Selected quad for the lemma: death_n
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A50856
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That the lawful successor cannot be debarr'd from succeeding to the crown maintain'd against Dolman, Buchannan, and others / by George Mackenzie ...
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Mackenzie, George, Sir, 1636-1691.
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1684
(1684)
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Wing M206; ESTC R19286
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31,910
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82
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authority and so to enable him the more to curb factions and oppose enimies he was called King yet he was but Rex fidei Commissarius being oblidg'd to restore it to the true Heir at his majority and so Governed only in his Vice and consequently was only his Vice-roy But because the Uncles and next Heirs being once admitted to this fidei Commissarie tittle were unwilling to restore the Crown to their Nephews and sometimes murder'd them and oftetimes rais'd factions against them Therefore the People abhorring these impieties and weary of the distractions and divisions which they occasion'd beg'd from King KENNETH the second that these following Laws might be made 1. That upon the Kings death the next Heir of whatsoever age should succeed 2. The Grand-childe 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 choos'd to Govern after which the King should enter to the free administration and according to this constitution some fit Person has still been choos'd Regent in the Kings minority without respect to the proximity of Blood and our Kings have been oftentimes Crown'd in the Cradle In conformity also to these principles all the acknowledgements made to our Kings run still in favours 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 Alledgeance we are bound to bear faithful and true alledgeance to his Majesty his Heirs and Lawful Successors which word LAWFUL is insert to cutt off the pretexts of such as should not succeed by Law and the insolent arbitrarieness of such as being but subjects themselves think they may choose their King viz. Act 1. Parl. 21. JAMES 6. 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 favours of the Daughters of Zelophehad telling us it was a just thing they should have the inheritance of their father And ordaines that if there were no Daughters the estate should go to the Brothers Saint Paul likewayes concluds Rom. 8. If Sons then Heirs looking upon that as a necessary consequence which if it do not necessarly 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 sayes 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 likewayes in Scripture God oft telling By me Kings reigne 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 flowes 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 hold in this case for who doubts when he heares of ane 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 valide 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 cùm ratio naturalis ff de bonis damnat cùm ratio naturalis quasi lex quaedum tacita liberis parentum haereditatem adjecerit veluti ad debitam successionem eos vocando propter quod suorum haeredum nomen eis indultum est adeo ut ne a parentibus quidem ab eâ successione amoveri possint Et § emancipati Institut de haered quae ab intest Praetor naturalem aequitatem sequutus iis etiám bonorum possessionem contra 12 tabularum leges contra jus civile permittit Which text shewes likewayes that this right of nature was stronger than the Laws of the 12 Tables though these were the most ancient and chief Statutes of Rome Which principle is very clear likewayes from the Parable Math. 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 seaze 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 aegrad l. 1. § hoc autem ff de bonor possess And these who are now Brothers to the present King have been Sones to the former and therefore whatever has been said for Sones is also verified in Brothers As for instance though his Royal Highness be only Brother to King CHARLES the II. yet he is Son to King CHARLES I. and therefore as Saint Paul sayes if a Son then ane Heir except he be secluded by the existence and Succession of ane elder Brother That this gradual Succession is founded on the Law of nations is as clear by the Laws of the 12 Tables and the Praetorian Law of Rome And if we consider the Monarchy either old or new we will find that wherever 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