THE Marquess 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 Mar­quess of Argyle.

Humbly sheweth,

THAT for as much as the Petiti­oner can with a safe conscience affirm, and solemnly protest, that what-ever his actings or accessi­on has been in relation to pub­lick business since the beginning of the troubles, till his Majesties 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 al­waies to his uttermost for setling the differen­ces betwixt their Majesties and the people: And as to any actings before the year 1641. [Page 60] or from the said year, till his Majesties 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 Indempnity 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 Majesties 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 Majesties prejudice; That albeit upon mis-information (as the Petitioner humbly conceives) his act­ings and complyance both in their designs and quality have been mis-represented, 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 rayes of his Royal Grace and Favour, and have strained his gracious Inclination beyond its natural [Page 61] disposition of clemency exprest to his other subjects, to commit the Petitioners person, and give way to the tryal of his carriage and act­ings; yet so firmly rooted is the Petitioners perswasion of his Majesties Justice and Cle­mency, and that He intends the reclaiming, and not the ruine of the meanest of his subjects, who retein 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 past 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 publick joynt way, without any sini­strous or treasonable designe 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 Majesties grace and favour is strictly tyed to no other rule but his Royal Will and pleasure, yet his Majesties so innate, [Page 60] essential and inseperable a quality of his Roy­al nature, that the Petitioner is perswaded in all humane certainty, that the leaving and committing to his Parliament (as is exprest in his Majesties 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 ought to be so acce­pted of all, as an undoubted evidence of his Majesties affection to, and confidence in his people; so no other tryal or judging is therein meaned, but a fair, just, legal, and usual tryal, 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 tryal 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 [Page 56] two several ditays wherein there be many crimes grosly false, with all the aspersions and aggravations imaginable laid to his charge, importing no less then the loss of his life, fame, and estate, and the ruine of him and his poste­rity, which he is confident is not intended by his Majesty; and that by the law and practise 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 tryal, at his desire precognition was taken in all bu­siness relating thereto, which the Petitioner in all humility conceives ought 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 Majesties subjects of all quality in all time coming, but also, in regard it has been so meaned and in­tended by his Majesties 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 indempnity 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 publick, or touched [Page 57] 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 Majesties 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.

Ʋpon 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, &c.

Edinburgh, Febr. 12. 1660.

This Petition being read, was refused.

Edinburgh.
At the Parliament House, Febr. 13. 1661.

THe Marquess of Argyle (being accused of High Trea­son, at the instance of Sir John Flo [...]cher, his Majesties 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 it self▪ 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 necess [...]ty 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 Marquesse (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 Chancellour, 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) [Page 32] 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 tyrannizing 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 Majesties 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 Majesties 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 Majesties carriage; as those most gracious Letters, Declarations, and that free and most ample Act of Indem­pnity, granted to all his Majesties Subjects, (excepting some of the immediate Murderers of his Royal Father) to eradicate any timorous Jealousies of his Majestie [...] 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 finde, [Page 33] prove one effectual cement to concilliate the most anti­monarchick and disaffected persons (excepting some of those barbarous phanaticks) in all his Majesties Dominions, most willingly to the subjection of his Majesties Royal Scepter; and with a perfect hatred abominate all disloyal practises 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 joyntly (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 sympathize 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; Paul's was he­resie, Acts 24. 14, 15, 16. mine of another nature; but I must say with him, That the things they alledge 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 Majesties 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 [Page 34] 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 alwaies 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 vertue 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 H [...]story. are ill ballances to weigh the vertues of Princes and great men, so neither should theirs, nor other mens ble­mishes be looked upon as they are drawn with the de­formed pencil of envie or rancour; which do alwaies a [...] ­tend eminency, whether in place or vertue. I shall not (my Lord) be so presumptuous as to arrogate any thing to my self 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 my self) 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 labour'd in such times 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 falshood and miscenstruction of them palpably appear.

My Lord, before I mention any thing in particular, I must shew 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 [Page 35] to explain the difference, as Plato and Aristotle does very well; calling injuries such things as are done purposely with a wicked minde; and misfortunes, such things as are done with a good minde, 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 my self; were not the contrary so im­pudently affirmed. There are five main calumnies that I desire (my Lord) to satisfie 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 unparalleld murder of his late Royal Majesty of eter­nally blessed memory; I do here publiquely declare, that I neither desire, nor deserve the least countenance or fa­vour, if I was either accessory 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 my self, to the intent we might both vindicate our selves, and endeavour a discovery, if any amongst us had any accession to that horrid and villanous 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 [Page 36] accompt, 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; onely 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 Majesties person; all that ever I heard of, was in publique [Page 37] Parliament 1647. The Commissioners papers at London, and Committee books at Newcastle will clear this fully.

The second calumny is anent the inhumane 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 complement 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, then 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 Marquesse 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 accompted for any thing I could receive: and to manifest yet further, that the bur­den of that Family was not from any extrinsick cause to themselves, I have under the old Marquesse his own hand, and his Sons, George Lord Gordone (who was a very wor­thy young Nobleman,) the just Inventory of their debts, [Page 38] 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 Marquesse 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 past 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 my self, 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, (Overtons 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 prest to when I was violently in their hands, may be instructed by the paper it self (written by Deans mans own [Page 39] hand yet extant to shew) 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 controuled their Prisoner upon demand.

I shall (my Lord) add one Reason more to clear this (besides many other weighty publick 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 Superiours in Scotland. It may be rationally presumed, that I had been a very sencelesse fool, if ever I had been for promoting such an Authority or Interest over me, as Levelled all, and was so totally destructive to all that dif­ferenced my self and other Noblemen, from their own Vassals, (which many sayes I was too earnest in) Yea it being absurdly derog [...]tive 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 Majesties 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 privi­ledges thereof against all opposers) I did [My Lord] ever (even when the English were at the intollerable height of Usurpation) declare my true abhorrence to a Common-wealth Government; which was well known to them all: I was not indeed [My Lord] very dissatisfied when there was rumors spread abroad of Cromwells being made a King, (as some here present can witnesse) for I told them it was a most probable way for His Majesty; and the more it were incouraged, would tend the more to Cromwel, and their deformed Common-wealths Govern­ment ruine, and promote His Majesties just interest the [Page 40] 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 perswasions 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 Masse of the common Clashes of the Countrey, thereby to devise mis constructions of all the publick 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 dayes, to an­swer them, being an exceeding disadvantage. But My Lord, that's not all, I am likewise extreamly 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 indeavours in restoring of His Sacred Majesty to the Crown of this His most ancient Kingdome of Scotland, and the exercise of His Majesties Royal au­thority therein, with my cordial indeavours for His Maje­sties 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 Majesties service in that particular, which I willingly acknowledge nothing, my Lord, but my duty, whereunto I was tyed both by natural, civil, and Christian Bands to my Soveraign, 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 possesse his Majesty with so many superlative degrees [Page 41] of excellency, that will certainly exalt His Majesties same both in our age, and to subsequent posterity, above all the Monarchs in the world; so that my Lord, we may conse­quently discover a high demonstration of the Lords singu­lar kindnes & special providential care for us his Majesties Subjects, in preserving such a rich blessing as His Sacred Majesty (in whom the happinesse of these Nations is wrapt 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 Chancellour; My Lord, What can the Marquess of Argyle▪ say to the oppo­sition at Sterling, in Anno 1648. The Marquess replyed, That he sound my Lord Advocate indeavoured to bring him to debate the particulars (which he hoped should be cl [...]ared at another more convenient time) and waved an­swering the thing it self, but insisted thus; My Lord Chancellour, 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 Lordships 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 dayes, so that they are strangers altogether to my case) I [Page 42] shall therefore my Lord humble desire, that a competen [...] time may be allowed me, that I may prepare my defen­ces, and I shal (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 Marquesse his Advocates entred 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 Marquesse, their Client might not there­after be obtruded to them as Treasonable, whereupon they took instruments.

The Marquesse 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 Marquesse and his Advocates to remove, till the House should consider both of my Lords desire, and the Advocates protestation.

The Marquesse and his Advocates being removed. The House (after some small debate) resolved, as to my Lord Marquesse 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 Advocates protestation, the House resolved, That they could not be allowed to speak Treason either by word or writ but upon their perril, only allowed them in the general, as much as in such cases, as indulged to any. The Marquesse and his Advocates being called in, my Lord Chancellor intimate the foresaid resolutions of [Page 43] the House, both in reference to my Lord Marquesse; and to the Advocates protestation,

When my Lord Chancellor had done, the Marquesse 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 severall of my Friends were killed, and my selfe hardly escaped, which is all that can be said I acted in Arms as many here knows.

My Lord, Not that I am any wayes diffident but I shall in due time cleare 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 conceale a possibility, if not a probabillity 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 Marquesse therefore with the joynt 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 replyed, 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 Marquesse 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 businesse 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;) [Page 46] 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 Lordships charity, untill 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 Mathematicks then morals, for as Grotius has it, the Mathematicks separates forms from matters, as betwixt straight and [Page 47] 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 neer sometime to this, sometime to that extream; 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 extreamity, 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, unlawfull, and on the contrary, so likewise in speaking or repeating words, the adding or paring from them, will quite alter the sence and meaning; as also in writing, the placing of the Comma's or Points, will change the sen­tence to a quite other purpose then it was in­tended.

There is my Lord, another Maxim, which Maxim. 2 I do not mention as alwayes 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 Supream 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 forreign sword amongst you, you must submit to them, much more then 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 [Page 49] eligendum est cum unum eorum negunt evitari, sayes 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 Lordships thoughts:

The first Consideration is, That there is dif­ferent Consider. 1 considerations to be had of subjects 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 subjects 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 Forreign Sword, and the Invader in possession of Authority.

Thirdly, That there is a difference betwixt Consider. 3 subjects actions, even with the Invading U­surper, [...]fter the Representatives of a Nation [Page 50] 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 Prin­ces clemency.

Ninthly, It is to be considered, That his Consider. 9 Majesty himself hath a gracious natural in­clination unto Clemency and Mercy, which [Page 51] hath been so abundantly manifested to his subjects in England, even to all (except to some of the immediate murtherers 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 befal those who do the best they can to corrupt his Majesties good Nature, and to extinguish his Clemency: For his Majesties 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 Ʋnity amongst them­selves under his Majesties Protection; which is hoped all your Lordships will concur in, having so worthy a pattern to follow: And as these are his Majesties inclinations exprest, so it is sutable to the Armes he bears as King of Scotland, which is the Lyon, whose Motto is known to all,

[Page 52]
—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 Majesties Name.

To my Lord Commissioner His Grace, and High Court of Parliament.

March 5. 1661.

FORASMUCH as I Archbald Marquess of Argyle, am accused of Treason at the instance of His Majesties 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 Majesties Royal Commands, and a Transgression of the Law; But (notwithstanding thereof) are by his Majesties clemency covered with the vail of Oblivion by divers Acts of Parliament, and others, to that purpose, for the safety and security of his Majesties 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 [Page 54] looked upon as acts of meer 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 falsly char­ged upon me; If I had the least accession to that most vile and hainous crime, I would esteem my self 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 chusing to shun all debate, rather then 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 my self down at his Majesties feet (and before his Grace his Majesties Commissioner, and the honourable Estates of Parliament) & do submit and be­take my self to his Majesties mercy; And though it be the great unhappiness of these times (the distempers and failings of these Kingdoms being so epidemick 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 Majesties high honour, that he has ex­prest 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 Majesties goodness incomparable, and without parallel, and gives me confidence, that his Grace his Majesties Com­missioner, [Page 55] 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 Majesties Soveraignty and Royal Prero­gative, to dispense with the severity of the Laws, and that it is a part of the just Liberty and Priviledge 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 Majesties Royal Pro­genitors in the defence of the Crown, and this his ancient Kingdom; and if his Majesty shall deigne to hold out the golden Scepter of his Clemency, as an indelible character of his Majesties 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 Maje­sties 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 Marquess 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 Replyed, That his case was very hard to be debarred from that which was his just Priviledge, and of all Subjects, in such extremities to refuge themselves at his Majesties Mercy and Cle­mency; and that as it was the undeniable Priviledge of the Subject, so also it was a spe­cial Prerogative of his Majesty, and the gran­deur [Page 58] 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 perswasions 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 tryal on­ly taken of his Subjects carriages, then he is most willing to pass an Act of Indempnity 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 practise most agreeable to his Ma­jesties 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 confider his condition, and not to single him out, and aim at his ruine, and not only his, but also (he feared) both his Family and Name, their ruines 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 [Page 59] had exprest 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 Lordships 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 Lordships 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 somthing, or blot­ted, so as they could not be well read, was a very great prejudice to him; but a delay of a few dayes, 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 alwaies 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 Lordships 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 replyed, 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 [Page 62] and Practice, and his Majesties 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 tryed (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 then 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.

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