and People and an obligation upon the King to govern according to Law. Here I shall not run up the length that our Histories have with any probability traced the Affairs of our Nation where we may upon the one Hand find our selves one of the most Ancient Kingdoms of the World under one Line of Kings So on the other we shall meet all along the clearest prints of a bounded and mixed Government Nor shall we be able in all the changes of our Monarchy to instance one of our Kings that pretended to such an Absolute Power over his Subjects as every one of them was to obey without reserve the new coining of these Words and the making use of the thing signified by them being reserved for the Reign of the late King Iames Nor will I presume to pass Censure upon some Acts of Parliament made of late that have stretch'd the Prerogative of the King and the Obedience of the Subject beyond their ordinary limits Acts of Parliament being in my Opinion only subject to the Censure of those that can unmake them I shall only to put this General Head beyond question take a short hint of the Nature of the Government of Scotland as it is agreed to by all Parties and then fix upon that particular Constitution by which the King is obliged to govern according to the Laws of the Kingdom That the Government of Scotland notwithstanding all the Acts of Parliament made in the last two Reigns in favour of the Prerogative was and is a mixed sort of Government is clear from this part of its constitution That the three Estates of Parliament and every one of them are equally as necessary and essential to the making of Laws as the King is It is the King and the three Estates of Parliament all together that make Laws and not the King alone nor the three Estates nor the King with any one or two of the three Estates Here there is one Negative Vote lodged in the King and another lodged in the Parliament for albeit the King or his Commissioner should bring in a Bill in Parliament stampt with the Royal Assent the Estates of Parliament by their Negative Vote may deny their Concurrence and thereupon it proves an Abortive so on the other hand what-ever Sanctions are enacted by the Estates of Parliament they amount no higher than so many dead Letters till once the King withdraw his Negative and imprint upon them his enlivening Assent This being the Native uncontroverted Constitution of our Government I would fain know what becomes of our new coin'd Absolute Power which all were to obey without reserve since a Power in the People to deny their Concurrence with the King in making of Laws is an uncontroverted essential part of the Original Constitution And to place this in as clear a light as possible let us suppose the King should cause be presented to the Parliament somewhat in form of an Act and should back it with a Command to the Estates to give their Concurrence in this case by the Absolute Power we are to obey without reserve the Parliament is directly obliged to concur and thereby that essential part of the Government which gives them a Negative Vote in making of Laws is totally unhinged Yea farther though the King should without consulting his Parliament lay his Commands upon his Subjects in matters that natively require a Parliamentary Sanction such as Taxes and the like this late assumed Absolute Power does as much inforce obedience thereto as if there were an Act of Parliament concurring because if it should be pretended that such a Sanction is illegal as not done in Parliament that very pretence it self is a reserve upon their Obedience and all reserves whatever King Iames was pleased to exclude In fine if a Man be obliged to obey without reserve then all Laws and Acts of Parliament cease ipso facto to become obligatory when once the King takes it upon him by Vertue of this Absolute Power to command the contrary As the Government of Scotland is in it self a mixed Government so likewise our Ancestors have been so careful to preserve it in an equal poize that they have thought fit ex superabundante to bind up the King from invading the fundamental Constitution or venturing on an unlimited Power by the most Sacred Tye among Men a Solemn Oath and Promise at his Coronation to govern according to the Laws of the Land that is these made by the King and Parliament And this Obligation upon the the King to govern according to Law I take to be the second fundamental Hinge of our Government That there was a Contract betwixt the King and People equivalent to a Coronation Oath at the very first founding of our Monarchy we have considerable Vestiges in our History And in Corbred's time he is said to have Sworn Se majorum consiliis aquieturum i. e. That he should be determined by the advice of the Elders which at that time must needs be something of the Nature of Parliaments And Gregory named the Great in our Antiquaries was Sworn to maintain the Liberties of the Christian Religion And Mackbeth another of our Kings is said to be Sworn to maintain the Commons of the Realm Yea the Kings of Scotland were so far from pretending to an unlimited Power over their Subjects That we find in Finnanus's Reign the Tenth of our Kings a formal Stipulation betwixt him and the People in these Words That the Kings in time coming should do nothing of any great Concernment without the Authority of their publick Counsel that he should manage no publick business which belonged to the Kingdom without the advice and conduct of the Elders nor should make Peace or War nor enter into Leagues or break them by himself without concurrence of these Elders and the Heads of the Tribes This continued a fundamental Law of the Kingdom for a great many Ages and the breach of it prov'd fatal to a great many succeeding Kings This I mention not because that I approve so narrow boundaries of the Royal Prerogative as to be divested of the Power of entring into Leagues and of making Peace and War but to evince that there was an express Contract betwixt the King and People and that the King did not pretend to hold his Imperial Crown of God alone as the Penner of King Iames his Declaration expresses it The Coronation Oath of Scotland during the time of Popery was express as to governing the People according to the Laws of the Land but because it also contained an obligation to maintain the Heirarchy and Errors of Rome it was altered at the Reformation and made to relate to the Reformed Religion as then established by Law and was enacted to be taken by all the succeeding Kings of Scotland at their Coronation By it they are to Promise and Swear as in the presence of the Eternal God That they shall during the whole course of their Life serve the same
Eternal God according as he is revealed in his most Holy Word and shall according to that same Word maintain the true Religion the Preaching of the Holy Word the due Administration of the Sacraments Now received and preached within the Realm of Scotland that is upon the matter the same as to Swear to be of the Reformed Religion since that Religion was established as the Religion of the Nation previous to this Act. Thereafter the King is to Swear by the same Oath That he shall rule the People committed to his charge according to the Command of God and according to the Laws and Constitutions received in this Realm Here I must confess my own weakness in the point of the late King Iames's Accession to the Crown for my reason could never persuade me of any Right he could justly claim to it as long as this Act of Parliament enacting this Coronation Oath to be taken by all succeeding Kings was in force since he neither did nor could Swear it Thus the two fundamental Hinges of the Government of Scotland being First That the Laws the People are to be governed by are such as are made by the King and Parliament And Secondly That the Government be administred by the King according to these Laws from the Obligation of a Coronation Oath If either the King alone or the three Estates by themselves take upon them to make Laws then the one Hinge is broken off and if the Government be not administrated by the King according to these Laws then the other Hinge is broken off also and in either or both of these Cases the Constitution is at an end and our Legal Government ceases Before I come to the other General Head proposed There is one Objection that lies naturally in my way which I judge necessary to be removed When I speak of Laws being only made by the King and the Three Estates of Parliament it will be told me by a certain sort of Men That this late Act of Parliament of their present Majesties Reign Abolishing Episcopacy seems to infringe that fundamental Constitution because one of the Three Estates is thereby removed viz. that of the Bishops This is easily answered when I have told them That before the Reformation the Three Estates of Parliament were thus reckon'd up the Archbishops Bishops Abbats Priors and Commendator of the Order of St. Iohn of Ierusalem made up the First Estate and were named the Lords Spiritual the Temporal Lords made up the Second and the Representatives for Counties and Burroughs together made up the Third But at the Reformation in respect of our being reformed by Presbyters and of the great opposition of the Bishops to the Reformation it self the Parliament was pleased not only to abolish the Errors of the See of Rome but also the Hierarchy of Bishops with all their Privileges and Honours whereof that of being the First of the Three Estates was one The Church of Scotland having continued under the Government of Presbyters for a great many years King Iames the First of England sound a way to restore Episcopacy in spight of the strugling Genius of the Nation And albeit at that time the Bishops by a tacit consent took their places in Parliament yet whether by neglect or design I know not they were never restored to that Privilege of being accounted one of the Three Estates of Parliament but were ever since reputed to make up but a part of one Estate in conjunction with the Temporal Lords the Second being the Representatives of Counties and the Third these of the Burroughs This account I judge the fitter to give that a great many who have not the occasion of being acquainted with the Constitution of our Country are inclinable to think that our reckoning up of the Three Estates is parallel with that of England when indeed there can be nothing more different England owed its Reformation to Bishops whereof some of them had the Glory of Sealing it with their Bloud and that Order has ever since afforded the greatest Luminaries of the Church When Popery was abolished in England the Heirarchy of Bishops was so far from being laid aside that it continued in the same State as to all its Privileges and particularly that of being the first distinct State of Parliament as they found it at the Reformation What I have advanced in point of the present reckoning up of the Three Estates of Scotland will appear farther beyond all doubt if we consider That in most of the Parliaments of King Iames the First his Reign there was none of the order of Bishops the Hierarchy being not yet restored and yet the Validity of these Parliaments were never called in question in any of the succeeding Reigns I come now to the Second General Head proposed viz. Whether or not the late King did forfeit his Right to the Crown by subverting the above-mentioned two fundamental Hinges of the Government and if thereupon the Estates did justly lay him aside In inquiring into this I shall not give the Reader the trouble of enumerating the several Cases in which the greatest Champions of Regal Prerogative allow Kings may forfeit their Right though such a digression might be pardonable being that King Iames's Proclamation insinuates fairly that in no case it can happen I confess I am so great a Friend to Monarchy as being the best of Governments and most suitable to the Genius of our Nation that I could not wish it Precarious nor the Royal Prerogative sunk below what our Parliaments preceding the two last Reigns have determined it And I think the late King Iames had reason to say of the Laws of Scotland the same he was pleased to say of these of England That they were sufficient to make the King as great a Monarch as he could wish There are a great many Arguments that inforce the unreasonableness of that Opinion That Kings may be called to an account for every mis-management and indeed it would seem much safer for the People many times to lie under the incroachments of their Princes then to endeavour a redress by a Remedy that proves often worse than the Disease And therefore it is not mis-managements in general though many and great that unmakes a King but only such as shake and subvert the Essence of the Government and unhinge the fundamental Constitution of the Kingdom And if mis-managements of this kind can be justly charged upon the late King it follows necessarily that immediately upon his so doing our Constitution is at an end and our Legal Government dissolved and thereupon He ceased to be our King and We to be his Subjects And how far the late King is thus chargeable will appear in the following Considerations That the First Fundamental Hinge of our Constitution viz. That the Laws the People are to be governed by be made by the King and Parliament was subverted by the late King is evident in his assuming a Power to annul and disable Laws by his
two Proclamations for a toleration Anno 1686. For a Power to ease annul and disable Laws is as much a part of the Legislature as a Power to make Laws since properly none can unmake Laws but those that made them Yea it would seem that Power to annul Laws should be greater than that which made them considering that all Nations by their Practice have agreed to this as a Principle in Politicks That to abrogate an ancient Custom or Law is one of the greatest stretches of the Legislature and should be the Result of the most deliberate and sedate Consultations So that the Late King by assuming a power to annul Laws made by King and Parliament did at the same time arrogate to himself a power at least as great if not greater than that of both King and Parliament together Moreover That the annulling of Laws is equivalent to the making of Laws is plain in the Case before us for there are a great many Laws incapacitating Roman-Catholicks to enjoy publick Offices and Benefices Now when King Iames assum'd a power to annul these Laws and from an absolute Power which every one was to obey without reserve was pleas'd to capacitate these Persons whom the Laws made by King and Parliament had incapacitated This was equivalent in the opinion of both the Giver and Receiver and had the same effects as if there had been an Act of Parliament expresly made in their favours But not only did the Late King in his Declarations for Liberty of Conscience by annulling of Laws take upon him a power equivalent to that of making of Laws but did in a direct and express manner invade the Legislature lodged in King and Parliament by his imposing on his Subjects an Oath contrary to Law and which even the King and Parliament together could not impose because it was in it self a subversion of the Constitution as being an obligation to support a Power directly destructive to both the fundamental hindges of the Government By this Oath the Subjects were oblig'd to the utmost of their power to defend assist and maintain the King and his Successors in the exercise of their Absolute Power and thus as the Oath was created by this Absolute Power so the Absolute Power must be supported by this Oath and thereby all the remnants of natural Liberty or a Legal Government were extinguish'd being the Subjects were oblig'd by oath to maintain the exercise of that which plainly destroy'd them Some have been at a loss to find out the Reason of the difference of Styles in the Late King's Declaration for liberty of Conscience in England and that of Ours the Imperial Language of annulling and disabling of Laws being left out in the English one and in their stead the softer words of dispensing with Laws made use of I confess I know no other reason of this different Conduct but that we were brought to that state of Slavery that it was not worth the while to dissemble his Designs against us and the English requir'd to be somewhat better smooth'd over because they had not been so fully accustomed to an Arbitrary Government Thus I have made out that King Iames both by consequence and directly did invade the Legislature which is the main hindge of the Constitution and thereby subverted the Government And if the Government was subverted it must necessarily follow that the Kingly Power was subverted with it and all our Tyes of Allegiance whether founded upon oath or otherwise are extinguish'd when the Constitution we were oblig'd to maintain is dissolved and the King of himself had divested himself of that Authority which we were to defend and obey And if it be necessary to determine the time when this Dissolution happen'd I answer That albeit for these many years our Slavery was design'd and a great many steps made to it which perhaps taken all together might amount to a Consequential Subversion of the Government yet without all doubt in that Declaration for Liberty of Conscience dated the 12th of February 1686 which asserted an Absolute Power which every one was to obey without reserve and thereupon a power to disable Laws the Late King finisht his Design and our Ruine And from that Critical Moment I must fix the Epocha of the Subversion of the Scotch Government But because there are some People so ridiculously fond of Slavery that they cannot endure to hear that any of the Kings of Scotland can forfeit his Right which I beg leave to say is nonsense to deny in the case of a total subversion of the Government as this in question is I would sain know why such a thing as forfaulture should be lookt upon as so monstrous in Scotland We find that the Late King did not only assume a Prerogative to annul and disable Laws and such a power as we were not only to obey without reserve but to swear to maintain We find that by virtue of this Prerogative and Power thus assumed He did actually annul and disable a great many Laws for security of our Religion Now suppose he had been pleas'd to impose Taxes upon his People without a Parliament and had levied them by his own Army or Dragoons borrowed from the Invincible Monarch and had to boot annulled all our Laws made for the security of our Rights and Properties And in fine Suppose he had been pleas'd to lay aside the whole body of our Laws by one of these Royal Edicts which all were to obey without reserve I would willingly know of these Gentlemen By what name to call such Practices and whether in this case we are patiently to suffer a King to subvert the whole frame of our Government and to render Bondslaves those that were born free Subjects to the protection and privilege of Laws And such suppositions are both possible and perhaps might have been actually existent if some had continued at the Helm a year or two longer I might here resume some things with relation to this Absolute Power assum'd by the Late King and the word Invincible necessity mention'd in his first Declaration for Liberty of Conscience which I had occasion to hint at in my Answer to the late Declaration to his Pretended Subjects of England c. but I am not so fond of my own Notions as to repeat them twice and the rather that the entertainment the World was pleas'd to give that Paper infinitely beyond what it deserved makes me think that This can come to the hands of few who have not seen the other Only I must say this I take no pleasure to aggravate the faults of any or make the Consequences of them look more ghastly than they are in themselves much less would I be guilty of such a thing toward Crown'd Heads However I am not able to alter the just appearance of this That the publick Safety can never be secured in any Constitution whatsoever and that the Ends of the Government are quite lost if the Person who subverts it
doth not at the same time destroy and forfeit his own share in it I come to the second member of the second general Head viz. To inquire whether or not the Late King Iames did subvert that other main hinge of the Government of Scotland which I have explain'd to be an obligation to govern by the Laws made by the King and Parliament and thereupon if the Estates of the Kingdom did justly lay him aside This Inquiry is indeed no difficult though an ungrateful and meloncholly task For what man that loves his Countrey can look back upon its ruines without emotions of tenderness To enumerate all the dismal Instances of the subversion of this hinge of our Government for the space of many years requires such a Pen as sung the Fall of Troy or the Destruction of Thebes And as the Subject merits to be set beyond the power of Oblivion I cannot but hope that this fertile Age will produce some one that shall dare to imitate Sueton's Character by writing the Lives of some of the Great tanquam ipsi vixerint and handle down to Posterity the fatal Methods us'd for enslaving a free-born People And rather than the memory of these Transactions should perish for want of a better Historian to perpetuate them I may perhaps be induc'd to venture my own Reputation in doing it short of what the Tragick Theme may bear than that it shoud not be done at all But to confine this Head to as few words as possible It 's equally evident that the Late King Iames did subvert this Fundamental of the Government as well as the former For so far was he from governing according to the Laws made by King and Parliament that his whole Government especially since the time of his assuming a dispencing and annulling Power was a continned downright opposition to Laws Here I need do no more but refer the Reader to the Printed Instrument of Government for setling the Crown of Scotland upon their present Majesties in which we have contain'd a Summary of the Late King 's more palpable and gross breaches of this Fundamental of the Constitution and which I shall only explain a little for the benefit of those that are Strangers to our Countrey King Iames did not only lay aside a great many Laws and Acts of Parliament made against saying of Mass and against Iesuits and Seminary Priests but would needs in the greatest and most publick Cities of the Kingdom erect publick Schools and Societies for Iesuits and Seminary Priests and did apply no inconsiderable part of the Publick Revenue to that use And farther He was pleas'd frankly to invade the Property of the Subjects by inverting summarly without any previous Sentence several Protestant Churches and Chappels into publick Mass-houses and particularly the great Church of Hollyroodhouse within the Capital City of the Kingdom the ancient Burying-place of our Kings that had been a Paroch Church ever since the Reformation In spite of Law He not only caus'd to be erected Popish Printing-houses for printing Popish Books but refus'd to allow the Printing of Protestant ones merely because they were against the King's Religion He not only did Invade the Laws of the Land but the most Tender part of the Law of Nature in taking Protestant Noblemen and Gentlemens Children from their Parents and Friends to be Educated in Foreign Popish Universities As particularly the Earl of Wigton and his only Brother two of the most hopeful Gentlemen and one of the Noblest and Ancientest Families of Scotland were Ravish'd from the Arms of their Mother the Countess of Crawford where neither the Prayers nor Tears of the young Noblemen themselves nor the Generous Offer of the Earl of Crawford to Educate them upon his own Charges were able to prevent so hard a Fate Lundie one of the most Antient Families of the Gentry of the Kingdom and who had the honour to be among the first Reformers from Popery tho of an Age that made him Master of himself was searched for in order to be sent the same Errand and that in a manner only becoming the Action In open Defiance of a great many Laws to the contrary the Late King Iames was pleased to fill up some of the most Important Places of the Government with Roman Catholicks such as Chancellor Secretaries of State Commissioners of the Thesaury Lords of Privy-Council Session and Exchequer He was pleased to commit the Great Magazine of the Kingdom the Government of the Castle of Edinburgh and the Custody of the Regalia to one of that Religion and to fill up a great many Important Places of the Army with the same Men that the Laws had render'd Incapable Our Laws have wisely adapted the measure of Punishment to the Nature of the Crime some infering the loss of Chattels and others the loss of Life and whole Estate whether in Lands or Chattels and this last our Law calls a Forfaulture and is only inflicted upon the most Attrocious Criminals King Iames did so far Subvert this Reasonable part of our Constitution that some of his Ministers did impose upon some Thousands of People Fines that far exceeded their whole Estates and consequently amounted to a Forfeiture and all this upon such Imaginary Crimes as this Because the Wife went not to Church once in three Weeks tho the Husband did it and I am able to instance above 400 thus Fin'd or rather Forfeited for the like Minute Crimes within the Bounds of one single County It 's an uncontroverted Principle of our Law That no man can be condemn'd to die but upon his being found guilty of the Crime by a Iury of Fifteen Men. Notwithstanding of this great Security of our Lives and Fortunes King Iames was pleased to grant Commissions to Military Officers impowering them to put to Death without either Iury Tryal or Record and which Commissions were as boldly put in Execution Nothing seems more directly founded on the Law of Nature than that a Man should not be depriv'd of his Liberty without showing him a Cause for it yet how many hundreds have been in a manner buried alive in a sort of Dungeons for several years without being told to this very day what was their Crime The Burroughs of Scotland were always reputed as one of the Estates of the Kingdom and by their Charters ratified in Parliament were Vested with a Power to Elect their own Magistrats yet King Iames did so far trample upon the Liberties of this Third Estate that without the pretence of either Surrender Consent or Sentence he was pleased to Impose upon them for Magistrates those that were Strangers and not Free of their Corporations and a great many of them Roman Catholicks It were in vain to endeavour to confine to this Paper all the Instances of King Iames his Subverting this Hinge of our Constitution viz. The obligation to Govern according to Law I shall conclude with one Paramount Instance that entails an Eternal Blot upon the Government of the