Selected quad for the lemma: lord_n
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A50856
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That the lawful successor cannot be debarr'd from succeeding to the crown maintain'd against Dolman, Buchannan, and others / by George Mackenzie ...
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Mackenzie, George, Sir, 1636-1691.
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1684
(1684)
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Wing M206; ESTC R19286
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31,910
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82
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unsufferable there is no good Christian that can say that a King can be depos'd for using ill Counsellors And as to Richard the III. his case is so fully examined and all the Articles brought both against him and Edward the II. so fully answered by the learn'd Arnisaeus a Protestant Lawyer and who had no other interest in that debate than a love to Truth and Law in that treatise Quod nullâ ex causâ subditis fas sit contra legitimum principem arma sumere that we Protestants should be asham'd to bring again to the field such instances upon which Arnisaeus in answer to the 14. Article against Richard the II viz. that he refus'd to allow the Lawes made in Parliament does very well remark that this was in effect to consent to their being King and to transferre upon them the Royal power and this will be the event of all such undertakings The instances of Henry the IV. and Henry the VII are of no more weight than the other two since these were likewayes only Kings de facto till King Henry the VII by his marriage with the Lady Elizabeth eldest Daughter to King Edward the IV. did by her transmit a just title to his Successor therefore it was not strange that either of these should allow the Parliament to interpose when they behov'd to owe to them the possession of the Throne But yet Henry the VII himself as the Lord Bacon relates in his Historie shunn'd to have the Parliament declare his title to be just being content with these ambiguous words viz. that the inheritance of the Crown should rest remain and abide in the King c. And upon this accompt it was that the same King caus'd make a Law that such as should serve the King for the time being in his warrs could not be attainted or impeach'd in their persons or Estates As to Henry the VIII his procuring an Act whereby the Parliament declares that in case he had no issue by the Lady Jean Seymour he might dispose of the Crown to whatsoever person he should in his own discretion think fit It is answered that by a former Statute in the 25 year of his Reigne he by Act of Parliament setles the Crown upon the Heirs male of his own body and for lack of such issue to Lady Elizabeth and for lack of such issue also to the next Heirs of the King who should for ever succeed according to the right of Succession of the Crown of England which shewes that the Succession to the Crown of England is establish't by the Law of Nature and the Fundamental Laws of England upon the Heirs of Blood according to the proximity of degrees so that though that King did afterwards prevaile with the Parliament to declare this Elizabeth a Bastard as he did also his Daughter Mary by another Act and resolve to setle the Crown upon Henry Fitz Roy Duke of Richmond yet these Acts teach us how dangerous it is to leave Parliaments to the impression of Kings in the case of naming a Successor as it is to expose Kings to the arbitrariness of Parliaments But such care had God of his own Laws that Mary succeeded notwithstanding She was Papist and Elizabeth succeeded her though she was declar'd Bastard the Rights of Blood prevailing over the formalities of divorce and the dispensations of Popes as the strength of Nature does often prevaile over poisons And God remov'd the Duke of Richmond by death to prevent the unjust competition and so little notice was taken of this and the subsequent Act Anno 1535 that the Heirs of Blood succeeded without repealing of that Act as ane Act in it self invalide from the beginning for only such Acts are past by without being repeal'd And Blackwood pag. 45. observes very well that so conscious were the Makers of these Acts of the illegality thereof and of their being contrarie to the immutable Laws of God Nature and Nations that none durst produce that Kings Testament wherein he did nominat a Successor conform to the power granted by these Acts that how soon they were freed by his death from the violent oppressions that had forced them to alter a Successor three several times and at last to swear implicitly to whomever he should nominat a preparative which this age would not well bear though they cite it they proclamed first Queen Mary their Queen though a Papist and thereafter Queen Elizabeth whom themselves had formerly declared a Bastard And as in all these Acts there is nothing declaring the Parliaments to have power to name a Successor but only giving a power to the King for preventing mischiefs that might arise upon the dubiousness of the Succession to nominat a Successor two of the legal Successors having been declar'd Bastards upon some niceties not of nature but of the Popes Bulls for divorcing their Mothers so this instance can only prove that the King may nominat a Successor and that the Parliament may consent not to quarrell it which is all that they do but does not at all prove that where the Right of Nature is clear the Parliament may invert the same And strangers who considered more the dictats of Law than of Passion did in that age conclude that no Statute could be valide when made contrare to the fundamental Law of the Kingdom Arnisaeus Cap. 7. Num. 11. Henricus VIII Angliae Rex Eduardum filium primò deinde Mariam denique Elizabetham suos haeredes fecerat verùm non aliter ea omnia valent quà m sicum jure Regni conveniant Vid. Curt. Tract Feud Par. 4. Num. 129. There seems greater difficulty to arise from the 13 Elizabeth c. 2. by which it is enacted that if any persone shall affirme that the Parliament of England has not full power to bind and Governe the Crown in point of Succession and descent that such a persone during the Queens life shall be guilty of high treason But to this Act it is answered that this Act does not debarre the next legal and natural Successor And these words That the Parliament has power to bind and Govern the Succession must be as all other general expressions in Statutes interpreted and restricted by other uncontraverted Laws and so the sense must be that the Parliament are Judge where there are differences betwixt Competitors in nice and contravertable points which cannot be otherwise decided and both this and the former Acts made in Henry the VI. time are not general Laws but temporarie Acts and personal Priviledges and so cannot overturn the known current of Law Quod verò contrà rationem juris receptum est non est producendum ad consequentias And in all these instances it is remarkable that the restriction was made upon the desire of the Soveraigne and not of the Subject And if we look upon this Act as made to secure against Mary Queen of Scotland and to let her know that it was to no purpose for her to designe any
to King Robert the 2d and she bore him David Earl of Strathern and Walter Earl of Athol Alexander Earl of Buchan and Euphan who was married to James Earl of Dowglass after whose deceass he married Elizabeth Muir Daughter to Sir Adam Muir not so much as Buchanan observes from any design to marry a second Wife as from the great love he carried to Elizabeth Muir whom because of her extraordinary Beauty he had lov'd very passionatly in his youth and before he married the Earl of Rosses Daughter and from the love which he bore to the Sons whom Elizabeth had born before that first Marriage who were John Earl of Carrick who thereafter succeeded to the Crown by the Title of Robert the 3d and Robert Earl of Fife and Monteith he prevail'd with the Parliament to prefer John eldest Son by Elizabeth Muir to the two Sons which he had by the Earl of Rosses Daughter who was as they pretend his first lawful Wife In which though I might debate many nice points of Law relating to this Subject yet I choose only to insist on these few convincing Answers 1. That in a Case of so great moment Historians should be little credited except they could have produc'd very infallible Documents and as in general one Historian may make all who succeed him err so in this Case Boetius who was the first liv'd and wrot 200 years after the Marriage of King Robert the 2d and wrot his History at Aberdeen very remote from the Registers and Records by which he should have instructed himself nor did he know the importance of this point having touch'd it only transiently though it has been design'dly press'd by Buchanan to evince that the Parliaments of Scotland might prefer any of the Royal Line they pleas'd and it is indeed probable that King Robert the 2d did for some time make no great noise of his first Marriage with Elizabeth Muir least the meaness of the Match should have weaken'd his Interest upon his first coming to the Crown he being himself the first of the Race of the Stewarts and having so strong Competitors as the Earl of Dowglass who claim'd Right to the Crown in the Right of the Baliol and the Cummings as Boetius himself observes 2. King Robert the 3d. having succeeded as the eldest lawful Son and having been receiv'd as such by that Parliament and his Posterity by all succeeding Parliaments the Possession of the King and the Acquiescence of the People is the most infallible proof that can be adduc'd for proving that Robert was the eldest lawful Son nor have most Kings in Europe or the Heads of most private Families any other proof of their being the eldest and lawful Sons save that they succeeded and were acknowledg'd as such 3. To ballance the authority of these Historians I shall produce the Testimonie of the Learned Sir Lewis Stewart one of the most famous Lawyers we ever had and who ought much more to be believ'd than Buchanan not only because he was more disinterested but because he founds upon Acts of Parliament and old Charters which he himself had seen in the Registers in which Elizabeth Muir is acknowledg'd to have been the first Wife Buchananus lib. 9. in vitam Roberti 2. affirmat Euphaniam Comitis Rossenssis filiam primam Regis Roberti 2. uxorem fuisse eâ mortuâ Regem superinduxisse Elizabetham Moram ex qua prius Liberos ternos mares suscepisset â—am â—xâ—rem duxisse ejusque liberos regno destiâ—â—sse ut postea eorum natu maximus sucâ—â—essit quod quam falsum sit apparet ex archivis in carcere Edinburgensi reconditis ubi exstant separata acta duorum Parliamentorum subscripta manibus Ecclesiasticorum praesulum nobilium baronum aliorum statuum Parliamenti eorum sigillis roborata quibus Elizabetha Mora agnoscitur prima uxor Euphania Rosse secunda liberis ex Elizabetha Mora tanquam justis haeredibus Regni successive regnum dcernitur post eos liberis Euphaniae Rosse nec non ibidem cartae extant plurima factae per Davidem secundum eorum patruum magnum ex diversit terris Ioanni filio primogenito nepotis ejus Roberti dum Euphania Rosse viverit nec non Dar vidi filio natu maximo Euphaniae Rosse quem solum filium indigitat Roberti nepotis quod non fecisset si Elizabetha Mora non prius fuisset nupta Roberto ejus nepoti naâ— primogenitus nunquam attribuitur notho inâ— ego plures quam vigintâ— cartas in archivis inveni ubi etiam eas reliqui ex quibus sole clarius elucessit Elizabetham Moram primaâ—â— fâ—isse uxorem Euphaniam Rosse secundam nam extra contraversiam liberi Elizabethae Morae etate grandiores eraâ—t liberis Euphaniae Rosse which Paper I did get from the Lord Pitmeden who has himself written some learn'd Observations upon this point 4. I have my self seen an Act of Parliament found out by the industry of Sir George Mackenzie of Tarbet now Lord Register having the intire Seals of the Members of Parliament appended thereto by which the Parliament do swear Allegiance to Robert the 2d the first King of the Race of the Stewarts and after him Roberto Comiti de Carrict filio suo natâ— maximo his eldest Son in Anno 1371 which was the first year of his Reign and if the pretended defect be true it was a very palpable and a very undenyable one and could not but have been unanswerably known to the whole Nation And how can we imagine that the whole Parliament would have unanimously drawn upon themselves so dreadful a Perjury by excluding the lawful Heir against their National Oath in the Reign of K. Kenneth the 3d whereby they swore to own always the immediate Heir or that they would have entail'd upon themselves a Civil War by preferring even a questionable Heir after the Miseries which they had lately then felt in the competition betwixt the Bruce and the Baliol Amongst which Seals the Seal of James Earl of Dowglass is one and how ridiculous is it to think that he would sit and declare a Bastard preferable to the Brother of his own Lady and to his own Lady who would have succeeded if her Brothers had died without Succession Which Act of Parliament does also clearly prove that Buchanan did not at all understand matters of Fact in this part of the History for he asserts that after the death of Euphan Ross the King married Elizabeth Muir and did by Act of Parliament obtain the Crown to be settled upon Robert the 3d Son to the said Elizabeth Muir upon whom he also bestow'd the Title of Carrick all which is most false for this Act of Parliament is dated in Anno 1371 and King Robert the 2d succeeded to the Crown that year nor did Euphan Ross die till the 3d. year after he succeeded to the Crown and so not till the Year 1374 and yet in Anno 1371 this Act is