subject to Parliaments and inferiour to them and owe their private Rights to a municipal Law and so may and ought in point of Right to be regulated by them And yet I am very clear that a Parliament cannot arbitrarily debar the eldest Son of a private Family and devolve the Succession upon the younger and if they did so their Acts would be null But if this argument were good we might as well conclude by it that no person born out of England or attainted of Treason could succeed to the Crown because he could not succeed to a private Estate All which and many more instances do clearly demonstrate that the Successor to the Crown cannot be debarr'd nor the Succession to the Crown diverted by Act of Parliament The last objection is that Robert the III. King of Scotland was by an Act of Parliament preferr'd to David and Walter who as he pretends were truly the eldest lawful Sons of Robert the 2 d. because Euphan Daughter to the Earl of Ross was first lawful Wife to King Robert the 2 d and she bore him David Earl of Strathern and Walter Earl of Athol Alexander Earl of Buchan and Euphan who was married to James Earl of Dowglass after whose decease he married Elizabeth Muir Daughter to Sir Adam Muir not so much as Buchannan observes from any design to marry a second Wife as from the great love he carried to Elizabeth Muir whom because of her extraordinary Beauty he had lov'd very passionately in his youth and before he married the Earl of Rosses Daughter and from the love which he bore to the Sons whom Elizabeth had born before that first Marriage who were John Earl of Carrick who thereafter succeeded to the Crown by the Title of Robert the 3 d and Robert Earl of Fife and Monteith he prevail'd with the Parliament to prefer John eldest Son by Elizabeth Muir to the two Sons which he had by the Earl of Rosses Daughter who was as they pretend his first lawful Wife In which though I might debate many nice points of Law relating to this Subject yet I chuse only to insist on these few convincing answers 1. That in a Case of so great moment Historians should be little credited except they could have produc'd very infallible Documents and as in general one Historian may make all who succeed him err so in this Case Boetius who was the first liv'd and wrote 200 years after the Marriage of King Robert the 2 d and wrote his History at Aberdeen very remote from the Registers and Records by which he should have instructed himself nor did he know the importance of this point having touch'd it only transiently though it has been design'dly press'd by Buchannan to evince that the Parliaments of Scotland might prefer any of the Royal Line they pleas'd and it is indeed probable that King Robert the 2 d. did for some time make no great noise of his first Marriage with Elizabeth Muir least the meanness of the Match should have weaken'd his Interest upon his first coming to the Crown he being himself the first of the Race of the Stuarts and having so strong Competitors as the Earl of Dowglass who claim'd Right to the Crown in the Right of the Baliol and the Cummings as Boetius himself observes 2. King Robert the 3 d. having succeeded as the eldest lawful Son and having been receiv'd as such by that Parliament and his Posterity by all succeeding Parliaments the Possession of the King and the Acquiesence of the People is the most infallible proof that can be adduc'd for proving that Robert was the eldest lawful Son nor have most Kings in Europe or the Heads of most private Families any other proof of their being the eldest and Lawful Sons save that they succeeded and were acknowledg'd as such 3. To ballance the Authority of these Historians I shall produce the Testimony of the Learned Sir Lewis Stewart one of the most famous Lawyers we ever had and who ought much more to be believ'd than Buchannan not only because he was more disinterested but because he found upon Acts of Parliament and old Charters which he himself had seen in the Registers in which Elizabeth Muir is acknowledg'd to have been the first Wife Buchananus lib. 9. in vita Roberti 2. affirmat Euphaniam Comitis Rossenssis filiam primam Regis Roberti 2. uxorem fuisse ea mortua Regem superinduxisse Elizabetham Moram ex qua prius Liberos ternos mares suscepisset et eam uxorem duxisse ejusque liberos regno destinasse ut postea â—orum natu maximus successit quod quam fâ—lsum sit apparet ex archivis in carcere Edinburgensi reconditis ubi exstant separata acta duorum Parliamentorum subscripta manibus Ecclesiasticorum praefalum nobilium baronum aliorum statuum Parliamenti eorum sigillis roborata quibus Elizabetha Mora agnoscitur prima uxor Euphania Rosse secunda liberis ex Elizabetha Mora tanquam justis haeredibus Regni successive regnum decernitur post eos liberis Euphaniae Rosse nec non ibidem cartae extant plurimae factae per Davidem secundum eorum patruum magnum ex diversis terris Joanni filio primogenito nepotis ejus Roberti dum Euphania Rosse viveret nec non Davidi filio natu maximo Euphaniae Rosse quem solum filium indigitat Roberti nepotis quod non fecisset si Elizabetha Mora non prius fuisset nupta Roberto ejus nepoti nam primogenitus nunquam attribuitur notho imo ego plures quam viginti cartas in archivis inveni ubi etiam eas reliqui ex quibus sole clarius elucessit Elizabetham Moram primam fuisse uxorem Euphaniam Rosse secundam nam extra controversiam liberi Elizabethae Morae aetate grandiores erant liberis Euphaniae Rosse which Paper I did get from the Lord Pitmeden who has himself written some learned Observations upon this Point 4. I have my self seen an Act of Parliament found out by the industry of Sir George Mackenzie of Tarbet now Lord Register having the intire Seals of the Members of Parliament appended thereto by which the Parliament do swear Allegiance to Robert the Second the first King of the Race of the Stuarts and after him Roberto Comiti de Carrict filio suo natu maximo his eldest Son in Anno 1371. which was the first year of his Reign I have also found out a Copy of an Act of Parliament amongst the Records of the late famous Lord Register Skeen which I think fit to insert word for word at the end of this Treatise in Latin the substance whereof in English runs thus That a Parliament being call'd at Scoon the 4th of April Anno 1373. and third year of the Reign of King Robert the Second on purpose to secure the Succession and to prevent all disorders that might afterwards arise in any part of the Kingdom about Titles to the Crown It was Enacted by the said
thereafter King Robert the 2 d. his eldest Son and Heir but the attestation of the Grand-Uncle King David who could be no ways byassed in the Affair and here he is ranked before the three eldest Earls in the Nation who were then the three first Subjects therein and it is against all Sense to think that the whole Bishops would have sought the consent of the said John as Apparent Heir of the Crown if he had not been Apparent Heir I find also that Fordon calls him when he is crown'd King Primogenitus Roberti secundi nor was there the least opposition made to his Coronation nor to the Coronation of Annabella Drummond his Queen a Daughter of the House of Stob-hall now Pearth though both the Sons of the second Marriage were then alive I find also that Boetius himself acknowledges that the Earl of Marches Son George being pursu'd for having married clandestinely one of the Daughters of Eliz. Muir his defence was that he married her when she was the Daughter of a private Subject and before King Robert was King whereas if she had been only a bastard-Bastard-Daughter it could have been no Crime to have married her 7. Walter who they pretend should have succeeded to the Crown having kill'd his Nephew King James the first Son to King Robert the 3 d He was not only not own'd after the death of the said King James as certainly he had been if his Title had been good and his Right so recent and demonstrable having so many great and powerful Relations that his Father was induc'd upon their account to marry his Mother but yet the said Walter was by all the Parliament unanimously condemn'd as a Traitor for having conspir'd the death of his lawful Prince Nor does Boetius justifie Walter 's Title in the least but on the contrary magnifies the Parliament for their just Sentence As did likewise Aeneas Silvius the Popes learned Legat who exhorted the Parliament to condemn him 8. How is it imaginable that King Robert who had so lately and after a strong Competition come to the Crown would have adventur'd to make his Title yet more disputable by preferring a Bastard to the true Heir who had so many Friends by his Mother and who being an Infant had never disoblig'd him 9. If we will consider the opinion of the Civilians whom we and almost all Nations follow in the Cases of Succession we will find that the said King Robert the third was the eldest and lawful Son of King Robert the second Filius legitimus non legitimatus For 1. They conclude that a Son is prov'd to be a lawful Son by the Assertion of the Father Alciat tract praesumpt Reg. 1. praesumpt 2. numb 6. and certainly the Father is the best Judge in such Cases but so it is we have the Father owning the said Robert the 3 d. to be his eldest Son and Heir both in Charters and Acts of Parliaments which are the most solemn of all Deeds 2. Quando pater instituit aliquem tanquam filium suum which holds in this Case where the Father institutes and leaves him Heir and the Parliament swears Allegiance to him as the Heir Muscard de prob vol. 2. conclus 799. And in dubious Cases the Father's naming such a man as a Son presumes him to be a lawful Son nominatio parentis indueit filiationem in dubio l. ex facto § si quis Rogatus ff ad trebell 3. Even Fame and the common opinion of the People do in favours of these that are in Possession and in antient Cases prove filiationem legitimationem Mascard conclus 792. but much more where the Fame and common Opinion is supported by other Arguments fulgos consil 128. Panorm in cap. transmiss qui filii sunt legitimi 4. When Writs are produc'd calling a man a Son the Law concludes him to be a lawful Son Muscard vol. 2. conclus 800. num 15. all which can be easily subsum'd in our Case In which Robert the 3 d. is nam'd not only Son but Heir and Allegiance sworn to him even in the life-time of the second Wife and her Relations sitting in Paliament and all this acquiesc'd in for many hundreds of years and the Competitors punish'd as Traitors by the unanimous consent of all the Parliament I know that Buchannan does most bitterly inveigh against those Laws made by King Kenneth the 3 d as Laws whereby the ancient Right of Succession was innovated and whereby the Government was setled upon Children who were neither able to consult with the People nor to defend them and whereby those had the Government of the Nation conferr'd upon them who were not capable to Govern themselves To which my Answer is That in this Buchanan's Malice contradicts his History for his own History tells us That the Scots swore Allegiance to Fergus and his Posterity and consequently Fergus's Son ought by Law to have succeeded and not his Brother for his Brother was none of his Posterity and therefore those Laws made by King Kenneth did but renew the old Law and the Innovation introduc'd in favours of the Uncles was a subversion of the fundamental Law to which they had sworn 2. That the old Law was not abrogated but was in Being by vertue of the first Oath appears very clear by Buchanan himself who confesses that upon the death of Durstus a wicked Prince it was debated whether his Son should not succeed juxta sacramentum Fergusio praestitum veteremque esse morem servandum which acknowledgeth that the Succession was even in those days established by Law by Oath and by Custom and after the death of Fergus the second his Son Eugenius though a Minor was Crown'd and his Uncle Graemus allow'd to be his Guardian And Buchanan also brings in Bishop Kennedy lib. 12. praising this Law as made by Kenneth a most wise and glorious Prince with advice of all his Estates of Parliament and which rather confirms as he says the old Law than introduces a new one So far did Buchanan's Rage against Queen Mary prevail with him to praise and rail at the same individual Law and it is observable that it is very dangerous to recede once from fundamental Laws for Buchanan makes not only the Succession Elective but he makes no difference betwixt lawful Children and Bastards and excludes not only Minors during the Uncle's life but Women for ever 3. In all Nations where the Monarchy is Hereditary Minors succeed and so this innovation of causing the next Male succeed for all his Life was contrary to the Nature of the Monarchy and to the Customs of all Nations and God in Scripture gives us many instances of it Joas succeeded when he was seven years of age Josiah when he was eight Manasseh in twelve and Azariah in sixteen And yet in those days God is said to have chosen the King for it is said in Deuteronomy Thou shalt set over thee the King whom I have chosen and consequently the choice of
VI. and the II III IV. Acts Parl. 1. CHARLES II. And by our Oath of Allegiance we are bound to bear faithful and true Allegiance to his Majesty his Heirs and Lawful Successors which word LAWFUL is insert to cut off the pretences of such as should not succeed by Law and the insolent arbitrariness of such as being but Subjects themselves think they may chuse their King viz. Act 1. Parl. 21. JAMES the VI. That this right of Succession according to the Proximity of Blood is founded on the Law of God is clear by Num. Chap. 27. v. 9. and 10. If a man hath no Son or Daughter his Inheritance shall descend upon his Brother by Num. 36. Where God himself decides in favour of the Daughters of Zelâ—phehad telling us it was just thing they should have the inheritance of their Father And ordains that if there were no Daughters the Estate should go to the Brothers St. Paul likewise concludes Rom. 8. If Sons then Heirs looking upon that as a necessary Consequence which if it do not necessarily hold or can be any way disappointed all his divine reasoning in that Chapter falls to nothing And thus Ahaziah 2 Chron. 22. v. 1. was made King though the youngest in his Fathers stead because says the Text The Arabians had slain all the eldest which clearly shews That by the Law of God he could not have succeeded if the eldest had been alive We hear likewise in Scripture God oft telling By me Kings reign And when he gives a Kingdom to any as to Abraham David c. he gives it to them and their Posterity That this Right of Succession flows from the Law of Nature is clear because that is accounted to flow from the Law of Nature which every man finds grafted in his own heart and which is obey'd without any other Law and for which men neither seek nor can give another distinct Reason all which holds in this Case for who doubts when he hears of an Hereditary Monarchy but that the Next in Blood must succeed and for which we need no positive Law nor does any man enquire for a further Reason being satisfied therein by the Principles of his own heart And from this ground it is that though a remoter Kinsman did possess as Heir he could by no length of time prescribe a valid Right since no man as Lawyers conclude can prescribe a Right against the Law of Nature and that this Principle is founded thereupon is confest l. cum ratio naturalis ff de bonis damnat cum ratio naturalis quasi lex quaedam tacita liberis parentum haereditatem adjecerit veluti ad debitam successionem eos vocando propter quod suorum haeredum nomen eis indultum est adeo ut ne à parentibus quidem ab ea successione amoveri possint Et § emancipati Institut de haered quae ab intest Praetâ—r naturalem aequitatem sequutus iis etiam bonorum possessionem contra 12 tabularum leges contra jus civile permittit Which Text shews likewise That this Right of Nature was stronger than the Laws of the Twelve Tables though these were the most ancient and chief Statutes of Rome which Principle is very clear likewise from the Parable Matth. 21. where the Husband-men who can be presum'd to understand nothing but the Law of Nature are brought in saying This is the Heir let us kill him and seize on his inheritance Nor does this hold only in the Succession of Children or the Direct Line but in the collateral Succession of Brothers and others L. hac parte ff unde cognati Hac parte proconsul Naturali aequitate motus omnibus cognatis permittit bonorum possessionem quos sanguinis ratio Vocat ad haereditatem Vid. l. 1. ff de grad l. 1. § hoc autem ff de bonor possess And these who are now Brothers to the present King have been Sons to the former and therefore whatever has been said for Sons is also verified in Brothers As for instance though his Royal Highness be onely Brother to King CHARLES II. yet He is Son to King CHARLES I. and therefore as St. Paul says If a Son then an Heir except he be secluded by the Existence and Succession of an elder Brother That this gradual Succession is founded on the Law of Nations is as clear by the Laws of the Twelve Tables and the Praetorian Law of Rome And if we consider the Monarchy either old or new we will find That where ever the Monarchy was not Elective the degrees of Succession were there exactly observed And Bodinus de Republ. lib. 6. cap. 5. asserts that Ordo non tantum naturae divinae sed etiam omnium ubique gentium hoc postulat From all which Pope Innocent in c. grand de supplend neglig praelati concludes In regnis haereditariis caveri non potest ne filius aut frater succedat And since it is expresly determined That the Right of Blood can be taken away by no positive Law or Statute L. Jura Sanguinis ff de Reg. jur L. 4. ff de suis legitim And that the power of making a Testament can be taken away by no Law L. ita legatum ff de conditionibus I cannot see how the Right of Succession can be taken away by a Statute for that is the same with the Right of Blood and is more strongly founded upon the Law of Nature than the power of making Testaments Since then this Right is founded upon the Law of God of Nature and of Nations it does clearly follow That no Parliament can alter the same by their municipal Statutes as our Act of Parliament has justly observed For clearing whereof it is fit to consider That in all Powers and Jurisdictions which are subordinate to one another the Inferior should obey but not alter the Power to which it is subordinate and what it does contrary thereto is null and void And thus If the Judges of England should publish Edicts contrary to Acts of Parliament or if a Justice of Peace should reverse a Decree of the Judges of Westminster these their endeavors would be void and ineffectual But so it is that by the same Principle but in an infinitely more transcendent way all Kings and Parliaments are subordinate to the Laws of God the Laws of Nature and the Laws of Nations and therefore no Act of Parliament can be binding to overturn what these have established This as to the Law of God is clear not only from the general Dictates of Religion but 28 Hen. 8. cap. 7. the Parliament uses these words For no man can dispense with God's Laws which we also affirm and think And as to the Laws of Nature they must be acknowledged to be immutable from the principles of Reason And the Law it self confesses that Naturalia quaedam jura quae apud omnes gentes peraeque observantur divina quadam providentia constituta semper firma atque immutabilia permanent § sed naturalia
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
King Robert the Second with the Advice and Consent of the whole Three Estates That the Sons then born to the King by his first and second Wives and their Heirs should in order succeed to the King in manner after specified That is to say that his eldest Son by the first Marriage John Earl of Carrick should immediately succeed as had been already declar'd in the preceding Parliament and after him his Heirs And in case he dy'd without Issue that his Brother Robert Earl of Monteith the King 's second Son of that Marriage should succeed and his Heirs Which failing that Alexander Earl of Badenoch the King 's third Son of that Bed and his Heirs should inherit the Crown And in case that fail'd that David Earl of Strathern the King 's fourth Son by his second Wife and his Heirs should succeed And that failing that Walter the King 's fifth Son by the said second Wife and his Heirs should inherit the Crown And if it should happen that the said five Sons and their Issue should fail that then the next in Blood of the Royal Line should succeed Which Act all the Three Estates did for themselves and their Heirs for ever solemnly swear to observe as is more at large to be seen in the Original it self And if the pretended Defect be true it was a very palpable and a very undeniable one and could not but have been unanswerably known to the whole Nation And how can we imagine that the whole Parliament would have unanimously drawn upon themselves so dreadful a Perjury by excluding the lawful Heir against their National Oath in the Reign of King Kenneth the third whereby they swore to own always the immediate Heir or that they would have entail'd upon themselves a Civil War by preferring even a questionable Heir after the Miseries which they had lately then felt in the Competition betwixt the Bruce and the Baliol amongst which Seals the Seal of James Earl of Dowglas is one and how ridiculous is it to think that he would sit and declare a Bastard preferable to the Brother of his own Lady and to his own Lady who would have succeeded if her Brothers had died without Succession Which Act of Parliament does also clearly prove that Buchanan did not at all understand matters of Fact in this part of the History for he asserts that after the death of Euphan Ross the King married Elizabeth Muir and did by Act of Parliament obtain the Crown to be setled upon Robert the third Son to the said Elizabeth Muir upon whom he also bestow'd the Title of Carrick all which is most false for this Act of Parliament is dated in Anno 1371. and King Robert the second succeeded to the Crown that year nor did Euphan Ross die till the third year after he succeeded to the Crown and so not till the year 1374. and yet in Anno 1371. this Act is past designing him Heir to the Crown and Earl of Carrick and consequently he was so design'd before the death of Euphan Ross 5. I have seen a Charter granted by King Robert the 2 d when he was only Steward of Scotland in anno 1365 and so long before he was King In which Charter likewise John thereafter King by the name of Robert the 3 d is a conjunct Disponer with him under the express designation of the eldest Son and Heir Robertus Senescallus Scotiae Comes de Strathern Joannes Senescallus primogenitus haeres ipsius Dominus Baroniae de Kyle c. which Charter confirms to the Abbacy of Pasley several Lands disponed to them by Reginaldus More Father to Sir William More of Abercorn And I find that David Duke of Rothsay was alwayes in the Charters granted by his Father King Robert the first called Primogenitus and he was no Bastard nor can this designation be given to a Bastard as is clear by Covaruvias de Matrim part 2. cap. 8. § 2. num 4. But how can it be imagined that the Monks of Pasley would have taken a Right from a person as Heir to the Crown who was not for this would have infer'd Treason against them beside the annulling their Right or who could understand better the lawfulness of a Marriage than a body of Church-men living in the time and very near to the Residence of the married Persons and in whose Conventual-Church the said King Robert and Elizabeth Muir lie buried together Item I have seen in the Registers another Charter granted by King Robert the 2d in the first year of his Reign with the consent of John Earl of Carrick primogenitus haeres Allano de Lavidia terrarum de Whitslet And another granted by the said King 1. June anno primo regni confirming to Paulo Metire a Charter granted by the Earl of Ross Father to Euphan wherein the said John primogenitus haeres is a Witness And to shew that the said Euphan Ross was then living when he was so design'd Heir there is a Charter to her by the King upon the very same day of the Lands of Lochleaven As also there is a Charter granted by King Robert the 2 d the first year of his Reign to Alexander his Son and another to John Kennedy of the Barony of Dalrymole in both which the said John Earl of Carrick is call'd Primogenitus and is Witness with the Earl of Dowglas so that he has been design'd eldest Son and Heir openly uncontrovertedly and in all Papers and with the consent of the second Wife and her Relations 6. In the Parliament 1372. the said John Earl of Carrick is design'd to be Lieutenant of the Kingdom and all the Estates of Parliament swear to own him in his Government and which Statute is printed amongst the Statutes of King Robert the second Father to the said John and which must be during the Marriage with Euphan Ross for she liv'd three years after her Husband was King and he succeeded to the Crown Anno 1371. And this also confutes Buchanan who asserts that he was created Earl of Carrick after the death of Euphan Ross and it is against all sense and reason to think that he could have been acknowledg'd during her life if he had not been the true apparent Heir of the Crown and a lawful Son I have also seen in Fordon's History lib. 14. pag. 73. a Charter granted by King David to the Bishops with the consent of Robert his Nephew and his Sons giving power to the Bishops to dispose in Testament upon their own Moveables which before that time did by a corrupt custom fall to the King in which Charter the Witnesses are Robertus Senescallus Comes de Strathern Nepos noster Joannes Senescallus Comes de Carrict filius suus primogenitus haeres Thomas Comes de Mar Georgius de Dunbar Comes de March Gulielmus Comes de Dowglass so that here is not only the attestation of the Father before he was King naming John Earl of Carrick
of the Argument seems either to prove nothing or else to prove that there can be no Elective Monarchies To this it is answered that even in Elective Monarchies the Nomination proceeds only from the People but the Royal Power from God as we see in inferiour Magistracies such as Burrows Royal c. the People Elect and so the Nomination is from them but the power of Governing proceeds from the King and not from the Electors and therefore as the People who Elected the Magistrates in these Towns cannot Depose them by their own Authority so neither can the People Depose their King but the punishment of him belongs to God Almighty I confess that if the People Choose a King with express Condition that they may punish him as the Lacedaemonian Kings were punishable by those Magistrates call'd the Ephori the Kings are in that case accountable to the People but then they are not Monarchs having supream Power as our Kings have and who are therefore declar'd to hold their Power immediately from God and not to be at all punishable by the People The 4th Argument that I shall use for proving that our Kings derive not their power from the People shall be from the natural Origin of Monarchy and of ours in particular which I conceive to be that Right of Paternal Power which is stated in them for understanding whereof it is fit to know that God at first created only one Man that so his Children might be Subject to him as all Children yet are to their Parents and therefore the Jesuitical and Fanatical Principles that every man is born Free and at Liberty to choose what form of Government he pleaseth was ever and is most false for every man is born a Subject to his own Parents who if they were not likewise subject to a Superiour Power might judge and punish them Capitally lead them out to War and do all other things that a King could do as we see the Patriarchs did in their own Families And as long as it is known who is the Root of the Family or who represents it there is no place for Election and people Elect only when the memory of this is lost and such as overcome the Heads of Families in Battle succeed to them in their Paternal Right If it be answered that the Father may by nature pretend to a power over his Children or it may be an Elder Brother over his younger yet there is no tye in nature subjecting Collaterals as Uncles and their descendents to those descended from the Eldest Family To this I reply that 1. This power over all the Family was justly given by nature to shun divisions for else every little Family should have erected it self in a distinct Government and the weakest had still been a Prey 2. We see that Abraham did lead out to War and in every thing act as King not only over his own Children but all the Family and whole Nations are call'd the Children of Israel the Children of Edom c. 3. That must be concluded to be establish'd by natural instinct which all men in all Ages and Places allow and follow but so it is that all Nations in all Places and Times have ever allow'd the Eldest Son of the Eldest Family to govern all descended from the Stock without new Elections and the Author of the late famous Moral Essayes hath admir'd this as one of the wisest Maxims that we have from Natural Instinct for if the wisest or strongest were to be chosen there had still been many Rivals and so much Faction and Discord but it is still certain who is the Eldest Son and this shuts out all Debate and prevents all Dissention For applying this to our Case it is fit to know that if we believe not our Historians then none else can prove that the People of Scotland did at first Elect a King that being contrary to the acknowledgements of our own Statutes and all Buchannans Arguments for restraining Kings being founded upon the authority of our Historians who as he sayes assert that K. Fergus was first Elected King by the People if he be not able to prove that our Kings owe their Crowns to the Election of the People without any inherent or previous Right all his Arguments vanish to nothing but on the other hand if we consider exactly our Historians we shall find that our Kings Reign over us by this Paternal Power and though I am not very fond of Fabulous Antiquities yet if Tradition or Histories can be believ'd in any thing they should at least be believ'd against Buchannan and those who make use of them to restrain the power of our Kings and by our Histories it is clear that Gathelus having led some Forces into Egypt he after several Victories setl'd in Portugal call'd from him Portus Gatheli from which a Colony of that Race transported it self into Ireland and another into Scotland nor should this be accounted a Fable since Cornelius Tacitus in the Life of Agricola makes the Scots to be of Spanish and the Picts to be of German Extraction The Scottish Golonies finding themselves opprest by the Britains and Picts they sent over into Ireland to Ferquhard and he sent them a considerable Supply under the Command of Fergus his Son who having secur'd them against their Enemies all the Heads of the Tribes acknowledged him for their King and swore that they should never admit of any other Form of Government then Monarchy and that they should never obey any except Him and his Posterity which if they brake they wish'd that all the Plagues and Miseries that had formerly fallen on their Predecessors might again fall upon their Posterity as the punishment of that Perjury All which Religious Vows and Promises seal'd by those dreadful Oaths voluntarly given were graven on Marble Tables and Consign'd for preservation into the custody of their Priests and these are Boetius own words Fol. 10. From which I observe 1. That as our Laws assert that our Kings derive their Power from God and not from the People so we ought not to believe the contrary upon the Faith of our Historians except they were very clear and unanimous in contradicting our Laws whereas it appears to me that our Laws agree with our History for Gathelus was not at all Elected by the People but was himself the Son of a King and did conquer by his own Subjects and Servants and all those who are descended from his Collonies were by Law oblig'd to obey the Eldest Son and Representative of that Royal Family And Ferquhard is acknowledg'd to have been his only Successor nor did ever any of the Scotish Tribes pretend to the Supremacy and our Histories bear that none of our Tribes would yield to another and the Fatal Marble Chair that came from Spain remaining with those who went to Ireland does evince that the Birth-right remain'd with them and therefore when Fergus the Son of Ferquhard came over he brought over
with him the Marble Chair which was the mark of Empire And Boetius immediately upon his arrival calls him King and Fordon the most ancient of our Historians lib. 1. cap. 36. calls him Fergusius Filius Ferardi aut Ferquhardi ex antiquorum Regum prosapia genitus qui ambitione Regnandi stimulatus magnam sibi Juvenum copiam assimulavit Albionem continuo progressus est ibidem super eos Regem primum se constituit that is to say he made himself the first King therefore K. James Basil Doron pag. 201. asserts that K. Fergus made himself King and Lord as well of the whole Lands as of the whole Inhabitants 2. We read nothing at all of the consent of the People but of the Heads of the Tribes who had no Commission from the People each of them having by his Birth-right a Power to Command his own Tribe and consequently the Royal Power was not derived to Fergus from the People but had it's Original from this Birth-right that was both in them and Fergus and he succeeded in the Right of those Chiefs to Command their respective Families and Boetius brings in King Fergus lib. 1. num 5. Speaking of himself as a pious Parent as one who owes to them what a Parent owes to his Children sunt pij Parentes in Liberos propensi debemus vobis quod proli genitores And the consent given by the Chief of the Clanns and the People did not give but declare the former Right as our consent now does in Acts concerning the Prerogative and as the Vote of the Inquest does in the Service of Heirs and thus at the Coronation of our Kings it is still said by our Historians that such a man was declared King communi suffragio acclamatione 3. This consent being only given in the Army cannot be said to have been universally by the People nor do we read that the People did Comissionate the Army or that the Army consulted the People and in general it cannot be instanc'd that the People did in any Nation universally consent to Election nor is it possible all the People can meet And in Poland which is the only Elective Monarchy we know the Free-holders only consent and yet every private Man and Woman have as great interest according to these pretended Laws of Nature as they have potior est conditio negantis Nor do we find that the Commons and mean People have any interest in the Elections of our Magistrates or Parliament Men so that Popular freedom by Birth and the interest of the People in Popular Elections are but meer Cheats invented to engage the Rabble in an aversion to the establish'd Government when factious and insolent Spirits who cannot submit themselves to Government design to cheat the Multitude by fair Pretences and to bride them by Flattery If it be pretended that it is not certain whether King Fergus was eldest Son to Ferquhard nor is it probable that if he had been such he would have preferr'd an uncertain Conquest in Scotland to his secure Succession in Ireland To this it is answered that all our Histories bear that King Ferquhard sent his Son Fergus and when a Son is spoken of indefinitly in such Cases he is actually understood to be the Eldest 2. He brought with him the Marble Chair the mark of Empire which would not have been allow'd to a younger Brother 3. It is said that having settled the affairs of Scotland he returned into Ireland to settle the differences there about the choosing of a new King which does import that he should have been King if he had not prefer'd Scotland to Ireland and the reason of this preference was because Ireland was then divided amongst many Kings and his Predecessors had but a very small share of it at that time and Scotland being a part of a greater Isle be probably found in this greater Isle a higher flight for his Hopes and more latitude for his Ambition But albeit the Kings of Scotland had been originally and at first Elected by the People yet it does not at all follow necessarly as Buchannan Dolman and our other Republicans pretend that therefore they may reject them at their pleasure or which is all one when they imagine that the Kings Elected by them serve not the ends for which they were designed and that for these Reasons 1. It cannot be deny'd but that the People may consent to an Election of a Monarch without Limitations for from the Principles of Nature we may learn that whatever is in ones power may be by them transfer'd upon another and therefore if the People be invested with a power of governing themselves they may cartainly transfer this Power upon another and we see that all Christians and even our Republicans allow that men may sell themselves to be Slaves a custom not only mention'd but approv'd by God himself so far does consent reach beyond what is necessary for maintaining this Point 2. If this could not be then there could be no such thing as absolute Monarchies which is against the receiv'd Opinion of all Nations and against the Doctrine of all Authors who though they debate that this or that Monarchy in a particular Countrey is not Absolute yet it was never controverted by any man alive but that the People mâ—ght consent and in many places have consented to absolute Monarchies and by the famous Lex Regia amongst the Romans Populus ei in eum omne Imperium suum Potestatem transtulit instit de jur nat gent. civ § 6. Mention'd likewise by that Famous Lawyer Vlpian l. 1. ff de constitut Princ. 3. We see this consequence to be very false in many other cases and therefore it cannot be necessary here for we find that a man chooses a Wife yet it is not in his power to put her away Cardinals choose the Pope and Chapters the Bishop and yet they cannot depose them the Common Council choose Magistrates and yet they cannot lay them aside 4. This Reasoning is condemn'd as most fallacious by most learn'd and disinterested Lawyers and therefore it cannot be infallible as is pretended vide Arnisaeum cap. 3. num 2. Haenon dis Pol. 9. num 44. Panorm ad cap. 4. de Cler. non residend Zasius ad l. non ambigitur num 3. ff de legibus Nor have any Lawyers differ'd from this common opinion of mankind except some very few who have differ'd from a Principle of Pique rather than of Judgment The next thing that I am to prove in this my first Proposition is That Our King is an absolute Monarch and has the Supream Power within this his Kingdom and this I shall endeavour to prove First From our positive Law 2. By several Reasons deduc'd from our Fundamental Laws and Customs 3. From the very nature of Monarchy it self and the Opinion of Lawyers who write upon that Subject and who define Absolute Monarchy to be a Power that is not limited or
project I find also that as the debarring the Right Heir is in reason the fruitful seed of all Civil War and misery for who can imagine that the Right Heir will depart from his Right or that wise men will endanger their lives and fortunes in opposition to it so experience has demonstrated how dangerous and bloody this injustice has prov'd Let us remember amongst many Domestick examples the miseries that ensu'd upon the exclusion of Mordredus the Son of Lothus the destruction of the Picts for having secluded Alpinus the Right Heir the Wars during the Reign of William the Conqueror those betwixt King Stephen and Henry the II betwixt the Houses of Lancaster and York betwixt the Bruce and the Baliol the murther of Arthur Duke of Britanny true Heir of the Crown of England with many other foreign Histories which tell us of the dreadful mischiefs arising from Pelops preferring his youngest Son to the Kingdom of Micene from Aedipus commanding that Polinices his youngest Son should reign alternately with the eldest from Parisatis the Queen of Persia's preferring her youngest Son Cyrus to her eldest Artaxerxes from Aristodemus admitting his two Sons Proclus and Euristhenes to an equal share in the Lacedaemonian Throne The like observations are to be made in the Succession of Ptolemaeus Lagus and Ptolemaeus Phisco In the Sons of Severus in the Succession of of Sinesandus who kill'd his Brother Suintilla Righteous Heir of Spain and that of Francis and Fortia Duke of Millan with thousands of others In all which either the Usurpers or the Kingdom that obey'd them perish'd utterly To prevent which differences and mischiefs the Hungarians would not admit Almus the younger Brother in exclusion of the elder Colomanus though a silly deform'd Creature albeit Almus was preferr'd by Ladislaus the Kings eldest Brother to both Nor would France acquiesce in St. Lewis's preferring CHARLES's third Son to Lewis the Eldest And the English refus'd to obey Lady Jean Gray in prejudice of Queen Mary though a Papist and persecuter Tali constanti veneratione nos Angli legi timos Reges prosequimur c. says an English Historian Seventhly If Parliaments had such Powers as this then our Monarchy would not be hereditary but elective the very essence of an hereditary Monarchy consisting in the right of Succession according to the contingency of blood Whereas if the Parliament can prefer the next save one they may prefer the last of all the Liue for the next save one is no more next than the last is next And the same reason by which they can chuse a Successor which can only be that they have a Power above him should likewise in my opinion justifie their deposing of Kings And since the Successor has as good right to succeed as the present King has to Govern for that Right of blood which makes him first makes the other next and all these Statutes which acknowledge the present Kings Prerogatives acknowledge that they belong to him and his Heirs it follows clearly that if the Parliament can preclude the one they may exclude the other And we saw even in the last age that such reasons as are now urged to incapacitate the Children of our last Monarch from the hope of Succession viz. Popery and arbitrary Government did embolden men to Dethrone and Murder the Father himself who was actual King Eighthly That such Acts of Parliament altering the Succession are ineffectual and null is clear from this that though such an Act of Parliament were made it could not debar the true Successor because by the Laws of all Nations and particularly of these Kingdoms the right of Succession purges all defects and removes all impediments which can prejudge him who is to Succeed And as Craig one of our learn'd Lawyers has very well express'd it tanta est Regii sanguinis praerogativa dignitas ut vitium non admittat nec se contaminarep atiatur And thus though he who were to succeed had committed Murther or were declar'd a Traitor formerly to the Crown for open Rebellion against the King and Kingdom yet he needed not be restor'd by Act of Parliament upon his coming to the Crown But his very Right of blood would purge all these imperfections Of which there are reasons given by Lawyers one is that no man can be a Rebel against himself nor can the King have a Superior And consequently there can be none whom he can offend And it were absurd that he who can restore all other men should need to be restored himself The second reason is because the punishment of crimes such as confiscations c. are to be inflicted by the Kings Authority or to fall to the Kings Thesaury and it were most absurd that a man should exact from himself a punishment Like as upon this account it is that though in the Canon Law Bastards cannot be promoted to sacred orders without dispensation nor can alibi nati that is to say People born out of England be admitted to succeed in England by express Act of Parliament there Yet Agapaetus Theodorus Gelasius and many others have been admitted to be Popes without any formal dispensation their election clearing that imperfection And the Statute of alibi nati has been oft found not to extend to the Royal Line That the Succession to the Crown purges all defects is clear by many instances both at home and abroad The instances at home are in England Henry the VI. Being disabled and attainted of High-Treason by Act of Parliament it was found by the Judges notwithstanding that from the moment he assum'd the Crown he had Right to succeed without being restored And the like was resolved by the Judges in the case of Henry the VII as Bacon observes in his History of Henry the VII Fol. 13. And in the case of Queen Elizabeth who was declar'd Bastard by Act of Parliament as is clear by Cambden anno 2 Elizabeth And though in Scotland there be no express instances of this because though some Rebellious Ring-leaders in Scotland have often in a private capacity been very injurious to their King Yet their Parliaments have been ever very tender of attainting the Blood-Royal or presumptive Heirs But Alexander Duke of Albany and his Succession being declared Traitours by his Brother King James the IV his Son John was notwithstanding called home from France upon his Uncles death and declar'd Tutor and Governour without any remission or being restor'd That Employment being found to be due to him by the right of Blood Therefore he had been much more declared the true Successor of the Crown if his Cousin King James the V. had died These being sufficient to establish our design I shall mention only some forraign stories CHARLES the VII of France who though banish'd by Sentence of the Parliament of Paris did afterwards succeed to the Crown And though Lewis the XII was forfeited for taking up Arms against CHARLES the VIII yet he succeeded to him