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
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
his Affairs and it is very easy to guess by whom it is done For none so likely to undermine his Throne as they who endeavoured to hinder and obstruct his Ascending to it Nor can any Man be Traytors to this King but they who were the Instruments of the last King's Tyranny The Cobler's Auls and Ends are unsuitable Furniture in the Painter's Shop Neither will they ever serve this King with faithfulness in his vindicating the Kingdoms into Liberty who were the Sworn Vassals to his Predecessors Despotical Will and his Tools for oppressing and enslaving the Nations Besides the damage they have brought upon the Nations and the Treasure they have unprofitably wasted They have been the Occasion of losing His Majesty more Honour in one Year than all his Foreign Campaigns ever did since he first Commanded Armies and presided in Councils and should he be prevailed upon by the Adulation and Artifice of any about him to trust the Conduct and Management of his Affairs in the same Hands for one other Year it may be easily foretold without Consulting the Stars that we shall not be in a Condition on the third to save either him or our selves And as we have no distinct Interest from His Majesties so all we desire is That he would vigorously Espouse and Assert his own upon which we shall both believe and Proclaim our selves happy For the Vipers durst not hiss but for the warmth they receive through being lodg'd in his Bosom But to conclude this head I am extreamly mistaken if they who have occasioned and promoted the Quarrelling at the forementioned Vote do not find that they have consulted worse for themselves than was designed or intended by those who they account for their Enemies For this Parliament will undoubtedly at their next Assembling be so far from departing from what they have Voted that instead of acquiescing there and being contented with the having the betrayers of their Laws the Oppressors and Murderers of the Leiges and the Obstructors of the King and Kingdoms Establishment only debarr'd and excluded from Places of Preferments Profit and Trust in the Government that they will be justly provoked and see it to be indispensibly necessary to Impeach and Proceed capitally against some of them Their despising as well as refusing of Lenity will derive upon them the severities their Crimes at first deserved but which that Prudent Temperate and Indulgent Senate were willâ—ng to have mitigated by exchange of them into milder And as we are fully assured that so wise and good a Prince as His Majesty can never entertain either mean or distrustful thoughts of a Parliament that hath given him so many and eminent Testimonies of their Loyalty much less be prevailed upon to Dissolve them while the Nation is in so Distressed and Unsetled a Condition an Armed Enemy in its Bowels and the ferment every where so high that nothing can allay it but their being continued and being allowed to meet at the appointed day to which they are Adjourned so we are no less assured that they who are said to be the Zealots in this Parliament and to have the chief Conduct of and the prevailing sway in all Business and Affairs that come before it can neither miss being chosen into nor have less Interest and Esteem in another So long as Persons of Fortune Quality and Interest continue to assert the Laws and Rights of their Countrey and to pursue the joint Interest of the King and Kingdom the Obloquies cast upon them by such as dread and dislike their Courage and Integrity will only increase their Reputation and Oblige all those Senators and Members of Parliament that are honest to put the more value upon them But to Supersede all fear of this Parliaments being Dâ—ssolved without both Assembling and Dispatching business the King by a Law to which the Royal Assent was given the last Session abridged himself of all Power in that Matter For in the Act that past the first of July whereby Prelacy and the Superiority of any Office in the Church above Presbyters is abolished it is declared That the King and Queen's Majesties with the Advice and Consent of the Estates of this Parliament will settle by Law that Church-Government in the Kingdom which is most agreeable to the Inclinations of the People So that whosoever shall have the Impudence to advise His Majesty to Dissolve this Parliament before there be by Law some Government erected in the Church Doth both tempt him to violate his Faith and to trample upon one Express Statute to which himself hath given the Royal Assent The next contested Vote that we are to Address our selves unto and whereof we are to demonstrate the Legality Reasonableness and Necessity is that which relates unto the Privilege of the Estates of Parliament in nominating and appointing Committees of which I do here subjoin an Authentick Copy Forasmuch as the meeting of the Estates of this Kingdom did by their Vote of the Eleventh of April last represent among other Grievances That the Committee of Parliament called the Articles is a great Grievance to the Nation and that there ought to be no Committees of Parliament but such as are freely Chosen by the Estates to prepare Motions and Overtures that are first Tabled in the House Therefore Their Majesties with the Advice and Consent of the Estates of Parliament do Enact and Declare That it is the undoubted Privilege of the Three Estates of Parliament to Nominate and Appoint Committees of Parliament of what Number of Members they please being equal of every Estate and Chosen by the respective Estates viz. the Noblemen by the Estate of the Noblemen the Barons by the Estate of the Barons and the Burroughs by the Estate of the Burroughs for preparing Motions and Overtures that are first made in the House or that the House may Treat Vote and Conclude upon matters brought in plain Parliament without remitting them to any Committee if they think fit Or that the House may appoint Plurality of Committees for any Motions or Overtures that need to be prepared or digested for them Declaring hereby That no Officers of State are to be Members except they be Chosen And hereby rescinds the first Act of the Third Session of the first Parliament of King Charles the Second and all other Laws and Customs establishing the manner of Election and Power of any Committees of Parliament in so far as they are not conform to this Act. So sensible was the Meeting of the Estates that the Committee of Articles was according to late Custom Regulation and Practice an intolerable Grievance to the Kingdom and a high Incroachment upon the Liberty and Jurisdiction of Parliament that before the disposal of the Crown to Their present Majesties they made their being relieved from it one of the Stipulations and an Article of Contract upon which Their Majesties had the Crown conferred upon them and upon which the People agreed to yield them Obedience and
upon a single Vacancy cannot constitute one Judg till he be examined and approved should nevertheless be esteemed impowered to constitute the whole Bench of the College of Justice without a previous Examination and Approbation How improvident were our Parliaments and how weak and ridiculous are our Laws if all that is provided for be only the restraining the King from making one Judg that is unqualified and at the same time to allow him a Power and Authority of making Fifteen that are unqualified for such they are to be esteemed till they have been tried and approved There can be nothing more unquestionable than that they who are nominated by the King to be Judges ought according to the Laws of Scotland to be tried and approved before they be accounted or authorized to sit and act and therefore there being upon a total Vacancy no Lords of the College of Justice to try examine and approve those whom the King hath nominated and recommended it would seem to be uncontroulable by all Persons pretending to reason and acquainted with our Laws and Customs That the Right of examining and of admitting or rejecting them comes to be devolved upon the Parliament which is the whole that is desired in the forementioned Vote Nor is there any mean but that they either must ascend the Bench without undergoing a Tryal or receiving an Approbation which is openly to Affront the Laws or else the Power and Right of approving and of accepting or rejecting must be acknowledged to reside in the Estates of Parliament Nor was this ever denied them in the Case of a total Vacancy under the worst of the foregoing Reigns Which makes it the more doleful as well as Amazing that through the Subornation and Crafty but false insinuations of Evil Men there should be an endeavour of wresting it from them under the Reign of so Gracious and Temperate a Prince whom they with so much Affection and Zeal called and invited to the Throne not only in gratitude for his having delivered them from Popery but out of a hope and prospect of his relieving them from all their other Grievances It hath been already proved beyond the pâ—ssibâ—lity of a Reply That the fiâ—st Institution of the College of Justice and the Nomination as well as Approbation of those that were then advanced to be Lords of Session was by the Estates Assembled in Parliament And I do now furâ—her affirm That in the two total Vacancies which are all that have since occurred besides this that hath now fallen out upon the late happy Revolution the Estates in Parliament were indisputably allowed the Right of admitting or rejecting those of whom the College of Justice was to be freshly â—onstituted for upon the total Vacancy in the year 1641 which was the first that had been from the Institution of the Lords of the Session the Parliament not only Challenged the Approving but they took upon them the joynt Nomination with the King of all the Persons that were to be admitted into and created Members of the College of Justice But this Example and Pâ—esident I will not insist upon seeing there was something unjust and illegal in it as well as something just and legal For not being satisfied with the Right of admitting to which Law and Reason gave them an unquestionable Title they usurped upon the Crown and took upon them the Power of nominating which had been granted by former Laws unto the King. Let us therefore see what was done upon that other total Vacancy which occurred at the Restauration of Charles II. when nothing would have been departed from by the King that he could have with held without the highest Injustice nor any thing either claimed or accepted by the Parliament that they could have sacrificed or surrendred without becoming obnoxious to eminent dangers and yet even then the King having nominated those whom he designed for the Lords of Session the Approbation of them was submitted unto the Parliament and the Estaâ—es having in full Parliament consider'd them they admitted and received them It is true that the Parliament did not bring them single before them and there Try and Examine them not because they might not have done it but because there was no need of it being all of them of that Eminency as to be Universally and Notoriously known to have all the Qualifications required by the Statutes Yea though that Parliament was abundantly officious towards the Crown and Loyal to that excess to the King as to be Disloyal to their Countrey and unfaithful to their Constituents Yet in the Second Act of their first Session by which they restore to the King what had been wrested from him in the Parliament 164â— they allow him no more in reference to the Lords of the College of Justice but the right of nomination as the Crown had enjoyed it preceeding the Year 16â—7 But I hear there are some who finding His Majesty unalterably resolved not to depart from the known and just Laws of the Land in the Governing of his People have therefore to elude the force of what hath been here Represented and to divert His Majesty from hearkning to the humble desirâ—s of his Parliament in this matter been guilty of the Treachery as well as the Impudence to suggest unto His Mâ—jesty That there is not now a total Vacancy there being of the fiftâ—en nominate by His Majesty for Lords of the Session three that were antecedently such and that it belongeth unto them Three to try and approve the others and that what the Parliament pretends unto being only in the Case of a total Vacancy is here wholly Superceded and that for any to insist upon it is an incroachment upon the Prerogative of the King and a robbing of the Lords of Session of a Privilege vested in them by Law. Now tho all that is here insinuated be rather the Offering an Affront to our Understandings than the Accosting us with a reasonable Objection yet we will so far condescend to the weakness of those that are ignorant of the Laws and Customs of Scotland as to return such a Reply unto it which may not only convince all Mankind of the imâ—ertinency of it but expose those that are the Authors of it to be either loathed as ill men or ridiculed as silly For First Supposing that S N and M who are all that can be referred unto in the pretended Objection did still remain Lords of the College of Justice by Reason of their having formerly been so Yet they are too few to constitute a Session which they ought to be before they take upon them to Try and Approve such as are recommended unto them by the Kings nomination The Quorum of which a Session ought to consist before it can Exercise any Legal Authority should be Nine which I think no Arithmetick will make Three to be Nor will my Lord S and his Son Sir J. D find that Success in their Attempts against the first and self-evident
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
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
THE LATE PROCEEDINGS AND VOTES OF THE PARLIAMEMT of SCOTLAND Contained in an ADDRESS Delivered to the KING Signed by the Plurality of the Members thereof Stated and Uindicated Scilicet res ipsa aspira est at vos non timetis sed inertia mollitia animi alius alium expectantes cunctamini videlicet diis immortalibus confisi qui hanc rempubl in maximis saepe periculis servavere At non votis neque suppliciis muliebribus auxilia deorum parantur Vigilando agendo bene consulendo prospere omnia cedunt ubi socordiae tete atque ignaviae tradideris nequicquam deos implores irati infestique sunt Cato apud Salust GLASGOW Printed by Andrew Hepburn Anno Dom. 1689. THE LATE Proceedings and VOTES OF THE PARLIAMENT OF SCOTLAND c. TO remain silent under the Aspersions which some busy but either weak or ill Men are endeavouring to fasten not only upon the Proceedings but upon divers of the most Honourable and Loyal Members of Parliament were to be no less treacherous to his Majesty than careless of the Reputation of that whole Illustrious Body as well as of the Integrity of those Persons who are said to have so much influenced the Transactions of it and whose chief Crime with those that Malign and Traduce them is their having expressed so much Affection and Zeal for His Majesty's Person and Service And as the representing their Actions in a true Light is all that is needful both to justify and commend them so whosoever will be at the pains to examine them will find them adjusted to all the Rules of Law Religion and Policy And as it is not to be doubted but that whensoever the Parliament Assembles they will both vindicate their Proceedings in Customary and Legal Methods and exert that Authority which is essential to them over those of their own Members by whom they have been slandered so all that is now to be endeavoured in their behalf is to vouchsafe unto the English Nation to whom they have been misrepresented such a brief Account of their Transactions with the Occasions Reasons and Motives of them as may not only manifest the Wisdom and Loyalty of that Parliament but demonstrate beyond all contradiction that the only design they have been pursuing was to preserve and maintain His Majesties Honour secure and establish him an Interest in the Love and Hearts of his People and make His Throne firm and durable It is too evident either to be denied or Apologized for that all the Laws Priviledges and Rights of the Kingdom of Scotland have under the Late Reigns been not only Usurped upon and Invaded but Subverted and Overthrown For by gradual Inlargements of the Prerogative beyond what was allowed by the Rules of the Constitution and the Statutes of the Realm the legal and regular Monarchy of the Nation was swelled into an Arbitrary and Despotick Power So that all the Franchises and Rights which by Original Contracts and Subsequent Laws had been reserved unto the People were either overthrown or enjoyed precariously And we are compelled to say that the Coalition of Scotland with England under one Monarch without a Union between the Two Nations into one Legislative Body and Civil Government hath given great advantages to our Late Princes of treating us with a Rigour and Loftiness that our Ancestors were not accustomed unto And though a small Acquaintance with the Politicks might have instructed the English that whatsoever received a first Impression amongst us would sooner or later obtain a second Edition amongst them yet they seem'd either not to have foreseen or at least not to have resented it until the Original of King Jame's Absolute Power in Scotland which all Men were bound to obey without reserve was copied over in England in his Claim of Soveraignty in dispensing with those Laws that were the Fence about their Safety It was from the unconcernedness which the English have too often testified not to say the countenance they have given in Relation to the Usurpation of our late Kings over the Laws and Liberties of Scotland that those Princes have despised the Applications made unto them as well by Parliaments as by the Nobility and Gentry for redressing their Grievances and that the Nation remained so long discouraged from relieving it self in those Methods that were left it And as the Scots did for many Years sadly feel and experience into what Excess their Kings grew up in Usurping upon their Laws and Liberties from a hope and confidence of being justified and supported in those Invasions by the Strength and Treasure of England So the English cannot be altogether insensible how Charles the Second not only confronted their Bill of Exclusion in England with an Act in Scotland for the Hereditary Succession of his Brother but what large Breaches he was encouraged to make upon their Rights and Priviledges after his having obtained an Assistance of 22000 Men to be enacted and granted unto him by Law in Scotland and those to be used in what places and upon what occasions he should please to imploy them Nor are we able sufficiently to express our Obligations to His Present Majesty who being extremly sensible that our remaining disunited in our Governments and two distinct Monarchies though link'd together under one Monarch hath been one of the great Occasions and chief Sources of our common Miseries and Oppressions and being desirous both to redeem us from the illegal Sufferings we have already felt and to obviate those which might break in upon us under future Reigns hath therefore invited the Nations to such an Union of strength Councils and Legislative Authority as may render them a Defence to each other and not Instruments and Tools of enslaving one another and a mutual Prey Which as all wise and good Men do earnestly long for so the common Interest of the two Nations obliges them speedily to endeavour But we are forced to add that besides the Encouragement which our late Princes have assumed unto themselves of Usurping upon the Rights and Liberties of Scotland from an expectation of being supported in it by the Power and Wealth of England There is another Cause unto which much of their Invasion upon the Scot's Priviledges is to be ascribed and unto which we are forced to resolve many of our Miseries as the Spring whence they have flowed For upon the Succession of our Kings to the Crown of England and their fixing their Royal Abode and Regal Seat in that Kingdom they are thereupon fallen into a Method of deriving their knowledg of Scotish Laws and Customs of being informed of the Grievances of that Nation and of receiving Impressions of Persons and Things from one or two Ministers chosen to reside about them and in order thereunto advanced into Places of Honour and Trust and who too often have been found to want either the Honesty Wisdom or Courage requisite in those upon whom so much comes to be devolved Surely the World hath had sufficient Evidence in
Rights and Castoms of His Country who has had the Impudence as well as Malice to brand those for Republicans by whose Power Zeal and Interest the Crown came to be conferr'd upon the present King. But they must be Persons of a very short Prospect who do not perceive that they who are endeavouring to restore King James account it expedient to blast those in his present Majesties Esteem under the reproachful name of Republicans who have the Loyalty and Courage to venture their whole for his Crown and Dignity and to withstand those ill Men in what they are about And I will venture to say it freely that as it is not Names but Things which wise Men seek and pursue So there is no more required to the freeing both Scotland and England from the Common-wealths Men and from all Republican Principles but that His Majesty persevere in preserving unto his People their Rights and Liberties Esteem Parliaments as well his great Council in Arduous Affairs as the Suppliers of him in his Necessities with Mony and that he make the known Laws the Measure and Standard of his Government While on the contrary it is in the Power of ill Ministers if His Majesty hearken unto them to withdraw nine parts of ten of the People in six Months from their Love of Monarchy and to force them upon wishing for a Common-Wealth And had it not been for the view which the Nations under the last Reign had of their Royal Highnesses the Prince and Princesse of Orange and the assurance they entertained of enjoying their Laws and Priviledges under their Government and Authority the Methods which the late King took and the Counsels he followed would instead of the Translation of the Crown to Their present Majesties have put an end to the Monarchy Nor can any thing so affright considering Persons from addictedness to Monarchy as the leaving the Nations under the Power Conduct and Authority of those very Men by whose Counsels and Management the late King came to forefault His Crown seeing some will be so peremptory as to imagine that it cannot be upon personal liking that they come to be used but because the nature of the Government requires them or at least Persons of their Principle and Political Complexions But forasmuch as the present Embarrass of His Majesty with his Parliament of Scotland is wholly caused by the Advocate 's abusing His Majesty in the Account he hath given him both of the Rights and Jurisdictions of the Estates in Parliament Assembled and of the Laws and Customs of the Kingdom I shall therefore in Order to the disparaging of him with all the Wise and Loyal part of Mankind and the debarring him the King's Ear and attracting upon him the Royal Indignation Publish the Principle upon which he builds all the Advices he communicateth to his Master and with which he seeks to poyson and corrupt His Royal Mind And this is That the King hath a separate Interest from his People which he ought to pursue in distinction from theirs And this we may be sure he doth not fail of insinuating either immediately unto his Majesty or at least to those about him seeing he had the Folly as well as the Impudence both to assert and to seek to justify it in open and full Parliament Now whosoever gives himself the trouble of examining the tendency of this Principle will find the natural Consequences of it to be That the Prince and People must not only Live in a constant jealousy and dread of one another but must always be imbark'd in an intestine War. Nor is it to be avoided unless either by the King 's arriving at the height of Tyranny and the Peoples sinking into the Abyss of Slavery or by the Subjects grasping the whole Power and Authority and leaving unto the King an empty Name Yea it is a destroying of the very end for which Government was ordained of God and submitted unto by Men seeing that was nothing else but that the whole Society comprehending Ruler and Ruled might have but one Common Political Interest for the Defence and Security whereof each of them were to have their respective Duties alloâ—ted unto them Nay the very Prerogative acknowledged to belong unto the King is nothing save a Power trusted with him in Relation to some Cases that may emerge by which he may be the better enabled to preserve the safety of the Community and to provide for the benefit of the Publick Nor could Sir J D le take a more effectual Course to supplant the King in the Hearts of his People and to possess them with a Horror of and an Alienation from his Government than by his Proclaiming within the Parliament Walls That the King hath a separate Interest from that of his People and by Consequence that he is to promote and maintain it with the Neglect if not the Ruine of theirs neither is there any thing more propable than that the Advocate vented it in Treachery to his Majesty whom out of a Love to the late King and a Desire to have him restored he seeks to undermine and betray For he hath hereby so alarm'd the People in reference to His Majesties Government and fill'd them with those dismal Apprehensions of what they are to expect in case the King have a separate Interest from Theirs that it will be difficult either to allay their Fears or to recover them to an intire Trust in his Majesties Justice and Goodness without removing that Man both from about his Majesties Person and out of his Councils who hath given them that frightful Idea of his ensuing Reign However from this of the Advocate as well as from innumerable Observations to be made from the present Behaviour and Conduct of those who are received into his Majesties Councils and Service after they had not only ministered to King James through the whole Course of his Reign but co-operated with him in most if not all the Methods of his Tyranny we may rationally venture at this Reflection to wit That they are either endeavouring to justify the former Reign by seeking to expose and disgrace this Or that they are studying to cover themselves from what they are obnoxious unto for their Crimes under the last Government by reacting and repeating the same under the Connivance and Indulgence of the present And as by the First they evidently shake his Majesties Throne so by the Second they not only abuse the Mercy of the Government but despise its Justice By the Last they render the Government Vile and Cheap and by the former they pursue its Subversion It must with all lay a great Prejudice upon the Opinion of those that disswade his Majesty from gratifying his People in these Demands about which so much noise has been made here as well as there that they were judged necessary for his Interest as well as the Kingdoms Safety by in a manner the Unanimous Vote of the whole Parliament and of which it may
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