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 privat 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 Albanie 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 Iames the V. had died These being sufficient to establish our design I shall mention only some forraigne stories CHARLES the VII of France who though banish'd by Sentence of the Parliament of Paris did thereafter succeed to the Crown And though Lewis the XII was forfeited for taking up armes against CHARLES the VIII Yet he succeeded to him without restitution And Lewis the II. his Son being declared a Rebel whom his Father desiring to disinherit and to substitut in his place Charles Duke of Normandie that Son had succeeded if he had not been hindered by the Nobility who plainly told him it was impossible to exclude his Sone from the Succession My next task shall be to satisfy the arguments brought for mantaining this opinion whereof the first is That God himself has authorised the inverting the Right of Succession by the examples of Esau Salomon and others To which I answer that these instances which are warranted by express commands from God are no more to be drawn into example than the robbing of the Aegyptians ear-rings And it 's needing an express command and the expressing of that command does evince that otherwayes Iacob nor Salomon could not have succeeded against the priviledge of birth-Right and possession The next objection is that it is naturally imply'd in all Monarchies that the people shall obey whilst the Prince Governs justly As in the paction betwixt David and the people 2 Sam. 5. Which is most suitable to the principles of justice and Government Since relations cannot stand by one side so that when the King leaves off to be King and becomes a Tyrant the people may consult their own security in laying him aside as Tutors may be remov'd when they are suspect And that this is most just when Kings are Idolaters since God is rather to be obey'd then men To all which it is answered that God who loves order and knows the extravagant levity and insolence of men especially when baited by hope of prey or promotion did wisely think fit to ordain under the paine of eternal damnation that all men should be subject to Superiour powers for conscience sake 1 Pet. 2. 13. and that whoever resists the power resists God Rom. 13. 2. reserving the punishment of Kings to himself as being only their Superiour And thus David Asa and others committed crimes but were not depos'd nor debart'd by the people Nor were even the Idolatrous Kings such as Achab Manasse c. judged by their subjects nor did the Prophets exhort the people to rise against them though they were opposing Gods express and immediat will And overturning the uncontraverted fundamentals of Religion Nor did the Fathers of the primitive Church excite the Christians to oppose the Heathen and Idolatrous Princes under which they lived and Paul commands them to pray for these Heathen Emperours Nor was the Emperour Basilicus depos'd for abrogating the Council of Chalcedon as is pretended by some Republicans but was turn'd out by the just Successor Zeno whom he had formerly dethron'd Nor were Zeno or Anastasius degraded for their errors in Religion or their vices by the ancient Christians but were opprest by private faction And sure they must think God unable to redress himself who without warrand and against his expresse warrand will usurpe so high a power And we in this rebellious principle owne the greatest extravagancy with which We can charge the Pope and Jesuits and disowne not only our own Confession of faith which Article 1. Chap. 22. acknowledges that infidelity or difference in Religion doth not make void the Magistrats just or legal authority nor free the People from their due obedience to him but contradict the best Protestant divines as Musculus Melancthon and others vid. libell de vitand superstit Anno 1150. Consil. Biden Dec. 1. Consil. 10. Decad. 10. Consil. 5. nor can the subterfuge us'd by Buchanan and others satisfie whereby they contend that the former Texts of Scripture prove only that the Office but not the Persones of Kings are Sacred so that Parliaments or People may lay aside the Persons though not the Office seing the Sacred Text secures oftner the Person than the Office as I have formerly more fully prov'de And if this principle prevail'd as to the differences in the Theory of Religion it would in the next step be urg'd as to the practice of Religion and we would change our Kings because we thought them not pious as well as Protestant And did not our Sectarians refine so far as to think dominion founded on grace and this opinion seems to my self more solide than the other for certainly an impious Protestant is a worse Governour and less Gods Vicegerent and image than a devout Papist And amongst Protestants every Secte will reject a King because he is not of their opinion And thus our Covenanters by the Act of the West-kirk Anno 1650. declar'd they would disown our present Monarch if he did not own the Covenant And though a King were Protestant yet still this pretext that he design'd to introduce Popery would raise his People against him if differences in Religion could Lawfully Arme subjects against their King or did empower them to debar his Successor And when this cheat prevail'd against devout King Charles the I the Martyr of that Orthodox Faith to which he was said to be enemie what a madness is it to allow this fatall error which was able to ruine us in the last age and went so near to destroy us in this This is indeed to allow that arbitrariness against our Kings which we would not allow in them to us The second Objection is that in England the Parliament has frequently devolv'd the Crown and Government upon such as were not otherwayes to have succeeded as in the instances of Edward the II. and Richard the III the first of whom was most unjustly depos'd for making use of Gavestoun and the Spencers which shewes how extravagant the People ar in their humours rather than how just their power is for besides that do not read that these Counsellors were
THAT THE Lawful Successor Cannot be DEBARR'D From Succeeding to the CROWN Maintain'd against Dolman Buchannan and others BY Sir GEORGE MACKENZIE His Majesties Advocat EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 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 eveâ— at Gods 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 Expyring 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 ERRATA Page 5. delet at his Majority Page 33. for Richard 3d. Read ad The Right of the Succession Defended THe fourth Conclusion to be cleared was that neither the People not Parliaments of this Kingdom could seclude the lineall 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 realme deriving their Royal power from God Almighty alone do lineally succeed therto according to the known degrees of proximitie in blood which cannot be interrupted suspended or diverted by any Act or Statut 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 warr Do THEREFORE from a hearty and sincere sense of their duty Recognize acknowledge and declare that the right to the Imperial Crown of this realme is by the inherent right and the nature of Monarchy as well as by the fundamental and unalterable laws of this realme 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 reignes the Subjects of this Kingdom are bound by Law duty and alledgance to obey the nixt immediat 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 foresaids nor can stop or hinder them in the full free and actuall administration of the Government according to the Laws of the Kingdom LIKE AS OUR SOVERAIGNE LORD with advice and consent of the saids 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 Lawfull Successor from the immediat actual full and free administration of the Government conform to the Laws of the Kingdom And that all such attempts or designes shall inferre against them the paine of treason This being not only ane 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 ane acknowledgement 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 contraversie especially seing it past so unanimously that there was not only no vote given but even no argument propon'd against it And the only doubt mov'd about it was whither any Act of Parliament or acknowledgement was necessary in a point which was in it self so uncontraverted And which all who were not desperat fanaticks did conclude to be so in this nation even after they had hear'd 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 drawes 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 alledgeance to FERGUS who was the first of our Kings and to his Heirs And that they should 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 ane 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 choose any of the Royal Familie whom they pleas'd which is so true that in Law ane obligation granted to any man does in the construction of Law accresce 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 warrs under the powerful influence of Picts Romans and Britans they refus'd notwithstanding to preferre the next of the Royal Race who was of perfect age and a man of great merit to the Son of King FERGUS though ane infant which certainly in reason they would have done if they had not been ty'd to the lineal Successor But lest the Kingdom should be prejudg'd during the minority they enacted that for the future the next of the Blood Royal should alwayes in the minority of our Kings administrat 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 choose 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 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
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
unsufferable there is no good Christian that can say that a King can be depos'd for using ill Counsellors And as to Richard the III. his case is so fully examined and all the Articles brought both against him and Edward the II. so fully answered by the learn'd Arnisaeus a Protestant Lawyer and who had no other interest in that debate than a love to Truth and Law in that treatise Quod nullâ ex causâ subditis fas sit contra legitimum principem arma sumere that we Protestants should be asham'd to bring again to the field such instances upon which Arnisaeus in answer to the 14. Article against Richard the II viz. that he refus'd to allow the Lawes made in Parliament does very well remark that this was in effect to consent to their being King and to transferre upon them the Royal power and this will be the event of all such undertakings The instances of Henry the IV. and Henry the VII are of no more weight than the other two since these were likewayes only Kings de facto till King Henry the VII by his marriage with the Lady Elizabeth eldest Daughter to King Edward the IV. did by her transmit a just title to his Successor therefore it was not strange that either of these should allow the Parliament to interpose when they behov'd to owe to them the possession of the Throne But yet Henry the VII himself as the Lord Bacon relates in his Historie shunn'd to have the Parliament declare his title to be just being content with these ambiguous words viz. that the inheritance of the Crown should rest remain and abide in the King c. And upon this accompt it was that the same King caus'd make a Law that such as should serve the King for the time being in his warrs could not be attainted or impeach'd in their persons or Estates As to Henry the VIII his procuring an Act whereby the Parliament declares that in case he had no issue by the Lady 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 25 year of his Reigne he by Act of Parliament setles the Crown upon the Heirs male of his own body and for lack of such issue to Lady Elizabeth and for lack of such issue also to the next Heirs of the King who should for ever succeed according to the right of Succession of the Crown of England which shewes that the Succession to the Crown of England is establish't by the Law of Nature and the Fundamental Laws of England upon the Heirs of Blood according to the proximity of degrees so that though that King did afterwards prevaile with the Parliament to declare this Elizabeth a Bastard as he did also his Daughter Mary by another Act and resolve to setle the Crown upon Henry Fitz Roy Duke of Richmond yet these Acts teach us how dangerous it is to leave Parliaments to the impression of Kings in the case of naming a Successor as it is to expose Kings to the arbitrariness of Parliaments But such care had God of his own Laws that Mary succeeded notwithstanding She was Papist and Elizabeth succeeded her though she was declar'd Bastard the Rights of Blood prevailing over the formalities of divorce and the dispensations of Popes as the strength of Nature does often prevaile over poisons And God remov'd the Duke of Richmond by death to prevent the unjust competition and so little notice was taken of this and the subsequent Act Anno 1535 that the Heirs of Blood succeeded without repealing of that Act as ane Act in it self invalide from the beginning for only such Acts are past by without being repeal'd And Blackwood pag. 45. observes very well that so conscious were the Makers of these Acts of the illegality thereof and of their being contrarie to the immutable Laws of God Nature and Nations that none durst produce that Kings Testament wherein he did nominat a Successor conform to the power granted by these Acts that how soon they were freed by his death from the violent oppressions that had forced them to alter a Successor three several times and at last to swear implicitly to whomever he should nominat a preparative which this age would not well bear though they cite it they proclamed first Queen Mary their Queen though a Papist and thereafter Queen Elizabeth whom themselves had formerly declared a Bastard And as in all these Acts there is nothing declaring the Parliaments to have power to name a Successor but only giving a power to the King for preventing mischiefs that might arise upon the dubiousness of the Succession to nominat a Successor two of the legal Successors having been declar'd Bastards upon some niceties not of nature but of the Popes Bulls for divorcing their Mothers so this instance can only prove that the King may nominat a Successor and that the Parliament may consent not to quarrell it which is all that they do but does not at all prove that where the Right of Nature is clear the Parliament may invert the same And strangers who considered more the dictats of Law than of Passion did in that age conclude that no Statute could be valide when made contrare to the fundamental Law of the Kingdom Arnisaeus Cap. 7. Num. 11. Henricus VIII Angliae Rex Eduardum filium primò deinde Mariam denique Elizabetham suos haeredes fecerat verùm non aliter ea omnia valent quà m sicum jure Regni conveniant Vid. Curt. Tract Feud Par. 4. Num. 129. There seems greater difficulty to arise from the 13 Elizabeth c. 2. by which it is enacted that if any persone shall affirme that the Parliament of England has not full power to bind and Governe the Crown in point of Succession and descent that such a persone during the Queens life shall be guilty of high treason But to this Act it is answered that this Act does not debarre the next legal and natural Successor And these words That the Parliament has power to bind and Govern the Succession must be as all other general expressions in Statutes interpreted and restricted by other uncontraverted Laws and so the sense must be that the Parliament are Judge where there are differences betwixt Competitors in nice and contravertable points which cannot be otherwise decided and both this and the former Acts made in Henry the VI. time are not general Laws but temporarie Acts and personal Priviledges and so cannot overturn the known current of Law Quod verò contrà rationem juris receptum est non est producendum ad consequentias And in all these instances it is remarkable that the restriction was made upon the desire of the Soveraigne and not of the Subject And if we look upon this Act as made to secure against Mary Queen of Scotland and to let her know that it was to no purpose for her to designe any
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
that the Scots swore Allegiance to Fergus and his Posterity and consequently Fergus's Son ought by Law to have succeeded and not his Brother for his Brother was none of his Posterity and therefore those Laws made by K. Kenneth did but renew the old Law and the innovation introduc'd in favours of the Uncles was a subversion of the fundamental Law to which they had sworn 2. That the old Law was not abrogated but was in Being by vertue of the first Oath appears very clear by Buchanan himself who confesses that upon the death of Durstus a wicked Prince it was debated whether his Son should not succeed juxta sacramentum Fergusio prestitum veteremque esse morem servandum which acknowledgeth that the Succession was even in these days established by Law by Oath and by Custom and after the death of Fergus the 2d his Son Eugenius though a Minor was crown'd and his Uncle Graemus allow'd to be his Tutor And Buchanan also brings in Bishop Kennedy lib. 12. praising this Law as made by Kenneth a most wise and glorious Prince with advice of all his Estates of Parliament and which rather confirms as he says the old Law than introduces a new one so far did Buchanan's rage against Queen Mary prevail with him to praise and rail at the same individual Law and it is observable that it is very dangerous to recede once from fundamental Laws for Buchanan makes not only the Succession Elective but he makes no difference betwixt lawful Children and Bastards and excludes not only Minors during the Uncles life but Women for ever 3. In all Nations where the Monarchy is Hereditary Minors succeed and so this innovation of causing the next Male succeed for all his Life was contrary to the nature of the Monarchy and to the Customs of all Nations and God in Scripture gives us many instances of it Jâ—as succeeded when he was seven years of Age Josiah when he was eight Manasseh in twelve and Azariah in sixteen and yet in those days God is said to have chosen the King for it is said in Deut. Thou shalt set over thee the King whom I have chosen and consequently the choice of Minors cannot be ill since God Almighty us'd to make such a choice I know that Eccless 10. 16. says Woe unto the land when thy King is a child but the Criticks interpret this of a King that is childish puen intellectu moribus or because Factions arise by the opposition to his Regents and this inconveniency did more necessarily attend the allowing a Regent King during Life for both the Subjects and the true Heir rais'd Factions in that Case whereas the Subjects only are factious in the other and yet even they are no more factious for that short time than they are always in Common-wealths 4. The reason why the Minor King was to have one to supply his Nonage ceasing with his Majority it was unreasonable that the Remedy should have lasted beyond the Disease and the worst effect that could have been occasion'd by the Infant King's Minority was that the Kingdom should have been during that time govern'd by joynt advice of Parliament Councils and Officers of State which in Buchanan's opinion in other places of his History and Book De Jure Regni is so excellent a Model that he decrys Monarchy as much inferior to it 5. It was most inconvenient to accustom any private Family to live in the quality of a King 6. It could not but occasion many Murders and much Faction for the true Heir could not live peaceably under this Eclipse and Exclusion nor could the Uncle live without making a Party to secure his pleasant Usurpation 7. As these Divisions and Factions were the natural and necessary Effects that were to be expected from this irregular Succession so it is very observable that from King Fergus to King Kenneth the 3d we had 79. Kings amongst whom almost the half were the most impious tyranical or lazie Kings that ever we had according to Buchanan's character of them so happy and wise a thing is this so much magnified Election of a Successor by the People and their Representatives to supply the defects of the lawful Heir whereas from King Kenneth the 3d to King CHARLES the 2d inclusivè we have had 3â— Kings 26. of whom have succeeded by a due lineal Right and have prov'd vertuous Princes greater by their Merit than their Birth as if God had design'd to let us see that though most of them succeeded whilst they were very young yet that he can choose a fitter Successor than Parliameuts can do whereas the other 5. Kings who came to the Crown against that Law of Kenneth the 3d viz. Constantine the bald Grimus Mackbeath Donal Bain and Duncan the 2d were all persons who deserved very ill to be preferred to the true Heir and who as they came to the Crown against Law so govern'd without it And it is very strange that the Fanaticks who think that every throw of the Dice is influenc'd by a special Providence will not allow that God does by a special Providence take care who shall be his Representative who shall be the Pastor of his Flock and nursing Father of his Church let us therefore trust his Care more than our own and hope to obtain more from him by Christian Submission Humility and Obedience than we can by Caballing Rebelling and Sacrilegious-Murdering or Excluding the true Successor FINIS What follows is immediatly to be subjony'd to the Testimony of Calvin Page 90. I Know that to this it may be answered That the same Calvin does qualifie his own words which I have cited with this following Caution Si qui sunt saith he populares Magistratus ad moderandam Regum libidinem constituti quales olim erant qui Lacedemoniis regibus oppositi erant ephori quâ etiam fortè potestate ut nunc res habent fuguntur in singulis regnis tres ordines quum primarios conventus peragâ—nt adeo illos ferocienti Regum licentiae pro officio intercedere non veto ut si Regibus impotenter grassantibus humili plebeculae insultantibus conniveant eorum dissimulationem nefariâ perfidiâ non carere affirmam quia populi libertatem cujus se tutores Dei ordinatione positos nôrunt frandulenter produnt To which my reply is That these words must be so constructed as that they may not be incosistent with his former clear and Orthodox Doctrine of not resisting Supream Powers the former being his positive Doctrine and this but a supervenient Caution and they do very well consist for though Calvin be very clear that Kings cannot be resisted yet he thinks that this is only to be mean'd of those Kings who have no Superiors to check them by Law as the Kings of the Lacedemonians had who by the fundamental Constitution of their Monarchy might have been call'd to an accompt by the Ephori and so in effect were only Titular Kings