the Lords of the Session in all time coming and that as well in the case of a total as of a single Vacancy This being the Vote so declaimed against and in contempt whereof and in opposition whereunto some Persons having surreptitiously and fraudulently obtained Warrant Countenance and Authority from the King are so vent'rous as to dare to act We shall both with all the Loyalty and Modesty that becomes a Subject and an honest Man and yet with that freedom and plainness which one who hath no other design save to serve God his King and his Country with uprightness and integrity should value himself upon endeavour to vindicate the Wisdom as well as the Justice of the Parliament in the forementioned Vote In the performing whereof with all that exactness which brevity will allow I shall begin with an account of the first Administration of Civil Justice in the Kingdom of Scotland that we meet with in our Records For the College of Justice consisting of those called the Lords of the Session not having been institute till the Reign of King James the Fifth Anno 1537. The Administration of Justice was before that time not only ambulatory and itinerant but was discharged and executed by such Members of Parliament as the Estates of the Kingdom in their several Sessions elected from among themselves and authorized thereunto Nor had they only their whole Authority from the Estates in Parliament but to speak properly they were Committees of Parliament Authorized to such a Work and Office and accountable to Parliaments for the discharge of the Trusts committed unto them for the Domini electi ad causas whom we so often meet with in the Records of Parliament particularly in those of the Years 1524. 1526. 1528. were such Members as every respective Parliament elected from within their own Walls for the Administration of Justice between the King and his Lieges and between one Subject and another From whence it appears that it not only appertained unto the Parliament to see that Justice was duly administred but that the Right was originally in them of nominating and ordaining the Administrators of it Which makes it very improbable that after rheir having been possessed of such a Right Authority and Jurisdiction for so long time they should so wholly part from and intirely surrender it as upon no Occasion or Emergency whatsoever to leave unto themselves a share or reserve a concern in it Let us add to this That when the College of Justice came to be instituted Anno 1â—37 Parl. 5 King James the 5 th Act 36. though it was Established and Ordained by the Legislative Authority of the King and Estates joyntly and not by an exertion of meer Royal Prerogative yet the Estates in Parliament then Assembled both took upon them and were allowed the Nomination and Choice of the President as well as of all that were then called forth and advanced to be Lords of the Session or College of Justice as appears by the 39. and 41. Acts of the aforementioned Parliament Yea it is further evident from the Records of Parliament that the Estates of the Kingdom did often in succeeding Parliaments Nominate Choose and Impower those very Lords that were actually of the Session to continue in the Administration of Justice which sheweth beyond all rational contradiction that they could much less â—nter upon the Office at first without their being Chosen and Approved by the Estates 〈◊〉 â—arliament Thus Anno 1542. being the first of Mary we find the President with the rest of the Lords of Session Chosen and Impowered a new as Auditores ad causas for the hearing and deciding Civil and Criminal Causes And again we find the Parliament of the Second of Mary Anno 1543. not only ratifying by the Legislative Authority of the Queen and Estates the Institution of the College of Justice but we find the Estates alone nominating and choosing ad causas the President cum caeteris Dominis Sessionis Collegii Justitiae But forasmuch as there was a change given afterwards by Laws to this Course and Method and a new Regulation ordained by subsequent Statutes of the College of Justice wherein both the qualifications of those that are to be Chosen Lords of the Session and the manner of their Approbation are required and appointed We are therefore obliged in the next place to look into those Laws and to examine whether they detract from the Prudence and weaken the Justice of the Parliament in their fore-mentioned Vote or whether they not only Countenance and Suppport but Justifie and Vindicate them And We 'll begin with the 93 Act 6 Parliament James 6 where it being acknowledged That the Nomination of the Lords of the Session belongeth unto the King and that he ought to name such as have the Qualifications there required which are already specified in the aforesaid Vote It is further added That in all time coming when an ordinary Place becomes vacant in the Session the Person nominated thereunto by the King shall be sufficiently tryed and examined by a sufficient number of the Ordinary Lords of the College of Justice for whom it shall be Lawful to refuse the Person presented unto them and that the King in that Case shall present another and that so often until the Person presented be found qualified But seeing this Act may be said to have passed in the minority of King James and the force of it be thereupon endeavoured to be eluded We will therefore consult Act 134. Parl. 12. James 6. wherein besides a Repetition and a Confirmation of all that is mentioned and ordained in the former Act there is further added That none shall be received to any Place of Senator in the College of Justice unless he be sufficiently tryed by the whole College of Justice Now as those are the Laws relating unto and regulating the Nomination Examination and Approbation of the Ordinary Lords of the College of Justice the Practice hath been in all Times conformable thereunto So that the First Parliament of King Charles the Second which through the prevailing of the like Folly and Madness in Scotland which then reigned in England rob'd the Kingdom of many of its Rights and Privileges to increase and inlarge the Prerogative of the Crown yet they were so â—ender of making any Innovations in his particular that by their Second Act of that Parliament they Ordain The Nomination of the Lords of Session to remain as in former Times preceding the Year 1637. And accordingly we find as there have been several who upon single Vacancies in Former Reigns had been rejected by the Lords of the College of Justice though nominated by our Kings So there was one Sir William Ballanden whom Charles the Second had nominated and recommended who upon examination by the rest of the Lords was refused and rejected as a Person not Qualified according to the Statutes of the Realm Is it not therefore unreasonable to be imagined That the King who
to His MAJESTY at Hampton-Court the 15 th day of October 1689. TO THE KING'S Most Excellent Majesty The Humble Representation of the Lords and Commissioners of Shires and Burroughs of the Kingdom of SCOTLAND Under subscribers and Members of this Current Parliament now Adjourned till the Eight of October next NOthing save the great and general Surprize of this long distressed and at present unsettled Kingdom upon the late Adjournment of Your most Loyal Parliament for so long a time and in so critical a season with the deep Concern of Your Royal Interest therein could possibly have induced us to this so necessary a Petition But the visible Consternation and Discouragement of thousands of Your good Subjects delayed in the Relief and Comfort which at this time they assuredly expected with the Advantages that We apprehend Your Majesties Enemies both within and without the Kingdom may think to reap by such an Interruption being our only Motives We cannot We dare not be silent And therefore to prevent these evil Consequences We in the first place most solemnly Protest and Declare in the Presence of God and Men Our constant and inviolable Fidelity and Adherence to Your Majesties Royal Title Right and Interest so frankly and chearfully recognosced by Us in this Current Parliament wishing and praying for nothing more under the Sun than Your long and prosperous Reign as that wherein the Security of all our Lives and Liberties and also of our Holy Religion more dear to Us than both is infallibly included It was the Perswasion we had of the Justice as well as the Necessity of Your Majesty's Heroic Undertaking for the Delivery of these Kingdoms with the Conviction of the Divine Confirmation that appeared in its Glorious Success that moved most if not all of Us to endeavour and concur most heartily in the late Meeting of Estates for the Advancement and Establishment of Your Majesty upon the Throne when some discovered their Disaffection and were too open Retarders and Obstructers of that good Design And it is from the same true Affection and Zeal that we do now most heartily make the above-mentioned Protestation to obviate all the Misconstructions Your Enemies may make in this Juncture Nor are we less assured of Your Majesties most sincere and gracious Intentions to perform for us to the utmost all that the Estates of the Kingdom have either demanded or represented as necessary and expedient for securing the Protestant Religion restoring their Laws and Liberties and redressing of their Grievances according to Your Majesties Declaration for this Kingdom Neither can it be imagined that so wise and just a King as Your Majesty will ever be perswaded that so Loyal a Parliament as this can be induced either to wish or design any Prejudice to or Diminution of Your true Interest and Prerogative but such as have slavishly served and flattered Arbitrary Power and Tyranny will be always studying for their own sinister Ends to state a separate Interest betwixt King and People a Practice which we are confident Your Majesty abhors But that we may clear our selves upon this present occasion to Your Majesty's full satisfaction and refuting of all Misrepresentations we can incur on any hand we shall briefly rehearse to Your Majesty the Votes pass'd in this present Parliament to which the Royal assent is not given with such short Reflections as we hope may tend to the better Vindication of all concern'd The First Act upon which the Vote of Parliament has pass'd is That declaring the Priviledge of the Estates of Parliament to Nominate and Appoint Committees as they shall think fit and excluding therefrom the Officers of State unless they be chosen And omitting what the Parliament hath already represented to Your Majesty as reasons of their Vote it is humbly conceived that this Act is exactly framed to the extent of that Grievance which together with the rest is desired in the Instrument of Government to be redressed unto us in Parliament The Second was an Act Abrogating the Act of Parliament 1669 asserting the Kings Supremacy over all Persons and in all Causes Ecclesiastical and this Act is so exactly conform to the Second Article of the abovementioned Grievances and the foresaid Act of Supremacy in it self is so dangerous to the Protestant Religion as well as inconsistent with the Establishment of any Church-Government that we doubt not Your Majesty will ever approve all that voted to it The Third is an Act anent Persons not to employed in publick Trusts and all the Ruins and Distresses of this Kingdom have so certainly flowed from the Persons therein noted especially such as by their contriving of and concurring in the Dispensing Power have thereby eminently indangered our Religion and overturned all the Fences of our Liberties and Properties which we have good Ground to believe the Parliament would have extended but to few Persons And your Majesty in Your Declaration hath so justly charged the same upon evil and wicked Counsellors the only Persons pointed at in this Act that we are perswaded that You will find it absolutely necessary for attaining all the Ends of Your Majesty's glorious Undertaking for our Relief The Fourth is an Act concerning the Nomination of the ordinary Lords of Session and the Election of the President To wit that in a total Vacation they be tryed and admitted or rejected by Parliament and in a particular Vacation they be tryed and admitted or rejected by the other Lords And that the President be chosen by the Lords themselves conform to our old Practique and express Statute And this Act is so agreeable to Practique Laws and Acts of Parliament and so necessair for the true and equal Administration of Justice the great security of all Kingdoms that Your Majesty will unquestionably approve it The Fifth and last is an Act Ordaining the Presbyterian Ministers yet alive who were thrust out since the First of January 1661 for not Conforming to Prelacy and not complying with the Courses of the Time to be restored And this Act is in it self so just and so consequential from the Claim of Right and agreeable to Your Majesties Declaration that less in common Equity could not be done And here Your Majesty may be pleased to consider That tho' Prelacy be now by Law abolished yet these few Ministers not exceeding Sixty tho' restored as they are not for want of the Royal Assent to the foresaid Act would be all the Presbyterian Ministers legally established and provided for in Scotland It is not unknown to Your Majesty what have been the sad Confusions and Disorders of this distressed Country under Prelacy and for want of its ancient Presbyterian Government and now the whole West and many other Parts of Scotland are at present desolate and destitute having only Ministers called by the People upon the late Liberty without any Benefice or Living or convenient Place to Preach in It is also certain that there are many Hundreds of forefaulted and sined Persons who are yet waiting to be restored and refounded according to the Claim of Right and Your Majesties Gracious Instructions thereanent It is true the last Thing proposed by Your Majesties Commissioner in Parliament was a Supply of Money for Maintenance of the Forces so necessary for our present Defence and We should have proven our selves ungrateful to Your Majesty and false to our own Interest and Security if We had absolutely refused it But there being a sufficient and certain Fund to maintain all the Forces and support all other incident Charges of the Government for some Months all that we demanded was That some things visibly necessair for Satisfaction of the Country and the better enabling and disposing them to pay the said Supply might be first expeded We are confident that the Vote of Parliament which was only for a short Delay will not give Your Majesty the least ground of Offence And now having presumed to lay these Things before Your Majesty with all humble Submission purely out of Duty for preventing the evil Constructions of Your Majesties Enemies and for our own just Vindication We most humbly beseech Your Sacred Majesty Graciously to Consider what is here represented and in Prosecution of Your Majesties Acceptance of the Claim of Right and Your Declaration emitted for this Kingdom to take such Courses as You in Your Royal Wisdom shall think fit for Passing the foresaid Acts of Parliament and Redressing all our other Grievances And We Your Majesties most humble Petitioners and faithful Subjects shall as in Duty bound every Pray for Your long and prosperous Reign over Us. FINIS
the Ministry of the late Duke Lauderdale what Mischiefs a Person in his Post about the King may be instrumental in bringing upon the Kingdom of Scotland For tho he was endowed with too much Wit and Courage to be either hector'd or wheedl'd to be any Man's Tool and Property yet through lack of Probity on the one hand and excess of Ambition on the other he was easily prevail'd upon to become an Instrument of ruining and enslaving his Country What may Scotland then dread if a Person should be honoured with the Character and Trust of Secretary for that Kingdom in whom all the Qualifications for so considerable a Station were the sighing decently the entertaining one with a grave Nod or if you please a Grimace instead of a sold Reason the making those whom he judgeth Court-Favourites his unerring Oracles and learning the Customs Rights and Laws of his Nation from them that never did nor were obliged to know them the recommending those to be Privy-Councellors to the King who withstood his being so the favouring those in obtaining the Office of prosecuting Nocents who stand accused for endeavouring to subborn Witnesses for destroying the Innocent and as an Addition to all those Accomplishments should be so swallowed up in the immoderate Love of the World that instead of having his Thoughts exercised about the Service Grandeur and Safety of his Master should be wholly imploy'd how to ingross the considerable Places of the Kingdom for inriching his Family Into what Inconveniences may the best Prince be easily drawn if his Secretary be unable to advise him what he may legally do and what he may not With what Facility is a weak and easy Person in that Post misled by an English Minister of State who has a mind to be revenged upon Scotland for rejecting Episcopacy How may a Crafty and Treacherous Courtier that hath a purpose to play an after-game for the late King influence a Scots Secretary unskilled in the Politicks to imbroil his present Majesty with his People in Scotland and all for this that the Abdicated Monarch may have a new Throw for his Crowns again Suppose but one Person in Office about the King for the Affairs of Scotland and him to be extreamly timerous What fatal Councils under the fear of the Whip may he be prevail'd upon to suggest and give Hence it is evident what Disadvantages those of that Nation lie under of having both their Persons and Actions misrepresented and their Rights and Liberties undermined and invaded and that as well by reason of the King 's residing constantly at so great a distance from them as because of his having no more Counsellors usually about him in reference to their Affairs than who as a French King was pleased to express it may all ride upon one Horse Now as it was the Oppression and Slavery under which we had been brought that rendred His Majesties Undertaking in coming into these Kingdoms with an armed Force in order to redeem them both honourable and just So it was the hope of being delivered by him from Misery and Bondage that encouraged us first to invite and then to co-operate with him in the Prosecution and Accomplishment of his glorious Design It was the Invasions upon our Laws that we complained of and from which we desired and endeavoured to be relieved nor had we any Quarrel with the late King's Counsellors save as they were Advisers unto and Instruments of overthrowing them So that if what the Parliament of Scotland desires to have redressed be not something wherein their Laws have been invaded and their Rights violated they are to blame for insisting upon it as a Claim of Right and should rather crave it as an Act of Grace if they find the want of it prejudicial to the Nation But if what is required do either appear to have been wrested from the Nation or that through their not obtaining it they will be upon all occasions obnoxious to be oppressed and inthralled we may then assure our selves that His Majesty is too just as well as good to deny them For as His Majesty doth generously acknowledg in his Declaration emitted at the Hague for the restoring of the Laws and Liberties of the Kingdom of Scotland That they who are concerned in the Laws Liberties and Customs established by Lawful Authority in a Nation are indispensibly bound to endeavour to preserve and maintain the said Laws Liberties and Customs so he doth in the same Declaration sacredly promise that upon being prosper'd in what he was then undertaking he will not only free that Kingdom from all hazard of Popery and Arbitrary Power for the future and deliver it from what at that time did expose it to both but settle it by Parliament upon such a solid Basis as to its Religious and Civil Concers as should most effectually redress all the Grievances under which it had groaned And therefore as we are not to imagine that a Parliament which in the whole course of its Proceedings hath testified so much Love Loyalty and Zeal for His Majesty both in advancing Him unto and maintaining Him in the Throne will abridg and lessen any of the just and legal Prerogatives of His Crown or challenge any Priviledg Right or Immunity which their Ancestors have not been possessed of under the best and most Glorious as well as Ancient Reigns so it were unpardonable to think that a Prince of so much Wisdom Goodness Honour Justice and Truch as His Majesty is known to be should either insist upon the detaining from His People what some of his Predecessors have by Fraud and Violence ravished from them or should so far depart from His Princely and Sacred Word as to frustrate the Expectations of His Leiges of having those Grievances redressed which His Parliament have condescended upon as necessary to be remedied But as His Majesties delaying to gratify the desires of His People is not the effect of Choice and Inclination but the result of a Force put upon him through the sinistrous Representations given him of their Demands both as illegal and as incroachments upon the Royal Authority So we do not wonder that the same Person should misreport the Actions of a Parliament and insinuate into his Master unjust and false glosses of their Votes who hath had both the Impudence and Treachery to endeavour to Possess the King with Disloyal Characters of his most dutiful best and useful Subjects And seeing his Capacity both as a Lawyer and His Majesties Advocate hath not served to instruct him of the danger nor to restrain him from Leasing-making which is Treason by the Law of Scotland it is to be hop'd that the Persons whom he hath criminally slandered will have the courage to Impeach him and that the Parliament will have the Justice to condemn him to the Punishment that the Law adjudgeth him unto Nor can it be matter of Astonishment to any to find a Person imposing upon His Majesty in reference to the Laws
by Acting in the Incroachments mentioned in the Articles of the Claim of Right which are declared to be contrary to Law or who have shewed Disaffection to the happy Change by the Blessing of God now brought about by acting in Opposition thereunto since the time that the King and Queen now Reigning were Proclaimed or who hath been a Retarder or Obstructer of the good Designs of the said Estates viz. The securing the Protestant Religion the setling the Crown the establishing the Rights of the Leiges and the redressing their Grievances by Acting contrary to these good Designs since the time that they became publick by Votes and Acts of the Meeting be allowed to possess or be admitted into any Publick Trust Place or Imployment under Their Majesties in this Kingdom I suppose the Reader by this time surprized at the unreasonableness of the Age we live in that there should be Men found so void of Sense and Understanding as to spy out any thing here that deserves to be clamour'd against or which is worthy to be complain'd of Every Line breathes of that Lenity and Moderation that it savours rather of a defect of Justice than of any excess of it and the utmost hereby designed is only a disabling a few wicked Men from ruining us for the future and not a punishing of them for what they have done for as there are none excepted as to Life so the few designed to be debarred from Offices are described and charactered after such a manner that the very employing them will Dishonour His Majesty and Disgrace his Government There is no abridging His Majesties Mercy only an endeavour to maintain the Justice of his Undertaking in coming to Deliver us For having charged the late King 's Evil Counsellors and them only with the Crimes upon which he grounded both the Righteousness and the Necessity of his Expedition Whosoever is so villanous as to advise him to use them can design no less than deriving an Aspersion upon his Wisdom Justice and Sincerity And if the Nations be not delivered from those against whom he declared how shall we be able to answer his Enemies who accuse his coming hither to have been upon another Motive For what his Friends affirm to have been bestowed upon him as the Reward only of his Expedition and of the Deliverance he wrought out for us his Adversaries will be encouraged both to believe and say was the Principal if not sole end of it Nor is it meerly needful in order to the Vindication of His Majesties glorious Undertataking in coming into Brittain That they who were the Instruments of our Slavery and Oppression under the former Government should be precluded from all share of the Administration under this but it is also necessary for the reconciling the Love and Obedience of the People to His Majesties Person and Authority Courtiers may fancy that if one be able he is qualified without other Ingredients to be a Minister of State But the most part of Mankind do always look for some degrees of Honesty in those advanced into the chief Offices in the Government Nor will People easily believe that they who betrayed their Laws Rights and Priviledges under one Reign will ever Administer Justice equally or defend them in their Properties under another Men may have present ease but they will be always in fear whilst they remain in the hands of their old Oppressors It is impossible to keep up in the minds of the Vulgar honourable Thoughts of King William's Government if he will chuse to work with King James's Tools Whosoever Counsels His Majesty to employ those that were the Instruments of the former Tyranny must intend to bring him under a Suspicion both of approving that and of designing the like No man envieth his Majesties pardoning the worst of his and the Kingdoms Enemies but we cannot avoid pitying him and bewailing our selves that he is persuaded to use them yea the Royal forgiveness ought to confine it self to limits and much more should a Prince set Bounds to himself in the Honours and Preferments which he is pleased to bestow Now having mentioned his Majesties Grace I 'll venture to say That after all the Mercy he hath exercised towards his own and his Peoples Enemies there is not one either Converted to his Interest by it or that reckons himself obliged to him for it But instead of attributing their impunity to His Majesties Grace they ascribe it to the Pusillanimity of the Government and in the room of being brought over to serve him they are emboldened to go on in their Conspiracies against His Person and Dignity Nor will they ever account themselves indebted to his Mercy till he hath made some of them the Objects of his Justice But to return to what I am upon should not such an easy Animadversion be inflicted upon those who have oppressed us as the being shut out from Trusts and Imploys in the Government We should both tempt them and others to repeat the same Crimes upon the first opportunity that is offer'd unto them Yea if instead of falling under such a gentle Mortification they should be preferred to the chief places of Honour and Profit in the Kingdom Villainy will be committed in order to Merit and Men of brutal and Profligate Principles will seek to exceed in Unjustice and Treachery that they may be thought to excel in Desert And though through the Moderation Goodness Wisdom and Justice of Their Majesties we may escape the Consequences of such a Method during Their Reign which I pray God may be long yet Posterity will lose most of the benefit of this Revolution for want of adjudging those to punishment that have been Traytors to Societies and Cannibals to Mankind in this Age whereby to deter others from being such in the next The Counsel given to Princes by the Supream Sovereign by whom they Reign is That they should punish exorbitant Offenders to instruct others to fear and forbear doing wickedly But the Advice thrust upon His Majesty by some ill Men about him is That he should cherish and advance them without regard to the effects that may attend it What a strange Idea will it give the World of our Government if the rewards of Vertue be made the recompences of Crimes And how shall we lift up our Faces to God or Men if the Malefactors under the last Reign not only escape under this without Chastisements but inherit the Preferments and Emoluments of it If what I have said be not sufficient to justifie both the expediency and equity of the forementioned Vote I hope the Experience the King hath had of that sort of People since he received them into his particular Favour and Principal Service will reconcile him unto a better Opinion of it and shew him the necessity of turning those out of Office whom his Parliament would have prevented his taking in Both the Nations are sensible of His Majesties being betray'd both in his Councils and in
in the quality of a Civil Officer under Charles II. Nor is there a Man in the whole Kingdom of Scotland who hath been more accessary to the Robberies and Spoils and who is more stained and died with the Bloody Measures of the Times than this Lord S who his Majesty hath been impos'd upon to constitute again President of the College of Justice And as an aggravation of his Crimes he hath perpetrated them under the vail of Religion and by forms of Law which is the bringing the Holy and Righteous God to be an Authorizer and Approver of his Villanies and the making the Shield of our Protection to be the Sword of our Ruin. But there being some hopes that the World will be speedily furnished with the History of his Life I shall say no more of him but shall leave him unto the expectation and dread of what the famous Mr. Robert D foretold would befal them him in his Person and Family and of which having tasted the first Fruits in so many astonishing Instances he may the more assuredly reckon upon the full Harvest of it And the Method he hath lately begun to steeer is the most likely way imaginable to hasten upon him and his what that Holy and I might say Prophetical Man denounced against them For whereas the Nation would have been willing upon his meer withdrawing from Business and not provoking their Justice by crouding into the Place in which he had so heinously offended to have left him to stand or fall at the great Tribunal and to have iâ—â—â—mpnify'd him as to Life Honour and Fortune here upon the consideration of his having co-operated in the late Revolution and of his having attended upon his Majesty in his coming over to rescue and deliver the Kingdoms from Popery and Slavery He seems resolved to hasten his own Fate and through putting himself by new Crimes out of the Capacity of Mercy to force the Estates of the Kingdom to a punishing of him both for them and for the old But to return to what we are upon about the Right of Electing a President of the Colledge of Justice It is excepted to what hath been said in proof that the Power is by Law in the Lords of Session to choose their own President that Sir John G was upon King Charles the Second's nomination approved and confirmed in Parliament Anno 1661. which was a divesting of the Lords of Session of it and a vertual rescinding all the Laws by which that Power had been settled upon them To which I have several things to reply that will discover both the Impertinency of the Objection and the Treachery of those who have insinuated it to the King. First It is acknowledged in the very Exception that the sole Choice of Sir John G as President was not in King Charles seeing the Parliament had the Approving Allowing and Admitting of him which makes that case to differ very much from the Present In which the choosing of the President is not only taken away from the Lords of the Session but the approving and admitting of him is denyed to the Estates of the Nation in Parliament assembled Secondly What was done in Ordaining Sir John G President was not a repealing of the Laws by which the Choosing of the President is vested in the Lords of the Session but was at most only a dispensing with them in that extraordinary case of a total Vacancy and in reference unto a Person of a most unspotted Integrity and unpaâ—allelled Knowledge in the Laws Nor will any Man pretending to acquaintance with Parliamentary Customs and Proceedings reckon that a Law is therefore rescinded and abrogated because the Parliament hath seen reason to supersede it in a single Instance and in a particular case Laws once Enacted and established are never accounted to be abrogated unless by particular future Laws formally repealing them or by posterior general Statutes inconsistent with and destructive of them Nor do Two or Three particular Instances varying from and repugnant unto them bring them so much as into disuse and desuetude but even in order to that there must be immemorial Prescription against them and that without being disallowed or complained of in Parliament Thirdly What the Parliament did Anno 1661. in the Case of Sir John G it was not properly done by them in their Legislative capacity but as a part of the Supream Authority of the Kingdom concurring with the King in an Act and Deed of the Supremum imperium and illimited Power of the Government which the appointing of Judges for the equal administration of Justice came to be at that season and conjuncture by reason of the total Vacancy and the impossibility that thereupon ensued of Choosing and Ordaining the Lords of Session whereof the President is always one in the ordinary Legal and Established Methods What the King and the Estates of Parliament did in the case of that Vacancy of the Colledge of Justice was much of the Nature of and parallel unto what the Estates alone have done upon the late Vacancy of the Throne wherein they acted not in the way of a Legislative Body but in the Vertue of that illimited Power which resided in them as Representatives of the whole People and who knew no other Measures whereby to act but what lay most in a tendency to the Publick Safety Fourthly The King 's having a Right to choose the President of the Session is disclaimed and ridicul'd by those very Persons that have advised him to challenge it For my Lord S in whose Favour and in pursuance of whose Advice his Majesty hath claimed a Right and exerted an Authority of appointing a President hath by the Method of his entring upon that Office and Station renounced the Legality of his Majesty's acting in that particular and declared that he holds not his Place by vertue of the King's Choice and Designation For after he had prevailed upon the King to elect and send him down President of the Session the first thing he did at their Meeting and that in order to the throwiag the blame upon his Majesty of all that had been transacted before was to wheedle that over-aw'd and pack'd Bench to choose him for President of the Colledge of Justice which as it shews the Disloyalty and Treachery of the Man so it testifieth and publisheth his Folly. For how could they be in a capacity as Lords of Session to choose him for a President that were not antecedently legally tryed and approved themselves And who knowing their own unqualifiedness both as to Literature and good Fame made his Majesty's having nominated them an excuse from their undergoing a Tryal For though it be both required by the Laws and was accordingly given out all along here that they should be tryed yet Five of them being conscious unto themselves how little they answered the Qualifications prescribed in the Statutes refused to submit to be examin'd under a Pretence that they would not thereby weaken his
three Estates or shall seek or procure the innovation or diminution of the Power and Authority of the Three Estates or of any of them shall be guilty of Treason Yet when the Present Parliament had declared the sense of the ancient Laws to be that the King in a total Vacancy could not appoint Judges without their being admitted by Parliament the advance that had been made against our Laws in His Majesties assuming a Right of Electing and Authorizing them hath been seconded with an impugning despising and subverting that Authority of Parliament which we have been speaking of Nor hath the Invasion upon Parliamentary Rights and Priviledges terminated here but there hath been a further assault made upon them both by the Councils assuming the Cognizance of that which was lodged before the Parliament and by their Actings determining in it contrary to the Vote and Declaration of the Estates who are the Supream Judicature and in conjunction with the King the one Legislative body of the Kingdom For it is an unquestioned Maxim That when a matter is once brought and tabled before the Parliament so as they have laid their hands upon it it is not afterwards to fall under the Cognizance or Determination of the Council or of any inferior Judicature unless remitted expresly unto them by the Parliament it self And therefore the Parliament having given a stop to the opening of the Signet and to the sitting of the Session till the King 's further pleasure was made known to them and until that matter should be brought to such an Accommodation as was consistent with the preservation of the Laws of the Kingdom it was a high Invasion upon the Authority and Jurisdiction of the Parliament for the Council to meddle in it But this they were aw'd unto by those who had given the King advice to chuse the Lords of Session and President and who knew no way to justifie one illegality but by another Yea our Ministers in order to make the first Act of Invasion upon the Laws which they had thrust the King upon successful and to prevent their receiving a baffle upon their first setting out on the road of Arbitrariness sent menacing Letters to those that were nominated Lords of Session threatning them with ruin if they did not sit at the time that they were appointed and had it not been for those Letters several had forborn to act as knowing they could not lawfully do it And as the sending those Letters sheweth that the Ministers here were convinced that they had counselled the King to an illegal Thing but which was to be supported in the same manner So these Gentlemen of the long Robe who contrary to their own Judgment were influenced to sit and to transgress known Laws have declared how Unworthy and Unqualified they are to be received and approved by Parliament as Lords of the College of Justice And to Crown all these Miscarriages in Government with one more his Majesties Ministers being fully sensible that they whom they call Lords of Session were neither legally appointed nor could legally meet and sit they therefore resolved forcibly to support what they had unjustly begun and done and accordingly against the day and time those Gentlemen were to sit they ordered all the Forces which were drawn in unusual Numbers about Edenburgh to be in a readiness upon beat of Drum that what they had Arbitrarily begun might be Violently maintained Which as it was an applying and using of his Majesties Troops upon a much differing Design than that for which the Parliament had consented to their being raised and paid So it had been much more for his Majesties Honour and the Benefit of his Kingdom that they had been all imploy'd against Cannon who is still making Inroads and committing Robberies upon several of his Majesties Loyal Subjects and who by the ill Conduct and treasonable Counsel of some of his Majesties Ministers seems to have been connived at and forborn since the last defeat that was given him for no other reason but that there may be a stand for other Rebels in due time to go unto But that which I would observe Thirdly and in the last place is That his Majesty for his own Honour and Safety and for the Peace and Welfare of his People ought to make some Change and Alteration of his Ministers For it is evident That they who are imployed as Instruments of Oppression Rapine and Murder under an ill Government can never be of use unto nor for the reputation of a good It is evident That he is betrayed nor is it so difficult to know by whom and how For Things speak when Men either dare not or will not And Advices are not to be judg'd of by the Quality and Profession of the Persons that give them but by the tendency of the Counsels that are given For example They cannot design well unto his Majesty who tell him That he must not make haste to conquer his Enemies until he have first screw'd up his Prerogative and that he is to improve the dread his People are under of King James for wresting from them what he can before he attack him Again they cannot intend his Majesties Interest who would have him overlook the Crimes and Treasons that are daily committed against him seeing the conniving at Rebels can only be to incourage Rebellion Again they who advise him to be King only of a Party and not of the whole People have a mind he should be King of none And to counsel him either not to use those in his Service who are both willing to serve him and would do it with the utmost Fidedelity or to use those whose Carriage speaks them to be in the Interest of his Enemies it is to have him betrayed instead of being served Nor can they be for his Continuing upon the Throne who would have hindred his Ascent unto it And whosoever embarrasseth him with his Parliaments and by it retards Succours for the Support of the War can mean no less than that his Majesty and his Kingdom should become a Prey to King James and to his Brother of France And they who counsel him to go on where his Predecessor left off have a mind to see a new Abdication though they were not for the Old. But what might be said upon this Head requireth rather an intire Discourse than to be confined unto a short Remark And therefore all I shall add is That as his Majesty must be infallibly lost without a speedy Change as to some of his Ministers so he needs not to fear them if they be but once thrust out of his Councils seeing all the hurt that they are able to do him is through their being there And if he will but own himself and assert his own Interest he will have enough of those to stand by him who have no Interest but what is his FINIS AN ADDRESS Sign'd by the greatest Part of the MEMBERS of the Parliament OF SCOTLAND AND Deliver'd