That the lawful successor cannot be debarr'd from succeeding to the crown maintain'd against Dolman, Buchannan, and others / by George Mackenzie ...

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 po∣sitive 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 what∣soever, and that none can attempt to alter or divert the said Succession, without in∣volving the subjects of this Kingdom in Perjury and Rebellion, and without expo∣sing them to all the fatal and dreadful consequences of a civil warr, Do THERE∣FORE 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 proxi∣mity 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 admi∣nistration of the Government is imme∣diatly 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, con∣form to the Laws of the Kingdom. And that all such attempts or designes shall in∣ferre against them the paine of treason.

This being not only ane Act of Parlia∣ment, 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 acknowledge∣ment 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 on∣ly no vote given but even no argument pro∣pon'd against it. And the only doubt mov'd about it was, whither any Act of Parlia∣ment, or acknowledgement, was necessary, in a point which was in it self so uncontraver∣ted. And which all who were not desperat fa∣naticks, 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 esta∣blished 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 proxi∣mity in Blood, except the swearers had re∣serv'd to themselves a power to choose any of the Royal Familie, whom they pleas'd, which is so true, that in Law, ane obliga∣tion granted to any man, does in the con∣struction of Law accresce to his Heirs, though they be not exprest. Qui sibi provi∣det, & 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 notwith∣standing 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 King∣dom should be prejudg'd during the minori∣ty, they enacted, that for the future, the next of the Blood Royal should alwayes in the mi∣nority of our Kings administrat as Kings, till the true Heir were of perfect age. But this does not prove, as Buchannan pretends, that the people had power to advance to the Throne, any of the Royal Race: whom they judg'd most fit, for common sense may tell us, that was not to choose a King, but a Vice-Roy, or a Regent. For, though to give him the more authority, and so to enable him the more to curb factions, and oppose enimies, he was called King, yet he was but Rex fidei Commissarius, being oblidg'd to restore it to the true Heir at his majority: and so Gover∣ned only in his Vice, and consequently was only his Vice-roy.

But because the Uncles, and next Heirs be∣ing once admitted to this fidei Commissarie tittle, were unwilling to restore the Crown to their Nephews, and sometimes murder'd

them: and oftetimes rais'd factions against them. Therefore the People abhorring these impieties, and weary of the distractions, and divisions, which they occasion'd, beg'd from King KENNETH the second, that these fol∣lowing Laws might be made.

1. That upon the Kings death the next Heir of whatsoever age should succeed.

2. The Grand-childe either by Son or Daughter should be preferr'd.

3. That till the King arriv'd at 14 years of age, some Wise-man should be choos'd to Govern, after which, the King should enter to the free administration, and according to this constitution, some fit Person has still been choos'd Regent in the Kings minority, with∣out respect to the proximity of Blood, and our Kings have been oftentimes Crown'd in the Cradle.

In conformity also to these principles, all the acknowledgements made to our Kings, run still in favours of the King, and his Heirs. As in the first Act Parl. 18. JAMES VI. and the II, III, IV. Acts Parl. 1. CHARLES II. And by our Oath of Alledgeance, we are bound to bear faithful and true alledgeance to his Majesty, his Heirs and Lawful Suc∣cessors; which word LAWFUL, is insert, to cutt off the pretexts of such as should not

succeed by Law, and the insolent arbitrarie∣ness of such, as being but subjects themselves, think they may choose their King. viz. Act 1. Parl. 21. JAMES 6.

That this right of Succession according to the proximity of blood, is founded on the Law of God, is clear by Num. Chap. 27. v. 9. and 10. If a man hath no Son or Daughter, his inheritance shall descend upon his Brother, ; by Num. 36. Where, God himself decides in favours of the Daughters of Zelophehad, telling us, it was a just thing, they should have the inheritance of their father. And ordaines, that if there were no Daughters, the estate should go to the Brothers. Saint Paul like∣wayes concluds Rom. 8. If Sons, then Heirs, looking upon that, as a necessary conse∣quence; which if it do not necessarly hold, or can be any way disappointed, all his di∣vine reasoning in that Chapter falls to no∣thing. And thus Ahaziah 2 Chron. 22. v. 1. was made King (though the youngest) in his Fathers stead; because sayes the text, the Arabians had slain all the eldest: which clearly shews that by the Law of God, he could not have succeeded, if the eldest had been alive. We hear likewayes in Scripture, God oft telling, By me Kings reigne.

And when he gives a Kingdom to any as to Abraham, David, &c. He gives it to them and their posterity.

That this right of Succession flowes from the Law of nature, is clear; because, that is accounted to flow from the Law of na∣ture, which every man finds grafted in his own heart, and which is obey'd without any other Law, and for which men neither seek nor can give another distinct reason; all which hold in this case: for who doubts when he heares of ane hereditary Monarchy, but that, the next in blood must Succeed; and for which we need no positive Law, nor does any man enquire for a further rea∣son, being satisfied therein by the principles of his own heart. And from this ground it is, that though a remoter Kinsman did possess as Heir, he could by no length of time pre∣scribe a valide right; since no man, as Law∣yers conclude, can prescribe a right against the Law of nature: and that this principle is founded thereupon is confest l: cùm ra∣tio naturalis ff. de bonis damnat: cùm ratio naturalis, quasi lex quaedum tacita, liberis parentum haereditatem adjecerit, veluti ad debitam successionem eos vocan∣do: propter quod suorum haeredum nomen eis indultum est; adeo ut ne a parentibus

quidem, ab eâ successione amoveri possint. Et §. emancipati Institut: de haered: quae ab intest. Praetor naturalem aequitatem sequutus, iis etiám bonorum possessionem contra 12 tabularum leges, & contra jus civile permittit. Which text shewes like∣wayes, that this right of nature was stron∣ger than the Laws of the 12 Tables, though these were the most ancient and chief Sta∣tutes of Rome. Which principle is very clear likewayes from the Parable, Math. 21. Where the Husband-men who can be pre∣sum'd to understand nothing but the Law of nature, are brought in saying, this is the Heir, let us kill him and seaze on his inheri∣tance. Nor does this hold only in the Suc∣cession of Children or the direct line, but in the collateral Succession of Brothers and others L. hac parte ff. unde cognati. Hac parte proconsul Naturali aequitate motus, omnibus cognatis permittit bonorum posses∣sionem quos sanguinis ratio Vocat ad haere∣ditatem. Vid. l. 1. ff. aegrad. & l. 1. §. hoc autem ff. de bonor. possess. And these who are now Brothers to the present King, have been Sones to the former: and therefore what∣ever has been said for Sones, is also verified in Brothers. As for instance, though his Royal Highness be only Brother to King

CHARLES the II., yet he is Son to King CHARLES I. and therefore, as Saint Paul sayes, if a Son, then ane Heir, ex∣cept he be secluded by the existence and Succession of ane elder Brother.

That this gradual Succession is founded on the Law of nations, is as clear by the Laws of the 12 Tables, and the Praetorian Law of Rome. And if we consider the Mo∣narchy either old or new, we will find, that wherever the Monarchy was not elective, the degrees of succession were there exactly ob∣served. And Bodinus de Republ. lib. 6 Cap. 5. asserts, that, Ordo non tantum naturae & divinae sed etiam omnium ubique gentium hoc postulat. From all which, Pope In∣nocent in c. grand. de supplend. neglig. prae∣lati concludes, In regnis haereditariis ca∣veri non potest ne filius aut frater succedat. And since it is expresly determined, that the right of blood can be taken away by no posi∣tive Law or Statute L. Jura Sanguinis ff. de Reg. jur. & L. 4. ff. de suis legitim. and that the power of making a Testament, can be taken away by no Law L. ita legatum ff. de conditionibus. I cannot see how the right of Succession can be taken away by a Statute: for that is the same with the right of Blood,

and is more strongly founded upon the Law of nature, than the power of making Testa∣ments.

Since then this right is founded upon the Law of God, of nature and of nations, it does clearly follow, that no Parliament can alter the same by their municipal Statutes, as our Act of Parliament has justly ob∣served.

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 en∣deavours 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 Reli∣gion,

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 observan∣tur, divina quadam providentia constitu∣ta semper firma, atque immutabilia per∣manent §. 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, na∣ture and nations, Accurs: in l. Princeps ff. de Leg. Clementina pasturalis de re judi∣catâ 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 ne∣cessity

of denuncing warr before a warr can be Lawful. And Lawyers observe verie well, that these who would oppose the com∣mon 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 Su∣pream 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 Sub∣jects without citing or hearing them; or, that they can alienat any part of de King∣dom; 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 potesta∣tis legitimat a Bastard in prejudice of for∣mer children though they have only but a hope of Succession l. 4. & sequen de natal. restituend. and for the same reason, it is de∣clared in the same Law, that he cannot re∣store a free'd man (restituere libertum na∣talibus) 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 AR∣NISAEUS and others, do distinguish be∣twixt such Kingdoms, as were at first con∣ferr'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 be∣cause the People renew the paction with the succeeding King. But where the Successor is to succeed ex jure regni, in hereditary Mo∣narchies, 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.) clau∣sula Successori jus auferri potest, modò suc∣cedat 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 Testamen∣to 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 impracti∣cable by the three Estates, and when Pyr∣rhus 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 La∣wyers but of whole nations and Parliaments;

Tho vander Graaff, an Hollander confes∣ses, that it is not Lawfull to choose any of his Sons to succeed him, in which, the gene∣ral 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 hono∣red with his Character.

And if Kings could have inverted their Succession, and choos'd their own Successor Saint Lewis had pre∣ferr'd his own third Son to Lewis his eldest, and Alfonsus King of Leon in Spaine, had pre∣ferr'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 Eliza∣beth. And if Successions especially of such great importance, had not been fixed by im∣mutable Laws of God, and nature, the various and unconstant inclinations of the present Governours, especially when shaken by the importunity of Step-mothers and Mothers, or clouded by the jealousie of flatterers, or favourits, had made the Nations whom they

Governed, very unhappy: and therefore, God did very justly, and wisely setle this Succes∣sion, that both King and People might know, that it is by him that Kings Reigne, and Kingdoms are secur'd 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 necessar∣ly descend upon those Heirs, that the Father, or Predicessor cannot seclude the next Suc∣cessor, or derogat from his right, either by renuncing, resigning, following base or meane 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, otherwayes 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 wold 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 Supream power Originally in themselves, nemo enim plus juris in alium transferre potest quàm ipse in se habet. And if the States of Parlia∣ment had this power Originally in them∣selves to bestow, why might they not re∣serve it to themselves? And so perpetuate the Government in their own hands: And this mov'd judge Jenkins in his trea∣tise 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 King∣dom, by the People. A Parliament never made a King, for there were Kings before there were Parliaments, and Parliaments are summoned by the Kings writtes.

Fourthly, A King cannot in Law alienat his Crown, as is undenyable in the opinion of all Lawyers, and if he do, that deed is voyd 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 prevail'd upon, to alter their Monarchy from Haereditarie to Elective; or to turn it in a Common-wealth; and there∣fore by the same reason, they cannot con∣sent

to exclude the true Successor: For if they may exclude one they may exclude all.

5. 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 absolutly necessar 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 (sett by the gracious con∣cessions of our Monarchs) each of them would be ready to invade one anothers Priviledges. And thus I conceive that if the Parliament should consent to alienate the half of the Kingdom, or to subject the whole to a Stranger, as in King Johns case in England, and the Baliols in Scotland, it has been found by the respective Parliaments of both Kingdoms, that, that Statute would not oblidge the Successor. Or if the House of commons in England, or the Burrowes of Scotland should consent to any Act exclu∣ding their Estate and respresentatives from the Parliament, doubtlesse that Statute ex∣cluding them would not prejudge their Suc∣cessors; because that Act was contrare 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 voyd, as contrare to one of the great Fundamental Rights of the Nation. And what can be call'd more a Fundamental Right than the Succes∣sion 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 dyes, since the very moment in which the last King dyes, the next Successor in Blood is Legally King, and that without any expresse recognizance from the People, and all that oppose him are Rebells, His Commissions are valide, He may call Parliaments, dispose the Lands pertaining to the Crown, all men are lyable to do him homage; and hold their Rights of him and his Heirs. And generally this prin∣ciple 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 undenyable marks and Cha∣racters of a Fundamental Right in all Na∣tions. 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 Parlia∣ment for the union in Anno 1604.

In which these words are, his Majesty vouchsafeing, to assure them of his sincere disposition and clear meaning, no way by the foresaid Union to prejudge or hurt the Fundamental Laws, ancient Priviledges, Offices and Liberties of this Kingdom; whereby not only the Prin∣cely Authority of his most Royal descent hath been these many ages maintain'd, but also his Peoples securities of their Lands and Livings, Rights, Liberties, Offices and dignities preserv'd: Whilks if they should be innovated, such confusion should ensue; as it could no more be a free Monarchy.

6. There would many great inconvenien∣cies 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 rebell in the other. Many Kings likewise might be wrought upon, by the importunity of their Wives, or Concubins, or by the misrepresentations of Favourits, to disinherit the true Successor; and he likewise to prevent this arbitrarienesse, would be oblid∣g'd

to enter in a faction for his own support, from his very infancy. This would likewise animate all of the Blood Royal, to compete for the Throne, and in order thereto, they would be easily induc'd to make factions in the Parliament, and to hate one another; whereas the true Successor would be ingadg'd to hate them all, and to endeavour the ruine of such as he thought more popular than him∣self. Nor would the people be in better case, since they behov'd to expect upon all these accompts, constant civil warres and animo∣sities, 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 superiour, as well, as who should be their King. It is also in reason to be expected, that Scotland will ever owne the legal descent: and thus we should under different Kings of the same Race, be involv'd in new and constant civil warrs; France shall have a constant door open'd, by allyances with Scotland, to disquiet the peace of the whole Isle; and England shab loose 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 Suc∣cessor

would be, that if he had a Son, that Son behoov'd certainly to succeed; and therefore after the next Lawful Heir were brought from abroad to Reigne, he be∣hov'd 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 project.

I find also, that as the debarring the Righteous Heir, is in reason, the fruitful seed of all civil warr and misery, (for who can Imagine that the Righteous Heir will depart from his Right, or that wise men will en∣danger their lives and fortunes in opposi∣tion to it?) so experience has demonstra∣ted, how dangerous, and bloody this in∣justice has prov'd. Let us remember amongst many Domestick examples, the miseries that ensu'd upon the exclusion of Mor∣dredus the Son of Lothus; the destruction of the Picts for having secluded Alpinus the Righteous Heir; the warrs during the reigne of William the Conquerour; these betwixt King Stevin and Henry the II. be∣twixt the Houses of Lancaster and York; betwixt the Bruce and the Baliol; the mur∣ther

of Arthur Duke of Britanny, true Heir of the Crown of England, with many other forreigne Histories, which tell us of the dreadfull michiefs arising from Pelops preferring his youngest Son to the King∣dom of Micene; from Aedipus comman∣ding that Polinices his youngest Son should reigne alternatly with the eldest; from Pa∣risatis the Queen of Persia's preferring her youngest Son Cyrus, to her eldest Ar∣taxerxes, from Aristodemus admitting his two Sons Proclus, and Euristhenes to an Equall share in the Lacedemonian Throne. The like observations are to be made in the Succession of Ptolemaeus Lagus and Ptole∣maeus Phisco, In the Sons of Severus, in the Succession of Sinesandus who kill'd his Brother Suintilla Righteours Heir of Spaine, And that of Francis and Fortia Duke of Millan with thousands of others: In all which, either the usurpers or the Kingdom that obey'd them, perish'd utterly. To pre∣vent which differences and mischiefs, the Hungarians would not admitte Almus the younger Brother, in exclusion of the elder Colomanus, though a silly deform'd creature, albeit Almus was preferr'd by Ladislaus (the Kings elder Brother) to both. Nor would France acquiesce in St. Lewis his prefer∣ring

CHARLES his 3 Son, to Lewis the eldest. And the English refus'd to obey Lady Iean Gray, in prejudice of Queen Marie, though a Papist and persecuter. Tali & constanti veneratione nos Angli legitimos Reges prosequimur &c. sayes an English Historian.

7. If Parliaments had such powers as this, then our Monarchy would not be he∣reditary, but elective; the very essence of ane hereditary Monarchy consisting in the right of Succession, according to the con∣tingency of blood. Whereas if the Parlia∣ment can preferre the next, save one, they may preferre the last of all the line: for the next save one, is no more next than the last is next. And the same reason by which they can choose a Successor (which can only be that they have a power above him) should likewayes in my opinion ju∣stifie their deposing of Kings. And since the Successor has as good Right to succeed, as the present King has to Govern (for that Right of blood which makes him first, ma∣kes the other next, and all these Statuts which acknowledge the present Kings Prero∣gatives, acknowlege that they belong to him and his Heirs.) It followes clearly, that if the Parliament can preclude the one, they

may exclude the other. And we saw even in the last age, that such reasons as are now urged to incapacitat the children of our last Monarch, from the hope of Succession. viz. Popery, and arbitrary Government, did embolden men to Dethrone, and Murder the Father himself who was actual King.

8. That such Acts of Parliament, alte∣ring the Succession are ineffectual, and null, Is clear from this, that though such an Act of Parliament were made, it could not de∣barre the true Successor: because by the Laws of all Nations, and particularly of these Kingdoms, the Right of Succession purges all defects, and removes all impediments, which can prejudge him who is to Succeed. And as Craig one of our learn'd lawyers has very well express'd it, Tanta est Re∣gii sanguinis praerogativa, & dignitas, ut vitium non admittat, nec se contaminari patiatur. And thus though he who were to succeed, had committed murther, or were declar'd a traitour formerly to the Crown for open Rebellion against the King, and Kingdom; yet he needed not be restor'd by Act of Parliament upon his comming to the Crown: But his very Right of blood would purge all these imperfections. Of which there are two reasons given by Lawyers,

one is, that no man can be a Rebel against himself, nor can the King have a Superior. And consequently, there can be none whom he can offend. And it were absurd that he who can restore all other men, should need to be restored himself. The second reason is, because the punishment of crimes, such as confiscations, &c. Are to be inflicted by the Kings Authority, or to fall to the Kings Thesaury; and it were most absurd, that a man should exact from himself a pu∣nishment. Likeas, upon this account it is, that though in the Canon Law, Bastards cannot be promov'd to sacred orders without dispensation, nor can alibi nati, that is to say, people born out of England be admitted to succeed in England, by express Act of Parliament there; Yet Agapaetus, Theo∣dorus, Gelasius and many others, have been admitted to be Popes without any formal dispensation, their election clearing that im∣perfection. And the Statute of alibi nati, has been oft found not to extend to the Royal line.

That the Succession to the Crown purges all defects, is clear, by many instances, both at home and abroad. The instances at home are, in England Henry the VI. Being di∣sabled and attainted of high treason by Act

of Parliament, it was found by the Judges, notwithstanding that from the moment he assum'd the Crown, he had Right to succeed without being restored. And the like was resolved by the Judges in the case of Henry the VII, As Bacon observes in his History of Henry the VII. fol. 13. And in the case of Queen Elizabeth, who was declar'd Bastard by Act of Parliament, as is clear by Cambden anno 2. Elizabeth. And though in Scotland there be no express instances of this, because though some Rebellious Ring-leaders in Scotland, have often in a privat ca∣pacity been very injurious to their King; Yet their Parliaments have been ever very ten∣der of attainting the blood Royal, or pre∣sumptive 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 Parlia∣ment of Paris▪ did thereafter succeed to the Crown. And though Lewis the XII. was forfeited for taking up armes against CHAR∣LES 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 sub∣stitut in his place Charles Duke of Nor∣mandie, 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 ar∣guments brought for mantaining this opinion, whereof the first is.

That God himself has authorised the in∣verting 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 com∣mand, and the expressing of that command, does evince, that otherwayes Iacob,

nor Salomon could not have succeeded against the priviledge of birth-Right and pos∣session.

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 be∣comes 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 extrava∣gant levity, and insolence of men, espe∣cially when baited by hope of prey, or pro∣motion, 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 whoe∣ver 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 Pro∣phets exhort the people to rise against them, though they were opposing Gods express, and immediat will. And overturning the un∣contraverted fundamentals of Religion. Nor did the Fathers of the primitive Church, ex∣cite 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 Em∣perour 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 for∣merly dethron'd. Nor were Zeno or Anasta∣sius 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 him∣self, 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 vi∣tand, 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 on∣ly 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 Prote∣stant. 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 de∣vout 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. de∣clar'd, they would disown our present Mo∣narch, 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 diffe∣rences in Religion could Lawfully Arme sub∣jects 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 mad∣ness 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 de∣pos'd, for making use of Gavestoun, and the Spencers; which shewes how extrava∣gant the People ar in their humours, rather than how just their power is: for besides, that

do not read, that these Counsellors were un∣sufferable, there is no good Christian that can say, that a King can be depos'd for using ill Counsellors. And as to Richard the III. his case is so fully examined, and all the Articles brought both against him, and Edward the II. so fully answered by the learn'd Arnisaeus a Protestant Lawyer, (and who had no other interest in that debate than a love to Truth and Law) in that treatise, Quod nullâ ex cau∣sâ subditis fas sit contra legitimum principem arma sumere, that we Protestants should be asham'd to bring again to the field such in∣stances, upon which Arnisaeus, in answer to the 14. Article against Richard the II, viz. that he refus'd to allow the Lawes made in Parliament, does very well remark, that this was in effect to consent to their being King, and to transferre upon them the Royal power, and this will be the event of all such under∣takings.

The instances of Henry the IV. and Hen∣ry the VII., are of no more weight than the other two, since these were likewayes only Kings de facto, till King Henry the VII. by his marriage with the Lady Elizabeth, eldest Daughter to King Edward the IV., did by her transmit a just title to his Successor: & therefore it was not strange, that either of

these should allow the Parliament to inter∣pose, when they behov'd to owe to them the possession of the Throne. But yet Henry the VII. himself (as the Lord Bacon relates in his Historie) shunn'd to have the Parliament de∣clare his title to be just, being content with these ambiguous words, viz. that the inhe∣ritance of the Crown should rest, remain and abide in the King, &c. And upon this accompt it was, that the same King caus'd make a Law, that such as should serve the King for the time, being in his warrs, could not be attainted or impeach'd in their persons or Estates.

As to Henry the VIII. his procuring an Act, whereby the Parliament declares that in case he had no issue by the Lady Jean Seymour, he might dispose of the Crown to what∣soever person he should in his own discretion think fit.

It is answered, that by a former Statute in the 25 year of his Reigne, he by Act of Par∣liament setles the Crown upon the Heirs male of his own body, and for lack of such issue, to Lady Elizabeth, and for lack of such issue also, to the next Heirs of the King, who should for ever succeed according to the right of Succession of the Crown of England; which shewes that the Succession to the

Crown of England is establish't by the Law of Nature, and the Fundamental Laws of England, upon the Heirs of Blood, according to the proximity of degrees; so that though that King did afterwards prevaile with the Parliament to declare this Elizabeth a Ba∣stard, as he did also his Daughter Mary, by another Act, and resolve to setle the Crown, upon Henry Fitz Roy, Duke of Richmond, yet these Acts teach us how dangerous it is to leave Parliaments to the impression of Kings in the case of naming a Successor, as it is to expose Kings to the arbitrariness of Parlia∣ments. But such care had God of his own Laws, that Mary succeeded notwithstan∣ding She was Papist, and Elizabeth succee∣ded her, though she was declar'd Bastard; the Rights of Blood prevailing over the for∣malities of divorce, and the dispensations of Popes: as the strength of Nature does often prevaile over poisons. And God remov'd the Duke of Richmond by death, to prevent the unjust competition, and so little notice was taken of this; and the subsequent Act An∣no 1535, that the Heirs of Blood succeeded without repealing of that Act, as ane Act in it self invalide from the beginning: for only such Acts are past by, without being repeal'd. And Blackwood pag. 45. observes very well,

that so conscious were the Makers of these Acts, of the illegality thereof, and of their be∣ing contrarie to the immutable Laws of God, Nature and Nations, that none durst produce that Kings Testament wherein he did nomi∣nat a Successor, conform to the power gran∣ted by these Acts, that how soon they were freed by his death from the violent oppres∣sions that had forced them to alter a Succes∣sor three several times, and at last to swear implicitly to whomever he should nominat, (a preparative which this age would not well bear though they cite it) they proclamed first Queen Mary their Queen though a Papist, and thereafter Queen Elizabeth, whom themselves had formerly declared a Bastard. And as in all these Acts there is nothing decla∣ring the Parliaments to have power to name a Successor, but only giving a power to the King, for preventing mischiefs; that might arise upon the dubiousness of the Succession, to nominat a Successor; two of the legal Suc∣cessors having been declar'd Bastards upon some niceties, not of nature, but of the Popes Bulls for divorcing their Mothers: so, this instance can only prove, that the King may nominat a Successor, and that the Par∣liament may consent, not to quarrell 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 stran∣gers who considered more the dictats of Law than of Passion, did in that age conclude, that no Statute could be valide when made con∣trare to the fundamental Law of the King∣dom, Arnisaeus Cap. 7. Num. 11. Henri∣cus VIII. Angliae Rex Eduardum filium primò, deinde Mariam, denique Elizabe∣tham suos haeredes fecerat, verùm non ali∣ter ea omnia valent quàm sicum jure Regni conveniant, Vid. Curt. Tract. Feud. Par. 4. Num. 129.

There seems greater difficulty to arise from the 13 Elizabeth c. 2. by which it is enacted, that if any persone shall affirme, that the Parliament of England has not full power to bind and Governe the Crown in point of Succession and descent, that such a persone, during the Queens life, shall be guilty of high treason.

But to this Act it is answered, that this Act does not debarre the next legal and natu∣ral Successor. And these words, That the Par∣liament has power to bind and Govern the Succession, must be, as all other general expres∣sions in Statutes, interpreted and restricted by other uncontraverted Laws; and so the sense must be, that the Parliament are Judge

where there are differences betwixt Compe∣titors in nice and contravertable points which cannot be otherwise decided: and both this and the former Acts made in Henry the VI. time, are not general Laws but tempo∣rarie Acts and personal Priviledges; and so cannot overturn the known current of Law. Quod verò contrà rationem juris receptum est, non est producendum ad consequentias. And in all these instances it is remarkable, that the restriction was made upon the desire of the Soveraigne, and not of the Subject. And if we look upon this Act as made to se∣cure against Mary Queen of Scotland, and to let her know, that it was to no purpose for her to designe any thing against the Right, or Person of Queen Elizabeth, as being declar'd a Bastard, by Act of Parlia∣ment 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 Sta∣tutes, 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 there∣by 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, pre∣tend Right to the Crown, upon the ac∣count that Queen Elizabeth was declared Bastard. And therefore the calling in of King Iames after this Act, and the acknow∣ledging 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 prea∣ching of the Holy Word, and due and Right Administration of the Sacraments now re∣ceived 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 Suc∣cessor 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 re∣lates

only to the Crowning of the King, and not to the Succession. Nor is a coronation ab∣solutly necessar, Coronatio enim magis est ad ostentationem, quàm ad necessitatem. Nec ideo Rex est quia coronatur, sed co∣ronatur 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 Coro∣nation 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 Coro∣nation 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 poste∣ris, cum par in parem non habeat impe∣rium, as our Blackwood observes. pag. 13. (2.) There is no clause irritant in this Act debarring the Successor, or declaring the Suc∣cession 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 cur∣rent Parliament is opponed, whereby it is declared, that the Right and administra∣tion of the Government is immediatly de∣volv'd upon the nixt Lawfull Heir after the death of the King or Queen, and that no dif∣ference 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 concer∣ning the Coronation as to this point; for how can the administration be devolv'd im∣mediatly 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 Succes∣sions 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 mu∣nicipal 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 Suc∣cessor 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 Par∣liament preferr'd to David and Walter, who

(as he pretends) were truly the eldest lawful Sons of Robert the 2d. because Eu∣phan Daughter to the Earl of Ross was first lawful Wife to King Robert the 2d, and she bore him David Earl of Strathern, and Walter Earl of Athol, Alexander Earl of Buchan, and Euphan who was married to James Earl of Dowglass, after whose de∣ceass he married Elizabeth Muir, Daughter to Sir Adam Muir; not so much (as Bu∣chanan observes) from any design to marry a second Wife, as from the great love he carried to Elizabeth Muir, whom because of her extraordinary Beauty he had lov'd very passionatly in his youth, and before he married the Earl of Rosses Daughter, and from the love which he bore to the Sons whom Elizabeth had born before that first Marriage, who were John Earl of Carrick (who thereafter succeeded to the Crown by the Title of Robert the 3d,) and Robert Earl of Fife and Monteith, he prevail'd with the Parliament to prefer John eldest Son by Elizabeth Muir, to the two Sons which he had by the Earl of Rosses Daugh∣ter, who was (as they pretend) his first lawful Wife.

In which though I might debate many nice points of Law relating to this Subject,

yet I choose only to insist on these few convincing Answers.

1. That in a Case of so great moment Historians should be little credited, except they could have produc'd very infallible Documents; and as in general one Histo∣rian may make all who succeed him err, so in this Case Boetius (who was the first) liv'd and wrot 200 years after the Marriage of King Robert the 2d, and wrot his Histo∣ry at Aberdeen, very remote from the Re∣gisters and Records by which he should have instructed himself; nor did he know the importance of this point, having touch'd it only transiently, though it has been de∣sign'dly press'd by Buchanan, to evince that the Parliaments of Scotland might prefer any of the Royal Line they pleas'd; and it is indeed probable that King Robert the 2d. did for some time make no great noise of his first Marriage with Elizabeth Muir, least the meaness of the Match should have weaken'd his Interest upon his first coming to the Crown, he being himself the first of the Race of the Stewarts, and hav∣ing so strong Competitors as the Earl of Dowglass, who claim'd Right to the Crown in the Right of the Baliol and the Cum∣mings, as Boetius himself observes.

2. King Robert the 3d. having succeeded as the eldest lawful Son, and having been receiv'd as such by that Parliament, and his Posterity by all succeeding Parliaments, the Possession of the King and the Acquiescence of the People is the most infallible proof that can be adduc'd for proving that Robert was the eldest lawful Son, nor have most Kings in Europe, or the Heads of most pri∣vate Families any other proof of their be∣ing the eldest and lawful Sons, save that they succeeded and were acknowledg'd as such.

3. To ballance the authority of these Historians, I shall produce the Testimonie of the Learned Sir Lewis Stewart, one of the most famous Lawyers we ever had, and who ought much more to be believ'd than Buchanan, not only because he was more disinterested, but because he founds upon Acts of Parliament and old Charters which he himself had seen in the Registers, in which Elizabeth Muir is acknowledg'd to have been the first Wife. Buchananus lib. 9. in vitam Roberti 2. affirmat Euphaniam Comitis Rossenssis filiam primam Regis Roberti 2. uxorem fuisse & eâ mortuâ, Regem super∣induxisse Elizabetham Moram ex qua prius Liberos ternos mares suscepisset, & ••am ••x••∣rem

duxisse, ejusque liberos regno desti••••sse, ut postea eorum natu maximus suc••••essit quod quam falsum sit, apparet ex archivis in car∣cere Edinburgensi reconditis, ubi exstant se∣parata acta duorum Parliamentorum, subscrip∣ta manibus Ecclesiasticorum praesulum, nobi∣lium, baronum, & aliorum statuum Parlia∣menti, & eorum sigillis roborata, quibus Eli∣zabetha Mora agnoscitur prima uxor, & Euphania Rosse secunda, & liberis ex Eli∣zabetha Mora tanquam justis haeredibus; Reg∣ni, successive regnum dcernitur, & post eos liberis Euphaniae Rosse nec non ibidem cartae extant plurima factae per Davidem secundum, eorum patruum magnum ex diversit terris. Ioanni filio primogenito, nepotis ejus Roberti, dum Euphania Rosse viverit nec non Dar vidi filio natu maximo Euphaniae Rosse quem solum filium indigitat Roberti nepotis, quod non fecisset si Elizabetha Mora non pri∣us fuisset nupta Roberto ejus nepoti, na•• primogenitus nunquam attribuitur notho in•• ego plures quam vigint•• cartas in archivis in∣veni, ubi etiam eas reliqui, ex quibus sole clarius elucessit, Elizabetham Moram prima•••• f••isse uxorem, & Euphaniam Rosse secun∣dam, nam extra contraversiam, liberi Eli∣zabethae Morae etate grandiores era••t liberis Euphaniae Rosse: which Paper I did get

from the Lord Pitmeden, who has himself written some learn'd Observations upon this point.

4. I have my self seen an Act of Parlia∣ment (found out by the industry of Sir George Mackenzie of Tarbet, now Lord Register) having the intire Seals of the Members of Parliament appended thereto, by which the Parliament do swear Allegi∣ance to Robert the 2d. the first King of the Race of the Stewarts; and after him Roberto Comiti de Carrict, filio suo nat•• maximo (his eldest Son) in Anno 1371, which was the first year of his Reign; and if the pretended defect be true, it was a very palpable, and a very undenyable one, and could not but have been unanswerably known to the whole Nation. And how can we imagine, that the whole Parliament would have unanimously drawn upon themselves so dreadful a Perjury, by ex∣cluding the lawful Heir, against their Na∣tional Oath in the Reign of K. Kenneth the 3d, whereby they swore to own▪ always the immediate Heir, or that they would have entail'd upon themselves a Civil War, by preferring even a questionable Heir, after the Miseries which they had lately then felt, in the competition betwixt the Bruce and

the Baliol▪ Amongst which Seals, the Seal of James Earl of Dowglass is one, and how ridi∣culous is it to think, that he would sit and declare a Bastard preferable to the Brother of his own Lady, and to his own Lady who would have succeeded if her Brothers had died without Succession: Which Act of Parliament does also clearly prove, that Buchanan did not at all understand matters of Fact in this part of the History, for he asserts, that after the death of Euphan Ross, the King married Elizabeth Muir, and did by Act of Parliament obtain the Crown to be settled upon Robert the 3d, Son to the said Elizabeth Muir, upon whom he also bestow'd the Title of Carrick; all which is most false, for this Act of Parliament is dated in Anno 1371, and King Robert the 2d. succeeded to the Crown that year, nor did Euphan Ross die till the 3d. year after he succeeded to the Crown, and so not till the Year 1374, and yet in Anno 1371 this Act is past, designing him Heir to the Crown, and Earl of Carrick, and conse∣quently he was so design'd before the death of Euphan Ross.

5. I have seen a Charter granted by King Robert the 2d, when he was only Steward of Scotland, granted in anno 1165,

and so long before he was King. In which Charter likewise, John, thereafter King, by the name of Robert the 3d, is a con∣junct Disponer with him, under the ex∣press designation of the eldest Son and Heir. Robertus Senescallus Scotiae, Comes de Strathern, & Ioannes Senescallus primogenitus & haeresipsius Dominus Baroniae de Kyle, &c. which Charter confirms to the Abbacy of Pasley several Lands disponed to them, by Reginaldus More, Father to Sir William More of Abercorn. And I find that David Duke of Rothsay, was always in the Char∣ters granted by his Father King Robert the first, called Primogenitus, and he was no Bastard, nor can this designation be given to a Bastard, as is clear by Covar••v••as de Matrim. part. 2. cap. 8. §. 2. num 4. But how can it be imagined that the Monks of Pasley would have taken a Right from a person as Heir to the Crown, who was not: for this would have infer'd Treason against them, beside the annulling their Right, or who could understand better the lawfulness of a Marriage, than a body of Church-men, living in the time, and very near to the Residence of the married Persons, and in whose Conventual-Church the said King Robert and Elizabeth Muir ly buried together.

Item, I have seen in the Registers ano∣ther Charter granted by King Robert the 2. in the first year of his Reign, with the con∣sent of John Earl of Carrick, primogenitus & haeres, Allano de Lavidia terrarum de Whitslet; And an other granted by the said King, 1. June, anno primo regni, con∣firming to Paulo M^ctire a Charter granted by the Earl of Ross, Father to Euphan, wherein the said John primogenitus & hares, is a Witness: And to shew that the said Euphan Ross was then living when he was so design'd Heir, there is a Charter to her by the King upon the very same day of the Lands of Lochleaven. As also, there is a Charter granted by King Robert the 2d, the first year of his Reign, to Alexander his Son, and another to John Kennedy of the Barrony of Dalrymple, in both which the said John Earl of Carrick is call'd primo∣genitus, and is Witness with the Earl of Dowglass; so that he has been design'd eldest Son and Heir, openly, uncontra∣vertedly, and in all Papers, and with the consent of the second Wife and her Rela∣tions.

6. In the Parliament 1372, the said John Earl of Carrick is design'd to be Lieu∣tenant of the Kingdom, and all the Estates

of Parliament swear to own him in his Government, and which Statute is printed amongst the Satutes of King Robert the 2d, Father to the said John, and which must be during the Marriage with Euphan Ross, for she liv'd three years after her Husband was King, and he succeeded to the Crown anno 1371: And this also con∣futes Buchanan, who asserts, that he was created Earl of Carrick after the death of Euphan Ross, and it is against all sense and reason to think that he could have been acknowledg'd during her life, if he had not been the true Apparent Heir of the Crown and a lawful Son.

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 3d; 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 Fa∣ther was induc'd upon their account to marry his Mother; but yet the said Walter was by all the Parliament unanimously con∣demn'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 Parlia∣ment for their just Sentence. As did like∣wise Aeneas Silvius the Popes learned Legat, who exhorted the Parliament to condemn him.

8. How is it imaginable, that King Ro∣bert who had so lately, and after a strong competition come to the Crown, would have adventur'd to make his Title yet more dis∣putable, 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 3d was the eldest and lawful Son of King Robert the 2d. 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. 2, prae∣sumpt. 2. num. 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 3d. to be his eldest Son and Heir, both in Charters and Acts of Parliamnets, which are the most solemn of all Deeds. 2. Quando

pater instituit aliquem tanquam filium s••um, which holds in this Case, where the Father institutes and leaves him Heir, and the Par∣liament swears Allegiance to him as the Heir, Mascard. de prob. vol. 2. conclus. 799. And in dubious Cases, the Father's naming such a man as a Son, presumes him to be a lawful Son, nominatio parentis inducit filia∣tionem in dubio, l. ex facto §. si quis Roga∣tus ff. ad trebell. 3. Even Fame, and the common opinion of the People, do in favours of these that are in Possession, and in ancient Cases, prove & filiationem, & legitimationem, Mascard. conclus. 792. but much more, where the Fame and common Opinion is adminiculated by other Argu∣ments, fulgos consil. 128. Panorm. in cap. transmiss, qui filii sunt ligittimi. 4. When Writs are produc'd, calling a man a Son, the Law concludes him to be a lawful Son. Mascard. vol. 2. conclus. 800. num 15. all which can be easily subsum'd in our Case. In which Robert the 3d. is nam'd not only Son, but Heir, and Allegiance sworn to him, even in the lifetime of the second Wife and her Relations sitting in Parlia∣ment, and all this acquiesc'd in for many hundreds of years, and the Competitors punish'd as Traitors by the unanimous con∣sent of all the Parliament.

I know that Buchanan does most bitter∣ly inveigh against those Laws made by King Kenneth the 3d, as Laws whereby the ancient Right of Succession was inno∣vated, and whereby the Government was settled upon Children who were neither able to consult with the People, nor to de∣fend 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 Poste∣rity; and consequently Fergus's Son ought by Law to have succeeded, and not his Brother, for his Brother was none of his Posterity, and therefore those Laws made by K. Kenneth did but renew the old Law, and the innovation introduc'd in favours of the Uncles, was a subversion of the fun∣damental 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 him∣self, who confesses, that upon the death of Durstus, a wicked Prince, it was de∣bated whether his Son should not succeed

juxta sacramentum Fergusio prestitum vete∣remque esse morem servandum, which ac∣knowledgeth that the Succession was even in these days established by Law, by Oath, and by Custom; and after the death of Fergus the 2d, his Son Eugenius (though a Minor) was crown'd, and his Uncle Graemus allow'd to be his Tutor. And Buchanan also brings in Bishop Kenne∣dy, 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 Ma∣ry prevail with him, to praise and rail at the same individual Law; and it is observ∣able, that it is very dangerous to recede once from fundamental Laws, for Buchanan makes not only the Succession Elective, but he makes no difference betwixt lawful Children and Bastards, and excludes not only Minors during the Uncles life, but Wo∣men 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 Scri∣pture

gives us many instances of it: J••as 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 Deut. Thou shalt set over thee, the King whom I have chosen, and consequently the choice of Minors can∣not be ill, since God Almighty us'd to make such a choice. I know that Eccless. 10. 16. says, Woe unto the land when thy King is a child, but the Criticks interpret this of a King that is childish, puen intellectu & moribus, or because Factions arise by the opposition to his Regents, and this incon∣veniency did more necessarily attend the allowing a Regent King during Life, for both the Subjects and the true Heir rais'd Factions in that Case, whereas the Subjects only are factious in the other, and yet even they are no more factious for that short time, than they are always in Common∣wealths. 4. The reason why the Minor King was to have one to supply his Non∣age ceasing with his Majority, it was un∣reasonable that the Remedy should have lasted beyond the Disease, and the worst effect that could have been occasion'd by the Infant King's Minority was, that the

Kingdom should have been during that time govern'd by joynt advice of Parlia∣ment, Councils, and Officers of State, which in Buchanan's opinion in other places of his History and Book De Jure Regni, is so excellent a Model, that he decrys Mo∣narchy as much inferior to it. 5. It was most inconvenient to accustom any private Family to live in the quality of a King. 6. It could not but occasion many Murders, and much Faction, for the true Heir could not live peaceably under this Eclipse and Exclusion, nor could the Uncle live without making a Party to secure his pleasant Usurpation. 7. As these Divisions and Factions were the natural and necessary Effects that were to be expected from this irregular Succession, so it is very observ∣able, that from King Fergus to King Ken∣neth the 3d, we had 79. Kings, amongst whom, almost the half were the most im∣pious, tyranical, or lazie Kings that ever we had, according to Buchanan's character of them; so happy and wise a thing is this (so much magnified) Election of a Succes∣sor by the People and their Representa∣tives, to supply the defects of the lawful Heir, whereas from King Kenneth the 3d, to King CHARLES the 2d, inclusivè, we

have had 3••. Kings, 26. of whom have suc∣ceeded by a due lineal Right, and have prov'd vertuous Princes, greater by their Merit than their Birth, as if God had de∣sign'd to let us see, that though most of them succeeded whilst they were very young, yet that he can choose a fitter Suc∣cessor than Parliameuts can do; whereas the other 5. Kings who came to the Crown against that Law of Kenneth the 3d, viz. Constantine the bald, Grimus, Mackbeath, Donal Bain, and Duncan the 2d, were all persons who deserved very ill to be pre∣ferred to the true Heir, and who, as they came to the Crown against Law, so govern'd without it: And it is very strange, that the Fanaticks, who think that every throw of the Dice is influenc'd by a special Pro∣vidence, will not allow, that God does by a special Providence take care who shall be his Representative, who shall be the Pastor of his Flock, and nursing Father of his Church; let us therefore trust his Care more than our own, and hope to obtain more from him by Christian Submission, Humility and Obedience than we can by Caballing, Rebelling, and Sacrilegious-Murdering, or Excluding the true Successor.

FINIS.