Principles of natural Sciences and of the Mathematicks that they have had in Undermining and Subverting the Laws of their Countrey Secondly for any Person named by the King in order to the being received as a Lord of the Session to be examined and approved by Three tho granted to be Actual and Sitting Lords of the College of Justice is expresly repugnant to an Act of the Session it self confirmed by the King's Letter An. 1674. It being provided by that Act That when any new Lords of Session shall be presented by His Majesty for Tryal of their Qualifications that they shall be present one day in the Outer-House where they are to inspect a Process that shall be carried to interloquitor and from thence make Report of all the Points therein contained to the whole Lords of Session and then for compleating their Tryal shall sit another day in the Inner-House and after the bringing the dispute of some point of Law to a Period shall give their Opinion about it in presence of all those Lords of which that House doth then consist Now as this Order and Rule is appointed to be observed constantly in all time coming about the Tryal of Lords nominate by the King and to be admitted and hath been accordingly observed and practised ever since till the present Vacancy so it is evident to all who have not renounced common sense that the Regulation Order and Method of Tryal prescribed by the foregoing Act is altogether impracticable where the Lords that are to be the Tryers and Examinants are to be three But then thirdly It is the most absurd thing imaginable to fancy That because Three of the Lords now nominated by the King were heretofore Lords of Session that therefore there hath not been a total Vacancy upon this late and happy Revolution I am sure that in the parallel Case Anno 1661. the Parliament in the Preface unto the Statute by which they admitted those to be Lords of the Session whom the King had then named they call it a new and intire nomination which they neither could nor would have done if they had not judged the Vacancy to be total and yet three of the Lords then nominated by Charles the Second viz. H C and L had been Lords of Session and had sate in the College of Justice before that nomination Fourthly If S N and M 's having been once Lords of Session be enough to hinder the late Vacation of the Session from being total then I challenge all the World to tell me what can either make a single or a total Vacancy yea if those Gentlemens Places were not voided after what had befallen them and the placing others for several years in their room I do much question whether their death can make their Places Vacant and whether they may not be as well said â—o remain Lords of the Session when they are rotting in their Graves as to have continued so in the State they were before HIs Majesties late nomination of them For as they all had their Commissions during pleasure so S 's and N 's were recalled and reassumed by King Charles of whom they had received them And I take it for an undoubted Maxim that he who hath Power and Authority to give and giveth not during life may by the same Authority take away at Pleasure what he hath given And as for M who had his Commission from King James if his Place be not rendered Vacant by his Masters having forefaulted the Crown nothing will or can render it so Fifthly If these Gentlemens having been heretofore Lords of the College of Justice hindreth the late Vacancy from being accounted total then His Majesties nominating them afresh was not only superfluous in it self but an injury unto them For it was the bringing them to hold that by a new Title which they had a claim unto and ought to have been accounted possessed of by an ancient Right Nor are they obliged for their Places to His Majesties Grace and Bounty but to his Justice Sixthly The very form of the presentation by which their nomination is signified shews that the Vacancy was taken to be total For it being the constant Custom in all single vacancies that the name of the Person succeeded unto as well as his who is to succeed be equally expressed in the Presentation and there being no such form but the contrary observed in these Gentlemens Case it is an Argument that His Majesty took the Vacancy to be total whatsoever his President Secretary and Advocate do Seventhly In all Cases where the Vacancy is not Universal the Presentation of those named by the King is directed to tho College of Justice or the Actual Lords of Session and so our Laws ordain and provide it should be But the Presentation of those now named to be received and advanced unto the Administration of Justice or at least of most of them was directed to the Earl of C who never was a Lord of the Session nor yet is Which is an Evidence that the holding the late Vacancy not to have been total was not an Opinion they were led into by truth but by necessity and that they have only espoused it to justifie what hath been illegally done It is yet further alledged by these cunning Men that have first endeavoured to mislead His Majesty and now seek by what pretences they may best defend that which they have done That though by the Ancient Laws the King was only trusted with the nomination of the Lords of the Session and the tryal and approbation of them was lodged elsewhere Yet that by Act 11. Parl. 1. Charles the Second the sole choice and appointment of the Lords of the College of Justice is given unto and setled upon the King. But surely they who make the exception must be Men either of very weak understandings or of very bad consciences and they must think they have to do with a very credulous sort of People whom they may bubble into the belief of any thing though never so false and unreasonable otherwise they would never talk at so ridiculous and impertinent a Rate For First there is nothing granted unto the Crown by that Act but what was its ancient and undoubted right instead of setling any new Prerogative upon the King the Parliament does only there declare what was anciently the Inherent Privilege of the Crown and an undoubted part of the Royal Prerogative of the Kings of that Kingdom Which I am sure that the trying approving and accepting or rejecting those nominated for Lords of Session never was that having been by so many preceding Acts of Parliament which we have mentioned setled and vested in other hands Secondly Whatsoever can be supposed to be granted unto the Crown by Act 11. Parl. 1. Charles the Second it doth as much affect a single Vacancy as a total the words being That it is an inherent Privilege of the Crown and an undoubted part of the Royal Prerogative of the
Therefore we complain not of His Majesty for the delaying the Satisfaction that his People waited for but we complain of those ill Men who told him That to part with the Lords of the Articles was to throw away the brightest Jewel of his Crown Whereas it appears from what hath been said that there is nothing desired whereby His Majesty's Legal Prerogative can be diminished and lessened but that all which is humbly craved is the redeeming his Parliament and People from an ignominious and burthensom Yoke and their being reliev'd from the Invasion and Usurpations made upon their Laws and Customs by the Craft and Violence of some of their Monarchs Nay the very contending for the continuing the Officers of State as Supernumerary in their Committees without the being Elected unto them by the Estates in Parliament in both an Aspersion upon the Wisdom of the Parliament as if they knew not how to pay the respect and deference due to those Officers till compell'd unto it and a Reflection upon their Loyalty as if no Persons could be tender or regardful of His Majesties Interest among the Committees of Parliament unless received into the King's immediate Service and brought under the Influence of Honours and Emoluments But whosoever suggests this unto the King must be one that is accustomed to draw other Mens Pictures by his own Original and who by acting in all things himself as a Mercenary strives to represent the rest of Mankind as equally Base and Villanous Nor can that Advice insinuated into His Majesty of having the Officers of State Supernumerary in the Committees of Parliament be supported by any reason but what borders upon Treason which is the King 's having and being obliged to pursue a separate interest from that of his People and as nothing would more Universally lose His Majesty the Hearts of his People than the being wrought into a belief of it so whatsoever is likely to tempt them into such a persuasion is at all times but especially at this to be industriously avoided by the King. The only thing remaining wherein His Majesty's Parliament of Scotland seems to be misunderstood by him is their Vote concerning the Nomination of the ordinary Lords of the Session and the Election of the President For that which they propose both as required by and agreeable unto their Laws and as necessary in order to the equal Administration of Justice is That the ordinary Lords being in a total Vacation nominated by the King they are to be Tryed and Admitted or Rejected by Parliament and that in a particular Vacation being likewise nominated by the King they are to be Tryed and Admitted or Rejected by the other Lords of Session and that in both cases the President be chosen by the Lords of Session themselves Now this being the great Matter wherein His Parliament is represented unto him as endeavouring to encroach upon and subvert His Royal Prerogative and it being the particular in reference unto which he hath been prevailed upon to exert an Authority to that height and degree that there seems no room left for any expedient but that either the Parliament must depart from their Vote or that His Majesty would be pleas'd to part with those who through abusing his Goodness have misled him into an exercise of Royal Power which the Laws cannot justifie It will be absolutely needful that the Reader in order to his being inabled to form a Right and impartial Judgment of this perplexed and intangled Affair should be first made acquainted with the Vote it self as well as afterwards be informed of what is to be said in the Vindication of it The Words therefore of the Vote are as followeth The King and Queen's Majesties considering That by the Laws of the Kingdom when the place of an Ordinary Lord of the Session doth Vacate it is to be supplied by the King's Nomination of a fit and qualified Person for the said Office and presenting him to the rest of the Lords to be tryed and admitted or rejected by them And that there is now a total Vacancy of the Lords of the Session by the happy change through the Blessing of God now brought about so that there can be no such Tryal by the Lords and that when such total Vacancies have fallen out the Lords were either nominated by King and Parliament jointly or if they were nominated by the King the nomination was approved and the Lords so nominated were admitted by the Parliament Therefore Their Majesties do Declare That they will nominate fit and qualified Persons to the said Offices and present them to the Parliament to be tried and admitted or rejected by them Like as Their Majesties with the advice and consent of the Estates in Parliament Statute and Ordain that in all time hereafter when any such total Vacancy shall occur the nomination of the Lords of the Session shall be by the King or Queen for the time being and in case of their minority by their Regent they nominating fit and qualifiad Persons to the said Offices and presenting them to the Parliament to be tryed and admitted or rejected in manner aforesaid Like as Their Majesties with the advice and consent aforesaid ratify and approve the 93 d Act of the Sixth Parliament of King James the Sixth anent the admission of the Ordinary Lords of Session and Reformation of certain Abuses therein And the 132 d Act of the Twelfth Parliament of King James the Sixth anent the Jurisdiction Presentation Qualities and Age of the Lords of the Session in the whole Heads Clauses and Articles thereof and particularly the Clause contained in the said two Acts Declaring that in all times thereafter when any place should be vacant in the Session that His Majesty should nominate and present thereunto a Man fearing God of good Literature Practick Judgment and Vnderstanding in the Laws of good Fame having sâ—fficient Living of his own worth Twenty Chalders of Victual of yearly Rent and who can make good expedition and dispatch in matters touching the Lieges of the Realm and likewise that Clause contained in the 93 d Act of the Sixth Parliament of King James the Sixth Declaring that the President of the College of Justice shall be elected by the whole Senate thereof being a Man of the Conditions and Qualities above-written for chusing and electing of whom the King's Majesty and Estates dispence with that first part of the Institution of the College of Justice anent the Election of the President Declaring that in case of the absence of the Chancellor and President for the time it shall be lawful for the Lords to chuse and elect any one of their own number whom they think qualified and worthiest who shall be called Vice-President for using of the said Office ay and while the Return of the said Chancellor and President Like as Their Majesties with advice and consent aforesaid Statute and Ordain that the whole Qualifications abovementioned be duly observed in the admission of
Majesty's Right and Authority in his having elected them And thus the King's Authority is doubly exposed by those who call themselves the Ordinary Lords of Session in excusing themselves from a Tryal which was never designed they should do seeing S M and N were both appointed and said to be in a capacity to examine them And then by him who is stiled President through its being made a Stale for his obtaining the Name and renounced for the Choice of the Bench as that which alone must give him a Legal Title Whereas if the King's Choice of him be not according to Law and sufficient to justifie his entrance upon his Office Why did he abuse his Majesty in telling him that it was And if it be the King 's Right and a part of his Prerogative to elect the President Why hath he sacrificed his Majesty's Honour and given away his Legal Power in the submitting to hold the Office by any other Tenure Howsoever we are come to be Gainers by this Carriage of S how much soever the King is a looser by it For his surendring from the King the Right of choosing a President is a Vindication of the Justice of the Parliaments Vote and Demand Besides here is an end put to that Pretence which they have been endeavouring to sham upon the World viz. That S was only restored to the Presidency of which he was violently dispossessed and that he was not chosen unto it as unto a Place whereunto he had not a Right So that either the Choice made at Edinburgh overthrows the Plea used at London about his beeing meerly restored or else that whereby they do here seek to justifie his Majesty's Proceedings in reference to S 's being President condemns what the Proteus hath there betaken himself unto of being elected by those called the Lords of the Colledge of Justice To which I shall only add That as he was never legally President before so he is as little President now His assuming the Office then when he was not chosen by the Bench as the Law ordains made him an Usurper and his entring upon the Place again upon the Choice of those that are not Judges by reason of their not being tryed as the Statutes appoint leaves him under the same Crime and Imputation So that having now dispatched all that is either Historical or Argumentative about the several Heads in difference between the Parliament of Scotland and a few unadvised or ill designing Men about His Majesty I shall shut up this Discourse with some Political Reflections upon the whole Whereof the first is That it is not the having barely a good King that renders a People happy but much of it must arise from his having good Ministers about him For no Nation had ever a better Prince than we at present have and yet we find there is cause of complaint by reason of the Ill Counsellors that possess his ear We do not think that he entertains them out of choice yet that will not give his People ease though it may for a while suppress their Murmurings His Majesties being so little acquainted with Men at his first coming over might lay him open to be misled in the choice of His Officers But to continue to use them after he hath had sufficient means as well as opportunity of knowing their Characters will leave an imputation not only upon his Goodness but upon his Wisdom For as the People have no other way of judging of the goodness of their Prince but by finding his Officers and chief Ministers to be such so if these be not they may possibly acknowledg William to be a good Man but they will never beleive that the King is so And Machiavel's observation That a wise King will always find wise Ministers is no more than what every Man is perswaded of upon the first Principles of Reason and of common sense I do acknowledg that ill Men have ways of thrusting themselves upon Princes which they that are vertuous think too unworthy and below them to use For whereas the later are always modest and seek no recommendations but from their own Merit the former are importunate can both flatter bribe Favorites to speak well of them It was a severe Prediction as well as Observation which the late Prince of Conde made upon the News of King Charles the Second's Death and of his Brothers succeeding him viz. That he was like to be well served through having none about him but his own Fools and his Predecessors Knaves How many Wise Men then imagine his Present Majesty is like to be served who though he hath not the Fools of the last Reign about him yet he hath both the Knaves of that and of the former Nor is it of any great advantage at least to Scotland to be delivered from the Fools of the last Government seeing there are weak Men enough besides those and some of them trusted with the chief conduct of the Scotch Affairs For how else could it be that of all the Publick Orders remitted thither there hath not been one which either the meeting of Estates the Parliament or the Privy Council have not voted to be illegal In reference unto which as we do acquit the King from all blame seeing he cannot be supposed to be acquainted yet either with the Scotch Laws or with their Forms and does only sign what others pepare for and offer unto him so we are not willing to ascribe it so much to the Treachery and Malice of his Minister as to his simplicity and weakness Who though he may possibly be an honest Man and indifferently versed in common Affairs yet he hath no great knowledge of the Laws and is but a Puny in the Politicks by reason of which he comes to rely upon other Mens advice who instead of instructing and assisting him to serve the King make him a Tool for promoting ends and designs directly opposite to His Majesties Service and Interest But then I should observe Secondly That one illegal stop doth lead to many Nor is one Arbitrary thing to be supported but by another It hath been hitherto taken for an undoubted Truth That though the Estates Assembled in Parliament have not alone a Legislative Power so as to enact Laws without the King yet that they have the Supream and Uncontrovertible Power of declaring the Meaning and Sense of those Laws that are already Enacted and Established So that when the Parliament hath once declared the Sense and Meaning of any Law all Courts of Judicature as well as particular Persons are bound to acquiesce in their explanation of that Law. And to divest the Parliament of this is to strip them of one of their chiefest Priviledges and to detract from and diminish their Authority which is Treason by the Law of Scotland For it is expresly declared by Act 130. Parl. 8. James 6. That whosoever in time coming shall take upon him to impung the Dignity and Authority of the
three Estates or shall seek or procure the innovation or diminution of the Power and Authority of the Three Estates or of any of them shall be guilty of Treason Yet when the Present Parliament had declared the sense of the ancient Laws to be that the King in a total Vacancy could not appoint Judges without their being admitted by Parliament the advance that had been made against our Laws in His Majesties assuming a Right of Electing and Authorizing them hath been seconded with an impugning despising and subverting that Authority of Parliament which we have been speaking of Nor hath the Invasion upon Parliamentary Rights and Priviledges terminated here but there hath been a further assault made upon them both by the Councils assuming the Cognizance of that which was lodged before the Parliament and by their Actings determining in it contrary to the Vote and Declaration of the Estates who are the Supream Judicature and in conjunction with the King the one Legislative body of the Kingdom For it is an unquestioned Maxim That when a matter is once brought and tabled before the Parliament so as they have laid their hands upon it it is not afterwards to fall under the Cognizance or Determination of the Council or of any inferior Judicature unless remitted expresly unto them by the Parliament it self And therefore the Parliament having given a stop to the opening of the Signet and to the sitting of the Session till the King 's further pleasure was made known to them and until that matter should be brought to such an Accommodation as was consistent with the preservation of the Laws of the Kingdom it was a high Invasion upon the Authority and Jurisdiction of the Parliament for the Council to meddle in it But this they were aw'd unto by those who had given the King advice to chuse the Lords of Session and President and who knew no way to justifie one illegality but by another Yea our Ministers in order to make the first Act of Invasion upon the Laws which they had thrust the King upon successful and to prevent their receiving a baffle upon their first setting out on the road of Arbitrariness sent menacing Letters to those that were nominated Lords of Session threatning them with ruin if they did not sit at the time that they were appointed and had it not been for those Letters several had forborn to act as knowing they could not lawfully do it And as the sending those Letters sheweth that the Ministers here were convinced that they had counselled the King to an illegal Thing but which was to be supported in the same manner So these Gentlemen of the long Robe who contrary to their own Judgment were influenced to sit and to transgress known Laws have declared how Unworthy and Unqualified they are to be received and approved by Parliament as Lords of the College of Justice And to Crown all these Miscarriages in Government with one more his Majesties Ministers being fully sensible that they whom they call Lords of Session were neither legally appointed nor could legally meet and sit they therefore resolved forcibly to support what they had unjustly begun and done and accordingly against the day and time those Gentlemen were to sit they ordered all the Forces which were drawn in unusual Numbers about Edenburgh to be in a readiness upon beat of Drum that what they had Arbitrarily begun might be Violently maintained Which as it was an applying and using of his Majesties Troops upon a much differing Design than that for which the Parliament had consented to their being raised and paid So it had been much more for his Majesties Honour and the Benefit of his Kingdom that they had been all imploy'd against Cannon who is still making Inroads and committing Robberies upon several of his Majesties Loyal Subjects and who by the ill Conduct and treasonable Counsel of some of his Majesties Ministers seems to have been connived at and forborn since the last defeat that was given him for no other reason but that there may be a stand for other Rebels in due time to go unto But that which I would observe Thirdly and in the last place is That his Majesty for his own Honour and Safety and for the Peace and Welfare of his People ought to make some Change and Alteration of his Ministers For it is evident That they who are imployed as Instruments of Oppression Rapine and Murder under an ill Government can never be of use unto nor for the reputation of a good It is evident That he is betrayed nor is it so difficult to know by whom and how For Things speak when Men either dare not or will not And Advices are not to be judg'd of by the Quality and Profession of the Persons that give them but by the tendency of the Counsels that are given For example They cannot design well unto his Majesty who tell him That he must not make haste to conquer his Enemies until he have first screw'd up his Prerogative and that he is to improve the dread his People are under of King James for wresting from them what he can before he attack him Again they cannot intend his Majesties Interest who would have him overlook the Crimes and Treasons that are daily committed against him seeing the conniving at Rebels can only be to incourage Rebellion Again they who advise him to be King only of a Party and not of the whole People have a mind he should be King of none And to counsel him either not to use those in his Service who are both willing to serve him and would do it with the utmost Fidedelity or to use those whose Carriage speaks them to be in the Interest of his Enemies it is to have him betrayed instead of being served Nor can they be for his Continuing upon the Throne who would have hindred his Ascent unto it And whosoever embarrasseth him with his Parliaments and by it retards Succours for the Support of the War can mean no less than that his Majesty and his Kingdom should become a Prey to King James and to his Brother of France And they who counsel him to go on where his Predecessor left off have a mind to see a new Abdication though they were not for the Old. But what might be said upon this Head requireth rather an intire Discourse than to be confined unto a short Remark And therefore all I shall add is That as his Majesty must be infallibly lost without a speedy Change as to some of his Ministers so he needs not to fear them if they be but once thrust out of his Councils seeing all the hurt that they are able to do him is through their being there And if he will but own himself and assert his own Interest he will have enough of those to stand by him who have no Interest but what is his FINIS AN ADDRESS Sign'd by the greatest Part of the MEMBERS of the Parliament OF SCOTLAND AND Deliver'd
to His MAJESTY at Hampton-Court the 15 th day of October 1689. TO THE KING'S Most Excellent Majesty The Humble Representation of the Lords and Commissioners of Shires and Burroughs of the Kingdom of SCOTLAND Under subscribers and Members of this Current Parliament now Adjourned till the Eight of October next NOthing save the great and general Surprize of this long distressed and at present unsettled Kingdom upon the late Adjournment of Your most Loyal Parliament for so long a time and in so critical a season with the deep Concern of Your Royal Interest therein could possibly have induced us to this so necessary a Petition But the visible Consternation and Discouragement of thousands of Your good Subjects delayed in the Relief and Comfort which at this time they assuredly expected with the Advantages that We apprehend Your Majesties Enemies both within and without the Kingdom may think to reap by such an Interruption being our only Motives We cannot We dare not be silent And therefore to prevent these evil Consequences We in the first place most solemnly Protest and Declare in the Presence of God and Men Our constant and inviolable Fidelity and Adherence to Your Majesties Royal Title Right and Interest so frankly and chearfully recognosced by Us in this Current Parliament wishing and praying for nothing more under the Sun than Your long and prosperous Reign as that wherein the Security of all our Lives and Liberties and also of our Holy Religion more dear to Us than both is infallibly included It was the Perswasion we had of the Justice as well as the Necessity of Your Majesty's Heroic Undertaking for the Delivery of these Kingdoms with the Conviction of the Divine Confirmation that appeared in its Glorious Success that moved most if not all of Us to endeavour and concur most heartily in the late Meeting of Estates for the Advancement and Establishment of Your Majesty upon the Throne when some discovered their Disaffection and were too open Retarders and Obstructers of that good Design And it is from the same true Affection and Zeal that we do now most heartily make the above-mentioned Protestation to obviate all the Misconstructions Your Enemies may make in this Juncture Nor are we less assured of Your Majesties most sincere and gracious Intentions to perform for us to the utmost all that the Estates of the Kingdom have either demanded or represented as necessary and expedient for securing the Protestant Religion restoring their Laws and Liberties and redressing of their Grievances according to Your Majesties Declaration for this Kingdom Neither can it be imagined that so wise and just a King as Your Majesty will ever be perswaded that so Loyal a Parliament as this can be induced either to wish or design any Prejudice to or Diminution of Your true Interest and Prerogative but such as have slavishly served and flattered Arbitrary Power and Tyranny will be always studying for their own sinister Ends to state a separate Interest betwixt King and People a Practice which we are confident Your Majesty abhors But that we may clear our selves upon this present occasion to Your Majesty's full satisfaction and refuting of all Misrepresentations we can incur on any hand we shall briefly rehearse to Your Majesty the Votes pass'd in this present Parliament to which the Royal assent is not given with such short Reflections as we hope may tend to the better Vindication of all concern'd The First Act upon which the Vote of Parliament has pass'd is That declaring the Priviledge of the Estates of Parliament to Nominate and Appoint Committees as they shall think fit and excluding therefrom the Officers of State unless they be chosen And omitting what the Parliament hath already represented to Your Majesty as reasons of their Vote it is humbly conceived that this Act is exactly framed to the extent of that Grievance which together with the rest is desired in the Instrument of Government to be redressed unto us in Parliament The Second was an Act Abrogating the Act of Parliament 1669 asserting the Kings Supremacy over all Persons and in all Causes Ecclesiastical and this Act is so exactly conform to the Second Article of the abovementioned Grievances and the foresaid Act of Supremacy in it self is so dangerous to the Protestant Religion as well as inconsistent with the Establishment of any Church-Government that we doubt not Your Majesty will ever approve all that voted to it The Third is an Act anent Persons not to employed in publick Trusts and all the Ruins and Distresses of this Kingdom have so certainly flowed from the Persons therein noted especially such as by their contriving of and concurring in the Dispensing Power have thereby eminently indangered our Religion and overturned all the Fences of our Liberties and Properties which we have good Ground to believe the Parliament would have extended but to few Persons And your Majesty in Your Declaration hath so justly charged the same upon evil and wicked Counsellors the only Persons pointed at in this Act that we are perswaded that You will find it absolutely necessary for attaining all the Ends of Your Majesty's glorious Undertaking for our Relief The Fourth is an Act concerning the Nomination of the ordinary Lords of Session and the Election of the President To wit that in a total Vacation they be tryed and admitted or rejected by Parliament and in a particular Vacation they be tryed and admitted or rejected by the other Lords And that the President be chosen by the Lords themselves conform to our old Practique and express Statute And this Act is so agreeable to Practique Laws and Acts of Parliament and so necessair for the true and equal Administration of Justice the great security of all Kingdoms that Your Majesty will unquestionably approve it The Fifth and last is an Act Ordaining the Presbyterian Ministers yet alive who were thrust out since the First of January 1661 for not Conforming to Prelacy and not complying with the Courses of the Time to be restored And this Act is in it self so just and so consequential from the Claim of Right and agreeable to Your Majesties Declaration that less in common Equity could not be done And here Your Majesty may be pleased to consider That tho' Prelacy be now by Law abolished yet these few Ministers not exceeding Sixty tho' restored as they are not for want of the Royal Assent to the foresaid Act would be all the Presbyterian Ministers legally established and provided for in Scotland It is not unknown to Your Majesty what have been the sad Confusions and Disorders of this distressed Country under Prelacy and for want of its ancient Presbyterian Government and now the whole West and many other Parts of Scotland are at present desolate and destitute having only Ministers called by the People upon the late Liberty without any Benefice or Living or convenient Place to Preach in It is also certain that there are many Hundreds of forefaulted and sined Persons who are yet waiting to be restored and refounded according to the Claim of Right and Your Majesties Gracious Instructions thereanent It is true the last Thing proposed by Your Majesties Commissioner in Parliament was a Supply of Money for Maintenance of the Forces so necessary for our present Defence and We should have proven our selves ungrateful to Your Majesty and false to our own Interest and Security if We had absolutely refused it But there being a sufficient and certain Fund to maintain all the Forces and support all other incident Charges of the Government for some Months all that we demanded was That some things visibly necessair for Satisfaction of the Country and the better enabling and disposing them to pay the said Supply might be first expeded We are confident that the Vote of Parliament which was only for a short Delay will not give Your Majesty the least ground of Offence And now having presumed to lay these Things before Your Majesty with all humble Submission purely out of Duty for preventing the evil Constructions of Your Majesties Enemies and for our own just Vindication We most humbly beseech Your Sacred Majesty Graciously to Consider what is here represented and in Prosecution of Your Majesties Acceptance of the Claim of Right and Your Declaration emitted for this Kingdom to take such Courses as You in Your Royal Wisdom shall think fit for Passing the foresaid Acts of Parliament and Redressing all our other Grievances And We Your Majesties most humble Petitioners and faithful Subjects shall as in Duty bound every Pray for Your long and prosperous Reign over Us. FINIS
Kings of Scotland to have the sole choice of the Lords of Session Which can import no more save that they have the sole nomination of them but not the tryal of their qualifications seeing all along since both in that Reign and in the next that ensued the examination and acceptance or refusal of those that were recommended by the two last Kings upon emergent Vacancies to be Lords of the College of Justice were always certified to the Actual and Sitting Lords of Session to be by them tryed and admitted or rejected as they should see cause Thirdly What the Gentlemen who make this Exception would give the Crown with one hand they take away with the other For while they would Preclude the Parliament from taking notice of the qualifications of those who upon a total vacancy are nominated by the King under a pretence that the sole choice of the Lords of Session is by the forementioned Statute Declared to be an Inherent Priviledge of the Crown They at the same time seek to skreen and vindicate themselves from the Violation of the other Laws that prescribe the method of trying and approving those who are nominated now by His Majesty for Lords of the College of Justice by alledging that S N and M are both in a capacity through having been formerly Judges and are commissionated to try and approve them Fourthly All that some apprehend to be contained in the 11 Act Parl. 1. Charles the Second is wholly Narratory and no part of it Statutory at least so far as our concernment lies in it and as we are therein referred unto other Acts for the knowledge of what is Statuted and Ordained So upon our application unto and consulting of Act 2. Parl. 1. Charles 2. all we find there enacted is That it is an inherent Privilege of the Crown and an undoubted part of the Royal Prerogative of the King to have the sole Choice and Appointment of the Officers of State and Privy Counsellors but that he hath only the Nomination of the Lords of Session as in former times preceding the year 1637. and what that was we have already shewed and do find it to be so far from interfering with or derogating from what the Parliament doth now insist upon and demand that it both warrants and justifieth it I may fifthly subjoyn That upon supposition that the Act 11. Par. 1 Charles the Second were Statutory which it no ways is yet there is a later Act pass'd in the said first Parliament of King Charles the Second though unprinted yet upon Record in our Registers of Parliament and which was purposely made for the Regulation of the College of Justice and about the admission of the Lords of Session as the very title and rubrick bears wherein all that we find Enacted is That the King instead of having the sole choice of the Lords of Session shall only have the Nomination of them as the Crown stood possessed of it in times before the year 1637. and that their admission in all times to come shall be according to the Laws and Acts which were in being before the year which we have already mentioned So that fancy what they will beyond this granted unto the King by Act 11. yet it is all withdrawn and reassumed from him by this later Act of April the 5 th All that now remains to be further added on this Subject so far as concerns the controversial part is to inquire whether the King hath at all times the sole Power and Right of chusing and appointing the President of the Session And we presume with all humility to say that by the Laws of the Kingdom and according to ancient Practice and Custom he hath it not nor can he legally lay claim unto it seeing by Act 93. Parl. 6. James 6. Anno 1579. It is Statuted and Ordained That the President of the College of Justice shall be always chosen by the whole Senators of the said College Which Statute is confirmed by Act 134. Parl. 12. James 6. wherein it is expresly declared That the King with advice of the Estates doth ratifie and approve all the Acts made either by his Majesties Predecessors or by his Highness himself before upon the Institution of the College of Justice and the Reformation of the abuses thereof Nor can it be denyed but the appointing that the President should be chosen by the whole Senators was designed as the Reformation of an Abuse in the College of Justice which either had not been provided against and obviated in the first Institution of the Session or which had crept in afterwards And as this was the Law about the Election of the President so the Practice was always conformable thereunto until that my Lord S came to be constituted President by King Charles the Second and was illegally obtruded upon the Lords of Session without the being either chosen or approved by them For from the time of the making the Act until then there was not one that had ever sate President but who had been chosen by the Lords of the College of Justice except Sir John G who upon being nominated and recommended by the King in the Case of the total Vacancy Anno 1661. was approved and confirmed by the Estates in Parliament But for the Lord P the Lord U the Lord C Sir Robert S and the Lord D who were all that had been Presidents from 1579. until 1661. they were every one of them chosen and admitted by the Lords of Session Nor is it unworthy of Remark that the Lords of Session upon every Election they made of a President declared that they did it in conformity unto and in pursuance of the Act of Parliament And as King Charles's departing from the Law in this particular was one of the first steps towards Arbitrary Power so it was both in order to farther Incroachments upon our Laws and Rights and prepared the way for most of the Tyranny that he exercised afterwards And as S assuming the Office of President upon the illegal choice of the aforementioned King was both an Affronting and Betraying of the known Laws of the Kingdom so his whole Behaviour in that Station was of one piece and complexion with his entring upon it being a continued Series of Oppression and Treachery to his Country For besides that all his Verdicts between Subject and Subject were more ambiguous than the Delphick Oracles and the occasion of the Commencement of innumerable Suits in place of the determining of any he was the principal Minister of all L 's Arbitrariness and of King Charles's Usurpations Nor was there a Rapine or Murder committed in the Kingdom under the countenance of Royal Authority but what he was either the Author of the Assister in or ready to justifie And from his having been a Military Commander for asserting and vindicating the Laws Rights and Liberties of the Kingdom against the little pretended Invasions of Charles I. he came to overthrow and trample upon them all
in the quality of a Civil Officer under Charles II. Nor is there a Man in the whole Kingdom of Scotland who hath been more accessary to the Robberies and Spoils and who is more stained and died with the Bloody Measures of the Times than this Lord S who his Majesty hath been impos'd upon to constitute again President of the College of Justice And as an aggravation of his Crimes he hath perpetrated them under the vail of Religion and by forms of Law which is the bringing the Holy and Righteous God to be an Authorizer and Approver of his Villanies and the making the Shield of our Protection to be the Sword of our Ruin. But there being some hopes that the World will be speedily furnished with the History of his Life I shall say no more of him but shall leave him unto the expectation and dread of what the famous Mr. Robert D foretold would befal them him in his Person and Family and of which having tasted the first Fruits in so many astonishing Instances he may the more assuredly reckon upon the full Harvest of it And the Method he hath lately begun to steeer is the most likely way imaginable to hasten upon him and his what that Holy and I might say Prophetical Man denounced against them For whereas the Nation would have been willing upon his meer withdrawing from Business and not provoking their Justice by crouding into the Place in which he had so heinously offended to have left him to stand or fall at the great Tribunal and to have iâ—â—â—mpnify'd him as to Life Honour and Fortune here upon the consideration of his having co-operated in the late Revolution and of his having attended upon his Majesty in his coming over to rescue and deliver the Kingdoms from Popery and Slavery He seems resolved to hasten his own Fate and through putting himself by new Crimes out of the Capacity of Mercy to force the Estates of the Kingdom to a punishing of him both for them and for the old But to return to what we are upon about the Right of Electing a President of the Colledge of Justice It is excepted to what hath been said in proof that the Power is by Law in the Lords of Session to choose their own President that Sir John G was upon King Charles the Second's nomination approved and confirmed in Parliament Anno 1661. which was a divesting of the Lords of Session of it and a vertual rescinding all the Laws by which that Power had been settled upon them To which I have several things to reply that will discover both the Impertinency of the Objection and the Treachery of those who have insinuated it to the King. First It is acknowledged in the very Exception that the sole Choice of Sir John G as President was not in King Charles seeing the Parliament had the Approving Allowing and Admitting of him which makes that case to differ very much from the Present In which the choosing of the President is not only taken away from the Lords of the Session but the approving and admitting of him is denyed to the Estates of the Nation in Parliament assembled Secondly What was done in Ordaining Sir John G President was not a repealing of the Laws by which the Choosing of the President is vested in the Lords of the Session but was at most only a dispensing with them in that extraordinary case of a total Vacancy and in reference unto a Person of a most unspotted Integrity and unpaâ—allelled Knowledge in the Laws Nor will any Man pretending to acquaintance with Parliamentary Customs and Proceedings reckon that a Law is therefore rescinded and abrogated because the Parliament hath seen reason to supersede it in a single Instance and in a particular case Laws once Enacted and established are never accounted to be abrogated unless by particular future Laws formally repealing them or by posterior general Statutes inconsistent with and destructive of them Nor do Two or Three particular Instances varying from and repugnant unto them bring them so much as into disuse and desuetude but even in order to that there must be immemorial Prescription against them and that without being disallowed or complained of in Parliament Thirdly What the Parliament did Anno 1661. in the Case of Sir John G it was not properly done by them in their Legislative capacity but as a part of the Supream Authority of the Kingdom concurring with the King in an Act and Deed of the Supremum imperium and illimited Power of the Government which the appointing of Judges for the equal administration of Justice came to be at that season and conjuncture by reason of the total Vacancy and the impossibility that thereupon ensued of Choosing and Ordaining the Lords of Session whereof the President is always one in the ordinary Legal and Established Methods What the King and the Estates of Parliament did in the case of that Vacancy of the Colledge of Justice was much of the Nature of and parallel unto what the Estates alone have done upon the late Vacancy of the Throne wherein they acted not in the way of a Legislative Body but in the Vertue of that illimited Power which resided in them as Representatives of the whole People and who knew no other Measures whereby to act but what lay most in a tendency to the Publick Safety Fourthly The King 's having a Right to choose the President of the Session is disclaimed and ridicul'd by those very Persons that have advised him to challenge it For my Lord S in whose Favour and in pursuance of whose Advice his Majesty hath claimed a Right and exerted an Authority of appointing a President hath by the Method of his entring upon that Office and Station renounced the Legality of his Majesty's acting in that particular and declared that he holds not his Place by vertue of the King's Choice and Designation For after he had prevailed upon the King to elect and send him down President of the Session the first thing he did at their Meeting and that in order to the throwiag the blame upon his Majesty of all that had been transacted before was to wheedle that over-aw'd and pack'd Bench to choose him for President of the Colledge of Justice which as it shews the Disloyalty and Treachery of the Man so it testifieth and publisheth his Folly. For how could they be in a capacity as Lords of Session to choose him for a President that were not antecedently legally tryed and approved themselves And who knowing their own unqualifiedness both as to Literature and good Fame made his Majesty's having nominated them an excuse from their undergoing a Tryal For though it be both required by the Laws and was accordingly given out all along here that they should be tryed yet Five of them being conscious unto themselves how little they answered the Qualifications prescribed in the Statutes refused to submit to be examin'd under a Pretence that they would not thereby weaken his