[13]. These had been seized and sent to London by the English during the civil war, and, upon the Restoration, were ordered to be returned to Scotland; but, as it was supposed the original Covenant which Charles had signed was among them, they were detained on purpose to search for it, in order to destroy it, till late in the season, when the weather became tempestuous, and the vessel that carried them was lost.
His activity in the cause of religion, and the great power he had long enjoyed, had created him many enemies, and gave rise to many calumnies, which made even his friends dread the investigation. But the most painful endeavours could establish nothing against him, except his compelled submission to the English, after every county in Scotland had acknowledged their superiority. His indictment consisted of fourteen distinct charges, narrating almost all the public acts of the nation in which he had had any share, since his first joining the covenanters, till the final protectorate of Richard Cromwell, and attributing to him as treasonable acts, his concurrence with the different parliaments, or his obedience to their orders, and his submission to the usurper’s government, and sitting and voting in his parliament, together with having positively advised Cromwell and Ireton, in a conference in 1648, to take away the late king’s life, without which they could not be safe, or at least knew and concealed the horrid design. The last charge, which the Marquis strenuously denied, was not insisted on; nor does there appear to have been any foundation for it.
In his reply, he enumerated all the favours he had received from the former and the reigning sovereign, and desired the parliament to consider how unlikely it was that he should have entertained any design to the hurt or dishonour of either. He could say with Paul in another case, the things alleged against him could not be proven; but this he would confess, that, in the way allowed by solemn oaths and covenants, he served his God, his king, and country: he besought those who were capable of understanding, when those things for which he was challenged were acted, to recollect what was the conduct of the whole kingdom at the time, and how both themselves and others were led on in these actions without any rebellious inclination; and entreated those who were then young to be charitable to their predecessors, and to censure sparingly these actions, with all the circumstances of which they were unacquainted; for often the smallest circumstance altered entirely the nature of an action. In all popular and universal insurrections communis error facit jus: et consuetudo peccandi minuit crimen et pænam. As to what he had done before the year 1651, he pled his majesty’s indemnity granted in the parliament at Perth; and for what he had done since, under the usurpers, they were but common compliances, wherein all the kingdom did share equally, and for doing which many had express allowance from his majesty, who declared he thought it prudence, and not rebellion, for honest men to preserve themselves from ruin, and thereby reserve themselves till God should show some probable way for his return. Besides, among all those who complied passively, none was less favoured by the usurpers than himself—what he did was but self-defence, and, being the effect of force, could not amount to a crime.
When he had finished, his advocates, Messrs Sinclair, Cunningham, and M’Kenzie, afterwards Sir George, protested, that, seeing they stood there by order of parliament, whatever should escape them in pleading for the life, honour, and estate of their client, might not thereafter be brought against them as treasonable—a common form and usually sustained; but on this occasion the parliament would not admit the protestation, lest they might allow themselves upon that pretext the liberty of speaking things prejudicial to his majesty’s government, and therefore desired them to speak at their peril. His advocates being strangers to his cause, as the ones he wished were afraid to appear, he requested a short delay to prepare his defence fully; but this being referred to the Lords of the Articles, they cruelly denied his reasonable request; upon which he gave in a supplication and submission, throwing himself entirely upon the king’s mercy, and entreating the intercession of the parliament on his behalf. This, also, they refused to listen to.
After which, his lordship gave in a bill, desiring to be remitted for trial before the justice court, as the intricacy of his case would require learned judges. Nor was it to be supposed that every gentleman or burgess could understand points of law; neither were they his peers; and a nobleman should be judged by his peers. His prosecutors, bent upon his ruin, construed this application into a declining the jurisdiction of parliament, and required him to own it, or inform them who had written the petition. The Marquis, perceiving that every possible advantage would be taken against him, was extremely perplexed; but his advisers avowed the paper, and, after a warm debate, the petition was rejected, but the advocates were excused. He then requested to be allowed the benefit of exculpatory proof, and to bring forward witnesses, who could either attest his innocence or give such explanations as would alleviate his guilt; even this, the last privilege of the lowest criminal, he could not obtain, and was commanded immediately to proceed to his defence—likewise an unusual and oppressive mode of procedure, as it had been customary to discuss first the relevancy of the indictment; that is, whether the facts charged actually constituted the crimes alleged, and thus to give the accused a chance of escape from a cumulative treason, or from any legal informality that might occur.
All the Marquis’s reasonable requests and objections being thus disposed of, his defences, with the Lord Advocate’s replies, duplies, and triplies—papers of enormous length—were fully read before parliament, as tiresome, tedious, and unfair a mode of conducting a trial before a court, consisting of some hundred individuals, as could possibly have been contrived. When ended, a debate ensued, and the Lord Advocate restricted his charge to the acts committed after 1651, a letter having been procured from the king forbidding any person to be prosecuted for any deed antecedent to the indemnity of that year. This letter, which was understood to have been procured by Lauderdale and Lorn—who had staid at London to attend to his father’s interest—somewhat disconcerted the managers, who were now persuaded that the secretary had espoused Argyle’s cause; and therefore, to counteract this influence, dispatched Glencairn and Rothes to court, with a letter from parliament approving of the whole proceedings, accompanied by Mr James Sharpe, to inform his majesty respecting the state of the church.
Glencairn actively stirred up the vindictive feelings of the treacherous Monk and the bigoted Hyde, while Rothes reminded Lauderdale of the former treatment he had received from the Marquis, how dangerous a competitor he might yet be if he escaped, and hinted at the imprudence of committing himself too far with a declining faction. Their arguments prevailed; and, from the date of their arrival, repeated expresses were sent down to Scotland, urging forward the trial.
The relevancy having been sustained, proof was led with regard to his compliance with the usurpers; but the evidence was by no means satisfactory, especially to judges almost all of whom had been ten times more deeply implicated than he, and the issue was doubtful; when, after the debate and examination were closed, and parliament was proceeding to consider the whole matter, an express from London knocked violently at the door. Upon being admitted, he presented a packet to the commissioner, which was believed to be a pardon or some warrant in favour of the Marquis, especially as the bearer was a Campbell, but, upon its being opened, it was found to contain a great many letters addressed by Argyle to Monk when commanding in Scotland, which he had perfidiously reserved, to produce, if absolutely necessary, for the conviction of his former friend; and, on being informed by the commissioner’s agents of the “scantiness of probation,” had transmitted them by post to supply the deficiency. There was now no room for hesitation; the parliament were perfectly satisfied that the rebel English General had received the reluctant submission and forced co-operation of the last royalist nobleman in Scotland who yielded to the fortune of the victorious republicans, and therefore Argyle was guilty of a treason which Monk had obliged him to commit! The proof of his compliance was complete; and next day he was condemned and forfeited. The manner of his execution was put to the vote, “hang or behead,” when it was carried that he should be beheaded, and his head placed on the same spike, on the top of the tolbooth, whence Montrose’s had been but lately removed.
During the whole of his protracted trial, which lasted from the 13th of February till the 25th of May, his behaviour was meek and composed, although attacked with the most virulent abuse by the reptiles who crouched before him in the hour of his prosperity. When in his own defence he asked, how could I suppose that I was acting criminally, when the learned gentleman, his majesty’s advocate, took the same oaths to the Commonwealth with myself? Sir John Fletcher replied to a question he could not answer, by calling him an impudent villain. The Marquis mildly said, he had learned in his affliction to endure reproach. After his case appeared desperate, his friends planned an escape, partly by force, and partly by stratagem, and a number of resolute gentlemen had engaged in it; but, after he had consented, and had even put on a female dress, in which he was to be carried out of the Castle, he changed his mind, threw aside his disguise, and declared he was determined not to disown the cause he had so long appeared for, but was resolved to suffer to the utmost.
When brought to receive sentence, there were but few, and these the most determined time-serving sycophants, in the House, shame or compassion preventing a number who had decided his fate from hearing it announced; yet even they could not help moralizing on the mutability of human glory, though, when he requested a delay of only ten days that the king might be acquainted with the result of his trial, they refused that short interval, and prevented his last chance of mercy!