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.

Thereafter the Assize, that is the Jury, being constitute and sworn, viz.

List of the Assizers.

• ...Marquiss Montross,
• ...E. Middleton,
• ...E. Airlie,
• ...E. Perth, P. C^r.
• ...E. Dalhousie,
• ...E. Roxburgh, P. C.
• ...E. Dumfries,
• ...E. Linlithgow, P. C^r.
• ...Lord Lindoors,
• ...Lord Sinclare,
• ...Lord Bruntisland,
• Laird of Gosfoord,
• Laird of Claverhouse,
• Laird of Balnamoon
• Laird of Park Gordon.

HIS Majesties Advocate adduced four Witnesses, to prove the points of the Indict∣ment, remitted to the knowledge of the Assize, viz. John Drummond of Lundie, then Governour of the Castle of Edinburgh, now Treasurer Deputy: Sir William Pater∣son, and Mr. Patrick Menzies, Clerks of the Privy Council; and H. Stevenson their under Clerk. Who deponed, That on the 4th. of November, the Earl did give in an unsubscribed Explanation of the Test, which he refused to sign: One of the Witnesses also adding, That he heard him make the same Explanation, the day before, in Council, and that it was there accepted.

Then His Majesties Advocate asked, if the Earl would make use of his Exculpation for eliding the Perjury Libelled, to wit, That he had emitted the same Explanation, before taking the Test, in presence of his Royal Highness and the Council. To which the Earl answered, That seeing they had sustain'd the Libel, as to the alledged Treason, he would not trouble them about the Perjury; especially the matter of Fact, referred by the Interlo∣quutour to his probation, being of it self so clear and notour.

Fut the truth is, the Interloquutour pronounced was so amazing, that both the Earl and his Advocates, were struck with deep silence, for they plainly perceived that, after such a Judgment in the case, all further endeavours would be in vain, it being now manifest, that seeing the Earls innocence had so little availed, as that his plain and honest words, purely uttered for the necessary satisfaction of his own conscience, and clearing of his Loy∣alty, had been construed, and detorted, to infer Leasing-making, Depraving, and Treason: the Tongues of men and Angels (as some of his Advocates also said) could not do any good, and therefore neither did the Earl, nor they object any thing, either against the Assizers or Witnesses, though liable to obvious, and unanswerable exceptions: Nor did the Earls Advocates say any thing to the Assize, as the custom is, and as in this case they might well have done to take off the force of the Evidence, and to demonstrate that the Depositions, instead of proving the Indictment, did rather prove the Earls defences. But, as I have said, they now plainly saw that all this had been unnecessary work, and, in effect, were of opinion, that after so black, and dreadful a sence, put upon what the Earl had spoke and done, in such fair, and favourable circumstances, there could be nothing said, before such a Court, which might not expose themselves to the like hazard, and more easily be made liable to the same mis-construction.

But, upon this silence, the Advocate, taking Instruments, protests (whether in form only, or from a real fear, let others judge) for an Assize of Error, in case the Assizers should Assoil or acquit: Whereupon the Assize removing was inclosed, and, after some time, re∣turned their Verdict, which was read in open Court of this tenour.