? Or why should they envy that which is their greatest Security , as well as Honour . The delivering of the best of Kings at Newcastle was no more a National Act in us , than the Murdering him after a Mock-Tryal , was a National Act in the Kingdom of England Rebels in both committed those Crymes , whilst honest Men suffer'd , with him , and for him ; and it is undenyable , that the honest Party of Scotland , were at that time fighting under the Great Montrose , against that pretended Parliament , which Voted his Delivery , and that even our Rebellious Countrey-men delivered him only up to such of our Neighbour Nation , as did Swear upon Oath , that they should preserve Him and His Crowns , and when they found that these Sectarians , neither regarded their Oath nor their King : they rais'd an Army immediatly , to Expiat their Cryme ; Nor wanted ever our Nation an Army , even under the Usurpers , to appear for the Monarchy , and from us , and Encourag'd by us , went that Army that Restor'd our present King : Let then no honest Man remember those National Errors , except either in his Prayers , when he Interceeds with GOD , For diverting the Curse which those Crimes deserve ; Or in Judicatures , when such are to be punish'd , as would lead us back into those Confusions . But why the Authors of these Pamphlets should condemn the very Actions , which they so very faithfully Copy , seems very wonderful , as it does how our Fanatick Countrey-men , should wish success to those who Rail at their Nation and their Principles . Open then your Eyes , my dear Countrey-men , and let not your own Fanaticism , nor their Cheats perswade you , that such as endeavour to lessen and asperse the Monarchy in our Neighbour . Nation , will be ever Faithful to you , who are sworn , even in your Covenant , to maintain it in this , to you who opposed them in the last War , in their grand Designs for a Common-wealth , and the Extirpation of the Scottish Race , to you who think that Presbytery jure divino , which they laugh at , and never use it as an useful Government in the Church , though they do some times as an useful Tool to Rebellion in the State , and to you whom they cheated so far , and opprest so dreadfully in the late Rebellion , that they know you cannot trust them . Was it the Church of England , or Sectarians that Sold you to be Slaves in their Plantations , that fill'd your Pulpits with Buff-Coats , and your Churches with Horses ; and did not they turn all your own Arguments against you , that you had us'd against Episcopacy ; for as you said the Bishops should not have Revenues , so they said your Ministers should not have Stipends , as you contended , that Lawn Sleeves were Popish ; they contended , that Gowns were so too ; they in Enimity to Ceremony , would cover their heads at Prayer , as you did in Churches ; and by the same Rule that you taught that Subjects might Reform Kings , they concluded against you , that they might Execute them . I shall likewise refer to your consideration , that it is the Duty of every good Subject , to obey the Laws of that Nation wherein he lives , since they must either obey the Magistrate , or overturn him ; and a Schism does breed so much Un-christian Heat , and so many Civil Wars , that no pious or reasonable Man should Engage in it , except he be necessarly Obliged to separate from the the Church , as absolutely Anti-christian : But so it is , that the Differences betwixt our Episcopacy and Presbytery , which have occasioned all these dangerous Disorders , are founded upon no express Text of Scripture , else Forraign Churches would not acknowledge ours to be a True Church , as they universally do ; nor had the Fathers of the Primitive Church owned a Government , which stood in direct opposition to the Word of God. And it seems strange , that God Almighty should have designed to express a thing in Scripture , as necessary for Salvation ; and yet we who are obliged to obey the same , should not be able to find it out . It is also very fit to be considered by you , that the Reason why Monarchy has always preferred Episcopacy to Presbyterian Government , proceeds not only from an aversion to Presbytery , as neither Establisht by Scripture , us'd in the Primitive Church , nor recommended by the Holy Fathers ; but because it has been observed , that your Government being founded on Equality amongst Presbyters , resembles more a Common-wealth ; and that you have always in this Isle , Reformed without the Monarchs approbation , if not against it , and so have Interwoven with your Religion , Principles opposit to Monarchical Government , resolving to ballance Establisht Authority , with pretences of Religion , from which necessity has at last forced many of you to oppose all Government . And it is still observable , that whatever opposes the Government of the Countrey where we live , must at last end in Anarchy and Confusion . Those great Idolizers of Parliaments , in speaking so much against our last , shew that they care no more for Parliaments , then they do for Kings , and think them only Infallible when they are such as themselves . For where was there ever a Parliament so unanimous as ourswas in the matter of the Succession , not one Man having proponed any one Argument against it . And what a Villanous thing is it to assert , that the Test is a Popish Contrivance , when in it we Swear expresly to own the Protestant Religion , and breed up our Children in it . And that without all mental Reservations , or Equivocations . And to shew how well contriv'd that Oath is , in opposition to Popery : Not one Papist in all our Kingdom has taken the Test. What more could his Majesties Commissioner have done , to show his willingness to have honest and loyal Protestants enjoy their own Religion . And who after this should believe these lying Authors ? Who would Impose upon the World , that , as a mark of Popery , which is the strongest Bulwark imaginable against it . And though we make not the Protestant Religion , the Instrument of Cruelty , the Stirrup of preferment , a Cloak for all manner Knavery , and a Trumpet of Rebellion : nor admire avowed Atheists , nor pay Salaries to such as deny the Divinity of Jesus Christ , if they be usefull to other Hypocritical designes , as some do ; yet our Nation has reason to suspect such as will have them passe for Popishly inclined , ( as if all Duty , when it pleases not them were Popery , ) for in our Chief City , and it's Suburbs , we have not 14 Popish Families , in the whole Diocess of S. Andrews , the far largest of Scotland , we have not three , and there are not 60. upon a sworn Report , to be found in the Diocess of Aberdeen , which is the most suspected of all others . These wise States-men , who think insolently , that they though privat men may reform our Laws , as well as their own Religion ; we appeal still to that Parliamentary Insallibility , which they here deny : And therefore we justly contemn these Pamphlets , which inveigh against the 25 Act of the third Session of His Majesties first Parliament , whereby the Estates of this Kingdom oblidge themselves , to send 22000 Men , into any part of His Majesties Dominions , wherever His Authority , Honour , or Greatness may be concerned , which was certainly their duty ; for if they defend it only at home , their defense may prove useless , both to themselves and Him , and since he is our King every where , we should assist Him every where : And that the King may call his Subjects , even without his own Territory , is clear by all Lawyers , and amongst whom ; I shall only cite , Castallio de Imperatore quest . 159. Where the question is expresly treated , and this decided from the Law of Nations : Nor need any honest Subject fear our assisting their King , and Traitors should be terrified . But in all this , we were much Loyaler then that Peer of England , who , when our Rebellion rose , in 1679 , affirmed , that His Majesty could not send down Forces into Scotland , without consent of Parliament ; because , by the Treaty of Rippon , it was declar'd , that the Subjects of one Kingdom , should not in vade the other , without the consent of the Parliaments of both Kingdoms , which Treaty is Rescinded with us , and we believe England will not think that a mutual Treaty can stand , when one side is free : nor consider we Parliaments , as the Arbiters of Peace and War , that being the Kings incommunicable Prerogative , but this shews why our Acts are rail'd at , and what Loyal Men they are who do it . As also , since all lawfull Parliaments have ever since the Reformation , both Here , and in England , made very severe Laws against non Communicants , or Schismaticks ; either no respect is to be had to those Parliaments , or these Laws are Just , and fit : ard why the Laws should have been so severe to them in Queen Elizabeths Reign , before they had rebelled , and should now remit their severity , when by frequent rebellions , and extravagant Sermons , Books , and Assemblies , they have incorporated so many dreadful principles , inconsistant with all Government , into the bodie of their Divinity : I see not , and shall be glad to be informed , and if it be pretended , that their numbers having infinitly increased since that time , should prevail with a wise Magistrat to lessen his severity , we conclude just the contrary , especially , since we find , that an exact and firm , though moderat execution of the Law , is abler to lessen their fury , then an indulgence , there being now very few , who go not to Church , and almost all repenting , that they went not sooner , and I desire to know from these Authors , if their Partie in England thinks : that the true way of using Papists or if the Presbyterians allowed that way of arguing , when they prevail'd , and was it not that lenity , which drew on the last Rebellion , and our Slavery . A short view of our Laws , made on that Subject , with the occasion of them , will best clear this point . In the last Rebellion , defensive Armes , and that the people had power to Depose , or Suspend Kings , were the great foundation , and in defence whereof , several Books have been lately written , and therefore these were declared Treason , and it is admir'd , how any can be called good Subjects , who maintain them . The Parliament did see ; that the not going to Church , occasioned much Atheism and Ignorance : and that the hearing such as were not Authorized , was a certain inlet to all Sedition and Herisie : since every man might preach what he pleased , and therefore they discharg'd House Conventicles , and declar'd , that meetings in the Fields were formall Rebellion ; since Rebellion is only a rising in Armes , without , and contrary to the Command of Authority , and that sometimes there would be gathered together several thousands of people in Armes , who might joyn when they pleased ; and from a Conjunction , meerly of those , proceeded the Rebellions 1666. and 1679. and they punished these with moderat Fynes , far below the guilt . And how dare men be so dissingenuous , as to own themselves the only Protestants , and yet to inveigh against Statutes made to hinder Jesuites , Socinians , and others to pervert the people ; as we certainly know , they did for many years together , at those meetings , and how could this be prevented , since the poor commens know not what is Orthodox . And since they were perswaded not to ask who was to Preach , least they should be oblidged to Witnesse against him , and as the dangers on the onehand were great , so on the other , they were desired to go to that Church , which the greatest and soberest of their own Ministers did , and do still frequent . Some Ministers fearing , that their hearers might be led as Witnesses against them , infused in them , a dangerous and ridiculous principle , that no man was oblidged to depone , when he was called to be a Witness , and that no man was oblig'd to Depone , when the being at such illegal Meetings , was referred to his Oath : and this was called the accusing of ones self ; whereas all Laws under Heaven , oblige a man to be a Witness , else no Crime could be prov'd . And if this were allowed , we might have as many Masses as we pleas'd ; and when any thing is referred to a mans Oath , he does not accuse himself , for the Fiskal accuses him ; and do not all Nations prove Injuries and Misdemeanours by the Oaths of the Committers , if these are not to be capitally punished . And therefore the Parliament was forced to make a Statute , obliging them to Depone as VVitnesses . I need not tell the dreadful Equivocations lately invented to secure Rebels , as when a Witness Depones he saw a Hilt , and a Scabbart , but yet knows not if there was a Sword. The Pia fraus of Ignoramus Iuries , and a hundreth other Cheats , rather to be lamented , then related . And which tended to unhing all Property , as well as Religion , if God and zealous Magistrates had not prevented it . And yet the opposing these , which is a Duty , must be represented as a Crime , for deluding ignorant people . The Parliament then having for the necessary Defense of the Kingdom , by reiterated Laws , commanded those things to be put to Execution . Laws which did not only at first seem to be just , but were thereafter upon experience , found to be so . Are not they promoters of Arbitrary Government , who think , that the Judges and Magistrats of the Nation , should dispense with such Laws ? And whoever thinks he may dispense with the Law , must certainly think , that he is ty'd by no Law ; and that is to be truly Arbitrary . And it is most observable , that these who are Enemies to His Majesties Government , and His Servants : are of all men alive , most guilty of that Arbiltariness , which they would fix upon others . It cannot be imagin'd , that the King will contemn the Laws , since they are his own Creatures , as well as His Support , whereas such as oppose Him , or Rebell against Him , must first trample under foot , the Laws by which the King is Secur'd , and by which they are to be punish't , and it is not the Masters , but Robbers who break the Fences . 2ly , Are not these honest and good Countrey-men , who think it cruelty to punish such as did take up Arms twice in an open Rebellion ? and who own all the Cruelties that were committed in the late Civil Wars , who burn publickly the Acts of Parliament , and who joyn with Murderers . 3ly . Albeit those Crymes be very attrocious , horrid in themselves , and dreadful in the preparative , inconsistent with humane Society , and a Scandal to Religion . Yet have not His Majesties Judicatures offered Remissions to all such as have been accus'd , providing they would disown those Rebellious Principles ; so that such as dy , are the Martyrs of their own Crymes , and justifie their Judges , even whilst they are Exclaiming against them . And as no Government under Heaven , did ever shew so many Instances of Clemency , offering Indemnities when there was no necessity for them , Renewing and Pressing those Indemnities , when they were twice or thrice slighted ; and Remissions , when all those gentle Offers were contemn'd : so , has any man dy'd amongst us , by malicious Juries , or false Witnesses . 4ly , Has not the Privy Council in their Fyning such as were guilty , proceeded with such moderation , that albeit for many years , the Laws were absolutely contemned , after many Reiterations by the Parliament , and Proclamations from the Council , pressing Obedience to them : Yet they have Ordered Execution to be Suspended , as for bypast times , to all such as would Obey for the Future . And I must beg leave to Observe , that it has been upon an exact Review , found , that the Rebellious Parliament , 1647. did Impose more by way of Fyne in one day , than the Privy Council has done since His Majesties happy Restauration : Such as differ'd from their Government , Intreated for those Pardons , which are now refus'd . And it would have been then thought very ridiculous , to offer a man his Life ; who had been in Arms for the King , upon his offering to live peaceably . 5ly . If the Differences amongst us , upon which all those Rebellions were founded , were Matterial and did proceed from Conscience ; somewhat might be said to lessen , though not to justifie the Guilt , for Conscience should neither be a Cryme , nor a defence for Crymes . Yet what can now be said ? When all men willingly go to Church , which certainly they would not do , if their Conscience did not allow them . And it being now clear , that the former contempt of the Law , proceeded from Humor , and not from Conscience : who can blame Magistrats for preferring the Law of the Kingdom , to the Humor of particular Persons . Somewhat might be likewise said for those Differences , if we did not find , that they necessarly , and naturally produced Principles of Rebellion , Assassination , contempt of Magistracy , and of Masters , with a thousand other Impieties , and Immoralities : Whilst it is very remarkable , that Episcopacy never bred a Rebel , nor inspir'd a Murderer ; but gentle , like the Christian Religion which it professes , it Preaches Obedience under the pain of eternal Damnation , and practises mercy to that height , that it is now become the Temper of the Men , as well as the Doctrine of the Church . 6ly , In Matters of Government , We must Ballance the Safety of the whole , with the Punishment of a few . And in our Case , We must consider that a Civil War would be much more severe , then a few Executions , or Fynes can be . And we need only remember the vast Subsidies , the extraordinary Cruelties , and boundless Arbitrariness of the last Age to be convinc'd , that it is not Severity ; but kindness in the present Government , which forces them , as a Physician , rather to draw a little Bloud , than to suffer their Patient to run into a Frensie ; especially when they know the Patient has been lately inclin'd to it : and when they see the usual Symptoms that foretel the approaching fit , to grow very remarkably every hour . This may be further clear'd , by comparing a little the condition , wherein His Royal Highness found this Kingdom ; with that State to which it is now brought , under his happy Influence . It cannot be deny'd , but that before His Royal Highness came to Scotland , the Fields were every Sabbath cover'd with Arm'd-men , upon the pretext of hearing Sermons : Which Sermons were so far from being a legal Defense against Rebellion , that they were most Efficacious Incentives to it . His Majesties most undenyable Prerogatives , were upon all Occasions contraverted . Masters were contemn'd by their Servants , and Heretors by their Tennents . And it was very just , and consequential , that these Masters should have been contemn'd by their Servants , who did themselves learn them this Lesson , by contemning the King their Superiour , and Master . The Ministers of the Gospel were Invaded , Wounded , and Assassinated . Churches were either left Waste , or insolently Perturb'd , when they were frequented . Principles of Assassination were Preach'd and Practis'd . All such as own'd , or Serv'd the Government were affronted , and menac'd . Pasquils and Defamatory Libels , vvere publickly vented and prais'd . Dreams , Visions and Prophesies , portending the Ruine and Overthrovv of the Government vvere spread abroad to amuse the People , and fill the Heads of the vveaker sort vvith Fears and Jealousies . Lying vvas become all our Wit , and Hectoring of the Government all our Courage : Whereas novv , People are gathered in from the Fields to Churches . God Almighty is served with Reverence ; and the King as his Vicegerent with Respect . The Royal Prerogative is neither streatch'd , nor basi'd . The Privy Council have learn'd by his Royal Highnesses sitting so long amongst them , to shevv as much Clemency , as may consist vvith firmness : and to sustain their Justice by their Courage . All Animosities and Differences among our Nobility are Compos'd and forgot : and Thefts and Robberies in the Highlands , vvhich vvere formerly so great a Reproach to the Government , and a Ruine to the People ; are novv not only Secur'd against , by present Punishments , but prevented by suitable and proportional Remedies , such as Commissions of Justiciary , Security taken from the Heretors and Chiftains of Clans ; setling of Garisons in convenient places , and giving Money for Intelligence to Spy's . Ministers are so much Protected and Encourag'd , that one can hardly think , if he had not knovvn their former condition , that ever the People had had any unkindness for them : Men do not novv lust after Nevvs , nor Conventicles : But Employ those Thoughts , and that Time upon their privat Affairs , vvhich they formerly mispent , in follovving Expensive Field Preachers : Securing themselves and their Estates , by a pleasant peaceableness , from the Fears , as vvell as the Damnage , of Fines and Punishments . We have no Pasquils , nor hear of no Visions . Men honour the Lavvs by vvhich they are Protected , and those Magistrats , by whose Ministry they enjoy this Peace and Quiet : Whilst their Magistrats on the other hand , remember that His Majesty and His Royal Highness , hate the insolence of their Servants , though they may for some time suffer it : And that the preparatives they make to the prejudice of the People , will be lasting Snares and Burdens on their Posterity . Magistrats should pity the frailties to which themselves are subject , and the misfortuns which themselves cannot shun , and should cover rather than punish Escapes , which have more of mistake in them than of Guilt . By which paralel , our Countrey-men and Neighbours , may judge , whether His Royal Highness be so undesirable a Governour , that the Law of God , of Nature , and Nations should be brok , to Exclude him from his Right of Succession . Whether we Enjoy greater , and truer Liberty , under his Protection : than we did under our usurping Parliaments . And whether those Expressions of our Thankfulness , proceed from flattery , or from gratitude . REFLECTIONS ON The Earl of ARGIL'S Process . NExt to our Laws , our Judges are arraigned , and though all Nations presume , that Judges understand , and that we should presume them Just , being ordinarly men of Integrity , who are ingadg'd upon Oath , and have both Soul and Reputation at Stake ; And who know their Children are to be Judg'd by the preparatives they make . Yet our Phamphleters , who neither understand matter of Law , nor matter of Fact , stick not most soveraignly to decyde , that our Sentences , even in Criminals ( in which men cannot Err wilfully , without murdering deliberatly ) are absurd , ridiculous and inhumane ▪ And yet these same men ( the great Patrons of Iustice ) are the Secretaries of that Party , who after they had murdered Strafford , made an Act that none should dy by that preparative ; in imitation of which horrid Injustice , our Rebellous Zealots did Execute Sir Iohn Gordon of Haddo , upon a Statute made by them , after they had Condemn'd him as a Traitor , for bearing Arms against the three Estates , tho he had a special Commission from the King their Soveraign . And hang'd the great Marques of Montrose , with his Declaration , Emited by His Majesties Authority about his Neck , though they had Treated and concluded with the King that gave it , by whom so many Noble-men and Gentle-men fell for doing their Duty : and so many innocent Cavaleers were Massacr'd after they got Quarters . Then it was , That an Oath was taken by our States-men , not to spare the lives of either kin , Friend nor Ally . That three hundred were expos'd on a Rock to be starv'd , and as many murdered in cold Bloud after Quarter . And a Scaffold being Erected at the Cross of Edinburgh , on which in six Weeks time , multitudes of generous Gentle-men having dy'd , a Zealous Minister Thanked GOD for that Altar , on which so sweet smelling a Sacrifice was offer'd . Whereas our Merciful King , having had his Father Martyr'd , and being himself Banish'd ; Pardon'd even His Fathers Murderers . And granted not only Pardons , but Indulgences after two inexcusable Rebellions . And it was very wonderful , to see His Royal Brother ( this formidable Tyrant in our Pamphlets ) pleading for Pardon even to such as owned a hatred against all the Royal Family . Nor can it be deny'd , but there is a gentleness in the old Cavalier Party , which demonstrats that they are in the Right . And which is infinitly preferable to that soure Cruelty , and morose bitterness , which make the insolent Republicans , and bigot Fanaticks , humourous and dangerous . And as a Monarch the true father of his Subjects , thinks it generous to Pardon , so Republicans must be Cruel , to shew a Zeal for the Rabble which they Serve . Nor do I ever hear that any of those publick Spirited Authors , do turn the Edge of their Zeal against Ignoramus juries , false Witnesses , lying Scriblers against the Government , assassinats , &c. I am now come to take notice of a late Pamphlet , called The Scots-mist , wherein , because the late Earl of Argyl's Process is founded upon Points in jure , and consequently not so obvious to the consideration of every Unlearn'd Man , the Author takes pains to make it appear an unanswerable Instance of the Arbitrariness of our Judges . But before I answer his weak Reflections in Law , I must take notice of some few Particulars in Fact : As first , His Judges were not Judges in a Packt Commission ; but the learn'd and Ordinary Iudges of the Nation . 2ly , What Temptation could the King , or any who Served Him have to streatch Law in that case ▪ for that , as to his Life there was no design , is clear from the express Order His Royal Highness gave , not to keep him strictly after he was found guilty . Though great presumptions were offered to that generous Prince of a design'd Escape . And himself ordour'd in Council , that the most Learned Advocats in Scotland , should be prest to appear for him . Nor was ever a Prisoner us'd , either by Judges , or by the Kings Advocat , with so much discretion and respect . 3ly , His Jurisdictions , nor Estate could be no Temptation , for the late Advocat had Represented such Reasons against his Right to these Jurisdictions and Superiorities , as no man under Heaven could answer with any shadow of Reason : And the King got not one farthing of his Estate , for His Royal Highness by his generous Interposition , procur'd more of it for his Children , then belonged to the Family , Debts being payed . And the remainder was gifted by our gracious and inimitable King amongst the Creditors . And the Tithes possest by that Earl , returned to the Church . Happy Kingdom , wherein the greatest Instance of Arbitrary Government , is a Person , who having nothing to lose , save what the King gave , had a fair Tryal by sworn Judges and Jurors : and lost upon the Event , neither Life nor Fortune . And whose Family after three capital Sentences , two by Parliaments , and one by a Solemn Iustice Court , is left without envy in a better condition , then almost any who Serv'd the King in His great Extremities . 4ly , All these Narratives and Apologies are founded on great mistakes , as if the Earl had been desired to take the Test ; for we desire no man , but men in Office desire it , because they cannot enjoy their Offices till they take it : And that the Council was once pleased with the Explanation he gave , as if he had given in an Explanation : and the Council being pleased with it , allowed him to take it in these Terms : Whereas the true cas was , that the Earl had assured both His Royal Highness , and many others , that he would not take the Test. Notwithstanding whereof , coming in abruptly to the Council , he spoke something with so slow a Voice , that none say they heard him , and then clapping down-on his Knees , took the Test ; but some Copies being dispersed of what he said , all Loyal Men murmured at the preparative , as tending to destroy , not only the Parliaments design in the Test , but to unhing all Government . And the greatest Fanaticks in Scotland , owned they would take it in that Sense ; without prejudice to their Principles : and so they might , being allowed not to bind up themselves from endeavouring any alteration they should think fit for the advantage of Church and State : Which made the Oath no Oath , and the Test no Test. And therefore the next day , when he offered to take the Test , as a Commissioner of the Thesaury , he was desired first to give in his Explanation , which when he gave it in , it was enquir'd , if any man had heard that Explanation made in Council : and no man did remember he heard or understood it so . And thereafter it was Voted not satisfactory . And albeit His Majesties Advocat allowed the Earl to prove that the Council heard and approved it ; yet his Lordship failed in the Probation : and it is absurd to think the Council would have allowed an Explanation , which would have Evacuated the whole Act , and the design of the Parliament in it : as shall fully hereafter be prov'd . Whereas if the Earl had only designed to Exoner his Conscience , he might either have abstained , for no man is obliged to take the Test ; or if he had resolved to know if his meaning would have been acceptable , he might have given his Sense , and petitioned to know if that was acceptable , which had been a fair and sure way , both for Takers and Rulers . Whereas , first to take , and then give in his Explanation , is a certain way to secure ones own Employments , and a preparative to let in any , let their Principles be what they please , if they have the Wit to Salve their Principles by apposit Explications : and the dispersing Copies of that Paper , before it was presented in Council , cannot be said to have been done for Exonering his own Conscience , but is the ordinary way that men take , when they resolve to Defame the Government . Nor is our Government so unreasonable , as not to desire to satisfie such as scruple , without ill Designs . And this they shew in satisfying some of the Orthodox Clergy , who offered modestly some Scruples against the inconsistency of the Confession of Faith , with Episcopacy : And which Scruples being easily cleared , they all obeyed save nineteen or twenty , in the whole Kingdom at most , some whereof had also inclinations however to the good old Cause . Nor can I pass by here a strange abuse put upon the World in that Pamphlet , as if those scruples there set down , were only the Scruples of the conform Clergy , whereas many Papers bearing that Title , were drawn by the Presbyterians , and found amongst their Papers ; and the Paper ascryb'd to them in that Book , wants the chief Objection they stuck at , viz. That the Compylers of that Confession of Faith were Enemies to Episcopacy ; and in place thereof , it asperses our present Episcopacy , the Kings Supremacy , and the Act of the Succession , which the conform Clergy never did . For clearing this Process , modestly and meerly in defense of our Judges , I shal first set down the Earls Explanation , which runs thus , I have considered the Test , and am very desirous to give Obedience as far as I can — I am confident the Parliament never intended to Impose contradictory Oaths , and therefore I think no body can Explain it but for himself , and Reconcile it , as it is Genuine , and agrees in his own Sense . I take it as far as it is Consistent with it Self , and the Protestant Religion . And I do Declare , I mean not to bind up my self in my Station , and in a lawful way to wish , and endeavour any Alteration , I think to the advantage of Church , and State. Not Repugnant to the Protestant Religion , and my Loyalty , and this I understand as a part of my Oath . The first Cryme Charged upon the Earl from this Paper , is , that albeit by the 107. Act of Parliament 7. I. 1. It be Statute , that no man Interpret the Kings Statutes , otherwise then the Statutes bears , and to the Intent and Effect they were made for . And as the Maker understood , and whosoever does the contrary , shall be punished at the Kings will. Yet the King and Parliament having appointed an Oath to be taken for Securing the Protestant Religion , and the Kings Prerogatives . And having to evite the old Fanatick Juglings ; and Evasions of the Covenanters on the one hand ; and the Equivocations and Mental Reservations of the Papists on the other . The Oath does expresly bear , these Words : And finally I affirm and swear , That this my solemn Oath is given in the plain and Genuine Sense and meaning of the words , without any Equivocation , Mental Reservation , or any manner of Evasion whatsoever . The said Earl did , notwithstanding of that Statute , and the foresaid Clause in the Oath it self , take the said Oath in such a Sense , as did not only Evacuat his own taking of it , but did teach others how to swear to it , without being thereby obliged ; and path a Way to Posterity , for Evacuating all the Acts that ever can be made for Security of Religion , King and Government , in so far as he declares , that he did take the Oath with these Qualifications only . First , I will give Obedience as far as I ean . 2ly . I think no body can Explain it but for himself , and reconcile it as it is genuine , and agrees in his own Sense . 3ly , I mean not to bind up my himself in my Station , from making any alteration , I think to the advantage of Church or State , &c. Which is not to take it in the Imposers Sense , but his own , which will the more easily appear from these Reasons . First , That the Design of all Laws , but especially the making of Oaths , is that the Subjects should be bound thereby , according to the Sense of the Legislator . Which is very clear from the express words of the former Statute , and by the Reason whereon it is founded , which is , that the Legislator may be sure of Obedience , and may know what to expect from those who are to obey . And who have taken the Oaths prescrib'd . And in which , Divines agree with Lawyers , for they tell us , that verba ju ▪ ramenti intelliguntur secundum mentem & intentionem ejus cul sic juramentum , Sande : pag : 173. But this sense in which the Earl takes the Oath , does Evacuat all the designs of the Oath : For , first , Whereas the Oath design'd that this Act of Parliament should be simply obey'd , as a sure Foundation for the Security of Church and State ; the Earl promises only to obey it as far as he can , without telling in what he will obey . 2ly , Whereas the Oath is to be taken in the plain genuine Sense of the Words ; the Earl declares , that no body can Explain it but for himself . And reconcile it as it is genuine , and as it agrees in his own Sense . Which implys , that it had no plain genuine Sense , in which it could have been taken . 3ly , Whereas the Parliament design'd it as a Security for the Protestant Religion ; he declares he takes it only in as far as it is consistent with the Protestant Religion . Which implys , that in some things it is not consistent with the Protestant Religion . 4ly , It cannot be pretended , that the Parliament design'd to make an Act that had contradictions in it ; and yet the Earl says , he takes the Oath in so far as it is consistent with it self , which imports necessarly , that in some things it is not consistent with it self . 5ly , The design of this Oath was , to preclude all the Takers from reserving a Liberty to rise in Arms upon any pretext whatsoever ▪ but by this Explication , the Earl reserves to himself a power to make any alterations that he shall think , for the advantage of Church and State. By all which , I conclude , that the Earl has interpret this Oath otherwise than it bears , and to the Intent , and Effect it was made for . And otherwise than the Maker understood . And therefore this Explication does clearly fall under the foresaid Satute . 2ly . If this were allowable , no Member of Parliament needs hereafter propose any doubts in Parliament , but let the Parliament make what Oath they please , the Taker vvill Reform , and alter it as he pleases . When he takes the Oath . And I desire to knovv from any man of Sense , if the Earl would have obtained from the Parliament at the passing of it , that every man should have been allowed to take it as far as it was consistent with it self , and the Protestant Religion . Or if they would have suffered the other Qualifications in that Paper to have been adjected , as a part of the Act. Which does demonstrat ▪ that he did not only not take it in the Legislators Sense , as the former Statute Commands . But that he did not at all take the Oath that they made , but made a new Oath of his own . 3ly , If a man should oblige himself simply upon Oath , to make me a Right to such Lands , could this Sense be consistent with it , 〈◊〉 make it as far as I can . Or would the making such a Right , with that quality , satisfie the Obligation . Or could he who receives the Obligation , be sure of a good Right , if the Person Obliged were bound to no further than he could perform . 4ly , All Oaths must be so taken , as that the Taker may be pursued for Perjury ; but so it is , that when it is not known what the Taker is ty'd to , it cannot be known wherein he has fail'd . And consequently in how far he is Perjur'd . 5ly , I would willingly know , if the Covenanters would have allow'd any to have taken the Covenant with a Qualification that he should observe it as far as it was consistent with his Loyalty . And do not generally the greatest Enemies to the Kings Supremacy declare , that they are content to take the said Oath , in as far as it is consistent with the Word of God , and the Protestant Religion . 6ly , If this were allow'd , every man should take the Oath in a particular Sense , and upon his own Terms , nay and upon contrary Terms , according to mens contrary Interests . So that it would not be the Parliaments Test , but every mans own Test. And there should be as many different Oaths , as there are different Takers . 7ly , Former Statutes having discharged the Leidges to Convocat , or Assemble , or to enter into Bonds and Leagues without the Kings consent , the Covenanters did protest , that their taking the Covenant was not against these Acts ; because these Acts could not be mean'd against any Leagues , or Meetings holden for Preservation of the King , Religion , and Laws . And yet the 4 : Act Par : 1 : Ch : 2 : does positively declare , that all such Glosses are false and disloyal , and contrair to the true and genuine meaning of these Acts. And therefore this Glosse must be so too , because this Glosse is the very same , both in Words , and Design with those Glosses . But though this Poynt be very clear , and undenyable . Yet Mr. Mist ( for so I must call the Author for distinctions sake ) makes those three answers : First , That if the Authority which is to administer the Oath , do's accept the Takers Sense , the Taker is only bound in the Sense he gives , and no other . But so it is the Council accepted his Sense . And if they had refused , the Earl had not taken the Oath , nor had his refusal been a Cryme . To which it is replyed , That first , If it be a Cryme to Interpret the Kings Laws otherwise than they bear , and to the Effect for which they were design'd : Then certainly it may be debated with very good Reason , that though the Council had conniv'd at the Earls misinterpreting the Law , neither their negligence , nor their mistake could have prejudg'd the King ; nor have been in place of a Remission . For though the Council be a more eminent Judicature than others , yet they cannot pardon Crymes , when committed . And consequently their allowance , cannot make that to be no Crime which is a Cryme . And we have a particular Statute in Scotland , That the negligence of the Kings Officers shall not prejudge Him. Nor is that Statute so Reasonable in any Case as in this . For since this , and all other Oaths are oft times administred by very ignorant Persons , we should have them a thousand times cheated , and impos'd upon , by the adjecting of such Qualifications as these ; if the adjecting of such Qualifications as these were not punishable . Because he who did Administrat the Oath , did once allow them . And I put the Case , that if a man who had many Friends in Council , should have given in an Explication that was uncontravertedly Treasonable , by saying that he was content to take the Oath , but that he design'd not by it to preclude himself from rysing in Arms , when he thought fit , for the Defense of the Protestant Religion . Would it have been a sufficient Defense , that the Council did not challenge it in the mean time . And therefore it this was a Cryme in it self , the Councils allowing the Explication , did not at all in strict Law take off the Cryme . But the Judges ( resolv'd to do him all possible favour ) were more merciful then to straiten the Earl upon this Point . For if the Earl had given in an Explication to the Council , and told that he subjected that Paper to their Consideration , and that he would take the Oath upon these Termes , and no otherwise , the Judges would have Interpos'd for the Kings Favour , if he had been so ensnared by the Councils connivance , or mistake . Nor would the King have pursued it . But the true matter of Fact is , that the said Paper was not given in , till the next day after the Earl had sworn the Test. And though the Judges allowed him to prove that he had adjected these Words at his first Swearing of the said Test , and that they were allow'd , yet he fail'd in the Probation , and so the Judicature is no way to be blam'd . The second Defense is , that all that can be inferr'd from the above-cited Law is , that no man should put a Sense upon any Law that should bind another , or be the publick Sense of that Law to all the Subjects , which is most false , for the Words of the Law are general . That no man shall Interpret the Kings Laws , but to the Intent and Effect for which they were made . And consequently this must be Extended to all Cases , where the Law is abus'd , and the Legislator disappointed by a misinterpretation . Et ubi lex non distinguit , nec nos . And there is as great Reason to Punish such as take Oaths under such wrested Senses , contrair to the Design of the Legislator , as there is for punishing any Cryme . And much more then for punishing such as misinterpret the Law to others in other Cases . Since if this be allow'd every man may by misinterpreting the Oath as to himself , evacuat all Oaths , and make them ridiculous : And so not only enjoy Employments contrair to the Legislators Design . But likewise cut down the greatest Fence of Government , such as Oaths are now esteemed to be by all Christians . The third answer made to this Point is , that the Legislator is surest of those who give Explications of their Oaths ; for they deal honestly : And it is impossible that any man can take an Oath , but he must take it in his own Sense . But neither is this of any moment ; for if this Answer prove any thing , it will prove that no man can be challenged for adjecting any Quality . And consequently the Act of Parliament could take effect in no case . And so not only were this Act useless , but we would want an excellent Remedy for curbing such as resolve to abuse the Government , in rendring all Oaths that are invented for its Security , altogether ineffectual . And it is strange to see what absurd things men will run to , when they are put to Defend an Absurdity . And though every man must have a Sense when he takes an Oath , it does not therefore at all follow , that men must be allowed to adject Senses that are inconsistent with the Oath , or render the Oath useless . And since this is not an Oath , that all the Subjects must take , it having no other Penalty adjected to the not taking , but the loss of the Employment , they possess by the Kings meer Favour . Every good Christian ought either to be satisfied of the design of the Legislator , in the Oath , or else to abstain from it . And though the Mind of the Legislator might secure the Taker , yet that can only be when the Sense is previously offered to , and accepted by him , which cannot at all be said in this Case . And whatever favour may be pretended , where the Taker of the Oath condescends upon what he will oblige himself to ; yet that cannot be pretended in this Case , where the Earl does not condescend how far he can obey . And does not specifie how far he thinks it consistent with the Protestant Religion , or with it Self . But only that he will obey it as far as he can ; and as far as it is consistent with it self and the Protestant Religion . So that the Legislator is still unsecure , and the Earl himself still the only Judge . And I am desirous to know in what part of Europe such qualities were ever allowed . It is also very absurd to contend , that the adjecting of these qualities can put the Taker in no worse case , then if he had refused the Test. And since that cannot amount to a Crime , so neither can this . For it is contended , that these qualities do infer a misinterpreting of the Kings Laws , and a Defaming of the Parliament . And it is most absurd to think , that such things as these should be suffered , because they are thrown in into Explications : For else under the pretence of Explaining Oaths , we should have virulent Libels dayly against King and Palliament . Nor can I see why Equivocations and Mental Reservations should be condemned if this be allowed , for such as take the Test or any other Oath , may at the taking of them , Evacuat the Obligation of the Oath , by adjecting such qualities . And it is all one to the Legislator , whether he be openly or secretly abas'd . Only this I must observe , that the open Abuse is the greater , because it adds publick Contempt to the design'd Cheat : And whereas it is pretended , that the Magistrat may choose whether he will admit of the quality or not , which he cannot do in mental Equivacations . To this it is answered , that that could only hold if the qualities adjected to the Oath , were first offered by way of Petition to the Magistrat , that it might be known whether he would allow of them , which was not done in this Case , wherein without ever applying to the King or Council : The Earl did by his own Authority Swear in his own Terms . Though the Council and the Reverend Bishops took pains to satisfie some scrupulous Ministers ( whose Scruples were in Favours of the Government ) and got them the Kings Sense , and told them their own . And which indeed was the genuine Sense of the Parliament . Yet that did not at all allow the Earl , or any privat man to take it , in a Sense Inconsistent with the Oath . And that too without previously offering his doubt to the King and Council : And geting their Approbation as said is . Nor were they allowed to take it in such general Terms , as did ●●●ecure the Legislator , and admit the Takers to be Judges . The second Cryme fixt'd upon the Earl from this Paper , is , That albeit by the 10 : Act Par : 10 : Ia : 6 : It is Satute , That none of His Majesties Subjects , presume nor take upon hand , publickly to Declaim , or privatly to Speak , or Write any purpose of Reproach , or slander of His Majesties Person , Estate , or Government ; or to Deprave His Laws , and Acts of Parliament ; or misconstruct His Proceedings , whereby any misliking may be mov'd betwixt his Highness and his Nobility , and loving Subjects , in time coming , under the pain of death . Certifying them that do in the contrair , they shall be repute as seditious and wicked Instruments , enemies to his Highness , and the common well of the Realm ; and the pain of death shall be Execute against them with all rigour , in example of others . Yet true it is , that the said Earl did endeavour all that in him lay , to Defame the King , and Parliament , and Test , in so far as he did declare , That he would give Obedience to it as far as he could ; Which imported that the Parliament had made an Oath which could not be absolutely obeyed . And though the Parliament never intended to impose contradictory Oaths , yet no body can Explain it but for himself . Which did clearly import , that though the Parliament design'd not to make an Oath that was contradictory : yet they had made one that was indeed contradictory . And could not be made Sense without privat Reconciliations , and Explications . And by saying that he took this Oath only as far as it was consistent with it self and the Protestant Religion ; he did clearly declare to all the world that he thought it in some things inconsistent with it self , and the Protestant Religion . And since there is nothing concerns Governours more than to have themselves esteemed by the people , without which , or numerous Armies , Government cannot subsist . And therefore our Parliaments , have in place of Armies , consented in the former excellent Statute , that whosoever shall endeavour to deprave the Laws , or misconstruct the proceedings of King and Parliament , shall be punished to the death . And what can be a greater reflection upon King and Parliament , in the age wherein we live , than to have made Laws which cannot be obeyed , and which are inconsistent with the Protestant Religion . And there was no man that ever hear'd that Paper , except this Author , but did conclude , that upon the matter , the people would from it entertain those scruples . Nor are these the inferences of people that live far from the Sun , as the undiscreet Author does object against this Nation . But men must be as disingenuous , as he , not to confess that these are most just and natural Inferences . And the Inferences are so much the stronger , that both this Author , and all such as were enemies to the Test , did take pains to make the People believe , that the Contrivers of the Test , were in so far , friends to Popery , and consequently , there was nothing drawn from this Paper by Inferences , but that which was too publickly owned by all , who were in the same Circumstances with him who gave it in . Mr. Mist in answer to this part of the Accusation , does first cry out , that Crymes must not be inferred by Inferences , and Insinuations , seing these may be unjustly drawn against the design of the Party accus'd . And no man could be secure , if men could be made Criminal upon Insinuations , and Inferences . And this Paper having been given only for the Exoneration of his Conscience , it is not capable of any such Misconstruction , nor ought any such Construction be made , except where a malitious Design can be proved , in the Person accused . To which it is answered , That the Parliament having been very jealous of the honour of the Government , which ought to be Sacred . They discharg'd in general , all such Words , and Papers , whereby any mislyking might be mov'd betwixt the King and his Subjects . And therefore since the effect was the thing they lookt to , and that it is all one to the Government , what the Authors design was , if the effect was wrought , and the dislike moved . They therefore ordained the effect to be punished , without adding , as they do in other cases , that whosoever shall malitiously , or upon design , Write , or Speak , and it is very well known , that there are no Papers so dangerous , nor no Satyre so bitter as these , which are coloured with specious pretexts of Conscience , Respect and Kindness . And upon this accompt it was , that by the 9 : Act Par : 20 : Ia : 6 : All Papers that tend to renew the remembrance of the former feeds betwixt the two Nations , shall be punishable . And what can be more justly called Insinuations , and Inferences , then Tendencies are . And if the people be abus'd , and inflam'd , what advantage is it to the Government , that the Author design'd it not . And therefore it is much safer for the Government , as it is sufficiently safe for every Subject , that men rather secure their own innocence , by not medling in publick Matters of State , then that they should be encouraged to meddle , upon hopes , that they could not be reacht : since their design could not be prov'd . And which design and malice being latent Acts of the mind , can never be otherwise prov'd , than by the nature of the Action it self : And therefore , the dolus malus , or design , needs not in this case be otherwiseprov'd , than from the Nature , and whole strain of the Paper it self . Which was so fit to Inflame the people , and abuse the Parliament ; that dole and premeditat malice , could not have done more prejudice . But if it were necessary to clear the Earls Design , further then from the Paper it self . These Circumstances might be conjoyn'd with what results from the Paper . First , That the Earls Father and Family , had owned eminently the Principles against which this Oath was taken , viz. The Rising in Armes , for Reforming without the Kings Authority , and did still own the Covenant . Secondly , The Earl himself had taken the Covenant . Thirdly , The , Earl had all along opposed the Test in Parliament . Fourthly , The Earl had positively told his Royal Highness , he would not take the Test. Fifthly , Neither the Ministers , nor any other within his Countrey , upon whom he could have Influence , had taken the Test. Sixthly , I am affraid that the kindness shew'd to the Earl by the Fanaticks during his Tryal , and the noise they have made for him since that time : may clear too convincingly , that he design'd in that Paper to own that Interest , for they never manifest any concern , save for those of their own perswasion . And where have we ever heard them resent the injustice done to any Cavaleer , or shew more resentment than in this Earls Case ? So that this Author do's himself prove that design , which he desiderats , and add to the guilt , which he designs to lessen . All which Demonstrat , that he had an aversion for the Test , and so what he did against it , was done dolo malo ; and whoever writes for him , writes against the Test. 2ly , What juster measures could this Judicature take , then by considering what the Supream Judicature of the Nation , formerly did upon the like occasion . But so it is that the Lord Balmerino being accused for having misinterpreted the Kings actions , in a Petition given in to himself ; in which , against this Statute , he endeavoured to raise jealousies in the Peoples mind , of designs to bring in Popery , and that by far remoter Inferences than these now insisted on . He was found guilty , though his Lawyers Pleaded for many dayes together , that there could be no Cryme , but where there was a Design . And there could be no design of Defaming the King , in a Paper that was meerly a humble Petition presented to himself , and accepted , and Read once by him , without any show of displeasure ; and wherein nothing could be challenged , but by way of Inserence , and Implication . As also , this same Earl of Argyle being accused before the Parliament , in anno 1662 : for Leasing making , betwixt King and People , upon the Acts mentioned in the Earls Inditement . He was found guilty upon that Expression , viz. That that storm would blow over , and then the King would see their Tricks . Which Words , he pretended did relate to privat Persons formerly mentioned in the Letter , and not to the Parliament . And that every man should be allowed to Interpret his own Words , Which Interpretations being refus'd then , ought much less to be allow'd now , nam semel malus semper praesumitur malus , in eodem genere malitiae . In the next place , Mr. Mist endeavours to justifie the particular Expressions , against the Consequences drawn from them , by the Lybel : And as to the first , He tells us , that in that Expression , I will give Obedience as far as I can . He did not at all imply , that the Law was unjust , but only that he could notgiv Obedience to it : which cannot be Treason , since the refusing it absolutely would not be Treason . To which it is answered , that the Authors mistake is very grosse , for it was never design'd that Treason should be inferred from these Words : but that which was inferred from it was , that it was a gross Evacuating of an Oath , and a making it ineffectual , to say that a man should swear by way of quality , that he will obey as far as he can , and that he declares , this is a part of his Oath . For there is no man , but will take any Oath with that quality : and whatever he takes with that quality , is no Oath , nor Obligation at all , that can bind him in the Legislators Sense : and though we look upon it as no fault , nor Cryme , not to Take the Test ; yet to Take the Test so , as not to remain bound by it ; and so as to Teach others how to Evacuat it , and so as to defame it , as this Expression do's , is certainly an abusing , Evacuating , and Swearing to an Oath in express contradiction to the Act of Parliament , and to the Oath it self . And though it be no Reproach , not to Take the Oath at all , for then a man expresses no Opinion concerning it ; yet certainly , that with the subsequent Expressions being Dispersed among the People , could not but raise in them Jealousies , and a Contempt of the Government . For having made Oaths which men could not Take , though they were desirous ; and for which afterwards he Insinuats this Reason , viz. That though the Parliament designed not to make contradictory Oaths , yet he thinks , That no man can Take that Oath , lut in his own Sense . And whereas Mr. Mist pretends , that these Words are no Reflection upon the Parliament , since he do's not formally say , that the Parliament has made an Oath that has contradictions in it ; but on the contrair , That the Parliament did not Designe to make Contradictory Oaths . To this it is answered , That the Words are a very plain Reflection upon the Parliament ; for no man can hear one refuse to take an Oath simply , because , though the Legislator Designed not to Impose contradictory Oaths ; yet de facto , the Oath is such , as that no man can Take it but in his own Sense , and without a particular Reconciliation of his own . But the Hearer will certainly conclude , that the Parliament has been so Weak , Malicious , or Inadvertent , as to have contrived an Oath , which has in it self Contradictions . For else to what purpose was it said , That he believed the Parliament designed not to Impose Contradictory Oaths . And it is an extraordinary affront to a Parliament , to have made contradictory Oaths , though they did not design it ; and to have made made such an Oath especially ; That no man could Take it but in his own Sense : Whereby the whole Security of the Government is Evacuted . For the Security of the Government , as well as the Nature of Oaths , requires that an Oath should be Taken in the Legislators Sense . And can there be a greater moving of the People to Sedition , than to tell them that no man that Takes that Oath is bound by it farther , then he pleases , and further then his own Sense leads him . And that the Legislator is Ridiculous in having made Contradictory Oaths , which without Debating whether it be true or false , is a Reflection upon the State ; and is unlawful for any privat Subject . And if any such thing were suffered upon pretence that it were possible , or true . It should be lawful for every privat man to accuse the Government . As to these Words , I Take it in so far as it is Consistent with it Self , and the protestant Religion . Do's so far openly import ; That in some things it is Inconsistent with it Self , and the Protestant Religion ; that whosoever would perswade us to the contrary , must think us Fools and Idiots . And I almost charge my Self with Folly , for taking pains to clear this . Since , why should the Earl have Scrupled , to Take this Oath simply , and have thought it necessary to adject , that , He Took it only in so far as it was Consistent with it Self , and the Protestant Religion . If he had not thought it Inconsistent : and either he must say , he thought it Consistent , or not . If he thought it Consistent , why did he not Take it simply : and if he thought it not Consistent , then he owns that He thought the Parliament made an Oath which was Inconsistent with it Self , and the Protestant Religion . And this was to Inflame the People , who are so reasonably jealous of any thing that is Inconsistent with the Protestant Religion . Beside that it is a great Reflection upon their Prudence , and Conduct . And so every Expression in this Paper , do's clear up one another : and do's clear unanswerably , to all the World , that this Paper is a Defaming of the Parliament , and a depraving of its Laws , and a moving of the People to a Dislike of it . Which are the Words of the above cited Statute . And what can be a greater Depraving of a Law , then to make it pravam legem , a pernicious Law. And what can be more pernicious , then that Law which is Inconsistent with the Protestant Religion ? and which Tyes men to Swear things which are Contradictory ? and having affirmed all this upon Oath , and having dispersed these his Explications amongst the People , he did thereby shew a firm , and passionat Design , to make the People believe all these ill things of the Parliament . For no man uses to Swear any thing to another , without a great Design to have him believe it . Nor do's any man disperse Papers amongst the People , for the Exoneration of his privat Conscience . Nor could he have any Design in that , save to Poison them with those Jealousies against the Test , to which he himself had shown such an aversion in the whole Tract of the affair . I cannot but smyle at Mr. Mists Critical Learning , when he contends that the ' Earles Paper does only bear , that the Earl did Take the Oath in so far as it was Consistent with it Self , and the Protestant Religion . But did not adject the Word Only , as the Libel does . For he who Takes it in so far as it is Consistent , does Take it only in so far . And certainly the Author must confess , that either he Designed to Take it further then it was Consistent with the Protestant Religion : or , as far only as it was Consistent with the Protestant Religion , there being no midst betwixt these two : and so our Critick may choose any of the two he pleases . The third Cryme , is , Treason , which is Inferred from these Words ; I do declare I mean not to b●●d up my self in my station , and in a lawful way , to wish , and endeavour any alteration , I think to the advantage of Church , and State. No● Repugnant to the Proestant Religion , and my 〈…〉 this I understand as a part of my Oath . Which Treason may be founded upon many Reasons ; yet to convince any Reader , in a plain , familiar , and unanswerable way ; I lay down for a Position which I hope no man will deny ; that all Nations have made it Treason , for any privat man to assume , or reserve to himself , the power of Reforming Church and State. For that is the highest Point of Government . Which how soon any privat man arrogats to himself , he becomes presently Governour of that Kingdom , and Superiour both in Church and State , therein . And therefore by the 1 : Act 2 : Sess : Par : 1 : Ch. 2 : and 1 : Act 2 : Par : Ch : 2 : The power of Reforming is declared His Majesties sole Prerogative : and all the Civilians agree with us in this . Inter caeteras sollicitudines ( verba sunt Theodosi ) & Valentiniani in Novel : de Iudaeis sam : haer : & pag : ) quas amor publicus pervigili cogitatione nobis indixit , praecipuam Majestatis curam esse perspicimus , veram religionis indaginem . Cujus si cultum tenere potuerimus , iter prosperitatis humanis aperiemos inceptis . vid. Ziegler : de jur : Majest . cap : 13 : num : 1 : Arnis : de jur : Majest : cap : 6 : num : 15 : And which is most reasonable , for whoever pretends to have power of Reforming , must be greater then he who is Reformed . And we have found by woful Experience , that such as have endeavoured to Reform , have withdrawn themselves from the subjection of the Supream Power , under which they liv'd . And except they resolve to force the Supream Power as to this Point , there is no necessity of reserving a Power to themselves . From all which , I form this Argument ; First , It is Treason to any man to reserve to himself the power of Reforming Church or State , that being the Priviledge and Prerogative of the Prince , both by the Common Law , and the above-cited Statute : But so it is the Earl does reserve to himself , in this Explication , a power of Reforming . And therefore he commits Treason . The first Proposition is founded upon the Nature of the Monarchy , and the Reasons and Citations above-mentioned . The second Proposition is likewise very clear , because he who reserves to himself a Power to make any alteration , reserves a Power to make all Alterations in Church and State. And consequently reserves a Power to Reform , in Matters of the greatest Importance . For in all Languages , Any , comprehends All. As for Instance , Does not he who sayes he 'l do any thing for the King , say as much , as if he said , I will do all things for him . Or does not he , who confesses he believes any thing that is in the Scripture , Imply that he believes all things that are in the Scripture . And consequently , that Proposition of the Earls , viz. I întend not to bind up my self from endeavouring any alteration , I think to the Advantage of Church and State. Resolves in , and is equivalent to this Proposition . I intend not to bind my self up from making all alterations , that I shall think to the advantage of Church or State. And if that be not Treason , nothing can be Treason . The second Argument is , That all Lawyers are clear , that it is Treason to attempt against the Security of the Government , l 2. ff . ad l. Iul. Majest . But so it is , that he who reserves to himself a Power to Reform ; attempts against the Security of the State. Which is clear by all the Civilians , Amongst whom I shall only cite Arniseus , ad securitatem Majestatis & Reipublicae quietem nihil excogitari potest efficacius quam si summa religionis inspectio Majestati reservetur . My third Argument in Fortification of the Statutes , formerly insisted on at the Debate . And for farther clearing the extent of that Alleadgance , that is required by the common Law , is founded upon Act 2. Ses. 2. Par. 1. Ch. 1. The very words whereof are , Therefore the Kings Majesty and Estates of Parliament , Declare that these Positions , That it is lawful to Subjects , upon pretence of Reformation , or other pretence whatsoever , to enter into Leagues or Covenants , or to take up Arms against the King , or that it is lawful to Subjects , pretending his Majesties Authority , to take up Arms against his Person , or these Commissiona'ed by him : Or to suspend him from the Exercise of His Royal Government : Or to put limitations on their due Obedience , and Alleadgance , are Rebellions and Treasonable . In which Words it is observable , that it is not the doing of these Deeds , but the very asserting of these Positions , that it is Treason . 2ly , That no pretence or caution adjected to these Positions , can defend them from being Treasonable . 3ly , That the Parliament thought it not sufficient to acquiesce in the special Enumeration ; But so Jealous were they of such Tricks , that they subjoyn this general Clause , That it shall be Treason to put Limitations , on their due obedience , and alleadgance . From which Words , I infer most clearly , that for a Subject , to declare he is not Tyed up , To wish or endeavour any alteration , is Treason , whatever pretence it be done upon . For any alteration , comprehends all alterations : and what man of common Sense , or Ingenuity can deny , but this is a putting Limitations upon his Obedience , and Alleadgance , which is here declared Treason . For what is a greater Limitation , than to reserve to himself to be Judge how far he is Tyed ? And what Expression or Limitation can be Treason by this general Clause , if this be not ? Or of what use can this general Clause be , if it secure not against such Limitations as this ? Nor do I think this Limitation , wherein the Earl still reserves to himself to be Judge , a greater Security to the King , or Kingdom , than if a man should tell me , that he would lock my Money in a secure place , but would keep the Key of it himself , In which case . I am sure , he , and not I , were Master of that ney . 2ly , It being then Treason for any man to reserve to himself the Power of making such alterations as he shall think for the advantage of Church and State , viz. not repugnant to my Loyalty , and the Protestant Religion . The adjecting these Cautions cannot hinder this Paper to be Criminal ; else , 1. The Covenant had not been Criminal , for the very Words of this Caution are in Covenant ; The very Words of the Covenant being , Art. 1. That we shall endeavour in our several Places and Callings , the Preservation of the reformed Religion . And , Art. 3. We shall with the same sincerity , reality , and constancy , endeavour to preserve and Defend the Kings Majesties Person ; and Authority : In the Preservation , and Defense of the true Protestant Rèligion . That the world may bear witnesse with our Consciences , of our Loyalty , and that we have no Thoughts , nor Intentions to diminish His Majesties just Power , or greatness . Here are the very same Expressions , accompanied with many moe , in favours of the King. 2ly , That cannot be a sufficient Caution against Treason , which never hindred any man to commit Treason ; but so it is , that notwithstanding of these Words , all the Covenanters own'd that they might lawfully rise in Arms , hold Parliaments , impose Taxes , and Oaths , enter into Leagues with forraign Princes , Hang and Head for Serving the King , &c. Ergo , These Words are not a sufficient Caution , when subjoyn'd as a Caution to the power of Reforming . Which is uncontraverted Treason in its self . And did the great Protestations of Loyalty annexed to the Lord Balmerino's Petition , defend it from being condemn'd . 3ly , Do we not see dayly , that these who Rebelled in anno 1666 : and 1679 : did openly own , That they lov'd the King as well as their Accusers did . But when he was in opposition to Religion , it was lawful to rise in Arms against Him. So litle Security has the King in flowrishing Professions , when the Prosessors are to be Judges . 4ly , The adjecting of this Protestation , is called by Lawyers , protestatio contraria facto . Which kind of Protestation , all Lawyers under Heaven reject , as inconsistent with the thing , to which they are adjected . And thus the League of France , was Treason , though they did assert under the deepest Protestations , the sincerest Loyalty . 5ly , By the foresaid 4. Act Par. 1. Ch. 2d . All Glosses put upon the Laws of this Nation , in the late Rebellious Parliaments , to the prejudice of their Alleadgance , are declared to be false , and disloyal ; and contrary to the true , and genuine meaning of these Acts. And particularly that Gloss , or Explanation , that what they did , was for the Preservation of Religion . Which is the very Explanation put by the Earl upon this Oath . And from which it clearly follows by a demonstrative consequence , that Explanations and Glosses put upon Oaths , and Acts of Parliament , contrary to the meaning of the Acts themselves , are not to be respected . And being in Law holden and repute , as unlawful , they are so far from defending the Contraveeners , that they are themselves lookt upon as new Crymes . From all which , it clearly follows , that the Earl having reserved to himself in this Explanation , a power to endeavour what he should think to the advantage of Church and State. He did thereby commit Treason , and that this Treason is not taken off by the Cautions adjected , viz. The not Repugnancy to the Protestant Religion , and his own Loyalty . Whereas it is pretended ; First , That Treason requires a special Law from , which it ought to be inferred , I deny this Position , for our Lybels are oftimes found Relevant on the common Law , and the Laws and Customs of Nations , and the nature of the Monarchy . There was Treason before there was Law , for how soon Kings were Elected , it was Treason to rise in Arms against them , or to Murder or Betray them ; and many of our Laws being but lately made , declare oft times what has been Treason , not for necessity , but for the better Information of the Leidges . And though we have Laws declaring it Treason , to seek Benefices at Rome ; yet we have none declaring it Treason to assume the Title , or Power of the King in general , that being inherent in the nature of the Monarchy it self , Treason is the Fense of the Government , as Murder is of privat mens Lives ; and to rise in Arms was Treason before the Statute , King Ia. 1. Nor have we yet any clear Statute against Murder : and if special Statutes were requisit in every case of Treason , the greatest Treason should often escape unpunished . For Law thought it unnecessary to provide against these , and every age produces new kinds of Treasonable Extravagancies ; and Traitors would easily elude and cheat the express Words of a Statue , if that were all that were necessary . But who can deny that the Justices condemned a man justly for Treason , for saying , when he was askt if the King was a Tyrant : let his Coronation Oath , and his Actions , and particularly his usurping over the Church of Christ be compared : and that will be soon known . And yet here was no explicite assertion ; but yet what all men easily understood , and which reproacht , and mis-represented the King as much , as any open Expression : and there was no Statute condemning that Expression , expresly . nor can there be a Law for every Expression : But yet the Earls Treason is founded upon the express Statute abovementioned . And whereas it is pretended , 2ly , That the Earl might have as a Privy Counsellor , propos'd any thing to the King : and so a Reservation was necessar upon that account . To this it may be easily answered , that no Oath does hinder a man from doing what is Lawful ; and so there needed be no Reservation nor Exception upon that , or the like Consideration . For an Exception must be of some thing that could oppose the Rule . But so it is the Oath which is the Rule in that Case , did not exclude any lawful Endeavours , at the desire , or command of the Prince : and so there needed no Exception as to these . But the former argument still Recurs , viz. He that will not bind himself up , as to any thing , reserves a power as to all things , or at least it must be Interpret of unlawful things : For lawful things need no exception . And if this were sufficient , then the Parliament did unjustly , in declaring that it is Treason , to put limitations on our alleadgance : and that notwithstanding of any pretence whatsoever . Nor could any man commit Treason , if that were allowed ; for he himself would be still Judge . And whereas it is pretended , 3ly , That he disclaims the Covenant , and rising in Arms expresly in this Oath ; and so he could not reserve any thing , as to these . It is answered , that this were undenyable , if he took the Oath simply ; but having taken the Oath only , In so far as it is consistent with it Self , and the Protestant Religion . This Oath does not tye him , if he think the Protestant Religion shall require rising in Arms. And having taken the Covenant , if he still thinks the Covenant binds him , he renunces it not by his Oath : For this Oath tyes him only as far as he can ; that is to say as far as he is free : and no man is free who thinks himself bound . And taking it only , as far as it is consistent with it self , God only , and the Earl knows how far that is ; for he has not told us , how far it is consistent with it self ; and very probably , such as have taken the Covenant , think not that Oath consistent with the Protestant Religion , in so far as it binds us not to take up Arms , if the Protestant Religion be in danger : and the Antitesters Papers , Printed by Mr. Mist , tell us plainly , that it is not consistent with it self , in so far as we swear to own the Successor , though differing in Religion from us . And yet we swear to the preservation of the Laws , of which the Coronation Oath is one . But whatever might have been said in defense of such Limitations , before we saw what dreadful effects they had produced , both in the last age , and this . And that Parliaments had so severely condemned them as Treason . It is the duty of Judges to be severe to such as use them , and they have only themselves to blame , who split on a Rock , when they see a Beacon set up to them . And it is much safer for the Common-wealth , that such Papers be punished , then that it should be in danger by such Reservations , as leave every man Judge how far he is oblieged to Obey . And as there is great danger to the State on the one hand , if it passe unpunished . So there is none on the other , seing men may be secure in abstaining from such Expressions , and Papers . And there was never any so unnecessary as this was . And might not Strangers , and our own Posterity , think all the miseries that should fall on us by Rebellions , and Civil Wars , very just punishments of our senselesse Security , if after we had not only seen , but felt the mischief of such Glosses . We stood still unconcernedly , as men seing their own House set on fire , by the same hands which had help't to burn it formerly . If any by Ignorance , or Error , stumble into a Legal ; tho undesign'd Crime . The Law allows not Judges , by an insolent pity to justifie the Guilt , but suffers the King by a Judicious Clemency , to mitigat , or remit the Punishment . In which the Subjects under Monarchy , are much happier than these of a Common-wealth , where , in many cases the Law must be cruel , or Judges must be Arbitrary . This is that sure City of Refuge , into which , no man who flees , perisheth . And if the Earl of Argile , had come in Will during the Debate , as use is . I am sure he had been Securer there , than by his Defenses . But why should I admire , that this Author , and those of his Principles , do not see that this Paper is Treason . Since I dare say , they will not acknowledge that it is Treason to oppose the Succession , and to say that it can be altered by a Parliament : and yet our Parliament unanimously thought that to be Treason . And in the last age , they thought it not Treason , but duty to rise in Arms against the King , and to Call Parliaments without him . Though all the World abhorr'd us for it . So that the fault is not in our Parliaments , and Judges ; but in the depraved Sense , and debauched Intellectuals of such , as have ( by a long Custom of hating Authority ) bred in themselves also , a hatred of every Person , and thing that can maintain it . Since then GOD Almighty amongst the other Miracles which he has wrought for his Darling , as well as Representative CHARLES THE MERCIFUL , begins to open the Eyes of the Blind , and to make some who were Crooked Walk Straight : Let us who Serve this gracious Monarch , Reason whilst His Enemies Rail ; and be Just , whilst they are Extravagant : but withal , let us be asham'd , that they dare do more for Humour and Errors , than we for Duty and Law ; and we may expect amongst other Rewards , which the Rabble has not to bestow ; that we will get also that Applause which is alwise the Slave of Victory ; and which of late seem'd to Fan them so pleasantly , meerly because they were like to prevail . And for which , too many of late sacrific'd their Honour , and Loyalty . VVithout remembring that tho just Applause , is an Elogie VVritten by the Hand of Vertue , and a Monument Built of solid Merit . Yet that Applause which is unjust , is only a sweet Poyson , a plausible Cheat , and the Dream of one who is Drunk . FINIS .