Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether the King of Scotland Be an Absolute Prince. Having Prerogatives above Parliament and Laws: the Negative Is Asserted by the Laws of Scotland, the King’s Oath of Coronation, the Confession of Faith, Etc.
The negative part of this I hold in these assertions.
Assert. 1. The kings of Scotland have not any prerogative distinct from supremacy above the laws. If the people must be governed by no laws but by the king’s own laws, that is, the laws and statutes of the realm, acted in parliament under pain of disobedience, then must the king govern by no other laws, and so by no prerogative above law. But the former is an evident truth by our acts of parliament; therefore, so is the latter. The proposition is confirmed,
- 1st. Because whatever law enjoins passive obedience no way but by laws, that must enjoin also the king actively to command no other way but by law; for to be governed by law essentially includes to be governed by the supreme governor only by law.
- 2nd. An act of regal governing is an act of law, and essentially an act of law; an act of absolute prerogative is no act of law, but an act above law, or of pleasure loosed from law; and so they are opposed as acts of law, and non-acts of law. If the subjects, by command of the king and parliament, cannot be governed but by law, how can the king but be under his own and the parliament’s law, to govern only by law? I prove the assumption from Parl. 3, of king James I act 48, which ordains “That all and sundry the king’s lieges be governed under the king’s laws and statutes of the realm allenarly, and under no particular laws or special privileges, nor by any laws of other countries or realms.” Privileges do exclude laws. Absolute pleasure of the king as a man, and the law of the king as king, are opposed by way of contradiction; and so in Parl. 6, James IV act 79, ratified Parl. 8, James VI act 131.
2. The king, at his coronation, (Parl. 1, James VI act 8,) swears “to maintain the true kirk of God, and religion now presently professed, in purity, and to rule the people according to the laws and constitutions received in the realm, causing justice and equity to be ministered without partiality.” This did king Charles swear at his coronation, and was ratified, Parl. 7, James VI act 99. Hence he who, by the oath of God, is limited to govern by law, can have no prerogative above the law. If, then, the king change the religion and confession of faith, authorized by many parliaments, (especially by Parl. 1, diaries, 1633,) he goes against his oath. The king’s royal prerogative, or rather supremacy, (enacted Parl. 8, James VI act 129; Parl. 18, act 1; Parl. 21, act 1, James; and Parl. 1, Charles, act 3,) cannot be contrary to the oath that king Charles did swear at his coronation, which brings down the prerogative to governing according to the standing laws of the realm.” It cannot be contrary to these former parliaments and acts, declaring that “the lieges are to be governed by the laws of the realm, and by no particular laws and special privileges;” (but absolute prerogative is a special privilege above, or without law;) which acts stand unrepealed to this day; and these acts of parliaments stand ratified by Parl. 1, Charles, 1633.
3. Parl. 8, James VI in the first three acts thereof, the king’s supremacy, and the power and authority of parliaments are equally ratified under the same pain: “Their jurisdictions, power, and judgments in spiritual or temporal causes, not ratified by his Majesty, and the three estates convened in parliament, are discharged.” But the absolute prerogative of the king above law, equity, and justice, was never ratified in any parliament of Scotland to this day.
4. By Parl. 12, James VI act 114, all former acts in favor of the true church and religion being ratified, their power of making constitutions concerning to\ pre/pon, order and decency, the privileges that God has given to spiritual office-bearers, as well of doctrine and discipline, in matters of heresy, excommunication, collation, deprivation, and such like, warranted by the word of God, and also to assemblies and presbyteries, are ratified. Now in that parliament, in acts so contiguous, we are not to think that the king and three estates would make acts for establishing the church’s power in all the former heads of government, in which royalists say, “the soul of the king’s absolute prerogative does consist;” and therefore it must be the true intent of our parliament to give the king a supremacy and a prerogative royal, (which we also give,) but without any absoluteness of boundless and transcendent power above law, and not to obtrude a service-book, and all the superstitious rites of the church of Rome, without God’s word, upon us.
5. The former act of parliament ratifies the true religion, according to the word of God, then could it never have been the intent of our parliament to ratify an absolute supremacy, according to which a king might govern his people, as a tyrannous lion, contrary to Deut. 17:18-20. And it is true, Parl. 18, James VI acts 1 and 2, upon personal qualifications, gives a royal prerogative to king James over all causes, persons, and estates within his Majesty’s dominion, whom they humbly acknowledge to be “sovereign monarch, absolute prince, judge and governor over all estates, persons, and causes.”
These two acts, for my part I acknowledge, are spoken rather in court expressions than in law terms.
1. Because personal virtues cannot advance a limited prince (such as the kings of Scotland, post hominum memoriam, ever were) to be an absolute prince. Personal graces make not David absolutely supreme judge over all persons and causes; nor can king James, advanced to be king of England, be for that made more king of Scotland, and more supreme judge, than he was while he was only king of Scotland. A wicked prince is as essentially supreme judge as a godly king.
2. If this parliamentary figure of speech, which is to be imputed to the times, exalted king James to be absolute in Scotland, for his personal endowments, there was no ground to put the same on king Charles. Personal virtues are not always hereditary, though to me the present king be the best.
3. There is not any absoluteness above law in act 1, the parliament must be more absolute in themselves. King James VI had been diverse years, before this 18th parliament, king of Scotland; then, if they gave him by law an absoluteness, which he had not before, then they were more absolute. Those who can add absoluteness must have it in themselves, Nemo dat quod non habet. If it be said king James had that before the act; the parliament legally declared it to be his power, which, before the declaration, was his power, I answer, all he had before this declaration was, to govern the people according to law and conscience, and no more; and if they declare no other prerogative royal to be due to him, there is an end, we grant all. But, then, this which, they call prerogative royal, is no more than a power to govern according to law, and so you had nothing to add to king James upon the ground of his personal virtues, only you make an oration to his praise in the acts of parliament.
4. If this absoluteness of prerogative be given to the king, the subjects, swearing obedience, swear that he has power from themselves to destroy themselves: this is neither a lawful oath, nor though they should swear it, does it oblige them.
5. A supreme judge is a supreme father of all his children and all their causes; and to be a supreme father cannot be contrary to a supreme judge; but contrary it must be, if this supremacy make over to the prince a power of devouring as a lion, and that by a regal privilege, and by office, whereas he should be a father to save; or if a judge kill an evil-doer, though that be an act destructive to one man, yet is it an act of a father to the commonwealth. An act of supreme and absolute royalty is often an act of destruction to one particular man, and to the whole commonwealth. For example, when the king, out of his absolute prerogative, pardons a murderer, and he kills another innocent man, and out of the same ground the king pardons him again, and so till he kill twenty, (for by what reason the prerogative gives one pardon, he may give twenty, there is a like reason above law for all,) this act of absolute royalty is such an act of murder, as if a shepherd would keep a wolf in the fold with the sheep, he were guilty of the loss of these sheep. Now an act of destroying cannot be an act of judging, far less of a supreme judge, but of a supreme murderer.
6. Whereas he is called “absolute prince and supreme judge, in all causes, ecclesiastical and civil,” it is to be considered,
- 1st. That the estates profess not in these acts to give any new prerogative, but only to continue the old power, and that only with that amplitude and freedom which the king and his predecessors did enjoy and exercise before: the extent whereof is best known from the acts of parliament, histories of the time, and the oaths of the kings of Scotland.
- 2nd. That he is called absolute prince, not in any relation of freedom from law, or prerogative above law, whereunto, as onto the norma regula ac mensura potestatis suae, ac subjectionis meae, he is tied by the fundamental law and his own oath, but in opposition to all to reign jurisdiction or principality above him, as is evident by the oath of supremacy set down for acknowledging of his power in the first act of parliament 21, king James VI.
- 3rd. They are but the same expression, giving only the same power before acknowledged in the 129th act, Parl. 8, king James Vl., and that only over persons or estates, considered separatim, and over causes; but neither at all over the laws nor over the estates, taken conjunctim, and as convened in parliament, as is clear, both by the two immediately subsequent acts of that parliament, 8, James VI., establishing the authority of parliaments equally with the kings, and discharging all jurisdictions (albeit granted by the king) without their warrant, as also by the narrative depositive words, and certification of the act itself; otherwise the estates convened in parliament might, by virtue of that act, be summoned before and censured by the king’s majesty or his council, a judicatory substitute, be subordinate to, and censured by themselves, which were contrary to sense and reason.
- 4th. The very terms of supreme judge, and in all causes, according to the nature of correlates, presupposes courts and judicial proceedings and laws, as the ground-work and rule of all, not a freedom from them.
- 5th. Act 6, Parl. 20, James VI clearly interpreted what is meant by the king’s jurisdiction in all spiritual and ecclesiastical causes; to wit, to be only in the consistonal causes of matrimony, testaments, bastardy, adulteries, abusively called spiritual causes, because handled in commissary courts, wherein the king appoints the commissary, his deputies, and makes the lords of the session his great consistory in all ecclesiastical causes, with reservation of his supremacy and prerogative therein.
7. Supreme judge in all causes, cannot be taken quoad actus elicitos, as if the king were to judge between two seamen, or two husbandmen, or two tradesmen, in that which is proper to their art; or between two painters. Certainly the king is not to judge which of the two draws the fairest picture, but which of the two wastes most gold on his picture, and so does interest most of the commonwealth. So the king cannot judge in all ecclesiastical causes, that is, he cannot, quoad actos elicitos, prescribe this worship, for example, the mass, not the sacrament of the Lord’s supper. Therefore the king has but actus imperator some royal political acts about the worship of God, to command God to be worshipped according to his word, to punish the superstitions or neglectors of divine worship; therefore, cannot the king be sole judge in matters that belong to the college of judges by the laws of Scotland, the lords, of session only may judge these matters, (Parl. 2, James I, act 46; Parl. 8, James III, act 62; Parl 4, James III, act 105; Parl, 6, James I, act 83; Parl. 6, James I, act 86; Parl. 7, James V, act 104,) and that only according to law, without any remedy of appellation to king or the parliament (Parl. 14, James II, act 62 and 63). And the king is by act of parliament inhibited to send any private letter to stay the acts of justice; or if any such letter be procured, the judges are not to acknowledge it as the king’s will, for they are to proceed impartially according to justice, and are to make the law, which is the king and parliament’s public revealed will, their rule (Parl. 5, James V, act 68; Parl. 8, James VI, act 139; Parl. 6, James VI., act 92). Nor may the lords suspend the course of justice, or the sentence or execution of decrees upon the king’s private letter (Parl. 11, James VI., act 79, and Parl. 11, James VI., act 47).
And so, if the king’s will or desire, as he is a man, be opposite to his law and his will as king, it is not to be regarded. This is a strong argument, that the parliaments never made the king supreme judge, quoad actus elicitos, in all causes, nay not if the king have a cause of his own that concerns lands of the crown, far less can the king have a will of prerogative above the law by our laws of Scotland. And, therefore, when in Parl. 8, James VI., the king’s royal power is established in the first act, the very next act immediately subjoined thereunto declares the authority of the supreme court of parliament continued past all memory of man unto this day, and constitute of the free voices of the three estates of this ancient kingdom, which, in the parliament 1606, is called, “the ancient and fundamental policy of this kingdom;” and so fundamental, as if it should be innovated, such confusion would ensue, as it could no more be a free monarchy, as is expressed in the parliament’s printed commission, 1604, by whom the same, under God, has been upholden. rebellious and traitorous subjects punished, the good and faithful preserved and maintained, and the laws and acts of parliament (by which all men are governed) made and established, and appoints the honor, authority, and dignity of the estates of parliament to stand in their own integrity, according to the ancient and laudable custom by-past, without alteration or diminution, and therefore discharges any to presume or take in hand, “to impugn the dignity and the authority of the said estates, or to seek or procure the innovation or diminution of their power or authority, under the pain of treason:” and, therefore, in the next act, they discharge all jurisdictions, or judicatories, (albeit appointed by the king’s majesty, as the high commission was,) without their warrant and approbation; and that, as contrary to the fundamental laws above titled, (Parl. 3, James I, act 48 and Parl. 6, James IV, act 79,) whereby the lieges should only be ruled by laws or acts passed in the parliament of this kingdom.
Now, what was the ancient dignity, authority, and power of the parliaments of Scotland, which is to stand without diminution, that will be easily and best known from the subsequent passages, or historians, which can also be very easily verified by the old registers, whensoever they should be producecl. In tho meantime, remember that in parliament and by act of Parl. James VI., for observing the due order of parliament, promises, never to do or command any thing which may directly or indirectly prejudge the liberty of free reasoning or voting of parliament (Parl. 11, James VI., act 40). And withal, to evidence the freedom of the parliament of Scotland, from that absolute unlimited prerogative of the prince, and their liberty to resist his breaking of covenant with them, or treaties with foreign nations, ye shall consider
- 1st. That the kings of Scotland are obliged, before they be inaugurated, to swear and make their faithful covenant to the true kirk of God, that they shall maintain, defend, and set forward the true religion confessed and established within this realm; even as they are obliged and restricted by the law of God, as well in Deuteronomy as in 2 Kings 11, and as they crave obedience of their subjects. So that the bond and contract shall be mutual and reciprocal, in all time coming, between the prince and the people, according to the word of God, as is fully expressed in the register of the convention of estates, July 1567.
- 2nd. That important acts and sentences at home, (whereof one is printed, Parl. 14, James III, act 112,) and in treaties with foreign princes, the estates of parliament did append their several seals with the king’s great seal, (which to Grotius, Barclaius, and Arnisaeus, is an undeniable argument of a limited prince, as well as the style of our parliament, that the estates, with the king, ordain, ratify, rescind, etc.) as also they were obliged, in case of the king’s breaking these treaties, to resist him therein, even by arms, and that without any breach of their allegiance, or of his prerogative, as is yet extant in the records of our old treaties with England and France, etc. But to go on, and leave some high mysteries unto a rejoinder.
And to the end I may make good, 1. That nothing is here taught in this treatise but the very doctrine of the Church of Scotland, I desire that the reader may take notice of the larger Confession of the Church of Scotland, printed with the body of the confessions at Geneva, anno 1612, and authorized by James VI and the three estates in parliament, and printed in our acts of parliament (Parl. 15, James VI., anno 1567). Amongst good works of the second table, says our Confession, (art. 14,) are these: To honor father, mother, princes, rulers, and superior powers. To love them, to support them, yea, to obey their charge, (not repugning to the commandment of God,) to save the lives of innocents, to repress tyranny, to defend the oppressed, to keep our bodies clean and holy, etc. The contrary whereof is, to disobey or resist any that God has placed in authority, (while they pass not over the bounds of their office,) to murder, or to consent thereunto, to bear hatred, or to let innocent blood be shed, if we may withstand it, etc. Now the Confession cites in the margin, Eph. 1:1, 7 and Ezek, 22:1-4, etc., where it is evident, by the name of father and mother, all inferior judges as well as the king, and especially the princes, rulers, and lords of parliament are understood.
2. The bloody city is to be judged, because they relieved not the oppressed, out of the hand of the bloody princes, (v. 6,) who every one of them did to their power shed innocent blood (Ezek. 22:6).
3. To resist superior powers, and so the estates of parliament, as the cavaliers of Scotland do, is resistance forbidden (Rom. 13:1). The place is also cited in the Confession, and the Confession expones the place (Rom.13) according to the interpretation of all sound expositors, as is evident in these words, art. 24, “And therefore we confess and avouch, that such as resist the supreme power, doing that thing which appertains to his charge, do resist God’s ordinance, and therefore cannot be guiltless.
And farther, we affirm, that whosoever denies unto them aid, their counsel and support, while as the princes and rulers vigilantly travel in execution of their office, that the same men deny their help, support, and counsel to God, who, by the presence of his lieutenant, craves it of them.” From which words we have clear:
1. That to resist the king or parliament, is to resist them while as they are doing the thine that appertained to their charge, and while they vigilantly travel in the execution of their office. But while king and parliament do acts of tyranny against God’s law, and all good laws of men, they do not the things that appertain to their charge and the execution of their office; therefore, by our Confession, to resist them in tyrannical acts is not to resist the ordinance of God.
2. To resist princes and rulers, and so inferior judges, and to deny them counsel and comfort, is to deny help, counsel, and comfort to God. Let then cavaliers, and such as refuse to help the princes of the land against papists, prelates and malignants, know, that they resist God’s ordinance, which rebellion they unjustly impute to us.
3. Whereas it is added in our Confession, that God, by the presence of his lieutenant, craves support and counsel of the people, it is not so to be taken, as if then only we are to aid and help inferior judges and parliaments, when the king personally requires it, and not otherways.
- 1st. Because the king requires help, when, by his office, he is obliged to require our help and counsel against papists and malignants, though as misled, he should command the contrary: so if the law require our help, the king requires it ex officio.
- 2nd. This should expressly contradict our Confession, if none were obliged to give help and counsel to the parliaments and estates, except the king in his own person should require it, because (art. 14) it is expressly said, That to save the lives of innocents, or repress tyranny, to defend the oppressed, not to suffer innocent blood to be shed, are works pleasing to God, which he rewards. Now we are not to think in reason, if the king shall be induced by wicked counsel to do tyrannical works, and to raise papists in arms against protestants, that God does by him, as by his lieutenant, require our help, comfort, and counsel in assisting the king in acts of tyranny, and in oppression, and in shedding in. nocent blood; yea, our Confession ties us to deny help and comfort to the king in these wicked acts, and therefore our help must be in the things that pertains to his royal office and duty only, otherwise we are to repress all tyranny (art. 14).
4. To save the lives of innocents, to repress tyranny, to defend the oppressed, are, by our Confession, good works, well pleasing to God, and so is this a good work, not to suffer innocent blood to be shed, if we may withstand it. Hence it is clear as the sun, that our Confession, according to the word of God, to which king Charles did swear at his coronation, does oblige and tie us in the presence of God and Sis holy angels, to rise in arms to save the innocent, to repress tyranny, to defend the oppressed. When the king, by ill counsel, sent armies by sea and land to kill and destroy the whole kingdom who should refuse such a service-book as they could not in conscience receive, except they would disobey God, renounce the Confession of Faith, which the king and they had sworn unto, and prove perfidious apostates to Christ and his church, what could we do, and that the same Confession, considering our bonds to our dear brethren in England, lays bonds on us to this, as a good work also, not to suffer their innocent blood to be shed, but to defend them, when they, against all law of God, of men, of state, of nations, are destroyed and killed.
For my part, I judge it had been a guiltiness of blood upon Scotland, if we had not helped them, and risen in arms to defend ourselves and our innocent brethren against bloody cavaliers. Add to this what is in the 24th article of the same Confession: “We confess, whosoever goes about to take away, or to confound the whole state of civil polity, now long established, we affirm the same men not only to be enemies to mankind, but also wickedly to fight against God’s will.” But those who have taken arms against the estates of Scotland, and the princes and rulers of the land, have labored to take away parliaments, and the fundamental laws of this kingdom, therefore, the Confession adds, (art. 16,) “We farther confess and acknowledge, that such persons as are placed in authority are to be loved, honored, feared, and holden in most reverent estimation, because that they are lieutenants of God, in whose sessions God himself does sit and judge; yea, even the judges and princes themselves, to whom, by God, is given the sword, to the praise and defense of good men, and to revenge and punish all open malefactors.” Therefore, the parliament, and princes, and rulers of the land, are God’s lieutenants on earth no less than the king, by our Confession of Faith; and those who resist them, resist the ordinance of God.
Royalists say, they are but the deputies of the king, and when they do contrary to his royal will, they may be resisted, yea, and be killed, for in so far they are private men, though they are to be honored as judges when they act according to the king’s will, whose deputies they are, But, I answer:
1. It is a wonder that inferior judges should be formally judges, in so far as they act conform to the will of a mortal king, and not in so far as they act conform to the will of the King of kings, seeing the judgment they execute is the King of kings’, and not the judgment of a mortal king. (2 Chron. 19:6.)
2. Royalists cannot endure the former distinction as it is applied to the king, but they receive it with both hands as it is applied to inferior judges; and yet, certain it is, that it is as ordinary for a king, being a sinful man, to act sometimes as the lieutenant of God, and sometimes as an erring and misinformed man, no less than the inferior judge acts sometimes according to the king’s will and law, and sometimes according to his own private way; and if we are to obey the inferior judge as the deputy of the king, what shall become of his person, when cavaliers may kill him at some Edgehill? for so they mock this distinction, as applied to the king in regard of his person and of his royal office; and for this point our Confession cites in the margin Rom. 13:7; 1 Pet. 2:17; Psal. 82:1, which places do clearly prove that inferior magistrates are,
- (1.) God’s ordinances;
(2.) Gods on earth, (Psal. 82:6);
(3.) Such as bear the Lord’s sword;
(4.) “That they are not only (as the Confession says) appointed for civil policy, but also for maintenance of true religion, and for suppressing of idolatry and superstition.” Then, it is evident, to resist inferior magistrates is to resist God himself, and to labor to throw the sword out of God’s hand.
(5.) Our Confession uses the same Scriptures cited by Junius Brutus, to wit, Ezek. 22:1-7; Jer. 22:3, where we are, no less than the Jews, commanded to “execute judgment and righteousness, and deliver the spoiled out of the hands of the oppressor;” for both the law of God and the civil law says, Qui non impedit homicidium, quum potest, is homicidii reus est. I will cast in a word of other Confessions, lest we seem to be Jesuits alone.
The Confession of Helvetia says, (c. 30,) de Magistratu. Viduas, pu pillos, afflictos asserat, every magistrate is to defend the widow, the orphan, and the oppressed. The French Confession says, (art. 40,) Affirmamus ergo parendumesse legibus et statutis, solvenda tributa, subjectionis denique jugum voluntarie tolerandum, etiamsi infideles fuerint magistratus, dummodo Dei summum imperium integrum et illibatum maneat. So clear it is that all active obedience is due to all magistrates, and that that yoke of passive obedience is to be tolerated but conditionally, with a dummodo, so as the magistrate violate not the supreme commandment of the King of kings; and we know, accordingly, protestants of that church have taken defensive arms against their king. But our P. Prelate can say, the Confessions of Scotland, Helvetia, France, and all the reformed churches, are Jesuitical, when as it was the doctrine of the Waldenses, the protestants, Luther, Calvin, and others, while as there was no Jesuit on earth.
The thirty-seventh article of the Church of England’s Confession1 is so far from erecting an absolute power in the king, that they expressly bring down the royal prerogative from the high seat and transcendent superlative power above the law, and expone the prerogative to be nothing but mere law-power. “We only (say they) ascribe that prerogative to the king which the Scripture does ascribe to all godly princes; that is, that they cause all committed to their trust, whether ecclesiastical or civil persons, to do their duty, and punish with the civil sword all disobedient offenders.” In syntag. Confess. “And this they say in answer to some who believed the Church of England made the king the head of the church.” The Prelates’ Convocation must be Jesuits to this P. Prelate also.
So the thirty-sixth article of the Belgic Confession says of all magistrates, no less than of a king, (we know, for tyranny of soul and body, they justly revolted from their king,) Idcirco magistratus ipsos gladio armavit, ut malos quidem, plectant pnis, probos vero tueantur. Horum porro est, non modo de civili politia conservanda esse solicitos, verum etiam dare operam ut sacrum ministerium conservetur, omnis idololatria et adulterinus Dei cultus e medio tollatur, regnum antiChristi diruatur, etc. Then, all magistrates, though inferior, must do their duty that the law of God has laid on them, though the king forbid them; but, by the Belgic Confession and the Scripture, it is their duty to relieve the oppressed, to use the sword against murdering papists and Irish rebels and destroying cavaliers; for, shall it be a good plea in the day of Christ to say, “Lord Jesus, we would have used thy sword against bloody murderers if thy anointed, the king, had not commanded us to obey a mortal king rather than the King of ages, and to execute no judgment for the oppressed, because he judged them faithful catholic subjects.” Let all Oxford and cavalier doctors in the three kingdoms satisfy the consciences of men in this, that inferior judges are to obey a divine law, with a proviso that the king command them so to do, and otherwise they are to obey men rather than God. This is evidently holden forth in the Argentine Confession, exhibited by four cities to the emperor Charles V, 1530, in the very same cause of innocent defense that we are now in in the three kingdoms of Scotland, England, and Ireland.
The Saxon Confession, exhibited to the Council of Trent, (1551, art. 23,) makes the magistrate’s office essentially to consist in keeping of the two tables of God’s law; and so, what can follow hence, but in so far as he defends murderers, or, if he be a king, and shall with the sword or arms impede inferior magistrates (for the Confession speaks of all) to defend God’s law and true religion against papists, murderers, and bloody cavaliers, and hinder them to execute the judgment of the Lord against evil doers, he is not, in that, a magistrate; and the denying of obedience, active or passive, to him in that, is no resistance to the ordinance of God; but, by the contrary, the king himself must resist the ordinance of God.
The Confession of Bohemia is clear, (art. 16,) Qui publico munere magistratuque funguntur, quemcunqut, gradum teneant, se non suum, sed Dei opus agere sciant. Hence, all inferior or the supreme magistrate, whatever be their place, they do not their own work, nor the work of the king, but the work of God, in the use of the sword; therefore, they are to use the sword against bloody cavaliers, as doing God’s work suppose the king should forbid them to do God’s work; and it says of all magistrates, Sunt autem magistratuum partes ac munus, omnibus ex quo jus dicere, in communem omnium usum, sine personarum acceptatione, pacem ac tranquilitatem publicam tueri ac procurare de malis ac facinorosis, hanc inter turbantibus pnas sumere, aliosque, omnes ab eorum vi et injuria vindicare. Now, this confession was the faith of the barons and nobles of Bohemia who were magistrates, and exhibited to the emperor, anno 1535, in the cause not unlike unto ours now, and the emperor was their sovereign; yet they profess they are obliged, in conscience, to defend all under them from all violence and injuries, that the emperor, or any other, could bring on them; and that this is their office before God, which they are obliged to perform as a work of God, and the Christian magistrate is not to do that work which is not his own but God’s, upon condition that the king shall not inhibit him. What if the king shall inhibit parliaments, princes, and rulers, to relieve the oppressed, to defend the orphan, the widow, the stranger, from unjust violence? Shall they obey man rather than God?
To say no more of this: prelates in Scotland did what they could, (1.) To hinder his Majesty to indict a parliament. (2.) When it was indicted, to have its freedom destroyed by prelimitations. (3.) When it was sitting, their care was to divide, impede, and annul the course of justice. (4.) All in the P. Prelate’s book tends to abolish parliaments, and to enervate their power. (5.) There were many ways used to break up parliaments in England; and to command judges not to judge at all, but to interrupt the course of justice, is all one as to command unrighteous judgment (Jer. 22:3). (6.) Many ways have been used by cavaliers to cut off parliaments, and the present parliament in England.
The paper found in William Laud’s study, touching tears and hopes of the parliament of England, evidences that cavaliers hate the supreme seat of justice, and would it were not in the world; which is the highest rebellion and resistance made against superior powers.
1. He fears this parliament shall begin where the last left.
Ans. Whatever ungrateful courtier had hand in the death of king James deserved to come under trial.
2. He fears they sacrifice some man,
Ans. 1. If parliaments have not power to cut off rebels, and corrupt judges, the root of their being is undone. 2. If they be lawful courts, none need fear them, but the guilty.
3. He fears their consultations be long, and the supply must be present.
Ans. 1. Then cavaliers intend parliaments for subsidies to the king, to foment and promote the war against Scotland, not for justice. 2. He that fears long and serious consultations, to rip up and lance the wounds of church and state, is afraid that the wounds be cured.
4. He fears they deny subsidies, which are due by the law of God, nature, and nations, whereas parliaments have but their deliberation and consent for the manner of giving, otherwise this is to sell subsidies, not to give them.
Ans. Tribute, and the standing revenues of the king, are due by the law of God and nations; but subsidies are occasional rents given upon occasion of war, or some extraordinary necessity; and they are not given to the king as tribute and standing revenues, which the king may bestow for his house, family, and royal honor, but they are given by the kingdom, rather to the kingdom than to the king, for the present war, or some other necessity of the kingdom, and therefore are not due to the king as king, by any law of nature or nations, and so should not be given but by deliberation and judicial sentence of the states; and they are not sold to the king, but given out by the kingdom by statute of parliament, to be bestowed on the kingdom, and the king should sell no acts of justice for subsidies.
5. He dare not speak of the consequences, if the king grant bills of grace, and part with the flowrets of the crown.
Ans. He dare not say, the people shall vindicate their liberty by selling subsidies to buy branches of the prerogative royal, and diminishing the king’s fancied absoluteness; so would prelates have the king absolute, that they may ride over the souls, purses, persons, estates, and religion of men, upon the horse of pretended absoluteness.
6. He fears the parliament fall upon church business; but, (1.) The church is too weak already; if it had more power, the king might have more both of obedience and service. (2.) The houses can be no competent judges in point of doctrine. (3.) For the king, clergy, and convocation are judges in all causes ecclesiastical.
Ans. 1. This strikes at the root of all parliamentary power. (1.) The P. Prelate gives them but a poor deliberative power in subsidies; and that is, to make the king’s will a law, in taking all the subjects’ goods from them, to foment war against the subjects. (2.) He takes all jurisdiction from them over persons, though they were as black traitors as breathe. (3.) And spoils them of all power in church matters; to make all judges, yea, and the king himself yield blind obedience to the Pope and Prelate, and their illuminated clergy. Sure I am, P. Maxwell imputes this, but most unjustly, to presbyteries. What essential and fundamental privileges axe left to parliaments? David and the parliament of Israel are impertinent judges in the matter of bringing home the ark of God. And for the church’s weakness, that is, the weakness of the damned prelates, shall this be the king’s weakness? Yes; the P. Prelate must make it true, no bishop, no king.
7. He fears factious spirits will take heart to themselves, if the king yield to them without any submission of theirs.
Ans. The princes and judges of the land are a company of factious men, and so no parliament, no court, but at best some good, advisers of a king to break up the parliament, because they refuse subsidies, that he may, by a lawless way, extort subsidies.
8. He desires the parliament may sit a short time, that they may not well understand one another.
Ans. He loves short or no justice from the parliament; he fears they reform God’s house, and execute justice on men like himself. But I return to the Scottish parliament.
Assert. 2. The parliament is to regulate the power of the king. The heritable sheriffs complain that the king grants commissions to others in cases pertaining to their office; whereupon the estates (Parl. 6, James VI., act 82) discharges all such commissions, as also appoints that all murderers be judged by the justice general only. And in several acts the king is inhibited to grant pardons to malefactors, Parl. 11, James VI., act 75.
It is to be considered that king James, in his Basilikon Doron, lays down an unsound ground, that Fergus the first, father of one hundred and seven kings of Scotland, conquered this kingdom. The contrary whereof is asserted by Fordome, Major, Boethius, Buchanan, Hollanshed, who run all upon this principle, that the estates of the Kingdom did, (1.) Choose a monarchy, and freely, and no other government. (2.) That they freely elected Fergus to be their king. (3.) King Fergus frequently convened the parliament called Insulanorum duces, tribuum rectores, majorum consessus, conventus ordinum, conventus statuum, communitatum regni, phylarchi, primores, principes, patres; and, as Hollanshed says, they made Fergus king, therefore a parliament must be Defore the king; yea, and after the death of king Fergus, philarchi coeunt concione advocata, the estates convened without any king, and made that fundamental law regni elective, that when the king’s children were minors, any of the Fergusian race might be chosen to reign, and this endured to the days of Kenneth; and Redotha, the seventh king, resigned and makes over the government into the hands of the parliament, and Philarchi Tribuum Gubernatores ordained Thereus the eighth king. Buchanan, (l. 4, rer. Scot.) calls him Reutha, and said he did this, populo egre permittente, then the royal power recurred to the fountain. Thereus, the eighth king, a wicked man, filled the kingdom with robbers, and fearing the parliament should punish him, fled to the Britons, and thereupon the parliament choose Connanus to be prorex and protector of the kingdom.
Finnanus, the tenth king, decreed, Ne quid reges, quod majoris esset momenti, nisi de publici consilii authoritate juberent, et ne domestico consilio remp. administrarent, regia publicaque negotia non sine patrum consultatione ductuque tractarentur, nec bellum pacem aut fdera reges per se patrum, tribuumve, rectorum injussu facerent, demerentue; then it is clear that parliaments were consortes imperii, and had the authority with and above the king. When a law is made that the kings should do nothing injussu rectorum tribuum, without commandment of the parliament, a cabinet-council was not lawful to the kings of Scotland. So Durstus, the eleventh king, swears to the parliament, “Se nihil nisi de primorum consilio acturum,” that he shall do nothing but by counsel of the rulers and heads of the kingdom. The parliament, rejecting the lawful son of Corbredus, the nineteenth king, because he was young, created Dardanus, the nephew of Metellanus, king, which is a great argument of the power of the Scottish parliament of old for elective rather than hereditary kings.
Corbredus II, called Galdus, the twenty-first king, at his coronation, renouncing all negative voices, did swear, Se majorum consiliis acquieturnum, that he should be ruled by the parliament; and it is said, Leges quasdam tollere non potuit, adversante multitudine.
Luctatus, the twenty-second king, is censured by a parliament, “Quod spreto majorum consilio,” he appointed base men to public offices.
Mogaldus, the twenty-third king, “Ad consilia seniorum omnia ex prisco more revocavit,” did all by the parliament, as the ancient custom was.
Conarus, the twenty-fourth king, was cast into prison by the parliament, “Quod non expectato decreto patrum, quod summae erat potestatis, privatis consiliis administrasset,” because he did these weightiest business that concerned the kingdom, by private advice, without the judicial ordinance of parliament, that was of greatest authority. Where is the negative voice of the king here?
Ethodius II (son of Ethodius I) the twenty-eighth king, (the parliament; passing him by on account of his age, and electing Satrael, his father’s brother, king before him,) was a simple ignorant man, yet for reverence to the race of Fergus, kept the name of a king, but the estates appointed tutors to him.
Nathalocus, the thirtieth king, corrupting the nobles with buds and fair promises, obtained the crown.
Romachus, Fethelmachus, and Angusianus, or as Buchanan calls him, aeneanus, contended for the crown, the parliament convened to judge the matter was dissolved by tumult, and Romachus chosen king, doing all, non adhibito, de more, consilio majorum, was censured by the parliament.
Fergus II was created king by the states, de more.
Constantine, the forty-third king, a most wicked man, was punished by the states.
Aidanus, the forty-ninth king, by the counsel of St Columba, governed all in peace, by three parliaments every year.
Ferchard I, the fifty-second king, and Ferchard II, the fiffty-fourth king, were both censured by parliaments.
Eugenius VII, the fifty-ninth king, was judicially accused, and absolved by the states, of killing his wife Spondana.
Eugenius VIII, the sixty-second king, a wicked prince, was put to death by the parliament, omnibus in ejus exitium, consentientibus.
Donaldus, the seventieth king, is censured by a parliament, which convened, pro salute reipublicae, for the good of the land. So Ethus, the seventy-second king, Ne unius culpa, regnum periret.
Gregory, the seventy-third king, swears to maintain kirk and state in their liberties; the oath is ordained to be sworn by all kings at their coronation.
The estates complain of Duff, the seventy-eighth king, because contemning the counsel of the nobles, Sacrificulorum consiliis abduceretur, and that either the nobility must depart the kingdom, or another king must be made.
Culen, the seventy-ninth king, was summoned before the estates, so before him, Constantine III, the seventy-fifth king, did, by oath, resign the kingdom to the states, and entered in a monastery at St Andrews.
Kenneth III, the eightieth king, procured almost, per vim, says Buchanan, that the parliament should change the elective kings into hereditary; observe the power of parliaments.
After this Grim, and then Macbeth, the eighty-fifth king, is rebuked for governing by private counsel; in his time, the king is ordained by the states to swear to maintain the community of the kingdom.
When Malcolm IV, the ninety-second king, would have admitted & treaty to the hurt of the kingdom, the nobles said, Non jus esse regi, the king had no right to take anything from the kingdom, Nisi omnibus ordinibus consentientibus. In the time of Alexander, the ninty-fourth king, is ordained, Acta regis oporteri conjirmari decreto ordinum regis, quia ordinibus regni non consultis, aut adversantibus, nihil quod ad totius regni statum attinet, regi agere liceret; so all our historians observe; by which it is clear, that the parliament, not the king, has a negative voice.
The states’ answer to king Edward’s legates, concerning Balzee’s conditions in his contest with Bruce is, that these conditions were made a solo rege, by the king only, without the estates of the kingdom, and therefore they did not oblige the kingdom.
In Robert the Brace’s reign, the ninty-seventh king, the succession to the crown is appointed by act of parliament, and twice changed; and in the league with France, Quod quando de successuro rege ambigeretur apud Scotos, ea controversia ab ordinum de creto decideretur.
Robert, the hundredth king, in a parliament at Scoon, moved the states to appoint the earl of Carrick, his eldest son of the second marriage, to the crown, passing his children of the first marriage; and when he would have made a treaty, he was told, that he could not inducias facere nisi ex sententia conventus publici, he could not make truces but with the consent of the estates of parliament.
James I could not do anything in his oath in England. The parliament’s approbation of the battle at Stirling against king James III is set down in the printed acts, because he had not the consent of the states.
To come to our first reformation, the queen regent, breaking her promise to the states, said, “Faith of promise should not be sought from princes;” the states answered, that they then were not obliged to obey, and suspended her government as inconsistent with the duty of princes, by the articles of pacification at Leith, June 16, 1560. No peace or war can be without the states.
In the parliament thereafter, (1560,) the nobility say frequently to the queen, Regum Scotorum limitatum esse imperium, nec unquam ad unius libidinem, sed ad legum praescriptum et nobilitatis consensum regi solitum.
So it is declared, parliament at Stirling, 1578, and parl. 1567, concerning queen Mary, I need not insist here. James VI July 21, 1567, was crowned, the earl of Morton and Hume, jurarunt pro eo, et ejus nomine, in leges, eum doctrinam et ritus religionis, quae tum docebantur, publice quoad posset, servaturum, et contrarios oppugnaturum. (Buch. Rer. Scot. Hist. 1. 18.) The three estates revoke all alienations made by the king without consent of the parliament. Parl. 2, James VI c. 2, 4, 5, 6.
Three parliaments of James II are held without any mention of the king, as 1437, 1438, and 1440, and act 5 and 6 of Parl. 1440, the estates ordain the king to do such and such things, to ride through the country for doing of justice; and Parl. 1, James I act 23, the estates ordained the king to mend his money; but show any parliament where ever the king does prescribe laws to the states, or censure the states.
In Parl. 1, James VI., the Confession of Faith being ratified, in acts made by the three estates, that the kings must swear at their coronation, “In the presence of the eternal God, that they shall maintain the true religion, right preaching, and administration of the sacraments now received and preached within this realm, and shall abolish and gain-stand all false religions contrary to the same, and shall rule the people committed to their charge, according to the will of God, laudable laws, and constitutions of the realm,” etc.
The Parl. 1, James VI., 1567, approves the acts of parliament 1560, conceived only in name of the states, without the king and queen, who had deserted the same; so says the act 2, 4, 5, 20, 28. And so this parliament, wanting the king and queen’s authority, is confirmed, Parl. 1572, act 51, king James VI.; Parl. 1581, act 1; and Parl. 1581, act 115, in which it is declared, “That they have been common laws from their first date.” and are all ratified, Parl. 1587, and 1592, act 1; and stand ratified to this day by king Charles’ parliament, 1633. The act of the Assembly, 1566 commends that parliament, 1560, as the “most lawful and free parliament that ever was in the kingdom.”
Yea, even Parl. 1641, king Charles himself being present, an act was passed upon the occasion of the king’s illegal imprisoning of the laird of Langton: that the king has no power to imprison any member of the parliament without consent of the parliament. Which act, to the great prejudice of the liberty of the subject, should not have been left unprinted; for, by what law the king may imprison one member of the parliament, by that same reason he may imprison two, twenty, and a hundred; and so may he clap up the whole free estates, and where shall then the highest court of the kingdom be?
All politicians say, the king is a limited prince, not absolute; where the king gives out laws, not in his own name, but in the name of himself and the estates judicially convened.
In p. 33 of the old acts of parliament, members are summoned to treat and conclude.
The duty of parliaments, and their power, according to the laws of Scotland, may be seen in the history of Knox, now printed at London (an. 1643), in the nobles’ proceeding with the queen, who killed her husband and married Bothwell, and was arraigned in parliament, and by a great part condemned to death; by many, to perpetual imprisonment.
King Charles received not crown, sword, and scepter, until first he did swear the oath that king James his father did swear. He was not crowned, till one of every one of the three estates came and offered to him the crown, with an express condition of his duty, before he be crowned.
After king Charles said, “I will by God’s assistance bestow my life for your defense, wishing to live no longer than that I may see this kingdom flourish in happiness,” thereafter, the king showing himself on a stage to the people, the popish archbishop said; “Sirs, I do present unto you king Charles, the right descended inheritor, the crown and dignity of this realm, appointed by the peers of the kingdom. And are you willing to have him for your king, and become subject to him?” The king turning himself on the stage, to be seen of the people, they declared willingness, by crying, God save king Charles! Let the king live!
1. Angl. Conf. art. 37. Sed eam tantum prerogativam aquam in sacris Scripturis a Deo ipso omnibus piis princibus semper fuisse tributam, hoc est, ut omnes status atque ordines fidei, suae commisos, fixe illi ecclesiastici sint, sive civiles, in officio contineant, et contumaces ac delinquentes gladio civili coerceant.