be illegally excluded from his Seat in Parliament who is excluded by a clear Statute 2dly If this were not a good answer then the Papists might pretend that they are unjustly excluded because they will not take the Oath of Supremacy and because they are Papists and how can the Fanaticks pretend to make this objection since they by the same way excluded the Kings Loyal Subjects in the Year 1647. and 1649. c. Or how would these Authors have rail'd at any Malignant for using this Argument against them which they use now most impudently against us with far less justice for their Parliaments were unjust upon other Heads as being inconsistent with the fundamental Laws of the Kingdom and so their Acts of exclusion were null in themselves 3dly All the Statutes made since 1661 are necessary consequences of former Laws and so are rather renewed than new Laws 4ly If their reasons were allow'd there could be no end of controversie for all who are excluded would still alleadge that they were unjustly excluded and consequently there could be no submission to Authority and so no Society nor Peace The last answer that our Dissenters make when they are driven from all their other grounds is that they though the lesser are yet the sounder part of the Nation but this shift does not only overturn Monarchy but establishes Anarchy and though they were once settled in their beloved Common-wealth this would be sufficient to overturn it also for every little number of Dissenters nay and even the meanest Dissenter himself might pretend to be this sounder part of the Common-wealth but God Almighty foreseeing that pride or ignorance would suggest to frail Mankind this principle so inconsistent with all that Order and Government whereby he was to preserve the World did therefore in his great Wisdom convince men by the light of their own Reason that in matters of common concern which were to be determined by Debate the greater number should determine the lesser and such as drive beyond this Principle shall never find any certain Point at which they may rest and by the same Reason the Law has pronounc'd it safer to rest in what is decided though it be unjust than to cast loose the Authority of Decisions upon which the Peace and quiet of the Common-wealth does depend who would be so humble and just as to confess that his Adversary has the juster side Or who would obey if this were allow'd And what Idea of Government or Society could a man form to himself allowing once this principle It is also very observable that those who pretend to be the sounder part and deny obedience upon that account are still the most insolent and irregular of all the Society the greatest admirers of themselves and the greatest enemies to peace and so the unfittest to be Judges of what is the sounder part though they were not themselves Parties But what pretence is there for that Plea in this case where the foundations of our Monarchy have been unanimously acknowledg'd by many different Parliaments in many different Ages chosen at first from the Dictates of Reason and confirm'd after we had in many Rebellions found how dangerous all those popular pretences are and in which we agree with the Statesman Lawyers and Divines of all the well-Govern'd Nations under Heaven who are born under an hereditary Monarchy as it is confess'd we are To return then to the first of those Points I lay down as my first Position that our Monarchs derive not their Right from the People but are absolute Monarchs deriving their Royal Authority immediately from God Almighty and this I shall endeavour to prove first from our positive Law By the 2. Act Par. 1. Ch. 2 d. in which it is declar'd that His Majesty His Heirs and Successors have for ever by vertue of that Royal Power which they hold from God Almighty over this Kingdom the sole choice and appointment of Officers of State Counsellors and Judges But because this Act did only assert that our Kings did hold their Royal Power from God but did not exclude the people from being sharers in bestowing this Donative therefore by the 5th Act of that same Parliament they acknowledge the Obligation lying on them in Conscience Honour and Gratitude to own and assert the Royal Prerogatives of the Imperial Crown of this Kingdom which the Kings Majesty holds from God Almighty alone and therefore they acknowledge that the Kings Majesty only by vertue of His Royal Prerogative can make Peace and War and Treaties with forraign Princes Because this last Statute did only assert that the King did hold His Imperial Crown from God alone but did not decide from whom our Kings did only derive their Power therefore by the 2 d. Act Par. 3 d. Ch. 2 d. It is declar'd that the Estates of Parliament considering that the Kings of this Realm Deriving their Power from God Almighty alone they do succeed Lineally thereto c. Which Statutes do in this agree with our old Law for in the first Chapter of Reg. Magist. vers 3. these Words are That both in Peace and War our Glorious King may so Govern this Kingdom committed to Him by God Almighty in which He has no Superiour but God Almighty alone which Books are acknowledg'd to be our Law and are called the Kings Laws by the 54th Act Par. 3 d. Jam. 1. and the 115. Act Par. 14. Jam. 3. These our Laws both Ancient and Modern can neither be thought to be extorted by force nor enacted by flattery since in this we follow the Scripture the Primitive Church and their Councils the Civil Law and its Commentators and the wisest Heathens both Philosophers and Poets As to the Scripture God tells us That by him Kings Reign and that he hath anointed them Kings and that the King is the Minister of God David tells us That God will give strength to his King and deliverance to his King and to his Anointed Daniel sayes to Nebuchadnezar The God of Heaven hath given thee a Kingdom And to Cyrus God gave to Nebuchadnezar thy Father a Kingdom and for the Majesty that he gave him all Nations trembled As to the Fathers Augustin de Civit. Dei l. 5. c. 21. Let us not attribute unto any other the Power of giving Kingdoms and Empires but to the true God Basil in Psal 32. The Lord setteth up Kings and removeth them Tertul. Apol contra gentes Let Kings know that from God only they have their Empire and in whose power only they are And Irenaeus having Prov'd this point fully ends thus l. 5. c. 24. By whose Command they are born men by his likewise they are ordain'd Kings This is also acknowledg'd by the Councils of Toledo 6. c. 14. of Paris 6. c. 5. vid. Council aquis gran 3. c. 1. Amongst late Divines Marca the famous Arch-Bishop of Paris Concord sacerd imperii l. 2. c. 2. n. 2. asserts That the Royal Power is not only bestowed
Tenor of all the Laws that ever were made in Scotland The Parliament returning to their duty ordained that Style to be altered and to bear as formerly Our Soveraign Lord with Advice and Consent c. But lastly what advantage can the people have by placing their security in the Parliament since they are so liable to Passions Errors and Extravagancies as well as Kings are and have if Buchannan be believed betrayed the interest of the Kingdom since King Kenneth the Seconds time now above 700. years and they are ordinarily led by some pragmatical Ring-leaders who have not that kindness or interest to preserve the Kingdom that Kings have and since the King may make so many Noble-men and Burghs Royal at pleasure by whose Votes he may still prevail what security can we have by giving them a power above the King or how can they have it From all which it may clearly appear that we have had Kings long ere we had Parliaments and that the Parliaments derive their power from the King and that at first our King only called the Heads of Families and his own Officers as his Council with whom he consulted without any necessity to call any others than he pleased there being no Law Article nor Capitulation obliging him from the beginning thereunto And our Kings were so far from having Parliaments associated with them in their Empire that there is no mention at all of them or of any condition relating to them in the first Institution of our Kings above related nor were there any Parliaments in being at that time But after the Feudal Law came to be in vigor then our Kings looking upon the whole Kingdom as their own in property King Malcolme Canmore did distribute all the Land of Scotland amongst his Subjects as his Liege-men which is clear by the first Chapter of his Laws and according to the Feudal Law all the Vassals of our Kings compeared in their Head-Court and therein consulted what was fit for the Kingdom but thereafter the way of making War requiring Money and Property belonging to the Subject as Government did to the King it was necessary to have their consent for raising Money And from this did arise the inserting the advice and consent of the three Estates in our Acts of Parliament From this also it is very clear that their opinion is very unsolid and ill founded who think that Kings can do nothing without a special Act of Parliament even in matters of Government As for instance that he cannot restrain the Licence of the Press or require his Subjects to take an Engagement for securing the Peace for these and the like being things which relate immediately to Government the King has as much right to regulate these as we have to regulate and dispose of our Property Government being the Kings Property 2. Though the Monarchy had been derived from the People yet as soon as our Kings got the Monarchy they got ever thing that was necessary for the Aministration of it which as it is common sense and reason so it is founded upon that most wise and just Maxime in Law Quando aliquid conceditur omnia Concessa videntur sine quibus concessum explicari nequit 3. I desire to know where there is yet a Law giving the King a Negative voice a power of Erecting Incorporations or a power to grant Remissions for Crimes or Protections for Civil Debts and yet the people is far more concerned in these and the King 's having power to do these and a thousand other things doth rather oblige and warrant me to lay down a general Rule that the Kings of Scotland can do every thing that relates to Government and is necessary for the administration thereof though there be no special Law or Act of Parliament for it if the same be not contrary to the Law of God Nature or Nations The second Conclusion that we draw from these former Principles is that Princes cannot be punished by their own Subjects as Buchannan and our Republicans do assert which is most clear by the former Laws wherein it is declared That the King is a Soveraign and absolute Prince and deriving his power from God Almighty that it is Treason to endeavour to depose or suspend the King Wherein our Law is founded on the nature of Monarchy for if he be Supream He cannot be judg'd for no man is judg'd but by his Superior and that which is Supream can have no Superior and on the Principles of the Law of Nature and Nations because saith the Law No man can be both the Person who Judgeth and the Person Judg'd and it is still the King who Judgeth since all other Judges do represent him and derive their power from him Ipse se praetor cogere non potest quia triplici officio fungi nequit suspectum dicentis coacti cogentis L. Ille a quo ff ad Trebell It is a prnciple in all Law that Jurisdiction and all other Mandats cease with the power that granted it and therefore as they acknowledge that a King cannot be cited till he have forfeited His just Right so as soon as he has forfeited it all the power of the ordinary Judges in the Nation falls and becomes extinct and no other Judge can Judge Him because no other Judge can sit by vertue of any other Authority till it be known that he has forfeited his and that cannot be till the event of the Process and if the People be Judges yet they cannot assume the Government till the King has forfeited it And why also should they be Judges who have neither knowledge nor moderation who are acted by humor and delight in insolence and how shall they meet Or who shall call them Nor can the Parliament Judge them because they derive their Right from the King as shall be prov'd And though they were equal yet no equal can Judge another par in parem non habet Imperium nemo sibi Imperare potest No man can command himself l. si de re sua ff de recept Arbitr Nemo sibi legem imponere potest l. quid autem ff de denat inter virum uxorem and therefore the Civil Law which is ours by Adoption does positively assert That Princeps legibus solutus est the King is liable to no Law l. princeps ff de legibus For though He be lyable to the Directive Force of the Law that is to say He ought to be Governed by it as his Director Yet He is not lyable to the Coercive Force of the Law as all Lawyers that are indifferent do assert Harmenpol l. 1. tit 1. Sect. 48. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The King is not Subject to the Law because offending against it he is not punisht vid. Granswinkell cap. 6. Arnis cap. Francisc a victoria Relect. 3. num 4. Ziegler de jur Majes cap. 1. num 12. with whom the Fathers also agree Ambros in Apol. David cap. 4. Liberi sunt Reges
of the Kings of Great Britain since the States of Parliament are only call'd by the King and derive their Authority from him and the Legislative Power is solely in the King the States of Parliament being only Consenters he not they can only make Peace and War and grant Remissions and against him and not them Treason only is committed and the Law Books of both Nations do affirm that the King is Supream and consequently even according to Calvin's Doctrine neither his People nor any of their Representatives can justly oppose and much less punish him I know that Grotius is by the Republicans and the Fanaticks oft-times cited to defend this their Doctrine of opposing Princes but though his Testimony might be justly rejected as being himself born under a Commonwealth yet he is most impudently cited for he lib. 1. cap. 4. does positively lay down as a general and undoubted Rule That Summum imperium tenentibus resisti non potest Those who have the Supream Power cannot lawfully be resisted which Rule he founds upon the Principles of Reason the Authority of Scripture and the Practice of the Primitive Church and though he limits the same thereafter by some exceptions yet it will easily appear that these exceptions extend not at all to our Case For the first relates only to such Kings as have receiv'd their Power with express condition that they may be tryed by other Magistrates The second to such as have voluntarily resign'd their Empire as Charles the 5th did and so the one may be oppos'd because they were only Titular Kings and the other because they left off to be Kings and consequently we are concerned in neither of these Cases The third limitation is only in the Case where he who was truly a King has alienated his Kingdom to Strangers In which Case Grotius does contend That Subjects may refuse to obey because he ceaseth to be their King But as this is not our Case so even in that Case Grotius is very clear that if this alienation be made by an Hereditary Monarch the alienation is null as being done in prejudice of the lawful Successor but he does not at all assert that the Monarch may be thereupon depos'd by his People The fourth relates only to such Kings as from a hatred to their Countrey design its Destruction and utter Ruine but as he confesseth himself Id vix accidere potest in Rege mentis compote and consequently can take only place in a mad Man in which Case all Laws allow the Kingdom to be rul'd by Governours and Administrators in the King's Name if the madness be Natural and a Total depravation of Sence But if by Madness be meant a moral Madness and design to ruin the Kingdom and the Subjects as was and is most impiously pretended against King CHARLES the first and King CHARLES the 2 d the best and most reasonable of Kings then Opposition in such Cases is not at all warranted by Grotius who speaks only of a Physical and Natural Madness for else every thing that displeaseth the people should be call'd Madness and so the exception should not limit but overturn the general rule and should Arm all Subjects to rebel against their Princes and make them the Soveraign Judges in all Cases Which is inconsistent with Grotius's own Doctrine and is excellently refuted by his own Reasons The fifth relates only to Kings who by the fundamental Laws of the Kingdom are ty'd to such and such Conditions so as that if they fail in them they may be oppos'd The sixth relates only to Kingdoms where the Power is equally divided betwixt the King and the Senate The seventh is in case the King was at first invested by the People with express reservation to them to resist in such and such Cases and so is almost the same with the fifth and all these three differ little from the first And with Grotius's good leave they err also in this that they are not properly exceptions from his own rule for the rule being only that Supream Powers cannot be resisted these Powers are not Supream and they needed not be caution'd by an exception since they did not fall under the rule But neither of these Cases extend to us since our King is by the Acts of Parliament formerly cited declared to be Supream over all Persons and in all Causes nor made our Predecessors any such express reservations at the first erection of the Monarchy and consequently by Grotius own positive Doctrine cannot be resisted And so far is Grotius an enemy to such Fanatical Resistance upon the Pretence of Liberty and Religion that num 6. he calls the Authors of those Opinions Time-Servers only And Gronovius a violent Republican and Fanatick taxes him extreamly for it in his Observations upon that fourth Chapter whose Arguments produc'd against Grotius I shall answer amongst the other Objections Gronovius's first Argument why it should be lawful to resist the Supream Magistrate in defence of Religion is because if it be not Lawful for Subjects to Arm themselves for Religion against their Prince it should not be lawful for their Prince by the same rule to defend himself against Turks and Infidels who would endeavour to force him to comply with their Impieties But to this it is answered That Resistance to Superiors is expresly forbid by the Laws of God and Nature as is said but this cannot be extended to Cases where there is no Subjection nor Allegiance and it may be as well argu'd that because one private man may beat another who offers to strike him that therfore a Child may beat his Parent or a Servant his Master or that because I may violently resist a private man who offers to take away my Goods unjustly that therefore I may oppose the Sentence of the Magistrate because I forsooth do not think the same just His second shift is That our Saviour commanded only absolute submission without resistance in the Infancy of the Church when he himself was miraculously to asist his own Servants but this Submission was to end with the Miracles to which it related As to which my answer is 1. That all Commands in Scripture may be so eluded nor is there any Duty more frequently and fully inculcated than this is and that too in the same Chapters amongst other Duties which are to last for ever such as Submission to Parents and Masters and this is founded upon plain reason and conveniency and not upon Miracles 2. This was receiv'd and acknowledged by the Pagans as has been fully prov'd though it cannot be pretended that they rely'd upon any such miraculous assistance 3. It cannot be deny'd but the Fathers of the Primitive Church did recommend and justifie themselves in their Apologies to the Heathen Emperours for bearing patiently when they were able not only to have resisted but to have overthrown their Persecuters as is clear by the Citations out of Tertullian Cyprian Lactantius Augustine and others to be seen in
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
far he were ty'd and if his conveniency were the measure of his Obligation But since I shall hereafter fully prove that these limitations are as dangerous to the Subjects as to the Prince and that ten thousand times more Murders and other Insolencies have been committed in Civil Wars upon the false pretence of Liberty than ever was committed by the worst of Kings it must necessarily follow that those limitations ought not to be admitted after an absolute Oath for shunning inconveniences which at the ballance appear to be no weight 5. It cannot be denyed but our Kings have ever had the Power of Peace and War the calling and dissolving of Parliaments and a negative Voice in them the remitting of Crimes and nomination of Judges and therefore it must be presumed that since the Law has not limited them in those things it has limited them in nothing for by involving us in War they may expose our Fortunes our Wives and Children to the greatest of dangers and it had been great folly to limit them in any thing after those great Prerogatives were allowed And though our Histories do bear That Peace and War were ordinarily determined by the advice and consent of the Nobility yet that does no more infer a necessity not to do otherwayes than the ordinary stile of all our Proclamations bearing to be with advice of our Privy Council infers a necessity upon the King to do nothing without their advice and how could the consent of the Nobility have been necessary in the former Ages since all their Right flowed from the King Himself and that neither they then nor the Parliament now had or have a Power equal with the King much less above Him as shall be fully proved in the first Conclusion that I am to draw from this Doctrine only to what I have said I must here add that it being proposed to our Predecessors at the swearing the Oath of Allegiance to King Fergus Whether they would be govern'd by a King who should have absolute Power or by the Nobility or by a Multitude it was answered That lest they should have many Kings in place of one they abhorr'd to bestow the Absolute Power either upon the Nobility or upon the Multitude 6. I cannot but exceedingly commend our Predecessors for making this reasonable choice of an absolute Monarchy for a Monarch that is subject to the impetuous caprices of the Multitude when giddy or to the incorrigible Factiousness of Nobility when interested is in effect no Government at all and though a mixt Monarchy may seem a plausible thing to Metaphysical Spirits and School-men yet to such as understand Government and the World it cannot but appear impracticable for if the People understand that it is in their Power to check their Monarch the desire of command is so bewitching a thing that probably they will be at it upon all occasions and so when the King commands one thing the Nobility will command another and it may be the People a third And as it implies a contradiction that the same Persons should both command and obey so where find we those sober and mortified men who will obey when they may command Let us consider what dreadful extravagancies and cruelties appear'd at Rome betwixt the Tribunes of the People and the Senate one of six Kings had a Son who ravish'd a Woman and thereupon the Kings were expell'd but every year almost produced a Civil War wherein vast numbers of free Romans were murther'd and in the contest betwixt Sylla and Marius 90 Senators 15 Consuls 2600 Gentlemen and 100000 others were murther'd and after the whole Common-wealth was exhausted in the Wars betwixt Caesar and Pompey and in the immediate succeeding War betwixt Augustus Anthonie and Lepidus wherein every man lost either a Brother a Father or a Son Rome return'd again to its Monarchy and was never so happy as under Augustus The People of Naples complaining lately of their Taxes put themselves under the Command of Reforming Massaniello by whose extravagancies they suffer'd more in one Moneth than they had done under the Spanish cruelty in an hundred years But our late Reformation in Britain seems to have been permitted by God to let us see that mixed Governments having power to Reform Kings are more insufferable than Tyranny for by it we saw that the multitude consists of Knaves and Fools and both these are the worst of Governors that the best of Kings will be thought wicked when Subjects are his Judges who resolve not to obey and that it is impossible to know what is right when every man is Judge of what is wrong The impracticableness likewise of this popular Supremacy will yet more convincingly appear if we consider that the People are to be Judges because of their natural freedom for then all men should have equal right to be Reformers and these can never meet nor consult together And if it be answered that the People may send their Representatives my Reply is that the greatest half of the Nation are neither Freeholders nor Burgesses and yet those only are call'd the Representatives of the people and what absurd Tricks and Cheats are us'd in choosing even those Representatives and it may be the resolution prevails by the Vote of the greatest Fool or Knave in the Meeting and if any one man remove by sickness or accident at the passing of a Vote or if any of the multitude be brib'd or have prejudice though on a most unjust account that which would have been the interest of the Nation turns to be against it so infallible a Judge is the multitude And I have seen in popular Elections hundreds cry for a thing and thereafter ask what was the matter 7ly If the Proceres Regni or Nobility are to be the check upon our Kings and to be trusted with this coercive power of calling them to an account as Buchannan pretends then I desire to know who invested them with this power for it was never pretended that it is naturally inherent in them And if the people invested them I desire to know by what Act the people transferr'd this power upon them for they have no Law nor original Constitution for this as our Kings have for their Right and passing over the dangers may arise from their having this power because of the Factiousness Poverty Picques Humors or Ignorance that may be incident to them it seems to me strange why we the people should trust such to be our Checks over the King who are His own Creatures owing their Honours to Him and expecting dayly from Him Imployments and Estates and if they and the people differ who is to be Judges of those Controversies Nor can the Nobility and Commons assembled in Parliament have this coercive power for the Reasons which I shall hereafter offer and therefore none has it but the King is Supream in himself and accountable to none save God Almighty alone But more of this will be found in 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
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