State tracts, being a farther collection of several choice treaties relating to the government from the year 1660 to 1689 : now published in a body, to shew the necessity, and clear the legality of the late revolution, and our present happy settlement, under the auspicious reign of their majesties, King William and Queen Mary.

Sir George Lockhart's second Plea for the Earl of Argyle, by way of Reply upon the King's Advocate.

SIR George Lockhart Duplies, That the Defender repeats and oppones his former De∣sences, which are no ways eluded, nor satisfied by the Reply made by His Majesties Ad∣vocate. And altho it be easie for the Kings Advocate, out of his zeal, to pretend and ar∣gue Crimes of the highest Nature upon Inferences and Consequences neither consistent with the Pannel's designs nor with his words and expressions, yet there cannot be a more dange∣rous foundation laid, for the security and interest of the Government, and the security and protection of the Subjects, than that Crimes should be inferred but from clear, evident, and express Laws, and plain palpable Contravention of these Laws, it being both against the Laws of God and Man, that a Man should be made an Offender for a word, and especially for expressions which according to Sense and Reason, and considering the time and place where they were spoken by the Pannel. viz. as a Member of His Majesties Privy-Council,

and in presence of his Royal Highness, and the Members of Council, and when required to take the Test, were safe and Innocent: and it were against all Law and Reason, to sup∣pose that the Pannel either did, or designed to do any thing which may, or did import the Crimes libelled against him. And whereas it is pretended, That the Oath required and im∣posed by Act of Parliament was for the security of the Government; and that the Pannel by his Explanation does evade the Oath, by taking it only so far as it is consistent with the Protestant Religion, and his own Loyalty, whereof he was Judge. It is answered, That the pretence is most unwarrantable, and the security of His Majesties Government is not at all endangered (as God forbid it should,) tho the Pannel, and a Thousand more had simply re∣fused the Test, or had taken it in a sense which does not satisfie the Law; it being compe∣tent to publick Authority to consider, whether the Pannels Oath, in the terms of the Expli∣cation wherein he did take it, does satisfie the Act of Palriament or not; And if not, there can be no rational consequence inferred thereupon, but that he is holden as a Refuser of the Oath, and liable to the Certification of the Act of Parliament, of not assuming and con∣tinuing in any publick Trust: And no more was intended or designed by the Act of Par∣liament it self, than strictly to make the Oath in the true and genuine sense and meaning of the Parliament, an indispensible qualification of persons admitted to publick Trust. So that it is not at all material to dispute, whether the Pannel's Explication can be looked upon as a full satisfaction of the Act, which whether it should or not, it can import no Crime against him, it not being consistent with Sense and Reason, that a person who absolutely re∣fuseth the Test, upon the scrupulosity of his Conscience, albeit he be not capable of publick Trust, should be, notwithstanding, looked upon as guilty of no Crime: and yet another who was willing to go to a greater length, albeit he did demur and scruple as to the full length, that he should be reputed criminal and guilty of a Crime.

2. The Pannel repeats and conjoyns with this the grounds above mentioned, contained in his Defences, viz. That neither the Crimes libelled, nor any other Crime, were ever pre∣tended or made use of against any others, who did spread abroad Objections of an high nature which yet were so favourably looked upon, as to be construed only to proceed from scrupu∣losity of Conscience, as also the satisfaction endeavoured is in such terms, and by such con∣descensions, as do take in, and justifie the whole terms of the Explication libelled.

It is of great moment, and whereof the Lords of Justitiary are desired to take special no∣tice, both for clearing the absolute innocence of the Pannel's meaning and intention, and to take off all possible misconstruction that can be wrested or detorted from the tenor and ex∣pressions of the libelled Explication. That the Pannel was put to, and required to take the Oath, before the Lords of His Majesties Privy-Council did pass and publish their Proclamati∣on explaining the Oath, and declaring the genuine sense and meaning thereof, namely, That it did not tye to the whole Articles of the Confession of Faith, ratified by Act of Parliament, James 6. and which, as to several Articles thereof, had occasioned the scruples, and diffi∣culties, and alledged inconsistency and contradiction betwixt the last part of the Oath and the said Confession, and betwixt some of these Articles, and the Currant of the Protestant Doctrine, received and contained in the Syntagma of the Protestant Confessions. And there∣fore if the Pannel at that time did think fit, for the clearing and exoneration of his own Conscience, to use the expressions in the Explication libelled, and yet with so much duty and confidence of the Parliaments Justice, as to their meaning and intention, That the Parliament never intended to impose contradictory Oaths; and that he did take it so far as it was consistent with it self, and the Protestant Religion, not knowing then, whether the whole Confession was to be reputed a part of the Oath, and doubting there-anent; and which the Lords of His Majesties Privy-Council and his Sacred Majesty by his approbation since, have thought a diffi∣culty of so great moment as it was fit to clear the same by a publick Proclamation; How now is it possible, that any Judicatory under Heaven, which proceeds upon the solid grounds of Law and Reason, and who (it cannot be doubted) will have a just regard to the intrinsick Principles of Justice, and to all mens security; that they can now believe all, or any of the Crimes libelled, should be in the least inferred from all, or any of the expressions contained in the said Ex∣plication? But that on the contrary it was a warrantable allowance, and Christian practice, condemned by the Law and Custom of no Nation, That having scruples in the matter of an Oath which should be taken in Truth, Judgment and Righteousness, and upon full deliberati∣on, and with a full assurance and sincerity of mind, That he did plainly, openly, and clearly declare the sense in which he was willing to take it; and if Authority did allow it as the ge∣nuine sense of the Oath, the Pannel to be holden as a Taker of the Oath: And if upon far∣ther consideration, Authority think not, that habetur pro Recusante, and a Refuser of the Oath, but no ways to be looked upon as a criminal or guilty person.

And the Pannel repeats and conjoyns with this point of the Reply, that point in his De∣fence, whereby he positively offers to prove, 1. That his Explication, and the sense wherein he took the Oath, was heard, and publickly given and received in Council, and the Pannel thereafter allowed to take his place, and sit and vote in that Sederunt.

2. The Pannel also offers positively to prove, That the tenor and terms of his Sense and Explication wherein he did take the Oath, is contained in that Solid, Learned, and Pious Vindication, written by the Bishop of Edenburgh, in answer to the Objections and alledged inconsistencies and contradictions in the Oath, and which Vindication was publickly read in Council; and so far approved, that it was allowed to be printed and published, and was accordingly dispersed and spread abroad. And it is not of the least import, that the Proclama∣tion of the Lords of Privy-Council, altho it does oft allow the same to be taken by the Cler∣gy, yet at the same time they expresly declare the genuine sense and meaning of the Parlia∣ment not to comprehend the whole Articles of the Confession, which was not cleared before the Pannel's taking his Oath.

And whereas it is pretended, That the Acts of Parliament libelled upon, against Leasing-makers, depravers of His Majesties Laws, do obtain and take place, where-ever there are any words or expressions that have a tendency in themselves, or by a natural consequence, and rational inferences, to reflect upon the Government, or misconstrue His Majesties Proceed∣ings; and that the Explication libelled is such, and that it was found so in the Case of Balmerino, albeit it was drawn up by way of humble Petition and Address to His Majesty, and with great Protestations and Expressions of Loyalty. It is answered, The Acts of Parlia∣ment libelled upon are oponed, and the 43d. Act, Par. 8. James 6. and the other Acts, making the depraving of His Majesties Laws to be Crimes, do expresly require, that Speeches so judged be perverse & licentious Speeches ex natura sua probrosa and reproachful, and spoke animo defamandi, and which could not receive any other rational Construction, which cannot in the least be applied to, or subsumed upon the words, or Explication given in by the Pannel. And Law and Reason never infers or presumes a Crime, where the thing is capable of a fair and rational Construction, and where it was done palam and publickly, and in presence of His Majesties High Commissioner, and Lords of His Majesties Privy-Council, whereof the Pannel had the honour to be a Member: Persons committing and designing to commit Crimes, making use of Times, and Places, and Companies of another nature, on whom their sug∣gestions and insinuations may prevail. But it is a violence to the common Reason of man∣kind, to pretend, that a person of the Pannel's Quality, having the honour to serve His Ma∣jesty in most eminent Capacities, and devoted to His Majesties Interest and Service, beyond the strictest ties of Duty and Allegiance, by the transcendent Favours he had received, that the Pannel in those Circumstances, and in presence of his Royal Highness and Lords of Privy Council, should design to declame, and defacto, declame against, and defame His Ma∣jesties Government: To suppose this is absolutely contradictory to the common Principles and Practices of Law, and common Topicks of Reason.

And as to Balmerino's Case, it is answered, That the Lords of Justitiary are humbly desi∣red to call for, and peruse the said Petition, and Books of Adjournal, which was certainly a defamatory Libel of His Majesties Father, of blessed Memory, and of the States of Parlia∣ment in the highest degree, being expresly, that there was nothing designed but an innova∣tion of the Protestant Religion, and the subversion and over-turning the Liberties and Pri∣viledges of the Parliament, and the Constitutions of the Articles, and other things of that kind, which made certainly of it self a most villanous and execrable Libel, containing the highest Crimes of Treason and Perduellion, and was not capable of any good sense or interpreta∣tion, but was absolutely pernicious and destructive: So that it is in vain to pretend, that the said Libel did contain Prefaces and Protestations of Loyalty, which no Law regards, even in simplici injuria & maledicto, tho committed by a private person, cum praefatione salvo honore, or the like, and which were certainly ridiculous to sustain in a Libel concerning Crimesof Treason.

And whereas it is pretended, That tho others were guilty of these Crimes, it does not excuse the Earl: that the Lords of Privy-Council cannot remit Crimes; and the ne∣ligence of the Kings Officers cannot prejudg his Interest. It is answered, The Pannel is very confident, that neither the Lords of His Majesties Privy Council, consisting of persons of eminent Loyalty and Judgment, nor His Majesties Officers, were capable of any such escape as is pretended: and if the tenor of the Pannel's Explication did in the least import the high and infamous Crimes libelled, as beyond all peradventure it does not, it were strange, how the same being contained in the aforesaid Vindication, and the whole Clauses thereof justified, that this should have been looked on as no Crime, and allowed to be published. And the Pannel neither does, nor needs to make farther use thereof, but to convince all dis-inter∣ested persons, that his Explication can import no Crime.

And whereas it is pretended, That the Crime of Treason is inferred from the fundamental Laws of the Kingdom, and from that Clause of the Pannel's Explication, whereby he de∣clares, he is not bound up by any thing in this Oath not to endeavour any alteration in a lawful way: which being an indefinite proposition is equipollent to an universal, and is upon the matter coincident with a Clause which was rebellious in its consequences contained in the Solemn League and Covenant. It is answered, That it is strange, how such a plain and inno∣cent Clause, whereby, beyond all question, he does express no more than was naturally im∣ported

the Crime of Treason, which no Lawyer ever allowed except where it was founded upon express Law & Luce Meridiana Clarior: And indeed if such stretches and inferences can make men guilty of Treason no man can be secure. And the words in the Pannel's De∣claration are plain and clear (yet non sunt cavillanda) and import no more, but that, in his station, and in a lawful way, and consistent with the Protestant Religion, and his Loyal∣ty, he might endeavour any alteration to the advantage of Church and State. And was there ever any loyal or rational Subject, that does, or can doubt, that this is the natural import of the Oath? And indeed it were a strange Oath, if it were capable of another sense, and be∣ing designed for the security of the Government, should bind up mens hands to concur for its advantage. And how was it possible, that the Pannel, or any other in the capacity of a Pri∣vy-Councellor, or a Member of the Parliament, would have satisfied his Duty and Allegi∣ance in other terms? And whereas it is pretended that there was the like case in the pretend∣ed League and Covenant, it is answered, The Assertion is evidently a Mistake; and tho it were, the Argument is altogether inconsequential: For that League and Covenant was trea∣sonable in it self, as being a Combination entred into without His Majesties Authority, and was treasonable in the glosses that were put upon it, and was imposed by absolute violence on the Subjects of this Kingdom. And how can the Pannel be in the least supposed to have had any respect to the said League and Covenant, when he had so often taken the Declaration, disowning and renouncing it, as an unlawful and sinful Oath, and concurred in the many excellent Laws and Acts of Parliament made by His Majesty, condemning the same as sedi∣tious and treasonable? And whereas it is pretended. That the Pannel is guilty of Perjury, having taken the Oath in another sense than was consistent with the genuine sense of the Parliament, and that by the Authority cited he doth commento eludere Juramentum, which ought always to, be taken in the sense of him that imposeth the Oath: It is answered, The Pretence is most groundless, and Perjury never was, nor can be inferred, but by the com∣mission, or omission of something directly contrary to the Oath. And altho it is true, That where an Oath is taken, without any Declaration of the express sense of the persons who take it, it obliges sub poena Perjurii, in the sense, not of the taker, but of the imposer of the Oath, because expressing no Sense, Law and Reason presumes there is a full ac∣quiescence in the sense and meaning of the imposer of the Oath: and then if an Oath be not so taken, he that takes it is guilty of Perjury. Yet there was never Law∣yer nor Divine, Popish or Protestant, but agree in this, That whatever be the tenor of the Oath, if before the taking thereof, the party in express terms does publickly and openly declare the sense in which he takes it, it is impossible it can infer the Crime of Perjury against him in any other sense, this not being Commentum excogitatum, after the taking of the Oath. And if this were not so, how is it possible in Sense and Reason, that ever any Explication or Sense could solve the Scruples of a mans Conscience? For it might be always pretended, That notwithstanding of the express sense wherein he took it, he should be guilty of Perjury from another sense. And that this is the irrefragable opinion of all Divines, of whatever peswasion, is not only clear from the Authority above-mentioned, even those who allow of reserved senses, but more especially by the universal suffrage of all Protestant Divines, who tho they do abominate all thoughts of Subterfuges or Evasions, after taking of the Oath, yet they do always allow and advise for the safety and security of a doubting and scrupulous Conscience, that they should express and declare, before the taking of the Oath, the true sense and meaning wherein they have freedom to take it; and for which Sandersone de Juramento is cited, Prelct. 6. Sect. 10. pag. 75. where his words are, Sane ut inter Jurandum omnia recte fiant, expedit ut de verborum sensu inter omnes partes quarum interest liquido constet, quod veteribus dictum, liquido Jurare. And an Oath being one of the highest Acts of Devotion, containing Cultum Latriae, there is nothing more consonant to the Nature of all Oaths, and to that Candor, Ingenuity, and Chrstian simplicity, which all Law and Religion requires in such cases.