Relation of the Sufferings of Ministers in Scotland Since 1660, Section 4
SECTION IIII.
The suffering of the Noble Marquise of Argile who was executed the 27 Day of May 1661. examined by law.
WHile the Parliament is in hand with reverend Mr Guthri… who had been a prisoner since the 23 day of August. 1660 (of whom mention shall be made in the next section) They have also the worthy & renowned Marguese of Argile among their hands; who, though he had a maine hand in bringing home the king & closeing the second treaty at Breda yet, while he is going up to London after the kings late returne from exile, to congratulat his Maj. returne, is made prisoner in the Tour of London & thereafter is sent down to Scotland, & indited of heigh treason, before the Parl. & at length is beheaded & his head is stuck up upon the tolbooth of Edenburgh. Questionlesse strangers will think it behoved to be some great matter, for which the life of such an eminent & famous nobleman, who had been so renowned at home & abroad, for his faithfulnesse and constancy in carrying on the work & cause of God, was taken) But the very truth is, what ever was petended, the true cause was, that which made him so famous; even his zeal & activity for the work of God in his generation; for what ever else they had to lay to his charge, if he had either opposed the work of God, or done as litle for it, as many other, of the Nobles, his life would not have been taken now, more then the life of others, it is true other things were sought to colour this bussinesse, and failing one, another, & failing that, a third, but in end ther is a comprehensive generall set downe as the ground of the sentence, to this purpose. That he had been an enemy to the king & his interest these 23 yeers or more by past, which in effect is as much as to say; he had been an active friend for the interest of Christ. But because generalls cannot well be proved they condescended on severall particular actings of his in carrying on, in his place & station, the work of reformation, & when all these failed, they fix upon his complyance with the Englishes (after they had subdued the land in battell, and forced the king out of his dominions, had garrisoned the whole land, & used it almost as a conquest) by sitting in their parliament when chosen by some shire, and when the rest of the shires of the land had sent their commissioners thither. This his complyance with them, at that time, by sitting in their judicatories, and there concurring with his advice & counsel for the good of the land, that was now under their feet, is the only particular ground upon which his sentence is founded, and the particular speciall cause pretended for which he was condemned to lose his head as a traitour, & to have his head put up on t…e top of the tolbooth as an eminent traitour. A sentence which question lesse, at first veiu, may make all men of understanding astonished, & to wonder, how ever it could have entered into the minde of the parliament of Scotland, to sentence unto death, such a peer of the land, such an usefull member of the Kingdome, & an ornament; upon such a ground and for such a cause. But if these foure particulars be considered the matter will yet appear more wonderfull.
1. The matter of complyance with the Englishes at that time, was so farr from being accounted treasonable that severall of the lawyers (among whom was one Sr Iohn Fletcher who was now advanced to be his Maj. advocat, & did accuse this worthy Nobleman of treason) did swear & subscribe an oath to be faithfull unto the governement, as it was then established without King & house of Lords. Now if there had been treason really in this deed, either by the civill law, or by the municipall lawes of the land, would not the lawyers have perceived it whose dayly work & study the lawes are?
2. If this had been the deed of this nobleman alone, the mater had been lesse to have been wondered at, but it being such a deed whereof few of the nobles of Scotland were altogether free: yea whereof many of the members of Parliament his judges were guilty, the matter is beyond a parallel. It is hard to make secios criminis sit as judges & condemne the accused: reason would require that the table should be purged. Is it not strange for a Parliament to condemne one for such a fault for which many of their own members might with as much justice & equity be condemned? and is it not strange how they being by their own confession traitours in the heighest degree, could fitt, & judge others? It is true it will be replyed. That his Maj. might pardon whom he pleased, But then it will aboundantly appear that not this, But something else was the cause of this worthy nobleman's death. Whatever may be said in poynt of law, yet it will be a disput in poynt of conscience. If kings may pardon such crimes as do deserve death by the law of God, or if such crimes which kings may pardon, of their own accord, & according to their own good pleasure, do before the Lord, deserve death.
3. If the Parliament had thought this particular worthy to bear so much stresse, why would they have spent so much of their time in searching for other grounds to goe upon … & why did they not make use of this at the first? but it is like this had never once been mentioned if they had been able to fasten treason upon any other of his actions; & this makes it so much the more to be wondered at, that they would condemne such a noble man for such a particular which they would never once hav… named, if they could have done their intended work, otherwayes.
4. Is it not strange that of all the complyers of Scotland there was not one, except this nobleman, impannelled upon this account, let be, put to death; yea is it not strange that those noble Men were never once questioned who being desired by Generall Monck when he was entering England with his army to rancounter Lambert, did abjure king Charles & his interest; & this Nobleman must die; Yea is it not yet more strange that one William Purves, who by complying had occasioned almost ruine to many noblemen, brughs and gentlem…n, should have been absolved by act of Parliament (as might be cleared if there were a table of the unprinted acts set down after their acts, as is done alwayes, in other Parliaments) and yet this nobleman must be sentenced to death, for complying for the good of the countrey.
But to speak unto the bussinesse in poynr of law let these foure or five Particular quaere's be considered and then any shall be able to perceive the iniquity of this sentence.
1. By what act of Parliament is such a deed as this, condemned as treasonable? By what municipall law, can any member of the Kingdome be challenged, upon the account of treason, for treating with a conquerour for life & liberty, & for sitting in his councells, for the good of the countrey, after that he with the rest of the body of the land, had foughten in the defence of King, & countrey till no more could be done, after the whole land had been overcome at severall battels, and wholly overrun; & had acted nothing, for the advantage of the enemy & disadvantage of the king & countrey before the victory obtained; but in all poynts had carryed as became a loyall subject contributing all the help by armes & counsell, which was required: what act of parliament declareth such a deed as this treasonable, & such a subject to deserve death as a traitour?
2. Was there ever such a Practique in Scotland since ever there was a king in it? Severall times was the kingdome of Scotland overrun by the kingdome of England particularly in the dayes of Baliol, & at that time King Edward caused the Nobles of Scotland swear all aidgeance unto him. But when Bruce came to be King was there any of the Nobles questioned for treason upon that account? And seing ther can no instance be produced out of the History of Scotland since ever it was a Kingdome, that any subject, noble Man, or other, was accused of high treason, for such a cause, surely this noble Mans case was unparalleled.
3. Is not this strange considering what the principle of Royallists is? They say that [Conquest giveth a just tittle to a crown] So sayeth D. Ferne, A…nisaeus, & Maxwell in his Sacro Sancta Regum Majestas, Cap. 17. And by this principle Cromwell was the lawfull supreme Governour of the Kingdome of Scotland, and had just tittle & right to the Crowne thereof, having now conquered the same; & if this principle of theirs be true (which is much questioned by their opposites) no complyance with him, could by any law in the World, be treason against any Prince whatsomever, for obedience unto, & concurrence with, a lawful supreme Magistrat can be treason against no man living: How then could this noble Man be challenged upon the account of treason for complyance? Let all the Royalists answer this, without contradicting themselves, if they can.
4. Is there any lawyer who can produce such a definition of treason against a Prince, or a supreme Magistrat, out of the civil law, as will condemne the deed of this worthy noble Man, & make complyance with a conquerour for the good & saifty of the countrey after all meanes of defence are broken & lost, an act of treason? And since the civil law can condemne no such deed as treasonable, the sentence given out against his noble Man, must be without all warrand of law.
5. Are there not many countreyes, Kingdomes & cities that have been overrun by their enemies, & have had their own lawfull Governours put from them; & so have been forced, to live under the feet of strangers; & hath it not been usuall for them to comply with such as had the present power in their hand for their own saifty, & the good of the place? And was it ever yet heard that such were accused & condemned of …reason against their own lawful Governours, thrust from them sore against their wills, for any such complyance? And is it not wonderful that this eminent noble Man should become a preparative unto all the World?
So then, to put a close to this, let an appeal be made to all Governours of Commonwealths, Statesmen, Lawyers, Casuists, Politicians, Canonists & Quodlib…tists, yea & Royalists, if they will speak consonantly to their own principles & their answer & interloquutour be had in point of law unto this question. Whether or not, when a land is overcome in battel, once, againe, a thrid time, & a fourth time, so a… they are forced to lie under the feet of the conquerour, and expect his mercy, their own supreme Magistrat is forced to flee away, for his life, without all hope of returning; & so they left without all goverment but what they have from the conquerour; & when it might have been expected that he would have ruled them, & disposed of them [jure conquestus, as conquered] according to his own pleasure, yet he did admit such as they thought sit to choise, to sit in his supreme Councel for giving their advice for regulating the affaires of that Kingdom, & common wealth, which is now conquered & subdued; Can it be treason in any, when chosen by the countrey, to sit in these Councells, & advise what they think best for the good of the countrey? Or can they, or any of them, be challenged, or accused, & condemned, as guilty of heigh treason, when providence bringeth back the prince after ten yeers absence, for acting so under the conquerour, for the good of the land, to prevent its utter ruine, & destruction? And if the answer shall (as certainly it will) be negative, then it is beyond all question that the sentence & execution of this worthy noble Man, upon this sole account, shall be matter of astonishment to all that hear of it & know the cause thereof.
Thus a great prince falleth, & within five dayes therafter, a great prophet falleth as shall be shown in the next section.