to King Robert the 2d and she bore him David Earl of Strathern and Walter Earl of Athol Alexander Earl of Buchan and Euphan who was married to James Earl of Dowglass after whose deceass he married Elizabeth Muir Daughter to Sir Adam Muir not so much as Buchanan observes from any design to marry a second Wife as from the great love he carried to Elizabeth Muir whom because of her extraordinary Beauty he had lov'd very passionatly in his youth and before he married the Earl of Rosses Daughter and from the love which he bore to the Sons whom Elizabeth had born before that first Marriage who were John Earl of Carrick who thereafter succeeded to the Crown by the Title of Robert the 3d and Robert Earl of Fife and Monteith he prevail'd with the Parliament to prefer John eldest Son by Elizabeth Muir to the two Sons which he had by the Earl of Rosses Daughter who was as they pretend his first lawful Wife In which though I might debate many nice points of Law relating to this Subject yet I choose only to insist on these few convincing Answers 1. That in a Case of so great moment Historians should be little credited except they could have produc'd very infallible Documents and as in general one Historian may make all who succeed him err so in this Case Boetius who was the first liv'd and wrot 200 years after the Marriage of King Robert the 2d and wrot his History at Aberdeen very remote from the Registers and Records by which he should have instructed himself nor did he know the importance of this point having touch'd it only transiently though it has been design'dly press'd by Buchanan to evince that the Parliaments of Scotland might prefer any of the Royal Line they pleas'd and it is indeed probable that King Robert the 2d did for some time make no great noise of his first Marriage with Elizabeth Muir least the meaness of the Match should have weaken'd his Interest upon his first coming to the Crown he being himself the first of the Race of the Stewarts and having so strong Competitors as the Earl of Dowglass who claim'd Right to the Crown in the Right of the Baliol and the Cummings as Boetius himself observes 2. King Robert the 3d. having succeeded as the eldest lawful Son and having been receiv'd as such by that Parliament and his Posterity by all succeeding Parliaments the Possession of the King and the Acquiescence of the People is the most infallible proof that can be adduc'd for proving that Robert was the eldest lawful Son nor have most Kings in Europe or the Heads of most private Families any other proof of their being the eldest and lawful Sons save that they succeeded and were acknowledg'd as such 3. To ballance the authority of these Historians I shall produce the Testimonie of the Learned Sir Lewis Stewart one of the most famous Lawyers we ever had and who ought much more to be believ'd than Buchanan not only because he was more disinterested but because he founds upon Acts of Parliament and old Charters which he himself had seen in the Registers in which Elizabeth Muir is acknowledg'd to have been the first Wife Buchananus lib. 9. in vitam Roberti 2. affirmat Euphaniam Comitis Rossenssis filiam primam Regis Roberti 2. uxorem fuisse eâ mortuâ Regem superinduxisse Elizabetham Moram ex qua prius Liberos ternos mares suscepisset â—am â—xâ—rem duxisse ejusque liberos regno destiâ—â—sse ut postea eorum natu maximus sucâ—â—essit quod quam falsum sit apparet ex archivis in carcere Edinburgensi reconditis ubi exstant separata acta duorum Parliamentorum subscripta manibus Ecclesiasticorum praesulum nobilium baronum aliorum statuum Parliamenti eorum sigillis roborata quibus Elizabetha Mora agnoscitur prima uxor Euphania Rosse secunda liberis ex Elizabetha Mora tanquam justis haeredibus Regni successive regnum dcernitur post eos liberis Euphaniae Rosse nec non ibidem cartae extant plurima factae per Davidem secundum eorum patruum magnum ex diversit terris Ioanni filio primogenito nepotis ejus Roberti dum Euphania Rosse viverit nec non Dar vidi filio natu maximo Euphaniae Rosse quem solum filium indigitat Roberti nepotis quod non fecisset si Elizabetha Mora non prius fuisset nupta Roberto ejus nepoti naâ— primogenitus nunquam attribuitur notho inâ— ego plures quam vigintâ— cartas in archivis inveni ubi etiam eas reliqui ex quibus sole clarius elucessit Elizabetham Moram primaâ—â— fâ—isse uxorem Euphaniam Rosse secundam nam extra contraversiam liberi Elizabethae Morae etate grandiores eraâ—t liberis Euphaniae Rosse which Paper I did get from the Lord Pitmeden who has himself written some learn'd Observations upon this point 4. I have my self seen an Act of Parliament found out by the industry of Sir George Mackenzie of Tarbet now Lord Register having the intire Seals of the Members of Parliament appended thereto by which the Parliament do swear Allegiance to Robert the 2d the first King of the Race of the Stewarts and after him Roberto Comiti de Carrict filio suo natâ— maximo his eldest Son in Anno 1371 which was the first year of his Reign and if the pretended defect be true it was a very palpable and a very undenyable one and could not but have been unanswerably known to the whole Nation And how can we imagine that the whole Parliament would have unanimously drawn upon themselves so dreadful a Perjury by excluding the lawful Heir against their National Oath in the Reign of K. Kenneth the 3d whereby they swore to own always the immediate Heir or that they would have entail'd upon themselves a Civil War by preferring even a questionable Heir after the Miseries which they had lately then felt in the competition betwixt the Bruce and the Baliol Amongst which Seals the Seal of James Earl of Dowglass is one and how ridiculous is it to think that he would sit and declare a Bastard preferable to the Brother of his own Lady and to his own Lady who would have succeeded if her Brothers had died without Succession Which Act of Parliament does also clearly prove that Buchanan did not at all understand matters of Fact in this part of the History for he asserts that after the death of Euphan Ross the King married Elizabeth Muir and did by Act of Parliament obtain the Crown to be settled upon Robert the 3d Son to the said Elizabeth Muir upon whom he also bestow'd the Title of Carrick all which is most false for this Act of Parliament is dated in Anno 1371 and King Robert the 2d succeeded to the Crown that year nor did Euphan Ross die till the 3d. year after he succeeded to the Crown and so not till the Year 1374 and yet in Anno 1371 this Act is
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
past designing him Heir to the Crown and Earl of Carrick and consequently he was so design'd before the death of Euphan Ross. 5. I have seen a Charter granted by King Robert the 2d when he was only Steward of Scotland granted in anno 1165 and so long before he was King In which Charter likewise John thereafter King by the name of Robert the 3d is a conjunct Disponer with him under the express designation of the eldest Son and Heir Robertus Senescallus Scotiae Comes de Strathern Ioannes Senescallus primogenitus haeresipsius Dominus Baroniae de Kyle c. which Charter confirms to the Abbacy of Pasley several Lands disponed to them by Reginaldus More Father to Sir William More of Abercorn And I find that David Duke of Rothsay was always in the Charters granted by his Father King Robert the first called Primogenitus and he was no Bastard nor can this designation be given to a Bastard as is clear by Covarâ—vâ—as de Matrim part 2. cap. 8. § 2. num 4. But how can it be imagined that the Monks of Pasley would have taken a Right from a person as Heir to the Crown who was not for this would have infer'd Treason against them beside the annulling their Right or who could understand better the lawfulness of a Marriage than a body of Church-men living in the time and very near to the Residence of the married Persons and in whose Conventual-Church the said King Robert and Elizabeth Muir ly buried together Item I have seen in the Registers another Charter granted by King Robert the 2. in the first year of his Reign with the consent of John Earl of Carrick primogenitus haeres Allano de Lavidia terrarum de Whitslet And an other granted by the said King 1. June anno primo regni confirming to Paulo M ctire a Charter granted by the Earl of Ross Father to Euphan wherein the said John primogenitus hares is a Witness And to shew that the said Euphan Ross was then living when he was so design'd Heir there is a Charter to her by the King upon the very same day of the Lands of Lochleaven As also there is a Charter granted by King Robert the 2d the first year of his Reign to Alexander his Son and another to John Kennedy of the Barrony of Dalrymple in both which the said John Earl of Carrick is call'd primogenitus and is Witness with the Earl of Dowglass so that he has been design'd eldest Son and Heir openly uncontravertedly and in all Papers and with the consent of the second Wife and her Relations 6. In the Parliament 1372 the said John Earl of Carrick is design'd to be Lieutenant of the Kingdom and all the Estates of Parliament swear to own him in his Government and which Statute is printed amongst the Satutes of King Robert the 2d Father to the said John and which must be during the Marriage with Euphan Ross for she liv'd three years after her Husband was King and he succeeded to the Crown anno 1371 And this also confutes Buchanan who asserts that he was created Earl of Carrick after the death of Euphan Ross and it is against all sense and reason to think that he could have been acknowledg'd during her life if he had not been the true Apparent Heir of the Crown and a lawful Son 7. Walter who they pretend should have succeeded to the Crown having kill'd his Nephew King James the first Son to King Robert the 3d He was not only not own'd after the death of the said King James as certainly he had been if his Title had been good and his Right so recent and demonstrable having so many great and powerful Relations that his Father was induc'd upon their account to marry his Mother but yet the said Walter was by all the Parliament unanimously condemn'd as a Traitor for having conspir'd the death of his lawful Prince Nor does Boetius justifie Walter 's Title in the least but on the contrary magnifies the Parliament for their just Sentence As did likewise Aeneas Silvius the Popes learned Legat who exhorted the Parliament to condemn him 8. How is it imaginable that King Robert who had so lately and after a strong competition come to the Crown would have adventur'd to make his Title yet more disputable by preferring a Bastard to the true Heir who had so many Friends by his Mother and who being an Infant had never disoblig'd him 9. If we will consider the opinion of the Civilians whom we and almost all Nations follow in the Cases of Succession we will find that the said King Robert the 3d was the eldest and lawful Son of King Robert the 2d filius legitimus non legitimatus For 1. They conclude that a Son is prov'd to be a lawful Son by the Assertion of the Father Alciat tract praesumpt Reg. 2 praesumpt 2. num 6. and certainly the Father is the best Judge in such Cases but so it is we have the Father owning the said Robert the 3d. to be his eldest Son and Heir both in Charters and Acts of Parliamnets which are the most solemn of all Deeds 2. Quando pater instituit aliquem tanquam filium sâ—um which holds in this Case where the Father institutes and leaves him Heir and the Parliament swears Allegiance to him as the Heir Mascard de prob vol. 2. conclus 799. And in dubious Cases the Father's naming such a man as a Son presumes him to be a lawful Son nominatio parentis inducit filiationem in dubio l. ex facto § si quis Rogatus ff ad trebell 3. Even Fame and the common opinion of the People do in favours of these that are in Possession and in ancient Cases prove filiationem legitimationem Mascard conclus 792. but much more where the Fame and common Opinion is adminiculated by other Arguments fulgos consil 128. Panorm in cap. transmiss qui filii sunt ligittimi 4. When Writs are produc'd calling a man a Son the Law concludes him to be a lawful Son Mascard vol. 2. conclus 800. num 15. all which can be easily subsum'd in our Case In which Robert the 3d. is nam'd not only Son but Heir and Allegiance sworn to him even in the lifetime of the second Wife and her Relations sitting in Parliament and all this acquiesc'd in for many hundreds of years and the Competitors punish'd as Traitors by the unanimous consent of all the Parliament I know that Buchanan does most bitterly inveigh against those Laws made by King Kenneth the 3d as Laws whereby the ancient Right of Succession was innovated and whereby the Government was settled upon Children who were neither able to consult with the People nor to defend them and whereby those had the Government of the Nation conferr'd upon them who were not capable to govern themselves To which my answer is That in this Buchanan's Malice contradicts his History for his own History tells us