Edward III. and younger brother of Leonell temerously ayâ—nst rightwiseness and justice by force and armes ayenst his feâ—th and ligeance rered-werre at Flynt in Wâ—les ayenst the seid King Richard him toke and impâ—esoned in the Towre of London of grete violence And the samâ— King Richard so being in prison and lyvying usurped and intruded upon the Roiall Power Estate Dignity Preeminence possessions and Lordships aforeseid taking upon him usurpously the Corone and name of King and Lord of the same Reaume and Lordship and not therwith satisfied or content but more grevous thyng attempting wykidly of an unnatural unmanly and cruel Tyranny the same King Richard King enoynted coroned and consecrate and his Liege and most high Lord in the Eâ—th ayenst God's Law Manne's Ligeance and Oâ—ch of Fidelite with uttermost puâ—icion attormenting murdered with most vyle heynous and lamentable death Ibid. n. 10. And that the same Henry unrightwisely ayenst Lawe Conscience and Custume of the seid Reaume of Englond usurped upon the seid Corone and Lordship And that he and also Henry late called King Henry V. his sonâ—e and the seid Henry late called King Henry VI. the sonne of the seid Henry late called King Henry V. occupied the seid Reaume of Englond and Lordship of Irelond and exercised the governaunce therof by unrightwise intrusion and usurpation and in noon otherwise 'T is true the Distinction of a King de facto and de jure was first heard of in this very Parliament which declared the hereditary Right of the House of York in in the First of Edward IV. cap. 1. in print which agrees with the Record in the Parliament-Roll n. 41. and not before but not started then by the Lawyers to fiâ—d a sufficient Salvo for the Kings of the House of Lancaster but an Expression intended by Parliament before they used it to denote and make known an unlawful pretended or pretensed Kâ—ng that had not obtained the Crown by just Title or to signifie an Usurper by way of Antithesis or Contradistinction to a K ng de jure or in Right For this very Parliament that had declared Henry IV. V. VI. Usurpers calls them all in this Act or Statute Kings de facto or in Deed and not in Right and their Reigns pretensed Reigns and very often affiâ—ms them to be but pretensed Kings such as did not reign lawfully nor possess the Crown by just Title And that this was the intention of the Parliament in the use of this Expression the Statute it self will inform the Author or any indifferent Reader that will peruse it The Lawyers did not comment or descant upon these Words or declare what power a King de facto had before Easter-Term in the Ninth of Edward IV. and then they acknowledge Henry VI. King de facto in the Instance to have been an Usurper and that he was not King forsque per usurpacion but by Usurpation This Ninth of Edward IV. was a troublesome Year and Make-king Warwick in all probability with many others of the Nobility were at this very time contriving against him and to re-inthrone King Henry for in July following he was in opeâ— Rebellion against King Edward and about the end of that Month or beginning of August madâ— him Prisoner who soon made his Escape left the Nation and went into Holland c and on the sixth of October in that Year Henry VI. was restored The Earl of Warwick was popular almost beyond Imagination and probably the Lawyers during the Contrivance when thâ—y saw the People move that way might start such Notions about the Power of a King de facto as might encourage the Undertaking of Wâ—â—wick and his Friends for Henry VI. against Edward IV. 'T is observable that the Judges did not argue or give any Opinion in this Case but only the Serjeants and Apprentices of the Law as appears in the Câ—se it self Third Institut fol. 7. Sir Edward Coke hath out-done the Year-Book 9. Ed. IV. Term. Pasch concerning whole Opinion the Author may read Mr. Pryn Pag. 482 c. in his Plea for the Hoâ—se of Lords This is a brief Account of a King de facto and the Origin of the Expression by which it is most manifest that by the Parliament-Roll the Statute and Case of the Ninth of Edward IV. he is no other than a pretensed unlawful King and an Usurper though set up as the three Henries were and therefore the pretended Distinction is idle as may also further appear by the following Statute which because not common is here recited at large Statutes at large 17. Ed. IV. c. 7. Item Whereas in the most dolorous Absence of ouâ— Soveraign Lord the King out of this his Realm being in the parties of Holland and before his victorious Regress into the same Realm Rot. Parl. 17. Ed. IV. n. 34 This Writ of Summons to the Parliament is dated 15. Octobr. Rot. Cl. 49. Hen. VI. M. 6. Dors in a pretensed Parliament unlawfully and by usurped Power summoned by the Rebel and Enemy to our Sovereign Lord the King Henry VI. late in Deed and not of Right King of England holden in the Palace of Westminster the 26th Day of November in the Ninth Year of our Sovereign Lord the King that now is under the coloured Title of the said Henry the Forty ninth Year of the Incoation of his pretensed Reign and the First Year of the Readeption of his usurped Power and Estate divers and many Matters were treated communed wrought to the destruction and disherison of our Sovereign Lord the King and his Blood Royal by the Labouâ— and Exhortation of Persons not fearing God nor willing to be under the Rule of any earthly Prince but inclined of sensual Appetite to have the whole Governance and Rule of this Realm under their Power and Domination Which Communications Treaties and Workings do remain in Writing and some exemplified whereby many Inconveniences may ensue to our said Sovereign Lord the King and his Blood Royal which God defend and all Noblemen at this time attending about the King and all his other Liege People and Subjects unless due Remedy be provided in this behalf Our said Sovereign Lord the King by the Assent of the Lords Spiritual and Temporal and at the Request of the Commons in the said Parliament assembled and by the Authority of the same For the Surety of his noble Person his noble Issue and the inheritable Succession of the same and for the Surety of all the Lords Noblemen and other his Servants and Subjects hath ordained and stablished that the said pretensed Parliament with all the Continuances and Circumstances depending upon the same be void and of none effect and that all Acts Statutes Ordinances Treats Communications Conventions and Workiâ—gs in the same pretensed Parliament treated communed accorded wrought had or by Authority of the same Parliament enacted and ordained and all Exemplifications made upon the same or any part of them and every of
them shall be reversed cancelled void undone revoked repealed and of no foâ—ce nor effect Henry VI. was a King de facto according to the Author's Description as well before at and after this Parliament in the Ninth of Edward IV. and Forty ninth of Henry VI. and is said to be in this Statute yet in all these Times he is declared an Vsurper at this time a Rebel and his Reign a pretensed Reign and this Parliament is also declared a pretensed Parliament Statutes at large 1. Hâ—n VII cap. 6. Richard III. was acknowledged to be a King by a Parliament of his own calling and was according to the Author's description a King de facto yet in the First of Henry VII he is declared an Vsurper of the Realm and not so much as allowed the name of King or pretensed King in that Statute After the King de facto and Vsurper Enquiry is to be made what Right and Title a King de jure may pretend to the Crown accordiâ—g to the Constitution Law and Statutes of thâ— Kingdom and it appears by the following plain Proofs that it is onâ—y by Descent and not oâ—herwise This is an hereditary successive Moâ—archy and immediately upon the Death oâ— Cession of th Predecessor the Crown is vested in the lawful Successor by Inheritance and Proximity of Blood Which appears 1. By the Record before cited of the Compromâ—se and Agreement between Râ—chard Duke of Yo k and Henry VI. in the Thiâ—ty â—inth Yâ—ar of his Râ—ign wherein he makes his Claâ—m only by lineal Dâ—scent He exhibited only a bare Title by Descent and Proximity of Bâ— od which could not be denied and upon such shewing of his Right the Lâ—rds concluded it could not be defeatâ—d Rot. Parl. 1. Edw. IV. n. 10. This was pâ— t of the Petâ—tion and Declaration of the Commons before mentioned and pâ—ssed into an Act. n. 15. notwithstanding what King Henry's Council could say againâ—â— it 2. By the Râ—cord of the First of Edward IV. Thâ— Commyns being in this present Parlement having sufficient and evident knâ—wlege of the seid unrightw se Vsurpation and Intrusion by the sâ—id Henry late Erle of Derby upon the s â—â— Câ—rone of Englond knowing also certaiâ—ly without doubte or ambiguite thâ— Right and Title of our seid Soverayne Lord therunto true and that by God's Law Manne's Law and Law of Nature he anâ— none other is and owe to be their true rightwise and natural Liege and Soveraign Lord and that he was in Right from the deth of the seid noble and famous Pâ—iâ—ce his Fader very just King of the seid Reaume of England And yet his Father was never possâ—ssed of the Crown 3. Ibid. n. 10. And that the Takeing of Possession and Entree into the Exercise of the Roiall Estate Dignite Reign and Governaunce of the seid Reaume of Englond and Lordship of Irelond of our seid Soverayne Liege Lord King Edward IV. the seid 4th Day of March That Day he took Possession of the Crown and Government Ibid. n. 11. and the Amocion of the seid Henry late called King Henry VI. from the Exercise Occupaâ—ion Usurpation Intrusion Reigne and Gâ—vernaunce of the seid Reaume and Lordship doon by our seid Soverayne and L ege Lord King Edward IV. the seid 4th Day of March was and is rightwiâ—e lawfull and according to the Lawes and Cu â—umes of the seid Reaume and soe owe to be taken holden reputed and accep ed. And over that that our seid Sovâ—rayne and Liege Lord King Eâ—ward IV. the seid 4 h Day of March was lawfully seaâ—ed and possessed of the seid Corone of Englond in his seid Right and Title and from thenceforâ—h hâ—ve to hym and his Heires K ngs of Eâ—glond all such Manners Castells Lordships Honoures Londs Tenements Rentes Services Fees Fee-farm Rentes Knights Fâ—es Avousons Gyftes of Offices to yere at his pleasure Feires Markets Iss es Fynes and Amerciamentes Libertees Franchises Prerogatifs Eâ—chetes Custumes Reversions Remeyâ—ders and all other Hereditamentes with her Appurtenaunces whatsoever they bâ— in Englond Wales and Irelond and in â—aleys and the Marches therof as the seid King Richard had in the Feâ—â— of S. Matthew the Apostle about three Weeks before he was deposed the Twenty third Yere of his Reigne in the Right and Tâ—tle of the Corone of Englond and Lordship of Iâ—elond and shâ—ld afâ—er his Decesse have descended to the sâ—id Edmund Mortymer Erle of Marche Sonne of the seid Roger Mortymer Erle of Marche as to the next Heire of Blode of the same King Richard after his deth yf the seid Usurpation had not been committed or after the seid Edmund to his next Heire of Blode by the Lawe and Custume of the seid Reaume of Englond 4. The general Opinion of the Nâ—tion in these Times that the Right and Title to the Crown was by Inheritance only and Proximity of Blood caused Henry IV. â—o claim it Rot. Parâ— 1. Hen. IV. n. 53. Rot. Parl. 1 Râ—c III. in Exact Abridgment fol. 712 713 714. al 's descendit be ryght Lyne of the Blâ—de comeynge fro the gude Lord Henry Therde And for the same Reason Richard III. was by the three Estates that is to say the Lords Spi itual and Temporal and Commons in Parliament assembled declared to be undoubted Heir of Richard Duke of York Father to Edward IV. very Inheriter of the Crown of England and Dignity Royal and as in Right King oâ— England by way of Inheritance Tâ— ssel's Câ—ntâ—n fol. 231. All this was insinuated by himself in his Answer to Buckingham's Speech when he took upon him Kingship Likewise Henry VII upon the same Account prefers his Title by Conquest and Succession before that by Act of Parliament which Pope Innocent VIII In Cotton's Library Cleopatra E. 3. in his Bull of Confirmation of his Title says belonged to him non modo jure belli ac notorio indubitato proximo successionis titulo verum etiam omnium Praelatorum Procerum Magnatum Nobilium totiusque ejusdem regni plebis Electione noch decreto statuto ordinatione ipsius Angliae regni trium Statuum in ipsorum Conventu Parlamento nuncupato Bacon's History of Henry VII f. 1. 3. Not only by Right of War being saluted King by the Army in Bosworth-Field and had there King Richard's ornamental Crown put on by Sir William Stanley and the notorious and indubitable next Title of Succession but also by the Election of all the Prelates and Great Men of the who e Commonalty of the Kingdom of England and by a known and decreed Statute and Ordinance of the three Estates of the same Kingdom of England in their Meeting called a Parliament But that he thought himself most safe in the Pope's Confirmation is clear for that in the Thirteenth Year of his Reign he procured the Bull to be renewed and the Act of Parliament confirmed by Pope Alexander VI. Cotton Lib. ut supra under pain of Excommunication and Curse to such as should upon any pretence whatsoever disturb the Peace of the Nation and create Troubles against the Title of Henry VII Henry VIII in all his extravagant Acts concerning his Queens and the Succession founded them in pretended legal Proximity of Blood according to the due course of Inheritance the pretended want of which was the Ground and Suggestion still for passing those Acts. See 25 Hen. VIII cap. 22. 28. Hen. VIII cap. 7. And 35. Hen. VIII cap. 1. 5. Statut. 1. Mar. Sess 2. cap. 4. Where it hath pleased Almighty God the 6th Day of July last past to call out of this transitory Life unto his Mercy our late Sovereign Lord King Edward VI. by and immediately after whose decease the Imperial Crown of this Realm with all Dignities Dominion Hâ—nours Pre-eminencies Prerogatives Stiles Authorities and Jurisdictions to the same united annexed or belonging did not only descend remain and come unto our most dread Sovereign Lady the Queen's Majesty but also the same was then immediately and lawfully invâ—sted deemed and adjâ—dged in Her Highness's most Royal Person by the due Course of Inheritance and by the Laws and Statutes of this Râ—alm 6. Stat. 1. Jac. cap. 1. The Act of Recognition in the First of King James doth not take notice of Henry VII his Title but of his Daughter Margaret's as descended from Elizabeth her Mother Daughter and Heir to Edward IV. and declare that he was lineally rightfully and lawfully descended or the Body of the most excellent Lady Margaret eldest Daughter of the most renowned King Henry VII and the high and noble Princess Queen Elizabeth his Wife eldest Daugâ—ter of King Edward IV. In consideration whereof the Parliament doth acknowledge King James their onâ—y rightful Liege Lord and Sovereign and further say as being bound thereunto both by the Laws of God and Man they do recognize and acknowledge that immediately upon the Dâ—ssolution and Decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England and all the Kingdoms Dominions and Rights belongâ—ng to the same did bâ—â—â—erent Birth-right and lawful and undoubted Succession desâ—â—nd and come to His most Excellent Majesty as being lineaâ—ly justly and â—lawfully next and sole Heir of the Blood Royal of this Realm as it is aforesaid In the First of the same King there was a Conspiracy formed against him by Persons of divers Persuasions Term. Miâ— 1. Jac. kept at Winchester Watson and Clerk two Priests pleaded it could not be Treason because he was not crowned All the Judges resolved That King James being right Heir to the Crown by Descent was immediately upon the death of Queen Elizabeth actually pâ—ssâ—ssed of the Crown and lawful Kâ—ng of Eâ—gland before any Proclamation or Coronation of him which were but Ceremonies For their Treason they were condemned and executed at Winchester the 29th of November These are impregnable Proofs from thâ— Constitution Laws and Statutes of this Nation what the Right and Title to the Crown is and to whom the Succession is due FINIS
first had Issue Edward his firâ—â— begotten Son entitled and called after the decesse of the seid first Edward his fader King Edward the secund which had Issue and leefully gate the right noble and honourable Prynce Edward the third the tâ—ue and undoubted King of Englond and of Fraunce and Lorde of Irelond which Edward the third true and undoubted King of Englond and of Fraunce and Lorde of Irelond had Issue and leefully gate Edward his first bâ—goten sonne Prince of Wales William Hatfeld secund begotten Leonell third begoten Duc of Clarence John of Gaunt fourth begoten Duc of Lancaster Edmund Langley fiâ—â—h goten Duc of Yorke Thomas W dâ—stoke sixt goten Duc of Gloue and William Windsore the seventh goten The seid Edward Prynce of Wâ—â—es which dyed in the lyfe of the seid Edward King had Issue and leefully gate Richard the which succeeded the same Edward King his Grauntfiâ—e in roiall Dignite entitled and called King Richard the secund and dyed without Issue William Hatfeld the secund goten sonne of the seid Edward King dyed without Issue Leonell the third goten sonne of the same Edward King Dâ—c of Clarence had Issue and leefully gate Phâ—lippe his only daughter and heir which by the Sacrament of Matrimonie copled unto Edmund Mortymer Erle of Marche had Issue and leefully bore Râ—ger Mortymer Erle of Marche his sonne and heiâ—e which Roger Erle of Marche had Issue and leâ—fully gate Edmond Erle of Marche Roger Mortymer Anne and Alianore which Edmund Roger and Alianore dyed without Issue and the seid Anne under the Sacrament of Matrimonie copled unto Richard Erle of Cambrigge the sonne of the seid Edmund Langley the fift goten sonne of the seid King Edward as it is afore specified had Issue and leefully bare Richard Plantaginet commonly called Duc of York The seid John of Gaunt the fourth goten sonne of the seid King Edward and the younger Brother of the seid Leonell had Issue and leefully gate Henry Erle of Derby which incontinent after the time that the seid King Richard resigned the Corones of the seid Reaumes and the seid Lordship of Irelond unrightwisely entred upon the same then beying on lyve Edmund Mortymer Erle of Marche sonne to Roger Mortymer Erle of Marche sonne and heir of the said Phelippe daughter and heir of the seid Sir Leonell the third sonne of the seid King Edward the third to the which Edmund the right and title of the seid Corones and Lordship by lawe and custome belonged To the which Richard Duc of York as sonne to Anne daughter to Roger Mortymer Erle of Marche sonne and heir to the seid Phelippe daughter and heir to the seid Leonell the third goten sonne of the seid King Edward the third the right title dignite roiall and estate of the Corones of the Reaumes of Englond and of Fraunce and of the Lordship and lond of Irelond of right lawe and custume apperteigneth and belongeth afore eny issue of the seid John of Gaunt the fourth goten sonne of the seid King Edward n. 20. The seid title natheless notwithstanding and without prejudice of the same The seid Richard Duc of York tenderly desireyng the we le rest and prosperite of this lond and to set apart all that that myght be trouble to the same and considering the possession of the seid King Herry the sixt and that he hath for his time be named taken and reputed King of Englond and of Fraunce and Lorde of Irelond is content agreeth and consenteth that he be had reputed and taken King of Englond and of Fraunce with the roiall estate dignite and pre-eminence belonging therto and Lord of Irelond duryng his lyfe naturall and for that time the seid Duc without hurt or prejudice of his seid right and title shall take worship and honour him for his Soveraine Lorde n. 22. Item It is accorded appointed and agreed that the seid Richard Duc of Yâ—â—k rejoyse be entitled called and reputed from hens forth verrey and rightfull heire to the Corones roiall estate dignite and Lordship aboveseid and after the decesse of the seid King Herry or when he woll ley from him the seid Corones estate dignite and Lordship the seid Duc and his heires shall immediately succeed to the seid Corones roiall estate dignite and Lordship Item n. 25. For the more establishing the seid accord It is appointed and consented that the Lordes Spirituelx and Temporelx being in this present Parlement shall make â—oothes to accepte take wurship and repute the seid Richard Due of York and his seid heires as above is reherced and kepe observe and strengthen in as much as apperteigneth unto them all the things aboveseid and resist to their power all them that wull presume the contrary according to their estates and degrees The King understanding certainly the seid title of the seid Richard Duc of York just lawful true and suffisant n. 27. by thavis and assent of the Lords Spirituelx and Temporelx and Commons in this present Parlement assembled and by auctorite of the same Parlement declareth approveth and ratifieth confermeth and accepteth the seid title just good lawfull and true and therunto yeveth his assent and agreement of his fâ—â—e will and libertie And over that by the seid avis and auctorite declareth entitleth calleth stablisheth affermeth and reputeth the seid Richard Duc of York verrey true and rightfull heire to the Corones roiall estate and dignite of the Reaumes of Englond and of Fraunce and of the Lordship of Irelond aforeseid and that according to the wurship and reverence that therto belongeth he be taken accepted and reputed in wurship and reverence by all the States of the seid Reaume of Englond and of all his Subgetts therof saving and ordeigning by the same auctorite the King to have the seid Corones Reaumes roiall estate dignite and pre-eminence of the same and the seid Lordship of Irelond duryng his lyf naturall And ferthermore by the same avis and auctorite wolle consenteth and agreeth that after his decesse or when it shall please his Highness to ley from him the seid Corones estate dignite and Lordship or therof cesseth The seid Richard Duc of York and his heires shall ymmediately succeed him in the seid Corones roiall estate dignite and Lordship and them then have and joy any Act of Parlement Statute Oâ—dynaunce or other thing to the contrarie made or interruption or discontinuance of possession notwithstonding And moreover by the seid avis and auctorite stablisheth graunteth coâ—fermeth approveth ratifieth and accepteth the seid accord and all things therin conteyned And thereunto freely and absolutely assenteth and agreeth From this Record it is evident 1. Richard Duke of York exhibited his bare Claim and Title to the Lords only 2. Râ—chard Duke of York did not petition the Lords n. 11. 3. His Council only delivered in a Wâ—iting containing his Descent and Title by Birthright and Hereditary Succâ—ssion and nothing else 4. The Matter was so high the Lords could not answer it
in her Son after the Eldest was taken away so much the unalterable Right of Succession was then understood But saith Flor. Wig. there was a great Contention amongst the great Men about the choice of the King A. 975. How could there be any dispute if they knew the Constitution of the Kingdom to be that the next Heir must inherit the Crown HISTORY Flor. Wig. f. 607. A. D. 975. De rege eligendo magna inter regni primores oborta est dissentio Quidam namque Regis filium Edwardum quidam autem fratrem illius elegerunt Ethelredum Quam ob causam Archipraesules Dunstanus Oswaldus cum Corepiscopis Abbatibus Ducibusque quam plurimis in unum convenerunt Edwardum ut pater ejus praeciperat elegerunt electum consecraverunt in Regem unxerunt There was a great Contention amongst the prime Men of the Kingdom about choosing or setting up a King Some were for Edward some for Ethelred For which cause the Archbishops Dunstan and Oswald with their Suffragans the Abbots and very many great Men assembled and chose Edward as his Father had commanded consecrated and anointed him King From what hath been said before it appears those that would have set up Ethelred against the Right of Succession and against Edward King Edgar's eldest Son were his Stepmother and her Party the others that opposed her Design and kept fast to Edward were for the Right of Succession with the last the Parliament as the Constitution then was or the Great Assembly of the Nation that is the Archbishops Bishops Abbots and very many Noblemen concurred and chose or recognized and crowned Edward their King whom his Father at his Death Regni morum Haeredem reliquit Ibidem left Heir of his Kingdom and Temper It cannot be thought but this Assembly understood the Constitution of the Nation and yet there arose a dispute about the Succession The best Laws in the World cannot keep Men from being wicked nor secure the Government from the Attempts of Intruders and Usurpers when they think they have Opportunity and Means to set themselves up let the Constitution be never so clear and well known If the Author would have look'd into or considered the cause of this Contention about the Succession he might as well have asked how can there be any Intruders against the known Constitution as how could there be a Dispute about the Succession M. Westminster says A. D. 977 Edward retained only the Name of a King and by the Flattery of his Stepmother he permitted to her and her Son Aethelred the Transaction of all the Affairs of the Kingdom Ibid. A. D 978. Flor. Wigâ—eod Anno. Yet so powerful a thing and so agreeable to the Constitution was Succession by Birth right that for the establishing her Son in the Throne the very next Year she caused Edward to be murthered and triumph'd at his Death The next are his Danish Instances These People had the Sword only for their Title and staid but Five and twenty Years or thereabouts Nor can any Man affirm from our Historians what the Constitution of the Kingdom was then as to the Government or Governours and the manner of and chief prâ—tence to the Succession was Donation as hath been noted before to which the Reader is referred Edmund Ironside the true lineal Saxon Heir made an agreement with Canutus and divided the Kingdom with him who had no other pretence to the Throne than his Father Swane's Conquest and his own Army of Danes to make it good After the Death of Edmund the Bishops and English Nobility sware they would have Cnute for their King would humbly obey him and pay his Taxes for his Army â—â—id A. D. â—16 f. 18. Eique humiliter obedire vellent suo exercitui vectigalia dare Let the Author say whether it were not Force and Fear made these Men swear The Author's Words p. 17. After the death of Canutus a new difference arose about the Succession 〈◊〉 1055. some were for Harold his supposed Son by Algiva others for Hardecnute his Son by Emma HISTORY After the Death of Cnute â—almsb l. c. 12. f. â— b. n. 50. 43. a lin c. Elegerûnt Haraldum Dani Londoniae cives qui jam penè in Barbacorum mores propter frequentem convictum transierant Angli diu obstiterint magis unum ex filiis Ethelredi qui in Normanniâ vel Hardecnutum filium Cnutonii ex Emma qui tunc in Danemarchia erat regem habere volentes The Danes and Citizens of London who were almost become barbarous by their Converse with them chose Harald the English opposed and had rather have had for their King one of the Sons of Ethelred who were then in Normandy or Hardecnute the Son of Cnute by Emme who was then in Danemark Earl Godwin who profest himself Tutor or Curator of the Children pupillorum Tutorem se professus headed the English but at length being unequal in Force and Number gave way to violence sed tandem vi numero impar cêssit violentiae All Historians concluded Harald to have been a Bastard yet without doubt he had a very great Command in his Father's Army which set him up and it may be with the Assistance of the complying English The Author's Word's p. 17. If the Lineal Succession were a part of our Constitution how come such perpetual Disputes to be concerning it For if it had been own'd as a Fundamental Law the right of Succession must have been clear beyond dispute What may be said to the Reasoning of the Author The Author would be thought to have read much History but certainly he never considered what he read Did he in all his reading never meet with Usurpers Invaders and Intruders Did he never read of Men that above all things desired to be Kings though they knew they had no right to be so Did he never read of the Attempts of such Men to make themselves so and that some have failed and others succeeded in those Attempts Did he never read that such Men always had Abbettors and a Party to carry on their Designs Did he never hear of such wicked Men as have acted contrary to the light of Nature and their own Consciences or to the great Rule of all Mankind Do as you would have others do unto you The Fundamental Law of Succession may be as clear as the light it self yet Invaders though they know it will not see it nor do think themselves bound by it but their whole Contrivance is how to evade baffle and enervate that Law and every other Law that stands in their way and yet pretend to advance the Publick Interest the Common Good of the People when they intend only to set up their own and the Interest of the Party against the known Laws of the Nation If these things have frequently been they may be so again 'T is the Invader and Intruder makes the Dispute not the
were his Saxon and Danish Instances and whatever appears by those Instances to have been done was done by a Party as hath been shewn from undoubted History and not by Representatives of the Nation yet such Party or Parties he calls the States of the Realm as his Tutor Robert Parsons the Jesuit alias Doleman hath taught him especially in the 4th 7th 8th and 9th Chapters of the first part of his Conference about the Succession to the Crown of England where are to be found all the Author 's Saxon and Danish Instances urged and applied in the same manner and to the same purpose as they are in this Author and also his two Norman Instances that of Maud the Empress Hen. 2 and King Stephen the other of the two Houses of Tork and Lancaster in his Second Part of the Conference cap. 2. and 3. and likewise in Mr. Pryns first Part of the Sovereignty of Parliament and Kingdom p. 7 8 9. and the two Norman Instances p. 94 95. Mr. Pryn followed Doleman who says all Kings that take Coronation Oaths are Elected Conf. of Success part 1. cap. 5. and all Invaders or Intruders that set up themselves by the help of a Party only were Elected and set up by the States or Commonwealth Those Parties the Jesuit calls the State or Commonwealth Mr. Pryn calls Parliament or Kingdom in the very same Instances but this Author is best pleased with the Jesuits Expressions and useth them most frequently But if he had consider'd what Mr. Pryn hath written since the year 1648. and in that year against his own former Notions and Opinions about the Sovereignty of Parliament and Kingdom c. especially his Plea for the House of Lords his four Parts of a brief Register of Parliament Writs his Animadversions upon Coke's 4th Institute and many other Writings and the Epistles to them He would never have Publisht such Instances baffled by him and many others If the States as he calls them had had upon the Consideration of Publick Good the Power he speaks of and that it was known and legal or if the Crown had according to the Constitution been at their Disposal supposing the Saxon Estates had freely chosen Canutus as he vainly Asserts what could prompt him to cause Edwin Flor. Wig. A. D. 1016. Edmond Ironside's Brother to be murder'd and to send his two Sons Edward and Edmond to the King of Sweves that they also might be murder'd And if the Succession had not been notoriously wholly and completely Hereditary what need he to have feared the Title and Succession of the Sons and Brother of Edmond if it had been true what the Author insinuates that he was legally Elected and upon account of the Publick Good Besides imposing Parties small Numbers and Factions upon his Readers and calling them the States he hath another pretty knack of imposing upon them by telling them Oaths made to foreign Kings such as the Danes were and forced upon the Nation by Foreign Armies was transferring of Allegiance as if the People then were wonderfully pleased and satisfied with their new Masters From these Instances and Topicks he might as well have proved that because this Nation hath been overrun and possest by Saxons and Danes with their miscellaneous Assistants therefore it may be expedient it should be so again They seem to be Arguments to encourage such another undertaking rather than any thing else After the Saxon Constitution he comes to the Norman and there makes only two Instances The words of the Author p. 20. The first Instance I shall bring is in the Case of the Oath taken to Maud the Daughter of Hen. 1. in the Thirty first year of his Reign and there is no question but he designed signed her to succeed him Malmsb. Hist novest l. 1. p. 100. 105. 2. legitima perenni successione as Malmsbury's words are but Stephen who had before sworn Allegiance to her watched his opportunity and by the help of a Party made by his Brother the Bishop of Winchester he was Crowned King and although at first Malmsbury saith but three Bishops and very few Noblemen joyned with him yet he soon after saith that most of them went into him and even Robert of Gloucester King Henry the first 's natutural Son took an Oath to him but with the Condition of his preserving his Honour and Covenants There are several things worth our observation in this affair with respect to the Oaths of Allegiance HISTORY Malmsb. f. 99. a. n. 30. Anno 27. Regni sui Rex Henricus Angliam venit mense Septembri adducens secum filiiam suam c. In the 27th year of his Reign King Henry came to England in the Month of September and brought with him his Daughter He called together at Christmas a great number of the Clergy and chief Men of the Kingdom at London and being much grieved he was like to have no Children by his Second Wife the â—uke of Lorrain's Daughter he was very thoughtful about a Successor and having a long time before deliberated about that matter Tunc in eodem Concilio omnes totius Angliae Optimates Episcopos etiam Abbateâ— sacramento adegit obstrinxit ut si ipsi sine haerede masculo decederet Matildam filiam suam quondam Imperatricem incunctanter sine ulla retractatione Dominam reciperent Then in the same Council he bound all the chief men of England the Bishops also and Abbats by Oath that if he should die without Heir Male they should forthwith without retraction or revoking their Oath receive his Daughter Maud late Empress for their Queen Having before told them what a great loss the Nation sustein'd by the death of his Son William to whom by right the Kingdom belonged and now that his Daughter survived to whom only the lawful Succession was due from her Grandfather Uncle and Father that were Kings and from the Stock of her Mother many Ages Ibid. n. 40. cui soli legitima debeatur successio ab avo avunculo patre regibus a materno genere multis retro seculis siquidem ab Egbirtho West-Saxonum rege c. For from Egbert King of the West-Saxons who first subdued the other Saxon Kings in the year 800 during the Reign of * The Historian doth not reckon the Danish Kings amongst them there were 14 Saxon Kings beside them Ibid. n. 50. b. lin 1. c. Ibid. f. 100. a. n. 40. Fourteen Kings unto the year 1043. when Edward the Confessor was Crowned King the Line of the Royal Blood never failed nor was there one wrong step or halt made in the Succession nec unquam ejusdem regalis sanguinis linea defecit nec in Successione regni claudicavit All Persons of any moment in this Council did take the Oath first William Archbishop of Canterbury then the other Bishops and Abbats The first of the Lay-men that took it was David King of Scors the next Stephen Earl of Mortaign and Bologn
is made And so the three Bishops thought themselves at liberty to take a new Oath of Allegiance without a Release from the Party concern'd in the former Oath when they had his Authority and that they so had is manifest from the following brief Narrative Stephen was crowned on the Eleventh of the Kalends of January Ibid. f. 101. a. n. 20. Ibid. n. 40. Ibid. b. n. 10. or 22 of December and the Earl of Gloucester came into England after Easter next following and it was after his coming that the Bishops sware Fealty to Stephen Eodem anno non multùm post adventum Comitis juravêrunt Episcopi Fidelitatem regi c. at which time he also swore to preserve the Liberty and strict Discipline of the Church as they were drawn up in a Charter or Grant in which the Pope's Confirmation of his Title is mentioned the beginning whereof runs thus Ego Stephanus Dei gratiâ Ibidem assensu Cleri Populi in Regem Angliae electus a Domino Wilielmo Archiepiscopo Cantuariae Sanctae Ecclesim Romanae Legato consecratus ab Innocentio Sanctae sedis Romanae Pontifice postmodum confirmatus c. I Stephen by the Grace of God by the Assent of the Clergy and People chosen King of England crowned by William Archbishop of Canterbury and the Legat of the Roman See who was his Brother and confirmed by Pope Innocent c. And notwithstanding he was at first set up by the Fraud and Artifice of three or four Persons and the Bishops especially who then govern'd the Nation and that he immediately forced himself upon the then Norman Government by an Army of Foreigners plundring and cruel Flemmings and Britans and home-bred Norman Soldiers that knew not how to live as appears by the History before-recited yet the Archbishops and Bishops suggested to to the Pope Richard Prior of Hagustald or Hextiam Col. 313. n. 30 40 c. in the Body of the Bull. That after the Death of King Henry Religion in England was disturbed turbata est religio in regno Angliae nullum mandatum pacis seu justitia in adjutorio regali vigebat and there was no Royal Command for either Peace or Justice and that the greatest Wickednesses were committed with impunity atque atrocitatem tantorum scelerum comitabatur impunitas and that for the putting a stop to such Evils Stephen was chosen King communi voto unanimi assensu tam procerum quam etiam populi by the common Vote and unanimous Assent of the Great Men and People and crowned by the Bishops and all this was testified by the Letters or Instruments of the Archbishops and Bishops of the Countrey and the Lovers of the Holy Romane Church the glorious King of France and illustrious Earl †This was Theobald Earl of Blois Stephen's eldest Brother Theobald Qâ—emadmodum venerabilium fratrum nostrorum Archiepiscoporum earundem Regionum Amatorum Sanctae Romanae Ecclesiae gloriesi Francorum Regis illustrius Viri Comitis Theobaldi scripta testantur Then upon this recounting the Suggestions the Pope and Title-Maker says Nos cognoscentes Vota tantorum Virorum in personam tuâ—m praecunte divina Gratia convenisse c. We knowing the Votes of such great Men to have concurr'd in the Choice of thy Person by the Guidance of Divine Grace And for these things and his promise of Obedience and doing Honour to St. Peter he confirms whâ—t had been done and grants him the same Honour and Prerogative he had granted to his Predecessor Henry This Bull of Confirmation was directed to King Stephen Innocentius Episcopus c. carissimo in Christo filio Stephano illustri Anglorum regi salutem Apostolicam benedictionem From the precedent Narrative it is evident the Bishops sollicited this Bull of Confirmation and obtained it before they sware Fealty to King Stephen though upon false Suggestions However the Pope knew he was chosen by the Guidance of Divine Grace and the Bishops and Nobility believed him to be infallible or at least had such a D ference to his Confirmation of Stephen that they took themselves to be discharged and released fâ—om their Oaths made to Maud for if this Confirmation was valid her Title was made null and void Maâ—msb f. 108. a.n. 40 50. That such as favour'd Stephen own'd his Title from the Pope it is evident from his Brother the Legat's Speech who left Stephen and adhered to Maud and then revolted from her to him again when he called a Council at Westminster by his Legantine Power wherein chiding Letters from the Pope were read because he had not delivered his Brother Stephen then in Prison in which he was exhorted to do it either by Ecclesiastical or Secular Power After the reading whereof he made a Speech in excuse of his faithless Actions and commanded those present on bâ—hâ—lf of God and the Pope ex parte Dei Apostolici that they should aid the King with their utmost Power who was anointed by the Will of the People and Assent of the Apostolick See voluntate populi assensu Apâ—stolicae sedis inunctum and to excommunicate all Perturbers of the Peace that favoured the Dutchess of Anjou i. e. Maud. If the Author had understood this he would scarcely have ventured upon this Instance to have confirmed his Opinion about the Release and Discharging of Oaths The Words of the Author p. 23. Secondly That upon the Agreement between King Stephen and Henry II. Mâ—â—d her self was set aside and Stephen was to continue King for his Life and Henry II. to succeed him Now if Oaths of Allegiance must not be interperted by the publick Good here are insuperable Difficulties as to the Obligations of these Oaths for the Allegiance was transferred from the right Heir to an Vsurper as Stephen must be owned to have been by thâ—se who deny that Allegiance can be transferred from the right Heir And they must continue Allegiance to the Vsurper for his Life which is repugnant to the nature of our Constitution if it be founded in a Lineâ— and Legal Succession And again Maud to whom they had sworn is set aside and the Reversion of the Crown it entailed on her Son although she was living What may be replied to this The insuperable Difficulties have been overcome before in the Discourse about the Pope's Confirmation of King Sâ—ephen As to Maud's having been set aside it shall be considered in the last Paragraph of this Instance and also something more said of this Publick Good which brought on this Agreement and what it was but it must needs be so because done by the Common-Council of the Nation The Author's Words in the same Page A. 1153. Paris ibid. Matt. Westm and Paris say The Right of King Henry II. was declared by King Stephen in conventu Episcoporum aliorum de regno Optimatum which was the Dâ—scription of a Parliament at that time for as yet the Baronage represented
the Nation which shâ—ws how far the publick Good was thought to be the Measure of the Obligation of these Oaths Gâ—â— Newburgeâ—sis saith L. 1. c. 30. the Bâ—num publicum was the Foundation of this Agreement A. 1153. And M. Westminster that the King and Lords did all swear to it and a solemn Charter was made of it and kâ—pt in a most secure place HISTORY M. W stm A. D. 1153 f. 246. n. 10 Diligentia Theobaldi Archiepiscopi Cantuartensi Episcoporum râ—gni Rex Anglorum Stephanus D x Nâ—â—mannorum Hâ—nricus apud Waâ—ingford talem concordiam inierunt c. By the D ligence of Theobald Archbishop of Canterbury and the Bishops of the Kingdom the following Agreement was made between King Stephen and Henry Duke of Normandy at Walingford King Stephen not having an Heir except only Duke Henry did acknowledge in an Assembly of the Bishops and other chief Men of the Kingdom that Duke Henry had the hereditary Right to the Kingdom of England and the Duke kindly granted that King Stephen should during his Life peaceably enjoy his Kingdom The Agreement was so co firmed that the King him elf and the Bishops then present with the rest of the best Men of the Kingdom sware that Duke Henry after the Death of the King if he should outlive him should enjoy the Kingdom without all Contradiction Oâ— which Agreement there was a Charter made which was kept in a most secure place Ibid. n. 20. This is what the Historian hath in both places cited by the Author The whole Charter is in Brompton Brompton col 1037. n. 60. and begins thus Stephanus Râ—x Angliae Archiepiscopis Episcopis Abbatibus Comitibus Justitiariis Vicecomitibus Bâ—ronibus omnibus fidelibus suis salutem Sciatis quod Ego Rex Stephanus Henricum Ducem Normanâ—â—ae post me Successorem regni Angliae hae edem meum jâ—re haereditario constitus sic e haeredibus suis regnum Ang iae donavi consiâ—mavi Dâ—x vero propter hunc honorem Donationem Confirmationem sibi a me factam Homagio michi Sacramento securitatem fecit scilicet qâ—od fidelis mâ—chi erit vitam honâ—rem meum pro suo posse custodiet per Convâ—ntiones inter nos praelocâ—tas quae in hac Charta continentur Stephen K ng of England c Know ye that I have appointed Henry Duke of Normandy Successor of the Kingdom of England after me and my Heir by hereditary Righâ— and so have given and confirmed the Kingdom of England to him and his Heirs For which Honour Donation and Confiâ—mation made by me to him he gave me Security by Homage and Oath that he would be faithful to me and preserve my Life and Honour to the utmost of his power according to the Agreements made by us which are contained in this Charter Neubrigensis speaking of this Treaty says L. 1. c 30. p. 104. In Paris Ed. 1610. Pâ—acuâ—t inter eos that is the King and Duke solemne salubre colleqâ—ium celebrari ubi amicis mediantibus circa bonum publicum pia prudenti provisione satagentibus pâ—x inter eos caute formata solide firmata est Tâ—ey agreed to have a solemn and wholsome Treaty where by the Mediation of Friends having a pious and prudent respect to the common Good a Peace was warily made and solidly confirmed Ibidem p. 105. Quibus Deo propitio salâ—briter actis Rex Angliam Anglia pacem recepit annis enim jamplurimis fere nudo regis nomine insignis tunc recipere visus est hujus rem nominis quasi tunc primo regnare coepit quia tunc primo purgata Invasionis Tyrannica macula legitimi principis justitiam induit Which things being done by God's Assistance the King received England and England received Peace for having had the bare name of King for many Years now he enjoyed the thing it self and began then first to reign because then the Blot of Tyrannical Invasion being first wiped out he exercised the Justice of a lawful King The Author 's further Words about this Accord p. 22. And thus the Oaths of Allegiance were continued to one that had no Right for his Life and made to one who predended to no R ght but after his Mother who was set aside in this Agreement for we never read that she was present at the Agreement or resigned her Right to the Crown So that here were three Oaths of Allegiance at once that to Maud the Empress that to King Stephen and to Henry II. and yet the general Good of the Nation must give an equitable Sense of these Oaths or there must be Perjury on all sides The Answer to what the Author says about this Agreement and the Exclusion of Maud c. By this Accord it was owned by King Stephen Bishops and Barons which were then the Parliament or Colloquium as the Author confesseth that thâ— hereditary Right was in Duke Henry and he granted that King Stephen during his Life should peaceably enjoy his Kingdom And if the Right was in Henry might he not recede from it if he pleased And the Agreement says he did during Stephen's Life This Retrocession made the Bishops and Barons Oaths to the Agreement lawful and if he had not some testimony of a Cession or Resignation by and from his Mother though not mentioned in the Agreement this Convention could not upon Stephen's Acknowledgment only have own'd his hereditary Right upon Oath And that by Cession or some other way she did quit and leave her Right to govern to her Son 't is most probable from what follows Mâ—nd the Empress Malmâ—b f. 104. a.n. 10. upon the death of her Father and the Invasion of Stephen on the 30â—h of September in the Year 1139 came into England with her Brother Robert and managed the War against him in her own Person her Son being but a Child He was born A.D. 1133. and her Husband engaged in the Defence of Normandy Anjon c. against the King of France Her three great Supports were her half Brother Robert Earl of Gloucester Ranulph Earl of Chester and Milo Earl of Hereford the last Chaon Gervas Col. 1359. n. 10 Col. 1361. n. 10. Col. 1362. n. 10. lin 1. to her very great Grief died in the Year 1143. the second made his Peace with King Stephen 1145. and the first Robert Earl of Gloucester died in the beginning of November in the Year 1146. of an high Fever after he had sent Henry then being about thirteen Years of Age over to his Father into Normandy After the loss of these Friends and Supports the Empress Ibidem Col. 1363. lin 1. wearied out with these Commotions and Wars in England before Lent in the Year 1147. passed over into Normandy chusing rather to live there with her Husband in Peace than undergo so many Troubles In the Year 1149. Ibidem Col. 1366.
of the seid Duc and of more auctorite then eny Cronicle And alsoe of auctorite to defete any maner title made to eny persone And also where 't is said that it is to be leyde ayenst the seâ—â—e title dyvers entailles made to the heirs males as for the Corone of Englond as it may appear by divers Cronicles and Parlements The sâ—id Richard Plantaginâ—t aunswereth and saith that in trouth ther been noo such actes and tailles made by eny Parlement herebefore as it is surmysed but only in the vijth year of King Herry the fourth a certeyne act and ordinaunce was made in a Parlement by him called wherein he made the Reaâ—mes of Englond and Fâ—aunce amongs others to be unto him and to the heirs of his body comyng and to his iiij sonnes and the heires of their bodies commyng in maner and forme as it appereth in the same act And if he myght have obteigned and rejoysed the seid Corones c. by title of inheritaunce discent or succession he neither neded nor wold have desired or mâ—de them to be graunted to him in such wise as they be by the seid acte The which taketh no place nother is of eny force or effect ayenst him that is right enheritor of the seid Corones as it accordeth with Godd's lawe and all natural lawes how it be that all other actes and ordinaunces made in the seid Parlement and sithen been good and sâ—ffisant ayenst all other persones n. 16. Item Where it is thought that if the seid Duc shuld make any title or cleyme by the line of Sir Leonell he shuld bere the Armes of the same Sir Leonell and not the Armes of Edmund Langley late Duc of Yâ—â—k The seid Duc aunswereth and saith that trouth is he myght lawfully have borne the Armes of the seid Sir Leonell here bisore and also the same Armes that King Edward the third bare that is to say the Armes of the Reaumes of Englond and of Fraunce but he absteyned of beryng of the seid Armes like as he absteigned for the tâ—me of purposyng and pursuing of his right and title c. for causes not inknowen to all this Reaume for though right for a time rest and bee put to scilence yet it roteth not ner shall not perish n. 17. Item Where it is alleged ayenst the title of the seid Duc that the seid Herry of Derby at such tyme as he toke uppon him the Corone of Englond said that he entred and toke the same Corone uppon him as right enheritour to King Herry the third and not as a Conquerour The seid Duc therto saith that such saying of the seid King Herry the fourth may in noo wise be true and that the contrarie therof which is trouth shall be largely ynough shewed approved and justefyed by sufficiaunt auctorite and matier of record And over that that his seid saying was oonly to shadow and colour fraudulently his seid unrightwyse and violent usurpation And by that moyen to abuse deceyvably the people stonding about him Item The Saturday n. 18. the xvij day of this present Parlement it was shewed unto the Lords Spirituelx and Temporelx being in this present Parlement by the mouth of the seid Chaunceller that the seid Duc of York called besily to have hasty and spedy aunswere of such matiers as touched his title aboveseid And how that for as moche as it is thought by all the Lordes that the title of the seid Duc cannot be defeted and in eschewing of the grete inconvenients that may ensue a meane was found to save the King's honour and astate and to appease the seid Duc if he wold which is this That the King shall keep the Corones and his â—state and dignity roiall duryng his lyfe and the seid Duc and his heirs to succede him in the same Exhorting and stering all the seid Lordes that if eny of them cowde finde eny other or better meane that it might be shewed whereuppon after sad and ripe communication in this matier had it was concluded and agreed by all the seid Lordes that sith it was soo that the title of the seid Duc of York cannot be defeted and in eschuing the grete inconvenients that myght ensue to take the meane above-rehersed The othes that the seid Lordes had made unto the King's Highness at Coventre and other places saved and their consciences therin clered and over that it was agreed by the seid Lordes that the seid meane shuld be opened and declared to the King's Highness And forthwith they went towards the King where he was in his Chambre within his Palice of Westminster and in their goyng out of the Parlement-chambre the seid Chaunceller asked of the seid Lordes that sith it was soo that the seid mean shuld be opened by his mouth to the King 's good Grace yf they wold abide by him howsoever that the King toke the matier and all they aunswered and said Yee All these premisses thus shewed and opened to the King's Highness he inspired with the grace of the Holy Goost and in eschuying of effusion of Christien blode by goode and sad deliveration and avyce had with all his Lordes Spirituelx and Temporelx condescended to acord to be made betweene him and the seid Duc and to be auctorized by thauctoryte of this present Paâ—lement The tenour of which accord hereafter ensueth in maner and forme following Concordia facta inter Regem p aefatum Dâ—cem n. 19. Blessed be Jesu in whos hand and bountie restith and is the peas and unitee betwixt Princes and the we le of every Reaume thurgh whos direction agreed it is appointed and accorded as followeth Betwixt the moost mighty Prynce King Hâ—rry the sext King of Englond and of Fraunce and Lorde of Irelond on that oon partie and the right high and mighty Prince Richard Planâ—aginet Duc of York on that other partie upon certaine matiers of variaunce moeved betwixt them and in especiall upon the cleyme and title unto the Corones of Englond and of Fraunce and roiall power estate and dignite apperteigning to the same and Lordship of Irelond opened shewed and declared by the seid Duc afore all the Lordes Spirituelx and Temperelx being in this present Parlement The seid agrement appointment and accord to be auctorised by the same Parlement This is the same verbatim with the Writing put inâ—o the Parliament n. 11. First Where the seid Richard Duc of York hath declared and opened as above his seid title and cleyme in manere as followeth That the right noble and worthy Prince Herry King of Englond the third had issue and leefully gate Edward his first begoten Sonne born at Westminster the XV Kalends of Juyll in the Vigill of St. Marc and Mercellian the yere of our Lorde MCCXXXIX and Edmund his secund Sonne which was borne on St. Marcell day the yere of our Lorde MCCXLV The which Edward afâ—er the deth of the seid King Herry his Fader entitled and called King Edward the
nor enter into Communication thereof without the King's Command Agreement and Assent 5. The King consented and prayed and commanded the Lords to search and find out what might be opposed to the Duke's Claim and Title 6. They sent for the Judges to advise what might be said against the Duke to fortifie the King's Right 7. The Judges excused themselves for that the matter was so high and touched the King's high Estate and Regality which was above the Law and passed their Learning wherefore they dare not enter into Communication thereof 8. The Loâ—ds upoâ— this Answer of the Judges sent for the King's Serjeants and Attorney and gave them the same Command who made the same Excuse the Judges had done but the Lords would not take it Whereupon the Articles and Reasons against the Duke's Claim and Title were exhibited n. 13. 9. The Authour p. 22 23. That in the Articles and Reasons against the Duke's Claim and Title theâ—e is not the least word of Phileppe's being illegitimate or that her Fâ—ther was divorc'd from her Moâ—her nor is there the least mention that the House of Lancaster claimed by Prescription of sixty years Possession which comes from Doâ—eman and the Authour is to find out both these things in the Parliament Rolls or be guilty of downright Falshood for he reports them both as pleaded against the Duke's Title As to the first there needed no other Argument if it had been insisted on and could have been made good And as to the second neither was it insisted on or mentioned as was said before and if it had Nâ—llum tempus occurrit Regi would have been a sure Rule in this Case For it is absurd to think that Prescription at least so shâ—â—t a Prescription as this could justifiâ— a wrong and make a Title in this Case for there is another Rule of Law Non confiâ—matur Tractu temporis quod de jure non subsistit no length of time makes that lawfull which was not so from the beginning If there be a right Heir of the Crown that claims or else would claim but that he wants either notice of his Right and Title or Power to make it good or forbears to claim for other sufficient Reasons Vide n. 16. here Prescription signifies nothing 10. It was allowed at least not contradicted that all Persons and namely the Peers and Lords might and by the Laws or God and Man ought to help and assist him in Truth and Justice n. 14. 11. It was the Judgmeâ—t of all the Lords that the Title of the Duke which was onely Succession by Birthright and Proximity of Bloud could not be defeated 12. That Richard Duke of York was by King Henry and the Lords acknowledged as very and rightfull Heir to the Câ—own and that he was so to be called 13. That the mean found out to save the King's Honour and appease the Duke if he would was not or could be imposed or forced upon him but he was at liberty to accept or refuse it and was no ways bound but by his own coâ—sent n. 18. 14 The Oath that Richard Duke of Yâ—rk took was in pursuance of the Agreement and any man may lawfully take an Oath to make good a Bargain where no man receives Injury but himself and so with his consent that is injured any other Person concerned in the Agreement may swear to the observation of it Pag. 24. Lastly The Weal Rest and Prosperity of the Land which the Authour calls the Publick Good followed this Agreement and the Reason was that the Câ—own was restored to the right Heir whereupon all Murmuring Hatred Sâ—â—â—e and Contention amongst the People and Evil-will and Contrivances againsâ— one another ceased These are all the Instances the Authour useth yet two are wanting the Successions of Edward III. and Hen. IV. but seeing he may have peruâ—ed an excellent Treatise bearing the Title of the Grand Question he may haply be convinced by what the learned Authour hath said Pag. 80 81 83 85 86. that they were both Vsurpers the first during his Father's Life the second from the very time he took upon him Kingship The Authour's Words p. 29 30. There are three sorts of Persons may be said to have Possession of the Crown an Vsurper a King de jure and a King de facto and because the Distinction betewen these doth not seem to be well understood I shall briefly explain it 1. An Vsurper is one that comes in by force and continues by force 2. A King de facto is one who comes in by consent of the Nation but not by virtue of an immediate hereditary right 3. A King de jure is one who comes in by Lineal Descent as next Heir and whose Right is owned and recognised by the Estates of the Realm The Authour may make what verbal frivolous Distinction he pleases between a King de facto and an Usurper yet de facto they are the very same Let him shew an Example in this Nation if he can of a King de facto set up without an Army or Force or of an Usurper that came in by Force who did not make the Nation own him and though he took upon him the Name and Title by force and the assistance of a Party yet afterwards made the States and People consent to it Was not Edward II. made Prisoner by an Army and afterward deposed and Edward III. in his Father's lifetime set up by such as were under the power of that Army And Henry IV. set up by such as acted and were under the power of that Force Our Laws make no difference betwen an Vsurper and a King de facto according to the Author's description The Author's Words pag. 32. A King de facto according to our Law as I said is one in quiet possession of the Crown by Consent of Parliament without hereditary Right such as Henry IV. V. VI. VII were all thought to be by those who made this Distinction For as far as I can find the Distinction of a King de facto and de jure was then started when the House of York so much insisted on their hereditary Right and so many of our Kings had governed the Kingdom by Consent without it therefore the Lawyers to find a sufficient Salvo for the Kings of the House of Lancaster framed this Distinction of Kings de facto and de jure Records Law and History Rot. Parl. 1. Ed. IV. n. 8. In the First of Edward IV. the Commons exhibit a Petition in Parliament wherein they set forth his Title by Birth-right and Proximity of Blood and say Richard II. was lawfully rightly and justly seated and possessed of the Corone of Englond Roiall Power Estate Dignite Pre-eminence Governaunce and Lordship of Irelond and the same joyed in rest and quiet without interruption or molestation Ibid. n. 9. unto the time that Henry late Eâ—le of Derby sonne of John of Gaunt the fourth goten sonne of King