their consent But that can never amount to a power of transferring the Monarchy from one branch to another which would require that the Transferrers or Bestowers had the Supreme Power originally in themselves Nemo enim plus juris in alium transferre potest quam ipse in se habet And if the States of Parliament had this power originally in themselves to bestow why might they not reserve it to themselves and so perpetuate the Government in their own hands And this mov'd Judge Jenkins in his Treatise concerning the Liberty and Freedom of the Subject pag. 25. to say that no King can be named or in any time made in this Kingdom by the People A Parliament never made a King for there were Kings before there were Parliaments and Parliaments are summoned by the King's Writs Fourthly A King cannot in Law alienate his Crown as is undeniable in the Opinion of all Lawyers and if he do that deed is void and null nor could he in Law consent to an Act of Parliament declaring that he should be the last King And if such Consents and Acts had been sufficient to bind Successors many silly Kings in several parts of Europe had long since been prevailed upon to alter their Monarchy from Hereditary to Elective or to turn it into a Commonwealth and therefore by the same Reason they cannot consent to exclude the true Successor For if they may exclude one they may exclude all Fifthly In all Societies and Governments but especially where there is any association of Powers as in our Parliaments there are certain Fundamentals which like the noble parts in the Body are absolutely necessary for its preservation for without these there would be no Ballance or Certainty And thus with us If the King and each of the Estates of Parliament had not distinct and known limits set by the gracious Concessions of our Monarchs each of them would be ready to invade one another's Priviledges And thus I conceive that if the Parliament should consent to alienate half of the Kingdom or to subject the whole to a Stranger as in King John's Case in England and the Baliols in Scotland it has been found by the respective Parliaments of both Kingdoms that that Statute would not oblige the Successor Or if the House of Commons in England or the Boroughs of Scotland should consent to any Act excluding their Estate and Representatives from the Parliament doubtless that Statute excluding them would not prejudge their Successors because that Act were contrary to one of the Fundamental Laws of the Nation And the late Acts of Parliaments excluding Bishops were reprobated by the ensuing Parliaments as such and therefore by the same Rule any Statute made excluding the Legal Successor would be null and void as contrary to one of the great Fundamental Rights of the Nation And what can be call'd more a Fundamental Right than the Succession of our Monarchy Since our Monarchy in this Isle has ever been acknowledg'd to be Hereditary And that this Acknowledgment is the great Basis whereupon most of all the Positions of our Law run and are established such as That the King never dies since the very moment in which the last King dies the next Successor in Blood is Legally King and that without any express Recognizance from the People and all that oppose Him are Rebels His Commissions are valid He may call Parliaments dispose of the Lands belonging to the Crown all men are liable to do him Homage and hold their Rights of Him and His Heirs And generally this Principle runs through all the veins of our Law it is that which gives life and authority to our Statutes but receives none from them which are the undeniable Marks and Characters of a Fundamental Right in all Nations But that this Right of Lineal Succession is one of the Fundamental and Unalterable Laws of the Kingdom of Scotland is clear by the Commission granted by the Parliament for the Union in Anno 1604. in which these words are His Majesty vouchsafing to assure them or His sincere disposition and clear meaning no way by the foresaid Vnion to prejudge of hurt the fundamental Laws ancient Priviledges Offices and Liberties of this Kingdom whereby not only the Princely Authority of His most Royal Descent hath been these many Ages maintain'd but also His Peoples Securities of their Lands and Livings Rights Libertie Offices and Dignities preserv'd Which if they should be innovated such Confusion would ensue as it could no more be free Monarchy Sixthly There would many great Inconveniencies arise both to King and People by the Parliaments having this Power For weak Kings might by their own simplicity and gentle Kings by the Rebellion of their Subjects be induced to consent to such Acts in which their Subjects would be tempted to cheat in the one Case and rebel in the other Many Kings likewise might be wrought upon by the importunity of their Wives or Concubines or by the misrepresentations of Favourites to disinherit the true Successor and He likewise to prevent this Arbitrariness would be oblig'd to enter in a Faction for His own Support from His very Infancy This would likewise animate all of the Blood Royal to strive for the Throne and in order thereunto they would be easily induc'd to make Factions in the Parliament and to hate one another whereas the true Successor would be ingag'd to hate them all and to endeavour the Ruine of such as he thought more Popular than himself and every new Successor would use new Ministers Officers Methods and Designs whereas the apparent Heir uses those whom his Predecessor preferr'd Nor would the People be in better Case since they ought to expect upon all these accounts constant Civil Wars and Animosities and by being unsure whom to follow might be in great hazard by following him who had no Right And their Rights bearing to hold of the King and his Heirs it would be dubious to the Vassals who should be their Superior as well as who should be their King It is also in reason to be expected that Scotland will ever own the Legal Descent And thus we should under different Kings of the same Race be involved in new and constant Civil Wars France shall have a constant door open'd by Alliances with Scotland to disquiet the Peace of the whole Isle and England shall lose all the endeavours it used to unite this Isle within it self Another great Absurdity and Inconveniency which would follow upon the exclusion of the lineal Successor would be that if he had a Son that Son ought certainly to succeed and therefore after the next Lawful Heir were brought from abroad to Reign he ought to return upon the Birth of this Son and if he dyed he would be again call'd home and would be sent back by the Birth of another Son which would occasion such affronts uncertainties divisions factions temptations that I am sure no good nor wise man could admit of such a
Institut de Jur. Natural § singulorum de rer divis And when the Law declares That a Supreme Prince is free from the obligation of Laws Solutus legibus which is the highest power that a Parliament can pretend to or arrive at yet Lawyers still acknowledge That this does not exclude these Supreme Powers from being liable to the Laws of God Nature and Nations Accurs in l. Princeps ff de Leg. Clementina pasturalis de re judicata Bart. in l. ut vim de justitia jure Voet. de Statutis Sect. 5. Cap. 1. Nor can the Law of Nations be overturned by private Statutes or any Supreme Power And thus all Statutes to the prejudice of Ambassadors who are secured by the Law of Nations are confess'd by all to be Null and the highest Power whatsoever cannot take off the necessity of denouncing a War before a War can be lawful And Lawyers observe very well That those who would oppose the common Dictates of Mankind should be look'd upon as Enemies to all Mankind My second Argument shall be That the King and Parliament can have no more power in Parliament than any absolute Monarch has in his own Kingdom For they are when join'd but in place of the Supreme Power sitting in judgment and therefore they cannot in Law do what any other supreme and absolute Monarch cannot do for all the Power of Parliaments consists only in their Consâ—nt but we must not think that our Parliaments have an unlimited Power de jure so as that they may forfeit or kill without a cause or pass Sentence against the Subjects without citing or hearing them or that they can alienate any part of the Kingdom or subject the whole Kingdom to France or any other Foreign Prince all which deeds would be null in themselves and would not hinder the Party injur'd from a due redress For if our Parliaments had such Power we should be the greatest Slaves and live under the most arbitrary Government imaginable But so it is That no Monarch whosoever can take from any man what is due to him by the Law of God Nature and Nations For being himself inferior to these he cannot overturn their Statutes Thus a Prince cannot even ex plenitudine potestatis legitimate a Bastard in prejudice of former Children though they have only but a hope of Succession l 4. sequen de natal restituend And for the same Reason it is declared in the same Law that he cannot restore a freed man restituere libertum natalibus in prejudice of his Patron who was to succeed though that Succession was but by a municipal Law For clearing which Question it is fit to know that the Eminent Lawyers who treat Jus Publicum as Arnisaeus and others do distinguish betwixt such Kingdoms as were at first conferr'd by the People and wherein the Kings succeed by contract and in these the Laws made by King and People can exclude or bind the Successor And yet even here they confess that this proceeds not because the Predecessor can bind the Successor but because the People renew the Paction with the succeeding King But where the Successor is to succeed ex Jure Regni in hereditary Monarchies there they assert positively that the Predecessor cannot prejudge the Successor's Right of Succession which they prove by two Arguments First That the Predecessor has no more Power nor Right than the Successor for the same Right that the present King has to the Possession the next in Blood has to the Succession and all our Laws run in favour of the King and his Heirs and no man can try his Equal or give him the Law Par in parem non habet dominium The second is That it were unjust and unequitable that the Predecessor should rob his Successor Nulla ergo says Arnisaeus Cap. 7. Num. 5. clausula Successori jus auferri potest modo succedat ille ex jure regni And Hottoman lib. 2. de Regno Galliae asserts that in France which is a very absolute Monarchy Ea quae jure Regio primogenito competunt ne Testamento quidem patris adimi possunt And thus when the King of France design'd to break the Salique Law of Succession as in the Reign of Charles V. it was found impracticable by the Three Estates And when Pyrrhus was to prefer his youngest Son to the Crown the Epirots following the Law of Nations and their own refus'd him Paus lib. 1. In the year 1649 also Amurat the Grand Seignior having left the Turkish Empire to Han the Tartarian passing by his Brother Ibrahim the whole Officers of that State did unanimously cancel that Testament and restore Ibrahim the true Heir though a silly Fool Which shews the Opinion not only of Lawyers but of whole Nations and Parliaments Thus Vander Graaff an Hollander confesses That it is not lawful to chuse any of his Sons to succeed him in which the general quiet of the Kingdom is much concerned and therefore though the next Heir were wiser braver and more generally beloved yet the more immediate must be received as chosen by God whether good or bad and as honoured with his Character And if Kings could have inverted their Succession and chosen their own Successor Saint Lewis had preferr'd his own third Son to Lewis his eldest And Alfonsus King of Leon in Spain had preferr'd his Daughters to Ferdinand his eldest Son And Edward VI. of England had preferr'd and did actually prefer the Lady Jane Gray to his Sisters Mary and Elizabeth And if Successions especially of such great importance had not been fixed by immutable Laws of God and Nature the various and unconstant inclinations of the present Governors especially when shaken by the importunity of Stepmothers and Mothers or clouded by the jealousie of Flatterers or Favourites had made the Nations whom they governed very unhappy and therefore God did very justly and wisely settle this Succession that both King and People might know That it is by him that Kings Reign and Kingdoms are secured in Peace against Faction And it were strange that this should not hold in Kings since even amongst Subjects the Honour and Nobility that is bestow'd upon a Man and his Heirs does so necessarily descend upon those Heirs that the Father or Predecessor cannot exclude the next Successor or derogate from his Right either by renouncing resigning following base or mean Trades or any other For say those Lawyers since he derives this Right from his old Progenitors and owes it not to his Father his Fathers deed should not prejudge him therein Fab. Cod. 9. Tit. 28. Def. 1. Warnee Consil 20. Num. 7. And as yet the Estates of Parliament in both Nations have no Legislative Power otherwise than by assenting to what the King does so that if the King cannot himself make a Successor neither can they by consenting and all that their consent could imply would only be that they and their Successors should not oppose his Nomination because of
project I find also that as the debarring the Right Heir is in reason the fruitful seed of all Civil War and misery for who can imagine that the Right Heir will depart from his Right or that wise men will endanger their lives and fortunes in opposition to it so experience has demonstrated how dangerous and bloody this injustice has prov'd Let us remember amongst many Domestick examples the miseries that ensu'd upon the exclusion of Mordredus the Son of Lothus the destruction of the Picts for having secluded Alpinus the Right Heir the Wars during the Reign of William the Conqueror those betwixt King Stephen and Henry the II betwixt the Houses of Lancaster and York betwixt the Bruce and the Baliol the murther of Arthur Duke of Britanny true Heir of the Crown of England with many other foreign Histories which tell us of the dreadful mischiefs arising from Pelops preferring his youngest Son to the Kingdom of Micene from Aedipus commanding that Polinices his youngest Son should reign alternately with the eldest from Parisatis the Queen of Persia's preferring her youngest Son Cyrus to her eldest Artaxerxes from Aristodemus admitting his two Sons Proclus and Euristhenes to an equal share in the Lacedaemonian Throne The like observations are to be made in the Succession of Ptolemaeus Lagus and Ptolemaeus Phisco In the Sons of Severus in the Succession of of Sinesandus who kill'd his Brother Suintilla Righteous Heir of Spain and that of Francis and Fortia Duke of Millan with thousands of others In all which either the Usurpers or the Kingdom that obey'd them perish'd utterly To prevent which differences and mischiefs the Hungarians would not admit Almus the younger Brother in exclusion of the elder Colomanus though a silly deform'd Creature albeit Almus was preferr'd by Ladislaus the Kings eldest Brother to both Nor would France acquiesce in St. Lewis's preferring CHARLES's third Son to Lewis the Eldest And the English refus'd to obey Lady Jean Gray in prejudice of Queen Mary though a Papist and persecuter Tali constanti veneratione nos Angli legi timos Reges prosequimur c. says an English Historian Seventhly If Parliaments had such Powers as this then our Monarchy would not be hereditary but elective the very essence of an hereditary Monarchy consisting in the right of Succession according to the contingency of blood Whereas if the Parliament can prefer the next save one they may prefer the last of all the Liue for the next save one is no more next than the last is next And the same reason by which they can chuse a Successor which can only be that they have a Power above him should likewise in my opinion justifie their deposing of Kings And since the Successor has as good right to succeed as the present King has to Govern for that Right of blood which makes him first makes the other next and all these Statutes which acknowledge the present Kings Prerogatives acknowledge that they belong to him and his Heirs it follows clearly that if the Parliament can preclude the one they may exclude the other And we saw even in the last age that such reasons as are now urged to incapacitate the Children of our last Monarch from the hope of Succession viz. Popery and arbitrary Government did embolden men to Dethrone and Murder the Father himself who was actual King Eighthly That such Acts of Parliament altering the Succession are ineffectual and null is clear from this that though such an Act of Parliament were made it could not debar the true Successor because by the Laws of all Nations and particularly of these Kingdoms the right of Succession purges all defects and removes all impediments which can prejudge him who is to Succeed And as Craig one of our learn'd Lawyers has very well express'd it tanta est Regii sanguinis praerogativa dignitas ut vitium non admittat nec se contaminarep atiatur And thus though he who were to succeed had committed Murther or were declar'd a Traitor formerly to the Crown for open Rebellion against the King and Kingdom yet he needed not be restor'd by Act of Parliament upon his coming to the Crown But his very Right of blood would purge all these imperfections Of which there are reasons given by Lawyers one is that no man can be a Rebel against himself nor can the King have a Superior And consequently there can be none whom he can offend And it were absurd that he who can restore all other men should need to be restored himself The second reason is because the punishment of crimes such as confiscations c. are to be inflicted by the Kings Authority or to fall to the Kings Thesaury and it were most absurd that a man should exact from himself a punishment Like as upon this account it is that though in the Canon Law Bastards cannot be promoted to sacred orders without dispensation nor can alibi nati that is to say People born out of England be admitted to succeed in England by express Act of Parliament there Yet Agapaetus Theodorus Gelasius and many others have been admitted to be Popes without any formal dispensation their election clearing that imperfection And the Statute of alibi nati has been oft found not to extend to the Royal Line That the Succession to the Crown purges all defects is clear by many instances both at home and abroad The instances at home are in England Henry the VI. Being disabled and attainted of High-Treason by Act of Parliament it was found by the Judges notwithstanding that from the moment he assum'd the Crown he had Right to succeed without being restored And the like was resolved by the Judges in the case of Henry the VII as Bacon observes in his History of Henry the VII Fol. 13. And in the case of Queen Elizabeth who was declar'd Bastard by Act of Parliament as is clear by Cambden anno 2 Elizabeth And though in Scotland there be no express instances of this because though some Rebellious Ring-leaders in Scotland have often in a private capacity been very injurious to their King Yet their Parliaments have been ever very tender of attainting the Blood-Royal or presumptive Heirs But Alexander Duke of Albany and his Succession being declared Traitours by his Brother King James the IV his Son John was notwithstanding called home from France upon his Uncles death and declar'd Tutor and Governour without any remission or being restor'd That Employment being found to be due to him by the right of Blood Therefore he had been much more declared the true Successor of the Crown if his Cousin King James the V. had died These being sufficient to establish our design I shall mention only some forraign stories CHARLES the VII of France who though banish'd by Sentence of the Parliament of Paris did afterwards succeed to the Crown And though Lewis the XII was forfeited for taking up Arms against CHARLES the VIII yet he succeeded to him
without restitution And Lewis the II. his Son being declared a Rebel whom his Father desiring to disinherit and to substitute in his place Charles Duke of Normandie that Son had succeeded if he had not been hindred by the Nobility who plainly told him it was impossible to exclude his Son from the Succession My next task shall be to satisfie the arguments brought for maintaining 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 otherwise Jacob nor Solomon could not have succeeded against the priviledge of Birth-right and Possession David was a Prophet and a Man according to God's own Heart and so it is presumable that he knew the Will of God and God did wonderfully and remarkably declare Solomon to be preferable to all his Brethren The next Objection is That it is naturally imply'd in all Monarchies That the People shall obey whil'st 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 removed when they are suspected and that this is most just when Kings are Idolaters since God is rather to be obey'd than 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 pain of Eternal Damnation that all men should be subject to Superior 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 Superior And thus David Asa and others committed Crimes but were not depos'd nor debarr'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 God's express and immediate Will and overturning the uncontroverted 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 Emperors Nor was the Emperor 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 warrant and against his express warrant will usurp so high a power And we in this rebellious principle own the greatest extravagancy with which We can charge the Pope and Jesuits and disown not only our own Confession of faith which Article 1. Chap. 22. acknowledges That infidelity or difference in Religion doth not make void the Magistrates 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 Buchannan and others satisfie whereby they contend that the former Texts of Scripture prove only that the Office but not the Persons of Kings are Sacred so that Parliaments or People may lay aside the Persons though not the Office seeing the Sacred Text secures oftner the Person than the Office as I have formerly more fully prov'd 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 me more solid 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 Sect 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 a Protestant yet still this pretence that he design'd to introduce Popery would raise his People against him if differences in Religion could lawfully arm Subjects against their King or did empower them to debar his Successor And when this cheat prevail'd against devout K. Charles I. the Martyr of that Orthodox Faith to which he was said to be Enemy what a madness is it to allow this fatal Error which was able to ruin 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 otherwise to have succeeded as in the instances of Edward the II. and Richard the II the first of whom was most unjustly depos'd for making use of Gavestoun and the Spencers which shews how extravagant the People are in their humours rather than how just their Power is For besides that we do not read that these Counsellors were 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 II. 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 nulla ex causa 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 Fourteenth Article against Richard the II viz. that herefus'd to allow the Laws made in Parliament does very well remark that this was in effect to consent to their being King and to transfer upon them the Royal Power and this will be the event of all such undertakings The Instances of Henry IV. and Henry VII are of no more weight than the other two since these were likewise only Kings
Queens death It therefore follows that it was never valid For if it had King James might have thereby been excluded by that person who should have succeeded next to the Scottish Race For it 's undeniable that Queen Mary did during Q. Elizabeths Life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard And therefore the calling in of King James after this Act and the acknowledging his Title does clearly evince That the Parliament of England knew that they had no power to make any such Act The words of which acknowledgment of King James's Right I have thought fit to set down as it is in the Statute it self 1 Jac. Cap. 1. That the Crown of England did descend upon King James by inherent Birthright as being lineally justly and lawfully next and sole Heir of the Blood Royal. And to this Recognition they do submit themselves and Posterities for ever until the last drop of their Blood be spilt And further doth beseech His Majesty to accept of the same Recognition as the first Fruits of their Loyalty and Faith to His Majesty and to His Royal Progeny and Posterity for ever It may be also objected That by the 8 Act. Parl. 1. Ja. 6. it is provided in Scotland that all Kings and Princes that shall happen to Reign and bear Rule over that Kingdom shall at the time of their Coronation make their faithful promise by Oath in presence of the eternal God that they shall maintain the true Religion of Jesus Christ the preaching of the Holy Word and due and right Administration of the Sacraments now received and preach'd within this Kingdom from which two Conclusions may be inferr'd 1. That by that Act the Successor to the Crown may be restricted 2. That the Successor to the Crown must be a Protestant that being the Religion which was professed and established the time of this Act. To which it is answered That this Act relates only to the Crowning of the King and not to the Succession Nor is a Coronation absolutely necessary Coronatio enim magis est ad ostentationem quam ad necessitatem Nec ideo Rex est quia coronatur sed coronatur quia Rex est Oldrad consil 90. num 7. Balbus lib. de coronat pag. 40. Nor do we read that any Kings were Crown'd in Scripture except Joas And Clovis King of France was the first who was Crown'd in Europe Nor are any Kings of Spain Crown'd till this day Sisenandus was the first who in the fourth Tolletan Council gave such an Oath amongst the Christians as Trajan was the first amongst the Heathen Emperours And we having had no Coronation Oath till the Reign of King Gregory which was in Anno 879. he having found the Kingdom free from all Restrictions could not have limited his Successor or at least could not have debarr'd him by an Oath Nullam enim poterat legem dictare posteris cum par in parem non habeat imperium as our Blackwood observes pag. 13. 2. There is no Clause irritant in this Act debarring the Successor or declaring the Succession Null in case his Successor gave not this Oath 3. The Lawful Successor though he were of a different Religion from his People as God forbid he should be may easily swear That he will maintain the Laws now standing And any Parliament may legally secure the Successor from overturning their Religion or Laws though they cannot debar him And though the Successor did not swear to maintain the Laws yet are they in little danger by his Succession since all Acts of Parliament stand in force till they be repeal'd by subsequent Parliaments and the King cannot repeal an Act without the consent of Parliament But to put this beyond all debate the 2d Act of this current Parliament is opposed whereby it is declared That the Right and Administration of the Government is immediately devolv'd upon the next lawful Heir after the death of the King or Queen and that no difference in Religion nor no Law nor Act of Parliament can stop or hinder them in the free and actual Administration Which is an abrogation of the foresaid Act concerning the Coronation as to this Point for how can the administration be devolv'd immediately upon the Successor if he cannot administer till he be Crown'd and have sworn this Oath And therefore King James urges very well That sure immediately upon the death of the last King the Successor acquires a Right they who debar the Successor do not exclude a Successor from entering but debar a righteous King And by Act 2. Parl. 1. Sess 2. Ch. 2. It is declar'd Treason to suspend the King from the Stile Honour or Kingly Name And whereas Dolman urges That at all Coronations the People are ask'd If they will have such a King It is answered That this is no necessary Solemnity and is done rather to give the People occasion to shew their affection than their power even as a Gentleman in England is appointed to offer Dueâ— to any who would controvert the King's Right who is to be Crown'd notwithstanding of which offer he who would controvert the Title would certainly commit Treason Nor can it be deni'd from our History but that many of our Kings have reign'd long before they were Crown'd and that those who rebell'd against them before their Coronation were as legally Traytors as those who rebell'd after it All Kings number the years of their Reign from their Predecessors death and not from their Coronation They grant new Commissions and Judicatures who should understand Law best of all others decide in their Name and by their Authority before they be Crown'd So that I cannot but smile at Dolman's Conceit who says That a King before his Coronation is betroth'd but not a King espous'd to the Commonwealth till his Coronation and consequently may till then be rejected But this is a meer Whimsie and Scholastick Conceit for sure he acts as King and since they who oppose him commit Treason it is certain that he cannot be rejected and the solid Right of Blood and not airy Formalities make Kings Nor can I understand how Election and Birth can be join'd to compleat the excellency of Hereditary Monarchy as Doleman teaches for make it our Elective upon the unfitness of the Successor and all Successors shall be call'd unfit and unable to govern when a Faction resolves to set up a Rival though he be really yet more unfit than the true Heir is The next Objection is That since the King and Parliament may by Act of Parliament alter the Successions of private Families though transmitted by the Right of Blood why may they not alter the Succession in the Royal Family To which it is answered that the reason of the difference lyes in this that the Heirs of the Crown owe not their Succession to Parliaments for they succeed by the Laws of God Nature and the Fundamental Laws of the Nation whereas private Families are
three Estates which shews that there 's nothing design'd in this Act in favour of their Authority and that this King was Minor the time of this Act and that he had great Troubles in his Youth is very clear from the short characters given of our Kings by Skeen in the end of our Acts of Parliament It will I hope easily appear by the ballance of these Arguments that at least the Municipal Laws of our Nation which punish Defensive Arms as Treason should be obey'd by our Countrey-men since as I have oft inculcated the Laws of any Nation should still be obey'd except where they are inconsistent with the Word of God and the most that the most violent Republicans alive can say upon this Subject is that the case may be debated by probable Arguments and that neither of the Positions want their inconveniencies so that in this as in all other Debates the Law of each Nation is the best Judge to decide such Controversies and therefore such as maintain these Principles after so many positive and reiterated Laws are obliged for preserving the Peace of humane Society and the Order which God has establisht to remove from places where they cannot obey for they will always find some place where the Government will please them and better they be disquieted than the Government of the whole World should be disturb'd But if they will stay and oppose the Government it must be excus'd to execute those who would destroy it Having thus glanc'd only at Answers to these Objections because I think the Objections rather plausible than strong I shall sum up this Debate with these Reflections First Buchannan and our Republican Authors debate all these Grounds as if we were yet to form the Government under which we were to live wheras we live under and are sworn to a Monarchy fixt by Law and Consent time out of mind and the Levellers may as well urge that no Nobleman should be dignifi'd nor no Gentleman enriched above a man of good sence and Tenants may argue that it is not reasonable that they bearing God's Image as well as the Master should toil to feed their Lusts Thus Reason may be distorted and we call that Treason and Providence which pleases us best Secondly Most of their Citations and Authorities are the Sentiments of those Greeks and Romans who liv'd under Common-wealths and so magnifi'd their Countrey in opposition to Usurpers whereas our King is the Father of our Countrey and whatever they said of their Countrey we should say of him and therefore these Citations concern us no more than the Law of England binds Scotchmen they praise their own Children and Servants for their Faithfulness and Obedience to them and yet they rail at us for being faithful to our great Master and chief Parent under God Thirdly Most of the Authors cited and admir'd by them are Heathens particularly Stoicks who equall'd themselves not only to Kings but to their own Gods and against whose selfishness and pride all Christians have justly exclaim'd and so they are not competent Judges nor sure Guides to Christians in the exercise of those purely Christian Vertues of Humility Submission Self-denial Patience Faith and Reliance upon God Fourthly They balance not all the conveniences and inconveniences of either Government but magnifie the one and conceal the other and thus it is true that Kings may be Tyrants but so may and usually are the Leaders of the Rabble Cromwel was such and Shaftsbury had been such he was such in his Nature and had been such in his Government and the Distractions of a Civil War which ordinarily attend Competitions amongst Republicans destroy more than the Lusts of any one Tyrant can do which made Lucan tho a Republican and of the Pompeyan Party conclude after a sad review of the continued Civil Wars betwixt Sylla and Marius Caesar and Pompey without considering what followed under the Trium viri Faelices Arabes Medique Eoaque tellus Qui sub perpetuis tenuerunt Regna Tyrannis Fifthly Those who debate against Magistracy gratifie their own Vanity and Insolence but such devout men as Ambrose Augustine Vsher and others debate against the dictates of Interest as well as Passion which two nothing save Grace can overcome and there can be no surer mark of Conviction than to decide against these Lastly Even Buchannan repented his horrid Doctrine Cambden 10. year of Queen Elizabeths Reign in 1567. But forasmuch as Buchannan being transported with partial affection and with Murrays bounty wrote in such sort that his said Books have been condemned of falshood by the Estates of the Realm of Scotland to whose Credit more is to be attributed and he himself sighing and sorrowing sundry times blam'd himself as I have heard before the King to whom he was School-master for that he had imploy'd so virulent a Pen against that well deserving Queen and upon his Death-bed wished that he might live so long till by recalling the truth he might even with his Blood wipe away those Aspersions which he had by his bad Tongue falsly laid upon her but that as he said it would now be in vain when he might seem to dote for Age c. Idem Anno 1582. And not content with all this speaking of their surprizing the King they compell'd the King against his Will to approve of this intercepting of his Letters to the Queen of England and to decree an Assembly of the Estates summoned by them to be just yet could they not induce Buchannan to approve of this their Fact either by writing or perswasion by Message who now sorrowfully lamented that he had already undertaken the Cause of Factious people against their Princes and soon after Died c. THAT THE LAWFVL SVCCESSOR CANNOT BE DEBARR'D FROM Succeeding TO THE CROWN Maintain'd against DOLMAN BUCHANNAN And OTHERS BY Sir GEORGE MACKENZIE His Majesties Advocate in Scotland LONDON Printed for Richard Chiswel at the Rose and Crown in St. Pauls Church-yard 1684. King James In His Advice to Prince Henry Page 173. IF God give you not Succession Defraud never the Nearest by Right whatsoever Conceit ye have of the Person for Kingdoms are ever at God's disposition and in that Case we are but Liferenters it lying no more in the Kings than in the Peoples hands to dispossess the Righteous Heir Page 209. Ibid. FOR at the very moment of the Expiring of the King Reigning the Nearest and Lawful Heir entereth in his place and so to refuse him or intrude another is not to hold out the Successor from coming in but to expel and put out their Righteous King And I trust at this time whole FRANCE acknowledgeth the Rebellion of the Leaguers who upon pretence of Heresie by Force of Arms held so long out to the great Desolation of their whole Countrey their Native and Righteous King from possessing his own Crown and natural Kingdom THE RIGHT OF THE Succession DEFENDED THE Fourth Conclusion to be cleared was That neither
de facto till King Henry VII by his Marriage with the Lady Elizabeth eldest daughter to King Edward IV. did by her transmit a just Title to his Successor and therefore it was not strange that either of these should allow the Parliament to interpose when they owed to them the possession of the Throne But yet Henry VII himself as the Lord Bacon relates in his History shun'd to have the Parliament declare his Title to be just being content with these ambiguous words viz. That the inheritance of the Crown should rest remain and abide in the King c. And upon this account it was that the same King caus'd a Law to be made that such as should serve the King for the time being in his Wars could not be attainted or impeach'd in their Persons or Estates As to Henry VIII his procuring an Act whereby the Parliament declares That in case he had no Issue by the Lady Jean Seymour he might dispose of the Crown to whatsoever person he should in his own discretion think fit It is answered That by a former Statute in the 25th year of his Reign he by Act of Parliament settles the Crown upon the Heirs-male of his own Body and for lack of such Issue to Lady Elizabeth and for lack of such Issue also to the next Heirs of the King who should for ever succeed according to the Right of Succession of the Crown of England which shews that the Succession to the Crown of England is establish'd by the Law of Nature and the Fundamental Laws of England upon the Heirs of Blood according to the Proximity of Degrees so that though that King did afterwards prevail with the Parliament to declare this Elizabeth a Bastard as he did also his daughter Mary by another Act and resolve to settle the Crown upon Henry Fitz-Roy Duke of Richmond Yet these Acts teach us how dangerous it is to leave Parliaments to the impression of Kings in the case of naming a Successor as it is to expose Kings to the Arbitrariness of Parliaments But such care had God of his own Laws that Mary succeeded notwithstanding she was Papist and Elizabeth succeeded her though she was declar'd Bastard the Rights of Blood prevailing over the Formalities of Divorce and the Dispensations of Popes as the strength of Nature does often prevail over Poisons And God remov'd the Duke of Richmond by death to prevent the unjust Competition and so little notice was taken of this and the subsequent Act Anno 1535. that the Heirs of Blood succeeded without repealing of that Act as an Act in it self invalid from the beginning for only such Acts are past by without being repeal'd And Blackwood pag. 45. observes very well that so conscious were the Makers of these Acts of the illegality thereof and of their being contrary to the immutable Laws of God Nature and Nations that none durst produce that King's Testament wherein he did nominate a Successor conformable to the power granted by those Acts that as soon as they were freed by his death from the violent Oppressions that had forced them to alter a Successor three several times and at last to swear implicitly to whomsoever he should nominate a Preparative which this Age would not well bear though they cite it they proclaimed first Queen Mary their Queen though a Papist and thereafter Queen Elizabeth whom themselves had formerly declared a Bastard And as in all these Acts there is nothing declaring the Parliaments to have power to name a Successor but only giving a power to the King for preventing mischiefs that might arise upon the dubiousness of the Succession to nominate a Successor two of the legal Successors having been declar'd Bastards upon some Niceties not of Nature but of the Pope's Bulls for divorcing So this Instance can only prove that the King may nominate a Successor and that the Parliament may consent not to quarrel at it which is all that they do but does not at all prove that where the Right of Nature is clear the Parliament may invert the same And Strangers who considered more the dictates of Law than of Passion did in that Age conclude That no Statute could be valid when made contrary to the fundamental Law of the Kingdom Arnisaeus cap. 7. num 11. Henricus VIII Angliae Rex Eduardum filium primo deinde Mariam denique Elizabetham suos haeredes fecerat verum non aliter ea omnia valent quam si cum jure Regni conveniant Vid. Curt. Tract Feud Par. 4. Num. 129. There seems greater difficulty to arise from 13 Eliz. c. 2. by which it is enacted that if any person shall affirm that the Parliament of England has not full power to bind and govern the Crown in point of Succession and descent that such a person during the Queens life shall be guilty of High-Treason But to this Act it is answered that this Act does not debar the next legal and natural Successor and these words That the Parliament has power to bind and Govern the Succession must be as all other general expressions in Statutes interpreted and restricted by other uncontroverted Laws and so the sense must be that the Parliament is judge where there are differences betwixt Competitors in nice and controvertable Points which cannot be otherwise decided and both this and the former Acts made in Henry the VI. time are not general Laws but temporary Acts and personal Priviledges and so cannot overturn the known current of Law Quod vero contra rationem juris receptum est non est producendum ad consequentias And in all these instances it is remarkable that the restriction was made upon the desire of the Soveraign and not of the Subject And if we look upon this Act as made to secure them against Mary Queen of Scotland and to let her know that it was to no purpose for her to design any thing against the Right or Person of Queen Elizabeth as being declar'd a Bastard by Act of Parliament in England since her other Right as next undoubted Heir by Blood to the Crown might be altered or Govern'd we must acknowledge it to be only one of these Statutes which the Law sayes are made ad terrorem ex terrore only Nor was there ever use made of it by Queen Elizabeth nor her Parliaments so fully were they convinc'd that this pretended power was so unjust as that it could not be justified by an Act of Parliament being contrary to the Laws of God of Nature of Nations and of the Fundamental Laws of both Kingdoms But this Law being made to exclude Queen Mary and the Scottish line as is clear by that clause wherein it is declared that every Person or Persons of what degree or Nation soever they be shall during the Queens life declare or publish that they have Right to the Crown of England during the Queens life shall be disinabled to enjoy the Crown in Succession inheritance or otherwayes after the
subject to Parliaments and inferiour to them and owe their private Rights to a municipal Law and so may and ought in point of Right to be regulated by them And yet I am very clear that a Parliament cannot arbitrarily debar the eldest Son of a private Family and devolve the Succession upon the younger and if they did so their Acts would be null But if this argument were good we might as well conclude by it that no person born out of England or attainted of Treason could succeed to the Crown because he could not succeed to a private Estate All which and many more instances do clearly demonstrate that the Successor to the Crown cannot be debarr'd nor the Succession to the Crown diverted by Act of Parliament The last objection is that Robert the III. King of Scotland was by an Act of Parliament preferr'd to David and Walter who as he pretends were truly the eldest lawful Sons of Robert the 2 d. because Euphan Daughter to the Earl of Ross was first lawful Wife to King Robert the 2 d and she bore him David Earl of Strathern and Walter Earl of Athol Alexander Earl of Buchan and Euphan who was married to James Earl of Dowglass after whose decease he married Elizabeth Muir Daughter to Sir Adam Muir not so much as Buchannan observes from any design to marry a second Wife as from the great love he carried to Elizabeth Muir whom because of her extraordinary Beauty he had lov'd very passionately in his youth and before he married the Earl of Rosses Daughter and from the love which he bore to the Sons whom Elizabeth had born before that first Marriage who were John Earl of Carrick who thereafter succeeded to the Crown by the Title of Robert the 3 d and Robert Earl of Fife and Monteith he prevail'd with the Parliament to prefer John eldest Son by Elizabeth Muir to the two Sons which he had by the Earl of Rosses Daughter who was as they pretend his first lawful Wife In which though I might debate many nice points of Law relating to this Subject yet I chuse only to insist on these few convincing answers 1. That in a Case of so great moment Historians should be little credited except they could have produc'd very infallible Documents and as in general one Historian may make all who succeed him err so in this Case Boetius who was the first liv'd and wrote 200 years after the Marriage of King Robert the 2 d and wrote his History at Aberdeen very remote from the Registers and Records by which he should have instructed himself nor did he know the importance of this point having touch'd it only transiently though it has been design'dly press'd by Buchannan to evince that the Parliaments of Scotland might prefer any of the Royal Line they pleas'd and it is indeed probable that King Robert the 2 d. did for some time make no great noise of his first Marriage with Elizabeth Muir least the meanness of the Match should have weaken'd his Interest upon his first coming to the Crown he being himself the first of the Race of the Stuarts and having so strong Competitors as the Earl of Dowglass who claim'd Right to the Crown in the Right of the Baliol and the Cummings as Boetius himself observes 2. King Robert the 3 d. having succeeded as the eldest lawful Son and having been receiv'd as such by that Parliament and his Posterity by all succeeding Parliaments the Possession of the King and the Acquiesence of the People is the most infallible proof that can be adduc'd for proving that Robert was the eldest lawful Son nor have most Kings in Europe or the Heads of most private Families any other proof of their being the eldest and Lawful Sons save that they succeeded and were acknowledg'd as such 3. To ballance the Authority of these Historians I shall produce the Testimony of the Learned Sir Lewis Stewart one of the most famous Lawyers we ever had and who ought much more to be believ'd than Buchannan not only because he was more disinterested but because he found upon Acts of Parliament and old Charters which he himself had seen in the Registers in which Elizabeth Muir is acknowledg'd to have been the first Wife Buchananus lib. 9. in vita Roberti 2. affirmat Euphaniam Comitis Rossenssis filiam primam Regis Roberti 2. uxorem fuisse ea mortua Regem superinduxisse Elizabetham Moram ex qua prius Liberos ternos mares suscepisset et eam uxorem duxisse ejusque liberos regno destinasse ut postea â—orum natu maximus successit quod quam fâ—lsum sit apparet ex archivis in carcere Edinburgensi reconditis ubi exstant separata acta duorum Parliamentorum subscripta manibus Ecclesiasticorum praefalum nobilium baronum aliorum statuum Parliamenti eorum sigillis roborata quibus Elizabetha Mora agnoscitur prima uxor Euphania Rosse secunda liberis ex Elizabetha Mora tanquam justis haeredibus Regni successive regnum decernitur post eos liberis Euphaniae Rosse nec non ibidem cartae extant plurimae factae per Davidem secundum eorum patruum magnum ex diversis terris Joanni filio primogenito nepotis ejus Roberti dum Euphania Rosse viveret nec non Davidi filio natu maximo Euphaniae Rosse quem solum filium indigitat Roberti nepotis quod non fecisset si Elizabetha Mora non prius fuisset nupta Roberto ejus nepoti nam primogenitus nunquam attribuitur notho imo ego plures quam viginti cartas in archivis inveni ubi etiam eas reliqui ex quibus sole clarius elucessit Elizabetham Moram primam fuisse uxorem Euphaniam Rosse secundam nam extra controversiam liberi Elizabethae Morae aetate grandiores erant liberis Euphaniae Rosse which Paper I did get from the Lord Pitmeden who has himself written some learned Observations upon this Point 4. I have my self seen an Act of Parliament found out by the industry of Sir George Mackenzie of Tarbet now Lord Register having the intire Seals of the Members of Parliament appended thereto by which the Parliament do swear Allegiance to Robert the Second the first King of the Race of the Stuarts and after him Roberto Comiti de Carrict filio suo natu maximo his eldest Son in Anno 1371. which was the first year of his Reign I have also found out a Copy of an Act of Parliament amongst the Records of the late famous Lord Register Skeen which I think fit to insert word for word at the end of this Treatise in Latin the substance whereof in English runs thus That a Parliament being call'd at Scoon the 4th of April Anno 1373. and third year of the Reign of King Robert the Second on purpose to secure the Succession and to prevent all disorders that might afterwards arise in any part of the Kingdom about Titles to the Crown It was Enacted by the said