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 Earl, as well as the Lords of Privy Council, waited some days for the Answer of this Letter: But the Earl making his escape a day or two before it came, I shall take occasion to entertain you, in the mean time, with an account of some thoughts that the Earl had set down in Writing, in order to some discourse he intended to have made to the Lords of Justiciary, before their pronouncing Sentence. And then I shall subjoyn the Motives and Arguments, which (as he hath since informed some of his Friends) did induce him to make his escape: Which, with what I have said before, will give you a full account of all matters, till His Majesty's return came, and the Sentence past.

And first, he takes notice, That on Monday the Twelfth of December, the day of his Ar∣raignment, the Court adjourned, before he was aware: And it being then late, about nine of the Clock, and after a sederunt of twelve hours, He did not imagine, they would have proceeded further that night; but only heard afterwards that they sat it out till two or three after midnight: And was surprized the next morning, to understand, that without calling him again, or asking at him, or hearing, or considering his own sense of his own words, they had not only found the Libel relevant, but repelled his defences, and with one breath rejected all his most material reasons of Exculpation, root and branch. This seemed hard, though the words had been worse, and no way capable of a favourable con∣struction (which none, no not the Judges themselves, can be so void of sense, as to think really they were not) and this was so far beyond all imagination, that, neither the Earl, nor his Advocates did ever dream it could fall out, though all was not said might have been said; nor what was said, so fully enforced as the Earl's Advocates could easily have done, if the case had not been thought so very clear, and the Earl his innocence so obvious and apparent, and they unwilling unnecessarily to irritate many con∣cerned.

This great haste, and strange proceeding, did so surprise and astonish him (as I have said) that it caused him, the next day when the Sentence was read, to keep deep silence, and suffer the Interloquutor to be pronounced, the Assizers chosen, and sworn, and the Witnesses received, and examined, without once offering to say, or object any thing, or so much as inquiring, at either Assizers, or VVitnesses, whether they had not been tam∣pered with, and practised by promises, and threatnings; or whether some of them had not previously, and publickly declared themselves in the Case, and others of them had not partially advised, and solicited against him; Which, as they are just, and competent Exceptions, so he was able to have proven them, against most of them, instantly, and fully.

And indeed, as to such of the Assizers as were Councellors, (whom, for your better in∣formation, I have marked in the List of Assuzers thus, P. Cr. and had first ordered his Imprisonment, next, signed the Letter to His Majesty, and then ordered the Process, and therein manifestly fore-stalled their own judgment (had they done no more) it was a wonder, beyond parallel, That, neither their own Honour, nor the common decency of Justice, nor even His Majesty's Advocate's Interest, did prevent their being impannelled on that Assize.

But the truth is, the Earl did so far neglect and abandon himself, and give way to the Court, that he did not so much as open his mouth, to clear himself of the Perjury laid to his charge, which yet God Almighty was pleased to do, by the plurality of voices of the same Assize, who it appears plainly did bear him little kindness: For whereas Assizers do usually return their Verdict, Proven, or not Proven, rather than Guilty or not Guilty, and ought alwise to do so, where the relevancy is in dubio, and especially in a case of this nature, in which the alledged Treason is no overt act, and indeed no act, nor so much as a real ground of offence; but plainly such a subtil, chimerical, and non-sensical conse∣quence, that the finding it doth quite surpass the comprehension of all unbyassed men; It might have been expected that persons of their quality would have chosen the more moderate form of proven or not proven, and not involved themselves unnecessarily upon Oath in adjudging the relevancy of a guilt, which so few are able to imagine, and none will ever make out; yet you see in their Verdict, that all in one voice they did find the Earl Guilty, in the most positive and strong form; adding, for superabundance, culpable, for∣sooth, the better to demonstrate their good will. Nor is it unworthy of remark, that when such of the Assizers as were present at the Council declared the Earl Innocent of the Perjury (which His Majesty's Advocate did only pretend to infer from the Earls alledged silence, or not speaking loud enough, the first day, when he signed the Test) because they heard him, at the same time, pronounce his explanation: Yet some other Assizers that were no Councellors, and knew nothing of the matter of fact, but by hear-say, with∣out all regard to the witnessing of these Counsellors, their fellow Assizers, voted him Guilty: And so took it formally on their Consciences, that he had said nothing in the Council, at his taking the Test; albeit all the Council knew the contrary: (by which they are clearly perjured). Nay, such was the earnestness of some (who thought it scazce possi∣ble to carry the Treason upon words so safe and innocent) to have the Earl found guilty of Perjury, that it was particularly recommended to His Majesty's Advocate to get him made guilty of that point, to render him for ever uncapable of publick employment. And the Clerk of the Assize was so concerned in it, that he twice misreckoned the Votes, before he would yield that the Earl was assoiled, or acquit of the Perjury. And this, among other things, may serve to clear, how that whole matter was influenced and managed: For, as the Earl cannot be charged with Perjury the second day, because he swore none at all; so as little the first day, seeing whether he took the Test with an Explanation (as certainly he did)

or simply without saying any thing, It is equally apparent, there was no Perjury in the case: But it appears, their Assizers were of the Opinion, that the Indictment or Libel alone (as it was indeed the only evidence) was a sufficient proof of the Earl his being guilty of Perjury. And indeed for any other Rule or Reason that occurs, They might as well have found him guilty of the Perjury as of the Treason: But the Assizers that were Councellors being under a particular check, apprehending they might be found perjured themselves, if they had not acknowledged the hearing of the words, that all others present could have attested to have been audibly spoken, and some of themselves have confessed to have heard, before they knew the tenor of the Libel; And, the great Crime of Treason being sufficient to do the Job, it is like they judged it advisable to give this insignificant absolution from Perjury, That their Virdict of Treason might have the greater colour, and shew of candor, and since∣rity. However it seems to be without measure hard to be prosecute with such a deadly Di∣lemma of either Treason or Perjury; for you see, in their account, if the Earl swear with an Explanation, his Life is knockt down by Treason; and if without an Explanation, his Honour, which is dearer to him than his Life, is run thorow with Perjury. But, to compleat a fan∣cy beyond Bedlam, The Advocate urges, and several Assizers agree, at the same time, to condemn the Earl as perjured, for not explaining; and for Treason, for explaining: Quis talia fando?

In the next place, the Earl's Papers contain some thoughts, and endeavours, to remove cer∣tain mistakes, which, he had good ground to believe, did so much prompt, and precipitate the Judges to pronounce so important a Sentence against him, upon so weak and sandy foundations, and which were indeed either meer fancies, or so frivolous, that though they were true, they could never excuse them before men, far less exoner them before God Al∣mighty. Where, laying down a true ground, that nunquam concluditur in criminalibus, &c. and withal representing, how his Advocates were questioned, in so extraordinary a man∣ner, for signing their Opinion (which you have above Num. 32. Where you may see how fair, just, and safe it was) that now they dare no more plead for him; He says, He cannot be denied to plead for himself, as he best may.

The first ground of mistake then that he was to represent, was, that he knew it had been told them, it was very much His Majesty's Interest, and necessary for the support of the Government, to devest, and render him uncapable of publick Trust: Which words had been oft said, and said to himself, to persuade him that there was no further rigour intended: But as he is very confident our gracious King will never, upon any such pretence, allow any innocent Person to be condemned, far less to be destroyed, in a picque or frolick, where his Majesty can reap no advantage; So he is persuaded, His Majesty hath no design to render him miserable, far less to cut him off, without a cause. And therefore concludes, it is only his misfortune, in his present circumstances, never having access to, nor being heard by his Majesty, nor the Case perfectly understood by him, that hath made His Majesty give so much as way to a Process to be raised or led, far less to a Sentence to be pronounced against him. But in effect, as this Affair hath been managed all alongs, and so many engaged, in so extraordinary ways, to act, and write against him, first and last, nothing should appear strange or surprising: However, as their own Consciences, and God Almighty, knows how they have been brought to meddle, and act, as they have done; So, one day or other, the World may likewise know it.

A second ground of mistake, which, he says, may impose upon them, is a confidence of His Majesty's Pardon intended for him, a pretence only given out to render the Condemnation more easie; yet indeed least wished for by those who were readiest to spread the report, and whereof the Earl had indeed more confidence than any that talked of it, if His Majesty were left to himself, and had the Case fully and truly represented to him: but as His Majesty needs not this false occasion to make his clemency appear, which is so well known over all his Dominions, by far more true and genuine discoveries; so it were the heighth of injustice in their Lordships of the Justiciary to proceed to sentence against him, upon such Apprehensions, in case in their hearts they believe him innocent (as he certainly knows they do) besides, they cannot but see their acting, upon so unjust a ground, will not only stain their names, and memories, but instead of alleviating, rather aggravate their guilt, both in their own Consciences when they reflect on it in cold blood, and in the sight of God Almighty: And if His Majesty, on importunity and a third Application, should give way to execution, as he hath already given way, first to the Process, and then to the Sentence; or if (as some may design) Execution shall be adventured on, without the formality of a new Order (as the Process was at first commenced, before His Majesty's return, and so is not impossible) would not their Lordships be as guilty of his blood, as if they had cut his Throat?

And in effect, these are the grounds and Excuses pretended at this day, in private, by such of his Judges, for their procedour, who are not yet come to have the confidence, at all Oc∣casions, to own directly what they have done.

A third reason why his Exculpation was not allowed, he says, might be, because the su∣staing of it might have brought other Explanations above-board, and discover both these who had made, and those who had accepted them, and perhaps not have left their own Bench untouched. But as this Artifice will not keep up the Secret; And as this way of shift∣ing is neither just nor equal; so to all interested it is the meanest of Security; For his Maje∣sty's Advocate hath already told us, that His Majesty's Officers can never wrong him: And although the Lords and He shauld conceal what others had done, it might make themselves more guilty, but not prove any Exoneration to those concerned, without a down-right Re∣mission: Whereas it is manifest, That if their Lordships had admitted the Earl's Exculpation, upon the sure and evident grounds therein contained, it would not only have answered the Justice of his Case, but vindicated all concerned.

And lastly, he was to tell them, that possibly they might be inclined to go on, because they were already so far engaged, as they knew not how to retreat with their honour: but, as there can be no true honour where there is manifest wrong, and injustice; so, in the frail and fallible condition of humane things, there can be no delusion more dangerous and per∣nicious than this, that unum scelus est alio scelere tegendum. And here the Earl thought to lay before them, very plainly and pertinently, some remarkable and excellent Rules, where∣by L. Chief Justice Hales, a renowned Judge of our Neighbour-Nation, tells, he did govern himself in all Criminal Cases; which (adds the Earl) if they took a due impression, would certainly give them peace, and joy, when all the vain Considerations that now amuse, will avail them nothing.

The Rules are these.

I. Not to be rigid in matters purely conscientious, where all the harm is diversity of Judgment.

II. That Popular, or Court-applause, or distaste, have no influence on any thing is to be done, in point of distribution of Justice.

III. In a criminal Case, if it be a measuring cast, then to incline to mercy and acquittal.

IV. In criminal things, that consist only of words, where no harm ensues, moderation is then no injustice.

V. To abhor all private Solicitations, of what kind soever, and by whomsoever.

VI. In matters depending, not to be solicitous what men will say or think, so long as the rule of Ju∣stice is exactly kept.

VII. And lastly, Never to ingage themselves in the beginning of a Cause, but reserve themselves unprejudged, till the whole business be heard.

Then the Earl goes on, and makes notes, for Additional Defences, reducible to these Heads.

I. The absolute innocence af his Explication, in its true and genuine meaning, from all crime or offence, far more from the horrible Crimes libelled.

II. The impertinency and absurdity of His Majesty's Advocate's Arguings, for inferring the Crimes libelled, from the Earl's words.

III. The reasonableness of the Exculpation.

IV. The Earl's Answers to the Advocate's groundless Pretences for aggravating of his Case.

As to the first, The Earl waving what hath been said from common Reason, and Humanity it self, and from the whole tenour and circumstances of his Life, comes close to the point by offering that just and genuine Explanation of his Explication which you have above, Num. 21.

I have delayed hitherto to take the Oath appointed by the Parliament to be taken, betwixt and the first of January next: But now being required, near two months sooner, to take it, this day perempto∣rily, or to refuse: I have considered the Test, and have seen several Objections moved against it, especially by many of the Orthodox Clergy, notwithstanding whereof, I have endeavoured to satisfy my self with a just Explication, which I here offer, that I may both satisfy my Conscience, and obey Your Highness, and your Lordships Commands in taking the Test, though the Act of Parliament do not sim∣ply command the thing, but only under a certification, which I could easily submit to, if it were with Your Highness's favour, and might be without offence: But I love not to be singular; and I am very desirous to give obedience in this, and every thing, as far as I can; and that which clears me, is, that I am confident, whatever any man may think or say to the prejudice of this Oath, the Parlia∣ment never intended to impose contradictory Oaths; and because their sense (they being the Framers and Imposers) is the true sense, and this Test, enjoined, is of no private interpretation, nor are the King's Statutes to be interpreted, but as they bear, and to the intent they are made; therefore I think no man, that is, no private Person, can explain it for another, to amuse or trouble him with (it may be) mistaken glosses: But every man, as he is to take it, so is to explain it for him∣self, and to endeavour to understand it, notwithstanding all these Exceptions in the Parliament's, which is its true and genuine sense; I take it therefore, notwithstanding any scruple made by any, as far as

it is consistent with it self, and the Protestant Religion, which is wholly in the Parliament's sense, and their true meaning; Which (being present) I am sure, was owned by all to be the secu∣ring of the Protestant Religion, founded on the Word of God, and contained in the Confession of Faith recorded, J. 6. p. 1. c. 4. And not out of Scruple, as if any thing in the Test did import the con∣trair. But to clear my self from Cavils, as if thereby I were bound up further than the true meaning of the Oath; I do declare, That by that part of the Test, that there lies lies no obligation on me, &c. I mean not to bind up my self in my station, and in a lawful way; still disclaiming all unlaw∣ful endeavours, To wish, and endeavour any alteration, I think, According to my Conscience, to the advantage of Church, or State, not repugnant to the Protestant Religion, and my Loyalty: And by my Loyalty I understand no other thing than the words plainly bear, to wit, the duty and allegiance of all Loyal Subjects; and this Explanation I understand as a part, not of the Test, or Act of Parliament, but as a qualifying part of my Oath that I am to swear; and with it I am willing to take the Test, if your Royal Highness and your Lordships allow me. Or other∣wise, in submission to your Highness and the Councils pleasure, I am content to be held as a Refuser, at present.

Which Explanation doth manifestly appear to be so just, and true, without violence or straining; so clear and full, without the least impertinency; so notore and obvious to common sense, without any Commentary; so loyal, and honest, without ambiguity; and lastly, so far from all, or any of the Crimes libelled, that it most evidently evinceth, that the words thereby explained are altogether innocent: And therefore it were lost time to use any Arguments to enforce it.

Yet seeing this is no trial of wit, but to find out common sense; let us examine the Ad∣vocate's fantastical Paraphrase, upon which he bottoms all the alledged Crimes, and see whether it agrees, in one jot, with the true and right meaning of the Earl's words; and (as you may gather from the Indictment) it is plainly thus.

I have considered the Test; which ought not to be done, and am very desirous to give obedience, as far as I can, but am not willing to give full obedience: I am confident the Parliament never intended to impose contradictory Oaths; that is, I am confident they did intend to impose con∣tradictory Oaths; and therefore I think no man can explain it but for himself; that is to say, every man may take it in any sense he pleases to devise, and thereby render this Law, and also all other Laws, tho not at all concerned in this Affair, useless; and so make himself a Legislator, and usurp the Supreme Authority: And I take it, in so far as it is consistent with it self, and the Protestant Religion, whereby I suppose that it is not at all consistent with ei∣ther; nor was ever intended by the Parliament it should be consistent: And I declare, that by taking this Test, I mean not to bind up my self in my station, and in a lawful way, to wish, or en∣deavour any alteration, I think, to the advantage of Church, or State, not repugnant to the Protestant Religion, and my Loyalty: Whereby I declare my self, and all others, free from all obligation to the Government, either of Church, or State, as by Law established, and from the duty and Loyalty of good Subjects; Resolving of my self to alter all the Fundamentals, both of Law, and Religion, as I shall think fit: And this I understand as a part of my Oath: that is as a part of the Act of Parliament, by which I take upon me, and usurp the Royal Legis∣lative Power.

Which sense and Explanation, as it consists of the Advocate's own words, and was in∣deed, every word, necessar to infer these horrible Crimes contained in the Indictment; so, to speak with all the modesty that truth will allow, I am sure, it is so violent, false, and absurd, that the greatest difficulty must be to believe that any such thing was alledged, far more received, and sustained in judgment, by Men professing only reason, far less Religion.

But thirdly, If neither the Earl's true, genuine, and honest sense, nor this violent, corrupt, and false sense, will satisfy; let us try what transprosing the Earl's Explanation will do, and see how the just contrary will look. — And it must be thus.

I Have considered the Test, nor am I at all desirous to give obedience, so far as I can; I am confident the Parliament intended to impose contradictory Oaths; And therefore I think, every man can explain it for others, as well as for himself, and take it, without reconciling it, either to it self, or his own sense of it: And I do take it, tho it be inconsistent with it self, and the Protestant Religion: And I declare, that I mean thereby to bind up my self never (either in my station, or in any lawful way whatsoever) to wish, or endeavour, in the least, any alteration, tho to the advantage of Church, or State, and tho never so suitable, and no way repugnant to the Protestant Religion, and my Loyalty: And, tho this be the express quality of my Swearing, yet I understand it to be no part of my Oath.

Now whether this contradictory Conversion be not Treason, or highly Criminal, at best, I leave all the World to judge; and to make both sides of a contradiction, that is, both the Affirmative and Negative of the same Proposition, Treason, is beyound ordinary Logick. Escobar finds two contrary ways may both be probable and safe ways to go to Heaven; but neither he, nor the Devil himself, have hitherto adventured to declare two contradictory

Propositions, both damnable, and either of them a just cause to take away mens Lives, Honours, and Fortunes.

But where the Disease is in the Will, it is lost labour to apply Remedies to the Under∣standing; and must not this be indeed, either the oddest Treason, or strangest Disco∣very that ever was heard of? The Bishop of Edinburgh sees it not, witness his Vindication, saying the same, and more; nor many of the Orthodox Clergy, witness their Explana∣tions; nor his Royal Highness, in private; nor at first in Council, nor all the Councellors, when together at the Council-board; nor the President of the Council, nor the then Presi∣dent of the Session (now Chancellor) though he rose from his Seat, to be sure to hear; nor any of the most learned Lawyers, witness their signed Opinion; nor the most learned of the Judges on the Bench; nor the generality of the knowing Persons, either in Scotland, or England: wonderful Treason one day seen by none, another day seen by so many! A Stander-by hearing the Trial, and the Sentence, said, He believed the Earl's words were by Popish Ma∣gick transubstantiate, for he saw them the same as before; Another answered, that he ve∣rily thought it was so; for he was confident, none could see Treason in the words, that would not, when ever it was a proper time, readily also profess his belief of Transubstan∣tiation; but he believed many that professed both, believed neither.

The second Head of the Earl's Additional Defence, contains the impertinencies and ab∣surdities of the Advocate's Arguings. And here you must not expect any solid debate; For as there is no disputing with those that deny Principles, so as little with those who heap up phantastical and inconsequential Inferences, without all shadow of reason. If a Stone be thrown, though it may do hurt, yet having some weight, it may be thrown back with equal, or more force: But if a man trig up a feather, and fling it, it is in vain to throw it back; and the more strength, the less success: It shall therefore serve, by a cursory Dis∣course, to expose his Arguments, which are in effect easier answered than understood; and, without any serious arguing, which they cannot bear, rather leave him to be wise in his own eyes, than by too much empty talk hazard to be like him.

He alledges first, That the Earl, instead of taking the Test in its plain and genuine meaning, as he ought, doth declare against, and defame the Act that enjoined it, which is certainly a great Crime: But now, Inasmuch, says the Advocate, as he tells us, That he had considered the Test: Which I have indeed heard say was his greatest Crime; and that he ought to have taken it with a profound and devout ignorance, as some of our most inventive Politicians boasted they had done. But the Earl says that he was desirous to give obedience, as far as he could; whereby, says the Advocate, he insinuates that he was not able to give full obedience. This is not the meaning; but what if it were, and that indeed he could not? Have not thousands given no obedi∣ence, yet even in Law are guiltless? And ought not that to please his Highness, and the Council, that is accepted of God Almighty, and is all any Mortal can perform? But the Earl, says the Advocate, goes on, That he was confident the Parliament never intended to impose contradictory Oaths; whereby, says the Advocate, he abuses the People with a belief that the Par∣liament did intend to impose such. Wonderful reasoning! All men know that Parliaments nei∣ther are, nor pretend to be infallible: And in our present Case, hundreds of Loyal Subjects complain of Contradictions and Inconsistencies, some way or other, crept into this Oath; And even the Council have yielded so far to their Exceptions, as to make an alteration up∣on it, for satisfying those scruples, far beyond any thing the Earl said; and such an altera∣tion, as, I believe, few dreamed of; and I am certain, none durst have attempted, with∣out their express command and authority: and yet, in the midst of all this, the Earl's cha∣ritable and honest Opinion, in behalf of the Parliaments good Intentions, must be pervert∣ed to a direct slander. But the Earl says, That every man must explain it for himself; and so, no doubt, he must, if the Test be either in it self, or in his apprehension, ambiguous; otherwise how can he swear in Judgment? But this the Advocate will have to be a man's own sense, and thereupon runs out, That hereby this Law and Oath, and all Laws and Oaths are rendred useless, and to no purpose: And further, the Legislative Power is taken from the Imposer, and setled in the Taker of the Oath, which certainly is a most treasonable presumption. But first, although there be no reason to strain, or mistake the Expression, yet the Earl did not say, That every man must take the Test in his own sense.

II. The Council hath now explained the Test for the Clergy: Might not then the Earl, before their Explanation was devised, say, by the Councils allowance, which he had, That he might explain it for himself? For if an ambiguous Proposition (the Test for example) may be reconciled to it self two different ways; must not the Taker reconcile it, as in his own sense he thinks it doth best agree with the genuine meaning of the words themselves, and with the sense he conceives was intended by the Parliament that formed it, especially before the Parliament emit their own Explanation? And is it not juster to do it so, than in any other man's sense, which he thinks agrees less with the words, albeit they may be thought by others to be reconcileable another way?

III. All this looks like designed Mistakes and Traps; for should any man swear, unless

he understand? And where an Oath is granted to be ambiguous, can any man understand, unless, in want of the Imposers help, he explain it for himself.

IV. Was ever a Man's explaining an Oath for himself, before taking it, far less his bare saying that he must explain it, before he take it, alledged to be, The overturning of all Laws and Oaths, and the usurping of the Legislative power, and making of new Laws? Certainly to offer to answer such things, were to disparage common Reason.

And lastly, this is strange Doctrine from the Advocate, who himself, in Council, did al∣low, not only the Earl his Explanation, but that Explanation to the Clergy, contrary, as appears by their Scruples, to what they that took it thought either the Parliaments de∣sign, or the plain words of the Test could bear, and certainly different from the sense many had already taken it in, and wherein others were commanded to take it. And whatever the Advocate may cavil to insnare the Earl, sure he will not allow that by his explaining this Oath he himself hath taken on him the Legislative power of the Parlia∣ment, far less, though he should acknowledg it, will any believe that he hath, or could thereby make all Laws or Oaths useless? By this you see what strange stuff he pleads, which deserves no answer.

But, says the Advocate, the Earl affirms, He takes the Test, only as far as it consists with it self, and with the Protestant Religion; by which he most maliciously insinuates, that it is inconsistent with both. But, first, this only is not the Earl's, but the Advocates addition. Secondly, I would soberly ask the Advocate, or any Man, Whether the Test, as it includes the Con∣fession in general, and consequently all contained in it, was not either really, or at least might not have been apprehended to be inconsistent with it self? Else what was the use or sense of the Councils explanation, wherein it is declared, That men do not swear to every proposition of the Confession, but only to the Protestant Religion therein contained? And if it was either inconsistent, or apprehended to be so, how could the Earl, or any honest Man swear it in other terms, with a safe Conscience? But Thirdly, If Parliaments be fallible, and this Oath, as being ambiguous, needed the Councils explanation to clear it from inconsistencies, must the Earl's words, when he was to swear, That he took it in so far as it was consistent, be in this Case understood as spoken maliciously, and with a crimi∣nal intent, when all Sense, Reason, and Religion, made this caution his duty? And if it be so criminal for one going to swear, to suppose a possibility of inconsistencies in it, Is it not manifestly more criminal in others, plainly to confess and grant that there are incon∣sistencies in it, after they have swallowed it in gross, without any explanation whatsoever?

But, says the Advocate, The Earl hath invented a new way, whereby no Man is at all bound to the Test; For how can any Man be bound, if he will obey only as far as he can? And yet it will be hard, even for the Advocate, tho he sometimes attempts, indeed, more than he and all the World with him can do. To tell how a Man can obey farther: And I am sure, that in a matter of this kind, viz. The free tender of an Oath, all discreet men will judge the Earl's offer both frank and obliging. Then he asks, To what the Earl is bound; if he be bound no further than he himself can obey? Manifest confusion! and never either spoke by the Earl, nor at all pertinent to his case; besides he freely acknowledges, that all men are bound to more than they can do; or so far as the Test is consistent with it self, and the Protestant Religion (a strange doubting or! yet, I dare say, imports as much as His Majesty expects of any, and more than the Advocate will ever perform) But, says the Advocate, who can determine to what the Earl is bound? Which says plainly, That either the Test agrees with it self, and the Protestant Religion in nothing, or that the Protestant Religion is nothing, both which the Earl thinks far from truth. But the Advocate's reasoning reflects far more on the Coun∣cils Explanation, where it is plainly said, That the Confession is not sworn to in the Test, but only the Protestant Religion contained in the Confession; so that the Protestant Religion indefinitely is that which is said to be sworn to. Now, pray, is it not much worse for a Man to say, That by taking the Test he swears only to the Confession as it contains or agrees with the Protestant Re∣ligion (which is in effect to set the Protestant Religion at variance with its own Confession, and so to reproach and ranverse the standard, and make void the very security that the Parliament intended) than to say, That he swears the Test as it agrees with it self and the Pro∣testant Religion, which imports no such insinuation? But from these pleasant Principles, he jumps into this Fantastick Conclusion, That therefore it cannot be denied but the Earl's interpre∣tation destroys, not only this Act, but all Government, and makes every Man's Conscience or Humour the Rule of his obedience.

But first, as to the whole of his arguing, the Earl neither invents, says; nor does any thing, except that he offered his Explanation to the Council, which they likewise accepted. Secondly, What mad inferences are these! You say, you will explain this Oath for your self, therefore you overturn all Government, and what not! Whereas it is manifest, on the other hand, That if the Earl apprehending, as he had reason, the Oath to be ambiguous, and in some things inconsistent, had taken it without explaining it for himself, or respect to its inconsistency, it might have been most rationally concluded, that in so doing he was both

impious and perjured. Thirdly, It is false, that the Earl doth make his Conscience any other way the rule of his obedience, than as all honest men ought to do: That is, as they say, To be Regula regulata, in conformity to the undoubted Regula regulans, the eternal rules of truth and righteousness, as is manifest by his plain words. As for what the Advocate in∣sinuates of Humour instead of Conscience, it is very well known to be the Ordinary reproach, whereby men that have no Conscience endeavour to defame it in others.

But the Advocate is again at it, and having run himself out of all consequences, he in∣sists and inculcates, that the Earl had sworn nothing. But it is plain, that to swear nothing, is none of the crimes libelled. Secondly, The Earl swears positively to the Test as it is con∣sistent with it self and the Protestant Religion, which certainly is something; unless the Advo∣cate prove, as he insinuates, that there is nothing in the Test consistent with either. And 3dly, If the Protestant Religion, and the Earl his reference to it, be nothing, then is not only the Council sadly reproached, who, in their Explanation, declare this to be the only thing sworn to, in the first part of the Test, but our Religion quite subverted, as far as this Test can do it.

But next for the Treason, the Advocate says, That the Earl expresly declares, he means not by the Test to bind up himself, from wishing, or endeavouring, in his station, and in a lawful way, any alteration he shall think for the advantage of Church or State; whereby, says he, the Earl declares himself, and others, loosed from any obligation to the Government, and from the duty of all good Sub∣jects, and that they may make what alterations they please. A direct contrariety, instead of a just consequence; as if to be tied to Law, Religion, and Loyalty, were to be loosed from all three; Can there be a flatter and more ridiculous contradiction? Next, the Advocate pretends to found upon the fundamental Laws of this, and all Nations, Whereby it is Treason for any Man to make any alterations he thinks fit for the advantage of Church or State. But first, The Earl is not, nor cannot be accused of so much as wishing, much less endeavouring or making any alteration, either in Church or State, only he reserves to himself the same freedom, for wishing, which he had before his Oath, and that all that have taken it do in effect say they still retain. 2dly, For a man to endeavour, in his station, and in a lawful way, such altera∣tions in Church or State, as he conceives to their advantage, not repugnant to Religion and Loyalty, is so far from being Treason, that it is the duty of every Subject, and the sworn Duty of all His Majesty's Councellors, and of all Members of Parliament: But the Advocate by fancy∣ing, and misapplying Laws of Nations, wresting Acts of Parliaments, adding, taking away, chopping and changing words, thinks to conclude what he pleases. And thus he proceeds, That the Treason of making Alterations, is not taken off by such qualifications, of making them in a law∣ful way, in ones station, to the advantage of Church or State, and not repugnant to Religion or Loyalty. But how then? Here is a strange matter! Hundreds of Alterations have been made within these few years, in our Government, and in very material Points; and the King's best Sub∣jects, and greatest Favourites have both endeavoured, and effectuate them: And yet, be∣cause the things were done according to the Earl's qualifications, instead of being accounted Treason, they have been highly commended and rewarded. The Treasury hath been some∣times in the hands of a Treasurer, sometimes put into a Commission, backward and for∣ward: And the Senators of the College of Justice (the right of whose places was thought to be founded on an Act of Parliament, giving His Majesty the prerogative only of presenting) are now commissioned by a Patent under the great Seal, both which are considerable altera∣tions in the Government, which some have opposed, others have wished and endeavoured, and yet without all fear of Treason on either hand; only because they acted according to these qualifications, in a lawful way, and not repugnant to Religion and Loyalty. But that which the Advocate wilfully mistakes (for it is impossible he could do it ignorantly) is, that he will have the endeavouring of alterations in general, not to be of it self a thing indifferent, and only determinable to be good or evil by its qualifications (as all men see it plainly to be) but to be, forsooth, in this very generality intrinsically evil; a Notion never to be admitted on Earth, in the frail and fallible condition of humane Affairs. And then he would establish this wise Position by an example he adduces, That rising in Arms against the King (for so sure he means, it being otherwise certain that rising in Arms in general is also a thing indiffe∣rent, and plainly determinable to be either good or evil, as done with or against the King's Authority) is Treason, and says, If the Earl had reserved to himself a liberty to rise in Arms against the King, tho he had added in a lawful manner, yet it would not have availed, because, (and he says well) This being in it self unlawful, the qualification had been but shams and contrariae facto. But why then doth not his own reason convince him where the difference lies? viz. That rising in Arms against the King, is in it self unlawful; whereas endeavouring alterations is only lawful, or unlawful, as it is qualified; and, if qualified in the Earl's Terms, can never be unlawful. But, says the Advocate, The Earl declares himself free to make all alterations, and so he would make Men believe that the Earl is for making All or Any, without any reserve; whereas the Earl's words are most express, that he is, Neither for making all or any, but only for wishing and endeavouring for such as are good and lawful, and in a lawful way; which no Man can disown, without denying common reason; nor no sworn Councellor disclaim, without

manifest Perjury. But the Advocate's last conceit is, That the Earl's restriction is not as the King shall think fit, or as is consistent with the Law, but that himself is still to be judge of this, and his Loyalty to be the standard. But first, The Earl's restriction is expresly according to Loyalty, which in good sense is the same with according to Law, and the very thing that the King is ever supposed to think. Secondly, As neither the Advocate, nor any other hitherto, have had reason to distinguish the exercise and actings of the Earl••s Loyalty, from those of His Majesty's best Subjects; so Is it not a marvellous thing, that the Advocate should profess to think (for in reality he cannot think it) the Earl's words, His Loyalty, which all men see to be the same with his Duty and Fidelity, or what else can bind him to his Prince, capable of any quibble, far more to be a ground of so horrid an accusation? And whereas the Advocate says, The Earl is still to be judge of this; It is but an insipid calumny, it being as plain as any thing can be, That the Earl doth nowise design His thinking to be the rule of Right and Wrong; but only mentions it as the necessary application of these excellent and unerring Rules of Religion, Law and Reason; to which he plainly refers, and subjects both his thinking and himself, to be judged accordingly. By which it is evident, that the Earl's restriction is rather better, and more dutiful than that which the Advocate seems to deside∣rate: And, if the Earl's restrictions had not been full enough, it was the Advocate's part, before administrating the Oath, to have craved what more he thought necessary, which the Earl, in the Case, would not have refused. But it is believed, the Advocate can yet hardly propose restrictions more full and suitable to Duty than the fore-mentioned of Religion, Law and Reason, which the Earl did of himself profer. As for what His Majesty's Advo∣cate adds, That under such professions and reserves, the late Rebellions and disorders have all been c••rried on and fomented, It is but a meer vapour; for no Rebellion ever was, or can be, without a breach of one or other of the Earl's qualifications; which doth sufficiently vin∣dicate that part of the Earl's Explanation.

The Advocate insists much, that Any is equivalent to All; and that All comprehends Every particular under it; which he would have to be the deadly Poyson in the Earl's words: And yet the Earl may defy him and all his detracters, to find out a Case of the least un∣dutifulness, much less of Rebellion, that a Man can be guilty of, while he keeps within the excellent Rules and Limitations wherewith his words are cautioned. I could tell you fur∣ther, that so imaginary, or rather extravagant, and ridiculous is this pretended Treason, that there is not a person in Scotland, either of those who have refused, or who by the Act, are not called to take the Test, that may not upon the same ground and words be impeach't, viz. That they are not bound (and so without doubt both may and do say it) by the Test, in their station, &c. to wish and endeavour any alteration, &c. Nay, I desire the Advocate to produce the Man, among those that have taken the Test, that will affirm, that by taking it he hath bound up himself never to wish or endeavour any alteration, &c. according to the Earl's qualifications, and I shall name Hundreds (to whom his Highness, as you have heard, may be added) that will say they are not bound up.

So that by this conclusion, if it were yielded, all Scotland are equally guilty of Treason, the Advocate himself, to say nothing of His Royal Highness, not excepted: Or if he still think he is, I wish he would testify under his hand to the World, that, by his Oath he is bound up never to wish, nor endeavour any alteration he thinks to the advantage of Church or State, in a law∣ful way, nor in his station, though neither repugnant to the Protestant Religion, nor his Loyalty. And if this he do, he does as a Man, if not of Sense, at least of Honour; but if not, I leave a blank for his Epithets.

But that you may see that this whole affair is a deep Mystery, pray, notice what is ob∣jected against the last part of the Explanation: This I understand as a part of my Oath. Which, says the Advocate, is a Treasonable invasion upon the Royal Legislative power, as if the Earl could make to himself an Act of Parliament, since he who can make any part of an Act, may make the whole. And then say I, farewell all Takers of the Test with an Explanation, whether the Orthodox Clergy, or Earl Queensberry (tho himself Justice General) who were allowed by the Coun∣cil so to do; seeing that whether they hold their Explanation for a part of their Oath or not, yet others may; and in effect all men of sense do understand it so: And thus, in the Advocate's Opinion, they have Treasonably invaded the Legislative Power, and made an Act of Parliament to themselves: Neither, in that Case, can the Councils allowance excuse them, seeing not only the Earl had it, as well as they; but even the Council it self cannot make an Act of Parliament, either for themselves, or others. But, Sir, I protest, I am both ashamed and wearied of this trifling; and therefore to shut up this Head, I shall only give a few remarks: First, you may see, by the Acts of Parliament upon which the Advocate founds his Indictment, That as to Leasing-making and depraving Laws, all of them run in these plain and sensible terms; The inventing of Narrations, the making and telling of Lies, the ••ttering of wicked and untrue Calumnies, to the slander of King and Government, the depraving of his Laws, and misconstruing his Proceedings, to the engendering of discord, moving and raising of batred and dislike betwixt the King and his People. And, as to Treason, in these yet more posi∣tive

terms; That none impugn the dignity and authority of the Three Estates, or seek, or procure the innovation, or diminution thereof. Which are things so palpable, and easily discerned, and withal so infinitely remote both from the Earl's words and intentions, or any tollerable construction can be put on either, that I confess, I never read this Indictment, but I was made to wonder that its forger and maker was not in looking on it, deterred by the just apprehensions he might have, not only to be sometime accused as a manifest depraver of all Law, but to be for ever accounted a gross and most disingenuous perverter of common sense. The Earl's words are sober, respectful, and dutifully spoken, for the exoneration of his own Conscience, without the least insinuation of either reflection or slander, much less the impugning of the Authority of Parliament, as the Earl may appeal, not only to His Majesty's true and Royal sense, but to the most scrupulous and nice affecters of the exactest discern∣ing; besides that they were first formally tendered in Council, for their approbation, and by them directly allowed: How then can any Man think, that they could be charged with the greatest and vilest of crimes, Leasing-making, Depraving, Perjury, and Treason? But the Advocate tells us, That there are some things which the Law commonly forbids in general, and that some inferences are as natural and strong, and reproach as soon or sooner than the plainest defama∣tions. But what of all this? Must therefore such generals be left to the phantastick appli∣cation of every wild imagination, to the confounding of the use of Speech, and subverting of humane Society, and not rather be still submitted to the judgment of common sense, for their true and right understanding, and the deducing thence these strong and natural inferences talk'd of? Of which good sense, if the Advocate do but allow a grain weight, it is evident that the inferences he here Libels against the Earl, must infallibly be cast, and by all rational unbiassed men be found strange, unnatural, and mon∣strous.

For, Sir, Secondly, pray observe these rational and sound Maxims he founds his Inferen∣ces on, and they are manifestly these: First, That he who says he will only obey as far as be can, invents a new way whereby no man is at all bound to obey. 2dly, That he who in the midst of Hun∣dreds of exceptions and contradictions, objected against an Oath injoyned by Act of Parliament, and still unanswered, says, That he is confident the Parliament never intended to impose contradictory Oaths, reproaches the Parliament. 3dly, That he that says he must explain an ambiguous Oath for himself, before he take it, renders all Laws and Oaths useless, and makes himself the Legislator. 4thly, That he that says that he takes this Oath, as far as it is consistent with it self, and the Protestant Religion, swears nothing. 5thly, That he that declares himself not tied up by the Test from endeavouring, in a lawful way, such alterations as he thinks to the advantage of Church and State, consistent with Re∣ligion and Loyalty, declares himself, and all others, loosed from the Government, and all duty to it, and free to make any, and all alterations that be pleases. And 6thly, That he that takes the Test with an explanation, and holds it to be a part of his Oath, invades the Legislative Power, and makes Acts of Parliament.

Upon which rare and excellent Propositions, I dare say, The Earl is content, according to the best Judgment that you and all unbiassed Men can make, either of their Truth, or of my ingenuity in excerping them, to be adjudged Guilty or not Guilty, without the least fear or apprehension of the issue.

And in the third and last place, I shall only intreat you to try how the Advocate's rea∣soning will proceed in other Cases, and what brave work may be wrought by so useful a Tool. Suppose then a Man refuse the Test simply, or falls into any other kind of Non∣conformity, either Civil or Ecclesiastick, or pays not the King's Custom, or other dues; or lastly, understands an Act otherwise than the Advocate thinks he should, Is not his In∣dictment already formed, and his Process as good as made? viz. That he regards not the Law; That he thinks it is unjustly or foolishly Enacted; That he will only obey as far as he can, and as he pleases, and thereby renders all Laws useless, and so reproaches the King and Parliament, and impugns their Authority and assumes to himself the Legislative Power, and therefore is guilty of Leasing-making, Depraving His Majesty's Laws, and of Treason; of which crimes above-men∣tioned, or one or other of them, he is Actor, Art, and Part: Which being found by an Assize, he ought to be punished with the pains of Death, Forfaulture and Escheat of Lands and Goods, to the terror of others to do or commit the like hereafter. And, if there be found a convenient Judge, the poor Man is undoubtedly lost.

But, Sir, having drawn this Parallel, rather to retrieve the Earl's Case, than to make it a precedent, which, I hope, it shall never be, and chusing rather to leave the Advocate than follow him in his follies, I forbear to urge it further.

These things considered, must it not appear strange, beyond expression, how the Earl's Explanation, such as it is, did fall under such enormous and grievous misconstructions: For, setting aside the Councils allowance and approbation, (which comes to be considered under the next Head) suppose the Earl, or any other person called before the Council, and there required to take the Test, had, in all due humility, said, either that he could not at all take it, or, at least not without an Explanation; because the Test did contain

such things, as, not noly he, but many other, and those the best of the Loyal and Ortho∣dox Clergy, did apprehend to be Contradictions, and Inconsistencies: And thereupon had proponed one or two such as the Papers above set down do plainly enough hold out, and the Bishop in his Explanation rather evades than answers; would it not be hard, beyond all the measures of Equity, and Charity, to look upon this as a designed Reflection, far more a malicious and wicked Slander, and the blackest Treason? We see the Act of Parliament doth not absolutely injoin the taking of the Test, but only proposeth it to such as are intru∣sted in the Government, with the ordinary certification, either of losing, or holding their Trusts, at their option. We know also, that in Cases of this nature, it is far more suitable both to our Christian Liberty, and the respect we owe to a Christian Magistrate, to give a reason of our conscientious non-compliance, with meekness, and fear, than by a mute com∣pearance, to fall under the censure of a stubborn obstinacy. And Iustly, It is certain, and may safely be affirmed, without the least reproach, that Parliaments are not infallible; as witness the frequent changes, and abrogations of their own Acts, and their altering of Oaths imposed by themselves; and even of this Oath, after it was presented, which the Earl was not for alter∣ing, so much as it was done, as I told you before: How then can it be, that the Earl appear∣ing before a Christian Council, and there declaring in terms, at the worst a little obscure, be∣cause too tender, and modest, his Scruples at an Oath presented to him, either to be freely taken, or refused, should fall under any Censure? If the Earl had, in this occasion, said, he could not take the Test, unless liberty were given him first to explain himself, as to some Contradictions, and Inconsistencies, which he conceived to be in it, tho he had said far more than is contained in his contraverted Explanation, yet he had said nothing but what Christi∣an Liberty hath often freely allowed; and Christian Charity would readily construe for an honest expression of a commendable tenderness, without any imputation of reproach against either King or Parliament How much more then is his part clear and innocent, when, al∣beit so many thought the Contradictions to be undeniable, yet such was his well-tempered respect, both to God, and Man, to his own Conscience, and His Majesty's Authority, that be∣fore, and not after, the taking of this Oath, to clear himself (in the midst of the many Ex∣ceptions and Scruples raised) of all ambiguitles in swearing, he first applies himself, for a satisfying Explanation, to the Parliament, the prime Imposers, their true intentions and ge∣nuine meaning, and then gathering it very rationally, from the Oath's consistency with it self, and with the Protestant Religion, the Parliament's aim and scope, and so asserting the King and Parliament's truth, and honour, he places the relief and quiet of his own Consci∣ence in his taking the Test with this Explanation, and in declaring its congruity with his Oath, and duty of Allegiance.

The third Head of the Earl's additional Defences, is the further clearing and improving of his grounds of Exculpation, above adduced, and repelled: Which were, first, that before the Earl did offer his Explanation to the Council, a great many Papers were spread abroad by some of the Orthodox Clergy, charging the Test with Contradictions and Inconsistencies. 2dly, That there was a Paper penned by a Reverend Bishop, and presented and read in Coun∣cil, and by them allowed to be printed, which did contain the same, and far more important things than any can be found in the Earl's Explanation: And consequently, far more obnox∣ious to all His Majesty's Advocate's Accusations. 3dly, That the Explanation upon which he was indicted was publickly by himself declared in Council, and by the Council allowed; so that the Oath was administrat to him, and he received to sit in Council, and vote, by his Highness, and the rest of the Members, with, and under this express qualification.

But, to all urged for the Earl's Exculpation, the Advocate makes one short Answer, viz. That if the Earl's Paper did infer the Crimes charged on it, a thousand the like offences cannot excuse it: And His Majesty is free to pursue the Offenders, when, and in what order, he thinks fit: which Answer doth indeed leave the Council, and all concerned, in His Majesty's mercy: But that it doth no way satisfy the Earl's Plea, is manifest: For, the first ground of Exculpation, viz. That before the Earl did offer his Explanation, a great many Papers, writ by the Orthodox Clergy, and others, were abroad, charging the Test with Contradictions, &c. was not al∣ledged by the Earl merely to justify his Explanation by the multitude of the like Papers, and so to provide for an escape in the croud: But, the Earl having most rationally pleaded, that his Explanation was given in by him, after these many Scruples and Objections raised by others were abroad, it was a good Plea, from a most pregnant circumstance, clearing both the design, and sense of his words, from the foul aspersions of reproaching, and depraving, thrown upon them: Seeing the words spoken by him under the motive of such a circum∣stance, by all fair rules of interpretation, instead of being judged misconstruing and depra∣ving, could only be understood as a seasonable asserting of the Integrity of the Parliament's Intentions, and the uprightness of the Earl's Conscience: Which Argument being in reason unanswerable, it necessarly follows, that the Advocate's return to the first ground was nei∣ther sufficient, nor pertinent, and that therefore the Exculpation was unjustly repelled. But next, The second ground of Exculpation is so far from being answered by the Advocate, that

it does not appear it was so much as understood; For, the Earl's Argument being, That words allowed and approven by the Council, can never fall under the Accusation, either of Leasing-making, or slandering His Majesty's Proceedings, or depraving Laws, and Acts of Parliament, as is evident in it self, and granted by the Advocate, where he says that an Ex∣planation, tho reflecting on the King and Government (which the Earl's was not) yet, if allowed by the Council, is to be sustained. But so it is, that the Council hath allowed the words contained in this Explanation contraverted, both in themselves, and also in their equivalent, and far more important Expressions: As for instance, not only by accepting the Earl's Explanation (as shall be cleared in the next place) but by giving warrand for the publication of the Bishop of Edinburgh his Vindication; wherein, first, for obviating the con∣tradictions objected from the Confession of Faith, he positively asserts, that by the Test men do not swear to own every Article of that Confession; and yet the Test binds expresly to believe that Confession to be founded on, and agreeable to the Word of God, and never to consent to any alteration contrary thereto, or inconsistent therewith: So that he gives both the Test and the Par∣liament the Lye. And then, for removing another Scruple, he tells us, That by the Test men are not bound up from regular endeavours to rectify or better the Established Government, both of Church and State, which is clearly the same thing, (but not so well cautioned) with that which in the Earl's Case is made a ground of Treason: From which it unquestionably follows, that the Earl's words, having been allowed, and approved by the Council, could never, in Law, or Reason, be thereafter made a ground of accusation, by any, much less by themselves. Now I desire to know where the Advocate, in all his Plea, doth so much as notice, far less an∣swer, this Defence; or what his telling us, A thousand Offences of the like nature doth not excuse one, either doth, or can signify? seeing this Argument for the Earl, instead of pleading excuses, doth justify the matter, and for ever purge all shadow of offence, or ground of quarrel, which will be yet more apparent, when you shall add to this the third ground of the Earl's Exculpation, viz. That the Explanation, whereupon the Earl was indicted, was publickly by himself declared in Council, and by the Council allowed and accepted: Insomuch, as, after he had given his Explanation as the sense wherein he was free to swear the Test, the Oath was thereupon administrat to him, and he received to sit, and vote as a Councellor. Where∣by it is evident, That, by this allowance, and acceptance, the Earl's Explanation became the Councils, as much as if, after the Earl's pronouncing the words, they had verbatim repeated them, and told him, they were satisfied he should swear the Test in these terms: And whether this ought not to be a sufficient exoneration to the Earl, let all men judge. The Advocate makes a noise, That in the case of an Oath required, the Taker ought to swear it in the sense of the Imposer, (which none doubts) and then runs out, That the Earl in place of taking it in the Im∣posers sense, did unwarrantably intend a sense of his own, to the eluding and frustrating of the obliga∣tion of this, and all other Oaths. But all this is nothing to the purpose; for waving that in the Earl's Case it is most impertinent to talk of his obtruding of a sense, to the eluding, and frustrating of the obligation of his Oath, seeing his Oath was not then given, or at all in being, it is expresly alledged by the Earl, and notour, that the Explanation tendered by him, when called to take the Test, was accepted by the Council, and the Oath thereupon administrated, and so the Earl freely joins issue with the Advocate, and acknowledging that the Taker of the Oath ought to swear in the sense of the Imposer, subsumes in terminis, that he himself did swear so, and not otherwise, inasmuch as he did swear in a sense accepted by the Council, before he gave his Oath, as is evident. 1. By their commanding him to sit after he had sworn; and 2. In that neither the Advocate, nor any other, had ever the confidence to quarrel his sitting, as a breach of the Law, which no doubt they had done, if not convin∣ced that by taking the Oath he had satisfied the Act of Parliament; which things, in true dealing, and the construction of all honest men, are the same as if the Oath had been requi∣red of him by the Council, in the very sense and words of this Explanation. Neither is it ma∣terial whether the Explanation, offered by the Earl, doth deserve (as certainly it doth not) these many ill names, which the Advocate would fix upon it; because, though it had been much worse than it is, yet being offered to the Council, and submitted to their judg∣ment, and they having accepted of it, the thing became quasi res judicata, and cannot be re∣tracted, without subverting the surest Rules, both of Truth, and Government. The Advo∣cate indeed tells us, 1. That the Council heard not the Earl's Explanation: But I have already told you, they did hear it, and the Earl is still ready to prove it: And suppose some say they did not hear it distinctly. (As what thing spoke in Council is distinctly heard and considered by all?) Yet it being certain that they did all approve it, it is sufficient to the Earl: And it is only their concern, whether in approving what they did not hear, they observed their Oath De fideli, &c. or not. His Highness, who the Earl was most concerned should hear, did certainly hear, as himself afterwards acknowledged. 2. The Advocate says, That the hearing and allowing the Earl to sit, is no relevant Plea; yea further, though all the Council had allowed him that day, yet any of his Majesty's Officers might have quarrelled him the next day. But first, I would gladly know, upon what head? For if upon obtruding a sense of his own, it is undeniable

that whatever the sense was, the obtruding of it was purged by the Council's acceptation, and it became theirs, and was no more his. But if the Advocate doth think, that even the matter of the Explanation, though allowed and accepted, may still be quarrelled: Then; 1. I hope, he will consider in what terms he doth it; for if he charge it after it becomes the Councils (as in truth he hath done already) with the same liberty wherewith he treats it as the Earl's, he runs fair to make himself the arrantest Defamer and Slanderer of the King and Council, that ever yet attempted it. But 2dly, It merits a worse name than I am free to give it, to say, That an Explanation allowed by the Council, in the administrating of an Oath proper to be administrat by them, doth not secure the Taker as to that sense, both in Law and Conscience: Seeing in effect this quite takes away the best grounds of assurance among men, and turns their greatest security to their greatest snare. And 3dly, If this be sound Doctrine, it is worth the enquiring, what security the Clergy, to whom the Coun∣cil, as you have heard, did indulge an Explanation, have thereby obtained: For as to such Laicks as did only at their own hand take hold of, and snatch at this Indulgence, not pro∣vided for them by the Councils Act, it is clear their doom is dight. It is not here debated how far that Explication of the Council's may satisfy, and quiet Conscience, let such concerned see to it. Some please themselves with a general notion, That if the sense given by the Admini∣strator be sound, then it is also safe whether it be agreeable to the plain and genuine mean∣ing of the Oath or not; nay, whether it be agreeable to the sense of the first Imposers, or not: But others, who consider more tenderly what it is to swear in Truth, and in Judg∣ment, think it rather a prophanation, and a sinful preferring of the Credit of Men to the glory of the Almighty, to offer to smooth an Oath by a disagreeable interpretation, when in effect the Oath it self ought to be changed: But the thing in question is about the security of life and fortune; for seeing the Council's Explanation is, at least, to say no worse, liable enough to the Calumnies of an inventive malice, and the Advocate telleth us, Though all the Ceuncil had allowed a man to swear with an Explanation, yet any of His Majesty's Officers may, the next day, quarrel him; it is evident that this allowance can afford him no security. It is true, the Advocate may alledge, and possibly find a difference betwixt the Council's emitting, and their accepting of an Explanation. But as in truth there is none, more than betwixt a Man∣dat and a Ratihabition; so I am confident, if ever the thing come to be questioned, this Pretence will evanish, and come to nothing.

It is likewise to be remembred, That when the Earl, the next day after he took the Test, was questioned for the Explanation he had made, and required to exhibit a Copy (which was afterwards made the ground of his Indictment) so soon as he observed that some began to carp, he refused to sign it, demanded it back, and would have destroyed it, as you have heard, which were all clear Acts of disowning, and retracting, for eviting offence, and of themselves sufficient to have prevented any further enquiry; there being nothing more just and human, than that words, though at the first hearing, offensive; yet if instantly retra∣cted, when questioned, should be past: But this, as well as other things, must in the Earl's Case be singular; and whether he plead the Councils allowing, or his own disowning (as in effect he doth both) it is equally to no purpose, the thing determined must be accomplished. You heard before, how that a Reverend Bishop, and many of the Orthodox Clergy, did take a far greater liberty of Explanation than the Earl pretended to: you see also that first the Council allows his words, whereupon he rests: And when he finds that they begin to challenge, he is willing to disown: And withal, it is undeniable, and acknowledged by the Council them∣selves, that the Test, as it stands in the Act of Parliament, is ambiguous, and needs to be ex∣plained: And the Earl may confidently aver, that of all the Explanations that have been of∣fered (even the Councils not excepted) his is the most safe, sound, and least disagreeable to the Parliament's true sense and meaning. And yet, when all others escape, he alone must be seised; and for a thing so openly innocent, clearly justifiable, and undeniably allowed, found guilty of the worst of Crimes, even Leasing-making, Leasing-telling, Depraving of Laws, and Treason; but all these things God Almighty sees, and to him the Judgment yet be∣longs

And thus I leave this Discouse shutting it up with the Case of Archbishop Cranmer, plainly parallel to the Earl's, to shew how much he was more favourably dealt with by the King, and Government, in those days, than the Earl now is, though he live under a much more mer∣ciful and just Prince, than that worthy Prelate did; for Cranmer being called and promoted by Henry VIII. of England to be Archbishop of Canterbury, and finding an Oath was to be offered to him, which, in his apprehension, would bind him up from what he accounted his duty, he altogether declined the Dignity and Preferment, unless he were allowed to take the Oath with such an Explanation as he himself proposed, for salving of his Conscience; and tho this Oath was no other than the Statute, and solemn Oath, that all his Predecessors in that See, and all the mitered Clergy in England, had sworn, yet he was admitted to take it, as you see in Fuller's Church Hist. of Britain, lib. 5. p. 185, and 186. with this formal Pro∣restation.

In nomine Domini, Amen. Coram vobis, &c. Non est, aut erit meae voluntatis, aut intentionis, per hujusmodi juramentum vel juramenta, qualitercunque verba in ipsis posita sonare videbuntur me ob∣ligare ad aliquid, ratione eorundum, posthac dicendum, faciendum, aut attentandum. quod erit, aut esse videbitur, contra Legem Dei, vel contra illustrissimum Regem nostrum Angliae, Legesve, aut Praero∣gativas Ejusdem: Et quod non intendo, per hujusmodi juramentum, vel juramenta, quovis modo me ob∣ligare, qui minus libere loqui, consulere, aut consentire valeam, in omnibus, & singulis Reformatio∣nem Religionis Christianae, Gubernationem Ecclesiae Anglicanae, & Praerogativam Coronae ejusdem Rei∣publicae, vel commoditatem earundem, quoquo modo concernentibus; & ea ubique exequi, & refor∣mare, quae mihi in Ecclesia Anglicana reformanda videbuntur: Et secundum hanc interpretationem, & intellectum hunc, & non aliter, nequa alia modo, dictum juramentum me praestiturum protestor, & profiteor.

That is to say. In the name of God, Amen. Before you, &c. It neither is, nor shall be, my will or meaning, by this kind of Oath, or Oaths, and however the words of themselves shall seem to sound or signify, to bind up my self, by vertue hereof, to say, do, or endeavour any thing, which shall really be, or appear to be, against the Law of God, or against our most Illustrious King of England, or against his Laws and Prerogatives: And that I mean not, by this my Oath, or Oaths, any ways to bind up my self from speaking, consulting, and consenting freely, in all, and every thing in any sort concern∣ing the Reformation of the Christian Religion, the Government of the Church of England, and the Pre∣rogative of the Crown of the Commonwealth thereof, or their advantage; and from executing, and re∣forming such things as I shall think need to be reformed in the Church of England: And according to this Explanation, and sense, and not otherwise, nor in any other manner, do I protest, and profess, that I am to take, and perform this Oath.

Nor did that excellent Person, says Mr. Fuller, smother this privately in a corner, but publickly interposed it three several times; once in the Charter-house, before authentick Wit∣nesses; again upon his bended knees, before the high Altar, in view and hearing of many People, and Bishops beholding him, when he was consecrated; and the third time, when he received the Pall, in the same place.

Now would it not be very strange if the like liberty should not be allowed to the Earl, under His Majesty, in reference to the Test, which Henry the VIIIth, a Prince that stood as much on his Prerogative as ever any, did vouchsafe to this Thomas Cranmer, who, as another Historian observes, acted fairly, and above-board: But there wanted then the high and excellent De∣signs of the great Ministers, the rare fidelity of Councellors, sound Religion and tender piety of Bishops, solid Law and Learning of Advocates, incorruptible Integrity of Judges, and upright honesty of Assizers, that now we have, to get Archbishop Cranmer accused, and condemned, for Leasing-making, depraving Laws, Perjury, and Treason, to which Accu∣sation his Explanation was certainly no less obnoxious than the Earl's.

But I hasten to the fourth, and last Head of the Earl's Additional Defences, viz. The re∣moving certain groundless Pretences, alledged by the Advocate, for aggravating the Earl's Offence: As 1. That the Earl, being a Peer, and Member of Parliament, should have known the sense of the Parliament, and that neither the Scruples of the Clergy, nor the Council's Proclamation, designed for meer Ignorants, could any way excuse the Earl for offering such an Explanation. But, first, the Advocate might have remembred, that in another Passage he taxes the Earl as having de∣bated in Parliament against the Test, whereby it is easie to gather, that the Earl having been in the matter of the Test a dissenter, this quality doth rather justify than aggravate the Earl's Scrupling. 2dly, If the Proclamation was designed for the meer Ignorants of the Clergy, as the Advocate calls them, who knew nothing of what had past in Parliament, an Explanation was far more necessary for the Earl, who knows so little of what the Advo∣cate alledges to have past in Parliament, viz. That the Confession of Faith was not to be sworn to as a part of the Test, that of necessity (as I think) he must know the contrary; Inasmuch as, first, this is obvious from the express tenor of the Test, which binds to own, and profess the true Protestant Religion, contained in the Confession of Faith, and to believe the same to be agreeable to the Word of God; as also to adhere thereto, and never to consent to any change contrary to, or inconsistent with the said Protestant Religion, and Confession of Faith: Which to common sense appears as plain, and evident, as can be contrived, or desired. But 2dly, It is very well known, that it was expresly endeavoured, and carried in Parliament, that the Confession of Faith should be a part of the Test and Oath: For the Confession of Faith being designed to be sworn to, by an Act, for securing the Protestant Religion (which you have heard was prepared in the Articles, but afterwards thrown out) when this Act for the Test was brought into the Parliament, some days after, by the Bishop of Edinburgh, and others, the Confession was designedly left out of it: But it being again debated that the bare naming of the Protestant Religion, with∣out condescending on a Standard for it, was not sufficient, the Confession of Faith was of new added: And, after the affirmative Clause for owning it, and adhering to it was in∣sert,

upon a new motion, the negative, never to consent to any alteration, contrary to, or incon∣sistent with the said Protestant Religion, and Confession of Faith, was also subjoined: But not without a new debate and opposition made against the words, And Confession of Faith, by the Bishop of Edinburgh, until at length he also yielded; All which, it is hoped, was done for some purpose: And if, at that time, any had doubted of the thing, he had certainly been judged most ridiculous: For it was by that addition concluded by all, That the Con∣fession was to be sworn. And further, it appears plainly, by the Bishop of Edinburgh his Vindication, that, when he wrote it, he believed the Confession was to be sworn to, for he takes pains to justify it (though calumniously enough) alledging, That it was hastily com∣piled, in the short space of four days, by some Barons and Ministers, in the infancy of our Reforma∣tion. Where, by the by, you see that he makes no reckoning of what the Act of Parlia∣ment, to which the Test refers, expresly bears, viz. That that second Ratification 1567. which we only have recorded, was no less then seven years after this Confession was first exhibited, and approven Anno 1560. But moreover, he tells us, That the Doctors of Aberdeen, who refused the Covenant, were yet willing not only to subscribe, but to swear this Confession of Faith. Which again, to answer the Bishops Critick of Four days, was more than 70. years after it was universally received. It's true, that, when the Bishop finds himself straitned how to answer Objections, he is forced to make use of the new Gloss (I shall not call it of Orleans) whereby the Protestant Religion is made to be sworn to only as far as every Man pleases to interpret, and as far as may be consistent with any new principles of State. But the Parliament certainly (I do not speak Ironically) did intend by this Test, to swear and assert the True Protestant Religion, and the said Confession of Faith, whatever may be now pre∣tended. The Earl could not also but very well remember what his Highness had said to himself, about the inserting of the Confession; and no doubt, the Advocate, if ingenuous, knows all this: For the thing was at that time matter of common talk, and indeed, till Papers objecting contradictions, and inconsistencies betwixt the Confession and the rest of the Test, began to be so numerous (which was about the end of October) that there was no possibility left to answer them, but by alledging, That in the Test men do not swear to every article and proposition of the Confession, but only to the Protestant Religion therein contained, this point was never doubted. And whether this answer be true, and a solid Vindication, consonant to the words of the Test, or a circulating evasion enervating all its force, let others judge. But the Advocate says, When it was moved in Parliament to read the Confession, it was waved: Most true; and the reason given by the Bishops for it was, That it was no∣tour, they knew it, and it was already insert in the Acts of Parliament: And, the truth was, the reading of it would have spent more time than was allowed on examining the whole Test. It was lik•• wise late, after a long Sederunt, and it was resolved to have the Act passed that night, and so it went on: But it was likewise moved to read the Covenant, seeing it was to be disclaimed, and this was flatly refused. And will the Advocate thence infer, That by the Test the Covenant is not abjured, albeit it be most certain, that many in the Parliament, at that time, had never read the one or the other? But to follow the Advocate's excursions, and answer them more particularly: The motion for reading the Confession being made on this very occasion, Because it was to be insert in the Test and sworn to, concludes enough against him: For no body can be so effronted as to say, it was used in Parliament as an argument not to read it, because it was not to be sworn to, but (though it cost a debate) it was plainly agreed to be sworn to, and therefore insert. 2dly, Can any man doubt, the Confession was to be sworn to, when it is notour that severals who were members of Parliament, and, by reason of offices they enjoyed, were called to swear the Test, pretending, with reason, tenderness of an Oath, did, before swearing, make a fashion at least of reading and studying the Confession, to satisfy themselves how far they might swear it. And that this was done by an Hundred, I can attest themselves. Lastly, It is certain that, when, in the end of October, the Bishop of Edenburgh did quarrel Sir George Lockhart, for causing the Confession to be insert in the Test, and he answered that without it a Turk might sign the Test, it was not then pretended by the Bishop that the Confession was not to be sworn to, and therefore he at that time had no reply.

But this is a debate, I confess, not altogether necessary for my present task, only there∣by you may see ground enough for the Earl to believe the Confession was sworn to: And all that did swear, before the Councils Explanation, having sworn in that sense, and, for ought I know, all (except the Clergy) being by the Councils Act still bound to do so, It was not strange the Earl might be of this Opinion. And seeing that many of the Con∣tradictions were alledged to arise hence, and the Earl being a Dissenter, it was yet less strange that the Earl did scruple; nor is it unreasonable that his modest Explanation should have a most benign acceptance.

This second pretence of aggravation is, That His Majesty did not only bestow on the Earl his Lands and Jurisdictions, fallen into His Majesty's hands by the forfaulture of his Father, but also pardon him the crimes of Leasing-making and Misconstruing, whereof he was found guilty by the Par∣liament

1662. And raised him to the title and dignity of an Earl, and to be a member of all His Majesty's Judicatories. All which the Earl, as he hath ever, doth still most thankfully ac∣knowledg. But seeing the Advocate hath no warrand to upbraid him with His Majesty's favours, and that these things are now remembred with a manifest design to raise dust, and blind strangers, and to add a very ill thing, Ingratitude, to the heap of groundless ca∣lumnies cast upon him, I must crave leave to answer a little more particularly, and refute this new Tout (as the Scots Proverb is) in an old Horn. This old Leasing making is then now brought in seriously after it hath been treated in ridicule for Eighteen years, by the very Actors who did never pretend to defend it in cold blood: And, were it not to di∣gress too much, I could name the persons, and make them (if capable) think shame of their falshood and prevarications in that point, and of their abusing His Majesty, and pro∣strating Justice, but I forbear.

The Advocate, in his Book of Pleadings, makes this a Stretch, and says, His Majesty rescinded it. And His Majesty himself hath several times exprest his sense of the stretches made by some against the Earl, at that time. It is well known the Family of Argyle is both Ancient and Honourable, and hath been Loyal and Serviceable to the Crown for several Hundreds of years; but they must now be destroyed, for having done, and being able, as they say, to do too much, which others neither can nor will do.

Neither is the Advocate ignorant that the only failing that Family hath been charged with in all that long tract of time, was a compliance of the late Marquess of Argyle, the Earl's Father, in the time of the late Usurpation, by sitting in the then Parliament of England, some years after all the standing Forces of the Kingdom were broken, His Ma∣jesty beyond Sea, the whole Countrey over-run, the Usurpers universally acknowledged, and neither probability of resistance, nor possibility of shelter left to any that were most willing to serve His Majesty, as the Advocate himself hath published in his Printed Plead∣ings, in which he likewise lays out the special and extraordinary Circumstances whereby the Marquess was necessitate to do what he did. And the compliance charged on him was so epidemick, that all others were pardoned for the same, except he alone, though none had such favourable Arguments to plead, and though he pleaded the same In∣demnity that saved others. And seeing he submitted, and delivered up himself, and lost his Life, and seeing, at the same time of the Compliance that he suffered for, the Earl his Son was actually serving and suffering for His Majesty, as you find in the former part of this Letter, the Earl's Restitution was no less than He and his Family might well expect of His Majesty's Goodness and Justice. It is true, The Earl was again accused and con∣demned (which may appear indeed strange to such as know not all particulars) upon the same old? Acts of Leasing-making, and with as little ground (if possible) as now, and was Pardoned by His Majesty, for which he hath often, and doth always acknowledg, that he owes to His Majesty both his Life and Fortune: But upon this occasion, and being baited as he is, he hopes His Majesty will not take it ill that he say, That His Majesty's Mercy was in this case determined by Justice: And for proof that His Majesty did then know him to be innocent, Did not His Majesty then say. It was impossible to take a Man's Life upon so small an account? Though nevertheless it had been done, if His Majesty had not interposed and pardoned him. Did not the Chancellor Clarendon (who was Patron to the most considerable of the Earl's pursuers) hearing of his Condemnation, Bless God, he lived not in a Countrey where there were such Laws? (He should have said such Judges) And I believe many more will say the same now. Did it not plainly appear, at that time, that his principal pursuers were very bitter, malicious, and unjust to him? For the Earl had not only served His Majesty in that troublesome and hazardous appearance in the Hills, but he had been particularly useful to Earl Middletoun, then His Majesty's Lieutenant General, and had stood by him, when these deserted him, whom notwithstanding he took afterwards by the hand, when he was His Majesty's Commissioner in the year 1661. and then designed new Interests and new Alliances, whereof some did hold, and some never held. And then indeed it was, that he and others thought it proper for them to destroy the Family of Argyle, to make their own Fortunes; But it pleased God and His Majesty to dispose otherwise: Then it was that the Earl was so hotly pursued for his Life; having at that time no Fortune, all being in His Majesty's hands: Then was the accusation of Trea∣son likewise urged by the same persons, and must have carried, but it was not found ne∣cessary, Leasing-making being sufficient to take his Life; and, as it falls out, when any Game is started, and the Hounds in chase, all the little Curs run alongs: So the Earl wanted not then many pursuers that are now scarce to be heard of. And further, some of the parties themselves confessed the particulars to the Earl afterwards, who yet now return to act their former parts, and that they had then laid down a resolution to intrap him, per fas, aut nefas; but notwithstanding all this ill humour and violence, all the ground they could get for a quarrel, in two years time, was one single Letter, among

many they intercepted, the occasion and import whereof was as follows: About a Twelvemonth after the death of the late Marquess of Argyle, The Earl his Son being, by the loss of his Estate, and burden of his Debts, brought into straits, a Friend from Eden∣burgh wrote to him, then at London, to do what he could for himself at Court, and the sooner the better; for he needed neither expect Favour nor Justice from some in Scotland; and, if matters were delayed, his Father's whole Estate would be begg'd away in parcels. His Friend likewise complained, that the Earl did not write to inform his Friends in Scotland; and on this he insisted several post-days, which, at last, drew an answer from the Earl, that he had been to wait upon His Majesty, and had found him both just and kind to him, and doubted not the effects of his Royal favour; that he was sensible of his loss by delay, yet must proceed discreetly, and not press to give His Majesty trouble, but must take His Majesty's method, and wait his time; That he judged, much of what his Friend told him was true, but he must have patience: It was his misfortune that some took pains to make His Majesty believe, that the Parliament was his Enemy, and the Par∣liament to believe the King was his Enemy; and by such informations he was like to be a sufferer, but he hoped in God all should be well. This blast must blow out, and will blow over: The King will see their tricks. And upon this Letter, specially those last words, the Earl was accused of Leasing-making betwixt King and Parliament, and that he expected changes; and so had a great deal of the same stuff laid to his charge, as now you have heard: And if the now Register will produce the Eal's principal Letter, and the Paper the Earl gave in to the Parliament, these two would clear all, the Case then, and now, as you may see, Mutatis Mutandis, being much the same, and some of the same Tools used. But to go on, The Earl's words in that Letter being clear and plain, viz. That he complained of others that reported Lies to the King and Parliament, but did himself report none to either; He acknowledg∣ed the Letter, which could never have been proven to be his; and as soon as he heard that it was intercepted, did render himself to His Majesty before he was called for: But, which very much troubled him, had not access. Yet His Majesty was so gracious, that instead of sending him Prisoner to Scotland with a Guard (as was much pressed) he al∣lowed him to go down on a Verbal Bail: And His Majesty was pleased to say, That he saw nothing in the Earl's Letter against His Majesty or the Parliament; but believed the Earl did design to reflect on the Earl of Middleton. The Earl came to Edinburgh, a fourthnight before the day appointed by His Majesty, and thought to have had the liberty of the City, till that day should come; but was sent to the Castle the next day after his arrival: Upon which he advertised His Majesty of his condition, who would hardly believe they would take his Life, till it was told plainly it was designed, and if he died it lay at His Majesty's door; upon which His Majesty was graciously pleased to send immediately an Order to the Earl of Middleton, not to proceed to Execution against him: Yet the Sentence of Death was pronounced, and the Day of Execution remitted by the Parliament to the Earl of Middleton: Which he accepted of, albeit he had no particular instruction for it from His Majesty, which, before a year went about, Earl Middleton found could not be justified by him, and some of the Earl's chief accusers were declared by His Majesty to be them∣selves Leasing-makers; And then the Earl, by His Majesty's favour and goodness, was re∣stored to a part of his Predecessors Estate and Titles, which he took as thankfully, as if a new Estate, and new and greater Honours had been conferred upon him. And though His Majesty was pleased, at the granting of these Titles, to say, He could help them when he pleased; yet His Majesty knows, that the Earl never troubled him about any such matter, nor solicited him now these Eighteen years, for any Title, Office, or Imployment, (though he confesses he had of all sorts) nor hath he been burthensom to His Majesty's Exchequer (500 l. yearly for four or five years that the Earl served in the Treasury, be∣ing all that ever he touched of his Majesty's Money) albeit few attended more, and none so much that lived at his distance. He was also twice at London, to kiss His Majesty's hand, but still on his own Charges: Which things are not said to lessen His Majesty's bounty and goodness, whereof the Earl still retains all just, tender, and dutiful impressi∣ons; but to answer the Advocate, and to teach others to hold their peace, that cannot say so much.

His Life is known to have been True, Honest, and of a piece, and all alongs he hath walked with that straightness, that he can compare his Integrity with all that now attacque him.

By all which it is apparent, That what the Advocate here pretends for an aggravation, may w••ll be accounted a Second part of the Earl's Persecutions; but cannot, in the least, im∣pair either his Innocence, or his Honour.

Seeing therefore the ground of the Earl's present accusation, with all he either designed, said, o•• did, in this matter, was only that, when called, nay required to take the Test, and after leave first obtained from his Highness and Council, he did in their presence, be∣fore the giving of his Oath, declare, and propose to them the sense wherein he was wil∣ling

to take it; That this his sense neither contains, nor insinuates, the least slander, re∣proach, or reflection, either upon the King, the Parliament, or any Person whatsome∣ever; but, on the contrair, is in effect tenfold more agreeable to the words of the Test, and meaning of the Parliament that framed it, than the Explanation emitted by the Coun∣cil; and was also most certainly, the first day, by them accepted; and, when the next day challenged, by him offered to be retracted, and refused to be signed: That the whole Indictment, and more especially that part of it about the Treason, is a meer Rapsody of the most irrational, absurd, and pernicious consequences, that ever the Sun beheld, not only forcing the Common rules of Speech, Charity, and Humanity, but ranversing all the Topicks of Law, Reason, and Religion, and threatning no less, in the Earl's person, than the ruine of every Man's Fortune, Life, and Honour; That the Earl's Defences, and grounds of Exculpation, were most pregnant, and unanswerable, and either in themselves notour, or offered to be instantly verified. And lastly, That the aggravations pretended against him do either directly make for him, or most evidently discover the restless malice of some of his implacable enemies: Shall our Gracious King, who not only clearly under∣stands Right, and hates Oppression, but also, to all his other excellent qualities, hath by his Gentleness and Clemency, even towards his Enemies, added that great Character of Goodness, upon vain and false insinuations, and unreasonable and violent stretches, not only take away the Life of an innocent person, but of one who himself, and his Family (be it said without disparagement) have, for a longer time, and more faithfully, and signally served His Majesty and the Crown, than any person, or Family of his degree and quality, of all his Persecutors can pretend to? Shall his numerous Family, hopeful Children, his Friends and Creditors, all be destroyed? Shall both former Services be forgot, Inno∣cence oppressed, and all Rules of Justice, and Laws of society and humanity for his sake overturned? Shall not only the Earl be cut off, and his noble and ancient Family ex∣tinguished, but his Blood and Memory tainted with as black and horrible a stain, as if he had conspired with Jacques Clement, Ravillack, The Gun-powder Miscreants, The Bloody Irish Rebels, and all the other most wicked and hainous Traytors of that Gang? And all this for a meer imaginary Crime, whereof it is most certain, that no Man living hath, or can have, the least real conviction, and upon such frivolous allegations as all men see to be, at the top, meer Moon-shine; and at the bottom, Villany unmixed.

After clearing these things, the Earl, it seems, intended to have addressed himself to His Majesty's Advocate in particular, and to have told him, that he had begun very time∣ously in Parliament to fall first on his heritable jurisdictions, and then upon his Estate, and that now he was fallen upon his Life and Honour, whereby it was easie to divine that more was intended, from the beginning, than the simple taking away of his Offices: see∣ing that some of them, on his refusing the Test, were taken away by the Certification of the Act of Parliament, and that those that were heritable he offered, in Parliament, to present and surrender to His Majesty on his knee, if His Majesty, after hearing him, should think it fit; only he was not willing to have them torn from him, as hath been said; and if that were all were designed, as was at first given out, the Advocate need not have set him on high, as Naboth, and accuse him as a Blasphemer of God and the King.

Then turning his Speech to the Lords of Justitiary, he thought to have desired that they would yet seriously consider his words, in their true sense and circumstances, his own Ex∣planation of his Explication, and especially the foregoing matter of Fact to have been laid before them, with his Defences, and grounds of Exculpation; as also to have told them, That they could not but observe how that he was singled out amongst Thousands, (against whom much more then all he is charged with could be alledged) and that they must of necessity acknowledg (if they would speak out their own Conscience) that what he had said was spoke in pure innocence, and duty, and only for the exoneration of himself, as a Christian, and one honoured to be of His Majesty's Privy Council (where he was bound, by his Oath, to speak truth freely) and not to throw the smallest reproach on either per∣son or thing. Adding, That he was loath to say any thing that looks like a reflection upon His Majesty's Privy Council; but if the Council can wrong one of their own number, he thought he might demand, If he had not met with hard measure? For first he was pres∣sed, and persuaded to come to the Council; then they receive his Explanation, and take his Oath, then they complain of him to His Majesty, where he had no access to be heard; and by their Letter, under their hands, affirm, That they had been careful not to suffer any to take the Test with their own Explanations, albeit they had allowed a thing very like it, first to Earl Queensberry, then to the Clergy: And the President, now Chancellour, had permitted several Members of the College of Justice to premise, when they swear the Test, some one sense, and some another, and some nonsense, as one saying he took it, in sano sensu; another making a Speech that no Man understood; a third, all the time of the reading, repeating, Lord have mercy upon me miserable sinner: Nay, even an Advocate, after being debarred a few days, because albeit no Clerk, yet he would not take it without

the benefit of his Clergy, viz. the Councils Explanation, was yet thereafter admitted without the Warrant of the Councils Act: but all this in the Case of so many other was right and good. Further the Council expresly declare the Earl to be Guilty, before he had ever said one word in his own defence. Thereafter some of them become his Assizers, and others of them wit∣ness against him; and after all, they do of new concern themselves, by a Second Letter to His Majesty (wherein they assert, That after full debate, and clear probation, he was found guilty of Treason, &c.) to have a sentence past against him, and that of so high a nature, and so dreadful a consequence, as suffers no person to be unconcerned, far less their Lordships his Judges, who upon grounds equally just, and, which is more, already predetermined by themselves, may soon meet with the same measure, not only as Concealers of Treason, but upon the least pretended disobedience, or non-compliance with any Act of Parliament: and, after all, must infallably render an account to God Almighty. He bids them therefore lay their hands to their bearts, and whatever they shall judge, he is assured that God knows, and he hopes all un∣blassed men in the World will, or may know, he is neither guilty of Treason, nor any of the Crimes libelled. He says he is glad how many out-do him in asserting the true Prote∣stant Religion, and their Loyalty to His Majesty; only, he hadds, If he could justify himself to God, as he can to His Majesty, he is sure he might account himself the happiest man alive. But yet, seeing he hath a better hope in the mercy of God through Jesus Christ, he thereupon rests, whether he finds Justice here on Earth, or not. He says, he will add nothing to move them either to tenderness or pity; he knows that not to be the place, and pretends to neither from them; He pleads his Innocence, and craves Justice, leaving it to their Lordships to consider not so much his particular Case, as what a Preparative it may be made, and what may be its Consequences: And if all he hath said, do neither convince, nor persuade them to alter their judgment, yet he desires them to consider, whether the Case do not, at least, deserve to be more fully represented, and left to His Majecty's wisdom and justice, seeing that if once the matter pass upon record for Treason, it is undoubted, that hundreds of the best, and who think themselves most innocent, may, by the same methods, fall under the like Condemnation, whenever the King's Advocate shall be thereto prompted.

And thus you have a part of what the Earl intended to have said, before pronouncing Sentence, if he had not made his Escape before the day: Yet some things I perceive by his Notes are still in his own breast, as only proper to be said to His Majesty. I find several Quotations out of the Advocate's printed Books, that, it seems, he was to make some use of; but, seeing it would have been too great an interruption to have applied them to the places designed, I have subjoined them together, leaving them to the Advocate's own, and all mens consideration.

It was by some remarked, That when the Lords of Justitiary, after the ending of the first days debate, resolved that same night to give judgment upon it, they sent for the Lord Nairn, one of their number, an old and infirm man, who being also a Lord of the Session, is so decayed through age, that he hath not for a considerable time, been allowed to take his turn, in the Outer-house (as they call it) where they judge lesser Causes alone: But notwithstanding both his age, and infirmity, and that he was gone to bed, he was raised, and brought to the Court, to consider a Debate, a great deal whereof he had not heard, in full Court; and withal, as is informed, while the Clerk was reading some of it, fell of new asleep.

It was also remarked, that the Lords of Justitiary being, in all, five, viz. the Lord Nairn above-mentioned, with the Lords, Collintoun, Newtoun, Hirkhouse, and Forret, the Libel was found relevant only by the odds of three to two, viz. the Lord Nairn aforesaid, the Lord Newtoun, since made President of the Session, and the Lord Forret, both well enough known, against the Lord Collintoun, a very ingenious Gentleman, and a true old Cavalier, and the Lord Hirkhouse, a learned and upright Judge: As for the Lord Justice General, who was also present, and presided, his vote, according to the constitution of the Court, was not asked.

But to return to my Narrative, the Earl, as I have already told you, did not think fit, for reasons that you shall hear, to stay till His Majesty's return came to the Council's last Letter, but, taking his opportunity, made his escape out of the Castle of Edinburgh, upon Tuesday the Twentieth of December, about eight at night, and, in a day or two after, came His Majesty's Answer here subjoined.