The Case of the Earl of Argyle, or, An Exact and full account of his trial, escape, and sentence wherein are insert the act of Parliament injoining the test, the confession of faith, the old act of the king's oath to be given at his coronation : with several other old acts, made for establishing the Protestant religion : as also several explications made of the test by the conformed clergy : with the secret councils explanation thereof : together with several papers of objections against the test, all framed and emitted by conformists : with the Bishop of Edinburgh's Vindication of the test, in answer thereunto : as likewise a relation of several matters of fact for better clearing of the said case : whereunto is added an appendix in answer to a late pamphlet called A vindication of His Majestie's government and judicatories in Scotland, especially with relation to the Earl of Argyle's process, in so far as concerns the Earl's trial.

Sir John Dalrymple's Defence and Plea for the Earl of Argyle, by way of Reply upon the King's Advocate.

SIR John Dalrymple replies for the Pannel, That since the solid grounds of Law adduced in the Defences have received no particular Answers, in relation to the common consent of all Casuists, viz. That a party who takes an Oath is bound in Conscience to clear and propose the terms and sense in which he does under∣stand the Oath; Nor in relation to the several Grounds adduced concerning the legal and rational Interpretation of dubious Clauses. And since these have received no An∣swers, the Grounds are not to be repeated: but the Proctors for the Pannel do farther insist on these Defences.

1. It is not alledged, That any Explanation was given in by the Pannel to any person, or any Copy spread, before the Pannel did take the Test in Council: So that it cannot be pretended, That the many Scruples that have been moved concerning the Test, did arise from the Pannel's Explication: But on the con∣trary, all the Objections that are answered, and obviated in the Pannel's Expli∣cation, were not only privately muttered, or were the thoughts of single or illiterate

persons, but they were the difficulties proposed by Synods and Presbyteries, long be∣fore the Pannel came from home, or was required to take the Test: So that the general terms of the Acts of Parliament founded upon in the Libel are not applicable to this Case: For as these Laws, in relation to Leasing makers, are only relative to atro∣cious wilful Insinuations, or misconstructions of His Majesties Person or Government, or the open depraving of his Laws, so the restrictive Clause, whereby sedition or mis∣constructions may be moved, raised, or engendered betwixt His Majesty and his Liedg∣es, cannot be applied to this Case, where all these Apprehensions and Scruples were on foot, and agitated long before the Pannel's Explanation.

As it cannot be pretended, That any new dust was raised by the Pannel's Explana∣tion, so it is positively offered to be proved, That there is not one word contained in this Explanation, but that either these individual words, or much worse, had been publikly proposed, and verbatim read in Council, without the least discouragement, or the least objection made by any Member of the Council. And where a Writing, ex proposito read in so high a Court, was universally agreed upon, without the alteration of a Syllable, how can it be pretended, That any person thereafter using the said in ••i∣vidual terms in any Explanation, and far easier terms, that they shall incur the high and infamous Crimes libelled? And the question is not here. Whether the Council was a proper Judicature to have proposed, or imposed a sense, or allowed any Expla∣nation of the Test to be published; but that it is impossible that a sense they allowed, or being publikly read be••ore them, and which the Kings Advocate did not controll, that this should import Treason, or any Crime: And tho the Pannels Advocate will not pursue or follow the Reply that has been made to this point yet certainly no man of sober sense will think that it is fit to insinuate that so high a judicature might have autho∣rized or acquiescedin such Explanations as the Liedges thereafter should be entrapped to have used

If the Pannel had officiously or ultr••neously offered a sense or Explanation of His Ma∣jesties Laws, which the Laws themselves could not have born, it might justly have been alledged, that he was extraordinem, and medling in a matter he was not concerned in but where the Act of Council did enjoyn, and he was required and cited to that effect, It could neither be constructed as ostentation, or to move or encourage Scruples or Resist∣ance but it was absolutely necessary, either for to have refused the Test, or else to have declared what he thought to be the true and genuine meaning of it. And there be∣ing so many objections publikly moved and known, his Explanation was nothing else but to clear, That he did not look upon these Scruples and Objections moved by others as well founded and rational in themselves; and therefore he was able to take the Test in that sense the Council had heard or allowed. And it is not controverted, that the sense of the Legislator is the genuine sense both of Laws and Oaths: And if a person were only interpreting the meaning of either a Law or an Oath imposed, he should de∣prave and misconstruct the Law and Oath, if he rendered it wittingly and willingly in terms inconsistent with the meaning of the imposer: But there is a great difference be∣twixt taking of Oaths, and interpreting Oaths; For when a man comes to take an Oath, except his particular sense did agree with the genuine meaning of the imposer, he cannot take that Oath, tho he may very well interpret and declare what is the sense of the Legislator, which he may know, and yet perhaps not be able to take the Oath.

And therefore when there is any doubtfulness in an Oath, and a party is bound to take it, if then he gives in an Explication of the sense which he in his private judgment doth apprehend to be the genuine meaning, if that private sense be disconform to the Legisla∣tors sense in the Oath, then the Imposer of the Oath, or he that has power to offer it to the party, if he consider the parties sense disconform, he ought to reject the Oath, as not fulfilling the intent of the Law imposing it.

But it is impossible to state that as a Crime, That a party should neither believe what is proposed in the Oath, nor be able to take it; And he can run no farther hazard, but the penalty imposed upon the Refuser. And therefore in all Oaths there must be a con∣course both of the sense imposed by Authority, and of the private Sense, Iudgment or Conscience of the party. And therefore if a party should take an Oath in the Sense pro∣posed by Authority contrary to his own sense, he were perjured: whereby it is evident that the sense of Authority is not sufficient, without the acquiescence and consent of

the private person. And therefore it is very strange, why that part of the Pannel's Ex∣planation should be challenged, that he takes it in his own Sense, the posterior words making it as plain as the light, that that sense of his own is not what he pleases to make of the Oath, for it bears expresly, that no body can explain it but for himself, and re∣concile it as it is genuine, and agrees in its own sense: So that there must be a Recon∣ciliation betwixt his own sense and the genuine sense, which upon all hands is acknow∣ledged to be the Sense of Authority. And if the Pannel had been of these lax and de∣baucht Principles, that he might have evaded the meaning and energy of the Oath, by imposing upon it what sense he pleased, certainly he would have contented himself in the general refuge of Equivocation, or Mental Reservation, and he would never have exposed his sense to the world, in which he took this Oath, whereby he became abso∣lutely fixed and determined to the Oath, in that particular sense, and so had no latitude of shuffling off the Energy or Obligation of the Oath. And it is likewise acknowledged, That the Cases alledged in the Reply are true, viz. That the person is guilty of Per∣jury, si aliquo novo Commento he would elude his Oath, or who doth not fulfil the Oath in the sense of the Imposer. But that does not concern this Case: For in the fore∣said Citation, a person, after he has taken an Oath, finding out some new conceit to elude it he is perjured: but in this Case the Pannel did at, and before his taking the Test, declare the terms in which he understood it; So that this was not nov•• aliquo com∣mento to elude it. And the other Case, where a party takes it in the sense of Au∣thority, but has some subterfuge, or concealed Explanation, it is acknowledged to be Perjury. But in this Case there was no concealed Explanation, but it was publikly ex∣prest, and an Explanation given, which the Pannel designed, and understood as the meaning of Authority, and had ground to believe he was not mistaken, since upon that Explanation he was received and allowed to sit and vote in Council.

And as to that part of the Reply, that explains the Treason, there can be no Trea∣son in the Pannel's Case, because the express Act of Parliament founded upon doth relate only to the Constitution of the Parliament: And I am sure His Majesties Advo∣cate cannot subsume in these terms: And therefore in the Reply he recurs to the gene∣ral Grounds of the Law, That the usurping of His Majesties Authority, in making a part of the Law; and to make alterations in general, and without the King, are high and treasonable words or designs, and such as the party pleases, and such designs as have been practised in the late times. And that even the adjection of fair and safe words, as in the Covenant, does not secure from treasonable Designs; and that it was so found in Balmerino's Case, tho it bear a fair Narrative of an humble Supplication.

It is replied, That the usurpation of making of Laws is undoubtedly treasonable; but no such thing can be pretended or subsumed in this Case: For albeit the Pannel de∣clares his Explanation to be a part of his Oath, yet he never meaned to impose it as a part of the Law, or that this Explanation should be a thing distinct, or a separate part even of his Oath. For his Explanation being but exegetik of the several parts of the Oath, it is no distinct thing from the Oath, but declared to be a part of the Oath de natura rei. And it was never pretended, That he that alledged any thing to be de natura rei, did say, That that was distinct and separate, which were a Contradiction. And therefore the Ar∣gument is retorted, the Pannel having declared, this Explanation was, de natura rei, implied in the Oath, he necessarily made this Explanation no addition or extention of the Oath. So that for all this Explanation, the Oath is neither broader nor longer than it was.

And as to these words, I do not mean to bind up my self in my station, and in a lawful way, to wish and endeavour any alteration I think to the advantage of Church or State, not repugnant to the Protestant Religion, and my Loyalty. It is a strange thing how this Clause can be drawn in question, as treasonable, when it may with better Reason be alledged, That there is no good Subject but is bound to say it. And albeit the words to endeavour in my station, be words contained in the Covenant, yet that is no Reason, why two words in the Covenant may not be made use of in another very good and loyal sense. And there is no man that shall have the honour either to be entrusted by His Majesty in his Council, or any other Judicature, or to be a Member of Parliament, but he is bound by his Loyalty to say the same thing. And there was never a Clause more cautiously exprest, for the words run, to endeavour any alteration I shall

think to the advantage of Church and State. And tho that was sufficient, yet the Clause is so cautiously conceived, that it contains another Restriction, not repugnant to Reli∣gion and his Loyalty. So that except it could be alledged, That a man by lawful means, to the advantage of Church and State, consistent with his Religion and Loyalty, could make treasonable alterations, and invasions upon the Government and Monarchy, which are the highest Contradictions imaginable, there can be nothing against the Pannel. And albeit the Clause, any alterations, might, without the Restrictions and Qua∣lifications foresaid, be generally extended, yet the preceeding words of lawful way, and the rational Interpretation of the emission of words especially before a solemn Judi∣catory, leaves no place or shadow to doubt, that these alterations were no fundamen∣tal or treasonable alterations, but such as the frailty of humane Affairs and Constitu∣tions, and vicissitude of things and circumstances, do constantly require in the most exact Constitutions under Heaven. And the clause does not so much as import, that there is a present necessity of alteration, but it was a necessary and rational prospect, That albeit at present all things under Heaven had been done to secure the Religion and Go∣vernment, yet there might occur Cases that would require new helps, alterations, and remedies. And it is not pretended in this Case for the Pannel, That he desires to alle∣viate, or take off words truly treasonable, or having an ill design, by the mixing of fair and safe, dutiful and submissive Expressions, which indeed are Protestations contrari•• facto. For there is nothing in his Explanation, that either in his design, or in the words themselves, being rationally and naturally interpreted, can infer the Crimes li∣belled, or any of them. And the Pannel's known Principles, and known Practices, do not only clear that Loyalty that he has profest before the Lords of Justitiary, and in∣structed by unquestionable Documents, but they put him far from the suspicion of these damnable Principles related in the Reply, Of which the whole tract of his Life hath been an intire evidence of his abhorrency and detestation. And in the last place, It is thought strange, why that should be represented as an affront or disgrace to the Government, That the Parliament imposed a Test which the Pannel is not able to take simply. And it is not pretended, That he hath defamed, written or spoken against the Test it self, or for the inconvenience of it; but only that he hath not been able to see the good ground upon which it may be simply taken. And this were to condemn him for want of sight or sense, when the Law hath punished no man for not taking the Test, but only turned him out of the Government. And it is as strange an Inference, That because the Pannel declares, He believes the Parliament meaned no Contradiction and would take the Test, in as far as it is consistent, that therefore he said, the Parliament imposed Contra∣dictions: Which is so far from a rational Induction, that the Contradiction of these Subsumptions, in all congruity of Language and Sense, is necessarily true. And therefore the last part of that Clause, in so far as it is consistent, is a Consequence in∣ferred upon the former: viz. I believe the Parliament designed to impose no Contra∣dictions: ergo, I take the Test as consistent, and in so far as it must be consistent, if the Parliament did not impose Contradictions, as certainly they have not; and to convince the world, that in this sense this Explanation is receivable, it was proposed in Council, and allowed, and therefore without the highest reflection, it cannot now be quarrelled.