by the Pagans as has been fully prov'd though it cannot be pretended that they rely'd upon any such miraculous assistance 3. It cannot be deny'd but the Fathers of the Primitive Church did recommend and justifie themselves in their Apologies to the Heathen Emperors for bearing patiently when they were able not only to have resisted but to have overthrown their Persecuters as is clear by the Citations out of Tertullian Cyprian Lactantius Augustine and others to be seen in Grotius De Jure Belli lib. 1. cap. 4. num 7. And it had been great impudence as well as sin in them to have boasted of a recent matter of Fact which was not true nor could there be a greater injury done to the Primitive Christians as Grotius observes than to ascribe that to their Weakness which they consider'd as an effect of Duty and why should the Heathen Emperors have suffered those to multiply who obey'd only because Disobedience was not safe for they might have certainly concluded that by the same Principle that they obeyed only because they were weak they would disobey how soon they were able 4. If the first Christians in general had obeyed only because they were not able to resist then any private Christian had resisted when he was able or would have fled or conceal'd himself whereas it it acknowledg'd in the other Answer press'd by Gronovius himself that they sought for Martyrdom and so these two Answers are inconsistent and the Thebean Legion and others did submit themselves voluntarly to Martyrdom with their Arms in their hands and when they were able to have overthrown the Emperor And lastly If this Doctrine were allow'd no Society could subsist for when Dissenters grew strong the lawful Magistrat behov'd to perish whereas Jesus Christ did contrive the Christian Religion so as that all Governours should reasonably wish their Subjects to be Christians and so as no Christian should attempt to overthrow the order and establishment of Civil Government and that they should not be drawn away from the practice of Christian Devotion by the carnal desires of being great and strong in the World nor have any hopes in the Arm of Flesh to the lessening of their immediate dependence upon him His third shift is That his Doctrine of Submission and of dying for the Christian Religion without making Resistance was only the Practice but not the Command of the Primitive Church and proceeded from their immoderat affection of the Crown of Martyrdom as Milntoun also pretends But since the express Command of Scripture is founded upon such clear Reason and since as Grotius well observes the Practice of the Primitive Christians who liv'd so near the Age wherein these Scriptures were pen'd is the best Interpreter of the Scripture it is horrid Impiety to make those blessed Martyrs pass for vain Hypocrites and distracted Self-murderers and it becomes us with holy reverence to imitate those whom the Christian Church has ever admir'd The fourth shift is That the Protestant Churches have been reform'd by such Insurrections as these contrary to the Royal Authority But this is fully answered by the learned Henry More in his Divine Dialogues and by Du Moulin in his Philanax Anglicus where likewise are to be found the many Testimonies of Protestant Churches and Protestant Divines condemning positively the taking up of Arms against the Soveraign Power even for the defence of Religion and the very Presbyterian Confession of Faith at Westminster is so positive as to this point that the Presbyterians themselves can never answer it The sum of which answer is That the King of Spain coming by Marriage in place of the Duke of Burgundy the said King of Spain could pretend to no more power than they had nor could the House of Burgundy pretend to any more power by marrying the Heirs of the Counts of the several Provinces than these Counts had over their Provinces and therefore since none of these were Soveraigns over their Provinces the Provinces might have resisted the King of Spain when he oppress'd them and consequently that Resistance cannot defend such as resist Supream Powers upon pretence of Religion Grotius de Antiq. Reipub. Baâ—av cap. 7. The opposition made by the Protestants in France was not occasion'd by Religion but upon a Quarrel betwixt the Princes of the Blood and the House of Guise in the Minority of Francis the 2d and is defended most excellently by King James himself not to have been Rebellion in his Defence of the Right of Kings pag. 14. The Opposition made by the Princes of Germany to the Emperor was founded upon the inherent Right in the Princes by the golden Charter of the Empire And Luther himself declar'd that Magistratâ—â— non erat resistendum and has written a Book to that purpose nor would he engage in the Confederacy for Defensive Arms at Smalcald until the Lawyers declared that that Resistance was lawful by the Laws of the Empire Vide Slydan Hist. lib. 8. anno 1531. The War that arose in Switzerland was not occasion'd by Religion for the Reformation was once establish'd with the con-consent of the Magistrat And the Eruption that was made by other Cantons upon the Reform'd Cantons eleven years after that Establishment Vide Slydan anno 1522. Nor was it Calvin who banish'd the Prince and Bishop of Geneva for he fled eight Months before upon the detecting of a Conspiracy by which that Bishop was to deliver over the Liberties of that City to the Duke of Savoy and for which his Secretary was hang'd Vide Turretin Annal. Reformationis anno 1529. And albeit those who Reform'd in Scotland in the Reign of Queen Mary pretended Authority from the King yet they were certainly Rebels and are condem'd by Rivet a famous Protestant Divine who also inveighs bitterly against this Principle Castiga Not. in Epist. ad Balsac cap. 13. num 14. sub finem From all which I observe First That all the Protestant Divines by making Apollogies for such of their Profession as have risen in Arms against Supream Powers must be thereby concluded to be asham'd of the Principle 2. Immediatly upon the quieting those Rebellions all the Protetestant Churches have in their Confessions of Faith declared their abhorrence of that Principle which being the product of Conviction and Experience joyn'd with Duty must be the most judicious and sincere Testimony of all others 3. All these Rebellions have been occasion'd by a mistake in point of Law and not in point of Religion for the Divines as I have related have been abused by the Lawyers And therefore since in the Isle of Britain the Laws of both Kingdoms have declared the Rising in Arms against the King to be Treason albeit for the defence of Religion it necessarily follows that this must be unlawful in point of Conscience in this Kingdom 4. Though good things may be occasion'd by a Rebellion yet that does not justifie a Rebellion for though Jeroboam was allow'd by God to rise against Rehoboam yet God Almighty himself calls his revolt Rebellion 1 Kings 12. 19. and 2 Chron. 10. 19. and it is observable that after this Revolt there was but one good King amongst all the rebellious Kings of Israel whereas amongst the Kings of Judah who were lawful Kings there was but one or two who were any ways impious so far does God bless a lawful Succession Some also use as a shift against this Orthodox Doctrine that the reason why the Primitive Christians did not oppose their Emperors in the defence of the Christian Religion was because they had not been secured at that time in the Exercise of their Religion by the Laws of the Empire and therefore the practice of those Christians can be no Argument why we may not now rise to defend the Orthodox Religion since it is now established by Law But this Objection is fully answered by that great great Antiquary Samuel Pelit Diatriba de Iur. Principum edictis Ecclesiae quaesito where he clearly proves that they were actually secured by the Edicts of the Emperors in the days of the Emperor Tiberius and downward and yet they would not rise in Arms though they were persecuted under these same Emperors because the Word of God and the Christian Religion did command Obedience under Persecution and discharged Resistance and taking up of Arms. Add to Page 73. I have also seen in Fordon's History lib. 14. pag. 73. a Charter granted by King David to the Bishops with the consent of Robert his Nephew and his Sons giving power to the Bishops to dispone in Testament upon their own Moveables which before that time did by a corrupt custom fall to the King in which Charter the Witnesses are Robertus Senescallus Comes de Strathern Nepos noster Ioannes Senescallus Comes de Carrict filius suus primogenitus haeres Thomas Comes de Mar Georgius de Dunbar Comes de March Gulielmus Comes de Dowglass so that here is not only the attestation of the Father before he was King naming John Earl of Carrick thereafter King Robert the 2d his eldest Son and Heir but the attestation of the Grand-Uncle King David who could be no ways byassed in the Affair and here he is ranked before the three eldest Earls in the Nation who were then the three first Subjects therein and it is against all Sense to think that the whole Bishops would have sought the consent of the said John as Apparent Heir of the Crown if he had not been Apparent Heir I find also that Fordon calls him when he is crown'd King Primogenitus Roberti secundi nor was there the least opposition made to his Coronation nor to the Coronation of Annabella Drummond his Queen a Daughter of the House of Stob-hall now Pearth though both the Sons of the second Marriage were then alive I sind also that Boetius himself acknowledges that the Earl of Marches Son George being pursu'd for having married clandestinly one of the Daughters of Elizabeth Muir his defence was that he married her when she was the Daughter of a private Subject and before King Robert was King whereas if she had been only a Bastard-Daughter it could have been no Crime to have married her
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
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 superiour as well as who should be their King It is also in reason to be expected that Scotland will ever owne the legal descent and thus we should under different Kings of the same Race be involv'd in new and constant civil warrs France shall have a constant door open'd by allyances with Scotland to disquiet the peace of the whole Isle and England shab loose 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 behoov'd certainly to succeed and therefore after the next Lawful Heir were brought from abroad to Reigne he behov'd 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 project I find also that as the debarring the Righteous Heir is in reason the fruitful seed of all civil warr and misery for who can Imagine that the Righteous 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 Righteous Heir the warrs during the reigne of William the Conquerour these betwixt King Stevin 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 forreigne Histories which tell us of the dreadfull michiefs arising from Pelops preferring his youngest Son to the Kingdom of Micene from Aedipus commanding that Polinices his youngest Son should reigne alternatly 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 Equall share in the Lacedemonian 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 Sinesandus who kill'd his Brother Suintilla Righteours Heir of Spaine 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 admitte 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 elder Brother to both Nor would France acquiesce in St. Lewis his preferring CHARLES his 3 Son to Lewis the eldest And the English refus'd to obey Lady Iean Gray in prejudice of Queen Marie though a Papist and persecuter Tali constanti veneratione nos Angli legitimos Reges prosequimur c. sayes an English Historian 7. If Parliaments had such powers as this then our Monarchy would not be hereditary but elective the very essence of ane hereditary Monarchy consisting in the right of Succession according to the contingency of blood Whereas if the Parliament can preferre the next save one they may preferre the last of all the line for the next save one is no more next than the last is next And the same reason by which they can choose a Successor which can only be that they have a power above him should likewayes 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 Statuts which acknowledge the present Kings Prerogatives acknowlege that they belong to him and his Heirs It followes 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 incapacitat 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 8. 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 debarre 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 contaminari patiatur And thus though he who were to succeed had committed murther or were declar'd a traitour 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 comming to the Crown But his very Right of blood would purge all these imperfections Of which there are two 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 Likeas upon this account it is that though in the Canon Law Bastards cannot be promov'd 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
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 contrair 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 Scotish line as is clear by that clause wherein it is declared that every Person or Persones 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 Queens death It therefore followes that it was never valide For if it had King Iames might have thereby been excluded by that person who should have succeeded next to the Scotish race For it 's undeniable that Queen Marie did during Queen Elizabeths life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard And therefore the calling in of King Iames 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 acknowledgement of King James's Right I have thought fit to set down as it is in the statute it self 1. Ja. 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 untill 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 reigne and bear Rule over that Kingdom shall at the time of their Coronation make their faithfull promise by Oath in presence of eternal God that they shall mantaine the true Religion of Iesus 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 absolutly necessar Coronatio enim magis est ad ostentationem quà m ad necessitatem Nec ideo Rex est quia coronatur sed coronatur quia Rex est Oldard consil 90. num 7. Balbus lib. de coronat pag 40. Nor do we read that any Kings were Crown'd in Scripture except Ioas. And Clovis King of France was the first who was Crown'd in Europe Nor are any Kings of Spaine Crown'd till this day Neither is ane Coronation Oath requisit Sisenandus being the first who in the 4. Tolletan Councel 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 Reigne of King Gregorie 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 Lawfull Successor though he were of a different Religion from his People as God forbid he should be may easily swear that he shall mantaine the Laws presently standing And any Parliament may legally secure the Successor from overturning their Religion or Laws though they cannot debarre him And though the Successor did not swear to mantaine the Laws Yet are they in litle danger by his Succession since all Acts of Parliament stand in force till they be repeal'd by subsequent Parliaments And the King cannot repeale an Act without the consent of Parliament But to put this beyond all debate the 2. Act of this current Parliament is opponed whereby it is declared that the Right and administration of the Government is immediatly devolv'd upon the nixt Lawfull 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 immediatly upon the Successor if he cannot administrat till he be Crown'd and have sworn this Oath The next objection is that since the King and Parl. may by Act of Parl. alter the Successions of privat 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 privat Families are Subject to Parliaments and inferiour to them and owe their privat 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 arbitrarly debarr the eldest Son of a privat 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 persone born out of England or attainted of treason could succeed to the Crown Because he could not succeed to a privat Estate All which and many moe instances do clearly demonstrat 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 ane Act of Parliament preferr'd to David and Walter who as he pretends were truly the eldest lawful Sons of Robert the 2d because Euphan Daughter to the Earl of Ross was first lawful Wife