be modestly said that it is not only one of the wisest but constituted of the most considerable Persons for Quality Estate and Esteem in their Country that ever Scotland had For even the Vote about the Lords of the Session which is most censured and stumbled at pass'd the whole House without any more dissenting Voices than barely four and of those Sir J. D ple who was the leading Man amongst them sensibly biassed by the Consideration that if the Vote obtained his Father would have been excluded from the Honourable and to him Beneficial Place of President to which he is now advanced Is it not more likely that these few should act without regard to the King and Kingdom 's Interest and depart from the Laws Rights and Customs of the Realm thâ—n that the whole Body of the Parliament should be unacquainted with what the Constitution as well as the common Safety of Prince and People authorize them to claim And that they should exceed the measures of Law Justice and Equity in what they demand Nor was the Parliament under the Influence of such Motives for encroaching upon the King's Prerogative as these Gentlemen were for betraying both the Jurisdiction of Parliament and the Priviledges of the Nation For having sacrificed all the Laws and Rights of the Kingdom under the late Reign to the Lust and Will of one Arbitrary and Despotical Monarch they could do no less both by the Rules of Policy and Uniformity than endeavour to vest his present Majesty in the Robberies of former Princes there being no such way for Thieves to escape at the Bar as to prevail with the Judg to receive and harbour their stolen Goods And for the King to rely upon being informed by Sir J. D pie what is the Prerogative of the Crown and what are Rights and Jurisdictions of Parliament is as if King James's Attorney-General were to be made the Oracle of the Court in reference to what Crimes and Offences Peers and Gentlemen were to be condemned and executed for and for what Failures and Miscarriages Cities and Corporations were to Forefault their Charters and to be deprived of their Franchises Could the Parliament have been guilty of so Impudent as well as Criminal a Thing as to incroach upon the just Prerogatives of the Crown and to rob his Majesty of his legal Rights it would have been more for their Profit and Interest to have effectuated it in relation to the disposal of Offices of state and of Military Commands than to claim meerly a right of interposing and that only in the Case of a total Vacancy of the Session about the approving of Persons nominated by His Majesty to judicial Places For whereas the former would look like the putting themselves into a condition of giving check to their Prince whenever a Capriciâ— should take them and they should fancy themselves agrieved all that can be aimed at or possibly compassed by the latter is to have Justice equally administred according to the known Laws which is no less his Majesties Interest than his Duty to make wise and careful Provision for In a word it would seem to command as well as to bespeak belief that a whole Parliament who in all other Proceedings have acted with the highest Prudence Temperance and Justice and where there are so many Persons of Vertue Honour Probity and Knowledg of the Laws and Customs of the Nation should be more regardful of voting justly and challenging nothing but their legal Rights than that only four Men should be found insisting upon what is Right and they such as most of them have been Tools and Instruments in the Breaches made upon the Rights and Liberties of the Nation And as the whole Blame is to be intirely lodged upon a few Ministers about his Majesty both as to the delay that hath been given to redress any of the Scots Grievances and as to the disputing of the Equity and Justice of actually relieving them from some so besides the Confidence that all Good Men are possessed with from the Consideration of his Majesty's Wisdom and Goodness that all will be at last accommodated to the King's Honour and the Peoples universal Satisfaction the Concessions his Majesty hath lately granted with reference to the Articles even against the Opinion of his Ministers is as an Earnest and Pledg what his People may exspect in reference to the rest if it can be made appear that what is further insisted upon and humbly desired of him is the relieving of his Subjects and not the robbing of himself the being kind to his People and not unjust to the Crown and the exercising Mercy to all without being cruel and unrighteous to any So that we are become obliged in point of Duty to his Majesty before whom our Demands and Claims lie and from the Respect we owe to the English Nation among whom these Matters are both publickly discoursed and differently represented and censured And finally by the Justice we account due to the Parliament of Scotland whose Moderation is not only questioned by reason of their Demands but also their Loyalty I say we are become obliged by all these Motives and Inducements to enter into a detail of the several Particulars in Controversy between some of his Majesty's Ministers and the Parliament of Scotland and not only to state with what distinctness we are able the several heads subjected to debate but to give all that support enforcement from Reason Law and Custom to the Expediency as well as Equity of them that we judg to be requisite and that we can dispatch in the narrow room which we have confined our selves unto In pursuance of which undertaking We will begin with the Vote to which the Royal Assent is not given that referreth to the disabling and precluding Persons from publick Trusts and Imployments And this we the rather do both because we can discharge our Hands the soonest of it and because it is the most censured by some of the English from an apprehension that what of this Nature passeth into an Act at Edinburgh may be drawn into President at Westminster But that every one may judge of it and what shall be offered in the Vindication of the Necessity and Justice thereof I shall present the Reader with a Transcript of the Vote The King and Queens Majesties considering that the Estates of this Kingdom have by their Vote declared their Sense and Opinion That such as have in the former Evil Government been grievous to the Nation or have shewed Disaffection to the happy Change by the Blessing of God now brought about or have been Retarders and Obstructers of the good Designs of the said Estates in their Meeting are not fit to be imploy'd in the Management of the Affairs of this Kingdom Do with Advice and Consent of the Estates of Parliament now Assembled Statute and Ordain That no Person of whatsomever Rank or Degree who in the former Evil Government have been grievous to the Nation
Therefore we complain not of His Majesty for the delaying the Satisfaction that his People waited for but we complain of those ill Men who told him That to part with the Lords of the Articles was to throw away the brightest Jewel of his Crown Whereas it appears from what hath been said that there is nothing desired whereby His Majesty's Legal Prerogative can be diminished and lessened but that all which is humbly craved is the redeeming his Parliament and People from an ignominious and burthensom Yoke and their being reliev'd from the Invasion and Usurpations made upon their Laws and Customs by the Craft and Violence of some of their Monarchs Nay the very contending for the continuing the Officers of State as Supernumerary in their Committees without the being Elected unto them by the Estates in Parliament in both an Aspersion upon the Wisdom of the Parliament as if they knew not how to pay the respect and deference due to those Officers till compell'd unto it and a Reflection upon their Loyalty as if no Persons could be tender or regardful of His Majesties Interest among the Committees of Parliament unless received into the King's immediate Service and brought under the Influence of Honours and Emoluments But whosoever suggests this unto the King must be one that is accustomed to draw other Mens Pictures by his own Original and who by acting in all things himself as a Mercenary strives to represent the rest of Mankind as equally Base and Villanous Nor can that Advice insinuated into His Majesty of having the Officers of State Supernumerary in the Committees of Parliament be supported by any reason but what borders upon Treason which is the King 's having and being obliged to pursue a separate interest from that of his People and as nothing would more Universally lose His Majesty the Hearts of his People than the being wrought into a belief of it so whatsoever is likely to tempt them into such a persuasion is at all times but especially at this to be industriously avoided by the King. The only thing remaining wherein His Majesty's Parliament of Scotland seems to be misunderstood by him is their Vote concerning the Nomination of the ordinary Lords of the Session and the Election of the President For that which they propose both as required by and agreeable unto their Laws and as necessary in order to the equal Administration of Justice is That the ordinary Lords being in a total Vacation nominated by the King they are to be Tryed and Admitted or Rejected by Parliament and that in a particular Vacation being likewise nominated by the King they are to be Tryed and Admitted or Rejected by the other Lords of Session and that in both cases the President be chosen by the Lords of Session themselves Now this being the great Matter wherein His Parliament is represented unto him as endeavouring to encroach upon and subvert His Royal Prerogative and it being the particular in reference unto which he hath been prevailed upon to exert an Authority to that height and degree that there seems no room left for any expedient but that either the Parliament must depart from their Vote or that His Majesty would be pleas'd to part with those who through abusing his Goodness have misled him into an exercise of Royal Power which the Laws cannot justifie It will be absolutely needful that the Reader in order to his being inabled to form a Right and impartial Judgment of this perplexed and intangled Affair should be first made acquainted with the Vote it self as well as afterwards be informed of what is to be said in the Vindication of it The Words therefore of the Vote are as followeth The King and Queen's Majesties considering That by the Laws of the Kingdom when the place of an Ordinary Lord of the Session doth Vacate it is to be supplied by the King's Nomination of a fit and qualified Person for the said Office and presenting him to the rest of the Lords to be tryed and admitted or rejected by them And that there is now a total Vacancy of the Lords of the Session by the happy change through the Blessing of God now brought about so that there can be no such Tryal by the Lords and that when such total Vacancies have fallen out the Lords were either nominated by King and Parliament jointly or if they were nominated by the King the nomination was approved and the Lords so nominated were admitted by the Parliament Therefore Their Majesties do Declare That they will nominate fit and qualified Persons to the said Offices and present them to the Parliament to be tried and admitted or rejected by them Like as Their Majesties with the advice and consent of the Estates in Parliament Statute and Ordain that in all time hereafter when any such total Vacancy shall occur the nomination of the Lords of the Session shall be by the King or Queen for the time being and in case of their minority by their Regent they nominating fit and qualifiad Persons to the said Offices and presenting them to the Parliament to be tryed and admitted or rejected in manner aforesaid Like as Their Majesties with the advice and consent aforesaid ratify and approve the 93 d Act of the Sixth Parliament of King James the Sixth anent the admission of the Ordinary Lords of Session and Reformation of certain Abuses therein And the 132 d Act of the Twelfth Parliament of King James the Sixth anent the Jurisdiction Presentation Qualities and Age of the Lords of the Session in the whole Heads Clauses and Articles thereof and particularly the Clause contained in the said two Acts Declaring that in all times thereafter when any place should be vacant in the Session that His Majesty should nominate and present thereunto a Man fearing God of good Literature Practick Judgment and Vnderstanding in the Laws of good Fame having sâ—fficient Living of his own worth Twenty Chalders of Victual of yearly Rent and who can make good expedition and dispatch in matters touching the Lieges of the Realm and likewise that Clause contained in the 93 d Act of the Sixth Parliament of King James the Sixth Declaring that the President of the College of Justice shall be elected by the whole Senate thereof being a Man of the Conditions and Qualities above-written for chusing and electing of whom the King's Majesty and Estates dispence with that first part of the Institution of the College of Justice anent the Election of the President Declaring that in case of the absence of the Chancellor and President for the time it shall be lawful for the Lords to chuse and elect any one of their own number whom they think qualified and worthiest who shall be called Vice-President for using of the said Office ay and while the Return of the said Chancellor and President Like as Their Majesties with advice and consent aforesaid Statute and Ordain that the whole Qualifications abovementioned be duly observed in the admission of
the Ministry of the late Duke Lauderdale what Mischiefs a Person in his Post about the King may be instrumental in bringing upon the Kingdom of Scotland For tho he was endowed with too much Wit and Courage to be either hector'd or wheedl'd to be any Man's Tool and Property yet through lack of Probity on the one hand and excess of Ambition on the other he was easily prevail'd upon to become an Instrument of ruining and enslaving his Country What may Scotland then dread if a Person should be honoured with the Character and Trust of Secretary for that Kingdom in whom all the Qualifications for so considerable a Station were the sighing decently the entertaining one with a grave Nod or if you please a Grimace instead of a sold Reason the making those whom he judgeth Court-Favourites his unerring Oracles and learning the Customs Rights and Laws of his Nation from them that never did nor were obliged to know them the recommending those to be Privy-Councellors to the King who withstood his being so the favouring those in obtaining the Office of prosecuting Nocents who stand accused for endeavouring to subborn Witnesses for destroying the Innocent and as an Addition to all those Accomplishments should be so swallowed up in the immoderate Love of the World that instead of having his Thoughts exercised about the Service Grandeur and Safety of his Master should be wholly imploy'd how to ingross the considerable Places of the Kingdom for inriching his Family Into what Inconveniences may the best Prince be easily drawn if his Secretary be unable to advise him what he may legally do and what he may not With what Facility is a weak and easy Person in that Post misled by an English Minister of State who has a mind to be revenged upon Scotland for rejecting Episcopacy How may a Crafty and Treacherous Courtier that hath a purpose to play an after-game for the late King influence a Scots Secretary unskilled in the Politicks to imbroil his present Majesty with his People in Scotland and all for this that the Abdicated Monarch may have a new Throw for his Crowns again Suppose but one Person in Office about the King for the Affairs of Scotland and him to be extreamly timerous What fatal Councils under the fear of the Whip may he be prevail'd upon to suggest and give Hence it is evident what Disadvantages those of that Nation lie under of having both their Persons and Actions misrepresented and their Rights and Liberties undermined and invaded and that as well by reason of the King 's residing constantly at so great a distance from them as because of his having no more Counsellors usually about him in reference to their Affairs than who as a French King was pleased to express it may all ride upon one Horse Now as it was the Oppression and Slavery under which we had been brought that rendred His Majesties Undertaking in coming into these Kingdoms with an armed Force in order to redeem them both honourable and just So it was the hope of being delivered by him from Misery and Bondage that encouraged us first to invite and then to co-operate with him in the Prosecution and Accomplishment of his glorious Design It was the Invasions upon our Laws that we complained of and from which we desired and endeavoured to be relieved nor had we any Quarrel with the late King's Counsellors save as they were Advisers unto and Instruments of overthrowing them So that if what the Parliament of Scotland desires to have redressed be not something wherein their Laws have been invaded and their Rights violated they are to blame for insisting upon it as a Claim of Right and should rather crave it as an Act of Grace if they find the want of it prejudicial to the Nation But if what is required do either appear to have been wrested from the Nation or that through their not obtaining it they will be upon all occasions obnoxious to be oppressed and inthralled we may then assure our selves that His Majesty is too just as well as good to deny them For as His Majesty doth generously acknowledg in his Declaration emitted at the Hague for the restoring of the Laws and Liberties of the Kingdom of Scotland That they who are concerned in the Laws Liberties and Customs established by Lawful Authority in a Nation are indispensibly bound to endeavour to preserve and maintain the said Laws Liberties and Customs so he doth in the same Declaration sacredly promise that upon being prosper'd in what he was then undertaking he will not only free that Kingdom from all hazard of Popery and Arbitrary Power for the future and deliver it from what at that time did expose it to both but settle it by Parliament upon such a solid Basis as to its Religious and Civil Concers as should most effectually redress all the Grievances under which it had groaned And therefore as we are not to imagine that a Parliament which in the whole course of its Proceedings hath testified so much Love Loyalty and Zeal for His Majesty both in advancing Him unto and maintaining Him in the Throne will abridg and lessen any of the just and legal Prerogatives of His Crown or challenge any Priviledg Right or Immunity which their Ancestors have not been possessed of under the best and most Glorious as well as Ancient Reigns so it were unpardonable to think that a Prince of so much Wisdom Goodness Honour Justice and Truch as His Majesty is known to be should either insist upon the detaining from His People what some of his Predecessors have by Fraud and Violence ravished from them or should so far depart from His Princely and Sacred Word as to frustrate the Expectations of His Leiges of having those Grievances redressed which His Parliament have condescended upon as necessary to be remedied But as His Majesties delaying to gratify the desires of His People is not the effect of Choice and Inclination but the result of a Force put upon him through the sinistrous Representations given him of their Demands both as illegal and as incroachments upon the Royal Authority So we do not wonder that the same Person should misreport the Actions of a Parliament and insinuate into his Master unjust and false glosses of their Votes who hath had both the Impudence and Treachery to endeavour to Possess the King with Disloyal Characters of his most dutiful best and useful Subjects And seeing his Capacity both as a Lawyer and His Majesties Advocate hath not served to instruct him of the danger nor to restrain him from Leasing-making which is Treason by the Law of Scotland it is to be hop'd that the Persons whom he hath criminally slandered will have the courage to Impeach him and that the Parliament will have the Justice to condemn him to the Punishment that the Law adjudgeth him unto Nor can it be matter of Astonishment to any to find a Person imposing upon His Majesty in reference to the Laws
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
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
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
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