them to Reform 4. That the People or their Representatives may Exclude the Lineal Successor and raise to the Throne any of the Royal Family who doth best deserve the Royal Dignity These being all matters of Right the plain and easie way which I resolve to take for refuting them so as the learned and unlearned may be equally convinced shall be first by giving a true account of what is our present positive Law 2. By demonstrating that as our present positive Law is inconsistent with those Principles so these our positive Laws are excellently well founded upon the very nature of Monarchy and that those Principles are inconsistent with all Monarchy And the third Class of my Arguments shall be from the Principles of common Reason Equity and Government abstracting both from the positiveness of our Law and the nature of our Monarchy And in the last place I shall answer the Arguments of those Authors As to the first I conceive that a Treatise De Jure Regni apud Scotos should have clear'd to us what was the power of Monarchs by Law and particularly what was the positive Law of Scotland as to this point for if these points be clear by our positive Law there is no further place for debate since it is absolutely necessary for Mankind especially in matters of Government that they at last acquiesce in something that is fix'd and certain and therefore it is very well observ'd by Lawyers and States-men that before Laws be made men ought to reason but after they are made they ought to obey which makes me admire how Buchannan and the other Authors that I have named should have adventur'd upon a debate in Law not being themselves Lawyers and should have written Books upon that Subject without citing one Law Civil or Municipal pro or con Nor is their Veracity more to be esteemed than their Learning for it 's undeniable that Buchannan wrote this Book De Jure Regni to perswade Scotland to raise his Patron though a Bastard to the Crown and the Authors of Lex Rex Jus Populi Vindicatum and others were known to have written those Libels from picque against the Government because they justly suffered under it I know that to this it may be answered That these Statutes are but late and were not extant in Buchannan's time and consequently Buchannan cannot be refuted by them 2. That these Statutes have been obtain'd from Parliaments by the too great influence of their Monarchs and the too great Pusillanimity of Parliaments who could not resign the Rights and Priviledges of the People since they have no Warrant from them for that effect To the first of which I answer that my Task is not to form an Accusation against Buchannan but against his Principles and to demonstrate that these Principles are not our Law but are inconsistent with it and it is ridiculous to think that any such Laws should have been made before those Treasonable Principles were once hatched and maintained for Errors must appear before they be condemned and by the same Argument it may be as well urged that Arius Nestorius c. were not Hereticks because those Acts of General Councils which condemned their Heresies were not extant when they first defended those opinions and that our King had not the power of making Peace and War till the Year 1661. But 2dly For clearing this Point it is fit to know that our Parliaments never give Prerogatives to our Kings but only declare what have been their Prerogatives and particularly in these Statutes that I shall Cite the Parliament doth not Confer any New Right upon the King but only acknowledge what was Originally his Right and Prerogative from the beginning and therefore the Parliament being the only Judges who could decide whether Buchannans Principles were solid and what was Jus Regni apud Scotos These Statutes having decided those points controverted by him there can be hereafter no place for Debate and particularly as to Buchannan his Book De jure Regni apud Scotos it is expresly condemn'd as Slanderous and containing several offensive Matters by the 134 Act Parl. 8. Ja. 6. in Anno 1584. which was the first Parliament that ever sate after his Book was printed To the 2 d I answer that it being controverted what is the Kings Power there can be no stronger Decision of that Controversie in Favours of the King than the acknowledgment of all Parties Interested and it is strange and unsufferable to hear such as appeal to Parliaments cry out against their Power their Justice and Decisions and why should we oppress our Kings and raise Civil Wars whereby we endanger so much our selves to procure powers to Parliaments if Parliaments be such ridiculous things as we cannot trust when they are impowred by us and if there be any force in this answer of Buchannans there can be none in any of our Laws for that strikes at the Root of all our Laws and as I have produced a Tract of reiterated Laws for many Years so where were there ever such free unlimited Parliaments in any Nation as these whose Laws I have Cited 2dly Whatever might be said if a positive Contract betwixt the King and People were produced clearing what were the just Limits of the Monarchy and bounding it by clear Articles mutually agreed upon yet it is very absurd and extravagant to think that when the Debate is what is the King of Scotlands just Power and Right and from whom he Derives it that the Laws and repeated Acknowledgements of the whole Representatives of the People assembled in the Supream Court of the Nation having no open force upon it but enacted at several times in many several Parliaments under the gentlest peaceablest and wisest Kings that ever they had should not be better believed than the Testimonies of three or four byass'd and disoblig'd Pedants who understood neither our Laws nor Statutes and who can bring no clear fundamental Law nor produce no Contract nor Paction restricting the King or bounding his Government 3dly That which adds a great deal of Authority to this Debate and these Statutes is that as this is clear by our positive Law so it is necessarily inferred from the nature of our Monarchy and is very advantagious for the Subjects of this Kingdom which I shall clear in the second and third Arguments that I shall bring against those Treasonable Principles nor can they be seconded by any solid Reason as I shall make appear in answering the Arguments of those Authors I know that Nephthaly the Author of Jus Populi and our late Fanatical Pamphlets alleadge that our Parliaments since 1661. are null and unlawful because many who have right to Sit as Members or to Elect Members were excluded by the Declaration or Test but my answer is First That these were excluded by Acts of Parliament which were past in Parliaments prior to their exclusion and so they were excluded by Law and no man can be said to
Sequel of this Discourse upon other occasions 8ly Whatever proves Monarchy to be an excellent Government does by the same Reason prove absolute Monarchy to be the best Government for if Monarchy be to be commended because it prevents Divisions then a limited Monarchy which allows the People a share is not to be commended because it occasions them if Monarchy be commended because there is more expedition secresie and other excellent Qualities to be found in it then absolute Monarchy is to be commended above a limited one because a limited Monarch must impart his secrets to the people and must delay the noblest designs until malicious and factious Spirits be either gain'd or overcome And the same analogy of Reason will hold in reflecting upon all other advantages of Monarchy the Examination whereof I dare trust to every mans own breast 9ly It was fit for the People that their Kings should be above Law because the severity of Law will not comply with that useful tho illegal Justice which is requisit in special cases for since summum jus is summa injura and since impossibile est sola innocentia vivere we may well conclude that absolute Monarchy is necessary to protect the guilty innocent by Remissions to break Laws justly in a Court of Chancery and to crook them uprightly in our Courts by an officium nobile For strict and rigid Law is a greater Tyrant than absolute Monarchy I know that some pretend that the 25. Act 15. Par. Ja. 6. declaring the King to be an absolute Prince is only to be interpreted in opposition to the Popes Authority he being so far absolute only as not to be Subject to the Pope who pretended then a Jurisdiction over all Kings But the answers to this are clear First This Statute is made to declare the Kings of Scotland to have Right by their Inherent Prerogative to their exacting Customs for all Merchandise because they are absolute Monarchs which Argument had been ridiculous if this absoluteness had only been in opposition to the Pope nor is there any mention of the Pope in all this Statute and what interest hath the Pope in our Customs 2dly When the Kings power is by our Statutes rais'd above the Pope it is done by declaring him Supream and not by declaring him absolute 3dly All Lawyers and States-men divide Monarchies in absolute and limited Monarchies and the word Absolute is still taken in opposition to limited as is clear by Arnisaeus Boâ—in c. And whereas it is pretended that these words in this Statute acknowledging the King to be absolute are only exprest transiently and enunciatively but are not Decisive and Statutory It is answered that our Parliaments never give our Kings Prerogatives but only acknowledge what our Kings have by an Inherent and Independent Right and these words in this Statute are of all others in our Laws exprest with most of Energy for they are usher'd with It cannot be deny'd but His Majesty has as great Liberties and Prerogatives as any Monarch whatsoever and this acknowledgement is made the Foundation of His Right to exact Customs And in true Reasoning nothing is made the Proposition of an Argument but that which is most uncontrovertable I foresee that our Fanaticks and Republicans will be ready to misrepresent absolute Monarchy as Tyranny But a Tyrant is he who has no Right to Govern and so he may be oppos'd as the common Enemy of all the Society And it is ridiculous to pretend with Hobs That we are oblig'd to obey whoever is once in possession for that were to invite men to torment us and to justifie Crimes by success Nor can it be from this deduc'd that since it is lawful to oppose any who are in Possession that it is therefore lawful to oppose our Monarchy because they have as Algernon Sidney pretends Vsurpt over us a power inconsistent with our natural Liberty And owe their Right to that Prescription which the greatest Tyrants may maintain by force and to that consent which they may procure by Violence or Flattery For to this I answer That our Monarchs have their power establisht by Birth-right by Consent by Prescription and by Law which are all the ways whereby any Right can be legally Establisht But it is a gross mistake in Buchannan and others to conclude a lawful King punishable as a Tyrant because he becomes vitious For though God may punish him as such yet his People cannot that were to raise the Servant above the Master and to occasion a thousand Disorders to redress one and when King James acknowledges that a good King thinks Himself made for his People and not His People for Him That is only said with reference to the King's duty to God but not with Relation to the Peoples Duty to their King And when Trajan delivering the Sword to the Proconsul said Pro me si rectè impero si male contra me Grotius observes justly That this was spoke as a Philosopher and not to subject himself to the others Jurisdiction And so Buchannan did most traiterously advise the Printing this on our Coin Nor do's this Title of absolute Monarch empower him to dispose of our Estates For it is fit to know that Government is the Kings and Property is the Subjects Birth-right Monarchy is a Government and so can include no more than what is necessary for Government And though the Turk or Mogol arrogate to themselves the total Property of their Subjects in this they are Tyrants and not Kings And when our Statute above-mentioned says That our Kings have as much power as they this is only to be understood of what Right they have by the Nature of Monarchy Rex nomen est jurisdictionis non dominii say the Lawyers For the Law having said that all things were the Emperours l. bene a Zenone § Sed scimus C. de Quadr. Praescript The Emperour asked the famous Lawyer Bulgarus in what sense all was his who is mightily prais'd for having answer'd Omnia Rex possidet imperio singuli dominio Accurs in praem ff in Verb. Sanctioni For what is once ours cannot be taken away without our consent And therefore by the 5. Act 1. Par. Ch. 2. It is declared lawful for the King to make Garisons His Majesty entertaining them on His own expence And by the Act 3. Pav 3. Ch. 2. It is declar'd that the people shall not be subject to free Quarter c. And yet right reason teacheth us that all the Land of Scotland having been once the Kings for the Law saith that the King is Susitus ratione Coronae in all the Lands of Scotland His Majesty is therefore presumed Proprietor of all and every thing belongs to him if some other cannot instruct a right which is the sense of that Law Nemo terram nisi authoritate Regia possideto And of King Malcolm 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 those 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 seeing 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 utile 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 afterwards the King having changed those Tenures or because all betwixt 60. and 16. were obliged to come to the Field with 40. dayes 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 at 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 forbid 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 to Monarchy doth assert very positively and clearly l. 1. c. 1. § 6. l. 3. c. 19. num 7. and it cannot be denied but that a King may take any mans Lands and build a Garison 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 Society and Kingdom Nor can it be denyed but 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 contradict 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 overboard the Goods of Passengers and Merchants in a storm for the preservation of the Ship And they are not enemies to the King only but to themselves who would deny the King this power The third Classis of Arguments that I am to use against these Principles shall be from Reason and Experience to fortifie and corroborate 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 have obliged men to end all Debates by making Laws and it is very great vanity and insolence in any private men to justify 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 lest 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 idely 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 govern'd 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 the Arguments and Reasons produced 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. Char. 2. 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 more than mine for Common-wealths are not only subject to err because they have their
be illegally excluded from his Seat in Parliament who is excluded by a clear Statute 2dly If this were not a good answer then the Papists might pretend that they are unjustly excluded because they will not take the Oath of Supremacy and because they are Papists and how can the Fanaticks pretend to make this objection since they by the same way excluded the Kings Loyal Subjects in the Year 1647. and 1649. c. Or how would these Authors have rail'd at any Malignant for using this Argument against them which they use now most impudently against us with far less justice for their Parliaments were unjust upon other Heads as being inconsistent with the fundamental Laws of the Kingdom and so their Acts of exclusion were null in themselves 3dly All the Statutes made since 1661 are necessary consequences of former Laws and so are rather renewed than new Laws 4ly If their reasons were allow'd there could be no end of controversie for all who are excluded would still alleadge that they were unjustly excluded and consequently there could be no submission to Authority and so no Society nor Peace The last answer that our Dissenters make when they are driven from all their other grounds is that they though the lesser are yet the sounder part of the Nation but this shift does not only overturn Monarchy but establishes Anarchy and though they were once settled in their beloved Common-wealth this would be sufficient to overturn it also for every little number of Dissenters nay and even the meanest Dissenter himself might pretend to be this sounder part of the Common-wealth but God Almighty foreseeing that pride or ignorance would suggest to frail Mankind this principle so inconsistent with all that Order and Government whereby he was to preserve the World did therefore in his great Wisdom convince men by the light of their own Reason that in matters of common concern which were to be determined by Debate the greater number should determine the lesser and such as drive beyond this Principle shall never find any certain Point at which they may rest and by the same Reason the Law has pronounc'd it safer to rest in what is decided though it be unjust than to cast loose the Authority of Decisions upon which the Peace and quiet of the Common-wealth does depend who would be so humble and just as to confess that his Adversary has the juster side Or who would obey if this were allow'd And what Idea of Government or Society could a man form to himself allowing once this principle It is also very observable that those who pretend to be the sounder part and deny obedience upon that account are still the most insolent and irregular of all the Society the greatest admirers of themselves and the greatest enemies to peace and so the unfittest to be Judges of what is the sounder part though they were not themselves Parties But what pretence is there for that Plea in this case where the foundations of our Monarchy have been unanimously acknowledg'd by many different Parliaments in many different Ages chosen at first from the Dictates of Reason and confirm'd after we had in many Rebellions found how dangerous all those popular pretences are and in which we agree with the Statesman Lawyers and Divines of all the well-Govern'd Nations under Heaven who are born under an hereditary Monarchy as it is confess'd we are To return then to the first of those Points I lay down as my first Position that our Monarchs derive not their Right from the People but are absolute Monarchs deriving their Royal Authority immediately from God Almighty and this I shall endeavour to prove first from our positive Law By the 2. Act Par. 1. Ch. 2 d. in which it is declar'd that His Majesty His Heirs and Successors have for ever by vertue of that Royal Power which they hold from God Almighty over this Kingdom the sole choice and appointment of Officers of State Counsellors and Judges But because this Act did only assert that our Kings did hold their Royal Power from God but did not exclude the people from being sharers in bestowing this Donative therefore by the 5th Act of that same Parliament they acknowledge the Obligation lying on them in Conscience Honour and Gratitude to own and assert the Royal Prerogatives of the Imperial Crown of this Kingdom which the Kings Majesty holds from God Almighty alone and therefore they acknowledge that the Kings Majesty only by vertue of His Royal Prerogative can make Peace and War and Treaties with forraign Princes Because this last Statute did only assert that the King did hold His Imperial Crown from God alone but did not decide from whom our Kings did only derive their Power therefore by the 2 d. Act Par. 3 d. Ch. 2 d. It is declar'd that the Estates of Parliament considering that the Kings of this Realm Deriving their Power from God Almighty alone they do succeed Lineally thereto c. Which Statutes do in this agree with our old Law for in the first Chapter of Reg. Magist. vers 3. these Words are That both in Peace and War our Glorious King may so Govern this Kingdom committed to Him by God Almighty in which He has no Superiour but God Almighty alone which Books are acknowledg'd to be our Law and are called the Kings Laws by the 54th Act Par. 3 d. Jam. 1. and the 115. Act Par. 14. Jam. 3. These our Laws both Ancient and Modern can neither be thought to be extorted by force nor enacted by flattery since in this we follow the Scripture the Primitive Church and their Councils the Civil Law and its Commentators and the wisest Heathens both Philosophers and Poets As to the Scripture God tells us That by him Kings Reign and that he hath anointed them Kings and that the King is the Minister of God David tells us That God will give strength to his King and deliverance to his King and to his Anointed Daniel sayes to Nebuchadnezar The God of Heaven hath given thee a Kingdom And to Cyrus God gave to Nebuchadnezar thy Father a Kingdom and for the Majesty that he gave him all Nations trembled As to the Fathers Augustin de Civit. Dei l. 5. c. 21. Let us not attribute unto any other the Power of giving Kingdoms and Empires but to the true God Basil in Psal 32. The Lord setteth up Kings and removeth them Tertul. Apol contra gentes Let Kings know that from God only they have their Empire and in whose power only they are And Irenaeus having Prov'd this point fully ends thus l. 5. c. 24. By whose Command they are born men by his likewise they are ordain'd Kings This is also acknowledg'd by the Councils of Toledo 6. c. 14. of Paris 6. c. 5. vid. Council aquis gran 3. c. 1. Amongst late Divines Marca the famous Arch-Bishop of Paris Concord sacerd imperii l. 2. c. 2. n. 2. asserts That the Royal Power is not only bestowed
Energy of that Priviledge without respect either to what Land they possess or what number of People they represent And thus the Nobility and Bishops sit there by vertue of the Kings Creation and the King may Create a hundred Noblemen that morning that the Parliament is to sit though none of all the hundred have one foot of Land in Scotland and though the Knights Barons must have some Land else they cannot Represent any Shire yet though a Gentleman had 5000. pounds Sterling a year he could not sit there except he be the Kings immediate Vassal and hold his Lands of His Majesty in capite So that he sits not by vertue of his Land but as Capacitated by the King And though those who Represent the Burrows Royal are Commissionated by the people of their Burghs yet the people who send them are not considered in that Commission but the Power only which the King gives them to send For though a Town had a hundred thousand Inhabitants and another only twenty Inhabitants yet these hundred thousand could not be Represented in Parliament except the King had erected their Town into a Burgh Royal From which I evince two things 1. That the Parliament is the Kings Council in which he may call any He pleases and not as the peoples Representatives only since there are great multitudes in the Nation Represented by none there For though they Represent their Constituents in Parliament yet the power of sending Representatives is derived from the King Originally and flows not from any proper Right inherent in those whose Representatives they are 2. That Judicature cannot have a Co-ordinate power with the King which he needs not call unless He pleases and which he can dissolve when He pleases and in which when they are assembled He has a Negative Voice by which He can stop all their Proposals and Designs For if they were Co-ordinate with the King then par in parem non habet imperium and it is against common Sense to think that these two can be equal since the Power of the one flows from the other By which is likewise clear that the great principle laid down by Buchannan viz. That the King is Singulis Major Vniversis Minor greater than any one but less than the collective Body of the Parliament taken together is absolutely false because he has a Negative Voice over that collective Body and as they cannot Meet without him so he can dissolve them when he pleases and I confess it seems to me unintelligible how they can be greater than the King by vertue of a power which they derive from the King 4. The Parliament is called the Kings Council as is clear from the Inscriptions of all our old Parliaments Thus the Statutes of Alexander the Second begin Alexander By the Grace of God King of Scots did by the Common Council of his Earls Decree c. The Statutes of King Robert the First bear to be by the Common Council of his Prelates c. The first Statute of King Robert the Second bears that none who is elected to be of the Kings Council shall bring another to it who is not elected The 8. and 13. Parliaments of King James the First and the 2. 3 4. and 7. of King James the Second bear for inscriptions The Parliament or general Council of such Kings And the first Act of that 8. Parliament of King James the first Bears Quo Die Dominus Rex deliberatione consensu totius Concilii c. And it is against Sense to think that any mans Counsel can have Authority over him for as we say Counsel is no Command 5. The Parliament was but the Kings Baron Court as is very clear to any man who will read the old Registers of Parliament in which he will see that the Parliament was assembled and the Suits were called and Absents Outlawed as in other Baron Courts whereof many publick Records are extant and I shall only set down that of the 8. Parliament Ja. 1. The words of which Inscription are In the eighth Parliament or General Council of the Illustrious Prince James by the Grace of God King of Scotland holden at Perth and begun ratified and approved by the three States of the Kingdom as sufficiently and rightly summoned the twelfth day of July in the year of our Lord one thousand four hundred and twenty eight continued from Time to Time the Bishops Abbots Priors Earls Barons and all Free-holders which hold in Chief of our said Lord the King and certain Burgesses of every Burrow of the Kingdom being summoned and called in due and wonted manner all those assembling that ought would and might be concerned but some were absent some of which were lawfully excused others absenting themselves through Obstinacy whose Names appear in the Rolls of the Suits were every one of them amerc'd ten pounds for his Contumacy And that the King was Judge what Barons should come to the Parliament is most clear by the 75. Act Par. 14. Ja. 2. whereby it is declared No Free-holder under the sum of twenty pounds shall come except he be specially called by the King either by his Officer or by Writ and though afterwards the King allowed two Barons of every Shire to be sent to represent all the Barons for saving Expences yet even after that Concession it is declared by the 78. Act Par. 6. Ja. 4. That no Freeholder be compelled to come except our Soveraign Lord writ specially for them It being thus clear that the Parliament is the Kings Baron Court it seems a wonder to me how it could have entered into the heart of any sober man to think that any mans Baron Court and much less the Kings Baron Court should have power and jurisdiction over him and that it should be lawful to them as Buchannan and these other Authors assert to punish him or lay him aside all which Assertions are equally impious and illegal 6. When the King resolves to lessen any way his own Power this is not done by the Authority of the three Estates as certainly it would be if they had the power to lessen his Authority but the King does the same from his own proper Motive as when the King binds up his own Hands form granting Remissions in cases of fore-thought Fellony Ja. 4. Par. 6. Act 63. And when an Act was to be made forbiding the Lords of the Session to admit of private Writings from the King to stop the procedure of Justice this is not Enacted by the three Estates but only by the King and is founded upon the Kings own promise Act 92. Par. 6. Ja. 6. And in all Acts of Parliament the King only Statutes as Legislator and the Parliament only Advise and Consent which shews that they are not Co-ordinate with the King as is asserted by Buchannan and others much less above him And the Acts of Parliament in the late Rebellion having run thus Our Soveraign Lord and the three Estates contrary to the
a vinculis delictorum neque enim ullis ad poenam vocantur legibus tuti Imperii potestate Isiodorus 3. sent cap 31. populi peccantes Judicem metuunt Reges autem solo Dei timore metuque gehennae 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 Princes amongst many other Citations That the Rabbies and particularly Rabbi Jeremiah own'd that no Creature may Judge the King but the Holy and Blessed God alone in which also Heathens agree with Jews and Christians Eâ—phantas the Pythagorean 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 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 which Kings and Princes are to expect from the Populace and Mobile let us remember their Material Justice in the usage of ovr Saviour when they cryed Crucifie him Crucifie him their Sentence against King CHARLES the Martyr when they were at the height of their pretensions to Piety and a publick Spirit their usage of De Witt the Idolizer of them and their Commonwealth and if we want a true Idea of their Form of Process we will find it in their usage of the Archbishop of St. Andrews and others no Enditement no Citation no Defences no Sentences no time to prepare to die and yet all this are the Dictates of pure and devout publick Spirits Buchannan's 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 those of other Nations have been punish'd as Tyrants To which I answer shortly that Inconveniencies must not prevail with us to break our Oaths and overturn our Laws for nothing has so great inconveniency in it as this has these being but partial and this a total Inconveniency And the English Lawyers agree that a mischief is better than an Inconveniency 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 at it is most uncontroverted upon this point Yet right Reason should perswade us to have reserv'd no such Power For as Kings may err 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 err 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 whom they Try'd 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 Murther'd are Crimes in them who did commit them and so should not be Rules to us and many of the best of Kings have been worst us'd But who can escape by innocence when King CHARLES the Martyr 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 err 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 ways 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 inflicted if he do otherways 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 light to which he is exposed 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 those Laws that tye Subjects And if all these fail yet we must reverence God's Dispensations and expect a redress of these unusual Emergencies 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 Doleman does here urge that although the People have conferred upon the King the Power and Jurisdiction which naturally resided in them yet they have not so delegated that Power as to devest themselves of all Jurisdiction privatively so that they still retain a cumulative Jurisdiction by which in case of necessity they may judge the King and all other Delinquents To which my Answers are 1. It is fully proved that the King derives not his Power from the People and so they connot retain that Power which they never had 2. A Cumulative Jurisdiction is only granted to those who cannot devest themselves of the Power they give because Supream Power is essential to their Character and therefore though a King retain a Cumulative jurisdiction when he delegates his Power to a Subject it cannot at all be inferred that therefore the People retains the same when they transfer all their Power upon the King for the one designs to make a King who is to be Supream and the other designs to gratifie a Person who is to remain still a Subject Populus jus omne in Caesarem transfert qui totum dicit nihil excipit The People may be a People without a Cumulative Power or without being Supream but a King cannot and I admire why Doleman who compares always the King to the Husband and the Common-wealth to the Wife the King to the Head and the Common-wealth to the Body can think that it is Lawful for the People to judge and punish their King
Devil was comanded by the cruel Edicts of persecuting Emperours the Christians never took up Arms against them but used fervent Prayers as their only refuge And St. Peter animates them to this patient suffering 1. Pet. 4. 12. 13. Beloved think it not strange concerning the fiery Tryal but rejoice in as much as ye are partakers of Christs sufferings But let none of you suffer as a murtherer or a Thief or as an Evil-doer or as a Busie body in other mens matters By which last words if I durst add to so great an Author as Bishop Vsher the Apostle seems expresly to me to have obviated the dreadful Doctrine of rising in Arms upon the pretence of Religion and the killing such as differ from them which if the Christians did allow they ought to pass for Murtherers and to forbid them to meddle in matters of Government upon this pretence because then they ought to suffer justly as busie bodies And here Bishop Vsher does most appositely cite St. Augustine in Psal 149. The World rag'd the Lion lifted himself up against the Lamb but the Lamb was full stronger than the Lion The Lion was overcome by shewing cruelty the Lamb did overcome by suffering And St. Jerome Epist 62. By shedding of Blood and by suffering rather then doing injuries was the Church of Christ at first founded it grew by Persecutions and was Crowned by Martyrdoms The second objection is If mens hands be thus ty'd no mans Estate can be secure nay the whole frame of the Commonwealth would be in danger to be subverted and utterly ruin'd To which he answers That the ground of this objection is exceeding faulty and inconsistent with the Rules of Humanity and Divinity of Humanity because this would impower private Persons to Judge and so should confound all Order and invite all men to oppose Authority and make Subjects Accusers Judges and Executioners too and that in their own Cause against their own Soveraign and against Divinity because it is contrary to the Scriptures and Fathers who command Submission Humility and Patience Rex est si nocentem punit cede justitiae si innocentem cede fortunae Seneca de Jura lib. 2. cap. 30. If the King punish thee when thou art guilty submit to Justice If when thou art innocent submit to Fortune And if a Heathen could be induced by his vertue to submit to blind Fortune how much more ought a Christian to be prevail'd upon by Devotion to submit to the All-seeing Providence of the most wise God who maketh all things to work joyntly for good to them that love him And as St. Augustine piously adviseth Princes are to be suffered by their People that in the exercise of their patience temporal things may be born and Eternal hop'd for The instance of King James the Third being punished by his Subjects is so far from being an Argument able to justifie Subjects rising in Arms against their King that this part of our History should for ever convince all honest men of the dangers that attend Defensive Arms For this Prince was so far from being one of those Tyrants against whom Defensive Arms are only confest to be just That few Princes were more meek and careful of his Subjects But because he imploy'd such as himself had rais'd finding that the Nobility had too often been insolent Servants to their Prince and severe Task-masters to the People the Nobility thinking more upon this imaginary neglect than their own duty did from combinatitions proceed to Arms and rejecting all conditions of peace they were at last curs'd with a Victory in which this gentle Prince was murthered whilst he sought to save his Sacred life in a deserted Mill. By which we may see that these Defensive Arms so much hallowed in our late Debates are but the Militia of Pride Vanity and Ambition and that if they be allow'd the best of Princes will ever fall by them And as to the Act 14. Par. 4. Ja. 4. Whereby it is pretended that the opposing and even the killing K. Ja. the 3. in Battel is justified and which Act was never Repeal'd It is answered First That this Statute was made by the same Rebels who had opposed their lawful Prince and so was rather a continuing of their Rebellion than a justification of it Secondly That abominable Statute proceeds on the pretence of K. James the 3d. calling in the English and designing to enslave the Kingdom to Foreigners which was not prov'd as is ought to have been though the pretext had been legal as it was neither legal nor true in the least circumstance and the Noblemen and Barons are Condemn'd without being cited or heard though the Act be not a Statute but a Verdict so unjust are all Rebels who are forc'd to maintain one Crime by another Thirdly In the new Collection of our Statutes made by Skeen and Authoriz'd in many subsequent Parliaments that abominable and Treasonable Act is not inserted which was the best way to rescind it because it was thought a reproach to the Nation to have any formal Law made to rescind the Statute which would have preserv'd its memory in anulling its Authority Fourthly Many Statutes since that time are made declaring the rising in Arms against the King and his Authority upon any pretence whatsoeve to be Treason and expresly rescinding all Acts and Statutes to the contrary as Rebellious and Treasonable and there needed no more Positive Statutes to rescind that Rebellious and Treasonable Combination rather than Law As to the 44. Act 6. Par. Ja. 2. From which its urged that because that Act declares it Treason to assault Castles and Places where the Kings Person shall happen to be without the Consent of the three Estates And that it is therefore lawful to assault the same with the Consent of the three Estates and consequently to rise in Arms with the Consent of the three Estates is no Treason It is answered that it being but too ordinary in the Minority of our Kings to have great Factions amongst the Nobility which shews also the danger of placing the Supream Power in the Proceres Regni one of the Factions ordinarily either having made the young King Prisoner or using to assault the Castle where he was really preserved It was therefore most wisely declared by this Statute That to lay hands upon the Kings Person violently what Age the King be of young or old or to Assail Castles or Places where the Kings Person shall happen to be without the Consent of the three Estates shall be punished as Treason That is to say that so great respect was to be had to his sacred Person that no violence was to be offered to the Place where he was until the same was allowed by the three Estates But in all the former Laws as well as those made in our Age it is still declared Treason to rebel against the Kings Person or to refuse to assist him without adding except the same be done by the