cast down the high places, the king of Nineveh compelled to obey the prophet Jonah, Darius cast Daniel's enemies to the lions.

P. Prelate. If you make two sovereigns and two independents, there is no more peace in the state, than in Rebecca's womb, while Jacob and Esau strove for the prerogative.

Ans. 1.-What need Israel strive, when Moses and Aaron are two independents? If Aaron make a golden calf, may not Moses punish him? If Moses turn an Ahab, and sell himself to do wickedly, ought not eighty valiant priests and Aarons both rebuke, censure, and resist?

2. The P. Prelate said, (p. 65,) "Let no man imagine we privilege the king from the direction and power of the church, so he be no intruding Uzziah." I ask, P. Prelate, what is this church power? Is it not supreme in its kind of church power? or is it subordinate to the king? If it be supreme, see how P. Prelate maketh two supremes, and two sovereigns. If it be subordinate to the king, as he is a mixed person, the king is privileged from this power, and he may intrude as Uzziah; and by his prerogative, as a mixed person, he may say mass, and offer a sacrifice, if there be no power above his prerogative to curb him. If there be none, the P. Prelate's imagination is real; the king is privileged from all church power. Let the P. Prelate see to it. I see no inconvenience for reciprocations of subjections in two supremes; and that they may mutually censure and judge one another.

Obj.-Not in the same cause, that is impossible. If the king say mass, shall the church judge and censure the king for intrusion? and because the king is also sovereign and supreme in his kind, he may judge and punish the church for their act of judging and censuring the king; it being an intruan intrusion on his prerogative, that any should judge the highest judge.

Ans.-The one is not subject to the other, but in the case of mal-administration; the innocent, as innocent, is subject to no higher punishing; he may be subject to a higher, as accusing, citing, &c. Now, the royalist must give instance in the same cause, where the church faileth against the king and his civil law; and the king, in the same cause, faileth against the church canon; and then it shall be easy to answer.

P. Prelate.-Religion is the bottom of all happiness, if you make the king only to execute what a presbytery commandeth, he

is in a hard case, and you take from him the chiefest in government. Ecclesiastical power hath the soul in subjection; the civil sovereignty holdeth a dead dominion over the body. Then the Pope and presbytery shall be in a better condition than the king. Cic. in ver. omnes religione moventur: superstition is furious, and maddeneth people, that they spare neither crown nor mitre.

Ans.-Cold and dry is the P. Prelate when he spendeth four pages in declamation for the excellency of religon: the madness of superstition is nothing to the pur

pose.

1. The king hath a chief hand in church affairs, when he is a nurse-father, and beareth the royal sword to defend both the tables of the law, though he do not spin and weave surplices, and other base mass-clothes to prelates, and such priests of Baal: they dishonour his majesty, who bring his prerogative so low.

2. The king doth not execute with blind obedience, with us, what the Pope commandeth, and the prelates, but with light of knowledge what synods discern; and he is no more made the servant of the church by this, than the king of Judah and Nebuchadnezzar are servants to Jeremiah and Daniel, because they are to obey the word of the Lord in their mouth. Let them show a reason of this, why they are servants in executing God's will in discipline, and in punishing what the Holy Ghost, by his apostles and elders, decree, when any contemn the decree concerning the abstinence from blood, things strangled, &c., (Acts xv.,) rather than when they punish murder, idolatry, blasphemy, which are condemned in the Word, preached by pastors of Christ; and farther, this objection would have some more colour, (in reality it hath not,) if kings were only to execute what the church ministerially, in Christ's name, commandeth to be done in synods; but kings may, and do command synods to convene, and do their duty, and command many duties, never synodically decreed; as they are to cast out of their court apostate prelates, sleeping many years in the devil's arms, and are to command trencher-divines, neglecting their flock, and lying at court attending the falling of a dead bishop, as ravens do an old dying horse, to go and attend the flock, and not the court, as this P. Prelate did.

3. A king hath greater outward glory, and may do much more service to Christ,

in respect of extension, and is more excellent than the pastor, who yet, in regard of intention, is busied about nobler things, to wit, the soul, the gospel, and eternity, than the king.

4. Superstition maddeneth men; but it followeth not that true religion may not set them on work to defend soul and body against tyranny of the crown, and antichristian mitres.

P. Prelate.-The kingdom had peace and plenty in the prelates' time.

Ans.-1. A belly-argument. We had plenty, when we sacrificed to the queen of heaven. If the traveller contend to have his purse again, shall the robber say, Robbery was blessed with peace? The rest, to the end, are lies, and answered already. Only his invectives against ruling elders, falsely called lay-elders, are not to purpose. Parliament-priests, and lay and court-pastors, are lay-prophets.

2. That presbyteries meddle with civil business, is a slander. They meddle with public scandals that offendeth in Christ's kingdom. But the prelates, by office, were more in two elements, in church and state, than any frogs, even in the king's leaventubs, ordinarily.

3. Something he saith of popes usurping over kings, but only of one of his fathers, a great unclean spirit, Gregory the Great. But if he had refuted him by God's word, he should have thrown stones at his own tribe; for prelates, like him, do ex officio trample upon the neck of kings.

4. His testimonies of one council and one father for all antiquity proveth nothing. Athanasius said, "God hath given David's throne to kings." What, to be head of the church? No; to be minister of God, without to tutor the church. And, because

66

Kings reign by Christ," as the council of Armin saith; therefore, it may follow, a bailie is also head of the church. It is taken from Prov. viii., and answered,

5. That presbyteries have usurped over kings more than popes, since Hildebrand, is a lie. All stories are full of the usurpation of prelates, his own tribe. The Pope is but a swelled fat prelate; and what he saith of popes, he saith of his own house.

6. The ministers of Christ in Scotland had never a contest with king James but for his sins, and his conniving with papists, and his introducing bishops, the ushers of the Pope.

QUESTION XLIII.

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, &c.

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, 1. Because whatever law enjoineth 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 includeth to be governed by the supreme governor only by law. 2. 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,) sweareth" to maintain the true kirk of God, and religion now presently professed, in purity, and to rule the people according to the laws and constitu

tions 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, authorised by many parliaments, (especially by Parl. 1, Charles, 1633,) he goeth 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 bringeth 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 favour of the true church and religion being ratified, their power of making constitutions concerning rò giov, order and decency, the privileges that God hath given to spiritual office-bearers, as well of doctrine and dicipline, 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 doth 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 ratifieth 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. xvii. 18–20. And it is true, Parl. 18, James VI. acts 1 and 2, upon personal qualifications, giveth 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 ground to put the same on king Charles. Personal virtues are not always hereditary, though to me the present king be the best.

no

3. There is not any absoluteness above law in act 1,-the parliament must be more absolute in themselves. King James VI. had been divers 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 hath power from themselves to destroy themselves: this is neither a lawful oath, nor though they should swear it, doth 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, pardoneth a murderer, 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 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, 1. 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. 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 suæ, ac subjectionis meæ, he is tyed by the fundamental law and his own oath, but in opposition to all foreign 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. 3. They are but the same expression, giving only the same power before acknowledged in the 129th act, Parl. 8, king James VI., 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 deposi tive 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. very terms of supreme judge, and in all causes, according to the nature of correlates, presupposeth courts and judicial proceedings and laws, as the ground-work and rule of all, not a freedom from them. 5. Act 6, Parl. 20, James VI. clearly interpreteth what is meant by the king's jurisdiction in all spiritual and ecclesiastical causes; to wit, to be only in the consistorial 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.

4. The

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 draweth the fairest picture, but which of the two wasteth most gold on his picture, and so doth 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 hath but actus imperatos, 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 45; 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 concerneth 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 declareth 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, hath 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 appointeth the honour, 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 dischargeth 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 produced. In the meantime, remember that in parliament and by act of Parl. James VI., for observing the due order of parliament, promiseth, 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-1. 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 xi., 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