the Nation which shâ—ws how far the publick Good was thought to be the Measure of the Obligation of these Oaths Gâ—â— Newburgeâ—sis saith L. 1. c. 30. the Bâ—num publicum was the Foundation of this Agreement A. 1153. And M. Westminster that the King and Lords did all swear to it and a solemn Charter was made of it and kâ—pt in a most secure place HISTORY M. W stm A. D. 1153 f. 246. n. 10 Diligentia Theobaldi Archiepiscopi Cantuartensi Episcoporum râ—gni Rex Anglorum Stephanus D x Nâ—â—mannorum Hâ—nricus apud Waâ—ingford talem concordiam inierunt c. By the D ligence of Theobald Archbishop of Canterbury and the Bishops of the Kingdom the following Agreement was made between King Stephen and Henry Duke of Normandy at Walingford King Stephen not having an Heir except only Duke Henry did acknowledge in an Assembly of the Bishops and other chief Men of the Kingdom that Duke Henry had the hereditary Right to the Kingdom of England and the Duke kindly granted that King Stephen should during his Life peaceably enjoy his Kingdom The Agreement was so co firmed that the King him elf and the Bishops then present with the rest of the best Men of the Kingdom sware that Duke Henry after the Death of the King if he should outlive him should enjoy the Kingdom without all Contradiction Oâ— which Agreement there was a Charter made which was kept in a most secure place Ibid. n. 20. This is what the Historian hath in both places cited by the Author The whole Charter is in Brompton Brompton col 1037. n. 60. and begins thus Stephanus Râ—x Angliae Archiepiscopis Episcopis Abbatibus Comitibus Justitiariis Vicecomitibus Bâ—ronibus omnibus fidelibus suis salutem Sciatis quod Ego Rex Stephanus Henricum Ducem Normanâ—â—ae post me Successorem regni Angliae hae edem meum jâ—re haereditario constitus sic e haeredibus suis regnum Ang iae donavi consiâ—mavi Dâ—x vero propter hunc honorem Donationem Confirmationem sibi a me factam Homagio michi Sacramento securitatem fecit scilicet qâ—od fidelis mâ—chi erit vitam honâ—rem meum pro suo posse custodiet per Convâ—ntiones inter nos praelocâ—tas quae in hac Charta continentur Stephen K ng of England c Know ye that I have appointed Henry Duke of Normandy Successor of the Kingdom of England after me and my Heir by hereditary Righâ— and so have given and confirmed the Kingdom of England to him and his Heirs For which Honour Donation and Confiâ—mation made by me to him he gave me Security by Homage and Oath that he would be faithful to me and preserve my Life and Honour to the utmost of his power according to the Agreements made by us which are contained in this Charter Neubrigensis speaking of this Treaty says L. 1. c 30. p. 104. In Paris Ed. 1610. Pâ—acuâ—t inter eos that is the King and Duke solemne salubre colleqâ—ium celebrari ubi amicis mediantibus circa bonum publicum pia prudenti provisione satagentibus pâ—x inter eos caute formata solide firmata est Tâ—ey agreed to have a solemn and wholsome Treaty where by the Mediation of Friends having a pious and prudent respect to the common Good a Peace was warily made and solidly confirmed Ibidem p. 105. Quibus Deo propitio salâ—briter actis Rex Angliam Anglia pacem recepit annis enim jamplurimis fere nudo regis nomine insignis tunc recipere visus est hujus rem nominis quasi tunc primo regnare coepit quia tunc primo purgata Invasionis Tyrannica macula legitimi principis justitiam induit Which things being done by God's Assistance the King received England and England received Peace for having had the bare name of King for many Years now he enjoyed the thing it self and began then first to reign because then the Blot of Tyrannical Invasion being first wiped out he exercised the Justice of a lawful King The Author 's further Words about this Accord p. 22. And thus the Oaths of Allegiance were continued to one that had no Right for his Life and made to one who predended to no R ght but after his Mother who was set aside in this Agreement for we never read that she was present at the Agreement or resigned her Right to the Crown So that here were three Oaths of Allegiance at once that to Maud the Empress that to King Stephen and to Henry II. and yet the general Good of the Nation must give an equitable Sense of these Oaths or there must be Perjury on all sides The Answer to what the Author says about this Agreement and the Exclusion of Maud c. By this Accord it was owned by King Stephen Bishops and Barons which were then the Parliament or Colloquium as the Author confesseth that thâ— hereditary Right was in Duke Henry and he granted that King Stephen during his Life should peaceably enjoy his Kingdom And if the Right was in Henry might he not recede from it if he pleased And the Agreement says he did during Stephen's Life This Retrocession made the Bishops and Barons Oaths to the Agreement lawful and if he had not some testimony of a Cession or Resignation by and from his Mother though not mentioned in the Agreement this Convention could not upon Stephen's Acknowledgment only have own'd his hereditary Right upon Oath And that by Cession or some other way she did quit and leave her Right to govern to her Son 't is most probable from what follows Mâ—nd the Empress Malmâ—b f. 104. a.n. 10. upon the death of her Father and the Invasion of Stephen on the 30â—h of September in the Year 1139 came into England with her Brother Robert and managed the War against him in her own Person her Son being but a Child He was born A.D. 1133. and her Husband engaged in the Defence of Normandy Anjon c. against the King of France Her three great Supports were her half Brother Robert Earl of Gloucester Ranulph Earl of Chester and Milo Earl of Hereford the last Chaon Gervas Col. 1359. n. 10 Col. 1361. n. 10. Col. 1362. n. 10. lin 1. to her very great Grief died in the Year 1143. the second made his Peace with King Stephen 1145. and the first Robert Earl of Gloucester died in the beginning of November in the Year 1146. of an high Fever after he had sent Henry then being about thirteen Years of Age over to his Father into Normandy After the loss of these Friends and Supports the Empress Ibidem Col. 1363. lin 1. wearied out with these Commotions and Wars in England before Lent in the Year 1147. passed over into Normandy chusing rather to live there with her Husband in Peace than undergo so many Troubles In the Year 1149. Ibidem Col. 1366.
his Concordia Discors P. 33 34. first printed 1659 and reprinted 1683. The perfidious Vâ—olation of the Oath made to Maud in crowning Stephen after King Hâ—nrys death brought exemplary Judgments on the wilful Violators thereof and a bloody long lasting Civil War within the Bowels of the Realm between Maud her Son Henry and the Usurper Stephen to the great Oppression Devastation and Desolation of the Publick and People as our Hiâ— orians observe Hollinshed v. 3. f. 46. All the Good they hoped for by disinheriting Maud and crowning Stephen upon their own Terms against his own and their Oaths becoming void and null by his Perfidiousness through Divine Justice which will never permit any good things to spring out of such enormous Evils as Perjury and Treachery which produced sundry Judgments and Civil Wars never ceasing till Henry the right Heir was restored to the Crown by a friendly Agreement the only probable speedy way now to end our present Wars oppressions distractions Military Government and restore Peace and Prosperity in our Nations As to his Instance about Oaths taken during the Controversies between the Houses of York and Lancaster a true Transcript of the Parliament-Rolls will be the bâ—st and plainest Answer which here follows Memorand that the xvj day of Octobre Rot. Parl. 39 H. 6. n. 10. the ix day of this present Parlement The Counseill of the right high and mighty Prince Richard Duc of York brought into the Parlement chambre a Writeing conteigning the cleyme and title of the right that the seid Duc pretended unto the Coroâ—es of Englond and of France and Lordship of Ireland and the same Writeing delivered to the right reverent fadre in God George Bishop of Excâ—stre Chauncellour of Engâ—ond desiring him that â—he same writeing might be opeâ—ed to the Lordes Spirituelx and Temporelx assembled in this present Parlement Aâ—d that the seid Dâ—c myght have brief and exp dient answere thereof wheruppon the seid Chauncellour opened and shâ—wed the seid desire to the Lordes Spirituelx and Temporelx askyng the Ques ion of theym whether they wold the seid writeing shuld be openly radde before them or noo To the which Question it was answâ—red and agreed by all the seid Lordes Inasmuch as every persone high and lowe saying to this high Court of Parlement must be herd and his desire and peticion understand that the seid writeing shuld be radde and herde not to be answâ—red without the King's Commaundement for so much as the matter is so high and of so grete â—â—ght and poyse which writeing there than was radde The tenour whereof followeth in these words It is not to be forgotten n. 11. c. as in Numb 19. followeth And afterward the xvij day of Octobre n. 12. the x day of this present Parlement the seid Chauncellour shewed and declare to the seid Lords Spirituelx and Temporelx being in the same Parlement how that the Counseill of the seid Duc of York gretly desired to have answer of such writeing as upon the xvj day of Octobre last passed was put into this present Parlement on the behalf of the seid Duc and thereupon asked the seid Lordes what they thought was to be doon in that mâ—tier To the which Question it was answered and thought by all the said Lordes That the matter was so high and of such might that it was not to eny of the King 's Sâ—bgeâ—â—s to enter into communication thereof without his high commaundement agreement and assent had therto And feâ—thâ—rmore forasmuch as the seid Dâ—c dâ—sired and required brief and unâ—â—â—aied answere of the seid wryteing and in eschneing and avoyding of gâ—ete and manyfold inconveniences that weren lykly to ensue if hastly provision of good answere in that behalfe were not had it was thought and agreed by all the Lordes that they all shuld goe unto the King to declare and open the seid matier unto hâ—s Highness and to understand what his good Gâ—ace wold to be doon se ther therin And the uppon incontinent all the seid Lordes Spirituelx and Temporelx went unto the King 's high pâ—eâ—ence and therunto openâ—d and declaâ—ed the seid matâ—er by the mouth of his seid Chauncellour of England and the seid mateâ—r by the King's Highness herd and conceyved It pleased him to pray and câ—mmand all the seâ—d Lordes that they shuld sâ—che for to fynde in as mâ—ch as in them was all such things as mâ—ght be objecte and laide aâ—enst the cleyme aâ—â— title of the seid Duc. And the seid Lâ—rdes bâ—â—aught the King that he wold remember him yf he myght fynd eny resonable matier that myght be objected ayenst the seid cleym and title in so moche as his seid Highness had seen and understonden many divers Writeings and Chronicles wheruppon on the morne the xviij day of Octobre the xj day of this present Parlement the foreseid Lordes sent for the King's Justices into the Parlement-chambre to have their Avis and Counseill in this behalf and there delivered to them the writeing of the cleyme of the seid Duc and in the King's name gave them straitely in commaundement sadly to take avisament therin And to serche and find all such objections as myght be leyde ayenst the same in fortefying of the King 's right Whereunto the same Justices the Monday the xx day of Octobre then next ensuing for their aunswere upon the seid writeing to them delivered seiden that they were the King's Justices and have to determine such matiers as come before them in the Law between partie and partie they mey not be of Counseill Anâ— sith this matier was betweene the King and the seid Duc of York as two paâ—ties and also it hath not be accustumed to calle the Justices to Counseill in such matiers and in especiall the matier was so high and touched the King's high Estate and Regalie which is above the law and passed their lerning wherefore they durst not enter into eny communication thereof for it perteyned to the Lordes of the King's blode and thapparage of this his lond to have communication and medle in such matiers And therefore they humble by sought all the Lordes to have them utterly excused of any avyce or counseill by them to be yeven in that matier And then the seid Lordes considering the aunswere of the seid Juges and entending to have the avice and good counseill of all the K ng's Counseâ—llours sent for all the King's Sergeauâ—ts and Attournay and gave theym straight commaundement in the King's name that they sadly and avisely shuld serche and seke all such things as might be best and strengest to be allegged for the King's availe in objection and deferyng of the seid title and cleyme of the seid Duc. Whereunto the seid Sergeaunts and Attourney the Wensday then next ensuring answered and seiden that the seid matier was put unto the King's Justices and how the Monday last passed the same Justices seiden and declared to the seid Loâ—des that the seid matier
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
is made And so the three Bishops thought themselves at liberty to take a new Oath of Allegiance without a Release from the Party concern'd in the former Oath when they had his Authority and that they so had is manifest from the following brief Narrative Stephen was crowned on the Eleventh of the Kalends of January Ibid. f. 101. a. n. 20. Ibid. n. 40. Ibid. b. n. 10. or 22 of December and the Earl of Gloucester came into England after Easter next following and it was after his coming that the Bishops sware Fealty to Stephen Eodem anno non multùm post adventum Comitis juravêrunt Episcopi Fidelitatem regi c. at which time he also swore to preserve the Liberty and strict Discipline of the Church as they were drawn up in a Charter or Grant in which the Pope's Confirmation of his Title is mentioned the beginning whereof runs thus Ego Stephanus Dei gratiâ Ibidem assensu Cleri Populi in Regem Angliae electus a Domino Wilielmo Archiepiscopo Cantuariae Sanctae Ecclesim Romanae Legato consecratus ab Innocentio Sanctae sedis Romanae Pontifice postmodum confirmatus c. I Stephen by the Grace of God by the Assent of the Clergy and People chosen King of England crowned by William Archbishop of Canterbury and the Legat of the Roman See who was his Brother and confirmed by Pope Innocent c. And notwithstanding he was at first set up by the Fraud and Artifice of three or four Persons and the Bishops especially who then govern'd the Nation and that he immediately forced himself upon the then Norman Government by an Army of Foreigners plundring and cruel Flemmings and Britans and home-bred Norman Soldiers that knew not how to live as appears by the History before-recited yet the Archbishops and Bishops suggested to to the Pope Richard Prior of Hagustald or Hextiam Col. 313. n. 30 40 c. in the Body of the Bull. That after the Death of King Henry Religion in England was disturbed turbata est religio in regno Angliae nullum mandatum pacis seu justitia in adjutorio regali vigebat and there was no Royal Command for either Peace or Justice and that the greatest Wickednesses were committed with impunity atque atrocitatem tantorum scelerum comitabatur impunitas and that for the putting a stop to such Evils Stephen was chosen King communi voto unanimi assensu tam procerum quam etiam populi by the common Vote and unanimous Assent of the Great Men and People and crowned by the Bishops and all this was testified by the Letters or Instruments of the Archbishops and Bishops of the Countrey and the Lovers of the Holy Romane Church the glorious King of France and illustrious Earl †This was Theobald Earl of Blois Stephen's eldest Brother Theobald Qâ—emadmodum venerabilium fratrum nostrorum Archiepiscoporum earundem Regionum Amatorum Sanctae Romanae Ecclesiae gloriesi Francorum Regis illustrius Viri Comitis Theobaldi scripta testantur Then upon this recounting the Suggestions the Pope and Title-Maker says Nos cognoscentes Vota tantorum Virorum in personam tuâ—m praecunte divina Gratia convenisse c. We knowing the Votes of such great Men to have concurr'd in the Choice of thy Person by the Guidance of Divine Grace And for these things and his promise of Obedience and doing Honour to St. Peter he confirms whâ—t had been done and grants him the same Honour and Prerogative he had granted to his Predecessor Henry This Bull of Confirmation was directed to King Stephen Innocentius Episcopus c. carissimo in Christo filio Stephano illustri Anglorum regi salutem Apostolicam benedictionem From the precedent Narrative it is evident the Bishops sollicited this Bull of Confirmation and obtained it before they sware Fealty to King Stephen though upon false Suggestions However the Pope knew he was chosen by the Guidance of Divine Grace and the Bishops and Nobility believed him to be infallible or at least had such a D ference to his Confirmation of Stephen that they took themselves to be discharged and released fâ—om their Oaths made to Maud for if this Confirmation was valid her Title was made null and void Maâ—msb f. 108. a.n. 40 50. That such as favour'd Stephen own'd his Title from the Pope it is evident from his Brother the Legat's Speech who left Stephen and adhered to Maud and then revolted from her to him again when he called a Council at Westminster by his Legantine Power wherein chiding Letters from the Pope were read because he had not delivered his Brother Stephen then in Prison in which he was exhorted to do it either by Ecclesiastical or Secular Power After the reading whereof he made a Speech in excuse of his faithless Actions and commanded those present on bâ—hâ—lf of God and the Pope ex parte Dei Apostolici that they should aid the King with their utmost Power who was anointed by the Will of the People and Assent of the Apostolick See voluntate populi assensu Apâ—stolicae sedis inunctum and to excommunicate all Perturbers of the Peace that favoured the Dutchess of Anjou i. e. Maud. If the Author had understood this he would scarcely have ventured upon this Instance to have confirmed his Opinion about the Release and Discharging of Oaths The Words of the Author p. 23. Secondly That upon the Agreement between King Stephen and Henry II. Mâ—â—d her self was set aside and Stephen was to continue King for his Life and Henry II. to succeed him Now if Oaths of Allegiance must not be interperted by the publick Good here are insuperable Difficulties as to the Obligations of these Oaths for the Allegiance was transferred from the right Heir to an Vsurper as Stephen must be owned to have been by thâ—se who deny that Allegiance can be transferred from the right Heir And they must continue Allegiance to the Vsurper for his Life which is repugnant to the nature of our Constitution if it be founded in a Lineâ— and Legal Succession And again Maud to whom they had sworn is set aside and the Reversion of the Crown it entailed on her Son although she was living What may be replied to this The insuperable Difficulties have been overcome before in the Discourse about the Pope's Confirmation of King Sâ—ephen As to Maud's having been set aside it shall be considered in the last Paragraph of this Instance and also something more said of this Publick Good which brought on this Agreement and what it was but it must needs be so because done by the Common-Council of the Nation The Author's Words in the same Page A. 1153. Paris ibid. Matt. Westm and Paris say The Right of King Henry II. was declared by King Stephen in conventu Episcoporum aliorum de regno Optimatum which was the Dâ—scription of a Parliament at that time for as yet the Baronage represented
nor enter into Communication thereof without the King's Command Agreement and Assent 5. The King consented and prayed and commanded the Lords to search and find out what might be opposed to the Duke's Claim and Title 6. They sent for the Judges to advise what might be said against the Duke to fortifie the King's Right 7. The Judges excused themselves for that the matter was so high and touched the King's high Estate and Regality which was above the Law and passed their Learning wherefore they dare not enter into Communication thereof 8. The Loâ—ds upoâ— this Answer of the Judges sent for the King's Serjeants and Attorney and gave them the same Command who made the same Excuse the Judges had done but the Lords would not take it Whereupon the Articles and Reasons against the Duke's Claim and Title were exhibited n. 13. 9. The Authour p. 22 23. That in the Articles and Reasons against the Duke's Claim and Title theâ—e is not the least word of Phileppe's being illegitimate or that her Fâ—ther was divorc'd from her Moâ—her nor is there the least mention that the House of Lancaster claimed by Prescription of sixty years Possession which comes from Doâ—eman and the Authour is to find out both these things in the Parliament Rolls or be guilty of downright Falshood for he reports them both as pleaded against the Duke's Title As to the first there needed no other Argument if it had been insisted on and could have been made good And as to the second neither was it insisted on or mentioned as was said before and if it had Nâ—llum tempus occurrit Regi would have been a sure Rule in this Case For it is absurd to think that Prescription at least so shâ—â—t a Prescription as this could justifiâ— a wrong and make a Title in this Case for there is another Rule of Law Non confiâ—matur Tractu temporis quod de jure non subsistit no length of time makes that lawfull which was not so from the beginning If there be a right Heir of the Crown that claims or else would claim but that he wants either notice of his Right and Title or Power to make it good or forbears to claim for other sufficient Reasons Vide n. 16. here Prescription signifies nothing 10. It was allowed at least not contradicted that all Persons and namely the Peers and Lords might and by the Laws or God and Man ought to help and assist him in Truth and Justice n. 14. 11. It was the Judgmeâ—t of all the Lords that the Title of the Duke which was onely Succession by Birthright and Proximity of Bloud could not be defeated 12. That Richard Duke of York was by King Henry and the Lords acknowledged as very and rightfull Heir to the Câ—own and that he was so to be called 13. That the mean found out to save the King's Honour and appease the Duke if he would was not or could be imposed or forced upon him but he was at liberty to accept or refuse it and was no ways bound but by his own coâ—sent n. 18. 14 The Oath that Richard Duke of Yâ—rk took was in pursuance of the Agreement and any man may lawfully take an Oath to make good a Bargain where no man receives Injury but himself and so with his consent that is injured any other Person concerned in the Agreement may swear to the observation of it Pag. 24. Lastly The Weal Rest and Prosperity of the Land which the Authour calls the Publick Good followed this Agreement and the Reason was that the Câ—own was restored to the right Heir whereupon all Murmuring Hatred Sâ—â—â—e and Contention amongst the People and Evil-will and Contrivances againsâ— one another ceased These are all the Instances the Authour useth yet two are wanting the Successions of Edward III. and Hen. IV. but seeing he may have peruâ—ed an excellent Treatise bearing the Title of the Grand Question he may haply be convinced by what the learned Authour hath said Pag. 80 81 83 85 86. that they were both Vsurpers the first during his Father's Life the second from the very time he took upon him Kingship The Authour's Words p. 29 30. There are three sorts of Persons may be said to have Possession of the Crown an Vsurper a King de jure and a King de facto and because the Distinction betewen these doth not seem to be well understood I shall briefly explain it 1. An Vsurper is one that comes in by force and continues by force 2. A King de facto is one who comes in by consent of the Nation but not by virtue of an immediate hereditary right 3. A King de jure is one who comes in by Lineal Descent as next Heir and whose Right is owned and recognised by the Estates of the Realm The Authour may make what verbal frivolous Distinction he pleases between a King de facto and an Usurper yet de facto they are the very same Let him shew an Example in this Nation if he can of a King de facto set up without an Army or Force or of an Usurper that came in by Force who did not make the Nation own him and though he took upon him the Name and Title by force and the assistance of a Party yet afterwards made the States and People consent to it Was not Edward II. made Prisoner by an Army and afterward deposed and Edward III. in his Father's lifetime set up by such as were under the power of that Army And Henry IV. set up by such as acted and were under the power of that Force Our Laws make no difference betwen an Vsurper and a King de facto according to the Author's description The Author's Words pag. 32. A King de facto according to our Law as I said is one in quiet possession of the Crown by Consent of Parliament without hereditary Right such as Henry IV. V. VI. VII were all thought to be by those who made this Distinction For as far as I can find the Distinction of a King de facto and de jure was then started when the House of York so much insisted on their hereditary Right and so many of our Kings had governed the Kingdom by Consent without it therefore the Lawyers to find a sufficient Salvo for the Kings of the House of Lancaster framed this Distinction of Kings de facto and de jure Records Law and History Rot. Parl. 1. Ed. IV. n. 8. In the First of Edward IV. the Commons exhibit a Petition in Parliament wherein they set forth his Title by Birth-right and Proximity of Blood and say Richard II. was lawfully rightly and justly seated and possessed of the Corone of Englond Roiall Power Estate Dignite Pre-eminence Governaunce and Lordship of Irelond and the same joyed in rest and quiet without interruption or molestation Ibid. n. 9. unto the time that Henry late Eâ—le of Derby sonne of John of Gaunt the fourth goten sonne of King
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