THE Marquis of Argyle HIS PETITION TO THE PARLIAMENT OF SCOTLAND; Craving a Precognition of his Case, Containing many weighty Reasons urging the necessity thereof. Presented to the Parliament February 12. 1661. LONDON, Printed in the Year 1661. To my Lord Commissioner his Grace, and Honourable Estates of Parliament. The Humble Petition of Archbald Marquis of Argyle. Humbly showeth, THAT for as much as the Petitioner can with a safe conscience affirm, and solemnly protest, that his actings or accession has been in relation to public business since the beginning of the troubles, till his Majesty's departure hence in the year 1651. though he will not purge himself of errors, failings, and mistakes, both in judgement and practice incident to humane frailty, and common to him, if not with the whole, at least with the greatest part of the Nation; yet in one thing, though he were to die, he would still avouch and retain his innocency, that he never intended any thing treasonably, out of any pernicious design against his Majesties late Royal Father of ever glorious memory, or his present Majesty, (whom God may long preserve) their Persons or Government; but endeavoured always to his uttermost for settling the differences betwixt their Majesties and the people: And as to any actings before the year 1641. or from the said year, till his Majesty's being in the Parliament at Perth and Sterling, your Petitioner did with a full assurance rely upon his gracious Majesty, and his Royal Father, their Treaties, Approbation, Oblivion, and Indemnity for what was past, and firmly believed that the same should never have risen in judgement, or that the Petitioner should have been drawn in question therefore; and during his Majesty's absence, and being forced from the exercise of his Royal Government by the late Usurpers, and long after that the Nation by their Deputies had accepted of their authority and government, and they in possession, the Petitioner was forced to capitulation with them, being in their hands, and under sickness, and the same was after all endeavours used, according to the duty of a good subject, and upon the Petitioners part, so innocent and necessary for self preservation, without the least intention, action, or effect to his Majesty's prejudice; That albeit upon misinformation (as the Petitioner humbly conceives) his actings and compliance both in their designs and quality have been misrepresented, as particularly singular and personal, stating the Petitioner in a degree of guilt beyond others, and incapable of pardon, the same have so far prevailed upon his Majesty, as to cloud and damp the propitious and comfortable rays of his Royal Grace and Favour, and have strained his gracious Inclination beyond its natural disposition of clemency expressed to his other subjects, to commit the Petitioners person, and give way to the trial of his carriage and actings; yet so firmly rooted is the Petitioners persuasion of his Majesty's Justice and Clemency, and that He intends the reclaiming, and not the ruin of the meanest of his subjects, who retain their loyalty, duty, and good affection to his Person and Government, that upon true and right representation of the Petitioners carriage and actings, he shall be able to vindicate himself of these aspersions, and shall give his Majesty satisfaction, at least so far, to extenuate his guilt, as may render him a fit object of that Royal Clemency, which is of that depth, that having swallowed and passed by not only Personal, but National guiltiness, of much more deep a dye as any the Petitioner can be charged with, or made out against him; and so will not strain to pass by and pardon the faults and failings of a person who never acted but in a public joint way, without any sinistrous or treasonable design against his Majesty, or his Royal Father, and against which he can defend himself either by acts of approbation and oblivion in verbo principis, which he conceives to be the supreme, sacred, and inviolable security, or which he was forced to much against his inclination, by an insuperable necessity. And albeit his Majesty's grace and favour is strictly tied to no other rule but his Royal Will and pleasure, yet his Majesties so innate, essential and inseparable a quality of his Royal nature, that the Petitioner is persuaded in all humane certainty, that the leaving and committing to his Parliament (as is expressed in his Majesty's Declaration of Octob. 12. last by past) the trying and judging of the carriage of his subjects during the late troubles, as indeed it is in its own nature, and aught to be so accepted of all, as an undoubted evidence of his Majesty's affection to, and confidence in his people; so no other trial or judging is therein meaned, but a fair, just, legal, and usual trial, without any prejudice, passion, or prelimitation, or precipitation; like as by the said Declaration there was a freedom for all the people interessed, to make their application to the Parliament, or in the mean time to the Committee, from whom only his Majesty is pleased to declare he would receive address & information: And seeing it was the Petitioners misfortune during the sitting of the said Committee, to be prisoner in England, whereas if he had been prisoner here in Scotland, he would have made application to them, and would have craved, and in justice expected that precognition might have been taken by them, to whom the preparing and ordering of that affair (to wit, anent the trial of the subjects carriage during the troubles) was recommended, that the Petitioners absence, which was his punishment, not his fault, may not be prejudicial, seeing the Petitioner has lately received two several ditays wherein there be many crimes grossly false, with all the aspersions and aggravations imaginable laid to his charge, importing no less than the loss of his life, fame, and estate, and the ruin of him and his posterity, which he is confident is not intended by his Majesty; and that by the law and practice of this Kingdom, consonant to all reason and equity, the Petitioner ought to have upon his desire a precognition for taking the deposition of certain persons, which being frequently and usually practised in this Country, when any person is defamed for any crime, and therefore incarcerate before he was brought to a trial, at his desire precognition was taken in all business relating thereto, which the Petitioner in all humility conceives aught much more not to be denied to him, not only by reason of respect to his quality, and of the importance and consequence thereof to all his Majesty's subjects of all quality in all time coming, but also, in regard it has been so meaned and intended by his Majesty's Declaration foresaid, like as the manner of the crimes objected being actings in times of wars and troubles, the guilt thereof was not personal and particular, but rather National and universal, and vailed and covered with acts of indemnity and oblivion, and so tender and ticklish, that if duly pondered after a hearing allowed to the Petitioner, in prudency and policy will not be found expedient to be tossed in public, or touched with every hand, but rather to be precognosced upon by some wise, sober, noble, and judicious persons, for their and several others reasons in the paper hereto annexed; nor does the Petitioner desire the same animo pro telandi, nor needs the same breed any longer delay, nor is it sought without an end of zeal to his Majesty's power, and vindication of the Petitioners innocency, as to many particulars wherewith he is aspersed; and it would be seriously pondered that seeing Cunctatio nulla longa ubi agitur de vita hominis, far less can this small delay, which is usual, and in this case most expedient, if not absolutely necessary, be refused, ubi agitur non solum de vita, sed de fama, and of all worldly interests that can be dear or of value to any man. Upon Consideration of the Premises, it is humbly craved, That your Grace, and the Honourable Estates of Parliament, may grant the Petitioners desire, and to give Warrant to cite persons to Depone before your Grace, and the Estates of Parliament, upon such interrogators as your Petitioner shall give in, for clearing of several things concerning his intention and loyalty during the Troubles; And for such as are out of the Country, and Strangers, residentars in England, Commissions may be directed to such as your Grace and the Parliament shall think fit, to take their Depositions upon Oath, and to return the same; And your Petitioner shall ever pray, etc. Edinburgh, Febr. 12. 1660. This Petition being read, was refused. Edinburgh. At the Parliament House, Febr. 13. 1661. THe Marquis of Argyle (being accused of High Treason, at the instance of Sir John Flo●cher, his Majesty's Advocate for his Interest) was brought to the Bar: His Lordship humbly desired but to speak a few words before reading the Indictment; assuring to speak nothing in the cause itself▪ Whereupon he was removed a little, and after some debate, the House resolved that the said Indictment should be first read. Then his Lordship desired that a Bill which he had caused his Advocates give in to the Lords of the Articles, (desiring a precognition, with many reasons urging the necessity of it) to which he had received no answer, might be read before the said Indictment; which being likewise refused, the said Indictment was first read; and after the reading thereof, the marquis (being put off hi● first thoughts) was compelled to this extemporary discourse following, as it was faithfully collected from several hands, who writ when his Lordship spoke. May i● please your Grace MY Lord Chancellor, Before I speak any thing, I shall humbly protest my words may not be wrested, but that I may have charity to be believed; and I shall with God's assistance, speak truth from my heart. I shall (my Lord) resume M●phi●●sh●ths answer to David, (after a great Rebellion, and himself evil reported of) saith he, Yea, let him take all, for as much as my Lord the 2 Sam. 19 30. King is come home again in peace into his own house; So say I, since it has pleased God Almighty graciously to return his Sacred Majesty to the Royal Exercise of his Government over these Nations, to which he has undoubted Right, and was most unjustly and violently thrust therefrom by the late tyrannising Usurpers. It is (my Lord) exceeding matter of joy to us all, that that iron yoke of Usurpation (under which we have these many years sadly groaned) is now broke, and with much freedom this High and Honourable Court of Parliament are meeting together, under the refreshing warm beams of his Majesty's Royal Government, (so much longed for by our almost starved expectations;) and I do earnestly wish his Royal Presence upon his Royal Throne amongst us; but since at this time that great happiness cannot probably be expected, I am glad that his Majesty's Prudence has singled out such a qualified and worthy person (as my Lord Commissioner his Grace) to represent himself, whose unspotted loyalty to his Majesty we can all witness. I cannot (my Lord) but acknowledge that these two grand mercies which comfortably attends my present condition; one is, The high thoughts I deservedly entertain of that transcendent and Princely clemency wherewith his Sacred Majesty is so admirably delighted, abundantly evidenced by many noted and signal testimonies in all the steps of his Majesty's carriage; as those most gracious Letters, Declarations, and that free and most ample Act of Indemnity, granted to all his Majesty's Subjects, (excepting some of the immediate Murderers of his Royal Father) to eradicate any timorous Jealousies of his Majesty's g●●cious pardon (which might haply arise by serious reflectings) convincing them forceably of their own miscarriages in these unhappy times of distraction: The effects (my Lord) of which Princely deportment (I am confidently hopeful) his Majesty has experimentally, and shall find, prove one effectual cement to concilliate the most antimonarchick and disaffected persons (excepting some of those barbarous fanatics) in all his Majesty's Dominions, most willingly to the subjection of his Majesty's Royal Sceptre; and with a perfect hatred abominate all disloyal practices in themselves or others, in all time coming. The second is, (my Lord) When I consider that my Judges are not such as we had of late, (strangers,) but my own Countrymen; both which jointly (together with the real sense and solid convictions I have of my innocency of these calumnies most unjustly charged upon me) encourages my hopes the rather, to expect such dealing, as will most sympathise with that clement humour (to which his Sacred Majesty hath such a natural propensity) and such equal administration of Justice (void of all byassing prejudices) as will be most suitable to such a high and honourable Meeting. I shall therefore (my Lord) desire to use Paul's answer for himself, being accused of his Countrymen) may not be mistaken, he having a learned Orator (Tertullus) accusing him, as I have in my Lord Advocate; Pawles was heresy, Acts 24. 14, 15, 16. mine of another nature; but I must say with him, That the things they allege against me cannot be proved; but this I confess, in the way allowed by solemn Oaths and Covenants, I have served God, my King, and Country (as he said) which they themselves also allow. I shall (my Lord) remember (not with repining, but for information) my hard usage, never having had my hearing, nor allowance of pen, ink, nor paper, nor the comfort of seeing my friends freely, until I received this Summons, which was in effect a load above a burden; enemies, both Scots and English, out of malice calumniating me for all the same things, excepting what relates to his Majesty's most Royal Father of ever glorious memory. Therefore (my Lord) I beg charity and patien● hearing, not doubting but the wisdom and goodness of the Parliament will be so favourable, and not as the inconsiderate multitude (as a learned and able man writes, says he) As Sir Walter Raleighs Preface to the Histary of the World. we see in experience, That dogs they always bark at them they know not; and that is their nature, to accompany one another in those clamours; so it is with the inconsiderate multitude, who wanting that virtue which we call honesty in all men; and that special gift of God (which we call charity in Christian men) condemn without hearing, and wound without offence given, led thereunto by uncertain report only; which his Majesty King James only acknowledges to be the Father of lies: I shall not desire to be in the least mistaken by any that hear me: But sure I am, it is pertinently applicable to my case. I entreat your Lordship likewise to consider the words of another notable man; who says, As the tongues of Parasites Speed in his History. are ill balances to weigh the virtues of Princes and great men, so neither should theirs, nor other men's blemishes be looked upon as they are drawn with the deformed pencil of envy or rancour; which do always attend eminency, whether in place or virtue. I shall not (my Lord) be so presumptuous as to arrogate any thing to myself in this, only I want not the two companions; for I am but a weak man, subject to many failings and infirmities, (whereof I do not purge myself) for as we must confess to God Almighty, If he should mark iniquity, who Psal. 130. 3. can stand? Neither shall I say, That there cannot a hole be discovered (as the Proverb is) in my coat; and it cannot but be so with any, specially such as have laboured in such time's business; but I bless the Lord, that in these things which have been, and are here cast upon me, I am able to make the falsehood and miscenstruction of them palpably appear. My Lord, before I mention any thing in particular, I must show this Honourable Meeting of Parliament, and all that hear me (who doubtless have various apprehensions of my being present in this condition) that I am here ●ather as my misfortune, nor my injury; wherein I desire to explain the difference, as Plato and Aristotle does very well; calling injuries such things as are done purposely with a wicked mind; and misfortunes, such things as are done with a good mind, though the events prove bad, yet we could not foresee them. So (My Lord) I shall take God to record (who must judge me one day) upon my Conscience, That what I did, flowed not from any injurious principle to any, though I acknowledge the events were not still so successful (which was my misfortune) indeed; but it has been my lot often in these times (wherein I and many others have been inevitably involved) to be by the malicious tongues of my calumniating enemies, misconstructed for the worst; yea, even in many things that the Lord was pleased to make successful: for the truth of this, I may (I hope) safely appeal to many in this Honourable House, who can abundantly witness my faithful and loyal endeavours for both my King and Native Country: whereof I should be very sparing to be an Herald myself; were not the contrary so impudently affirmed. There are five main calumnies that I desire (my Lord) to satisfy all that hear me a little in; to the end that the rest of less moment may be likewise in its own due time heard afterward abstract more from personal prejudice. The first calumny is (my Lord) concerning that horrid and unparallelled murder of his late Royal Majesty of eternally blessed memory; I do here publicly declare, that I neither desire, nor deserve the least countenance or favour, if I was either accessary to it, or on the counsel or knowledge of it; which to make clearly appear, is under oath in the Parliament Books 1649. whereof I was the first starter myself, to the intent we might both vindicate ourselves, and endeavour a discovery, if any amongst us had any accession to that horrid and villainous crime; as also in my latter Will which I made going to England, in Ann● 1655. or 1656. fearing what possibly might hereafter be obtruded by any upon me or my family upon that account, I set it down to clear my posterity, That I was altogether free of that detestable and execrable crime, or of any prejudice to his Majesty, in either Person or Government: I left this with a very worthy Gentleman, I believe well known to your Lordship, and never saw it since; so your Lordship may be pleased if ye will to call for it, and try the truth; whatsoever other thing may be in it, I hope (my Lord) this opportunity is a mercy to me, to have that vile calumny (amongst many others against me to be cleared. And (my Lord) to make this particular yet more evident, I did still, and do positively assert, That I never saw that monstrous Usurper (Oliver Cromwell) in the face, nor ever had the least correspondence with him, or any of that Sectarian Army, until the commands of the Committee of Estates sent me, with some other Noblemen and Gentlemen to the Border, in anno 1648. to stop his march into Scotland after those who retired from Preston fight; neither after he left the Border in the year 1648. did I ever correspond with him, or any of that Sectarian Army, so unsatisfied was I with their way, after the wicked and sinistrous courses he and they were upon afforded evident presumptions for us to apprehend, that he and they intended prejudice to his Royal Majesty; only one letter I received from Sir Arthur Hesilrig, to which I returned answer, That he might spare his pains in writing to me, for I blessed the Lord who had taught me by his Word, To fear God, and honour the King, and not to meddle with them that were given to change; though Sir Arthur be now dead, yet he acknowledged to several in the Tower, that he still had my Letter: and when I was there, I often desired he might be posed and examined about it; which I can presently instruct. And during (my Lord) my being in England neither in London nor Newcastle in anno 1647. There was not any thing so much as mentioned concerning his late Majesty's person; all that ever I heard of, was in public Parliament 1647. The Commissioners papers at London, and Committee books at Newcastle will clear this fully. The second calumny is anent the inhuman murder of Duke James Hamilton: (My Lord) It's well known my great respect to that truly Noble and Worthy person, whereof (upon all occasions) I gave ample testimonies, and can yet convince any of his friends with the reality of it; and evidenced my true sorrow for the wicked cruelty committed upon him: But indeed I cannot deny I refused to compliment Cromwell on his behalf (he having (my Lord) been immediately preceding, so instrumental, and so very active in that most horrid and lamentable murder of his late Sacred Majesty) and if I had done otherwise, undoubtedly it had been a more black Article in that Libel now read, than any that is in it. The third calumny is, That which breeds a great part of these groundless clamours, (though it be not in the Indictment) is my Lord marquis of Huntley's death; wherein I may truly say, I was as earnest to preserve him, as possibly I could, (which is very well known to many in this Honourable House) and my not prevailing, may sufficiently evidence I had not so great a stroke nor power in the Parliament as is libelled; And (my Lord) for his Estate, I had nothing in that, but for my own absolutely necessary relief, and was ever most willing to part with any interest I had therein, getting his friends (who professed much zeal for the standing of the Family) engaged for warrandise to me, of any portion that should happen to fall my satisfaction; and to evidence that I was no means to harm the Family, I stood with my Right betwixt all Fines and forfeitures of Bonds, and accounted for any thing I could receive: and to manifest yet further, that the burden of that Family was not from any extrinsic cause to themselves, I have under the old marquis his own hand, and his Sons, George Lord Gordone (who was a very worthy young Nobleman,) the just Inventory of their debts, amounting to about one million of marks, in anno 1640. It would I fear (my Lord) consume too much of the Parliaments precious time, to hear many other circumstances to make this particular more clear, which I shall at this time forbear. The fourth calumny is, the death of the marquis of Montross; There are many in this House (my Lord) who know very well I refused to meddle either in the matter or manner of it; and so far were we from having any particular quarrels at one another, that in anno 1645. he and I were fully agreed upon Articles and conditions contained in a Treaty passed betwixt us; the Gentleman is yet alive who carried the messages both by Word and Writing betwixt us; and it was neither his fault nor mine that the business did not end at that time, which (is known to all) proved very obnoxious to the Kingdom thereafter. The fifth calumny is concerning my dealing with the English after Worcester fight: It is well known (my Lord) to many, that myself, and the Gentlemen of Argyleshire (my Kinsmen, Vassals, and Tenants) endeavoured cordially to engage all their neighbours about them on all hands, against the English, (which they did not prevail in,) but was most unhappily made known to the English Commanders for the time; which they caused immediately publish (as a very notable discovery) in their News books; which occasioned two sad disadvantages to us: for they not only crushed our attempts in the infancy, but also determined the severer resolutions against us; whereby two strong Regiments of Foot, (overton's and Reads) and very near the number of one of Horse (under the command of one Blackamoir, were sent to Argyle; and when Dean came there, it pleased God to visit me with a great distemper of sickness, (as Doctor Cunnynghame, and many others who were with me, can witness) What (my Lord) I was pressed to when I was violently in their hands, may be instructed by the paper itself (written by Deans man's own hand yet extant to show) which I did absolutely refuse upon all the hazard of the uttermost of their malice; as also what I was necessitate to do, is likewise ready to be shown, whereby I was still controlled their Prisoner upon demand. I shall (my Lord) add one Reason more to clear this (besides many other weighty public Reasons and Considerations which I shall forbear to mention at this time, it being more natural to bring them in by way of defences afterward) my own Interest and of all Noblemen and Superiors in Scotland. It may be rationally presumed, that I had been a very senseless fool, if ever I had been for promoting such an Authority or Interest over me, as Leveled all, and was so totally destructive to all that differenced myself and other Noblemen, from their own Vassals, (which many says I was too earnest in) Yea it being absurdly derogative to all true Nobility, and my Ancestors and I (as is said in that Libel) having had so many Titles of honour, dignity, and eminent places of trust, conferred upon us by His Majesty's Royal Predecessors and himself, (all for our constant Loyalty and adheherence to the Crown at all occasions (as the Records and Histories of this ancient Kingdom holds forth, besides the Narratives of all our Grants) and asserting the just privileges thereof against all opposers) I did [My Lord] ever (even when the English were at the intolerable height of Usurpation) declare my true abhorrence to a Commonwealth Government; which was well known to them all: I was not indeed [My Lord] very dissatisfied when there was rumours spread abroad of Cromwell's being made a King, (as some here present can witness) for I told them it was a most probable way for His Majesty; and the more it were encouraged, would tend the more to Cromwell, and their deformed Commonwealth's Government ruin, and promote His Majesty's just interest the more. My Lord, I shall not much blame my Lord Advocate for doing his endeavour [it being an essential part of his Function to accuse] but I must say that it is very hard measure, that so able a man has taken near as many months, in taking pains to prompt as many enemies as his persuasions could possibly invite, to vent out the highest notes of their malice, and laying out search by them for, and collecting all the bad reports, or rather [to give them their genuine term] I may call them a confused Mass of the common Clashes of the Country, thereby to devise misconstructions of all the public actings, of both Parliaments and Committe●es, during the late troubles, and with strange and remote inferences to adduce all those to the Channel of my particular actings; he has taken, I say, [My Lord] as many months, as I have had days, to answer them, being an exceeding disadvantage. But My Lord, that's not all, I am likewise extremely troubled, that he labours in that Libel all along to draw an obscure vail of perpetual oblivion over all my good services; & specially my faithful & Loyal endeavours in restoring of His Sacred Majesty to the Crown of this His most ancient Kingdom of Scotland, and the exercise of His Majesty's Royal authority therein, with my cordial endeavours for His Majesty's restitution to the rest of His Dominions also, which His Majesty both knows, and has been pleased often to acknowledge it to have been good service; yea and many present in this honourable House knows, that I extended both my zeal and affection to the utmost of my power for His Majesty's service in that particular, which I willingly acknowledge nothing, my Lord, but my duty, whereunto I was tied both by natural, civil, and Christian Bands to my Sovereign, and specially such a King of whom I may say well [as I have often affirmed] That he is a King in whom the Lord has been pleased to take such pleasure, as to possess his Majesty with so many superlative degrees of excellency, that will certainly exalt His Majesties same both in our age, and to subsequent posterity, above all the Monarches in the world; so that my Lord, we may consequently discover a high demonstration of the Lords singular kindness & special providential care for us his Majesty's Subjects, in preserving such a rich blessing as His Sacred Majesty (in whom the happiness of these Nations is wrapped up) under the safe wings of his divine Protection, I may say, even when the extravagant malice of men would have Psal. 56. 2. swallowed him up. After my Lord had ended this discourse (being heard by all very attentively, without any interruptions) Thus the Lord Advocate spoke to my Lord Chancellor; My Lord, What can the Marquis of Argyle▪ say to the opposition at Sterling, in Anno 1648. The Marquis replied, That he sound my Lord Advocate endeavoured to bring him to debate the particulars (which he hoped should be cleared at another more convenient time) and waved answering the thing itself, but insisted thus; My Lord Chancellor, I have (informative only) hinted a little at the main things which I am often charged with, my memory cannot fully reach all, neither will time permit to circumstantiate these particulars, which I have only touched in the general; nor is it my purpose at present to fall on the debate of any of that Libel (not having yet consulted the Process) by reason these Advocates your Lordship was pleased to allow me have not yet all embraced, and the excuses of my ordinary Advocates (in whom I had confidence) being admitted as relevant. And their Gentlemen, that has been pleased (in obedience to your Lordship's command) to come here with me, not being much acquainted with matters of this weight, and not having unbraced till within these two or three days, so that they are strangers altogether to my case) I shall therefore my Lord humble desire, that a competent time may be allowed me, that I may prepare my defences, and I shall (God willing) abundantly clear every particular in that Lybel. And also my Lord, I humbly desire that these other Advocates▪ who were ordained by your Lordships to assist me (and after the honourable Lords of Articles had heard them, rejected their excuses) may be now reordained to consult and appear for m●. The marquis his Advocates entered a protestation, that what should happen to escape them in pleading (either by word or writ) for the life, honour, and estate of the said noble marquis, their Client might not thereafter be obtruded to them as Treasonable, whereupon they took instruments. The marquis assured my Lord Chancellor that he knew not of any such protestation to be presented, and that it flowed simply of themselves; Whereupon my Lord Chancellor desired the marquis and his Advocates to remove, till the House should consider both of my Lords desire, and the Advocate's protestation. The marquis and his Advocates being removed. The House (after some small debate) resolved, as to my Lord marquis desires, his Lordship should have till the 26 of February to give in his defences in writ, and ordained Mr. Andrew Ker to be one of his Advocates. As to the Advocate's protestation, the House resolved, That they could not be allowed to speak Treason either by word or writ but upon their peril, only allowed them in the general, as much as in such cases, as indulged to any. The marquis and his Advocates being called in, my Lord Chancellor intimate the foresaid resolutions of the House, both in reference to my Lord marquis; and to the Advocate's protestation, When my Lord Chancellor had done, the marquis spoke ●● followeth; My Lord Chancellor; THere is one thing that had almost escaped me, anent that opposition at Sterling, 1648. That my Lord Advocate was speaking of, That it may not stick with any of this honourable meeting, I shall ingeniously declare, That after the defeat at Preston, I was desired to come and meet with the Committee of Estates (meaning those who were in the then engagement) And being come with some of my Friends to Sterling, in fearing harm and suspecting nothing, I was invaded by Sir George Munro, where several of my Friends were killed, and myself hardly escaped, which is all that can be said I acted in Arms as many here knows. My Lord, Not that I am any ways diffident but I shall in due time clear every particular of that Lybil; Yet I am not a little troubled that some who have heard the Calumnies therein; may let them have such an impression (being asserted with such confidence) as to conceal a possibility, if not a probability of their being true; I shall therefore desire so much Charity from this honourable Meeting, That there be no hard thoughts entertained till I be fully heard. The marquis therefore with the joint concurrence of his Advocates, humbly desired, That the Bill (containing many pungent Reasons) for a precognition of his Process, given to the Honourable Lords of Articles, might be read and considered, in plain Parliament. To which my Lord Chancellor replied, That it had been formerly refused at the Articles, and that it would not be granted. So his Lordship was carried back to the Castle. Edinburgh. March 5. 1661. At the Parliament House. The marquis of Argyle being called in, gave in a Bill containing several weighty Reasons, desiring a continuation till the meeting of Parliament to morrow. His Lordship being removed, after long debate it was carried against him by two or three Votes; and his Lordship being called in, my Lord Chancellor told him it was refused, and ordered his Lordship to produce his Defences, whereupon he spoke as followeth; May it please your Grace MY Lord Chancellor, This business is of very great concernment to me, and not small in the preparative of it to the whole Nation; Yea it may concern many of your Lordships (who are sitting here) and your posterity;) And therefore I desire to have your Grace (my Lord Commissioner) and the remanent Members of this honourable meeting, your patience to hear me a few words without prejudice or misconstruction, which any thing I can say is often obnoxious to. I shall my Lord begin with the words of that Godly King, Jehosaphat that good King of Judah, (after he was come back in peace to Jerusalem) in his instructions to his Judges, he desires them to take heed what they do, for they judge not for men, but for the Lord, who is with them in the judgement. My Lord, I shall speak another word to many young men, who were either not born or so young that it is impossible they could know the beginning of these businesses, which are contained in the Lybel against me (being all that hath been done since the year, 1638.) so that they might have heard by report what was done, but not why, or upon what grounds, and what some have suffered, but not what they have deserved.— Therefore I desire your Lordship's charity, until all the particulars and several circumstances of every particular be heard, without which no man can judge rightly of any action. For as it is well observed by that incomparable Grotius, that Aristotle asserts, That there is more certainty in the Mathematics than morals, for as Grotius has it, the Mathematics separates forms from matters, as betwixt strait and crooked there is no midst, but in morals, even the least circumstances vary the matter, so that they are wont to have something betwixt them, with such Latitudes, that the access is near sometime to this, sometime to that extreme; So that betwixt that which ought to be done, and that which ought not to be done, is interposed, that which may be done, but is nearer now to this, then to the other extremity, or part, whence ambiguity often ariseth. The particular circumstances are so obvious to every understanding man, that I need only to mention them. Polybius my Lord makes much of his History Maxim. 1 depend upon these three, Concilia, Causa, et Counsels, Causes, Events. Time, Place. Persons. Eventus; and there are likewise other three, Tempus, Locus, et Personae, The change whereof makes that which is lawful duty, unlawful, and on the contrary, so likewise in speaking or repeating words, the adding or paring from them, will quite alter the sense and meaning; as also in writing, the placing of the Commas or Points, will change the sentence to a quite other purpose than it was intended. There is my Lord, another Maxim, which Maxim. 2 I do not mention as always undeniable; but when there is no lawful Magistrate exercising power and authority in a Nation, but an invading Usurper in possession, esteeming former Laws, Crimes; In such a case I say the safety of the people is the Supreme Law. There is another Maxim, which is not Maxim 3 questioned by any, and it is, Necessity has no Law; For even the Moral Law of God yields to it, and Christ's Disciples in David's example: For this Seneca says, Necessity (the defence of humane imbecility) breaks every Law; Nam necessitas Legum irridet vincula, Necessity scorns the fetters of Laws: So he that answers that Libel, The long Parliament revived, speaking of this last Parliament (which his Majesty calls a blessed healing Parliament,) he says, the necessity to have it, may dispense with some formalities: so Ravenella (so much esteemed in matters of Scripture) after he has divided necessity in absolute and hypothetick, makes that of submitting to Powers of absolute necessity: Josephus also (my Lord) that famous Historian, when he mentioned David's speech to his children, after he had made Solomon (being but younger brother) King, he exhorts them to unity among themselves, and submission to him and his authority; for if it should please God to bring a foreign sword amongst you, you must submit to them, much more than to him who is your brother, and one of your own Nation. There is another Maxim, (my Lord) Inter Maxim 4 arma silent leges; and it is well known, that divers retours and other things in Scotland, were done in consideration of times of Peace, and times of War. Another Maxim, Ex duobus malis minimum Maxim 5 eligendum est cum unum eorum negunt evitari, says Aristotle, Cicero, and Quintilian, cum diversa mala inter se comparantur minimum eorum locum boni occupat. There is another Maxim, No man's Intention Maxim 6 must be judged by the event of any Action, there being oftentimes so wide a difference betwixt the condition of a Work, and the intention of the Worker. I shall only add another Maxim, It cannot Maxim 7 be esteemed Virtue, to abstain from Vice; but where it is in our power to commit the Vice, and we meet with a Temptation. As I have named shortly some few Maxims, (my Lord) I shall humbly tender some weighty Considerations to your Lordship's thoughts: The first Consideration is, That there is different Consider. 1 considerations to be had of subject's actions when their lawful Magistrate is in the exercise of his Authority by himself, or others lawfully constituted by him, and when there is no King in Israel. The second is, That there is a different Consider. 2 Consideration betwixt the subject's actions, when the lawful Magistrate is in the Nation, and when he is put from it, and so forced to leave the people to the prevalent power of a Foreign Sword, and the Invader in possession of Authority. Thirdly, That there is a difference betwixt Consider. 3 subject's actions, even with the Invading Usurper, ●fter the Representatives of a Nation have submitted to, and accepted of their Authority and Government, and they in possession several years, the Nation acknowledging their Constitutions, and all the Lawyers pressing and pleading them as Laws. Fourthly, The actions of Subjects are to Consider. 4 be considered, when assisting the lawful Magistrate to their power, and never submitting to the invading Usurper until they were prisoners, and could do no better. That there is likewise consideration to be had of the actions of such subjects, being still Consider. 5 prisoners upon demand under Articles to that purpose. Sixtly, It is to be considered likewise of Consider. 6 the actions of such a subject, who was particularly noticed and persecuted by the Invaders, for his affection to the lawful Magistrate and his Government. Seventhly, It is to be considered, That there Consider. 7 is a great difference betwixt actions done ad lucrum captandum, and those done ad damnum evitandum; that is to say, actions to procure benefit, and actions to shun detriment. Eightly, It is to be considered, That there Consider. 8 hath ever been a favourable consideration had, by any Prince, of any person coming voluntarily, and casting himself upon a Prince's clemency. Ninthly, It is to be considered, That his Consider. 9 Majesty himself hath a gracious natural inclination unto Clemency and Mercy, which hath been so abundantly manifested to his subjects in England, even to all (except to some of the immediate murderers of his Royal Father) that it cannot be doubted, that the same will be wanting to his people in Scotland, who suffered by them (whom his Majesty hath graciously pardoned) even for their dutiful service, and affection to his Majesty. Therefore without thought of any prejudice to the Parliament, or this Honourable Meeting, I must make use of my Lord Chancellor of England his words, though in another case, saying, There cannot too much evil befall those who do the best they can to corrupt his Majesty's good Nature, and to extinguish his Clemency: For his Majesty's self declared his Natural Inclination to Clemency, in his Speech to both his Houses of Parliament in England, whom he hath (with all his people) conjured, desired, and commanded, to abolish all notes of Discord, Separations, and Difference of Parties, and to lay aside all other animosities, and the memory of past provocations, and to return to a perfect Unity amongst themselves under his Majesty's Protection; which is hoped all your Lordships will concur in, having so worthy a pattern to follow: And as these are his Majesty's inclinations expressed, so it is suitable to the Arms he bears as King of Scotland, which is the Lion, whose Motto is known to all, — Nobilis est ira Leo●is Parcere subjectis, & debellare superbos. Which is to say, To vanquish and subdue the proud, and spare such as are submissive; of the which number I am one: and for that effect, in all humility, present this humble Submission to his Majesty, and your Grace, My Lord Commissioner in his Majesty's Name. To my Lord Commissioner His Grace, and High Court of Parliament. March 5. 1661. FORASMUCH as I Archbald Marquis of Argyle, am accused of Treason at the instance of His Majesty's Advocate before the High Court of Parliament; and being altogether unwilling to appear any way in opposition to his Sacred Majesty; considering also that this is the first Parliament called by his Majesty after his happy Return to his Kingdom and Government, for Healing and Repairing the distempers and breaches made by the late and long Troubles; I have therefore resolved that their Consultations and Debates about the great Affairs and Concernment of his Majesty and this Kingdom shall have no interruption upon occasion of any Process against me; I will not represent the fatality and contagion of these times, wherein I, with many others in these three Kingdoms have been involved, which have produced many sad consequences and effects, far contrary to our intentions. Nor will I insist upon the defence of our actings in this Kingdom before the prevailing of the late Usurpers, which (if examined according to the strictest interpretation, and severest censure of Law) may be esteemed a Trespass of his Majesty's Royal Commands, and a Transgression of the Law; But (notwithstanding thereof) are by his Majesty's clemency covered with the vail of Oblivion by divers Acts of Parliament, and others, to that purpose, for the safety and security of his Majesty's subjects: And that my actings since, and any compliance with so prevalent a Power, (which had wholly subdued this, and all his Majesties other Dominions, and was universally acknowledged) may be looked upon as acts of mere necessity, which hath no law; and it is known that during that time I had no favour from these Usurpers. It was inconsistent with, and repugnant to my Interest, and cannot be thought (unless I had been demented and void of reason) that I should have had freedom or affection to be for them, who being conspired enemies to Monarchy, could never be expected to be friend or tolerate Nobility. And whereas that most horrid and abominable crime of taking away the precious life of the late King of ever glorious memory, is most maliciously and falsely charged upon me; If I had the least accession to that most vile and heinous crime, I would esteem myself unworthy to live, and that all highest punishments should be inflicted upon me; But my Witness is in heaven, and my Record on high, that no such wicked or disloyal thought ever entered in my heart. But choosing to shun all debate, rather than to use any words or arguments to reason with his Majesty, whom though I were righteous, yet would I not answer, but would make my supplication to my Judge. And therefore (without any excuse or vindication) I do in all humility throw myself down at his Majesty's feet (and before his Grace his Majesty's Commissioner, and the honourable Estates of Parliament) & do submit and betake myself to his Majesty's mercy; And though it be the great unhappiness of these times (the distempers and failings of these Kingdoms being so epidemic and universal) that his Majesty should have had so much occasion and subject of his Royal Clemency; yet it is our great happiness, and his Majesty's high honour, that he has expressed and given so ample testimony thereof, even to those who did invade his Majesty and this Nation, for no other cause then for their faithful and loyal adherence to his Majesty, and his just Royal Interests; which renders his Majesty's goodness incomparable, and without parallel, and gives me confidence, that his Grace his Majesty's Commissioner, and the Honourable Parliament, of their own goodness, and in imitation of so great and excellent a pattern, will compassionate my condition; and seeing it is a special part of his Majesty's Sovereignty and Royal Prerogative, to dispense with the severity of the Laws, and that it is a part of the just Liberty and Privilege of the Subjects, That (in cases of greatest extremity and danger) they may have recourse to his Majesty as to a Sanctuary and Refuge. It is in all humility supplicated, That the Lord Commissioners Grace, and the Honourable Parliament, would be pleased favourably to represent my case to his Majesty, and that the door of his Royal mercy and bounty, which is so large and patent to many, may not be shut upon one, whose Ancestors for many ages (without the least stain) have had the honour (by many signal proofs of their loyalty) to be reputed serviceable to his Majesty's Royal Progenitors in the defence of the Crown, and this his ancient Kingdom; and if his Majesty shall deign to hold out the golden Sceptre of his Clemency, as an indelible character of his Majesty's Royal favour, it will lay a perpetual obligation of all possible gratitude upon me and my posterity, and will ever engage and devote us entirely to his Majesty's service: And the Intercession of this honourable Parliament on my behalf to his Gracious Majesty, will be a real evidence of their moderation, and they shall be truly called a Healing Parliament; and God whose Mercy is above all his works, shall have the honour and glory which is due to his great Name, when mercy triumphs over Justice. THe foresaid Submission being read, the Lords of Articles would give him no present Answer; But resolved to Report the same to the Parliament the morrow. Edinburgh. Martii 6. 1661. At the Parliament. MY Lord Chancellor having Reported what had been done the former day before the Lords of Articles anent the Marquis of Argyle ●is Process, presented his Submission, which was immediately read; and after a long debate the first Question was stated; If it was satisfactory, or should be accepted or not. The second Question was, Whether they should proceed presently in his Process, without regard to his Submission or not? Both which were carried in the Negative against him. Then he was brought to the Bar, and the Lord Chancellor told him, That his Submission was rejected, and that notwithstanding thereof, the Parliament commanded him to give in his Defences. He Replied, That his case was very hard to be debarred from that which was his just Privilege, and of all Subjects, in such extremities to refuge themselves at his Majesty's Mercy and Clemency; and that as it was the undeniable Privilege of the Subject, so also it was a special Prerogative of his Majesty, and the grandeur of it consisted much in the eminency of the subject, whom his Majesty should graciously be pleased to extend his mercy unto: And besides many other strong persuasions that encouraged his Submission, his Majesties own Proclamation (which he acquiesces in) wherein his Majesty is graciously-pleased to Declare, That his just Interest, and Royal Prerogative being first asserted, and trial only taken of his Subjects carriages, than he is most willing to pass an Act of Indemnity to secure them. And the like being already done in our neighbouring Nation, and his Majesty having performed his Royal promise there already, he desired that their study might be to imitate his Royal pattern; considering, that as it was a practice most agreeable to his Majesty's clement Inclination, so also, that as Solomon that wise King said, That the King's Throne is established by Righteousness and Mercy: He entreated therefore their Lordships seriously to consider his condition, and not to single him out, and aim at his ruin, and not only his, but also (he feared) both his Family and Name, their ruins also. As for giving in his Defences presently, he told, That the confidence and firm hope he had that his Humble Submission should have been accepted, and so cut off totally all further trouble either to their Lordships or himself, made him the more secure and slack, not resolving to lean to them, or any way (as he had expressed in his Submission) make use of them, though he were altogether innocent: and if he were necessitated to make use of his Defences (as he declared he was most unwilling to do,) it should be simply in obedience to their Lordship's commands, and no otherwise. Not having fully ended, The Chancellor told him, If his Lordship had them not in readiness at that time, to have them ready to give in to the Lords of Articles the morrow. So he was returned to the Castle. March 7. 1661. At the Lords of Articles. BEing called before the Articles to give in his Defences, he declared that he had seen their Lordship's Order, That he might forbear his coming, if he would produce his Defences; therefore he told their Lordships ingeniously, that if he had them in readiness, he would neither have troubled their Lordships nor himself; for having a Petition ready to desire a delay, he thought it rather his duty to come and propose it himself, hoping their Lordships would consider, that his presenting his Defences either lame and wanting something, or blotted, so as they could not be well read, was a very great prejudice to him; but a delay of a few days, was no prejudice at all to any thing my Lord Advocate could say; and therefore hoped their Lordships would not refuse him some competent time, whereby he might have them in readiness. Upon the which he was removed, and after some debate being called in again, my Lord Chancellor told his Lordship in one of the Articles, That he was ordered to give in his Defences before Monday at ten a clock to my Lord Advocate, otherwise the Lords of Articles would take the whole business to their consideration, without regard to any thing he could say. The Advocate told his Lordship, that he must give in his whole Defences: To which he answered, That that was a new form to give in peremptory Defences before the discussing of relievances; whereupon Sir John Bychmore did rise up, and told his Lordship, That he was commanded to inform him, that there was a different way betwixt a Process in Writ, and the ordinary way before the Session, or chief Justice. To which his Lordship answered, That he was very ill yoked with so able men; but he must tell them, that he had once the honour to sit as Chief Justice in this City, and he knew the Process before them was in Writ, and yet the relievance was always first answered, before any peremptor proponed, for relievance is most to be considered in criminals. Sr. John Therester said, and so did the Advocate, That it was his Lordship's advantage to give in as strongly his Defences as he could, otherwise the Advocate might refer the whole business to the Judge, and make no other answer. His Lordship replied, That he would do in that by advice of his Lawyers, and hoped any Order of their Lordships at present, was without prejudice to his giving in more Defences afterwards, since he was so strainted with time, and commanded to give in what was ready: His Lordship likewise added, if their Lordships and the Parliament had been pleased to grant his desire of a Praeeognition, which was agreeable (as he humbly conceived) both to Law and Practice, and his Majesty's Proclamation, (which he acquiesced in) it could not but have been the readiest way for trying his carriage during the late troubles; where now of necessity he must in the Process (which he hopes will not be refused) crave one way for exculpation in many particulars; for he both was resolved, and is resolved to deal very ingeniously, as to matter of Fact; and if that had been first tried (which he was most desirous of, both from the Committee, and since from the Parliament) he is hopeful there would not remain so much prejudice against him in the most part of things of greatest concernment in his Libel; and for his own part, he desired nothing more than the truth to have place, do with his person what they pleased; for by the course of Nature he could not expect a long time to live, and he should not think his life ill bestowed, to be sacrificed for all that had been done in these Nations, if that were all. Thereafter he was returned to the Castle.