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.

The Kings Advocate's Third Plea against the Earl of Argyle.

HIS Majesties Advocate conceives he has nothing to answer as to depraving, Leasing-making, and mis-interpreting, &c. save that this Oath was only designed to ex∣clude Recusants; and consequently, the Pannel may thereby be debarred from his Offices, but not made guilty of a Crime. To which he Triplies, 1. If ever the Earl had simply refused, that had been true, but that did not at all excuse from defaming the Law, for a defamer is not punished for refusing, but for defaming.

2. It he had simply refused, the Government had been in no more hazard, but if men will both retain their places, and yet take the same in such words as secure not the Govern∣ment, it were strange to think, that the design of the Law being to secure against mens possessing who will not obey, that yet it should allow them possession who do not obey. Nor is the refuser here in a better case than the Earl, and others, who offered to obey, because it is the defaming the Law, as ridiculous, and inconsistent with that Protestant Religion: and Leasing-making betwixt the King, the Nobility, and the people, the misconstruing, and misrepresenting, as hath been formerly urged, that puts the Earl in a worse condition. And all those arguments might be as well urged for any who had uncontrovertedly contra∣vened these Acts, as for the Pannel.

Whereas it is pretended, That the King emitted a Proclamation to satisfie Dissenters; it is answered, That the Proclamation was designed for none who had been Members of Parliament, and so should have known the sense; but it was designed for meer ignorants, not for such as had defamed the Law, which is still here charged upon the Pannel.

As to the Article of Treason, it is conceived, That it is unanswerably founded upon the Common Law, discharging all men to make alteration of the Government; as to which there needs no express Statute, that being the very essence of Government, and needing no Laws. Like as it falls positively under all the Laws that discharge the assuming the Royal or Legislative power, for to alter the Government, is inseparably united to the Crown. Like as the Subsumption is as clear, the express words not bearing, That the Earl reserves to himself a power to propose to His Majesty any alterations, or to concur to serve His Majesty in making alterations; but owning in most general and arbitrary terms, to wish and endeavour any alteration he should think fit for the advantage of Church or State, and not determining any thing that could bind him otherwise than ac∣cording to his own pleasure, for the word (lawful) is still subjected to himself, and has subjoyned to it, as he should think fit, which governs the whole proposition; and in that sense, and as the words are here set down, the greatest Rebel in Scotland will subscribe that Explanation, for there is no man but will restrict himself to a lawful obedience, provided he be Judge of the lawfulness. And seeing all Oaths proposed for the security of Government, require a certain depending upon the Legislator, and not upon the Taker, it is impossible that that end could be attained by any qualification, how special soever, which is made to depend absolutely upon the Taker, and not upon the Legislator. And we have often seen, how little security there is in those specious words, the very Covenant it self having not only the very words above-repeated, but attesting all the world to be witnesses to their Loyalty and Sincerity. And as to the former instances, viz. Rising in Arms, or opposing the lawful Successor, there is no Covenanter in Scotland, but will say, he will do neither, but in a lawful way, and in his station, and in a way consistent with his Loyalty, for a man were mad to say otherwise; but yet when they come to explain this, they will only do it as they think fit, and will be Judges themselves, and then will tell us, That defensive Arms are lawful, and that no Popish Successor should succeed, nor no Successor unless he subscribe the Covenant. And whereas it is pretended, That no clause in the Test does exclude a man from making alterations, it is answered, That the altera∣tions which the Test allows are none at all but in subordination to Authority. And as to the two points above mentioned, it excludes all alterations as to these points. And as to the making fundamental alterations, this reservation allows to make any alteration, and consequently fundamental alterations; to preclude which Libertinism, this excellent Law was invented.

Whereas it is pretended, That the Pannel designs not to add any thing as a part of the Law, but as a part of his Oath, it is duplied, Since the Oath is a part of the Law, who∣ever adds to the Oath, adds to the Law.

Whereas it is pretended, That the Crime of Perjury cannot be inferred here, because all Divines allow, That the Taker of an Oath is still allowed to declare in what sense he takes the Oath; and that this is clear from Sanderson, p. 175. It is triplied, That where

there are two dubious senses, Lawyers and Divines allow. That the taker should clear him∣self, which of the two he should take; which is very just, because to which soever of the two he determines himself, the Legislator in that case is sure of him. But here it is not pre∣tended, That there are two senses; nor does the Pannel declare in which of the two he takes it, or in what clear sence at all he takes it, which is indeed liquido Jurare. But here the Pannel neither condescends, what particular clause of the Test is unclear; nor after he has condescended upon the Articles, does he condescend upon the sense, but in general mysterious words, where he can neither be followed, or found out, he only takes it in so far as it is consistent with it self, and the Protestant Religion, reserving the squaring all by his own Loyalty, as he did in the beginning declare, That he took it in his own sense, by which general sense, neither is the Government secure of any thing it does enjoyn, nor could he be punished if he transgressed. Nor can it be doubted, but Perjury may be infer∣red by any equivocal or evading sense, inter Jurandum, as well as by breaking an oath afterwards; which is very clear from Sanderson, p. 138. The words whereof are alterum perjurii genus est inter Jurandum detorquere verba; and which is farther clear by the 28. page, but above all, from the principles of Reason, and the necessity of Commerce and Govern∣ment: For if men may adhibit such glosses, even whilst they swear, as may make the Oath useless, what way will either Government or Commerce be maintained? And he deceives as much that deceives in swearing salvis verbis, as he who after he has sworn, does break the Oath. Nay, and more too, because the breaking may come from forgetfulness, or other accidents, but the evading by general Clauses, which bind no man, does from the first instance originally make all Oaths useless and dangerous, and that this interpreta∣tion eludes the Oath absolutely, is very clear from what hath been formerly debated. For it may be argued, That the Earl broke the Oath in so far, as the first day he swears the Oath, which bears to be without any evasion (and must be so, notwithstanding of whatever he could say:) And the next day he gives in this evasion, which is a down-right violation of that Oath, and inconsistent with it. Nor was this Oath forced, but voluntarily emit∣ted, to keep his own places. And it was the greater Crime that it was done in the Coun∣cil, because that was to make it the more publick, and consequently, the more to mis∣represent the Government.

After this debate, which, according to the custom of the Court, was verbatim dictate by the Advocates of either side, and written by the Clerk, and so took up much time; and the Court having sate, at least twelve hours, without intermission, it adjourned till the next day, being Tuesday the 13th. of December, at Two of the Clock in the After∣noon: And then the Earl being again brought to the Bar, the following Interloquutour (that is Judgment and Sentence) of the Lords of Justitiary, on the foregoing debate, was read, and pronounced in open Court.