cause of Complaint being removed and his Estate in Ireland having received great damage from his Enemies he left Leolin to Treat for himself and his Friends and went over to Ireland where he was slain by Treachery The Treaty went on and among the terms it was provided That all Men on the one side or the other Rot. Claus 18. H. 3. N. 17. dors Homines etiam illi qui hinc inde recesserunt a fidelitate dominorum suorum se tenuerunt ex adversa parte libere revertantur Rot. Claus 18. H. 3. N. 20. dors who had receded from the fealty of their Lords and adher'd to the adverse Party should return with freedom And in the Credential Letters which were sent to Leolin with them that managed the Treaty on the side of King Henry He gives him to understand That before that he had restor'd the Lands to all people who had been disseiz'd by occasion of the War between him and the Earl Marshal where 't is far from being call'd a Rebellion on the Marshal's side and at the time of the Treaty the King found himself obliged to protest that he was clear of any consent to the Death of the Marshal and that his Seal was by the great importunity of his evil Counsellours set to Letters which encouraged the Treachery against him and pronounc'd him a Traytor But that he was wholly ignorant of the Contents of them Vid. Matthew Paris The Clergy the Historians the People of that Age in all things extol the Marshal would never allow him to have been a Traytor and were not his own Defence of himself too long to transcribe I should add it as an embelishment to these Remarks Dugdale's Baronage o Vol. 1. f. 752. Simon 16. H. 3. bore the Title of the Earl of Leicester and obtain'd from Almaric his Brother then bearing the Title of Constable of France a grant of all the Lands in England with the Stewardship of England This came to the Earls of Leicester with the Honour of Hinkley in Leicestershire from Petronil Daughter of Hugh de Grentesmenil Vid. Mat. West 20 H. 3. Simon Montfort holding the King's Bason at his Nuptials as Steward of England The Fourth War was that under the Great Simon Montfort Earl of Leicester another Tribune of the People as he was hereditary High Steward by Purchase from his Brother Almaric Constable of France the Stewardship of England having descended from their Mother Amicia eldest Sister to Robert Fitz Parnel Earl of Leicester who died without Issue Mat. Par. f. 1302. Whoever reads the History of H. 3. must needs conceive a mean opinion of him his Cowardise was as remarkable as that of one of his Successors who is said not to have been able to contain at the sight of a drawn Sword nor could H. bear the terrour of Thunder and Lightning yet when Simon Montfort endeavoured to remove one of his frights Quod scilicet Comes Leycestriae virilius perstitit ferventius in persequendâ provisione ut saltem Regem omnes adversantes suis astare consiliis cogerent c. he confest to him That he fear'd him most Which was suspected to proceed from Montfort's warm and strenuous pursuing the Provisions at Oxford at least his being for compelling the King and all opposers to stand to the Counsel of his Barons Simon thinking the execution of the Oxford Provisions to be well secur'd Fol. 1314. went beyond Sea upon which Richard the King's Brother prepar'd to come into England with intention and hopes as it should seem to get them vacated as being made without consulting him But the rest of the Barons tho' they were in great fear because of Simon 's absence Ib. f. 1315. Juramentum quale Barones Angliae reipub Zelatores exigebant would not suffer Richard to Land till he had oblig'd himself under his hand to take such an Oath as the Barons of England who were zealous for the Commonweal or Publick-good required the form of which follows I Richard Earl of Cornwal will be faithful and diligent to reform the Kingdom of England with you hitherto too much deform'd by the Counsel of Evil-men And I will be your effectual helper to expel the Rebels and disturbers of the said Kingdom Notwithstanding the seeming agreement between the King and People and Security taken for his performance Foreigners invited and supported by him became an intolerable burden and the King being kinder to them than to his People obtain'd from the Pope an Absolution from his Oath Mat. Par. F. 1322. to make good the establishment at Oxford But the Barons resolutely insisted upon the Establishment and when the King sent Itinerent Justices into Herefordshire Ibid. the Barons of that County would not suffer them to execute their Office there as being contrary to the Provisions at Oxford which contrariety seems to lye in the King 's directing enquiries of misdemeanours to be judged of in the Countries when according to what was then Enacted the Inquisitions were to be return'd before the Parliament or at least such Council as was chosen in a Parliament But the King having procur'd an Absolution from his Oath thought himself free to act by the Counsels of Foreigners which his Great men would not bear Wherefore the Earl of Leicester and others met together in Arms at Oxford resolving either to dye for the Peace of their Country F. 1323. or to drive out the Foreigners The Foreigners met at the same place but finding themselves out-number'd and that the Lords were resolv'd to call them to account for their violations of the Government and make them swear to observe with them the Provisions made for the profit of the Realm they fled away by Night but were pursued by the Barons and forc'd to quit the Land Yet soon after this the King as the Historian says Anno 1260. 44 H. 3. 45 H. 3. by the evil Counsel of some fell from the pact which he had made with his Great Men betook himself to the Tower of London and compell'd the Citizens to swear to be true to him without regard to the terms before setled and rais'd what Forces he could Whereby it is evident That he began the War and that it was an open violation of his Contract made with the people at Oxford The Barons took Arms against him in their own defence F. 1331. Communiter prestitum and sent Messengers to him to entreat him to observe the Oath which had been sworn to by all Which Message he slighted at first but afterwards was prevail'd upon to consent that he should chuse one and the Barons another to arbitrate their differences the Arbitrators having power to chuse an Vmpire but that this should be respited till the King's Son Edward came from abroad When his Son came home he was so fully convinced of his Father's being in the wrong that he joyn'd with the Barons and they resolv'd together to drive
THE Fundamental Constitution OF THE English Government PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful KING and QUEEN In Two Parts In the First is shewn The ORIGINAL CONTRACT with its Legal Consequences allowed of in former Ages In the Second All the Pretences to a Conquest of this Nation by Will 1. are fully examin'd and refuted With a large Account of the Antiquity of the English Laws Tenures Honours and Courts for Legislature and Justice And an Explanation of material Entries in Dooms-day-Book By W. A. Author of the first Answer to the late Chief Justice Herbert on the Dispensing Power Errat siquis existimat tutum ibi esse Regem ubi nihil à Rege tutum est securitas securitate mutuâ paciscenda est Sen. London Printed by J. D. for the Author 1690. To the Right honble AUBREY DE VERE Earl of Oxford Baron of Bolebec Sandford and Badlesnere Lieutenant General of their Majesties Forces Colonel of the Royal Regiment of Horse-Guards Lord Lieutenant for their Majesties in the County of Essex Knight of the most honourable Order of the Garter and one of His Majesty's most honourable Privy-Council My LORD THEY who observe what License has been given as well as taken to blemish the Instruments under God and our King in the greatest Deliverance with the most immediate appearance of God in it perhaps of any next to that of his chosen People of old would think the Nature of things to be inverted Triumph to belong to the Conquer'd and the most desir'd Deliverance to be worse than the deprecated Bondage or to lose its Nature because it was the return of Prayers and Tears and not purchas'd by Rivers of Blood And after-times I have seen an exact Pedegree o◠the Earl's Family from Syford a noble Norman Gothick Extraction Vid. Pref. who was eminent under Rollo who Anno 912 obtain'd Normandy by Treaty with Charles the Simple and marrying his Daughter This Syford made the like bargain with Arald the first Earl of Flanders from which Marriage the Earls of Flanders and the Veres Earls of Guisnes in Flanders descended Alberic or Aubrey de Vere or Ver as he stands enter'd in Dooms-day Book is suppos'd to have come into England with W. 1. 'T is certain at the time of the great Survey he was a Proprietor in several Counties particularly in Essex and Humphrey the Son of Alberic had at that time several Mannors in Norfolk and Suffolk 'T is probable that this Son of Alberic dy'd in his Father's Life-time I should take the Comes Albericus who is enter'd in Dooms-day Book in several Counties as a Proprietor from before the reputed Conquest to have been Alberic de Ver and the rather because otherwise he and his Descendents from that time are wholly lost and besides no place in England can be found of which any Alberic or Aubrey was Earl till the time of H. 2. when Aubrey the third of his Name was created Earl of Oxford But before that time the Office of High Chamberlain belonged to the Family and as appears by Records which I have seen in the Tower was annex'd to their Barony But that of Bolebec belong'd not to it till about the time of King John when Earl Robert married the eldest Daughter of the Lord of Bolebec the Barony of Sandford came by another Marriage about the time of H. 3. the Barony of Badesmere came not till the time of E. 3 with the eldest Sister and Co-heir of Bartholomew Lord Badlesmere in which your Lordship 's Great Name will flourish taking root downwards as it has spread upwards to the first Ages will treat their Memories with Contempt who would inure the Brand of Disloyalty and Unchristian Behaviour upon your Lordship and the Followers of so bright an Example Selden Dissert ad Flet. f. 519. speaking of the time of Will. 2. sub idem tempus c. eminentissimus erat pristini planè commatis juris sine ullâ Caesarci intermixtione peritus atque exercitatissimus apud nos Albericus de Ver. Nor was your Ancestor Earl Aubrey more eminent in the time of W. 2. for his Skill in the unmix'd English Laws than your Lordship is and will be to Posterity for your generous Defence of them Certain it is how much soever some pretend to passive Valour they cannot bear the Reproach of such extraordinary Vertue and are forced to shut their weak Eyes at that shining Bravery with which your Lordship strugled with the Flatteries and Threats of Fortune and of Power Becoming in the Language of the Heathen Philosopher a Spectacle most pleasing to the Gods the Effects of which Pleasure your Lordship has felt in the admir'd Tranquillity of your own Mind and in the Glory permitted you of being signally accessary towards the present Happiness of your Country not only by your resolute Vndertaking but even by your Sufferings I must own the Sufferings of others to have contributed to it by accident as those things may well be said to be which happen contrary to the intention of the Agent and nature of the Action But the Nation was glad to find their private Resentments and self-Defence to carry them along with the Publick Interest which some of them had sacrificed to low Ends or stupidly neglected being as unconcern'd at publick Calamities as if their former Exemptions which they seem'd to aim at had made them of another distinct Community Such as these deservedly lost the Credit of their share in this Revolution not only as they had drawn their Sufferings upon themselves and others by tempting those whom they flattered to make Experiment of the force of their Doctrine but as their subsequent Carriage has demonstrated upon what narrow Principles they engag'd not in the Cause of their Country but their Own Their lowness of Spirit makes them resemble those fawning Creatures whom the least Gentleness raises to Familiarity but notwithstanding the Advantages which they enjoy under this Government 't is not to be presum'd that they are given them otherwise than to reclaim and wean them from Notions as destructive as they are useless to this equal Administration They who now pretend to merit by transplanting the Doctrine of the Bow-string into the Service of this Government would do well to consider whether in the late Reign it really profited any but themselves and whether they kept to it any longer than while they found their account in it As it is our Happiness to have a King born and acting for the Good of Mankind it is not to be fear'd that he should cherish what is contrary to their common Sense and Interest or that he will countenance Reflections upon those noble Patriots who ventur'd every thing dear to them in the same Cause with himself while Success was doubtful and whose Reputations next to his own facilitated that Revolution for which late Posterity shall praise those of this Generation One would think that such a Cause should not stand in
Therde But because this without consideration of his Merits in rescuing them from R. 2. entituled him to the Crown no more than another of the Blood therefore the Lords and Commons drew up an Instrument purporting their Election Ib. n. 55. 4. But admit none of the foregoing Arguments were enough to shew That upon James the second 's Abdication or at least losing his Interest in the Government the People of England were restor'd to that Liberty which they had before the Settlement of the Crown which was in force till the Original Contract was broken by him yet I conceive the particular Consideration of the state of the Settlement might afford sufficient Argument Brady's Hist of the Succession f. 25. Henry the Fourth Fifth and Sixth if we believe Dr. Brady held the Crown by Usurpation Yet the earliest Settlement of the Crown farther than the first Son or Grandson was in the time of H. 4. Nor as I shall shew was the Crown enjoyed by J. 2. under better Title than they had H. 5. and 6. came in under an Entail of the Crown 7 H. 4. Vid. Rot. Parl. 8 H. 4. n. 60. confirm'd 8. The misgovernment of H. 6. having given occasion to Richard Duke of York of the Blood-Royal and Elder-house to assert the Peoples Rights not his own Henry and the Duke with the Consent of the Lords and Commons come to an agreement in Parliament That Richard and his Heirs should enjoy the Crown after the Death of Henry Tho here the word Heirs is mentioned without restraint yet considering that it is the first time that ever the Crown was setled so far Gomezius de Qualitatibus Contractuum f. 319. Hottomanni Com. de Verbis Juris usus-fructus est jus alienis rebus utendi fruendi salvâ rerumsubstantiâ Emphyteusis I know not whether it is not to be taken with Gomezius his Restriction of an Usufructuary or Emphyteutical Estate of the last of which much of the same nature with the other he says If it did not use to be granted to more than the first second or third Heirs the mention of Heirs simply ought to be restrain'd to those only because the Nature or Quality of the thing granted ought to be attended to After the Death of Richard Duke of York his Son Edward the Fourth as I before observ'd took the Government upon him as forfeited by breach of the Covenant estabish'd in Parliament However Vid. sup H. 6. being set up again ten Years after gets that Settlement by which E. 4. was to have benefit to be revok'd and the Crown to be entail'd on his Issue the Remainder to the Duke of Clarence younger Son to the Duke of York Afterwards E. 4. having success 13 E. 4. revives the Settlement 39 H. 6. Only that he attaints H. 6. Rot. Parl. 1 H. 7. n 16. Vid. Append. H. 7. Son to Edmund Earl of Richmond Brother by Mother's Side to H. 6. with others of his Party Which Attainder was remov'd 1 H. 7. and declar'd contrary to due Allegiance and all due Order And not only the Attainder but that Act of Parliament it self was revok'd So that hitherto there had been no Title in the Heirs of Richard Duke of York or of Edward the Fourth but what was deriv'd under the Settlement of Henry 6. call'd an Usurper and Edward the Fourth's Treason depriv'd him of the Benefit even of that Settlement H. 7. Indeed married the eldest Daughter of E. 4. But before that Marriage having conquer'd Rich. 3. he claimed the Crown as his Words in Parliament were Tam per justum titulum haereditantiae Rot. Parl. 1 H. 7. Vid. Append quam per verum Dei judicium in tribuendo sibi Victoriam de inimico suo As well by just Title of Inheritance as by the true Judgment of God in giving him the Victory over his Enemy If it be ask'd how he could have a Right of Inheritance when the Daughter of E. 4. and his own Mother were alive Vid. Rot. Parl. 1 H. 7. n. 16. supra it seems in the Judgment of that Parliament That E. 4. having acted contrary to his Allegiance due to H. 6. he and his had lost the Benefit of the Settlement reviv'd by his successful Treason and that this was lost even before the Revival was destroy'd by Parliament And then tho' H. 7. could not come in without an Election yet he as H. 4. before might have a sort of Inheritance according to a very witty Author Vindiciae contra Tyrânnos Ed. Amstelodami p. 110. who speaking of the Kingdom of Israel says Concludere licet regnum Israelis si stir pem spectas haereditarium certè fuisse at sanè si personas omnino electivum We may conclude That the Kingdom of Israel if you look at the Stock was certainly Hereditary but if at the Persons altogether Elective Be this as it will the Lords and Commons so far regarded King Henry's Claim that they not only receiv'd him for King but it was enacted by the Authority of the then Parliament Rot. Parl. 1 H. 7. That the Crowns of the Realms of England and France should rest in him and the Heirs of his Body lawfully coming perpetually and in NONE OTHER When they had thus done the Commons requested the King to Marry Elizabeth Daughter to E. 4. that by God's Grace there might be Issue of the Stock of their Kings So that this was only to preserve the Royal Blood not to give any new Countenance or Confirmation to his Title H. 8. enjoy'd the Crown not as Heir to his Mother but under the Settlement upon H. 7. Nor can it be said that he was in by Remitter since that Act under which his Mother should have deriv'd was Repeal'd And had it stood in force yet it would not have made the Title more Sacred unless it can be shewn that the Mother had a Title prior to the Act of Settlement 39 H. 6. the contrary to which appears by the former Account from Law and History H. 8. procur'd several Settlements of the Crown according as Love or Jealousie prevail'd in him 25 H. 8. c. 22. In the 25th of his Reign 't was settled upon Himself and the Heirs Male of his Body lawfully begotten on Queen Anne c. declaring the Marriage with Queen Katherine unlawful Remainder to the Lady Elizabeth Remainder to his own Right Heirs 26 H. 8. c. 2. 28 H. 8. c. 7. 26 H. 8. an Oath was enjoyn'd for that purpose 28 H. 8. the two former Acts 25 26 are Repeal'd the Illegitimation of Mary Daughter to Queen Katherine is confirmed the like declared of Elizabeth Daughter to Queen Anne and the Crown entail'd upon his Heirs Males by Queen Jane or any other Wife Remainder to Heirs Females by that Queen or any other lawful Wife Remainder to such Person or Persons and according to such Estates as he should appoint by Letters Patent or by Will 35.
the Crown is settled subject to such Conditions as the King should make according to the Power there given first upon Prince Edward and the Heirs of his Body the Remainder in like manner upon the Ladies Mary and Elizabeth and the Heirs of their Bodies successively without taking off their Illegitimations And the same Power is given of disposing by Letters Patent Vid. 28 H. 8. sup 35 H. 8. or by Will as by the Statute 28. for which a memorable Reason is given in both Acts Lest if such Heirs should fail and no Provision made in the King's Life who should Rule and Govern this Realm for lack of such Heirs as in those Acts is mentioned that then this Realm should be destitute of a Lawful Governour E. 6. succeeded according to both those Acts After him Queen Mary by the last who at her coming to the Crown could not be looked on as of the Right Line because of the Acts which Illegitimated her and besides she was but of the Half-blood to E. 6. to whom she succeeded But in the first of her Reign the same Parliament takes off her Illegitimation and repeals the Acts 25 28 H. 8. And in this the Parliament seems rather to provide for the Honour of her Descent Hist of Succession f. 34. than as Dr. Brady would have it to declare the Succession to be in Inheritance by Right of Blood Whatever might be the secret Intention 1 2 P. M. c. 9. I am sure there is no such authoritative Declaration And the Acts 28 35 H. 8. seem to say quite the contrary 1 2 P. M. though there is no direct Settlement it is made Treason to compass the Deprivation or Destruction of K. P. during the Queen's Life 1 Eliz. c. 3. or of the Queen or of the Heirs of her Body lawfully begotten Queen Elizabeth succeeded by vertue of the Limitation 35 H. 8. And though Bastardiz'd by the Statutes 28 H. 8. and 1 M. and but of the Half-blood both to E. 6. and Queen Mary yet her first Parliament declares That she is Rightly Lineally and Lawfully descended and come of the Blood Royal of this Realm to whom and the Heirs of her Body the Royal Dignity c are and shall be united And Enacts That the Statute 35 H. 8. shall be the Law of the Kingdom for ever But the Fee of the Crown not having been disposed of according to the Power given by the Statute 28 and repeated 35 H. 8. And the 25 whereby it was limitted in Remainder to the Heirs of Henry the 8th being repealed upon the Death of Edward the 6th and the Queens Mary and Elizabeth without Issue there remaining no Heirs of the Body of H. 8 in the Judgment of two Parliaments the Realm was destitute of a Lawful Governour Indeed according to the Act of Recognition 1 J. 1. 1 Jac. 1. c. 1. the Crown came to him being lineally rightfully and lawfully descended of the Body of the most Excellent Lady Margaret the eldest Daughter of the most Renowned King Henry the Seventh and the High and Noble Princess Queen Elizabeth his Wife eldest Daughter of King Edward the Fourth The said Lady Margaret being eldest Sister of King Henry the Eighth Father of the High and Mighty Princess of Famous Memory Elizabeth late Queen of England Thô this pompous Pedigree to avoid all Objections goes as high as E. 4. the Derivation of Title as appears above can be no higher than from the Settlement 1 H. 7. Nor does this Act 1 J. make any additional Provision but indeed seems to flatter the King into a Belief that there was no need of any telling him That they made that Recognition as the First-fruits of their Loyalty and Faith to him and his Royal Progeny and Posterity for ever But neither then or ever after till that in this present Parliament did the People make any Settlement of the Crown but it continued upon the same Foot as it did 1 H. 7. when it was entirely an Act of the People under no Obligation but from their own Wills Sir Robert Filmer's Power of Kings f. 1. And if we should use Sir Robert Filmer's Authority Impossible it is in Nature for Men to give a Law unto themselves no more than it is to command a Mans self in a Matter depending of his own Will There can be no Obligation which taketh State from the meer Will of him that promises the same Wherefore to apply this Rule Since the People that is now Vid. Pufend. de Interregn sup p. 288.289 in common presumption is the same with that which first settled the Succession and so are bound only by an Act of their own Will they have yet as arbitrary a Power in this Matter as Sir Robert and his Followers contend that the Prince has whatever Promises or Agreements he has entred into But not to lean upon such a broken Reed nor yet to make those many Inferences which this plain State of the Settlements of the Crown might afford Three things I shall observe 1. If the Settlement made 1 H. 7. who was an Usurper according to the Notion of Dr. Brady and his Set of Men was of no force then there being no Remainders since limited by any act but what are spent and no descendants of the whole Blood from Elizabeth Daughter to E. 4. and Wife to H. 7. but by Daughters the eldest of which was Married into Scotland If Acts of Settlement could not alter the Right of Descent of the Crown neither Queen Mary nor Queen Elizabeth had Right but after the death of E. 6. it belonged to the Scotch Family And if Acts of Settlement could dispose of the Crown and it should appear that from the time that the limitation came to a Foreigner not nam'd in the Settlement nor the immediate issue of a King or Queen of England it was spent in the eye of the Law then of necessity the People must have had Power of Chusing or there could have been no lawful Government since Queen Elizabeth's time when the last Settlement was spent except what is now made 2. The Declarations of two Parliaments 28 and 35 H. 8. fully ballance the Declaration 1 Jac. 1. if they do not turn the Scales considering that the Judges in the later Times seem to have had less Law or Integrity than they had in H. the Eighth's I will not take upon me to determine which was the Point of Two that they might go upon 1. That a Government shall not pass by Implication or by reason of a dormant Remainder But there having been so many Alterations since the Settlement 1 H. 7. and the whole Fee once disposed of nor ever any express Restitution of the Settlement 1 H. 7. the People were not to think themselves obliged to a Retrospect 'T is evident at least that they did not Or 2. Perhaps they might question whether they were oblig'd to receive for Kings the Issue
of Foreign Princes That this was a Question in Q. Elizabeth's time appears by a Letter from Lethington Secretary of Scotland to Cecil Secretary to Q. Eliz. Appendix to Vol. 2. of the Hist of the Ref. f. 269. This appears farther from the Treatise at the end of the Appendix which seems to admit That the Right to the Crown would have been in the issue of the younger Daughter being born in England if the Birth had been without blemish since there was no means of being sufficiently inform'd of the Circumstances of the Birth neither the Common or any Statute-Law affording any Means of proving it as appears by the Statute 25 E. 3. which for the Children of Subjects only born out of the King's Allegiance in Cases wherein the Bishop has Conusance allows of a Certificate from the Bishop of the Place where the Land in question lies if the Mother pass'd the Seas by the King's License But if our Kings or Queens should upon any occasion be in Foreign Parts 't is to be presum'd that they would have with them a Retinue subject to our Laws who might attest the Birth of their Children and be punish'd if they swear falsly Stat. 25. E. 3. Wherefore 25 E. 3. 't is declar'd to be the Law of the Crown That the Children of the Kings of England ENFANTZ DES ROYS as the Record has it in whatever Parts they be born be able and ought to bear the Inheritance after the Death of their Ancestors Yet this is most likely to be meant of those private Inheritances which any of the Kings had being no part of the Demeasns of the Crown since the Inheritance of the Crown was not mentioned nor as has been shewn was it such as the King's Children were absolutely entitled to in their Order The most common acceptation of Children is of a Man's immediate Issue Vid. 1. Anderson f. 60 61. A Devise to the Wife after her Decease to the Children Vid. Wild 's C. 6. Rep. In Shelley 's C. 1. Rep. f. 103. A Gift to a Man semini suo or prolibus suis or liberis suis or exitibus suis or pueris suis de corpore As where Land is given to a Man and his Children Who can think any remote Descendants entitled to it Nor could it extend farther in the Settlement of a Crown 37 E. 3. c. 10. a Sumptuary Law was made providing for the Habits of Men according to their Ranks and of their Wives and Children ENFANTZ as in the former Statute of the same Reign Now altho' this should extend to Childrens Children born in the same House it could never take in the Children of Daughters Vid. Sir James Dalrimple's Institutions of the Laws of Scotland f. 52. forisfamiliated by Marriage nay nor to those of such Sons as were educated in a distinct Calling from their Parents Farther the very Statute of which the Question is cuts off the Descendants from Females out of the number of a King's Children when among other Children not of the Royal Family it makes a particular Provision for Henry Son of John Beaumond Vid. Dugdale 's Bar. 2. Vol. Beaumont who had been born beyond Sea and yet Henry was by the Mother's Side in the Fourth Degree from H. 3. for she was Daughter to Henry Earl of Lancaster Son of Edmund Son to H. 3. Had this Henry been counted among the Children of a King 't is certain there had not been a special Clause for him among other Children of Subjects Nor does the Civil Law differ from ours in this Matter for tho under the name of Children are comprehended not only those who are in our Power but all who are in their own either of the Female Sex or descending from Females yet the Daughters Children were always look'd on as out of the Grandfather's Family Just Inst lib. 1. tit 9. So Bracton l. 1. c. 9. Greg. Tholos Syntagma juris universi f. 206. Spiegelius tit Liberi Non procedere in privilegiis quae generaliter publicae utilitati derogant Vid. Antonii Perezi Inst Imperiales p. 21. Vid. Cujac ad tit de verborum significatione p. 147 230. according to the Rule in the Civil-Law transcribed by our Bracton They who are born of your Daughter are not in your power And Privileges derogating from Publick Vtility were never thought to reach them as a Learned Civilian has it A Daughter is the end of the Family in which she was born because the name of her Father's Family is not propogated by her And Cujacius makes this difference betweene Liberi and Liberi Sui Sui he says is a Legal Name the other Natural The former are only they who are in a Man's power or of his Family and Liberi strictly taken he will have to go no farther But in truth Considering the purview of the Statute which we are here upon Children in it seems to be restrain'd to Sons and Daughters without taking in the Descendants from either the occasion of the Law being the Births of several ENFANTZ in Foreign Parts which could be but Sons or Daughters to the immediate Parents whether Kings or Private Persons 3. But however this may be enough for my purpose That there is no colour of any Settlement in force but that 1 H. 7. And admitting that to have continued till J. 2. had broken the Original Contract yet that being broken the present Assembly of Lords and Commons had full as much Authority to declare for King WILLIAM and Queen MARY as the Parliament 1 H. 7. had to Settle the Crown For H. 7. could give them no Power but what he had received immediately from them Nor is it material to say He was Crown'd first since as I have shewn the Crown Confers no Power distinct from what is deriv'd either from an immediate or prior Choice But if there is reason from what I have shewn to believe that even the limitations in Henry VII th's Settlement were all long since spent then at least it is not to be doubted but the interest of J. II. being determined the People of England might lawfully and rightfully declare for King William and Queen Mary as being the most deserving of the Blood Royal which if they were free to do not to submit to be Gover'n'd by Their present Majesties would have been the highest Ingratitude that could be CHAP. X. The Fifth Head of Positive Law The effect of the Dissolution of the Contract The Vse of the Triennial-Act 16 Car. 1. against the necessity of Common Form The Form and proceedings of the Convention assembled upon the death of H. 3. The Dilemma used by the Formalists Answer'd with a Distinction Pufendorf's Answer to Hobbs Another passage of his applied to a passage in a late excellent Treatise against Sir Robert Filmer And to a Letter upon this Juncture Tho what Dr. Brady says against the Rights of Lords and Commons were true yet it is shewn that the Acts of
did grow afterward greate Contention and finally that Daughter never admittyd unto the Crowne but the Succession transferred unto the Lady Isabell Sister of the K. A Queene for her Valour and rare Vertues of great Fame and Renowne And yet notwithstanding accordinge to the Canonicall Lawe of force and strength in such Cases as most proper Judge although the Adultery of the Queen indeed wer more then manifest yet moght they have presumyd that the Child had ben rather of the Husband then of the Adulterer so favorable are those Lawes unto the Birth But those Noble Men as jelous of the Honour Fame and Reputacion of their Countrey did thinke that it importyd a great deal more to maynteyne and assure the Dignitie of the whole Realme refusinge a Person of doubtfull Birth then to have respecte unto the particuler Interest of that Child And thus tendrid these so much this Honour that they could not nor wold not tary the tyme to entreate of the Succession when it shuld happe but wold by and by put the mater out of doubt And you when it is so needfull and the tyme doth so require it to knowe one certeynly for your Prynce and just Governour heerafter Will you make no compt herof They I say for these respectes did refuse one that according to th' ordinary course of the Law they moght easely have presumed of to have ben legitimate And will yow submitte your selfes to a person that accordinge to the ordinary and Canon Rule and Order of the Lawe is so manifestly knowen taken and shewyd discendid playnely as illegitimate Oh take heede for yf ever this happe in your Heddes what other thinge will it turne or growe unto but vnto an open and universall declaration unto all the World that yow betweene Honour and Dishonour Right or Wronge causes of Prosperyte or Ruyne do make no difference at all Which opinion once conceyvid of yow boast bragge or compare after the Nobilitie or Excellency of your Countrey or the Stoutenesse of your Selfes with other Nations ye may well ynuough but whoe wyll not rather mocke or scorne at your madnesse or folly then beleeue yow as of eny Reason or Judgment And this that is sayd as is before touchid hath auctoryte and is both accordinge to Divine Canon and Civill Lawe and besydes accordinge to the Lawe of Nature and Reason But though we shuld admitte that by the Canon Lawe theise descendentes of the French Q. were to be tolleratyd or allowid as legitimate yet doth it not follow for all that that in this Realme they ought to be taken or accompted for ligitimate or inheritable Bicause that for eny to be borne legitimate heritable or Bastard Heere is judged not accordinge to the Canon Law but accordinge to the Lawe of the Realme And this doth appeere manifestly by the Statute of Merton Cap. 9. Where the Bishops instanced the Lordes that they wold consent that all such as wer borne before Matrimony shuld be legitimate according to the Canon Lawe as well as they that wer borne within Matrimony Which could not be obteyned but determination made that they shuld stande unto the Lawes of the Realme and not unto the Canons And that one borne of a second Wyfe the first still lyvinge by occasion of ignorance that the second Wyfe may pretend that the Husband had no other Wyfe alyve shuld be taken or compted for ligitimate or inheritable is not auctorized by our Lawe But playnly the contrary as may appear by Bracton Glandvill Britton Parkins and the whole course of the Lawe Wherfore to alledge that it is not lawfull to compt such for Bastardes after their death though during their Lyfe they wer taken or compted for no other then as legitimate is a poore healpe a slender proof and to this purpose makith nothinge at all for Litleton Cap. of Discentes doth declare that this continuance to purge the Bastardy is not to be alleadgid in every sorte of Bastardie but in that onely that is born of the Woman that the Father doth after mary with other Circumstances as may appeer farre from this Mater But to object that heerin might further have fortunyd though peradventure there hapt never eny such mater because nothinge may be thought of now or ells remembrid heerafter that in this case to the uttermost that might have chaunsed may not presently be fully sayd unto and answeryd Let us admitte for the salvinge of the Bastardy of these Issues that the Pope's Bulle mought have been obteynid which though both agaynst eny godly and lawful Matrimony and agaynst the Law of the Lande perhappes mought easely have been compassed yet notwithstandinge shuld the same have made as little to the purpose as th' other proper Reasons before alledgid For such a Bulle though it had ben of valour in England as it is neither now nor yet ever was when the Pope was heere in greatist Authoryte shuld either haue pronounced and declared the same Children to haue ben legitimately borne or ells of Bastardes it shuld have made theim legitimate In as moche as it shuld have declarid theim to haue ben legitimately borne it had ben needefull that it shuld haue ben with pronuncinge the Matrimony with the said Queene and Duke legitimate notwithstandinge the other Wyfe had ben alyue and that could not have ben grauntyd the case being as it was but vpon some false or fayned surmise And therfore accordinge to their owne Lawes or Canons it shuld haue ben of no force or valour But let it haue ben accordinge to what Canon they had lysted the Common Law of this Realme of England shuld never haue ben bounden by any such Bulle and specially when the mater vpon eny Poynt of Illegitimacion is to be callid in question by reason of eny Issue joyned vpon Bastardie after the death of the Parties which ar to be impeached as Bastardes by reason of eny second or other Mariage during the Lyfe of the first Wyfe the same being never upon eny Sute at the Common Lawe brought in Question Vid. Bracton F. 216. upon the Statute of Merton he mentions a special return at that time required Of which more in the second Part. whilest the Parties in whome Bastardie is not allegid lyvid The greatest doubt that in such case mought haue hapt is that if the mater had ben callid in question at the Common Law duringe the Pope's Jurisdiction in the Lyues of eny of the Children of the said Duke and the Frenche Queene which be now all deceassed and an Issue had ben joined vpon general Bastardy or vpon some other generall Issue of Divorce the same shuld then haue ben tried by the Certificate of the Ordinary and therby perhaps by somme such sleightful Certificate the vnlawfull Doings of the Pope if eny such had ben in his tyme might so haue ben allowed covertly But allowing it were triable at this day by the Ordinary the Pope's Dispensation carryeth not in our Law the Jurisdiction of the
a Royall Dignitie (k) Barthol Bal. in l. eam quam C. de fide con And the Reason is that whosoever is borne Bastard though he be after made legitimate is ever reputyd notwithstandinge as infamous (l) Bal. in lege generaliter §. cum autem C. de inst substi sub condi factis Alexan in 3. ff de il post And these Reasons may serve also to the Allegations before sayd of the innocency of the Queene and the contynuance of the Matrimony without controversy for they do declare playnly that although the Lawes where they entreate of eny other Enheritance shuld make as legitimate the Children so borne the which indeede they no ways can do as we have partly proovyd notwithstanding that the same Laws could never be alledgid in case of Succession to eny great Dignite and chiefly vnto a Royal Dignitie in the which the whole state of the Common Wealth hath interest And besydes touching the dooble Bastardy before remembryd though we shuld admitte that of the legitimacion of the Lady K. there wer no doubt or question yet such hath ben her Life and Behavour and so much hath she stayned her self and issue as she is to be thought unworthy of the Crown for she was maryed as ye know to the Lord Herberd The Mariage was perfected by all necessary Circumstances ther was consent of the Parties consent of the Parentes open solemnizinge contynuance after till lawfull Years of consent and in the mean time carnall Copulation all which save the last are commonly knowne by dyuers that sawe theim and the last which to all other might be most doubtfull is known by the confession of them both and so made the more lykely to be true bicause she her self though in such thinges that Sexe be most covert and shamefast hath yet earnestly acknowledgid the same after which Consummacion every Man knowith that albeit the Matrimony had been before for lacke of Years not vaylable that yet thereby it commith and is made perfect and of full force and valor In sorte that the Divorce and Sentence that was so dryven procured and practised by the means of the Erle of Penbroke in Queen Maryes Reign for respects then well ynough knowne agyinst both the Parties Wills as most manifestly appeeryd not onely by their greate unwillignesse unto it then but also by their affectionate and willinge manner of lyving continent meny Years after continuing in mutuall Love testified by sondrey means meny Tokens Messingers and other signes of the same cannot be of eny force to breake the sayd Matrimony nisi de facto (m) De sponsal cap. 30. is qui fidem But during this delay she by daliance fell to carnall company with th' Erle of Herforde which was not descryed till the bignesse of her Belly bewrayd her yll happ In which what was commityd on both theire behalfes while he th' Erle unlawfullie companyed with the Wyfe of an other Man and she the Wife of one Man did gyve her Body to be used of an other Man unlawfully ye may easely judge But this done the L. Herbert seeinge himself thus deceyvid by his Wyfe did as he might lawfully joyne himselfe in Marying with an other Woman and that Lyfe and Usage betweene the Lady K. and the Erle beinge confirmid by dooble Issue as it was utterly unlawfull before God so was it founde unlawfull before such Bishoppes and other Commissioners as had the heeringe of the same and their Issue bastardid wherupon doth fall out as ye see greate wickednes and lashnes of Life in the Mother and bastardy in the Children And it is not unknowne to those conversant in the Historyes that meny Princes settlid in their Kingdomes have ben judged unworthy of their Callinge for lyving in Whoredom And how can she be countyd worthy to come to a Kingdome which as her Case standith cannot but lyve in lyke manner Surely yf she were the next Heire of the Bloud Royal her Fault is much the greater so fowlie to have spottyd the same For as by this Whordome she hath deservyd grevous Punishment in disparaginge and disablinge the Bloud so hath she by vyolatinge Maryage cut off all hope of havinge lawfull Issue by her to succeede and possesse the Crowne heerafter For by the Law that God gyveth (n) Deut. 23. Deut. 23. A Bastard and unlawfull borne Person may not beare Rule in the Church or Common-Weale He is counted a Stranger as the Hebrewe word importith and to the perpetuall detestation of Whoredome was this Lawe made to punishe the Parentes Faultes justly in their Children The Civil Lawe lykewyse doth not onely punishe such Personnes as make such unlawfull Matches but removith the Issue so borne from the Inheritance or takinge by Legacy eny thinge of the Parentes (o) Co. de incest inut nup. And thus do yow see by the way thus much of this double Bastardie and what Stay Comfort or Consolacion is lykely to come to this Realme of England by the L. K. and such Issue as she now hath or is lykely to haue heerafter though she her self were by her Parentes free from Bastardy as by the Proces and Allegacions before alledgid doth playnly appeere she is not Wherfore to retourne to the Mater before in hand and to conclude therof Since eny Spotte or suspicion of eny is sufficient barre from th' Inheritance of a Crowne much more cause is this playne and open Bastardy for we ar all bounde in reason to haue alwayes more regard to the State and Dignitie of the whole Weale Publique then of the pryvate Preferment or Commodyte of eny particuler Person And so doth it appeere that by no way neither by the Divine Lawe nor by the Common Lawe of this Realme nor yet by the Canon or Civill that the Children descendid of the sayd Queene and Duke can be capable of the Crowne by their Birth But touchinge the other Parte they alledge in favour of the Lady Katheryne Kinge Henry the Eight his Will by which they say she is lefte as Heire Which may be as playnly and easely answerid For it is as certeyn that Kinge Henry shuld have had no Auctoritie or Power to dispose of the Crowne by Will yf by Parliament it had not ben gyven him And therfore as much as the Force and Autorytie of the Parliament dothe extend unto so much might he do and no more And the words of the same Statute though they be generall they may not for all that be so largely taken or understandid as they may be stretched vnto For who will say that by those wordes there is Power or Facultie gyven to appoynt or gyve the Crowne to eny Person that accordinge to the Lawe and Dignitie of this Realme is not meete or capable of the same As vnto a Turke ☜ an Infidele an infamous or opprobrious Person to a Foole a Madde-man or generally to eny kynde of such Person as of the which if special