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A85521 The grand indictment of high-treason. Exhibited aginst the Marquess of Argyle, by His Maiesties Advocate. To the Parliament of Scotland. With the Marquesses answers. And the proceedings thereupon. Argyll, Archibald Campbell, Marquis of, 1598-1661. 1661 (1661) Wing G1498; Thomason E1087_1; Thomason E1087_2; ESTC R208330 18,827 40

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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 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 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 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 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
Petitioner in prudency and policy will not be found expedient to be tossed in publick 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 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 Vpon 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 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 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 will be so favourable and not as the inconsiderate multitude as a learned and able man writes says he As Sir Walter Raleighs