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
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
of the Argument seems either to prove nothing or else to prove that there can be no Elective Monarchies To this it is answered that even in Elective Monarchies the Nomination proceeds only from the People but the Royal Power from God as we see in inferiour Magistracies such as Burrows Royal c. the People Elect and so the Nomination is from them but the power of Governing proceeds from the King and not from the Electors and therefore as the People who Elected the Magistrates in these Towns cannot Depose them by their own Authority so neither can the People Depose their King but the punishment of him belongs to God Almighty I confess that if the People Choose a King with express Condition that they may punish him as the Lacedaemonian Kings were punishable by those Magistrates call'd the Ephori the Kings are in that case accountable to the People but then they are not Monarchs having supream Power as our Kings have and who are therefore declar'd to hold their Power immediately from God and not to be at all punishable by the People The 4th Argument that I shall use for proving that our Kings derive not their power from the People shall be from the natural Origin of Monarchy and of ours in particular which I conceive to be that Right of Paternal Power which is stated in them for understanding whereof it is fit to know that God at first created only one Man that so his Children might be Subject to him as all Children yet are to their Parents and therefore the Jesuitical and Fanatical Principles that every man is born Free and at Liberty to choose what form of Government he pleaseth was ever and is most false for every man is born a Subject to his own Parents who if they were not likewise subject to a Superiour Power might judge and punish them Capitally lead them out to War and do all other things that a King could do as we see the Patriarchs did in their own Families And as long as it is known who is the Root of the Family or who represents it there is no place for Election and people Elect only when the memory of this is lost and such as overcome the Heads of Families in Battle succeed to them in their Paternal Right If it be answered that the Father may by nature pretend to a power over his Children or it may be an Elder Brother over his younger yet there is no tye in nature subjecting Collaterals as Uncles and their descendents to those descended from the Eldest Family To this I reply that 1. This power over all the Family was justly given by nature to shun divisions for else every little Family should have erected it self in a distinct Government and the weakest had still been a Prey 2. We see that Abraham did lead out to War and in every thing act as King not only over his own Children but all the Family and whole Nations are call'd the Children of Israel the Children of Edom c. 3. That must be concluded to be establish'd by natural instinct which all men in all Ages and Places allow and follow but so it is that all Nations in all Places and Times have ever allow'd the Eldest Son of the Eldest Family to govern all descended from the Stock without new Elections and the Author of the late famous Moral Essayes hath admir'd this as one of the wisest Maxims that we have from Natural Instinct for if the wisest or strongest were to be chosen there had still been many Rivals and so much Faction and Discord but it is still certain who is the Eldest Son and this shuts out all Debate and prevents all Dissention For applying this to our Case it is fit to know that if we believe not our Historians then none else can prove that the People of Scotland did at first Elect a King that being contrary to the acknowledgements of our own Statutes and all Buchannans Arguments for restraining Kings being founded upon the authority of our Historians who as he sayes assert that K. Fergus was first Elected King by the People if he be not able to prove that our Kings owe their Crowns to the Election of the People without any inherent or previous Right all his Arguments vanish to nothing but on the other hand if we consider exactly our Historians we shall find that our Kings Reign over us by this Paternal Power and though I am not very fond of Fabulous Antiquities yet if Tradition or Histories can be believ'd in any thing they should at least be believ'd against Buchannan and those who make use of them to restrain the power of our Kings and by our Histories it is clear that Gathelus having led some Forces into Egypt he after several Victories setl'd in Portugal call'd from him Portus Gatheli from which a Colony of that Race transported it self into Ireland and another into Scotland nor should this be accounted a Fable since Cornelius Tacitus in the Life of Agricola makes the Scots to be of Spanish and the Picts to be of German Extraction The Scottish Golonies finding themselves opprest by the Britains and Picts they sent over into Ireland to Ferquhard and he sent them a considerable Supply under the Command of Fergus his Son who having secur'd them against their Enemies all the Heads of the Tribes acknowledged him for their King and swore that they should never admit of any other Form of Government then Monarchy and that they should never obey any except Him and his Posterity which if they brake they wish'd that all the Plagues and Miseries that had formerly fallen on their Predecessors might again fall upon their Posterity as the punishment of that Perjury All which Religious Vows and Promises seal'd by those dreadful Oaths voluntarly given were graven on Marble Tables and Consign'd for preservation into the custody of their Priests and these are Boetius own words Fol. 10. From which I observe 1. That as our Laws assert that our Kings derive their Power from God and not from the People so we ought not to believe the contrary upon the Faith of our Historians except they were very clear and unanimous in contradicting our Laws whereas it appears to me that our Laws agree with our History for Gathelus was not at all Elected by the People but was himself the Son of a King and did conquer by his own Subjects and Servants and all those who are descended from his Collonies were by Law oblig'd to obey the Eldest Son and Representative of that Royal Family And Ferquhard is acknowledg'd to have been his only Successor nor did ever any of the Scotish Tribes pretend to the Supremacy and our Histories bear that none of our Tribes would yield to another and the Fatal Marble Chair that came from Spain remaining with those who went to Ireland does evince that the Birth-right remain'd with them and therefore when Fergus the Son of Ferquhard came over he brought over
far he were ty'd and if his conveniency were the measure of his Obligation But since I shall hereafter fully prove that these limitations are as dangerous to the Subjects as to the Prince and that ten thousand times more Murders and other Insolencies have been committed in Civil Wars upon the false pretence of Liberty than ever was committed by the worst of Kings it must necessarily follow that those limitations ought not to be admitted after an absolute Oath for shunning inconveniences which at the ballance appear to be no weight 5. It cannot be denyed but our Kings have ever had the Power of Peace and War the calling and dissolving of Parliaments and a negative Voice in them the remitting of Crimes and nomination of Judges and therefore it must be presumed that since the Law has not limited them in those things it has limited them in nothing for by involving us in War they may expose our Fortunes our Wives and Children to the greatest of dangers and it had been great folly to limit them in any thing after those great Prerogatives were allowed And though our Histories do bear That Peace and War were ordinarily determined by the advice and consent of the Nobility yet that does no more infer a necessity not to do otherwayes than the ordinary stile of all our Proclamations bearing to be with advice of our Privy Council infers a necessity upon the King to do nothing without their advice and how could the consent of the Nobility have been necessary in the former Ages since all their Right flowed from the King Himself and that neither they then nor the Parliament now had or have a Power equal with the King much less above Him as shall be fully proved in the first Conclusion that I am to draw from this Doctrine only to what I have said I must here add that it being proposed to our Predecessors at the swearing the Oath of Allegiance to King Fergus Whether they would be govern'd by a King who should have absolute Power or by the Nobility or by a Multitude it was answered That lest they should have many Kings in place of one they abhorr'd to bestow the Absolute Power either upon the Nobility or upon the Multitude 6. I cannot but exceedingly commend our Predecessors for making this reasonable choice of an absolute Monarchy for a Monarch that is subject to the impetuous caprices of the Multitude when giddy or to the incorrigible Factiousness of Nobility when interested is in effect no Government at all and though a mixt Monarchy may seem a plausible thing to Metaphysical Spirits and School-men yet to such as understand Government and the World it cannot but appear impracticable for if the People understand that it is in their Power to check their Monarch the desire of command is so bewitching a thing that probably they will be at it upon all occasions and so when the King commands one thing the Nobility will command another and it may be the People a third And as it implies a contradiction that the same Persons should both command and obey so where find we those sober and mortified men who will obey when they may command Let us consider what dreadful extravagancies and cruelties appear'd at Rome betwixt the Tribunes of the People and the Senate one of six Kings had a Son who ravish'd a Woman and thereupon the Kings were expell'd but every year almost produced a Civil War wherein vast numbers of free Romans were murther'd and in the contest betwixt Sylla and Marius 90 Senators 15 Consuls 2600 Gentlemen and 100000 others were murther'd and after the whole Common-wealth was exhausted in the Wars betwixt Caesar and Pompey and in the immediate succeeding War betwixt Augustus Anthonie and Lepidus wherein every man lost either a Brother a Father or a Son Rome return'd again to its Monarchy and was never so happy as under Augustus The People of Naples complaining lately of their Taxes put themselves under the Command of Reforming Massaniello by whose extravagancies they suffer'd more in one Moneth than they had done under the Spanish cruelty in an hundred years But our late Reformation in Britain seems to have been permitted by God to let us see that mixed Governments having power to Reform Kings are more insufferable than Tyranny for by it we saw that the multitude consists of Knaves and Fools and both these are the worst of Governors that the best of Kings will be thought wicked when Subjects are his Judges who resolve not to obey and that it is impossible to know what is right when every man is Judge of what is wrong The impracticableness likewise of this popular Supremacy will yet more convincingly appear if we consider that the People are to be Judges because of their natural freedom for then all men should have equal right to be Reformers and these can never meet nor consult together And if it be answered that the People may send their Representatives my Reply is that the greatest half of the Nation are neither Freeholders nor Burgesses and yet those only are call'd the Representatives of the people and what absurd Tricks and Cheats are us'd in choosing even those Representatives and it may be the resolution prevails by the Vote of the greatest Fool or Knave in the Meeting and if any one man remove by sickness or accident at the passing of a Vote or if any of the multitude be brib'd or have prejudice though on a most unjust account that which would have been the interest of the Nation turns to be against it so infallible a Judge is the multitude And I have seen in popular Elections hundreds cry for a thing and thereafter ask what was the matter 7ly If the Proceres Regni or Nobility are to be the check upon our Kings and to be trusted with this coercive power of calling them to an account as Buchannan pretends then I desire to know who invested them with this power for it was never pretended that it is naturally inherent in them And if the people invested them I desire to know by what Act the people transferr'd this power upon them for they have no Law nor original Constitution for this as our Kings have for their Right and passing over the dangers may arise from their having this power because of the Factiousness Poverty Picques Humors or Ignorance that may be incident to them it seems to me strange why we the people should trust such to be our Checks over the King who are His own Creatures owing their Honours to Him and expecting dayly from Him Imployments and Estates and if they and the people differ who is to be Judges of those Controversies Nor can the Nobility and Commons assembled in Parliament have this coercive power for the Reasons which I shall hereafter offer and therefore none has it but the King is Supream in himself and accountable to none save God Almighty alone But more of this will be found in the
Sequel of this Discourse upon other occasions 8ly Whatever proves Monarchy to be an excellent Government does by the same Reason prove absolute Monarchy to be the best Government for if Monarchy be to be commended because it prevents Divisions then a limited Monarchy which allows the People a share is not to be commended because it occasions them if Monarchy be commended because there is more expedition secresie and other excellent Qualities to be found in it then absolute Monarchy is to be commended above a limited one because a limited Monarch must impart his secrets to the people and must delay the noblest designs until malicious and factious Spirits be either gain'd or overcome And the same analogy of Reason will hold in reflecting upon all other advantages of Monarchy the Examination whereof I dare trust to every mans own breast 9ly It was fit for the People that their Kings should be above Law because the severity of Law will not comply with that useful tho illegal Justice which is requisit in special cases for since summum jus is summa injura and since impossibile est sola innocentia vivere we may well conclude that absolute Monarchy is necessary to protect the guilty innocent by Remissions to break Laws justly in a Court of Chancery and to crook them uprightly in our Courts by an officium nobile For strict and rigid Law is a greater Tyrant than absolute Monarchy I know that some pretend that the 25. Act 15. Par. Ja. 6. declaring the King to be an absolute Prince is only to be interpreted in opposition to the Popes Authority he being so far absolute only as not to be Subject to the Pope who pretended then a Jurisdiction over all Kings But the answers to this are clear First This Statute is made to declare the Kings of Scotland to have Right by their Inherent Prerogative to their exacting Customs for all Merchandise because they are absolute Monarchs which Argument had been ridiculous if this absoluteness had only been in opposition to the Pope nor is there any mention of the Pope in all this Statute and what interest hath the Pope in our Customs 2dly When the Kings power is by our Statutes rais'd above the Pope it is done by declaring him Supream and not by declaring him absolute 3dly All Lawyers and States-men divide Monarchies in absolute and limited Monarchies and the word Absolute is still taken in opposition to limited as is clear by Arnisaeus Boâ—in c. And whereas it is pretended that these words in this Statute acknowledging the King to be absolute are only exprest transiently and enunciatively but are not Decisive and Statutory It is answered that our Parliaments never give our Kings Prerogatives but only acknowledge what our Kings have by an Inherent and Independent Right and these words in this Statute are of all others in our Laws exprest with most of Energy for they are usher'd with It cannot be deny'd but His Majesty has as great Liberties and Prerogatives as any Monarch whatsoever and this acknowledgement is made the Foundation of His Right to exact Customs And in true Reasoning nothing is made the Proposition of an Argument but that which is most uncontrovertable I foresee that our Fanaticks and Republicans will be ready to misrepresent absolute Monarchy as Tyranny But a Tyrant is he who has no Right to Govern and so he may be oppos'd as the common Enemy of all the Society And it is ridiculous to pretend with Hobs That we are oblig'd to obey whoever is once in possession for that were to invite men to torment us and to justifie Crimes by success Nor can it be from this deduc'd that since it is lawful to oppose any who are in Possession that it is therefore lawful to oppose our Monarchy because they have as Algernon Sidney pretends Vsurpt over us a power inconsistent with our natural Liberty And owe their Right to that Prescription which the greatest Tyrants may maintain by force and to that consent which they may procure by Violence or Flattery For to this I answer That our Monarchs have their power establisht by Birth-right by Consent by Prescription and by Law which are all the ways whereby any Right can be legally Establisht But it is a gross mistake in Buchannan and others to conclude a lawful King punishable as a Tyrant because he becomes vitious For though God may punish him as such yet his People cannot that were to raise the Servant above the Master and to occasion a thousand Disorders to redress one and when King James acknowledges that a good King thinks Himself made for his People and not His People for Him That is only said with reference to the King's duty to God but not with Relation to the Peoples Duty to their King And when Trajan delivering the Sword to the Proconsul said Pro me si rectè impero si male contra me Grotius observes justly That this was spoke as a Philosopher and not to subject himself to the others Jurisdiction And so Buchannan did most traiterously advise the Printing this on our Coin Nor do's this Title of absolute Monarch empower him to dispose of our Estates For it is fit to know that Government is the Kings and Property is the Subjects Birth-right Monarchy is a Government and so can include no more than what is necessary for Government And though the Turk or Mogol arrogate to themselves the total Property of their Subjects in this they are Tyrants and not Kings And when our Statute above-mentioned says That our Kings have as much power as they this is only to be understood of what Right they have by the Nature of Monarchy Rex nomen est jurisdictionis non dominii say the Lawyers For the Law having said that all things were the Emperours l. bene a Zenone § Sed scimus C. de Quadr. Praescript The Emperour asked the famous Lawyer Bulgarus in what sense all was his who is mightily prais'd for having answer'd Omnia Rex possidet imperio singuli dominio Accurs in praem ff in Verb. Sanctioni For what is once ours cannot be taken away without our consent And therefore by the 5. Act 1. Par. Ch. 2. It is declared lawful for the King to make Garisons His Majesty entertaining them on His own expence And by the Act 3. Pav 3. Ch. 2. It is declar'd that the people shall not be subject to free Quarter c. And yet right reason teacheth us that all the Land of Scotland having been once the Kings for the Law saith that the King is Susitus ratione Coronae in all the Lands of Scotland His Majesty is therefore presumed Proprietor of all and every thing belongs to him if some other cannot instruct a right which is the sense of that Law Nemo terram nisi authoritate Regia possideto And of King Malcolm Canmor's Law that Rex distribuit totam Terram Scotiae hominibus suis And it therefore clearly follows that the King has
in which they had been treated as Slaves And whereas these Republicans pretend that the King is but a Physician this shews that they design to have no King for any man may lawfully change his Physician and Buchannan's laying so much weight on this Argument makes me suspect much his honesty for no man can have so mean an opinion of his Sense And his comparing the Monarch to a Tutor is very extravagant for no man is sworn to have such a mans Heirs for Tutors the one is chosen by God the other by the Patient the one has a right by Law that is unalterable the others employment is meerly precarious But though he were a Tutor no man can remove his Tutor at pleasure as they say the People may remove their King Nor is a Tutor to be laid aside but by an Action before a Superior Judge wherein he is to be proved to have Malversed and therefore since there is no Superior Judge except God and that the People are not his Superiors it clearly follows that the People cannot lay aside their King Only I joyn so far with Buchannan in those Rhetorical expressions that I really think the Multitude is always so mad that they need a King to be their Physician and of so weak a Judgment like Minors that they need him for a Tutor and without his assistance and protection every hypocritical Bigot and ambitious Usurper would cheat them at his pleasure and make them not only a prey but but a Tool in their own Slavery Nor is their any force in that Argument The King was made for the People and not the People for the King and therefore the People are nobler than the King and ought to be prefer'd to Him For to this it is answered that 1. The Question here is not who is more preferable but who is the Superiour And though one good Christian be preferable to a thousand who are not so yet his Interest in the Commonwealth is not preferable the wiser part is still preferable to the greater part and yet the greater will over-rule the wiser A Shepherd is ordained for the Flock and yet it cannot be concluded that a Flock of Brutes is to be preferred to any reasonable Creature 2. The Kings Interest and the Peoples are inseparable in the Construction of Law which presumes That what the King does He does for the People and there is none above the King that can Judge Him if He does otherwise 3. Whether the Kings Power be derived from God or from the People yet if it be derived from God it is preferable because of Gods Ordinance Or if from the People it is preferable because they by Electing Him King have consented that it should be so and they having Trusted Him with the publick Interest the publick Interest is still preferable I know that Buchannan and others value themselves much upon the Instance of the Bruce and Baliol in which the people did Declare That they preferred the Bruce because the Baliol had enslaved the Kingdom to the English And it is generally urged That all Lawyers are clear that if a King alienate His Kingdom His people may disclaim Him But my answers are That if a King will alienate His Kingdom the Subjects are free in that case if at all not by their power to re-assume their first Liberty but because the King will not continue King and they are free by his Deed but not by their own Right 2. Even in that case Lawyers do irritate and annul the Deed but dissolve not the Contraveeners Right And as to that particular Instance it is well known that King Robert the First or the Bruce as we call him was desirous that the Parliament should threaten to choose another if He submitted his Interest to the Popes Decision who pretended then to be the Supream Judge over all Kings But though the Bruce to please the people should have shunned to quarrel with what they did in such a Juncture yet that could not wrong the Monarchy nor His Successors as shall be proved Having thus cleared that the Kings power is not derived from the people even though they had Elected Him and that He is an absolute King both by our Laws and the Nature of our Monarchy and that all this is most consistent with right Reason I come now to draw some Conclusions from these Principles The first Conclusion shall be That our Parliaments are not co-ordinate with our Kings in the Legislative Power but that the Legislative and Architectonick Power of making Laws as Lawyers term it does solely reside in the King the Estates of Parliament only consenting which will further appear by these Reasons 1. It cannot be denied but we had Kings long ere we had Parliaments we never having had any Parliaments till King Kenneth the Thirds Time Anno Dom. 988. according to the Computation of the severest Re-publicans themselves for till then we read only of the Proceres Regni or the Nobility or Chiefs of Clanes and Heads of Families who assembled upon all occasions to give the King advice and therefore our Parliaments cannot pretend that they were designed as a Co-ordinate power with the King while he did what was right much less to be his Judge when he did what was wrong 2. That our Kings made Laws of old without any consent and that these were submitted to by the people is clear not only from our Histories which do tell us that such Kings made such Laws without speaking any thing of either Nobility People or Parliament but even from our old Books of Statutes wherein there is no mention made of the consent of either the Nobility or Parliament The Laws at that time beginning simply The Kings Statutes as in all the Statutes of King William King Alexander the Second and in the Statutes of King Malcolm Canmore King David the First and King David the Second where there is not so much as mention made of the Nobility or the Parliament in the very beginning of the Statutes and that at other times the Nobility were only called and that only the Nobility did sit is very clear from the Inscriptions of those Parliaments such as in the Parliament of King Alexander the Second which bears to have been made with the common consent of the Nobility cum communi consensu Comitum suorum without speaking of any other State Nor do I find a word of Burgesses till the Parliament of King Robert the Third in 1400. and even according to this late Constitution it is undeniable that the Parliament have not even an equal power with the King much less a power above him 3. How can that Judicature have a Co-ordinate power with the King when no man can sit in it but by a priviledge from the King but so it is that all that are Members of Parliament sit there by a special priviledge from the King and there is nothing considered to capacitate them to sit but the Force and
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
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
Primitive Christians did not oppose their Emperours in the defence of the Christian Religion was because they had not been secured at that time in the Exercise of their Religion by the Laws of the Empire and therefore the practice of those Christians can be no Argument why we may not now rise to defend the Orthodox Religion since it is now established by Law But this Objection is fully answered by that great Antiquary Samuel Petit. Diatriba de Jur. Principium edictis Ecclesiae quaesito where he clearly proves that they were actually secured by the Edicts of the Emperours in the days of the Emperor Tiberius and downward and yet they would not rise in Arms though they were persecuted under those same Emperors because the Word of God and the Christian Religion did command Obedience under Persecution and did forbid Resistance and taking up of Arms. The Arguments that can be produc'd to justifie this Principle of Defensive Arms are almost answered in the former Article viz. That there is a mutual Obligation betwixt King and People so that when He breaks the one they are free from the other and that all Government is Establisht for the advantage of the People and thus these few Arguments peculiar to this Point remain now only to be here resolv'd 1. That Self-defence is by the Law of Nature allow'd to all and even to Brutes why then should men who may lose more who deserve better and can use self-defence more innocently be debar'd from it 2 We see in Scripture that the People deserted and oppos'd their Kings for Religion 3. This has been allow'd with us in the instance of King James the third against whom his Subjects rose in Rebellion for misgoverning and oppressing His People and this opposition was first justified by God in the success he gave to their Arms and thereafter by a special and express Act in the ensuing Parliament which stands yet unrepeal'd To which I shortly answer That as to the first of Self-defence in Brutes we must still remember that God hvaing design'd Government to bridle the Extravagancies ofrestless Mankind he has appointed Magistrates to be his Vicegerents and Representatives and has entrusted them with his Power and so opposition to them is unlawful because it is not lawful against him and because if it were allow'd all would pretend to it and so there should be no Order nor Government And that this may be the better observ'd God has endowed man with Principles fitted for these ends of Order and Society amongst which one is That the publick Safety of the whole is to be preferr'd to the Safety of any one man or of any number of private men who are not to be considered as the publick because that is the publick Interest which is the Representative of the Nation and that this Principle may be the better obey'd he has commanded men to suffer injuries rather than occasion Disorders and has promised to reward Patience and Submission for his sake with eternal Life a Nobler Prize than we here can contend for This being then Premis'd it is answered that though Brutes may defend themselves because Order and the common good of Societies are not there concern'd yet there is no reason to extend this to Men whose Self-defence against Authority occasions more mischief than it can bring advantage And if this Argument hold it would prove that every man who is unjustly Condemn'd or at least thinks so may kill the King or His Judge Servants might bind their Masters and the People of any private Town might pull down their Judge from the Bench when they thought he opprest them And as these must submit because they expect Reparation from a higher Tribunal So God has promised Reparation to those who suffer for his sake and the greatness and sureness of this Reward makes this no uncomfortable Doctrine and this Submission is as necessary and rather more for mens preservation than Resistance and is a kind of Self-defence since opposition to Authority would bring a certain ruine and confusion in which more would perish than opposition by private Self-defence would preserve Upon which Christian Principles also Ames a Protestant and Calvinist Divine has resolv'd In bonis temporalibus tenetur quisque personam publicam sibi ipsi praeferre bonum enim totius pluris faciendum est quam bonum alicujus partis Cas conscient l. 5. cap. 7. Thes 14. and Lex Rex confesses p. 335. That a private man should rather suffer the King to kill him than that he should kill the King because he is not to prefer the Life of a private man to the Life of a publick man And whereas it may be pretended That though this opposition should not be trusted to any private man yet Parliaments and the Collective Body should and may be trusted with it But to this I have answered formerly That all Convocations without Authority from the King and all rising against him are indefinitely declared unlawful and justly for whoever wants Authority is but in a private capacity none having a publick capacity save the Magistrates And if they be allow'd to rise because their quarrel is just it must be as just to allow a lesser number if they have the same Justice in their pretence and we have frequently seen that the same Persons who magnified the multitude for their numbers did shortly thereafter divide from them pretending that they were the Sanior pars or juster Party The Examples produc'd by our Republicans of the revolt of Libna 2 Chron. 1. 21. And of Jeroboam because he had forsaken the Lord God of his Fathers and of the Ten Tribes from Rehoboam because of Rehoboam his oppression 1 King 12. prove not at all the lawfulness of the Subjects defection from their Kings because these defections are only Related but not allow'd in Scripture and are recorded rather as instances of God's vengeance upon the wickedness of these Princes than as examples justified in these Revolters and to be follow'd by such as read the Sacred History In which when Examples are propos'd by the Spirit of God for our imitation they are still honour'd with the Divine approbation And I hope my Readers will still remember that I design not by this Treatise to encourage Princes to wickedness by Impunity but only to discourage Subjects from daring to be the punishers The great esteem which the great Bishop Vsher has justly even among Republicans and Fanaticks for Learning and Devotion has prevail'd with me to set down two Objections used by him with his pious Answers hereto The first is Suppose say they the King or Civil Magistrate should command us to Worship the Devil would you wish us here to lay down our Heads upon the Block and not to repel the violence of such a Miscreant to the utmost of our Power and if not What would be come of Gods Church and his Religion To which the Holy Man answers That even when the Worship of the
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
thereafter King Robert the 2 d. his eldest Son and Heir but the attestation of the Grand-Uncle King David who could be no ways byassed in the Affair and here he is ranked before the three eldest Earls in the Nation who were then the three first Subjects therein and it is against all Sense to think that the whole Bishops would have sought the consent of the said John as Apparent Heir of the Crown if he had not been Apparent Heir I find also that Fordon calls him when he is crown'd King Primogenitus Roberti secundi nor was there the least opposition made to his Coronation nor to the Coronation of Annabella Drummond his Queen a Daughter of the House of Stob-hall now Pearth though both the Sons of the second Marriage were then alive I find also that Boetius himself acknowledges that the Earl of Marches Son George being pursu'd for having married clandestinely one of the Daughters of Eliz. Muir his defence was that he married her when she was the Daughter of a private Subject and before King Robert was King whereas if she had been only a Bastard-Daughter it could have been no Crime to have married her 7. Walter who they pretend should have succeeded to the Crown having kill'd his Nephew King James the first Son to King Robert the 3 d He was not only not own'd after the death of the said King James as certainly he had been if his Title had been good and his Right so recent and demonstrable having so many great and powerful Relations that his Father was induc'd upon their account to marry his Mother but yet the said Walter was by all the Parliament unanimously condemn'd as a Traitor for having conspir'd the death of his lawful Prince Nor does Boetius justifie Walter 's Title in the least but on the contrary magnifies the Parliament for their just Sentence As did likewise Aeneas Silvius the Popes learned Legat who exhorted the Parliament to condemn him 8. How is it imaginable that King Robert who had so lately and after a strong Competition come to the Crown would have adventur'd to make his Title yet more disputable by preferring a Bastard to the true Heir who had so many Friends by his Mother and who being an Infant had never disoblig'd him 9. If we will consider the opinion of the Civilians whom we and almost all Nations follow in the Cases of Succession we will find that the said King Robert the third was the eldest and lawful Son of King Robert the second Filius legitimus non legitimatus For 1. They conclude that a Son is prov'd to be a lawful Son by the Assertion of the Father Alciat tract praesumpt Reg. 1. praesumpt 2. numb 6. and certainly the Father is the best Judge in such Cases but so it is we have the Father owning the said Robert the 3 d. to be his eldest Son and Heir both in Charters and Acts of Parliaments which are the most solemn of all Deeds 2. Quando pater instituit aliquem tanquam filium suum which holds in this Case where the Father institutes and leaves him Heir and the Parliament swears Allegiance to him as the Heir Muscard de prob vol. 2. conclus 799. And in dubious Cases the Father's naming such a man as a Son presumes him to be a lawful Son nominatio parentis indueit filiationem in dubio l. ex facto § si quis Rogatus ff ad trebell 3. Even Fame and the common opinion of the People do in favours of these that are in Possession and in antient Cases prove filiationem legitimationem Mascard conclus 792. but much more where the Fame and common Opinion is supported by other Arguments fulgos consil 128. Panorm in cap. transmiss qui filii sunt legitimi 4. When Writs are produc'd calling a man a Son the Law concludes him to be a lawful Son Muscard vol. 2. conclus 800. num 15. all which can be easily subsum'd in our Case In which Robert the 3 d. is nam'd not only Son but Heir and Allegiance sworn to him even in the life-time of the second Wife and her Relations sitting in Paliament and all this acquiesc'd in for many hundreds of years and the Competitors punish'd as Traitors by the unanimous consent of all the Parliament I know that Buchannan does most bitterly inveigh against those Laws made by King Kenneth the 3 d as Laws whereby the ancient Right of Succession was innovated and whereby the Government was setled upon Children who were neither able to consult with the People nor to defend them and whereby those had the Government of the Nation conferr'd upon them who were not capable to Govern themselves To which my Answer is That in this Buchanan's Malice contradicts his History for his own History tells us That the Scots swore Allegiance to Fergus and his Posterity and consequently Fergus's Son ought by Law to have succeeded and not his Brother for his Brother was none of his Posterity and therefore those Laws made by King Kenneth did but renew the old Law and the Innovation introduc'd in favours of the Uncles was a subversion of the fundamental Law to which they had sworn 2. That the old Law was not abrogated but was in Being by vertue of the first Oath appears very clear by Buchanan himself who confesses that upon the death of Durstus a wicked Prince it was debated whether his Son should not succeed juxta sacramentum Fergusio praestitum veteremque esse morem servandum which acknowledgeth that the Succession was even in those days established by Law by Oath and by Custom and after the death of Fergus the second his Son Eugenius though a Minor was Crown'd and his Uncle Graemus allow'd to be his Guardian And Buchanan also brings in Bishop Kennedy lib. 12. praising this Law as made by Kenneth a most wise and glorious Prince with advice of all his Estates of Parliament and which rather confirms as he says the old Law than introduces a new one So far did Buchanan's Rage against Queen Mary prevail with him to praise and rail at the same individual Law and it is observable that it is very dangerous to recede once from fundamental Laws for Buchanan makes not only the Succession Elective but he makes no difference betwixt lawful Children and Bastards and excludes not only Minors during the Uncle's life but Women for ever 3. In all Nations where the Monarchy is Hereditary Minors succeed and so this innovation of causing the next Male succeed for all his Life was contrary to the Nature of the Monarchy and to the Customs of all Nations and God in Scripture gives us many instances of it Joas succeeded when he was seven years of age Josiah when he was eight Manasseh in twelve and Azariah in sixteen And yet in those days God is said to have chosen the King for it is said in Deuteronomy Thou shalt set over thee the King whom I have chosen and consequently the choice of
with him the Marble Chair which was the mark of Empire And Boetius immediately upon his arrival calls him King and Fordon the most ancient of our Historians lib. 1. cap. 36. calls him Fergusius Filius Ferardi aut Ferquhardi ex antiquorum Regum prosapia genitus qui ambitione Regnandi stimulatus magnam sibi Juvenum copiam assimulavit Albionem continuo progressus est ibidem super eos Regem primum se constituit that is to say he made himself the first King therefore K. James Basil Doron pag. 201. asserts that K. Fergus made himself King and Lord as well of the whole Lands as of the whole Inhabitants 2. We read nothing at all of the consent of the People but of the Heads of the Tribes who had no Commission from the People each of them having by his Birth-right a Power to Command his own Tribe and consequently the Royal Power was not derived to Fergus from the People but had it's Original from this Birth-right that was both in them and Fergus and he succeeded in the Right of those Chiefs to Command their respective Families and Boetius brings in King Fergus lib. 1. num 5. Speaking of himself as a pious Parent as one who owes to them what a Parent owes to his Children sunt pij Parentes in Liberos propensi debemus vobis quod proli genitores And the consent given by the Chief of the Clanns and the People did not give but declare the former Right as our consent now does in Acts concerning the Prerogative and as the Vote of the Inquest does in the Service of Heirs and thus at the Coronation of our Kings it is still said by our Historians that such a man was declared King communi suffragio acclamatione 3. This consent being only given in the Army cannot be said to have been universally by the People nor do we read that the People did Comissionate the Army or that the Army consulted the People and in general it cannot be instanc'd that the People did in any Nation universally consent to Election nor is it possible all the People can meet And in Poland which is the only Elective Monarchy we know the Free-holders only consent and yet every private Man and Woman have as great interest according to these pretended Laws of Nature as they have potior est conditio negantis Nor do we find that the Commons and mean People have any interest in the Elections of our Magistrates or Parliament Men so that Popular freedom by Birth and the interest of the People in Popular Elections are but meer Cheats invented to engage the Rabble in an aversion to the establish'd Government when factious and insolent Spirits who cannot submit themselves to Government design to cheat the Multitude by fair Pretences and to bride them by Flattery If it be pretended that it is not certain whether King Fergus was eldest Son to Ferquhard nor is it probable that if he had been such he would have preferr'd an uncertain Conquest in Scotland to his secure Succession in Ireland To this it is answered that all our Histories bear that King Ferquhard sent his Son Fergus and when a Son is spoken of indefinitly in such Cases he is actually understood to be the Eldest 2. He brought with him the Marble Chair the mark of Empire which would not have been allow'd to a younger Brother 3. It is said that having settled the affairs of Scotland he returned into Ireland to settle the differences there about the choosing of a new King which does import that he should have been King if he had not prefer'd Scotland to Ireland and the reason of this preference was because Ireland was then divided amongst many Kings and his Predecessors had but a very small share of it at that time and Scotland being a part of a greater Isle be probably found in this greater Isle a higher flight for his Hopes and more latitude for his Ambition But albeit the Kings of Scotland had been originally and at first Elected by the People yet it does not at all follow necessarly as Buchannan Dolman and our other Republicans pretend that therefore they may reject them at their pleasure or which is all one when they imagine that the Kings Elected by them serve not the ends for which they were designed and that for these Reasons 1. It cannot be deny'd but that the People may consent to an Election of a Monarch without Limitations for from the Principles of Nature we may learn that whatever is in ones power may be by them transfer'd upon another and therefore if the People be invested with a power of governing themselves they may cartainly transfer this Power upon another and we see that all Christians and even our Republicans allow that men may sell themselves to be Slaves a custom not only mention'd but approv'd by God himself so far does consent reach beyond what is necessary for maintaining this Point 2. If this could not be then there could be no such thing as absolute Monarchies which is against the receiv'd Opinion of all Nations and against the Doctrine of all Authors who though they debate that this or that Monarchy in a particular Countrey is not Absolute yet it was never controverted by any man alive but that the People mâ—ght consent and in many places have consented to absolute Monarchies and by the famous Lex Regia amongst the Romans Populus ei in eum omne Imperium suum Potestatem transtulit instit de jur nat gent. civ § 6. Mention'd likewise by that Famous Lawyer Vlpian l. 1. ff de constitut Princ. 3. We see this consequence to be very false in many other cases and therefore it cannot be necessary here for we find that a man chooses a Wife yet it is not in his power to put her away Cardinals choose the Pope and Chapters the Bishop and yet they cannot depose them the Common Council choose Magistrates and yet they cannot lay them aside 4. This Reasoning is condemn'd as most fallacious by most learn'd and disinterested Lawyers and therefore it cannot be infallible as is pretended vide Arnisaeum cap. 3. num 2. Haenon dis Pol. 9. num 44. Panorm ad cap. 4. de Cler. non residend Zasius ad l. non ambigitur num 3. ff de legibus Nor have any Lawyers differ'd from this common opinion of mankind except some very few who have differ'd from a Principle of Pique rather than of Judgment The next thing that I am to prove in this my first Proposition is That Our King is an absolute Monarch and has the Supream Power within this his Kingdom and this I shall endeavour to prove First From our positive Law 2. By several Reasons deduc'd from our Fundamental Laws and Customs 3. From the very nature of Monarchy it self and the Opinion of Lawyers who write upon that Subject and who define Absolute Monarchy to be a Power that is not limited or
proceed to do what they first abhorred really To these I must recommend the History of Hazael who when the Prophet foretold him 2 King 8. 12 13. That he should slay their young men with the sword dash their Children and rip up their Women with child answered him am I a dog that I should do such things and yet he really did what he had so excerated The moderation likewise of these modest pretenders to Self-defence and Defensive Arms will appear by the bloody Doctrine of their great Rabbies Buchannan not only allows but invites Subjects to murder their King And Lex Rex Pag. 313. tells us That it is a sin against Gods Command to be Passively Subject to an unjust Sentence and that it is an Act of Grace and Virtue to resist the Magistrate violently when he does him wrong and after that horrid Civil War was ended the Author of Nahptali doth justifie it pag. 16 and 17 in these words Combinations for assistance in violent opposition of the Magistrates when the ends of Government are preverted which must be referr'd to the discretion of them who mind Insurrection are necessary by the Law of Nature of Charity and in order to Gods Glory and for violation of this Duty of delivering the oppressed from Magistrates Judgment comes upon People From which he proceeds Pag. 18 and 19. do assert that not only the power of self-defence but vindicative and reforming power is in any part of the People against the whole and against all Magistrates and if they use it not Judgment comes on supposing their capacity probable to bear them forth and they shall be punish'd for their connivance and not acting in way of vindication of Crimes and reforming Abuses Before I enter upon those Arguments which the Scripture furnishes us with against these Rebellious Principles I must crave leave to say 1. That Defensive Arms seem to me very clearly inconsistent with that Mortification Submission and Patience which is recommended by our Blessed Saviour in all the strain of the new Testament and how will these People give their Coat to a Stranger or hold up their other Cheek to him when they will rise even in Rebellion against their Native Prince 2. As the taking up of Arms is inconsistent with the temper requir'd in a Christian so it seems a very unsuitable mean for effectuating the end for which it is design'd since Religion being a Conviction of what we owe to God how can that be comanded which should be perswaded and how can Arms become Arguments Or how can External Force influence immaterial Substances such as are the Souls of Men. And we may as well think to awake a mans Conscience by Drums or to perswade his Judgment by Musquets and therefore the Apostle speaks only of spiritual Arms in this our Warfare The Sword of the Spirit and the Helmet of Salvation c. But good God how could the extravagancy of forcing the Magistrate by Arms in Defence of Religion enter into Mens heads When it is unlawful even for the Magistrate himself to force Religion by Arms. And as Subjects should not be by the King forced to Religion so if they use Force against the King the pretext of Religion tho specious should not defend them And therefore when the sons of Zebedee desired fire from Heaven upon those who oppos'd even our Saviour he told them that they knew not what Spirit they were of 3. It seems very derogatory to the power of Almighty God that he should need humane assistance and it is a lessening of the great esteem that we ought to have for the energy force and reasonableness of the Christian Religion that it needs to be forc'd upon men by Arms as if it were not able to force its own way This Mahomet needed for his Cheats but our Blessed Saviour needs not for his Divine Precepts and therefore when Peter offered to fight for him our Saviour checkt him commanding him to put up his Sword and to perswade him the more effectually assures him That all they who take the Sword shall perish by it and that his Kingdom was not of this World and so he needed no such worldly help but if he pleas'd to call for Legions of Angels his Omnipotent Father would send them and sure Angels are fitter and abler Instruments to carry on such a work of Reformation than Rebellious Regiments of Horse and Dragoons 4. Our blessed Saviour foreseeing that Mans Corruption would in spite of Christianity prompt him to resist he therefore did command by the Apostle Paul Rom. 13. v. 1. and 2. Let every Soul be Subject to the higher Power for there is no Power but of God the Powers that be are ordained of God whosoever therefore resisteth the Power resisteth the ordinance of God and they that resist shall receive to themselves damnation In which Text it is very remarkable that the Apostle urges this Christian duty of submission as being a mark of mans immediate dependence upon God and as that which when contemned brings eternal damnation And whereas it is pretended that this Text commands only submission to Magistrates whilst they Act Piously and Vertuously because only in so far they are Gods Vicegerents but forbids not resistance to their impious commands It is answered that the Text has no such limitation and we must have so much respect to the Scripture as to think that if God Almighty had design'd to allow such an opposition he would have warranted it in as clear Terms as he commanded the submission and the reason why this submission is commanded is not because the Power is rightly us'd but because the Power is ordained of God And we see that St. Paul himself did think that the power should be reverenc'd even when abus'd for when the High Priest was Injuring him he acknowledged that he was obliged not to speak evil of the Rulers of his People Acts 23. 2. And if this place of Scripture and the submission therein commanded were so to be limited we behoved likewise so to limit the fifth Commandment and not to honour our Parents except when they are Pious nor to obey them if they vex or trouble us and St. Paul having written this Epistle to those who were then living under that monstrous Emperour Caius did clearly design that the Christian Religion was to be admired for commanding Subjects not only to obey good Princes but even submitting peaceably to Tyrants And suitable to this Doctrine are these Texts Heb. ch 12. v. 9. We had Fathers of our flesh who corrected and chastened us after their own pleasure and we gave them reverence and lest we might think that Text rather a Narration than a Command it is told us Peter 2. v. 18. Servants be subject to your Masters with all fear not only to the good and gentle but also to the froward for this is thanks-worthy if a man for conscience toward God do endure grief And v. 20. If when ye do well and
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