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VIII.

BOOK not permit him to subscribe. But the established clergy were the first to dissent. To appease their scruples, an explanation prepared by Paterson, bishop of Edinburgh, was approved by the privy council; that it was not meant to assent to every proposition, but to the fundamental articles only, of the confession of faith; and that the apostolical right of episcopacy was neither disowned, nor an alteration of its legal establishment intended by the test. But the oath was to be received in its literal acceptation. Eighty clergymen, more con scientious and pious, resigned their livings, rather than subscribe either to the literal sense or explanation of the test. The presbyterians mostly de clined the oath. The earl of Queensberry subscribed it in council, with a courtly explanation, that the obligation not to attempt an alteration in church or state, implied no opposition to any alte ration introduced by the king 39.

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The earl of Argyle, when required by the duke to subscribe the test, was admonished privately, by the bishop of Edinburgh, not to ruin an ancient family, nor to augment the resentment which his opposition had kindled. In the late parliament an attempt had been made, with the duke's concur rence, to divest him of his family jurisdictions and estate. A special commission was proposed, instead

of the ordinary judicatures, in order to examine, or rather to resume the gift of his father's forfei. 38 Wodrow, ii. 198. Argyle's Case.

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ture; he was refused access to the king for protec- BOOK tion; he was displaced with Dalrymple from the court of session; and no doubt can remain of the duke's intention to ruin a potent nobleman, whose implicit and unreserved support he despaired to obtain. Argyle, aware of the danger, would have resigned his employments; but on obtaining the duke's approbation, he accepted the test as a privy counsellor, with this explanation: "That as the parliament never meant to impose contradictory "oaths, he took it as far as consistent with itself, " and the protestant faith; but that he meant not "to bind or preclude himself in his station, in a "lawful manner, from wishing or endeavouring "any alteration which he thought of advantage "to the church or state, and not repugnant to the "protestant religion, and his loyalty; and this he "understood to be a part of his oath." His explanation was graciously received. He resumed his seat on the duke's invitation, but declined to vote on the general explanation which the council pronounced that day upon the test. Next day he was required in council to renew the oath, as a commissioner of treasury, and when he referred to his former explanation, it was clamorously demanded. Alarmed at this eager importunity, he acknowledged, but refused to subscribe the expla nation, and was immediately displaced from the council board. A few days afterwards he was for which enjoined to enter prisoner in the castle, and was cused.

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1681.

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BOOK accused of leasing-making, perjury, and treason; of depraving the laws, and assuming the legislative powers of the state39.

No man could believe, that the ministerial cabal was so bold and flagitious, or that the duke was of such a ductile or tyrannical disposition, as to persist in a judicial trial, in order to deprive Argyle of his honours, his estate, and life. Nothing farther was apprehended at first, than a design to extort, by menaces, a more ample submission; the surrender of his jurisdictions, and a part of his estates. Eight advocates, who signed an opinion that the explanation was legal, were severely threatened; the assistance of Lockhart was thrice prohibited, and was only granted from an apprehension that Argyle, if deprived of the benefit of counsel, might refuse to plead. The iniquity of the whole trial is manifest; but it is proper, and often profitable in history, to investigate the minute particulars, and to record the infamy of each judge, as a warning to others, and as a wholesome Dec. 12. example to future times. When Argyle was arraigned at the bar of the justiciary court, his explanation of the test was perverted throughout. That the parliament never meant to impose contradictory oaths, was converted by Mackenzie, the king's advocate, into a tacit, defamatory implica tion, that such contradictory oaths were actually imposed by parliament: That he took the oath as 39 Wodrow, 3. 7. &c. Burnet, ii. 335.

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His trial.

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far as it was consistent with itself and with the BOOK protestant religion, implied, maliciously, that it was consistent with neither: That he was not 1681. thereby precluded from such alterations as he thought advantageous to the church or state, released him from every obligation contained in the test: And that he understood this to be a part of his oath, transferred the legislative power of the estates to himself. By means of such miserable comments, leasing-making, perjury, and treason, were deduced from a perversion of the most innocent words. The pleadings are extant, and the arguments of Lockhart reflect dishonour on the public accuser and infamy on the court. He demonstrated to the secret conviction of the judges themselves, that the explanation, far from amounting to treason, was not even criminal; and that the particular expressions were of the most innocent import, necessary to disburden the conscience from perjury, and strictly legal. But the question had been already prejudged in council. The court was adjourned; but the judges continued sitting till midnight, to determine on the relevancy of the libel, whether in point of law the explanation of the test was sufficient to constitute those crimes which the indictment contained. Collington, an old cavalier, and Harcarse, a just and learned judge, prolonged the deliberations on the indictment, and opposed its relevancy, which was supported by Newton and Forret, the former instru

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BOOK ments of Lauderdale's corruption. Queensberry, who presided as justice general, had himself received the test with an explanation; and in this delicate situation, when the judges were equally divided on the question, his private conviction was sufficiently attested by his refusal to give a decisive vote, or forfeit the preferment and favour of court by the acquittal of Argyle. To relieve him from this disgraceful dilemma, Nairn, a superannuated judge, whose attendance had been long dispensed with, was roused from his bed at midnight; and the proceedings were read over, as he had not heard the debate; but he dropped asleep till awakened for his vote. The interlocutor was pronounced next day, in the strict forms of unsubstantial justice; "Sustaining the charges as rele' vant, repelling the legal defences against treason "and leasing-making, and remitting the indict"ment, with the defence against perjury, to the

knowledge of an assize." Unconscious of this midnight divan, Argyle and his counsel were overwhelmed with surprise and despair. They declined any challenge of the jurors, or examination of the witnesses; or disdained to renew an unavailing defence. The jury asserted their full share of infamy, in this iniquitous transaction. Montrose, the chancellor or foreman, dishonoured the reputation derived from his grandfather, in order to avenge his death; and of eleven peers and four commoners, seven were privy-counsellors, per

1681.

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