Act of Parliament has justly observed For clearing whereof it is fit to consider that in all powers and jurisdictions which are subordinat to one another the Inferiour should obey but not alter the power to which it is subordinat and what it does contrary thereto is null and void And thus if the judges of England should publish edicts contrare to Acts of Parliament or if a Justice of Peace should ranverse a decree of the judges of West-minster these their endeavours would be void and ineffectual But so it is that by the same principle but in ane infinitly more transcendent way all Kings and Parliaments are subordinat to the Laws of God the Laws of Nature and the Laws of Nations And therefore no Act of Parliament can be binding to overturn what these have established This as to the Law of God is clear not only from the general dictats of Religion but 28 Hen. 8. cap. 7. the Parliament uses these words For no man can dispence with Gods Laws which we also affirme and think And as to the Laws of nature they must be acknowledged to be immutable from the principles of reason And the Law it self confesses that naturalia quaedam jura quae apud omnes gentes peraequè observantur divina quadam providentia constituta semper firma atque immutabilia permanent § sed naturalia Institut de Jur Natural § singulorum de rer divis And when the Law declares that a Supream Prince is free from the obligation of Laws Solutus legibus which is the highest power that a Parliament can pretend to or arrive at Yet Lawyers still acknowledge that this does not exeem these Supream powers from being lyable to the Laws of God nature and nations Accurs in l. Princeps ff de Leg. Clementina pasturalis de re judicatâ Bart. in l. ut vim de justitiâ jure Voet. de Statutis Sect. 5. Cap. 1. nor can the Law of nations be overturned by private Statutes or any Supream power And thus all Statuts to the prejudice of Ambassadours who are secured by the Law of nations are confess'd by all to be null and the highest power whatsoever cannot take off the necessity of denuncing warr before a warr can be Lawful And Lawyers observe verie well that these who would oppose the common dictats of mankind should be look't upon as enemies to all mankind My second argument shall be that the King Parliament can have no more power in Parliament than any absolute Monarch has in his own Kingdom for they are when joyn'd but in place of the Supream power sitting in judgement and therefore they cannot in Law do what any other Supream and absolute Monarch cannot do For all the power of Parliaments consists only in their consent but we must not think that our Parliaments have ane unlimited power de jure so as that they may forfeit or kill without a cause or decerne against the Subjects without citing or hearing them or that they can alienat any part of de Kingdom or Subject the wholl Kingdom to France or any other Forraigne Prince all which deeds would be null in themselves and would not hinder the partie injur'd from a due redress For if our Parliaments had such power we would be the greatest slaves and live under the most arbitrary Government imaginable But so it is that no Monarch whosoever can take from any man what is due to him by the Law of God nature and nations For being himself inferiour to these he cannot overturne their statuts Thus a Prince cannot even ex plenitudine potestatis legitimat a Bastard in prejudice of former children though they have only but a hope of Succession l. 4. sequen de natal restituend and for the same reason it is declared in the same Law that he cannot restore a free'd man restituere libertum natalibus in prejudice of his Patron who was to succeed though that succession was but by a municipal Law For clearing which question It is fit to know that the solid lawyers who treat jus publicum as ARNISAEUS and others do distinguish betwixt such Kingdoms as were at first conferr'd by the People and wherein the Kings succeed by contract and in these the Laws made by King and People can exclude or bind the Successor And yet even here they confess that this proceeds not because the Predecessor can bind the Successor but because the People renew the paction with the succeeding King But where the Successor is to succeed ex jure regni in hereditary Monarchies there they assert positively that the Predecessor cannot prejudge the Successors right of Succession Which they prove by two arguments First that the Predecessor has no more power nor right than the Successor for the same right that the present King has to the possession the next in Blood has to the Succession And all our Laws run in favours of the King and his Heirs and no man can tye his equal or give him the Law par in parem non habet dominium The second is that it were unjust and unequitable that the Predecessor should robbe his Successor nulla ergo sayes Arnisaeus Cap. 7. Num. 5. clausula Successori jus auferri potest modò succedat ille ex jure regni And Hottoman lib. 2. de Regno Galliae asserts that in France which is a very absolute Monarchy Eaquae 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 Reigne of CHARLES the V. It was found impracticable by the three Estates and when Pyrrhus was to preferre 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 wholl Officers of that State did unanimously Cancel that Testament and restore Ibrahim the true Heir tho a silly foole Which shewes the opinion not only of Lawyers but of whole nations and Parliaments Tho vander Graaff an Hollander confesses that it is not Lawfull to choose any of his Sons to succeed him in which the general quiet of the Kingdom is much concerned And therefore tho the next Heir were wiser braver and more generally beloved Yet the more immediat must be received as choos'd by God whither good or bad and as honored with his Character And if Kings could have inverted their Succession and choos'd their own Successor Saint Lewis had preferr'd his own third Son to Lewis his eldest and Alfonsus King of Leon in Spaine had preferr'd his Daughters to Ferdinand his eldest Son And Edward the VI. of England had preferr'd and did actually preferre the Lady Iean 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
thing against the Right or Person of Queen Elizabeth as being declar'd a Bastard by Act of Parliament in England since her other right as next undoubted Heir by Blood to the Crown might be altered or Govern'd we must acknowledge it to be only one of these Statutes which the Law sayes are made ad terrorem ex terrore only Nor was there ever use made of it by Queen Elizabeth nor her Parliaments so fully were they convinc'd that this pretended power was so unjust as that it could not be justified by an Act of Parliament being contrair to the Laws of God of Nature of Nations and of the Fundamental Laws of both Kingdoms But this Law being made to exclude Queen Mary and the Scotish line as is clear by that clause wherein it is declared that every Person or Persones of what degree or Nation soever they be shall during the Queens life declare or publish that they have Right to the Crown of England during the Queens life shall be disinabled to enjoy the Crown in Succession inheritance or otherwayes after the Queens death It therefore followes that it was never valide For if it had King Iames might have thereby been excluded by that person who should have succeeded next to the Scotish race For it 's undeniable that Queen Marie did during Queen Elizabeths life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard And therefore the calling in of King Iames after this Act and the acknowledging his title does clearly evince that the Parliament of England knew that they had no power to make any such Act. The words of which acknowledgement of King James's Right I have thought fit to set down as it is in the statute it self 1. Ja. Cap. 1. That the Crown of England did descend upon King James by inherent Birthright as being lineally justly and Lawfully next and sole Heir of the Blood Royal. And to this recognition they do submit themselves and posterities for ever untill the last drop of their Blood be spilt And further doth beseech his Majesty to accept of the same recognition as the first Fruits of their Loyalty and Faith to his Majesty and to his Royal progeny and posterity for ever It may be also objected that by the 8 Act. Parl. 1. Ja. 6. It is provided in Scotland that all Kings and Princes that shall happen to reigne and bear Rule over that Kingdom shall at the time of their Coronation make their faithfull promise by Oath in presence of eternal God that they shall mantaine the true Religion of Iesus Christ the preaching of the Holy Word and due and Right Administration of the Sacraments now received and preach'd within this Kingdom from which two conclusions may be inferr'd 1. That by that Act the Successor to the Crown may be restricted 2. That the Successor to the Crown must be a Protestant that being the Religion which was Professed and established the time of this Act. To which it is answered that this Act relates only to the Crowning of the King and not to the Succession Nor is a coronation absolutly necessar Coronatio enim magis est ad ostentationem quà m ad necessitatem Nec ideo Rex est quia coronatur sed coronatur quia Rex est Oldard consil 90. num 7. Balbus lib. de coronat pag 40. Nor do we read that any Kings were Crown'd in Scripture except Ioas. And Clovis King of France was the first who was Crown'd in Europe Nor are any Kings of Spaine Crown'd till this day Neither is ane Coronation Oath requisit Sisenandus being the first who in the 4. Tolletan Councel gave such an Oath amongst the Christians as Trajan was the first amongst the heathen Emperours And we having had no Coronation Oath till the Reigne of King Gregorie which was in Anno 879 he having found the Kingdom free from all Restrictions could not have limited his Successor or at least could not have debarr'd him by an Oath Nullam enim poterat legem dictare posteris cum par in parem non habeat imperium as our Blackwood observes pag. 13. 2. There is no clause irritant in this Act debarring the Successor or declaring the Succession null in case his Successor gave not this Oath 3. The Lawfull Successor though he were of a different Religion from his People as God forbid he should be may easily swear that he shall mantaine the Laws presently standing And any Parliament may legally secure the Successor from overturning their Religion or Laws though they cannot debarre him And though the Successor did not swear to mantaine the Laws Yet are they in litle danger by his Succession since all Acts of Parliament stand in force till they be repeal'd by subsequent Parliaments And the King cannot repeale an Act without the consent of Parliament But to put this beyond all debate the 2. Act of this current Parliament is opponed whereby it is declared that the Right and administration of the Government is immediatly devolv'd upon the nixt Lawfull Heir after the death of the King or Queen and that no difference in Religion nor no Law nor Act of Parliament can stop or hinder them in the free and actual administration which is an abrogation of the foresaid Act concerning the Coronation as to this point for how can the administration be devolv'd immediatly upon the Successor if he cannot administrat till he be Crown'd and have sworn this Oath The next objection is that since the King and Parl. may by Act of Parl. alter the Successions of privat families though transmitted by the Right of blood why may they not alter the Succession in the Royal family To which it is answered that the reason of the difference lyes in this that the Heirs of the Crown owe not their Succession to Parliaments for they succeed by the Laws of God nature and the Fundamental Laws of the nation whereas privat Families are Subject to Parliaments and inferiour to them and owe their privat Rights to a municipal Law and so may and ought in point of Right to be regulated by them And yet I am very clear that a Parliament cannot arbitrarly debarr the eldest Son of a privat Family and devolve the Succession upon the younger and if they did so their Acts would be null But if this argument were good we might as well conclude by it that no persone born out of England or attainted of treason could succeed to the Crown Because he could not succeed to a privat Estate All which and many moe instances do clearly demonstrat that the Successor to the Crown cannot be debarr'd nor the Succession to the Crown diverted by Act of Parliament The last objection is that Robert the III. King of Scotland was by ane Act of Parliament preferr'd to David and Walter who as he pretends were truly the eldest lawful Sons of Robert the 2d because Euphan Daughter to the Earl of Ross was first lawful Wife
Bacon observes in his History of Henry the VII fol. 13. And in the case of Queen Elizabeth who was declar'd Bastard by Act of Parliament as is clear by Cambden anno 2. Elizabeth And though in Scotland there be no express instances of this because though some Rebellious Ring-leaders in Scotland have often in a privat capacity been very injurious to their King Yet their Parliaments have been ever very tender of attainting the blood Royal or presumptive Heirs But Alexander Duke of Albanie and his Succession being declared traitours by his Brother King James the IV. his Son John was notwithstanding called home from France upon his Uncles death and declar'd Tutor and Governour without any remission or being restor'd that employment being found to be due to him by the right of blood therefore he had been much more declared the true Successor of the Crown if his Cousin King Iames the V. had died These being sufficient to establish our design I shall mention only some forraigne stories CHARLES the VII of France who though banish'd by Sentence of the Parliament of Paris did thereafter succeed to the Crown And though Lewis the XII was forfeited for taking up armes against CHARLES the VIII Yet he succeeded to him without restitution And Lewis the II. his Son being declared a Rebel whom his Father desiring to disinherit and to substitut in his place Charles Duke of Normandie that Son had succeeded if he had not been hindered by the Nobility who plainly told him it was impossible to exclude his Sone from the Succession My next task shall be to satisfy the arguments brought for mantaining this opinion whereof the first is That God himself has authorised the inverting the Right of Succession by the examples of Esau Salomon and others To which I answer that these instances which are warranted by express commands from God are no more to be drawn into example than the robbing of the Aegyptians ear-rings And it 's needing an express command and the expressing of that command does evince that otherwayes Iacob nor Salomon could not have succeeded against the priviledge of birth-Right and possession The next objection is that it is naturally imply'd in all Monarchies that the people shall obey whilst the Prince Governs justly As in the paction betwixt David and the people 2 Sam. 5. Which is most suitable to the principles of justice and Government Since relations cannot stand by one side so that when the King leaves off to be King and becomes a Tyrant the people may consult their own security in laying him aside as Tutors may be remov'd when they are suspect And that this is most just when Kings are Idolaters since God is rather to be obey'd then men To all which it is answered that God who loves order and knows the extravagant levity and insolence of men especially when baited by hope of prey or promotion did wisely think fit to ordain under the paine of eternal damnation that all men should be subject to Superiour powers for conscience sake 1 Pet. 2. 13. and that whoever resists the power resists God Rom. 13. 2. reserving the punishment of Kings to himself as being only their Superiour And thus David Asa and others committed crimes but were not depos'd nor debart'd by the people Nor were even the Idolatrous Kings such as Achab Manasse c. judged by their subjects nor did the Prophets exhort the people to rise against them though they were opposing Gods express and immediat will And overturning the uncontraverted fundamentals of Religion Nor did the Fathers of the primitive Church excite the Christians to oppose the Heathen and Idolatrous Princes under which they lived and Paul commands them to pray for these Heathen Emperours Nor was the Emperour Basilicus depos'd for abrogating the Council of Chalcedon as is pretended by some Republicans but was turn'd out by the just Successor Zeno whom he had formerly dethron'd Nor were Zeno or Anastasius degraded for their errors in Religion or their vices by the ancient Christians but were opprest by private faction And sure they must think God unable to redress himself who without warrand and against his expresse warrand will usurpe so high a power And we in this rebellious principle owne the greatest extravagancy with which We can charge the Pope and Jesuits and disowne not only our own Confession of faith which Article 1. Chap. 22. acknowledges that infidelity or difference in Religion doth not make void the Magistrats just or legal authority nor free the People from their due obedience to him but contradict the best Protestant divines as Musculus Melancthon and others vid. libell de vitand superstit Anno 1150. Consil. Biden Dec. 1. Consil. 10. Decad. 10. Consil. 5. nor can the subterfuge us'd by Buchanan and others satisfie whereby they contend that the former Texts of Scripture prove only that the Office but not the Persones of Kings are Sacred so that Parliaments or People may lay aside the Persons though not the Office seing the Sacred Text secures oftner the Person than the Office as I have formerly more fully prov'de And if this principle prevail'd as to the differences in the Theory of Religion it would in the next step be urg'd as to the practice of Religion and we would change our Kings because we thought them not pious as well as Protestant And did not our Sectarians refine so far as to think dominion founded on grace and this opinion seems to my self more solide than the other for certainly an impious Protestant is a worse Governour and less Gods Vicegerent and image than a devout Papist And amongst Protestants every Secte will reject a King because he is not of their opinion And thus our Covenanters by the Act of the West-kirk Anno 1650. declar'd they would disown our present Monarch if he did not own the Covenant And though a King were Protestant yet still this pretext that he design'd to introduce Popery would raise his People against him if differences in Religion could Lawfully Arme subjects against their King or did empower them to debar his Successor And when this cheat prevail'd against devout King Charles the I the Martyr of that Orthodox Faith to which he was said to be enemie what a madness is it to allow this fatall error which was able to ruine us in the last age and went so near to destroy us in this This is indeed to allow that arbitrariness against our Kings which we would not allow in them to us The second Objection is that in England the Parliament has frequently devolv'd the Crown and Government upon such as were not otherwayes to have succeeded as in the instances of Edward the II. and Richard the III the first of whom was most unjustly depos'd for making use of Gavestoun and the Spencers which shewes how extravagant the People ar in their humours rather than how just their power is for besides that do not read that these Counsellors were
THAT THE Lawful Successor Cannot be DEBARR'D From Succeeding to the CROWN Maintain'd against Dolman Buchannan and others BY Sir GEORGE MACKENZIE His Majesties Advocat EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOM. 1684. King James In His Advice to Prince Henry Page 173. IF God give you not Succession Defraud never the nearest by Right whatsoever conceit ye have of the Person for Kingdoms are eveâ— at Gods Disposition and in that Case we are but Liferenters it lying no more in the Kings than in the Peoples Hands to Dispossess the Righteous Heir Page 209. Ibid. FOr at the very moment of the Expyring of the King Reigning the nearest and Lawful Heir entereth in his place and so to refuse him or intrude another is not to hold out the Successor from coming in but to expel and put out their Righteous King and I trust at this time whole France acknowledgeth the Rebellion of the Leaguers who upon pretence of Heresie by force of Arms held so long out to the great Desolation of their whole Countrey their Native and Righteous King from possessing his own Crown and natural Kingdom ERRATA Page 5. delet at his Majority Page 33. for Richard 3d. Read ad The Right of the Succession Defended THe fourth Conclusion to be cleared was that neither the People not Parliaments of this Kingdom could seclude the lineall Successor or could raise to the throne any other of the same Royal line For clearing whereof I shall according to my former method first clear what is our positive Law in this case Secondly I shall shew that this our Law is founded upon excellent reason and lastly I shall answer the objections As to the first It is by the second Act of our last Parliament acknowledged That the Kings of this realme deriving their Royal power from God Almighty alone do lineally succeed therto according to the known degrees of proximitie in blood which cannot be interrupted suspended or diverted by any Act or Statut whatsoever and that none can attempt to alter or divert the said Succession without involving the subjects of this Kingdom in Perjury and Rebellion and without exposing them to all the fatal and dreadful consequences of a civil warr Do THEREFORE from a hearty and sincere sense of their duty Recognize acknowledge and declare that the right to the Imperial Crown of this realme is by the inherent right and the nature of Monarchy as well as by the fundamental and unalterable laws of this realme transmitted and devolved by a lineal Succession according to the proximity of blood And that upon the death of the King or Queen who actually reignes the Subjects of this Kingdom are bound by Law duty and alledgance to obey the nixt immediat and Lawful Heir either male or female upon whom the right and administration of the Government is immediatly devolved And that no difference in Religion nor no Law nor Act of Parliament made or to be made can alter or divert the right of Succession and lineal descent of the Crown to the nearest and Lawful Heirs according to the degrees foresaids nor can stop or hinder them in the full free and actuall administration of the Government according to the Laws of the Kingdom LIKE AS OUR SOVERAIGNE LORD with advice and consent of the saids Estates of Parliament Do declare it is high treason in any of the Subjects of this Kingdom by writing speaking or any other manner of way to endeavour the alteration suspension or diversion of the said right of Succession or the debarring the next Lawfull Successor from the immediat actual full and free administration of the Government conform to the Laws of the Kingdom And that all such attempts or designes shall inferre against them the paine of treason This being not only ane Act of Parliament declaring all such as shall endeavour to alter the Succession to be punishable as Traitors but containing in it a Decision of this Point by the Parliament as the Supream Judges of the nation and ane acknowledgement by them as the representatives of the people and nation There can be no place for questioning a point which they have plac'd beyond all contraversie especially seing it past so unanimously that there was not only no vote given but even no argument propon'd against it And the only doubt mov'd about it was whither any Act of Parliament or acknowledgement was necessary in a point which was in it self so uncontraverted And which all who were not desperat fanaticks did conclude to be so in this nation even after they had hear'd all the arguments that were us'd and the Pamphlets that were written against it in our neighbour-Kingdom But because so much noise has been made about this question and that blind bigotry leads some and humorous faction drawes others out of the common road I conceive it will be fit to remember my reader of these following reasons which will I hope clear that as this is our present positive Law so it is established upon the fundamental constitution of our Government upon our old Laws upon the Laws of God of Nature of Nations and particularly of the Civil Law As to the fundamental constitution of our Government I did formerly remark that our Historians tell us that the Scots did swear alledgeance to FERGUS who was the first of our Kings and to his Heirs And that they should never obey any other but his Royal Race Which Oath does in Law and reason bind them to obey the lineal Successor according to the proximity of Blood For ane indefinite obligation to obey the blood Royal must be interpreted according to the proximity in Blood except the swearers had reserv'd to themselves a power to choose any of the Royal Familie whom they pleas'd which is so true that in Law ane obligation granted to any man does in the construction of Law accresce to his Heirs though they be not exprest Qui sibi providet haeredibus providet And Boethius tells us that after King FERGUS'S death the Scots finding their new Kingdom infested with warrs under the powerful influence of Picts Romans and Britans they refus'd notwithstanding to preferre the next of the Royal Race who was of perfect age and a man of great merit to the Son of King FERGUS though ane infant which certainly in reason they would have done if they had not been ty'd to the lineal Successor But lest the Kingdom should be prejudg'd during the minority they enacted that for the future the next of the Blood Royal should alwayes in the minority of our Kings administrat as Kings till the true Heir were of perfect age But this does not prove as Buchannan pretends that the people had power to advance to the Throne any of the Royal Race whom they judg'd most fit for common sense may tell us that was not to choose a King but a Vice-Roy or a Regent For though to give him the more