Liege Subjects And the Fidelity which the Subject owes to the Crown Natural Obedience And this more clearly appears in Indictments of Treason which of all other Law Process are pen'd with the greatest Niceness and Certainty And therefore in the Indictment of the Lord Dacre upon the Northern Rebellion 26 H. 8. it is said Predictus Dominus Dacre debitum fidei Ligeantiae suae quod prefat Domino Regi Naturaliter de jure impendere debet minime curans c. The said Lord Dacre not regarding the Faith which he did Naturally and of Right owe to the King c. And Reginald Poole a Cardinal of the Church of Rome was Indicted 30 o H. 8. for committing Treason contra Dominum Regem supremum Naturalem Dominum suum Against the Lord the King his supreme and Natural Lord. And the constant form of the Indictments against the Persons lately executed for the Popish Plot is That they as false Traitors against the most Illustrious most Serene and most Excellent Prince Charles the Second c. their Supreme and Natural Lord the cordial Love and natural Obedience which faithful Subjects should and of right ought to bear to our said Soveraign Lord the King wholly withdrawing did compass c. And therefore as the Common Law is more worthy than the Statute so the Law of Nature is more worthy than both So then no Human Power can hinder the Descent upon the Right Heir of the Crown The Descent makes the King Allegiance is due to the King by the Law of Nature the Law of Nature cannot be abrogated by Human Power ergo The right Heir of the Blood cannot be excluded by Parliament which is a Human Power Secondly It is evermore a certain Vestigue or Footstep of a Law founded in Nature when a Thing displac'd is seldom or never in a State of Rest until it be compos'd again in its own Native Centre and Repository For though all human and written Laws may be worn out by Desuetude and tacit Consent yet the Institutions of Nature will never be abolish'd by the longest tracts and courses of Time but will always retain an Animum revertendi and will certainly at length attain it And of this kind is the Law of Succession to the Crown by the right Heir For we find in the Stories of all Nations as well Barbarous as Civil that during Usurpations and Invasions upon the Crown though countenanced even by public Establishments and Consent of the People that those States notwithstanding have always continued under Convulsion and Disease like a Magnetic Needle that never ceaseth to tremble and trepidate 'till it have found out its beloved North-Pole And in such Case it hath constantly far'd with those Bodies Politic as with a Body Natural upon Dislocation of a principal Bone they have breathed it may be and moved a little but still under Languors and Anguish and Feavorish Habits and Dispositions and never well 'till the Bone was set again and reduced to its right place I will rather choose to extract some short Instances of this kind out of the Memoirs of our own than foreign Nations as being Argumentum ad Hominem And shall for brevity ascend no higher than the Norman Conquest And the same Instances shall be of Usurpations upon the Crown contenanc'd by the Public Sanctions of this State The second William and first Henry usurp'd the Crown and thereupon this Realm remain'd constantly under inquietude and commotion until the Death of Robert their elder Brother and his Son William without Issue whereby the Right of the Crown centred in the said Henry The Usurpation of Stephen upon Maud the Empress Daughter and Heir of the said Henry was accompanied with Tragical Convulsions of this Nation which never ceased till the Restauration of the right Heir viz. Henry the second Son of the said Maud in which Henry the Saxon Bloud was likewise restor'd his Grandmother being next Heir of the Bloud to Edgar Atheling Upon the Disinherison of the House of York by that of Lancaster this State sustain'd a Convulsion not to be parallell'd in all the Stories of the World It is infinite to recount the Laniages the Butcheries the Rapines that were committed here There were fought in this Island during this Tempest of War as a modern Author hath observed 17 pitch'd Battels and no less than 8 Kings and Princes of the Bloud 40 Dukes Marquesses and Earls besides Barons and Gentlemen innumerable and 200000 of the Common People slaughter'd and destroy'd And though this Combustion continued 60 years for so long it was from the Usurpation of Henry the Fourth to the Expulsion of his Grandson Henry the Sixth yet the Body Politic enjoyed little ease till it had purged out the Usurpers like a Body Natural that having received into the Stomach matter inimical and contrariant to Nature is never at quiet till it have work'd out the same noxious and malignant matter by all the Passages of Evacuation though to the manifest hazard or destruction of the Man himself The Usurpation of Richard the Third determined in his own death and the Introduction of the right Heir some time after That of Jane Grey of the House of Suffolk was but an Offer of Usurpation as being a Quotidian Ague that lasted but nine days which ended upon the Restitution of Queen Mary Lastly it 's a matter of fresh and bleeding sentiment and experience what Agonies and Throws the English Nation sustained after that fatal and impious stroke given to King Charles the First of ever Glorious Memory Nature is wanting in adequate Metaphors and Similitudes to express so great a Calamity This State was like the Demoniac in the Gospel she was torn worried and shak'd together and of this there was no intermission untill the evil spirit was dispossessed and His Gracious Majesty that now is whom God long preserve restor'd to that Crown which God and Nature and the immutable Customs of this Nation had given him So then it doth most evidently appear by these Instances that the Succession of the Crown to the next of Bloud is a Law eternal and wrote with the immediate hand of God and Nature And that although Nature may for some time be repell'd and kept off with the Forks and Instruments of humane violence that yet it will sooner or later ever more recur and return with the greater swing and vigour And that therefore a Dominion obtain'd by Usurpation is like a vast and ponderous Globe of Iron supported in the Air by main strength of Arms which upon removal or withdrawing of the same force by fatigue or imbecillity of the Bearers will at length certainly attain its Centre of Gravity and with the fall crush and confound the Supporters And where ever this eternal Law and Rule of Nature hath been impeached and violated that hath evermore been done by the immediate and most visible act and finger of the Divinity it self who is King of Kings by whom they reign
also to a King in Possession though he claim too by Inherent and undoubted Birth-right for the same Reason which the People may think sufficient to exclude the Right Heir may when they please be deem'd valid enough also to depose and eject the lawful Possessor of the Crown Thirdly No Person or Community of Mankind can give away or transfer a thing which they never had in them to give And of this Nature is the Right of Succession to the Crown which is not the Gift of Man but the immediate Dowry of God Nature and the immutable Customs of the State This may be prov'd by the Scriptures Fathers Councils Canon Civil Common and Statute-Laws of which I shall give only a Tast Fourthly The Succession of the Crown to the next Heir of the Bloud is one of the highest most essential and undivided Rights of the Crown and a Pearl of the most transcendent Oriency and Magnitude in the Imperial Diadem of England And the Kings of England themselves their Chancellors Treasurers and all other the great Officers of State their Privy Counsellors and the Judges who are onely to expound all Statutes by which this Right of Succession may be violated are all by provision of the Law solemnly sworn upon the Holy Evangelists to maintain and defend the Rights of the Crown and that they suffer no Disinherison or Damage to accrue thereto And every Member of the Commons House who is to be a Party to the making these Laws of Reprobation by the Statute of Eliz. is obliged before he enter or have voice in the said House to swear that he will to his power defend all Jurisdictions Privileges Preheminences and Authorities united and annexed to the Imperial Crown of this Realm and if he do not he shall be deem'd no Member of that House and shall receive also further Punishment And the Oath at this day to be taken in the Court Leets all over the Kingdom by every Subject above 12 years old is That he will be true and faithful to our Sovereign Lord King Charles the Second and his Heirs c. And it is remarkable that in the Parliament of 42 Ed. 3. the Lords and Commons being demanded their Advice by the King in a matter relating to the Crown did answer with one voice That they could not assent to any thing in Parliament that tended to the Disinherison of the King and his Heirs or the Crown whereunto they were sworn And Sir Edward Coke commenting upon that Record saith That it is Law and Custom of Parliament That no King can alien the Crown from the right Heir though by consent of the Lords and Commons And in another place he saith That King John 's Resignation of the Crown to the Pope was utterly void Because saith he the Royal ' Dignity is an Inherent inseparable to the Royal Bloud of the King descendable to the next of Bloud of the King and cannot be transferr'd to another thus he And which is much more the Parliament of 1 Jacobi do recognize That the Crown of England did descend upon King James by inherent Birthright as being lincally justly and lawfully next and sole Heir of the Bloud Royal. And to this Recognition they do submit themselves and Posterities for ever untill the last drop of their Bloud be spilt And further do beseech his Majesty to accept of the same Recognition as the first fruits of their Loyalty and Faith not only to His Majesty but also and to his Royal Progeny and Posterity forever for so are the words So here this Parliament do oblige themselves and Posteritics which we are to defend and maintain the Succession of the Crown not onely to King James but also to his Royal Progeny and that not in a general way to any of his Bloud but onely to such Person to whom it shall be due by inherent Birthright and Proximity of Bloud as they recognize it was to the same King James So then the Succession of the Crown to the next Heir of the Bloud being a fundamental Right of the Crown and a Right annexed and secured to the same Heir not onely by the Laws Divine Natural and Humane but also as I have clearly proved by the Obligation and Sanctimony of National Lawful Recognitions and Oaths it doth evidently follow That the Parliament of England cannot by Law alter or violate the said Succession contrary to the same National and Legal Recognitions and Oaths Lastly The right Heir of the Crown cannot be barr'd or excluded by Act of Parliament Because the Accession and Descent of the Crown in an instant absolutely purgeth and dischargeth all Obstructions and Incapacities whatsoever created by the same Act of Parliament And the reason given in our Books of Law is Because say they upon Descent of the Crown immediately a Body Politic is superadded to the Body Natural of the King 's and these two Bodies in an instant become Consolidate Consubstantiate and Indivisible in one and the same Royal Person and thereupon the Body Politic which is the more worthy and sublime Nature and that is in no wise subject and obnoxious to the humane Imbecillities of Death Infancy Crime or the like draweth from the Natural Body all Imperfections and Incapacities whatsoever and in a moment endows and ennobles the same Natural Body with the Divine Embellishments and Perfections of the Politic. As it hath been frequently resolved by the Judges of England Plowd Com. 238. v. Lord Barkley's case Et ibid. 2 3. a. v. the case of the Dutchy of Lancaster Coke's 7th Rep. 10. a. Calvin's case And in the same Calvin's case 12. a. a Case argued by the Lord Chancellour and all the Judges of England it is affirmed That the King 's being a Body Politic is founded upon Necessity and the deepest Polities and Wisdom of our Law And why so Because saith that Case expresly Hereby the Attaindors and Disability of him that hath Right to the Crown are avoided lest in the interim there should be an Interregnum which the Law will not suffer This I shall now proceed to make good by two great and impregnable Instances drawn out of our Books of Common Law Histories and Records The first is that of King Henry the Sixth who being discomfited in Battel by King Edward the Fourth was in the first of the same King Edward disabled from all Regiment and attainted of High Treason by Act of Parliament The said King Henry some years afterwards by the assistance of the great Earl of Warwick was restor'd again to the Crown and held a Parliament And the Judges of that time were all of opinion That notwithstanding the Parliament of Edward had disabled Henry from all Government and attainted him of Treason that yet in the same moment that Henry reassumed the Crown the said Parliamentary Incapacities were to all intents discharged and avoided And yet Henry was at first but onely King de facto
to be legitimated and made inheritable to all Preheminences Honours Dignities c. Exceptâ Regali Dignitate for so are the very words of the Record Excepting the Regal Dignity Besides Margaret Countess of Richmond and Derby the Mother of King Henry the Seventh through whom he must necessarily derive what ever Title he could pretend to died not till 1 H. 8. So then here are four plain Legal Impediments in the Title of King Henry the Seventh 1. He derived from a Bastard Stem or Slip. 2. Though the said Children by Katharine Swinford were legitimated by Parliament yet the Dignity Regal was excepted by the same Parliament and they remained illegitimate as to that 3. His Mother out-liv'd him And 4. which was worst of all the onely true and legal Title remained in Elizabeth eldest Daughter to King Edward the Fourth who descended lineally from Lionel Duke of Clarence John's elder Brother with which Elizabeth the said Henry afterwards married as I have observ'd And therefore this Prince having so many palpable Flaws and Impediments in his Title and well knowing that the Laws Divine Natural and Humane were all against him no man I suppose will wonder that he made his Courtship and Addresses to the People for their favour and good will and was so sollicitous of an Establishment by them And as the most considering and thinking men of that Age had no great opinion of this Prince's Parliamentary Title so it is plain that this King himself laid no great stress upon it which is the more remarkable because all our Historians do with one voice proclaim him one of the wisest and most sagacious Princes that ever sway'd the Scepter in this Realm Now that he himself relied not upon this Statute-Kingship is most plain from two Acts of Parliament which I that produce First by that very Statute Law by which the Crown was establish'd upon him for as my Lord Bacon hath observ'd he did not press to have that Act penn'd by way of Declaration or Recognition of Right as on the other side he avoided to have it by new Law or Ordinance but chose rather a kind of middle way by way of Establishment and that under covert and indifferent words viz. That the Inheritance of the Crown should rest remain and abide in the King c. Which Words might equally be applied That the Crown should continue to him but whether as having former right to it which was doubtful or having it then in fact and possession which no man denied was left fair to Interpretation every way Secondly from that Act of Parliament which he procur'd to be made in the 11th of his Reign in which it was ordain'd That no person that shall serve the King for the time being for so are the very words in his Wars shall therefore be attainted or impeach'd in his Person or Estate what fortune soever fall by chance in Battel against the mind and will of the same King for the time being This Law saith the Lord Chancellour Bacon who comments very handsomly upon it had in it parts of prudent and deep foresight for it took away occasion for the people to busie themselves in prying into the King's Title to the Crown for howsoever that fell out to be good or bad the People's Safety was already provided for And the same Author in the close of this King's Life reckons his opportune and seasonable Death among his greatest Felicities which withdrew him from any future blow of Fortune which certainly continues he in regard of the Title of his Son being then 18 years of Age and a bold Prince had not been impossible to have come upon him Because upon the decease of King Henry's Queen in whom as I have often said the true Title lodged and who died some years before the Crown immediately by the Law of England descended upon Prince Henry for there can be no Tenancy by the Courtesie of the Crown So then in the Opinion of the said Lord Chancellour also this King's Title by Statute was of small account in respect of that of his Son by Common Law By all which it plainly appears that this King had no legal or inherent Right of his own to the Crown and therefore full contrary to his own inclination he was constrain'd to stoop and truckle under an Establishment of the People which notwithstanding was invalid and null in Law as I have proved For King Henry the Eighth though no man ever doubted but that he was King de jure as bearing united in his own individual Person his Father's pretended Title of Lancaster and his Mother's legal and undoubted one of York yet there happened to fall out in this Prince's Case certain anomolous and odd Circumstances and Niceties and secret Intrigues which necessitated him contrary to his better knowledge and the native greatness of his Soul to allow his People a share or copartnership as I may say in the ordering the Succession of the Crown that so the matter might go as far as Human Power could carry it And therefore first by the Statute of 25 he confirms his Divorce from Katharine and bastardizeth Mary her Daughter and on the other hand corroborates his Marriage with Anne and legitimates Elizabeth her Daughter and makes her inheritable to the Crown The Legitimation or Bastardy of these two Daughters depending much upon the validity or weakness of the Papal Dispensation in the first Marriage and this point being a Vexata Quaestio in those days he had hoped to have cut this Gordian Knot which he could not untie with the Sword and pretended Omnipotency of a Parliament And then after he had done this he forthwith marries Jane Seymour and by the Statute of the 28 attaints his Wife Anne and bastardizeth Elizabeth her Daughter and so then according to the Poet Qui color albus erat nunc est contrarius albo And then breaking down the Boundaries of all Law and common Reason and with a prodigious wildness and extravagancy he procures it to be Enacted That in case he had no Issue by Jane he might dispose of the Crown to whatsoever Person he did in his own discretion think fit And the whole Nation was oblig'd by the Sanctimony of an Oath to the defence of this Law This he did that he might advance to the Throne his Natural Son Henry Fitz Roy Duke of Richmond whom he loved most passionately who yet died not long after and so to exclude for ever his Sister Margaret of Scotland and all her Descendents Then by the Statute of 35 he entails the Crown upon himself Prince Edward and the said Mary and Elizabeth and in case they happened to have no Issues of their Bodies then he was again impower'd by the same Act of Parliament to dispose of the Crown to what person or persons soever he pleased by his last Will and Testament And the whole Narion was likewise sworn to the Maintainance
Persons and their Rights that in any wise may or might claim an Interest to the same Crown in Possession or otherwise shall during the Life of the Queen's Majesty be judged a High Traitor and therefore the same Queen had little reason to scruple the passing a Bill of this Nature But I much doubt whether a Common Law-Prince who owes his Title only to God Nature and the immutable Customs of the Nation unless under like Circumstances with King Henry the Eighth would have assented to an Act so derogatory to the Regalties for the manifest Inconveniencies that might insue to himself and posterity by such Assent and Condescention Some of which I have discovered in the beginning of this Discourse in my second Reason why the Succession of the Crown is annexed to Proximity of Blood Secondly Wise men do not only consider Things that are acted but more especially the Season and Junctures of Time when those things were acted and Sir Edward Coke a great Master in the Science of our Law doth frequently admonish us That the true Scope and Design of our Statute-Laws are oftentimes not at all intelligible without the help of the Chronicles and Memoirs of that Age wherein the said Statute-Laws were made Of which there cannot be a more pregnatn Instance than this here And therefore I will in Charity believe That the Contrivers of this Objection did never rightly inform themselves of the History and true Reason of making this Statute which in Truth was this Some time before this Statute Mary Queen of Scots Dowager of France and the Mother of our King James being discomfited in Battel by her own rebellious Vassals of Scotland she like a Dove pursued by Vultures fled into the bosom of her Kinswoman Elizabeth of England for Protection Elizabeth who inherited her Father's Malaversion to the House of Scotland and contrary to those Royal Sympathies which one Sovereign Prince ought to have for another in Distress and indeed against the Rules of common Hospitality commits Mary to a loathsom Prison The Pope with some of the Catholick Princes and others of her Friends thought this was no very kind Treatment and therefore endeavour not onely to set her at liberty but also to advance her to the Throne the generality of Mankind in that Age looking upon the said Mary's Title to be much clearer than that of the Queen in possession the later being bastardiz'd and render'd incapable of the Crown by solemn Act of Parliament which still stood unrepeal'd and therefore valid in Law at leastwise but a Statute-Queen as I prov'd before And the former deriving as is shew'd above by the Common Law and a direct true line from Margaret the eldest Daughter of King Henry the Seventh and Elizabeth his Queen And besides in the very year this Statute was made there was a Marriage warmly prosecuted between the said Queen Elizabeth and Henry Duke of Anjou who afterwards became King of France upon the death of his Brother Charles the Ninth and no small care was then taken for Establishment of the Succession upon the Issues proceeding from the same Marriage And there is a remarkable Clause among others in the same Statute of 13 viz. That every person or persons of what Degree and Nation soever they be shall during the Queen's Life declare or publish that they have any right to enjoy the Crown of England during the Queen's Life shall be disenabled to enjoy the Crown in Succession Inheritance or otherwise after the Queen's Death Which Clause was most apparently contriv'd against the same Mary and her Son King James So that the plain scope and design of this Statute was utterly and for ever to exclude and disinherit the same Mary Queen of Scots and all her Posterity and to extinguish absolutely that Right to the English Crown which the Laws of God and Nature and the Common Law of England had given to her and them And therefore how any man that pretends Loyalty or Allegiance to His Gracious Majesty that now is who derives his Title lineally from the said Mary Queen of Scots can object this Statute was a Precedent for Exclusion of the next Heir by Act of Parliament I cannot understand And the Objector may do well to consider how far he may enforce this Objection without hazard to his Person and Estate for no man can maintain the validity of this Statute without manifest Derogation and Injury unto his Majesty's Title Thirdly To affirm that the Parliament hath no Power to bind the Succession of the Crown in point of Descent and to affirm that the Parliament hath no power to exclude the next Heir of the Bloud Royal is the same Proposition Now I have proved above That the Succession of the Crown is annex'd to Proximity of Bloud by the Laws of God and Nature and that Acts of Parliament contrariant to those Laws are void So then the Case is no more than this An Act of Parliament ordains that no Person under a certain Penalty shall dare to affirm That Statute-Laws contrary to those of God and Nature are null and void I think no man ever did or doth or will doubt but that such Act of Parliament is absolutely void in it self and that the Judges are oblig'd to expound it so when ever it comes before them in Point of Judgment Lastly This Act of 13 being a Law made as I have proved above in diminution or rather in open and hostile Defiance of the Title of Scotland to this Crown it was by tacit and implied consent of the Law and the whole Nation utterly abrogated upon the first moment of the happy Union of the two Crowns in the person of King James or at leastwise by the solemn and express Repeal here of all hostile and unkind Laws between England and Scotland of which I am sure this of 13 was none of the least I shall draw towards a Conclusion with a certain apposite Note which one of our Latin Historians makes upon the nine days Reign of Jane Grey and the easie Admission of Queen Mary to the Crown Tali constanti veneratione nos Angli legitimos Reges prosequimur ut ab corum debito obsequio c. Such and so constant a Veneration saith he have we Englishmen for our lawful Princes that we are not to be drawn from our Allegiance and Loyalty to them by any colours or specious pretences whatsoever no not with the Bait even of Religion it self of which matter this Case of Jane may be a memorable and plain Instance For though the Foundations of her Government were laid as firm as was possible and the Superstructure also wrought with all the Art and Cunning in the world yet as soon as ever the lawful and undoubted Heir of the Crown appear'd and shew'd her self to the People all this fine and curious Frame presently fell to the ground and was ruin'd as it were in the twincle of an Eye and that principally by the
for certain Reasons to them appearing As sometimes for Repugnancy and Impertinence and therefore where the Statute of Carlile enacted That the Common Seal of the Cistercian and Augustine Monks should be in the Custody of the Abbot and four others of the Covents And that any Deed seal'd with the same Seal not so kept should be of no effect This Statute was adjudged void for Repugnancy because the Seal being in the Custody of the four the Abbot could not Seal with it and when it was in the hands of the Abbot it was out of the Custody of the four And so by this Statute these two Orders could make no Deed valid in Law Sometimes for Absurdity as where the Statute of Edw. 6. gives Chantries to the King saving to the Donors and Founders all Services c. This Act was adjudged void as to the Services For it is absurd and contrary to Common Reason saith the Book that the King should hold of or do Service to his Subjects 14 Eliz. Dyer 3. 13. a. Mich. 16 17 Eliz. c. B. Strowd's Case Lastly the Judges have expounded Statute-Laws void in themselves when they are contrary to those of God and Nature and they are bound to adjudge them so when ever such Statute Laws come before them because the Laws of God and Nature are the Rays and Emanations of the Divinity they are eternal indelible immutable and therefore cannot be altered or Impeached by any human Power or Authority but only by the God of Nature it self who did originally ordain them And of this because it is the principal Matter now in hand I shall be the more plentiful in Instances And therefore if it should be enacted by Parliament That no Man should honour the King or love his Parents or Children or give Alms to the Poor or pay Tithes to the Parson of his Parish or the like these Acts are ipso facto void because they are contrary to the express Divine Commands Dr. Stud. lib. 1. cap. 6. 21 Hen. 7. 2. v. So where a Man was made Judge in his own Cause by Act of Parliament This Act hath been adjudged void because say our Books it is contrary to the Law of Nature that one and the same Person should be Judge and Party Cokes 8 Rep. a. v. Dr. Bonham's Case Hobart's Rep. 87. Day v. Savadge So an Act of Parliament can never make the Grant of an Ideot or Lunatic good for Jura Naturae sunt immutabilia saith the Book The Laws of Nature are immutable Hob. 224. Needler's Case By the Statute of the 25 Edw. 3. cap. 22. a Man attainted in a Praemunire is by express words out of the Kings protection generally and that it should be done with him as with an Enemy by which words any Man might have slain him as it is holden 28 Hen. 8. Title Crown Br. 197 until the Statute of 5 Eliz. 1. yet the King may protect him and pardon him Because the Protection of the Soveraign to the Subject is due by the Law of Nature Coke's 7th Rep. 14. a. Calvin's Case The Statute of 23 Hen 6. cap. 8. and several other Statutes enact That no Man shall be Sheriff of any County above one year and that any Patent of the King to any person for a longer Term though with an express Clause of Non obstante shall be absolutely void and of none effect and the Patentee perpetually disabled to bear the Office And yet notwithstanding it is resolved by all the Judges of England That these Acts of Parliament are void And that the King may by non obstante constitute a Sherif for Years Life or Inheritance And what is the Reason which the Judges give of this Resolution Why because say they in express words this Act of Parliament cannot bar the King of the Service of the Subject which the immutable Law of Nature doth give unto him for Obedience and Ligeance of the Subject add they is due to the Soveraign by the Law of Nature See 2 Hen. 7. 6. v. Calvin's Case 14. a. in Coke's 7th Rep. And thus upon the whole Matter of my first Reason I have as I conceive effectually prov'd these two Propositions First That the Succession of the Crown of England is inseparably annexed to Proximity of Blood by the Laws of God and Nature Secondly That Statute-Laws contrariant to those of God and Nature are ipso facto null and void And from hence it doth necessarily follow That the next Heir of the Blood Royal cannot be barr'd from the Succession by Act of Parliament Secondly The Succession of the Crown to the next Heir of the Blood Royal is a fundamental and primary Constitution of this Realm and indeed the Basis and Foundation of all our Laws Sir Ed. Coke says That the Kingdom of England is a Monarchy successive by inherent Birth-right of all others the most absolute and perfect form of Government excluding Interregnums and with it infinite inconveniences The Lord Chancellor Egerton tells us That in Cases of the Crown the Eldest sole or alone is to be prefer'd And this he reckons among the ancient Customs of this Nation against which there never hath been saith he nor ought to be any Dispute And indeed if the Parliament may alter so essential and fundamental a Custom or Constitution then the Monarchy of England which by the Law is and ever since we were a Nation hath been Hereditary will immediately become Elective and disposable at the Arbitry and Will of the People And by the same reason that they may exclude and reprobate the next Heir they may the next to that and so by consequence the whole Line For when Men have once transgress'd and broken down the Boundaries which the Law hath set and prefix'd the Progress is infinite and there is no stop And though the Common Law of England which as I have said doth superintend all Statute-Laws doth allow the Parliament to repair and amend and improve the Building yet it doth never allow them to pull it down and subvert the Foundations thereof And it is some odds that such Electors may in time believe that they have a Power to mar what they can so easily make and that with good Conscience they may destroy when they think fit their own Creature and Work of their own hands And therefore those Kings of England who have submitted their Necks to this popular or Statute-Kingship as I may call it it is plain they came not in at the Door but evermore at the Windows and have been constrain'd during their whole Reigns to stand upon their Guards and to defend their wrongful Possessions by Divine Right of the Sword as some in Raillery have call'd it as well even against the People that chose them as the Right Heirs As I shall anon Demonstrate at large And this alteration of the Monarchy in so fundamental a part thereof from Inheritance to Election may prove equally mischievous
the true and legal Title abiding in the House of York See to prove this Brook Parl. pl. 105. 1 H. 7. 4. v. The second Instance is that of King Henry the Seventh This King while he was Earl of Richmond together with many Lords and Commons that took his part were all attainted of High Treason by the Parliament of Richard the Third Afterwards at the Battel of Bosworth the Earl obtain'd the Victory and slew Richard in the Field and on the same day assum'd the Crown upon him and presently afterward summon'd a Parliament On the first day of this Parliament say our Books of Law and Histories all the Judges of England were assembled in the Exchequer Chamber to resolve a very rare and perplex'd Case viz. What should be done about the reversal of the said Parlementary Attaindors of the King and divers Lords and many Knights Citizens and Burgesses that were to sit in Parliament that day And after mature Deliberation had among themselves they all Resolved That for all the Lords and Commons that were attainted they advised them not to sit in Parliament till an Act of Parliament was passed by the other Lords and Commons not attainted and assented to by the King for the reversal of those Attaindors and after the Reversal then all of them to sit in the Houses For that it was not convenient that any should sit as Judges in those Houses that were attainted But concerning the King himself they unanimously Resolved That the Crown takes away all defects in Bloud and Incapacities by Parliament And that from the time the King did assume the Crown the Fountain was cleared and all the said Attaindors and Corruptions of Bloud and other Impediments absolutely discharged And yet the said King Henry the Seventh was onely King de facto also the legal Title as I have before observed abiding in the House of York See to prove all this the Books of 1 H. 7. 4. v. Fitz. Parl. pl. 2. Brook P. Statutes pl. 37. 175. Plowden's Com. 238. v. Lord Barkley's case Co. 7 Rep. 12. â— Calvin's case Co. 1 Inst 16. a. Jenk centuries 203. Lord Bacon's Hist H. 7 fol. 13. All in express terms And if the Influence and Operation of Law be so forcible and vigorous in Cases of colourable and specious Title onely as that of the said King Henry the Seventh was as I shall demonstrate at large in the sequel of this Discourse how much more will it be where there is Proximity of Bloud and undoubted Right The last Instance is that of Queen Elizabeth an Instance of fresh and recent memory This Princess had been bastardiz'd and render'd incapable of Succession to the Crown by solemn Act of Parliament and yet notwithstanding upon the Death of Queen May the said Queen Elizabeth succeeded to the Crown And Sir Nicholas Bacon Lord Keeper of the Great Seal and Oracle of the Law in that Age and upon whom the Queen altogether relied in matter of Law and who no doubt in a Case of that Importance had consulted all the Judges of England was clear of Opinion saith Cambden That there needed not any formal Repeal of the said Act as there never was any because saith the same Author the Law of England had long before pronounced Coronam semel susceptam omnes omnino Defectas tollere That the Crown once obtain'd doth absolutely wipe out all Defects whatsoever And in this Point the Civil Law agrees also with the Common Law of England for Vpian a famous Doctor tells us That the possession of the Crown purgeth all Derects and maketh good the Act of him in Authority although he wanteth both Capacity and Right Moreover by the Laws of England the right Heir becomes absolute and perfect King in the very moment that the Crown descends upon him though he happen to be at the same time in the remotest parts of the World and before he be actually Crown'd And therefore King Edward the first though at the time of his Father's Death he was absent in the Holy Land in War against the Infidels yet he was immediately acknowledg'd here by the whole Realm for their King And in his return homewards did Homage to the French King for the Lands which he held of him in France and repressed certain of his Rebellious Subjects in Gascoign and yet he was not crown'd till almost two years afterwards And the Case of his Sacred Majesty that now is was very like for he began his Reign from the moment of that fatal and impious Stroke given to his Royal Father of ever glorious Memory and yet his present Majesty was not at that time in England And this is expresly resolved to be the Law of this Nation by all the Judges of England Mich. 1. Eliz. Dyer's Rep. 165. a. So King Henry the sixth Edward the fourth Henry the seventh summon'd Parliaments condemn'd Traitors made Grants and did all other Acts which a crowned King may do before their several Coronations And the like was done by King Henry the eighth Edward the sixth Queen Mary Queen Elizabeth King James King Charles the first and His Gracious Majesty that now is For coronation is but an Ornament and Solemnization of the Royal Descent but no part of the Title and the Kings of England are to all Intents and Purposes compleat and perfect Kings before Coronation and so it was expresly resolved by all the Judges of England 1 o Jacobi in the Cases of Watson Clarke and Sir Walter Raleigh which in a matter so clear shall suffice Having thus as I conceive made my Point good and impregnable Viz. That the next Heir of the Blood cannot be excluded from the Succession by Act of Parliament I come now to answer certain Objections which some Men I perceive are fond of and do not a little glory therein and the most considerable of them are three in Number First say they there are several Instances of Kings of this Realm whose Titles to the Crown depended purely upon the Election of the People and Acts of Parliament and not upon Proximity of Blood and Inherent Birth-right as to go no higher the Titles of King John Henry the fourth Henry the seventh Moreover Henry the eighth entail'd the Crown upon himself and his Children by Act of Parliament And these Establishments by Parliament were look'd upon as good Titles to the Kings in Possession and bars against the next Heirs I Answer they were never look'd upon as good Titles to the Kings in Possession or bars against the right Heirs neither ought they to be deemed so as doth most evidently appear by the former part of this Discourse And which I shall now farther demonstrate by Enquiry into the Titles and Circumstances of each particular King mentioned in the Objection First for King John it is plain he was King de facto but not de jure for he invaded the Crown against the Right of his Nephew