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
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
Tenor of all the Laws that ever were made in Scotland The Parliament returning to their duty ordained that Style to be altered and to bear as formerly Our Soveraign Lord with Advice and Consent c. But lastly what advantage can the people have by placing their security in the Parliament since they are so liable to Passions Errors and Extravagancies as well as Kings are and have if Buchannan be believed betrayed the interest of the Kingdom since King Kenneth the Seconds time now above 700. years and they are ordinarily led by some pragmatical Ring-leaders who have not that kindness or interest to preserve the Kingdom that Kings have and since the King may make so many Noble-men and Burghs Royal at pleasure by whose Votes he may still prevail what security can we have by giving them a power above the King or how can they have it From all which it may clearly appear that we have had Kings long ere we had Parliaments and that the Parliaments derive their power from the King and that at first our King only called the Heads of Families and his own Officers as his Council with whom he consulted without any necessity to call any others than he pleased there being no Law Article nor Capitulation obliging him from the beginning thereunto And our Kings were so far from having Parliaments associated with them in their Empire that there is no mention at all of them or of any condition relating to them in the first Institution of our Kings above related nor were there any Parliaments in being at that time But after the Feudal Law came to be in vigor then our Kings looking upon the whole Kingdom as their own in property King Malcolme Canmore did distribute all the Land of Scotland amongst his Subjects as his Liege-men which is clear by the first Chapter of his Laws and according to the Feudal Law all the Vassals of our Kings compeared in their Head-Court and therein consulted what was fit for the Kingdom but thereafter the way of making War requiring Money and Property belonging to the Subject as Government did to the King it was necessary to have their consent for raising Money And from this did arise the inserting the advice and consent of the three Estates in our Acts of Parliament From this also it is very clear that their opinion is very unsolid and ill founded who think that Kings can do nothing without a special Act of Parliament even in matters of Government As for instance that he cannot restrain the Licence of the Press or require his Subjects to take an Engagement for securing the Peace for these and the like being things which relate immediately to Government the King has as much right to regulate these as we have to regulate and dispose of our Property Government being the Kings Property 2. Though the Monarchy had been derived from the People yet as soon as our Kings got the Monarchy they got ever thing that was necessary for the Aministration of it which as it is common sense and reason so it is founded upon that most wise and just Maxime in Law Quando aliquid conceditur omnia Concessa videntur sine quibus concessum explicari nequit 3. I desire to know where there is yet a Law giving the King a Negative voice a power of Erecting Incorporations or a power to grant Remissions for Crimes or Protections for Civil Debts and yet the people is far more concerned in these and the King 's having power to do these and a thousand other things doth rather oblige and warrant me to lay down a general Rule that the Kings of Scotland can do every thing that relates to Government and is necessary for the administration thereof though there be no special Law or Act of Parliament for it if the same be not contrary to the Law of God Nature or Nations The second Conclusion that we draw from these former Principles is that Princes cannot be punished by their own Subjects as Buchannan and our Republicans do assert which is most clear by the former Laws wherein it is declared That the King is a Soveraign and absolute Prince and deriving his power from God Almighty that it is Treason to endeavour to depose or suspend the King Wherein our Law is founded on the nature of Monarchy for if he be Supream He cannot be judg'd for no man is judg'd but by his Superior and that which is Supream can have no Superior and on the Principles of the Law of Nature and Nations because saith the Law No man can be both the Person who Judgeth and the Person Judg'd and it is still the King who Judgeth since all other Judges do represent him and derive their power from him Ipse se praetor cogere non potest quia triplici officio fungi nequit suspectum dicentis coacti cogentis L. Ille a quo ff ad Trebell It is a prnciple in all Law that Jurisdiction and all other Mandats cease with the power that granted it and therefore as they acknowledge that a King cannot be cited till he have forfeited His just Right so as soon as he has forfeited it all the power of the ordinary Judges in the Nation falls and becomes extinct and no other Judge can Judge Him because no other Judge can sit by vertue of any other Authority till it be known that he has forfeited his and that cannot be till the event of the Process and if the People be Judges yet they cannot assume the Government till the King has forfeited it And why also should they be Judges who have neither knowledge nor moderation who are acted by humor and delight in insolence and how shall they meet Or who shall call them Nor can the Parliament Judge them because they derive their Right from the King as shall be prov'd And though they were equal yet no equal can Judge another par in parem non habet Imperium nemo sibi Imperare potest No man can command himself l. si de re sua ff de recept Arbitr Nemo sibi legem imponere potest l. quid autem ff de denat inter virum uxorem and therefore the Civil Law which is ours by Adoption does positively assert That Princeps legibus solutus est the King is liable to no Law l. princeps ff de legibus For though He be lyable to the Directive Force of the Law that is to say He ought to be Governed by it as his Director Yet He is not lyable to the Coercive Force of the Law as all Lawyers that are indifferent do assert Harmenpol l. 1. tit 1. Sect. 48. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The King is not Subject to the Law because offending against it he is not punisht vid. Granswinkell cap. 6. Arnis cap. Francisc a victoria Relect. 3. num 4. Ziegler de jur Majes cap. 1. num 12. with whom the Fathers also agree Ambros in Apol. David cap. 4. Liberi sunt Reges
since it is not lawful for the Wife to judge her Husband or for the Body to cut off the Head 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. Ja. 1. It is declared Rebellion to rise in Arms against the Kings Person And by the 14. Act 6. Par. King Ja. 2. It is Treason to Rebel against the Kings Person or Authority By the 25. Act Par. 6. Ja. 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 those who commit Treason By the 131. Act 8. Par. Ja. 6. All the Subjects are forbid to Convocate for holding of Councils or other Assemblies without his Majesties express Warrant and by the 12. Act 10. Par. King Ja. 6. The entring into Leagues or Bonds without his Majesties special Command is declared to be Sedition Most of which Acts are prior to Buchannans time and consequently he was very inexcusable in advancing this Rebellious Principle And these Laws having excepted no case exclude all cases and pretexts of rising in Arms against the Lawful Monarch but our unhappy Country-men having by a long and open Rebellion opposed the most devout and most just of all Kings upon the false pretence of Liberty and Religion the Parliament of this Kingdom from a full Conviction of the Villainies of those times and to prevent such dangerous Cheats for the future they did by the 5. Act Par. 1. Char. 2. declare it to be Treason for any number of his Majesties Subjects to rise in Arms upon any pretence whatsoever and to shew that all such Glosses as were us'd by Buchannan were absurd and did not make void the first Laws though general the Parliament did by the 4. Act of that 1. Parliament declare that any Explanation or Gloss that during the late Troubles hath been put upon these Acts as that they are not to be extended against any Leagues Councils Conventions Assemblies or Meetings made holden or kept by the Subjects for Preservation of the Kings Majesty the Religion Laws and Liberties of the Kingdom or for the publick Good either of Church or Kingdom are false and Disloyal and contrary to the true and genuine meaning of these Acts. Which Statute is a clear decision against Buchannan finding that the Statutes that were prior to his time and all other such general Statutes made in favours of the King did formerly strike against his Principles and Distinctions As also to preclude all avenues to Rebellion by teaching defending or encouraging others to Rebel upon these pretexts as the former Act declared that actual rising in Arms was Rebellion So by the 2. Act Sess 2. Par. 2. Charles 2. It is declared Treason for any Subject to maintain these Positions viz. That it is Lawful for Subjects upon Pretence of Reformation or any other Pretence whatsoever to enter into Leagues or Covenants or to take up Arms against the King or any Commissionated by him 2. All the Arguments formerly produc'd against the power of the Subject to punish His Person do fully prove likewise that they have no power to rise in Arms against him For either the collective Body of the Subjects are superiour to him and if so they may not only rise up in Arms against him but they may punish him but if the King be superiour to them as has been formerly prov'd then it cannot be lawful for Subjects to rise up in Arms against him no more than it is to punish his Person Nor can I see how all such as declare for a Defensive War are not to be concluded guilty of designing to murther the King for if the King come in Person to defend His own Right as certainly he will and must Can it be thought they will shoot at none lest they kill him and if they shoot how can they secure His Sacred Person and if they kill him in the Field are they less guilty of his murther than those Ruffians who lately design'd it Or doth it lessen the Guilt that these design'd to kill him alone privately whereas our moderate men will in face of the Sun and with display'd Banners against God and him kill with him all such as being perswaded that they are obliged before God to assist him expose their lives for their Duty 3. That dangerous though specious Principle of defensive Arms is inconsistent with that order of Nature which God has established and which is absolutely necessary amongst all other humane Relations and by the same Analogy by which we allow Subjects to rise against their Prince we may much more allow Children to rise against their Parents Servants against their Masters Souldiers against their Officers and the Rabble against their Magistrates for the King does eminently comprehend all these relations in his Soveraignty as inferiour Branches of that Paramount Monarchial power And what a glorious state should Mankind be left in if Anarchy were thus Established and every man should be invested with power to be his own Judge Or dares any reasonable man assert that this is fit to be allowed in the present condition of Mankind for since the generality of men can scarce be contained in their Duty by the severest Laws that can be made what can be expected from them when they are loosed from all Law and are encouraged to transgress against it If the Multitude could prove that they were Infallible and that no Oppression could be expected from them something might be said why we might ballance them with Authority But since both Reason and doleful Experience teach us that generally the Multitude consists of Knaves and Fools who alter not to the better by Conspiring together nor become juster for being led by such ambitious and discontented Spirits as ordinarily lead on Rebellions it is safer to obey those of the two fallible Governours whom God hath set over us and whom the Law ties us to obey and to whom also we are bound by the Oath of Allegiance especially seeing thus we may probably expect that they will be more careful of us as being their own than meer Strangers who use us only for their own Ends. And at the worst in the King we can have but an ill Master whereas in allowing Subjects to usurp we may fight to get our selves hundreds of Tyrants and these too fighting one against another so that we shall not even know which of these Divils to obey 4. This Position is against the very Nature not only of Monarchy but of all Governments For who will
suffer for it ye take it patiently this is acceptable to God for even hereunto were ye called Our blessed Saviour's practice did likewise agree most admirably with his Precepts and Doctrine formerly insisted on for though no man ever was or can be so much injur'd as his blessed self nor could ever any defensive Arms have been so just as in his quarrel yet he would not suffer a Sword to be drawn in it and to discourage all Christians from using Arms he told those who were offering to defend even himself with Arms that whosoever should draw the Sword should perish by it and it seems that God Almighty permitted Peter to draw his Sword at that time meerly that we might upon that occasion be for ever deter'd from Defensive Arms by this our Saviour's Divine example and reasoning The last Argument I shall produce shall be from that most Christian Topick us'd by St. Paul Rom. 3. 8. We should not do ill that good may come of it And therefore since disobedience to Magistrates but much more to Rebel against them is forbid by the Laws both of God and Men This disobedience and opposition cannot be justifi d by pretending that it is design'd for Reforming the Nation And if it be answer'd That this opposition is not in it self ill because the design justifies it It is to this reply'd That if this answer be sufficient then the former excellent Rule is of no use for when a Servant steals his Masters Mony to give to the Poor or a Son cuts his Fathers Throat because he is vicious or when Jacques Clement Stabbed Henry the 3. and Ravillack Henry the 4. of France they might have alleadg'd the same in their own defence Nor know we surer proof that any thing is impious or unlawful then when the Laws of our Nation have forbid it as a great Crime they being against and contrary to no positive Law of God but rather suitable to the same and own'd as such by Christian Synods and Divines there being no necessity to enforce this going out of the Road. All which holds in this case nor can it be imagin'd how Reforming by Arms can be thought necessary since God both can without a Miracle Turn the hearts of Kings in whose hands they are as Rivers of Waters And can send devout Men to influence Kingdoms And should not we rather suffer Patiently as the Primitive Christians did that his Divine Majesty may be by our Patience prevail'd upon to Reform us now as he did of old our Predecessors from Paganism by our own Kings in a Regular way than upon every Notion of Bigot and Factious Ring-leaders overturn all Government and Order rent all Unity and involve our Native Countrey in Blood and Confusion And whilst we are fighting for the terms of Religion lose the true efficacy of Piety and Devotion for what use can there be of Patience Humility Faith and Hope if we will presently repair our selves submit to no Magistracy that differs from us and believe that Religion cannot subsist except by us The Fathers also of the Primitive Church have inculcated so much this Doctrine every where both by their Doctrine and Practice and both these are so fully known that I shall remit this point to those Learn'd Men who have fully handled it Only I must remember that excellent passage of St. Ambrose who being commanded to deliver up his Church to the Arians says Volens nunquam deseram coactus repugnare non novi dolere potero flere potero gemere potero adversus arma milites Gothos Lachrymae meae mea arma sunt talia enim sunt munimenta sacerdotis aliter nec debeo nec possum resistere Which Prayers and Tears are likewise call'd the only Arms of the Church by the great Nazianzen in his first Oration against Julian and by St. Bernard in his 221. Epistle But more of this is to be found Tom. 2. Concil Galliae pag. 533. Where it is fully prov'd that all Subjects ought humbly and faithfully to obey the Regal Power as being ordained by none but God with whom the wise Heathens agree for Marcellus Eprius Tacit. lib. 4. hist. pray'd for good Princes but obey'd bad ones and Terentius in the same Author An. lib. 6. § 3. confesses That the Gods had bestow'd on the Emperor the sole disposal of all things leaving nothing to Subjects save the honour of obedience But because these of that perswasion rather will believe Calvin than the Fathers I have taken pains to consider in him these few passages cap. 20 lib. 4. Institut § 27. Assumptum in Regiam Majestatem violare nefas est nunquam nobis seditiosae istae cogitationes in mentem veniant tractandum esse pro meritis Regem § 29. Personam sustinent voluntate Domini cui inviolabilem Majestatem ipse impressit insculpsit § 31. Privatis hominibus nullum aliud quam parendi patiendi datum est mandatum And all this Chapter doth so Learnedly and judicially impugn this Doctrine that it is a wonder why Calvinists should differ from Calvin I know that to this it may be answered That the same Calvin does qualifie his own words which I have cited with this following Caution Si qui sunt saith he populares Magistratus ad moderandam Regum libidinem constituti quales olim erant qui Lacedemoniis regibus oppositi erant Ephori qua etiam forte potestate ut nunc res habent funguntur in singulis regnis tres ordines quum primarios conventus peragunt adeo illos ferocienti Regum licentiae pro offico intercedere non veto ut si Regibus impotenter grassantibus humili plebeculae insultantibus conniveant eorum dissimulationem nefaria perfidia non carere affirmem quia populi libertatem cujus se tutores Dei ordinatione positos norunt fraudulenter produnt To which my reply is That these words must be so constructed as that they may not be inconsistent with his former clear and Orthodox Doctrine of not resisting Supream Powers the former being his positive Doctrine and this but a supervenient Caution and they do very well consist for though Calvin be very clear that Kings cannot be resisted yet he thinks that this is only to be meant of those Kings who have no Superiors to check them by Law as the Kings of the Lacedemonians had who by the fundamental Constitution of their Monarchy might have been call'd to an accompt by the Ephori and so in effect were only Titular Kings Or of such Monarchs as had only a co-ordinate Power with the States of their own Kingdom and even in these Cases he does not positively assert that these Monarchs may be resisted but does only doubt whether if there be any such Superior or co-ordinate Magistrate representing the People they may not restrain the Rage and Licentiousness of their Kings But that Caution does not at all concern the Jus Regni apud Scotos because this cannot be said
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
Queens death It therefore follows that it was never valid For if it had King James might have thereby been excluded by that person who should have succeeded next to the Scottish Race For it 's undeniable that Queen Mary did during Q. Elizabeths Life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard And therefore the calling in of King James after this Act and the acknowledging his Title does clearly evince That the Parliament of England knew that they had no power to make any such Act The words of which acknowledgment of King James's Right I have thought fit to set down as it is in the Statute it self 1 Jac. Cap. 1. That the Crown of England did descend upon King James by inherent Birthright as being lineally justly and lawfully next and sole Heir of the Blood Royal. And to this Recognition they do submit themselves and Posterities for ever until the last drop of their Blood be spilt And further doth beseech His Majesty to accept of the same Recognition as the first Fruits of their Loyalty and Faith to His Majesty and to His Royal Progeny and Posterity for ever It may be also objected That by the 8 Act. Parl. 1. Ja. 6. it is provided in Scotland that all Kings and Princes that shall happen to Reign and bear Rule over that Kingdom shall at the time of their Coronation make their faithful promise by Oath in presence of the eternal God that they shall maintain the true Religion of Jesus Christ the preaching of the Holy Word and due and right Administration of the Sacraments now received and preach'd within this Kingdom from which two Conclusions may be inferr'd 1. That by that Act the Successor to the Crown may be restricted 2. That the Successor to the Crown must be a Protestant that being the Religion which was professed and established the time of this Act. To which it is answered That this Act relates only to the Crowning of the King and not to the Succession Nor is a Coronation absolutely necessary Coronatio enim magis est ad ostentationem quam ad necessitatem Nec ideo Rex est quia coronatur sed coronatur quia Rex est Oldrad consil 90. num 7. Balbus lib. de coronat pag. 40. Nor do we read that any Kings were Crown'd in Scripture except Joas And Clovis King of France was the first who was Crown'd in Europe Nor are any Kings of Spain Crown'd till this day Sisenandus was the first who in the fourth Tolletan Council gave such an Oath amongst the Christians as Trajan was the first amongst the Heathen Emperours And we having had no Coronation Oath till the Reign of King Gregory which was in Anno 879. he having found the Kingdom free from all Restrictions could not have limited his Successor or at least could not have debarr'd him by an Oath Nullam enim poterat legem dictare posteris cum par in parem non habeat imperium as our Blackwood observes pag. 13. 2. There is no Clause irritant in this Act debarring the Successor or declaring the Succession Null in case his Successor gave not this Oath 3. The Lawful Successor though he were of a different Religion from his People as God forbid he should be may easily swear That he will maintain the Laws now standing And any Parliament may legally secure the Successor from overturning their Religion or Laws though they cannot debar him And though the Successor did not swear to maintain the Laws yet are they in little danger by his Succession since all Acts of Parliament stand in force till they be repeal'd by subsequent Parliaments and the King cannot repeal an Act without the consent of Parliament But to put this beyond all debate the 2d Act of this current Parliament is opposed whereby it is declared That the Right and Administration of the Government is immediately devolv'd upon the next lawful Heir after the death of the King or Queen and that no difference in Religion nor no Law nor Act of Parliament can stop or hinder them in the free and actual Administration Which is an abrogation of the foresaid Act concerning the Coronation as to this Point for how can the administration be devolv'd immediately upon the Successor if he cannot administer till he be Crown'd and have sworn this Oath And therefore King James urges very well That sure immediately upon the death of the last King the Successor acquires a Right they who debar the Successor do not exclude a Successor from entering but debar a righteous King And by Act 2. Parl. 1. Sess 2. Ch. 2. It is declar'd Treason to suspend the King from the Stile Honour or Kingly Name And whereas Dolman urges That at all Coronations the People are ask'd If they will have such a King It is answered That this is no necessary Solemnity and is done rather to give the People occasion to shew their affection than their power even as a Gentleman in England is appointed to offer Dueâ— to any who would controvert the King's Right who is to be Crown'd notwithstanding of which offer he who would controvert the Title would certainly commit Treason Nor can it be deni'd from our History but that many of our Kings have reign'd long before they were Crown'd and that those who rebell'd against them before their Coronation were as legally Traytors as those who rebell'd after it All Kings number the years of their Reign from their Predecessors death and not from their Coronation They grant new Commissions and Judicatures who should understand Law best of all others decide in their Name and by their Authority before they be Crown'd So that I cannot but smile at Dolman's Conceit who says That a King before his Coronation is betroth'd but not a King espous'd to the Commonwealth till his Coronation and consequently may till then be rejected But this is a meer Whimsie and Scholastick Conceit for sure he acts as King and since they who oppose him commit Treason it is certain that he cannot be rejected and the solid Right of Blood and not airy Formalities make Kings Nor can I understand how Election and Birth can be join'd to compleat the excellency of Hereditary Monarchy as Doleman teaches for make it our Elective upon the unfitness of the Successor and all Successors shall be call'd unfit and unable to govern when a Faction resolves to set up a Rival though he be really yet more unfit than the true Heir is The next Objection is That since the King and Parliament may by Act of Parliament alter the Successions of private Families though transmitted by the Right of Blood why may they not alter the Succession in the Royal Family To which it is answered that the reason of the difference lyes in this that the Heirs of the Crown owe not their Succession to Parliaments for they succeed by the Laws of God Nature and the Fundamental Laws of the Nation whereas private Families are
subject to Parliaments and inferiour to them and owe their private Rights to a municipal Law and so may and ought in point of Right to be regulated by them And yet I am very clear that a Parliament cannot arbitrarily debar the eldest Son of a private Family and devolve the Succession upon the younger and if they did so their Acts would be null But if this argument were good we might as well conclude by it that no person born out of England or attainted of Treason could succeed to the Crown because he could not succeed to a private Estate All which and many more instances do clearly demonstrate that the Successor to the Crown cannot be debarr'd nor the Succession to the Crown diverted by Act of Parliament The last objection is that Robert the III. King of Scotland was by an Act of Parliament preferr'd to David and Walter who as he pretends were truly the eldest lawful Sons of Robert the 2 d. because Euphan Daughter to the Earl of Ross was first lawful Wife to King Robert the 2 d and she bore him David Earl of Strathern and Walter Earl of Athol Alexander Earl of Buchan and Euphan who was married to James Earl of Dowglass after whose decease he married Elizabeth Muir Daughter to Sir Adam Muir not so much as Buchannan observes from any design to marry a second Wife as from the great love he carried to Elizabeth Muir whom because of her extraordinary Beauty he had lov'd very passionately in his youth and before he married the Earl of Rosses Daughter and from the love which he bore to the Sons whom Elizabeth had born before that first Marriage who were John Earl of Carrick who thereafter succeeded to the Crown by the Title of Robert the 3 d and Robert Earl of Fife and Monteith he prevail'd with the Parliament to prefer John eldest Son by Elizabeth Muir to the two Sons which he had by the Earl of Rosses Daughter who was as they pretend his first lawful Wife In which though I might debate many nice points of Law relating to this Subject yet I chuse only to insist on these few convincing answers 1. That in a Case of so great moment Historians should be little credited except they could have produc'd very infallible Documents and as in general one Historian may make all who succeed him err so in this Case Boetius who was the first liv'd and wrote 200 years after the Marriage of King Robert the 2 d and wrote his History at Aberdeen very remote from the Registers and Records by which he should have instructed himself nor did he know the importance of this point having touch'd it only transiently though it has been design'dly press'd by Buchannan to evince that the Parliaments of Scotland might prefer any of the Royal Line they pleas'd and it is indeed probable that King Robert the 2 d. did for some time make no great noise of his first Marriage with Elizabeth Muir least the meanness of the Match should have weaken'd his Interest upon his first coming to the Crown he being himself the first of the Race of the Stuarts and having so strong Competitors as the Earl of Dowglass who claim'd Right to the Crown in the Right of the Baliol and the Cummings as Boetius himself observes 2. King Robert the 3 d. having succeeded as the eldest lawful Son and having been receiv'd as such by that Parliament and his Posterity by all succeeding Parliaments the Possession of the King and the Acquiesence of the People is the most infallible proof that can be adduc'd for proving that Robert was the eldest lawful Son nor have most Kings in Europe or the Heads of most private Families any other proof of their being the eldest and Lawful Sons save that they succeeded and were acknowledg'd as such 3. To ballance the Authority of these Historians I shall produce the Testimony of the Learned Sir Lewis Stewart one of the most famous Lawyers we ever had and who ought much more to be believ'd than Buchannan not only because he was more disinterested but because he found upon Acts of Parliament and old Charters which he himself had seen in the Registers in which Elizabeth Muir is acknowledg'd to have been the first Wife Buchananus lib. 9. in vita Roberti 2. affirmat Euphaniam Comitis Rossenssis filiam primam Regis Roberti 2. uxorem fuisse ea mortua Regem superinduxisse Elizabetham Moram ex qua prius Liberos ternos mares suscepisset et eam uxorem duxisse ejusque liberos regno destinasse ut postea â—orum natu maximus successit quod quam fâ—lsum sit apparet ex archivis in carcere Edinburgensi reconditis ubi exstant separata acta duorum Parliamentorum subscripta manibus Ecclesiasticorum praefalum nobilium baronum aliorum statuum Parliamenti eorum sigillis roborata quibus Elizabetha Mora agnoscitur prima uxor Euphania Rosse secunda liberis ex Elizabetha Mora tanquam justis haeredibus Regni successive regnum decernitur post eos liberis Euphaniae Rosse nec non ibidem cartae extant plurimae factae per Davidem secundum eorum patruum magnum ex diversis terris Joanni filio primogenito nepotis ejus Roberti dum Euphania Rosse viveret nec non Davidi filio natu maximo Euphaniae Rosse quem solum filium indigitat Roberti nepotis quod non fecisset si Elizabetha Mora non prius fuisset nupta Roberto ejus nepoti nam primogenitus nunquam attribuitur notho imo ego plures quam viginti cartas in archivis inveni ubi etiam eas reliqui ex quibus sole clarius elucessit Elizabetham Moram primam fuisse uxorem Euphaniam Rosse secundam nam extra controversiam liberi Elizabethae Morae aetate grandiores erant liberis Euphaniae Rosse which Paper I did get from the Lord Pitmeden who has himself written some learned Observations upon this Point 4. I have my self seen an Act of Parliament found out by the industry of Sir George Mackenzie of Tarbet now Lord Register having the intire Seals of the Members of Parliament appended thereto by which the Parliament do swear Allegiance to Robert the Second the first King of the Race of the Stuarts and after him Roberto Comiti de Carrict filio suo natu maximo his eldest Son in Anno 1371. which was the first year of his Reign I have also found out a Copy of an Act of Parliament amongst the Records of the late famous Lord Register Skeen which I think fit to insert word for word at the end of this Treatise in Latin the substance whereof in English runs thus That a Parliament being call'd at Scoon the 4th of April Anno 1373. and third year of the Reign of King Robert the Second on purpose to secure the Succession and to prevent all disorders that might afterwards arise in any part of the Kingdom about Titles to the Crown It was Enacted by the said
Minors cannot be ill since God almighty us'd to make such a choice I know that Eccles 10. 16. says Woe unto the Land when thy King is a child but the Criticks interpret this of a King that is childish Puer intellectu moribus or because Factions arise by the opposition to his Regents and this inconveniency did more necessarily attend the allowing a Regent King during Life for both the Subjects and the true Heir rais'd Factions in that Case whereas the Subjects only are factious in the other and yet even they are no more factious for that short time than they are always in Commonwealths 4. The reason why the Minor King was to have one to supply his Non-age ceasing with his Majority it was unreasonable that the Remedy should have lasted beyond the Disease and the worst effect that could have been occasion'd by the Infant King's Minority was that the Kingdom should have been during that time govern'd by joint advice of Parliament Councils and Officers of State which in Buchanan's opinion in other places of his History and Book De Jure Regni is so excellent a Model that he decries Monarchy as much inferior to it 5. It was most inconvenient to accustom any private Family to live in the Quality of a King 6. It could not but occasion many Murders and much Faction for the true Heir could not live peaceably under this Eclipse and Exclusion nor could the Uncle live without making a Party to secure his pleasant Usurpation 7. As these Divisions and Factions were the natural and necessary Effects that were to be expected from this irregular Succession so it is very observable that from King Fergus to King Kenneth the third we had Seventy nine Kings amongst whom almost the half were the most impious tyrannical or lazy Kings that ever we had according to Buchanan's Character of them so happy and wise a thing is this so much magnified Election of a Successor by the People and their Representatives to supply the defects of the lawful Heir whereas from K. Kenneth the third to King CHARLES the Second inclusive we have had Thirty one Kings Twenty six of whom have succeeded by a due lineal Right and have prov'd vertuous Princes greater by their Merit than their Birth as if God had design'd to let us see that though most of them succeeded whil'st they were very young yet that he can chuse a fitter Successor than Parliaments can do whereas the other five Kings who came to the Crown against that Law of Kenneth the third viz. Constantine the Bald Grimus Mackbeth Donal Bain and Duncan the second were all persons who deserved very ill to be preferred to the true Heir and who as they came to the Crown against Law so govern'd without it And it is very strange that the Fanaticks who think that every throw of the Dice is influenc'd by a special Providence will not allow that God does by a special Providence take care who shall be his Representative who shall be the Pastor of his Flock and nursing Father of his Church let us therefore trust his Care more than our own and hope to obtain more from him by Christian Submission Humility and Obedience than we can by Caballing Rebelling and Sacrilegious Murdering or Excluding the TRUE SUCCESSOR POSTSCRIPT IN regard there is Pag. 194 195. mention made of an Act of Parliament determining the Succession of Robert the Second's Children and referr'd to here upon further Consideration the Author has thought fit to defer the printing of it till another time the Substance of it being inserted in the said Pages Books Printed for and Sold by RICHARD CHISWELL FOLIO SPeed's Maps and Geography of Great Britain and Ireland and of Foreign Parts Dr. Cave's Lives of the Primitive Fathers in 2. 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