a sence very different from the Modern vulgar Notion Nor does the Judgment even of E. the 4th's own Parliament in the least favour the late King however if it did later Parliaments in the time of H. 7. have taken away all colour from such pretences That the Eldest Son even of the most Rightful Regnant King was not King upon the Death of his Father without a Parliamentary Settlement of the Crown upon him before his Fathers Death nor with it till the States of the Kingdom had actually received and recognized such Son will appear beyond contradiction And that the Eldest Son 's Right was only a Right to be declared King unless he was unfit to Reign or the exigencies of the Publick required the advancing some other Person of the Royal Family If a deserving Person was kept back or one so judged by his own Party or the Nation when he prevailed the least Complement they could make him was that of Right he ought to have been King before he was King but farther they never extended their Transports of Loyalty nor ever Authoritatively declared That he had such a Right as made him King while another possessed the Throne And till he got Possession it was never declared that he had Right Nor does the setting one aside before his coming to Possession or after make any difference in the Nature of the Right in question And I shall put it beyond Controversie that whenever a worthy Person of the Saxon Royal Family especially of that branch which for some Successions had been settled as the Regnant Family was solemnly recognized by the States of the Kingdom upon the Death or disability of a Person who stood forwarder in the Royal Line the Person so recognized became King de Jure and no other Person had any manner of Right unless such as was in Abeiance or in the Clouds and indeed no where till Possession brought it to Light and Being 3. Fully to shew this Gentleman his mistakes upon the Statute 11 H. 7. it will be requisite to transcribe the whole which is as follows The King our Sovereign Lord calling to remembrance the Duty of Allegiance of his Subjects of this his Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the Defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter and abide in Service in Battle if case so require That for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince as in this Land some time passed hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon him in his Person or being in other places by his Commandment within this Land or without any thing should leese or forfeit for doing their true Duty and Service of Allegiance It be therefore Ordained Enacted and Established by the King our Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament Assembled and by the Authority of the same That from henceforth no manner of Person or Persons whatsoever he or they be that attend upon the King and Sovereign Lord of this Land for the time being in his Person and do him true and faithful Service of Allegiance in the same or be in other places by his Commandment in the Wars within this Land or without that for the said deed and true Duty of Allegiance he or they be in no wise Convict or Attaint of High-Treason or of other Offences for that Cause by Act of Parliament or otherwise by any Proces of Law whereby he or any of them shall now forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chatals or any other things but to be for that Deed and Service utterly discharged of any Vexation Trouble or Loss And if any Act or Acts or other Proces of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that Act or Acts or other Proces of Law whatsoever they shall be stand and be utterly void Provided always that no Person or Persons shall take any Benefit or Advantage by this Act which shall hereafter decline from his or their said Allegiance Here 't is observable 1st That whereas this Gentleman absurdly supposes that it is Treason to engage to fight against one whom one may lawfully kill and that one may enter into a contrary Allegiance but may not do any voluntary act of Allegiance it is evident by the Words that if Swearing Allegiance is safe so are all voluntary Acts of Allegiance for the Swearing is not expresly provided for by that Act or any otherwise than as it is a part of the Duty and Service of Allegiance to the Sovereign Lordâ— but if Associating for the Defence of the King's Person and Right be part of the Allegiance due then that is as much provided for as the Oath is and consequently this Gentleman must grant that the Statute 11 H. 7. indemnifies the present Associators That this is part of the Allegiance due appears by the common-Common-Law Oath of Allegiance affirmed in the Laws of W. 1. and continued down to this day in Substance and Obligation according to which all the Freemen of the whole Kingdom are to affirm with a League or Association and Oath that within and without the whole Kingdom of England they will be faithful to their Lord the King preserve his Lands and Honors with all fidelity together with his Person and defend them against Enemies and Strangers And in an other Chapter of that Law after Provision that all Freemen shall enjoy their Estates as had been before enacted and granted in a Common-Council of the whole Kingdom it adds We also enact and firmly enjoyn that all Freemen of the whole Kingdom be sworn Brethren or Associators to defend our Monarchy and our Kingdom according to their Strength and Faculties and manfully keep the Peace and preserve the Dignity of our Crown entire and constantly to maintain Right and just Judgment by all means according to their power without fraud and without delay What is this but an Association to defend the King and Kingdom against any Person whatever and by consequence to declare that the King for the time being is the only Rightful King Since his Person Crown and Dignity is to be preserved by all means in their Power This part of the Common-Law is affirmed by the Statute 11 H. 7. declaring it the Duty of Allegiance to defend the King and Land against every Power and Might and therefore as well against Pretenders to Title as others 2. This Act expresly indemnifies for voluntary Acts of Allegiance against the mind and will of the Prince 3. It can by no means have
incapacity from his Bastardy Besides his Wife Maud was descended from a Daughter of King Alfred married to Baldwin Earl of Flanders upon which account a Commentator on the Grand Custumary of Normandy held him to be the first or chief Heir Edward Son to Edmund Ironside was at one time designed by the Confessor for his Successor if he could prevail with the Nation to consent but that Edward dying before the Confessor his Son being a Minor seems never then to have been thought of Harold's design was covert nor does he appear to have been a Pretender till the Confessor lay upon his death-bed But Duke William had long been promis'd his Cousin King Edward's interest in order whereunto we may well believe he in the year 1651. came over to England and doubtless to ingratiate him to the Nation was by the Confessor carried up and down the Kingdom In the year 1657. or 1658. the design was brought to bear and in a Great Council of the whole Nation William was declared Successor or as the Law received by him has it agreeing with a Charter pass'd in Parl. 15. of his Reign was adopted Heir or as another Charter has it Edward instituted him adopted Heir That this Adoption or Institution of an Heir to the Crown was with a Consent truly National I shall elsewhere have occasion to prove at large at present shall only observe that the above-cited Law says that Edward caused the Kingdom to swear to William that Wilnot Earl Godwin's Son and Hacun his Grandson were sent Hostages to William to secure the future Allegiance of that Family that Robert Archbishiop of Canterbury and Harold were successively with the Duke to assure him of his being declared Heir to the Crown which Harold swore to endeavour to preserve to William But notwithstanding the Nations and his own Oath while the Nobility and People were at the Confessor's Funeral at Westminster Harold got a Party together at Lambeth where as some have it he set the Crown upon his own Head The mad Englishman as a contemporary Writer has it would not stay to see what the Publick Election would appoint Harold's Possession whatever it was prov'd very short lasting but nine Months nor was he ever fully recogniz'd or submitted to by the States or the Body of the Nation he never held any Parliament or Convention of the States which I take to be the reason that no Charter of his is to be seen nor have I met with any mention of one They who fought for him against William were judged Traytors and their Estates forfeited and it is rightly observ'd by the Lord Coke that in Demesday Harold who usurped the Crown of England after the decease of King Edward the Confessor is never named per nomen Regis sed per nomen Comitis Haroldi Wherefore he leaves him out of his Lift of our Kings William according to some Authors was encouraged to his attempt from the consideration that Harold was neither of the Saxon nor Danish Royal Stock When William Landed he claimed the Crown from his Cousins Gift with the consnt of the Nobility of the Kingdom confirmed by Oath and lays his qualification in being thought the most deserving of all that were nearly related to the Confessor Harold had nothing to plead against that but the suggestion that the Crown had not been setled by a Consent sufficiently formal that it was made without a Convention and Law of the Senate and People which 't is no wonder that he should pretend tho' there were never so formal an Election Notwithstanding the Right with which the Norman Duke Landed he proffered to submit to what the English should decree and therefore to a new election if they thought fit Upon Harold's death some of the English who dreaded the consequence of receiving William after a bloody Battle set up Edgar Atheling for King who tho' but the second degree from a Bastard and tho' his Father never had Possession was look'd upon as the true Heir of the Crown that is the Person of the last Regnant Branch of the Royal Family who ordinarily would have succeeded by common consent of the States if of sufficient Merit and reasons of State or other obligations did not interpose But the learned Monk Guitmond who could bot but know the constitution in this matter held him to be but one Heir among many of the Line of the Royal Family However the generallity of the Clergy thought themselves bound to maintain the Title with which King William Landed and that'twas Rebellion to oppose him yet before his being received for King he at Berkhamsted made a League or Contract with the People headed by the Great Earls Edwin and Morcar who came up with the Forces from the North which had never been in the Battle against the Duke Part of the League made with the People of England was that he should be Crown'd as the manner of the English Government requires at his Coronation the consent of the People was ask'd in the due and accustomed manner and the account Historians give of the Oath he then took shews it to be that which stood in the Saxon Ritual After which he more than once received and swore to that Body of the common-Common-Law of England which had obtain'd the name of King Edward's Laws which as has been observ'd declare the end for which a King is Constituted and that he loses the Name or ceases to be King when he answers not that end Indeed Dr. Brady who is as free with his Conquerors Memory as with the Liberties of England which he calls the Grants and Concessions of the King of this Nation will have it that William the I. regarded his Oath only in the beginning of his Reign and that by notorious violations of his contract with the People of England he acquired the Right of a Conqueror and thereby put an end to the ancient Constitution of this Monarchy and those Liberties and Priviledges of the Subject which manifestly appear to have been of elder date than the Monarchy Upon which if one would return the Freedom of his Censures against others it might be said that this was not only to make the then King the Successor of a Conqueror but with a prospect of applying the Rights which he ascribes to a supposed Qonquest to justifie what should be practised upon the late intended Conquest of this Nation That the Judgment and Practice of William the I. was very contrary to the Doctor 's Imaginations will be proved by numerous Instances and that it was so as to that part of the Constitution which concerns the Succession to the Crown appears by that King's Death-bed Declaration which some would set up for a will disposing of the Crown at that very time when he owns that it is not his to give
Treason during her Life and forfeiture of Goods and Chattels after her death to deny the Power of Parliament to limit and bind the Crown and the Descent Limitation Inheritance and Government thereof and a penalty is set upon them who should affirm that any but the Issue of the Queen's Body had right to succeed after her For any one who expected the Crown to pretend to it while she lived is made disability during life only but by a subsequent Statute approving and explaining the voluntary Association of the Subjects that year every such Person is excluded and disabled for ever And tho' at the time of giving judgment against Mary Queen of Scots it was declared to be without prejudice to her Son that could not hinder the operation of the Law upon that Statute and I would gladly know how he could have any right since he had no pretence as a special Heir under any Parliamentary Settlement then in force Upon the Queen's Treaty of Marriage 14º of her Reign with the French King's Brother she declared that she could not grant without the assent of the States of the Realm that he should be Crowned after the Marriage In an information in the Exchequer 21º of her Reign upon which judgement was given with the advice of the Judges of both Benches Lands are said after the death of E 6. to have come to Queen Mary as his Sister and Heir as in right of the Crown and so from her to Queen Elizabeth In both which instances according to the judgment of that time the rightful Possession of the Crown made them Heirs to their respective Predecessors notwithstanding the half Blood of both and the continuing illegitimacy of one of them That J. 1. could not rightfully succeed that glorious Queen without an election by the States of the Kingdom had been declared with sufficient Authority in her time and in the time of H. 8 th and without such Declaration would appear by the observing how the Law stood and was taken in all former times But whatever right was ascribed to him after he got Possession his Party here found it requisite to set up a will or nomination of Queen Elizabeth to facilitate his accession to the Throne Then with a new strain of Loyalty Judges Lawyers and Juries concurred in making attempts to prevent his coming to the Crown Treason the like of which withal its Circumstances had not been known in any Age of this Monarchy Tho' there had been Treason against W. 1. before his actual admittance to the Crown it was as has appeared above after a National Settlement upon him by name and this was the case of the unfortunate Lady Jane and others who set l er up against Queen Mary Yet that complement to J. 1. was but suitable to the flattering Act of Recognition 1º of his Reign according to the Preamble of which immediately upon the decease of Queen Elizabeth the Crown did by Inherent Birth-right and lawful and undoubted Succession descend and come to him as lineally descended from Margaret Daughter to However that Parliament made no Law in the Matter and by good luck left the constitution as they found it for they made no Settlement of the Crown only offered that recognition as the first Fruits of their Faith to him and his Royal Progeny and Posterity for ever which if it had been a Settlement would amount to no more than what had been usual in former times for Parliaments to make a branch of the Royal Family a new head of future Successions but by this any one of the Issue or Posterity stood fair for an election Yet possibly the Parliament had not been so forward with these Fruits of their Loyalty but for his Speech to 'em wherein he says Every King in a settled Kingdom is bound to observe the Paction made to his People by his Laws in framing his Government agreeable thereto And a King governing in a settled Kingdom leaves to be a King and degenerates into a Tyrant as soon as he leaves off governing according to his Laws In which case the King's conscience may speak to him as the poor Widow said to Philip of Macedon either govern according to your Law or be no King The Parliament take him at his word and grafting upon it say His Majesty hath vouchsafed to express many ways how far it is and ever shall be from his Royal and Sincere Care and Affection to the Subjects of England to alter or innovate the Fundamental and ancient Laws Priviledges and good Customs of this Kingdom whereby not only his Legal Authority but the Peoples security of Lands Livings and Priviledges both in general and particular are preserved and maintained And by the abolishing or altering of the which it is impossible but that present confusion will fall upon the whole state and frame of this Kingdom Where in as modest terms as they could they bid the King at his peril to violate the Fundamental Laws on which his regal Authority depended as well as their Rights and Priviledges But that King soon forgot upon what terms he had been received King and getting the leading Clergy on the side of his Divine Right it pass'd at that time as the Doctrine of the Church of England While this fit of Loyalty lasted C. 1. succeeded as by inherent Birthright without any formal recognition which then began to be thought needless The occasions of the War between him and his Parliament I shall not enquire into but shall content my self with Dean Sherlock's concession who as he will not dispute the lawfullness of resisting the King's Authority and whether it were lawful for the Parliament to take Arms against the King to desend the Laws and Liberties of their Country admits that they had a right to keep the King within the boundaries of Law these C. 1. apparently broke and where there is no Tribunal on Earth to appeal to the Dean allows use of the Sword But whatever was the consequence of that War there has been no reason for the Pulpits to sound to loud and long as they have done with denunciations of God's wrath but indeed the Clergies against this Kingdom for what hapned in a War for which the Parliament and People who would not have carried the Point so far as it unhappily went are not to answer C. 1. dying a deplorable death the Nation was left without the exercice of any Legal Government till the Restoration of C. 2. who was accounted King from the death of his Father But by what Law or in what respect is worth enquiry and will it appear 1. That the supposed Maxim that the King never dies is of very late and doubtful Authority in comparison with those which shew that no Man was or ought to be accounted King till he had been formally recognized 2. Yet tho' this should be true when any Prince succeeds in vertue of
a Settlement made in the Ancestor's life time it will not be so where there has been none as was the case of C. 2. 3. If one should in the eye of Law be King immediately upon the death of an other it would not follow that this would be by a strict right of descent but that after the being admitted King there should be a relation backwards to prevent the loss of any rights belonging to the Crown and thus it was plainly taken by the Chief Justices Dyer and Anderson who say that the King who is Heir or Successor may write and begin his Reign the same day that his Progenitor or Predecessor died And agreeably to this it was the resolution of all the Judges of the King's Bench in Elizabeth's time that a saving to a King and his Heirs shall go to a Successor of the Crown tho' not Heir to that King That J. 2. made too great haste to succeed his Brother C. 2. now at least Men will be apt to believe of whom I shall observe only in short 1. That he was within no Parliamentary Settlement of the Crown then in force 2. The best pretence J. 2. had of coming to the Crown without an immediate election must have been the Settlement 1º H. 7. But no shadow of reason can be assigned why the late Act of Settlement was not as rightful and with as true Authority as that 1º H. 7. 3. J. 2. being reconciled to the Sea of Rome which is High Treason by our Law and for which he had been convicted in his Brother's time if the Indictment had not been arbitrarily defeated was as much disabled from succeeding to the Crown as the Family of George Duke of Clarence by reason of that Duke's attainder 4. Admit the assuming the Royal Dignity had purged the former disability the continuing a Papist was a constant incapacity to be the Head of this Protestant Church and Kingdom rendring it impracticable for him to answer the end for which our Kings had been constituted 5. He was never duely invested with the Royal Dignity not having taken the appointed Coronation-Oath which for his sake was traiterously altered with an omission of the Rights of the People and an unjustifiable Salvo for Prerogative Nor was he ever fully recognized 6. By seizing the Customs and raising Taxes without Authority of Parliament dispensing with the Laws of the Kingdom raising and keeping a standing Army in the time of Peace and the like enormities he violated that constitution which should have made or kept him King and if he ever was King more than Harold the Son of Earl Godwin manifestly ceased to be King before his abdication 7. However it may have been at his first leaving the Kingdom without any other Government than what according to ancient Custom fell upon the States of the Kingdom he having since discovered a settled intention to destroy the People of England or the greater part of 'em by a Foreign Power with their Party here according to those Casuists who are most favourable to such rights as he has claimed from the time at least of his manifesting such intention he ceased to be King and His present Majesty having been regularly declared King the other is totally barred from all claim and colour of pretence How great a noise soever some make for him since his flight after their deseting him the greatest sticklers for his suppos'd rightful Authority being disappointed of their sanguine expectations warmly opposed his exercice of those rights to which their servillity had encouraged him the very Bishops who for his sake have set up for heads under him of a separate Church not only disobeyed his positive commands in matters which at other times at least in things of the like nature they would have contended to belong to his Headship of the Church but they would have limited his Power little less than the 19 Propositions to C. 1. which they had long seem'd to abhor Some of their Party if not themselves joyn'd in solliciting his present Majesty to undertake our Deliverance and a certain Person who would be thought never to have departed from their Principles is said to have gone so far as to sign the invitation tho' upon second thoughts he desired to have his name scratch'd out The Bishops being required to sign an abhorrence of that enterprize absolutely refused it Their Archbishop was one of them who petitioned his present Majesty to take the Government upon him before the late King left England and Non-assistance to their jure Divino King was become as Catholick Doctrine as Non-resistance During this time the designs of the Party were kept secret but the People began to hope well of the Body of the English Clergy believing them by a wonderful providence to be reformed in their Principles of Government with which they had brought a scandal upon the Reformation But the Convention meeting to provide for the Peace and Settlement of the Nation it then appear'd that the mighty Zealots for the Monarchy were only for setting up themselves and in truth would have no Sovereignty but in the Church as they called their Faction for as they would not have his present Majesty to be King but a Regent or Officer for the interim till the late King should come to their terms neither did they truly own him for their King whom they neither would assist as Subjects nor consult in choosing a new Government However the Throne having according to former Presidents and the plain right of the Kingdom been declared vacant upon King's breach of the original contracts and abdication the Lords and Commons reciting many particulars of his misgovernment resolve that William and Mary Prince and Princess of Orange be and be declared King and Queen and make a farther Settlement of the Crown They having accepted the Crown the Lords and Commons together with the Mayor and Citizens of London and others of the Commons of this Realm with full consent publish and proclaim William and Mary Prince and Princess of Orange to be King and Queen of England France and Ireland and in the Proclamation own a miraculous deliverance from Popery and Arbitrary Power and that our preservation is due next under God to the resolution and conduct of His Highness the Prince of Orange whom God hath chosen to be the Glorious Instrument of an inestimable Happiness to us and our Posterity A Parliament called soon after declares and enacts that they do recognize and acknowledge that Their Majesties are and of Right ought to be by the Laws of this Realm their Sovereign Liege Lord and Lady King and Queen of England c. in and to whose Princely Persons the Royal State Crown and Dignity of the said Realms with all Honours Prerogatives c. are fully rightfully and entirely Invested Incorporated United and Annexed Notwithstanding which many who have sworn to bear Faith
Man who shall with me carefully compare Records Histories Law-Books Charters and Authentick Manuscripts from before the fixation of the Monarchy downwards The most antient uncontested Authority of this kind which is allowed us even by the Scotch Writers who think themselves concerned to blemish our Antiquities is the Venerable Bede who died in the year 735. He speaking of the coming of the Picts into the Northern Parts of Britanny says The Scotch gave them Wives on condition that when any Controversie arose they should chuse themselves a King of the Female Stock of Kings rather than of the Male. Whereby it appears what was his Judgment of the Successions where they have seemed most fond of an Inherent Right of Birth But as to England where a King has lest three Sons Bede calls them all Heirs Accordingly he more than once mentions Brothers reigning together as Sighard and Frede among the East-Saxons while the West-Saxon Kingdom was govern'd by several petty Kings in distinct Divisions These Kings probably at that time were Tributary or Feudatory Kings under the Mercian Kingdom for in the year 730 I find King Aetilbalt stiles himself not only King of the Mercians but also of all the Counties which by the general name are call'd South-Angles subscribing King of Britanny And in the same year I find an Offa who stiles himself King of the Mercians and also of the other Nations where ever round about By reason of the Inheritance of Crowns belonging to several Sons of Kings the Kings were so numerous that Bede mentions two Brothers Crown'd Kings even of the Isle of Wight But when any were Constituted Kings to the setting aside all the old Regnant Family of that particular Kingdom the Persons so constituted were according to Bede Strangers or doubtful by way of distinction from Lawful Kings And yet all the Kings of the several Kingdoms were descended from Woden from which Common-Stock they all took their Qualifications for an Election as afterwards the West-Saxon Kings did from Cerdic then from Ina and after that from Egbert But generally I take it regard was had to that part or branch of Woden's Family which was the regnant Family within the particular Kingdom where one of that branch was advanced according to that Charter of an Offa where he is stiled King of the Mercians descended from the Mercian Royal Stock About which time I find two Kings of Kent Sigered and Eadberht governing in severalty These 't is likely were Brothers but Eadberht who became King of all Kent upon Sigered's death or amotion was constituted King and Prince by the whole County This was above 60 years before the Foundation of the Monarchy was laid by the West-Saxon King Ina. Tho most of the Moderns and many of the Ancients lay it as late as Egbert's time the Confessors Laws received and sworn to by William the I. and following Kings say of Ina he was elected King throughout England and first obtained the Monarchy since the coming of the English into Britanny His qualification for an Election the Saxon Cronicle places in a Descent from Cerdic But Malmsbury assures us he was advanced rather for his Merit than his being of the Successive or Inheritable Family and that from him to Brictric the Kings were far out of the Royal Line That Brictric was truly elected appears not only in his bare qualification from the Stock of Cerdic but as he was immediate Successor to Kenwolf elected upon the like qualification and in whose Reign it was ordained in a National and Legantine Council that no man suffer the assent of Wicked men to prevail but that Kings be lawfully elected by the Priests and Elders of the People where 't is manifest that lawfully does not limit the Election to any other Rule than what follows in that Law viz. to avoid electing Persons born in Adultery or Incest The Person lawfully Elected is there called Heir of the Country Where Heir is plainly used in the Sense both of the Civil and of our Common Law for the Person that comes duely to the Inheritance in this sense all that have been elected Kings have been held to succeed by Hereditary Right And thus in numbers of Charters in the Saxon Times and after Private Inheritances are granted to Men to leave to what Heir they please to the Church and its Sacred Heirs and to the Barons or Citizens of London and their Heirs To Brictric the first West-Saxon King after the Peoples Right to Elect had been declared by National Authority succeeded Egbert who derived after several degrees pass'd from Ina's Brother It may well be thought that he was Elected with a Consent no less full and formal than was held essential to his Grants of Lands one of which was with the License and Consent of all his Nation and the unanimity of all the Great men Egbert was alive in the year 838 tho' Historians generally suppose him to have died two years before His Sons Ethelstan the Eldest and Ethelwolf were Kings in his life time As I might prove by several Charters but shall here mention but two one in the year 827. where an Ethelstan subscribes as Monarch of all Britanny an other An. 836. where Egbert grants with the Consent of his Son Ethelwolf King of Kent In the year 838. Ethelwolf succeeded Egbert in the Kingdom of West-Saxony by a manifest Election his eldest Brother Ethelstan being then alive and continuing the Monarch or chief King of all Britanny Besides the Evidences above that there was not at that time such a fix'd rule of descent in the West-Saxon Royal Family as made the Kings eldest Son to be King or to have a certain and indefesible Right to be King may appear by the Law or Custom of that Kingdom mentioned by Asser and Nicolas of Gloster and others not to suffer the King's Wife to be called Queen or to sit near her Husband which seems to have occasioned the Ritual for the Consecrating the Wife in consortium regalis thori for the consortship of the Royal Bed Till she was so Consecrated which was to be in a Convention of the States or coming from it she had no more right to the Kings Bed than a Concubine Of this doubtless W. 1. was aware when he expressed a desire to have his Wife Crowned with him Certain it is that the Sons of Kings begotten on Conubines after they had been elected or adopted by the States were always held to have succeeded as Rightfully and to have been as legitimate Heirs as the Sons begotten in Wedlock the Mother's being Queen and by consequence the legitimation of the issue and capacity to inherit the Crown having depended upon the will of the States But that in Ethelwolf's time the word Elected was duely applied
might afterwards sail out of abundant care for his Son Henry had him Crowned in his life time which through French Counsels put the Son upon insisting on the Rights of Kingship to the great clamity of the Nation tho' the Subjects swore Allegiance to him with an express Salvo for the Allegiance due to his Father Which whatever some have thought or affirm'd was the only Salvo in the Scotch Kings homage according to ancient custom for the Crown of Scotland To H. 2. succeeded his eldest surviving Son Richard but was not accounted King upon the death of his Father Authors say he was to be promoted to be King by Hereditary Right which is far from being King by Hereditary Right But as the former usage explains such words he deserved to be elected and made King in which sense one of the Authors who lived at the time immediately explains himself mentioning his Coronation Oath after the solemn and due election as well of the Clergy as People Before this he was at first only Earl of Poictou and then Duke of Normandy but not till he had been solemnly invested with the Sword of that Dukedom And Bromton informs us that he accepted the Crown upon condition of keeping his Coronation Oath without undertaking which the Archbishop charged him not to assume the Royal Dignity He going to the holy Wars after his being Crown'd his Brother John would have seiz'd the Government as vacant but had no tollerable pretence the War having been carried on with a National Consent Upon this it was adjudged by a Common-Council of the Kingdom that John should be disseiz'd of all that he held in England which might extend to such right or expectancy as he had in the Crown Notwithstanding which upon Richard's death the great Question came upon the Stage whether the Crown ought ordinarily to go according to the right of Proximity or of Representation The right of Proximity was in John Brother to King Richard this was the Right which the English seem'd to think most agreeable to the Constitution of this Monarchy and is according to the Custom of Normandy for Succession to that Dukedom and as Cujacius supposes of most Nations Foreigners were for Arthur of Brittain as having the right of Representation being the Son of John's elder Brother and this was the Right according to the custom of Brittain in France But as to the Law of England it appears by Glanvil's account of the Law as it was taken in the time of H. 2. that even for the Descent of private Inheritances it was doubtful whether they ought to go to the Grandson by the eldest Son who died in the Father's life time or to his next surviving Son If indeed the eldest Son had in the Father's life time done homage to the Chief Lord for his Father's Inheritance this was held to remove the doubt And Glanvil afterwards says upon the Question between Uncle and Nephew that the condition of the Possessor is the better According to which King John having obtained Possession of the Crown had it rightfully and Arthur had no right to turn him out John being beyond-sea at his Brother's death sent over the Archbishop of Canterbury and the Earl Marshal of England to sollicit for his being admitted to the Throne These Great Men with the assistance of the Chief Justice of England prevailed upon many to swear Allegiance to John and in a Convention at Northampton those Persons were Sponsors for John's doing right to all men upon which condition or in confidence of his performing what had been undertaken in his name the Earls and Barons swore Fidelity to him against all Men yet after this he was formally elected in a full Convention of the States where the Archbishop declares it as matter known to 'em all that no man ought to succeed an other to the Kingdom upon any previous reason unless unanimously elected by the whole Realm c. But if any one of the Royal Stock was more deserving than others his election ought to be consented to the more promptly and readily Notwithstanding what had pass'd in favour of John in the Convention the Archbishop at the time of the Coronation calls him but Earl King John not only took the Oath appointed by the standing Ritual which declares every King of England to be elected but assumed the Royal Dignity as his Predecessor did with the express condition of keeping his Oath Having broken this Contract and notoriously departed from that end for which according to the Confessors Law expresly sworn to by him he had been constituted or created King in making War upon his People with Foreign Forces with which he exercis'd inhuman barbarities and as much as in him lay alienating his Imperial Crown to the Pope he in the Judgment of the Court of France as well as of the States and People of England fell from his Royal Dignity the Throne was become vacant and during the vacancy the Administration devolved upon the States whereupon they resolved to elect a new King and sent a solemn Embassy to the King of France to send over his Son Lewis to be King of England whose wife was John's Sisters Daughter But the chief inducement to this Election seems to have been that expectation in which they were not deceived that the Foreigners would desert John for Lewis Tho they promised to Crown him King they seeing great grounds to dislike his French Temper and Conduct kept him upon his good behaviour without a Crown And having found by the dying Confession of one of his confederates that he had sworn if he came to be once Crowned King he would treat the English as Rebels to their former Prince they soon sent this Probationer packing yet did not hold John to be King After John's death many of the greatest interest in England while Lewis was here and Elianor Prince Arthur's Sister alive in Bristol Castle who according to the vulgar notion ought to have been Queen John's Son but were far from thinking him King upon the death of his Father or from repenting of what they had done to the Father but they thought it adviseable to cut off Lewis his expectation of the Crown to which end the Martial of England Summons a Convention to Glocester where he tells the States that tho' they had justly prosecuted the Father for his evil deeds yet that Infant was innocent because he is the Son of a King and our future Lord and Successer of the Kingdom let us Constitute him our King At last all as with one voice cried thrice let him be made King Here 't is evident that he was not accounted King till Constituted or made and was but a future Lord and agreeably to this Matthew Paris
Heir to the Crown R. 2. following the example of E. 2. had the same fate of which the States of the Kingdom had some years before given him fair warning telling him they had an ancient Statute according to which they might with the common assent and consent of the People of the Realm abrogats him and advance somebody near of kin of the Royal Stock He not profiting by this admonition the States were some years after put to the exercice of their authority and having adjudged that he justly ought to be deposed the whole States appointed Commissioners for giving the Sentence of Deposition And a Record speaking of it says he was deposed for his demerits The Act of State for this says 't was as in like cases had been observed by the ancient custom of the Kingdom This being done Henry Duke of Lancuster as soon as the Kingdom was vacant rose out of his Seat and claim'd the Kingdom begin void His claim was al 's descandit be ryght lyne of the blode comeynge fro the gude Lord Henry therde The reason seems very plain why he claim'd from H. 3. his being the last inheritable blood which he could claim from not from R. 2. because deposed nor from E. 3. because of the forseiture of R. 2. declared or constituted his next Heir not from E. 2. because of his forfeiture nor from E. 1. becuase E. 2. had been his next Heir Hen. 4ths Descent from H. 3. was the qualification for an election This was not as has been supposed a strict right of Succession as he was the next Heir then appearing but he entituled himself to a preference before all other Descendants from that Blood as being a Deliverer of the Nation from Richard's tyranny he having with the help of his Kinsmen and Friends recovered the Kingdom which was upon the point of destruction through the defect of Government and violation of the Laws This induced the States and all the People unanimously to consent that Henry should fill the vacant Throne and they appointed all the Ceremonies of his Coronation But as far as proximity to the last King could infer a right he being Grandson to E. 3. had it before Mortimer descended from Lionel Duke of Clarence under whom the Family of York claim'd besides that H. 4. was undoubtedly the first on the Male line Tho' no Lay-man of knowledge and integrity can be thought at that time to have questioned those grounds upon which H. 4. was declared King yet since 't is hardly possible that there should be any Government which some will not be desirous to shake off as the Jews did the Theocrasy it can be no wonder that some would colour their ambition or malice under pretence of love to justice and that they should object want of right to disturb the most just and equal Government What was at the bottom of objections against H. 4ths Title will appear by the case of a true Head of the Church Militant Merk or Mark Bishop of Carlile who not being able as a Divine to make good his Argument against the receiving H. 4th for King was resolved to justifie it by dint of Sword after he was made King For in second of H. 4. he was indicted and tryed by a common Jury upon a special Commission for that he and other his Accomplices among which there were two bigotted Knights Blunt and Sely were leagued and confederated together with the Adversary and Enemy of England the French and thier Adherents traiterously to bring the said Adversary into the Land of England with intention to destroy the King and all his Leige People of the Kingdom and to new plant the Kingdom of England with our enemies of France that they in an hostile manner went up and down making great destruction and slaughter and without any Authority assuming to themselves Royal Power proclaim'd Richard to be King and that they would not suffer Henry to be their Lord or King To this Indictment the Bishop pleaded Church-Priviledge as an anointed Bishop which the Court over-ruled the the reason for which is very remarkable because the matters contained in the said Indictment concern the death of our Lord the King and the destruction of the whole Kingdom of England and consequently the manifest depression of the Church of England by which he claims to be priviledged all which is high and the greatest Treason and the Crime of laesa Majestas nor ought any man of right to pray in aid of the Law or to have it who commits such a Crime or intends to commit it c. His plea being thus over-ruled the Bishop pleaded not guilty but being convicted of the horrid matter contained in the Indictment it seems he did not think this a fit cause to die for and whether he merited a Pardon or no by sincere Repentance at least obtained one in which it is observable that he is called the late Bishop for this restitution to the Peace did not restore his Ecclesiastical Dignity He who is still called the late Bishop having a pardon sent him petitioned to be delivered out of Prison which was granted upon his finding Sureties for his good behaviour and four undertook that he should for the future behave himself well towards the King and his People Thus the fear of death reformed this stiff Prelate and made him engage to sit quietly under a Government which none but the Enemies to England and their Adherents endeavoured to subvert Still some were found calling themselves Englishmen who for the like ends with Merk would do their utmost to blemish H. 4ths Title this occasioned Oaths of Recognition thrice repeated 5o. of his Reign first at a Council of Worcester then at a Great Council at Westminster and after that in a full Parliament where the two former recognitions which were voluntary Associations were affirmed tho' as is there said there was no need of it By those Oaths they acknowledged the then King to be their Sovereign Leige Lord to obey him as their King and acknowledge the Prince his eldest Son as Heir apparent and inheritable to the Crown of England to him and the Heirs of his Body And for default of such Issue to his Brothers and their Issue successively and hereditably according to the Law of England to live and die against all People in the World The perjury of some and the doubts rais'd by others upon some of the expressions in the Act 5 H. 4. occasioned an other 7o. which by the Counsel and Assent of the Lords Spiritual and Temporal to wit the Prelates Great Men Peers and Clergy and also at the earnest Petition of the Commons and by Authority of the said Parliament declares that the King 's eldest Son shall be and is and ought hereafter and now to be
come without a manifest departure from their avowed Principles and therefore to keep to them they must give up the only colourable Authority for their notion of King de jure and de facto And they must yield that there is not the least shadow of pretence from what was held in those times that there was a King of right at the very time that an other was in fact it going no farther than that the Person who was King ought not to have been King but while he was King the other was none 7. The judgment of E. 4 ths first Parliament whatever hard names they gave that Family on which they trampled was so far from being an Authority as has been pretended against the receiving his present Majesty upon the late King's breach of the Original or common-Common-Law Contract confirmed by several declaratory Statutes of the Kingdom and the solemn Oaths of our Kings that it is express for the eviction and amotion of one King upon his breach of a contract establish'd in Parliament and the setting up an other by an election And it is observable that the Act 1º E. 4. which confirms several judicial and other Acts of such as it calls Kings only in fact says other than by Authority of any Parliament holden in their times plainly admitting that Authority to be sufficient in it self H. 6. coming again into Power because of a Possession with such a consent of the People as made E. 4. King was formally again elected at the Tower and in H. 7 ths time was adjudged to have had his attainder purged by his re-adeption of Power which seems not to have been till he had been re-elected Then H. 6. calls a Parliament where he in his turn attaints the Adherents of E. 4. and as we are to believe himself but the Record of that having been cancelled and the Rolls loss'd it appears not whether it was for any Act committed before H. 6 ths re-adeption of Power The Tide again turning for E. 4. all the Acts of that Parliament are reversed and declared or made void from the time that he had been declared he was held to have continued the Possession of the Regal Dignity tho' with-held from the exercice of the Power and therefore H. 6. from the first admission of E. 4. to the Crown was accounted no King and his Parliament to be but a pretenced Parliament E. 4 ths usage of H. 6. was repaid to his Sons by their Uncle R. 3. some will have it that he made them away as indeed is intimated in the Act attainting R. 3. but 't is certain that they were bastardized in a Convention whose Acts were by Parliament after Richard was admitted King declared for truth and not to be doubted and there are Authorities to induce the Belief that Edward's Sons were really Bastards by reason of the Father's pre-contract however the Convention declared that they were not fit to Reign because they were Infants and their Mother ignoble and married clandestinely without the knowing and assent of the Lords George Duke of Clarence the next Brother to E. 4. having been attainted in a Parliament of E. 4. they having singular confidence in Richard's particular merit have chosen in all that in them is and by that their certain writing choose him their King and Sovereign Lord to whom they know of certain it appertaineth of Inheritance to be chosen And observing that tho' the Learned in the Laws and Customs know his Title to be good the most part of the People is not sufficiently learned in the Laws and Customs they declare that the Court of Parliament is of such Authority and the People of this Land of such a disposition as experience teacheth that Manifestation and Declaration of any Truth or Right made by the three States of the Realm assembled in Parliament and by Authority of the same maketh before all other things most faith and certain quieting of mens minds and removing the occasion of doubts and seditious language Therefore by the Authority of that Parliament it is pronounced and declared that their Sovereign Lord the King was and is the very undoubted King as well by right of Consanguinity and Inheritance as by lawful Election Consecration and Coronation And they Enact Establish Pronounce Decree and Declare Edward the King 's eldest Son Heir Apparent to him and his Heirs of his Body Any Man who compares that Act at large with the former Presidents must see that it was penn'd with great Wisdom and regard to the Constitution of the Monarchy And tho' out of an usual complement to the prevailing side R. 3. has generally been represented as a Monster in Person and Nature the learned Buck has made it doubtful which was the most deserving in all things R. 3. or H. 7. Certain it is that tho' the Crown had by Authority of Parliament been settled in remainder after H. 6. upon Duke Richard and his Heirs and that Duke's Grand-daughter was alive and marriageable in the Reign of R. 3. her suppos'd Right gave him no disturbance and his Possession was very quiet till he disobliged the Duke of Bucks who was the great Instrument in setting him up by rejecting his Claim to be High-Constable of England which was an Authority dangerous to be trusted in the hands of so popular a Man nor could the Duke and his Faction expect to succeed in their conspiracy without the support of French Forces and accordingly applied themselves to Henry Earl of Richmond afterwards H. 7. with whom the Duke of Brittany had for some years kept even E. 4. in awe Henry was glad of the opportunity and to strengthen his Interest agrees with some of his Party to marry the Daughter of E. 4. but was far from making any claim in her right It is very probable that one of E. 4 ths Sons was then alive be that as it will as appears by the Statutes 1 H. 7. cited above his Parliament held that he landed with Title and R. 3. being deserted and slain in the Field of Battle that opposition to Henry was by Authority of Parliament adjudged Treason against the Sovereign Lord of this Land and H. 7 th was held to have recovered his right After this when H. 7. meets his first Parliament he with his own Mouth tells the Commons in full Parliament that his accession to the Right and Crown of England was as well by just Title of Inheritance as by God's true judgment in giving him the victory over his enemy in the Field In which bating the Settlement in the time of the Confessor H. 7. claim'd as W. 1. did by the Inheritance of consanguinity and that Success which gave him the preference before others of the same Blood especially since that enemy whom he subdued was held to be an Usurper This 't is evident that he was accounted before H. 7. Landed But if
grace of eviction King by conscience by Nature by Custom and by Law referring to the Par. Rol. 1 E. 4. e StAT 1. E. 4. C. 1. c Stow. 412. d De term Mic. 1. H. 7. f. 4. b. Stat. 1 E. 4. c. 1. f Referr'd to 17º E. 4. g Rot. Parl. 17 E. 4. n. 34. Vid. etiam Rastal cap. 6. a Rot. Parl. 1. R. 3. b Vid. Buck's Hist c Rot. Parl. 1. R. 3. a Rot. Parl. 39 H. 6. n. 27. b Vid. Comines Vn june Princ de Engle terre c Rot. Parl. 1 H. 7. Idem Dominus Rex praefatis communibus ore suo proprio eloquens ostendendo suum adventum ad jus coronam Angliae fore tam per justium titulum haereditantiae quam per verum Dei judicium in tribuendo sibi victoriam de inimito suo in campo a Stat. 1 H. 7. Rot. Parl. II est ordeign establie enact par auctorite du die Parliament c. b Rot. Parl. 1 H. 7. c Ib. n. 18. d Bib. Cot. Cleop. E. 3. e Ib. proximo successionis titulo f In ipsorum conventu c. a Vid. the Year-Book 1 H. 7. f. 4. b Vid the â—ull sup c Year-Book 1 H. 7. f 4. Eo Facto que il prist sur luy le royal dignity destre Roy. This said of â— 6. and applied to H. 7. d Rot. Parl. 20 R. pars 2. m. 6. 4 Inst F. 36. e Rot. Parl. 3. H. 7. m. 15. The Attainder of the E. of Linc. a An. 1059. b Introd f. 391. next Heir to the Crown by proximity of Blood as right Heir to his Mother c Stat. 25. H 8. 6. 1. d Stat. 26. H. 8. a 28 H. 8. c. 7. b 28 H 8 c. 10. a 35 H. 8. b later recorda de An. 27 H 8. sub cust urrwumque Capital Justic Attornat Gen. Si in acttat fuisset autoritate Parl. c. si diceret non c. Vid. etiam B. Burnet's Hist of the Ref. 1 Vol. f. 354. a Quia Rex per Parl. fieri porest per Parl. deprivari potest b 1546. c 1553. d Stat. 1 M. c. 2. e 1 and 2 P. M. c. 9. f 1558. g Camden Eliz. f. 12. a Stat. 1 El. c. 3. b Camd. c Journals of Q. Eliz. f. 105 106 107. d Stat. 13 Eliz. c. 1. e Stat. 27 Eliz. f Camd. Eliz. a Camden f. 160 An. 1571. 14 El. b Coke's Entries f. 373. 380. c An. 1602. d Vid Camd. Eliz. Wilson's Hist of J. 1. e Stat. 1. J. 1. a Vid. K. James his Works b Stat. 1. J. 1. a Sermon before the House of Commons p. 6. b Ib. They could pretend to no farther right c. c Vid. Vindic. of the Case of Allegiance p. 46 47. d Finehes description of the Common Law ed. An. 1613. e Dyer f. 165. Anderson f. 44. a Stat. 23. Eliz. c. 1. Will you grant and keep c. namely the Laws and Customs and Franchises granted to the Clergy by the glorious King St. Edward your Predecessor according to the Laws of God and the true profession of the Gospel established in this Kingdom and a Greeing to the Prerogative of the Kings thereof and the ancient custom of this Realm b Lib. Regalis penes Decanum West Sandford's account of the Coronation a Vid. Falkner's Christian Loyalty p. 526. Citing Barklay c. b Concerning the Declaration of Indulgence c Vid the Bishops Address to J. 2. d Vid the Form printed in Reflections upon the Jacolite Form of Prayer p. 26. e 11 Dec. 1688. a Vid. the Vote of the Commons Jan. 28. 1689. and that of the Lords Feb. 6. b Stat. 1. W. M. Ses 2. cap. 2. c Vid. the Proclamation d Stat. 2. W. M. Ses 1. cap. 1. a Stat. 7 8 W. 3. For the better Security of his Majesty's Royal Person and Government Proof of the 6th general head a Yelverton f. 1 07. 5 J. 1. b 1 Rolls f. 185. c Banks MS. pâ—nes meipsum Pas 13 J. 1.
says they assembled in order to exalt Henry the King 's eldest Son to be King of England He took the Coronation Oath more han once and at one of his Coronations had the Confessor's Sword carried before him by the Earl of Chester one of the Earls Palatine of England for a sign that that Sword was not to be born in vain He having trod in his Father's steps the States were likely to have made good their solemn denunciation 17th of his Reign of deposing him in a Common-Council of the whole Kingdom and creating a new King which as appears by Bracton a very learned Judge in that Reign was no more than the then known Law of the Kingdom Various were the events of a long Civil War in which at last the death of the great Darling of the Church and People the then Hereditary High Steward of England and the bravery of Henry's Son gave him the victory which they who were on his side and his own experience of the consequence of his former Counsels kept withing some bounds of moderation Henry to secure the Succession to his eldest Son Edward had before that success caused many and particularly the Citizens of London to swear to his Son as Successor And after that it should seem that a Parliament had made a Settlement of the Crown For in the 55th of his Reign a Writ was sent to London the execution of which was return'd into the Parliament that year at Winchester and 't is probable the like had been throughout England in pursuance of which Writ the Mayor Barons Citizens and University of the Commons swore Allegiance to the King after him to his eldest Son Edward then to his Son John after that to the right Heirs of the Crown of England which not being to the Heirs of either of those Persons plainly left the Inheritance as I have shewn it was from the beginning Upon the Father's death the Clergy and Laity flock'd to Westminster where they declared or received for King Edward then beyond-sea in the Holy War so called Soon after this as I take it a great Convention of the States was holden in his name there a Chancellor was chosen and other Provisions made for the Peace of the Kingdom in Edward's absence the Writ which they issued out requiring the Subjects in general to swear Allegiance to E. 1. says the Government was devolved upon him by Hereditary Succession and the Will of the Nobility and the Fidelity performed or Allegiance sworn to him Agreeably to which Walsingham says they recognized Edward their Leige Lord and ordained him Successor of his Father's honour Tho' he was a very gallant Prince yet having taken ill advice being to cross the Seas he upon a Pedestal at Westminster-Hall Gate with the Archbishop of Canturbury and the Earl of Warwick by his side publickly ask'd forgiveness of his People entreated 'em to receive him again at his return and if he died to Crown his Son King which they who were then assembled consented to How much it was then known to concern a King to keep to his part of the Contract as he would have his People continue bound appears by two great Authorities in our Law of that time Fleta who as to this matter transcribes Bracton almost verbatim and the Mirrour of Justices which speaks of the first Institution of Kings among us by Election for what End they were Elected and what they were to expect if they answered not that End E. 2. as Walsingham informs us succeeded not so much by Hereditary Right as by the unanimous Assent of the Nobility and Great Men. He was for misgovernment formally depos'd or Abdicated from the Regal Dignity as Walsingham has it and his Son Edward was Substituted or Elected in his stead The Son indeed tho he had headed Forces against his Father seem'd to scruple accepting the Crown without his Fathers consent And ex post Facto after Edw. 2d had been deposed and his Son Elected with a threat that if he refused they would Elect sombody else the Father took some comfort at the Election of his Son and as much as in him lay consented The Son it must be own'd in a Writ cited by Dr. Brady says his Father amoved himself by the assent of the Prelates Earls Barons and other Nobles and also of the Commonalâ—y of the whole Kingdom Which being onely in Writs Issued out of the Chancery can be of no Force to limit or explain that Act of the States And was but a civility or complement from the Son to the Father What the States judged in the matter will be very plain from the following account in a contemporary Author King Edward remaining in Custody at Kenelworth a General Council of the whole Clergy and People of England was Summon'd viz. of every City and every County and Borough a certain number of Persons to Treat and Ordain with the Great Men of the State of the King and Kingdom In which Council at the cry of the whole People unanimously persevering in that cry that King Edward II. should be Deposed from the Throme of the Kingdom becuase from the beginning of his Reign to this day he had misbehaved himself in his Government had Ruled his People wickedly had dissipated Lands Castles and other things belonging to the Crown had by perverse Judgment unjustly adjudged Noblemen to Death had advanced the Ignoble and had done many things contrary to the Oath taken at his Coronation Walter Archbishop of Canterbury pronouncing Articles of this kind by assent and consent of all King Edward 2. is wholly deposed and Edward his eldest Son advanced to be King of England And it is Ordained that from thenceforth he should not be called King but Edward of Karnarvan the King's Father And immediately Messengers were sent from the Council to the said Edward the King's Father to notifie to him what had been done and to read to him the Articles upon which he had been deposed He answer'd he was detained in custody nor could contradict their Ordinances but said he would bear all patiently And it is observable that a Statute of the Kingdom 1 E. 3. justifies the taking Arms against E. 2. while he was in Possession of the Throne and indemnifies all Persons for the pursuit of the said King and taking and withholding his body E. 3. who knew that himself came in by and election of the States being aware that if he should die before any Provision were made about the Succession the Controversie concerning the Right of Proximity and that of Representation would be revived between his eldest surviving Son and Grandson by the eldest who died in his life time obtained an Act of Parliament whereby Richard his Grandson by his eldest and best beloved Son was declared or made very
be justify'd by Record that H. 4ths saying was not true Upon which 't is observable 1. That Richard's answer goes upon a manifest begging the Question and supposing that he had a Right which could not be barred by Act of Parliament 2. That the Lords having mentioned several Entails upon Heirs Male we are to believe that there was then upon Record the Entail upon Heirs Male in the time of E. 3. pleaded by Judge Fortescue in defence of the Title of his King H. 6. This we are the rather to believe because there was but one Entail upon Heirs male in H. 4ths reign nor is Richard's denial any argument against this it appearing that he thought it sufficient for him to affirm any thing and this was to pass for Truth and Law Thus he denies that there had been any Entail but 7º H. 4. forgetting that which had been made 5º and was amended 8 H. 4. and so very much did he mistake that he supposed the Entail 7º to be upon the Heirs of the Body when it was upon Heirs male of the Body 3. What the Lords say of Richard's not bearing Lionel's Arms confirms another objection against him made by Judge Fortescue from the Barstardy of Philippa born while Lionel was beyond the four Seas and never own'd by him nor did she or her descendants till the time of this claim bear the Arms of that Family 4. Richard's Right of Descent admitting there had been no Illegitimacy is laid as a Right in Nature but either this must be as the Laws of the Land guide the course of Nature or otherwise we must go back in search of this Right if not as far as Adam yet to some descendant from the eldest House of the Saxon Royal Family to such at least as could derive their Pedigree from some House elder than King Alfred's which may be done at this day Besides if we should look back to a Right in Nature all the Kings descendants from H. 2. from whom Duke Richard came as well as H. 6. must have been Usurpers H. 2ds Children having being begotten on another Man's Wife who had been Divorced for her Adultery and therefore by God's Law could not Marry again nor does it appear that the Divorce was from the Contract Or if this Matter should admit of Debate such of our Kings as descended from an other common Ancestor King John must have been Usurpers not only by reasonof John's suppos'd Usurpation upon Arthur of Brittain and his Sister but in that his Children were begotten on an other Man's Wife who does not seem ever to have been divorced and besides according to the Law of Nature it would seem that John had a former Wife in being For he was divorced from her only for their being third Cousins as H. 2 ds Wife was from her first Husband as they were Cousins in the 4 th Degree If the first Marriages in both cases were void or voidable it could have been only by the Laws of the Romish Church but if those Laws shall make a natural right by governing the course of descents much more shall the Laws of particular Countries If by the Law of Nature Duke Richard meant that which the consent of Nations has made to pass for the dictates of nature according to Cujacius this Law of Nature is for the right of Proximity which John of Gaunt from whom H. 6. descended had to his Father before R. 2. and H. 4 John of Gaunt's Son had before the Son of Lionel's Daughter supposing her legitimate And by that Law it should seem that Males are ordinarily to be preferred before Females tho' their Vertues have often rais'd 'em to Empire Farther yet if by this he meant the Law of reasonable nature what shadow of reason can be assigned why the eldest Issue of a King 's eldest Child whether that Issue be an Infant or void of understanding or humanity ought universally to succeed to Crowns before the King 's eldest surviving Son whatever be his Merits or the exigencies of the Publick And why should not a moral incapacity in this sense be a natural one But if the Great Lawyer Fortescue who as may be seen by the Rolls of the King's Bench was Chief Justice there from before Richard pretended to the Crown and to the end of H. 6 ths Reign may be allowed to speak the Sense of the Learned in that Time they held the Power of the Prince to flow or be derived from the People according to which it must have been taken to be more according to natural right that the People who appointed the Succession in any Family should govern and vary it as they saw occasion than that from their pitching upon a Person or Family they should be for ever debarred from doing justice to the demerits of one and to the merits of another in that very Family I am sure the learned Grotius who distinguishes lineal Succession from Hereditary says an Hereditary Kingdom is one which was made so by the Peoples free consent And in such Kingdoms he supposes several Rules of Succession by guessing at or presuming the will of the People If Duke Richard would have admitted the Law of the Land to govern the course of Descents and Successions to the Crown then 't is evident beyond contradiction that H. 6. came in by a legal and natural course of Descent and however according to laudable custom from the beginning of this Monarchy Acts of Parliament may alter that course However the timerous Lords without concurrence in that matter of the stouter Commons agreed that the Duke's Title could not be defeated and yet thought not themselves discharged from their Oaths to H. 6. unless he would consent to the mean or expedient they found out which was for the King to keep his Estate and Dignity Royal during his life and the Duke and his Heirs to succeed him in the same To this both the King and Duke consented but neither the King 's Right to the Possession nor the Duke 's to the reversion arose from their private agreement but from the Authority of Parliament according to which the King had as much right to the Possession as the Duke to the reversion And it remains as the judgment even of that Parliament whatever force or awe were over it that Richard Duke of York had no right to the Possession and neither was King nor of right ought to be King till H. 6. should die or cease to be King Nay even E. 4 ths Judges owned that H. 6. was not a meer Usurper because the Crown was entailed to him by Parliament As a just judgment upon Richard's pretence of Title contrary not only to the National but Divine Authority giving sanction to the Laws of the Kingdom and his own Oaths he died within sight of the Promised Land But soon after
and true Allegiance to King William will be wiser than the Law not only declared by this Act of Parliament but by several in former Reigns and with a gross Jesuitical evasion without any colour of foundation in Law or Reason pretend that they have sworn to K. William only as King in Fact but that another was rightful King at the same time This groundless and wicked distinction appears to have engaged some Men in an horrid and barbarous Plot against his Majesty's Person and Government tho' they had sworn to be true and faithful to him and it seems by the case of Sir John Perkins that neither he nor his Casuists thought the Oath to King William any departure from the Allegiance to King James nor the design of Assassinating King William any breach of the Oath to him Since therefore the deceit has taken rise from the supposition that the late King continues King of Right together with the general terms of the Oath which are pretended to leave a latitude for this illegal and nonsensical supposition and an Oath more explicit has been artfully kept off a voluntary Declaration that his present Majesty King William is Rightful and Lawful King of these Realms as it is fully warranted by the fundamental constitution of this Government is at this time become a necessary duty when it is evident to the World what they who are of a contrary Opinion will act as they have opportunity But to engage to stand by and assist each other in the defence of His Majesty's Person and Government is not more a consequence of the declaring him rightful and lawful King than it is implied in the Oath of Allegiance appointed by the Act of Parliament which settles the Crown and however the Common-Law Oath and the legal sense of Allegiance manifestly require it If any who have taken the Oath of Allegiance to his present Majesty scruple to associate because of the declaring His Majesty to be rightful and lawful King it is evident that they prevaricated when they swore If they questioned the legality of entring into this before there was a positive Law for it 't is certain they have been little acquainted with the Common-Law Oath of Allegiance and the warrantable Presidents of former times according to which the late Act late Act which enjoyns some to Sign the Association not only gives it Sanction for the future but with express relation to its being voluntarily enter'd into by great numbers of His Majesty's Subjects declares that it is good and lawful And any Man who impartially weighs what I have laid together from Records and other Authentick Memorials of pass'd times must own that it is with full and indubitable Authority enacted That if any person or persons shall maliciously by Writing Printing Preaching Teaching or advised speaking utter publish or declare that His present Majesty is not the lawful and rightful King of these Realms or that the late King James or the pretended Prince of Wales hath any Right or Title to the Crown of these Realms or that any other person or persons hath or have any right or title to the same otherwise than according to an Act of Parliament made in the first year of the Reign of His present Majesty and the late Queen Intituled An Act declaring the Rights and Liberties of the Subject and settling the Succession of the Crown such person or persons being thereof lawfully Convicted shall incur the danger and penalty of Praemunire To imagine that after all this the late King either is or ought to be King is to flight all Authorities Ancient as well as Modern Which leads me to the Nature of our Lawyer 's offence who before the Act for the Security of His Majesty's Person and Government held the Signing the Association to be an Overt-Act of Treason against the King de Jure which as has appeared above tends manifestly to depose and unking His present Majesty as in the Eye of the Law there is but one King and he is the only King de Jure Besides this Gentleman admits That by the Statute 11 H. 7. Allegiance is due to a King in Fact and that the Oath of Allegiance was to be taken to him nor can pretend that there ever till of late was any other Oath but what expresly obliged to the Defence of the King and Kingdom against all Men therefore in consequence of his own Notion he must grant that to contend that there may be Treason against any other but the King for the time being is to suppose two contrary Allegiances and therein to depart from that Allegiance which was due even by his own interpretation of the Statute 11 H. 7. But it being evident that by that Statute and the whole course of the Common Law there is but one King I need not tell him the Crime of publishing a written Opinion manifestly importing an endeavour to Depose him If this had been delivered only in Words it is well known who used his Oratory to make words alone Treason within the Statute 25 E. 3. for which I may refer him to the Trial of the now Earl of Macclesfield in the beginning of the late King's Reign and to the Author of the Magistracy and Government Vindicated But as the Opinion was written he may well know from what late Authority Soribere est agere is become a Maxim or Proverbial Nor can he deny the Words to be within the reason of what the Court held in Flower 's Case of a Man's affirming the King to be a Bastard or that another had better Tittle to the Crown because it may draw the Subjects from their Allegiance and beget Mutiny in the Realm or Owen's Case of declaring it Lawful to kill the King being Excommunicated by the Pope both which not to mention more of the like kind were adjudged High-Treason According to the Print of the later Case it would seem that Words alone made the Treason ' but it appears by a MS. Report of one who had been Attorney General and afterwards Chief Justice of the Common-Pleas that Owen's Subscribing his Confession of what he had publickly declared was given in Evidence as the Overt-Act But if any Lawyer who has labour'd to make Treason of Words alone or Writing alone without Publication or Signing an Association to defend the King for the time being against one who had been King but is not should appear not only to have Written or Signed the Opinion above after a Discourse shewing to what Persons it related but to have publish'd this and to have Solicited Men not to Subscribe the Association upon those or the like topicks should he be Convicted of High-Treason against our Sovereign Lord the King it would be difficult not to apply that of the Poet Nec lex est justior ulla Quam necis artifices arte perire suâ None can the Justice of that Law deny By which who strain'd it against others dye FINIS The