the death of the King or Queen and that no difference in Religion nor no Law nor Act of Parliament can stop or hinder them in the free and actual administration which is an abrogation of the foresaid Act concerning the Coronation as to this point for how can the administration be devolv'd immediatly upon the Successor if he cannot administrat till he be Crown'd and have sworn this Oath The next objection is that since the King and Parl. may by Act of Parl. alter the Successions of privat families though transmitted by the Right of blood why may they not alter the Succession in the Royal family To which it is answered that the reason of the difference lyes in this that the Heirs of the Crown owe not their Succession to Parliaments for they succeed by the Laws of God nature and the Fundamental Laws of the nation whereas privat Families are Subject to Parliaments and inferiour to them and owe their privat Rights to a municipal Law and so may and ought in point of Right to be regulated by them And yet I am very clear that a Parliament cannot arbitrarly debarr the eldest Son of a privat Family and devolve the Succession upon the younger and if they did so their Acts would be null But if this argument were good we might as well conclude by it that no persone born out of England or attainted of treason could succeed to the Crown Because he could not succeed to a privat Estate All which and many moe instances do clearly demonstrat that the Successor to the Crown cannot be debarr'd not the Succession to the Crown diverted by Act of Parliament The last objection is that Robert the III. King of Scotland was by ane Act of Parliament preferr'd to David and Walter who were as he pretends were truly the eldest lawful Sons of Robert the 2 d. because Euphan Daughter to the Earl of Ross was first lawful Wife to King Robert the 2 d and she bore him David Earl of Strathern and Walter Earl of Athol Alexander Earl of Buchan and Euphan who was married to James Earl of Dowglass after whose deceass he married Elizabeth Muir Daughter to Sir Adam Muir not so much as Buchanan observes from any design to marry a second Wife as from the great love he carried to Elizabeth Muir whom because of her extraordinary Beauty he had lov'd very passionatly in his youth and before he married the Earl of Rosses Daughter and from the love which he bore to the Sons whom Elizabeth had born before that first Marriage who were John Earl of Carrick who thereafter succeeded to the Crown by the Title of Robert the 3 d and Robert Earl of Fife and Monteith he prevail'd with the Parliament to prefer John eldest Son by Elizabeth Muir to the two Sons which he had by the Earl of Rosses Daughter who was as they pretend his first lawful Wife In which though I might debate many nice points of Law relating to this Subject yet I choose only to insist on these few convincing Answers 1. That in a Case of so great moment Historians should be little credited except they could have produc'd very infallible Documents and as in general one Historian may make all who succeed him err so in this Case Boetius who was the first liv'd and wrot 200 years after the Marriage of King Robert the 2 d and wrot his History at Aberdeen very remote from the Registers and Records by which he should have instructed himself nor did he know the importance of this point having touch'd it only transiently though it has been design'dly press'd by Buchanan to evince that the Parliaments of Scotland might prefer any of the Royal Line they pleas'd and it is indeed probable that King Robert the 2 d. did for some time make no great noise of his first Marriage with Elizabeth Muir least the meaness of the Match should have weaken'd his Interest upon his first coming to the Crown he being himself the first of the Race of the Stewarts and having so strong Competitors as the Earl of Dowglass who claim'd Right to the Crown in the Right of the Baliol and the Cummings as Boetius himself observes 2. King Robert the 3 d. having succeeded as the eldest lawful Son and having been receiv'd as such by that Parliament and his Posterity by all succeeding Parliaments the Possession of the King and the Acquiescence of the People is the most infallible proof that can be adduc'd for proving that Robert was the eldest lawful Son nor have most Kings in Europe or the Heads of most private Families any other proof of their being the eldest and lawful Sons save that they succeeded and were acknowledg'd as such 3. To ballance the authority of these Historians I shall produce the Testimonie of the Learned Sir Lewis Stewart one of the most famous Lawyers we ever had and who ought much more to be believ'd than Buchanan not only because he was more disinterested but because he founds upon Acts of Parliament and old Charters which he himself had seen in the Registers in which Elizabeth Muir is acknowledg'd to have been the first Wife Buchananus lib. 9. in vitam Roberti 2. affirmat Euphaniam Comitis Rossenssis filiam primam Regis Roberti 2. uxorem fuisse eâ mortuâ Regem superinduxisse Elizabetham Moram ex qua prius Liberos ternos mares suscepisset eam uxorem duxisse ejusque liberos regno destinasse ut postea eorum natu maximus sucâ—essit quod quam falsum sit apparet ex archivis in carcere Edinburgensi reconditis ubi exstant separata acta duorum Parliamentorum subscripta manibus Ecclesiasticorum praesulum nobilium baronum aliorum statuum Parliamenti eorum sigillis roborata quibus Elizabetha Mora agnoscitur prima uxor Euphania Rosse secunda liberis ex Elizabetha Mora tanquam justis haeredibus Regni successive regnum dâ—cernitur post eos liberis Euphaniae Rosse nec non ibidem cartae extant plurimae factae per Davidem secundum eorum patruum magnum ex diversis terris Ioanni filio primogenito nepotis ejus Roberti dum Euphania Rosse viverit nec non Davidi filio natu maximo Euphaniae Rosse quem solum filium indigitat Roberti nepotis quod non fecisset si Elizabetha Mora non prius fuisset nupta Roberto ejus nepoti nam primogenitus nunquam attribuitur notho imo ego plures quam viginti cartas in archivis inveni ubi etiam eas reliqui ex quibus sole clarius elucessit Elizabetham Moram primam fuisse uxorem Euphaniam Rosse secundam nam extra contraversiam liberi Elizabethae Morae etate grandiores erant liberis Euphaniae Rosse which Paper I did get from the Lord Pitmeden who has himself written some learn'd Observations upon this point 4. I have my self seen an Act of Parliament found out by the industry of Sir George Mackenzie of Tarbet now Lord Register having the
Concord sacerd imperij l. 2. c. 2. n 2. asserts That the Royal Power is not only bestowed by God but that it is immediatly bestow'd by God upon Kings and Refutes Bellarm. â—de laico c. 6. maintaining That the Iesuits Doctrine in this lessens Authority and raises Factions and contradicts both the Design and Word of God Duvalius de suprem potest Rom. Pontif. p. 1. q. 2. Asserts that Kings derive their Rights by the Laws of God and Nature non ab ipsa Republica hominibus and in all this the Fanaticks and Republicans agree with the Jesuits against Monarchy In the Civil Law this is expresly asserted Cod. de vet Cod. enucleand Deo auctore nostrum gubernante imperium quod nobis a coelesti majestate traditum est Nov. 6. in init Nov. 133. in proem in Nov. 80.85 86. Iustinian acknowledges his Obligation to care for his People because he received the Charge of them from God and certainly Subjects are happier if their Kings acknowledge this as a duty to God than if they only think it a Charge confer'd on them by their People and that they are therefore answerable to them That the Doctors and Commentators are of this opinion is too clear to need Citations vid. Arnis cap. de Essentia Majest Granswinkel de jur Maj. cap. 1. 2. As to the Heathens Hesiod in Theog verse 96. sayes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Kings are from God Homer sayes their Honour is from God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iliad 1. verse 197. Themistcus asserts that the Regal Power came from God Orat. 5. with whom agrees Dion Chrisostom Orat. 1. diotog apud Stob. serm c. Plat. in polit c. But above all Aristotle in polit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And Plutarch Ages Cleom. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 If to these Statutes and Citations it be answered that God Almighty may indeed be the principal and chief Author of Monarchy and that Monarchs may derive their Power from him as from the Supream Beeing that directs all more immediat Causes and yet the People may be the immediat Electors of Monarchs and so Kings may derive immediatly from them their Power and thus these Statutes are not inconsistent with the principle laid down by Buchanan and others whereby they assert that Kings in general and particularly the Kings of Scotland derive their Power immediatly from the People To this my answers are that first if we consider the proprietie of the Words there can be nothing more inconsistent than that Kings should derive their Power from God Almightie alone and yet that they should derive it from the People for the Word Alone is of all other words the most exclusive 2 dly The design of the Parliament in that acknowledgement was to condemn after a long Rebellion the unhappie Principles which had kindled it and amongst which one of the chief was that our Kings derived their Power from the People and therefore they might qualifie or resume what they at first gave or might oppose all Streaches in the Power they had given and might even punish or depose the King when he transgressed none of which Principles could have been sufficiently condemned by acknowledging that though God was the chief Author yet the People were the immediat Electors 3 dly There needed no Act of Parliament be made for acknowledging God to be the chief Author and first Fountain of every Power for that was never contraverted amongst Christians 4 thly That foolish glosse cannot at all consist with the Inferences deduced from that Principle in the former Statutes for in the 2. Act Par. 1. Char. 2. It is inferr'd from His Majesties holding His Royal Power from God alone that therefore he hath the sole choice of his own Officers of State Privy Counsellers and Judges And in the 5. Act it is inferr'd from the same Principle that because he derives his Power from God alone that therefore it is Treason to rise in Arms without his Consent upon any pretext whatsoever And in the 2. Act Par. 3. Char. 2. It is concluded that because our Kings derive their Power from God Almighty alone therefore it is Treason in the People to interrupt or divert their Succession upon any Difference in Religion or other pretext whatsoever whereas all this had been false and inept Reasoning if the design of the Parliament had not been to acknowledge that our Kings derived not their Power from the People for though they derived their Power from God as the supream Beeing only and not as the immediat bestower and if the People were the immediat bestowers of that Power then the People might still have pretended that they who gave the Power might have risen in their own Defence when they saw the same abused and might have diverted the Succession when it descended upon a person who was an enemy to their Interest but how false this glosse is will appear more fully from the following Arguments and it is absolutely inconsistent with St. Augustins opinion formerly cited wherein he forbids to attribute the giving of Kingdoms to any other but to God My second Argument for proving that Kings derive their Power from God alone and not from the People shall be from the principles of Reason For First The Almighties design being to manifest his Glory in Creating a World so vast and regular as this is and his goodnesse in Governing it and that Men might live peaceably in it having both Reason and Time to Serve him it was consequential that he should have reserved to himself the immediat dependence of the supream Power to preclude the extravagant and restlesse multitude from those frequent Revolutions which they would make and Desolations which they would occasion if they thought that the supream Power depended on them and that they were not bound to obey them for Conscience sake so that those expressions in Scripture were very useful in this to curb our Insolencies and to fix our restlesnesse and it seems that Kings are in Scripture said to be gods to the end it might be clear that they were not made by Men· 2 dly God Almighty being King of Kings it was just that as inferiour Magistrats derived their Power from the King so Kings should derive their Power from God who is their King and this seems to be clear from that analogy which runs in a Dependence and Chain through the whole Creation 3 dly As this is most suitable to the principles of Reason so it is most consonant the analogy of Law by which it is declar'd that no Man is master of his own Life or Limbs nemo est Dominus membrorum suorum and therefore as no Man can lawfully take away his own Life so neither can he transfer the power of disposing upon it to any other Man and consequently this Power is not derived to Kings and Princes by privat Men but is bestowed upon them by God Almighty who is the sole Arbiter of Life and Death and
jur Majes cap. 1. num 12. with whom the Fathers also agree Ambros. in Apol. David cap. 4. Liberi sunt Reges a vinâ—ulis delictorum neque enim ullis ad poenam vocantur legibus tuti Imperij potestate Isiodorus 3. sent cap. 31. populi peccantes Iudicem meâ—â—uâ—t Reges autem solo Dei timore metuque gâ—hennae coercentur And in this Sense they take these words Psal. 51. Against thee thee only have I sinned and I was glad to find in Bishop Vshers Power of Prinâ—es amongst many other Citations that the Rabbies and particularly Rabbi Ieremiah ownâ—d that no Creature may Judge the King but the Holy and Blessâ—d God alone in which also Heathens agree with Jews and Christians Ecphantas the Pithagorean makes it the Priviledge of God and then of the King to be Judg'd by none Stobeus Sermon 46. and Dion in Marco Aurelio tells us that it is certain that free Monarchs cannot be Judg'd save by God alone and if it were otherwise we should see them very unsecure for the ambition and avarice of insolent Subjects should never or seldom miss to form their Process and why should Parties be Judges But to demonstrate the Justice Kings and Princes are to expect from the Populace and Mobile let us remember their Material Justice in the usage of our Saviour when they cryed Crucifie him Crucifie him their Sentence against King CHARLES the Martyre when they were at the hight of their pretensions to Pietie and publick Spiritedness their usage of de Witt the Idolizer of them and their Common-wealth and if we want a true Idea of their Form of Process we will find it in their usage of the Arch-bishop of St. Andrews and others no Lâ—bel no Citation no Defenses no Sentences no time to prepare to die and yet all this are the Dictates of pure and devout publick Spiritedness Buchannans Bloody Arguments for this position are that Tyrants have been Murthered with applause and Princes would become licentious if they were not Restrained by the just fear of being called to an account That the Roman and Venetian Magistrates have been punish'd by the people and that the ordinary Judges of the place have Judg'd them and that some of our Kings as well as these of other Nations have been punish'd as Tyrants To which I answer shortly that Inconveniencies must not prevail with us to break our Oathes and overturn our Laws for nothing has so great inconveniencie in it as this has these being but partial and this is a total Inconveniency And the English Lawyers agree that a mischief is better than an inconvenience and this should have been considered before we swore to Monarchy and if the people were Electors as they never were yet they should have reserv'd this power or else they cannot now challenge it But though our Law were not clear as it is most uncontroverted upon this point Yet right Reason should perswade us to have reserv'd no such power For as Kings may erre so may the Judges who are to Try them and it is more probable their Tryers will because they may be acted by Revenge Ambition or Popularity and there is nothing so lyable to erre as the populace The Romans and Venetians might have punish'd their Magistrates because these Magistrates were not Vested with a Supream power nor were they Soveraigns as our Monarchs are And those Judges who Try'd them deriv'd not their power from those Magistrates who Try'd them as our Judges do for the same consent and compact by which they were made the Chief the others were made also Magistrates which cannot be said of absolute Monarchs who derive not their power from the people as these do and the Instances of Kings who have been Murder'd are Crimes in them who did commit them and so should not be Rules to us And generally the best of Kings have been worst us'd But who can escape by innocence when King CHARLES the Martyre fell by Malice Such also as cry up the Murtherers of Tyrants who had no just Right never meant to allow the Arraignment of lawful Monarchs who when they erre have God only for their Judge and if they fear not Him and eternal Punishment they will not probably fear mortal Men and their own Subjects whom they can many wayes escape 2. There is no Creature so unreasonable but he will use his own with discretion though there be no Law obliging him to it nor Punishment to be inflict'd if he do otherwayes who burns his own House or drowns his Lands though he may do it For the Law considers that a King is either mad and if so he will respect no Law and should not be punisht at least he will not stand in awe for fear of it or else he is of a sound Judgment and then he needs no Law and therefore Why should we apprehend that a King will destroy His own Kingdom 3. A King is also obliged by His Fame to do things worthy of His high Trust and things able to abide that conspicuous hight to which he is expos'd 4. Though His people ought not to Rebel yet no thinking man can be sure that they will not And therefore even the greatest Tyrants fear such accidents though they know they are not bound by these Laws that tye Subjects And if all these fail yet we must reverence Gods Dispensations and expect a redress of these unusual Emergents from his Divine Goodness for whose sake we suffer them Rather then expose all to ruine by endeavouring a revenge that may be so unjust in the preparative and dangerous in the event The 3. Conclusion which I shall draw from the former principles shall be that as it is not lawful for Subjects to punish their Kings so neither is it to rise in Arms against them upon what pretext soever no not to defend their Liberty nor Religion Which Conclusion also I shall endeavour to Establish on sure foundations of Positive Law Reason Experience and Scripture As to our Positive Law it is clear for by the 3. Act Par. 1. Ia. 1. It is declar'd Rebellion to rise in Arms against the Kings Person And by the 14. Act 6. Par. K. Ia. 2. It is Treason to Rebel against the Kings Person or Authority By the 25. Act Par. 6. Ia. 2. It is Treason to rise in fear of War against the Kings Person or his Majesty or to lay hands upon his Person violently whatever age they be of or to help or supply these who commit Treason By the 131 Act 8 Par. Ia. 6. All the Subjects are discharged to Convocat for holding of Councils or other Assemblies without his Majesties expresse Warrand and by the 12. Act 10. Par. K. Ia. 6. The entering into Leagues or Bonds without his Majesties special Command is declared to be Sedition All which Acts are prior to Buchannans time and consequently he was very inexcuseable in advancing this Rebellious Principle And these Laws having excepted no case exclude all cases and
pretexts of rising in Arms against the lawful Monarch but our unhappy Countrey-men having by a long and open Rebellion oppos'd the most devout and most just of all Kings upon the false pretexts of Liberty and Religion the Parliament of this Kingdom from a full Conviction of the Villanies of these times and to prevent such dangerous Cheats for the future they did by the 5. Act Par. 1. Char. 2. Declare it to be Treason for any number of his Majesties Subjects to rise in Arms upon any pretext whatsoever and to shew that all such Glosses as were us'd by Buchannan were absurd and did not evacuat the first Laws though general the Parliament did by the 4. Act of that 1. Parliament declare that any Explanation or Glosse that during the late Troubles hath been put upon these Acts as that they are not to be extended against any Leagues Councils Conventions Assemblies or Meetings made holden or kep't by the Subjects for Preservation of the Kings Majesty the Religion Laws and Liberties of the Kingdom or for the publick Good either of Kirk or Kingdom are false and Disloyal and contrare to the true and genuine meaning of these Acts. Which Statute is a clear decision against Buchannan finding that the Statutes that were prior to his time and all other such general Statutes made in favours of the King did formerly strike against his Principles and Distinctions As also to preclude all avenues to Rebellion by teaching defending or encouraging others to Rebel upon these pretexts as the former Act declared that actual rising in Arms was Rebellion So by the 2. Act Sess. 2. Par. 2. Charles 2. It is declared Treason for any Subject to maintain these positions viz. That it is lawful for Subjects upon pretence of Reformation or any other pretence whatsoever to enter into Leagues or Covenants or to take up Arms against the King or any Commissionated by him 2. All the Arguments formerly adduc'd against the power of the Subject to punish his Person do fully prove likewise that they have no power to rise in Arms against him For either the collective Body of the Subjects are Superior to him and if so they may not only rise up in Arms against him but they may punish him but if the King be Superior to them as has been formerly prov'd then it cannot be lawful for Subjects to rise up in Arms against him no more than it is to punish his Person Nor can I see how all such as declare for a Defensive War are not to be concluded guilty of designing to Murther the King for if the King come in Person to defend his own Right as certainly he will and must can it be thought they will shoot at none least they kill him and if they shoot how can they secure his Sacred Person and if they kill him in the Field are they less guilty of his Murther than these Russians who lately design'd it Or doth it lessen the guilt that these design'd to kill him alone privately whereas our moderate men will in face of the Sun and with display'd Banners against God and him kill with him all such as being perswaded that they are obliged before God to assist him expose their lives for their duty 3. That dangerous though specious Principle of defensive Arms is inconsistent with that order of Nature which God has established and which is absolutely necessar amongst all other humane Relations and by the same Analogy by which we allow Subjects to rise against their Prince we may much more allow Children to rise against their Parents Servants against their Masters Souldiers against their Officers and the Rabble against their Magistrates for the King does eminently comprehend all these relations in his Soveraignty as inferiour Branches of that Paramount and Monarchical power And what a glorious state should mankind be left in if Anarchy were thus Established and every man should be invested with power to be his own Judge Or dares any reasonable man assert that this is fit to be allowed in the present condition of Mankind for since the generality of men can scarce be contained in their Duty by the severest Laws that can be made what can be expected from them when they are loosed from all Law and are encouraged to transgress against it If the multitude could prove that they were infallible and that no oppression could be expected from them some thing might be said why we might ballance them with authority But since both Reason and dolefull experience teach us that generally the multitude consists of Knaves and Fools who alter not to the better by Conspiring together nor become juster for being led by such ambitious and discontented Spirits as ordinarly lead on Rebellions It is safer to obey those of the two fallible Governours whom God hath set over us and whom the Law tyes us to obey and to whom also we are bound by the Oath of Allegiance especially seing thus we may probably expect that they will be more careful of us as being their own than meer Strangers who use us only for their own Ends. And at the worst in the King we can have but an ill Master whereas in allowing Subjects to usurp we may fight to get our selves hundreds of Tyrants and these two fighting against one another so that we shall not even know which of these Devils to obey The Arguments that can be adduc'd to justifie this Principle of Defensive Arms are almost answered in the former Article viz. That there is a mutual Obligation betwixt King and people so that when He breaks the one they are free from the other and that all Government is Establisht for the advantage of the People and thus these few Arguments peculiar to this Point remain now only to be here solv'd 1. That self-defence is by the Law of Nature allow'd to all and even to Brutes why then should men who may lose more who deserve better and can use self-defense more innocently be debar'd from it 2. We see in Scripture that the people deserted and oppos'd their Kings for Religion 3. This has been allow'd with us in the instance of King Iames the third against whom his Subjects rose in Rebellion for Mis-governing and oppressing His people and this opposition was first justified by God in the success he gave to their Arms and thereafter by a special and express Act in the ensuing Parliament which stands yet unrepeal'd To which I shortly answer that as to the first of self-defense in Brutes we must still remember that God having design'd Government to bridle the Extravagancies of restless Mankind he has appointed Magistrates to be his Vicegerents and Representatives and has entrusted them with his power and so opposition to them is unlawful because it is not lawful against him and because if it were allow'd all would pretend to it and so there should be no Order nor Government And that this may be the better observ'd God has endowed man with
our late Debates are but the Militia of Pride Vanity and Ambition and that if they be allow'd the best of Princes will ever fall by them And as to the Act 14. Par. 4. Ia. 4. Whereby it is pretended that the opposing and even the killing K. Ia. the 3. in Battle is justified and which Act was never repelled It is answered First That this Statute was made by the same Rebels who had opposed their lawful Prince and so was rather a continuing of their Rebellion than a justification of it 2. That abominable Statute proceeds on the Precept of K. Ia. the 3. calling in the English and designing to enslave the Kingdom to Forraigners which was not prov'd as it ought to have been though the pretext had been legal as it was neither legal nor true in the least circumstance and the Noblemen and Barons are Condemn'd without being Cited or heard though the Act be not a Statute but a Verdict so unjust are all Rebels who are forc'd to maintain one Crime by another 3. In the new Collection of our Statutes made by K Ken. and Authoriz'd in many subsequent Parliaments The Dreadful and Treasonable Act is not insert which was the best way to Rescind it because it was though a reproach to the Nation to have any formal Law made to Rescind the Statute which behov'd to preserve its memory in annulling its Authority 4. Many Statutes since that time are made declaring the rising in Arms against the King and his Authority upon any pretext whatsoever to be Treason and expresly Rescinding all Acts and Statutes to the contrary as Rebellious and Treasonable and there needed no more Positive Statutes to Rescind that Rebellious and Treasonable Combination rather than Law As to the 44. Act 6. Par. Ia. 2. From which its urged that because that Act declares it Treason to Assault Castles and Places where the Kings Person shall happen to be without the Consent of the three Estates And that it is therefore lawful to Assault the same with the Consent of the three Estates and consequently to rise in Arms with the Consent of the three Estates is no Treason It is answered that it being but too ordinary in the Minority of our Kings to have great Factions amongst the Nobility which shews also the danger of placeing the Supream Power in the Proceres Regni one of the Factions ordinarly either having made the young King Prisoner or using to Assault the Castle where he was really preserved It was therefore most wisely declared by this Statute That to lay hands upon the Kings Person violently what age the Ring be of young or auld or to Assailzy Castles or Places where the Kings person shall happen to be without the Consent of the three Estates shall be punished as Treason That is to say that so great respect was to be had to his sacred Person that no violence was to be offered to the Place where he was untill the same was allowed by the three Estates But in all the former Laws as well as those made in our age it is still declared Treason to Rebel against the Kings Person or to refuse to assist him without adding except the same be done by the three Estates which shews that there 's nothing design'd in this Act in favours of their Authority and that this King was Minor the time of this Act and that he had great Troubles in his Youth is very clear from the short characters given of our Kings by Skeen in the end of our Acts of Parliament It will I hope easily appear by the ballance of these Arguments that at least the Municipal Laws of our Nation which punish defensive Arms as Treason should be obey'd by our Countrey-men since as I have oft inculcated the Laws of any Nation should still be obey'd except where they are inconsistent with the Word of God and the most that the most violent Republicans alive can say upon this Subject is that the case may be debated by probable Arguments and that neither of the Positions want their inconveniencies so that in this as in all other Debates the Law of each Nation is the best Judge to decide such Controversies and therefore such as maintain these Principles after so many positive and reiterated Laws are obliged for preserving the Peace of humane Society and the Order which God has establisht to remove from places where they cannot obey for they will alwayes find some place where the Government will please them and better they be disquieted than the Government of the whole World should be disturb'd but if they will stay and oppose the Government it must be excus'd to Execute those who would destroy it Having thus glanc'd only at Answers to these Objections because I think the Objections rather shining than strong I shall sum up this Debate with these Reflections First Buchannan and our Republican Authors Debate all these Grounds as if we were yet to Form the Government under which we were to live whereas we live under and are sworn to a Monarchy fixt by Law and Consent time out of mind and the Levellers may as well urge that no Nobleman should be Dignifi'd nor no Gentleman Enrich'd above a man of good sense and Tennents may argue that it is not reasonable that they bearing Gods Image as well as the Master should toile to feed their Lusts thus Reason may be distorted and we call that Reason and Providence which pleases us best 2. Most of their Citations and Authorities are the Sentiments of these Greeks and Romans who liv'd under Common-wealths and so magnifi'd their Countrey in opposition to Usurpers whereas our King is the Father of our Countrey and whatever they said of their Countrey we should say of him and therefore these Citations concerns us no more than the Law of England binds Scotsmen they praise their own Children and Servants for their Faithfulness and Obedience to them and yet they rail at us for being Faithful to our great Master and chief Parent under God 3. Most of the Authors cited and admir'd by them are Heathens particularly Stoicks who equal'd themselves not only to Kings but to their own Gods and against whose selfishness and pride all Christians have justly exclaim'd and so they are not competent Judges nor sure Guides to Christians in the exercise of those purely Christian Vertues of Humility Submission Self-denyal Patience Faith and Relyance upon God 4. They ballance not all the Conveniencies and Inconveniencies of either Government but magnifie the one and conceal the other and thus it is true that Kings may be Tyrants but so may and usually are the Leaders of the Rabble Cromwel was such and Shaftsbury had been such he was such in his Nature and had been such in his Government and the Distractions of a Civil War which ordinarly attend Competitions amongst Republicans Destroy moe than the Lusts of any one Tyrrant can do which made Lucan conclude after a sad review of the continued
that where the Right of Nature is clear the Parliament may invert the same And strangers who considered more the dictats of Law than of Passion did in that age conclude that no Statute could be valide when made contrare to the fundamental Law of the Kingdom Arnisaeus Cap. 7. Num. 11. Henricus VIII Angliae Rex Eduardum filium primò deinde Mariam denique Elizabetham suos haeredes fecerat verùm non aliter ea omnia valent quà m si cum jure Regni conveniant Vid. Curt. Tract Feud Par. 4. Num. 129. There seems greater difficulty to arise from the 13 Elizabeth c. 2. by which it is enacted that if any persone shall affirme that the Parliament of England has not full power to bind and Governe the Crown in point of Succession and descent that such a persone during the Queens life shall be guilty of high treason But to this Act it is answered that this Act does not debarre the next legal and natural Successor And these words That the Parliament has power to bind and Govern the Succession must be as all other general expressions in Statutes interpreted and restricted by other uncontraverted Laws and so the sense must be that the Parliament are Judge where there are differences betwixt Competitors in nice and contravertable points which cannot be otherwise decided and both this and the former Acts made in Henry the VI. time are not general Laws but temporarie Acts and personal Priviledges and so cannot overturn the known current of Law Quod verò contrà rationem juris receptum est non est producendum ad consequentias And in all these instances it is remarkable that the restriction was made upon the desire of the Soveraigne and not of the Subject And if we look upon this Act as made to secure against Mary Queen of Scotland and to let her know that it was to no purpose for her to designe any thing against the Right or Person of Queen Elizabeth as being declar'd a Bastard by Act of Parliament in England since her other right as next undoubted Heir by Blood to the Crown might be altered or Govern'd we must acknowledge it to be only one of these Statutes which the Law sayes are made ad terrorem ex terrore only Nor was there ever use made of it by Queen Elizabeth nor her Parliaments so fully were they convinc'd that this pretended power was so unjust as that it could not be justified by an Act of Parliament being contrair to the Laws of God of Nature of Nations and of the Fundamental Laws of both Kingdoms But this Law being made to exclude Queen Mary and the Scotish line as is clear by that clause wherein it is declared that every Person or Persones of what degree or Nation soever they be shall during the Queens life declare or publish that they have Right to the Crown of England during the Queens life shall be disinabled to enjoy the Crown in Succession inheritance or otherwayes after the Queens death It therefore followes that it was never valide For if it had King Iames might have thereby been excluded by that person who should have succeded next to the Scotish race For it 's undeniable that Queen Marie did during Queen Elizabeths life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard And therefore the calling in of King Iames after this Act and the acknowledging his title does clearly evince that the Parliament of England knew that they had no power to make any such Act. The words of which acknowledgement of King Iames's Right I have thought fit to set down as it is in the statute it self 1. Ia. Cap. 1. That the Crown of England did descend upon King Iames by inherent Birthright as being lineally justly and Lawfully next and sole Heir of the Blood Royal. And to this recognition they do submit themselves and posterities for ever untill the last drop of their Blood be spilt And further doth beseech his Majesty to accept of the same recognition as the first Fruits of their Loyalty and Faith to his Majesty and to his Royal progeny and posterity for ever It may be also objected that by the 8 Act. Parl. 1. Ia. 6. It is provided in Scotland that all Kings and Princes that shall happen to reigne and bear Rule over that Kingdom shall at the time of their Coronation make their faithfull promise by Oath in presence of eternal God that they shall mantaine the true Religion of Iesus Christ the preaching of the Holy Word and due and Right Administration of the Sacraments now received and preach'd within this Kingdom from which two conclusions may be inferr'd 1. That by that Act the Successor to the Crown may be restricted 2. That the Successor to the Crown must be a Protestant that being the Religion which was Professed and established the time of this Act. To which it is answered that this Act relates only to the Crowning of the King and not to the Succession Nor is a coronation absolutly necessar Coronatio enim magis est ad ostentationem quà m ad necessitatem Nec ideo Rex est quia coronatur sed coronatur quia Rex est Oldard consil 90. num 7. Balbus lib. de coronat pag 40. Nor do we read that any Kings were Crown'd in Scripture except Ioas. And Clovis King of France was the first who was Crown'd in Europe Nor are any Kings of Spaine Crown'd till this day Neither is ane Coronation Oath requisit Sisenandus being the first who in the 4. Tolletan Councel gave such an Oath amongst the Christians as Trajan was the first amongst the heathen Emperours And we having had no Coronation Oath till the Reigne of King Gregorie which was in Anno 879 he having found the Kingdom free from all Restrictions could not have limited his Successor or at least could not have debarr'd him by an Oath Nullam enim poterat legem dictare posteris cum par in parem non habeat imperium as our Blackwood observes pag. 13. 2. There is no clause irritant in this Act debarring the Successor or declaring the Succession null in case his Successor gave not this Oath 3. The Lawfull Successor though he were of a different Religion from his People as God forbid he should be may easily swear that he shall mantaine the Laws presently standing And any Parliament may legally secure the Successor from overturning their Religion or Laws though they cannot debarre him And though the Successor did not swear to mantaine the Laws Yet are they in litle danger by his Succession since all Acts of Parliament stand in force till they be repeal'd by subsequent Parliaments And the King cannot repeale an Act without the consent of Parliament But to put this beyond all debate the 2. Act of this current Parliament is opponed whereby it is declared that the Right and administration of the Government is immediatly devolv'd upon the nixt Lawfull Heir after
intire Seals of the Members of Parliament appended thereto by which the Parliament do swear Allegiance to Robert the 2 d. the first King of the Race of the Stewarts and after him Roberto Comiti de Carrict filio suo natu maximo his eldest Son in Anno 1371 which was the first year of his Reign and if the pretended defect be true it was a very palpable and a very undenyable one and could not but have been unanswerably known to the whole Nation And how can we imagine that the whole Parliament would have unanimously drawn upon themselves so dreadful a Perjury by excluding the lawful Heir against their National Oath in the Reign of K Kenneth the 3 d whereby they swore to own always the immediate Heir or that they would have entail'd upon themselves a Civil War by preferring even a questionable Heir after the Miseries which they had lately then felt in the competition betwixt the Bruce and the Baliol. Amongst which Seals the Seal of Iames Earl of Dowglass is one and how ridiculous is it to think that he would sit and declare a Bastard preferable to the Brother of his own Lady and to his own Lady who would have succeeded if her Brothers had died without Succession Which Act of Parliament does also clearly prove that Buchanan did not at all understand matters of Fact in this part of the History for he asserts that after the death of Euphan Ross the King married Elizabeth Muir and did by Act of Parliament obtain the Crown to be settled upon Robert the 3 d Son to the said Elizabeth Muir upon whom he also bestow'd the Title of Carrick all which is most false for this Act of Parliament is dated in Anno 1371 and King Robert the 2 d. succeeded to the Crown that year nor did Euphan Ross die till the 3 d. year after he succeeded to the Crown and so not till the Year 1374 and yet in Anno 1371 this Act is past designing him Heir to the Crown and Earl of Carrick and consequently he was so design'd before the death of Euphan Ross. 5. I have seen a Charter granted by King Robert the 2 d when he was only Steward of Scotland granted in anno 1165 and so long before he was King In which Charter likewise Iohn thereafter King by the name of Robert the 3 d is a conjunct Disponer with him under the express designation of the eldest Son and Heir Robertus Senescallus Scotiae Comes de Strathern Ioannes Senescallus primogenitus haeres ipsius Dominus Baroniae de Kyle c. which Charter confirms to the Abbacy of Pasley several Lands disponed to them by Reginaldus More Father to Sir William More of Abercorn And I find that David Duke of Rothsay was always in the Charters granted by his Father King Robert the first called Primogenitus and he was no Bastard nor can this designation be given to a Bastard as is clear by Covaruvias de Matrim part 2. cap. 8. § 2. num 4. But how can it be imagined that the Monks of Pasley would have taken a Right from a person as Heir to the Crown who was not for this would have infer'd Treason against them beside the annulling their Right or who could understand better the lawfulness of a Marriage than a body of Church-men living in the time and very near to the Residence of the married Persons and in whose Conventual-Church the said King Robert and Elizabeth Muir ly buried together Item I have seen in the Registers another Charter granted by King Robert the 2. in the first year of his Reign with the consent of Iohn Earl of Carrick primogenitus haeres Allano de Lavidia terrarum de Whitslet And an other granted by the said King 1. Iune anno primo regni confirming to Paulo Mctire a Charter granted by the Earl of Ross Father to Euphan wherein the said Iohn primogenitus haeres is a Witness And to shew that the said Euphan Ross was then living when he was so design'd Heir there is a Charter to her by the King upon the very same day of the Lands of Lochleaven As also there is a Charter granted by King Robert the 2 d the first year of his Reign to Alexander his Son and another to Iohn Kennedy of the Barrony of Dalrymple in both which the said Iohn Earl of Carrick is call'd primogenitus and is Witness with the Earl of Dowglass so that he has been design'd eldest Son and Heir openly uncontravertedly and in all Papers and with the consent of the second Wife and her Relations 6. In the Parliament 1372 the said Iohn Earl of Carrick is design'd to be Lieutenant of the Kingdom and all the Estates of Parliament swear to own him in his Government and which Statute is printed amongst the Satutes of King Robert the 2 d Father to the said Iohn and which must be during the Marriage with Euphan Ross for she liv'd three years after her Husband was King and he succeeded to the Crown anno 1371 And this also confutes Buchanan who asserts that he was created Earl of Carrick after the death of Euphan Ross and it is against all sense and reason to think that he could have been acknowledg'd during her life if he had not been the true Apparent Heir of the Crown and a lawful Son 7. Walter who they pretend should have succeeded to the Crown having kill'd his Nephew King Iames the first Son to King Robert the 3 d He was not only not own'd after the death of the said King Iames as certainly he had been if his Title had been good and his Right so recent and demonstrable having so many great and powerful Relations that his Father was induc'd upon their account to marry his Mother but yet the said Walter was by all the Parliament unanimously condemn'd as a Traitor for having conspir'd the death of his lawful Prince Nor does Boetius justifie Walter 's Title in the least but on the contrary magnifies the Parliament for their just Sentence As did likewise Aeneas Silvius the Popes learned Legat who exhorted the Parliament to condemn him 8. How is it imaginable that King Robert who had so lately and after a strong competition come to the Crown would have adventur'd to make his Title yet more disputable by preferring a Bastard to the true Heir who had so many Friends by his Mother and who being an Infant had never disoblig'd him 9. If we will consider the opinion of the Civilians whom we and almost all Nations follow in the Cases of Succession we will find that the said King Robert the 3 d was the eldest and lawful Son of King Robert the 2 d. filius legitimus non legitimatus For 1. They conclude that a Son is prov'd to be a lawful Son by the Assertion of the Father Alciat tract praesumpt Reg. 2 praesumpt 2. num 6. and certainly the Father is the best Judge in such Cases but so it is
as I have formerly more fully prov'de And if this principle prevail'd as to the differences in the Theory of Religion it would in the next step be urg'd as to the practice of Religion and we would change our Kings because we thought them not pious as well as Protestant And did not our Sectarians refine so far as to think dominion founded on grace and this opinion seems to my self more solide than the other for certainly an impious Protestant is a worse Governour and less Gods Vicegerent and image than a devout Papist And amongst Protestants every Secte will reject a King because he is not of their opinion And thus our Covenanters by the Act of the West-kirk Anno 1650. declar'd they would disown our present Monarch if he did not own the Covenant And though a King were Protestant yet still this pretext that he design'd to introduce Popery would raise his People against him if differences in Religion could Lawfully Arme subjects against their King or did empower them to debar his Successor And when this cheat prevail'd against devout King Charles the I the Martyr of that Orthodox Faith to which he was said to be enemie what a madness is it to allow this fatall error which was able to ruine us in the last age and went so near to destroy us in this This is indeed to allow that arbitrariness against our Kings which we would not allow in them to us The second Objection is that in England the Parliament has frequently devolv'd the Crown and Government upon such as were not otherwayes to have succeeded as in the instances of Edward the II. and Richard the III the first of whom was most unjustly depos'd for making use of Gavestoun and the Spencers which shewes how extravagant the People ar in their humours rather than how just their power is for besides that we do not read that these Counsellors were unsufferable there is no good Christian that can say that a King can be depos'd for using ill Counsellors And as to Richard the III. his case is so fully examined and all the Articles brought both against him and Edward the II. so fully answered by the learn'd Arnisaeus a Protestant Lawyer and who had no other interest in that debate than a love to Truth and Law in that treatise Quod nullâ ex causâ subditis fas sit contra legitimum principem arma sumere that we Protestants should be asham'd to bring again to the field such instances upon which Arnisaeus in answer to the 14. Article against Richard the II viz. that he refus'd to allow the Lawes made in Parliament does very well remark that this was in effect to consent to their being King and to transferre upon them the Royal power and this will be the event of all such undertakings The instances of Henry the IV. and Henry the VII are of no more weight than the other two since these were likewayes only Kings de facto till King Henry the VII by his marriage with the Lady Elizabeth eldest Daughter to King Edward the IV. did by her transmit a just title to his Successor therefore it was not strange that either of these should allow the Parliament to interpose when they behov'd to owe to them the possession of the Throne But yet Henry the VII himself as the Lord Bacon relates in his Historie shunn'd to have the Parliament declare his title to be just being content with these ambiguous words viz. that the inheritance of the Crown should rest remain and abide in the King c. And upon this accompt it was that the same King caus'd make a Law that such as should serve the King for the time being in his warrs could not be attainted or impeach'd in their persons or Estates As to Henry the VIII his procuring an Act whereby the Parliament declares that in case he had no issue by the Lady Iean Seymour he might dispose of the Crown to whatsoever person he should in his own discretion think fit It is answered that by a former Statute in the 25 year of his Reigne he by Act of Parliament setles the Crown upon the Heirs male of his own body and for lack of such issue to Lady Elizabeth and for lack of such issue also to the next Heirs of the King who should for ever succeed according to the right of Succession of the Crown of England which shewes that the Succession to the Crown of England is establish't by the Law of Nature and the Fundamental Laws of England upon the Heirs of Blood according to the proximity of degrees so that though that King did afterwards prevaile with the Parliament to declare this Elizabeth a Bastard as he did also his Daughter Mary by another Act and resolve to setle the Crown upon Henry Fitz Roy Duke of Richmond yet these Acts teach us how dangerous it is to leave Parliaments to the impression of Kings in the case of naming a Successor as it is to expose Kings to the arbitrariness of Parliaments But such care had God of his own Laws that Mary succeeded notwithstanding She was Papist and Elizabeth succeeded her though she was declar'd Bastard the Rights of Blood prevailing over the formalities of divorce and the dispensations of Popes as the strength of Nature does often prevaile over poisons And God remov'd the Duke of Richmond by death to prevent the unjust competition and so little notice was taken of this and the subsequent Act Anno 1535 that the Heirs of Blood succeeded without repealing of that Act as ane Act in it self invalide from the beginning for only such Acts are past by without being repeal'd And Blackwood pag. 45. observes very well that so conscious were the Makers of these Acts of the illegality thereof and of their being contrarie to the immutable Laws of God Nature and Nations that none durst produce that Kings Testament wherein he did nominat a Successor conform to the power granted by these Acts that how soon they were freed by his death from the violent oppressions that had forced them to alter a Successor three several times and at last to swear implicitly to whomever he should nominat a preparative which this age would not well bear though they cite it they proclamed first Queen Mary their Queen though a Papist and thereafter Queen Elizabeth whom themselves had formerly declared a Bastard And as in all these Acts there is nothing declaring the Parliaments to have power to name a Successor but only giving a power to the King for preventing mischiefs that might arise upon the dubiousness of the Succession to nominat a Successor two of the legal Successors having been declar'd Bastards upon some niceties not of nature but of the Popes Bulls for divorcing their Mothers so this instance can only prove that the King may nominat a Successor and that the Parliament may consent not to quarrell it which is all that they do but does not at all prove