Edward III. and younger brother of Leonell temerously ayâ—nst rightwiseness and justice by force and armes ayenst his feâ—th and ligeance rered-werre at Flynt in Wâ—les ayenst the seid King Richard him toke and impâ—esoned in the Towre of London of grete violence And the samâ— King Richard so being in prison and lyvying usurped and intruded upon the Roiall Power Estate Dignity Preeminence possessions and Lordships aforeseid taking upon him usurpously the Corone and name of King and Lord of the same Reaume and Lordship and not therwith satisfied or content but more grevous thyng attempting wykidly of an unnatural unmanly and cruel Tyranny the same King Richard King enoynted coroned and consecrate and his Liege and most high Lord in the Eâ—th ayenst God's Law Manne's Ligeance and Oâ—ch of Fidelite with uttermost puâ—icion attormenting murdered with most vyle heynous and lamentable death Ibid. n. 10. And that the same Henry unrightwisely ayenst Lawe Conscience and Custume of the seid Reaume of Englond usurped upon the seid Corone and Lordship And that he and also Henry late called King Henry V. his sonâ—e and the seid Henry late called King Henry VI. the sonne of the seid Henry late called King Henry V. occupied the seid Reaume of Englond and Lordship of Irelond and exercised the governaunce therof by unrightwise intrusion and usurpation and in noon otherwise 'T is true the Distinction of a King de facto and de jure was first heard of in this very Parliament which declared the hereditary Right of the House of York in in the First of Edward IV. cap. 1. in print which agrees with the Record in the Parliament-Roll n. 41. and not before but not started then by the Lawyers to fiâ—d a sufficient Salvo for the Kings of the House of Lancaster but an Expression intended by Parliament before they used it to denote and make known an unlawful pretended or pretensed Kâ—ng that had not obtained the Crown by just Title or to signifie an Usurper by way of Antithesis or Contradistinction to a K ng de jure or in Right For this very Parliament that had declared Henry IV. V. VI. Usurpers calls them all in this Act or Statute Kings de facto or in Deed and not in Right and their Reigns pretensed Reigns and very often affiâ—ms them to be but pretensed Kings such as did not reign lawfully nor possess the Crown by just Title And that this was the intention of the Parliament in the use of this Expression the Statute it self will inform the Author or any indifferent Reader that will peruse it The Lawyers did not comment or descant upon these Words or declare what power a King de facto had before Easter-Term in the Ninth of Edward IV. and then they acknowledge Henry VI. King de facto in the Instance to have been an Usurper and that he was not King forsque per usurpacion but by Usurpation This Ninth of Edward IV. was a troublesome Year and Make-king Warwick in all probability with many others of the Nobility were at this very time contriving against him and to re-inthrone King Henry for in July following he was in opeâ— Rebellion against King Edward and about the end of that Month or beginning of August madâ— him Prisoner who soon made his Escape left the Nation and went into Holland c and on the sixth of October in that Year Henry VI. was restored The Earl of Warwick was popular almost beyond Imagination and probably the Lawyers during the Contrivance when thâ—y saw the People move that way might start such Notions about the Power of a King de facto as might encourage the Undertaking of Wâ—â—wick and his Friends for Henry VI. against Edward IV. 'T is observable that the Judges did not argue or give any Opinion in this Case but only the Serjeants and Apprentices of the Law as appears in the Câ—se it self Third Institut fol. 7. Sir Edward Coke hath out-done the Year-Book 9. Ed. IV. Term. Pasch concerning whole Opinion the Author may read Mr. Pryn Pag. 482 c. in his Plea for the Hoâ—se of Lords This is a brief Account of a King de facto and the Origin of the Expression by which it is most manifest that by the Parliament-Roll the Statute and Case of the Ninth of Edward IV. he is no other than a pretensed unlawful King and an Usurper though set up as the three Henries were and therefore the pretended Distinction is idle as may also further appear by the following Statute which because not common is here recited at large Statutes at large 17. Ed. IV. c. 7. Item Whereas in the most dolorous Absence of ouâ— Soveraign Lord the King out of this his Realm being in the parties of Holland and before his victorious Regress into the same Realm Rot. Parl. 17. Ed. IV. n. 34 This Writ of Summons to the Parliament is dated 15. Octobr. Rot. Cl. 49. Hen. VI. M. 6. Dors in a pretensed Parliament unlawfully and by usurped Power summoned by the Rebel and Enemy to our Sovereign Lord the King Henry VI. late in Deed and not of Right King of England holden in the Palace of Westminster the 26th Day of November in the Ninth Year of our Sovereign Lord the King that now is under the coloured Title of the said Henry the Forty ninth Year of the Incoation of his pretensed Reign and the First Year of the Readeption of his usurped Power and Estate divers and many Matters were treated communed wrought to the destruction and disherison of our Sovereign Lord the King and his Blood Royal by the Labouâ— and Exhortation of Persons not fearing God nor willing to be under the Rule of any earthly Prince but inclined of sensual Appetite to have the whole Governance and Rule of this Realm under their Power and Domination Which Communications Treaties and Workings do remain in Writing and some exemplified whereby many Inconveniences may ensue to our said Sovereign Lord the King and his Blood Royal which God defend and all Noblemen at this time attending about the King and all his other Liege People and Subjects unless due Remedy be provided in this behalf Our said Sovereign Lord the King by the Assent of the Lords Spiritual and Temporal and at the Request of the Commons in the said Parliament assembled and by the Authority of the same For the Surety of his noble Person his noble Issue and the inheritable Succession of the same and for the Surety of all the Lords Noblemen and other his Servants and Subjects hath ordained and stablished that the said pretensed Parliament with all the Continuances and Circumstances depending upon the same be void and of none effect and that all Acts Statutes Ordinances Treats Communications Conventions and Workiâ—gs in the same pretensed Parliament treated communed accorded wrought had or by Authority of the same Parliament enacted and ordained and all Exemplifications made upon the same or any part of them and every of
c. and under the name of Danes †Aelfred vit f. 10. c. 14. ever since the beginning of King Egbert having by continued Invasions and Piracies harassed and grievously wasted and molested England in the Reign of King Aelfred by pact and bargain between him and Guthran enjoy'd East Saxony or Essex and the County of the East Angles and as * Faedus Aelfr Guthr c. 1. Lamb. fol 36. some say a far greater part of the Nation In King Ethelred's Reign Swane King of Denmark with a great Army Invaded and made himself Master of the whole Nation forcing Ethelred and his Wife Emme Sister to Richard the Second Duke of Normandy with their two Sons Edward and Alfred into that Country The Danish Kings stayed not long here after Swane had conquer'd the Kingdom they all four Reigned not much above 25 years their only Title was the Sword notwithstanding they either brought hither the custom of the Predecessors naming or giving the Kingdom to his Successor as probably it might have been some times practis'd in their own Kingdoms or used it as they found it here practis'd in cases of Necessity and in their Childrens Minority by the Saxon Kings †Encomium Emmae pr. by du Chesn amongst the old French Histor fol. 164. B. Swane made his Son Cnute his Successor He married Emme the Widow of Ethelred by whom he had his Son Harde Cnute To him his half Brother Cnute gave all that had been any ways under his Government but he being then in Denmark * Ibid. C. Harold possessed himself of the Kingdom who was a Bastard Son of a Maid Servant brought into his Concubines Chamber and imposed upon him by her Fol. 174. A. B. and for this reason Elnoth Archbishop of Canterbury refused to Consecrate him King and to deliver him the Crown and Scepter After the death of Harold Harde Cnute called his half Brother Edward by his Mother Emme afterward called the Confessor out of Normandy and caused him to live with him and dying within less than two years after left him Heir of his whole Kingdom Gul. Gemeticens l. 6. c. 9. Totius regni reliquit haeredem And he not long before he died made William the Conqueror his Successor Anno eodem viz. 1065. Note the Reason Rex Edwardus senio gravatus cernens Clitonis Edwardi nuper defuncti filium Edgarum Regio folio minus idoneum tam corde quam corpore Godwinique Comitis multam malamque sobolem Quotidie super terram crescere ad Cognatum suum Wilhelmum Comitem Normanniae animum apposuit eum sibi succedere in regnum Angliae voce flabili sancivit In the same year King Edward growing infirm with Age perceiving Edgar Aetheling the Son of Prince Edward lately Deceased neither in Mind nor Body fit for the Government nor to bear up against the growing Power and Malice of Godwin's Sons thought upon his Cousin William Earl of Normandy Fol. 511. b. n. 30. and by a firm Declaration Decreed he should be his Successor in the Kingdom Ingulph that Reports this was at the very time Secretaty to this William Earl of Normandy and after he had given him a great Character for his Courage Conduct and constant success in War his Justice Religion and Devotion subjoyns that King Edward sent Robert Archbishop of Canterbury as Envoy to him to let him know he was designed his Successor in his Kingdom Which probably he would never have done if this and the like Donations had been question'd in those days Nay †Review of Tyrhs p. 482. Mr. Selden says This Donation was a lawful Title William Rufus had the same Right and Title of Succession by the Donation of his Father and as his Testamentary Heir * Fragmt de vitâ Gul. long f. 32. n. 20. 30. 40. Orde Vit. f. 39. C. D. Ralph de Diceto Dean of St. Paul's who lived in or very near the time says †Col. 505. n. 40. 50. That Hugh Bigod Steward of the King made speed out of Normandy where King Henry died into England and made Oath before the Archbishop of Canterbury That upon his Death bed upon some Differences that hapned between him and his Daughter the Empress did disinherit her and made Stephen Earl of Boloign his Heir Whereupon William Archbishop of Canterbury giving too much credit to the Words of the Steward consecrated Stephen Earl of Mortaign King at Westminster If this should be true he succeeded as Testamentary Heir to King Henry King John was Testamentary Heir to his Brother Richard who upon his Death-bed when he despaired of Life devised to his Brother John the Kingdom of England and all other his Lands and made all present swear Fealty to him and commanded that his Castles and Three parts of his Treasure should be delivered to him * f. 449. b. lin 37. Wals Hypodig Neustriae f. 457. n. 40. Roger Hoveden who was a Domestick in the Family of King Henry II. and wrote at this very time delivers this King John before he left the World made Henry his First-begotten Son his Heir Paris who * f. 288. lin 2. Mat. West f. 276. n. 40. writes this was Historian to this Henry After what hath been premised the Author's History comes to be considered upon his first Query which he maintains upon Instances in the Saxon Norman and subsequent times The Author's Words P. 13. As to the former I say the resolution of Conscience in this case doth not depend upon the Will and Pleasure of the Person to whom the former Oath was made but upon the ground on which it was made and from which it had its force to oblige and if those cease the obligation of the Oath ceases together with them And whether they do or not no particular Person is so fit to judge as the Three Estates of the Realm as I shall now prove from several remarkable Instances to this purpose in our Histories and Parliament Records whereby I shall make it appear that when a Dispute hath hapned about the Right of Succession and to whom the Oaths of Allegiance were to be made they have looked on it as their proper Right to limit the Succession and determine the Oaths The Author's Words and Application continued ibid. p. 13. V nder the British Government we find a considerable Instance to our purpose Vortigern A.G. 454. Magnates Brit. Regem Vortigernum penitus deserentes unanimiter filium suum in Regem sublimaverunt Mat. West p. 83. the British King had enter'd into a Secret League to bring over the Saxons upon which the Great Men of the Nation deserted him and chose Vortimer in his room he was his eldest Son Here it is plain they thought the introducing a Foreign Power a sufficient discharge of their Obligation to him it being so directly contrary to the publick Good of the Nation although Vortigern gave them no Discharge In the Desertion of Vortigern
was â—oo high and of so great wight that it passed ther lerning and also they durst not enter eny communication in that matier to yeve any avyce or counsaill therein And si h that the said matier was so high that it passed the lerning of the Justices it must needs excede ther lerning and also they durst not enter eny communication in that matter and prayed and besought all the Lordâ—s to have them excused of yevyng eny avyce or counsaill therin To whom it was aunswered by the aavys of all the Lordes by the sâ—â—d Chaunceller that they myghâ— not so be excused for they were the Kâ—ng's peâ—ticuler Counsâ—illers and therforâ— thâ—y had ther fees and wages And as to that the seid Sergeaunts and Attourney seiden that they were the King's Counsaillers in the Law in such things as were under his auctorite or â—y Commissiâ—n but this matâ—er was above his auctâ—â—ite wherin they myght not medle and humbly besought the seid Lordes to have them excuâ—ed of yevyng eny counsaill in that matier and it was aunswered them agayn that the Lordes wuld not hold them excused but let the King's Highness have knowleche what they said and theruppon the seid Chaunceller remembred the Lordes Spirituelx and Tâ—mperelx of the seyings and excuses of the Justices and seyings and excuses of the Sergeaunts and Attourney and also the grete commaundement of the King's Highness that they had to find all such objections as myght be moost mighty to defend the King 's right and title and to defete the title and cleyme of the seid Duk of York And also that the King myght understond that the seid Lordes diden their true and faithful devoire and acquitall in the seid matier desired all the Lordes that every of them shuld sey what he cowed sey in fortefying the King's title and in defeteing of the cleyme of the seid Duc And than it was agreed by all the Lordes that every Lorde shuld have his fredome to sey whâ—t he wold sey without eny reporting or magre to be had for his seying And theruppon after the seiyng of all the Lordes every after other It was concluded that thes matiers and articles here undrewriten shuld be alegged and objecte ayenst the seid cleyme and title of the seid Duc. First It is thought Objectio contra titulum praedictum that the Lordes of this Lond must needs call to their remembraunces the grete othes the which they have made to the King our Soveraigne Lorde the which may be leyde to the seid Due of York and that the Lordes may not breke thâ—o othes Item It is thought also that it is to be called to remembraunce the grete and notable Acts of Parlements made in divers Parlements of divers of the King's Progeniâ—â—urs The which Acts be sufficient and resonable to be lâ—yd againe the title of the seid Duc of York The which Acts been of moche more auctorite than eny Cronicle And also of auctorite to defete eny manner of title be made to eny persone Item It is thought that there is to be leyd agayn the sâ—id title divers entaills made to the heires males as for the Corone of Englond as it may appere by divers Cronicles and Parlements Item It is thought yf the seid Duc shu'd make eny title or cleyme by the Lyne of Sir Leonell that the same Duc shuld bere the Armes of the same Leonell and not the Armes of Edmund Langley late Duc of York Item It is to be allegged agen the title of the seid Duc that the time that King Herry the fourth toke upon him the Corone of Englond he said he entred and toke upon him the Corone as right enheriter to King Herry the third and not as a Conquerour To the which Articles the seid Duc of York gave his answeres in writeing as folowen Responsiones praefati Ducis ad Objectiones tituli sui praedicti Here under folowen the answeres of Richard Plantagenet called comonly Duc of York c. to certain raisons and colours alleged as it is said ayenst the matier of his right and title c. First Where it is said that it is thought n. 14. that the Lordes must nedes calle to their remembraunce the grete Othes which they have made to the King which may be leid to the seid Duc and that they may not breke thoo othes The seid Richard aunswereth and saith that every man under the peyne of everlasting dampnation is bounde to obey to the lawe and commaundements of God by the which lawe and commaundements trouth and justice owe to be preferred and observed and untrouth and injustice laid apart and repressed and soe it is that of this bond and duetye of obedyence to Godd's lawe noo man may discharge himself by his owne deede or act promise or ooth for elles of the contrary wold ensue innumerable inconveniences wherefore sith it is soe that the matier of the title and cleyme of the seid Richard Plantagenet is openly true and lawful and grounded upon evident trouth and justice It followeth that man shuld have rather consideration to trouth right and justice in this matier accordingly with the will of the law of God then to any promisse or ooth made by him to the contrarie considered namely that by the lawe and determination of holy Churche an ooth made by ooâ— persone unto the prejudice or hurt of an other contrarie to trouth justice and charity in the which standeth the plenitude and perfection of Godd's lawe is void and of noon effect neither in eny wise obligatory And that the vertue and nature of an ooth is to confirm trouth and in no wyse to impugne it And over that by the ooth of feaute homage or ligeaunce no man is bounden to any inconvenient or unlawfull thing And how be it that this answer is â—uffisaunt to all maner objections that may be made ayenst his cleyme and entent in this partie by reason or occasion of any ooth yet natheless the seid Richard for as much as the matier of othes is a matier spirituell for more declaration of his conscience honesty and trouth in this partie offreth himself redy to aunswer bâ—fore any Juge Spirituell competent in place and tyme covenable to all maner of men that any thing woll purpose ayenst him in that behalf And to shew clerely that lawfully withouten offence of God and conscience he may cleyme and pursue his right and desire Justice in such fourme as he dooth and that all other persones and namely the Peers and Lordes of this Reame may and by the law of God and man ought to helpe and assist him in trouth and justice notwithstanding any ooth of feaute or other by him or them here before made Over this where it is thought also n. 15. that it is to be called to remembraunce the grete and notable Acts of Parlement made in dyvers Parlements of dyvers of the King's progenitours the which actes been sufficient to be leyed ayenst the title