Lex Rex, Question 43

Lex Rex · Question 43

p. 433QUEST. XLIII. Whether the King of Scotland be an absolute Prince, having Prerogatives above Parliament and Laws? The Negative is asserted by the Lawes of Scotland, the Kings Oath of Coronation, the Confession of Faith, &c.

THe negative part of this, I hold, in these Assertions.

Assert. 1. The Kings of Scotland have not any Prerogative distinct from Supremacie above the Lawes.The King of Scotland not above Laws and Parliaments, proved from our acts of Parliament. 1. If the People must be governed by no Lawes, but by the Kings own Lawes, that is, the Lawes and Statutes of the Realme acted in Parliament, under paine of disobedience; then must the King governe by no other Lawes, and so by no Prerogative above Law. But the former is an evident truth, by our Acts of Parliament; ergo, so is the latter. The Proposition is confirmed; 1. Because what ever Law enjoyneth passive obedience no way but by Lawes; that must injoyne also the King actively to command no other way but by Law: for to be governed by Law, essentially includeth, to be governed by the Supreme Governour, only by Law. 2. An act of Regall 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 p. 434Law; 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 Parliaments Law, to governe only by Law? I prove the Assumption from Parl. 3. of K. Iames the 1. Act 48. Ordaines, That all and sundry the Kings Lieges be governed under the Kings Laws and Statutes of the Realme allanerly, and under no particular Lawes, or speciall Priviledges, nor by any Lawes of other Countries or Realmes. Priviledges doe exclude Lawes: 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. K. James 4. Act. 79. and ratified Parl. 8. K. Iames 6. Act. 131.

2. The King, at his Coronation, 1. Par. K. James 6. Act. 8. sweareth to maintaine the true Kirk of God, The King of Scotland's oath at his Coronation.and Religion now presently professed, in puritie; And to rule the People according to the Lawes and Constitutions received in the Realme; causing Justice and equitie to be ministred without partialitie. This did King Charles sweare at his Coronation, and ratified Parl. 7. K. Iam. 6. Act. 99. Hence he who by the Oath of God is limited to governe by Law, can have no Prerogative above the Law. If then the King change the Religion, Confession of Faith, authorised by many Parliaments, especially by Parliament, 1. K. Charles, An. 1633. He goeth against his Oath 3. The Kings Royall Prerogative, or rather Supremacie, enacted Parl. 8. K. James 6. Act. 129. and Parl. 18. Act. 1. and Parl. 21. Act. 1. K. Iames, and 1 Parl. K. Charles, Act. 3. cannot, 1. be contrary to the Oath that K. Charles did sweare at his Coronation, which bringeth down the Prerogative, to governing according to the standing Lawes of the Realme. 2. It cannot be contrary to these former Parliaments and Acts, declaring that the Lieges are to be governed by the Lawes of the Realme, and by no particular Lawes and speciall Priviledges: (but absolute Prerogative is a speciall Priviledge above, or without Law) which Acts stand unrepealed to this day: and these Acts of Parliaments stand ratified, An. 1633. the 1 Parl. K. Charles.

3. Parl. 8. K. Iames 6. in the first three Acts thereof, the Kings Supremacie, and the power and authoritie of Parliaments, are equally ratified, under the same paine: Their jurisdictions, power and judgements in Spirituall or Temporall causes, not ratified by His Majestie, and the three Estates conveened in Parliament, are discharged. p. 435But the Absolute Prerogative of the King above Law, Equity, and Iustice, was never ratified in any Parliament of Scotland to this day.

4. Parliam. 12. K. Iames 6. Act. 114. All former Acts in favour of the true Church and Religion, being ratified, Their power of making Constitutions concerning foreign Order and Decency; the Priviledges that God hath given to spirituall Office-bearers, as well of Doctrine and Discipline, in matters of Heresie, Excommunication, Collation, Deprivation, and such like, warranted by the Word of God, and also to Assembles 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 Churches power in all the former heads of Government; in which, Royalists say, The soul of the Kings Absolute Prerogative doth consist: And therefore it must be the true intent of our Parliament, to give the King a Supremacy and a Prerogative Royall (which we also give) but without any Absolutenesse of boundlesse and transcendent power above Law; and not to obtrude a Service-Book, and all the Superstitious Rites of the Church of Rome, without Gods Word, upon us.

5. The former Act of Parliament ratifieth the true Religion, according to the Word of God, then could it never have been the intent of our Parliament, to ratifie an Absolute supremacy, according to which, a King might govern his people, as a Tyrannous Lion, contrary to Deut. 17.18, 19, 20. And 'tis true: The 18. P. of King James 6. Act. 1. and Act. 2. upon personall qualifications, giveth a Royall Prerogative to King James over all causes, persons, and estates, within His Majesties Dominion; whom they humbly acknowledge, to be Soveraign Monarch, Absolute Prince, Judge, and Governour over all Estates, Persons, and Causes.

These two Acts, for my part I acknowledge, spoken rather in Court-expressions, then in Law-termes.

1. Because personall vertues cannot advance a limited Prince (such as the Kings of Scotland, Post hominum memoriam, ever were) to be an Absolute Prince: Personall 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 Iudge, then he was, while he was onelyonly King of Scotland. A wicked Prince is as essentially supreme Iudge, as a godly King.

p. 4362. If this Parliamentary figure of speech which is to be imputed to the times, exalted King James to be Absolute in Scotland, for his personall indowments, there was no ground to put the same on King Charls. Personall vertues are not alway Hereditary, though to me the present King be the best.

3. There is not any Absolutenesse above Law in the Act. 1. The Parliament must be more absolute themselves. King James 6. had been divers yeers before this 18. Parl. King of Scotland; then if they gave him by Law an Absolutenesse, which he had not before, then they were more Absolute. These who can adde Absolutenesse, 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 Royall to be due to him, there is an end, we grant all. But then this which they call Prerogative Royall is no more, then, a power to govern according to Law, and so you adde nothing to King James, upon the ground of his personall vertues, onelyonly you make an oration to his praise in the Acts of Parliament.

4. If this Absolutenesse of Prerogative, be given to the King, the subjects swearing obedience, swear, That he hath power from themselves, to destroy themselves: this is neither a lawfull oath, nor though they should swear it, doth it oblige them.

6. A Supreme Iudge, is a supreme father of all his children, and all their causes; and to be a supreme Father, cannot be contrary to a supreme Iudge: but contrary it must be, if this supremacy make over to the Prince, a power of devouring as a Lyon, and that by a regall priviledge, and by office, whereas he should be a father to save; or if a Iudge kill an ill-doer, though that be an act destructive to one man, yet is it an act of a father to the Common-wealth. An act of supreme and absolute Royaltie is often an act of destruction to one particular man, and to the whole Common-wealth. For example, when the King out of his Absolute Prerogative, pardoneth a murtherer, and he killeth another innocent man, and out of the same ground, the King pardoneth him again, and so till he kill twenty (for by what reason the Prerogative giveth one pardon, he may give twenty, there is a like reason above Law for all.) This act of Absolute Royaltie, is such an act of murther, as if p. 437a shepherd would keep a Woolf in the fold with the sheep, he were guilty of the losse of these sheep. Now an act of destroying, cannot be an act of judging, far lesse of a supreme Iudge, but of a supreme Murtherer; 7. Whereas he is called Absolute Prince, and Supreme Judge, in all Causes, Ecclesiasticall and Civill. It is to be considered, 1. That the Estates professe in these acts,How the King is supreme Iudge in all Causes. not to give any new Prerogative, but onelyonly to continue the old power, and that onelyonly with that amplitude, and freedom, which the King and his Predecessors did enjoy and exerce of before: the extent whereof, is best known from the Acts of Parliament, Histories of the time, and the Oaths of the Kings of Scotland. 2. That he is called Absolute Prince, not in any relation of freedom, from Law, or Prerogative above Law; whereunto as unto the norma, regula, ac mensura potestatis suae, ac subjectionis meae, He is tyed by the Fundamentall Law, and his own Oath, but in opposition to all forraign Iurisdiction or principalitie above him, as is evident, by the Oath of Supremacie set down, for acknowledging of his power in the first Act of Parliament 21. K. Iam. 6. 3. They are but the same expressions, giving onelyonly the same power before acknowledged in the 129. Act. Parl. 8. K. Iam. 6. And that onelyonly 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. K. Iam. 6. Establishing the Authority of Parliaments, equally with the Kings, and discharging all Iurisdictions (al…eit granted by the King) without their Warrant; as also by the Narrative Depositive words, and certification of the Act it self: otherwayes, the Estates convened in Parliament, might by vertue of that Act, be summoned before, and censured by the Kings Majestie or His Councell a Iudicatory substitute be, subordinate to, and censurable by themselves, which were contrary to sense and reason. 4. The very termes of Supreme Iudge, and in all Causes, according to the nature of Correlates, presupposeth Courts, and judiciall Proceedings and Laws, as the ground work and rule of all, not a freedom from them. 5. The sixth Act of the twenty Parliament, K. Iac. 6. Cleerly interpreteth what is meant by the Kings Iurisdiction in all Spirituall and Ecclesiastick Causes: to wit, to be onelyonly in the Consistoriall Causes of Matrimony, Testaments, Bastardy, Adulteries, abusively called Spirituall Causes, because p. 438handled in Commissary Courts, wherin the King appoints the Commissary, his Deputies, and makes the Lords of the Session his great Consistory in all Ecclesiasticall Causes, with reservation of his Supremacy and Prerogative therein.

7. Supreame Iudge in all causes, cannot be taken Quoad actus elicitos, as if the King were to judge between two Sea-men, or two Husband-men, or two Trades-men, in that which is proper to their Art; or between two Painters: certainly the King is not to Iudge which of the two draweth the fairest Picture, but which of the two wasteth most gold on his Picture, and so doth interest most of the Common-wealth. So the King cannot judge in all Ecclesiasticall Causes, that is, he cannot, Quoad actos elicitos, prescribe this Worship: for example, the Masse, not the Sacrament of the Lords Supper. Therefore the King hath but Actus imperatos, some Royall Politicall 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 Iudge in matters that belong to the Colledge of Iudges by the Lawes of Scotland, the Lords of Session onelyonly may judge these maters. K. Iames, 1. Parl. 2. Act. 45. K. Iames 3. Par. 8. Act 62. K. Iames 3. Par. 4. Act. 105. K. I. 1. Parl. 6. Act. 83. K. I. 1. Par. 6 Act. 86. K. I. 5. Par. 7. Act. 104. and that only according to Law, without any remedy of appellation to King or the Parliament, Act 62, and 63. Par. 14. K. I. 2. And the King is by Act of Parliament inhibited to send any private letter to stay the Acts of Iustice; or if any such letter be procured, the Iudges are not to acknowledge it, as the Kings Will, for they are to proceed unpartially according to Iustice, and are to make the Law, which is the King and Parliaments publick revealed will, their rule, King I. 5. Parl. 5. Act. 68. K. Ia. 6. Part. 8. Act. 139. and K. I. 6. Par. 6. Act. 92. most lawfull. Nor may the Lords suspend the course of Iustice, or the sentence or execution of Decrees upon the Kings private letter. King I. 6. Parl. 11. Act 79. and K. Iam. 6. Par. 11. Act 47. and so if the Kings 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 supreame Iudge, Quoad actus elicitos, in all causes, nay not if the King have a Cause of his owne that concerneth Lands of the Crowne; farre lesse can the King have a will of Prerogative above the Law by our Lawes of Scotland: p. 439And therefore, when in the eighth Parliament King Ia. 6. the Kings Royall Power is established in the first Act, the very next act immediatly subjoyned thereunto declareth the authority of the supreame 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 Kingdome, which in the Parliament 1606. is called, The ancient and fundamentall policy of this Kingdome; and so fundamentall, as if it should be innovate, such confusion would ensue, as it could no more be a free Monarchy, as is exprest in the Parliaments printed Commission, 1604. by whom the same under God hath been upholden, rebellious and traiterous subjects punished, the good and faithfull preserved and maintained, and the Lawes and Acts of Parliament (by which all men are governed) made and established, and appointeth the Honour, Authority, and Dignity of the Estates of Parliament to stand in their owne integrity, according to the ancient and laudable custome by past, without alteration or diminution, and therefore dischargeth any to presume or take in hand, To impugne the dignity, and the authority of the said Estates, or to seeke, or procure the innovation, or diminution of their power or authority under the paine of Treason: and therefore in the next Act, they discharge all Iurisdictions, or Judicatories (albeit appointed by the Kings Majesty, as the High Commission was,) without their Warrant and approbation; and that as contrary to the fundamentall Laws, above titled, 48. Act. Parl. 3. K. Ia. 1. and Act. 79. Parl. 6. King Ia. 4. whereby the Lieges should only be ruled by the Lawes or Acts, past in the Parliament of this Kingdome. 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 produced; In the meane time remember that in Parliament and by Act of Parl. K. Ia. 6. for observing the due order of Parliament, promiseth, never to doe, or command any thing, which may directly or indirectly prejudge the libertie of free reasoning or voting of Parliament. K. Ia. 6. Parl. 11. Act. 40. And withall, to evidence the freedome of the Parliament of Scotland, from that absolute unlimited Prerogative of the Prince; and their libertie to resist his breaking of Covenant with them, or Treaties with forraigne Nations; Ye shall consider, 1. That the Kings of Scotland are obliged▪ before they be inaugurate, p. 440to sweare and make their faithfull Covenant to the true Kirk of God, that they shall maintaine, defend, and set forward the true Religion confessed and established within this Realme; even as they are obliged and astricted by the Law of God, aswell in Deuteronomie, as in the 11 chap. of the 2. book of the Kings; and as they crave obedience of their subjects. So that the bond and contract shall be mutuall and reciprocall, in all time comming, between the Prince and the People, according to the Word of God; as is fully exprest in the Register of the convention of Estates, Iuly 1567.

2. That important Acts and Sentences at home, (whereof one is printed, 112 Act. Parl. 14. K. Ia. 3.) and in Treaties with Forraigne Princes, the Estates of Parliament did append their severall Seales with the Kings Great Seale,The Estates of Parliament do append their collaterall Seales with the Great Seal, in Treaties with forraigne Princes. (which to Grotius, Barclaius, and Arnisaeus, is an undeniable argument of a limited Prince, as well as the stile of our Parliament, that the Estates with the King, ordaine, ratifie, rescind, &c.) as also they were obliged, in case of the Kings breaking these Treaties, to resist him therein, even by armes, 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, &c. But to goe on, and leave some high mysteries unto a rejoynder.

And to the end I may make good, 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 Syntagme and body of the Confessions, at Geneva, anno MDCXII. and authorized by King Iames the 6. and the three Estates in Parliament; and printed in our Acts of Parliament, Parl. 15. K. Iames 6. An. 1567. Amongst good works of the Second Table, saith our Confession, art. 14. are these: To honour Father, Mother, Princes, Rulers, and superiour Powers: To love them, to support them, yea to obey their Charge, (not repugning to the commandement of God) to save the lives of innocents, to represse Tyrannie, to defend the oppressed, to keep our bodies cleane and holy, &c. The contrary whereof is, To disobey or resist any that God hath placed in Authoritie, (while they passe not over the bounds of their office) to murther, or to consent thereunto, to beare hatred, or to let innocent blood be shed, if we may withstand it, &c. Now the Confession citeth in the margin, Ephes. 6.1.7. and Ezek. 22.1, 2, 3, 4, &c. where it is evident, by the name of Father and Mother, p. 441all inferiour Iudges as well as the King, and especially the Princes, Rulers, and Lords of Parliament are understood. 2. Ezek. 22. The bloody City is to be judged, because they releeved not the oppressed out of the hand of bloody Princes, v. 6. who every one of them were to their power to shed innocent blood. 3. To resist superiour powers, and so the Estates of Parliament, as the Cavaliers of Scotland doe, is resistance forbidden, Romans 13.1. the place is also cited in the confession. And the Confession exponeth the place, Romans 13. according to the interpretation of all sound Expositers; as is evident in these words, Art. 24. And therefore we confesse and avouch, that such as resist the supreame power, doing that thing which appertaineth to his charge, doe resist Gods ordinance, and therefore cannot be guiltlesse. And further we affirme, that whosoever denyeth unto them aide, their counsell and comfort, while as the Princes and Rulers vigilantly travell in execution of their Office, that the same men deny their helpe, support and counsell to God, who by the presence of his Lieutenant craves it of them. From which words we have cleare:

1. That to resist the King or Parliament, is to resist them, while as they are doing the thing that appertaineth to their charge, and while they vigilantly travell in the execution of their office. But while King and Parliament doe acts of Tyranny against Gods Law, and all good Lawes of men, they doe not the things that appertaine to their charge and the execution of their Office; ergo by our confession, to resist them in Tyrannicall acts is, not to resist the ordinance of God.

2. To resist Princes and Rulers, and so inferiour Iudges, and to deny them counsell and comfort, is to deny helpe, counsell, and comfort to God. Let then Cavaliers, and such as refuse to helpe the Princes of the Land against Papists, Prelates, and Malignants know, that they resist Gods ordinance, which rebellion they unjustly impute to us.

3. Whereas it is added in our Confession, that God by the presence of his Lieutenant craveth support and counsell of the people. It is not so to be taken, as if then only we are to ayde and helpe inferiour Iudges and Parliaments, when the King personally requireth it, and not other waies.

1. Because the King requireth helpe, when by his Office he is obliged to require our helpe and counsell against Papists and Malignants, though as misled, he should command the contrary: so if the Law require our helpe, the King requireth it ex officio.

2. This should expresly contradict our confession, if none were p. 442obliged to give helpe and counsell to the Parliament and Estates, except the King in his own person should require it, because Art. 14. it is expresly said, That to save the lives of innocents, or represse Tyranny, to defend the oppressed, —not to suffer innocent blood to be shed; or workes pleasing to God, which he rewardeth. Now we are not to thinke in reason, if the King shall be induced by wicked Counsell, to doe tyrannicall workes, and to raise Papists in Armes against Protestants, that God doth by him as by his Lieutenant, require our helpe, comfort and counsell, in assisting the King in acts of Tyranny, and in oppression, and in shedding innocent blood; yea our confession tyeth us to deny helpe and comfort to the King in these wicked acts, and therefore our helpe must be in the things that pertaineth to his Royall Office, and duty only; otherwise we are to represse all tyranny, art 14.

4 To save the lives of innocents, to represse Tyranny, to defend the oppressed, are by our confession good workes, well pleasing to God, and so is this a good worke, not to suffer innocent blood to be shed, if we may withstand it. Hence it is cleare as the Sunne, that our confession according to the Word of God, to which King Charles did sweare at his Coronation, doth oblige and tye us in the presence of God, and his holy Angels to rise in Armes, to save the innocent, to represse Tyranny, to defend the oppressed. When the King induced by ill counsell sent Armies by Sea and Land, to kill and destroy the whole Kingdome who should refuse such a Service-booke, as they could not in conscience receive, except they would disobey God, renounce the confession of Faith, which the King and they had sworne unto, and prove perfidious Apostates to Christ and his Church, what could we doe, and that the same Confession, considering our bonds to our deare Brethren in England, layeth bonds on us, to this as a good worke also, not to suffer their innocent blood to be shed, but to defend them; when they against all Law of God, of men, to State, of Nations, are destroyed and killed. For my part, I judge, it had been a guiltinesse of blood upon Scotland, if we had not helped them, and risen in Armes to defend our selves, and our innocent brethren against bloody Cavaliers. Adde to this what is in the 24. Article of the same Confession.

We confesse—whosoever goeth about to take away, or to confound the whole state of Civill Polity, now long established; we affirme the same men, not only to be enemies to mankind, but also wickedly to fight p. 443against Gods Will. But these who have taken Armes against the Estates of Scotland, and the Princes and Rulers of the Land, have laboured to take away Parliaments, and the fundamentall Lawes of this Kingdome, ergo &c.

The Confession addeth, 16. We farther confesse and acknowledge, that such persons as are placed in authority, are to be loved, honoured, feared, and holden in most reverent estimation; because that they are Lieutenants of God, in whose Sessions God himselfe doth sit and Iudge: yea even the Iudges and Princes themselves, to whom by God is given the sword, to the praise and defence of good men, and to revenge and punish all open malefactors. Ergo the Parliament, and Princes, and Rulers of the Land are Gods Lieutenants on earth, no lesse then 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 doe contrary to his Royall Will, they may be resisted, yea and killed, for in so farre they are private men, though they are to be honoured as Iudges, when they act according to the Kings Will whose Deputies they are. But I answer:

1. It is a wonder that inferiour Judges should be formally Iudges, in so far as they act conforme to the will of a mortall King, and not in so far as they act conforme to the will of the King of Kings, seeing the judgement they execute is the King of Kings, and not the Iudgement of a mortall King, 2 Chro. 19.6.

2. Royalists cannot indure the former distinction as it is applyed to the King, but they receive it with both hands, as it is applyed to inferiour Iudges; and yet certaine it is, that it is as ordinary for a King being a sinfull man, to act sometimes as the Lieutenant of God, and sometimes as an erring and misinformed man, no lesse then the inferiour Iudge acteth sometimes according to the Kings will and Law, and sometimes according to his owne private way; and if we are to obey the inferiour Iudge as the Deputy of the King, what shall become of his Person, when Cavaliers may kill him at some Edge-hill? for so they mock this distinction, as applyed to the King in regard of his Person, and of his Royall Office; and for this point our Confession citeth in the Margin. Rom. 13.7. 1 Pet. 2.17. Psal. 82.1. which places doe clearely prove: 1. That inferiour Magistrates are: 1. Gods ordinances. 2. Gods on earth, Psal. 82. 3. Such as beare the Lords sword. 4. That they are not only (as the Confession saith) appointed for Civill p. 444policie, but also for maintenance of true Religion, and for suppressing of idolatrie and superstition. Then it is evident, to resist inferior Magistrates, is to resist God himselfe, and to labour to throw the sword out of Gods hands. 5, Our Confession useth the same Scriptures cited by Junius Brutus, to wit, Ezek. 22.1, 2, 3, 4, 5, 6, 7. and Ier. 22.3. where we are, no lesse then the Iewes, commanded to execute judgement and righteousnesse, and deliver the spoyled out of the hands of the oppressour. For both the Law of God, and the Civill Law saith, Qui non impedit homicidium, quum potest, is homicidii reus est. I will cast in a word of other Confessions, lest we seeme to be Iesuites alone.

The Confession of Helvetia saith, c. 30. de Magistratu.—Viduas, pupillos, afflictos asserat: Every Magistrate is to defend the widow, the orphan, and the oppressed. The French Confession saith, art. 40. Affirmamus ergo parendumesse Legibus & Statutis, solvenda Tributa, subjectionis denique jugum voluntariè tolerandum, etiamsi infideles fuerint Magistratus, dummodo Dei summum imperium integrum & illibatum maneat. So cleare it is, that all active obedience, is due to all Magistrates, and that that yoake of passive obedience is to be tolerated, but conditionally, with a dummodo, so as the Magistrate violate not the supreme commandement of the King of Kings. And we know accordingly,Angl. Conf. art. 37. Sed eam tantum Prerogativam aquam in sacris Scripturis à Deo ipso omnibus piis Princi…us semper fu…sse tributam, …oc est, ut om…es status at que …rdin…s fidei, …ive comm…ssos, …xe illi ecclesi…st…ci sint, sive …iviles, in officio …ontineant, & …ontumaces a… …clinquentes …ladio civili …er…c…nt. Protestants of that Church have taken defensive armes against their King. But our P. Prelate can say, The Confessions of Scotland, Helvetia, France, and all the Reformed Churches, are Jesuiticall: when as it was the doctrine of the Waldenses, Protestants, and Luther, Calvin and others, while as there was no Iesuite on earth.

The 37. Art. of the Church of Englands Confession, is so far from erecting an absolute power in the King, that they expresly bring down the Royall Prerogative from the high seat and transcendent superlative power above the Law; and expone the Prerogative to be nothing but meere Law-power. We only (say they) ascribe that Prerogative to the King, which the Scripture doth ascribe to all Godly Princes, that is, that they cause all committed to their trust, whether Ecclesiasticall or Civill persons, doe their duty; and punish with the Civill sword, all disobedient offenders. In syntag. Confess. And this they say in answer to some, who beleeved, the Church of England made the King the Head of the Church. The Prelates Convocation must be Iesuites to this P. P. also.

p. 445So the 36. Article of the Belgick Confession, saith of all Magistrates, no lesse then of a King, (We know, for Tyrannie of Soule and Body, they justly revolted from their King.) Idcirco Magistratus ipsos gladio armavit, ut malos quidem plectant paenis, probos vero tueantur. Horum porro est, non modo de Civili politia conservanda esse solicitos, verum etiam dare operam ut sacrum Ministerium conservetur, omnis, Idololatria & adulterinus Dei cultus è medio tollatur, regnum Antichristi diruatur, &c. Then all Magistrates, though inferiour, must doe their duty, that the Law of God hath laid on them, though the King forbid them. But by the Belgick Confession, and the Scripture, it is their duty to relieve the oppressed, to use the sword against murthering Papists, and Irish Rebels, and destroying Cavaliers. For, shall it be a good plea in the day of Christ, to say, Lord Iesus, we would have used thy sword against bloody Murtherers, if thy Anoynted, the King, had not commanded us to obey a mortall King rather than the King of ages; and to execute no judgement for the oppressed, because he judged them faithfull Catholike subjects. Let all Oxford, and Cavalier Doctors in the three Kingdomes, satisfie the consciences of men in this, that inferior Iudges are to obey a Divine Law, with a proviso, that the King command them so to doe; and otherwise they are to obey Men rather then God. This is evidently holden forth in the Argentine Confession, exhibited by foure Cities to the Emperour Charles the Fifth, An. M.D.XXX. in the same very cause of innocent Defence, that we are now in, in the three Kingdomes of Scotland, England, and Ireland.

The Saxonick Confession, exhibited to the Councell of Trent, An. M.D.LI. art. 23, maketh the Magistrates office essentially to consist in keeping of the two Tables of Gods Law: and so what can follow hence, but in so far as he defendeth Murtherers: or if he be a King, and shall with the sword, or Armies, impede inferior Magistrates (for the Confession speaketh of all) to defend Gods law, and true Religion, against Papists, Murtherers, and bloody Cavaliers; and hinder them to execute the judgement of the Lord against evill 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 himselfe must resist the ordinance of God.

The Confession of Bohemia is clear, art. 16. Qui publico munere magistratu que funguntur, quemcun que gradū teneant, se non suum, sed Dei p. 446opus agere sciant. Hence all inferior, or the supreme Magistrate, what ever be their place, they doe not their own work, nor the work of the King, but the work of God, in the use of the sword, Ergo, they are to use the sword against bloody Cavaliers, as doing Gods worke: suppose the King should forbid them to doe Gods worke. And it saith of all Magistrates: Sunt autem Magistratuum partes ac munus, omnibus ex aequo jus dicere, in communem omnium usum, sine personarum acceptatione, pacem ac tranquilitatem publicam tueri ac procurare de malis ac facinorosis, hanc inter turbantibus poenas sumere, alios que omnes ab eorum vi & injuria vindicare. Now this Confession was the faith of the Barons and Nobles of Bohemia, who were Magistrates, and exhibited to the Emperor, An. 1535. in the cause not unlike unto ours now: and the Emperor was their Soveraigne: yet they professe 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 performe as a worke of God: and the Christian Magistrate is not to doe that worke, which is not his own, but Gods, upon condition that the King shall not inhibite him. What if the King shall inhibite 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 to hinder his Majestie to indict a Parliament. 2. When it was indicted, to have its freedome destroyed by prelimitations. 3. When it was sitting, their care was to divide, impede, and anull the course of Iustice. 4. All in the P. Prelates booke tendeth to abolish Parliaments, and to enervate their power. 5. There were many wayes used to break up Parliaments in England; And to command Iudges not to judge at all, but to interrupt the course of Iustice, is all one as to command unrighteous judgement, Ier. 22. v. 3. 6. Many wayes have been used by Cavaliers, to cut off Parliaments, and the present Parliament in England.

The paper found in William Lauds Studie, touching feares and hopes of the Parliament of England, W. Laud and other Prelates enemies to Parliaments.evidenceth that Cavaliers hate the Supreme seat of Iustice, and would it were not in the World; which is the highest rebellion and resistance made against superior Powers.

1. He feareth, this Parliament shall begin where the last left.

p. 447Ans. What ever ungrate Courtier had hand in the death of King Iames, deserved to come under Tryall.

2. He feareth they sacrifice some man.

Ans. If Parliaments have not power to cut off Rebels, and corrupt Iudges, the root of their being is undone. 2. If they be lawfull Courts, none needeth feare them, but the guilty.

3. He feareth their Consultations be long, and the supply must be present.

Ans. Then Cavaliers intend Parliaments for Subsidies to the King, to foment, and promote the warre against Scotland, not for Iustice. 2. He that feareth long and serious consultations, to rip up and launce the wounds of Church and State, is affraid that the wounds be cured.

4. He feareth 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 occasionall Rents, given upon occasion of Warre, 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 Royall Honour, but they are given by the Kingdome, rather to the Kingdome, then to the King for the present warre, or some other necessity of the Kingdome, 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 judiciall sentence, of the States; and they are not sold to the King, but given out by the Kingdome, by Statute of Parliament, to be bestowed on the Kingdome, and the King should sell no Acts of Justice for Subsidies.

5. He dare not speake of the consequences, if the King grant Bills of Grace, and part with the flowers of the Crowne. Ans. He dare not say, The people shall vindicate their liberty by selling Subsidies, to buy branches of the Prerogative Royall, and diminishing the Kings fancied absolutenesse: so would Prelates have the King absolute, that they may ride over the soules, purses, persons, estates, and Religion of men upon the horse of pretended absolutenesse.

6. He feareth the Parliament fall upon Church businesse; but 1. The Church is too weake already, if it had more power, the King p. 448might have more, both obedience and service. 2. The Houses can be no competent Iudges in point of Doctrine. 3. For the King, Clergy, and Convocation are Iudges in all causes Ecclesiasticall.

Ans. 1. This striketh at the root of all Parliamentary power, 1. The P. P. giveth them but a poore deliberative power in Subsidies, and that is, to make the Kings Will a Law, in taking all the subjects goods from them, to foment warre against the subjects. 2. He taketh all jurisdiction from them …ver Persons, though they were as black Traitors as breathe. 3. And spoileth them of all power in Church matters, to make all Iudges, yea and the King himselfe yield blind obedience to the Pope and Prelate, and their illuminated Clergie. Sure I am, P. Maxwell imputeth this, but most unjustly, to Presbyteries. What essentiall and fundamentall priviledges are left to Parliaments? David, and the Parliament of Israel are impertinent Iudges in the matter of bringing home the Ark of God. And for the Churches weaknesse, that is, the weaknesse of the damned Prelates, shall this be the Kings weaknesse? Yes, the P.P. must make it true, No Bishop, no King.

7. He feareth, factious spirits will take heart to themselves, if the King yield to them without any submission of theirs.

Ans. The Princes and Iudges 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 breake up the Parliament, because they refuse Subsidies, that he may be a lawlesse way extort Subsidies.

8. He desireth the Parliament may sit a short time, that they may not well understand one another.

Ans. He loveth short, or no justice from the Parliament, he feareth they reforme Gods house, and execute justice on men like himselfe. But I returne to the Scotish Parliament.

Assert. 2. The Parliament is to regulate the power of the King. The heritable Sheriffes complaine,The Parliaments of Scotland doe regulate, limit, and set bounds to the Kings power. that the King granteth Commissions to others, in cases perteining to their office. Whereupon, the Estates, Par. 6. K. Iam. 5. Act. 82. dischargeth all such Commissions, as also appointeth that all Murtherers be judged by the Iustice generall only. And in severall Acts the King is inhibited to grant pardons to malefactors. K. Ia. 6. Act. 75. P. 11.

It is to be considered, that King Iames in his Basilicon Doron, layeth down an unsound ground, that Fergus the first father of 107 Kings of Scotland, conquered this Kingdom. The contrary whereof p. 449is asserted by Fordome, Major, Boethius, Buchannan, Hollanshed; who run all upon this Principle, That the Estates of the Kingdome did, 1. Choose a Monarchie, and freely, and no other Government. 2 That they freely elected Fergus to be their King. 3. King Fergus frequently conveened the Parliament, called, In…ulanorum Duces, Fergus the first King of Scotland no Conquerour, but a freely elected Prince. A fundamentall Law of elective Kings in Scotland.Tribuum Rectores, Majorum consessus, Conventus Ordinum, conventus Statuum, Communitatum Regni, Phylarchi, Primores, Principes, patres, and as Hollanshed saith, they made Fergus King, therefore a Parliament must be before the King; yea and after the death of King Fergus, Philarchi coeunt concione advocatâ, the Estates convened without any King, and made that fundamentall Law Regni electivi, That when the Kings Children were minores, any of the Fergusian Race might be chosen to Reigne: and this indured to the daies of Kennethus: and Redotha, Rex. 7. resigneth and maketh over the Government into the hands of the Parliament,The Parliaments of Scotland chosed Kings. and Philarchi & Tribuum Gabernatores ordained Therius the 8. King. Buchanan, l. 4. Rer. Scot. calleth him Reutha, and said he did this, Populo egrè permittente, then the Royall Power recurred to the fountaine. Therius the 8. a wicked man, filled the Kingdome with Roberies fearing that the Parliament should punish him, fled to the Britaines, and thereupon the Parliament choose Connanus to be Prorex, and protector of the Kingdome.

Finnanus R. 10. Decreed; Ne quid Reges, quod majoris esset momenti, nisi de publici consilii authoritate juberent, & ne domestico consilio remp. administrarent, regia publicaque negotia non sine patrum consultatione ductu que tractarentur, nec bellum pacem aut faedera reges per se patrum, Tribuumve, Rectorum injussu facerent, demerentue. Then it is cleare, that Parliaments were consortes imperii, and had Authority with, and above the King. When a Law is made that the Kings should doe nothing, Injussu rectorum tribuum, without commandement of the Parliament, a Cabinet Counsell was not lawfull to the Kings of Scotland. So Durstus Rex XI. sweareth to the Parliament, Se nihil nisi de primorum consilio acturum. That he shall doe nothing but by counsell of the Rulers and Heads of the Kingdome.

The Parliament rejecting the lawfull sonne of Corbredus the 20, King, because he was young, created Dardanus the sonne of Metellanus King, which is a great argument of the power of the Scottish Parliament of old for elective, rather then hereditary Kings.

p. 450…he Oath of …aldus the 21. …ing of Scot…nd.Corbredus secundus, called Galdus, the 21, King, at his Coronation renouncing all negative voices, did sweare, So majorum consiliis acquieturum, That he should be ruled by the Parliament; and it is said, Leges quasdam tollere non potuit, adversante multitudine.

Kings of Scot…and censured …nd punished …y the Parlia…ent.Lactatus R. 22. is censured by a Parliament, Quod spreto majorum consilio, He appointed base men to publick Offices.

Mogaldus R. 23. Ad consilia seniorum omnia ex prisco more rev… cavit, did all by the Parliament, as the ancient custome was.

Conarus 24. K. was cast in Prison by the Parliament, Quod non expectato decreto patrum, quod summa orat potestatis, privatis consiliis administrasset, Because he did the weightiest businesse that concerned the Kingdome, by private advice, without the judiciall Ordinance of Parliament, that was of greatest authority. Where is the negative voice of the King here?

Ethodius 2. the sonne of Ethodius the 1. the 28. King. (The Parliament passing by his son of the first Bed, because he was a child, had created Satrael his Brother King before) a simple ignorant man,Kings of Scotland of old had no negative voyce. yet for reverence to the race of Fergus, kept the name of a King, but the Estates appointed Tutors to him, he was the 28. King.

Nathalocus the 30. K. corrupting the Nobles with buds and faire promises, obtained the Crowne.

Romachus, Fethelmachus, and Angusianus, or as Buchanan calleth him Aenneannus, contended for the Crowne, the Parliament convened to judge the matter, was dissolved by tumult, and Rommachus chosen King, doing all, Non adhibito, de more, consilio majorum, was censured by the Parliament.

Fergus the 2. was created King by the States, De more.

Constantine 43. K. a most wicked man, was punished by the States.

Aidanus 49. K. by the counsell of Sanctus Columba, governed all in peace, by three Parliaments every yeare.

Ferchardus 52. K. and Ferchardus 2. the 54. King, were both censured by Parliaments.

Eugenius 62. K. a wicked Prince, was put to death by the Parliament, Omnibus in ejus exitium, consentientibus.

Eugenius 7. the 59. K. was judicially accused, and absolved by the States, of killing his Wife Spondan….

Donaldus the 70. K. is censured by a Parliament which convened p. 451Pro salute Reipublica, for the good of the Land. So Ethus the 72. K. Ne unius culpâ, regnum periret.

Gregorius the 73. K. sweareth to maintaine Kirk and State in their liberties; the Oath is ordained to be sworne by all Kings at their Coronation.

The Estates complaine of Duffus 78. K. because contemning the counsell of the Nobles, Saerificulorum consiliis abduceretur, and that neither the Nobility must depart the Kingdome, or another King must be made.

Culenus the 79. King, was summoned before the Estates, so before him Constantine the 3. the 75. K. did by Oath resigne the Kingdome to the States, and entered in a Monastery at Saint Andrewes.

Kenethus the 70. K. procured almost, per vim, saith Buchanan, Buchan Res. Scot. l. 7.that the Parliament should change the elective Kings in hereditary; observe the Power of Parliaments.

After this Grimus, and then Macbethus, Coronation Oath.R. 85. is rebuked for governing by private counsell, in his time the King is ordained by the States, to sweare to maintaine the community of the Kingdome.

When Maccolumbus the 92. King would have admitted a Treaty to the hurt of the Kingdome; the Nobles said, Non jus esse Regi, the King had no right to take any thing from the Kingdome, Nisi omnibus Ordinibus consentientibus. In the time of Alexander the 94. K. is ordained, Acta regis oporteri confirmari decreto ordinum regni, quia ordinibus regni non consultis, aut adversantibus, nihil quod ad …otius regnistatum attinet, Regi agere liceret. So all our Historians observe, by which it is cleare, that the Parliament, not the King hath a negative voyce.

The States answer to K. Edwards Legates concerning Balzees conditions in his contest with Bruce is, That these conditions were made a solo Rege, by the King only, without the estates of the Kingdome, and therefore they did not oblige the Kingdome.

In Robert the Bruce his Raigne,Parliament… of Scotland by Law are to decide who should raigne. the K. 97. the succession to the Crowne is appointed by Act of Parliament, and twice changed; and in the League with France, Quod quando de successuro rege ambigeretur apud Scot…s, ea controversia ab Ordinum de creto decideretur.

Robert the …00. K. in a Parliament at Sc…ne moved the States, p. 452to appoint the Earle of Carick his eldest sonne, of the second Mariage to the Crowne, passing his children of the first Mariage; and when he would have made a Treatie, 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.

K. James the 1. could not doe any thing in his Oath in England. The Parliaments approbation of the Battell at Stirling against King Iames the 3. is set downe in the printed Acts, because he had not the consent of the States.

To come to our first Reformation, Queene 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, Anno 1560. Iunii 16. No peace or warre can be without the States.

In the Parliament thereafter, Anno 1560. the Nobility say frequently to the Queene, Regum Scotorum limitatum esse imperium, nec unquam adunius libidinem, sed ad legum praescriptum & nobilitatis consensum regi solitum.

So it is declared, Parliament at Stirling, 1578. and Parl. 1567, concerning Queene Mary, I need not insist here. K. James the 6. Anno 1567. Iul. 21. was Crowned, the Earle of Morton and Humne, jurarunt pro …o, & ejus nomine, in leges, eum doctrinam & ritus religionis, quae tum docebantur, publicè quoad posset, servaturum, & contrarios oppugnaturum. Buch. Rer. Scot. Hist. l. 18. The three Estates revoke all alienations made by the King without consent of the Parliament. Parliam. K. Iames, 2. cap. 2. K. Iames, 4, 5, 6.

Three Parliaments of K. Iames the 2. are holden without any mention of the King, as Anno 1437. Anno 1438. Anno 1440. and the 5. and 6. Act of Parl. 1440. the Estates ordaine the King to doe such and such things, to ride through the country for doing of Iustice. And Parl. 1. K. Iames 1. Act. 23. the Estates ordained the King to mend his money. But shew any Parliament where ever the King doth prescribe Lawes to the States, or censure the States.

In the 1. Parl. of K. Iames the 6. the Confession of Faith being ratified, in Acts made by the three Estates, that the Kings must sweare at their Coronation. In the presence of the eternall God, that they shall maintaine the true Religion, right Preaching, and administration p. 453of the Sacraments now received and preached within this Realme: 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 Lawes and Constitutions of the Realme, &c.

The 1. Parl. of K. Iames the 6. 1567. approveth the Acts, Parl. 1560. conceived only in name of the States, without the King and Queen, who had deserted the same. So saith the Act, 2.5.4.20.28. And so this Parliament, wanting the King and Queenes authoritie, is confirmed, Parl. 1572. Act. 51. K. Ia. 6. and Parl. 1581. Act. 1. and Parl. 1581. Act. 115. in which it is declared, That they have been Common lawes from their first Date: and all are ratified, Parl. 1587. and Parl. 1592. Act. 1. and stand ratified to this day, by K. Charles his Parliament, An. 1633. The Act of the Assemblie, 1566. commendeth that Parliament, 1560. as the most lawfull and free Parliament that ever was in the Kingdome.

Yea, even Parl. 1641. King Charles himselfe being present, an Act was passed upon the occasion of the Kings illegall imprisoning of the Laird of Langtoune, That the King hath no power to imprison any Member of the Parliament, without consent of the Parliament: Which Act, to the great prejudice of the libertie 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, and twenty, and a hundreth: and so may he clap up the whole Free Estates; and where shall then the highest Court of the Kingdome be?

All Polititians say, The King is a limited Prince, not absolute; where the King giveth out Lawes, not in his own name, but in the name of himselfe, and the Estates judicially conveened.

Pag. 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 Historie of Knox, now printed at London, An. 1643. in the Nobles proceeding with the Queen, who killed her Husband, and maried Bodwell, and was arraigned in Parliament, and by a great part condemned to death, by many, to perpetuall imprisonment.

King Charles received not Crown, Sword, and Scepter, while first he did sweare the Oath, that King Iames his Father did sweare. p. 4542. He was not crowned, till one of every one of the three Estates came and offered to him the Crown. 3. With an expresse condition of his duty, before he be crowned.

After, King Charles said, I will by Gods assistance bestow my life for your defence, wishing to live no longer, then that I may see this Kingdome flourish in happinesse. Thereafter the King shewing himselfe on a Stage to the people, the P. Archbishop said; Sir, I doe present unto you, King Charles, the right descended inheritor, the Crown, and dignitie of this Realme; appointed by the Peeres of the Kingdome: And, Are ye not willing to have him for your King, and become subject to him? The King turning himselfe on the stage, to be seen of the People, They declare their willingnesse, by crying, God save King Charles! Let the King live!