VI. and the II III IV. Acts Parl. 1. CHARLES II. And by our Oath of Allegiance we are bound to bear faithful and true Allegiance to his Majesty his Heirs and Lawful Successors which word LAWFUL is insert to cut off the pretences of such as should not succeed by Law and the insolent arbitrariness of such as being but Subjects themselves think they may chuse their King viz. Act 1. Parl. 21. JAMES the VI. That this right of Succession according to the Proximity of Blood is founded on the Law of God is clear by Num. Chap. 27. v. 9. and 10. If a man hath no Son or Daughter his Inheritance shall descend upon his Brother by Num. 36. Where God himself decides in favour of the Daughters of Zelâ—phehad telling us it was just thing they should have the inheritance of their Father And ordains that if there were no Daughters the Estate should go to the Brothers St. Paul likewise concludes Rom. 8. If Sons then Heirs looking upon that as a necessary Consequence which if it do not necessarily hold or can be any way disappointed all his divine reasoning in that Chapter falls to nothing And thus Ahaziah 2 Chron. 22. v. 1. was made King though the youngest in his Fathers stead because says the Text The Arabians had slain all the eldest which clearly shews That by the Law of God he could not have succeeded if the eldest had been alive We hear likewise in Scripture God oft telling By me Kings reign And when he gives a Kingdom to any as to Abraham David c. he gives it to them and their Posterity That this Right of Succession flows from the Law of Nature is clear because that is accounted to flow from the Law of Nature which every man finds grafted in his own heart and which is obey'd without any other Law and for which men neither seek nor can give another distinct Reason all which holds in this Case for who doubts when he hears of an Hereditary Monarchy but that the Next in Blood must succeed and for which we need no positive Law nor does any man enquire for a further Reason being satisfied therein by the Principles of his own heart And from this ground it is that though a remoter Kinsman did possess as Heir he could by no length of time prescribe a valid Right since no man as Lawyers conclude can prescribe a Right against the Law of Nature and that this Principle is founded thereupon is confest l. cum ratio naturalis ff de bonis damnat cum ratio naturalis quasi lex quaedam tacita liberis parentum haereditatem adjecerit veluti ad debitam successionem eos vocando propter quod suorum haeredum nomen eis indultum est adeo ut ne à parentibus quidem ab ea successione amoveri possint Et § emancipati Institut de haered quae ab intest Praetâ—r naturalem aequitatem sequutus iis etiam bonorum possessionem contra 12 tabularum leges contra jus civile permittit Which Text shews likewise That this Right of Nature was stronger than the Laws of the Twelve Tables though these were the most ancient and chief Statutes of Rome which Principle is very clear likewise from the Parable Matth. 21. where the Husband-men who can be presum'd to understand nothing but the Law of Nature are brought in saying This is the Heir let us kill him and seize on his inheritance Nor does this hold only in the Succession of Children or the Direct Line but in the collateral Succession of Brothers and others L. hac parte ff unde cognati Hac parte proconsul Naturali aequitate motus omnibus cognatis permittit bonorum possessionem quos sanguinis ratio Vocat ad haereditatem Vid. l. 1. ff de grad l. 1. § hoc autem ff de bonor possess And these who are now Brothers to the present King have been Sons to the former and therefore whatever has been said for Sons is also verified in Brothers As for instance though his Royal Highness be onely Brother to King CHARLES II. yet He is Son to King CHARLES I. and therefore as St. Paul says If a Son then an Heir except he be secluded by the Existence and Succession of an elder Brother That this gradual Succession is founded on the Law of Nations is as clear by the Laws of the Twelve Tables and the Praetorian Law of Rome And if we consider the Monarchy either old or new we will find That where ever the Monarchy was not Elective the degrees of Succession were there exactly observed And Bodinus de Republ. lib. 6. cap. 5. asserts that Ordo non tantum naturae divinae sed etiam omnium ubique gentium hoc postulat From all which Pope Innocent in c. grand de supplend neglig praelati concludes In regnis haereditariis caveri non potest ne filius aut frater succedat And since it is expresly determined That the Right of Blood can be taken away by no positive Law or Statute L. Jura Sanguinis ff de Reg. jur L. 4. ff de suis legitim And that the power of making a Testament can be taken away by no Law L. ita legatum ff de conditionibus I cannot see how the Right of Succession can be taken away by a Statute for that is the same with the Right of Blood and is more strongly founded upon the Law of Nature than the power of making Testaments Since then this Right is founded upon the Law of God of Nature and of Nations it does clearly follow That no Parliament can alter the same by their municipal Statutes as our Act of Parliament has justly observed For clearing whereof it is fit to consider That in all Powers and Jurisdictions which are subordinate to one another the Inferior should obey but not alter the Power to which it is subordinate and what it does contrary thereto is null and void And thus If the Judges of England should publish Edicts contrary to Acts of Parliament or if a Justice of Peace should reverse a Decree of the Judges of Westminster these their endeavors would be void and ineffectual But so it is that by the same Principle but in an infinitely more transcendent way all Kings and Parliaments are subordinate to the Laws of God the Laws of Nature and the Laws of Nations and therefore no Act of Parliament can be binding to overturn what these have established This as to the Law of God is clear not only from the general Dictates of Religion but 28 Hen. 8. cap. 7. the Parliament uses these words For no man can dispense with God's Laws which we also affirm and think And as to the Laws of Nature they must be acknowledged to be immutable from the principles of Reason And the Law it self confesses that Naturalia quaedam jura quae apud omnes gentes peraeque observantur divina quadam providentia constituta semper firma atque immutabilia permanent § sed naturalia
their consent But that can never amount to a power of transferring the Monarchy from one branch to another which would require that the Transferrers or Bestowers had the Supreme Power originally in themselves Nemo enim plus juris in alium transferre potest quam ipse in se habet And if the States of Parliament had this power originally in themselves to bestow why might they not reserve it to themselves and so perpetuate the Government in their own hands And this mov'd Judge Jenkins in his Treatise concerning the Liberty and Freedom of the Subject pag. 25. to say that no King can be named or in any time made in this Kingdom by the People A Parliament never made a King for there were Kings before there were Parliaments and Parliaments are summoned by the King's Writs Fourthly A King cannot in Law alienate his Crown as is undeniable in the Opinion of all Lawyers and if he do that deed is void and null nor could he in Law consent to an Act of Parliament declaring that he should be the last King And if such Consents and Acts had been sufficient to bind Successors many silly Kings in several parts of Europe had long since been prevailed upon to alter their Monarchy from Hereditary to Elective or to turn it into a Commonwealth and therefore by the same Reason they cannot consent to exclude the true Successor For if they may exclude one they may exclude all Fifthly In all Societies and Governments but especially where there is any association of Powers as in our Parliaments there are certain Fundamentals which like the noble parts in the Body are absolutely necessary for its preservation for without these there would be no Ballance or Certainty And thus with us If the King and each of the Estates of Parliament had not distinct and known limits set by the gracious Concessions of our Monarchs each of them would be ready to invade one another's Priviledges And thus I conceive that if the Parliament should consent to alienate half of the Kingdom or to subject the whole to a Stranger as in King John's Case in England and the Baliols in Scotland it has been found by the respective Parliaments of both Kingdoms that that Statute would not oblige the Successor Or if the House of Commons in England or the Boroughs of Scotland should consent to any Act excluding their Estate and Representatives from the Parliament doubtless that Statute excluding them would not prejudge their Successors because that Act were contrary to one of the Fundamental Laws of the Nation And the late Acts of Parliaments excluding Bishops were reprobated by the ensuing Parliaments as such and therefore by the same Rule any Statute made excluding the Legal Successor would be null and void as contrary to one of the great Fundamental Rights of the Nation And what can be call'd more a Fundamental Right than the Succession of our Monarchy Since our Monarchy in this Isle has ever been acknowledg'd to be Hereditary And that this Acknowledgment is the great Basis whereupon most of all the Positions of our Law run and are established such as That the King never dies since the very moment in which the last King dies the next Successor in Blood is Legally King and that without any express Recognizance from the People and all that oppose Him are Rebels His Commissions are valid He may call Parliaments dispose of the Lands belonging to the Crown all men are liable to do him Homage and hold their Rights of Him and His Heirs And generally this Principle runs through all the veins of our Law it is that which gives life and authority to our Statutes but receives none from them which are the undeniable Marks and Characters of a Fundamental Right in all Nations But that this Right of Lineal Succession is one of the Fundamental and Unalterable Laws of the Kingdom of Scotland is clear by the Commission granted by the Parliament for the Union in Anno 1604. in which these words are His Majesty vouchsafing to assure them or His sincere disposition and clear meaning no way by the foresaid Vnion to prejudge of hurt the fundamental Laws ancient Priviledges Offices and Liberties of this Kingdom whereby not only the Princely Authority of His most Royal Descent hath been these many Ages maintain'd but also His Peoples Securities of their Lands and Livings Rights Libertie Offices and Dignities preserv'd Which if they should be innovated such Confusion would ensue as it could no more be free Monarchy Sixthly There would many great Inconveniencies arise both to King and People by the Parliaments having this Power For weak Kings might by their own simplicity and gentle Kings by the Rebellion of their Subjects be induced to consent to such Acts in which their Subjects would be tempted to cheat in the one Case and rebel in the other Many Kings likewise might be wrought upon by the importunity of their Wives or Concubines or by the misrepresentations of Favourites to disinherit the true Successor and He likewise to prevent this Arbitrariness would be oblig'd to enter in a Faction for His own Support from His very Infancy This would likewise animate all of the Blood Royal to strive for the Throne and in order thereunto they would be easily induc'd to make Factions in the Parliament and to hate one another whereas the true Successor would be ingag'd to hate them all and to endeavour the Ruine of such as he thought more Popular than himself and every new Successor would use new Ministers Officers Methods and Designs whereas the apparent Heir uses those whom his Predecessor preferr'd Nor would the People be in better Case since they ought to expect upon all these accounts constant Civil Wars and Animosities and by being unsure whom to follow might be in great hazard by following him who had no Right And their Rights bearing to hold of the King and his Heirs it would be dubious to the Vassals who should be their Superior as well as who should be their King It is also in reason to be expected that Scotland will ever own the Legal Descent And thus we should under different Kings of the same Race be involved in new and constant Civil Wars France shall have a constant door open'd by Alliances with Scotland to disquiet the Peace of the whole Isle and England shall lose all the endeavours it used to unite this Isle within it self Another great Absurdity and Inconveniency which would follow upon the exclusion of the lineal Successor would be that if he had a Son that Son ought certainly to succeed and therefore after the next Lawful Heir were brought from abroad to Reign he ought to return upon the Birth of this Son and if he dyed he would be again call'd home and would be sent back by the Birth of another Son which would occasion such affronts uncertainties divisions factions temptations that I am sure no good nor wise man could admit of such a
them to Reform 4. That the People or their Representatives may Exclude the Lineal Successor and raise to the Throne any of the Royal Family who doth best deserve the Royal Dignity These being all matters of Right the plain and easie way which I resolve to take for refuting them so as the learned and unlearned may be equally convinced shall be first by giving a true account of what is our present positive Law 2. By demonstrating that as our present positive Law is inconsistent with those Principles so these our positive Laws are excellently well founded upon the very nature of Monarchy and that those Principles are inconsistent with all Monarchy And the third Class of my Arguments shall be from the Principles of common Reason Equity and Government abstracting both from the positiveness of our Law and the nature of our Monarchy And in the last place I shall answer the Arguments of those Authors As to the first I conceive that a Treatise De Jure Regni apud Scotos should have clear'd to us what was the power of Monarchs by Law and particularly what was the positive Law of Scotland as to this point for if these points be clear by our positive Law there is no further place for debate since it is absolutely necessary for Mankind especially in matters of Government that they at last acquiesce in something that is fix'd and certain and therefore it is very well observ'd by Lawyers and States-men that before Laws be made men ought to reason but after they are made they ought to obey which makes me admire how Buchannan and the other Authors that I have named should have adventur'd upon a debate in Law not being themselves Lawyers and should have written Books upon that Subject without citing one Law Civil or Municipal pro or con Nor is their Veracity more to be esteemed than their Learning for it 's undeniable that Buchannan wrote this Book De Jure Regni to perswade Scotland to raise his Patron though a Bastard to the Crown and the Authors of Lex Rex Jus Populi Vindicatum and others were known to have written those Libels from picque against the Government because they justly suffered under it I know that to this it may be answered That these Statutes are but late and were not extant in Buchannan's time and consequently Buchannan cannot be refuted by them 2. That these Statutes have been obtain'd from Parliaments by the too great influence of their Monarchs and the too great Pusillanimity of Parliaments who could not resign the Rights and Priviledges of the People since they have no Warrant from them for that effect To the first of which I answer that my Task is not to form an Accusation against Buchannan but against his Principles and to demonstrate that these Principles are not our Law but are inconsistent with it and it is ridiculous to think that any such Laws should have been made before those Treasonable Principles were once hatched and maintained for Errors must appear before they be condemned and by the same Argument it may be as well urged that Arius Nestorius c. were not Hereticks because those Acts of General Councils which condemned their Heresies were not extant when they first defended those opinions and that our King had not the power of making Peace and War till the Year 1661. But 2dly For clearing this Point it is fit to know that our Parliaments never give Prerogatives to our Kings but only declare what have been their Prerogatives and particularly in these Statutes that I shall Cite the Parliament doth not Confer any New Right upon the King but only acknowledge what was Originally his Right and Prerogative from the beginning and therefore the Parliament being the only Judges who could decide whether Buchannans Principles were solid and what was Jus Regni apud Scotos These Statutes having decided those points controverted by him there can be hereafter no place for Debate and particularly as to Buchannan his Book De jure Regni apud Scotos it is expresly condemn'd as Slanderous and containing several offensive Matters by the 134 Act Parl. 8. Ja. 6. in Anno 1584. which was the first Parliament that ever sate after his Book was printed To the 2 d I answer that it being controverted what is the Kings Power there can be no stronger Decision of that Controversie in Favours of the King than the acknowledgment of all Parties Interested and it is strange and unsufferable to hear such as appeal to Parliaments cry out against their Power their Justice and Decisions and why should we oppress our Kings and raise Civil Wars whereby we endanger so much our selves to procure powers to Parliaments if Parliaments be such ridiculous things as we cannot trust when they are impowred by us and if there be any force in this answer of Buchannans there can be none in any of our Laws for that strikes at the Root of all our Laws and as I have produced a Tract of reiterated Laws for many Years so where were there ever such free unlimited Parliaments in any Nation as these whose Laws I have Cited 2dly Whatever might be said if a positive Contract betwixt the King and People were produced clearing what were the just Limits of the Monarchy and bounding it by clear Articles mutually agreed upon yet it is very absurd and extravagant to think that when the Debate is what is the King of Scotlands just Power and Right and from whom he Derives it that the Laws and repeated Acknowledgements of the whole Representatives of the People assembled in the Supream Court of the Nation having no open force upon it but enacted at several times in many several Parliaments under the gentlest peaceablest and wisest Kings that ever they had should not be better believed than the Testimonies of three or four byass'd and disoblig'd Pedants who understood neither our Laws nor Statutes and who can bring no clear fundamental Law nor produce no Contract nor Paction restricting the King or bounding his Government 3dly That which adds a great deal of Authority to this Debate and these Statutes is that as this is clear by our positive Law so it is necessarily inferred from the nature of our Monarchy and is very advantagious for the Subjects of this Kingdom which I shall clear in the second and third Arguments that I shall bring against those Treasonable Principles nor can they be seconded by any solid Reason as I shall make appear in answering the Arguments of those Authors I know that Nephthaly the Author of Jus Populi and our late Fanatical Pamphlets alleadge that our Parliaments since 1661. are null and unlawful because many who have right to Sit as Members or to Elect Members were excluded by the Declaration or Test but my answer is First That these were excluded by Acts of Parliament which were past in Parliaments prior to their exclusion and so they were excluded by Law and no man can be said to
Devil was comanded by the cruel Edicts of persecuting Emperours the Christians never took up Arms against them but used fervent Prayers as their only refuge And St. Peter animates them to this patient suffering 1. Pet. 4. 12. 13. Beloved think it not strange concerning the fiery Tryal but rejoice in as much as ye are partakers of Christs sufferings But let none of you suffer as a murtherer or a Thief or as an Evil-doer or as a Busie body in other mens matters By which last words if I durst add to so great an Author as Bishop Vsher the Apostle seems expresly to me to have obviated the dreadful Doctrine of rising in Arms upon the pretence of Religion and the killing such as differ from them which if the Christians did allow they ought to pass for Murtherers and to forbid them to meddle in matters of Government upon this pretence because then they ought to suffer justly as busie bodies And here Bishop Vsher does most appositely cite St. Augustine in Psal 149. The World rag'd the Lion lifted himself up against the Lamb but the Lamb was full stronger than the Lion The Lion was overcome by shewing cruelty the Lamb did overcome by suffering And St. Jerome Epist 62. By shedding of Blood and by suffering rather then doing injuries was the Church of Christ at first founded it grew by Persecutions and was Crowned by Martyrdoms The second objection is If mens hands be thus ty'd no mans Estate can be secure nay the whole frame of the Commonwealth would be in danger to be subverted and utterly ruin'd To which he answers That the ground of this objection is exceeding faulty and inconsistent with the Rules of Humanity and Divinity of Humanity because this would impower private Persons to Judge and so should confound all Order and invite all men to oppose Authority and make Subjects Accusers Judges and Executioners too and that in their own Cause against their own Soveraign and against Divinity because it is contrary to the Scriptures and Fathers who command Submission Humility and Patience Rex est si nocentem punit cede justitiae si innocentem cede fortunae Seneca de Jura lib. 2. cap. 30. If the King punish thee when thou art guilty submit to Justice If when thou art innocent submit to Fortune And if a Heathen could be induced by his vertue to submit to blind Fortune how much more ought a Christian to be prevail'd upon by Devotion to submit to the All-seeing Providence of the most wise God who maketh all things to work joyntly for good to them that love him And as St. Augustine piously adviseth Princes are to be suffered by their People that in the exercise of their patience temporal things may be born and Eternal hop'd for The instance of King James the Third being punished by his Subjects is so far from being an Argument able to justifie Subjects rising in Arms against their King that this part of our History should for ever convince all honest men of the dangers that attend Defensive Arms For this Prince was so far from being one of those Tyrants against whom Defensive Arms are only confest to be just That few Princes were more meek and careful of his Subjects But because he imploy'd such as himself had rais'd finding that the Nobility had too often been insolent Servants to their Prince and severe Task-masters to the People the Nobility thinking more upon this imaginary neglect than their own duty did from combinatitions proceed to Arms and rejecting all conditions of peace they were at last curs'd with a Victory in which this gentle Prince was murthered whilst he sought to save his Sacred life in a deserted Mill. By which we may see that these Defensive Arms so much hallowed in our late Debates are but the Militia of Pride Vanity and Ambition and that if they be allow'd the best of Princes will ever fall by them And as to the Act 14. Par. 4. Ja. 4. Whereby it is pretended that the opposing and even the killing K. Ja. the 3. in Battel is justified and which Act was never Repeal'd It is answered First That this Statute was made by the same Rebels who had opposed their lawful Prince and so was rather a continuing of their Rebellion than a justification of it Secondly That abominable Statute proceeds on the pretence of K. James the 3d. calling in the English and designing to enslave the Kingdom to Foreigners which was not prov'd as is ought to have been though the pretext had been legal as it was neither legal nor true in the least circumstance and the Noblemen and Barons are Condemn'd without being cited or heard though the Act be not a Statute but a Verdict so unjust are all Rebels who are forc'd to maintain one Crime by another Thirdly In the new Collection of our Statutes made by Skeen and Authoriz'd in many subsequent Parliaments that abominable and Treasonable Act is not inserted which was the best way to rescind it because it was thought a reproach to the Nation to have any formal Law made to rescind the Statute which would have preserv'd its memory in anulling its Authority Fourthly Many Statutes since that time are made declaring the rising in Arms against the King and his Authority upon any pretence whatsoeve to be Treason and expresly rescinding all Acts and Statutes to the contrary as Rebellious and Treasonable and there needed no more Positive Statutes to rescind that Rebellious and Treasonable Combination rather than Law As to the 44. Act 6. Par. Ja. 2. From which its urged that because that Act declares it Treason to assault Castles and Places where the Kings Person shall happen to be without the Consent of the three Estates And that it is therefore lawful to assault the same with the Consent of the three Estates and consequently to rise in Arms with the Consent of the three Estates is no Treason It is answered that it being but too ordinary in the Minority of our Kings to have great Factions amongst the Nobility which shews also the danger of placing the Supream Power in the Proceres Regni one of the Factions ordinarily either having made the young King Prisoner or using to assault the Castle where he was really preserved It was therefore most wisely declared by this Statute That to lay hands upon the Kings Person violently what Age the King be of young or old or to Assail Castles or Places where the Kings Person shall happen to be without the Consent of the three Estates shall be punished as Treason That is to say that so great respect was to be had to his sacred Person that no violence was to be offered to the Place where he was until the same was allowed by the three Estates But in all the former Laws as well as those made in our Age it is still declared Treason to rebel against the Kings Person or to refuse to assist him without adding except the same be done by the
Institut de Jur. Natural § singulorum de rer divis And when the Law declares That a Supreme Prince is free from the obligation of Laws Solutus legibus which is the highest power that a Parliament can pretend to or arrive at yet Lawyers still acknowledge That this does not exclude these Supreme Powers from being liable to the Laws of God Nature and Nations Accurs in l. Princeps ff de Leg. Clementina pasturalis de re judicata Bart. in l. ut vim de justitia jure Voet. de Statutis Sect. 5. Cap. 1. Nor can the Law of Nations be overturned by private Statutes or any Supreme Power And thus all Statutes to the prejudice of Ambassadors who are secured by the Law of Nations are confess'd by all to be Null and the highest Power whatsoever cannot take off the necessity of denouncing a War before a War can be lawful And Lawyers observe very well That those who would oppose the common Dictates of Mankind should be look'd upon as Enemies to all Mankind My second Argument shall be That the King and Parliament can have no more power in Parliament than any absolute Monarch has in his own Kingdom For they are when join'd but in place of the Supreme Power sitting in judgment and therefore they cannot in Law do what any other supreme and absolute Monarch cannot do for all the Power of Parliaments consists only in their Consâ—nt but we must not think that our Parliaments have an unlimited Power de jure so as that they may forfeit or kill without a cause or pass Sentence against the Subjects without citing or hearing them or that they can alienate any part of the Kingdom or subject the whole Kingdom to France or any other Foreign Prince all which deeds would be null in themselves and would not hinder the Party injur'd from a due redress For if our Parliaments had such Power we should be the greatest Slaves and live under the most arbitrary Government imaginable But so it is That no Monarch whosoever can take from any man what is due to him by the Law of God Nature and Nations For being himself inferior to these he cannot overturn their Statutes Thus a Prince cannot even ex plenitudine potestatis legitimate a Bastard in prejudice of former Children though they have only but a hope of Succession l 4. sequen de natal restituend And for the same Reason it is declared in the same Law that he cannot restore a freed man restituere libertum natalibus in prejudice of his Patron who was to succeed though that Succession was but by a municipal Law For clearing which Question it is fit to know that the Eminent Lawyers who treat Jus Publicum as Arnisaeus and others do distinguish betwixt such Kingdoms as were at first conferr'd by the People and wherein the Kings succeed by contract and in these the Laws made by King and People can exclude or bind the Successor And yet even here they confess that this proceeds not because the Predecessor can bind the Successor but because the People renew the Paction with the succeeding King But where the Successor is to succeed ex Jure Regni in hereditary Monarchies there they assert positively that the Predecessor cannot prejudge the Successor's Right of Succession which they prove by two Arguments First That the Predecessor has no more Power nor Right than the Successor for the same Right that the present King has to the Possession the next in Blood has to the Succession and all our Laws run in favour of the King and his Heirs and no man can try his Equal or give him the Law Par in parem non habet dominium The second is That it were unjust and unequitable that the Predecessor should rob his Successor Nulla ergo says Arnisaeus Cap. 7. Num. 5. clausula Successori jus auferri potest modo succedat ille ex jure regni And Hottoman lib. 2. de Regno Galliae asserts that in France which is a very absolute Monarchy Ea quae jure Regio primogenito competunt ne Testamento quidem patris adimi possunt And thus when the King of France design'd to break the Salique Law of Succession as in the Reign of Charles V. it was found impracticable by the Three Estates And when Pyrrhus was to prefer his youngest Son to the Crown the Epirots following the Law of Nations and their own refus'd him Paus lib. 1. In the year 1649 also Amurat the Grand Seignior having left the Turkish Empire to Han the Tartarian passing by his Brother Ibrahim the whole Officers of that State did unanimously cancel that Testament and restore Ibrahim the true Heir though a silly Fool Which shews the Opinion not only of Lawyers but of whole Nations and Parliaments Thus Vander Graaff an Hollander confesses That it is not lawful to chuse any of his Sons to succeed him in which the general quiet of the Kingdom is much concerned and therefore though the next Heir were wiser braver and more generally beloved yet the more immediate must be received as chosen by God whether good or bad and as honoured with his Character And if Kings could have inverted their Succession and chosen their own Successor Saint Lewis had preferr'd his own third Son to Lewis his eldest And Alfonsus King of Leon in Spain had preferr'd his Daughters to Ferdinand his eldest Son And Edward VI. of England had preferr'd and did actually prefer the Lady Jane Gray to his Sisters Mary and Elizabeth And if Successions especially of such great importance had not been fixed by immutable Laws of God and Nature the various and unconstant inclinations of the present Governors especially when shaken by the importunity of Stepmothers and Mothers or clouded by the jealousie of Flatterers or Favourites had made the Nations whom they governed very unhappy and therefore God did very justly and wisely settle this Succession that both King and People might know That it is by him that Kings Reign and Kingdoms are secured in Peace against Faction And it were strange that this should not hold in Kings since even amongst Subjects the Honour and Nobility that is bestow'd upon a Man and his Heirs does so necessarily descend upon those Heirs that the Father or Predecessor cannot exclude the next Successor or derogate from his Right either by renouncing resigning following base or mean Trades or any other For say those Lawyers since he derives this Right from his old Progenitors and owes it not to his Father his Fathers deed should not prejudge him therein Fab. Cod. 9. Tit. 28. Def. 1. Warnee Consil 20. Num. 7. And as yet the Estates of Parliament in both Nations have no Legislative Power otherwise than by assenting to what the King does so that if the King cannot himself make a Successor neither can they by consenting and all that their consent could imply would only be that they and their Successors should not oppose his Nomination because of
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