the Lords of the Session in all time coming and that as well in the case of a total as of a single Vacancy This being the Vote so declaimed against and in contempt whereof and in opposition whereunto some Persons having surreptitiously and fraudulently obtained Warrant Countenance and Authority from the King are so vent'rous as to dare to act We shall both with all the Loyalty and Modesty that becomes a Subject and an honest Man and yet with that freedom and plainness which one who hath no other design save to serve God his King and his Country with uprightness and integrity should value himself upon endeavour to vindicate the Wisdom as well as the Justice of the Parliament in the forementioned Vote In the performing whereof with all that exactness which brevity will allow I shall begin with an account of the first Administration of Civil Justice in the Kingdom of Scotland that we meet with in our Records For the College of Justice consisting of those called the Lords of the Session not having been institute till the Reign of King James the Fifth Anno 1537. The Administration of Justice was before that time not only ambulatory and itinerant but was discharged and executed by such Members of Parliament as the Estates of the Kingdom in their several Sessions elected from among themselves and authorized thereunto Nor had they only their whole Authority from the Estates in Parliament but to speak properly they were Committees of Parliament Authorized to such a Work and Office and accountable to Parliaments for the discharge of the Trusts committed unto them for the Domini electi ad causas whom we so often meet with in the Records of Parliament particularly in those of the Years 1524. 1526. 1528. were such Members as every respective Parliament elected from within their own Walls for the Administration of Justice between the King and his Lieges and between one Subject and another From whence it appears that it not only appertained unto the Parliament to see that Justice was duly administred but that the Right was originally in them of nominating and ordaining the Administrators of it Which makes it very improbable that after rheir having been possessed of such a Right Authority and Jurisdiction for so long time they should so wholly part from and intirely surrender it as upon no Occasion or Emergency whatsoever to leave unto themselves a share or reserve a concern in it Let us add to this That when the College of Justice came to be instituted Anno 1â—37 Parl. 5 King James the 5 th Act 36. though it was Established and Ordained by the Legislative Authority of the King and Estates joyntly and not by an exertion of meer Royal Prerogative yet the Estates in Parliament then Assembled both took upon them and were allowed the Nomination and Choice of the President as well as of all that were then called forth and advanced to be Lords of the Session or College of Justice as appears by the 39. and 41. Acts of the aforementioned Parliament Yea it is further evident from the Records of Parliament that the Estates of the Kingdom did often in succeeding Parliaments Nominate Choose and Impower those very Lords that were actually of the Session to continue in the Administration of Justice which sheweth beyond all rational contradiction that they could much less â—nter upon the Office at first without their being Chosen and Approved by the Estates 〈◊〉 â—arliament Thus Anno 1542. being the first of Mary we find the President with the rest of the Lords of Session Chosen and Impowered a new as Auditores ad causas for the hearing and deciding Civil and Criminal Causes And again we find the Parliament of the Second of Mary Anno 1543. not only ratifying by the Legislative Authority of the Queen and Estates the Institution of the College of Justice but we find the Estates alone nominating and choosing ad causas the President cum caeteris Dominis Sessionis Collegii Justitiae But forasmuch as there was a change given afterwards by Laws to this Course and Method and a new Regulation ordained by subsequent Statutes of the College of Justice wherein both the qualifications of those that are to be Chosen Lords of the Session and the manner of their Approbation are required and appointed We are therefore obliged in the next place to look into those Laws and to examine whether they detract from the Prudence and weaken the Justice of the Parliament in their fore-mentioned Vote or whether they not only Countenance and Suppport but Justifie and Vindicate them And We 'll begin with the 93 Act 6 Parliament James 6 where it being acknowledged That the Nomination of the Lords of the Session belongeth unto the King and that he ought to name such as have the Qualifications there required which are already specified in the aforesaid Vote It is further added That in all time coming when an ordinary Place becomes vacant in the Session the Person nominated thereunto by the King shall be sufficiently tryed and examined by a sufficient number of the Ordinary Lords of the College of Justice for whom it shall be Lawful to refuse the Person presented unto them and that the King in that Case shall present another and that so often until the Person presented be found qualified But seeing this Act may be said to have passed in the minority of King James and the force of it be thereupon endeavoured to be eluded We will therefore consult Act 134. Parl. 12. James 6. wherein besides a Repetition and a Confirmation of all that is mentioned and ordained in the former Act there is further added That none shall be received to any Place of Senator in the College of Justice unless he be sufficiently tryed by the whole College of Justice Now as those are the Laws relating unto and regulating the Nomination Examination and Approbation of the Ordinary Lords of the College of Justice the Practice hath been in all Times conformable thereunto So that the First Parliament of King Charles the Second which through the prevailing of the like Folly and Madness in Scotland which then reigned in England rob'd the Kingdom of many of its Rights and Privileges to increase and inlarge the Prerogative of the Crown yet they were so â—ender of making any Innovations in his particular that by their Second Act of that Parliament they Ordain The Nomination of the Lords of Session to remain as in former Times preceding the Year 1637. And accordingly we find as there have been several who upon single Vacancies in Former Reigns had been rejected by the Lords of the College of Justice though nominated by our Kings So there was one Sir William Ballanden whom Charles the Second had nominated and recommended who upon examination by the rest of the Lords was refused and rejected as a Person not Qualified according to the Statutes of the Realm Is it not therefore unreasonable to be imagined That the King who
Rights and Castoms of His Country who has had the Impudence as well as Malice to brand those for Republicans by whose Power Zeal and Interest the Crown came to be conferr'd upon the present King. But they must be Persons of a very short Prospect who do not perceive that they who are endeavouring to restore King James account it expedient to blast those in his present Majesties Esteem under the reproachful name of Republicans who have the Loyalty and Courage to venture their whole for his Crown and Dignity and to withstand those ill Men in what they are about And I will venture to say it freely that as it is not Names but Things which wise Men seek and pursue So there is no more required to the freeing both Scotland and England from the Common-wealths Men and from all Republican Principles but that His Majesty persevere in preserving unto his People their Rights and Liberties Esteem Parliaments as well his great Council in Arduous Affairs as the Suppliers of him in his Necessities with Mony and that he make the known Laws the Measure and Standard of his Government While on the contrary it is in the Power of ill Ministers if His Majesty hearken unto them to withdraw nine parts of ten of the People in six Months from their Love of Monarchy and to force them upon wishing for a Common-Wealth And had it not been for the view which the Nations under the last Reign had of their Royal Highnesses the Prince and Princesse of Orange and the assurance they entertained of enjoying their Laws and Priviledges under their Government and Authority the Methods which the late King took and the Counsels he followed would instead of the Translation of the Crown to Their present Majesties have put an end to the Monarchy Nor can any thing so affright considering Persons from addictedness to Monarchy as the leaving the Nations under the Power Conduct and Authority of those very Men by whose Counsels and Management the late King came to forefault His Crown seeing some will be so peremptory as to imagine that it cannot be upon personal liking that they come to be used but because the nature of the Government requires them or at least Persons of their Principle and Political Complexions But forasmuch as the present Embarrass of His Majesty with his Parliament of Scotland is wholly caused by the Advocate 's abusing His Majesty in the Account he hath given him both of the Rights and Jurisdictions of the Estates in Parliament Assembled and of the Laws and Customs of the Kingdom I shall therefore in Order to the disparaging of him with all the Wise and Loyal part of Mankind and the debarring him the King's Ear and attracting upon him the Royal Indignation Publish the Principle upon which he builds all the Advices he communicateth to his Master and with which he seeks to poyson and corrupt His Royal Mind And this is That the King hath a separate Interest from his People which he ought to pursue in distinction from theirs And this we may be sure he doth not fail of insinuating either immediately unto his Majesty or at least to those about him seeing he had the Folly as well as the Impudence both to assert and to seek to justify it in open and full Parliament Now whosoever gives himself the trouble of examining the tendency of this Principle will find the natural Consequences of it to be That the Prince and People must not only Live in a constant jealousy and dread of one another but must always be imbark'd in an intestine War. Nor is it to be avoided unless either by the King 's arriving at the height of Tyranny and the Peoples sinking into the Abyss of Slavery or by the Subjects grasping the whole Power and Authority and leaving unto the King an empty Name Yea it is a destroying of the very end for which Government was ordained of God and submitted unto by Men seeing that was nothing else but that the whole Society comprehending Ruler and Ruled might have but one Common Political Interest for the Defence and Security whereof each of them were to have their respective Duties alloâ—ted unto them Nay the very Prerogative acknowledged to belong unto the King is nothing save a Power trusted with him in Relation to some Cases that may emerge by which he may be the better enabled to preserve the safety of the Community and to provide for the benefit of the Publick Nor could Sir J D le take a more effectual Course to supplant the King in the Hearts of his People and to possess them with a Horror of and an Alienation from his Government than by his Proclaiming within the Parliament Walls That the King hath a separate Interest from that of his People and by Consequence that he is to promote and maintain it with the Neglect if not the Ruine of theirs neither is there any thing more propable than that the Advocate vented it in Treachery to his Majesty whom out of a Love to the late King and a Desire to have him restored he seeks to undermine and betray For he hath hereby so alarm'd the People in reference to His Majesties Government and fill'd them with those dismal Apprehensions of what they are to expect in case the King have a separate Interest from Theirs that it will be difficult either to allay their Fears or to recover them to an intire Trust in his Majesties Justice and Goodness without removing that Man both from about his Majesties Person and out of his Councils who hath given them that frightful Idea of his ensuing Reign However from this of the Advocate as well as from innumerable Observations to be made from the present Behaviour and Conduct of those who are received into his Majesties Councils and Service after they had not only ministered to King James through the whole Course of his Reign but co-operated with him in most if not all the Methods of his Tyranny we may rationally venture at this Reflection to wit That they are either endeavouring to justify the former Reign by seeking to expose and disgrace this Or that they are studying to cover themselves from what they are obnoxious unto for their Crimes under the last Government by reacting and repeating the same under the Connivance and Indulgence of the present And as by the First they evidently shake his Majesties Throne so by the Second they not only abuse the Mercy of the Government but despise its Justice By the Last they render the Government Vile and Cheap and by the former they pursue its Subversion It must with all lay a great Prejudice upon the Opinion of those that disswade his Majesty from gratifying his People in these Demands about which so much noise has been made here as well as there that they were judged necessary for his Interest as well as the Kingdoms Safety by in a manner the Unanimous Vote of the whole Parliament and of which it may
first and for a long tract of time afterwards they were not so much as a Committee of Articles of and to that Parliament by which they were chosen and of which they were Sitting and actual Members but were only so in reference to the next Parliament that should succeed against whose meeting they were to prepare such things as they should judge to be most fit and expedient to be then taken into consideration but still with a right as well as with a liberty reserved to that future Parliament not only to receive or reject what should be thus maturated and offered unto them but to admit whatsoever Overtures they pleased that should be made unto any of the Members of their own House It was the Ancient Custom and Practice of Scotland that the Sitting Parliament antecedently to its Dissolution and Separating elected so many from among themselves who were in the interval betwixt that and the next Parliament to make inquiry into the necessities of the Lieges and into the State of the Kingdom and accordingly to draw up and prepare such Overtures as should carry that relief and remedy in them which might give a redress unto Grievances be a meanâ— of preserving the Nation in safety and of promoting the prosperity of the Subjects Now from this harmless beginning of the Committee of Articles it hath through the Usurpation of our Kings especially after their Succession to the Crown of England and the remove of their Royal Abode thither and through the officiousness of publick Ministers to the Prince and treachery to their Countrey grown up at last to that exorbitancy that it is not only become burthensome but intolerable For by reason of the Parliaments coming at last to commit the inspection into all Affairs and preparing all remedies unto Grievances into a few hands and those to be unchangeable during a whole Session Our Late Monarchs obtained such a handle whereby they might incroach upon the Jurisdiction of Parliaments and the Liberties of the People that they soon improv'd it to the eluding of all the good that the Kingdom was to expect from Parliaments and to the making those who were designed to be the means of our safety become the Instruments of our Ruin. For the accomplishment whereof and the more effectual rendring the Lords of Articles Vassals unto the Monarch's Will and Tools for executing his Pleasure they first prevailed to have the Officers of State admitted into that Committee as Supernumeraries and that without being Nominated and Elected by the Estates in Parliament they should have a right to sit there Ratione Officii by vertue of the Imployments they held in the Government For King James the Sixth being by the adulation of the English Bishops brought intirely over to their Interest as well as to their Opinions about Church Discipline and Worship and having a mind in requital to the Church of Scotland for all the kindness they had expressed to him both in his Infancy and riper years to obtrude upon them the English Ceremonies he did in order to the more easie effectuating of it flatter cajole and bribe as well as huff and awe the Parliament Anno 1621. to allow the Officers of State to Sit as Supernumeraries without being chosen in the Committee of Articles And thus he forced those Innovations commonly known by the Name of the Five Articles of Perth upon the poor Church of Scotland having by those Supernumerary Officers not only so moulded the Committee of Articles as to pass and present them but thereby laid the Foundation of their being ordained and enacted in the House And to make the Lords of Articles yet more grievous and intollerable King Charles the First whose invasions upon the Rights and Liberties of his People proved Fatal both to him and them overthrew the Ancient Method of their Elections and brought the choice of them into such a Channel as could issue in no less than Tyranny in the Soveraign and Slavery in the Subjects For whereas by Law and Custom the Lords were to choose the Lords and the Barons to choose the Barons c Charles the First did in his Parliament held Anno 1633. when he was in the heigth of his Greatness change and innovate this Method and having divested the whole respective Estates of choosing severally their respective Commissioners he assumed a Power to himself with a right of consigning it over to his Commissioner in Parliament for chusing Eight Bishops consigning to the said Eight Bishops a Power of chusing Eight Noblemen and restraining to the said Eight Noblemen together with the aforesaid Eight Bishops a Power of choosing Eight Barons and Eight Burgesses and that these in conjunction with the Officers of State as Supernumeraries should be the whole and sole Lords of Articles exclusive of all others Finally to render that Committee yet more insupportable the sole Right as well as Liberty of bringing in Motions of making overtures for redressing Wrongs and of proposing means and expedients either for the relief or the safety and benefit of the Subject is intirely restrained unto and lodged wholly in this Committee Neither is it by our late Practice lawful for any Member or Members that are not of that packt Club and Society to make the least proposal or motion either for the repealing of an ill Law or for the enacting of a good So that I would now hope that the meer representing of this Committee of Articles as it is now transformed and degenerated from what it formerly was is enough to justify the Vote of the present Parliament about the having that grievance redressed and to vindicate them from the Obloquie they have lain under for insisting upon having Parliaments loosened from those Fetters For where is the Liberty of Speech and Voting essential to a Legislative Body if Parliaments must be thus muzled How-is a Kingdom eluded out of all the good that they expect from any Parliament if their Representatives may neither lay open their Sores nor offer Plaisters in order to their Cure How miserably would things have proceeded in the late Meeting of Estates if nothing was to have been before them but what a Committee where Eight Scotch Bishops were to have the Electing of Eight Noblemen and they together the chusing of the rest with King James's Officers of State Supernumerary that should have prepared Overtures for that Great and Illustrious Assembly I dare say That the being bound up to such a Method would have more effectually secured the Throne to King James than all the Swords of his Partizans Nor can Parliaments be designed for any thing under such a Constitution of a constant Committee with the Officers of State Supernumerary but to enlarge the Prerogative of the Crown and to levy Money from the People But Blessed be God His Majesty wants not Inclination to deliver his People from this and from all other Grievances but only wants Persons about him to set them in that Light that he may discern them