Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	judge_n	king_n	power_n	3,562	5	5.1146	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A50542	Jus regium, or, The just, and solid foundations of monarchy in general, and more especially of the monarchy of Scotland : maintain'd against Buchannan, Naphthali, Dolman, Milton, &c. / by Sir George Mackenzie ...	Mackenzie, George, Sir, 1636-1691.; Mackenzie, George, Sir, 1636-1691. That the lawful successor cannot be debarr'd from succeeding to the crown.	1684 (1684)	Wing M162; ESTC R39087	83,008	208

and may rise in Arms against them if the Monarch hinder them to Reform 4. That the People or their Representatives may seclude the Lineal Successor and raise to the Throne any of the Royal Family who doth best deserve the Royal Dignity These being all matters of Right the plain and easie way which I resolve to take for refuting them so as the learned and unlearned may be equally convinced shall be first by giving a true account of what is our present positive Law 2. By demonstrating that as our present positive Law is inconsistent with these Principles so these our positive Laws are excellently well founded upon the very nature of Monarchy and that those Principles are inconsistent with all Monarchy And the third Class of my Arguments shall be from the Principles of common Reason Equity and Government abstracting both from the positiveness of our Law and the nature of our Monarchy And in the last place I shall answer the Arguments of those Authors As to the first I conceive that a Treatise De Iure Regni apud Scotos should have clear'd to us what was the power of Monarchs by Law and particularly what was the positive Law of Scotland as to this point for if these points be clear by our positive Law there is no further place for debate since it is absolutely necessary for Mankind especially in matters of Government that they at last acquiesce in something that is fix'd and certain and therefore it is very well observed by Lawyers and States-men that before Laws be made men ought to reason but after they are made they ought to obey which makes me admire how Buchannan and the other Authors that I have named should have adventur'd upon a Debate in Law not being themselves Lawyers and should have written Books upon that Subject without citing one Law Civil or Municipal pro or con Nor is their Veracity more to be esteemed than their Learning for it 's undenyable that Buchannan wrot this Book De Iure Regni to perswade Scotland to raise his Patron though a Bastard to the Crown and the Authors of Lex Rex Ius Populi Vindicatum and others were known to have written those Libels from picque against the Government because they justly suffered under it I know that to this it may be answered That these Statutes are but late and were not extant in Buchanans time and consequently Buchanan cannot be Redargu'd by them 2. That these Statutes have been obtain'd from Parliaments by the too great influence of their Monarchs and the too great Pusillanimity of Parliaments who could not resign the Rights and Priviledges of the People since they have no Warrand from them for that effect To the first of which I answer that my Task is not to form an Accusation against Buchanan but against his Principles and to demonstrat that these Principles are not our Law but are inconsistent with it and it is ridiculous to think that any such Laws should have been made before these Treasonable Principles were once hatched and maintained for Errors must appear before they be condemned and by the same Argument it may be as well urged that Arius Nestorius c. were not Hereticks because those Acts of General Councils which condemned their Heresies were not extant when they first defended those opinions and that our King had not the power of making Peace and War till the Year 1661 But 2 dly For clearing this Point it is fit to know that our Parliaments never give Prerogatives to our Kings but only declare what have been their Prerogatives and particularly in these Statutes that I shall Cite the Parliament doth not Confer any New Right upon the King but only acknowledge what was Originally his Right and Prerogative from the beginning and therefore the Parliament being the only Judges who could decide whether Buchannans Principles were solid and what was Ius Regni apud Scctor These Statutes having decided those points contraverted by him there can be hereafter no place for Debate and particularly as to Buchannan his Book De jure Regni apud Scotos it is expresly condemn'd as Slanderous and containing several offensive Matters by the 134 Act Parl. 8. Ia. 6. in Anno 1584. which was the first Parliament that ever sat after his Book was printed To the 2 d I answer that it being controverted what is the Kings Power there can be no stronger Decision of that Controversie in Favours of the King than the acknowledgment of all Parties Interested and it is strange and unsufferable to hear such as appeal to Parliaments cry out against their Power their Justice and Decisions and why should we oppress our Kings and raise Civil Wars whereby we endanger so much our selves to procure powers to Parliaments if Parliaments be such ridiculous things as we cannot trust when they are empowered by us and if there be any force in this answer of Buchannans there can be none in any of our Laws for that strikes at the Root of all our Laws and as I have produced a Tract of reiterated Laws for many Years so where were there ever such free unlimited Parliaments in any Nation as these whose Laws I have Cited 2 dly Whatever might be said if a positive Contract betwixt the King and People were produced clearing what were the just Limits of the Monarchy and bounding it by clear Articles mutually agreed upon yet it is very absurd and extravagant to think that when the Debate is what is the King of Scotlands just Power and Right and from whom he Derives it that the Laws and repeated Acknowledgements of the whole Representatives of the People assembled in the Supream Court of the Nation having no open force upon it but enacted at several times in many several Parliaments under the gentlest peaceablest and wisest Kings that ever they had should not be better believed than the Testimonies of three or four byass'd and disoblig'd Pedants who understood neither our Laws nor Statutes and who can bring no clear fundamental Law nor produce no Contract nor Paction restricting the King or bounding his Government 3 dly That which adds a great deal of Authority to this Debate and these Statutes is that as this is clear by our positive Law so it is necessarly inferred from the nature of our Monarchy and is very advantagious for the Subjects of this Kingdom which I shall clear in the second and third Arguments that I shall bring against these Treasonable Principles nor can they be seconded by any solid Reason as I shall make appear in answering the Arguments of those Authors I know that Nephthaly the Author of Ius populi and our late Fanatical Pamphlets alleadge that our Parliaments since 1661 are null and unlawful because many who have Right to sit as Members or to Elect Members were secluded by the Declaration or Test But my answer is First That these were excluded by Acts of Parliament which were past in Parliaments prior to their exclusion

Canmor's Law that Rex distribuit totam Terram Scotiae hominibus suis. And it therefore clearly follows that the King has Dominium directum a right of Superiority as all Superiors have and that the people on whom he has bestowed these Lands are oblig'd to concur in the expence with him for the defence of it For as if he had retain'd the Property he would have been able with the Fruits and Rents to have defended it So it is not agreeable to sense or reason that they to whom he has granted it should not be oblig'd to defend it especially seing all the Rights made by the King are in Law presum'd meer Donations For it cannot be deny'd but that all Lands were originally granted by the King and so must have originally belong'd to himself for no person can give what is not his own and our Law acknowledgeth that all Lands belong to the King except where the present Heretor can instruct a Right flowing from our King and that he is the Fountain of Property as well as of Justice 2. In Law all who are ingag'd in a Society as to any thing that is the subject of the Society should contribute to its preservation and therefore the King having the Dominium directum and the Vassal Dominium ut ile it follows that the Vassals of the Kingdom should contribute towards its preservation and the King may expect justly an equal Contribution towards the defraying the necessary expence and thence it was that by our old Law all Heretors were obliged to furnish some unum Militem unum Sagittarium or Equitem Some a Bow-man some a Souldier some a Horse-man But thereafter the King having changed these Holdings because all betwixt 60. and 16. were obliged to come to the Field with 40. days Provision which was all that was then necessary it follows that now that way of making War being altered the Subjects should contribute towards the way that is necessary for defending the Kingdom 3. The King by His Forces protects our Persons and by His Navies protects our Commerce by His Ambassadors manages all our publick Affairs and by His Officers and Judges administrates Justice to us And so it is just that all this should be done on our expences and that we should defray the publick expences of the Government and so much the rather because by a special Statute with us it is declared that the King may impose what He pleases on all that is Imported or may discharge us to export any thing without which we could not live and what ever he gets from us he distributes amongst us without applying one shilling of it to his own private use The King or whoever has the management of the Government have in the opinion of Lawyers Dominium eminens a Paramount and transcendent Right over even private Estates in case of necessity when the common Interest cannot be otherwise maintained and this Grotius though no violent friend of Monarchy doth assert ve ry positively and clearly and it cannot be denied that a King may take any mans Lands and build a Garrison upon it paying for it and that in case of a Siege the King may order whole Suburbs to be burnt down for the security of the Town And whence is this power save from that Paramount and Supereminent Right that the King has over all private Estates for the good of the whole So. ciety and Kingdom Nor can it be denyed that the King may in time of War Quarter freely and it is in his power to declare War when or where he pleases Nor do the former Statutes oppose this for they exclude not necessity that has no Law and is it self that Law which gave David right to eat the Shew-bread and the Christian Emperours right to sell the Goods of the Church for maintaining their Armies with consent of the Primitive Fathers and this is so necessarily inherent in all administration that the very Master of a Ship has power to throw over the Goods of Passengers and Merchants in a storm for the preservation of the Ship And they are not enemies to the King but to themselves who would deny the King this power The third Class of Arguments that I am to use against these principles shall be from Reason and Experience in Fortification and Corroboration of our positive Law and the nature of our Monarchy for since humane Reason it self is lyable to so many Errors and since men when they differ are so wedded to their own Sentiments that few are so wise as to see their own mistakes or so ingenuous as to confess them when they see them Therefore prudence and necessity has obliged men to end all Debates by making Laws and it is very great vanity and Insolence in any private men to ballance their own private Sense against the publick Laws that is to say the Authoritative Sentiments and the legal Sense of the Nation If we were then to Establish a new Monarchy were it not prudent and reasonable for us to consider what were the first Motives which induced our Predecessors to a Monarchy and Boethius and Lesly both tell us that least they might be distracted by obeying too many it was therefore fit to submit to one if then this Reason was of force at first to make us submit to a Monarchy it should still prevail with us to obey that Monarchy and not gape idlely after every new Model Ne multos Reges sibi viderentur creare summam rerum aut optimatibus aut ipsi multitudini permittere aspernabantur sayes Boethius fol 6. Here the advantages of being Governed by Aristocracie or Democracie were expresly considered and rejected so that we have our Predecessors choice founded on their way of Reasoning added to the Authority of our Law and after we their Successors had seen the mischiefs arising from the pretences of Liberty and Property with all the advantages that seeming Devotion could add to these Our Representatives after two thousand years experience and after a fresh Idaea of a long civil War wherein these Arguments and Reasons adduced by Buchannan were fortified and seconded by thousands of Debates They did by many passionate Confessions and positive Laws acknowledge that the present Constitution of our Monarchy is most excellent Act 1. Par 1. ch 2 d. That inevitable prejudices and miseries do accompany the invading the Royal Prerogative Act 4. That all the troubles and miseries they had suffered had sprung from these Invasions Act 11. That all the bondage they had groaned under was occasioned by these Distractions Act 2. Par. Sess 2. Ch. 2. So that we have here also a Series of Parliaments attesting the reasonableness of the Constitution of our Monarchy and His Majesties Prerogatives 2. We must not conclude any thing unreasonable or unfit because there are some inconveniencies in it for all humane Constitutions have their own defects But I dare say the principles of my Adversaries have moe than mine for common-wealths are

jur Majes cap. 1. num 12. with whom the Fathers also agree Ambros. in Apol. David cap. 4. Liberi sunt Reges a vin●ulis delictorum neque enim ullis ad poenam vocantur legibus tuti Imperij potestate Isiodorus 3. sent cap. 31. populi peccantes Iudicem me●●u●t Reges autem solo Dei timore metuque g●hennae coercentur And in this Sense they take these words Psal. 51. Against thee thee only have I sinned and I was glad to find in Bishop Vshers Power of Prin●es amongst many other Citations that the Rabbies and particularly Rabbi Ieremiah own●d that no Creature may Judge the King but the Holy and Bless●d God alone in which also Heathens agree with Jews and Christians Ecphantas the Pithagorean makes it the Priviledge of God and then of the King to be Judg'd by none Stobeus Sermon 46. and Dion in Marco Aurelio tells us that it is certain that free Monarchs cannot be Judg'd save by God alone and if it were otherwise we should see them very unsecure for the ambition and avarice of insolent Subjects should never or seldom miss to form their Process and why should Parties be Judges But to demonstrate the Justice Kings and Princes are to expect from the Populace and Mobile let us remember their Material Justice in the usage of our Saviour when they cryed Crucifie him Crucifie him their Sentence against King CHARLES the Martyre when they were at the hight of their pretensions to Pietie and publick Spiritedness their usage of de Witt the Idolizer of them and their Common-wealth and if we want a true Idea of their Form of Process we will find it in their usage of the Arch-bishop of St. Andrews and others no L●bel no Citation no Defenses no Sentences no time to prepare to die and yet all this are the Dictates of pure and devout publick Spiritedness Buchannans Bloody Arguments for this position are that Tyrants have been Murthered with applause and Princes would become licentious if they were not Restrained by the just fear of being called to an account That the Roman and Venetian Magistrates have been punish'd by the people and that the ordinary Judges of the place have Judg'd them and that some of our Kings as well as these of other Nations have been punish'd as Tyrants To which I answer shortly that Inconveniencies must not prevail with us to break our Oathes and overturn our Laws for nothing has so great inconveniencie in it as this has these being but partial and this is a total Inconveniency And the English Lawyers agree that a mischief is better than an inconvenience and this should have been considered before we swore to Monarchy and if the people were Electors as they never were yet they should have reserv'd this power or else they cannot now challenge it But though our Law were not clear as it is most uncontroverted upon this point Yet right Reason should perswade us to have reserv'd no such power For as Kings may erre so may the Judges who are to Try them and it is more probable their Tryers will because they may be acted by Revenge Ambition or Popularity and there is nothing so lyable to erre as the populace The Romans and Venetians might have punish'd their Magistrates because these Magistrates were not Vested with a Supream power nor were they Soveraigns as our Monarchs are And those Judges who Try'd them deriv'd not their power from those Magistrates who Try'd them as our Judges do for the same consent and compact by which they were made the Chief the others were made also Magistrates which cannot be said of absolute Monarchs who derive not their power from the people as these do and the Instances of Kings who have been Murder'd are Crimes in them who did commit them and so should not be Rules to us And generally the best of Kings have been worst us'd But who can escape by innocence when King CHARLES the Martyre fell by Malice Such also as cry up the Murtherers of Tyrants who had no just Right never meant to allow the Arraignment of lawful Monarchs who when they erre have God only for their Judge and if they fear not Him and eternal Punishment they will not probably fear mortal Men and their own Subjects whom they can many wayes escape 2. There is no Creature so unreasonable but he will use his own with discretion though there be no Law obliging him to it nor Punishment to be inflict'd if he do otherwayes who burns his own House or drowns his Lands though he may do it For the Law considers that a King is either mad and if so he will respect no Law and should not be punisht at least he will not stand in awe for fear of it or else he is of a sound Judgment and then he needs no Law and therefore Why should we apprehend that a King will destroy His own Kingdom 3. A King is also obliged by His Fame to do things worthy of His high Trust and things able to abide that conspicuous hight to which he is expos'd 4. Though His people ought not to Rebel yet no thinking man can be sure that they will not And therefore even the greatest Tyrants fear such accidents though they know they are not bound by these Laws that tye Subjects And if all these fail yet we must reverence Gods Dispensations and expect a redress of these unusual Emergents from his Divine Goodness for whose sake we suffer them Rather then expose all to ruine by endeavouring a revenge that may be so unjust in the preparative and dangerous in the event The 3. Conclusion which I shall draw from the former principles shall be that as it is not lawful for Subjects to punish their Kings so neither is it to rise in Arms against them upon what pretext soever no not to defend their Liberty nor Religion Which Conclusion also I shall endeavour to Establish on sure foundations of Positive Law Reason Experience and Scripture As to our Positive Law it is clear for by the 3. Act Par. 1. Ia. 1. It is declar'd Rebellion to rise in Arms against the Kings Person And by the 14. Act 6. Par. K. Ia. 2. It is Treason to Rebel against the Kings Person or Authority By the 25. Act Par. 6. Ia. 2. It is Treason to rise in fear of War against the Kings Person or his Majesty or to lay hands upon his Person violently whatever age they be of or to help or supply these who commit Treason By the 131 Act 8 Par. Ia. 6. All the Subjects are discharged to Convocat for holding of Councils or other Assemblies without his Majesties expresse Warrand and by the 12. Act 10. Par. K. Ia. 6. The entering into Leagues or Bonds without his Majesties special Command is declared to be Sedition All which Acts are prior to Buchannans time and consequently he was very inexcuseable in advancing this Rebellious Principle And these Laws having excepted no case exclude all cases and

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 Sones to the former and therefore whatever has been said for Sones is also verified in Brothers As for instance though his Royal Highness be only Brother to King CHARLES the II. yet he is Son to King CHARLES I. and therefore as Saint Paul sayes if a Son then ane Heir except he be secluded by the existence and Succession of ane elder Brother That this gradual Succession is founded on the Law of nations is as clear by the Laws of the 12 Tables and the Praetorian Law of Rome And if we consider the Monarchy either old or new we will find that wherever 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. Iura 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 subordinat to one another the Inferiour should obey but not alter the power to which it is subordinat and what it does contrary thereto is null and void And thus if the judges of England should publish edicts contrare to Acts of Parliament or if a Justice of Peace should ranverse a decree of the judges of West-minster these their endeavours would be void and ineffectual But so it is that by the same principle but in ane infinitly more transcendent way all Kings and Parliaments are subordinat 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 dictats of Religion but 28 Hen. 8. cap. 7. the Parliament uses these words For no man can dispence with Gods Laws which we also affirme 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 peraequè observantur divina quadam providentia constituta semper firma atque immutabilia permanent § sed naturalia Institut de Iur. Natural § singulorum de rer divis And when the Law declares that a Supream 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 exeem these Supream powers from being lyable to the Laws of God nature and nations Accurs in l. Princeps ff de Leg. Clementina pasturalis de rejudicatâ Bart. in l. ut vim de justitiâ jure Voet. de Statutis Sect. 5. Cap. 1. nor can the Law of nations be overturned by private Statutes or any Supream power And thus all Statuts to the prejudice of Ambassadours 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 denuncing watr before a warr can be Lawful And Lawyers observe verie well that these who would oppose the common dictats of mankind should be look't upon as enemies to all mankind My second argument shall be that the King Parliament can have no more power in Parliament than any absolute Monarch has in his own Kingdom for they are when joyn'd but in place of the Supream power sitting in judgement and therefore they cannot in Law do what any other Supream and absolute Monarch cannot do For all the power of Parliaments consists only in their consent but we must not think that our Parliaments have ane unlimited power de jure so as that they may forfeit or kill without a cause or decerne against the Subjects without citing or hearing them or that they can alienat any part of de Kingdom or Subject the wholl Kingdom to France or any other Forraigne Prince all which deeds would be null in themselves and would not hinder the partie injur'd from a due redress For if our Parliaments had such power we would 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 inferiour to these he cannot overturne their statuts Thus a Prince cannot even ex plenitudine potestatis legitimat 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 free'd 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 solid 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 Successors 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 favours of the King and his Heirs and no man can tye his equal or give him the Law par in parem non habet dominium The second is that it were