Institut de Jur. Natural § singulorum de rer divis And when the Law declares That a Supreme 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 exclude these Supreme Powers from being liable to the Laws of God Nature and Nations Accurs in l. Princeps ff de Leg. Clementina pasturalis de re judicata Bart. in l. ut vim de justitia jure Voet. de Statutis Sect. 5. Cap. 1. Nor can the Law of Nations be overturned by private Statutes or any Supreme Power And thus all Statutes to the prejudice of Ambassadors 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 denouncing a War before a War can be lawful And Lawyers observe very well That those who would oppose the common Dictates of Mankind should be look'd upon as Enemies to all Mankind My second Argument shall be That the King and Parliament can have no more power in Parliament than any absolute Monarch has in his own Kingdom For they are when join'd but in place of the Supreme Power sitting in judgment and therefore they cannot in Law do what any other supreme and absolute Monarch cannot do for all the Power of Parliaments consists only in their Consâ—nt but we must not think that our Parliaments have an unlimited Power de jure so as that they may forfeit or kill without a cause or pass Sentence against the Subjects without citing or hearing them or that they can alienate any part of the Kingdom or subject the whole Kingdom to France or any other Foreign Prince all which deeds would be null in themselves and would not hinder the Party injur'd from a due redress For if our Parliaments had such Power we should 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 inferior to these he cannot overturn their Statutes Thus a Prince cannot even ex plenitudine potestatis legitimate 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 freed 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 Eminent 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 Successor's 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 favour of the King and his Heirs and no man can try his Equal or give him the Law Par in parem non habet dominium The second is That it were unjust and unequitable that the Predecessor should rob his Successor Nulla ergo says Arnisaeus Cap. 7. Num. 5. clausula Successori jus auferri potest modo succedat ille ex jure regni And Hottoman lib. 2. de Regno Galliae asserts that in France which is a very absolute Monarchy Ea quae jure Regio primogenito competunt ne Testamento quidem patris adimi possunt And thus when the King of France design'd to break the Salique Law of Succession as in the Reign of Charles V. it was found impracticable by the Three Estates And when Pyrrhus was to prefer his youngest Son to the Crown the Epirots following the Law of Nations and their own refus'd him Paus lib. 1. In the year 1649 also Amurat the Grand Seignior having left the Turkish Empire to Han the Tartarian passing by his Brother Ibrahim the whole Officers of that State did unanimously cancel that Testament and restore Ibrahim the true Heir though a silly Fool Which shews the Opinion not only of Lawyers but of whole Nations and Parliaments Thus Vander Graaff an Hollander confesses That it is not lawful to chuse any of his Sons to succeed him in which the general quiet of the Kingdom is much concerned and therefore though the next Heir were wiser braver and more generally beloved yet the more immediate must be received as chosen by God whether good or bad and as honoured with his Character And if Kings could have inverted their Succession and chosen their own Successor Saint Lewis had preferr'd his own third Son to Lewis his eldest And Alfonsus King of Leon in Spain had preferr'd his Daughters to Ferdinand his eldest Son And Edward VI. of England had preferr'd and did actually prefer the Lady Jane Gray to his Sisters Mary and Elizabeth And if Successions especially of such great importance had not been fixed by immutable Laws of God and Nature the various and unconstant inclinations of the present Governors especially when shaken by the importunity of Stepmothers and Mothers or clouded by the jealousie of Flatterers or Favourites had made the Nations whom they governed very unhappy and therefore God did very justly and wisely settle this Succession that both King and People might know That it is by him that Kings Reign and Kingdoms are secured in Peace against Faction And it were strange that this should not hold in Kings since even amongst Subjects the Honour and Nobility that is bestow'd upon a Man and his Heirs does so necessarily descend upon those Heirs that the Father or Predecessor cannot exclude the next Successor or derogate from his Right either by renouncing resigning following base or mean Trades or any other For say those Lawyers since he derives this Right from his old Progenitors and owes it not to his Father his Fathers deed should not prejudge him therein Fab. Cod. 9. Tit. 28. Def. 1. Warnee Consil 20. Num. 7. And as yet the Estates of Parliament in both Nations have no Legislative Power otherwise than by assenting to what the King does so that if the King cannot himself make a Successor neither can they by consenting and all that their consent could imply would only be that they and their Successors should not oppose his Nomination because of
de facto till King Henry VII by his Marriage with the Lady Elizabeth eldest daughter to King Edward IV. did by her transmit a just Title to his Successor and therefore it was not strange that either of these should allow the Parliament to interpose when they owed to them the possession of the Throne But yet Henry VII himself as the Lord Bacon relates in his History shun'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 account it was that the same King caus'd a Law to be made that such as should serve the King for the time being in his Wars could not be attainted or impeach'd in their Persons or Estates As to Henry VIII his procuring an Act whereby the Parliament declares That in case he had no Issue by the Lady Jean 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 25th year of his Reign he by Act of Parliament settles 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 shews that the Succession to the Crown of England is establish'd 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 prevail with the Parliament to declare this Elizabeth a Bastard as he did also his daughter Mary by another Act and resolve to settle 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 prevail 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 an Act in it self invalid 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 contrary to the immutable Laws of God Nature and Nations that none durst produce that King's Testament wherein he did nominate a Successor conformable to the power granted by those Acts that as soon as 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 whomsoever he should nominate a Preparative which this Age would not well bear though they cite it they proclaimed 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 nominate a Successor two of the legal Successors having been declar'd Bastards upon some Niceties not of Nature but of the Pope's Bulls for divorcing So this Instance can only prove that the King may nominate a Successor and that the Parliament may consent not to quarrel at it which is all that they do but does not at all prove that where the Right of Nature is clear the Parliament may invert the same And Strangers who considered more the dictates of Law than of Passion did in that Age conclude That no Statute could be valid when made contrary to the fundamental Law of the Kingdom Arnisaeus cap. 7. num 11. Henricus VIII Angliae Rex Eduardum filium primo deinde Mariam denique Elizabetham suos haeredes fecerat verum non aliter ea omnia valent quam si cum jure Regni conveniant Vid. Curt. Tract Feud Par. 4. Num. 129. There seems greater difficulty to arise from 13 Eliz. c. 2. by which it is enacted that if any person shall affirm that the Parliament of England has not full power to bind and govern the Crown in point of Succession and descent that such a person during the Queens life shall be guilty of High-Treason But to this Act it is answered that this Act does not debar 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 uncontroverted Laws and so the sense must be that the Parliament is judge where there are differences betwixt Competitors in nice and controvertable Points which cannot be otherwise decided and both this and the former Acts made in Henry the VI. time are not general Laws but temporary Acts and personal Priviledges and so cannot overturn the known current of Law Quod vero contra 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 Soveraign and not of the Subject And if we look upon this Act as made to secure them against Mary Queen of Scotland and to let her know that it was to no purpose for her to design 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 contrary 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 Scottish line as is clear by that clause wherein it is declared that every Person or Persons 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
be illegally excluded from his Seat in Parliament who is excluded by a clear Statute 2dly If this were not a good answer then the Papists might pretend that they are unjustly excluded because they will not take the Oath of Supremacy and because they are Papists and how can the Fanaticks pretend to make this objection since they by the same way excluded the Kings Loyal Subjects in the Year 1647. and 1649. c. Or how would these Authors have rail'd at any Malignant for using this Argument against them which they use now most impudently against us with far less justice for their Parliaments were unjust upon other Heads as being inconsistent with the fundamental Laws of the Kingdom and so their Acts of exclusion were null in themselves 3dly All the Statutes made since 1661 are necessary consequences of former Laws and so are rather renewed than new Laws 4ly If their reasons were allow'd there could be no end of controversie for all who are excluded would still alleadge that they were unjustly excluded and consequently there could be no submission to Authority and so no Society nor Peace The last answer that our Dissenters make when they are driven from all their other grounds is that they though the lesser are yet the sounder part of the Nation but this shift does not only overturn Monarchy but establishes Anarchy and though they were once settled in their beloved Common-wealth this would be sufficient to overturn it also for every little number of Dissenters nay and even the meanest Dissenter himself might pretend to be this sounder part of the Common-wealth but God Almighty foreseeing that pride or ignorance would suggest to frail Mankind this principle so inconsistent with all that Order and Government whereby he was to preserve the World did therefore in his great Wisdom convince men by the light of their own Reason that in matters of common concern which were to be determined by Debate the greater number should determine the lesser and such as drive beyond this Principle shall never find any certain Point at which they may rest and by the same Reason the Law has pronounc'd it safer to rest in what is decided though it be unjust than to cast loose the Authority of Decisions upon which the Peace and quiet of the Common-wealth does depend who would be so humble and just as to confess that his Adversary has the juster side Or who would obey if this were allow'd And what Idea of Government or Society could a man form to himself allowing once this principle It is also very observable that those who pretend to be the sounder part and deny obedience upon that account are still the most insolent and irregular of all the Society the greatest admirers of themselves and the greatest enemies to peace and so the unfittest to be Judges of what is the sounder part though they were not themselves Parties But what pretence is there for that Plea in this case where the foundations of our Monarchy have been unanimously acknowledg'd by many different Parliaments in many different Ages chosen at first from the Dictates of Reason and confirm'd after we had in many Rebellions found how dangerous all those popular pretences are and in which we agree with the Statesman Lawyers and Divines of all the well-Govern'd Nations under Heaven who are born under an hereditary Monarchy as it is confess'd we are To return then to the first of those Points I lay down as my first Position that our Monarchs derive not their Right from the People but are absolute Monarchs deriving their Royal Authority immediately from God Almighty and this I shall endeavour to prove first from our positive Law By the 2. Act Par. 1. Ch. 2 d. in which it is declar'd that His Majesty His Heirs and Successors have for ever by vertue of that Royal Power which they hold from God Almighty over this Kingdom the sole choice and appointment of Officers of State Counsellors and Judges But because this Act did only assert that our Kings did hold their Royal Power from God but did not exclude the people from being sharers in bestowing this Donative therefore by the 5th Act of that same Parliament they acknowledge the Obligation lying on them in Conscience Honour and Gratitude to own and assert the Royal Prerogatives of the Imperial Crown of this Kingdom which the Kings Majesty holds from God Almighty alone and therefore they acknowledge that the Kings Majesty only by vertue of His Royal Prerogative can make Peace and War and Treaties with forraign Princes Because this last Statute did only assert that the King did hold His Imperial Crown from God alone but did not decide from whom our Kings did only derive their Power therefore by the 2 d. Act Par. 3 d. Ch. 2 d. It is declar'd that the Estates of Parliament considering that the Kings of this Realm Deriving their Power from God Almighty alone they do succeed Lineally thereto c. Which Statutes do in this agree with our old Law for in the first Chapter of Reg. Magist. vers 3. these Words are That both in Peace and War our Glorious King may so Govern this Kingdom committed to Him by God Almighty in which He has no Superiour but God Almighty alone which Books are acknowledg'd to be our Law and are called the Kings Laws by the 54th Act Par. 3 d. Jam. 1. and the 115. Act Par. 14. Jam. 3. These our Laws both Ancient and Modern can neither be thought to be extorted by force nor enacted by flattery since in this we follow the Scripture the Primitive Church and their Councils the Civil Law and its Commentators and the wisest Heathens both Philosophers and Poets As to the Scripture God tells us That by him Kings Reign and that he hath anointed them Kings and that the King is the Minister of God David tells us That God will give strength to his King and deliverance to his King and to his Anointed Daniel sayes to Nebuchadnezar The God of Heaven hath given thee a Kingdom And to Cyrus God gave to Nebuchadnezar thy Father a Kingdom and for the Majesty that he gave him all Nations trembled As to the Fathers Augustin de Civit. Dei l. 5. c. 21. Let us not attribute unto any other the Power of giving Kingdoms and Empires but to the true God Basil in Psal 32. The Lord setteth up Kings and removeth them Tertul. Apol contra gentes Let Kings know that from God only they have their Empire and in whose power only they are And Irenaeus having Prov'd this point fully ends thus l. 5. c. 24. By whose Command they are born men by his likewise they are ordain'd Kings This is also acknowledg'd by the Councils of Toledo 6. c. 14. of Paris 6. c. 5. vid. Council aquis gran 3. c. 1. Amongst late Divines Marca the famous Arch-Bishop of Paris Concord sacerd imperii l. 2. c. 2. n. 2. asserts That the Royal Power is not only bestowed
Dominium directum a right of Superiority as all Superiors have and that the people on whom he has bestowed those Lands are oblig'd to concur in the expence with him for the defence of it For as if he had retain'd the Property he would have been able with the Fruits and Rents to have defended it So it is not agreeable to sense or reason that they to whom he has granted it should not be oblig'd to defend it especially seeing all the Rights made by the King are in Law presum d meer Donations For it cannot be deny'd but that all Lands were originally granted by the King and so must have originally belong'd to himself for no person can give what is not his own and our Law acknowledgeth that all Lands belong to the King except where the present Heretor can instruct a Right flowing from our King and that he is the Fountain of Property as well as of Justice 2. In Law all who are ingag'd in a Society as to any thing that is the Subject of the Society should contribute to its preservation and therefore the King having the Dominium directum and the Vassal Dominium utile it follows that the Vassals of the Kingdom should contribute towards its preservation and the King may expect justly an equal Contribution towards the defraying the necessary expence and thence it was that by our old Law all Heretors were obliged to furnish some unum Militem unum Sagittarium or Equitem Some a Bow-man some a Souldier some a Horse-man But afterwards the King having changed those Tenures or because all betwixt 60. and 16. were obliged to come to the Field with 40. dayes Provision which was all that was then necessary it follows that now that way of making War being altered the Subjects should contribute towards the way that is necessary for defending the Kingdom 3. The King by His Forces protects our Persons and by his Navies protects our Commerce by His Ambassadors manages all our publick Affairs and by His Officers and Judges administrates Justice to us And so it is just that all this should be done at our expences and that we should defray the publick expences of the Government and so much the rather because by a special Statute with us it is declared that the King may impose what He pleases on all that is imported or may forbid us to export any thing without which we could not live and what ever he gets from us he distributes amongst us without applying one shilling of it to his own private use The King or whoever has the management of the Government have in the opinion of Lawyers Dominium eminens a Paramount and Transcendent Right over even private Estates in case of necessity when the common Interest cannot be otherwise maintained and this Grotius though no violent friend to Monarchy doth assert very positively and clearly l. 1. c. 1. § 6. l. 3. c. 19. num 7. and it cannot be denied but that a King may take any mans Lands and build a Garison upon it paying for it and that in case of a Siege the King may order whole Suburbs to be burnt down for the security of the Town And whence is this power save from that Paramount and Supereminent Right that the King has over all private Estates for the good of the whole Society and Kingdom Nor can it be denyed but that the King may in time of War Quarter freely and it is in his power to declare War when or where he pleases Nor do the former Statutes contradict this for they exclude not Necessity that has no Law and is it self that Law which gave David right to eat the Shew-bread and the Christian Emperours right to sell the Goods of the Church for maintaining their Armies with consent of the Primitive Fathers and this is so necessarily inherent in all administration that the very Master of a Ship has power to throw overboard the Goods of Passengers and Merchants in a storm for the preservation of the Ship And they are not enemies to the King only but to themselves who would deny the King this power The third Classis of Arguments that I am to use against these Principles shall be from Reason and Experience to fortifie and corroborate our positive Law and the nature of our Monarchy for since humane Reason it self is lyable to so many Errors and since men when they differ are so wedded to their own Sentiments that few are so wise as to see their own mistakes or so ingenuous as to confess them when they see them Therefore Prudence and Necessity have obliged men to end all Debates by making Laws and it is very great vanity and insolence in any private men to justify their own private Sense against the publick Laws that is to say the Authoritative Sentiments and the legal Sense of the Nation If we were then to Establish a new Monarchy were it not prudent and reasonable for us to consider what were the first Motives which induced our Predecessors to a Monarchy and Boethius and Lesly both tell us That lest they might be distracted by obeying too many it was therefore fit to submit to one if then this Reason was of force at first to make us submit to a Monarchy it should still prevail with us to obey that Monarchy and not gape idely after every new Model Ne multos Reges sibi viderentur creare summam rerum aut optimatibus aut ipsi multitudini permittere aspernabantur sayes Boethius fol. 6 Here the advantages of being govern'd by Aristocracie or Democracie were expresly considered and rejected so that we have our Predecessors choice founded on their way of Reasoning added to the Authority of our Law and after we their Successors had seen the mischiefs arising from the pretences of Liberty and Property with all the advantages that seeming Devotion could add to these Our Representatives after two thousand years experience and after a fresh Idaea of a long Civil War wherein the Arguments and Reasons produced by Buchannan were fortified and seconded by thousands of Debates They did by many passionate Confessions and positive Laws acknowledge That the present Constitution of our Monarchy is most excellent Act 1 Par. 1. Char. 2. That inevitable prejudices and miseries do accompany the invading the Royal Prerogative Act 4. That all the troubles and miseries they had suffered had sprung from these Invasions Act 11. That all the bondage they had groaned under was occasioned by these Distractions Act 2. Par. Sess 2. Ch. 2. So that we have here also a Series of Parliaments attesting the reasonableness of the Constitution of our Monarchy and His Majesties Prerogatives 2. We must not conclude any thing unreasonable or unfit because there are some inconveniencies in it for all humane Constitutions have their own defects But I dare say the Principles of my Adversaries have more than mine for Common-wealths are not only subject to err because they have their
Tenor of all the Laws that ever were made in Scotland The Parliament returning to their duty ordained that Style to be altered and to bear as formerly Our Soveraign Lord with Advice and Consent c. But lastly what advantage can the people have by placing their security in the Parliament since they are so liable to Passions Errors and Extravagancies as well as Kings are and have if Buchannan be believed betrayed the interest of the Kingdom since King Kenneth the Seconds time now above 700. years and they are ordinarily led by some pragmatical Ring-leaders who have not that kindness or interest to preserve the Kingdom that Kings have and since the King may make so many Noble-men and Burghs Royal at pleasure by whose Votes he may still prevail what security can we have by giving them a power above the King or how can they have it From all which it may clearly appear that we have had Kings long ere we had Parliaments and that the Parliaments derive their power from the King and that at first our King only called the Heads of Families and his own Officers as his Council with whom he consulted without any necessity to call any others than he pleased there being no Law Article nor Capitulation obliging him from the beginning thereunto And our Kings were so far from having Parliaments associated with them in their Empire that there is no mention at all of them or of any condition relating to them in the first Institution of our Kings above related nor were there any Parliaments in being at that time But after the Feudal Law came to be in vigor then our Kings looking upon the whole Kingdom as their own in property King Malcolme Canmore did distribute all the Land of Scotland amongst his Subjects as his Liege-men which is clear by the first Chapter of his Laws and according to the Feudal Law all the Vassals of our Kings compeared in their Head-Court and therein consulted what was fit for the Kingdom but thereafter the way of making War requiring Money and Property belonging to the Subject as Government did to the King it was necessary to have their consent for raising Money And from this did arise the inserting the advice and consent of the three Estates in our Acts of Parliament From this also it is very clear that their opinion is very unsolid and ill founded who think that Kings can do nothing without a special Act of Parliament even in matters of Government As for instance that he cannot restrain the Licence of the Press or require his Subjects to take an Engagement for securing the Peace for these and the like being things which relate immediately to Government the King has as much right to regulate these as we have to regulate and dispose of our Property Government being the Kings Property 2. Though the Monarchy had been derived from the People yet as soon as our Kings got the Monarchy they got ever thing that was necessary for the Aministration of it which as it is common sense and reason so it is founded upon that most wise and just Maxime in Law Quando aliquid conceditur omnia Concessa videntur sine quibus concessum explicari nequit 3. I desire to know where there is yet a Law giving the King a Negative voice a power of Erecting Incorporations or a power to grant Remissions for Crimes or Protections for Civil Debts and yet the people is far more concerned in these and the King 's having power to do these and a thousand other things doth rather oblige and warrant me to lay down a general Rule that the Kings of Scotland can do every thing that relates to Government and is necessary for the administration thereof though there be no special Law or Act of Parliament for it if the same be not contrary to the Law of God Nature or Nations The second Conclusion that we draw from these former Principles is that Princes cannot be punished by their own Subjects as Buchannan and our Republicans do assert which is most clear by the former Laws wherein it is declared That the King is a Soveraign and absolute Prince and deriving his power from God Almighty that it is Treason to endeavour to depose or suspend the King Wherein our Law is founded on the nature of Monarchy for if he be Supream He cannot be judg'd for no man is judg'd but by his Superior and that which is Supream can have no Superior and on the Principles of the Law of Nature and Nations because saith the Law No man can be both the Person who Judgeth and the Person Judg'd and it is still the King who Judgeth since all other Judges do represent him and derive their power from him Ipse se praetor cogere non potest quia triplici officio fungi nequit suspectum dicentis coacti cogentis L. Ille a quo ff ad Trebell It is a prnciple in all Law that Jurisdiction and all other Mandats cease with the power that granted it and therefore as they acknowledge that a King cannot be cited till he have forfeited His just Right so as soon as he has forfeited it all the power of the ordinary Judges in the Nation falls and becomes extinct and no other Judge can Judge Him because no other Judge can sit by vertue of any other Authority till it be known that he has forfeited his and that cannot be till the event of the Process and if the People be Judges yet they cannot assume the Government till the King has forfeited it And why also should they be Judges who have neither knowledge nor moderation who are acted by humor and delight in insolence and how shall they meet Or who shall call them Nor can the Parliament Judge them because they derive their Right from the King as shall be prov'd And though they were equal yet no equal can Judge another par in parem non habet Imperium nemo sibi Imperare potest No man can command himself l. si de re sua ff de recept Arbitr Nemo sibi legem imponere potest l. quid autem ff de denat inter virum uxorem and therefore the Civil Law which is ours by Adoption does positively assert That Princeps legibus solutus est the King is liable to no Law l. princeps ff de legibus For though He be lyable to the Directive Force of the Law that is to say He ought to be Governed by it as his Director Yet He is not lyable to the Coercive Force of the Law as all Lawyers that are indifferent do assert Harmenpol l. 1. tit 1. Sect. 48. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The King is not Subject to the Law because offending against it he is not punisht vid. Granswinkell cap. 6. Arnis cap. Francisc a victoria Relect. 3. num 4. Ziegler de jur Majes cap. 1. num 12. with whom the Fathers also agree Ambros in Apol. David cap. 4. Liberi sunt Reges
a vinculis delictorum neque enim ullis ad poenam vocantur legibus tuti Imperii potestate Isiodorus 3. sent cap 31. populi peccantes Judicem metuunt Reges autem solo Dei timore metuque gehennae coercentur and in this Sense they take these words Psal 51. Against thee thee only have I sinned and I was glad to find in Bishop Vshers Power of Princes amongst many other Citations That the Rabbies and particularly Rabbi Jeremiah own'd that no Creature may Judge the King but the Holy and Blessed God alone in which also Heathens agree with Jews and Christians Eâ—phantas the Pythagorean makes it the Priviledge of God and then of the King to be Judg'd by none Stobeus Sermon 46. and Dion in Marco Aurelio tells us That it is certain free Monarchs cannot be Judg'd save by God alone and if it were otherwise we should see them very unsecure for the ambition and avarice of insolent Subjects should never or seldom miss to form their Process and why should Parties be Judges But to demonstrate the Justice which Kings and Princes are to expect from the Populace and Mobile let us remember their Material Justice in the usage of ovr Saviour when they cryed Crucifie him Crucifie him their Sentence against King CHARLES the Martyr when they were at the height of their pretensions to Piety and a publick Spirit their usage of De Witt the Idolizer of them and their Commonwealth and if we want a true Idea of their Form of Process we will find it in their usage of the Archbishop of St. Andrews and others no Enditement no Citation no Defences no Sentences no time to prepare to die and yet all this are the Dictates of pure and devout publick Spirits Buchannan's Bloody Arguments for this position are That Tyrants have been Murthered with Applause and Princes would become licentious if they were not Restrained by the just fear of being called to an account That the Roman and Venetian Magistrates have been punish'd by the people and that the ordinary Judges of the place have Judg'd them and that some of our Kings as well as those of other Nations have been punish'd as Tyrants To which I answer shortly that Inconveniencies must not prevail with us to break our Oaths and overturn our Laws for nothing has so great inconveniency in it as this has these being but partial and this a total Inconveniency And the English Lawyers agree that a mischief is better than an Inconveniency and this should have been considered before we swore to Monarchy and if the People were Electors as they never were yet they should have reserv'd this Power or else they cannot now challenge it But though our Law were not clear at it is most uncontroverted upon this point Yet right Reason should perswade us to have reserv'd no such Power For as Kings may err so may the Judges who are to Try them and it is more probable their Tryers will because they may be acted by Revenge Ambition or Popularity and there is nothing so lyable to err as the Populace The Romans and Venetians might have punish'd their Magistrates because these Magistrates were not Vested with a Supream Power nor were they Soveraigns as our Monarchs are And those Judges who Try'd them deriv'd not their Power from those Magistrates whom they Try'd as our Judges do for the same consent and compact by which they were made the Chief the others were made also Magistrates which cannot be said of Absolute Monarchs who derive not their Power from the People as these do and the Instances of Kings who have been Murther'd are Crimes in them who did commit them and so should not be Rules to us and many of the best of Kings have been worst us'd But who can escape by innocence when King CHARLES the Martyr fell by Malice Such also as cry up the Murtherers of Tyrants who had no just Right never meant to allow the Arraignment of lawful Monarchs who when they err have God only for their Judge and if they fear not Him and eternal Punishment they will not probably fear mortal Men and their own Subjects whom they can many ways escape 2. There is no Creature so unreasonable but he will use his own with discretion though there be no Law obliging him to it nor Punishment to be inflicted if he do otherways who burns his own House or drowns his Lands though he may do it For the Law considers that a King is either mad and if so he will respect no Law and should not be punisht at least he will not stand in awe for fear of it or else he is of a sound Judgment and then he needs no Law and therefore Why should we apprehend that a King will destroy His own Kingdom 3. A King is also obliged by His Fame to do things worthy of His high Trust and things able to abide that conspicuous light to which he is exposed 4. Though his People ought not to rebel yet no thinking man can be sure that they will not And therefore even the greatest Tyrants fear such Accidents though they know they are not bound by those Laws that tye Subjects And if all these fail yet we must reverence God's Dispensations and expect a redress of these unusual Emergencies from his Divine Goodness for whose sake we suffer them rather then expose all to ruine by endeavouring a revenge that may be so unjust in the preparative and dangerous in the event Doleman does here urge that although the People have conferred upon the King the Power and Jurisdiction which naturally resided in them yet they have not so delegated that Power as to devest themselves of all Jurisdiction privatively so that they still retain a cumulative Jurisdiction by which in case of necessity they may judge the King and all other Delinquents To which my Answers are 1. It is fully proved that the King derives not his Power from the People and so they connot retain that Power which they never had 2. A Cumulative Jurisdiction is only granted to those who cannot devest themselves of the Power they give because Supream Power is essential to their Character and therefore though a King retain a Cumulative jurisdiction when he delegates his Power to a Subject it cannot at all be inferred that therefore the People retains the same when they transfer all their Power upon the King for the one designs to make a King who is to be Supream and the other designs to gratifie a Person who is to remain still a Subject Populus jus omne in Caesarem transfert qui totum dicit nihil excipit The People may be a People without a Cumulative Power or without being Supream but a King cannot and I admire why Doleman who compares always the King to the Husband and the Common-wealth to the Wife the King to the Head and the Common-wealth to the Body can think that it is Lawful for the People to judge and punish their King
since it is not lawful for the Wife to judge her Husband or for the Body to cut off the Head The 3. Conclusion which I shall draw from the former Principles shall be That as it is not lawful for Subjects to punish their Kings so neither is it to rise in Arms against them upon what pretext soever no not to defend their Liberty nor Religion Which Conclusion also I shall endeavour to Establish on sure foundations of Positive Law Reason Experience and Scripture As to our Positive Law it is clear for by the 3. Act Par. 1. Ja. 1. It is declared Rebellion to rise in Arms against the Kings Person And by the 14. Act 6. Par. King Ja. 2. It is Treason to Rebel against the Kings Person or Authority By the 25. Act Par. 6. Ja. 2. It is Treason to rise in fear of War against the Kings Person or his Majesty or to lay hands upon his Person violently whatever age they be of or to help or supply those who commit Treason By the 131. Act 8. Par. Ja. 6. All the Subjects are forbid to Convocate for holding of Councils or other Assemblies without his Majesties express Warrant and by the 12. Act 10. Par. King Ja. 6. The entring into Leagues or Bonds without his Majesties special Command is declared to be Sedition Most of which Acts are prior to Buchannans time and consequently he was very inexcusable in advancing this Rebellious Principle And these Laws having excepted no case exclude all cases and pretexts of rising in Arms against the Lawful Monarch but our unhappy Country-men having by a long and open Rebellion opposed the most devout and most just of all Kings upon the false pretence of Liberty and Religion the Parliament of this Kingdom from a full Conviction of the Villainies of those times and to prevent such dangerous Cheats for the future they did by the 5. Act Par. 1. Char. 2. declare it to be Treason for any number of his Majesties Subjects to rise in Arms upon any pretence whatsoever and to shew that all such Glosses as were us'd by Buchannan were absurd and did not make void the first Laws though general the Parliament did by the 4. Act of that 1. Parliament declare that any Explanation or Gloss that during the late Troubles hath been put upon these Acts as that they are not to be extended against any Leagues Councils Conventions Assemblies or Meetings made holden or kept by the Subjects for Preservation of the Kings Majesty the Religion Laws and Liberties of the Kingdom or for the publick Good either of Church or Kingdom are false and Disloyal and contrary to the true and genuine meaning of these Acts. Which Statute is a clear decision against Buchannan finding that the Statutes that were prior to his time and all other such general Statutes made in favours of the King did formerly strike against his Principles and Distinctions As also to preclude all avenues to Rebellion by teaching defending or encouraging others to Rebel upon these pretexts as the former Act declared that actual rising in Arms was Rebellion So by the 2. Act Sess 2. Par. 2. Charles 2. It is declared Treason for any Subject to maintain these Positions viz. That it is Lawful for Subjects upon Pretence of Reformation or any other Pretence whatsoever to enter into Leagues or Covenants or to take up Arms against the King or any Commissionated by him 2. All the Arguments formerly produc'd against the power of the Subject to punish His Person do fully prove likewise that they have no power to rise in Arms against him For either the collective Body of the Subjects are superiour to him and if so they may not only rise up in Arms against him but they may punish him but if the King be superiour to them as has been formerly prov'd then it cannot be lawful for Subjects to rise up in Arms against him no more than it is to punish his Person Nor can I see how all such as declare for a Defensive War are not to be concluded guilty of designing to murther the King for if the King come in Person to defend His own Right as certainly he will and must Can it be thought they will shoot at none lest they kill him and if they shoot how can they secure His Sacred Person and if they kill him in the Field are they less guilty of his murther than those Ruffians who lately design'd it Or doth it lessen the Guilt that these design'd to kill him alone privately whereas our moderate men will in face of the Sun and with display'd Banners against God and him kill with him all such as being perswaded that they are obliged before God to assist him expose their lives for their Duty 3. That dangerous though specious Principle of defensive Arms is inconsistent with that order of Nature which God has established and which is absolutely necessary amongst all other humane Relations and by the same Analogy by which we allow Subjects to rise against their Prince we may much more allow Children to rise against their Parents Servants against their Masters Souldiers against their Officers and the Rabble against their Magistrates for the King does eminently comprehend all these relations in his Soveraignty as inferiour Branches of that Paramount Monarchial power And what a glorious state should Mankind be left in if Anarchy were thus Established and every man should be invested with power to be his own Judge Or dares any reasonable man assert that this is fit to be allowed in the present condition of Mankind for since the generality of men can scarce be contained in their Duty by the severest Laws that can be made what can be expected from them when they are loosed from all Law and are encouraged to transgress against it If the Multitude could prove that they were Infallible and that no Oppression could be expected from them something might be said why we might ballance them with Authority But since both Reason and doleful Experience teach us that generally the Multitude consists of Knaves and Fools who alter not to the better by Conspiring together nor become juster for being led by such ambitious and discontented Spirits as ordinarily lead on Rebellions it is safer to obey those of the two fallible Governours whom God hath set over us and whom the Law ties us to obey and to whom also we are bound by the Oath of Allegiance especially seeing thus we may probably expect that they will be more careful of us as being their own than meer Strangers who use us only for their own Ends. And at the worst in the King we can have but an ill Master whereas in allowing Subjects to usurp we may fight to get our selves hundreds of Tyrants and these too fighting one against another so that we shall not even know which of these Divils to obey 4. This Position is against the very Nature not only of Monarchy but of all Governments For who will
suffer for it ye take it patiently this is acceptable to God for even hereunto were ye called Our blessed Saviour's practice did likewise agree most admirably with his Precepts and Doctrine formerly insisted on for though no man ever was or can be so much injur'd as his blessed self nor could ever any defensive Arms have been so just as in his quarrel yet he would not suffer a Sword to be drawn in it and to discourage all Christians from using Arms he told those who were offering to defend even himself with Arms that whosoever should draw the Sword should perish by it and it seems that God Almighty permitted Peter to draw his Sword at that time meerly that we might upon that occasion be for ever deter'd from Defensive Arms by this our Saviour's Divine example and reasoning The last Argument I shall produce shall be from that most Christian Topick us'd by St. Paul Rom. 3. 8. We should not do ill that good may come of it And therefore since disobedience to Magistrates but much more to Rebel against them is forbid by the Laws both of God and Men This disobedience and opposition cannot be justifi d by pretending that it is design'd for Reforming the Nation And if it be answer'd That this opposition is not in it self ill because the design justifies it It is to this reply'd That if this answer be sufficient then the former excellent Rule is of no use for when a Servant steals his Masters Mony to give to the Poor or a Son cuts his Fathers Throat because he is vicious or when Jacques Clement Stabbed Henry the 3. and Ravillack Henry the 4. of France they might have alleadg'd the same in their own defence Nor know we surer proof that any thing is impious or unlawful then when the Laws of our Nation have forbid it as a great Crime they being against and contrary to no positive Law of God but rather suitable to the same and own'd as such by Christian Synods and Divines there being no necessity to enforce this going out of the Road. All which holds in this case nor can it be imagin'd how Reforming by Arms can be thought necessary since God both can without a Miracle Turn the hearts of Kings in whose hands they are as Rivers of Waters And can send devout Men to influence Kingdoms And should not we rather suffer Patiently as the Primitive Christians did that his Divine Majesty may be by our Patience prevail'd upon to Reform us now as he did of old our Predecessors from Paganism by our own Kings in a Regular way than upon every Notion of Bigot and Factious Ring-leaders overturn all Government and Order rent all Unity and involve our Native Countrey in Blood and Confusion And whilst we are fighting for the terms of Religion lose the true efficacy of Piety and Devotion for what use can there be of Patience Humility Faith and Hope if we will presently repair our selves submit to no Magistracy that differs from us and believe that Religion cannot subsist except by us The Fathers also of the Primitive Church have inculcated so much this Doctrine every where both by their Doctrine and Practice and both these are so fully known that I shall remit this point to those Learn'd Men who have fully handled it Only I must remember that excellent passage of St. Ambrose who being commanded to deliver up his Church to the Arians says Volens nunquam deseram coactus repugnare non novi dolere potero flere potero gemere potero adversus arma milites Gothos Lachrymae meae mea arma sunt talia enim sunt munimenta sacerdotis aliter nec debeo nec possum resistere Which Prayers and Tears are likewise call'd the only Arms of the Church by the great Nazianzen in his first Oration against Julian and by St. Bernard in his 221. Epistle But more of this is to be found Tom. 2. Concil Galliae pag. 533. Where it is fully prov'd that all Subjects ought humbly and faithfully to obey the Regal Power as being ordained by none but God with whom the wise Heathens agree for Marcellus Eprius Tacit. lib. 4. hist. pray'd for good Princes but obey'd bad ones and Terentius in the same Author An. lib. 6. § 3. confesses That the Gods had bestow'd on the Emperor the sole disposal of all things leaving nothing to Subjects save the honour of obedience But because these of that perswasion rather will believe Calvin than the Fathers I have taken pains to consider in him these few passages cap. 20 lib. 4. Institut § 27. Assumptum in Regiam Majestatem violare nefas est nunquam nobis seditiosae istae cogitationes in mentem veniant tractandum esse pro meritis Regem § 29. Personam sustinent voluntate Domini cui inviolabilem Majestatem ipse impressit insculpsit § 31. Privatis hominibus nullum aliud quam parendi patiendi datum est mandatum And all this Chapter doth so Learnedly and judicially impugn this Doctrine that it is a wonder why Calvinists should differ from Calvin I know that to this it may be answered That the same Calvin does qualifie his own words which I have cited with this following Caution Si qui sunt saith he populares Magistratus ad moderandam Regum libidinem constituti quales olim erant qui Lacedemoniis regibus oppositi erant Ephori qua etiam forte potestate ut nunc res habent funguntur in singulis regnis tres ordines quum primarios conventus peragunt adeo illos ferocienti Regum licentiae pro offico intercedere non veto ut si Regibus impotenter grassantibus humili plebeculae insultantibus conniveant eorum dissimulationem nefaria perfidia non carere affirmem quia populi libertatem cujus se tutores Dei ordinatione positos norunt fraudulenter produnt To which my reply is That these words must be so constructed as that they may not be inconsistent with his former clear and Orthodox Doctrine of not resisting Supream Powers the former being his positive Doctrine and this but a supervenient Caution and they do very well consist for though Calvin be very clear that Kings cannot be resisted yet he thinks that this is only to be meant of those Kings who have no Superiors to check them by Law as the Kings of the Lacedemonians had who by the fundamental Constitution of their Monarchy might have been call'd to an accompt by the Ephori and so in effect were only Titular Kings Or of such Monarchs as had only a co-ordinate Power with the States of their own Kingdom and even in these Cases he does not positively assert that these Monarchs may be resisted but does only doubt whether if there be any such Superior or co-ordinate Magistrate representing the People they may not restrain the Rage and Licentiousness of their Kings But that Caution does not at all concern the Jus Regni apud Scotos because this cannot be said
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 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 which 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 tryed by other Magistrates The second to such as have voluntarily resign'd their Empire as Charles the 5th 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 Sence But if by Madness be meant a moral Madness and design to ruin 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 fail in them they may be oppos'd The sixth relates only to Kingdoms where the Power is equally divided betwixt the King and the Senate The seventh is in case 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's 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 formerly 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 Doctrine cannot be resisted And so far is Grotius an enemy to such Fanatical Resistance upon the Pretence of Liberty and Religion that num 6. he calls the Authors of those Opinions Time-Servers only And Gronovius a violent Republican and Fanatick taxes him extreamly for it in his Observations upon that fourth Chapter whose Arguments produc'd against Grotius I shall answer amongst the other Objections Gronovius's first Argument why it should be lawful to resist the Supream Magistrate in defence of Religion is because if it be not Lawful for Subjects to Arm themselves for Religion against their Prince it should not be lawful for their Prince by the same rule to defend himself against Turks and Infidels who would endeavour to force him to comply with their Impieties But to this it is answered That Resistance to Superiors is expresly forbid by the Laws of God and Nature as is said but this cannot be extended to Cases where there is no Subjection nor Allegiance and it may be as well argu'd that because one private man may beat another who offers to strike him that therfore a Child may beat his Parent or a Servant his Master or that because I may violently resist a private man who offers to take away my Goods unjustly that therefore I may oppose the Sentence of the Magistrate because I forsooth do not think the same just His second shift is That our Saviour commanded only absolute submission without resistance in the Infancy of the Church when he himself was miraculously to asist his own Servants but this Submission was to end with the Miracles to which it related As to which my answer is 1. That all Commands in Scripture may be so eluded nor is there any Duty more frequently and fully inculcated than this is and that too in the same Chapters amongst other Duties which are to last for ever such as Submission to Parents and Masters and this is founded upon plain reason and conveniency and not upon Miracles 2. This was receiv'd and acknowledged by the Pagans as has been fully prov'd though it cannot be pretended that they rely'd upon any such miraculous assistance 3. It cannot be deny'd but the Fathers of the Primitive Church did recommend and justifie themselves in their Apologies to the Heathen Emperours for bearing patiently when they were able not only to have resisted but to have overthrown their Persecuters as is clear by the Citations out of Tertullian Cyprian Lactantius Augustine and others to be seen in
Grotius De Jure Belli lib. 1. cap. 4. num 7. And it had been great impudence as well as sin in them to have boasted of a recent matter of Fact which was not true nor could there be a greater injury done to the Primitive Christians as Grotius observes than to ascribe that to their Weakness which they consider'd as an effect of Duty and why should the Heathen Emperours have suffered those to multiply who obey'd only because Disobedience was not safe for they might have certainly concluded that by the same Principle that they obeyed only because they were weak they would disobey as soon as they were able 4. If the first Christians in general had obeyed only because they were not able to resist then any private Christian had resisted when he was able or would have fled or conceal'd himself whereas it is acknowledg'd in the other answers press'd by Gronovius himself that they sought for Martyrdom and so these two answers are inconsistent and the Theban Legion and others did submit themselves voluntarily to Martyrdom with their Arms in their hands and when they were able to have overthrown the Emperour And lastly If this Doctrine were allow'd no Society could subsist for when Dissenters grew strong the lawful Magistrate behov'd to perish whereas Jesus Christ did contrive the Christian Religion so as that all Governours should reasonably wish their Subjects to be Christians and so as no Christian should attempt to overthrow the order and establishment of Civil Government and that they should not be drawn away from practise of Christian Devotion by the carnal desires of being Great and Strong in the World nor have any hopes in the Arm of Flesh to the lessening of their immediate dependence upon him His third shift is That his Doctrine of Submission and of dying for the Christian Religion without making Resistance was only the Practise but not the Command of the Primitive Church and proceeded from their immoderate affectation of the Crown of Martyrdom as Milton also pretends But since the express Command of Scripture is founded upon such clear Reason and since as Grotius well observes the Practise of the Primitive Christians who liv'd so near the Age wherein these Scriptures were pen'd is the best Interpreter of the Scripture it is horrid Impiety to make those blessed Martyrs pass for vain Hypocrites and distracted Self-murderers and it becomes us with holy reverence to imitate those whom the Christian Church has ever admir'd The fourth shift is that the Protestant Churches have been reform'd by such Insurrections as these contrary to the Royal Authority But this is fully answered by the learned Henry More in his Divine Dialogues and by Du Moulin in his Philanax Anglicus where likewise are to be found the many Testimonies of Protestant Churches and Protestant Divines condemning positively the taking up of Arms against the Soveraign Power even for the defence of Religion and the very Presbyterian Confession of Faith at Westminster is so positive as to this point that the Presbyterians themselves can never answer it The sum of which answer is That the King of Spain coming by Marriage in place of the Duke of Burgundy the said King of Spain could pretend to no more Power than they had nor could the House of Burgundy pretend to any more Power by marrying the Heirs of the Counts of the several Provinces than those Counts had over their Provinces and therefore since none of these were Soveraigns over their Provinces the Provinces might have resisted the King of Spain when he oppress'd them and consequently that Resistance cannot defend such as resist Supream Powers upon pretence of Religion Grotius de Antiq. Reipub. Batav cap. 7. The opposition made by the Protestants in France was not occasion'd by Religion but upon a Quarrel betwixt the Princes of the Blood and the House of Guise in the Minority of Francis the 2 d and is defended most excellently by King James himself not to have been Rebellion in his Defence of the Right of Kings pag. 14. The Opposition made by the Princes of Germany to the Emperour was founded upon the inherent Right in the Princes by the Golden Charter of the Empire And Luther himself declar'd that Magistratui non erat resistendum and has written a Book to that purpose nor would he engage in the Confederacy for Defensive Arms at Smalcald until the Lawyers declared that that Resistance was lawful by the Laws of the Empire Vide Slydan Hist lib. 8. anno 1531. The War that arose in Switzerland was not occasion'd by Religion for the Reformation was once establish'd with the consent of the Magistrate And the Eruption that was made by other Cantons upon the Reform'd Cantons eleven years after that Establishment Vide Slydan anno 1522. Nor was it Calvin who banish'd the Prince and Bishop of Geneva for he fled eight Months before upon the detecting of a Conspiracy by which that Bishop was to deliver over the Liberties of that City to the Duke of Savoy and for which his Secretary was hang'd Vide Turretin Annal. Reformationis anno 1529 And albeit those who Reform'd in Scotland in the Reign of Queen Mary pretended Authority from the King yet they were certainly Rebels and are condemn'd by Rivet a famous Protestant Divine who also inveighs bitterly against this Principle Castiga Not. in Epist ad Bal. fac cap. 13. num 14 sub finem From all which I observe First That all the Protestant Divines by making Apologies for such of their Profession as have risen in Arms against Supream Powers must be thereby concluded to be asham'd of the Principle Secondly immediately upon the quieting those Rebellions all the Protestant Churches have in their Confessions of Faith declared their abhorrence of that Principle which being the product of Conviction and Experience joyn'd with Duty must be the most judicious and sincere Testimony of all others Thirdly All those Rebellions have been occasion'd by a mistake in Point of Law and not in point of Religion for the Divines as I have related have been abused by the Lawyers and therefore since in the Isle of Britain the Laws of both Kingdoms have declared the Rising in Arms against the King to be Treason although for the defence of Religion it necessarily follows that this must be unlawful in point of Conscience in this Kingdom Fourthly Though good things may be occasion'd by a Rebellion yet that does not justifie a Rebellion for though Jeroboam was allow'd by God to rise against Rehoboam yet God Almighty himself calls his revolt Rebellion 1 Kings 12 19. and 2 Chron. 10. 19. and it is observable that after this Revolt there was but one good King amongst all the Rebellious Kings of Israel whereas amongst the Kings of Judah who were lawful Kings there was but one or two who were any ways impious so far does God bless a lawful Succession Some also use as a shift against this Orthodox Doctrine that the reason why the
the People nor Parliaments of this Kingdom could exclude the Lineal 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 Realm deriving their Royal Power from God Almighty alone do Lineally succeed thereto according to the known degrees of Proximity in Blood which cannot be interrupted suspended or diverted by any Act or Statute 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 War DO THEREFORE from a hearty and sincere sence of their duty recognize acknowledge and declare that the right to the Imperial Crown of this Realm is by the inherent right and the Nature of Monarchy as well as by the fundamental and unalterable Laws of this Realm 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 reigns the Subjects of this Kingdom are bound by Law duty and allegiance to obey the next immediate 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 aforesaid nor can stop or hinder them in the full free and actual administration of the Government according to the Laws of the Kingdom LIKE AS OUR SOVEREIGN LORD with advice and consent of the said 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 Lawful Successor from the immediate actual full and free administration of the Goment conform to the Laws of the Kingdom And that all such attempts or designs shall infer against them the pain of Treason This being not only an 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 an acknowledgment 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 controversie especially seeing it past so unanimously that there was not only no vote given but even no argument proved against it And the only doubt mov'd about it was whether any Act of Parliament or acknowledgment was necessary in a point which was in it self so uncontroverted And which all who were not desperate Fanaticks did conclude to be so in this Nation even after they had heard 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 draws 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 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 Allegiance to FERGUS who was the first of our Kings and to his Heirs And that they would 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 an 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 chuse any of the Royal Family whom they pleas'd which is so true that in Law an obligation granted to any man does in the construction of Law accrue 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 Wars under the powerful influence of Picts and Britains they refus'd notwithstanding to prefer the next of the Royal Race who was of perfect age and a Man of great Merit to the Son of King FERGUS though an infant which certainly in reason they would have done if they had not been ty'd to the lineal Successor But least the Kingdom should be prejudg'd during the minority they enacted that for the future the next of the Blood Royal should always in the minority of our Kings administer 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 chuse 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 enemies he was called King yet he he was but Rex fidei Commissarius being oblig'd to restore it to the true Heir chosen rather to serve than Reign and so Governed only for a time and consequently was only his Vice-Roy But because the Uncles and next Heirs being once admitted to this fidei Commissarie title were unwilling to restore the Crown to their Nephews and sometimes murder'd them and oft-times rais'd Factions against them Therefore the People abhorring those impieties and weary of the distractions and divisions which they occasion'd begg'd from King KENNETH the 3 d that these following Laws might be made 1. That upon the Kings death the next Heir of whatsoever Age should succeed 2. The Grand-child 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 chosen to Govern after which the King should enter to the free Administration and according to this constitution some fit Person has still been chosen Regent in the Kings Minority without respect to the Proximity of Blood and our Kings have been oft-times Crown'd in the Cradle In conformity also to these Principles all the acknowledgments made to our Kings run still in favour 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 Allegiance we are bound to bear faithful and true Allegiance to his Majesty his Heirs and Lawful Successors which word LAWFUL is insert to cut off the pretences of such as should not succeed by Law and the insolent arbitrariness of such as being but Subjects themselves think they may chuse their King viz. Act 1. Parl. 21. JAMES the VI. 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 favour of the Daughters of Zelâ—phehad telling us it was just thing they should have the inheritance of their Father And ordains that if there were no Daughters the Estate should go to the Brothers St. Paul likewise concludes Rom. 8. If Sons then Heirs looking upon that as a necessary Consequence which if it do not necessarily 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 says 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 likewise in Scripture God oft telling By me Kings reign 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 flows 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 holds in this Case for who doubts when he hears of an 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 valid 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. cum ratio naturalis ff de bonis damnat cum 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 à parentibus quidem ab ea successione amoveri possint Et § emancipati Institut de haered quae ab intest Praetâ—r naturalem aequitatem sequutus iis etiam bonorum possessionem contra 12 tabularum leges contra jus civile permittit Which Text shews likewise That this Right of Nature was stronger than the Laws of the Twelve Tables though these were the most ancient and chief Statutes of Rome which Principle is very clear likewise from the Parable Matth. 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 seize 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 Sons to the former and therefore whatever has been said for Sons is also verified in Brothers As for instance though his Royal Highness be onely Brother to King CHARLES II. yet He is Son to King CHARLES I. and therefore as St. Paul says If a Son then an Heir except he be secluded by the Existence and Succession of an elder Brother That this gradual Succession is founded on the Law of Nations is as clear by the Laws of the Twelve Tables and the Praetorian Law of Rome And if we consider the Monarchy either old or new we will find That where ever 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. Jura 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 subordinate to one another the Inferior should obey but not alter the Power to which it is subordinate and what it does contrary thereto is null and void And thus If the Judges of England should publish Edicts contrary to Acts of Parliament or if a Justice of Peace should reverse a Decree of the Judges of Westminster these their endeavors would be void and ineffectual But so it is that by the same Principle but in an infinitely more transcendent way all Kings and Parliaments are subordinate 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 Dictates of Religion but 28 Hen. 8. cap. 7. the Parliament uses these words For no man can dispense with God's Laws which we also affirm 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 peraeque observantur divina quadam providentia constituta semper firma atque immutabilia permanent § sed naturalia
their consent But that can never amount to a power of transferring the Monarchy from one branch to another which would require that the Transferrers or Bestowers had the Supreme Power originally in themselves Nemo enim plus juris in alium transferre potest quam ipse in se habet And if the States of Parliament had this power originally in themselves to bestow why might they not reserve it to themselves and so perpetuate the Government in their own hands And this mov'd Judge Jenkins in his Treatise concerning the Liberty and Freedom of the Subject pag. 25. to say that no King can be named or in any time made in this Kingdom by the People A Parliament never made a King for there were Kings before there were Parliaments and Parliaments are summoned by the King's Writs Fourthly A King cannot in Law alienate his Crown as is undeniable in the Opinion of all Lawyers and if he do that deed is void and null nor could he in Law consent to an Act of Parliament declaring that he should be the last King And if such Consents and Acts had been sufficient to bind Successors many silly Kings in several parts of Europe had long since been prevailed upon to alter their Monarchy from Hereditary to Elective or to turn it into a Commonwealth and therefore by the same Reason they cannot consent to exclude the true Successor For if they may exclude one they may exclude all Fifthly In all Societies and Governments but especially where there is any association of Powers as in our Parliaments there are certain Fundamentals which like the noble parts in the Body are absolutely necessary for its preservation for without these there would be no Ballance or Certainty And thus with us If the King and each of the Estates of Parliament had not distinct and known limits set by the gracious Concessions of our Monarchs each of them would be ready to invade one another's Priviledges And thus I conceive that if the Parliament should consent to alienate half of the Kingdom or to subject the whole to a Stranger as in King John's Case in England and the Baliols in Scotland it has been found by the respective Parliaments of both Kingdoms that that Statute would not oblige the Successor Or if the House of Commons in England or the Boroughs of Scotland should consent to any Act excluding their Estate and Representatives from the Parliament doubtless that Statute excluding them would not prejudge their Successors because that Act were contrary to one of the Fundamental Laws of the Nation And the late Acts of Parliaments excluding Bishops were reprobated by the ensuing Parliaments as such and therefore by the same Rule any Statute made excluding the Legal Successor would be null and void as contrary to one of the great Fundamental Rights of the Nation And what can be call'd more a Fundamental Right than the Succession of our Monarchy Since our Monarchy in this Isle has ever been acknowledg'd to be Hereditary And that this Acknowledgment is the great Basis whereupon most of all the Positions of our Law run and are established such as That the King never dies since the very moment in which the last King dies the next Successor in Blood is Legally King and that without any express Recognizance from the People and all that oppose Him are Rebels His Commissions are valid He may call Parliaments dispose of the Lands belonging to the Crown all men are liable to do him Homage and hold their Rights of Him and His Heirs And generally this Principle runs through all the veins of our Law it is that which gives life and authority to our Statutes but receives none from them which are the undeniable Marks and Characters of a Fundamental Right in all Nations But that this Right of Lineal Succession is one of the Fundamental and Unalterable Laws of the Kingdom of Scotland is clear by the Commission granted by the Parliament for the Union in Anno 1604. in which these words are His Majesty vouchsafing to assure them or His sincere disposition and clear meaning no way by the foresaid Vnion to prejudge of hurt the fundamental Laws ancient Priviledges Offices and Liberties of this Kingdom whereby not only the Princely Authority of His most Royal Descent hath been these many Ages maintain'd but also His Peoples Securities of their Lands and Livings Rights Libertie Offices and Dignities preserv'd Which if they should be innovated such Confusion would ensue as it could no more be free Monarchy Sixthly There would many great Inconveniencies arise both to King and People by the Parliaments having this Power For weak Kings might by their own simplicity and gentle Kings by the Rebellion of their Subjects be induced to consent to such Acts in which their Subjects would be tempted to cheat in the one Case and rebel in the other Many Kings likewise might be wrought upon by the importunity of their Wives or Concubines or by the misrepresentations of Favourites to disinherit the true Successor and He likewise to prevent this Arbitrariness would be oblig'd to enter in a Faction for His own Support from His very Infancy This would likewise animate all of the Blood Royal to strive for the Throne and in order thereunto they would be easily induc'd to make Factions in the Parliament and to hate one another whereas the true Successor would be ingag'd to hate them all and to endeavour the Ruine of such as he thought more Popular than himself and every new Successor would use new Ministers Officers Methods and Designs whereas the apparent Heir uses those whom his Predecessor preferr'd Nor would the People be in better Case since they ought to expect upon all these accounts constant Civil Wars and Animosities and by being unsure whom to follow might be in great hazard by following him who had no Right And their Rights bearing to hold of the King and his Heirs it would be dubious to the Vassals who should be their Superior as well as who should be their King It is also in reason to be expected that Scotland will ever own the Legal Descent And thus we should under different Kings of the same Race be involved in new and constant Civil Wars France shall have a constant door open'd by Alliances with Scotland to disquiet the Peace of the whole Isle and England shall lose all the endeavours it used to unite this Isle within it self Another great Absurdity and Inconveniency which would follow upon the exclusion of the lineal Successor would be that if he had a Son that Son ought certainly to succeed and therefore after the next Lawful Heir were brought from abroad to Reign he ought to return upon the Birth of this Son and if he dyed he would be again call'd home and would be sent back by the Birth of another Son which would occasion such affronts uncertainties divisions factions temptations that I am sure no good nor wise man could admit of such a
them to Reform 4. That the People or their Representatives may Exclude the Lineal Successor and raise to the Throne any of the Royal Family who doth best deserve the Royal Dignity These being all matters of Right the plain and easie way which I resolve to take for refuting them so as the learned and unlearned may be equally convinced shall be first by giving a true account of what is our present positive Law 2. By demonstrating that as our present positive Law is inconsistent with those Principles so these our positive Laws are excellently well founded upon the very nature of Monarchy and that those Principles are inconsistent with all Monarchy And the third Class of my Arguments shall be from the Principles of common Reason Equity and Government abstracting both from the positiveness of our Law and the nature of our Monarchy And in the last place I shall answer the Arguments of those Authors As to the first I conceive that a Treatise De Jure Regni apud Scotos should have clear'd to us what was the power of Monarchs by Law and particularly what was the positive Law of Scotland as to this point for if these points be clear by our positive Law there is no further place for debate since it is absolutely necessary for Mankind especially in matters of Government that they at last acquiesce in something that is fix'd and certain and therefore it is very well observ'd by Lawyers and States-men that before Laws be made men ought to reason but after they are made they ought to obey which makes me admire how Buchannan and the other Authors that I have named should have adventur'd upon a debate in Law not being themselves Lawyers and should have written Books upon that Subject without citing one Law Civil or Municipal pro or con Nor is their Veracity more to be esteemed than their Learning for it 's undeniable that Buchannan wrote this Book De Jure Regni to perswade Scotland to raise his Patron though a Bastard to the Crown and the Authors of Lex Rex Jus Populi Vindicatum and others were known to have written those Libels from picque against the Government because they justly suffered under it I know that to this it may be answered That these Statutes are but late and were not extant in Buchannan's time and consequently Buchannan cannot be refuted by them 2. That these Statutes have been obtain'd from Parliaments by the too great influence of their Monarchs and the too great Pusillanimity of Parliaments who could not resign the Rights and Priviledges of the People since they have no Warrant from them for that effect To the first of which I answer that my Task is not to form an Accusation against Buchannan but against his Principles and to demonstrate that these Principles are not our Law but are inconsistent with it and it is ridiculous to think that any such Laws should have been made before those Treasonable Principles were once hatched and maintained for Errors must appear before they be condemned and by the same Argument it may be as well urged that Arius Nestorius c. were not Hereticks because those Acts of General Councils which condemned their Heresies were not extant when they first defended those opinions and that our King had not the power of making Peace and War till the Year 1661. But 2dly For clearing this Point it is fit to know that our Parliaments never give Prerogatives to our Kings but only declare what have been their Prerogatives and particularly in these Statutes that I shall Cite the Parliament doth not Confer any New Right upon the King but only acknowledge what was Originally his Right and Prerogative from the beginning and therefore the Parliament being the only Judges who could decide whether Buchannans Principles were solid and what was Jus Regni apud Scotos These Statutes having decided those points controverted by him there can be hereafter no place for Debate and particularly as to Buchannan his Book De jure Regni apud Scotos it is expresly condemn'd as Slanderous and containing several offensive Matters by the 134 Act Parl. 8. Ja. 6. in Anno 1584. which was the first Parliament that ever sate after his Book was printed To the 2 d I answer that it being controverted what is the Kings Power there can be no stronger Decision of that Controversie in Favours of the King than the acknowledgment of all Parties Interested and it is strange and unsufferable to hear such as appeal to Parliaments cry out against their Power their Justice and Decisions and why should we oppress our Kings and raise Civil Wars whereby we endanger so much our selves to procure powers to Parliaments if Parliaments be such ridiculous things as we cannot trust when they are impowred by us and if there be any force in this answer of Buchannans there can be none in any of our Laws for that strikes at the Root of all our Laws and as I have produced a Tract of reiterated Laws for many Years so where were there ever such free unlimited Parliaments in any Nation as these whose Laws I have Cited 2dly Whatever might be said if a positive Contract betwixt the King and People were produced clearing what were the just Limits of the Monarchy and bounding it by clear Articles mutually agreed upon yet it is very absurd and extravagant to think that when the Debate is what is the King of Scotlands just Power and Right and from whom he Derives it that the Laws and repeated Acknowledgements of the whole Representatives of the People assembled in the Supream Court of the Nation having no open force upon it but enacted at several times in many several Parliaments under the gentlest peaceablest and wisest Kings that ever they had should not be better believed than the Testimonies of three or four byass'd and disoblig'd Pedants who understood neither our Laws nor Statutes and who can bring no clear fundamental Law nor produce no Contract nor Paction restricting the King or bounding his Government 3dly That which adds a great deal of Authority to this Debate and these Statutes is that as this is clear by our positive Law so it is necessarily inferred from the nature of our Monarchy and is very advantagious for the Subjects of this Kingdom which I shall clear in the second and third Arguments that I shall bring against those Treasonable Principles nor can they be seconded by any solid Reason as I shall make appear in answering the Arguments of those Authors I know that Nephthaly the Author of Jus Populi and our late Fanatical Pamphlets alleadge that our Parliaments since 1661. are null and unlawful because many who have right to Sit as Members or to Elect Members were excluded by the Declaration or Test but my answer is First That these were excluded by Acts of Parliament which were past in Parliaments prior to their exclusion and so they were excluded by Law and no man can be said to
project I find also that as the debarring the Right Heir is in reason the fruitful seed of all Civil War and misery for who can imagine that the Right Heir will depart from his Right or that wise men will endanger their lives and fortunes in opposition to it so experience has demonstrated how dangerous and bloody this injustice has prov'd Let us remember amongst many Domestick examples the miseries that ensu'd upon the exclusion of Mordredus the Son of Lothus the destruction of the Picts for having secluded Alpinus the Right Heir the Wars during the Reign of William the Conqueror those betwixt King Stephen and Henry the II betwixt the Houses of Lancaster and York betwixt the Bruce and the Baliol the murther of Arthur Duke of Britanny true Heir of the Crown of England with many other foreign Histories which tell us of the dreadful mischiefs arising from Pelops preferring his youngest Son to the Kingdom of Micene from Aedipus commanding that Polinices his youngest Son should reign alternately with the eldest from Parisatis the Queen of Persia's preferring her youngest Son Cyrus to her eldest Artaxerxes from Aristodemus admitting his two Sons Proclus and Euristhenes to an equal share in the Lacedaemonian Throne The like observations are to be made in the Succession of Ptolemaeus Lagus and Ptolemaeus Phisco In the Sons of Severus in the Succession of of Sinesandus who kill'd his Brother Suintilla Righteous Heir of Spain and that of Francis and Fortia Duke of Millan with thousands of others In all which either the Usurpers or the Kingdom that obey'd them perish'd utterly To prevent which differences and mischiefs the Hungarians would not admit Almus the younger Brother in exclusion of the elder Colomanus though a silly deform'd Creature albeit Almus was preferr'd by Ladislaus the Kings eldest Brother to both Nor would France acquiesce in St. Lewis's preferring CHARLES's third Son to Lewis the Eldest And the English refus'd to obey Lady Jean Gray in prejudice of Queen Mary though a Papist and persecuter Tali constanti veneratione nos Angli legi timos Reges prosequimur c. says an English Historian Seventhly If Parliaments had such Powers as this then our Monarchy would not be hereditary but elective the very essence of an hereditary Monarchy consisting in the right of Succession according to the contingency of blood Whereas if the Parliament can prefer the next save one they may prefer the last of all the Liue for the next save one is no more next than the last is next And the same reason by which they can chuse a Successor which can only be that they have a Power above him should likewise in my opinion justifie their deposing of Kings And since the Successor has as good right to succeed as the present King has to Govern for that Right of blood which makes him first makes the other next and all these Statutes which acknowledge the present Kings Prerogatives acknowledge that they belong to him and his Heirs it follows clearly that if the Parliament can preclude the one they may exclude the other And we saw even in the last age that such reasons as are now urged to incapacitate the Children of our last Monarch from the hope of Succession viz. Popery and arbitrary Government did embolden men to Dethrone and Murder the Father himself who was actual King Eighthly That such Acts of Parliament altering the Succession are ineffectual and null is clear from this that though such an Act of Parliament were made it could not debar the true Successor because by the Laws of all Nations and particularly of these Kingdoms the right of Succession purges all defects and removes all impediments which can prejudge him who is to Succeed And as Craig one of our learn'd Lawyers has very well express'd it tanta est Regii sanguinis praerogativa dignitas ut vitium non admittat nec se contaminarep atiatur And thus though he who were to succeed had committed Murther or were declar'd a Traitor formerly to the Crown for open Rebellion against the King and Kingdom yet he needed not be restor'd by Act of Parliament upon his coming to the Crown But his very Right of blood would purge all these imperfections Of which there are reasons given by Lawyers one is that no man can be a Rebel against himself nor can the King have a Superior And consequently there can be none whom he can offend And it were absurd that he who can restore all other men should need to be restored himself The second reason is because the punishment of crimes such as confiscations c. are to be inflicted by the Kings Authority or to fall to the Kings Thesaury and it were most absurd that a man should exact from himself a punishment Like as upon this account it is that though in the Canon Law Bastards cannot be promoted to sacred orders without dispensation nor can alibi nati that is to say People born out of England be admitted to succeed in England by express Act of Parliament there Yet Agapaetus Theodorus Gelasius and many others have been admitted to be Popes without any formal dispensation their election clearing that imperfection And the Statute of alibi nati has been oft found not to extend to the Royal Line That the Succession to the Crown purges all defects is clear by many instances both at home and abroad The instances at home are in England Henry the VI. Being disabled and attainted of High-Treason by Act of Parliament it was found by the Judges notwithstanding that from the moment he assum'd the Crown he had Right to succeed without being restored And the like was resolved by the Judges in the case of Henry the VII as Bacon observes in his History of Henry the VII Fol. 13. And in the case of Queen Elizabeth who was declar'd Bastard by Act of Parliament as is clear by Cambden anno 2 Elizabeth And though in Scotland there be no express instances of this because though some Rebellious Ring-leaders in Scotland have often in a private capacity been very injurious to their King Yet their Parliaments have been ever very tender of attainting the Blood-Royal or presumptive Heirs But Alexander Duke of Albany and his Succession being declared Traitours by his Brother King James the IV his Son John was notwithstanding called home from France upon his Uncles death and declar'd Tutor and Governour without any remission or being restor'd That Employment being found to be due to him by the right of Blood Therefore he had been much more declared the true Successor of the Crown if his Cousin King James the V. had died These being sufficient to establish our design I shall mention only some forraign stories CHARLES the VII of France who though banish'd by Sentence of the Parliament of Paris did afterwards succeed to the Crown And though Lewis the XII was forfeited for taking up Arms against CHARLES the VIII yet he succeeded to him
of the Church of England Sir John Munsons Discourse of Supream Power and Common Right Dr. Henry Bagshaw's Discourses on select Texts Mr. Seller's Remarks relating to the State of the Church in the three first Centuries The Country-man's Physician Dr. Burnet's account of the Life and Death of the Earl of Rochester Vindic. of the Ordinations of the Church of Engl. History of the Rights of Princes in the Disposing of Ecclesiastical Benefices and Church-Lands Markam's Perfect Horseman Dr. Sherlock's Practical Disc of Religious Assemblies Defence of Dr. Stillingfleet's Unreasonableness of Separation A Vindication of the Defence of Dr. Stillingfleet in Answer to Mr. Baxter and Mr. Lob about Catholick Communion The History of the House of Estee the Family of the Dutchess of York Sir Rob. Filmer's Patriarcha or Natural Power of Kings Mr. John Cave's Gospel to the Romans Lawrence's interest of Ireland in its Trade and Wealth stated DVODECIMO HOdder's Arithmetick Grotius de Veritate Religionis Christianae Bishop Hacket's Christian Consolations An Apology for a Treatise of Humane Reason written by M. Clifford Esq VICESIMO QVARTO VAlentine's Devotions Pharmacopaeia Colegii Londinensis reformata Books lately Printed for Richard Chiswell AN Historical Relation of the Island of CEYLON in the East-Indies Together with an Account of the detaining in Captivity the Author and divers other English-men now living there and of the Author 's miraculous Escape Illustrated with Fifteen Copper Figures and an exact Map of the Island By Capt. Robert Knox a Captive there near 20 years Folio Mr. Camfield's two Discourses of Episcopal Confirmation Octavo Bishop Wilkin's Fifteen Sermons never before Extant Mr. John Cave's two Sermons of the Duty and Benefit of Submission to the Will of God in Afflictions Quarto Dr. Crawford's serious Expostulation with the Whiggs in Scotland Quarto A Letter giving a Relation of the present state of the Difference between the French King and the Court of Rome to which is added The Pope's Brief to the Assembly of the Clergy and their Protestation Published by Dr. Burnet Sir James Turner's Pallas Armata or Military Essays of the ancient Grecian Roman and Modern Art of War Folio Mr. Tanner's Primerdia Or The Rise and Growth of the first Church of God described Octavo A Letter writ by the last Assembly General of the Clergy of France to the Protestants inviting them to return to their Communion together with the Methods proposed by them for their Conviction Translated into English and examined by Dr. Gilb. Burnet Octavo Dr. Cave's Dissertation concerning the Government of the ancient Church by Bishops Metropolitans and Patriarchs more particularly concerning the ancient Power and Jurisdiction of the Bishops of Rome and the Encroachments of that upon other Sees especially Constantinople Oct. Dr. John Lightfoot's Works in English in two Volumes Folio Mr. Selden's Janus Anglorum Englished with Notes To which is added his Epâ—nomis concerning the ancient Government and Laws of this Kingdom never before Extant Also two other Treatises written by the same Author One of the Original of Ecclesiastical Jurisdiction of Testaments the other of the Disposition or Administration of Intestates Goods Now the first time published Folio A Letter from Mr. Richard Smith to Dr. Henry Hammond concerning the Sense of that Article in the Creed He descended into Hell Together with Dr. Hammond's Answer Guil. Ten. Râ—yne Med. Doâ—t Dissertat de Arthritide Mantyssa Schematica de Acupunctura Item Orationes tres de Chemiae ac Botaniae Antiquitate Dignitate De Physiognomia de Monstris Cum Figuris Authoris notis illustratae Octavo Disquisitiones Criticae de variis per diversa loca tempora Biblierum editionibus quibus accedunt Castigationes Theologi cujusdem Parisiensis ad Opusc Is Vossiâ— de Sybillinis Oraculis ejusdem Responsionem ad objectiones Nupera Criticae Quarto D. Spenceri Dissertationes de Ratione Rituum Judaicorum c. Fol. Sub praelo FINIS