making the Crown Hereditary to the Eldest Son answered ibid. Objections against the being of the King 's Eldest Son within the Statute of 25 E. 3. cap. 2. De Proditionibus Page 20. Obj. 1. That the Lady Mother was not a Queen ibid. Answ 1. The Statute is false Translated by the Lawyers and the Scripture false Translated by the Bishops in the word Queen ibid. Answ 2. Proved that the Lady Mother was Madam sa Compaign according to the Moral Law of God which is all and more than is required to be proved by the Statute ibid. Obj. 2. No Marriage according to the Mass-Book in the time of E. 3. nor by the Modern Common Prayer-Book or Book of Canons Page 23. Answ 1. No Marriage by any Book required by the Statute but only a Lady Companion according to the Moral Law of God Page 24. Answ 2. Marriage by the Common Prayer-Book not Necessary in a time of War when both Books of Common Prayer and of Canons were Prohibited and Abolished by the Power of the Sword ibid. Answ 3. The Legitimation of Children by the Law of God and of the Land ought not to be question'd after the Death of either Parent where not Judicially question'd and sentenced in their life-time Vid. Praeface Page 25. Answ 4. Not Necessary for a King who is Supreme Ordinary to Marry by the Common Prayer Book or Book of Canons Page 26. Answ 5. A King who is Supreme Ordinary may dispence with his own Canons and with any thing that is only Malum Prohibitum in his own Marriage but not with what is Malum in se by the Moral Law of God Page 28. Obj. 3. The Lady Mother was not HIS Companion which is the Article of Propriety required by the Statute Page 32. Answ She was HIS and he had the sole Propriety according to the Law of God and the Land Page 33. Obj. 4. There was no Marriage according to the Law of God Page 34. Answ 1. Certain Preparatory Considerations are laid down before the contrary is proved to this Negative By what Law and what Judges shall be judged what is the Law of God by which is after proved here was a Marriage according to the Law of God ib. Answ 2. Of the damnable Effects have followed by the Popish Prohibitions and Nulling of all Marriage not made by a Priest in a Temple Page 35. What is not Marriage by the Moral Law of God Page 39. What is not Matrimony by the Moral Law of God ibid. Answ 3. The Statute requires neither a King De Jure nor a Lady Companion De Jure nor a Son De Jure but only De Facto yet are they all here both De Jure and De Facto Page 40. Dangerous to leave the Succession of a Kingdom on so incertain a word as Lawful yet here both the King the Lady Companion and the Son are all Lawful ibid. Answ 4. A Lawful Successor may be of an unlawful Marriage Page 41. Obj. 5. The Lady Mother was not a Wife according to the Scripture Page 42. Answ 1. The Objection is false and it is after proved she was a Wife according to the Scripture ibid. Answ 2. The Statute requires no Wife according to Scripture but only a lawful Companion yet was she both a Wife and a lawful Wife according to Scripture as will hereafter be proved Page 43. Answ 3. The Bishops have falsly Translated the Scripture in all words relating to Marriage ibid. Of certain Differences between a Wife of the Bishop's making and a Wife of God's making Page 46. Obj. 6. There is no Bishop's Certificate to testifie the Marriage and Filiation Page 48. Answ The Statute requires no Certificate of either ibid. The Forms of Bishops Certificates Page 49. Their Original came from the Priests of Priapus Page 50. Of the Damnable Mischiefs insue from Tryal of Marriage and Filiation by Bishops Certificates ibid. The Certificates of Bishops inconsistent with the Right of Primogeniture Page 58. Of the General Custom of Nations of Successions to Kingdoms by Primogeniture and of the Mischiefs and Civil Wars commonly follow the disinheriting of the Eldest Son Page 62. What is Marriage and what Matrimony de Facto Page 66. What is Marriage De Jure according to the Law of God and of the Nations Page 67. Of the three Lawful Marriages amongst the Romans 1 Usu 2 Confarreatione 3 Coemptione Page 68. Of the three Lawful Marriages amongst the Hebrews 1 Copulatione 2 Coemptione 3 Instrumentis ibid. That Carnal knowledge Chastity and Childbirth between a Man and a Woman not prohibited by the Moral Law to Marry makes a Marriage Lawful Holy and Indissoluble without Banns Licence Priest Temple or any other Ceremony whatsoever Page 71. That the Marriage Coemptione Confarreatione or Instrumentis was not intended by Christ but only the Marriage Copulatione Page 86. An Epithalamium on the Marriage of Nature intended by Christ without a Priest or Temple Page 88. Obj. 7. The King 's Eldest Son is not the Heir intended by the Statute Page 90. Answ Proved he is the Heir both in the Letter and Intention of the Statute ibid. That to compass the Exile or Disinheriting of the King 's Eldest Son is High Treason Page 94. Obj. 8. By the Custom of Nations the Succession goes not to the Eldest Son born when the Father is only a Prince but to a younger Son born when he is a King ibid. Answ This Statute was made to prevent incertainty of this and other Customs and prevent all Cavils and Contentions about Succession by ascertaining the same to the Eldest Son Page 95. Obj. 9. The King 's Eldest Son is not yet declared Prince of Wales or of the Scots ibid. Answ The Statute requires no such thing Page 97. Obj. 10. Illegitimacy deprives of the benefit of the Statute ibid. Answ This Statute declares every Eldest Son of a King Legitimate and Heir to the Crown ibid. The Eldest Son of a King of Great Britain is Legitimate by his Birth-right per Jus Coronae ibid. Examples of the same Jus Coronae in other Nations Page 100. Examples of the same Jus Coronae in the Eldest Sons and Daughters of the Kings of England and Scotland who have thereby succeeded as Heirs to their Fathers Kingdoms on Marriages according to the Moral Law of God without the Ceremonies of a Priest or a Temple Page 102 103. That 't is High Treason for any Subject to slander the King 's Eldest Son with Illegitimacy Page 111. A Comparison of the Popish slanders of Illegitimacy against Queen Elizabeth and the King 's Eldest Son Page 112. A Comparison of the Popish slanders of Illegitimacy against King Edward the Sixth Queen Elizabeth the King 's Eldest Son and the Sons and Daughters of the whole Protestant Clergy Page 114. Of the insolent absurdity of Popish Laws Disinheriting the Lawful Sons of Kings according to the Law of God and inheriting the Bastards of Popes by the Law of the Devil
Page 118. CAP. II. WHether necessary in the present juncture of Affairs for the King and Parliament to declare a Protestant Successor to the Three Kingdoms Page 121. Objections against it Answer'd Obj. 1. Declaring a Protestant Successor by the King and Parliament makes a Kingdom Elective and not Hereditary ibid. Obj. 2. Acts of Precedent Parliaments cannot bind Subsequent from repeal Page 122. Obj. 3. Acts of Parliament cannot bind the Power of the Sword from cutting off those Acts by Conquest Page 123. Obj. 4. Declaring a Successor by Act of Parliament incites him to be disobedient and rebellious ibid. Obj. 5. The Ottoman Emperors never declare a Successor Page 124. Obj. 6. Queen Elizabeth refused to Declare a Successor Page 127. Reasons for declaring a Protestant Successor by the King and Parliament with the Great Dangers insue the neglect Page 132. 1. Danger to the Conscience of the Prince ibid. 2. Danger by the incertainty of the Laws of Succession of the Crown Page 133. 3. Danger of the Arbitrary disposing of the Crown by Rome or Canterbury Page 134. 4. Danger of the Predominancy of Papal and Episcopal Laws of Marriage Filiation and Succession above the Moral Law of God and the Laws of the Land ibid. 5. Danger to the King's Person his Lineal Heirs and House Page 135. 6. Danger of Lineal and Collateral Heirs to destroy one another ibid. 7. Danger if the King 's Eldest Son should happen to die before his Father leaving his Heir and younger Children in Minority ibid. 8. Danger of a Successor without Assent of the People Page 137. 9. Danger of a Papist Successor Page 138. A Papist Successor more dangerous to Papists themselves than a Protestant Successor ibid. A Papist Successor or Male utterly Destructive to Protestants and a Female doubly Destructive Page 160. 10. Danger in regard of Foreign Princes Page 182. 11. Danger of exposing Succession to Counterfeit Wills and Testaments Page 190. 12. Danger of incouraging Vsurpers Page 191. 13. Danger in doubtful Titles of Interregnums Page 192. 14. Danger of Cantonizing the Kingdoms ibid. 15. Danger of Exposing the Succession of the Kingdoms to Sale Page 193. 16. Danger of Exposing the Succession of the Kingdoms to Conquest Page 197. LIB III. CHAP. I. The words of the Statute 25 E. 3. cap. 2. De Proditionibus as in the Original French AUxint pur ceo que divers Opinions ont estre eins ceax heurs quel Case doit estre dit Treason et en quel nemy le Roy a le request des Seigniors et Commons ad fait declarisment que ensuist cestassavoire quant home fait compasser ou imaginer la Mort nostre Seignior le Roy Madame sa compaigne ou de lour fits Eigne et Heir The words as Translated by Pulton and Coke into English WHereas divers Opinions have been before this time in what case Treason shall be said and in what not the King at the request of the Lords and Commons hath made a Declaration in the manner as hereafter followeth That is to say When a man doth Compass or Imagine the Death of our Lord the King of our Lady his Queen or of their Eldest Son and Heir The Statutes of Kenneth the Third and Malcolm Mackenneth the Second as related by Buchanan Lib. 6. Rer. Scot. p. 191 196. Adjectae sunt Aliae leges ut quemadmodum Regi maximus natu filius in regnum Succederit ita filio ante Patrem defuncto nepos avo subrogaretur Englished There were other Lawes also added That as the Eldest Son of the King should succeed to him in his Kingdom So if such Son dyed before the Father the Nephew should succeed in his stead to his Grandfather Another Law of Scotland mention'd by Skene Reg. Majest Lib. 2. cap. 33. De Nepote ex Primogenito filio Nepos ex filio Primogenito mortuo jure representationis succedit Avo suo filium postnatum Avi id est Avunculum suum excludit Englished The Eldest Son being dead before the Father the Nephew by the Eldest Son shall in right of Representation Succeed to his Grandfather and exclude any Younger Son of his Grandfather that is to say his Uncle This Law of Scotland was taken out of Glanvil Lib. 7. c. 3. which shews it is the unquestionable Law of England as well as of Scotland and likewise out of the Civil Law L. 3. C. de suis legit Haered l. Posthumorum 13. H. de Injust Testamento c. 33. ex l. 1. § 6. H. de Haered Skene saith further That of this Question between the Son of the Eldest Son and the Uncle Franciscus Vinius Treats at large Lib. 3. Decisionum Decis 501. and he allcadgeth Alciat Cons 101. Bartol in l. post fratres C. 1. de legit haered Bald. Salyc Doctores in l. si viva Mater C. de Bon. Pater The Statute made 10 H. 7. in a Parliament of Ireland called Poyning's Law The words of which are these It is Enacted That all Statutes late made within the Realm of England concerning or belonging to the Common or Publick Weal of the same from henceforth be deemed Good and Effectual in the Law and ever that be accepted used and executed within this Land of Ireland in all Points and at all times requisite according to the Tenor and Effect of the same Coke saith 4 Part 351. That Hil. 10. Jac. Regis it was resolved by the Two Chief Justices and Chief Baron that this word late in the beginning of this Act had the sense of before so that this Act extended to Magna Charta and to all Acts of Parliament made in England before this Act of 10 H. 7. And by the same Reason extends to the Statute of 25 E. 3. cap. 2. De Proditionibus on which this Discourse is founded from whence will be after proved these Conclusions Conclusion 1. This being granted That if the Eldest Son had happen'd to Die in the Life of his Father the Eldest Son of the Prince who died should have Succeeded Jure Representationis of his own Father as Heir Lineal to his Grandfather and excluded the Grandfather's Younger Son who is his Uncle à fortiori must it be granted that if both Grandfather and Father die the Eldest Son who is the Grandchild Surviving he ought to exclude his Uncle for he now comes in Jure proprio which is a greater Right than Jure representationis and if the less Right exclude the Uncle much more must the greater Conclusion 2. When the Right of the Crown shall actual descend from the King in Possession on the Eldest Son in Possession who is the next Lineal Heir of his Blood then is the Son Actually King both De Facto and De Jure as was his Father who died in Possession of the Kingdoms And therefore all the forementioned Acts of Parliament and Common Laws of England Scotland and Ireland and the Imperial Laws with them unanimously declare It will be
World for he that began it could not end it but it lasted almost Three Hundred Years and was never throughly abolished till it pleased God to Unite the Discordant Blood of the Three Kingdoms in King James Which Discords had never happened amongst these Ten Competitors had not the Ancient Law of Electing by Parliaments the fittest of the Blood-Royal whereby generally Brothers were Elected before Sons been abolished A very Imprudent way therefore is it to design for Publique Peace what Experience shews to have the greatest cause of perpetual Wars for so long a time as 300 years together The like Civil Wars in England followed between York and Lancaster from Generation to Generation and this Statute of Treason prevented not the same The Civil Wars between York and Lancaster not prevented by the Statute making the Eldest Son Heir Another Imprudence Buchanan mentions p. 201. Vt Reges videlicet constituamus quibus alij Rectores praeficiendi in eorum potestatem universum tradamus populum qui ipsi sui potestatem non habent qui aegre Regibus usu rerum peritis prudentia praestantibus parent poscimus ut qualibuscunque Regum umbris pareant That we should constitute Kings to govern who must have others set over them to govern themselves and that we should deliver the whole People into their Power who have not power over themselves and that we should require of such who will hardly obey the best Kings and most Excellent in Experience and Wisdom to obey any shadows of Kings shall be set over them Imprudence of attempts by such Acts to perpetuate a Name or Race Of a third Imprudence and Infortunateness incident in this to Princes themselves he sayes Quod autem privatunt ex hac Lege petunt Reges Emolumentum ut generis et nominis perpetuitatem inde sibi promittunt id quam sit vanum et fallax c. That the private profit which Kings seek out of this Law being the Perpetuity of their Race and Name is very vain and deceitful not only in manifold ancient Examples but Nature it self may teach them if they will consider with how many Laws and Rewards the Romans endeavoured to perpetuate the Famous Names of their Families of whom there remains now not the least sign in the whole World conquered by them And deservedly I think this happens to them who contend to give Eternity which neither themselves have nor can have to a thing in its nature so flying and frail and every moment obnoxious to all Casuality as cannot be capable of Stability And attempt the same by such a way as is most contrary to their design for what is less faithful to Diuturnity then Tyranny but to the same this new Law prepares the way and a Tyrant is the universal mark of the hate of Mankind for whom it is impossible to stand long and when he falls he draws the Ruine of his whole Family with him This Endeavour of Foolish Men the Deity seems to me many times to break with a Contemptuous stroak and sometimes as a Competitor with him in Power to expose it to publique derision And I know not whether there can be any more fit or manifest Example of the Divine Pleasure than in him whom we now mention Malcolm the Author of the Law of Succession of Eldest Sons dyed without a Son For Milcolumbus who so much Laboured to confirm by Parliament a Law Enacted by his Father by force for the Succession of the Sons of Kings in their Fathers room left no Issue Male behind him And as to his two Daughters one of them called Beatrice he matched to a Noble-man call'd Crinus a Thane of the Western Isles and a Chief of the other Thanes whom that Age call'd an Athan. The other call'd Doaca he match'd to the Thane of Angus by whom was begot Macbeth of whom I shall speak further in his proper place and indeed do we not find in all Ages the greatest Races sooner destroyed than the meaner And if any have escaped the Tempest of Time they have not been the Lofty Cedars but the humble shrubs Where are now all the Races of Gyants of the Old World Where are now the Races of the Egyptian Gods who in the reputed forms of Men reigned on the Earth Where is the Race of Nimrod the Founder of the Assyrian Of Arbaces the Founder of the Median Of Cyrus the Founder of the Persian Empire The Crown endureth not to every Generation Is not the saying of Solomon true Prov. 27.24 Riches are not for ever and doth the Crown endure to every Generation 2. This new Law of intayling to Sons though it may preserve the Counterfeit name yet destroys the true Fame of the Father which is call'd Children of the same Name destroy the Name of the Father Isa 56.5 a Name better then of Sons and Daughters As there were so many Pharaohs that the Chronologists are by the Ears and cannot agree which was the Pharaoh when Abraham went into Egypt which was the Pharaoh Entertained Joseph which was the Pharaoh commanded the Male Children to be destroyed And which was the Pharaoh was drowned in the Sea The like of the Dariusses and of the Herods though they were but few and many others Many other Names and Races whereby there can be no Encouragement of Fame to Vertuous Actions for Publique good nor Discouragement to Vitious by Infamy who are causes of Publique Evils whereas on the contrary as is well observed by Sir Francis Bacon Actions of the highest Fame and of greatest Merit to the Publique have been done by the unmarried and Childless Men yea we find this Vanity of Intayling the Father's Name so much slighted by the great Nestorian Church in Persia that if after Marriage a Male-Child were born Father lost his Name to his Son in Persia the Father lost his own Name and was called by the Name of his Eldest Son as if the Father's name was Moses and the Son's name Joseph the Father was no more called Moses but Aben-Joseph that is the Father of Joseph Heylin 660. And we find though Darius destroyed Belshazzar the Son of the Conquering Nebuchadnezzer and Cassander the Children and Mother of the Great Alexander and Augustus destroyed Caesarian the Son of the Renowned Julius Caesar whereby the Race of every one of these Conquerours became Extinguished soon after their death yet we hear the Names of the Fathers resound to this Day more gloriously from the single Trumpet of Fame than they could have done from the weak Cryes of Infants in a Numerous Off-spring had they left a Posterity 3. It is said against this Law of Intayling to Sons That though the Royal Lines are not alwaies so suddenly Extinguished as in the Last Examples Yet the Periods of them and their Heirs Male and of Races and Kingdoms themselves are fatal and as some Polititians observe terminate most with about the Term of about 500 Years many
Illegitimate alike how he pleaseth for Filiation and Legitimation The Power of Alienation by the Father of the Goods neither Legitimates or Illegitimates the Child are Jure naturae and Jura Sanguinis and Jura naturae sunt immutabilia and Jura Sanguinis nullo Jure Civili divini possunt Upon the whole I conclude that were there no other Example but this it utterly overthrows all manner of Objections whatsoever can be invented against the Right of Primogeniture and makes ridiculous all Popish Fictions of Illegitimation The Marriages of the Kings of Judah and Israel and all the Ebrews might be Copulatione without Ceremony Godw. Antiq. Selden As to the Laws of the other Nations besides the Hebrews first to touch on the Greeks Jus Coronae of Greece as to Legitimation Eustatheus on Homer concerning Teucer who was a Natural Son affirms That whosoever is born of a Prince is lawfully Born and so Teucer was held in as great Esteem as any other and injoyed his Inheritance for as Servius saith in Greece Consuetudinis Regiae fuit ut Legitimam Vxorem non habentes aliquam licet Captivam tamen pro Legitima haberent ut Liberi Ex ipsanati succederent The Common Law of Greece was That if a King had not a Lawful Wife any Woman he had a Captive Slave should be accounted Lawful and his Children by her should be his Successors So this was the Jus Coronae of Greece though it was otherwise as to Succession amongst the Subjects Children for they had only a Filial Portion of a Thousand Drachmae which they called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but not Illegitimated or left without Portion Amongst the Roman Emperors there was no such thing ever heard of as Illegitimation of the Emperors Children Jus Coronae of Great Britain as to Succession differs from the Law of Succession as to Subjects till the Papal and Episcopal Laws overtopt the Imperial nor any such thing ever heard of except falsly Translated amongst the Kings of Israel or Judah or in the whole Scripture nor in the Ottoman Empire nor in any Nation except where Popes and Bishops have set their foot and as to the Jus Coronae of Great Britain as 't is well known the same is necessarily in many things as to Succession different from the Common Law of Succession to the Subject So it is as well known that neither the Romish nor Brittish Bishops have dared though they have Usurped on the Subjects to invade the Legitimation of the Crown in Great Britain and if they have as in the famous Prince Edward the Sixth and Queen Elizabeth it hath been fruitless First Constantine the Great was the Natural Son of Constantius Sorus by Helena a Brittish Lady who is called his Concubine and whom after the Birth of his eldest Son the said Constantine he repudiated and after Married Theodora the daughter-in-Daughter-in-Law of Maximinianus the Emperor yet Constantius Clorus dying here in Britain his eldest Son Constantine the Great without Scruple made by any succeeded his Father in the Government of Britain and all other Western Provinces belonging to his Father's share of Empire in Scotland Gillus Nothus Gillus Nothus succeeded to his Father Evenus notwithstanding that false name of Nothus cast on him by the Romish Episcopal Laws contrary to the Law of God which Evenus was a Wife and a good Prince yet he never contracted the Mother of his eldest Son Gillus by the Ceremonies of a Priest or Temple yet was this in a time of Christianity and not of Paganism for Donald was the first Christian King of Scotland Anno Domini 199. which was long before Gillus Buch. Rer. Scot. 103. Et Skene in his Table of Kings Robert the Second of Scotland Robert the Second of Scotland Elizabeth More and Eufemia a good and peaceable Prince for those Atticbules doth Skene in his Table of Kings give him took to him according to the words of this Statute to be the Lady his Companion Elizabeth More the Beautiful Daughter of Sir Adam More his Subject without any Ceremonies of Priest or Temple and had Issue by her John Robert and Alexander after he deserts Elizabeth and Marries her to Giffard a Nobleman of Louthean And by the Ceremonies of a Priest and a Temple Marries Euphemia the Daughter of Hugh Earl of Ross and had Issue by her Walter after Earl of Jearne David after Earl of Athol and Euphemia after Married to James Douglas after Euphemia the Queen dies and much about the same time Gyford dies King Robert resumes Elizabeth and Marries her by the Ceremonies of a Priest and Temple as appears by Buch. Rer. Scot. p. 107. where he saith that after the Death of Euphemia Robertus non tam impatientia Coelibatûs quam Amore filiorum ex Elizabetha Mora prius Genitorum ipsam Vxorem duxit hanc enim eliganti forma Adami Mori illustris Equitis filiam adhuc adolescen◠vehementer amarat Ex eaque tres filios duas filias susceperat eamque Gifardo viro nobili in Lothiana curaverat collocandam verum sub idem fere tempus Eufemia Regina Gifardo Elizabethae Marito Defunctis Rex sene vetere consuetudine Morae inductus sive quod a multis traditur ut filios quos ex ea genuerat Legitimos faceret matrem eorum sibi Matrimonio junxit filios statim divitiis honoribus auxit Johannes natu Maximus Carictae Robertus Tinchi◠Alexander Buchaniae Comites sunt facti adjecta etiam Badenach nec munificatione Contentus Comitiis ad Sconam indictis obtinuit ut praeteritis Eufemiae Liberis in Rege creando gradus aetatis observaretur Whence may be observed 1. That the Sons of a Lady born before any Marriage of her with the Ceremonies of a Priest or Temple succeeded to the Crown of Scotland 2. That she was a Lady not Prohibited by the Law of God for the King to Marry 3. That she was the Daughter of a Subject 4. That the Subsequent Marriage by the Papal Law signified nothing for no stress is laid on it but the Confirmation and Declaration of the Successors sought from the Parliament 5. Though there were other Sons born of Euphemia the Queen who was Ceremoniously Married by a Priest in a Temple yet the Parliament thought just to pass by her Sons and to settle the Succession on the Sons of Elizabeth Athelstanus Nothus Legitimate per Jus Coronae Athelstan was the eldest Son of King Edward the Elder before the Conquest by a Lady his Companion to whom he was never Contracted by the Ceremonies of a Priest in a Temple but a Lady not Prohibited by the Law of God to have Married King Edward had after him five younger Sons by two Wives whom he had Ceremoniously Married by a Priest in a Temple and died after his Death notwithstanding the fourth Son of King Edward by one of his Episcopal Wives was left alive and notwithstanding the Priests and others
both in England and Scotland sought to dishonour him with the Name of Nothus for by that name Buchanun Rerum Scot. 175. Stiles him and says Praerat omnibus Anglorum copiis Athelstanus Edwardi Nothus And in the same manner other Writers yet was neither the name nor the thing any bar of his Succession to the Kingdom but he was thereto prefer'd before his younger Brother Edmund whom Papal Laws made Legitimate and accordingly he was Crowned by Athelmus Arch-Bishop of Canterbury at Kingston upon Thames And proved after the most Heroick Victorious Prince that the English ever had before the Conquest for he conquered both the Danes and Scots confederated against him and Subdued the whole Island Edward the Son of Edgar Legitimate per Jus Coronae Ethestede for her excellent Beauty sirnamed the White was a Virgin and not Prohibited by Law of God for King Edgar to Marry but he neglected or despised Pontifical Ceremonies and begot on her without them his eldest Son Edward for which Dunstan Archbishop of Canterbury injoyned him seven years Pennance which he underwent for the Fact After Edgar Married Elfrida the only Daughter and Heiress of Ordganus Duke of Devonshire with the Ceremonies of the Church and made her his Queen and likewise Contracted with her That her Children should be Heirs to the Crown and had Issue by her two Sons Edmund who died young and Ethelred who survived him Edgar dies Note here are all the Objections made against the succeeding to the Crown by Edward which are now made and more for here is an Heir by Marriage-Covenant opposed against the Natural Heir Queen Elfrid excepted against the Succession of Edward the eldest Son That his Mother was no Queen nor Wife Married according to the Ceremonies of the Church and that he was therefore Illegitimate That she her self was King Edgar's Queen and Wife whom he Married Solemnly according to the Rites and Ceremonies of the Church and that by his Marriage-Covenants he bound himself That her Children by him should be Successors to the Kingdom That therefore her Son was both the Legitimate Heir and Heir by Covenant and thereupon drew divers Lords to be of her Party and the two Sons are both produced before the Council assembled to demand their Rights But while the Council sate to Debate the same Dunstan Archbishop of Canterbury came in with his Banner and Cross and not staying for dispute of the Title presented Prince Edward the eldest Son as next right Heir to the Crown and their lawful King and the Assembly consisting most of Clergy-Men drew the Approbation of the Rest whereupon Prince Edward was Admitted and Crowned King being but Twelve years old by Archbishop Dunstan at Kingston upon Thames Anno Dom. 975. and so continued till about Three years and Six Months after King Edward Hunting in the Isle of Purbeck not far from Corf Castle where his mother-in-Mother-in-Law Queen Elfrid with his Brother Ethelred were then Residing he out of his Love to both would needs go to visit them where the cruel Step-mother out of Ambition to make her own Son King caused one to Stab him in the Back with a Knife as he was Drinking a cup of Wine on Horseback at his departing who feeling himself hurt set Spurs to his Horse thinking thereby to get to his Company but the wound being Mortal and he fainting through loss of so much Blood fell from his Horse and one foot being intangled in his Stirrup he was thereby ruefully dragged up and down and lastly left Dead at Corf Gate in Commiseration of which untimely Death he was ever afterward called Edward the Martyr On which may be noted 1. That notwithstanding the Mother of Edward was no Queen Notwithstanding she was never Contracted nor Married by the Rites and Ceremonies of the then Church Notwithstanding Elfrid was a Queen and solemnly Married by all those Rites and Ceremonies notwithstanding the Kingdom was by Marriage-Covenant setled on her Issue by King Edgar Notwithstanding Ethelred appeared with a Company of Lords Competitors Notwithstanding the accompanying of Edgar with Elfred was through Romish Superstition thought so unlawful as not to be Expiated under seven years Pennance Yet the same Archbishop Dunstan who imposed the same on the Father laid none on the Son but he and the Clergy declared him the Right and Lawful Heir by which they did implicitly confess and acknowledge That the Moral Law of God of Marriage and not any Ceremonial Law of Man is the immutable Law which ought to Govern the Succession of the Crown 2. The opinion of the Possession of the Crown to purge all Treason from him who commits it hath been a great incouragement to the committing of the same 3. That Princes disinheriting the Children of the first Wives and entailing their Kingdoms to the Children of the Second destroying thereby their own Houses 4. That none are more Cruel to the Children of the first Mothers than Step-mothers which it seems makes all Poets so out of Charity with them that they never mention them without some odious Epithet of Injustae mala dirae ferae terribiles Novercae and defame them with Stabbing Poisoning and Witchcraft Pocula si quando Saevae infecere Novercae Miscueruntque herbas non innoxia verba Virg. Georg. 2. When Cruel Step-mothers Poys'ning the Cup Add Herbs and Spells for Right Heirs to drink up I find but one kind of Step-mother excepted by Horace as not apt to be Guilty of these Practices which is she that neither brings Portion nor expects Jointure particularly of the Getick Women of whose Chastity and good Nature he thus writes Illic matre carentibus Privignis mulier temperat innocens Nec dotata regit virum Conjux nec infido fidit adultero Dos est magna parentium Virtus metuens alterius viri Certo foedere castitas Et peccare nefas aut pretium mori The innocent and kind Step-mothers there The Orphans Motherless to hurt forbear And not with Portions o're their Husbands rant Helpt by the Gay adulterous Gallant Vertue is Portion great and Chastity Strange man to touch more fearing than to Die 5. That where Marriage by the Ceremonial Laws of Men is preferr'd before a Marriage by the Moral Law of God this makes way for all Murders by Step-mothers of the Children of first Mothers of which see likewise the Example of Roxalana before related at large Lib. 2. cap. 1. p. 245. William the Conqueror succeeded to his Natural Fathers Dukedom his Mother never Married by a Priest in a Temple William the Conqueror was the Son of Rollo Duke of Normandy by Arlotte a mean Woman whom he made Sa Compaigne or Sociam Thalami without any Ceremonies of a Priest or Temple she was a Person how mean soever yet not Prohibited by the Law of God for him to Marry and though some slander her in hatred to her Son as if by some Lightness of hers all such as were of that Trade
were since called Harlots from her name Arlotte yet we find no proof of any Inchastity in her only she could Dance Ala mede de France and if they can prove she was Guilty of any worse and were an Harlot it only makes the President the stronger that the Law and Custom at that time and Countrey was that the Duke's eldest Son though by a Woman taken without any Ceremony of a Priest or Temple ought after the Death of the Duke succeed to the Dukedom neither was this way any other Law or Custom than what is already shewn to have been amongst the Princes of the Hebrews Greeks Romans and all other Nations not inslaved by Superstition to receive the Forms of Marriage and acknowledge the Supreme Jurisdiction of them to be in the Bishop of Rome or their own Prelates or Pontiffs by which Examples it appears That by the Brittish Scottish and Norman Laws the eldest Sons of Kings by Women not Prohibited to be Married by the Law of God though not Joyned by a Priest in a Temple or any other Episcopal Ceremony yet by Right of Primogeniture they succeeded in the Governments of their Fathers Dominions It will be asked how then came the ancient Law of God and the Land to be changed concerning these matters of Marriage Filiation and Succession and the Jurisdiction to be got or pretended to be in Episcopal hands to Judge and Dispose of Marriage Filiation and Successions both to the Crown and Lay-Inheritances according to Canonical Laws and not the Laws of God nor the Land To which is answered Hugh Capet an Usurper of the French Crown to curry favour with the Pope first disinherited natural Children That as to Normandy and other the English Dominions after acquired in France as Bodin says fol. 741. Hugh Capet was the first that made a Law in France That natural Sons that is to say such whose Parents were not Married by the Popish Ceremonies of a Priest in a Temple should not be Heirs nor succeed to the Kingdom And at last strain'd his Law to that Degree of unnatural Cruelty and Folly that it was Enacted That natural Children should not be accounted natural Children which Nonsence in that time of Popery was not only followed by the French but imitated to get Money by the English and Scotish Ecclesiastical and Common Lawyers who as hath been already shewn would not admit natural Children to be Sib Kin of Consanguinity nor Children to the Father who begot or the Mother who bare them as if it had been in the Power of Hugh Capet and them to overthrow or change the Laws of God and Nature Prohibition of Marriage Sans Ceremony a French Toy to disinherit all Protestant Children So likewise by a French Decree as saith Everard p. 24. All Children born in Marriages not Blessed by a Romish Priest are made incapable to succeed to the goods of Father or Mother the Law of Capet was plotted by the French Bishops to get themselves Supremacy of disposing the French Crown which foundation of Power they commonly got from Usurpers to the intent that by their Ecclesiastical pretence of Authority they might protect a false Title and disinherit the true Heirs of the Blood Heylin in his Geography p. 186. saith That Popes strengthen themselves by unlawful Marriages of Princes and not by lawful and p. 101. Popes strengthen themselves by unlawful Marriages and Successions of Princes and not by lawful That Hugh Capet being a Prince of a strange Blood was hoysâ—d up by the People to the Prejudice of Charles of Lorrain the true Heir of France as Brother to Lotherius and Uncle to Lodovicus the last King of the Line of Pepin And p. 129. he saith The occasion why Capet was chosen and Charles of Lorain refused was this Charles Son to Lewis the Fourth King of France being left to the courtesie of his Brother and by him not regarded was by Otho the Emperor invested in the Dutchy of Lorain Anno 984. which containeth one Marquisate five Earldoms and divers Baronies The eldest Son likewise of Lorain is intitled Prince of Barry for which cause that he received Lorain from the Emperor Charles shewed himself so alienated from the French and wedded to the Germans that the French after the Death of his Cousin Lewis the First rejected him and chose Hugh Capet for their King This Charles had one Son named Otho and one Daughter called Hermingrade from her descended Isabel Wife to Phillip the Second uniting the Bloods of Pepin and Capet to the great content of her Grandchild St. Lewis who being a Man of a very tender Conscience is said never to have Joyed in the Crown of France till it was proved that by the Mothers side he was the right Heir of Charles of Lorain whom Hugh Capet had so unjustly dispossessed French and Popish Laws of Marriage seek to destroy all English Heirs and the Protestant Religion So it appears this French Law against Natural Sons was made to disinherit the true Heirs of the Royal Blood of France and to inherit the Certificate Heirs of the French Bishops and the other French Law mentioned against all Succession of the Children whose Parents at their Marriage received not the Benediction of a Romish Priest was made on Design to disinherit all Protestant Children The Law of Theodora against Natural Heirs was to Disinherit the true and Inherit adulterous Heirs The Law of Trent nulling all Marriages without a Priest and Witnesses was to set to Sale Community of Women to raise Rents out of Stews to lay a Tribute on Marriage and inslave the Successions of Kingdoms and private Patrimonies to the will of Popes and Bishops Are there any Degenerous English so much Frenchified as will impose French Laws of Succession on the English Crown Capet's Law not to be compared with the Law of Edw. the 3d. Shall Hugh Capet's Laws dare to contend with this Law of Edward the Third who beat and Conquered the greatest Navies and Armies of France and in tryal by Battel at Cressey proved his Right better to the Title of King of France than the Heir of Capet his and had the same Heir of Capet taken Prisoner in Battel by the Black Prince the Heir of this Statute Are there any so false Protestants as to introduce such Popish Laws as disinherit all Protestant Children Are there any so prophane Christians as will prefer the Ceremonial Laws of Men above the Moral Laws of God It hath been shewn thus far by the Examples of so many Kings of this Island of Great Britain that their Legitimation and Succession thereby to the Crown were by the Moral Law of God and not by the Ceremonial Laws of Romish or Brittish Bishops and none dared in Great Britain though they did in France assume the Supremacy of Ecclesiastical Jurisdiction above the Royal and Parliamentary in Declaring the Successors of the Crown or if they did they were overthrown in like manner may
it be said of all the Kings and Queens which succeeded concerning whom any Question of Legitimation was raised as for Example John of Gaunt the fourth Son of Edward the Third because he was a great favourer of the Wicklenites who were in those days most Zealous Protestants was so hated by the Bishops to whom the Doctrine of Wickliff was then terrible that the then Bishop of Winchester John of Gaunt for favouring Protestants falsly slandred by the Bishop of Winchester to be Illegitimate Confessor to his Mother Queen Phillippa falsly slander'd him to make him Illegitimate That he was the Son of a Flemming and not of King Edward though his Mother Queen Phillippa was the most virtuous Wife of a King that was then in the World and to Illegitimate his Posterity by the Lady Katherine Swinford who was a virtuous Lady and not Prohibited by the Law of God to be Married But yet never was Married to him by the Ceremony of a Priest or Temple and by whom he had Issue John Duke of Somerset Thomas Duke of Exceter Henry Bishop of Winchester and Cardinal and Joan a Daughter which Daughter and all her Brethren were sirnamed Beaufort from Beaufort a Castle which he had in France where they were all Born and in regard thereof bare the Portcullis of a Castle for the Cognizance of the Family and these four Children though they were Legitimated by Act of Parliament in the Twentieth year of King Richard the Second and made capable of all Dignities yet by Episcopal Power there was inserted Excepta dignitate Regali which did as much as lay in an Exception so much Illegitimate them to the Crown that Coke says Part 4. fol. 37. Henry the 7th dâ—riveth â—imselâ— from Katherine Swinford 〈◊〉 Maâ—…d by a Priest in a Temple The best Title of Henry the Seventh who derived himself from John de Beaufort Duke of Somerset Son of John of Gaunt by the Lady Katherine Swinford was by Elizabeth his Wife eldest Daughter of Edward the Fourth which Episcopal Opinion of his would not have been taken for Law if he had lived in the time of H. 7. himself who notwithstanding this Episcopal Illegitimation assumed the Title of the House of Lancâ—ster as Legitimate by the Law of God Both York and Lancaster derive the Lines from Persons slander'd to be Illegitimate by Laws of Men but made Legitimate by the Law of God and descending from a Lady not Prohibited to have been Married to John of Gaunt by the Law of God In like manner the Lady Elizabeth eldest Daughter to King Edward the Fourth by the Lady Elizabeth Gray from the House of York claims was declared Illegitimate by Richard the Third because as was allâ—adged E. 4. was praecontracted to the Lady Lucy which Lady Elizabeth was her sâ—lf likewise first promised in Marriage to the Daulphin of France before she was Married to H. 7. yet was she Legitimate and her Issue Legitimate by the Law of God and succeeded United to the House of Lancaster to the Kingdom according to the same Law The same hath been before mentioned of the Lady Elizabeth More her Children by Robert the Second King of Scotland were Born before any Ceremonial Marriage of a Priest in a Temple yet were they all Legitimate by the Moral Law of God Edward the Sixth Illigitimated by Papal Laws but Legitimated by the Law of God the eldest succeeded to the Crown In like manner King Edward the Sixth was declared Illegitimate by the Pope and the pretended Ecclesiastical Laws but he was Legitimate by the Moral Law of God and succeeded to the Crown accordingly Lastly Queen Elizabeth was not only declared Illegitimate by the Pope but by the Acts of Parliament of her own Father H. 8. which is above any Declaration or Proclamation of a Privy Council Queen Elizabeth Illegitimated by Papal Laws and Act of Parliament but Legitimated by the Law of God yet no true Protestant doubts but she was Legitimate by Moral Law of God which is above all Laws and happily succeeded to the Crown according to the Law of God to the Comfort of all Protestants From which Examples and Reasons appears the truth of the Thesis before laid down 1. That the Legitimation and Succession of Kings eldest Sons born of Women not Prohibited by the Moral Law of God was never questioned by any Laws except that of Popes and Bishops 2. That Legitimate and lawful Heirs may be Born of unlawful Marriages 3. That the Moral Law of God hath always been and still is the greatest Security of Legitimation and Succession to the Crown of Great Britain and ought to be prefer'd above all Ceremonial Laws of Men. 4. Next to the Moral Law of God the greatest Humane Security of Legitimation and Succession to the Crown is either a general Act of Parliament as this is constituting and ascertaining the Heir by a General or Special Distinction or Description or when any doubt or danger ariseth by Act of Parliament Declaratory of the Particular Successor or Name That 't is High Treason by this Statute for any Subject to slander the King 's eldest Son with Illegitimacy Though Papal and Episcopal Canons have made their ordinary work to Illegitimate the most Sacred Persons of Protestant Princes who disdain to buy their Mercenary Dispensations Faculties Licences and Pardons of Popes or Bishops and particularly the most Pious King Edward the Sixth and Queen Elizabeth And as is said Jude 8. Defile the flesh despise Dominions speak evil of Dignities yet let them know there is this Statute above all their Canons and Synods will punish their wickedness if they presume to Illegitimate any King of England or his eldest Son it seems on these Reasons 1. Because this compasseth the Death of the King himself his Father for who destroys the Kings Armies or Fleets which should defend him compasses his Death but Non legiones non classes aeque firma imperii Munimenta ac numeros Liberorum Not Legions nor Fleets equally defend a Kingdom as Children And above all Children the eldest Son All which is more authentically expressed by a great King and Souldier Psa 127.3 Lo Children are an heritage of the Lord and the fruit of the womb is his reward as arrows are in the hand of a mighty man so are the Children of the youth happy is the man who hath his quiver full of them they shall not be ashamed but they shall speak with the Enemies in the Gate And likewise as to the eldest Son the Scripture it self magnifies him as an high defence to the Father as Jacob expresseth of his Gen. 49.3 My first-born my might and the beginning of my strength the excellency of Dignity and the excellency of Power And who hath Vindicated His Majestie 's Honour and Safety in Wars abroad and against Popish Plots Assassinations Pistols Poniards and Poisons at home with such Fidelity Affection Zeal Constancy Vigillancy and Valour as his eldest Son And
doth he not then who compasseth his Death compass the Death of the King himself And doth not he who slanders him to be Illegitimate compass his Death 2. Because this exposeth Majesty and the eldest Son likewise to contempt by depriving both of the hopes of a Lincal Successor And this is complained of by no less a Prince than Alexander the Great who chargeth his Army as related in Curtius p. 6. Orbitas mea quod sine Liberis sum spernitur my being childless causeth your contempt of me which want of Children inheritable put him in the same condition of being despised as was he who said Isa 56.3 I am a dry Tree And the want of a Son capable to succeed him was the Ruine of so great a Monarch his Mother House and Empire his Enemies Poisoning him in the flower of his Age securely as knowing he could leave no Son of himself to revenge his Death 3. Because who affirms the eldest Son Illegitimate doth it to the intention to seize on his Inheritance and who intend to seize on his Inheritance will compass his Death as Matth. 21.38 They said amongst themselves This is the heir come let us kill him and let us seize on his Inheritance And they caught him and cast him out of the vineyard and slew him A Comparison of the Popish Slanders of Illegitimation against Queen Elizabeth and the King 's eldest Son Queen Elizabeth was not only declared and proclaimed Illegitimate by the Pope's Divinity but the Popish Party so far misinformed her own Father H. 8. in Matters of Law and over-wrought on the King as they compell'd him by weariness to rest on Implicit Faith in them and to declare his own Daughter Illegitimate an Error which not only he but many other Princes have been the more easily drawn into in regard by the Subtlety of Ecclesiastical and Temporal Lawyers the Laws of Marriage Filiation Aliment and Succession and the Comments on them have been increased to so huge heaps and confused Volumes and so many Writers of contrary Religions and contrary Jurisdictions have had their Power and Profit concerned in them as is impossible for Princes who have so many Affairs of State to look after besides to Read them over as long as they live and such faithful Protestant Subjects as have indeavoured humbly to represent the truth as to the Law of God and of the Land have been by the same Popish Party not only intercepted and Prohibited to Write or Publish any thing against but so much as to dispute the Romish as well as Turkish Alcoran of their Laws One great Example of which appears in these two great Descendents of the Blood Royal the Famous and Pious Queen Elizabeth and the Valiant and Virtuous eldest Son of the King To go on therefore in their Comparison of Suffering wrongfully 1. It may be observed that Queen Elizabeth was a Protestant and so is the Kings eldest Son a Protestant 2. Her Prosecutors were Papists so are the Prosecutors of the King 's eldest Son Papists 3. Papists laid Plots to Assassinate and Poison Queen Elizabeth so have Papists laid Plots to Assassinate and Poison the King 's eldest Son 4. The final Cause why Papists would have destroyed Queen Elizabeth was to seize on her Inheritance so the final Cause why Papists would destroy the King's eldest Son is to seize on his Inheritance 5. Queen Elizabeth was Innocent so is the King 's eldest Son Innocent 6. Queen Elizabeth was deprived of the help of a Mother by her Death so is the King 's eldest Son deprived of the help of a Mother by her Death 7. Queen Elizabeth was deprived of the help of a Father by the unjust Prosecution of Papists as appears 28 H. 8. cap. 7. by which Act she is declared Illegitimate to all intents and purposes and utterly foreclosed excluded and barred to Claim Challenge or Demand any Inheritance as lawful Heir to the King her Father And it is further Enacted That it shall be High Treason so much as to call the said Lady Elizabeth Legitimate yea the Act of Parliament is so furious against the poor Innocent Lady as if they desired to Destroy and Damn the Conscience of all good Protestants at once with hers and her They Enact further That it shall be High Treason to believe Oh miserable Thought it self is made High Treason the Marriage of the Lady Ann with the King her Father to be good lawful or not void Let it be left to Supreme Authority to consider how far the Papists have endeavour'd to proceed in the same Nature against the King's eldest Son 8. Queen Elizabeth might say as David saith Psal 27.10 When my Father and my Mother forsake me then the Lord will take me up So may the King 's eldest Son say the same 9. Queen Elizabeth notwithstanding all this was Legitimate and lawful Heir of Blood by the Moral Law of God and the Protestant Religion and so is Recognized and acknowledged by Parliament 1 Eliz. cap. 3. and accordingly God gave her the happy Succession to the Kingdom So the King 's eldest Son by the Moral Law of God and the Protestant Religion is Legitimate and the next Lineal and Lawful Heres Sanguinis Heir of Blood for Jus Sanguinis is the Law of God and Nature and Jura Sanguinis as hath already been said Nullo Jure Civili divini possunt 10. It was the Interest of Queen Elizabeth when she obtained the Lawful Power to Maintain and Defend the Moral Law of God and the Protestant Religion So will it be the Interest of the King 's eldest Son to use what lawful Power God gives him to Maintain and Defend the Moral Law of God and the Protestant Religion against Popish Ceremonial Laws and Superstitious Religions A Comparison of the Popish Slanders of Illegitimation against King Edward the Sixth Queen Elizabeth and the King 's eldest Son And the Sons and Daughters of the whole Protestant Clergy This Slander against the Sons and Daughters of the Clergy could not have been raised without another Slander first raised against the Marriages of the Mothers Both which are taken notice of by the Statute 5. 6. E. 6. cap. 12. which Statute making first a recital of the Stat. 2. 3. E. 6.21 of Repeal of all Laws of Man against the Marriage of the Clergy proceeds in these words viz. Yet since the making of the said Act divers evil-disposed Persons taking occasion of certain words and Sentences in the said Act comprized have and do untruly and very Slanderously report of Priests Matrimony saying That the same Statute is but a Permission of Priests Matrimony as Usury and other unlawful things be now permitted for the eschewing of greater inconvenience and Evils so that thereby the lawful Matrimony of Priests in the opinion of many and the Children Procreate and Born in such lawful Matrimony rather be of the greater number of the King's Subjects accounted as Bastards than Lawfully Born to the
the King 's eldest Son or against the Jus Coronae and this Act of Parliament of 25 E. 3. Cap. 2. De Productionibus as not to understand the same Slanders Militate against the Marriages and Legitimations of themselves their own Mothers Wives and Children or not to know what pretence or Power they put into the hands of Popes and Bishops to disinherit and dispose of the Successors and Succession of the Crown they give them a greater Power to disinherit and dispose at will of their own Inheritances Wives and Children and by forsaking the Moral Law of God of Marriages and Legitimations and Idozing the Ceremonial Laws Papal or Episcopal drive themselves into this inevitable Dilemma either to fall into the hands of a Papist Successor who will assuredly destroy all Married Priests and Ecclesiasticks their Wives and Children and Successors and make a prey of all they have or to fall into hands of Justice as the fruits of Folly and Treason in slandering the right of a Protestant Successor Of the Insolent Absurdity of Popish Laws disinheriting the Lawful Sons of Kings by the Law of God and Inheriting the Bastards of Popes by the Law of the Devil The Scripture saith Galat. 4.7 If a Son then an Heir that is to say to the Father who begot him and not to a Fictitious Father But the Popish Law or what is above it the Practique saith Let none be an Heir of a Marriage not Contracted by a Priest in a Temple except a Bastard of a Pope in which the Law of New Rome follows that of old Pagan Rome which prohibited some kind of Women to the Subjects but gave Authority to Caesar to lye with what Women he would And the like to the Romish false Prophet is imitated by the false Prophet Mahomet who in his Alchoran prohibited divers Women to the people but counterfeits God speaking to himself and saying But as for thee O Prophet thou may'st Lye with what Women thou wilt But in this the Pope goes beyond Mahomet for the one Illegitimates no Children nor disinherits them but the other all of Women not Churched except his own So Pope Paul the Fifth is related to have gotten out of his Leaden Bulls in a small time Twenty hundred Thousand Scutes of Gold with all which he bought Lands for his Bastards and Pope Sextus the Fifth being himself the Son of a Swineheard created his Bastard a Cardinal and gave him Ten Thousand Crowns per Annum Revenue and besides Left at his Death Ten Millions of Treasure Another Pope gave his Bastard the Kingdom of Sicily and divers Principalities of Italy and a vast heap of Treasure Pope Alexander the Sixth intended likewise to have given his Bastard Son Caesar Borgia a Kingdom whom though the veriest Villain in the World Matchiavel in his Treatise De Principe proposeth as the only Example for Kings to imitate And by Probability a Kingdom he had obtained had he not and his Father by the just Judgment of God been Poisoned by the same invenomed Wine at a Banquet which they had prepared for others All Italy is already over-stocked and the Principallities thereof and of other Catholick Countries in time likely to be the Inheritances of none but of the Bastards of Popes and their Descendents Male or Female under the Name of Nephews and Neices and by the Matches of Papal Descendents into Protestant Dominions the like Evil may be justly feared if not prevented and what is worse a perpetuating thereby of their Superstition from Generation to Generation The Scripture likewise saith Heb. 13.4 Marriage is honourable in all and the bed undefiled but Whoremongers and Adulterers God shall Judge But the Popish Law saith no Marriages are Honourable made by the Law of God unless made by the Papal Laws nor the Children nor Chastity nor the Bed undefiled nor the Sons though of Kings descending from the same according to the Foundation of all Honour the Immaculate Law of God But the Bastards of Popes such is the Impudence of the Whore of Babylon to Prohibit Honour to all except her self and her Brats And as to these Pope Eugenius the Second Usurped the Authority when he pleased to create them Kings Dukes Earls and Knights and hath plagued and incumbred the World with fictitious Titles of Honour but he vouchsafes the lawful Sons of Kings no better Title than Base Sons except they receive from him the mark of the Beast This is not strange that Swineheard Popes and their Trulls should not only not disinherit nor degrade their own Blood but extol the same above the Imperial But 't is strange that any Christian Emperors and Princes should have ever been so Pope or Priest-Ridden or so far have suffer'd them to have set their foot on their Necks as to Kick from their Heads the Crowns and Honours of them and their Sons for the Bastards of Popes to inherit and to disinherit their own for which not only his Holiness himself derides them but they become a Derision to Jews Turks and all the World besides none of them being so foolish to admit the Doctrine of Devils of Prohibiting Marriages not Prohibited by God amongst them or Illegitimating the Children of such Marriages Lastly It is already proved That Carnal Knowledge Chastity and Childbirth makes a Marriage Lawful Holy and Indissoluble by the Law of God between all persons not prohibited And it is notorious That Popes have kept openly their Whores and their Bastards and Rule what they call their Holy Church by them So did Theodora the Impudent Concubine of the Duke of Tuscany rule all Rome and gave her Daughter Marozia as wicked a Queen as her Mother to be Concubine to Pope Sergius the Third of whom he begot him who was afterwards his Bastard Pope John the Twelfth the Mother Marozia poisoned Pope Leo 6. and Pope Stephen 7. And got her Bastard Boy to be Pope John the Twelfth Pope John the Thirteenth was deposed in Council Anno 961 for abusing his Father's Concubines for Gelding some Men and putting out the Eyes of others for Drinking a health to the Devil c. Pope Clement the Fifth was a Common Fornicator and it is Notorious That all Popes are Panders-General of all the Stews and Houses of Fornication in Rome and fill their Treasuries with the hires of Whores And are these fit Fellows to make Marriages Holy or to make Laws to overthrow God's Holy Ordinance and dispose thereby of the Succession of Protestant Kingdoms LIB III. CHAP. II. Whether Necessary in the present Juncture of Affairs for the King and Parliament to declare a Protestant Successor to the Three Kingdoms of England Scotland and Ireland TO prepare which Question for the Consideration of Supream Authority it will be necessary first to recite the Objections which are made for the Negative And then the Reasons which are brought for the Affirmative Object 1. Declaring a Successor by the King and Parliament makes the Kingdom Elective and not Hereditary
theirs Princes of the Scots The French Kings theirs Dauphins with so little doubt of Danger thereby that they rather look on the same as the greatest Security of themselves their Families and Kingdoms to have their Eldest Sons declared Successors in their Life-time but always as is said this is true only where the Eldest Sons are declared and not where contrary to the order of Nature Younger Sons or Collateral Heirs are prefer'd before them or to disherit them Object 5. The Ottoman Emperors never declare a Successor Answ They are ill Presidents to be followed for the not declaring of a Successor causeth all those Bloody Butcheries of Fathers of their own Sons And Brothers one of another and gives the Janizaries Power to sell the Empire to that Son or Brother who will give most Money for the same which the Emperors would gladly reform if they were able and declare their Successors as other Princes do were they not over-power'd by their own Slaves as appears Turk Hist 479. Selymus The Ottoman Emperors why they declared no Successors a Younger Son of Bajazet the Second was made by his Father Governor of the Kingdom of Trapezond and Married without his Fathers liking the Daughter of Mahometes a mighty King of the Tartars called Precopenses Selymus by the assistance of his father-in-Father-in-Law provided a great Fleet and Army Pretending but not Intending War on Hungary Bajazet receiving Advertisement of Selymus his Army and that he had left Trapezond and was come over into Europe suspecting his Design notwithstanding his Pretences to be against himself yet not seeming to take notice thereof sends Embassadors to disswade him from the Hungarian War and to perswade him to return peaceably to his former Government but without effect for he continues his March onwards towards his Father In the mean time Bajazet moved the rather with the fear of Selymus resolved on that which he had long time in his Mind deeply Consider'd in regard he was aged and sickly to resign the Empire to Achomates his eldest Son and proposeth the same to the Soldiers but they being Corrupted before with Money by Selymus Cunningly seeming to commend Achomates yet would neither yield that Bajazet should resign or nominate him for his Successor And the chief Reasons they alleadged were That the same was neither according to the Custom of the Ottoman Kings nor for the behoof of the Men of War who should thereby be defrauded of the Rewards usually granted unto them during the time of vacancy of the Empire arising from the Spoil taking of them who are of Religions different from the Turks for it is a Custom that immediately on the Death of the Turkish Emperors all the Jews and Christians which dwell at Constantinople Pera Hadrianople Thessalonica and Prusa especially Merchants Exposed unto the Injuries of the Turks are by the Janizaries and other Soldiers of the Court spoiled of all their Wares and Goods and became unto them a Prey neither will they give their Oath of Allegiance unto the new Emperor until he grant them their Prey and Swear by his Head to Pardon all their Outrages before Committed When Bajazet saw his Men of War generally to oppose themselves against the Nomination of his Successor he tryed what Money would do with them and promise them Five hundred Thousand Duckets if they would stand favourable to Achomates and accept him for their Soveraign but he could not move them for they assured themselves of greater Rewards in Pay and Plunder from Selymus So with Grief and Patience he put up the Matter hoping for a fitter Opportunity to effect what he desired Selymus in the mean time under divers pretences marcheth on towards his Father and Corrupted the greatest part of his Council with Money and great Promises to betray him and advance Selymus to the Empire only Cherseogleson and old faithful Bassa adviseth Bajazet to Chastise the Rebellion of his unnatural younger Son and to give him Battel wherein Selymus was overthrown and the greatest part of his Army Slain Achomates hearing of all the trouble had happened between his Father and Brother Selymus writes to him desiring him to dispatch his long Determin'd and Promised Resignation of the Empire Bajazet of himself still continued desirous of the Translating the Empire to Achomates and making no great Secret of it Commanded Galleys to be provided to Transport Achomates for that end from Scutari where he then was to Constantinople but the Bassa's and Souldiers Corrupted by Selymus's Money would not suffer him whereupon he writes to Achomates how the matter stood and that he should therefore return from Scutari to his old Charge of Amasia until he might with bounty win the Minds of the Souldiers and great Men to effect his advancement with less Danger Achomates thus deceived of his hopes Complained of his Father how he had deceived him and made him a By-word and Laughing-stock to the World and meditating either Revenge or Defence against his Brother raiseth an Army and on Contumacy when Commanded to Disband is by the Incitation of Selymus with his Party proclaimed Traitor by his Father and Bajazet is so over-persuaded by the Conspirators That he sends home for his younger traiterous Son Selymus Pardons him and makes him General of his Armies against Achomates the elder Son Selymus having received the Army they Corrupted by him Proclaim him Emperor Selymus thereupon Poisons his Aged Father Bajazet being almost Fourscore years of Age and Murders his Brothers and Five of his eldest Brother's Sons From whence may be observed 1. The Great Error of Bajazet who gave his younger Son Selymus a Kingdom and so great Power with it that he was able to be a Competitor against his eldest Son and to raise a Rebellion against himself which is Inconsistent with the Right of Primogeniture and Divides the Empire into many Empires 2. That Excessive Treasure given to a younger Brother gives him Power to Corrupt both the Council and Army of his Father who gave it him 3. Bajazet by setting the younger Son in Contention with he eldest he lost the Fidelity of both and was destroyed between them 4. He did very imprudently to promise his eldest Son the Resignation of the Empire and ought only to have declared him Successor after his Death 1 Bajazet by preferring his younger Son before his eldest exposed him to be Murdered unless he took Arms in defence of his Life but more Imprudently to break his Promise to him and thereby to Expose him a Publick Laughing-stock to the World and a certain mark to be Murdered by his Brother Selymus unless he took Arms in his own Defence to prevent it 5. That by probabillity if he could have effected the Declaring of his eldest Son Successor and given only Moderate Portions to his younger Sons as the Chynoys and Aethiopians Emperors gives theirs such miserable Murders might not have fallen on himself his Sons and Nephews The like Destruction is before observed to have
Emperors of this Realm whereby hath insued great Effusion and Destruction of man's Blood as well of a great number of the Nobles as of other Subjects and especially Inheritors in the same and the greatest occasion thereof hath been because no perfect and substantial Provision in Law hath been made within this Realm of it self when Doubts and Questions have been moved and proponed of the Certainty and Legalty of the Succession and Posterity of the Crown By which Statute appears the Judgment of the King and Parliament to be That the great incertainty of the Law in points of Succession of the Crown was one great Cause of the great Mischiefs of effusion of Blood both of Nobles and Commons which insued thereby and the fittest Remedy to be the Declaration of the Successor incertain by the King and Parliament which is accordingly therefore done in the same Statute And it likewise appears that the same Doubt in Law was raised then as to Succession which is now Whether the King's Marriage and Issue by the Mother of Queen Elizabeth was Lawful and Legitimate which is Declared by this Act of Parliament that it was And H. there is first intendency there to Declared a Legitimation of the same Marriage with Queen Ann the said Mother of Queen Elizabeth And that all the Issue had and procreate or to be had procreate without saying Lawfully between the King and Queen Ann shall be his Lawful Children and be Inheritable to the Crown Then is the Crown Declared to be to the King for Life and the Remainder to be to the first Son of his Highness of his said Lawful Wife Queen Ann begotten and to the Heirs of the Body of the said first Son Lawfully begotten and for default of such Issue with divers Remainders over and make it High Treason to slander the King's Marriage in prejudice of the Heirs of the same 3. Danger of Arbitrary disposing the Crown by Rome or Canterbury 3. The other great Danger from the incertainty of the Laws of Succession besides effusion of Blood which is the Arbitrary disposing by Episcopal Sees whether of Rome or Canterbury though only Rome named unless a Successor is Declared by the King and Parliament is likewise mentioned in the said Statute 25 H. 8. cap. 22. in these words viz. By Reason whereof the Bishop of Rome and See Apostolick Contrary to the great and inviolable Grants of Jurisdictions by God immediately to Emperors Kings and Princes in Succession to their Heirs hath Presumed in time past to invest who should please them to Inherit in other mens Kingdoms and Dominions which thing we your most humble Subjects both Spiritual and Temporal do most Abhor and Detest 4. Danger of Predominancy of Papal and Episcopal Laws of Marrlage above the Moral Law of God 4. One great Cause of the incertainty of the Laws of Succession of the Crown is That Papal and Episcopal Ceremonial Laws of Marriage Filiation and Succession are tollerated in the Three Kingdoms to Usurp a Predomination not only over the Law of the Land but the Moral Law of God It is therefore necessary to avoid the Danger mention'd to proceed from the incertainty caused by Papal and Episcopal Laws That a Declaration by King and Parliament be Who shall be Successor in Particular and by Name which clears all Doubts and is the highest Security under God on which any Crown or Succession to it can depend 5. Danger to the King's Person Line and House 5. The not Declaring a Successor is Dangerous to the Person of the King and his House of which we need not look on any other Example than Alexander the Great of whom Justin Lib. 15. relates That he being desired to Declare a Successor though he had a Son called Hercules and though his Wife Roxana were Great with Child yet would he Declare neither but Will'd That he who was most worthy should Succeed which was the same in effect as if he had Will'd they should after his Death destroy one another with Civil Wars and his own House amongst them for so they did And Cassander one of his mean and not Chief Officers destroyed his Mother Olympias and all his Kindred Such was the Fate of so great a Monarch who while alive thought the World too little yet was he himself Poison'd and when Dead nor he nor his Mother nor his Children nor any of his Kindred retained any Spot but their Graves being all destroyed with him of which there appears no second Cause but his Neglect to Declare his Son Hercules his Successor who might have been a Preservative to him according to Tacitus Pravas aliorum spes cohiberi si Successor non in incerto The wicked hopes of Plots against the Possessor are Checkt if the Successor is not incertain 6. Danger of Lineal and Collateral Heirs to destroy one another 6. The Danger of the Lineal and Collateral Heirs destroying one another doth cause all those Murthers Poisoning Strangling Burning out the Eyes or perpetual Imprisonments of the Blood Royal of the Turkish Persian Aethiopian and other Eastern Kings and Emperors but that they have no Parliaments Elected by the people to Declare their Successor and to Protect the Liberty Propriety and Lives of their younger Children by standing Laws but on the Death of the old Emperor the Election or rather Sale of the Empire to the New is left to the Lawless will of the Priest or Soldier 7. The Danger if the King 's Eldest Son should die and leave Children in Minority of Guardians in Majority of Contention for the Crown between Nephews and Uncles This Danger is not so great in Scotland as in England for there as hath been already said as Buchanan mentions their Ancient Act of Parliament Enacts Vt quemadmodum Regi maximus Natu filius in Regnum Succederet ita filio ante Patrem Defuncto Nepos avo subrogaretur That as the Eldest Son of the King should Succeed to him in the Kingdom so the Son being Dead before his Father the Nephew should Succeed in his stead to his Grandfather It hath been already before shewn how dangerous Guardians Uncles are to Nephews in Minority and if in Majority all Histories witness under how great incertainty the Law is in most Nations to determin the Question which ought to be preferred the Uncle or Nephew in Succession to a Kingdom that is to say in such Kingdoms who have no Parliaments Elected by the People to establish the manner of Succession And how great Wars and Devastations have been made between Nephews and Uncles on the incertainty of the Law of the Country in that point And though in Succession to Common Inheritances in England the Nephew is by Custom preferred Jure Representationis to the Uncle and though my Lord Coke likewise in his Exposition on the said Statute of 25. E 3. cap. 2. Coke 3. Part. fol. 8. saith to be the Fitz-Eigne the Eldest Son of the King within that Statute it
is not always necessary he should be his first begotten Son for the Second after the Death of the first begotten without Issue is Fitz-Eigne with the Statute Et sic de caeteris which doth implicitly seem to affirm That till the Issue of the Eldest Son fails the second Son shall not Succeed by this Statute which implicitly prefers the Nephews in Successions before the Uncle but he shewing no Authority therein but his own and that only implicit and not Express and the Common Law and Customs of the Crown being very incertain obscure and as often broken as kept when not Confirmed by Act of Parliament And King Edward himself the Wife Author of this Act when the Black Prince Died and left his Eldest Son Richard of Bindeax who was after R. 2. Doubting of the certainty of the Law in the Point did as the wisest way procure Richard to be Declared Successor by Act of Parliament in his Life-time to secure him against his Uncles Tâ—â—â—aw of Eâ—… not clear in point of Succession of the Crown between Nephew and Uncle where the Father dies before the Grandfather The certainty of the Law of England therefore may be not without Cause doubted in this Point of Succession between Nephew and Uncle and Danger there may be lest the incertainty of the same give the same Pretences to create Civil Wars here as it doth in other Countries unless prevented by an Act of Parliament as in Scotland Vt filio ante patrem Defuncto Nepos Avo Subrogaretur 8. Danger without Assent of the People Danger if the Successor assume the Crown without the Assent of the People by their Representative in Parliament the Right of a Successor is not here Disputed nor the Law whether he is King before Coronation or not until Contract with his Parliament and Coronation received from them Highest a Successor can say is only as Paul saith 1 Cor. 10.23 All things are lawful for me but all things are not expedient All things are lawful for me but all things edifie not Though the manner whereby a Successor ascends the Throne may be lawful yet may it not be Expedient neither may it Edifie the Throne H. 8. was a King of great Courage and Wisdom and doubted not the Right of him and his Posterity to the Crown Yea though he had more than any other King Power granted him by Act of Parliament himself to Declare his own Successor either by his Letters Patents or last Will yet he shewed therein his great Wisdom and Moderation and would not do it without Assent of his Subjects as appears in the already mentioned Statute 35 H. 8. cap. 1. in these words viz. And albeit that the King 's most Excellent Majesty for default of such Heirs as are Inheritable by the said Act might by the Authority of the said Act give and dispose the said Imperial Crown and other the Premisses by his Letters Patents under his Great Seal or by his Last Will in Writing Signed with his most gracious Hand to any Person or Persons of such Estate therein as should please his Highness to Limit and Appoint Yet to the Intent that his Majestie 's Disposition and Mind therein should be openly Declared and Manifestly known and notified as well to the Lords Spiritual and Temporal as to all other his Loving and Obedient Subjects of this his Realm to the intent that their ASSENT and CONSENT might appear to Concur with thus far as followeth of his Majestie 's Declaration in this behalf For so Wise a King well know that let the Right of a Successor be what it will yet if he lose the Love of his People which cannot be obtained without their Assent and Consent he loseth the Chief Defence under God of that and all other Right he hath if therefore a Successor is Declared by Act of Parliament so great a Danger is avoided of not having the Assent and Consent of his Subjects seeing such an Act of Parliament cannot be without the Assent and Consent of the major part of the People included in the plurality of Votes of their Representative 9. Danger of assuming the Crown by a Papist The next great Danger is The assuming of the Crown by Force by a Papist Successor if not prevented by a Declaration of a Protestant Successor by the King and Parliament That a Papist Successor is most Dangerous to all Lay-Papists themselves and that they may Live far more Happy under a Protestant than one of their own Religion A Distinction ought to be made between Lay-Papists and Papist Priests Both Religion Justice and Mercy ingage all those who are affected with the least of any of them to put a great difference betwixt the Deceived and Deceivers and betwixt the Blind and those who mislead them to fall into the Ditch A Distinction is therefore necessary to be made by all Protestants between the Lay Papist and the Papist Priest Mercy is to be shewn the one and Justice the other And if this just Course had been used from the Beginning of the Reformation that no Penal Statute had been made against the Lay-Papists but only against the Papist Priests The Protestant cannot be secure unless the Lay Papist be likewise secure from Penal Laws against Conscience No Bishop Bencroft under pretence of maintaining the Dominicans against the Jesuits and Regulars against Seculars had been able to maintain Legions of both in Secret to Destroy the Protestants in their own Land nor under the blind name of Recusants to turn the edge of all the Penal Laws pretending to be made against Papists to cut off the Protestants And the Sacrament of the Paschal Lamb to be a Destruction to the Israelites and a Passover to the Egyptians those Penal Laws being pursued with the highest Rigour against the Protestants but came not near the Papists Dwellings or if they did they took more easie Pardons from the Exchequer than from the Pope So if the late Act concerning Oaths and Sacraments had been Restrained only to Papists Protestants had not suffered in so high a Degree as now they do But I pass from what is past to what is future to shew what Mischiefs the Papists themselves are to expect from a Papist Successor and what benefit from a Protestant 1. The first Mischiefs they will meet with in a Papist Successor is a most miserable one take what Covenant what Vow what Promise what Oath they can from him yea an Hundred Oaths his Conscience cannot be bound with any of them and the Catholicks themselves shall take as little hold of his Catholick Faith as the most of those whom they think or call Hereticks As for Example William the Conqueror was a Papist and is mentioned Dan. Hist 36. to get Assistance of the King of France who was then young in his Design for England William the Conqueror a Papist King forswore himself to Papist Subjects promised if he obtained the Kingdom to hold it
which were Five viz. 1. Don Antonio Son of Lewis second Son of Emanuel 2. Philip the Second King of Spain Grandchild to Emanuel by his eldest Daughter Isabella 3. Philibert Duke of Savoy Grandchild to Emanuel by his second Daughter Beatrix 4. Mary Dutchess of Rarma eldest Daughter of Edward youngest Son of Emanuel 5. Katherine Dutchess of Brigance youngest Daughter of Edward youngest Son of Emanuel Of the Exceptions Declinatory Don Antonio might have made to this Judicatory 1. That 't was no Convention of Estates Elected by the People 2. That the Judges were Elected by the King who became thereby Judge in his own Case for King Henry was only the third Son of Emanuel whereas Antonio's Father Lewis was second Son to Emanuel so he being Son of Henry's elder Brother Henry would be adjudged to restore the Kingdom to him if the Judges were equal and not of Henry's choosing 3. That the Pope and Bishops were inequal Judges they assuming the only Jurisdiction of Marriage and Succession according to the Papal Laws who take Bribes and Sell the Successions of the Kingdom and so become Judges in their own Causes as 't is well known in the Case of the Natural Son of Henry King of Castile who bought a Legitimation of the Pope and thereby excluded his Brother Peter born of a Canonical Marriage after Peter had been admitted to the Throne and acknowledged for King divers years 4. That Pope Julius the Third put forth a Decree against the Promotion of Bastards without the Assent of Don Antonio or the people of Portugal he ought not to be Judged by the Law of a Foreign Prelate who thereby makes himself a Judge in his own Case The Reasons pretended why King Henry 's Judges Adjudged Don Antonio Illegitimate 1. Because he was a Bastard in Reputation but what is this to the purpose what the vulgar think who are Educated and blinded in Popish Superstition and thereby neither understand what Legitimation or Illegitimation means Judges of Legitimation ought to be Wise men and not Fools 2. Because when Pope Julius the Third put forth a Decree against the Promotion of Bastards Don Antonio sued to be exempted and thereby owned his Bastardy and what is it to the purpose what a Foreign Pope who ought to have no Jurisdiction in Portugal Decrees there without the Assent of the People or what Antonio did terrified with the superstitious fear of his Excommunications 3. Because Lewis his Father declared him by his last Will and Testament his Bastard Son To which it may be said That it was Testamentum inofficiosum against the Law of God and against the Law of Nature and void and he himself was therein worse than an Infidel to Illegitimate him whom in the same Testament he acknowledges to be his Son 4. Because Lewis never acquainted any of his Friends with his Marriage nor told his Brother Henry in his Sickness To which it may be said Marriage or no Marriage is a Matter of Law and not of Fact and Lewis being a Papist understood not what it was but according to the Papist Laws which are contrary to the Law of God But 't is manifest he acquainted his Friends and Lewis himself with what was Marriage and what was not according to the Law of God viz. Carnal Knowledge of the Mother with whom he was not Prohibited to Marry by the Law of God and begetting Don Antonio of her besides Henry was no Competent witness in his own Case of what his Brother told him or not 5. Because the witness brought to prove the Marriage of his Mother with his Father Confessed they were suborned thereunto To which may be said These Witnesses prove themselves to be Witnesses Incompetent and are of no value for a suborned Witness will as well Swear false in his Recantation as in his first Testimony It being the common practice of wicked Persons to hire Knights of the Post to testifie at first the same which true Witnesses or other Lawful Probation have proved and after discover they were suborned to draw Suspition on the true Testimony Too much of the same wicked practices have been to dishonour the true Evidence hath been given against the late Horrid Popish Plotters The Reasons alleadged by the other Pretenders to the Crown of Portugal 1. Grandchild by a Daughter and great Grandchild by a Son Couzin German of the first Degree by a Daughter and of the Second by a Son The King of Spain by his Learned Lawyers alleadged against the Dukes of Parma and Brigance that he was Grandchild to Emanuel whereas the two Dukes were great Grand-children and he was Couzin German of the first Degree to Henry the present King in Possession whereas they were only Couzin Germans of the second Degree and so the next Degree of Consanguinity was to be preferred before a more remote Degree and this the Civilians pretended to be a strong Argument in their Law 2. That when John the Base Son of Pedro was Crowned King of Portugal it was to the Injury of the King of Castile the right being in him as having then Married Beatrix the Legitimate Daughter and Heir of Ferdinando King of Portugal Legitimate Son of Pedro and Bastard Brother to Ferdinando Father to Beatrix 3. Because Portugal was given away by a former King of Castile in Marriage with one of his Daughters contrary to the Law of the Land Son of the eldest Daughter of the Son and Son of the eldest Daughter of the Father The Duke of Parma pleaded by Farneso Bishop of Parma That being Son of the eldest Daughter of Edward fourth Son of Emanuel he ought to be preferred before the King of Spain being but Son of a Daughter of Emanuel and therefore he deriving from the Male Line ought to be preferred before him who derives only from the Female Alien and Native Born The Duke of Brigance pleaded his Cause himself and against Spain alleadged the same as Parma did and to Bar Parma who was descended from the eldest Daughter as himself was from the younger Pleaded that Parma was an Alien because an Italian and he a Natural-born Portuguese The Duke of Savoy pleaded his Cause by Charles Renero afterwards a Cardinal but he being descended from a younger Daughter of Emanuel as the King of Spain was from the eldest he was presently excluded as having no colour of Right Besides these Pretenders Queen Catherine of France would have put in her Claim as descended by her Mother from Alphonse but the Claim being groundless they denyed to receive it and so the dispute remained between the King of Spain and the two Dukes of Parma and Brigance But King Henry dying while the business was in hot debate and before he had decided the Controversie the King of Spain making himself Judge in his own Case King Philip Claimed his own Kingdoms from Natural Children but would not allow it in others seized on the Kingdom which he his Son and Grandson
Cohabitation 3. No lawful Impediment why the Parties should not Marry 4. Chastity and Children 5. Length of time and no Judicial Questioning and Sentence to the contrary while alive 7. Promise of Marriage 8. Acknowledgment by the Father of the Children either by word or writing or by giving them Aliment and Education as Children As to the First Fame and Reputation which are Voces opinio Vulgi are an usual Presumption of Marriage As to the Second The Cannon Law it self Jus Pontificium praesumit ex diuturna Cohabitatione filium esse Legitimum Craig Feud 270. Cohabitation for any time is so high a Presumption of Marriage as it Legitimates the Son And amongst the Old Romans one of their chief ways of Lawful Marriage without Ceremony of Priest or Temple was Vsus that is Cohabitation and Conjugal Society for the space of a year and this was reputed so considerable a time as it made a Marriage by Prescription As to the Third which is where there is no Lawful Impediment nor the Parties are prohibited by the Law of God to Marry this makes a presumption of Marriage because it was no Sin for them by the Law of God to Marry As to the Fourth cause of Presumption which is Chastity and Children where all the Circumstances concur of Lawful Marriage as Cohabitation no Lawful Impediment Chastity of the Lady Children and acknowledgment by the Father of the Children to be his these are not only the strongest presumptions which can be made of a Lawful Marriage but are of themselves as is fully proved in the following Discourse without any Ceremony a Marriage Lawful Holy and Indissoluble As to the Fifth cause of presumption which is no Judicial Questioning and Sentence against the Marriage in the space of Thirty years in which time all Witnesses may be Dead and Writings lost or burnt the same is so high as by the Laws of the Land and of all Nations no proof ought to be admitted to the contrary nor no questioning now to be permitted of the same because it is beyond the time of Limitation of Actions and the peace and security of all Families and Kingdoms must be destroyed should Witnesses be required Thirty years after of all such Marriages as have not been Judicially question'd and sentenced in all that time As to the Sixth cause of presumption which is the Death of either Party without being Judicially question'd or sentenced while alive This by the Law of God and of the Land is so high a presumption for the Parents and so necessary justice for the Children That no Probation ought to be admitted to the contrary nor ought or can the Legitimation of the Child be question'd after the Death of either Parent yea though the Marriage of the Parents were Unlawful as if a man Marry his own Sister which is a far more Unlawful Marriage than to Marry without a Papal or Episcopal Ceremony and have Issue by her if she die before a Judicial hearing and sentence pass'd against her her Children are Inheritable and their Legitimation can never be question'd for she that is Deceased cannot be Summon'd before any Humane Tribunal And if Sentence should be there pass'd against her she is condemn'd without Hearing and therefore that the Children ought to be Legitimate and Inheritable hath been resolved by the Parliament it self as may appear Bro. Deraignement 5. Bro. Bastardy 23.44 24 H. 8. 39 E. 3.32 And it is for the same reason very clear That if Queen Katherine the Wife of H. 8. had died before Judicial Sentence pass'd against her the Legitimation of his Daughter by her who was afterwards Queen Mary could never have been question'd and should the Legitimation of the Royal Lines of England Scotland and Ireland or any other Kingdom in the World be permitted to be question'd after the Death of one or both of the Parents It is impossible but all certainty and security of the Successions to them must be utterly destroyed As to the Seventh cause of presumption which is presumption of a Promise of Marriage to shew which all the foremention'd circumstances concur and though the Ecclesiasticks of Scotland keep the people under sufficient servility of their Ceremonies of Marriage yet even thereby the Laws of the Land doth promise of Marriage without any Proclamation of Banns or other Ceremony both Endow the Mother and Legitimate the Children as appears Craig Feud 269.270 As to the last Cause of Presumption which is Filiation not only the Civil Law but the Law of God in the Scripture Legitimates every Son and makes him Heir to the Father who begot him either of a Primogenial or Filial Portion except of Inheritance intail'd to a former Wife as was that of Abraham to Sarah and whether this Probation of Filiation is made by the Son or Father as in the Civil Law is said Filium alicujus se esse probans videtur probare se esse Legitimum § Et ib. ad Marg. de Adopt who proves himself a Son to any proves himself Legitimate And by the same Law such as are proved Children are Legitimated though there were no Ceremonies of Marriage Authen Collation 6. Novella 174. Tit. 3. quibus modis Natur. cap. primo Siquis 3530. And the Scripture is Positive in the point Rom. 8.17 If Children then Heirs Et Gal. 4.7 If a Son then an Heir 5. To return again to other Laws of the Land besides those of Presumptions It is not necessary to prove a Lawful Marriage by proving Ceremonies But all Marriage is declared Lawful whether with or without Ceremonies by the Doctrine of the Church of England and the Law of the Land which is not Prohibited by the Law of God as appears by the 32 Art of the 39 Articles Roger's Articles p. 185. 187 188. as shewn more at large in the Discourse following and likewise in the Statute 32 H. 8. cap. 38. of Precontracts wherein there is this Clause And that no Reservation or Prohibition God's Law except shall Trouble or Impeach any Marriage without the Levitical Degrees Whereby it is clear that this Marriage being without the Levitical Degrees and not Prohibited by the Law of God ought not by the express words of the Act of Parliament to be troubled or impeach'd by any Humane Law whatsoever Ecclesiastical or Temporal Which said Act of Parliament except as to matter of Pre-contracts stands unrepealed to this Day and of full force And the Reasons of the said Act are expressed in the Preamble of the same to be because the Usurped Power of the Bishop of Rome hath always intangled and troubled the meer Jurisdiction and Regal Power of this Realm of England and also unquieted much the Subjects of the same by his Usurped Power in them and by making that Unlawful which by God's Word is Lawful both in Marriages and other things 6. They whom no Law of the Land makes Illegitimate are Legitimate by the Law of the Land But no Law of the Land either
not only then High Treason to Compass the Death Exile or Disinheriting of the King 's Eldest Son but whatsoever else is High Treason against a King will be the same against him Objections chiefly by Buchanan against these Statutes and the Policy of them making Kingdoms Hereditary to the Eldest Sons Answered Object Who is best able to defend a Kingdom should have it Object 1. Salus Populi is above all Statutes and the Power of Kings and Parliaments themselves and above all Acts of Parliament Statutes therefore which Repeal the Ancient Fundamental Laws which were in Great Britain of Election by Parliament and in Ireland by the Custom of Tanistry of Succession of the Brother before the Son such Statutes ought themselves to be repealed and not to repeal those which are better and it being most necessary pro salute Populi that he who is best able to defend a Kingdom against Enemies Foreign and Native and hath learnt the same by Age and Experience should succeed which the Brother being more able and fit to do than the Son ought according to those Ancient and Necessary Customes to succeed before the Son which Custome as to Scotland is recited by Buchaman Mos majorum qui è propinquis Regum defunctorum non proximos sed maximè idoneos eligerent modo à Fergusio primo Scotorum Rege essent oriundi The Custom of Scotland was That the Parliament chose out of the Kindred of the King deceased not the next but the fittest so as they were such as were descendents from Fergusius the first King of the Scots and on this Custome Kenneth the Third who was the Brother of King Duffus was by Election of the Parliamem of Scotland preferred before Milcolumbus the Son of Duffus though a Youth of great hopes which Kenneth began his Reign Anno Dom. 970 and proved a most Valiant and Wife Prince and repell'd a Mighty Invasion of the Danes whom he overthrew in a Battel with a great Slaughter of them but the same Kenneth afterwards inflamed with Ambition Covetousness and Cruelty secretly poysoned Milcolumbus the then Prince of Scotland being the said Son of his Brother Duffus deccased and with great dissimulation counterseiting even Tears and great Grief for him Convened a Parliament at Scone whom partly by Terror and partly by Deceit he got to Abrogate the Law of Succession of Brothers before Sons which had made him King and been the Sanctuary of Publique Safety and Enacted a Law of Succession for his own private and not the Publique Interest clean contrary viz. That the Kingdom should be from that time Hereditary in this manner That his own Eldest Son should be Prince of Scotland That when any King dyed his Eldest Son should next succeed to the Crown and if the Eldest dyed living his Father the Nephew should succeed instead of his Son who dyed And other Constitutions as appears Buchanan rer Scotl. 190 191. Who saith further Kenneth making the Kingdome of Scotland Hereditary tormented in Conscience Ita Rex per scelus posteris uti putabat regno stabilito animum tamen suum confirmare non pot uit c. The King saith he having by so great a Wickedness established his Kingdom as he thought to his Posterity he could not Establish his Mind for although he courted all sorts of Men with the highest shew of Love and Courtesie and so managed the Affairs of the Kingdom that there was nothing wanting which shewed him not a good King Yet his Mind perpetually disquieted with the conscience of his wicked fact suffered him not to have any solid or sincere joy but the thoughts of his foul Crime rushing into his memory vexed him by Day and by Night most horrible Dreams disturbed his rest at length whether truly as some affirm or whether his troubled thoughts made him so fancy what oftentimes happens to Guilty persons a voice came from Heaven by which he seemed in his sleep to be warned Doest thou think the Murder of Milcolumbus an Innocent Person committed by thee most wickedly in Secret is hid from me or that I will any longer suffer it to pass without punishment For already there are Plots laid by Treason which thou shalt not escape to take away thy Life neither shalt thou as thou thinkest leave thy Kingdom Stable or Secure but full of Tumults and Tempests to thy Posterity With which fearful Dream the King being terrified Early in the Morning he flyes to the Bishops and Monks and declares to them the Confusion of his Mind and Anguish of his Conscience for his Crime but they gave him no true Remedy from the Doctrine of Christ for they had already degenerated from the Piety and Learning of the Ancient Professors But advised those many absurdities Long since invented by wicked Persons for their own gains and rashly believed of the Unlearned and Overcredulous That he should inrich with Gifts the Holy Places and Temples and should visit the Sepulchres of the Saints kiss their Reliques redeem his Sins by Masses and Alms and should have a greater Honour and Reverence for the Monks and Priests than he had formerly us'd to have Neither did he omit any of these Explations which he believed would help him But he was notwithstanding after by appointment of Fenella a Lady formerly Injured by him and an Ambuscada of Horse laid for him taken and killed as Buchanan p. 192. after the death of Kenneth and this Intayl of the Crown to his Issue by the Murder of his Brother's Son It appears Buchan rer Scotl. lib. 6. p. 192 193. That Constantinus the Son of Caten called Calvus Constantine Calvus procures the Law of Kenneth to be repealed began to dispute much against the Injustice of this Law to which they were circumvented by fear to assent and thus he begins Quid enim Stultius quam rem unam omnium maximam à prudentium censura Suffragiis ad Arbitrium fortunae revocare c. What saith he is more foolish than to take away a matter of the greatest concern from the Votes of Wise Men in Parliament and to cast it on the Wheel of Fortune and that these should bind themselves to be ruled by a Child who hath the chance to be born and who is ruled by some petty Woman and drive away most Valiant Men from assistance in the Government What if the Children of Kings should have any infirmity of Body or Mind whereby they are utterly disabled to perform necessary Acts of Empire what if Children should have possessed the Kingdom in such time when we fought with the Romans Britons Picts English and Danes not for the Kingdom but for Life or what can be said more Mad than what God threatens to the Contumacious that Children should reign over them as the highest Calamity we should enact as a Law on our selves and the greatest Threats of the Divine Prophets we should either contemn or run headlong into it of our own accord Neither is there any
truth in what the Flatterers of Kenneth boast that by this means the Govetousness and Slaughters of Kindred are avoided Neither are the Treacheries of Guardians less to be feared to the Children of Kings left in Minority than of their Kindred wherefore now the Tyrant being fallen who Ravished our Liberty let us valiantly resume the same and his Law Enacted by force and assented to by fear if it be a Law and not rather a selling us for Slaves let us abrogate and repeal the same and Restore again our Ancient Fundamental Laws which brought forth this Kingdom of nothing and from so small beginnings not only advanced to such an height as is inferiour to none of our Neighbours but when cast down hath again raised the same to its former Strength and let us imbrace the present opportunity while it offers it self which if once Elapsed we may in vain seek again The People are by this perswaded and the Twelfth day after the Funeral of Kenneth he is chosen King Anno Domini 994. And was after Slain in Battel in the Town of Vaumond in Louthian in the Second Year of his Reign And though Milcolumbus or Malcolm the second Son of Kenneth the Third who was so tormented in Conscience for Poysoning the first Son of his Brother Duffus to get an Act to Intayl the Grown to his own Posterity made no Conscience to kill Grinius another Son of the same Duffus in Battel Malcolm Son of Kenneth revives and confirms the Law making the Kingdom hereditary and having by the Success gotten the Power of the Sword into his hand in the Same manner as his Father Kenneth had by force Enacted again by force confirmed at the Same Scone by Parliament the Act of Intayl of the Crown to the Issue of Kenneth Buchanan 196. Yet doth Buchanan the same Historian p. 200 201 censure this Act of changing the Ancient Law of Election by Parliament of the Brother or any other person more fit than the Son to be Injust Imprudent and Infortunate Objections against the Reviver 1. Injust 1. Injustice Because he saith Italex enervat vires consilij publici sine quo nullus Legitimus dominatus potest consistere Such a Law enervates the Strength of Parliaments without which no Lawful Government can be for all Government is either by Conquest or Contract As to Conquest there is none demanded or acknowledged on Such a Title As to Contract there can be none without a Parliament who are the Representative of the People to contract for them 2. Imprudent â— Imprudence Because Propinquorum in eos qui Regno potiuntur insidias et Regnantium adversus eos quos et natura et lex voluit â—â—ique esse Charissimos suspitiones nesarias quas narrationis or do Exphrabit tot priorum Seciâ—â—orum clades cum illis collatae calamitatibus quae Alexandri tertij interitum sunt consecutae Leves prae ijs tolerabiles videri possunt The Treacheries of Kindred against those who enjoy the Kingdom and the wicked Suspitions of those who Reign against them who by the Bonds of Nature and Law they ought to esteem most dear as this discourse in order shall declare And the Slaughters of so many former Ages compared with the Calamities which hereby followed the death of Alexander the Third were light and tolerable Note Alexander the Third began his Reign Anno Domini 1649. he Married first Margaret Daughter to Henry the Third King of England by whom he had Alexander the Prince David and Margaret who married Hangonamus or as some call him Ericus Son to Magnus 4th King of Norway who bare him a Daughter commonly called the Maiden of Norway The Maiden of Norway had United England and Scotland if she had lived Skene And concerning this Lady of Norway saith Buchanan Lib. 8. p. 241. Edvardus Anglorum Rex gnarus suae sororis neptem Regis Norvegiae filiam unam Ex Alexandri posteris esse superstitem Eandemque Regni Scotorum Legitimam Heredem Legatos ad eam deposcendam filio suo in Scotiam misit c. Edward the First King of England knowing his Neice the Daughter of the King of Norway to be the only Remaining Issue of Alexander the Third and Lawful Heir to the Crown of Scotland he sent his Ambassadours into Scotland to ask her in Marriage for his Son They when they Argued much in the Publique Gonvention of the Publique Benefit which would ensue such Marriage they found the Minds of the Scots not Dis-inclined from that affinity for Edward was a man of great Courage and of great Power and Ambition of greater And the glory of his Valour in the Holy Warr while his Father was alive and in Subduing Wales after his death shone bright Neither could they ever Remember the Scotish and English name to have been nearer Conjoyned than under the Last Kings Neither could old Hostility be more Commodiously abolished then if there were an Union made of both Nations upon Honest and Equal Conditions The Marriage was therefore Readily Assented unto and Conditions added by Mutual assent of both That the Scots should so long use their own Laws and Magistrates till such Children should be born of the same as were able to Reign And if none should happen to be procreated or being born should dye before their Lawful age Then the Kingdom of Scotland should go to the next of the Blood-Royal Things being thus Agreed Michael or as others mention Daevid Wemes and Michael Scot two Knights of Fife of great Repute for their Prudence with their Country in those Times were sent Embassadors to Norway but they because Margaret for that was the Young Ladies Name dyed before their Arrival returned home sad and nothing done by whose immature death there arose such Controversie as vehemently shook England and almost destroyed the Name of the Scots For to go on with the History as he and other Writers Relate it not withstanding this new Act of Intayling the Crown Ten Competitors arose to the Crown of Scotland notwithstanding the Act of Reviver making the same hereditary there arose Ten Competitors for the Succession Erick King of Norway Florence Earl of Holland Robert Bruce Earl of Anandale John de Baliol Lord of Galloway John de Hastings Lord of Abergaveny John Cumyn Lord of Badenair Patrick de Dunbar Earl of March John de Vesey Nicholas de Hues William de Ross All or the most part of them alledging themselves descended from David Earl of Huntingdon Younger Brother to William King of Scots and Great Uncle to the late King Alexander But the Principal and most Potent Factions which contended were that of Balyol and Bruce On which saith Sir Richard Baker Hist 96. broke out the Mortal Dissention between the Two Nations which consumed more Christian Blood and continued longer And the Wars between the Factions of Baliol and Bruce then any Quarrel we read of ever did between any Two People in the
under Imprudent to seek to perpetuate Races against Nature Fate and Providence which are irresistible few above So in the Ancient Kingdom of the Egyptians there were above Twenty Dynastyes at the Period of every one of which the Race of that King who began to Rule the Dynastye Either Expired or was Extinguished or Destroyed and it is easie to see how many Races and Names of several Kings have in short time worn out and been changed to new both in England Scotland France Spain c. It is in vain therefore by human Laws to seek to resist the Decrees of God and perpetuate a Race which God hath appointed to Determine Seeing as Solomon saith Eccles 9.11 The Race is not to the swift nor the Battel to the strong neither yet Bread to the wise nor yet Riches to men of understanding nor yet Favour to men of skill And it is said Dan. 4. The Most High Ruleth in the Kingdom of men and giveth it to whomsoever he will Better therefore both to Princes and Subjects is the Counsel of Christ Matth. 6.33 Seek ye first the Kingdom of God and his Righteousness and all these things shall be added unto you Dan. 7.27 Whose Kingdom is an Everlasting Kingdom And as is said Psal 16.11 In his Presence is fulness of Joy at his Right Hand are Pleasures for evermore Answ 1 Answ 1. As to the first Objection That the Brother ought to be preferred before the Son and Liberty left according to ancient Custom to the Parliament to Elect him if he is Judged fittest for Succession And that the Brother is alwaies most fit and more for the Safety of the Kingdom he being alwaies of greater Age and Experience than the Son who may chance to be a Child and more need Tutors and Governours himself than to Govern others As to which part of the Reason of possibility of Minority in the Son I answer First That à Posse ad esse non valet Argumentum And with all due Honour had to the Age and Experience of others the Eldest Son is here no Infant or Minor But hath attained to a higher Maturity and Flower of Age and Strength than Alexander the Great who began at Twenty to Conquer the World and hath shewn already the Highest Proof of Valour in War and Affection to Religion and Justice in Peace Secondly admit it should happen the Eldest Son to be an Infant or Minor as the intention of this Statute is it may which make it notwithstanding his Infancy Treason to Practise against him And though an Eldest Son should be left at the Death of any King an Infant or Minor yet by the Mercy of God the Righteousness of the Title and a standing Parliament During the Minority The Infant and Kingdoms are as Safe as if he were of full Age And more Safe than in the hand of a Collateral Heir of full Age whose Guardianship is most dangerous to a Lineal Heir Answ 2 Answ 2. As to the Reason That it is more for the Fame of Vertue for the Father to have none of his name Than to have his name Lost amongst a Multitude of the same names derived from him to numerous Posterity I shall answer in the words of Buchanan in another place on another dispute p. 406. Quod si de honore unus Et non de omnium salute hic esset disputatio Ego quoque facile ac Lubens ad eorum sententiam accederem verum cum de eo Statuendum sit hodie quod omnium privatorum vitam Et fortunam quod totius Regni incolumitatem complectitur huic uni câ—gitationi omnes Singulorum rationes concedere oportet Answ 3 Answ 3. As to that Reason of the Objection That Periods of Royal Races and Successions to Kingdoms are natural in regard the subject matter is so frail as not to be Capable of Perpetuity and fatal in regard God hath appointed the same by an Immutable Decree and Providential in regard it is often likewise effected by a particular Providence and seeing the Laws by which God Governs the World God governs the World by the Lawes of Nature Fate and Providence are the Law of Nature the Law of Fate and the Law of Providence quae supra nos nihil ad nos they are irresistible and all Human Laws to cause or avoid their effects are in vain To which is answer'd and gladly acknowledg'd That God is pleased to Govern the World by all these Three Lawes First the Law of Nature which is his Decree of Subordination of Causes Secondly the Law of Fate which is his Decree of Co-ordination of Causes to such Ends as to his Wisedom seem best These two are the Greatest Imperial and Immutable Law of the World and against these it is not only folly and a Sin to make Common Laws or Acts of Parliament Not lawful to pray against the Law of Nature or Fate but even to pray Desine fata Deum flecti sperare precando Hope not from Prayers thou Thy Fate from God canst bow Thirdly The Law of Providence which is the Regulation of Accidents which are neither Decreed nor Immutable And this is the Law Paternal Prayers not only Lawful but necessary in matters reserved to Providence by which he Governs all his Creatures sensible of Good and Evil. And as to this Law of Providence human Laws Endeavours and Prayers are not only Lawful in such as are Capable to Pray but necessary to obtain the good and to avert the evil and both these are acknowledged by the Heathen Poets themselves Sed satis est orasse Jovem qui donat et aufert Det vitam Det opes aequum mî animum ipse parabo Hor. lib. 1. ad Lollium Epist Flectitur Iratus voce Rogante Deus Ovid. But if we will take our Limitations of Prayer from Christians they must have alwaies these two That they must be Lawful that is not contrary to any revealed Law or Will of God and likewise be alwaies with submission to his Secret Will The Law Moral a Fourth Law by which God governs the World I Answer therefore That though the Three Laws mentioned are great and wonderful Wages by which God governs the World in general and Successions to Kingdoms in particular yet they are not the only Lawes by which he doth it but there is a Fourth Law as great as any of the former which is the Law Moral the obligation of which is Reward and Punishment which not Improperly may be called a Law Magistratical for as God is the Supreme King and Father so is he likewise Supreme Magistrate of the World and beareth not the Sword in vain And this Law may only be Exercised and the Obligations thereof laid on the most Noble Subjects who are so in Three respects First In regard of their Knowledg as the Law Moral can only be Exercised over the Subjects Sensible and Intellectual What Subjects liable to the Law Moral and
Exercise of the same for the Publick safety 1 In regard the Entail being made to the Eldest Son by Act of Parliament the same declares that what is given by Act of Parliament may be taken by Act of Parliament and that every former Act inacted may by a latter Act be repealed according to the known Rule Vnumquodque dissolvitur eodem modo quo conflatum est Secondly according to the General Examples of Acts of Parliament amongst which nothing is more common than for later Acts to change the Entails of the Crown made by former Acts. Thirdly This Power of Parliaments is expresly declared by Act of Parl. 13 El. 1. still in force by which it is enacted that to affirm that the Laws and Statutes do not bind the Right of the Crown and the Descent Limitation Inheritance and Governance thereof is High Treason Fourthly All the Reason alledged of the Antient Custom of New Election of the Successor on every Descent is only lest the Eldest Son should happen to be an Infant or otherwise unfit for Government that the Parliament might choose the fittest which here is satisfied in the Eldest Son who is above all exception known to be the fittest who can be chosen Fifthly though this reserve of Power remain naturally in Parliaments to repeal and change former Acts concerning Succession by new Acts when there is just and necessary cause yet it is necessary likewise there should be a praevious Act to mark out the Heir in whose name the Parliament shall be called to declare the Succession or Guardianship if he happen to be an Infant And what if after a King happens to die there happen a Rebellion or Invasion which makes it impossible to assemble a Parliament will it not be a great safety to the People that a standing Act of Parliament hath before hand appointed the Successor to take care of the Kingdoms till he can call a Parliament to give their assistance therein There is nothing therefore can be justly excepted against these two Acts of Parliament of England and Scotland for ascertaining by Law the Eldest Son to be Heir to the Crown The excellency of the two said Acts of Parliament of England and Scotland which ascertain the Succession of the Crown to the Kings Eldest Son But it were a great unthankfulness to the Providence of God to undervalue such Laws whereby all Accidents are obviated Questions and Doubts resolved and Objections answered by so few words as two Lines in each and the Peace of Succession preserved in Great Britain for so many hundred years which in other Empires and Kingdoms cannot be effected without those horrid Murders of Younger Brothers by Elder or Elder Brothers by Younger of lineal Heirs by collateral or collateral Heirs by lineal of Sons by Fathers or of Fathers by Sons whereby Civil Wars Devastations and Ruines of Kingdoms have ensued and that the want of such Statutes or the Breach of them have been causes of these Evils and Enjoyment of them hath been the Cure will I hope appear in the Objections and Answers following Objections first against the not being of the Kings Eldest Son within these Statutes answered Object Obj. 1. That the Lady his Mother was not a Queen therefore the Kings Eldest Son is not within the Statute Answ Statute false translated in the word Queen Answ To this the answer is easie and clear that the word Madame sa Compaigne are falsly translated our Lady his Queen and ought to have been translated our Lady his Companion which is proved by the Reasons following 1. Because 't is manifest sa Compaigne signifies not the word Queen in specie but any Lady Companion in general 2. Because it is manifest the makers of this Act of Parliament intended not to restrain their several meaning onely to a Queen for they knew Royne was French for Queen as well as Roy for King and if they had intended so could have more certainly and easily said Compas le mort nostre Seignior le Roy sa Royne than Madame sa Compaigne 3. Because at the time of making this Statute the famous Black Prince being the Eldest Son to Edward III. was married to Joan Daughter to Edmund Earl of Kent and had Issue by her Richard of Bourdeaux after King of England and none doubts but it was the intention of the King Edward III. who passionately affected his Grandchild Richard that in case the Princes Wife should happen to die in his life time whereby she should not have been a Queen but that notwithstanding if the Black Prince had happened to have survived him which he did not and been King his Eldest Son Richard should have benefit of this Statute 4. It would have been made doubtful by the Bishops who usurped then the Papal Supremacy over Princes of giving or refusing to give them Coronation when they pleased whether the Kings Wife should be titled Queen if the Bishop refused her Coronation Ralph of Canterbury refuseth to Crown Adeliza Queen unless he should first discrown the King as Ralph Archbishop of Canterbury did to Adeliza the second Wife of H. I. unless the Kings would suffer him to pull off the Crown first from the Kings head and new Crown him in acknowledgment that the Supremacy of the Coronation Office belonged to Ralph the Archbishop Bak. Hist 43. Touching which Office of Coronation of Kings and Queens that it belongs to Parliaments and not to Bishops and that David himself was both crowned and anointed by his Parliament and not by the Priest is shewn lib. 2. cap. 1. p. 169 c. 5. The Law of Saxons and Scots that no Wife of a King should be called Queen Because the Title of Queen was then under Envy and doubtful whether not against the antient Law both of England and Scotland the same not appearing to have been repealed by any Act of Parliament Bak. Hist fol. 6. saith a Law was made by the West Saxons that no Wife of a King should be called a Queen fol. 8. that it was so rigorously observed that when Ethelwolph had married Judith the Beautiful Daughter of the Emperour Charles the Bald in honour of whom in his own Court he ever placed her in a Chair of State with all other Majestical Complements of a Queen contrary to the Law of the West Saxons made to avoid the great Expence of Treasure incident to great Titles and Ceremonies and against other inconveniences and so much displeased his Lords thereby that they were ready to have Deposed him but were prevented by his death not long after Buchanan Rev. Scot. 407. takes notice of this Law and says Saxones lege caverunt ne ulla deinceps Regis Vxor Regina vocaretur aut in sede honoris in publico Regi assideret And 406. mentions the like Law in Scotland Quas Reginas alii suo quisque sermone nos Regum uxores appellamus nec altioris fastigii nomen ullum in iis agnoscimus
which was to them a Just and Necessary Right though it had been so long delay'd and was a Restitutio Naturalium and no less yea rather a more necessary Right though it hath been longer delayed were an Act of Legitimation of the Children of all Protestant Parents born between June 14. 1641. and March 24. 1660 who at the time of their begetting were not prohibited by the Moral Law of God to Contract Marriage would be Restitutio Natalium Restitutio Natalium as necessary to the Relief of the Children of such as suffered for his Majesty in his Dominions as Restitutio Naturalium to such as were born beyond Sea And be a great Relief to the Children of such Parents as Suffered for his Majestie in his Dominions and are far more in number than such Children as happened to be born beyond Sea there having been so many whose Necessities Disabled them to transport themselves from the Danger at home yet could not avoid it by staying here but living in fear of the power of the Sword Dared neither to Marry by the Common Prayer-Book because prohibited nor by the Ordinances of Parliament because by such Publication of themselves they had been Exposed to have been seised on by their Enemies So it seems either such Act of Legitimation or the former Act of Confirmation of Marriages will be Just and Necessary for the Suffering-Party not yet Relieved 5. If Bishops acknowledg in deed what they alledge in words Not necessary for a King to be Marryed by a Priest or Common-Prayer Book Supremacy in Causes Ecclesiastical in the King then must they acknowledg Supremacy of Marriage to be in him because they alledg Marriage to be a Cause Ecclesiastical and they themselves De facto Exercise the supremacy of Ecclesiastical Jurisdiction in it and if they give him Supremacy of Jurisdiction of Marriage in general They much more give Supremacy of Jurisdiction of his own Marriage in particular for majus continet minus Et cui licet quod majus est non aequum est quod minus non Licere If therefore a King of England hath Supream Ecclesiastical Jurisdiction of his own Marriage and neither Pope nor Bishop can null or invalidate any Mariage of the King his Predecessors to Depose him from his Throne nor any Marriage of his own to Dis-inherit his Lineal Heir from the Succession Jus Coronae in the King relating to Marriage and Succession as shall be after further shewn is different from that of Subjects and as is by the Bishops themselves affirmed Canon 2. The same Supremacy belongs to the King which belonged to the godly Kings of the Jewes who could thereby marry themselves without Priest or Bishop The matter therefore must come to this Push If the Bishop acknowledg the King hath Supreme Ecclesiastical Jurisdiction of his own Marriage and no longer under a Guardian of the Spiritualities then must he acknowledg he may Exercise the Acts of such Supremacy for frustra est illa potentia quae nunquam reducitur in actum And if he will acknowledg the King to be Supreme Ordinary as all the Common Law-Books do then must he acknowledg he may Exercise all Acts of a Supreme Ordinary But if he will not acknowledg him to have Ecclesiastical Supremacy and to be Supreme Ordinary and to have the same Supremacy the godly Kings of the Jewes had of their own Marriages Then must the Bishop shew a sign of his Mission from God to Exercise Supremacy and to be Supreme Ordinary over Marriages of Kings which neither Pope nor Bishop nor Priest ever could or can do Now all the height of Ecclesiastical Supremacy of Marriage whereof human Power is Capable A. King may dispence with Malum Probibitum in his own Marriage but not with Malum in S◠is to Dispence with Malum Prohibitum but not with Malum in se Malum Prohibitum is that which is Prohibited only by some positive Law of Man Malum in se is that which is Prohibited by the Moral Law of God As Prohibitions of Marriage without Banns Licence Ceremony Common Prayer-Book Priest or Temple these make only Mala Prohibita Because Prohibited only by the Positive Laws of Men and not by the Moral Law of God and Vnumquodque Dissolvitu◠eodem modo quo conflatum est All Lawes made of Marriage by men may be again dispenced changed repealed and abrogated by men who have the Supremacy of Marriage But Adultery Fornication Desertion of Virgins after Deslouring Divorce of a Wife without cause Abdication of a Natural Child without Crime charging a Child on a wrong Father charging adulterous or false Children on the Husband of a Woman Married by a Priest in a Temple c. These are Mala in se Because prohibited by the Moral Law of God which is Eternal and Immutable and cannot therefore be dispenced with or confirmed but all Lawes Customs Canons and Acts of Parliament Dispencing or Confirming any of these are void A King therefore who hath Supremacy Ecclesiastical may Dispence with all Mala prohibita if there were any in his own Marriage He may Self-Marry himself A King being Supreme Ordinary may Marry himself without Ceremonies by the Law of the Land as the Kings of Israel and Judah did without a Priest Banns Lycence Book of Cannons Common Prayer-Book Temple or any Ceremony And being Supreme Ordinary as the Kings of Israel and Judah were needs not the Bishops Certificate but may Certifie his own Marriage according to the Moral Law of God And this is clear and unanswerable by any who doth not deny the Supremacy Ecclesiastical 6. As Supremacy in the Person of the King inables him to Dispence with and Confirm his own Marriage in manner before said So à fortiore the Supremacy of this Statute made by the Supreme Legislative Power both of the King and Parliament united can clear the Marriage therein intended from all the Mala Prohibita laid on it for no Mala Prohibita could be laid on it but by some former Common-Law Custom Canon or Statute-Law But this Statute hath Supremacy of all those for Leges Posteriores Priores contrarias abrogant Latter Laws abrogate all former which are contrary So all contrary Laws which were before of Marriage Filiation Heirship Succession and Certificates of Bishops contrary to the intention of this Statute for the Safety of the Lady his Companion and their Eldest Son and Heir are by the same Intention abolished 7. As this Statute had Power to Enact what it Intended So is it manifest This Statute intended not that Marrlage or Filiation should be tryed by Certificate of the Bishop that it never intended to restrain the Companion Royal to be one Married by the Mass-Book or Book of Canons or their Eldest Son and Heir to be only one so made by the Certificate of a Bishop for Edward the Third who was the Author of this Statute was one of the most Wise Valiant Kings at that time
it is not in his Power to make her a Mother for the conception and birth of a Child is a Miracle which none but God can do and of this the Scripture is full Birth of a Child the Act of God and not of Man Psa 127.3 Children are an Heritage of the Lord and the fruit of the womb is his reward Psa 139.14 I am fearfully and wonderfully made which is the same with Miraculously made and ver 15. My substance was not hid from thee when I was made in secret and ver 16. Thine eyes did see my Substance yet being unperfect and in thy book all my members were written And when all this is done he saith further Psa 22.9 Thou art he that took me out of the womb And we find Jacob was of the same mind for when Rachel Gen. 30.1 said unto Jacob Give me Children or else I die ver 2. Jacob's anger was kindled against Rachel and he said Am I in God's stead who hath withheld from thee the fruit of the womb whereby there was something else necessary to Rachel's Matrimony than a fruitless Marriage and that Jacob though he Contracted to marry Rachel Contracted not to make her a Mother And till she conceived a Child there was a Marriage but no Matrimony The Objection was She was not Married according to the Law of God therefore the Eldest Son is not within the Statutes Statute requires neither a King de Jure nor a Lady Companion de Jure but only de Facto Ans 2 It were enough still to deny the Sequel 1 Because the Letter of the Statute requires not a Lady Married or lawfully Married or Married according to the Law of God but only a Lady Companion 2 Because it requires not a King De Jure as appears Coke 3 part fol. 7. nor a Lady Companion De Jure nor a Son De Jure But only a King De Facto and a Lady Companion De Facto and a Son De Facto For though the Statute neither doubted King Edward to be a King De Jure or in English a Lawful King as well as De Facto nor his Lady Philippa being one of the most virtuous Ladies in the world to be his Lawful Lady Companion yet should the Statute have said To compass the Death of our Lawful Sovereign Lord the King or of the Lady his Lawful Companion it would have left Succession more doubtful than before For there never was a Law of the Land The word Lawful Incertain and Litigious or Law of God or Contract so clear but Lawyers Ecclesiastical or Common for Money have raised Questions and Doubts in where the word Lawful or any word aequipollent or to that Effect is express'd For first when the word is not expressed there can no Law be Implied or Intended to Judge Lawfulness by but the Moral Law of God But when it is express'd as in the words Lawful Marriage or Lawfully begotten they will expound them by Laws Papal and Episcopal which are not the Laws of the Land and by Laws making Mala prohibita and not Mala in se which are not the Laws of God whereas where it is not express'd it can only be Expounded by the Moral Law of God which is above all Humane Laws and Statutes Secondly A Lawful Successor may be of an unlawful Marriage Because an Act of Parliament may make the Issue of a Marriage though unlawful and contrary to the Law of God Heir to a Kingdom As the Marriage of David to Vriah's Wife accomplished by Adultery with her and the Murder of her Husband yet was Solomon Lawfully made Heir to succeed David So Edward the Sixth succeeded to Henry 8th yet was his Mother Married while Anne of Cleve his former Wife was alive And that the unlawful Marriages of Parents ought not Illegitimate or be an Impediment to the Succession of Children is fully already proved Lib. 1. p. 80. And to the same end the present Statute Enacts no more in general for the safety of the eldest Sons of all Kings than the Famous Queen Elizabeth 13 Eliz. 1. doth for her own Heirs in particular by which Statute it is Enacted to be High Treason To affirm that any ought to be Heir and Successor to the Queen The Crown entailed to the Natural and not Lawful Issue of the Body of Queen Elizabeth except the same be the natural Issue of Her Body So the old Lesson of the Lawyers of the words Lawfully begotten is left out yet no question that Pious Queen intended more Lawful Heirs than they with their Indentures and the Priests with their Banns or Benedictions used to make 4 Because though Successions to private Patrimonies may be held in suspence by Disputes of lawful and unlawful yet ought not Successions to Kingdoms so to be which many times not only the least Delay but even the neglect of clearing all Doubts and declaring the Successor before-hand destroys or involves in most bloody Civil Wars to be after destroyed 5 Because as is before touched concerning the word Queen no Penal Statute ought or can be Extended by Equity nor any thing be made within an Act of Treason but what is within the Letter of the same But such Marriages or other Matters which are by any other Statute made High Treason ought to be Expounded to be within that Statute within the Letter of which is so named or made And not within the Intention of this Statute wherein it is not so made As by the said 13 Eliz. 1. It is made High Treason to affirm That the Laws and Statutes do not bind the Succession of the Crown that is Treason within the 13 Eliz. 1. But not within the 25 E. 3. for all which Reasons though as 't is at first said It were sufficient to deny the Sequel and say no more yet that Malice it self may not have any pretence to Cavil I hope by God's assistance Briefly Cleerly and Unanswerably when the next Objection is answered to prove she was both De Facto and De Jure Married according to the Law of God Object 5 No Wife no uxor Obj. 5. The fifth Objection is That the Lady Mother was no Wife according to the Law of God in Scripture The Reasons of this Objection are 1 Because the Scripture calls a Woman taken without Ceremonies only a Concubine or half-Wife 2 Because No Concubine or half-Wife or uxor in Scripture The word Uxor signifies only a Woman made a Wife by the Ceremony of Vnction of the Husbands Door-Posts or some other Ceremony Ans 1. Though it were sufficient to shew that there 's no such word as Wife Concubine or half-wife in the Statute and what is not in the Letter of a Penal Law cannot be supplied in the Intention nor extended by Equity and though it were sufficient to deny the Sequel yet to display the more the falsity of the Allegations I shall shew there are no such words in Scripture
Right repeal it For Liberty and Propriety cannot consist with the Certificates of Bishops Marriage and Filiation not to be submitted to any Judges or Arbitrators except the Parties themselves or God 8. Certificates of Marriage and Filiation usurp the Power of Judgment of such Matters as cannot be submitted though the Parties assented to any Arbitrators or Judges but God himself or the Parties And this is very Judiciously delivered by West Symbol Tit. Compromise Arbitrement fo 165.6 That no causes Matrimonial are arbitrable lest men should separate those whom God hath joyn'd together If this is true as none but stupidity it self can be but sensible that the Laws of God cannot be submitted to the Arbitrement of Men what then becomes of all Episcopal Certificates of Marriage and Filiation unless they intend to fight against God himself Bishop who certifies ignorant both of Fact and Law 9. The Judge who makes the Certificate is totally Ignorant both of the Fact and Law which see already proved Lib. 2. p. 180. Herodotus tells of a Place in Lybia where the Children of Women who were common drew Lots before a Publick Assembly but whether the Assembly were Ecclesiastical it doth not appear of such whom their Mothers nominated and whom the Lot fell on what wise Children were these They knew them to be their own Fathers as infallibly no question as if they had try'd by the Witchcraft of a Seive and a pair of Shears and equally with a Bishop's Certificate only on the first they paid no Fees The blind Goddess being always found so just she will take none 10. The Case is false â—â—ated as the state of the Question which is made is Whether A fuit Legitimo Matrimonio copulata when the intent is by the Bishops Certificate to Null the Marriage whereas this Question as to Nulling the Marriage is impertinent for every Prohibited Marriage is not Null or Nullable but may be notwithstanding 't is Prohibitum be Indissolubile 11. 'T is stated Illegitimum Matrimonium in General Illegitimum Prohibitum illegitimum in se and doth not say whether Illegitimum Prohibitum or Illagitimum in se each of which will fall under clean different Considerations one from another And that to teach that any Illegitimum Prohibitum in Marriage is unlawful which is not Illegitimum in se is the Doctrine of Devils as is already proved Lib. 1. p. 52. The state of the Question ought to be whether Son or no Son which is Matter of Fact and not whether Legitimate or not Legitimate which is Matter in Law 12. The true state as to Filiation being to be the question Whether Son or no Son 't is false stated and false named Whether Bastard or whether Legitimate or not Legitimate where it hath been proved at large Lib. 1.79 That there 's no such word or thing as Legitimate or Illegitimate amongst the ancient Lawyers or in Rerum naturâ till Popery And Lib. 2. p. 146. and 156. That there was no such word or thing as Bastard in the whole Scripture or amongst the ancient Lawyers or Divines until the Popes and Bishops falsly Translated the Scriptures As to the word Mamzer which signifies no more than Alienigena and Nothus which signifies no more than Fictus into the forementioned Scurrilous word of their own unclean Invention Certificate of the Bishop Nonsense Certificate of the Bishop Nulls all Marriage Prohibited contrary to the Law of England and Scotland 13. Their Certificate as to Marriage Per verba de Praesenti is Nonsence which see already proved Lib. 1. p. 84. 14. The Certificate distinguisheth not between Marriage Prohibited and Null but Nulls every Marriage Prohibited and barbarously Illegitimates every Child born of the same which is already proved Lib. 1. p. 110. to be contrary to the Law of God and the Law of England and may likewise appear to be contrary to the Law of Scotland by an Act of Parliament there made Sess 2. Par. 2. Car. 1. Act. 22. against Clandestine Marriage which Act Prohibits and punisheth those who are Married without Banns or by Josuits or Popish Priests and layes Fines or every Nobleman so offending of Five Thousand Pounds and on every Gentleman or Burgess of one Thousand Marks but neither English nor Scotch make such Prohibited Marriages void nor Nulls them nor Illegitimates their Children neither can any Humane Law Null that Marriage which the Moral Law of God makes valid nor separate those whom the same Law Prohibits not to Marry though the Law of Man doth when God hath joyned them by Procreation and Birth of a Child Propriety in Parents and Children destroyed by Bishops Certificates 15. The Episcopal Certificate destroys all Propriety the Father hath in his Children and the Children have in their Father For by the Law of God and Nature there 's no way of acquiring Propriety in Children but by begetting of them This is Plain in the Scripture in all the Genealogies there mentioned And in the Fact of Adultery of David with Vriah's Wife where the Child who was begotten in Adultery is plainly made by the Scripture the Child of David though the Now Episcopal Certificate would make it the Child of Vriah And worthily may such be said to be ignorant of all Laws of acquiring Propriety in Children who pretend because the Propriety of another man's Lambs and Kids may by Contract of his own Wife be made his therefore the Propriety of another man's Children may likewise by her Contract be made his and because Quicquid plantatur seritur vel inaedificatur omne solo cedit And Judge Rikhill as before-mentioned will not only have the like accession of another man's Bull to his Cow to make the Calf to be his but likewise to be his Cow and himself to be not only the Owner but the Father of such Calf The Ignorance of all Law in Certificates therefore blindly subverts the Fundamental of all Acquisition of Propriety by the Father in begetting No wonder if they destroy the Propriety of the Children in the Father though begotten by him and make them Nullius filii and again forces a Child on him who is not the Father to be his Heir whether he will or no and robs him of his Inheritance Neque enim aequum non consentienti haeredem alium dare Craig 267. Certificates of Bishops deprive Infants of Aliment and destroy them 16. The Certificate of the Bishop exposeth Infants to be destroyed and deprives them of all Aliment from the Father who begot them For by making the Father who begot them to have no Propriety in them nor they in him and the Children to be Nullius filii all Obligation is taken off from the Father and he 's made worse than an Infidel not to provide for his own Children either by Aliment while alive or Succession after his death The true Children are disinherited by the Adulterous on Certificates 17. The Certificate starves and
him Children both the beloved and the hated Yea it may often fall out That the Children of the first Woman may be first born and elder than the Children of the second Woman yet if the first and the Lawful man hath an eldest Daughter and the second and unlawful Woman hath an eldest Son The Son of the second unlawful and hated Woman shall succeed before the Daughter of the first Lawful and beloved Woman à Fortiore shall the eldest Son if born of the first Woman succeed Primogeniture to be in Marriage though without Ceremonies 3. Though there is no Ceremonial but only the Moral Marriage yet shall the eldest Son of the Moral Marriage inherit For it is not mentioned nor is it that the Woman who brought forth the First born should be first carried before a Priest in a Temple before the Woman who had a younger Son for that would be repugnant to the Law of Succession by Primogeniture and impossible to consist with it and the Israelites never used any such Ceremony or other But used the first Solemnity of Marriage when they used any except Sub Dio where they might see the Heavens in Memory of the Promise made to Abraham Gen. 15.5 That his Seed should be in Number as the Stars 4. 'T is to be observed That not an eldest Son by Fiction of an Husband who was within the Four Seas but the truly first begotten Son shall succeed for the words are he may not make the Son of the beloved first born but the Son of the hated which is indeed the first born so not the eldest Son by Fiction but the eldest Son indeed is here only both expressed and intended 5. That the Right of Primogeniture extends not only to Aliment for that all Children elder and younger Sons and Daughters have an equal right to But the right of Primogeniture extends in private Families amongst the Israelites to a double Portion and in Succession to Kingdoms to the whole For the words in Deut. are A double Portion of all that he hath and the words of Chro. are The Kingdom he gave to Jehoram because he was his first born 6. That the reason why a greater Portion is given to the eldest of what is Superalimentary than to the younger Children is That he is the Chief strength of the Family to defend the Father when Aged and the Children when left in Minority and the Inheritance it self when Invaded by Pretenders The words therefore are for he is the beginning of his strength the Right of the first born is his 7. That the Bishop ought not be witness of the Filiation or Primogeniture of the Son Feminine Popes if any and not Male ought to make Certificates of Primogeniture But the Matter being in the Israelites Countrey the same ought to be testified by two or three witnesses as Deut. 19.15 and more modestly by Faeminine witnesses than Per Papas mares as likewise appears by the Example Gen. 38.27 And it came to pass in the time of her Travail that behold Twins were in her womb And it came to pass when she Travailed that the one put out his hand and the Midwife took and bound upon his hand a Skarlet Thread saying This came out first and it came to pass as he drew back his hand that behold his Brother came out and she said How hast thou broken forth This breach be upon thee therefore his name was called Pharez And afterward came out his Brother that had the Skarlet Thread upon his hand and his name was called Zarah 8. That the Bishop ought not to be Judge of the Filiation or Primogeniture but the Father himself for the words are He shall acknowledge the Son of the hated for the first born which is the Natural Father shall acknowledge or Cognosce him to be his first born 9. That in Countries under Arbitrary Power and the Regal Power not limited by Laws both the Royal Issue and Nobles lye commonly under great Danger of being cut off by new Successors unless they are of the true Religion and fear God 10. That such Successors are often set on to great Cruelties by Idolatrous Wives as appears in this Example of Jehoram who as is mentioned in the Text slew all his Brethren with the Sword and divers also of the Princes of Israel And he walked in the way of the Kings of Israel as did the house of Ahab for the Daughter of Ahab was his Wife and he did evil in the Sight of God 11. That in such Countries where Religion and Laws bear not sway the more Rich and Potent the younger Sons of Princes are made the more danger they incur of losing all 1 Because the Treasury of the Crown is thereby Exhausted and Impoverished as here Jehosophat gave his younger Sons great gifts of Silver and Gold and of Pretious things The great value of which after his Death did but accelerate the Resumption of them by him who succeeded in his Throne and shewed the Truth of what is said by Solomon Eccles 5.18 There is a sore evil which I have seen under the Sun namely Riches kept for the owners thereof to their hurt 2 Because great Military Power is commonly joyn'd with Treasure as here appears Excess of Treasure and fenced Cities left to younger Sons of Princes commonly destroys them Together with the same he gave them fenced Cities both which many times make the Supreme fearful of such Power not only too great to be subject but greater than his own whereas if they had been left what was Moderate below Envy and above Contempt as the younger Sons of the China Emperors are and thereby enjoy more secure and happy fates than the Sons of the Grand Seignior Persian Negus and Mogul ever attain they might probably have lived and though their Brother Jehoram was wicked never had his hands embrued in their Blood Of the General Custom of Nations of Succession to Kingdoms by Primogeniture and of the Mischief and Civil Wars which have followed by Disinheriting the eldest Son Having shewn the Right of Primogeniture in Successions to Kingdoms from the Law of Nature and Scripture the same likewise appears to be generally the Custom of all Nations That the same Custom was amongst the Aegyptians as we has the Israelites is inferred by Lyra from Exod. 12.29 And it came to pass that at Midnight the Lord smote all the first born of the Land of Aegypt from the first born of Pharoah that sate on his Throne unto the first born of the Captive that was in the Dungeon And that the same Custom continued in the times of the Ptolomies appears Justin 16. So was it amongst the Trojans and Hus succeeded to Troyas as Dares to Phrygius in Lib. De Excid Tro. The same Custom of Succession to Kingdoms by Primogeniture was amongst the Persians Syrians Macedonians Parthians Cretans Rhodians Albans Romans Sicilians Goths Franks Tartars Turks English Scots Hungarians Spaniards and French and the mischiefs
that have insued by disinheriting of Primogeniture either wholly or by Division of Succession into several Kingdoms have been Infinite Amongst the Persians Cyrus the younger Brother by the assistance of Parisatis the Queen Mother contending for Succession against Artaxerxes the eldest raised such Wars and drew in such Foreign Forces of Greeks as the same ceased not till himself was slain by the Army of Artaxerxes The Civil Wars between Hircamus the eldest and Aristobulus the younger Son could not be ceased till Pompey by the Roman Power restored the Kingdom to Hircanus the eldest Disinheriting the eldest Son causeth Patricides Matricides and Fratricides How many Patricides or Matricides or Fratricides this hath caused appears as to the first two by the Examples of Alphonsus the Tenth King of Castile of Gabriel the younger Son of the Marquess of Salusse who by assistance of his Mother cast his elder Brother into Prison pretending he was out of his Wits who breaking out of Prison recovered his Principality and having chased out his Brother Coupt up his Mother in the same Prison wherein she had before Coupt him The like appears in several Persians Turks and Africans And for Fratricides which it causeth Bodin Lib. 6. cap. 5.735 736. saith Foolishly therefore do those Parents who overcomed with the flattery of their younger Sons and disinheriting the elder of their Kingdom have incensed their Children most cruelly to Murder one another so as did the Father of Atreus and Thyestes who willing to prefer the younger before the elder as more sit to manage Affairs of State so silled and foyled his House with many Tragedies And not to seek farther from home we have seen all this Realm on sire with Civil Wars for that Lewis the Devout at the intreaty of his second Wife had preferred Charles the Bald before Lothayr his elder Brother wherefore Pope Pius the Second did wisely in Rejecting the Request of Charles the 7th the French King desirous to have preferred Charles his younger Son before Lewis the Eleventh his elder Brother howbeit that the King had Reason so to do considering that Lewis had without any just occasion twice taken Arms against him so to have taken from him the Crown and to have taken the Scepter out of his hand And as Bodin saith of France he need not look far from home so may we say of England we need not look far from home for the said Events of disinheriting Primogeniture For what caused all those cruel Wars between the House of York and Lancaster from Generation to Generation whereby the English lost both all their Conquests and Hereditary Possessions in France and so many Princes of the Blood and Nobles and Commons were slain but that the Line of a younger Brother contended to be preferred before the Line of an elder And have not as bad Effects happen'd when the Successions of Kingdoms have been joyn'd or divided to more Sons or Heirs than one Division of Kingdoms or part of them or of the Treasure from the eldest to younger Sons destructive to Kingdoms The Father of Jugurtha made him and his two Brothers Associates but he killed his two Brothers and took all himself Constantine divided the Empire to his three Sons they destroyed each other till one had all James King of Aragon appointed Peter his eldest Son to be King of Aragon and James his younger Son to be King of Majorca yet afterwards the elder Brother took the younger Prisoner and in Prison starved him So it befell also the Children of Botislaus the Second King of Polonia who having divided the Kingdom unto his four Sons and having left nothing unto his fifth kindled such a fire of Sedition as could not be after quench't without much Blood of his Subjects So William the Conqueror left the Dutchy of Normandy to Robert his eldest and England to William Rufus and his youngest Son Henry a Pension Robert after the Death of Rufus raising a War to recover his Right of Primogeniture in England from his younger Brother lost the Battel was taken Prisoner by Henry and deprived of his Sight cast into Prison and there died miserably It had been safe therefore for the Preservation of his House and Kingdom to have left the Dominions intirely to the eldest and to have left not one only but both his younger Sons Pensions A multitude of other Examples there are of the ill success where Primogeniture is deprived not only of the whole but of any considerable-part or member of the Inheritance either in Land or Treasure which appears in the forementioned example of the Treasure and fenced Cities given to the younger Sons of Jehosophat therefore destroyed by the eldest Primogeniture not to have the same Prerogative in Private Families as in Kingdoms 2 Chro. 21.2 3 4. Which is to be intended only of Succession to Kingdoms And as to private Families both Equity and Policy is clean contrary and that there ought not to be left above a Scripture double Portion to the eldest where there are more than one which is agreeable with the Examples of most Nations Certificates introduce forein Laws and destroy the Laws of the Land 21. The Certificate Introduces foreign Laws and destroys Magna Charta and the Petition of Right The Foreign Laws it introduces on the Subjects as to Marriage Filiation and Succession and Religion and Liberty and Propriety all thereon depending have been already mentioned are the Imperial and French and of the Council of Trent That by the Ceremony of a Priest in a Temple the Adulterous Children of the Wife shall disinherit the Natural Children of the Husband The Trent Law That all Marriages without that Ceremony shall be Null and void and the Children Illegitimate The French Foppery That Natural Children shall not be Natural Children Excommunication Penance Absolution Commutation-Money twice punishing for one Offence and many other Popish foreign Laws all which destroy Magna Charta and the Petition of Right and are inconsistent with the Protestant Religion Liberty and Propriety Praemunire incurred by Certificates 22. That the Certificate Episcopal Introducing such foreign Laws incurr a Praemunire is proved before in the Case of Cardinal Woolsey Lib. 1. cap. 5.37 38. High Treason incurred by Certificates 23. The Certificate if it imposes those Foreign Imperial Papal French or Trent Laws of Marriage or Filiation on the Succession of the Crown or Certifie the King's eldest Son not to be Heir contrary to this Statute of 25 E. 3. incurrs the Penalty of High Treason Certificates not to be traversed or diputed nor under Appeal 24. The Certificate though utterly false and unjust is neither Traversable nor admits Probation to the Contrary nor is under Appeal either of Fact or Law nor is he bound to give any Reason of it But Sie volo sic Jubeo stat pro Ratione voluntas Of which see more at large Lib. 2. p. 175 176 177 178 179. 25. The Certificate causeth
all the mischiefs which are before proved to be caused by Compulsion to Marry by the Ceremony of a Priest in a Temple Lib. 2. cap. 1. p. 192. Vsque ad 253. As to the Objections therefore 1 That the Lady Mother was not Married 2 That she was not a Wife according to the Law of God Though as before it had been sufficient for me to deny the Sequel That because the Lady Mother was not a Queen was not Married by the Common Prayer-Book was not Married or a Wife according to the Law of God therefore the eldest Son is not within the Statute in regard as before's shewn no Question can arise on the Statute whether the King or the Lady his Companion or the Marriage were Lawful seeing as before's shewn the Statute intends and makes it sufficient to be De facto And it is so dangerous to leave Successions to Kingdoms to Disputes of the Sword whether Lawful or Unlawful And sufficient is already said to answer all Objections relating to the Lady Mother yet Ex abundanti Cautelâ against all shadow as well as substance of Objections I shall likewise shew That she was not only De Facto but De Jure Married and a Wife according to the Law of God But preparatory to the same I shall first shew What is Marriage and Matrimony De Facto according to the Law of God First therefore as to the Etymology of the word Marriage the same is derived à Marito Maritus à Mari in English a Male and signifies no more than the Natural Conjunction of the Male with the Female whether the same be Lawful or Unlawful in the Act of Generation The Effect of the same according to the words of Christ is Mat. 19.5 They twain shall be one flesh And that is effected in Unlawful as well as a Lawful Marriage as saith Paul 1 Cor. 6.16 Know ye not that he which is joyn'd with an Harlot is one Body for two saith he shall be one flesh And Lipsius Antiq. Lection Lib. 2. c. 9. to the same effect saith Nubendi verbum Antiquum Antiquitùs inter ea fuit quae custos ille hortorum libentiùs quà m Virgines Vestae usurparent Inde â—esto Nupta verba obscaena Petronio Nuptias facere 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And though some make the Derivation of the word Nubo more modest and to be from Nubes a cloud because the Brides face was clouded or shadowed with an yellow Veil or Attire yet this Ceremony of clouding or veiling and all other Ceremonies of Marriage were so appopriated by use to the Priests and Temples of the Garden God That not only the word Nubere but all other words signifying a Publick Ceremonial Marriage by a Priest in a Temple were esteem'd Obscene Of this see more Albericus Gentilis De Nuptiis Lib. 2. c. 3. Fermandius de Cordova in Didascaliâ Multiplici c. 39. Tertullianum ad Vxorem Lib. 1. c 5. Adversus Hermogenem c. 1. And so doth M. Selden De Jure Nat. Gent. Lib. 5. c. 4. p. 573. observe that amongst the Latines Nubere Nuptiae though sometimes used for the Ceremony of Marriage yet 't is Originally used for Carnal Knowledge it self as in Plautus Meretrix Laena M. At satiùs fuerat viro dare Nuptum potius L. Etiam Haec quidem Ecastor quotidiè viro nubit nupsitque hodie Nubet mox noctu Nunquam ego hanc viduam cubere scivi Nam si haec non nubit lugubri mihi fame familia perit M. Better her you did marry L. Marry true She did and Day and Night doth marry new For if she married not my Family With cruel hunger must soon starve and die This is unlawful Marriage and too many of such Marriages there are Matrimony as is already before shewn cannot be without a Mother and a Mother cannot be without a Child Matrimony therefore de Facto is Marriage whether lawful or unlawful consummate by the Birth of a Child What is Marriage and Matrimony De Jure according to the Law of God Having shewn what is not and what is Marriage and Matrimony De Facto I shall next that is Marriage and Matrimony De Jure according to the Law of God that is to say according to the Moral Law of God For Marriages fatal such of which the Poet speaks Fiunt Connubia fato are not the intended subject here But as a farther Preparatory before I come to prove this Thesis I must likewise lay down as Fundamentals to proceed on The Laws of Nations Gentiles and Jews and the Laws of God as declar'd in the Scriptures of the Old Testament and the New Of three kinds of Marriages amongst the Romans and three kinds amongst the Hebrews That Marriage by Carnal knowledge between Persons not Prohibited is Lawful without Ceremonies not only by the Law of God but by the Laws of all Nations except such as have faln under the slavery of Popes and Bishops and particularly by the Roman Law as appears by Godwyn's Antiquities Lib. 2. cap. 20. p 69. Who says amongst the Romans Marriage was made and a Woman became a Man's Lawful Wife three manner of ways 1. Vsu 2. Confarriatione 3. Coemptione The first by Use or Customary Copulation for the time of one year The second by Confarriation or eating a piece of Barly Cake between them before a Pontiff or chief Bishop The third by buying one another with a piece of Money The two later are Fictions of Marriage and Fopperies But as to the first which is a true and Lawful Marriage if between Persons not Prohibited it was held by the Roman Lawyers if a Woman lived with a Man at Bed and Board the space of a year she being not absent from him three Nights in the year this was so strong a Marriage that Propriety was got in such a Woman by Prescription if one year were a Prescription without a Priest or Temple and without Confarriation or Emption much more must many years yea the whole life a Woman till she died The Law of the Hebrews was stronger for with the Romans there needed many Copulations but amongst the Hebrews only one was a perfect Marriage as appears by Maimonides who saith The Hebrews had likewise three ways of Marriage or making a Woman their Lawful Wife No Priest necessary in any kind of Ebrew Marriage Coemptione Instrumentis Copulatione 1. Buying with a piece of Money 2. Drawing and signing Marriage Writings between them 3. Copulation Either of which singly and without any Ceremony was esteem'd amongst them between persons not Prohibited a Lawful and valid Marriage And Selden De jure Nat. Gent. Lib. 5. c. 4. p. 572. Translates out of the same Maimonides That Ante Legem Datam Mosaicam si foeminae in publico occurrisset vir tam haec quà m ille in Matrimonium consensisset eam is Domum deducebat remotis Arbitris cum eâ concumbebat atque ita ei siebat
Eldest Son the only Heir intended 4. 'T is manifest this Statute intended no kind of Heir but the eldest Son and Heir First Because the Natural affection of the Father directs his intention irresistably to his eldest Son Secondly Because his Wisdom and Self-Preservation leads to the eldest Son who as is before shewn is above all other Children the chiefest Defence of the Father Thirdly Because the Black Prince who was intended to have the benefit of this Statute was the eldest Son and Heir of Edward the Third the maker of this Statute Haeres Sanguinis non Haereditatis intended 5. 'T is manifest this Statute intended Haeres Sanguinis and not Haeres haereditatis Heir of Blood and not Heir of Goods and Haeres viventis and not Haeres Defunâ—ti Except before he is Born and not after And though John-an-Oaks who hath been so long the Parret of Littleton and Coke's Law will stomach it very much to be taught a new Lesson yet under his favour his Tutors in these matters of Marriage Filiation and Succession were very much Mistaken or Partial in this as other Matters and many of them in the two former Books have been already shewn And I shall as to the two particulars here mention'd further shew first therefore That Haeres Sanguinis is intended in this Statute and not Hares Haereditatis 1. Because Haeres Sanguinis is Haeres designans Haeres Haereditatis Haeres designatus to be known by the other 2. Because the words of the Statute are our Lord the King the Lady his Companion or their Eldest Son and Heir Now the Heir of the Inheritance of a Kingdom cannot be intended Because he derives his Title to the same only from the King and not from the Lady Companion unless a Queen Regnant therefore he cannot be the Heir of both of them as he is Haeres Hereditatis but as he is Haeres Sanguinis he is Heir of the Blood of both of them which is the only Heir intended by this Statute Secondly seeing the Heir of Blood is in the Express words of the Statute And no words at all of the Heir of the Inheritance therefore the Heir of Inheritance ought not to be put in the intention otherwise than as Haeres designatus marked to be known by the first knowing who is Haeres Sanguinis because then a Penal Statute would be extended by Equity And as to the other Particular It is manifest That Haeres viventis is intended in this Statute and not Haeres defuncti except before he is born and not after First because the eldest Son who is Haeres Sanguinis most times happens to be born in the life-time of his Father and not to be a Rosthume and ad ea quae frequentius accidunt Jura adaptantur Therefore Posthumes which do rarely happen to be eldest Sons shall not be only intended to be within the Statute and the eldest Son on whom the Royal Blood descended en ventre sa mere And he was Heir to the same before he was born be therefore excluded because he is Haeres viventis to the same after he is born and his Father died not before his Birth Secondly The words of the Statute Restrain not the Heir to be Haeres defuncti before he is born or after he is born therefore to restrain by the intention of either is to extend a Penal Statute by Equity which ought not to be done Thirdly my Lord Coke himself 3 part fol. 9. in his Exposition on this Statute says That Heir is here taken for Heir apparent for he cannot be Heir in the life of the Father Haeres viventis intended Haeres Sanguinis and not Haeres Haereditatis It is a clear mistake for first an Heir apparent can only be of the King but the Statute makes him Heir both to King and Lady and the catch which they have got of Haeres non est viventis was never intended to be any other than Haeres Haereditatis which kind of Heir is before unanswerably Proved not to be intended within this Statute And if it had the Statute had served to little purpose to ascertain the Heir of the Crown so many sorts of Laws and Customs pretending to be the Rule of Judgment of Haeres Haereditatis but the eldest Son who is Haeres Sanguinis as is already shewn can be but one in the Three Kingdoms and that the King 's eldest Son who is Haeres Sanguinis the Chief Heir of his Blood by the Law of Nature and not him who is made Haeres Haereditatis by Papal and Episcopal Laws When Theseus had occasioned the Death of his Vertuous Valiant and eldest Son Hippolitus by the false Calumnies of Phaedra his Stepmother he crys out O nimium Potens Quanto Parentes Sanguinis vinclo tenes Natura quam te colimus inviti quoque Occidere volui noxium amissum fleo Seneca in Hippol. I cannot oh too potent Nature shun The Bonds of blood 'twixt Father and a Son His blood his blood I in my anger shed For whom I now shed Tears when he is dead And did not David fall into a greater Passion of Love for Absolon though the most Unnatural Ingrateful and Traiterous Son that ever was 2 Sam. 18.32 And the King said unto Cushi Is the young man Absolon safe and Cushi answered The enemies of my Lord the King and all that Rise against thee to do the hurt be as that young man is And the King was much moved and went up to the Chamber over the Gate and wept and as he wept thus he said Oh my Son Absolon would God I had died for thee oh Absolon my Son my Son But what would David have done if Absolon had been a Loyal and Obedient Son Oh! where he now only wished he had died once he would then have cryed out and wished he had died twice for him 7. All Heirs are either Lineal or Collateral unless therefore one of these Kinds are intended the Statute can intend none at all Collateral Heirs of the Crown not within this Statute now that Collateral Heirs are not intended is expresly delivered by Coke 3 Part. fol. 9. where he saith if the Heir apparent to the Crown be a Collateral Heir apparent he is not within this Statute as he saith Roger Mortimer Earl of March was Anno Dom. 1487. 11. R. Proclaimed Heir apparent Anno 39. H. 6. Richard Duke of York was likewise Proclaimed Heir apparent so was John de la Poole Earl of Lincoln by R. 3. and Henry Marquess of Exceter by King Henry the Eight but none of these or of the like are within this Statute if only Lineal Heirs are within the Statute there can be none but the eldest Son can be Heir intended the eldest being expresly named Heir and none besides named at all That to compass the Exile or Disinheriting of the King 's eldest Son is High Treason To Exile or Disinherit the King 's eldest Son High Treason
First Because the Exiling or Disinheriting the King's eldest Son indangers the King himself Secondly Because to compass the Exile compasseth the Death of the eldest Son by depriving him of the King's Protection and exposing him to Poison or Assassination of his Enemies and to compass to Disinherit him is a manifest design to destroy him without which his Inheritance cannot be taken from him as Matth. 21.38 They said amongst themselves this is the Heir come let us kill him and let us seize on his inheritance And they caught him and cast him out of the Vinyard and slew him Object 8 Obj. 8. The Son of a King born after he is King is to be prefer'd in Succession before the Son of a King born while he is Prince And of this there are many Examples as Henry the First being the youngest Son of William the Conqueror Born when a Prince and born when a King standing in Competition for the Crown of England against Robert Duke of Normandy his elder Brother made this one of his Objections That Robert was born when his Father was but a Duke but Henry was born when his Father was a King and therefore obtained the Kingdom against Robert his eldest Brother And it is recited by Grot. de Jur. Bel. Pac. p. 171. That the like passed in Persia between Cyrus and Arsica in Judea between Antipater the Son of Herod the Great and his Brother in Hungary when Geissa obtained the Kingdom in Germany between Otto the First and Henry though not without Arms and likewise the same Question was between Xerxes and his Brother Atabarzanes and between Artaxerxes Mnemon and Cyrus the Sons of Darius and Parisatis Artaxerxes being the elder but born during the Private fortune of Darius and the like happened between Bajazet and Zemez contending for the Turkish Empire and many others Answ These were put to the Tryal of Battel and for the greatest part the eldest Son had the Success but if it had been otherwise the Event of War is no Rule of Justice and if it had been without War yet where there is a standing Act of Parliament Judicandum est Legibus non Examplis And this Act of Parliament was made to prevent the present and all other Accidents which might happen to disturb the Peace of Succession of the Kingdom and raise Civil Wars which it could not do without all other Sons and Heirs to the eldest Son and there being no other Son mentioned in the Letter of the Statute but the eldest and not a word of Distinction whether born before or after the Father's obtaining the Kingdom Vbi lex non distinguit ibi nec nos distinguere debemus for then the same mischiefs would insue beforementioned of extending a Statute of Treason by Equity which leaves Treason arbitrary to every Judge who will assume to declare it beyond the Letter and to insert as many kinds of Sons and Heirs as he pleased which would make the Law and all the Care and Wisdom of it in ascertaining the Son Heir to be of no Effect and leave the Kingdom in a dangerous Condition that every Prince Married in his Father's life-time and having then some Children and after his Father's Death others might occasion a Civil War who should succeed to the Crown when he died Object 9 Obj. 9. The next Objection That the King 's eldest Son is not yet Declared Prince of Wales or Prince of the Scots The Original of this Title used to be given to the eldest Sons of the Kings of England was from Henry the Third who gave his eldest Son Edward who was afterward King Edward the First on his Marriage to Elianor the Daughter of Spain amongst other Principalities in France England and Ireland likewise that of Wales Hinc natum ut deinceps unusquisque Rex qui secutus est filium majorem natu principem Walliae facere consuevit And in continuance of this Custom Anno 1610. Prince Henry the eldest Son of King James was solemnly created Prince of Wales by his Father As to the Title designing the Prince of Scotland to be next Successor or Heir apparent it seems to have been by their Investiture of Cumberland for saith Buchanan Rer. Scot. lib. 6. p. 175. That Constantine the Third in the Tenth year of his Reign Milcolumbo proximo Regis filio Cumbriam donavit qui honos velut Augurium Argumentum erat eum proxime regnaturum Ac deinceps in proximis aliquot Regibus id fuisse observaturum manifesta adversus veterem Comitiorum rationem fraude quae omnem Liberorum susfragiorum vim prope tollerit non minus quà m Cossâ—à Caesaribus Designatio Constantine the Third in the Tenth year of his Reign gave Cumberland to Malcoliâ— the Son of the last King which Honour was as it were the Inauguration or Sign of him who was next to succeed in the Kingdom and was after observed by some of the next Kings to that end to take away by Fraud the free Election by Parliament no less than did the Designations of the Consuls by the Caesars and after p. 189. he sath That Kenneth the Third being King by Election of the People to make the Kingdom Hereditary to his own Son Malcolm finding it an Impediment in his way that his Brother Duffus his Son Malcolm Cumbriae tum praefectus erat quam Regionem Scoti beneficio Regum Anglorum it a tenebant ut Cumbriae Praefectura velut omen Regni esset atque ita jam per aliquot aetates observatum erat was then Governor of Cumberland which Region the Scots held by Gift from the Kings of England to that intent that the Presidentship of Cumberland should be for a Sign who should be next Successor to the Kingdom and so for divers Ages the same hath accordingly been observed he to inherit his own Poisoned his Brother's Son and p. 190. he saith Milcolumbus regis filius in natura adhuc ad rerum administrationem aetate Cumbriae praefectus et princeps Scotorum est Declaratus quod nomen perinde est Scotis atque apud Gallos Delfinus apud priores Romanorum Imperatores Caesar apud posterio res Rex Romanorum quibus omnibus Successor superiori Magistratui dari intelligitur Malcolm the King's Son in an unripe Age for Publick Affairs is declared President of Cumberland and Prince of the Scots which Name is with the Scots Equipollent to the Daulphin amongst the French to Caesar amongst the Ancient Romans and amongst the Modern to the King of the Romans by all which Titles the Successor to the Superiour Magistracy is understood but notwithstanding for the most part this hath been the Custom yet it hath been likewise often omitted and Admit it had not yet there being no Law requiring it there is no pretence that such Omissions makes any incapacity in the Heir to succeed at Common Law or to be within this Statute for the Statute making no Distinction between the King 's eldest Son when
made Prince of Wales and when not Vbi Lex non distinguit ibi nec nos distinguere Debemus Besides the Kingdoms being now United a Title common to both were more convenient than several Titles The Roman Title Princeps Juventutis extended to the whole Empire Object 10 The Objection of Illegitimation answered I think the Objector hath now spit his Venom Of Illegitimation but let him take heed it doth not Poison himself for first I answer it is already proved That the Marriage of the Lady-Mother was Lawful Holy and Indissolvable according to both Precepts and Example of Scripture and that no Humane Power can Prohibit such Marriages which the Law of God hath not Prohibited Marriage a thing not indifferent not to be limited by the Laws of Men. and that Marriage is not a thing indifferent but necessary and Commanded by God and therefore what are made Actus Legitimi by God non recipiunt modum aut Conditionem from Men nor ought the Holy Ordinance of God be compelled to be prophaned by Papal Ceremonies and dare any then Illegitimate that Law of God by a Law Papal or an Act of Parliament by a Law Episcopal and vend such an Act as will hereafter be shewn to make it High Treason for any Subject to affirm the King 's eldest Son Illegitimate but before I proceed to that I shall first prove the following Thesis The eldest Son of a King of Great Britain Legitimate by his Birthright That not only by this Statute but by the Law of God the Law of Nations and the Jus Coronae of Great Britain Primogeniture in Succession hath been prefer'd and such Issue adjudged Legitimate Though procreated of unlawful Marriages and Persons Prohibited to Marry but was never question'd by any Law except that of Popes and Bishops in the Issue of Persons not Prohibited by the Law of God to Marry Concerning Legitimation by the Law of God and Nature there is more than enough already spoken Lib. 1. p. 79. to 83. and several other places already mentioned concerning the Laws declared in Scriptures this Right of Primogeniture and Legitimation was always observed amongst the Kings of Israel and Judah Primogeniture succeeded amongst the Patriarchs though no Marriage by a Priest in a Temple even in their most unlawful Marriages and without Ceremonies with strange Women of foreign Nations though expresly Prohibited to them by the Law of Moses as appears by Maimonides Godwyn's Jew Antiq. Selden and others but as to the same to be as brief as possible I shall only insist on one Example though not a Prince yet a Patriarch amongst them It is said Gen. 29.16 Laban had two Daughters the name of the Elder was Leah and the name of the younger was Rachel Leah was tender-eyed but Rachel was beautiful and well favoured And Jacob loved Rachel and said I will serve thee-seven years for Rachel thy younger daughter And Laban said It is better that I give her unto thee then that I should give her to another man abide with me And Jacob served seven years for Rachel and they seemed unto him but a few days for the Love he had unto her And Jacob said unto Laban Give me my Wife for my days are fulfilled that I may Go in unto her And Laban gathered together all the men of the place and made a feast and it came to pass in the evening that he took Leah his daughter and brought her in unto him and he went in unto her Et Vers 25. And it came to pass in the Morning behold it was Leah And he said to Laban What is this thou hast done unto me Did not I serve with thee for Rachel wherefore then hast thou beguiled me Et Ver. 32. And Leah conceived and bare a Son and she called his name Reuben Gen. 49.3 Jacob saith Reuben thou art my first born my might and the beginning of my strength the excellency of Dignity and the excellency of Power From whence may be observed That if it were possible for any Objections to be of weight against the Right of Primogeniture and Legitimation in any it might have been made against this of Reuben For First Here is no Intent nor Consent no Contract no Espousal of Marriage by Jacob with Leah 2. There is no Banns no Leadings to Church no Ceremony no Joyning by the Priest no Benediction by him of Jacob and Leah 3. What is worse than the want of all these Here is 1 a meer Cheat a Woman that is hated in the dark clapt into the Bridegroom's Bed instead of her that is beloved 2 Here is the true Bride Robbed of her seven years expected Enjoyment by a false 3 Here is the Marriage-Covenant most perfidiously broken 4 The Labourer is defrauded of his hire for seven years Labour 5 Here is Adultery and Incest committed by the eldest Sister with the contracted Husband of the younger Sister 6 The elder Sister her self knows and is accessary to all these Crimes yet hath the Impudence to Rest all Night Acting them in a stoln Bed and to out-face them in the Light of the Rising Sun for behold in the Morning it was Leah notwithstanding all which Reuben is not punished for the Crimes of Leah nor doth he lose thereby the Right of his Primogeniture but Jacob declares him as aforesaid Gen. 49.3 Reuben thou art my first born my might and the beginning of my strength the excellency of Dignity and the excellency of Power And though he likewise express for the great Crime of Reuben himself the forfeiture of his Birth-right and that excellency which thereby belonged unto him and saith Vers 4. Thou shalt not excel because thou wentest up to thy Father's Bed then defiled'st thou it And the same is likewise declared 1 Chron. cap. 5.1 Now the sons of Reuben the first-born of Israel for he was the first-born But forasmuch as he defiled his fathers bed his Birth-right was given unto the sons of Joseph the son of Israel Yet doth this prove the stronger that notwithstanding the unlawful Marriage and Crimes of Leah his Mother the Birth-right belonged unto him till he forfeited the Priviledge of it by so great a Crime as he himself Committed Legitimation impossible to be forfeited or to be taken from the Child or the Incidents to the same and notwithstanding he forfeited the Priviledge of his Birth-right yet he forfeited not his Legitimation but inherited an equal filial Portion with his younger Brethren for Legitimation is impossible to be forfeited taken away or destroyed unless it were possible to make the Son begot of such a Father not to have been begotten by him for if he was begot by him Filiation includes Legitimation and Aliment sufficient if the Child want it and the Father hath it in Possession and Succession ought to be given him though as to the Superalimentary Quantity of his Goods the Father hath Liberty to dispose them or alienate them from Legitimate and
great Slander Peril and Disherison of such Children which untrue slanderous report of Holy Matrimony doth not only redound to the high dishonour of Almighty God but also to the King's Majesties dishonour and the High Court of Parliament and the Learned Clergy of this Realm who have determined the same to be most lawful by the Law of God in their Convocation as well by the Common consent as by the Subscription of their Hands and that most of all is to be lamented through such uncomely Railings of Matrimony and slanderous Reproaches of the Clergy the Word of God is not heard with Reverence followed with Diligence the Godly proceeding of the King's Majesty not received with due Obedience c. Banns required to the Marriage of the Clergy Provided always That this Act nor any thing therein contained shall extend to give Liberty to any Person to Marry without Asking in the Church or without Ceremonies according to the Book of Common Prayer and Administration of the Sacraments nor shall make any such Matrimony already made or hereafter to be made good which are Prohibited by the Law of God for any other cause The Protestant Clergy by these Acts thought themselves as secure as they do now But Queen Mary immediatly on King Edward's Death repealed this Law and made all the Married Clergy their Wives and Children Rogues Whores and Bastards From whence may be observed 1. That a Marriage and Legitimation which is lawful by the Law of God may be wickedly Slandered by Papists and by Papal and Episcopal Laws to be unlawful 2. It hath been already shewn that the Marriages of the Lady Mothers of King Edward the Sixth and of Queen Elizabeth and of the King 's eldest Son and the Legitimation of Children were and are lawful by the Moral Law of God but the same have been Slandered and still are by the virulent Tongues of Papists 3. That these wicked Slanders of the Legitimation of the King 's eldest Son do produce not only the same evil Effects which the Statute declares to insue from the Slander of the Legitimation of the Sons of the Clergy but greater and more dangerous 4. That the final Cause why the Papists and their Laws Slander the Legitimation of the King 's eldest Son and of all the Sons of the Protestant Clergy is the same which is because they would seize on their Inheritance or Estate and divide the Spoil amongst the Papists 5. It is well known that the Inheritances and Estates of the Descendents of the Protestant Spirituallity and Clergy in which Body are included all Spiritual Persons Doctors of the Civil Law exercising Spiritual Jurisdiction Church-men Ministers all persons within Orders are great and numerous through the Three Kingdoms who will all Suffer if a relapse to Popery 6. That their Wives and their Descendents which have Married have been obnoxious ever since the Time of Reformation the first to Consiscation of their Dowers Jointures and Thirds The other to Illegitimation and thereon Confiscation of their Inheritances Lands and Goods The Law which forbid the Clergy to Marry was made by Pope Nicholas the First to wicked intents which have been before already shewn the Clergy and their Wives and Children are likewise left obnoxious to the same by the Proviso mentioned which requires Banns to make lawful the Marriage of the Clergy but they usually have none but are Married by Licences which makes them likewise obnoxious to the very Letter of the Act which if there should happen a Papist Successor he may take advantage thereof without a Repeal or Repeal the Act and so take advantage either way which he will Let not the Protestant Clergy therefore nor the Bishops be deceived or vainly flatter themselves that they can compound or lay the Obligation of an Oath or an Act of Parliament on a Papist Successor if any happen to be nor think he will lose so infinite heaps of Treasures as this point of the Marriage of the Clergy and the Illegitimation of their Descendents will by Confiscations of all the Jointures Dowers Thirds of all the Archbishops Bishops and inferiour Clergies Wives and of the Successions of their Posterities in the Three Kingdoms will bring into his Treasury Therefore certainly if a Papist Successor happen there will be no living for a Married Clergy-man in England it will be Heresie sufficient to Burn him if he is Married and a cause sufficient will be his Estate and for Provision his Wife must expect none unless like the Indian Wife she Burn with him in hope to find it in another World Queen Mary Illegitimated and Destroyed all the Wives and Children of the Protestant Clergy notwithstanding they were Legitimated by Act of Parliament They need look no further for an Example than of Queen Mary who was a Papist Successor to the Protestant Act of King Edward her Brother who though he confirmed the Marriages of the Clergy and the Legitimation of their Children by two Acts of Parliament left in their highest Vigour and Power and though she had solemnly promised the Protestants without whose help she had not probably come to the Throne that they should injoy Liberty of Conscience yet as soon as ever she obtained the Kingdom she repealed her Brothers two Acts and made Whores of the Wives and Bastards of the Children of all the Protestant Clergy Married Burnt them and Confiscated their Estates And that Pious Martyr Archbishop Cranmer who was Married was Cruelly Burnt amongst the rest 7. There is no way to preserve the Marriages and Legitimations of the Protestant Clergy their Wives and Children from the destruction of a Papist Successor but to have Protection from a Protestant Successor of the Crown and to cast off this Papal Doctrine of Ceremonial Marriage and to teach the truth of Marriage according to the Moral Law of God which is the true Jus Coronae as hath been already shewn and makes the eldest Son of a Protestant King and himself a Protestant to be of the same Interest with the Sons of a Protestant Clergy and to ingage him by God's help to be his Instrument to defend them and the Protestant Religion Liberty and Propriety to the Glory of God and Comfort of the People Can therefore any of the Protestant Clergy be so imprudent as in their Doctrine to destroy the Holy Just True Ancient Eternal and Immutable Moral Law of God of Marriage and Legitimation to bring in the Unclean Adulterous Spurious Illegitimate Injust Lying Upstart new-fangled Ceremonial Laws of Priapusses and Popes and not understand they thereby Slander their own Mothers and Wives to be Whores their Daughters to be Bastards themselves and all their Sons to be Sons of Whores and Bastards Can they be so inconsiderate as to imagine that any Slander they shall raise against the Marriages of the Lady Mothers of Queen Elizabeth King Edward or the King 's eldest Son or the Legitimations of Queen Elizabeth her self King Edward or
injoyed near Threescore years after Had Antonio been allowed equal Judges or the Law of God been the Rule of their Judgment or had he been allowed to have pleaded the Law of the Land and Custom of both Portugal or Spain for Natural Sons to succeed the Crown he needed not have looked for more Examples of Natural Children than those from whom King Philip himself derived his many Spanish Kingdoms and according to the Customs of Portugal Don Antonio a Natural Son Crowned King of Portugal Don Antonio was on the Death of Henry chosen and Crowned King of Portugal at Lisbon their chief City till Philip sent the Duke of Alva thither with a greater Army than the Portuguese had put Don Antonio to flight Overcome by Philip flyes to England whom the People had Elected King and within Seventeen Days subdued all Portugal Don Antonio thereon flyes into England where he is kindly received of Queen Elizabeth as descended of English Blood and of the House of Lancaster and having entertained him here divers years his Title of being right Heir to the Crown of Portugal is so far approved by the Queen and Council Queen Elizabeth approves his Title as right Heir to Portugal and the Protestant Doctrine That she gave leave to Sir John Norris and Sir Francis Drake to undertake an Expedition at their own private Charges requiring nothing of her but a few Ships of War who took along with them Don Antonio the Heir of the Kingdom of Portugal and of Souldiers Eleven Thousand and of Seamen about Fifteen Hundred And setting Sail from Plimouth the Fifth day of April they arrived at the Groyne of Galizia whereof with great Valour they took first the Lower Town and afterwards the Higher and after Sailing towards Portugal they met Robert Earl of Essex who without the Queens leave had put to Sea after two days they arrive at Penycha a Town of Portugal which they took and left the Castle to Don Antonio And from thence they march by Land towards Lisbon Threescore Miles off the Foot Companies led by Norris whom Drake promised to follow with the Fleet being come to the West Suburbs of Lisbon they found no body there but a few poor disarmed Portugals who cryed out God save King Antonio The day following the Spaniards made a Sally in which Skirmish Bret Caresly and Carre three stout Commanders were Slain yet did the Earl of Essex drive the Spaniards to the very Gates of the City And now having tarried here two Days and no likelihood of the Portugals revolting which Don Antonio had hoped but was not probable that the strict hand of the King of Spain then in full Possession on them should give them that Liberty sinding fresh Supplies to come into the Town their own Army Sickly Victuals and Powder failing and what was most of all Sir Francis Drake not bringing the great Ordnance as he promised They departed from the Suburbs of Lisbon towards Caseais a little Town at the Mouth of the River Tagus which Town Drake had taken this mean while who excused his not coming to Lisbon by reason of the Flats he must have passed and the Castle of St. Julian Fortified with Fifty Pieces of great Ordnance Near this Place they found Threescore Hulks of the Hans-Towns of Germany Laden with Corn and all manner of Munition which they took as good Prize towards their Charges in regard the Queen had forbidden them to carry Victual and Munition to the Spaniard From hence they sailed to Virgo a Forlorn Town by the Sea side and Pillaging all along that Quarter returned for England having lost in the Voyage Soldiers and Marriners about Six thousand yet not so much by the Enemy as eating strange Fruit and Distemper of the Climate on which I shall only further observe That Kingdoms are not so easily got again as they are lost and that the Disinheriting of the Natural Heir of the Crown of Portugal was the cause of the seizure and Conquest by the Spaniard of that Kingdom Foreign Princes when the Successor is uncertain will stir up so many antiquated Genealogies Antiquated Genealogies used to be raked up by Foreign Princes that every one may pretend a right to the Crown and it hath been already mentioned that there were no less than Five or Six to the Crown of Portugal no less than Ten Titles Foreign and Domestick in Scotland in the time of Basiel and Bruce and no less than Sixteen in England before the Death of Queen Elizabeth and how far Papist Foreign Princes will go when they have none nearer to draw Genealogies as high as the Man in the Moon and when they have no substance to raise the Ghosts of Titles again from their old Purgatories nor Kif nor Kin to the last Possessors appears by the next Example Hacket endeavours to raise a Papist Title to the Crown Richard Hacket was sent from the English Fugitives beyond Sea in the Reign of Queen Eliz. to perswade Ferdinando Stanly E. of Derby Son to Henry newly Deceased to assume the Title of the Kingdom of England by right of Descent from Mary Daughter to Henry the Seventh and threatning him unless he undertook the Enterprize and withal concealed him the Abettor he should shortly die in a most wretched manner But the Earl fearing a Trap was laid for him revealed it and Hacket was thereon Condemned and Executed for Treason but this Fellow's Threatnings proved not vain four Months after for then the Earl being in the Flower of his Age was miserably Tormented and Vomited Stuff of a dark rusty Colour being thought to be Poisoned or Bewitched There was found in his Chamber a little Image of Wax with Hairs of the Colour of his Hair which some thought was done on purpose that men should not suspect him to be Poisoned his Vomit so stained the Silver Andirons that it could never be gotten out and his Body though put in Cere-Cloths and wrapped in Lead did so stink and putrifie that for long time none could endure to come near where he was Buried Bak. Hist 402. When good Correspondence between Queen Elizabeth and King James of Scotland gave the Papists small hopes that ever he would prove an Instrument to restore the Catholick Religion they begun thereupon to bethink themselves of some English Papist that might succeed the Queen but finding none of their own Sect a fit Person they fixed their thoughts on the Earl of Essex who always seemed a very moderate Man and him they advised to have some right to the Crown by Descent from Thomas of Woodstock King Edward the Third's Son But the English Fugitives were for the Infanta of Spain English Fugitives seek to seâ— up a Title for the Infanta of Spain and to exclude all Protestants from the Crown and desiring to set the King of Scots and the Earl of Essex at odds they set forth a Book which they Dedicated to Essex under the Name of Doleman but
Canterbury cannot be sent unto to certifie because it was made Beyond-sea the Foreign Catholick Bishop cannot be sent unto to certifie because he is out of the Jurisdiction And besides by Acts of Parliament all Foreign Certificates and all other Foreign Acts of Jurisdiction from the Bishop of Rome or any other Foreign Bishop ought not to be admitted here besides no Foreign Witness can either be Summon'd to appear here or to be examin'd there So as to the Fact of Ceremonies were they never so many at the Marriage they are impossible to be brought to an equal Tryal or Probation here and the Ceremony that 't was in a Church consecrated by a Bishop for as Coke says no House can be a Church without such Consecration which is impossible to be Sworn by any Witness For none but God can make place or time Holy and not a Bishop there remains therefore nothing which ought or can as to the Fact of Marriage be proved here but the Substance of Marriage which is Cohabitation Conjugal Society Chastity and Children which are Notorious and need no Foreign Witnesses Then as to to the Law of the Ceremonies the Protestant Ceremonies of Marriage are by the Law in a Catholick Country Heresie and forbidden The Catholick Ceremonies are forbidden here These Ceremonies therefore in a Foreign Marriage can neither be judged here by the Law of the Catholick Country because it concerns Inheritance which lyes in England nor by the Law of England because the Fact was done in a Foreign County it ought therefore only to be judged by the Moral Law of God which judgeth according to Substance and not Ceremonies and is the Universal Law of all Nations and Countries 2. It were impertinent to prove Ceremonies before a Parliament because the same being a Court of Equity ought to judge according to Trust and Intention of Marriage though the Witness of Ceremonies are Dead and Writings lost or burnt whereby any verbal Promise or Ceremonial form of Words cannot be proved 3. God forbid the Representative of the People in Parliament whom they have intrusted with all they have in Matters of such infinite weight should be so Ludicrous as to cast away the safety of the King's Person to Extinguish his Lineal Blood to Destroy the Religion Liberty Propriety and Lives of all his Protestant Subjects in the Three Kingdoms on such Toys as that there are no Witnesses to be got to prove Ceremonies of Verba de Praesenti or With my Body I thee worship or to Swear that the Ring was Gold and not Brass or that it was put on the fourth Finger and not on the fifth or not on the Tumb but on the Finger 4. It is impertinent to prove Ceremonies in a Court of Equity especially in the Supreme Court of Equity which a Parliament is who ought to judge Right Secundum aequum Bonum without any regard to Ceremonies as to make Estates good without Livery of Seisin Attornment Inrolement Fine Common Recovery or the like so likewise ought they to judge without any regard of the Ceremonies and Formalities of Pleadings according to the Truth and Merits of the Cause yea they ought not only to judge without but contrary to all Ceremonies and Formalities if they find them Estopples to Truth and Bars to Equity yea contrary to the Law it self if they find it Summum Jus. 5. In this very point of Legitimation the High Court of Parliament ought to judge according to Truth and Equity though contrary to all Ecclesiastical Laws and contrary to all Episcopal Certificates as appears by Coke expresly Part 4. fol. 36. where he saith The Parliament may Bastard a Child that is by Law Legitimate viz. Begotten by an Adulterer the Husband being within the four Sees as Rot. Parl. 5. Et 6 E. 6. in the Marquess of Winchester's Case and may Legitimate one that is by Law Illegitimate and born before Marriage that is without the Ceremonies of Marriage And this may be done Absolutely or with Exception of which later way take one Example for many John of Gaunt Duke of Lancaster had by Katharine Swinford who was not Married with the Ceremony of a Priest and a Temple four Children Slander'd in those Popish Times with the Name of Illegitimate viz. Henry John Thomas and Joan and because they were Born at Beaufort in France they were vulgarly called Henry de Beaufort c. After at a Parliament holden 20 R. 2. The King by Act of Parliament in the form of a Charter doth Legitimate these three Sons and Joan the Daughter with an Exception which is Excepta dignitate Regali which shews that the King and Parliament may when they please Legitimate according to the Moral Law of God and not only without but contrary to Ceremonies And though they shall not yet is the Legitimation by the Law of God above that of all Humane Laws And though a Right thereby Dormit aliquando yet Moritur nunquam as appears in Henry the Seventh who long after derived his Title from John de Beaufort Duke of Somerset the second Son of John of Gaunt by Katharine Swinford who was only Married according to the Moral Law of God and without the Ceremonies of a Priest and a Temple notwithstanding the Exception in the Act R. 2. Excepta dignitate Regali for what that Act denied him a later Act gave him and before he Married with the Lady Elizabeth the Daughter of Edward the Fourth and Heir of the House of York the Crown was by Act of Parliament intailed to Henry the Seventh and the Heirs of his Body and indeed all Settlements of the Crown by Act of Parliament both in the House of York and Lancaster are in themselves Legitimations without any naming the word where there hath been any Scruples concerning the same and though there have been none are the surest and most undisputable Titles of Successors and of the greatest Advantage to the Possessors which is visible in the Examples of the Kings of England and Scotland the greatest part of whom have made use of Acts of Parliament though their Titles have been unquestionable Upon the whole it seems not possible for any Title of Succession to be more clear both in Divinity Law and Equity than the present except by Act of Parliament wherein the Person is particularly named which is only wanting to make known to others what the same is already in it self And to declare by a particular Act what is already declared by this General Act of E. 3. And all other the General Laws of God and the Land before mention'd WILL. LAWRENCE THE CONTENTS OF The Third BOOK CAP. I. THe words of the Statute 25 E. 3. cap. 2. De Proditionibus as in the Original French Page 1. The Statute of Kenneth 3. and Malcolm Mackenneth 2. concerning the Succession to the Crown of Scotland as related by Buchanan Page 2. Objections against these Statutes made chiefly by Buchanan himself and the Policy of them in
what not and what lyable to the Lawes of Nature Fate and Providence whereas the Laws of Fate and Nature may be Exercised both over these and over Subjects Ignorant Insensible Irrational Foolish Mad-men and deprived of all Intellect alike Secondly in regard of their ability as the Law Moral can be only Exercised on persons able to perform it but the Laws of Nature Fate and Providence over Babes new born Blind Deaf Dumb Maimed and the Dead themselves Thirdly in regard of Liberty as the Law Moral can only be Exercised over free Agents but the Lawes of Nature Fate and Providence may be Exercised over necessary Agents forced Agents Bond-men Slaves Captives Prisoners and persons in Chains and Fetters Though therefore all humane Actions are under one of these four Laws a Man is a necessary Agent as to the Law of Nature and a forced Agent to the Law of Fate and Providence and a free Agent as to the Moral Law yet seeing he may be in many things Ignorant when he is Ruled by Nature when by Fate when by Providence Not revealed to Man by which of these four Laws he doth Act in any particular Action and when by the Moral Law and consequently it may be secret and not revealed unto him when he is a necessary agent when a forced agent and when a free agent or in the more Common word when his Will is free and when Bond In this Ignorance therefore of all the other Three Secret Laws he ought to act according to the Moral Law which God hath revealed and promulgated alwaies and according to the other Three when God hath in particular Acts of his own manifested his Will in them as it is an Act of God that an Eldest Son is born who is an Infant or Minor And a Brother born who is a Major and this Act of God is good and of great Mercy but that on this Act of God Murder should be Committed or Civil Wars be unjustly Raised is Evil and an Act of Man and God is not the Author of this Sin and though no humane Law could have caused or prevented this of the Infancy of a Son or Majority of a Brother yet may and ought human Laws prevent or punish the wicked acts of men which may ensue thereon in attempts to Murder either and seeing God by his Moral Law hath Commanded Powers to be a Terror to Evil Doers it is their Duty therefore And if they neglect it the bear the Sword in vain to make Laws to prevent and punish them and not to leave Infants and Subjects Exposed in such a Wilderness of Dangers as this is of Succession because its possible Fate may destroy them notwithstanding the greatest human care and Providence may without any such care taken at all preserve them Which Stoical and Epicuraean Follies of fata regunt homines fatis agimur Cedite fatis or Res humanas ordine nullo fortuna regit or vita regitur Fortuna non Sapientia to Extend beyond their Bounds prescribed by God or to all humane Actions because ordained and permitted in some were like the Ridiculous Pagan Divinity derived from none but such Authors Not to sow because Fate may destroy the Harvest with it and Providence may give an Harvest without it Not to wear Arms in War because Fate may destroy with them and Providence may preserve without them Not to do good Works because if Predestinated to be Damn'd thou shalt be Damn'd with them And if Predestinated to be Saved thou shalt be saved without them I should not have thought this of Fate worth the objecting or answering had I not found the same Actually press'd in the most Excellent Historian and Statist that ever writ in the Isle of Great Britain for such was Buchanan out of whom I have recited it Answ 4 To the Objection of the Civil Wars between Baliol and Bruce and York and Lancaster notwithstanding the Succession of the Crown ascertained to the Kings Eldest Son Answ 4. As to the Calamities of Civil Wars which followed between Baliol and Bruce in Scotland and the Houses of York and Lancaster in England notwithstanding the Laws in both Kingdoms making the Crown Hereditary to the Eldest Son And that such Lawes did not prevent the same I Answer first As to Scotland the effect of the Law of Primogeniture could not be expected where there was no Eldest Son surviving nor on the Death of Margaret of Norway so much as an Heir Lineal Male or Female left but if there had been an Eldest Son left there is no appearance of any thing against it but the Crown of Scotland had never Returned to the Line of the Earl of Huntingdon but remained in the Line of King Alexander the Third who was the last Possessor which would have prevented all those Ten Competitors to claym from Huntingdon and consequently the Wars between Baliol and Bruce Then as to the Civil Wars in England if Richard the Second had left a Son there appears no probability that ever there had been a Civil War between York and Lancaster Besides if when there is an Eldest Son left as was by Edward the Fourth and an younger Son with him and notwithstanding there followed a new Civil War between York and Lancaster in the Persons of Richard the Third and Henry the Seventh first though this Law of Primogeniture in Succession did not prevent it And though the Law make it High Treason to Compass the death of the Eldest Son yet could it not prevent the Murder of both the Sons To which I answer That it is not to be Imputed as a fault to the Statute or Law that some wicked persons dare break it but is notwithstanding of greater use as the Statutes which make it High Treason to Counterfeit the Kings Seal or to Clip Money and Felony to Rob on the High-Way Though many have notwithstanding Counterfeited the Seal Clipt Money and Rob'd on the High-way yet are not these Statutes Useless but a great Security to the People for though there are now a few if there were no such Statute at all there would be multitudes of Malefactors Richard the Third designing to Murder his Brother's Sons first slandered them with Illegitimacy Besides as to the Particular Instance of Edward the Fourth it was his Inadvertency and indeed Imprudence to Commit the Guardianship of his Son in Minority to his Brother who thereupon forged Illegitimacy against them and Murdered them And it was done for want of such a Law of Succession as was Enacted by Kenneth the Third and Malcolme Mackenneth the Second in Scotland which according to Buchanan lib. 6. p. 191. was A Guardian by the Law of Scotland to be Elected by Parliament during the Minority of the Prince Vt Rege Impubere Tutor qui pro Rege esset interea Eligeretur vir prudentia opibus insignis qui ad quartodecimum usque Annum Regis nomine rem administraret Ad id aetatis
ubi Rex pervenerit ipsi sibi curatores Eligere posset That the King being under the Age of Fourteen Years Election should be made of a Guardian of great Estate and Wisdom who should be his Regent in the mean while and Administer his Affairs in the King's Name till he arrived at the Age of Fourteen and when he came to that Age he himself might choose his own Guardians Which Election of a Guardian must be intended to be by Parliament for it appears by the words That the Infant or Minor King must not nor is able to choose himself till he come to the Age of Fourteen And it is contrary to Reason that any other should be his own Judge to choose himself to have to himself to his own use the Custody of the Person of the King Dangerous to Commit the Guardianship of a Minor prince to the next Major in whom all his Subjects have an Interest And it would be very Dangerous to the Infant if he who is next Successor to the Crown should get the Custody of the Heir into his hands There is no Third Power can be therefore above Exception who ought to choose the Guardian of an Infant King but the Parliament And accordingly we find it to be the constant Practice of that Kingdom as appears Buchanan Lib. 19. p. 687. when it is said Sed cum homines usu rerum Edocti Perspicerint vix fieri posse ut in tanta fortunae inconstantia non aliquando in pueros aut alioqui Regno ineundo Impares haeredes jus summi Magistratus inciderit c. But when taught by Experience men saw that it could not be but in so great inconstancy of Fortune but the Right of the Supreme Magistracy might fall amongst Children or other Heirs unfit to Govern a Kingdom they Ordained That in the mean time one should be Elected Regent who Excell'd the rest in Estate and Counsel Guardians chosen by Parliament the only Security of Kings in Minority and our Ancestors following this way for the space of Six hundred Years have transmitted thereby the Kingdom safe to Posterity So Robert Bruce being dead Thomas Randolph Earl of Murray and Donald Earl of Mar Andrew Murray John Randolph Robert Stuart succeeded singly and sometimes more number are by Parliament chosen into that place So James II. being a child Alexander Leviston being of no Kin nor of the chief Rank of Nobility but only a Knight and of more repute for Prudence then Antient Descent was elected to be his Guardian Neither can there be alledged any want of persons of the Royal Stock to have been the cause of such choice for there was at that time John Kennedy chief of his Family and King James his Nephew by his Sister there were his Uncles James Kennedy Archbishop of St. Andrews Primate of the whole Kingdom in all kind of Vertue and his Brother born of the Kings Aunt Douglass Earl of Angus was not remote from the Kings Blood Archibald Earl of Douglas in Power almost equal to the King and superiour to any of the rest yet did none of these complain of any Injustice in the Parliament for making another choice and not long after four Guardians were given to James III. not taken for the Kindred but chosen by Parliament It was but of late that John Duke of Albin was sent for by the Nobility out of France to moderate the Affairs of Scotland James I. being then a child and was confirmed by a publick Act of Parliament Neither was it done because he was next of Kin for he had an Elder Brother called Alexander But James I. being absent Robert his Uncle ruled the Kingdom And with what Right Was he taken for nearness of Blood No he was chosen by the People Nor so neither How then was he created When Robert III. was so sick in body and mind that he was not able to discharge his Office he made his Brother Robert his Vice-Roy and commended his Children to him So his Brother starved to death David his Eldest Son and sought how to destroy likewise James his Younger had he not escaped by slight But he being now placed in possession of his Tyranny and his Brother dead with grief without Parliament or assent of the People he kept it and by force left it to his Son Mordach c. Buchanan proceeds p. 688. Quid enim minus justum esse poterat quam aetatem innoxiam atque infirmam ejus fidei committere qui pupilli sibi crediti mortem semper expectat optat What can be more injust then to commit the innocent and weak Age to one who always hopes for or wishes the death of the Pupil intrusted in his hands And after he saith Laodice the Queen of the Cappadoceans is related to have killed every one of her children as in order they arrived at fourteen years of age to gain thereby a little more time to reign If a Mother will destroy her Children to get the use of a little time what shall we think will their old Enemies dare yea will they not dare to do inflamed with the Brands of Covetousness to cruelty against a Child hindering their hopes of a perpetual Kingdom If this Example seems old and obscure or far-fetch'd I will add more clear and nearer home For who is so ignorant of things so lately acted as he knows not Galeacius Sfortia though at mans Estate though married and the Son in Law of a Potent King to be killed by Lodowick his Uncle Or to whom are the Calamities unknown which ensued that cruel Parricide the most beautiful Region of Italy brought almost to a Devastation the Sfortian Family The not abolishing Episcopal Laws which pretend to Illegitimate whom they please the sense of the Murder of Edward V. and his Brother so fruitful of valiant men destroyed Barbarians let into the most pleasant Country watered by Po. Against whose Rapine nothing was safe against whose Cruelty nothing was secure Who hath been born in the soil of Great Britain and hath not heard of the cruel Murder by Richard III. King of England of the Sons of his Brother Edward IV A great cause of the murder likewise of these Princes was that Papal and Episcopal Laws were not abolished which pretend to illegitimate whom they please Answ 5 Making a Kingdom hereditary to the eldest Son weakens not the Power of Parliaments And 5. as to the Reason against these Statutes which maketh the Crown hereditary to the eldest Son that the same enervate the strength of Parliaments and without a Contract made by every Prince with a Parliament no Government can be just in regard if he receives not the Kingdom by Contract he assumes it by Conquest which over a Free Nation is unjust To which is answered First that these Acts of Parliament of England and Scotland which entail the Crown to the Eldest Son do no way weaken but confirm and establish the Power of Parliaments and
as alleadged For the Scripture is falsely Translated by the Bishops and there 's no such word as Concubine different in Signification from a Wife in the whole Originals of the Old Testament or New Neither is there any middle word between a Wife and a Whore Neither is there any half-Wife between a whole one or None at all Neither is there any indifferent Wife between a Lawful or Unlawful though there may be between a good and a bad Lastly Neither is there any such Wife which can be Translated into the Latine word Vxor so called quasi Vnctor from the Pagan Ceremony of Unction of her Husbands Door Posts or so called from any Episcopal Ceremony of a Priest and Temple Scripture falsly Translated by Bishops in the word Concubine The word of the Hebrew Text which they have falsly Translated Concubine is Pilegesh which is derived from Palag Divisit and Isha Foemina and signifies no more than a Divided several or in plainer English Another Woman or Wife added to one or more which the Husband had before The Greek word in the Septuagint which they have Translated Concubine is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which hath a very innocent Signification and signifies no more than Juvencula a young Woman or a young Wife 1 Chro. 1.32 Keturah is by the Septuagint rendered 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which they have Translated Abraham's Concubine for which Reflection on Kiturah they have no pretence or colour for Abraham Married her not till Sarah was dead the Marriage of Keturah therefore being Lawful and unblameable she ought to have been Translated Abraham's young Wife and not have been toucht with the ignominious and fictitious Name of Concubine So ought they to have Translated the Levites Woman Judges 19.1 Wife and not Concubine or half-Wife for ver 3. they have Translated the Levite himself by the name of her Husband and not her half-Husband and ver 9. They have Translated the Damosels Father to be his father-in-Father-in-Law and not his half Father-in-Law And by the same Reason they ought to have Translated her to be his Wife and not what they would have to be but his half-Wife and ver 2. They have Translated her to play the Whore and and not half the Whore and to run away No half-Wife in Scripture and not half run away and though there was in Scripture Pilegesh foemina or Vxor Divisa by a new Marriage yet there never was any Vxor dimidiata or half-wife we hear of therein until this Levite cap. 19.29 took a Knife and cut his whole Wife into Twelve peices and by all probability into two halves first to make her run away from him after she was dead further than ever she did while alive 2. There 's no middle word between a Wife and Whore for if a Woman is taken for life she is a Wife if only pro hâc vice or for a lesser Term than life she is a Whore and there 's no middle Station for the limits of a Wife between the first time of Marriage and the end of Life 3. It being shewn before that Pilegesh signifies only another Woman or Wife taken after the first which they have false Translated Concubine if therefore a second Woman or Wife is no Concubine à fortiore the first can be none and therefore Keturah is false Translated Concubine who was a third Wife yet durst not the Pope and Bishops themselves Translate Sarah who was Abraham's first Woman Concubine though she was according to Moses Law Incestuous being Abraham's Sister by the Father which Keturah was not and though it be said Deut. 27.22 Cursed be he that lyeth with his Sister the daughter of his Father because if they had false Translated the first Woman Concubine so gross a Repugnancy would have been laught at and there would have been no foundation whereon to have forged their word Concubine or Designation or mark to difference it from such words as they must of force translate Wife 4. There 's no indifferent Wife between a Lawful and unlawful for though a Lawful Wife is called a Wife yet is not therefore an unlawful Wife call'd a Concubine either in Scripture or our own Laws as appears 1 Jac. cap. 11. The title of which Act is That it shall be Felony to Marry a second Husband or Wife the former being Living which Act calls this highest sort of unlawful Wife a Wife though she be a Whore and an Adulteress and as there is no such word as Concubine in Scripture so there 's no such word in the Law of the Land The Objection therefore is a Chimaera of a word and thing not truly in Rerum naturâ much less in Scripture but false Coined and false Translated 5. There 's no word in the Scripture which can be Translated as the Papal Translation is into the Latine word Vxor so called quasi Vctor from the Pagan Ceremony of Unction of the Husbands Door-Post The Scripture Wife false Translated into the Latine word uxor nor can the same be Translated from the Papal Latine word Vxor by the Bishops into the English word Wife nor any Woman be so called from Episcopal Ceremonies of a Priest in a Temple It is to be here noted That this Ceremony of Unction of the Door-Posts which was to be with Wolfs grease and the Ceremonies of untying the Woman's Girdle and of stoutly eating and drinking by the Man which the Priest persuaded the People to be so necessary to Marriage and to the naming the Parties Man and Wife as the Bishops do now the Priest and Temple and other Ceremonies That they worshipped four Goddesses or Daemonesses of purpose to praeside and give their Benediction to these Ceremonies and no doubt they got Fees or Offerings for them all The Goddesses names were Vnxia Cinxia Victua and Potua as saith Arnobius Contra Gent. Lib. 3. O l Egregia Numinum singularis Interpretatio potestatum nisi postes virorum adipali unguine oblinerentur à Sponsis nisi Virginalia vincula jam ferventes Dissolverent atque imminentes Mariti nisi potarent manderent homines Dij nomina non haberent Oh excellent and singular interpretation of the Gods and Powers above unless the Door-Posts of the Men were well greased by the Woman unless the hot and eager Husband tore off Mrs. Brides girdle and eat and drank lustily the Gods would have no Names nor could the Wife get the name of a Wife These are the Ceremonies of Rome Pagan without which the Woman could not be called Vxor a Wife and the same is done for no other end than filthy Lucre. Yet whom God hath joyned by his immutable Moral Law with a Husband and hath given them Children who are the Gift of God and they have been both all their dayes like John and Elizabeth Luk. 1.6 walking in all the Commandments and Ordinances of the Lord blameless without the Episcopal Ordinances and Ceremonies of a Priest in a Temple this
disinherits the true Children and Aliments and Inherits the false For shame take away such wickedness amongst Christians which is not to be found among Infidels This hath already been shewn to be the wicked Practice of Episcopal and Common Lawyers Paâ—oâ—nized by Judge Rikhil Littleton and Coke contrary to the Law of God where the Husband is within the Four Seas at the time of begetting the Child and gives power to disinherit the right and intrude Adulterous Heirs not only into private Families but Kingdoms Of which take a strange attempt emboldened on this absur'd Popish Principle That adulterous Children born within Matrimony are inheritable to the Husband of the Adulteress and not to the Adulterer Anno 1459. Henry of Spain being himself unable for generation persuaded his Queen to be got with Child by Bertrand of Guttua Joane thus gotten is Proclaimed Heir and Bertrand is made Earl of Ledesma and Duke of Albuquerk Hist Hisp The People force him to reject his supposed Daughter and to declare his Brother Alphonsus and he refusing they Depose him and Crown Alphonsus Hist Hisp Henry overcometh Queen Joane hath two Children more by another Minion Alphonsus dieth Isabel the King's Sister refuseth the Kingdom she is declared Heir and Marrieth Ferdinand of Aragon Hist Hisp Anno 1474. Divers joyn for Joane with Alf. of Portugal who meant to Marry her But Anno 1480. she entreth into a Monastery and Alf. of Portugal Here Joane was born within Matrimony and the Certificate of the Bishop and the Doctrine of Judge Rikhil if it had been sent for would have made Joane Heir but the very light of Nature taught the People though in a Countrey blinded with Popish Superstition that she was not the true Heir by the Law of God but by Fiction therefore they would not bear it Bishops Certificates make adulterous Children honorable and true Children base 18. The Certificate slanders and dishonours the true and makes honourable the false and Adulterous Children as appears in the before-mentioned form of Certificate of Bastardy That the under-named N. H. of T. A. H. of P. J. H. of P. and E. H. of P. are Bastards and every of them a Bastard He makes Bastards by Bundles 't is as easie to him as cracking of Nuts and though 1 Cor. 6.10 after other bad Company mentioned it is said No Revilers shall inherit the Kingdom of God yet the mouth of this Certificate is full of Revilings and devours no less than four Innocents at once who against others might have had their Actions of Slander but against a pretended Jure Divino of an Episcopen Slander there 's no Remedy to be had Certificates destroy Truth and found on Fictions and Lies 19. The Certificates undermine the Pillar of Truth and lays the Foundation of Marriage and Filiation on Fictions and Lies As that Sponsa before a Priest in a Temple is Vxor That Verba De Praesenti are Facta de praeterito futuro That Prohibited Marriages are Null and void That feigned and void Marriages are by Licence and Dispensation true and valid That Intention is Contract Contract is Tradition Obligation is Propriety and Promise is Gift Si donare vocas promittere nec dare Cai Vincam te donis muneribúsque mâ—is Mart. That a Child is not Sib or Kin or of Consanguinity or the Child of the Father who begot or the Mother who bare him or they of him of which see more Lib. 2. p. 154 155. That Children begot by Adulterers were begot by the Husband within the four Seas That two Persons are Transubstantiated into one Person by the words of Priests pronouncing them Man and Wife L. 1. p. 66. with many other which I forbear here to repeat All which are meer Fictions and Falsities and to be Abhorred to be Tolerated to support Ceremonial Mock-Marriage against the true Marriage according to the Moral Law of God Bishops Certificates inconsistent with the right of Primogeniture 20. The Certificate disinherits Primogeniture in Succession to Kingdoms contrary to this Statute and contrary to the Law of God and Nature Patritius Lib. 9. De Regn. T. 22. says Jus naturae exigit Gentium Consuetudo confirmat ut Maximus natu Ex filiis Mortuo Regi succedat And Tiraquel in Praefat. de Jure Primog with this agrees the Rule that Deus facit Haeredes And no other sign can be in the Law of Nature interpreted to come from God but Primogeniture of a Son with which likewise agrees the Scripture Deut. 21.15 If a man have two women for that 's the Original and it is falsly Translated Si fuerit alicui duae Vxores one beloved and another hated and they have born him Children both the beloved and the hated And if the first born Son be hers that is hated Then it shall be when he shall make his Sons to inherit that which he hath That he may not make the Son of the beloved First born before the Son of the hated which is indeed the First born But he shall acknowledge the Son of the hated for the First born by giving him a double Portion of all that he hath for he is the beginning of his Strength the Right of the First born is his The other Text of Scripture is Jehosophat gave the Kingdom to his eldest Son and Gifts to his younger 2 Chro. c. 21.1 Now Jehosophat slept with his Fathers and was buried with his Fathers in the City of David and Jehoram reigned in his stead And he had Brethren the Sons of Jehosophat Azariah and Jehiel and Zechariah and Azariah and Michael and Sephatiah all these were the Sons of Jehosophat King of Israel and their Father gave them great Gifts of Silver and of Gold and of precious things with fenced Cities in Judah But the Kingdom he gave to Jehoram because he was his First born Now when Jehoram was risen up to the Kingdom of his Father he strengthned himself and slew all his Brethren with the Sword and divers also of the Princes of Israel And 2 King 8.18 And he walked in the ways of the Kings of Israel as did the House of Ahab for the Daughter of Ahab was his Wife and he did evil in the sight of the Lord. Which Texts the one for Primogeniture in private Families the other for the same in Successions to Kingdoms make such Right appear very strong in both and these Observations tending to the same may be taken from them 1. That though the Eldest Son be the Son of a second Woman Married after the first yet if the Son of the second be the Son First born before the Son of the first he shall be preferred in the Succession 2. Though the second Woman is an unlawful Woman for here are the highest Circumstances which can make a Woman unlawful for the first Woman is still alive and hath born the Husband Children as well as the second For the words of the Text are They have born
proved at large Lib. 2. p. 234. to 240. and amount in effect to the wicked Law of Pharoah which was so far from obliging the Conscience that Moses his Parents are commended for not obeying the same as appears Heb. 11.23 where it is said By faith Moses when he was born was hid three months of his Parents because they saw he was a proper Child and they not afraid of the Kings Commandment Therefore Marriage is Lawful without them Compulsion to Ceremonies makes the Law of God of Marriage of no effect Thirdly This Prescribing or Compulsion of Ceremonies by men on Marriage and Matrimony commanded by the Moral Law of God destroys and makes the same of no Effect as appears Mark 7.13 For there the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is Translated Tradition making the Word of God of no effect by your Traditions ought to have been Translated Ceremonies false Translated Traditions making the Word of God of no effect by your Ceremony For the word Dosis single signifies a Giving Delivery or Tradition and Paradosis a Praeter or Contradiction to the Law of God as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is Contra Legem and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is Contra Naturam Imposing or Compulsion of Ceremonies of Marriage on the Conscience being a thing Praeter et Contra Legem Dei And that the word Paradosis is intended here to be Ceremony appears by the Text it self vers 8. Laying aside the Commandments of God ye hold the Ceremonies of men as the Baptism of pots and cups and ver 4. as before mentioned of Brazen vessels and Tables all which no man doubts to be Ceremonies of Men and not Laws of God which though used to an Intention of Religion or Justice yet cannot make that Religious or Just which is not so by the Law of God The Compulsion therefore to the Ceremonies making the Law of God of Marriage to be of no effect Marriage must be Lawful without them Fourthly Compulsion to Ceremonies destroys Marriage Religion Justice Truth Equity Natural Affection Compulsion or Prohibition of Ceremonies in Religion Justice Marriage and Matrimony destroys the worship in Spirit and truth of God and Truth Nature and Equity towards men therefore Religion Justice Marriage and Matrimony are all Lawful without Ceremonies As to Ceremonies of Worship by a Priest in a Temple See Lib. 2. p. 210 211. As to Truth destroyed by them See Lib. 2. p. 186. to 189. and p. 288. to 305. As to Nature destroyed See Lib. 1.73 to 83. and Lib. 2. p. 154 155 156. As to Equity destroyed Prohibition of Ceremonies not Prohibited by God doth the same See Lib. 2. p. 312. to 329. And hence is to be further noted That seeing the Law of God doth neither command any Ceremonies of Marriage nor Prohibit all No Marriage ought to be Judged unlawful which doth omit such Ceremonies not Commanded or doth use such Ceremonies as are not Prohibited but every person ought to be left to his own Liberty of Conscience to omit such Ceremonies not Commanded or to use such as are not Prohibited as suits most with his Conscience and Convenience the state whereof is best known to every man's self Concerning the Liberty of which private manner of Marriage without Ceremonies or Witnesses See Lib. 1.101 to 109. And concerning Ceremonies and Circumstances and the Difference between them see more Lib. 2. p. 189. to 192. Ceremonies answer not the Ends of Marriage 7. Ceremonies answer not the Lawful and Necessary ends for which God instituted Marriage by Carnal knowledge between Persons not Prohibited Therefore Marriage by Carnal knowledge is lawful without them As the Ends for which God instituted Marriage by Carnal knowledge was 1 Gen. c. 2.18 It is not good for man to be alone I will make him a help meet for him 2 Gen. cap. 1.27 Be fruitful and multiply and replenish the earth 3 1 Cor. c. 7.2 To avoid Fornication Let every man have his own woman and every woman her own man What do Ceremonies were the whole heap of them used through the whole world Coacervated on two Persons signifie to produce any of these Effects 3. The Lawfulness of such Marriage by Carnal knowledge without Ceremony appears by Express Command of Scripture Carnal Knowledge without Ceremony commanded to be acknowledge Marriage by express Scripture Where the Man is commanded by the Scripture to acknowledge for his Wife whatsoever Woman not Prohibited he Lies with though without Ceremony it is Lawful for such Woman to be his Wife and the Marriage is Lawful without Ceremony But the Man is commanded by Scripture to acknowledge for his Wife whatsoever Woman not Prohibited he lies with though without Ceremonies as Ex. 22.16 It is said If a man entice a maid which is not betrothed and lie with her he shall surely endow her to be his wife If her Father utterly refuse to give her to him he shall pay money according to the Dowry of Virgins And Deut. 22.28 It is said If a man find a Damsel that is a Virgin which is not betrothed and lay hold on her and lie with her and they be found Then the man that lay with her shall give unto the Damsels Father fifty Shekels of Silver and she shall be his wife because he hath humbled her he may not put her away all his days The same Law was at Athens only instead of the Fifty Shekels the Man was to pay the Virgins Father a Thousand Drachms and Marry her besides Here are Lawful Marriages on the Virgins part yet no Ceremony And as for any Traditions or late Customs or Constitutions of Rabbi's contrary to these express Laws of Moses and Scripture they are not to be valued Such Command of God not a thing indifferent to be added to or diminished from by any Laws of Men. The express Command being Deut. 12.32 What thing soever I command you observe to do it Thou shalt not add thereto nor Diminish from it And as is said Jer. 10.3 The Customes of the People are vain And the observing the Commandments of Men against the Law of God being condemned by Christ Mark 7.9 Ye reject the Commandments of God that ye may keep your own Traditions 4. The Lawfulness of such Marriage by Carnal Knowledge between Persons not Prohibited without any Ceremony is acknowledged by Episcopal Translations themselves of Scriptures Carnal Knowledge without Ceremony between Persons not Prohibited acknowledged Marriage by Episcopal Translation of it so in the whole Scripture As Gen. 38.8 It is said Go in to thy Brother's wife and Marry her Where the Hebrew word Bo signifies Ingredere ad Go to bed to thy Brother's Wife and 25 Deut. 5. The word is Jabo and Jabbein derived from the same Root signifies Lye with her which they have Translated Marry her And Exod. 21.3 If he were Married his Wife must go out with him Where the Hebrew word Bagnal signifies one who lay with
saith to the Poor the Gospel is preached but the Poor can take no benefit of Coemptions or buying of Women for Money or for Jointures or Thirds nor are able to give Fees to Lawyers for Indentures or to Priests for Ceremonies or to buy Licenses or Gold Rings or to pay so much as for Banns or Proclamations Christ therefore never intended they should be Prohibited all Marriage except it were Coemptione Instrumentis or Confarriatione he gave them therefore that Marriage which was Copulatione otherwise they could have the benefit of no Marriage at all Seventhly 'T is manifest that Christ makes the Marriage Copulatione to be the Ordinance of God which was from the beginning for which a man should leave father and Mother and should cleave to his Wife and this was the Law of Moses and the Law of the Romans and Christ doth establish and confirm it by forbidding any Divorce except for Fornication which in the Woman is Polyandry and according to the Maxim of Nature Vnumquodque dissolvitur eodem modo quo Conflatum est As Carnal knowledge by a Woman with her Husband shall make Marriage so Carnal knowledge with another Man doth unmake and dissolve the Marriage If therefore Marriage by Carnal knowledge only is according to the Doctrine of Christ a joyning together by God and indissoluble à Fortiore Procreation of a Child between them is a joyning together by God and Indissoluble by Man and even it is by the Light of Nature acknowledged That Procreation of Children is a greater obligation than Copulation not fruitful Nascitur ad fructum Mulier prolemque futuram Claud. in Eutrop. Tormentum ingens Nubentibus haeret Quòd nequeant parere partu retinere Maritos Juv. Sat. 2. Faemina cùm senuit retinet Connubia partu VxorÃsque Decus Matris Reverentia pensat Nos Lucina fugit nec pignorâ— nitimur ullâ— Claud. in Eutrop. An Epithalamium on the Marriage of Nature intended by Christ without a Priest or Temple BRazen was Venus when in Pride To Temples throng'd she led a Bride Who with a blush Like Rosie bush First with one man in Woods did hide There free from fascinating charms And Hungry Wolves more cruel harms The Lamb did play And never stray From fold of her own Shepherds arms Fair Chastity in Angels shape The Nymphs there taught how to escape With pretty smiles And witty wiles From every wanton Satyr's rape The Turtle there in secret sate As sick of Love as was her Mate And still did moan To him alone Nor from him fled until her Fate The lesser Birds did sit and sing How these in prime the Queen and King Had been of May So sweet and Gay When it approached to the Spring There in the Royal Oak of Jove Princes did wed and Live and Love And of Renown Without a Crown They Kingdoms had from God above Fast by in Cottages of Reed The Subjects lay who were agreed Their Love did bless With Happiness Oh happy thrice they and their seed No Mother there more fierce and wild Then Tyger kill'd her new born Child Nor from it fly For Parish cry The Father did or was exil'd The weeping Babe not babling Fame Dar'd illegitimate their Name Or Punishment On Innocent To lay of Parents guilt or shame Thus had the lovely Pairs at first Had not the State of Man been curst In Eden's Bowers New drest with Flowers Their own Fruit unforbidden nurst Thus he did Marriage make divine Who Water turned into Wine And Heav'n to fill Where is no ill With little Children did design Till what was right was feign'd amiss Vnless the Priest had the Tenth kiss And fees beside To bless the Bride Then lost they Innocence and bliss Obj. 7. The eldest Son not Heir intended by the Statute Eldest Son not Heir Answ 1. This Objection is in its own Nature repugnant to it self That the eldest Son and Heir in the Letter of the Statute is not the Heir in the Intention 2. T is Protestatio contraria facto and not only to the Fact of another but to the Parties own-Fact who Objects for the Popish Party who deny him to be Heir in their words affirm him to be Heir by their Deeds and wicked Plots to kill him as Heir that they may seize on his Inheritance as is already shewn Matth. 21.38 They said amongst themselves This is the Heir come let us seize on his Inheritance A multitude of kinds of Heirs 3. The word Heir is the Genus and eldest Son is the Difference So the Heir intended by this Statute is not only described but perfectly defined and differenced from all other Species of Heirs As there is Haeres Sanguinis and Haeres Haereditatis there is Haeres factus and Haeres Natus Haeres de facto and Haeres de Jure Haeres verus and Haeres fictitius Haeres Astrarius and Haeres Apparens There is farther the Heir by the Civil Law who succeeds in Vniversum Jus Antecessoris immoveable and moveable Possessions and Obligations There is the Hier by the Law of Scotland and Customs in the North who succeeds to Lands Heirlooms and Heretable Bonds but not to other Moveables There is the Heir by Custom and the Heir by Law There is Haeres ex provisione Legis and Haeres ex provisione hominis There is the Heir by Contract inter viros and Heir Testamentary and Heir Dative There is Haeres Viventis and Haeres Defuncti There is the Heir in Gavelkind and Heir in Burgh English There is the Heir by the Ecclesiastical Law and Heir by the Common Law and Heir by the Statute Law There is the true Heir and Heir by the Certificate of the Bishop There is the Heir per Jus Coronae and the Heir by the Law for Subjects There is the Heir by the Ceremonial Laws of Men and the Heir by the Moral Law of God There is the Heir of the Husband and the Heir of the Wife Heir of the first and Heir of the second Marriage and so many other Kinds there are of Heirs here not named as the old Rhyme though made on another Subject may be true enough applied to this Of Heirs there are as many Kinds As Marriners have found out Winds And should all these Kinds of Heirs the greatest part of whom were before this Statute left unlimitted as to Supreme Successions either at once or Successively in the Three Kingdoms bring their pretensions of Right to Tryal by Battels though Papists would Rejoyce in such perpetual Tempests as they themselves had raised to Rent the Brittish Oak in pieces yet no Protestant there would be who would not acknowledge it a great Providence of God and Piety and Prudence in this Statute which to prevent the Causes of so many Intestine Discords hath restrained the manifold kinds of Heirs to whom there can be but one at a time in the Three Kindoms who is the King 's eldest Son and Heir of his Blood
The Mother of Henry the 3d. pre-contracted when King John Married her So if the World had been so much given to slander the Legitimation of the King 's Eldest Son as it is now here had been a greater Exception against the Succession of the Crown to him than can be now in the least shadow pretended for Isabel being pre-contracted to a former Man was a Woman Prohibited by the Law of God to be Contracted or Married by another Man Yet did neither this nor his Minority nor the amazing Danger of a Foreign Enemy Landed assisted by the Native Nobles possessed of the Royal City and entred into the Bowels of the Kingdom Deter this Wise and Noble Parliament for making use of the Coronation of the King 's Eldest Son Coronation of the King 's eldest Son the best remedy against the Barons calling in the French as the best Remedy against it and to Commit his Guardianship to a Person of Courage and Council they Succeeded accordingly for Louys was beaten in a Battel at Lincoln by the Protector and sending back for Recruits into France which were with great Expedition there provided and sent with a Mighty Fleet which Fleet was likewise met and beaten by the English Fleet at Sea and the Army therein Vanquished by God's great Providence which News coming to the Ears of Lovys made him hopeless of any longer Subsistance here with Safety and thereupon makes a Composition for his passage home abjures his Claim to the Kingdom and returns to France But if Louys had prevailed here wiâ—â— Security had the English Nobles had in his French Oath for within a little while after he had taken it he made spoil and plunder of all he could lay hands on Louys a Papist King breaks his French Oath to the Papist Subjects of England Friend or Foe which made many of the English he breaking his Oath to them to think themselves disobliged thereby from the Oath they had given him and to forsake his Party and more would have forsaken him had it not been for shame of Inconstancy and that he had their Hostages in France whom he would have on their Revolt Destroyed And to shew his Intention of perfecting his Perjury to the height if he could have got Power there was a constant Report and generally divulged concerning the Confession of the Viscount Melun a Frenchman who lying at the point of Death touch't with Compunction is said to reveal the Intention and Vow of Louys which was not only to Destroy the English Nobility but if he could the whole Nation Dan. Hist 148. The like Example is of the French Catholick more properly Papist Faith to the Nobility and People of Scotland Buchan Rer. Scot. Lib. 17. p. 156. where appears The French Papists were called into Scotland by the Scotch Papists to assist them against the Protestants there on Mutual Agreement on Oaths between the Papist of both Nations but when the French Army came they spoyl'd alike both Papist and Protestant And the French Garison at Leith destroy all with Fire and Sword as far as they could reach A French Papist King forsworn to the Papist Nobility of Scotland Clades autem Ex vastatione Agrorum non minus ad Papanos sine discrimine Scotorum Nobilitatem Extinguendam esse in corum autem praediis mille Catraphractos Equites Gallos collocari posse reliquam Multitudinem Servorum Loco habendam id Consilium literis ejus ad Gallum interceptis divulgatum mirum quantum Gallorum odium Jam aliis de Causis natum auxit Ambianus autem Episcopus non modo Romane Cause minus aequos sed etiam Gallorum partibus minus quam ipse Censebat aequum addictos in dicta causa agere rapere truci dare jubebat The Devastation of the Countrey about Leith by the French fell no less on the Papist than Protestant Labross advised that the whole Scottish Nobility was without any Difference made to be destroyed and a Thousand French Barbed Horse to be planted on their Estates and the rest of the Multitude to be kept for Slaves which Council his Letters being intercepted wherein he had sent the same to the French King after it was divulged 't is wonderful how it increased the hatred against the French which for other Causes was already sufficiently begun The Bishop of Amiens likewise without over hearing the Cause Commanded not only those who favoured not the Romish Religion but the French Cause as much as he would have them to be pursued taken by Force and Killed Henry the 3d. a Papist King forsworn to Papist Subjects To return again to England we left where King John having broken his Oath to the Nobility and Parliament being dead the same Oath of preserving the Laws and Liberties was again obtained of his Son Henry the Third who in the Barons Wars wanting Money a Tenth is granted him by the Clergy and a Scutage by the Layity of Three Marks of every Knights Fee yet with this Agreement That the often Confirmed Charter of Magna Charta and Charta Forestae should be again Rectified Confirmed and Sworn to and that in the most Solemn and Ceremonial manner as Religion or State could ever devise to do The Solemn manner of giving his Oath by Henry the Third to confirm his Subjects Liberties The King therefore with all the great Nobility of England all the Bishops and Chief Prelats in their Pontificalibus with burning Candles in their hands assemble to hear and pronounce the Terrible Sentence of by-Excommunication against the Infringers of the Charters and at the lighting of one of those Candles the King having received one in his hand gives it to a Prelate who stood by saying It becomes not me who am no Priest to hold this Candle my heart shall be a greater Testimony and withal laid his hand spread on his Breast the whole time the Sentence was Read which was thus pronounced Authoritate Dei Omnipotentis c. which done he caused the Charter of King John his Father granted by his free Consent to be likewise openly Read in the end having thrown away their Candles which lay smoaking on the ground they cryed out So let them who incur this Sentence be extinct and stink in Hell And the King with a loud voice said As God me help I will as I am a Man a Christian a Knight a King Crowned and Anointed inviolably observe all these things And therewithal the Bells rung out and all the people shouted for Joy Dan. Hist 169. but his Oath came to nothing Henry the 3d. secretly Absolved from his Oath to his Subjects by the Pope for he secretly sent to the Pope for his Absolution from them and the Pope for Money by his Apostolick Sentence Absolves the King from his Oath to his Subjects whence insued great Wars and Miseries in the Land Bac. Hist. 86. and though Magna Charta was in his time granted yet he never kept it but