above him And the Acts of Parliament in the late Rebellion having run thus Our Soveraign Lord and the three Estates contrare to the 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 lyable to Passions Errors and Extravagancies as well as Kings are and have if Buchannan be believed betrayed the interest of the Kingdom since K. Kenneth the seconds time now above 700. years and they are ordinarily led by some pragmatical Ring-leaders who have not that 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 thereto 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 beeing 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 Liedge-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 a Bond for securing the Peace for these and the like being things which relate immediatly to Government the King has as much right to regulate these as we have to regulate and dispose upon our Property Government being the King's Property 2. Though the Monarchy had been derived from the People yet how soon our Kings got the Monarchy they got every thing that was necessary for the Explication and Administration 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 warrand 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 prator cogere non potest quia triplici officio fungi nequit suspectum dicentis coacâ—â— cogentis L. Ille aâ—quo ff ad Trebell It is a principle 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 how soon 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 derecept â—rbitr Nemo sibi legem imponere potest l. quid autem ff de donat 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 Co-ercive Force of the Law as all Lawyers that are indifferent do assert Hâ—rmenopol l. 1. tit 1. Sect. 48. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The King is not Subject to the Law because offending against them he is not punisht vid Granswinkell cap. 6. Arnis cap. 4. Francisc. a victoria Relect. 3. num 4. Ziegler de
Civil Wars betwixt Scilla and Marcus Caesar and Pompeij without considering what followed under the Trium viri Faelices Arabes Medique Eoaque tellus Qui sub perpetuis tenuerunt Regna Tyrannii 5. These who debate against Magistracy gratifie their own Vanity and Insolence but such devout men as Ambrose Augustine Vsher and others Debate against the Dictats of Interest as well as Passion which two nothing save Grace can overcome and there can be no surer mark of Conviction than to recide against these Lastly even Buchannan repented this horrid Doctrine Cambden 10. year of Queen Elizabeths Reign in 1567. But forasmuch as Buchannan being transported with partial affection and with Murrays bounty wrot in such sort that his said Books have been condemned of falsehood by the Estates of the Realm of Scotland to whose Credite more is to be Atributed and he himself sighing and sorrowing sundry times blam'd himself as I have heard before the King to whom he was School-master for that he had employ'd so virulent a Pen against that well deserving Queen and upon his Death-bed wished that he might live so long till by recalling the truth he might even with his Blood wipe away these Aspertions which he had by his bad Tongue falsly laid upon her but that as he said it would now be in vain when he might seem to dote for Age c. Idem Anno 1582. And not content with all this speaking of their surprizing the King they Compell'd the King against his Will to approve of this intercepting of him by his Letters to the Queen of England and to Decree an Assembly of the Estates Summoned by them to be just yet could they not enduce Buchannan to approve of this their Fact either by writting or perswasion by Message who now sorrowfully lamented that he had already undertaken the Cause of Factious people against their Princes and soon after Died c. THAT THE Lawful Successor Cannot be DEBARR'D From Succeeding to the CROWN Maintain'd against Dolman Buchannan and others BY Sir GEORGE MACKENZIE His Majesties Advocat EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1684. King James In His Advice to Prince Henry Page 173. IF God give you not Succession Defraud never the nearest by Right whatsoever conceit ye have of the Person for Kingdoms are ever at Gods Disposition and in that Case we are but Liferenters it lying no more in the Kings than in the Peoples Hands to Dispossess the Righteous Heir Page 209. Ibid. FOr at the very moment of the Expyring of the King Reigning the nearest and Lawful Heir entereth in his place and so to refuse him or intrude another is not to hold out the Successor from coming in but to expel and put out their Righteous King and I trust at this time whole France acknowledgeth the Rebellion of the Leaguers who upon pretence of Heresie by force of Arms held so long out to the great Desolation of their whole Countrey their Native and Righteous King from possessing his own Crown and natural Kingdom ERRATA Page 5. delet at his Majority Page 33. for Richard 3d. Read 2d The Right of the Succession Defended THe fourth Conclusion to be cleared was that neither the People nor Parliaments of this Kingdom could seclude the lineall Successor or could raise to the throne any other of the same Royal line For clearing whereof I shall according to my former method first clear what is our positive Law in this case Secondly I shall shew that this our Law is founded upon excellent reason and lastly I shall answer the objections As to the first It is by the second Act of our last Parliament acknowledged That the Kings of this realme deriving their Royal power from God Almighty alone do lineally succeed therto according to the known degrees of proximitie in blood which cannot be interrupted suspended or diverted by any Act or Statut whatsoever and that none can attempt to alter or divert the said Succession without involving the subjects of this Kingdom in Perjury and Rebellion and without exposing them to all the fatal and dreadful consequences of a civil warr DO THEREFORE from a hearty and sincere sense of their duty Recognize acknowledge and declare that the right to the Imperial Crown of this realme is by the inherent right and the nature of Monarchy as well as by the fundamental and unalterable laws of this realme transmitted and devolved by a lineal Succession according to the proximity of blood And that upon the death of the King or Queen who actually reignes the Subjects of this Kingdom are bound by Law duty and alledgance to obey the nixt immediat and Lawful Heir either male or female upon whom the right and administration of the Government is immediatly devolved And that no difference in Religion nor no Law nor Act of Parliament made or to be made can alter or divert the right of Succession and lineal descent of the Crown to the nearest and Lawful Heirs according to the degrees foresaids nor can stop or hinder them in the full free and actuall administration of the Government according to the Laws of the Kingdom LIKE AS OUR SOVERAIGNE LORD with advice and consent of the saids Estates of Parliament Do declare it is high treason in any of the Subjects of this Kingdom by writing speaking or any other manner of way to endeavour the alteration suspension or diversion of the said right of Succession or the debarring the next Lawfull Successor from the immediat actual full and free administration of the Government conform to the Laws of the Kingdom And that all such attempts or designes shall inferre against them the paine of treason This being not only ane Act of Parliament declaring all such as shall endeavour to alter the Succession to be punishable as Traitors but containing in it a Decision of this Point by the Parliament as the Supream Judges of the nation and ane acknowledgement by them as the representatives of the people and nation There can be no place for questioning a point which they have plac'd beyond all contraversie especially seing it past so unanimously that there was not only no vote given but even no argument propon'd against it And the only doubt mov'd about it was whither any Act of Parliament or acknowledgement was necessary in a point which was in it self so uncontraverted And which all who were not desperat fanaticks did conclude to be so in this nation even after they had hear'd all the arguments that were us'd and the Pamphlets that were written against it in our neighbour-Kingdom But because so much noise has been made about this question and that blind bigotry leads some and humorous faction drawes others out of the common road I conceive it will be fit to remember my reader of these following reasons which will I hope clear that as this is our present positive Law so it is established upon the fundamental
and may rise in Arms against them if the Monarch hinder them to Reform 4. That the People or their Representatives may seclude the Lineal Successor and raise to the Throne any of the Royal Family who doth best deserve the Royal Dignity These being all matters of Right the plain and easie way which I resolve to take for refuting them so as the learned and unlearned may be equally convinced shall be first by giving a true account of what is our present positive Law 2. By demonstrating that as our present positive Law is inconsistent with these Principles so these our positive Laws are excellently well founded upon the very nature of Monarchy and that those Principles are inconsistent with all Monarchy And the third Class of my Arguments shall be from the Principles of common Reason Equity and Government abstracting both from the positiveness of our Law and the nature of our Monarchy And in the last place I shall answer the Arguments of those Authors As to the first I conceive that a Treatise De Iure Regni apud Scotos should have clear'd to us what was the power of Monarchs by Law and particularly what was the positive Law of Scotland as to this point for if these points be clear by our positive Law there is no further place for debate since it is absolutely necessary for Mankind especially in matters of Government that they at last acquiesce in something that is fix'd and certain and therefore it is very well observed by Lawyers and States-men that before Laws be made men ought to reason but after they are made they ought to obey which makes me admire how Buchannan and the other Authors that I have named should have adventur'd upon a Debate in Law not being themselves Lawyers and should have written Books upon that Subject without citing one Law Civil or Municipal pro or con Nor is their Veracity more to be esteemed than their Learning for it 's undenyable that Buchannan wrot this Book De Iure Regni to perswade Scotland to raise his Patron though a Bastard to the Crown and the Authors of Lex Rex Ius Populi Vindicatum and others were known to have written those Libels from picque against the Government because they justly suffered under it I know that to this it may be answered That these Statutes are but late and were not extant in Buchanans time and consequently Buchanan cannot be Redargu'd by them 2. That these Statutes have been obtain'd from Parliaments by the too great influence of their Monarchs and the too great Pusillanimity of Parliaments who could not resign the Rights and Priviledges of the People since they have no Warrand from them for that effect To the first of which I answer that my Task is not to form an Accusation against Buchanan but against his Principles and to demonstrat that these Principles are not our Law but are inconsistent with it and it is ridiculous to think that any such Laws should have been made before these Treasonable Principles were once hatched and maintained for Errors must appear before they be condemned and by the same Argument it may be as well urged that Arius Nestorius c. were not Hereticks because those Acts of General Councils which condemned their Heresies were not extant when they first defended those opinions and that our King had not the power of making Peace and War till the Year 1661 But 2 dly For clearing this Point it is fit to know that our Parliaments never give Prerogatives to our Kings but only declare what have been their Prerogatives and particularly in these Statutes that I shall Cite the Parliament doth not Confer any New Right upon the King but only acknowledge what was Originally his Right and Prerogative from the beginning and therefore the Parliament being the only Judges who could decide whether Buchannans Principles were solid and what was Ius Regni apud Scctor These Statutes having decided those points contraverted by him there can be hereafter no place for Debate and particularly as to Buchannan his Book De jure Regni apud Scotos it is expresly condemn'd as Slanderous and containing several offensive Matters by the 134 Act Parl. 8. Ia. 6. in Anno 1584. which was the first Parliament that ever sat after his Book was printed To the 2 d I answer that it being controverted what is the Kings Power there can be no stronger Decision of that Controversie in Favours of the King than the acknowledgment of all Parties Interested and it is strange and unsufferable to hear such as appeal to Parliaments cry out against their Power their Justice and Decisions and why should we oppress our Kings and raise Civil Wars whereby we endanger so much our selves to procure powers to Parliaments if Parliaments be such ridiculous things as we cannot trust when they are empowered by us and if there be any force in this answer of Buchannans there can be none in any of our Laws for that strikes at the Root of all our Laws and as I have produced a Tract of reiterated Laws for many Years so where were there ever such free unlimited Parliaments in any Nation as these whose Laws I have Cited 2 dly Whatever might be said if a positive Contract betwixt the King and People were produced clearing what were the just Limits of the Monarchy and bounding it by clear Articles mutually agreed upon yet it is very absurd and extravagant to think that when the Debate is what is the King of Scotlands just Power and Right and from whom he Derives it that the Laws and repeated Acknowledgements of the whole Representatives of the People assembled in the Supream Court of the Nation having no open force upon it but enacted at several times in many several Parliaments under the gentlest peaceablest and wisest Kings that ever they had should not be better believed than the Testimonies of three or four byass'd and disoblig'd Pedants who understood neither our Laws nor Statutes and who can bring no clear fundamental Law nor produce no Contract nor Paction restricting the King or bounding his Government 3 dly That which adds a great deal of Authority to this Debate and these Statutes is that as this is clear by our positive Law so it is necessarly inferred from the nature of our Monarchy and is very advantagious for the Subjects of this Kingdom which I shall clear in the second and third Arguments that I shall bring against these Treasonable Principles nor can they be seconded by any solid Reason as I shall make appear in answering the Arguments of those Authors I know that Nephthaly the Author of Ius populi and our late Fanatical Pamphlets alleadge that our Parliaments since 1661 are null and unlawful because many who have Right to sit as Members or to Elect Members were secluded by the Declaration or Test But my answer is First That these were excluded by Acts of Parliament which were past in Parliaments prior to their exclusion
and so they were excluded by Law and no man can be said to be illegally excluded from his Seat in Parliament who is excluded by a clear Statute 2 dly If this were not a good answer then the Papists might pretend that they are unjustly excluded because they will not take the Oath of Supremacy and because they are Papists and how can the Fanaticks pretend to make this objection since they by the same way excluded the Kings Loyal Subjects in the Year 1647. and 1649. c. Or how would these Authors have rail'd at any Malignant for using this Argument against them which they use now most impudently against us with far less justice for their Parliaments were unjust upon other Heads as being inconsistent with the fundamental Laws of the Kingdom and so their acts of exclusion were null in themselves 3 dly All the Statutes made since 1661. are necessary consequences of former Laws and so are rather renewed than new Laws 4 ly If this were allow'd there could be no end of controversie for all who are excluded would still alleadge that they were unjustly excluded and consequently there could be no submission to Authority and so no Society nor Peace The last answer that our Dissenters make when they are driven from all their other grounds is that they though the lesser are yet the sounder part of the Nation but this shift does not only overturn Monarchy but establishes Anarchy and though they were once settl'd in their beloved Commonwealth this would be sufficient to overturn it also for every little number of Dissenters nay and even the meanest Dissenter himself might pretend to be this sounder part of the Common-wealth but God Almighty foreseeing that pride or ignorance would suggest to frail Mankind this principle so inconsistent with all that Order and Government whereby he was to preserve the World he did therefore in his great Wisdom convince men by the Light of their own Reason that in matters of common concern which were to be determined by Debate the greater number should determine the lesser and such as drive beyond this Principle shall never find any certain Point at which they may rest and by the same Reason the Law has pronunc'd it safer to rest in what is decided though it be unjust than to cast loose the authority of Decisions upon which the peace and quiet of the Common-wealth does depend who would be so humble and just as to confess that his Adversary has the juster side Or who would obey if this were allow'd And what Idea of Government or Society could a man form to himself allowing once this principle It is also very observable that those who pretend to be the sounder part and deny obedience upon that account are still the most insolent and irregular of all the Society the greatest admirers of themselves and the greatest enemies to peace and so the unfitest to be Judges of what is the sounder part though they were not themselves parties But what pretence is there for that Plea in this case where the foundations of our Monarchy have been unanimously acknowledg'd by many different Parliaments in many different Ages chosen at first from the Dictats of Reason and confirm'd after we had in many Rebellions found how dangerous all those popular pretences are and in which we agree with the Statsmen Lawers and Divines of all the well Govern'd Nations under Heaven who are born under an hereditary Monarchy as it is confess'd we are To return then to the first of those Points I lay down as my first position that our Monarchs derive not their Right from the People but are absolute Monarchs deriving their Royal Authority immediatly from God Almighty and this I shall endeavour to prove first from our positive Law By the 2. Act Par. 1. Ch. 2 d. in which it is declar'd That His Majesty His Heirs and Successors have for ever by vertue of that Royol Power which they hold from God Almighty over this Kingdom the sole choice and appointment of Officers of State Counsellors and Judges But because this Act did only assert that our Kings did hold their Royal Power from God but did not exclude the people from being sharers in bestowing this Donative therefore by the 5 th Act of that same Parliament they acknowledge the Obligation lying on them in Conscience Honour and Gratitude to own and assert the Royal Prerogatives of the Imperial Crown of this Kingdom which the Kings Majesty holds from God Almighty alone and therefore they acknowledge that the Kings Majesty only by vertue of His Royal Prerogative can make Peace and War and Treaties with forraign Princes Because this last Statute did only assert that the King did hold His Imperial Crown from God alone but did not decide from whom our Kings did only derive their Power therefore by the 2 d· Act Par. 3 d Ch. 2 d. It is declar'd that the Estates of Parliament considering that the Kings of this Realm Deriving their Power from God Almighty alone they do succeed Lineally thereto c. Which Statutes do in this agree with our old Law for in the first Chapter of Reg. Magist. vers 3. These Words are That both in Peace and War our Glorious King may so Govern this Kingdom committed to Him by God Almighty in which He has no Superiour but God Almighty alone which Books are acknowledg'd to be our Law and are called the Kings Laws by the 54 th Act Par. 3 d Iam. 1. and the 115. Act Par. 14. Iam. 3. These our Laws both Ancient and Modern can neither be thought to be extorted by force nor enacted by flattery since in this we follow the Scripture the Primitive Church and their Councils the Civil Law and its Commentators and the wisest Heathens both Philosophers and Poets As to the Scripture God tells us That by him Kings Reign and that he hath anointed them Kings and that the King is the Minister of God David tells us That God will give strength to his King and deliverance to his King and to his Anointed Daniel sayes to Nebuchadnezar The God of Heaven hath given thee a Kingdom And to Cyrus God gave to Nebuchadnezar thy Father a Kingdom and for the Majesty that he gave him all Nations trembled As to the Fathers Augustin de Civit. Dei l. 5. c. 21. Let us not attribute unto any other the power of giving Kingdoms and Empyrs but to the true God Basil in Psal. 32. The Lord setteth up Kings and removeth them Tertul apol contra gentes Let Kings know that from God only they have their Empyre and in whose power only they are And Ireneus having prov'd this point fully ends thus l. 5. c. 24. By whose Command they are born men by his likewise they are ordain'd Kings This is also acknowledg'd by the Councils of Toledo 6. c. 14 of Paris 6. c. 5. vid Council aquis gran 3. c. 1. Amongst our late Divines Marca the famous Arch-bishop of Paris
who can only take it away because he gave it And if it be objected that this last branch of the Argument seems either to prove nothing or else to prove that there can be no Elective Monarchies To this it is answered that even in Elective Monarchies the Nomination proceeds only from the People but the Royal Power from God as we see in inferiour Magistracies such as Burrows Royal c. the People Elect and so the Nomination is from them but the power of Governing proceeds from the King and not from the Electors and therefore as the People who Elected the Magistrats in these Towns cannot Depose them by their own Authority so neither can the People Depose their King but the punishment of him belongs to God Almighty I confesse that if the People Choose a King with expresse Condition that they may punish him as the Lacedemonian Kings were punishable by those Magistrats call'd the Ephori the Kings are in that case accountable to the People but then they are not Monarchs having supream Power as our Kings have and who are therefore declar'd to hold their Power immediatly from God and not to be at all punishable by the People The 4 th Argument that I shall use for proving that our Kings derive not their power from the People shall be from the natural Origin of Monarchie and of ours in particular which I conceive to be that Right of Paternal Power which is stated in them for understanding whereof it is fit to know that God at first created only one Man that so his Children might be subject to him as all Children yet are to their Parents and therefore the Jesuitical and Fanatical Principles that every man is born Free and at Liberty to choose what form of Government he pleaseth was ever and is most false for every man is born a Subject to his own Parents who if they were not likewise subject to a Superiour Power might judge and punish them Capitally lead them out to War and do all other things that a King could do as we see the Patriarches did in their own Families And as long as it is known who is the Root of the Family or who represents it there is no place for Election and people Elect only when the memory of this is lost and such as overcome the Heads of Families in Batle succeed to them in their Paternal Right If it be answered that the Father may by nature pretend to a power over his Children or it may be an Elder Brother over his Cadets yet there is no tye in nature subjecting Collaterals as Uncles and their descendents to those descended from the Eldest Familie To this I reply that 1. This power over all the Family was justly given by nature to shun divisions for else every little Family should have erected it self in a distinct Government and the weakest had still been a Prey 2. We see that Abraham did lead out to War and in every thing Act as King not only over his own Children but all the Family and whole Nations are call'd the Children of Israel the Children of Edom c. 3. That must be concluded to be establish'd by natural instinct which all men in all Ages and Places allow and follow but so it is that all Nations in all Places and Times have ever allow'd the Eldest Son of the Eldest Family to govern all descended from the Stock without new Elections and the Author of the late famous Moral Essayes have admir'd this as one of the wisest Maxims that we have from Natural Instinct for if the wisest or strongest were to be choos'd there had still been many Rivals and so much Faction and Discord but it is still certain who is the Eldest Son and this precludes all Debate and prevents all Dissention For applying this to our Case it is fit to know that if we believe not our Historians then none else can prove that the People of Scotland did at first Elect a King that being contrarie to the acknowledgements of our own Statutes and all Buchannans Arguments for restricting Kings being founded upon the authority of our Historians who as he sayes assert that K. Fergus was first Elected King by the People if he be not able to prove that our Kings owe their Crowns to the Election of the People without any inherent or previous Right all his Arguments evanish to nothing but on the other hand if we consider exactly our Historians we will find that our Kings Reign over us by this Paternal Power and though I am not very fond of Fabulous Antiquities yet if Tradition or Histories can be believ'd in any thing they should at least be believ'd against Buchannan and those who make use of them to restrict the power of our Kings and by our Histories it is clear that Gathelus having led some Forces into Egypt he after several Victories setl'd in Portugal call'd from him Portus Gatheli from which an Collonie of that Race transported it self into Ireland and another into Scotland nor should this be accounted a Fable since Cornelius Tacitus in the Life of Agricola makes the Scots to be of Spanish and the Picts to be of German Extraction The Scottish Collonies finding themselves opprest by the Brittains and Picts they sent over into Ireland to Ferquhard and he sent them a considerable Supplie under the Command of Fergus his Son who having secur'd them against their Enemies all the Heads of the Tribes acknowledged him for their King and swore that they should never admit of any other Form of Government then Monarchie and that they should never obey any except Him and his Posterity which if they brake they wish'd that all the Plagues and Miseries that had formerly fallen on their Predecessors might again fall upon their Posterity as the punishment of that Perjury All which Religious Vows and Promises Seal'd by those dreadful Oaths voluntarly given were graven on Marble Tables and Consign'd for preservation into the custody of their Priests and these are Boetius own words Fol. 10. From which I observe 1. That as our Laws assert that our Kings derive their Power from God and not from the People so we ought not to believe the contrary upon the Faith of our Historians except they were very clear and unanimous in contradicting our Laws whereas it appears to me that our Laws agree with our Historie for Gathelus was not at all Elected by the People but was himself the Son of a King and did Conquer by his own Subjects and Servants and all those who are descended from his Collonies were by Law oblidg'd to obey the Eldest Son and Representative of that Royal Family And Ferquhard is acknowledg'd to have been his only Successor nor did ever any of the Scottish Tribes pretend to the Supremacie and our Histories bear that none of our Tribes would yield to another and the Fatal Marble Chair that came from Spain remaining with these who went to Ireland does evince that
Vowes to make Inquiry and what Vow or Oath could be useful if the giver were to be Iudge how far he were ty'd and if his conveniency were the measure of his Obligation But since I shall hereafter fully prove that these limitations are as dangerous to the Subjects as to the Prince and that ten thousand times moe Murders and other Insolencies have been committed in Civil Wars upon the false pretence of Liberty than ever was committed by the worst of Kings it must necessarily follow that those limitations ought not to be admitted after an absolute Oath for eviting inconveniencies which at the ballance appear to be of no weight 5. It cannot be denyed but our Kings have ever had the power of Peace and War the calling and disolving of Parliments and a negative Voice in them the remitting of Crimes and nomination of Judges and therefore it must be presumed that since the Law has not limited them in those things it has limited them in nothing for by involving us in War they may expose our Fortunes our Wives and Children to the greatest of dangers and it had been great folly to limit them in any thing after those great Prerogatives were allowed And though our Histories do bear That Peace and War were ordinarly determined by the advice and consent of the Nobility yet that does no more infer a necessity not to do otherwayes than the ordinary stile of all our Proclamations bearing to be with advice of our Privy Council infers a necessity upon the King to do nothing without their advice and how could the consent of the Nobility have been necessary in the former Ages since all their Right flowed from the King Himself and that neither they then nor the Parliament now had or have a Power equal with the King much less above Him as shall be fully proved in the first Conclusion that I am to draw from this Doctrine only to what I have said I must here add that it being proposed to our Predecessors at the swearing the Oath of Allegiance to King Fergus whether they would be govern'd by a King who should have absolute Power or by the Nobility or by a Multitude it was answered that lest they should have many Kings in place of one they abhorr'd to bestow the the Absolute Power either upon the Nobility or upon the Multitude 6. I cannot but exceedingly commend our Predecessors for making this reasonable choice of an absolute Monarchy for a Monarch that is subject to the impetuous caprices of the Multitude when giddie or to the incorrigible Factiousness of Nobility when interested is in effect no Government at all and though a mixt Monarchy may seem a plausible thing to Metaphisical Spirits and School-men yet to such as understand Government and the World it cannot but appear impracticable for if the People understand that it is in their Power to check their Monarch the desire of command is so bewitching a thing that probably they will be at it upon all occasions and so when the King commands one thing the Nobility will command another and it may be the People a third And as it implyes a contradiction that the same Persons should both command and obey so where find we those sober and mortified men who will obey when they may command Let us consider what dreadful extravagancies and cruelties appear'd at Rome betwixt the Tribunes of the People and the Senat one of six Kings had a Son who ravish'd a Woman and thereupon the Kings were expell'd but every year almost produced a Civil War wherein vast numbers of free Romans were murther'd and in the contest betwixt Sylla and Marius 90. Senators 15. Consuls 2600. Gentlemen and 100000. others were murther'd and after the whole Common-wealth was exhausted in the Wars betwixt Cesar and Pompey and in the immediat succeeding War betwixt Augustus Anthonie and Lepidus wherein every man lost either a Brother a Father or a Son Rome return'd again to its Monarchy and was never so happy as under Augustus The People of Naples complaining lately of their Taxes put themselves under the Command of Reforming Massaniello by whose extravagancies they suffer'd more in one Moneth than they had done under the Spainsh cruelty in an hundred years But our late Reformation in Brittain seems to have been permitted by God to let us see that mix'd Governments having power to Reform Kings are more insufferable than Tirrany for by it we saw that the multitude consists of Knaves and Fools and both these are the worst of Governors that the best of Kings will be thought wicked when Subjects are his Judges who resolve not to obey and that it is impossible to know what is right when every man is Judge of what is wrong The impracticableness likewise of this popular Supremacy will yet more convincingly appear if we consider that the People are to be Judges because of their natural freedom for then all men should have equal right to be Reformers and these can never meet nor consult together And if it be answered that the People may send their Representatives my Reply is that the greatest half of the Nation are neither Freeholders nor Burgesses and yet those only are call'd the Representatives of the people and what absurd Tricks and Cheats are us'd in choosing even those Representatives and it may be the resolution prevails by the Vote of the greatest Fool or Knave in the Meeting and if any one man remove by sickness or accident at the passing of a Vote or if any of the multitude be bryb'd or have prejudice though on a most unjust account that which would have been the interest of the Nation turns to be against it so infallible a Judge is the multitude And I have seen in popular Elections hundreds cry for a thing and thereafter ask what was the matter 7 ly If the the Proceres Regni or Nobility are to be the check upon our Kings and to be trusted with this coercive power of calling them to an account as Buchannan pretends then I desire to know who invested them with this power for it was never pretended that it is naturally inherent in them And if the people invested them I desire to know by what Act the people transferr'd this power upon them for they have no Law nor original Constitution for this as our Kings have for their Right and passing over the dangers may arise from their having this power because of the Factiousness Poverty Picques Humors or Ignorance that may be incident to them it seems to me strange why we the people should trust such to be our Checks over the King who are His own Creatures owing their Honours to Him and expecting dayly from Him Imployments and Estates and if they and the people differ who is to be Judges of those Controversies Nor can the Nobility and Commons assembled in Parliament have this coercive power for the Reasons which I shall hereafter offer and therefore none has it but the
overjoyed as men are when they are free'd from the Gallies in which they had been Treated as Slaves And whereas these Republicans pretend that the King is but a Phisician this shews that they design to have no King for any man may lawfully change his Phisician and Buchannans laying so much weight on this Argument makes me suspect much his honesty for no man can have so mean an opinion of his Sense And his comparing the Monarch to a Tutor is very extravagant for no man is sworn to have such a mans Heirs for Tutors but though he were a Tutor no man can remove his Tutor at pleasure as they say the People may remove their King Nor is a Tutor to be laid aside but by an Action before a Superior Judge wherein he is to be proved to have Malversed and therefore since there is no Superior Judge except God and that the People are not his Superiors it clearly follows that the People cannot lay aside their King A Tutor has not an inherent Right of Property as a King hath to the Government of the Nation and to the Imperial Crown thereof only I joyne so far with Buchannan in these Rhetorical expressions that I really think the Multitude is alwayes so mad that they need a King to be their Physitian and of so weak a Judgement like Mi. nors that they need him for a Tutor and without his assistance and protection every hypocritical Bigot and ambitious Usurper would cheat them at his pleasure and make them not only a Prey but a Tool in their own Slavery Nor is there any force in that Argument the King was made for the People and not the People for the King and therefore the People are Nobler than the King and ought to be preferred to Him For to this it is answered that 1. The question here is not who is more preferable but who is the Superiour And though one good Christian be preferable to a thousand who are not so yet their Interest in the Common-wealth is not preferable the wiser part is still preferable to the greater part and yet the greater will over-rule the wiser A Shepherd is ordained for the Flock and yet it cannot be concluded that a Flock of Brutes is to be preferred to any Reasonable Creature 2. The Kings Interest and the Peoples are inseparable in the Construction of Law which presumes that what the King does He does for the People and there is none above the King that can Judge Him if He does otherwise 3. Whether the Kings Power be derived from God or from the People Yet if it be derived from God it is preferable because of Gods Ordinance Or if from the People it is preferable because they by Electing Him King have consented that it should be so and they having Trusted Him with the publick Interest the publick Interest is still preferable I know that Buchannan and others value themselves much upon the Instance of the Bruce and Baliol in which the people did Declare that they preferred the Bruce because the Baliol had enslaved the Kingdom to the English And it is generally urged that all Lawyers are clear that if a King Alienat His Kingdom His people may Disclaim Him But my answers are That if a King will Alienat His Kingdom the Subjects are free in that case not by their power to reassume their first Liberty but because the King will not continue King and they are free by His Deed but not by their own Right 2. Even in that case Lawyers do irritat and annul the Deed but dissolve not the Contraveeners Right And as to that particular Instance it is well known that King Robert the First or the Bruce as we call him was desirous that the Parliament should threaten to choose another if He submitted His Interest to the Popes Decision who pretended then to be the Supream Judge over all Kings And Iohn Major as many other Popish Writers were still enemies to the Supremacy of Kings upon that account But though the Bruce to please the people should have shunned to quarrel what they did in such a Juncture yet that could not wrong the Monarchy nor His Successors as shall be proved Having thus cleared that the Kings power is not derived from the people even though they had Elected Him and that He is an absolute King both by our Laws and the Nature of our Monarchy and that all this is most consistent with right Reason I come now to draw some Conclusions from these Principles The first Conclusion shall be that our Parliaments are not co-ordinat with our Kings in the Legislative Power but that the Legislative and Architectonick Power of making Laws as Lawyers term it does Solly reside in the King the Estates of Parliament only consenting which will furder appear by these Reasons 1. It cannot be denyed but we had Kings long ere we had Parliaments we never having had any Parliaments till King Kenneth the 3 ds time according to the Computation of the severest Re-publicans themselves for till then we Read only of the Proceres Regni or the Nobility or Chiefs of Clanes and Heads of Families who assembled upon all occasions to give the King advice and therefore our Parliaments cannot pretend that they were designed as a Co-ordinate power with the King whilst he did what was right much less to be his Judge when he did what was wrong 2. That our Kings made Laws of old without any consent and that these were acquiesced in by the people is clear not only from our Histories which do tell us that such Kings made such Laws without speaking any thing of either Nobility People or Parliament but even from our old Books of Statutes wherein there is no mention made of the consent of either the Nobility or Parliament The Laws at that time beginning simply The Kings Statutes as in all the Statutes of King William King Alexander 2 d. and in the Statutes of King Malcolm Canmore King David the first and King David the 2 d. where there is not so much as mention made of the Nobility or the Parliament in the very beginning of the Statutes and that at other times the Nobility were only called and that only the Nobility did sit is very clear from the Inscriptions of these Parliaments such as in the Parl. K. Alexander 2 d. which bears to have been made with the common consent of the Nobility cum communi consensu Comitum suorum without speaking of any other State Nor do I find a word of Burgesses till the Parliament of K. Robert the 3 d. in 1400. and even according to this late Constitution it is undenyable that the Parliament have not even an equal power with the King much less a power above him 3. How can that Judicature have a Co-ordinat power with the King when no man can sit in it but by a priviledge from the King but so it is that all that are Members of Parliament sit there by a
jur Majes cap. 1. num 12. with whom the Fathers also agree Ambros. in Apol. David cap. 4. Liberi sunt Reges a vinâ—ulis delictorum neque enim ullis ad poenam vocantur legibus tuti Imperij potestate Isiodorus 3. sent cap. 31. populi peccantes Iudicem meâ—â—uâ—t Reges autem solo Dei timore metuque gâ—hennae coercentur And in this Sense they take these words Psal. 51. Against thee thee only have I sinned and I was glad to find in Bishop Vshers Power of Prinâ—es amongst many other Citations that the Rabbies and particularly Rabbi Ieremiah ownâ—d that no Creature may Judge the King but the Holy and Blessâ—d God alone in which also Heathens agree with Jews and Christians Ecphantas the Pithagorean makes it the Priviledge of God and then of the King to be Judg'd by none Stobeus Sermon 46. and Dion in Marco Aurelio tells us that it is certain that free Monarchs cannot be Judg'd save by God alone and if it were otherwise we should see them very unsecure for the ambition and avarice of insolent Subjects should never or seldom miss to form their Process and why should Parties be Judges But to demonstrate the Justice Kings and Princes are to expect from the Populace and Mobile let us remember their Material Justice in the usage of our Saviour when they cryed Crucifie him Crucifie him their Sentence against King CHARLES the Martyre when they were at the hight of their pretensions to Pietie and publick Spiritedness their usage of de Witt the Idolizer of them and their Common-wealth and if we want a true Idea of their Form of Process we will find it in their usage of the Arch-bishop of St. Andrews and others no Lâ—bel no Citation no Defenses no Sentences no time to prepare to die and yet all this are the Dictates of pure and devout publick Spiritedness Buchannans Bloody Arguments for this position are that Tyrants have been Murthered with applause and Princes would become licentious if they were not Restrained by the just fear of being called to an account That the Roman and Venetian Magistrates have been punish'd by the people and that the ordinary Judges of the place have Judg'd them and that some of our Kings as well as these of other Nations have been punish'd as Tyrants To which I answer shortly that Inconveniencies must not prevail with us to break our Oathes and overturn our Laws for nothing has so great inconveniencie in it as this has these being but partial and this is a total Inconveniency And the English Lawyers agree that a mischief is better than an inconvenience and this should have been considered before we swore to Monarchy and if the people were Electors as they never were yet they should have reserv'd this power or else they cannot now challenge it But though our Law were not clear as it is most uncontroverted upon this point Yet right Reason should perswade us to have reserv'd no such power For as Kings may erre so may the Judges who are to Try them and it is more probable their Tryers will because they may be acted by Revenge Ambition or Popularity and there is nothing so lyable to erre as the populace The Romans and Venetians might have punish'd their Magistrates because these Magistrates were not Vested with a Supream power nor were they Soveraigns as our Monarchs are And those Judges who Try'd them deriv'd not their power from those Magistrates who Try'd them as our Judges do for the same consent and compact by which they were made the Chief the others were made also Magistrates which cannot be said of absolute Monarchs who derive not their power from the people as these do and the Instances of Kings who have been Murder'd are Crimes in them who did commit them and so should not be Rules to us And generally the best of Kings have been worst us'd But who can escape by innocence when King CHARLES the Martyre fell by Malice Such also as cry up the Murtherers of Tyrants who had no just Right never meant to allow the Arraignment of lawful Monarchs who when they erre have God only for their Judge and if they fear not Him and eternal Punishment they will not probably fear mortal Men and their own Subjects whom they can many wayes escape 2. There is no Creature so unreasonable but he will use his own with discretion though there be no Law obliging him to it nor Punishment to be inflict'd if he do otherwayes who burns his own House or drowns his Lands though he may do it For the Law considers that a King is either mad and if so he will respect no Law and should not be punisht at least he will not stand in awe for fear of it or else he is of a sound Judgment and then he needs no Law and therefore Why should we apprehend that a King will destroy His own Kingdom 3. A King is also obliged by His Fame to do things worthy of His high Trust and things able to abide that conspicuous hight to which he is expos'd 4. Though His people ought not to Rebel yet no thinking man can be sure that they will not And therefore even the greatest Tyrants fear such accidents though they know they are not bound by these Laws that tye Subjects And if all these fail yet we must reverence Gods Dispensations and expect a redress of these unusual Emergents from his Divine Goodness for whose sake we suffer them Rather then expose all to ruine by endeavouring a revenge that may be so unjust in the preparative and dangerous in the event The 3. Conclusion which I shall draw from the former principles shall be that as it is not lawful for Subjects to punish their Kings so neither is it to rise in Arms against them upon what pretext soever no not to defend their Liberty nor Religion Which Conclusion also I shall endeavour to Establish on sure foundations of Positive Law Reason Experience and Scripture As to our Positive Law it is clear for by the 3. Act Par. 1. Ia. 1. It is declar'd Rebellion to rise in Arms against the Kings Person And by the 14. Act 6. Par. K. Ia. 2. It is Treason to Rebel against the Kings Person or Authority By the 25. Act Par. 6. Ia. 2. It is Treason to rise in fear of War against the Kings Person or his Majesty or to lay hands upon his Person violently whatever age they be of or to help or supply these who commit Treason By the 131 Act 8 Par. Ia. 6. All the Subjects are discharged to Convocat for holding of Councils or other Assemblies without his Majesties expresse Warrand and by the 12. Act 10. Par. K. Ia. 6. The entering into Leagues or Bonds without his Majesties special Command is declared to be Sedition All which Acts are prior to Buchannans time and consequently he was very inexcuseable in advancing this Rebellious Principle And these Laws having excepted no case exclude all cases and
as I have formerly more fully prov'de And if this principle prevail'd as to the differences in the Theory of Religion it would in the next step be urg'd as to the practice of Religion and we would change our Kings because we thought them not pious as well as Protestant And did not our Sectarians refine so far as to think dominion founded on grace and this opinion seems to my self more solide than the other for certainly an impious Protestant is a worse Governour and less Gods Vicegerent and image than a devout Papist And amongst Protestants every Secte will reject a King because he is not of their opinion And thus our Covenanters by the Act of the West-kirk Anno 1650. declar'd they would disown our present Monarch if he did not own the Covenant And though a King were Protestant yet still this pretext that he design'd to introduce Popery would raise his People against him if differences in Religion could Lawfully Arme subjects against their King or did empower them to debar his Successor And when this cheat prevail'd against devout King Charles the I the Martyr of that Orthodox Faith to which he was said to be enemie what a madness is it to allow this fatall error which was able to ruine us in the last age and went so near to destroy us in this This is indeed to allow that arbitrariness against our Kings which we would not allow in them to us The second Objection is that in England the Parliament has frequently devolv'd the Crown and Government upon such as were not otherwayes to have succeeded as in the instances of Edward the II. and Richard the III the first of whom was most unjustly depos'd for making use of Gavestoun and the Spencers which shewes how extravagant the People ar in their humours rather than how just their power is for besides that we do not read that these Counsellors were unsufferable there is no good Christian that can say that a King can be depos'd for using ill Counsellors And as to Richard the III. his case is so fully examined and all the Articles brought both against him and Edward the II. so fully answered by the learn'd Arnisaeus a Protestant Lawyer and who had no other interest in that debate than a love to Truth and Law in that treatise Quod nullâ ex causâ subditis fas sit contra legitimum principem arma sumere that we Protestants should be asham'd to bring again to the field such instances upon which Arnisaeus in answer to the 14. Article against Richard the II viz. that he refus'd to allow the Lawes made in Parliament does very well remark that this was in effect to consent to their being King and to transferre upon them the Royal power and this will be the event of all such undertakings The instances of Henry the IV. and Henry the VII are of no more weight than the other two since these were likewayes only Kings de facto till King Henry the VII by his marriage with the Lady Elizabeth eldest Daughter to King Edward the IV. did by her transmit a just title to his Successor therefore it was not strange that either of these should allow the Parliament to interpose when they behov'd to owe to them the possession of the Throne But yet Henry the VII himself as the Lord Bacon relates in his Historie shunn'd to have the Parliament declare his title to be just being content with these ambiguous words viz. that the inheritance of the Crown should rest remain and abide in the King c. And upon this accompt it was that the same King caus'd make a Law that such as should serve the King for the time being in his warrs could not be attainted or impeach'd in their persons or Estates As to Henry the VIII his procuring an Act whereby the Parliament declares that in case he had no issue by the Lady Iean Seymour he might dispose of the Crown to whatsoever person he should in his own discretion think fit It is answered that by a former Statute in the 25 year of his Reigne he by Act of Parliament setles the Crown upon the Heirs male of his own body and for lack of such issue to Lady Elizabeth and for lack of such issue also to the next Heirs of the King who should for ever succeed according to the right of Succession of the Crown of England which shewes that the Succession to the Crown of England is establish't by the Law of Nature and the Fundamental Laws of England upon the Heirs of Blood according to the proximity of degrees so that though that King did afterwards prevaile with the Parliament to declare this Elizabeth a Bastard as he did also his Daughter Mary by another Act and resolve to setle the Crown upon Henry Fitz Roy Duke of Richmond yet these Acts teach us how dangerous it is to leave Parliaments to the impression of Kings in the case of naming a Successor as it is to expose Kings to the arbitrariness of Parliaments But such care had God of his own Laws that Mary succeeded notwithstanding She was Papist and Elizabeth succeeded her though she was declar'd Bastard the Rights of Blood prevailing over the formalities of divorce and the dispensations of Popes as the strength of Nature does often prevaile over poisons And God remov'd the Duke of Richmond by death to prevent the unjust competition and so little notice was taken of this and the subsequent Act Anno 1535 that the Heirs of Blood succeeded without repealing of that Act as ane Act in it self invalide from the beginning for only such Acts are past by without being repeal'd And Blackwood pag. 45. observes very well that so conscious were the Makers of these Acts of the illegality thereof and of their being contrarie to the immutable Laws of God Nature and Nations that none durst produce that Kings Testament wherein he did nominat a Successor conform to the power granted by these Acts that how soon they were freed by his death from the violent oppressions that had forced them to alter a Successor three several times and at last to swear implicitly to whomever he should nominat a preparative which this age would not well bear though they cite it they proclamed first Queen Mary their Queen though a Papist and thereafter Queen Elizabeth whom themselves had formerly declared a Bastard And as in all these Acts there is nothing declaring the Parliaments to have power to name a Successor but only giving a power to the King for preventing mischiefs that might arise upon the dubiousness of the Succession to nominat a Successor two of the legal Successors having been declar'd Bastards upon some niceties not of nature but of the Popes Bulls for divorcing their Mothers so this instance can only prove that the King may nominat a Successor and that the Parliament may consent not to quarrell it which is all that they do but does not at all prove
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 FINIS What follows is immediatly to be subjony'd to the Testimony of Calvin Page 90. 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 quâ etiam fortè potestate ut nunc res habent fuguntur in singulis regnis tres ordines quum primarios conventus peragunt adeo illos ferocienti Regum licentiae pro officio intercedere non veto ut si Regibus impotenter grassantibus humili plebeculae insultantibus conniveant eorum dissimulationem nefariâ perfidiâ non carere affirmam quia populi libertatem cujus se tutores Dei ordinatione positos nôrunt fraudulenter produnt To which my reply is That these words must be so constructed as that they may not be incosistent 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 mean'd 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 Ius Regni apud Scotos because this cannot be said of the Kings of Great Britain since the States of Parliament are only call'd by the King and derive their Authority from him and the Legislative Power is solely in the King the States of Parliament being only Consenters he and not they can only make Peace and War and grant Remissions and against him and not them Treason only is committed and the Law Books of both Nations do affirm that the King is Supream and consequently even according to Calvin's Doctrine neither his People nor any of their Representatives can justly oppose and much less punish him I know that Grotius is by the Republicans and the Fanaticks oft-times cited to defend this their Doctrine of opposing Princes but though his Testimony might be justly rejected as being himself born under a Commonwealth yet he is most impudently cited for he lib. 1. cap. 4. does positively lay down as a general and undoubted Rule that Summum imperium tenentibus resisti non potest Those who have the Supream Power cannot lawfully be resisted whilch Rule he founds upon the Principles of Reason the Authority of Scripture and the Practice of the Primitive Church and though he limits the same thereafter by some exceptions yet it will easily appear that these exceptions extend not at all to our Case For the first relates only to such Kings as have receiv'd their Power with express condition that they may be try'd by other Magistrats The second to such as have voluntarily resign'd their Empire as Charles the 5 th did and so the one may be oppos'd because they were only Titular Kings and the other because they left off to be Kings and consequently we are concerned in neither of these Cases The third limitation is only in the Case where he who was truly a King has alienated his Kingdom to Strangers In which Case Grotius does contend that Subjects may refuse to obey because he ceaseth to be their King But as this is not our Case so even in that Case Grotius is very clear that if this alienation be made by an Hereditary Monarch the alienation is null as being done in prejudice of the lawful Successor but he does not at all assert that the Monarch may be thereupon depos'd by his People The fourth relates only to such Kings as from a hatred to their Countrey design its Destruction and utter Ruine but as he confesseth himself Id vix accidere potest in Rege mentis compote and consequently can take only place in a mad Man in which Case all Laws allow the Kingdom to be rul'd by Governours and Administrators in the King's Name if the Madness be Natural and a total depravation of Sense But if by Madness be mean'd a moral Madness and design to ruine the Kingdom and the Subjects as was and is most impiously pretended against King CHARLES the first and King CHARLES the 2 d the best and most reasonable of Kings then Opposition in such Cases is not at all warranted by Grotius who speaks only of a Physical and Natural Madness for else every thing that displeaseth the People should be call'd Madness and so the exception should not limit but overturn the general rule and should arm all Subjects to rebel against their Princes and make them the Soveraign Judges in all Cases Which is inconsistent with Grotius's own Doctrine and is excellently refuted by his own Reasons The fifth relates only to Kings who by the fundamental Laws of the Kingdom are ty'd to such and such Conditions so as that if they fall in them they may be oppos'd The sixth relates only to Kingdoms where the Power is equally devided betwixt the King and the Senate The seventh is incase the King was at first invested by the People with express reservation to them to resist in such and such Cases and so is almost the same with the fifth and all these three differ little from the first And with Grotius good leave they err also in this that they are not properly exceptions from his own rule for the rule being only that Supream Powers cannot be resisted these Powers are not Supream and they needed not be caution'd by an exception since they did not fall under the rule But neither of these Cases extend to us since our King is by the Acts of Parliament fomerly cited declared to be Supream over all Persons and in all Causes nor made our Predecessors any such express reservations at the first erection of the Monarchy and consequently by Grotius own positive
Concord sacerd imperij l. 2. c. 2. n 2. asserts That the Royal Power is not only bestowed by God but that it is immediatly bestow'd by God upon Kings and Refutes Bellarm. â—de laico c. 6. maintaining That the Iesuits Doctrine in this lessens Authority and raises Factions and contradicts both the Design and Word of God Duvalius de suprem potest Rom. Pontif. p. 1. q. 2. Asserts that Kings derive their Rights by the Laws of God and Nature non ab ipsa Republica hominibus and in all this the Fanaticks and Republicans agree with the Jesuits against Monarchy In the Civil Law this is expresly asserted Cod. de vet Cod. enucleand Deo auctore nostrum gubernante imperium quod nobis a coelesti majestate traditum est Nov. 6. in init Nov. 133. in proem in Nov. 80.85 86. Iustinian acknowledges his Obligation to care for his People because he received the Charge of them from God and certainly Subjects are happier if their Kings acknowledge this as a duty to God than if they only think it a Charge confer'd on them by their People and that they are therefore answerable to them That the Doctors and Commentators are of this opinion is too clear to need Citations vid. Arnis cap. de Essentia Majest Granswinkel de jur Maj. cap. 1. 2. As to the Heathens Hesiod in Theog verse 96. sayes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Kings are from God Homer sayes their Honour is from God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iliad 1. verse 197. Themistcus asserts that the Regal Power came from God Orat. 5. with whom agrees Dion Chrisostom Orat. 1. diotog apud Stob. serm c. Plat. in polit c. But above all Aristotle in polit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And Plutarch Ages Cleom. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 If to these Statutes and Citations it be answered that God Almighty may indeed be the principal and chief Author of Monarchy and that Monarchs may derive their Power from him as from the Supream Beeing that directs all more immediat Causes and yet the People may be the immediat Electors of Monarchs and so Kings may derive immediatly from them their Power and thus these Statutes are not inconsistent with the principle laid down by Buchanan and others whereby they assert that Kings in general and particularly the Kings of Scotland derive their Power immediatly from the People To this my answers are that first if we consider the proprietie of the Words there can be nothing more inconsistent than that Kings should derive their Power from God Almightie alone and yet that they should derive it from the People for the Word Alone is of all other words the most exclusive 2 dly The design of the Parliament in that acknowledgement was to condemn after a long Rebellion the unhappie Principles which had kindled it and amongst which one of the chief was that our Kings derived their Power from the People and therefore they might qualifie or resume what they at first gave or might oppose all Streaches in the Power they had given and might even punish or depose the King when he transgressed none of which Principles could have been sufficiently condemned by acknowledging that though God was the chief Author yet the People were the immediat Electors 3 dly There needed no Act of Parliament be made for acknowledging God to be the chief Author and first Fountain of every Power for that was never contraverted amongst Christians 4 thly That foolish glosse cannot at all consist with the Inferences deduced from that Principle in the former Statutes for in the 2. Act Par. 1. Char. 2. It is inferr'd from His Majesties holding His Royal Power from God alone that therefore he hath the sole choice of his own Officers of State Privy Counsellers and Judges And in the 5. Act it is inferr'd from the same Principle that because he derives his Power from God alone that therefore it is Treason to rise in Arms without his Consent upon any pretext whatsoever And in the 2. Act Par. 3. Char. 2. It is concluded that because our Kings derive their Power from God Almighty alone therefore it is Treason in the People to interrupt or divert their Succession upon any Difference in Religion or other pretext whatsoever whereas all this had been false and inept Reasoning if the design of the Parliament had not been to acknowledge that our Kings derived not their Power from the People for though they derived their Power from God as the supream Beeing only and not as the immediat bestower and if the People were the immediat bestowers of that Power then the People might still have pretended that they who gave the Power might have risen in their own Defence when they saw the same abused and might have diverted the Succession when it descended upon a person who was an enemy to their Interest but how false this glosse is will appear more fully from the following Arguments and it is absolutely inconsistent with St. Augustins opinion formerly cited wherein he forbids to attribute the giving of Kingdoms to any other but to God My second Argument for proving that Kings derive their Power from God alone and not from the People shall be from the principles of Reason For First The Almighties design being to manifest his Glory in Creating a World so vast and regular as this is and his goodnesse in Governing it and that Men might live peaceably in it having both Reason and Time to Serve him it was consequential that he should have reserved to himself the immediat dependence of the supream Power to preclude the extravagant and restlesse multitude from those frequent Revolutions which they would make and Desolations which they would occasion if they thought that the supream Power depended on them and that they were not bound to obey them for Conscience sake so that those expressions in Scripture were very useful in this to curb our Insolencies and to fix our restlesnesse and it seems that Kings are in Scripture said to be gods to the end it might be clear that they were not made by Men· 2 dly God Almighty being King of Kings it was just that as inferiour Magistrats derived their Power from the King so Kings should derive their Power from God who is their King and this seems to be clear from that analogy which runs in a Dependence and Chain through the whole Creation 3 dly As this is most suitable to the principles of Reason so it is most consonant the analogy of Law by which it is declar'd that no Man is master of his own Life or Limbs nemo est Dominus membrorum suorum and therefore as no Man can lawfully take away his own Life so neither can he transfer the power of disposing upon it to any other Man and consequently this Power is not derived to Kings and Princes by privat Men but is bestowed upon them by God Almighty who is the sole Arbiter of Life and Death and
write upon that Subject and who define Absolute Monarchie to be a Power that is not limited or restricted by coactive Law Arnisaeus de essentia Majest cap. 3. num 4. By the 25. Act Parl. 15. Ia. 6. The Parliament does acknowledge that it cannot be deny'd but his Majesty is a free Prince of a Soveraign Power having as great Liberties and Prerogatives by the Laws of this Realm and Priziledge of his Crown and Diadem as any other King Prince or Potentat whatseever And by the 2. Act Parl. 18. Ia. 6. The Parliament consenting to his Majesties restoring of Bishops declare and acknowledge the absolutenesse of our Monarchy in these words The remeed whereof properly belongs to his Majesty whom the whole Estates of their bound n duty with most hearty and faithful affection humbly and truly acknowledge to be a soveraign Monarch absolute Prince Iudge and Governour over all Persons Estates and Causes both Spiritual and Temporal within his said Realm And by the first Act of that same Parliament The Estates and whole Body of this present Parliament acknowledge all with one voluntar humble faithful united heart mind and consent his Majesties soveraign Authority Princely Power Royal Prerogative and priviledge of his Crown over all Persons Estates and Causes whatsoever within his said Kingdom And because no Acts were ever made giving Prerogatives nor even declaring Prerogatives to have been due until some special controversie did require the same so that Possession and not positive Law was the true measure of the Prerogative therefore the Parliament doth in that same Act approve and perpetually confirm all the Royal Prerogatives as absolutely amply and freely in all respects and considerations as ever his Majesty or any of his Royal Predecessors possessed used and exercised the same and they promise that his Majesties Imperial Power which God has so enlarg'd shall never be in any sort impar'd prejudg'd or diminished but rather reverenc'd and augmented as far as possibly they can In the preface to our Books of Law call'd Regiam Majestatem it is acknowledg'd that the King has no Superiour except the Creator of Heaven and Earth who Governs all Forreign Lawyers also such as Lansius de Lege Regiae num 49. and others do number the King of Scotland amongst the absolute Monarchs My second Argument for proving our King to be an absolute Monarch shall be from my former position wherein I hope I have prov'd sufficiently that our Kings derive not their Right from the People for if the King derive not his Power from the People the Monarchy can never be limited by them and consequently it must be an absolute Monarchy for there could be nothing more unjust more unnatural and more insolent then that the People should pretend a Right to limit and restrict that Power which they never gave and the only reason why Buchannan and his Complices do assert our Monarchy to be a qualified and limited Monarchy being that the People when they first Elected our Kings did qualifie and restrict their Government This position being false as appears by the absolute Oath and original Constitution above set down which is lessened or qualified by no condition whatsoever therefore the conclusion drawn from it must be false likewise The third Argument shall be deduced from the Nature of Monarchy and in order thereto I lay down as an uncontroverted principle that every thing must be constructed to be perfect in its own Nature and no mixture is presum'd to be in any thing but he who alledges that the thing controverted is added against Nature must prove the same and therefore since Monarchy is that Government whereby a King is Supream the Monarch must be presum'd neither to be oblig'd to Govern by the advice of the Nobility for that were to confound Monarchy with Aristocracie nor by the advice of the People for that were to confound it with Democracie and consequently if Buchannan and others design to prove that our Kings are obliged to Govern by the advice either of the Nobility or People or are subject to be Chastised by them they must prove that our Kings at their first Creation were Elected upon these Conditions the very Essence and Beeing of Monarchy consisting in its having a Supream and absolute Power Arnisaeus c. 30. Vasquez l. 1. Contrav c. 47. Budaeus in l. princeps Zas ibid. ff de legibus pone enim says Arnisaeus populum in Regem habere aequalem potestatem neutrum pro summo venditari posse When we hear of a Monarch the first notion we have is that he is subject to none for to be a Subject and a Monarch are inconsistent but if we hear that his Nobility or People or both may Depose or punish him we necessarly conclude by the Light of Nature that they and not He are the supream Governours Thus we see that in allowing our King to be an absolute Monarch we have only allow'd him to be a Monarch and to have what naturally belongs to him and that by as necessary a consequence for as every Man is presumed to be reasonable because reason is the Essence of Man so is a King presum'd to be absolute except these limitations whereby the Monarchy is restricted could be prov'd by an expresse Contract 4 thly How is it imaginable but that if our Predecessors had Elected our Kings upon any such Conditions but they would have been very careful to have limited the Monarchy and this Contract had with these conditions been recorded whereas on the contrary we find that albeit great care was taken to record the Oath of Allegiance made to the King and to grave the same upon Marble Tables consign'd unto the custody of their Priests as sacred Oracles yet none of all our Historians make the least mention of any limitations in these Oaths or by any other Contract and to this day our Oaths of Supremacy and Allegiance are clogged and lessened by no limitations If it be answered that these limitations do arise from the nature of the thing it self there being nothing more unreasonable and contrary to the nature of Government then that a Monarch who was design'd to be a Protector to his People should be allow'd to destroy them To this it is answered that Monarchy by its nature is absolute as has been prov'd and consequently these pretended limitations are against the nature of Monarchy and so arise not ex natura rei nor can there any thing be more extravagant than to assert that that which is contrare to the nature of Monarchy should arise from its nature and it might be with greater reason pretended that because the great design of men in Marriage is to get a Helper that therefore they may repudiat their Wives when they find them unsupportable and that the putting them away in such cases is consistent enough with the nature of their Oath though simple and absolute this cause of Divorce arising from the nature of Marriage it self This is after
Canmor's Law that Rex distribuit totam Terram Scotiae hominibus suis. And it therefore clearly follows that the King has Dominium directum a right of Superiority as all Superiors have and that the people on whom he has bestowed these Lands are oblig'd to concur in the expence with him for the defence of it For as if he had retain'd the Property he would have been able with the Fruits and Rents to have defended it So it is not agreeable to sense or reason that they to whom he has granted it should not be oblig'd to defend it especially seing all the Rights made by the King are in Law presum'd meer Donations For it cannot be deny'd but that all Lands were originally granted by the King and so must have originally belong'd to himself for no person can give what is not his own and our Law acknowledgeth that all Lands belong to the King except where the present Heretor can instruct a Right flowing from our King and that he is the Fountain of Property as well as of Justice 2. In Law all who are ingag'd in a Society as to any thing that is the subject of the Society should contribute to its preservation and therefore the King having the Dominium directum and the Vassal Dominium ut ile it follows that the Vassals of the Kingdom should contribute towards its preservation and the King may expect justly an equal Contribution towards the defraying the necessary expence and thence it was that by our old Law all Heretors were obliged to furnish some unum Militem unum Sagittarium or Equitem Some a Bow-man some a Souldier some a Horse-man But thereafter the King having changed these Holdings because all betwixt 60. and 16. were obliged to come to the Field with 40. days Provision which was all that was then necessary it follows that now that way of making War being altered the Subjects should contribute towards the way that is necessary for defending the Kingdom 3. The King by His Forces protects our Persons and by His Navies protects our Commerce by His Ambassadors manages all our publick Affairs and by His Officers and Judges administrates Justice to us And so it is just that all this should be done on our expences and that we should defray the publick expences of the Government and so much the rather because by a special Statute with us it is declared that the King may impose what He pleases on all that is Imported or may discharge us to export any thing without which we could not live and what ever he gets from us he distributes amongst us without applying one shilling of it to his own private use The King or whoever has the management of the Government have in the opinion of Lawyers Dominium eminens a Paramount and transcendent Right over even private Estates in case of necessity when the common Interest cannot be otherwise maintained and this Grotius though no violent friend of Monarchy doth assert ve ry positively and clearly and it cannot be denied that a King may take any mans Lands and build a Garrison upon it paying for it and that in case of a Siege the King may order whole Suburbs to be burnt down for the security of the Town And whence is this power save from that Paramount and Supereminent Right that the King has over all private Estates for the good of the whole So. ciety and Kingdom Nor can it be denyed that the King may in time of War Quarter freely and it is in his power to declare War when or where he pleases Nor do the former Statutes oppose this for they exclude not necessity that has no Law and is it self that Law which gave David right to eat the Shew-bread and the Christian Emperours right to sell the Goods of the Church for maintaining their Armies with consent of the Primitive Fathers and this is so necessarily inherent in all administration that the very Master of a Ship has power to throw over the Goods of Passengers and Merchants in a storm for the preservation of the Ship And they are not enemies to the King but to themselves who would deny the King this power The third Class of Arguments that I am to use against these principles shall be from Reason and Experience in Fortification and Corroboration of our positive Law and the nature of our Monarchy for since humane Reason it self is lyable to so many Errors and since men when they differ are so wedded to their own Sentiments that few are so wise as to see their own mistakes or so ingenuous as to confess them when they see them Therefore prudence and necessity has obliged men to end all Debates by making Laws and it is very great vanity and Insolence in any private men to ballance their own private Sense against the publick Laws that is to say the Authoritative Sentiments and the legal Sense of the Nation If we were then to Establish a new Monarchy were it not prudent and reasonable for us to consider what were the first Motives which induced our Predecessors to a Monarchy and Boethius and Lesly both tell us that least they might be distracted by obeying too many it was therefore fit to submit to one if then this Reason was of force at first to make us submit to a Monarchy it should still prevail with us to obey that Monarchy and not gape idlely after every new Model Ne multos Reges sibi viderentur creare summam rerum aut optimatibus aut ipsi multitudini permittere aspernabantur sayes Boethius fol 6. Here the advantages of being Governed by Aristocracie or Democracie were expresly considered and rejected so that we have our Predecessors choice founded on their way of Reasoning added to the Authority of our Law and after we their Successors had seen the mischiefs arising from the pretences of Liberty and Property with all the advantages that seeming Devotion could add to these Our Representatives after two thousand years experience and after a fresh Idaea of a long civil War wherein these Arguments and Reasons adduced by Buchannan were fortified and seconded by thousands of Debates They did by many passionate Confessions and positive Laws acknowledge that the present Constitution of our Monarchy is most excellent Act 1. Par 1. ch 2 d. That inevitable prejudices and miseries do accompany the invading the Royal Prerogative Act 4. That all the troubles and miseries they had suffered had sprung from these Invasions Act 11. That all the bondage they had groaned under was occasioned by these Distractions Act 2. Par. Sess 2. Ch. 2. So that we have here also a Series of Parliaments attesting the reasonableness of the Constitution of our Monarchy and His Majesties Prerogatives 2. We must not conclude any thing unreasonable or unfit because there are some inconveniencies in it for all humane Constitutions have their own defects But I dare say the principles of my Adversaries have moe than mine for common-wealths are
their own Common-wealths as our Republicans have impiously endeavour'd to destroy Just Monarchy thereby to settle an usurping Common-wealth 8. The only pretext that can justifie the rising up in Arms being that it is lawful to all Creatures to defend themselves the pretext must be dangerous since its limits are uncertain For how can Defensive Arms be distinguished from Offensive Arms Or whoever begun at the one who did not proceed to the other Or what Subject did ever think himself secure after he had drawn his Sword against his King without endeavouring to cut off by it that King against whom he had drawn it The hope of Absolute Power is too sweet and the fear of punishment too great to be bounded and march'd by the best of Men And how can we expect this moderation from these who at first wanted patience to bear the lawful Yoke of Government but because examples convince as much as reason let us remember how when this Nation was very happy in the Year 1638. under the Government of a most Pious and Just Prince born in our own Kingdom we rais'd an Army and with it Invaded His Kingdom of England upon the pretext that He was govern'd by wicked Counsellors and design'd to introduce Popery and this was justified as a Defensive War by a long tract of General Assemblies and Parliaments and if this be a Defensive War that is justifiable what King can be secure Or wherein shall we seek security against Civil Wars Or what can be more ridiculous than to pretend the invading Kingdoms Murthering such as are Commissionated by the King after that Invasion entering into Leagues and Covenants against him both at home and abroad the robbing him of his Navies and Militia and denying him the power to choose his own Counsellors and Judges are meerly Defensive but God Almighty to teach us how dangerous these Defensive Arms are and how impossible it is to regulat Lawless violence how gentle and easie soever the first beginnings are suffered our War which was so much justified for being meerly Defensive to end in the absolute overthrow of the Monarchy and the taking away the life of the best of Kings and it is very remarkable that such as have begun with the Doctrine of giving only Passive Obedience in all things as in refusing to pay just Taxes to concur in securing Rebels c. have from that stept up to Defensive Arms and from that to the Power of Reforming by the Sword and from that to the Power of Dethroning and Murthering Kings by Parliaments and Judicatures and from that to the Murthering and Assassinating all who differ'd from them without any other pretext or formality whatsoever so hard a thing it is to stop when we begin once to fall from our duty and so easie a thing it is to perswade such as have allowed themselves in the first degrees of guilt to proceed to the highest extravagancies of Villanie Oh! What a blindness there is in Error And how palpably doth God desert them who desert their duty suffering them after they have done what they should have abhorred to proceed to do what they first abhorred really To these I must recommend the History of Hazael who when the Prophet foretold him 2 King 8.12 13. That he should slay their young men with the sword dash their children and rip up their women with child answered him Am I a dog that I should do such things and yet he really did what he had so execrated The moderation likewayes of these modest pretenders to Self-defence and Defensive Arms will appear by the bloody Doctrine of their great Rabbies Buchannan not only allows but invites Subjects to Murder their King And Lex Rex Pag. 313. tells us that it is a sin against Gods Command to be Passively subject to an unjust Sentence and that it is an Act of Grace and Virtue to resist the Magistrate violently when he does him wrong and after that horrid Civil War was ended the Author of Naphtali doth justifie it pag. 16 and 17. in these words Combinations for assistance in violent opposition of the Magistrates when the ends of Government are perverted which must be referr'd to the discretion of them who minds Insurrection are necessary by the Law of Nature of Charity and in order to Gods Glory and for violation of this duty of delivering the oppressed from Magistrates Judgement comes upon People From which he proceeds Pag. 18 and 19. to assert that Not only the power of self-defence but vindicative and reforming power is in any part of the People against the whole and against all Magistrates and if they use it not Judgment comes on supposing their capacity probable to bear them forth and they shall be punish'd for their connivance and not acting in way of vindication of Crimes and reforming abuses Before I enter upon these Arguments which the Scripture furnishes us with against these rebellious Principles I must crave leave to say that Defensive Arms seem to me very clearly inconsistent with that Mortification Submission and Patience which is recommended by our Blessed Saviour in all the strain of the New Testament and how will these people give their Coat to a Stranger or hold up their other Cheek to him when they will rise even in Rebellion against their Native Prince 2. As the taking up of Arms is inconsistent with the temper requir'd in a Christian so it seems a very unsuitable mean for effectuating the end for which it is design'd since Religion being a Conviction of what we owe to God how can that be commanded which should be perswaded And how can Arms become Arguments Or how can External Force influence immaterial Substances such as are the Souls of Men. And we may as well think to awake a mans Conscience by Drums or to perswade his Judgment by Musquets and therefore the Apostle speaks only of Spiritual Arms in this our Spiritual Warfare The Sword of the Spirit and the helmet of salvation c. But good God how could the extravagancy of forcing the Magistrate by Arms in Defense of Religion enter into Mens Heads when it is unlawful even for the Magistrate himself to force Religion by Arms. And as Subjects should not be by the King forced to Religion so if they use Force against the King the pretext of Religion tho specious should not defend them And therefore when the sons of Zebedee desired fire from heaven upon these who oppos'd even our Saviour he told them that they knew not what spirit they were of 3. It seems very derogatory to the power of Almighty God that He should need humane assistance and it is a lessening of the great esteem that we ought to have for the energy force and reasonablenesse of the Christian Religion that it needs to be forc'd upon men by Arms as if it were not able to force its own way This Mahomet needed for his Cheats but our blessed Saviour needs not for his Divine Precepts
constitution of our Government upon our old Laws upon the Laws of God of Nature of Nations and particularly of the Civil Law As to the fundamental constitution of our Government I did formerly remark that our Historians tell us that the Scots did swear alledgeance to FERGUS who was the first of our Kings and to his Heirs And that they should never obey any other but his Royal Race Which Oath does in Law and reason bind them to obey the lineal Successor according to the proximity of Blood For ane indefinite obligation to obey the blood Royal must be interpreted according to the proximity in Blood except the swearers had reserv'd to themselves a power to choose any of the Royal Familie whom they pleas'd which is so true that in Law ane obligation granted to any man does in the construction of Law accresce to his Heirs though they be not exprest Qui sibi providet haeredibus providet And Boethius tells us that after King FERGUS'S death the Scots finding their new Kingdom infested with warrs under the powerful influence of Picts Romans and Britans they refus'd notwithstanding to preferre the next of the Royal Race who was of perfect age and a man of great merit to the Son of King FERGUS though ane infant which certainly in reason they would have done if they had not been ty'd to the lineal Successor But lest the Kingdom should be prejudg'd during the minority they enacted that for the future the next of the Blood Royal should alwayes in the minority of our Kings administrat as Kings till the true Heir were of perfect age But this does not prove as Buchannan pretends that the people had power to advance to the Throne any of the Royal Race whom they judg'd most fit for common sense may tell us that was not to choose a King but a Vice-Roy or a Regent For though to give him the more authority and so to enable him the more to curb factions and oppose enimies he was called King yet he was but Rex fidei Commissarius being oblidg'd to restore it to the true Heir at his majority and so Governed only in his Vice and consequently was only his Vice-roy But because the Uncles and next Heirs being once admitted to this fidei Commissarie tittle were unwilling to restore the Crown to their Nephews and sometimes murder'd them and oftetimes rais'd factions against them Therefore the People abhorring these impieties and weary of the distractions and divisions which they occasion'd beg'd from King KENNETH the second that these following Laws might be made 1. That upon the Kings death the next Heir of whatsoever age should succeed 2. The Grand-childe either by Son or Daughter should be preferr'd 3. That till the King arriv'd at 14 years of age some Wise-man should be choos'd to Govern after which the King should enter to the free administration and according to this constitution some fit Person has still been choos'd Regent in the Kings minority without respect to the proximity of Blood and our Kings have been oftentimes Crown'd in the Cradle In conformity also to these principles all the acknowledgements made to our Kings run still in favours of the King and his Heirs As in the first Act Parl. 18. JAMES VI. and the II III IV. Acts Parl. 1. CHARLES II. And by our Oath of Alledgeance we are bound to bear faithful and true alledgeance to his Majesty his Heirs and Lawful Successors which word LAWFUL is insert to cutt off the pretexts of such as should not succeed by Law and the insolent arbitrarieness of such as being but subjects themselves think they may choose their King viz. Act 1. Parl. 21. JAMES 6. That this right of Succession according to the proximity of blood is founded on the Law of God is clear by Num. Chap. 27. v. 9. and 10. If a man hath no Son or Daughter his inheritance shall descend upon his Brother by Num. 36. Where God himself decides in favours of the Daughters of Zelophehad telling us it was a just thing they should have the inheritance of their father And ordaines that if there were no Daughters the estate should go to the Brothers Saint Paul likewayes concluds Rom. 8. If Sons then Heirs looking upon that as a necessary consequence which if it do not necessarly hold or can be any way disappointed all his divine reasoning in that Chapter falls to nothing And thus Ahaziah 2 Chron. 22. v. 1. was made King though the youngest in his Fathers stead because sayes the text ,the Arabians had slain all the eldest which clearly shews that by the Law of God he could not have succeeded if the eldest had been alive We hear likewayes in Scripture ,God oft telling By me Kings reigne And when he gives a Kingdom to any as to Abraham David c. He gives it to them and their posterity That this right of Succession flowes from the Law of nature is clear because that is accounted to flow from the Law of nature which every man finds grafted in his own heart and which is obey'd without any other Law and for which men neither seek nor can give another distinct reason all which hold in this case for who doubts when he heares of ane hereditary Monarchy but that the next in blood must Succeed and for which we need no positive Law nor does any man enquire for a further reason being satisfied therein by the principles of his own heart And from this ground it is that though a remoter Kinsman did possess as Heir he could by no length of time prescribe a valide right since no man as Lawyers conclude can prescribe a right against the Law of nature and that this principle is founded thereupon is confest l cùm ratio naturalis ff de bonis damnat cùm ratio naturalis quasi lex quaedam tacita liberis parentum haereditatem adjecerit veluti ad debitam successionem eos vocando propter quod suorum haeredum nomen eis indultum est adeo ut ne a parentibus quidem ab eâ successione amoveri possint Et § emancipati Institut de haered quae ab intest Praetor naturalem aequitatem sequutus iis etiám bonorum possessionem contra 12 tabularum leges contra jus civile permittit Which text shewes likewayes that this right of nature was stronger than the Laws of the 12 Tables though these were the most ancient and chief Statutes of Rome Which principle is very clear likewayes from the Parable Math. 21. Where the Husband-men who can be presum'd to understand nothing but the Law of nature are brought in saying this is the Heir let us kill him and seaze on his inheritance Nor does this hold only in the Succession of Children or the direct line but in the collateral Succession of Brothers and others L. hac parte ff unde cognati Hac parte proconsul Naturali aequitate motus omnibus cognatis permittit bonorum possessionem quos sanguinis ratio
Vocat ad haereditatem Vid. l. 1. ff de grad l. 1. § hoc autem ff de bonor possess And these who are now Brothers to the present King have been Sones to the former and therefore whatever has been said for Sones is also verified in Brothers As for instance though his Royal Highness be only Brother to King CHARLES the II. yet he is Son to King CHARLES I. and therefore as Saint Paul sayes if a Son then ane Heir except he be secluded by the existence and Succession of ane elder Brother That this gradual Succession is founded on the Law of nations is as clear by the Laws of the 12 Tables and the Praetorian Law of Rome And if we consider the Monarchy either old or new we will find that wherever the Monarchy was not elective the degrees of succession were there exactly observed And Bodinus de Republ. lib. 6 Cap. 5. asserts that Ordo non tantum naturae divinae sed etiam omnium ubique gentium hoc postulat From all which Pope Innocent in c. grand de supplend neglig praelati concludes In regnis haereditariis caveri non potest ne filius aut frater succedat And since it is expresly determined that the right of blood can be taken away by no positive Law or Statute L. Iura Sanguinis ff de Reg. jur L. 4. ff de suis legitim and that the power of making a Testament can be taken away by no Law L. ita legatum ff de conditionibus I cannot see how the right of Succession can be taken away by a Statute for that is the same with the right of Blood and is more strongly founded upon the Law of nature than the power of making Testaments Since then this right is founded upon the Law of God of nature and of nations it does clearly follow that no Parliament can alter the same by their municipal Statutes as our Act of Parliament has justly observed For clearing whereof it is fit to consider that in all powers and jurisdictions which are subordinat to one another the Inferiour should obey but not alter the power to which it is subordinat and what it does contrary thereto is null and void And thus if the judges of England should publish edicts contrare to Acts of Parliament or if a Justice of Peace should ranverse a decree of the judges of West-minster these their endeavours would be void and ineffectual But so it is that by the same principle but in ane infinitly more transcendent way all Kings and Parliaments are subordinat to the Laws of God the Laws of Nature and the Laws of Nations And therefore no Act of Parliament can be binding to overturn what these have established This as to the Law of God is clear not only from the general dictats of Religion but 28 Hen. 8. cap. 7. the Parliament uses these words For no man can dispence with Gods Laws which we also affirme and think And as to the Laws of nature they must be acknowledged to be immutable from the principles of reason And the Law it self confesses that naturalia quaedam jura quae apud omnes gentes peraequè observantur divina quadam providentia constituta semper firma atque immutabilia permanent § sed naturalia Institut de Iur. Natural § singulorum de rer divis And when the Law declares that a Supream Prince is free from the obligation of Laws Solutus legibus which is the highest power that a Parliament can pretend to or arrive at Yet Lawyers still acknowledge that this does not exeem these Supream powers from being lyable to the Laws of God nature and nations Accurs in l. Princeps ff de Leg. Clementina pasturalis de rejudicatâ Bart. in l. ut vim de justitiâ jure Voet. de Statutis Sect. 5. Cap. 1. nor can the Law of nations be overturned by private Statutes or any Supream power And thus all Statuts to the prejudice of Ambassadours who are secured by the Law of nations are confess'd by all to be null and the highest power whatsoever cannot take off the necessity of denuncing watr before a warr can be Lawful And Lawyers observe verie well that these who would oppose the common dictats of mankind should be look't upon as enemies to all mankind My second argument shall be that the King Parliament can have no more power in Parliament than any absolute Monarch has in his own Kingdom for they are when joyn'd but in place of the Supream power sitting in judgement and therefore they cannot in Law do what any other Supream and absolute Monarch cannot do For all the power of Parliaments consists only in their consent but we must not think that our Parliaments have ane unlimited power de jure so as that they may forfeit or kill without a cause or decerne against the Subjects without citing or hearing them or that they can alienat any part of de Kingdom or Subject the wholl Kingdom to France or any other Forraigne Prince all which deeds would be null in themselves and would not hinder the partie injur'd from a due redress For if our Parliaments had such power we would be the greatest slaves and live under the most arbitrary Government imaginable But so it is that no Monarch whosoever can take from any man what is due to him by the Law of God nature and nations For being himself inferiour to these he cannot overturne their statuts Thus a Prince cannot even ex plenitudine potestatis legitimat a Bastard in prejudice of former children though they have only but a hope of Succession l. 4. sequen de natal restituend and for the same reason it is declared in the same Law that he cannot restore a free'd man restituere libertum natalibus in prejudice of his Patron who was to succeed though that succession was but by a municipal Law For clearing which question It is fit to know that the solid lawyers who treat jus publicum as ARNISAEUS and others do distinguish betwixt such Kingdoms as were at first conferr'd by the People and wherein the Kings succeed by contract and in these the Laws made by King and People can exclude or bind the Successor And yet even here they confess that this proceeds not because the Predecessor can bind the Successor but because the People renew the paction with the succeeding King But where the Successor is to succeed ex jure regni in hereditary Monarchies there they assert positively that the Predecessor cannot prejudge the Successors right of Succession Which they prove by two arguments First that the Predecessor has no more power nor right than the Successor for the same right that the present King has to the possession the next in Blood has to the Succession And all our Laws run in favours of the King and his Heirs and no man can tye his equal or give him the Law par in parem non habet dominium The second is that it were
that where the Right of Nature is clear the Parliament may invert the same And strangers who considered more the dictats of Law than of Passion did in that age conclude that no Statute could be valide when made contrare to the fundamental Law of the Kingdom Arnisaeus Cap. 7. Num. 11. Henricus VIII Angliae Rex Eduardum filium primò deinde Mariam denique Elizabetham suos haeredes fecerat verùm non aliter ea omnia valent quà m si cum jure Regni conveniant Vid. Curt. Tract Feud Par. 4. Num. 129. There seems greater difficulty to arise from the 13 Elizabeth c. 2. by which it is enacted that if any persone shall affirme that the Parliament of England has not full power to bind and Governe the Crown in point of Succession and descent that such a persone during the Queens life shall be guilty of high treason But to this Act it is answered that this Act does not debarre the next legal and natural Successor And these words That the Parliament has power to bind and Govern the Succession must be as all other general expressions in Statutes interpreted and restricted by other uncontraverted Laws and so the sense must be that the Parliament are Judge where there are differences betwixt Competitors in nice and contravertable points which cannot be otherwise decided and both this and the former Acts made in Henry the VI. time are not general Laws but temporarie Acts and personal Priviledges and so cannot overturn the known current of Law Quod verò contrà rationem juris receptum est non est producendum ad consequentias And in all these instances it is remarkable that the restriction was made upon the desire of the Soveraigne and not of the Subject And if we look upon this Act as made to secure against Mary Queen of Scotland and to let her know that it was to no purpose for her to designe any thing against the Right or Person of Queen Elizabeth as being declar'd a Bastard by Act of Parliament in England since her other right as next undoubted Heir by Blood to the Crown might be altered or Govern'd we must acknowledge it to be only one of these Statutes which the Law sayes are made ad terrorem ex terrore only Nor was there ever use made of it by Queen Elizabeth nor her Parliaments so fully were they convinc'd that this pretended power was so unjust as that it could not be justified by an Act of Parliament being contrair to the Laws of God of Nature of Nations and of the Fundamental Laws of both Kingdoms But this Law being made to exclude Queen Mary and the Scotish line as is clear by that clause wherein it is declared that every Person or Persones of what degree or Nation soever they be shall during the Queens life declare or publish that they have Right to the Crown of England during the Queens life shall be disinabled to enjoy the Crown in Succession inheritance or otherwayes after the Queens death It therefore followes that it was never valide For if it had King Iames might have thereby been excluded by that person who should have succeded next to the Scotish race For it 's undeniable that Queen Marie did during Queen Elizabeths life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard And therefore the calling in of King Iames 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 acknowledgement of King Iames's Right I have thought fit to set down as it is in the statute it self 1. Ia. Cap. 1. That the Crown of England did descend upon King Iames 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 untill 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. Ia. 6. It is provided in Scotland that all Kings and Princes that shall happen to reigne and bear Rule over that Kingdom shall at the time of their Coronation make their faithfull promise by Oath in presence of eternal God that they shall mantaine the true Religion of Iesus 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 absolutly necessar Coronatio enim magis est ad ostentationem quà m ad necessitatem Nec ideo Rex est quia coronatur sed coronatur quia Rex est Oldard consil 90. num 7. Balbus lib. de coronat pag 40. Nor do we read that any Kings were Crown'd in Scripture except Ioas. And Clovis King of France was the first who was Crown'd in Europe Nor are any Kings of Spaine Crown'd till this day Neither is ane Coronation Oath requisit Sisenandus being the first who in the 4. Tolletan Councel 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 Reigne of King Gregorie 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 Lawfull Successor though he were of a different Religion from his People as God forbid he should be may easily swear that he shall mantaine the Laws presently standing And any Parliament may legally secure the Successor from overturning their Religion or Laws though they cannot debarre him And though the Successor did not swear to mantaine the Laws Yet are they in litle danger by his Succession since all Acts of Parliament stand in force till they be repeal'd by subsequent Parliaments And the King cannot repeale an Act without the consent of Parliament But to put this beyond all debate the 2. Act of this current Parliament is opponed whereby it is declared that the Right and administration of the Government is immediatly devolv'd upon the nixt Lawfull Heir after
we have the Father owning the said Robert the 3 d. to be his eldest Son and Heir both in Charters and Acts of Parliamnets which are the most solemn of all Deeds 2. Quando pater instituit aliquem tanquam filium suum which holds in this Case where the Father institutes and leaves him Heir and the Parliament swears Allegiance to him as the Heir Mascard de prob vol 2. conclus 799. And in dubious Cases the Father's naming such a man as a Son presumes him to be a lawful Son nominatio parentis inducit filiationem in dubio l. ex facto § si quis Rogatus ff ad trebell 3. Even Fame and the common opinion of the People do in favours of these that are in Possession and in ancient Cases prove filiationem legitimationem Mascard conclus 792. but much more where the Fame and common Opinion is adminiculated by other Arguments fulgos consil 128. Panorm in cap. transmiss qui filii sunt ligittimi 4. When Writs are produc'd calling a man a Son the Law concludes him to be a lawful Son Mascard vol. 2. conclus 800. num 15. all which can be easily subsum'd in our Case In which Robert the 3 d. is nam'd not only Son but Heir and Allegiance sworn to him even in the lifetime of the second Wife and her Relations sitting in Parliament and all this acquiesc'd in for many hundreds of years and the Competitors punish'd as Traitors by the unanimous consent of all the Parliament I know that Buchanan does most bitterly inveigh against those Laws made by King Kenneth the 3 d as Laws whereby the ancient Right of Succession was innovated and whereby the Government was settled upon Children who were neither able to consult with the People nor to defend them and whereby those had the Government of the Nation conferr'd upon them who were not capable to govern themselves To which my answer is That in this Buchanan's Malice contradicts his History for his own History tells us that the Scots swore Allegiance to Fergus and his Posterity and consequently Fergus's Son ought by Law to have succeeded and not his Brother for his Brother was none of his Posterity and therefore those Laws made by K. Kenneth did but renew the old Law and the innovation introduc'd in favours of the Uncles was a subversion of the fundamental Law to which they had sworn 2. That the old Law was not abrogated but was in Being by vertue of the first Oath appears very clear by Buchanan himself who confesses that upon the death of Durstus a wicked Prince it was debated whether his Son should not succeed juxta sacramentum Fergusio prestitum veteremque esse morem servandum which acknowledgeth that the Succession was even in these days established by Law by Oath and by Custom and after the death of Fergus the 2 d his Son Eugenius though a Minor was crown'd and his Uncle Graemus allow'd to be his Tutor And Buchanan also brings in Bishop Kennedy lib. 12. praising this Law as made by Kenneth a most wise and glorious Prince with advice of all his Estates of Parliament and which rather confirms as he says the old Law than introduces a new one so far did Buchanan's rage against Queen Mary prevail with him to praise and rail at the same individual Law and it is observable that it is very dangerous to recede once from fundamental Laws for Buchanan makes not only the Succession Elective but he makes no difference betwixt lawful Children and Bastards and excludes not only Minors during the Uncles life but Women for ever 3. In all Nations where the Monarchy is Hereditary Minors succeed and so this innovation of causing the next Male succeed for all his Life was contrary to the nature of the Monarchy and to the Customs of all Nations and God in Scripture gives us many instances of it Ioas succeeded when he was seven years of Age Iosiah when he was eight Manasseh in twelve and Azariah in sixteen and yet in those days God is said to have chosen the King for it is said in Deut. Thou shalt set over thee the King whom I have chosen and consequently the choice of 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 Common-wealths 4. The reason why the Minor King was to have one to supply his Nonage 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 joynt 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 decrys 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 3 d we had 79. Kings amongst whom almost the half were the most impious tyranical or lazie 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 King Kenneth the 3 d to King CHARLES the 2 d. inclusivè we have had 31. Kings 26. 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 whilst they were very young yet that he can choose a fitter Successor than Parliaments can do whereas the other 5. Kings who came to the Crown against that Law of Kenneth the 3 d viz. Constantine the bald Grimus Mackbeath Donal Bain and Duncan the 2 d 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
the Birth-right remain'd with them and therefore when Fergus the Son of Ferquhard came over he brought over with him the Marble Chair which was the mark of Empire And Boetius immediatly upon his arrival calls him King and Fordon the most Ancient of our Historians lib. 1. cap. 36. calls him Fergusius Filius Ferardi aut Ferquhardi ex antiquarum Regium prosapia genitus qui ambitione Regnandi stimulatus magnam sibi Iuvenum copiam assimulavit Albionem continuo progressus est ibidem super eos Regem primum se constituit that is to say he made himself the first King therefore K. Iames. Basil. Doron pag. 201. asserts that K. Fergus made himself King and Lord as well of the whole Lands as of the whole Inhabitants 2. We read nothing at all of the consent of the People but of the Heads of the Tribes who had no Commission from the People each of them having by his Birth-right a Power to Command his own Tribe and consequently the Royal Power was not derived to Fergus from the People but had it's Original from this Birth-right that was both in them and Fergus and he succeded in the Right of those Chiefs to Command their respective Families and Boetius brings in King Fergus lib. 1. num 5. Speaking of himself as a pious Parent as one who owes to them what a Parent owes to his Children sunt pij Parentes in Liberos propensi debemus vobis quod proli genitores And the consent given by the Chief of the Clanns and the People did not give but declare the former Right as our consent now does in Acts concerning the Prerogative and as the Vote of the Inquest does in the Service of Heirs and thus at the Coronation of our Kings it is still said by our Historians that such a man was declared King communi suffragio acclamatione 3. This consent being only given in the Armie cannot be said to have been universally by the People nor do we read that the People did Commissionat the Armie or that the Armie consulted the People and in general it cannot be instanc'd that the People did in any Nation universally consent to Election nor is it possible all the People can meet And in Pole which is the only Elective Monarchie we know the Free-holders only consent and yet every privat Man and Woman have as great interest according to these pretended Laws of Nature as they have potior est conditio negantis Nor do we find that the Commons and mean People have any interest in the Elections of our Magistrats or Parliament Men so that Popular freedom by Birth and the interest of the People in Popular Elections are but meer Cheats invented to engage the Rabble in an aversion to the establish'd Government when factious and insolent Spirits who cannot submit themselves to Government design to cheat the Multitude by fair Pretences and to bribe them by Flatterie If it be pretended that it is not certain whether King Fergus was eldest So◠to Ferquhard nor is it probable that if he had been such he would have preferr'd an uncertain Conquest in Scotland to his secure Succession in Ireland To this it is answered that all our Histories bear that King Ferquhard sent his Son Fergus and when a Son is spoken of indefinitly in such Cases he is actually understood to be the Eldest 2. He brought with him the Marble Chair the mark of Empire which would not have been allow'd to a Cadet 3. It is said that having settled the affairs of Scotland he returned into Ireland to settle the differences there about the choosing of a new King which does import that he should have been King if he had not prefer'd Scotland to Ireland and the reason of this preference was because Ireland was then divided amongst many Kings and his Predecessors had but a very small share of it at that time and Scotland being a part of a greater Isle he probably found in this greater Isle a higher flight for his Hopes and more latitude for his Ambition But albeit the Kings of Scotland had been originally and at first elected by the People yet it does not at all follow necessarly as Buchannan Dolman and our other Republicans pretend that therefore they may reject them at their pleasure or which is all one when they imagine that the Kings Elected by them serve not the ends for which they were designed and that for these Reasons 1. It cannot be deny'd but that the People may consent to an Election of a Monarch without Limitatons for from the Principles of Nature we may learn that whatever is in ones power may be by them transfer'd upon another and therefore if the People be indew'd with a power of governing themselves they may certainly transfer this Power upon another and we see that all Christians and even our Republicans allow that men may sell themselves to be Slaves a custome not only mention'd but approv'd by God himself so far does consent reach beyond what is necessary for maintaining this Point 2. If this could not be then there could be no such thing as absolute Monarchies which is against the receiv'd Opinion of all Nations and against the Doctrine of all Authors who though they debate that this or that Monarchie in a particular Countrey is not Absolute yet it was never contraverted by any man alive but that the People might consent and in many places have consented to absolute Monarchies and by the famous Lex Regia amongst the Romans Populus ei in eum omne Imperium suum Potestatem transtulit instit de jur nat gent. civ § 6. Mention'd likewise by that Famous Lawyer Vlpian l. 1. ff de constitut Princ. 3. We see this consequence to be very false in many other cases and therefore it cannot be necessary here for we find that a man chooses a Wife yet it is not in his power to put her away Cardinals choose the Pope and Chapters the Bishop and yet they cannot depose them the Common Council choose Magistrats and yet they cannot lay them aside 4. This Reasoning is condemn'd as most fallacious by most learn'd and dis-interested Lawyers and therefore it cannot be infallible as is pretended vide Arnisaeum cap. 3. num 2. Haenon dis Pol. 9. num 44. Panorm ad cap. 4. de Cler. non residend Zasius ad l. non ambigitur num 3 ff de legibus Nor have any Lawyers differ'd from this common opinion of mankind except some very few who have differ'd from a Principle of Pique rather than of Judgement The next thing that I am to prove in this my first Proposition is that Our King is an Absolute Monarch and has the Supream Power within this his Kingdome and this I shall endeavour to prove First From our positive Law 2. By several Reasons deduc'd from our Fundamental Laws and Customs 3. From the very nature of Monarchy it self and the Opinion of Lawyers who