them to Reform 4. That the People or their Representatives may Exclude the Lineal Successor and raise to the Throne any of the Royal Family who doth best deserve the Royal Dignity These being all matters of Right the plain and easie way which I resolve to take for refuting them so as the learned and unlearned may be equally convinced shall be first by giving a true account of what is our present positive Law 2. By demonstrating that as our present positive Law is inconsistent with those Principles so these our positive Laws are excellently well founded upon the very nature of Monarchy and that those Principles are inconsistent with all Monarchy And the third Class of my Arguments shall be from the Principles of common Reason Equity and Government abstracting both from the positiveness of our Law and the nature of our Monarchy And in the last place I shall answer the Arguments of those Authors As to the first I conceive that a Treatise De Jure Regni apud Scotos should have clear'd to us what was the power of Monarchs by Law and particularly what was the positive Law of Scotland as to this point for if these points be clear by our positive Law there is no further place for debate since it is absolutely necessary for Mankind especially in matters of Government that they at last acquiesce in something that is fix'd and certain and therefore it is very well observ'd by Lawyers and States-men that before Laws be made men ought to reason but after they are made they ought to obey which makes me admire how Buchannan and the other Authors that I have named should have adventur'd upon a debate in Law not being themselves Lawyers and should have written Books upon that Subject without citing one Law Civil or Municipal pro or con Nor is their Veracity more to be esteemed than their Learning for it 's undeniable that Buchannan wrote this Book De Jure Regni to perswade Scotland to raise his Patron though a Bastard to the Crown and the Authors of Lex Rex Jus Populi Vindicatum and others were known to have written those Libels from picque against the Government because they justly suffered under it I know that to this it may be answered That these Statutes are but late and were not extant in Buchannan's time and consequently Buchannan cannot be refuted by them 2. That these Statutes have been obtain'd from Parliaments by the too great influence of their Monarchs and the too great Pusillanimity of Parliaments who could not resign the Rights and Priviledges of the People since they have no Warrant from them for that effect To the first of which I answer that my Task is not to form an Accusation against Buchannan but against his Principles and to demonstrate that these Principles are not our Law but are inconsistent with it and it is ridiculous to think that any such Laws should have been made before those Treasonable Principles were once hatched and maintained for Errors must appear before they be condemned and by the same Argument it may be as well urged that Arius Nestorius c. were not Hereticks because those Acts of General Councils which condemned their Heresies were not extant when they first defended those opinions and that our King had not the power of making Peace and War till the Year 1661. But 2dly For clearing this Point it is fit to know that our Parliaments never give Prerogatives to our Kings but only declare what have been their Prerogatives and particularly in these Statutes that I shall Cite the Parliament doth not Confer any New Right upon the King but only acknowledge what was Originally his Right and Prerogative from the beginning and therefore the Parliament being the only Judges who could decide whether Buchannans Principles were solid and what was Jus Regni apud Scotos These Statutes having decided those points controverted by him there can be hereafter no place for Debate and particularly as to Buchannan his Book De jure Regni apud Scotos it is expresly condemn'd as Slanderous and containing several offensive Matters by the 134 Act Parl. 8. Ja. 6. in Anno 1584. which was the first Parliament that ever sate after his Book was printed To the 2 d I answer that it being controverted what is the Kings Power there can be no stronger Decision of that Controversie in Favours of the King than the acknowledgment of all Parties Interested and it is strange and unsufferable to hear such as appeal to Parliaments cry out against their Power their Justice and Decisions and why should we oppress our Kings and raise Civil Wars whereby we endanger so much our selves to procure powers to Parliaments if Parliaments be such ridiculous things as we cannot trust when they are impowred by us and if there be any force in this answer of Buchannans there can be none in any of our Laws for that strikes at the Root of all our Laws and as I have produced a Tract of reiterated Laws for many Years so where were there ever such free unlimited Parliaments in any Nation as these whose Laws I have Cited 2dly Whatever might be said if a positive Contract betwixt the King and People were produced clearing what were the just Limits of the Monarchy and bounding it by clear Articles mutually agreed upon yet it is very absurd and extravagant to think that when the Debate is what is the King of Scotlands just Power and Right and from whom he Derives it that the Laws and repeated Acknowledgements of the whole Representatives of the People assembled in the Supream Court of the Nation having no open force upon it but enacted at several times in many several Parliaments under the gentlest peaceablest and wisest Kings that ever they had should not be better believed than the Testimonies of three or four byass'd and disoblig'd Pedants who understood neither our Laws nor Statutes and who can bring no clear fundamental Law nor produce no Contract nor Paction restricting the King or bounding his Government 3dly That which adds a great deal of Authority to this Debate and these Statutes is that as this is clear by our positive Law so it is necessarily inferred from the nature of our Monarchy and is very advantagious for the Subjects of this Kingdom which I shall clear in the second and third Arguments that I shall bring against those Treasonable Principles nor can they be seconded by any solid Reason as I shall make appear in answering the Arguments of those Authors I know that Nephthaly the Author of Jus Populi and our late Fanatical Pamphlets alleadge that our Parliaments since 1661. are null and unlawful because many who have right to Sit as Members or to Elect Members were excluded by the Declaration or Test but my answer is First That these were excluded by Acts of Parliament which were past in Parliaments prior to their exclusion and so they were excluded by Law and no man can be said to
be illegally excluded from his Seat in Parliament who is excluded by a clear Statute 2dly If this were not a good answer then the Papists might pretend that they are unjustly excluded because they will not take the Oath of Supremacy and because they are Papists and how can the Fanaticks pretend to make this objection since they by the same way excluded the Kings Loyal Subjects in the Year 1647. and 1649. c. Or how would these Authors have rail'd at any Malignant for using this Argument against them which they use now most impudently against us with far less justice for their Parliaments were unjust upon other Heads as being inconsistent with the fundamental Laws of the Kingdom and so their Acts of exclusion were null in themselves 3dly All the Statutes made since 1661 are necessary consequences of former Laws and so are rather renewed than new Laws 4ly If their reasons were allow'd there could be no end of controversie for all who are excluded would still alleadge that they were unjustly excluded and consequently there could be no submission to Authority and so no Society nor Peace The last answer that our Dissenters make when they are driven from all their other grounds is that they though the lesser are yet the sounder part of the Nation but this shift does not only overturn Monarchy but establishes Anarchy and though they were once settled in their beloved Common-wealth this would be sufficient to overturn it also for every little number of Dissenters nay and even the meanest Dissenter himself might pretend to be this sounder part of the Common-wealth but God Almighty foreseeing that pride or ignorance would suggest to frail Mankind this principle so inconsistent with all that Order and Government whereby he was to preserve the World did therefore in his great Wisdom convince men by the light of their own Reason that in matters of common concern which were to be determined by Debate the greater number should determine the lesser and such as drive beyond this Principle shall never find any certain Point at which they may rest and by the same Reason the Law has pronounc'd it safer to rest in what is decided though it be unjust than to cast loose the Authority of Decisions upon which the Peace and quiet of the Common-wealth does depend who would be so humble and just as to confess that his Adversary has the juster side Or who would obey if this were allow'd And what Idea of Government or Society could a man form to himself allowing once this principle It is also very observable that those who pretend to be the sounder part and deny obedience upon that account are still the most insolent and irregular of all the Society the greatest admirers of themselves and the greatest enemies to peace and so the unfittest to be Judges of what is the sounder part though they were not themselves Parties But what pretence is there for that Plea in this case where the foundations of our Monarchy have been unanimously acknowledg'd by many different Parliaments in many different Ages chosen at first from the Dictates of Reason and confirm'd after we had in many Rebellions found how dangerous all those popular pretences are and in which we agree with the Statesman Lawyers and Divines of all the well-Govern'd Nations under Heaven who are born under an hereditary Monarchy as it is confess'd we are To return then to the first of those Points I lay down as my first Position that our Monarchs derive not their Right from the People but are absolute Monarchs deriving their Royal Authority immediately from God Almighty and this I shall endeavour to prove first from our positive Law By the 2. Act Par. 1. Ch. 2 d. in which it is declar'd that His Majesty His Heirs and Successors have for ever by vertue of that Royal Power which they hold from God Almighty over this Kingdom the sole choice and appointment of Officers of State Counsellors and Judges But because this Act did only assert that our Kings did hold their Royal Power from God but did not exclude the people from being sharers in bestowing this Donative therefore by the 5th Act of that same Parliament they acknowledge the Obligation lying on them in Conscience Honour and Gratitude to own and assert the Royal Prerogatives of the Imperial Crown of this Kingdom which the Kings Majesty holds from God Almighty alone and therefore they acknowledge that the Kings Majesty only by vertue of His Royal Prerogative can make Peace and War and Treaties with forraign Princes Because this last Statute did only assert that the King did hold His Imperial Crown from God alone but did not decide from whom our Kings did only derive their Power therefore by the 2 d. Act Par. 3 d. Ch. 2 d. It is declar'd that the Estates of Parliament considering that the Kings of this Realm Deriving their Power from God Almighty alone they do succeed Lineally thereto c. Which Statutes do in this agree with our old Law for in the first Chapter of Reg. Magist. vers 3. these Words are That both in Peace and War our Glorious King may so Govern this Kingdom committed to Him by God Almighty in which He has no Superiour but God Almighty alone which Books are acknowledg'd to be our Law and are called the Kings Laws by the 54th Act Par. 3 d. Jam. 1. and the 115. Act Par. 14. Jam. 3. These our Laws both Ancient and Modern can neither be thought to be extorted by force nor enacted by flattery since in this we follow the Scripture the Primitive Church and their Councils the Civil Law and its Commentators and the wisest Heathens both Philosophers and Poets As to the Scripture God tells us That by him Kings Reign and that he hath anointed them Kings and that the King is the Minister of God David tells us That God will give strength to his King and deliverance to his King and to his Anointed Daniel sayes to Nebuchadnezar The God of Heaven hath given thee a Kingdom And to Cyrus God gave to Nebuchadnezar thy Father a Kingdom and for the Majesty that he gave him all Nations trembled As to the Fathers Augustin de Civit. Dei l. 5. c. 21. Let us not attribute unto any other the Power of giving Kingdoms and Empires but to the true God Basil in Psal 32. The Lord setteth up Kings and removeth them Tertul. Apol contra gentes Let Kings know that from God only they have their Empire and in whose power only they are And Irenaeus having Prov'd this point fully ends thus l. 5. c. 24. By whose Command they are born men by his likewise they are ordain'd Kings This is also acknowledg'd by the Councils of Toledo 6. c. 14. of Paris 6. c. 5. vid. Council aquis gran 3. c. 1. Amongst late Divines Marca the famous Arch-Bishop of Paris Concord sacerd imperii l. 2. c. 2. n. 2. asserts That the Royal Power is not only bestowed
restrained by coactive Law Arnisaeus de essentia Majest cap. 3. num 4. By the 25. Act Parl. 15. Ja. 6. The Parliament does acknowledge That it cannot be deny'd but his Majesty is a free Prince of a Soveraign Power having as great Liberties and Prerogatives by the Laws of this Realm and Priviledge of his Crown and Diadem as any other King Prince or Potentate whatsoever And by the 2. Act. Parl. 18. Ja. 6. The Parliament consenting to his Majesties restoring of Bishops declare and acknowledge the absoluteness of our Monarchy in these words The remedy whereof properly belongs to his Majesty whom the whole Estates of their bounden duty with most hearty and faithful affection humbly and truly acknowledge to be a Soveraign Monarch absolute Prince Judge and Governour over all Persons Estates and Causes both Spiritual and Temporal within his said Realm And by the first Act of that same Parliament The Estates and whole Body of this present Parliament acknowledge all with one voluntary humble faithful united heart mind and consent his Majesties soveraign Authority Princely Power Royal Prerogative and Priviledge of his Crown over all Persons Estates and Causes whatsoever within his said Kingdom And because no Acts were ever made giving Prerogatives nor even declaring Prerogatives to have been due until some special controversie did require the same so that Possession and not positive Law was the true measure of the Prerogative therefore the Parliament doth in that same Act approve and perpetually confirm all the Royal Prerogatives as absolutely amply and freely in all respects and considerations as ever his Majesty or any of his Royal Predecessors possessed used and exercised the same and they promise that his Majesties Imperial Power which God has so enlarg'd shall never be in any sort impair'd prejudg'd or diminished but rather reverenc'd and augmented as far as possibly they can In the Preface to our Books of Law call'd Regiam Majestatem it is acknowledg'd that the King has no Superiour except the Creator of Heaven and Earth who governs all Forreign Lawyers also such as Lansius de Lege Regia num 49. and others do number the King of Scotland amongst the Absolute Monarchs My second Argument for proving our King to be an absolute Monarch shall be from my former position wherein I hope I have prov'd sufficiently that our Kings derive not their Right from the People for if the King derive not his Power from the People the Monarchy can never be limited by them and consequently it must be an absolute Monarchy for there could be nothing more unjust more unnatural and more insolent then that the People should pretend a Right to limit and restrain that Power which they never gave and the only reason why Buchannan and his Complices do assert our Monarchy to be a qualified and limited Monarchy being thâ—â— the People when they first Elected our Kings did qualifie and restrain their Government This position being false as appears by the absolute Oath and original Constitution above set down which is lessened or qualified by no condition whatsoever therefore the conclusion drawn from it must be false likewise The third Argument shall be deduced from the Nature of Monarchy and in order thereto I lay down as an uncontroverted principle that every thing must be constructed to be perfect in its own Nature and no mixture is presum'd to be in any thing but he who alledges that the thing controverted is added against Nature must prove the same and therefore since Monarchy is that Government whereby a King is Supream the Monarch must be presum'd neither to be oblig'd to Govern by the advice of the Nobility for that were to confound Monarchy with Aristocracie nor by the advice of the People for that were to confound it with Democracie and consequently if Buchannan and others design to prove that our Kings are obliged to Govern by the advice either of the Nobility or People or are subject to be Chastised by them they must prove that our Kings at their first Creation were Elected upon these Conditions the very Essence and Being of Monarchy consisting in its having a Supream and absolute Power Arnisaeus c. 30. Vasquez l. 1. Controv. c. 47. Budaeus in l. princeps Zas ibid. ff de legibus pone enim says Arnisaeus populum in Regem habere aequalem potestatem neutrum pro summo venditari posse When we hear of a Monarch the first notion we have is that he is a Subject to none for to be a Subject and a Monarch are inconsistent but if we hear that his Nobility or People or both may Depose or punish him we necessarily conclude by the Light of Nature that They and not He are the supream Governours Thus we see that in allowing our King to be an absolute Monarch we have only allow'd him to be a Monarch and to have what naturally belongs to him and that by as necessary a consequence for as every Man is presumed to be reasonable because reason is the Essence of Man so is a King presum'd to be absolute except these limitations whereby the Monarchy is restrained could be prov'd by an express Contract 4thly How is it imaginable but that if our Predecessors had Elected our Kings upon any such Conditions but they would have been very careful to have limited the Monarchy and this Contract had with these conditions been recorded whereas on the contrary we find that albeit great care was taken to record the Oath of Allegiance made to the King and to grave the same upon Marble Tables consign'd unto the custody of their Priests as sacred Oracles yet none of all our Historians make the least mention of any limitations in these Oaths or by any other Contract and to this day our Oaths of Supremacy and Allegiance are clogged and lessened by no limitations If it be answered that these limitations do arise from the nature of the thing it self there being nothing more unreasonable and contrary to the nature of Government than that a Monarch who was design'd to be a Protector to his People should be allow'd to destroy them To this it is answered That Monarchy by its nature is absolute as has been prov'd and consequently these pretended limitations are against the nature of Monarchy and so arise not ex natura rei nor can there any thing be more extravagant than to assert that that which is contrary to the nature of Monarchy should arise from its nature and it might be with greater reason pretended that because the great design of men in Marriage is to get a Helper that therefore they may repudiate their Wives when they find them unsupportable and that the putting them away in such cases is consistent enough with the nature of their Oath though simple and absolute this cause of Divorce arising from the nature of Marriage it self This is after Vows to make Inquiry and what Vow or Oath could be useful if the giver were to be Judge how
Dominium directum a right of Superiority as all Superiors have and that the people on whom he has bestowed those Lands are oblig'd to concur in the expence with him for the defence of it For as if he had retain'd the Property he would have been able with the Fruits and Rents to have defended it So it is not agreeable to sense or reason that they to whom he has granted it should not be oblig'd to defend it especially seeing all the Rights made by the King are in Law presum d meer Donations For it cannot be deny'd but that all Lands were originally granted by the King and so must have originally belong'd to himself for no person can give what is not his own and our Law acknowledgeth that all Lands belong to the King except where the present Heretor can instruct a Right flowing from our King and that he is the Fountain of Property as well as of Justice 2. In Law all who are ingag'd in a Society as to any thing that is the Subject of the Society should contribute to its preservation and therefore the King having the Dominium directum and the Vassal Dominium utile it follows that the Vassals of the Kingdom should contribute towards its preservation and the King may expect justly an equal Contribution towards the defraying the necessary expence and thence it was that by our old Law all Heretors were obliged to furnish some unum Militem unum Sagittarium or Equitem Some a Bow-man some a Souldier some a Horse-man But afterwards the King having changed those Tenures or because all betwixt 60. and 16. were obliged to come to the Field with 40. dayes Provision which was all that was then necessary it follows that now that way of making War being altered the Subjects should contribute towards the way that is necessary for defending the Kingdom 3. The King by His Forces protects our Persons and by his Navies protects our Commerce by His Ambassadors manages all our publick Affairs and by His Officers and Judges administrates Justice to us And so it is just that all this should be done at our expences and that we should defray the publick expences of the Government and so much the rather because by a special Statute with us it is declared that the King may impose what He pleases on all that is imported or may forbid us to export any thing without which we could not live and what ever he gets from us he distributes amongst us without applying one shilling of it to his own private use The King or whoever has the management of the Government have in the opinion of Lawyers Dominium eminens a Paramount and Transcendent Right over even private Estates in case of necessity when the common Interest cannot be otherwise maintained and this Grotius though no violent friend to Monarchy doth assert very positively and clearly l. 1. c. 1. § 6. l. 3. c. 19. num 7. and it cannot be denied but that a King may take any mans Lands and build a Garison upon it paying for it and that in case of a Siege the King may order whole Suburbs to be burnt down for the security of the Town And whence is this power save from that Paramount and Supereminent Right that the King has over all private Estates for the good of the whole Society and Kingdom Nor can it be denyed but that the King may in time of War Quarter freely and it is in his power to declare War when or where he pleases Nor do the former Statutes contradict this for they exclude not Necessity that has no Law and is it self that Law which gave David right to eat the Shew-bread and the Christian Emperours right to sell the Goods of the Church for maintaining their Armies with consent of the Primitive Fathers and this is so necessarily inherent in all administration that the very Master of a Ship has power to throw overboard the Goods of Passengers and Merchants in a storm for the preservation of the Ship And they are not enemies to the King only but to themselves who would deny the King this power The third Classis of Arguments that I am to use against these Principles shall be from Reason and Experience to fortifie and corroborate our positive Law and the nature of our Monarchy for since humane Reason it self is lyable to so many Errors and since men when they differ are so wedded to their own Sentiments that few are so wise as to see their own mistakes or so ingenuous as to confess them when they see them Therefore Prudence and Necessity have obliged men to end all Debates by making Laws and it is very great vanity and insolence in any private men to justify their own private Sense against the publick Laws that is to say the Authoritative Sentiments and the legal Sense of the Nation If we were then to Establish a new Monarchy were it not prudent and reasonable for us to consider what were the first Motives which induced our Predecessors to a Monarchy and Boethius and Lesly both tell us That lest they might be distracted by obeying too many it was therefore fit to submit to one if then this Reason was of force at first to make us submit to a Monarchy it should still prevail with us to obey that Monarchy and not gape idely after every new Model Ne multos Reges sibi viderentur creare summam rerum aut optimatibus aut ipsi multitudini permittere aspernabantur sayes Boethius fol. 6 Here the advantages of being govern'd by Aristocracie or Democracie were expresly considered and rejected so that we have our Predecessors choice founded on their way of Reasoning added to the Authority of our Law and after we their Successors had seen the mischiefs arising from the pretences of Liberty and Property with all the advantages that seeming Devotion could add to these Our Representatives after two thousand years experience and after a fresh Idaea of a long Civil War wherein the Arguments and Reasons produced by Buchannan were fortified and seconded by thousands of Debates They did by many passionate Confessions and positive Laws acknowledge That the present Constitution of our Monarchy is most excellent Act 1 Par. 1. Char. 2. That inevitable prejudices and miseries do accompany the invading the Royal Prerogative Act 4. That all the troubles and miseries they had suffered had sprung from these Invasions Act 11. That all the bondage they had groaned under was occasioned by these Distractions Act 2. Par. Sess 2. Ch. 2. So that we have here also a Series of Parliaments attesting the reasonableness of the Constitution of our Monarchy and His Majesties Prerogatives 2. We must not conclude any thing unreasonable or unfit because there are some inconveniencies in it for all humane Constitutions have their own defects But I dare say the Principles of my Adversaries have more than mine for Common-wealths are not only subject to err because they have their
with him the Marble Chair which was the mark of Empire And Boetius immediately upon his arrival calls him King and Fordon the most ancient of our Historians lib. 1. cap. 36. calls him Fergusius Filius Ferardi aut Ferquhardi ex antiquorum Regum prosapia genitus qui ambitione Regnandi stimulatus magnam sibi Juvenum copiam assimulavit Albionem continuo progressus est ibidem super eos Regem primum se constituit that is to say he made himself the first King therefore K. James Basil Doron pag. 201. asserts that K. Fergus made himself King and Lord as well of the whole Lands as of the whole Inhabitants 2. We read nothing at all of the consent of the People but of the Heads of the Tribes who had no Commission from the People each of them having by his Birth-right a Power to Command his own Tribe and consequently the Royal Power was not derived to Fergus from the People but had it's Original from this Birth-right that was both in them and Fergus and he succeeded in the Right of those Chiefs to Command their respective Families and Boetius brings in King Fergus lib. 1. num 5. Speaking of himself as a pious Parent as one who owes to them what a Parent owes to his Children sunt pij Parentes in Liberos propensi debemus vobis quod proli genitores And the consent given by the Chief of the Clanns and the People did not give but declare the former Right as our consent now does in Acts concerning the Prerogative and as the Vote of the Inquest does in the Service of Heirs and thus at the Coronation of our Kings it is still said by our Historians that such a man was declared King communi suffragio acclamatione 3. This consent being only given in the Army cannot be said to have been universally by the People nor do we read that the People did Comissionate the Army or that the Army consulted the People and in general it cannot be instanc'd that the People did in any Nation universally consent to Election nor is it possible all the People can meet And in Poland which is the only Elective Monarchy we know the Free-holders only consent and yet every private Man and Woman have as great interest according to these pretended Laws of Nature as they have potior est conditio negantis Nor do we find that the Commons and mean People have any interest in the Elections of our Magistrates or Parliament Men so that Popular freedom by Birth and the interest of the People in Popular Elections are but meer Cheats invented to engage the Rabble in an aversion to the establish'd Government when factious and insolent Spirits who cannot submit themselves to Government design to cheat the Multitude by fair Pretences and to bride them by Flattery If it be pretended that it is not certain whether King Fergus was eldest Son to Ferquhard nor is it probable that if he had been such he would have preferr'd an uncertain Conquest in Scotland to his secure Succession in Ireland To this it is answered that all our Histories bear that King Ferquhard sent his Son Fergus and when a Son is spoken of indefinitly in such Cases he is actually understood to be the Eldest 2. He brought with him the Marble Chair the mark of Empire which would not have been allow'd to a younger Brother 3. It is said that having settled the affairs of Scotland he returned into Ireland to settle the differences there about the choosing of a new King which does import that he should have been King if he had not prefer'd Scotland to Ireland and the reason of this preference was because Ireland was then divided amongst many Kings and his Predecessors had but a very small share of it at that time and Scotland being a part of a greater Isle be probably found in this greater Isle a higher flight for his Hopes and more latitude for his Ambition But albeit the Kings of Scotland had been originally and at first Elected by the People yet it does not at all follow necessarly as Buchannan Dolman and our other Republicans pretend that therefore they may reject them at their pleasure or which is all one when they imagine that the Kings Elected by them serve not the ends for which they were designed and that for these Reasons 1. It cannot be deny'd but that the People may consent to an Election of a Monarch without Limitations for from the Principles of Nature we may learn that whatever is in ones power may be by them transfer'd upon another and therefore if the People be invested with a power of governing themselves they may cartainly transfer this Power upon another and we see that all Christians and even our Republicans allow that men may sell themselves to be Slaves a custom not only mention'd but approv'd by God himself so far does consent reach beyond what is necessary for maintaining this Point 2. If this could not be then there could be no such thing as absolute Monarchies which is against the receiv'd Opinion of all Nations and against the Doctrine of all Authors who though they debate that this or that Monarchy in a particular Countrey is not Absolute yet it was never controverted by any man alive but that the People mâ—ght consent and in many places have consented to absolute Monarchies and by the famous Lex Regia amongst the Romans Populus ei in eum omne Imperium suum Potestatem transtulit instit de jur nat gent. civ § 6. Mention'd likewise by that Famous Lawyer Vlpian l. 1. ff de constitut Princ. 3. We see this consequence to be very false in many other cases and therefore it cannot be necessary here for we find that a man chooses a Wife yet it is not in his power to put her away Cardinals choose the Pope and Chapters the Bishop and yet they cannot depose them the Common Council choose Magistrates and yet they cannot lay them aside 4. This Reasoning is condemn'd as most fallacious by most learn'd and disinterested Lawyers and therefore it cannot be infallible as is pretended vide Arnisaeum cap. 3. num 2. Haenon dis Pol. 9. num 44. Panorm ad cap. 4. de Cler. non residend Zasius ad l. non ambigitur num 3. ff de legibus Nor have any Lawyers differ'd from this common opinion of mankind except some very few who have differ'd from a Principle of Pique rather than of Judgment The next thing that I am to prove in this my first Proposition is That Our King is an absolute Monarch and has the Supream Power within this his Kingdom and this I shall endeavour to prove First From our positive Law 2. By several Reasons deduc'd from our Fundamental Laws and Customs 3. From the very nature of Monarchy it self and the Opinion of Lawyers who write upon that Subject and who define Absolute Monarchy to be a Power that is not limited or
Tenor of all the Laws that ever were made in Scotland The Parliament returning to their duty ordained that Style to be altered and to bear as formerly Our Soveraign Lord with Advice and Consent c. But lastly what advantage can the people have by placing their security in the Parliament since they are so liable to Passions Errors and Extravagancies as well as Kings are and have if Buchannan be believed betrayed the interest of the Kingdom since King Kenneth the Seconds time now above 700. years and they are ordinarily led by some pragmatical Ring-leaders who have not that kindness or interest to preserve the Kingdom that Kings have and since the King may make so many Noble-men and Burghs Royal at pleasure by whose Votes he may still prevail what security can we have by giving them a power above the King or how can they have it From all which it may clearly appear that we have had Kings long ere we had Parliaments and that the Parliaments derive their power from the King and that at first our King only called the Heads of Families and his own Officers as his Council with whom he consulted without any necessity to call any others than he pleased there being no Law Article nor Capitulation obliging him from the beginning thereunto And our Kings were so far from having Parliaments associated with them in their Empire that there is no mention at all of them or of any condition relating to them in the first Institution of our Kings above related nor were there any Parliaments in being at that time But after the Feudal Law came to be in vigor then our Kings looking upon the whole Kingdom as their own in property King Malcolme Canmore did distribute all the Land of Scotland amongst his Subjects as his Liege-men which is clear by the first Chapter of his Laws and according to the Feudal Law all the Vassals of our Kings compeared in their Head-Court and therein consulted what was fit for the Kingdom but thereafter the way of making War requiring Money and Property belonging to the Subject as Government did to the King it was necessary to have their consent for raising Money And from this did arise the inserting the advice and consent of the three Estates in our Acts of Parliament From this also it is very clear that their opinion is very unsolid and ill founded who think that Kings can do nothing without a special Act of Parliament even in matters of Government As for instance that he cannot restrain the Licence of the Press or require his Subjects to take an Engagement for securing the Peace for these and the like being things which relate immediately to Government the King has as much right to regulate these as we have to regulate and dispose of our Property Government being the Kings Property 2. Though the Monarchy had been derived from the People yet as soon as our Kings got the Monarchy they got ever thing that was necessary for the Aministration of it which as it is common sense and reason so it is founded upon that most wise and just Maxime in Law Quando aliquid conceditur omnia Concessa videntur sine quibus concessum explicari nequit 3. I desire to know where there is yet a Law giving the King a Negative voice a power of Erecting Incorporations or a power to grant Remissions for Crimes or Protections for Civil Debts and yet the people is far more concerned in these and the King 's having power to do these and a thousand other things doth rather oblige and warrant me to lay down a general Rule that the Kings of Scotland can do every thing that relates to Government and is necessary for the administration thereof though there be no special Law or Act of Parliament for it if the same be not contrary to the Law of God Nature or Nations The second Conclusion that we draw from these former Principles is that Princes cannot be punished by their own Subjects as Buchannan and our Republicans do assert which is most clear by the former Laws wherein it is declared That the King is a Soveraign and absolute Prince and deriving his power from God Almighty that it is Treason to endeavour to depose or suspend the King Wherein our Law is founded on the nature of Monarchy for if he be Supream He cannot be judg'd for no man is judg'd but by his Superior and that which is Supream can have no Superior and on the Principles of the Law of Nature and Nations because saith the Law No man can be both the Person who Judgeth and the Person Judg'd and it is still the King who Judgeth since all other Judges do represent him and derive their power from him Ipse se praetor cogere non potest quia triplici officio fungi nequit suspectum dicentis coacti cogentis L. Ille a quo ff ad Trebell It is a prnciple in all Law that Jurisdiction and all other Mandats cease with the power that granted it and therefore as they acknowledge that a King cannot be cited till he have forfeited His just Right so as soon as he has forfeited it all the power of the ordinary Judges in the Nation falls and becomes extinct and no other Judge can Judge Him because no other Judge can sit by vertue of any other Authority till it be known that he has forfeited his and that cannot be till the event of the Process and if the People be Judges yet they cannot assume the Government till the King has forfeited it And why also should they be Judges who have neither knowledge nor moderation who are acted by humor and delight in insolence and how shall they meet Or who shall call them Nor can the Parliament Judge them because they derive their Right from the King as shall be prov'd And though they were equal yet no equal can Judge another par in parem non habet Imperium nemo sibi Imperare potest No man can command himself l. si de re sua ff de recept Arbitr Nemo sibi legem imponere potest l. quid autem ff de denat inter virum uxorem and therefore the Civil Law which is ours by Adoption does positively assert That Princeps legibus solutus est the King is liable to no Law l. princeps ff de legibus For though He be lyable to the Directive Force of the Law that is to say He ought to be Governed by it as his Director Yet He is not lyable to the Coercive Force of the Law as all Lawyers that are indifferent do assert Harmenpol l. 1. tit 1. Sect. 48. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The King is not Subject to the Law because offending against it he is not punisht vid. Granswinkell cap. 6. Arnis cap. Francisc a victoria Relect. 3. num 4. Ziegler de jur Majes cap. 1. num 12. with whom the Fathers also agree Ambros in Apol. David cap. 4. Liberi sunt Reges
since it is not lawful for the Wife to judge her Husband or for the Body to cut off the Head 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. Ja. 1. It is declared Rebellion to rise in Arms against the Kings Person And by the 14. Act 6. Par. King Ja. 2. It is Treason to Rebel against the Kings Person or Authority By the 25. Act Par. 6. Ja. 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 those who commit Treason By the 131. Act 8. Par. Ja. 6. All the Subjects are forbid to Convocate for holding of Councils or other Assemblies without his Majesties express Warrant and by the 12. Act 10. Par. King Ja. 6. The entring into Leagues or Bonds without his Majesties special Command is declared to be Sedition Most of which Acts are prior to Buchannans time and consequently he was very inexcusable 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 Country-men having by a long and open Rebellion opposed the most devout and most just of all Kings upon the false pretence of Liberty and Religion the Parliament of this Kingdom from a full Conviction of the Villainies of those 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 pretence whatsoever and to shew that all such Glosses as were us'd by Buchannan were absurd and did not make void the first Laws though general the Parliament did by the 4. Act of that 1. Parliament declare that any Explanation or Gloss 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 kept by the Subjects for Preservation of the Kings Majesty the Religion Laws and Liberties of the Kingdom or for the publick Good either of Church or Kingdom are false and Disloyal and contrary 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 produc'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 superiour 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 superiour 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 lest 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 those Ruffians 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 necessary 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 Monarchial 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 something might be said why we might ballance them with Authority But since both Reason and doleful 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 ordinarily lead on Rebellions it is safer to obey those of the two fallible Governours whom God hath set over us and whom the Law ties us to obey and to whom also we are bound by the Oath of Allegiance especially seeing 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 too fighting one against another so that we shall not even know which of these Divils to obey 4. This Position is against the very Nature not only of Monarchy but of all Governments For who will
the People nor Parliaments of this Kingdom could exclude the Lineal Successor or could raise to the Throne any other of the same Royal Line For clearing whereof I shall according to my former method First clear what is our positive Law in this Case Secondly I shall shew that this our Law is founded upon excellent Reason And lastly I shall answer the Objections As to the first It is by the second Act of our last Parliament acknowledged That the Kings of this Realm deriving their Royal Power from God Almighty alone do Lineally succeed thereto according to the known degrees of Proximity in Blood which cannot be interrupted suspended or diverted by any Act or Statute whatsoever and that none can attempt to alter or divert the said Succession without involving the Subjects of this Kingdom in Perjury and Rebellion and without exposing them to all the fatal and dreadful consequences of a Civil War DO THEREFORE from a hearty and sincere sence of their duty recognize acknowledge and declare that the right to the Imperial Crown of this Realm is by the inherent right and the Nature of Monarchy as well as by the fundamental and unalterable Laws of this Realm transmitted and devolved by a lineal Succession according to the Proximity of Blood And that upon the death of the King or Queen who actually reigns the Subjects of this Kingdom are bound by Law duty and allegiance to obey the next immediate and Lawful Heir either Male or Female upon whom the right and administration of the Government is immediatly devolved And that no difference in Religion nor no Law nor Act of Parliament made or to be made can alter or divert the right of Succession and lineal descent of the Crown to the nearest and Lawful Heirs according to the degrees aforesaid nor can stop or hinder them in the full free and actual administration of the Government according to the Laws of the Kingdom LIKE AS OUR SOVEREIGN LORD with advice and consent of the said Estates of Parliament do declare it is High-treason in any of the Subjects of this Kingdom by writing speaking or any other manner of way to endeavour the alteration suspension or diversion of the said right of Succession or the debarring the next Lawful Successor from the immediate actual full and free administration of the Goment conform to the Laws of the Kingdom And that all such attempts or designs shall infer against them the pain of Treason This being not only an Act of Parliament declaring all such as shall endeavour to alter the Succession to be punishable as Traitors but containing in it a Decision of this Point by the Parliament as the Supream Judges of the Nation and an acknowledgment by them as the representatives of the people and Nation There can be no place for questioning a point which they have plac'd beyond all controversie especially seeing it past so unanimously that there was not only no vote given but even no argument proved against it And the only doubt mov'd about it was whether any Act of Parliament or acknowledgment was necessary in a point which was in it self so uncontroverted And which all who were not desperate Fanaticks did conclude to be so in this Nation even after they had heard all the arguments that were us'd and the Pamphlets that were written against it in our Neighbour-Kingdom But because so much noise has been made about this question and that blind bigotry leads some and humorous faction draws others out of the common road I conceive it will be fit to remember my Reader of these following Reasons which will I hope clear that as this is our present positive Law so it is established upon the fundamental constitution of our Government upon our old Laws upon the Laws of God of Nature of Nations and particularly of the Civil Law As to the fundamental constitution of our Government I did formerly remark that our Historians tell us that the Scots did swear Allegiance to FERGUS who was the first of our Kings and to his Heirs And that they would never obey any other but his Royal Race Which Oath does in Law and Reason bind them to obey the Lineal Successor according to the proximity of Blood For an indefinite obligation to obey the Blood Royal must be interpreted according to the proximity in Blood except the swearers had reserv'd to themselves a power to chuse any of the Royal Family whom they pleas'd which is so true that in Law an obligation granted to any man does in the construction of Law accrue to his Heirs though they be not exprest Qui sibi providet haeredibus providet And Boethius tells us that after King FERGUS'S death the Scots finding their new Kingdom infested with Wars under the powerful influence of Picts and Britains they refus'd notwithstanding to prefer the next of the Royal Race who was of perfect age and a Man of great Merit to the Son of King FERGUS though an infant which certainly in reason they would have done if they had not been ty'd to the lineal Successor But least the Kingdom should be prejudg'd during the minority they enacted that for the future the next of the Blood Royal should always in the minority of our Kings administer as Kings till the true Heir were of perfect age But this does not prove as Buchannan pretends that the people had power to advance to the Throne any of the Royal Race whom they judg'd most fit for common sense may tell us that was not to chuse a King but a Vice-Roy or a Regent For though to give him the more authority and so to enable him the more to curb factions and oppose enemies he was called King yet he he was but Rex fidei Commissarius being oblig'd to restore it to the true Heir chosen rather to serve than Reign and so Governed only for a time and consequently was only his Vice-Roy But because the Uncles and next Heirs being once admitted to this fidei Commissarie title were unwilling to restore the Crown to their Nephews and sometimes murder'd them and oft-times rais'd Factions against them Therefore the People abhorring those impieties and weary of the distractions and divisions which they occasion'd begg'd from King KENNETH the 3 d that these following Laws might be made 1. That upon the Kings death the next Heir of whatsoever Age should succeed 2. The Grand-child either by Son or Daughter should be preferr'd 3. That till the King arriv'd at 14 years of age some Wise-man should be chosen to Govern after which the King should enter to the free Administration and according to this constitution some fit Person has still been chosen Regent in the Kings Minority without respect to the Proximity of Blood and our Kings have been oft-times Crown'd in the Cradle In conformity also to these Principles all the acknowledgments made to our Kings run still in favour of the King and his Heirs As in the first Act Parl. 18 JAMES
VI. and the II III IV. Acts Parl. 1. CHARLES II. And by our Oath of Allegiance we are bound to bear faithful and true Allegiance to his Majesty his Heirs and Lawful Successors which word LAWFUL is insert to cut off the pretences of such as should not succeed by Law and the insolent arbitrariness of such as being but Subjects themselves think they may chuse their King viz. Act 1. Parl. 21. JAMES the VI. That this right of Succession according to the Proximity of Blood is founded on the Law of God is clear by Num. Chap. 27. v. 9. and 10. If a man hath no Son or Daughter his Inheritance shall descend upon his Brother by Num. 36. Where God himself decides in favour of the Daughters of Zelâ—phehad telling us it was just thing they should have the inheritance of their Father And ordains that if there were no Daughters the Estate should go to the Brothers St. Paul likewise concludes Rom. 8. If Sons then Heirs looking upon that as a necessary Consequence which if it do not necessarily hold or can be any way disappointed all his divine reasoning in that Chapter falls to nothing And thus Ahaziah 2 Chron. 22. v. 1. was made King though the youngest in his Fathers stead because says the Text The Arabians had slain all the eldest which clearly shews That by the Law of God he could not have succeeded if the eldest had been alive We hear likewise in Scripture God oft telling By me Kings reign And when he gives a Kingdom to any as to Abraham David c. he gives it to them and their Posterity That this Right of Succession flows from the Law of Nature is clear because that is accounted to flow from the Law of Nature which every man finds grafted in his own heart and which is obey'd without any other Law and for which men neither seek nor can give another distinct Reason all which holds in this Case for who doubts when he hears of an Hereditary Monarchy but that the Next in Blood must succeed and for which we need no positive Law nor does any man enquire for a further Reason being satisfied therein by the Principles of his own heart And from this ground it is that though a remoter Kinsman did possess as Heir he could by no length of time prescribe a valid Right since no man as Lawyers conclude can prescribe a Right against the Law of Nature and that this Principle is founded thereupon is confest l. cum ratio naturalis ff de bonis damnat cum ratio naturalis quasi lex quaedam tacita liberis parentum haereditatem adjecerit veluti ad debitam successionem eos vocando propter quod suorum haeredum nomen eis indultum est adeo ut ne à parentibus quidem ab ea successione amoveri possint Et § emancipati Institut de haered quae ab intest Praetâ—r naturalem aequitatem sequutus iis etiam bonorum possessionem contra 12 tabularum leges contra jus civile permittit Which Text shews likewise That this Right of Nature was stronger than the Laws of the Twelve Tables though these were the most ancient and chief Statutes of Rome which Principle is very clear likewise from the Parable Matth. 21. where the Husband-men who can be presum'd to understand nothing but the Law of Nature are brought in saying This is the Heir let us kill him and seize on his inheritance Nor does this hold only in the Succession of Children or the Direct Line but in the collateral Succession of Brothers and others L. hac parte ff unde cognati Hac parte proconsul Naturali aequitate motus omnibus cognatis permittit bonorum possessionem quos sanguinis ratio Vocat ad haereditatem Vid. l. 1. ff de grad l. 1. § hoc autem ff de bonor possess And these who are now Brothers to the present King have been Sons to the former and therefore whatever has been said for Sons is also verified in Brothers As for instance though his Royal Highness be onely Brother to King CHARLES II. yet He is Son to King CHARLES I. and therefore as St. Paul says If a Son then an Heir except he be secluded by the Existence and Succession of an elder Brother That this gradual Succession is founded on the Law of Nations is as clear by the Laws of the Twelve Tables and the Praetorian Law of Rome And if we consider the Monarchy either old or new we will find That where ever the Monarchy was not Elective the degrees of Succession were there exactly observed And Bodinus de Republ. lib. 6. cap. 5. asserts that Ordo non tantum naturae divinae sed etiam omnium ubique gentium hoc postulat From all which Pope Innocent in c. grand de supplend neglig praelati concludes In regnis haereditariis caveri non potest ne filius aut frater succedat And since it is expresly determined That the Right of Blood can be taken away by no positive Law or Statute L. Jura Sanguinis ff de Reg. jur L. 4. ff de suis legitim And that the power of making a Testament can be taken away by no Law L. ita legatum ff de conditionibus I cannot see how the Right of Succession can be taken away by a Statute for that is the same with the Right of Blood and is more strongly founded upon the Law of Nature than the power of making Testaments Since then this Right is founded upon the Law of God of Nature and of Nations it does clearly follow That no Parliament can alter the same by their municipal Statutes as our Act of Parliament has justly observed For clearing whereof it is fit to consider That in all Powers and Jurisdictions which are subordinate to one another the Inferior should obey but not alter the Power to which it is subordinate and what it does contrary thereto is null and void And thus If the Judges of England should publish Edicts contrary to Acts of Parliament or if a Justice of Peace should reverse a Decree of the Judges of Westminster these their endeavors would be void and ineffectual But so it is that by the same Principle but in an infinitely more transcendent way all Kings and Parliaments are subordinate to the Laws of God the Laws of Nature and the Laws of Nations and therefore no Act of Parliament can be binding to overturn what these have established This as to the Law of God is clear not only from the general Dictates of Religion but 28 Hen. 8. cap. 7. the Parliament uses these words For no man can dispense with God's Laws which we also affirm and think And as to the Laws of Nature they must be acknowledged to be immutable from the principles of Reason And the Law it self confesses that Naturalia quaedam jura quae apud omnes gentes peraeque observantur divina quadam providentia constituta semper firma atque immutabilia permanent § sed naturalia
their consent But that can never amount to a power of transferring the Monarchy from one branch to another which would require that the Transferrers or Bestowers had the Supreme Power originally in themselves Nemo enim plus juris in alium transferre potest quam ipse in se habet And if the States of Parliament had this power originally in themselves to bestow why might they not reserve it to themselves and so perpetuate the Government in their own hands And this mov'd Judge Jenkins in his Treatise concerning the Liberty and Freedom of the Subject pag. 25. to say that no King can be named or in any time made in this Kingdom by the People A Parliament never made a King for there were Kings before there were Parliaments and Parliaments are summoned by the King's Writs Fourthly A King cannot in Law alienate his Crown as is undeniable in the Opinion of all Lawyers and if he do that deed is void and null nor could he in Law consent to an Act of Parliament declaring that he should be the last King And if such Consents and Acts had been sufficient to bind Successors many silly Kings in several parts of Europe had long since been prevailed upon to alter their Monarchy from Hereditary to Elective or to turn it into a Commonwealth and therefore by the same Reason they cannot consent to exclude the true Successor For if they may exclude one they may exclude all Fifthly In all Societies and Governments but especially where there is any association of Powers as in our Parliaments there are certain Fundamentals which like the noble parts in the Body are absolutely necessary for its preservation for without these there would be no Ballance or Certainty And thus with us If the King and each of the Estates of Parliament had not distinct and known limits set by the gracious Concessions of our Monarchs each of them would be ready to invade one another's Priviledges And thus I conceive that if the Parliament should consent to alienate half of the Kingdom or to subject the whole to a Stranger as in King John's Case in England and the Baliols in Scotland it has been found by the respective Parliaments of both Kingdoms that that Statute would not oblige the Successor Or if the House of Commons in England or the Boroughs of Scotland should consent to any Act excluding their Estate and Representatives from the Parliament doubtless that Statute excluding them would not prejudge their Successors because that Act were contrary to one of the Fundamental Laws of the Nation And the late Acts of Parliaments excluding Bishops were reprobated by the ensuing Parliaments as such and therefore by the same Rule any Statute made excluding the Legal Successor would be null and void as contrary to one of the great Fundamental Rights of the Nation And what can be call'd more a Fundamental Right than the Succession of our Monarchy Since our Monarchy in this Isle has ever been acknowledg'd to be Hereditary And that this Acknowledgment is the great Basis whereupon most of all the Positions of our Law run and are established such as That the King never dies since the very moment in which the last King dies the next Successor in Blood is Legally King and that without any express Recognizance from the People and all that oppose Him are Rebels His Commissions are valid He may call Parliaments dispose of the Lands belonging to the Crown all men are liable to do him Homage and hold their Rights of Him and His Heirs And generally this Principle runs through all the veins of our Law it is that which gives life and authority to our Statutes but receives none from them which are the undeniable Marks and Characters of a Fundamental Right in all Nations But that this Right of Lineal Succession is one of the Fundamental and Unalterable Laws of the Kingdom of Scotland is clear by the Commission granted by the Parliament for the Union in Anno 1604. in which these words are His Majesty vouchsafing to assure them or His sincere disposition and clear meaning no way by the foresaid Vnion to prejudge of hurt the fundamental Laws ancient Priviledges Offices and Liberties of this Kingdom whereby not only the Princely Authority of His most Royal Descent hath been these many Ages maintain'd but also His Peoples Securities of their Lands and Livings Rights Libertie Offices and Dignities preserv'd Which if they should be innovated such Confusion would ensue as it could no more be free Monarchy Sixthly There would many great Inconveniencies arise both to King and People by the Parliaments having this Power For weak Kings might by their own simplicity and gentle Kings by the Rebellion of their Subjects be induced to consent to such Acts in which their Subjects would be tempted to cheat in the one Case and rebel in the other Many Kings likewise might be wrought upon by the importunity of their Wives or Concubines or by the misrepresentations of Favourites to disinherit the true Successor and He likewise to prevent this Arbitrariness would be oblig'd to enter in a Faction for His own Support from His very Infancy This would likewise animate all of the Blood Royal to strive for the Throne and in order thereunto they would be easily induc'd to make Factions in the Parliament and to hate one another whereas the true Successor would be ingag'd to hate them all and to endeavour the Ruine of such as he thought more Popular than himself and every new Successor would use new Ministers Officers Methods and Designs whereas the apparent Heir uses those whom his Predecessor preferr'd Nor would the People be in better Case since they ought to expect upon all these accounts constant Civil Wars and Animosities and by being unsure whom to follow might be in great hazard by following him who had no Right And their Rights bearing to hold of the King and his Heirs it would be dubious to the Vassals who should be their Superior as well as who should be their King It is also in reason to be expected that Scotland will ever own the Legal Descent And thus we should under different Kings of the same Race be involved in new and constant Civil Wars France shall have a constant door open'd by Alliances with Scotland to disquiet the Peace of the whole Isle and England shall lose all the endeavours it used to unite this Isle within it self Another great Absurdity and Inconveniency which would follow upon the exclusion of the lineal Successor would be that if he had a Son that Son ought certainly to succeed and therefore after the next Lawful Heir were brought from abroad to Reign he ought to return upon the Birth of this Son and if he dyed he would be again call'd home and would be sent back by the Birth of another Son which would occasion such affronts uncertainties divisions factions temptations that I am sure no good nor wise man could admit of such a
de facto till King Henry VII by his Marriage with the Lady Elizabeth eldest daughter to King Edward IV. did by her transmit a just Title to his Successor and therefore it was not strange that either of these should allow the Parliament to interpose when they owed to them the possession of the Throne But yet Henry VII himself as the Lord Bacon relates in his History shun'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 account it was that the same King caus'd a Law to be made that such as should serve the King for the time being in his Wars could not be attainted or impeach'd in their Persons or Estates As to Henry VIII his procuring an Act whereby the Parliament declares That in case he had no Issue by the Lady Jean 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 25th year of his Reign he by Act of Parliament settles 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 shews that the Succession to the Crown of England is establish'd 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 prevail with the Parliament to declare this Elizabeth a Bastard as he did also his daughter Mary by another Act and resolve to settle 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 prevail 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 an Act in it self invalid 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 contrary to the immutable Laws of God Nature and Nations that none durst produce that King's Testament wherein he did nominate a Successor conformable to the power granted by those Acts that as soon as 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 whomsoever he should nominate a Preparative which this Age would not well bear though they cite it they proclaimed 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 nominate a Successor two of the legal Successors having been declar'd Bastards upon some Niceties not of Nature but of the Pope's Bulls for divorcing So this Instance can only prove that the King may nominate a Successor and that the Parliament may consent not to quarrel at it which is all that they do but does not at all prove that where the Right of Nature is clear the Parliament may invert the same And Strangers who considered more the dictates of Law than of Passion did in that Age conclude That no Statute could be valid when made contrary to the fundamental Law of the Kingdom Arnisaeus cap. 7. num 11. Henricus VIII Angliae Rex Eduardum filium primo deinde Mariam denique Elizabetham suos haeredes fecerat verum non aliter ea omnia valent quam si cum jure Regni conveniant Vid. Curt. Tract Feud Par. 4. Num. 129. There seems greater difficulty to arise from 13 Eliz. c. 2. by which it is enacted that if any person shall affirm that the Parliament of England has not full power to bind and govern the Crown in point of Succession and descent that such a person during the Queens life shall be guilty of High-Treason But to this Act it is answered that this Act does not debar 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 uncontroverted Laws and so the sense must be that the Parliament is judge where there are differences betwixt Competitors in nice and controvertable Points which cannot be otherwise decided and both this and the former Acts made in Henry the VI. time are not general Laws but temporary Acts and personal Priviledges and so cannot overturn the known current of Law Quod vero contra 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 Soveraign and not of the Subject And if we look upon this Act as made to secure them against Mary Queen of Scotland and to let her know that it was to no purpose for her to design 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 contrary 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 Scottish line as is clear by that clause wherein it is declared that every Person or Persons 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 follows that it was never valid For if it had King James might have thereby been excluded by that person who should have succeeded next to the Scottish Race For it 's undeniable that Queen Mary did during Q. Elizabeths Life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard And therefore the calling in of King James 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 acknowledgment of King James's Right I have thought fit to set down as it is in the Statute it self 1 Jac. Cap. 1. That the Crown of England did descend upon King James 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 until 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. Ja. 6. it is provided in Scotland that all Kings and Princes that shall happen to Reign and bear Rule over that Kingdom shall at the time of their Coronation make their faithful promise by Oath in presence of the eternal God that they shall maintain the true Religion of Jesus 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 absolutely necessary Coronatio enim magis est ad ostentationem quam ad necessitatem Nec ideo Rex est quia coronatur sed coronatur quia Rex est Oldrad consil 90. num 7. Balbus lib. de coronat pag. 40. Nor do we read that any Kings were Crown'd in Scripture except Joas And Clovis King of France was the first who was Crown'd in Europe Nor are any Kings of Spain Crown'd till this day Sisenandus was the first who in the fourth Tolletan Council 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 Reign of King Gregory 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 Lawful Successor though he were of a different Religion from his People as God forbid he should be may easily swear That he will maintain the Laws now standing And any Parliament may legally secure the Successor from overturning their Religion or Laws though they cannot debar him And though the Successor did not swear to maintain the Laws yet are they in little danger by his Succession since all Acts of Parliament stand in force till they be repeal'd by subsequent Parliaments and the King cannot repeal an Act without the consent of Parliament But to put this beyond all debate the 2d Act of this current Parliament is opposed whereby it is declared That the Right and Administration of the Government is immediately devolv'd upon the next lawful Heir after 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 immediately upon the Successor if he cannot administer till he be Crown'd and have sworn this Oath And therefore King James urges very well That sure immediately upon the death of the last King the Successor acquires a Right they who debar the Successor do not exclude a Successor from entering but debar a righteous King And by Act 2. Parl. 1. Sess 2. Ch. 2. It is declar'd Treason to suspend the King from the Stile Honour or Kingly Name And whereas Dolman urges That at all Coronations the People are ask'd If they will have such a King It is answered That this is no necessary Solemnity and is done rather to give the People occasion to shew their affection than their power even as a Gentleman in England is appointed to offer Dueâ— to any who would controvert the King's Right who is to be Crown'd notwithstanding of which offer he who would controvert the Title would certainly commit Treason Nor can it be deni'd from our History but that many of our Kings have reign'd long before they were Crown'd and that those who rebell'd against them before their Coronation were as legally Traytors as those who rebell'd after it All Kings number the years of their Reign from their Predecessors death and not from their Coronation They grant new Commissions and Judicatures who should understand Law best of all others decide in their Name and by their Authority before they be Crown'd So that I cannot but smile at Dolman's Conceit who says That a King before his Coronation is betroth'd but not a King espous'd to the Commonwealth till his Coronation and consequently may till then be rejected But this is a meer Whimsie and Scholastick Conceit for sure he acts as King and since they who oppose him commit Treason it is certain that he cannot be rejected and the solid Right of Blood and not airy Formalities make Kings Nor can I understand how Election and Birth can be join'd to compleat the excellency of Hereditary Monarchy as Doleman teaches for make it our Elective upon the unfitness of the Successor and all Successors shall be call'd unfit and unable to govern when a Faction resolves to set up a Rival though he be really yet more unfit than the true Heir is The next Objection is That since the King and Parliament may by Act of Parliament alter the Successions of private 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 private Families are
subject to Parliaments and inferiour to them and owe their private 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 arbitrarily debar the eldest Son of a private 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 person born out of England or attainted of Treason could succeed to the Crown because he could not succeed to a private Estate All which and many more instances do clearly demonstrate that the Successor to the Crown cannot be debarr'd nor the Succession to the Crown diverted by Act of Parliament The last objection is that Robert the III. King of Scotland was by an Act of Parliament preferr'd to David and Walter who 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 decease he married Elizabeth Muir Daughter to Sir Adam Muir not so much as Buchannan 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 passionately 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 chuse 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 wrote 200 years after the Marriage of King Robert the 2 d and wrote 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 Buchannan 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 meanness 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 Stuarts 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 Acquiesence 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 Testimony 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 Buchannan not only because he was more disinterested but because he found 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 vita Roberti 2. affirmat Euphaniam Comitis Rossenssis filiam primam Regis Roberti 2. uxorem fuisse ea mortua Regem superinduxisse Elizabetham Moram ex qua prius Liberos ternos mares suscepisset et eam uxorem duxisse ejusque liberos regno destinasse ut postea â—orum natu maximus successit quod quam fâ—lsum sit apparet ex archivis in carcere Edinburgensi reconditis ubi exstant separata acta duorum Parliamentorum subscripta manibus Ecclesiasticorum praefalum 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 decernitur post eos liberis Euphaniae Rosse nec non ibidem cartae extant plurimae factae per Davidem secundum eorum patruum magnum ex diversis terris Joanni filio primogenito nepotis ejus Roberti dum Euphania Rosse viveret 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 controversiam liberi Elizabethae Morae aetate grandiores erant liberis Euphaniae Rosse which Paper I did get from the Lord Pitmeden who has himself written some learned 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 intire Seals of the Members of Parliament appended thereto by which the Parliament do swear Allegiance to Robert the Second the first King of the Race of the Stuarts 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 I have also found out a Copy of an Act of Parliament amongst the Records of the late famous Lord Register Skeen which I think fit to insert word for word at the end of this Treatise in Latin the substance whereof in English runs thus That a Parliament being call'd at Scoon the 4th of April Anno 1373. and third year of the Reign of King Robert the Second on purpose to secure the Succession and to prevent all disorders that might afterwards arise in any part of the Kingdom about Titles to the Crown It was Enacted by the said
Sequel of this Discourse upon other occasions 8ly Whatever proves Monarchy to be an excellent Government does by the same Reason prove absolute Monarchy to be the best Government for if Monarchy be to be commended because it prevents Divisions then a limited Monarchy which allows the People a share is not to be commended because it occasions them if Monarchy be commended because there is more expedition secresie and other excellent Qualities to be found in it then absolute Monarchy is to be commended above a limited one because a limited Monarch must impart his secrets to the people and must delay the noblest designs until malicious and factious Spirits be either gain'd or overcome And the same analogy of Reason will hold in reflecting upon all other advantages of Monarchy the Examination whereof I dare trust to every mans own breast 9ly It was fit for the People that their Kings should be above Law because the severity of Law will not comply with that useful tho illegal Justice which is requisit in special cases for since summum jus is summa injura and since impossibile est sola innocentia vivere we may well conclude that absolute Monarchy is necessary to protect the guilty innocent by Remissions to break Laws justly in a Court of Chancery and to crook them uprightly in our Courts by an officium nobile For strict and rigid Law is a greater Tyrant than absolute Monarchy I know that some pretend that the 25. Act 15. Par. Ja. 6. declaring the King to be an absolute Prince is only to be interpreted in opposition to the Popes Authority he being so far absolute only as not to be Subject to the Pope who pretended then a Jurisdiction over all Kings But the answers to this are clear First This Statute is made to declare the Kings of Scotland to have Right by their Inherent Prerogative to their exacting Customs for all Merchandise because they are absolute Monarchs which Argument had been ridiculous if this absoluteness had only been in opposition to the Pope nor is there any mention of the Pope in all this Statute and what interest hath the Pope in our Customs 2dly When the Kings power is by our Statutes rais'd above the Pope it is done by declaring him Supream and not by declaring him absolute 3dly All Lawyers and States-men divide Monarchies in absolute and limited Monarchies and the word Absolute is still taken in opposition to limited as is clear by Arnisaeus Boâ—in c. And whereas it is pretended that these words in this Statute acknowledging the King to be absolute are only exprest transiently and enunciatively but are not Decisive and Statutory It is answered that our Parliaments never give our Kings Prerogatives but only acknowledge what our Kings have by an Inherent and Independent Right and these words in this Statute are of all others in our Laws exprest with most of Energy for they are usher'd with It cannot be deny'd but His Majesty has as great Liberties and Prerogatives as any Monarch whatsoever and this acknowledgement is made the Foundation of His Right to exact Customs And in true Reasoning nothing is made the Proposition of an Argument but that which is most uncontrovertable I foresee that our Fanaticks and Republicans will be ready to misrepresent absolute Monarchy as Tyranny But a Tyrant is he who has no Right to Govern and so he may be oppos'd as the common Enemy of all the Society And it is ridiculous to pretend with Hobs That we are oblig'd to obey whoever is once in possession for that were to invite men to torment us and to justifie Crimes by success Nor can it be from this deduc'd that since it is lawful to oppose any who are in Possession that it is therefore lawful to oppose our Monarchy because they have as Algernon Sidney pretends Vsurpt over us a power inconsistent with our natural Liberty And owe their Right to that Prescription which the greatest Tyrants may maintain by force and to that consent which they may procure by Violence or Flattery For to this I answer That our Monarchs have their power establisht by Birth-right by Consent by Prescription and by Law which are all the ways whereby any Right can be legally Establisht But it is a gross mistake in Buchannan and others to conclude a lawful King punishable as a Tyrant because he becomes vitious For though God may punish him as such yet his People cannot that were to raise the Servant above the Master and to occasion a thousand Disorders to redress one and when King James acknowledges that a good King thinks Himself made for his People and not His People for Him That is only said with reference to the King's duty to God but not with Relation to the Peoples Duty to their King And when Trajan delivering the Sword to the Proconsul said Pro me si rectè impero si male contra me Grotius observes justly That this was spoke as a Philosopher and not to subject himself to the others Jurisdiction And so Buchannan did most traiterously advise the Printing this on our Coin Nor do's this Title of absolute Monarch empower him to dispose of our Estates For it is fit to know that Government is the Kings and Property is the Subjects Birth-right Monarchy is a Government and so can include no more than what is necessary for Government And though the Turk or Mogol arrogate to themselves the total Property of their Subjects in this they are Tyrants and not Kings And when our Statute above-mentioned says That our Kings have as much power as they this is only to be understood of what Right they have by the Nature of Monarchy Rex nomen est jurisdictionis non dominii say the Lawyers For the Law having said that all things were the Emperours l. bene a Zenone § Sed scimus C. de Quadr. Praescript The Emperour asked the famous Lawyer Bulgarus in what sense all was his who is mightily prais'd for having answer'd Omnia Rex possidet imperio singuli dominio Accurs in praem ff in Verb. Sanctioni For what is once ours cannot be taken away without our consent And therefore by the 5. Act 1. Par. Ch. 2. It is declared lawful for the King to make Garisons His Majesty entertaining them on His own expence And by the Act 3. Pav 3. Ch. 2. It is declar'd that the people shall not be subject to free Quarter c. And yet right reason teacheth us that all the Land of Scotland having been once the Kings for the Law saith that the King is Susitus ratione Coronae in all the Lands of Scotland His Majesty is therefore presumed Proprietor of all and every thing belongs to him if some other cannot instruct a right which is the sense of that Law Nemo terram nisi authoritate Regia possideto And of King Malcolm Canmor's Law that Rex distribuit totam Terram Scotiae hominibus suis And it therefore clearly follows that the King has
Devil was comanded by the cruel Edicts of persecuting Emperours the Christians never took up Arms against them but used fervent Prayers as their only refuge And St. Peter animates them to this patient suffering 1. Pet. 4. 12. 13. Beloved think it not strange concerning the fiery Tryal but rejoice in as much as ye are partakers of Christs sufferings But let none of you suffer as a murtherer or a Thief or as an Evil-doer or as a Busie body in other mens matters By which last words if I durst add to so great an Author as Bishop Vsher the Apostle seems expresly to me to have obviated the dreadful Doctrine of rising in Arms upon the pretence of Religion and the killing such as differ from them which if the Christians did allow they ought to pass for Murtherers and to forbid them to meddle in matters of Government upon this pretence because then they ought to suffer justly as busie bodies And here Bishop Vsher does most appositely cite St. Augustine in Psal 149. The World rag'd the Lion lifted himself up against the Lamb but the Lamb was full stronger than the Lion The Lion was overcome by shewing cruelty the Lamb did overcome by suffering And St. Jerome Epist 62. By shedding of Blood and by suffering rather then doing injuries was the Church of Christ at first founded it grew by Persecutions and was Crowned by Martyrdoms The second objection is If mens hands be thus ty'd no mans Estate can be secure nay the whole frame of the Commonwealth would be in danger to be subverted and utterly ruin'd To which he answers That the ground of this objection is exceeding faulty and inconsistent with the Rules of Humanity and Divinity of Humanity because this would impower private Persons to Judge and so should confound all Order and invite all men to oppose Authority and make Subjects Accusers Judges and Executioners too and that in their own Cause against their own Soveraign and against Divinity because it is contrary to the Scriptures and Fathers who command Submission Humility and Patience Rex est si nocentem punit cede justitiae si innocentem cede fortunae Seneca de Jura lib. 2. cap. 30. If the King punish thee when thou art guilty submit to Justice If when thou art innocent submit to Fortune And if a Heathen could be induced by his vertue to submit to blind Fortune how much more ought a Christian to be prevail'd upon by Devotion to submit to the All-seeing Providence of the most wise God who maketh all things to work joyntly for good to them that love him And as St. Augustine piously adviseth Princes are to be suffered by their People that in the exercise of their patience temporal things may be born and Eternal hop'd for The instance of King James the Third being punished by his Subjects is so far from being an Argument able to justifie Subjects rising in Arms against their King that this part of our History should for ever convince all honest men of the dangers that attend Defensive Arms For this Prince was so far from being one of those Tyrants against whom Defensive Arms are only confest to be just That few Princes were more meek and careful of his Subjects But because he imploy'd such as himself had rais'd finding that the Nobility had too often been insolent Servants to their Prince and severe Task-masters to the People the Nobility thinking more upon this imaginary neglect than their own duty did from combinatitions proceed to Arms and rejecting all conditions of peace they were at last curs'd with a Victory in which this gentle Prince was murthered whilst he sought to save his Sacred life in a deserted Mill. By which we may see that these Defensive Arms so much hallowed in 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. Ja. 4. Whereby it is pretended that the opposing and even the killing K. Ja. the 3. in Battel is justified and which Act was never Repeal'd 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 Secondly That abominable Statute proceeds on the pretence of K. James the 3d. calling in the English and designing to enslave the Kingdom to Foreigners which was not prov'd as is 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 Thirdly In the new Collection of our Statutes made by Skeen and Authoriz'd in many subsequent Parliaments that abominable and Treasonable Act is not inserted which was the best way to rescind it because it was thought a reproach to the Nation to have any formal Law made to rescind the Statute which would have preserv'd its memory in anulling its Authority Fourthly Many Statutes since that time are made declaring the rising in Arms against the King and his Authority upon any pretence whatsoeve 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. Ja. 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 placing the Supream Power in the Proceres Regni one of the Factions ordinarily 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 King be of young or old or to Assail 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 until 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
project I find also that as the debarring the Right Heir is in reason the fruitful seed of all Civil War and misery for who can imagine that the Right Heir will depart from his Right or that wise men will endanger their lives and fortunes in opposition to it so experience has demonstrated how dangerous and bloody this injustice has prov'd Let us remember amongst many Domestick examples the miseries that ensu'd upon the exclusion of Mordredus the Son of Lothus the destruction of the Picts for having secluded Alpinus the Right Heir the Wars during the Reign of William the Conqueror those betwixt King Stephen and Henry the II betwixt the Houses of Lancaster and York betwixt the Bruce and the Baliol the murther of Arthur Duke of Britanny true Heir of the Crown of England with many other foreign Histories which tell us of the dreadful mischiefs arising from Pelops preferring his youngest Son to the Kingdom of Micene from Aedipus commanding that Polinices his youngest Son should reign alternately with the eldest from Parisatis the Queen of Persia's preferring her youngest Son Cyrus to her eldest Artaxerxes from Aristodemus admitting his two Sons Proclus and Euristhenes to an equal share in the Lacedaemonian Throne The like observations are to be made in the Succession of Ptolemaeus Lagus and Ptolemaeus Phisco In the Sons of Severus in the Succession of of Sinesandus who kill'd his Brother Suintilla Righteous Heir of Spain and that of Francis and Fortia Duke of Millan with thousands of others In all which either the Usurpers or the Kingdom that obey'd them perish'd utterly To prevent which differences and mischiefs the Hungarians would not admit Almus the younger Brother in exclusion of the elder Colomanus though a silly deform'd Creature albeit Almus was preferr'd by Ladislaus the Kings eldest Brother to both Nor would France acquiesce in St. Lewis's preferring CHARLES's third Son to Lewis the Eldest And the English refus'd to obey Lady Jean Gray in prejudice of Queen Mary though a Papist and persecuter Tali constanti veneratione nos Angli legi timos Reges prosequimur c. says an English Historian Seventhly If Parliaments had such Powers as this then our Monarchy would not be hereditary but elective the very essence of an hereditary Monarchy consisting in the right of Succession according to the contingency of blood Whereas if the Parliament can prefer the next save one they may prefer the last of all the Liue for the next save one is no more next than the last is next And the same reason by which they can chuse a Successor which can only be that they have a Power above him should likewise in my opinion justifie their deposing of Kings And since the Successor has as good right to succeed as the present King has to Govern for that Right of blood which makes him first makes the other next and all these Statutes which acknowledge the present Kings Prerogatives acknowledge that they belong to him and his Heirs it follows clearly that if the Parliament can preclude the one they may exclude the other And we saw even in the last age that such reasons as are now urged to incapacitate the Children of our last Monarch from the hope of Succession viz. Popery and arbitrary Government did embolden men to Dethrone and Murder the Father himself who was actual King Eighthly That such Acts of Parliament altering the Succession are ineffectual and null is clear from this that though such an Act of Parliament were made it could not debar the true Successor because by the Laws of all Nations and particularly of these Kingdoms the right of Succession purges all defects and removes all impediments which can prejudge him who is to Succeed And as Craig one of our learn'd Lawyers has very well express'd it tanta est Regii sanguinis praerogativa dignitas ut vitium non admittat nec se contaminarep atiatur And thus though he who were to succeed had committed Murther or were declar'd a Traitor formerly to the Crown for open Rebellion against the King and Kingdom yet he needed not be restor'd by Act of Parliament upon his coming to the Crown But his very Right of blood would purge all these imperfections Of which there are reasons given by Lawyers one is that no man can be a Rebel against himself nor can the King have a Superior And consequently there can be none whom he can offend And it were absurd that he who can restore all other men should need to be restored himself The second reason is because the punishment of crimes such as confiscations c. are to be inflicted by the Kings Authority or to fall to the Kings Thesaury and it were most absurd that a man should exact from himself a punishment Like as upon this account it is that though in the Canon Law Bastards cannot be promoted to sacred orders without dispensation nor can alibi nati that is to say People born out of England be admitted to succeed in England by express Act of Parliament there Yet Agapaetus Theodorus Gelasius and many others have been admitted to be Popes without any formal dispensation their election clearing that imperfection And the Statute of alibi nati has been oft found not to extend to the Royal Line That the Succession to the Crown purges all defects is clear by many instances both at home and abroad The instances at home are in England Henry the VI. Being disabled and attainted of High-Treason by Act of Parliament it was found by the Judges notwithstanding that from the moment he assum'd the Crown he had Right to succeed without being restored And the like was resolved by the Judges in the case of Henry the VII as Bacon observes in his History of Henry the VII Fol. 13. And in the case of Queen Elizabeth who was declar'd Bastard by Act of Parliament as is clear by Cambden anno 2 Elizabeth And though in Scotland there be no express instances of this because though some Rebellious Ring-leaders in Scotland have often in a private capacity been very injurious to their King Yet their Parliaments have been ever very tender of attainting the Blood-Royal or presumptive Heirs But Alexander Duke of Albany and his Succession being declared Traitours by his Brother King James the IV his Son John was notwithstanding called home from France upon his Uncles death and declar'd Tutor and Governour without any remission or being restor'd That Employment being found to be due to him by the right of Blood Therefore he had been much more declared the true Successor of the Crown if his Cousin King James the V. had died These being sufficient to establish our design I shall mention only some forraign stories CHARLES the VII of France who though banish'd by Sentence of the Parliament of Paris did afterwards succeed to the Crown And though Lewis the XII was forfeited for taking up Arms against CHARLES the VIII yet he succeeded to him
three Estates which shews that there 's nothing design'd in this Act in favour 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 always 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 plausible 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 wheras 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 enriched above a man of good sence and Tenants may argue that it is not reasonable that they bearing God's Image as well as the Master should toil to feed their Lusts Thus Reason may be distorted and we call that Treason and Providence which pleases us best Secondly Most of their Citations and Authorities are the Sentiments of those 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 concern us no more than the Law of England binds Scotchmen 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 Thirdly Most of the Authors cited and admir'd by them are Heathens particularly Stoicks who equall'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-denial Patience Faith and Reliance upon God Fourthly They balance not all the conveniences and inconveniences 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 ordinarily attend Competitions amongst Republicans destroy more than the Lusts of any one Tyrant can do which made Lucan tho a Republican and of the Pompeyan Party conclude after a sad review of the continued Civil Wars betwixt Sylla and Marius Caesar and Pompey without considering what followed under the Trium viri Faelices Arabes Medique Eoaque tellus Qui sub perpetuis tenuerunt Regna Tyrannis Fifthly Those who debate against Magistracy gratifie their own Vanity and Insolence but such devout men as Ambrose Augustine Vsher and others debate against the dictates of Interest as well as Passion which two nothing save Grace can overcome and there can be no surer mark of Conviction than to decide against these Lastly Even Buchannan repented his horrid Doctrine Cambden 10. year of Queen Elizabeths Reign in 1567. But forasmuch as Buchannan being transported with partial affection and with Murrays bounty wrote in such sort that his said Books have been condemned of falshood by the Estates of the Realm of Scotland to whose Credit more is to be attributed and he himself sighing and sorrowing sundry times blam'd himself as I have heard before the King to whom he was School-master for that he had imploy'd so virulent a Pen against that well deserving Queen and upon his Death-bed wished that he might live so long till by recalling the truth he might even with his Blood wipe away those Aspersions which he had by his bad Tongue falsly laid upon her but that as he said it would now be in vain when he might seem to dote for Age c. Idem Anno 1582. And not content with all this speaking of their surprizing the King they compell'd the King against his Will to approve of this intercepting of his Letters to the Queen of England and to decree an Assembly of the Estates summoned by them to be just yet could they not induce Buchannan to approve of this their Fact either by writing or perswasion by Message who now sorrowfully lamented that he had already undertaken the Cause of Factious people against their Princes and soon after Died c. THAT THE LAWFVL SVCCESSOR CANNOT BE DEBARR'D FROM Succeeding TO THE CROWN Maintain'd against DOLMAN BUCHANNAN And OTHERS BY Sir GEORGE MACKENZIE His Majesties Advocate in Scotland LONDON Printed for Richard Chiswel at the Rose and Crown in St. Pauls Church-yard 1684. King James In His Advice to Prince Henry Page 173. IF God give you not Succession Defraud never the Nearest by Right whatsoever Conceit ye have of the Person for Kingdoms are ever at God's disposition and in that Case we are but Liferenters it lying no more in the Kings than in the Peoples hands to dispossess the Righteous Heir Page 209. Ibid. FOR at the very moment of the Expiring of the King Reigning the Nearest and Lawful Heir entereth in his place and so to refuse him or intrude another is not to hold out the Successor from coming in but to expel and put out their Righteous King And I trust at this time whole FRANCE acknowledgeth the Rebellion of the Leaguers who upon pretence of Heresie by Force of Arms held so long out to the great Desolation of their whole Countrey their Native and Righteous King from possessing his own Crown and natural Kingdom THE RIGHT OF THE Succession DEFENDED THE Fourth Conclusion to be cleared was That neither