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A50551 Jus regium, or, The just and solid foundations of monarchy in general and more especially of the monarchy of Scotland, maintain'd against Buchannan, Naphtali, Dolman, Milton, &c. Mackenzie, George, Sir, 1636-1691. 1684 (1684) Wing M163; ESTC R945 87,343 224

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Minors cannot be ill since God almighty us'd to make such a choice I know that Eccles 10. 16. says Woe unto the Land when thy King is a child but the Criticks interpret this of a King that is childish Puer intellectu moribus or because Factions arise by the opposition to his Regents and this inconveniency did more necessarily attend the allowing a Regent King during Life for both the Subjects and the true Heir rais'd Factions in that Case whereas the Subjects only are factious in the other and yet even they are no more factious for that short time than they are always in Commonwealths 4. The reason why the Minor King was to have one to supply his Non-age ceasing with his Majority it was unreasonable that the Remedy should have lasted beyond the Disease and the worst effect that could have been occasion'd by the Infant King's Minority was that the Kingdom should have been during that time govern'd by joint advice of Parliament Councils and Officers of State which in Buchanan's opinion in other places of his History and Book De Jure Regni is so excellent a Model that he decries Monarchy as much inferior to it 5. It was most inconvenient to accustom any private Family to live in the Quality of a King 6. It could not but occasion many Murders and much Faction for the true Heir could not live peaceably under this Eclipse and Exclusion nor could the Uncle live without making a Party to secure his pleasant Usurpation 7. As these Divisions and Factions were the natural and necessary Effects that were to be expected from this irregular Succession so it is very observable that from King Fergus to King Kenneth the third we had Seventy nine Kings amongst whom almost the half were the most impious tyrannical or lazy Kings that ever we had according to Buchanan's Character of them so happy and wise a thing is this so much magnified Election of a Successor by the People and their Representatives to supply the defects of the lawful Heir whereas from K. Kenneth the third to King CHARLES the Second inclusive we have had Thirty one Kings Twenty six of whom have succeeded by a due lineal Right and have prov'd vertuous Princes greater by their Merit than their Birth as if God had design'd to let us see that though most of them succeeded whil'st they were very young yet that he can chuse a fitter Successor than Parliaments can do whereas the other five Kings who came to the Crown against that Law of Kenneth the third viz. Constantine the Bald Grimus Mackbeth Donal Bain and Duncan the second were all persons who deserved very ill to be preferred to the true Heir and who as they came to the Crown against Law so govern'd without it And it is very strange that the Fanaticks who think that every throw of the Dice is influenc'd by a special Providence will not allow that God does by a special Providence take care who shall be his Representative who shall be the Pastor of his Flock and nursing Father of his Church let us therefore trust his Care more than our own and hope to obtain more from him by Christian Submission Humility and Obedience than we can by Caballing Rebelling and Sacrilegious Murdering or Excluding the TRUE SUCCESSOR POSTSCRIPT IN regard there is Pag. 194 195. mention made of an Act of Parliament determining the Succession of Robert the Second's Children and referr'd to here upon further Consideration the Author has thought fit to defer the printing of it till another time the Substance of it being inserted in the said Pages Books Printed for and Sold by RICHARD CHISWELL FOLIO SPeed's Maps and Geography of Great Britain and Ireland and of Foreign Parts Dr. Cave's Lives of the Primitive Fathers in 2. Vol. Dr. Cary's Chronological Account of Ancient Time Sir Tho. Herbert's Travels into Persia c. B. Wilkin's real Character or Philosophical Language Hooker's Ecclesiastical Polity Guillim's Display of Heraldry with large Additions Dr. Burnet's History of the Reformation of the Church of England in 2. Vol. Account of the Confessions and Prayers of the Murtherers of Esquire Thynn Burlace's History of the Irish Rebellion Herodoti Historia Gr. Lat. cum variis Lect. Bishop Sanderson's Sermons with his Life Fowlis's History of Romish Conspir Treas and Usurpat Dalton's Office of Sheriffs with Additions Office of a Justice of Peace with Additions Lord Cook 's Reports in English Edmunds on Caesars Commentaries Sir John Davis's Reports Judge Yelverton's Reports The Laws of this Realm concerning Jesuites Seminary Priests Recusants the Oaths of Supremacy and Allegiance explained by divers Judgments and resolutions of the Judges with other Observations thereupon by Will. Cawley Esq Josephus's Antiquities and Wars of the Jews with Fig. QVARTO DR Littleton's Dictionary Latine and English Bishop Nicholson on the Church Catechism History of the late Wars of New-England Dr. Outram de Sacrificiis Bishop Taylor 's Disswasive from Popery Parkeri Disputationes de Deo The Magistrates Authority asserted in a Sermon By James Paston Dr. Jane's Fast Sermon before the Commons 1679. Mr. John Jame's Visitation Sermon April 9. 1671. Mr. John Cave's Fast-Sermon on 30. of Jan. 1679. Assize Sermon at Leicester July 31. 1679. Dr. Parker's Demonstration of the Divine Authority of the Law of Nature and the Christian Religion Mr. William's Sermon before the Lord Mayor 1679. History of the Powder Treason with a vindication of the proceedings relating thereunto Speculum Baxterianum or Baxter against Baxter Mr. Hook's new Philosophical Collections Bibliotheca Norfolciana sive Catalogus Lib. Manuscript impress in omni Arte Lingua quos Hen. Dux Norfolciae Regiae Societati Londinensi pro scientiae naturali promovenda donavit OCTAVO BIshop Wilkin's Natural Religion Dr. Ashton's Apology for the Honours and Revenues of the Clergy Lord Hollis's Vindication of the Judicature of the House of Peers in the Case of Skinner Jurisdiction of the House of Peers in Case of Appeals Jurisdiction of the House of Peers in Case of Impositions Letters about the Bishops Votes in Capital Cases Dr. Grew's Idea of Philological History on Roots Spaniard's Conspiracy against the State of Venice Dr. Brown's Religio Medici with Digby's Observations Dr. Symposon's Chymical Anatomy of the York-shire Spaws with a Discourse of the Original of Hot Springs and other Fountains Hydrological Essays with an Account of the Allum works at Whitby and some Observations about the Jaundice Organon Salutis or an Instrument to cleanse the Stomach With divers new Experiments of the Vertue of Tobacco and Coffee with a Preface of Sir Hen. Blunt Dr. Cave's Primitive Christianity in three Parts Ignatius Fuller's Sermons of Peace and Holiness Doctor Sanway's Unreasonableness of the Romanists Record of Urines The Tryals of the Regicides in 1660. Certain genuine Remains of the Lord Bacon in Arguments Civil Moral Natural c. with a large account of all his Works by Dr. Tho. Tennison Dr. Puller's Discourse of the Moderation
of the Church of England Sir John Munsons Discourse of Supream Power and Common Right Dr. Henry Bagshaw's Discourses on select Texts Mr. Seller's Remarks relating to the State of the Church in the three first Centuries The Country-man's Physician Dr. Burnet's account of the Life and Death of the Earl of Rochester Vindic. of the Ordinations of the Church of Engl. History of the Rights of Princes in the Disposing of Ecclesiastical Benefices and Church-Lands Markam's Perfect Horseman Dr. Sherlock's Practical Disc of Religious Assemblies Defence of Dr. Stillingfleet's Unreasonableness of Separation A Vindication of the Defence of Dr. Stillingfleet in Answer to Mr. Baxter and Mr. Lob about Catholick Communion The History of the House of Estee the Family of the Dutchess of York Sir Rob. Filmer's Patriarcha or Natural Power of Kings Mr. John Cave's Gospel to the Romans Lawrence's interest of Ireland in its Trade and Wealth stated DVODECIMO HOdder's Arithmetick Grotius de Veritate Religionis Christianae Bishop Hacket's Christian Consolations An Apology for a Treatise of Humane Reason written by M. Clifford Esq VICESIMO QVARTO VAlentine's Devotions Pharmacopaeia Colegii Londinensis reformata Books lately Printed for Richard Chiswell AN Historical Relation of the Island of CEYLON in the East-Indies Together with an Account of the detaining in Captivity the Author and divers other English-men now living there and of the Author 's miraculous Escape Illustrated with Fifteen Copper Figures and an exact Map of the Island By Capt. Robert Knox a Captive there near 20 years Folio Mr. Camfield's two Discourses of Episcopal Confirmation Octavo Bishop Wilkin's Fifteen Sermons never before Extant Mr. John Cave's two Sermons of the Duty and Benefit of Submission to the Will of God in Afflictions Quarto Dr. Crawford's serious Expostulation with the Whiggs in Scotland Quarto A Letter giving a Relation of the present state of the Difference between the French King and the Court of Rome to which is added The Pope's Brief to the Assembly of the Clergy and their Protestation Published by Dr. Burnet Sir James Turner's Pallas Armata or Military Essays of the ancient Grecian Roman and Modern Art of War Folio Mr. Tanner's Primerdia Or The Rise and Growth of the first Church of God described Octavo A Letter writ by the last Assembly General of the Clergy of France to the Protestants inviting them to return to their Communion together with the Methods proposed by them for their Conviction Translated into English and examined by Dr. Gilb. Burnet Octavo Dr. Cave's Dissertation concerning the Government of the ancient Church by Bishops Metropolitans and Patriarchs more particularly concerning the ancient Power and Jurisdiction of the Bishops of Rome and the Encroachments of that upon other Sees especially Constantinople Oct. Dr. John Lightfoot's Works in English in two Volumes Folio Mr. Selden's Janus Anglorum Englished with Notes To which is added his Ep●nomis concerning the ancient Government and Laws of this Kingdom never before Extant Also two other Treatises written by the same Author One of the Original of Ecclesiastical Jurisdiction of Testaments the other of the Disposition or Administration of Intestates Goods Now the first time published Folio A Letter from Mr. Richard Smith to Dr. Henry Hammond concerning the Sense of that Article in the Creed He descended into Hell Together with Dr. Hammond's Answer Guil. Ten. R●yne Med. Do●t Dissertat de Arthritide Mantyssa Schematica de Acupunctura Item Orationes tres de Chemiae ac Botaniae Antiquitate Dignitate De Physiognomia de Monstris Cum Figuris Authoris notis illustratae Octavo Disquisitiones Criticae de variis per diversa loca tempora Biblierum editionibus quibus accedunt Castigationes Theologi cujusdem Parisiensis ad Opusc Is Vossi● de Sybillinis Oraculis ejusdem Responsionem ad objectiones Nupera Criticae Quarto D. Spenceri Dissertationes de Ratione Rituum Judaicorum c. Fol. Sub praelo FINIS
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 ●orum natu maximus successit quod quam f●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