REFLECTIONS UPON A Treasonable Opinion, Industriously promoted, Against SIGNING the National Association: AND The Entring into it prov'd to be the Duty of all the Subjects of this KINGDOM.

Hoc quidem perspicuum est, eos ad imperandum deligi solitos, quorum de justi­tiâ magna esset opinio multitudinis; adjuncto verò, ut iidem etiam pruden­tes haberentur: nihil erat quod homines his auctoribus non posse consequi se arbitrarentur
Civ. de of. lib. 2.

LONDON, Printed and Sold by E. Whitlock near Stationers-Hall. 1696.

To His Excellency CHARLES Duke of SHREWSBURY, one of the Lords Justices of England, and one of His Ma­jesty's Principal Secretaries of State, &c.

May it please your Excellency.

SINCE among the many subjects of just Praise, which make up your Excellency's distinction, it is not the least, that the true Religion, and Loyalty, are known to have been chosen with a Judgment properly your own; my ambition could not carry me to a fitter Patron for Truths, which are to encounter a strong Pre-possession, in Men taught to object novelty against this Revolution: tho' with as little cause of triumph, as the Papists have for their que­stion, where was the Protestant Church before Luther?

As your Excellency's wise and vigorous dis­charge, of Offices of the highest Trust and Consequence, un­der our only rightful Sovereign, King WILLIAM, revives to France the noted Terrors in the name of Talbot; permit me from thence to take an Omen of Suc­cess, against Arguments supported by the French In­terest, and Power, more than by any colour of reason.

Yet, they who oppose the Right of the present Go­vernment, having pretended to seeming Authorities; [Page] I have used that method, which I hope may be proper for their conviction: giving a short view of what, upon the various Exigencies of the Publick, in all Ages of this Monarchy, has been the uniform Judgment, and regular Practice, of Conventions of the States, and Parliaments, of this Kingdom; in concurrence with se­veral glorious Preservers of the English Liberties.

But, that I may use an Authority, sufficient in it self to justifie our present Settlement; I beg leave to ap­peal to your Excellency's early and eminent Example: which will weigh more, with Persons acquainted with so illustrious a Character, than any Argument from pass'd Times.

And yet, what I here offer, being for the most part, the Result of the Collective Wisdom of the Nation; may not be wholly undeserving of your Excellency's Patrondge: nor can I apprehend, that you will refuse these Fundamental Truths, the benefit of being recom­mended to the World under so Great a Name: which, tho' it will set my faults in the clearer light; if your Excellency shall be thought to bear with 'em, cannot but moderate the Censures, against

Your Excellency's most devoted humble Servant, W. Atwood.

REFLECTIONS UPON A Treasonable Opinion, &c.

THE Enemies of the Peace of these Realms ha­ving handed about a Paper, as the Opinion of a certain florid Gentleman of the long Robe, emi­nent for making New Treasons; and whose Au­thority is said to have prevailed with several to refuse Sign­ing the Associatlon for the defence of His Majesty's Sacred Person, and Rightful Authority; I shall offer what I conceive a sufficient Antidote to the Poyson he would spread, with all his affected softness.

The words of the Opinion, as they have occurr'd to me, are these:

By the Statute of Hen. 7. the Subjects are Indemnified in tak­ing an Oath,The Opinion. or Fighting for a King de Facto: But the Associa­tion is not within the Statute, but an Overt Act of Treason a­gainst the King de Jure, and Punishable as such when he shall be restored.

In refuteing the pernicious Errors contained in this O­pinion, I shall evince,

First, That according to the best Authorities of them, who suppose that there may be a King de Jure, as distingui­shed from a King in Fact; the Right of the supposed King de Jure is not such, as makes any Act against him to be Treason; nor is he King, or has any Right against the King in Possession, or his Issue.

[Page 2] Secondly, That an Association for the Defence of the King's Person and Right, is within the purview of the Stat. 11 H. 7. and that as plainly as an Oath of Allegianee.

Thirdly, That it is not supposed or implyed in that Act, that there was or might be a King de Jure, while an other was King in Fact; but that according to that Act, the King for the time being, is the onely Rightful King.

Fourthly, That the Statute 11 H. 7. is not introductory of any new Law in this matter.

Fifthly, That his Present Majesty is the only King de Jure; and that the late King neither is, nor of Right ought to be, King.

Sixthly, That according to this Gentleman's own Law, he is Guilty of High-Treason against our Sovereign Lord the King.

1.No Treason a­gainst any King but the Regnant, nor has any other Person Right against him or his Issue. The Lord Coke, upon the Statute of Treason 25 E. 3. referring in the Margin to the Statute 11 H. 7. says,

‘This is to be understood of a King in Possession of the Crown, and Kingdom: For if there be a King Regnant in Possession, altho' he be Rex de Facto, and not de Jure, yet he is Seignior le Roy within the purview of this Statute; and the other,3 Inst. F. 7. who hath the Right, and is out of Possession, is not within this Act.’

Sir Mathew Hale says what in substance agrees with the Lord Coke.

‘AHales's Pleas of the Crown, p. 11. King, says he, speaking of the Statute 25 E. 3. de Facto, and not de Jure, is a King withing that Act; and Treason against him is punishable, tho' the right Heir get the Crown.’

Indeed, both those Great Men seem to suppose, or admit, that there might be one who had, or at some time or other might have, a sort of Right, notwithstanding another's being so fully King, that a Conspiracy to Kill, or Depose him, would be Treason.

But it is to be consider'd,

1. That the Lord Coke does not suppose that there may be a King de Jure, while another is King in Fact; unless [Page 3] this supposition is warranted by the Statute 11 H. 7. which, as I shall prove, it is not.

2. The Statute, which in both their Judgments regards only the King Regnant, makes it Treason to Conspire the Death of the King'sNota, In the Act 1 H. 7. restoring H. 6. of the younger House, His Eldest Son Edward, who died in his life time, is called Prince of Wales. Rot. Parl. 1 H. 7. N. 16. Eldest Son, or to violate his Eldest Daughter; for the last of which, the Lord Coke 3 Inst. assigns this Reason, That for default of Issue Male, she only is Inheritable to the Crown.

So that the supposed King de Jure appears to be barred, not only by the Possession of the King in Fact, but even by that Right which is Vested in his Son or Daughter, before either of them have Possession.

And, indeed, That Right which ordinarily would descend to the Eldest Son of the King Regnant, is truly explanatory of all that will be found to have belonged to one, who since E. 4. of the elder branch of the Royal Stock, got Possession, has often been call'd King de Jure; tho', as will appear, in a sence very different from the Modern vulgar Notion: Nor does the Judgment even of E. the 4th's own Parliament, in the least favour the late King: however if it did, later Parliaments in the time of H. 7. have taken away all colour from such pretences.

That the Eldest Son even of the most Rightful Regnant King, was not King upon the Death of his Father, without a Parliamentary Settlement of the Crown upon him before his Fathers Death; nor with it, till the States of the King­dom had actually received and recognized such Son, will appear beyond contradiction: And that the Eldest Son's Right was only a Right to be declared King, unless he was unfit to Reign, or the exigencies of the Publick required the advancing some other Person of the Royal Family.

If a deserving Person was kept back, or one so judged by his own Party, or the Nation, when he prevailed, the least Complement they could make him was, that of Right, he ought to have been King, before he was King; but farther they never extended their Transports of Loyalty, nor ever Authoritatively declared, That he had such a Right as made him King, while another possessed the Throne: And till he got Possession, it was never declared that he had Right. Nor does the setting one aside, before his coming to Pos­session, or after, make any difference in the Nature of the Right in question.

[Page 4] And I shall put it beyond Controversie, that whenever a worthy Person of the Saxon Royal Family, especially of that branch, which for some Successions had been settled as the Regnant Family, was solemnly recognized by the States of the Kingdom, upon the Death, or disability, of a Person who stood forwarder in the Royal Line; the Person so recognized became King de Jure, and no other Person had any manner of Right, unless such as was in Abeiance, or in the Clouds; and, indeed, no where, till Possession brought it to Light and Being.

3. Fully to shew this Gentleman his mistakes, upon the Proof of the 2d and 3d General Heads, Stat. 11. H. 7. c. 1.Statute 11 H. 7. it will be requisite to transcribe the whole; which is as follows.

‘The King our Sovereign Lord, calling to remembrance the Duty of Allegiance of his Subjects of this his Realm, and that by reason of the same, they are bound to serve their Prince and Sovereign Lord for the time being, in his Wars, for the Defence of him, and the Land, against every Rebel­lion, Power and Might, reared against him, and with him, to enter and abide in Service in Battle, if case so require: That for the same Service, what Fortune ever fall by chance in the same Battle, against the Mind and Will of the Prince, as in this Land, some time passed, hath been seen, that it is not reasonable, but against all Laws, Reason, and good Conscience, that the said Subjects going with their Sovereign Lord in Wars, attending upon him in his Per­son, or being in other places by his Commandment with­in this Land, or without, any thing should leese or forfeit for doing their true Duty and Service of Allegiance. It be therefore Ordained, Enacted and Established, by the King our Sovereign Lord, by the Advice and Assent of the Lords Spiritual and Temporal, and Commons, in this present Parliament Assembled, and by the Authority of the same, That from henceforth, no manner of Person or Persons, whatsoever he or they be, that attend upon the King and Sovereign Lord of this Land for the time being, in his Person, and do him true and faithful Service of Allegiance in the same, or be in other places, by his Commandment, in the Wars within this Land, or without; that for the said deed and true Duty of Allegiance, he or they be in no wise [Page 5] Convict or Attaint of High-Treason, or of other Offences for that Cause, by Act of Parliament, or otherwise by any Proces of Law, whereby he or any of them shall now for­feit Life, Lands, Tenements, Rents, Possessions, Heredita­ments, Goods, Chatals, or any other things; but to be for that Deed and Service utterly discharged of any Vexation, Trouble, or Loss. And if any Act or Acts, or other Proces of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance, that then that Act or Acts, or other Proces of Law whatsoever they shall be, stand and be utterly void. Provided always that no Person or Per­sons shall take any Benefit or Advantage by this Act, which shall hereafter decline from his, or their said Allegiance. Here 'tis observable.

1st. That whereas this Gentleman absurdly supposes, that it is Treason to engage to fight against one whom one may lawfully kill; and that one may enter into a contrary Al­legiance, but may not do any voluntary act of Allegiance; it is evident by the Words, that if Swearing Allegiance is safe, so are all voluntary Acts of Allegiance: for the Swearing is not expresly provided for by that Act, or any otherwise than as it is a part of the Duty and Service of Allegiance to the Sovereign Lord [...]: but if Associating for the Defence of the King's Person and Right, be part of the Allegiance due; then that is as much provided for as the Oath is: and con­sequently this Gentleman must grant, that the Statute 11 H. 7. indemnifies the present Associators. That this is part of the Al­legiance due, appears by the Common-Law Oath of Allegi­ance affirmed in the Laws of W. 1. and continued down to this day in Substance and Obligation:Vid. Leges W. 1. c. 52. de fide & obsequio er­ga Regem. according to which, all the Freemen of the whole Kingdom are to affirm with a League [or Association] and Oath, that within and without the whole Kingdom of England, they will be faith­ful to their Lord the King; preserve his Lands and Honors with all fidelity, together with his Person; and defend them against Enemies and Strangers.’

And in an other Chapter of that Law, after Provision, that all Freemen shall enjoy their Estates,Cap. 58. as had been before enacted and granted in a Common-Council of the whole Kingdom, it adds, [Page 6] We also enact and firmly enjoyn, that all Freemen of ‘the whole Kingdom be sworn Brethren [or Associators] to defend our Monarchy, and our Kingdom, according to their Strength and Faculties, and manfully keep the Peace, and preserve the Dignity of our Crown entire: and constantly to maintain Right, and just Judgment by all means, according to their power, without fraud, and without delay.’

What is this but an Association to defend the King and King­dom, against any Person whatever; and by consequence, to declare that the King for the time being, is the only Right­ful King? Since his Person, Crown, and Dignity is to be pre­served by all means in their Power.

This part of the Common-Law is affirmed by the Sta­tute 11 H. 7. declaring it the Duty of Allegiance to defend the King, and Land, against every Power and Might: and therefore as well against Pretenders to Title as others.

2. This Act, expresly indemnifies for voluntary Acts of Allegiance, against the mind and will of the Prince.

3.Proof of the 3d. General Head. It can by no means have been intended or implied by that Statute, that there was, or could be, any other King besides the King for the time being: For,

1. To take it in that sense, would be to make the Statute fight against it self; and not only to admit that he were but [a] King not [the] King; but to require the Subjects to fight, for, and against one and the same Person.

4. H. 7. And his Parliament could not be thought to ad­mit, that he was an Usurper, or a King contrary to Law, or Right. But H. 7. certainly intended to provide for the in­dempnity of those that should pay Allegiance to him, as well as of those that should pay Allegiance to future Kings for the time being. And indeed upon some of the Words it may seem doubtful whether the enacting part was intended to reach beyond his time; and whether any other Sovereign Lord for the time being was intended, but he who was at that time. But if in relation to the King, whose Parliament passed this Act, the King for the time being was supposed to be the only Lawful and Rightful King; it must be so taken in relation to all other Kings for the time being: if either the enacting Part or the Preamble extend to 'em.

[Page 7] 5. If this Act should carry a plain implication, that some other besides the King for the time being, was the King of Right; this would be so far from being for the Security of the King for the time being, (as must have been then intended as well as the indemnity of his Subjects,) that it must needs have the like effect with their Discourses, who will have it, that the present Government is not Rightful, but yet that a sort of Allegiance is due to it, because of God's Authority, tho' contrary to Right.

Whenever these Men speak out, it appears, that they allow no Authority to the King for the time being, but what is derived from the Tacit, or implied Consent, of their King of Right.

But this Jesuitism was not thought of at the making of that Statute.

6. I desire to know what Person besides H. 7. was so much as imagined to be Rightful King, or Queen, of England, when that Act was made? However, whether it can be thought, that in the Judgment of that Parliament, any Per­son besides H. 7. had Right to the Crown; after a former Parliament had Ordained, Vid. Printed Stat. 1 H. 7. Established, and Enacted, that the Inheritance of the Crown of England and France, should be, stand, and remain, in King H. 7. and the Heirs of his Body, and in no other Person? That they held this Settlement to have been duely and righfully made, and that without any relation to his marrying the supposed Heiress to the Crown, appears by three other Acts of the same Parliament. One of which attaintsRet. Parl. 1 H. 7. n. 3. R. 3. for traiterously conspiring against their Sovereign Leige Lord H. 7. AnotherVid. Abridg. Stat. us (que) ad 15 H. 8. indempnifies Men for Trespass or taking Goods, in maintenance of the Title of H. 7. for the time that his Banner was displaied against Richard late Duke of Gloucester, Usurper of the Realm. Stat. 1 H. 7. & 6. Ano­ther goes farther, and indemnifies them who came from be­yond-Sea with H. 7. or were in Sanctuary, or Hidel, for his Quarrel, and Title; and speaks of the Battle against his Enemies, in recovering and obtaining his Just Title and Right to his Realm of England.

Wherein H. Vid. Inf. 7ths Right, and R. 3ds Usurpation consisted, shall afterwards be considered.

[Page 8] 7. When the Parliament 11 H. 7. speaks only of the King, or Prince, or Sovereign Lord for the time being, without giving any discription whereby it should be known who is [the Prince] unless what relates particularly to H. 7. It must be presumed that no King is intended, but he that was the Sovereign, or Leige Lord, in the Eye and Reputation of Law: which as appears by the Case of R. 3. an Usurper, continuing so, was not then taken to be. But who ever was in the Possession of the Throne without Usurpation, was always lawful and rightful King.

8. It cannot be thought the Parliament 11 H. 7. would have made an Act directly contrary to three others of the same Reign; but they would have expresly repealed the former Acts, or have offered some reason to palliate or colour their Proceedings to the contrary.

But take the Statute of 11 H. 7. in this Lawyers Sense, (only with an Exception that as to the Matter in Question it was a Declaratory Law, as the words plainly shew, and it will farther appear) and it is evident that the Statutes a­gainst R. 3. and indemnifying them that acted for H. 7. before the displaying his Banner, as well as after, while R. 3. was in Possession of the Throne, were contrary to this Lawyer's Sense of the Statute 11 H. 7. according to which, they who assisted H. 7. must have acted contrary to their Duty of Allegiance to the King for the time being. Where­fore it plainly follows, that R. 3. was not King for the time being, according to the true meaning of the Statute 11 H. 7. and yet H. 6. who was of the younger House, was in his time the only King for the time being, in the Judgment of that very Parliament which supposes R. 3. not to have been so;Ret. Parl. 1 H. 7. n. 16. Restitutio H. 6. as appears by their reversing the Attainder of H. 6. and declaring the Act of Attainder, to have been contrary to the Allegiance of the Subject, against all right wiseness, honour, nature, and duty, inordinate, seditious, and slanderous; and reversing the Attainders of others for their true and faith­ful Allegiance and Service to Hen. 6. and yet those Attainders were in a Parliament of a King by many supposed to be the only Person that had Right to be King, and that after his being formally recognized by the States, and then in Pos­session of the Power of the Kingdom.Obj.

[Page 9] Obj. But it may be objected, if the Act 11 H. 7. was made only to indemnifie them that paid Allegiance to Rightful Kings, there was no manner of need of it.

Answ. 1. Many needless Statutes have been made in affirmance of the Common-Law, out of abundant cau­tion.

2. It could not be needless to obviate mens fears, upon pretences which might be set up against the King for the time being; by removing the supposal that Allegiance could be due to any body else.

3. The enacting part extends to indemnifie Men, for what they out of Loyalty should do in time of War, against the mind and will of the Prince: for which the caution was but reasonable.

Effectually to prove,3d. Proof of the 4th. and 5th. General Heads. that the Judgment of Hen. 7ths Parliament, That there could be but one Rightful King at a time, except where they were Partners in Power; is ac­cording to the fix'd and known Constitution of this Monar­chy; and that this manifests His present Majesty to be our only lawful and rightful Sovereign Lord; and that the late King neither, is, nor of Right, ought to be King; I shall as briefly as well as I can, give an Abstract of what will ap­pear to any Man, who shall with me carefully compare Records, Histories, Law-Books, Charters, and Authen­tick Manuscripts, from before the fixation of the Monar­chy downwards.

The most antient uncontested Authority of this kind which is allowed us even by the Scotch Writers, who think themselves concerned to blemish our Antiquities,Bede Lib. 1. cap. 1. Ʋbires veniret in du­bium magis de foemineâ, regum prosapiâ, quam de masculinâ fi­bi eligerent. is the Venerable Bede, who died in the year 735. He, speaking of the coming of the Picts into the Northern Parts of Britanny, says, The Scotch gave them Wives, on condition that when any Controversie arose, they should chuse themselves a King of the Female Stock of Kings, rather than of the Male.

Whereby it appears what was his Judgment of the Suc­cessions, where they have seemed most fond of an Inherent Right of Birth.

But as to England, where a King has lest three Sons, Lib. 5. c. 24. An. 725. Bede calls them all Heirs.

[Page 10] Accordingly, he more than once mentions Brothers reigning together asLib. 4. c. 11. Sighard and Frede among the East-Saxons; Susceperunt Subreguli reg­num gentis, & divisum inter se tenuerunt annis circiter decem. whileIb. c. 12. the West-Saxon Kingdom was govern'd by several petty Kings, in distinct Divisions. These Kings probably at that time were Tributary or Feudatory Kings, under the Mercian Kingdom: for in the yearAn. 730. 730 I find King Aetilbalt, stiles himself not only King of the Merci­ans, but also of all the Counties which by the general name are call'd South-Angles, Cart. Orig. in Eib. Cot. subscribing King of Britanny. And in the same year I find an Offa, who stiles himself King of the Mercians, and also of the other Nations where ever round about. By reason of the Inheritance of Crowns belonging to several Sons of Kings, the Kings were so numerous that Bede mentions two Brothers Crown'd Kings even of the Isle of Wight. But when any were Constituted Kings to the setting aside all the old Regnant Family of that particu­lar Kingdom, the Persons so constituted were according Bede Lib. 4. c. 26. Circiter an. 685. Per aliquod spati­um reges dubii, vel externi dis­perdiderunt, do­nec legitimus Rex Victred &c. to Bede, Strangers, or doubtful, by way of distinction from Lawful Kings. And yet all the Kings of the several King­doms were descended from Woden, from which Common-Stock they all took their Qualifications for an Election, as afterwards the West-Saxon Kings did from Cerdic, then from Ina, and after that from Egbert.

But generally, I take it, regard was had to that part or branch of Woden's Family, which was the regnant Family within the particular Kingdom, where one of that branch was advanced; according to that Charter of an Offa, where he is stiledMon. 1. vol. f. 28. An. 764. King of the Mercians, descended from the Mer­cian Royal Stock.

About which time I find two KingsIb. col. 1. of Kent, Sigered, and Eadberht, An. 762. governing in severalty. These 'tis likely were Brothers,Ib. col. 2. alt. cart. but Eadberht, who became King of all Kent, upon Sigered's death, or amotion, wasCart. Orig. in Bib. Cot. constituted King and Prince by the whole County. This was above 60 years before the Foundation of the Monarchy was laidAn. 699. by the West-Saxon King Ina. Tho most of the Mo­derns, and many of the Ancients, lay it as late as Egbert's time; the Confessors Laws received and sworn to by William the I. and following Kings, say of Ina, Leges S [...]i Edw. Lamb. Arch. & Bib. Cot. sub. effig. Claud. D. ‘he was elected King throughout England, and first obtained [Page 11] the Monarchy since the coming of the English into Bri­tanny.

His qualification for an Election, the Saxon Cron. Sax. nuper ed. Cu­jus prosapia o­riunda est Cer­dico. Cronicle places in a Descent from Cerdic. ButMalms f. 7. Malmsbury assures us he was advanced rather for his Merit, than his being of the Successive or Inheritable Family,Quam succes­sivae sobolis pro­sapia. and that from him Non pa­rum lineâ Re­giae stirpis ex­exorbitaverunt. to Brictric, the Kings were far out of the Royal Line.

That Brictric was truly elected, appears not only in his bare qualification from theCron. Sax. p. 16, & 61. Stock of Cerdic; but as he was immediate Successor to Kenwolf Cron. Sax. & Bromton col. 770. su­per populum & regnum elege­runt. elected upon the like qualification; and in whose Reign it wasSpelm. Conc. 1. vol. f. 291, 292. ordained, in a National and Legantine Council, ‘that no man suffer the assent of Wicked men to prevail, but that Kings be lawfully elected, by the Priests and Elders of the People: where 'tis manifest, that lawfully does not limit the Election to any other Rule than what follows in that Law, viz. to avoid ele­cting Persons born in Adultery or Incest. The Person law­fully Elected, is there called Heir of the Country. Where [Heir] is plainly used in the Sense both of theFund. Const. 1. part. f. 80. Civil, and of, our Common Bracton l. 2. c. 29. Law, for the Person that comes duely to the Inheritance:Concil. Calchu­thense Legan­tinum & Pan­anglicum An. 787. in this sense all that have been e­lected Kings, have been held to succeed by Hereditary Right. And thus in numbers of Charters in the Saxon Times, and after, Private Inheritances are granted to Men, to leave to what Heir they please; Haeres Patriae. to the Church and its Sacred Heirs; and to the Barons, or Citizens of London, and their Heirs.

To Brictric the first West-Saxon King, after the Peoples Right to Elect, had been declared by National Authority, succeeded Egbert, An. 800. vel Potius 801. who derived after several degrees pass'd from Ingild, Ina's Brother.

It may well be thought, that he was Elected with a Con­sent no less full and formal, than was held essential to his Grants of Lands, one of which wasCart. in Regist. Ab. Bib. Cot. Claud. B. Cum licentià & consensu to­tius gentis no­stre, &c. with the License and Consent of all his Nation, and the unanimity of all the Great men.

Egbert was alive in the year 838 tho' Historians generally suppose him to have died two years before. His SonsFew Histo­rians take no­tice of him vid. tamen Bib. Cot. 1 [Page 12] Ethelstan the Eldest, and Ethelwolf, were Kings in his life time: As I might prove by several Charters, but shall here mention but two; one in the yearEvid. Ec. Cant. inter Decem script. col. 2220. 827. where an Ethelstan subscribes as Monarch of all Britanny; Bib. Cot. Julius D. 2. f. 125. a an other An. 836. where Egbert grants with the Con­sent of his Son Ethelwolf, King of Kent.

In the yearVid. Cart. Orig. in Bib. 838. Ethelwolf succeeded Egbert in the Kingdom of West-Saxony, Cot. eod. An. Egbert & E­thelwolf acting together, both Kings. by a manifest Election, his eldest Brother Ethelstan being then alive, and continuingMon. 1. vol. f. 195. An. 843. Welding ealle Britone. the Monarch or chief King of all Britanny.

Besides the Evidences above, that there was not at that time such a fix'd rule of descent in the West-Saxon Royal Family, as made the Kings eldest Son to be King, or to have a certain and indefesible Right to be King, may appear by the Law or Custom of that Kingdom mentioned byAsser Men. ending with the life of King Alfred f. 156. Asser, andNic. Gloc. in Bib. Cot. Caligula. A. Ending with the life of E­thelwolf. Nicolas of Gloster, and others; not to suffer the King's Wife to be called Queen, or to sit near her Husband: which seems to have occasioned the Ritual for the Consecrating the Wife inRituale in Bib. Cot. Co­ronat Ethelredi & H. 1. consortium regalis thori, for the consortship of the Royal Bed. Till she was so Conse­crated, which was to be in a Convention of the States, or coming from it, she had no more right to the Kings Bed than a Concubine. Of this doubtless W. 1. was aware, when hePictav. de Gestis ejus f. 205. expressed a desire to have his Wife Crowned with him. Certain, it is that the Sons of Kings begotten on Conubines, after they had been elected or adopted by the States, were always held to have succeeded as Rightfully, and to have been as legitimate Heirs, as the Sons begotten in Wedlock; the Mother's being Queen, and by consequence the legitimation of the issue, and capacity to inherit the Crown, having depended upon the will of the States.

But that in Ethelwolf's time, the word Elected was duely applied to English Kings, and upon what qualification, may farther appear by an Author of the Saxon time, who speaking of Eastengle, where Sr. Edmund was Crownd King,An. 855. two or three years before Ethelwolf's death, says, Bib. Cot. Tiber. B. Albas Floriacencis. ‘Over this Province reigned the most holy Eadmund, descended from the Exantiq. Sax. nobili pro­sapia oriundus, &c. Omnium comprovincia­lium. Noble Stock of the Ancient Saxons, &c. who coming from Kings his Ancestors, being eminent for his vertue, with the unanimous favour of all the People of [Page 13] the Province, Exgeneris Successione is not so much elected, by reason of * the Suc­cession, or Inheritance of the Stock, as he is forced to reign over them.’

With in this time Ethelbald, Ethelwolf's eldest Son reigned in his Father's life time, and retained West­Saxony to his share, whilst the bigotted Father havingAsser Men. withdrawn to Rome, tho' animo revertendi, was held to have abdicated, and with much ado prevailed with his Son and the People, to let him be an underling King of an in­ferior Kingdom.

Besides other objections to any right of descent from him, according to a goodCron. de Mailros. Authority, his elder Brother E­thelstan survived. However one or more Acts of Parlia­ment in his life time had provided for three Successions af­ter him, as appears by the Will of his fourth Son Alfred, made in the Presence and with the Consent of all West-Saxony.

That Will recites whatBradies In­trod. f. 359. Dr. Brady calls Ethelwolf's Will, but was aAsser Epi­stola haeredi­taria immo commendatoria. Charter passed in aAppend. vitae Alfredi. General Council, for Alfred is express, that the Inheritance of King Ethel­wolf came to him by Charter thereof, madeIta Haere­ditas Aethel­wolfis Rs. pri­mei ad me de­voluta est, per cartam inde confectam in concilio nostro apud Lange­dene. in a general Council at Langedene. Yet that Charter was but re­commendatory to a future relection; for Ethelbert, who is not named in Alfred's Account of that Settlement, was up­on the Fathers deathEthelwerdi Cron. f. 479. Ordinati sunt filii ejus, &c. ordained King of several of the Kingdoms: and succeeded his Uncle Ethelstan in Cron. de Mailros f. 143. An. 160. Kent. An. 160.

Alfred's Will shews that by the Parliamentary Settle­ment of the Crown, he was to be Partner in Power, when his Brother Ethered should succeed:Append. sup. for which he ap­peals to the Testimony of all West-Saxony; accordingly they are both representedPolycron. R. Higden f. 255. as Kings at the same time.S. Dun. f. 125. 126.

Alfred was Ethelwolf's fourth Son:An. 872. which soever there­fore of his three Brothers left Sons, every one of 'em ac­cording to the vulgar notion, had Right to the Crown be­fore him; and yet that great and good Prince, in the last Publick Act of his Life, expresses a satisfaction in that Inheritance, whichAppend. Sup. De haere­ditate quam Deus ac Prin­cipes cum seni­oribus populi misericorditer ac benigne de­derunt. God and the Princes, with the Elders of the People, mercifully and bountifully gave him.

[Page 14] That Will shews that he had two Nephews then alive, Athelm, and Ethelbalt: who were not regarded in the Suc­cession; butS. Dun. A ducibus & pre­sulibus totius gentis eligitur & non solum ab ipsis verum eti­am ab omni po­pulo adoratur ut eis praeseset. Alfred was upon his Brother Ethered's death elected by all the Saxons.

To Alfred succeeded his Son Edward, by a manifest Ele­ction, having Cousin Germans of at least one Elder House: Asserii An­nales & Hun­tindon. Ethelbald or Ethelwold, who was one of them, was a Competitour with Edward, and was elected by the Danes.

Ethelwerd (who himself descended from Ethered's Elder House) says of Edward, Vid. his Book dedicated to Maud, Wife to W. 1. Indeed the then Successor of the Mo­narchy, Edward, Son of the above-mentioned King, is Crowned after him. He, being of the Royal Stem, was Elected by the Nobility at Whitsuntide,M S. in Bib. one hundred years being pass'd since his Ancestor Egbert had his present Dominion. COT. & Ed.

Where the Right of the Saxon Crown to the Monarchy, Ipse stemmate regali a Prima­tis electus. or Primacy, for even Edward had no more, was laid in perscription: but his Right to the Crown,An. 925. or 924. in an Election upon a qualification from the Royal Stem.

Edward's Son and Successor Athelstan was aMat. West. f. 180. Sel­den's Notes upon Polyolb f. 211. & MS. Bastard, tho' Dr. Brady would have the contrary believ'd, from Malmsbury's tenderness in the Matter; least it should dimi­nish that King's Glory.Lelandi & Wendover MS. in Bib. Cot.

The Saxon Cron. Sax. p. 11. Huntin­don f. 204. Cronicle mentioning the Father's death in Mercia, says, Ethelstan was elected King by the Mercians. Huntingdon says, in Mercia: whither they might have flock'd from other Kingdoms.

To Athelstan succeeded his Father's eldest lawfully be­gotten Son, Edmund. Electus est Rex in Merce.

Tho' Edmund had Sons,An. 944. Eadred Bib. Cot. his Brother succeeded: and that as an Author of those Times affirms, in the Right of a Brother. Vitel. D. 15. vita sti Dun­stani Autore Osberno Dorob. edit. Inser script. sub nomi­ne Anglia sacra. Successst in iure frarris.

And anBib. Cot. Cleopat. B. 13. Author of like antiquity, whose words are transcribed by others since the reputed Conquest, says,

The next Heir Eadred, took upon him the Natural, or He­reditary Kingdom, by succeeding his Brother.

Where the Uncle is plainly accounted the next Heir fit to Reign.

[Page 15] And yet theVid. Enqui­ry said to be Dr. Bradies, p. 14. and the Doctors Introd. f. 364. Enquirer and Dr. Brady, absurdly sup­pose, that Eadred was only Tutor, Curator, Regent, or Protector, of the young Princes, and Kingdom.

Which was far from the meaning of that ancient Au­thor, who blames the eldest of those Princes for preten­ding to succeed his UncleBib. Cot. before he had been elected; tho' both with Clergy and Laity, Sup. An. 955. one Elected supplied the Num­bers and Names of the Kings:Post hunc sur­rexit Eadwig regnandi gratiâ poliens: licet in utra (que) plebe Regum nume­ros & nomina suppleretelectus that is, no Man was accounted King, who was not Elected; speaks of the day of the com­mon Election; what Authority the States exercised over him for his egregious folly on that day; and his being cast off by the Northern Part of the NationQuoniam in commisso regi­mine insipien­ter egit. because he foolishly ad­minister'd the Government committed to, or entrusted with him.

He being forsaken by anIb. Hoc ita omnium conspi­ratione relicto, elegere sibi Do. dictante, &c. Universal Conspiracy or A­greement, they, says that Author, the Lord so dictating, Elected his Brother Edgar.

After Eadwig's death, the same Author says, EdgarIb. Et regnum ipsius velut aequus haeres abutro (que) populo electus. took his Kingdom upon him, being Elected by the People of both Kingdoms, as equal Heir to both.

As an otherBib. Cot. Author has it, he was elected by all the People of England.

To Edgar succeededAn. 975. his eldest Son Edward the Mar­tyr: who, whatever many of the Moderns, and some of the Ancients may have thought, was undoubtedly a Ba­stard: which is not only shewn by anOsbernas sup. Author of the Time;Vitellius. A. 20. but is confirmed by the Brother Ethelred's Charter: which informs us that the Election of the States preferred his Brother: as the Charter has it.

Bib. Cot. The Great Men of both Orders elected my Brother King:Regist. Magn. and gave me Livery of the Lands belonging to the Kings Sons:Abendoniae sub Effig. Claud. B. f. 89. b which plamly proves that Edward was a Bastard, the Private Inheritance having fallen to the Fa­ther's younger Son. However, this is an undeniable Pre­sident, of an Election: Omnes utrius (que) ordinis Optima­tes ad regni gu­bernacula mo­deranda fra­trem meum and yet for the reason above, it may well be said, that Edward was leftm Heir of his Fa­ther's Kingdoms, as well as Vertues: which Historians since4 [Page 16] the time of W. Ar. 979. 1. transcribed from one of the Writers of Sr. Dunstan's Life.

That Ethelred who succeeded the Martyr was truly elected, appears beyond contradiction, by theBib. Cot. sub Effig. Clau­dii A. 3. Ritual of his Co­ronation:Ab Episcopis & a plebe electus. which requires that the King being elected by the Bishops and the Plebs, or Commonalty, take his Corona­tion Oath: after the Oath taken, the People are solemnly ask'd, whether they will have him to be King: they an­swer, Ib. volu­mus & concedi­mus. we will and grant; they pray to God to bless his Servant, whom they have elected King; and in an other place, they pray God to bless this Benedic domine hunc pure electum Principem. purely elected Prince.

To this time the Danes possessed great part of England; and Swane, Firmatum est pactum inter Regem & popu­lum suum & firma amicitia: jure jurando e­tiant statutum est, ut nunquam amplius esset Rex Danus in Arglià. King of Denmark, Landing with an additional Force, this, with Ethelred's sloath and unacceptableness to his own People, drove him to an Abdication.

Upon Swane's death, the English invited back the Abdi­cated King, Bib. Cot. Domition A. 8. sup. on condition he would govern better than he had done: for which his Son Edward undertook. Ethelred returning, as an Author who lived about the time has it, a contract was established between the King and his Peo­ple; and firm friendship; and it was enacted with an Oath, that there never more should be a Danish King in Eng­land.

AfterAn. 1015. or 1016. this Cnute the Son of Swane laid claim to the Crown of England as a Saxon, as well as Dane, deriving from KingKnighton f. 2320. Misit clameum, &c. Ethelbald; who, doubtless was that Son of an elder Brother of King Alfred, who oppos'd Edward the elder.

Notwithstanding this, tho' theMalms f. 39. Dani Cnutonem eli­gunt. Danes elected Cnute, the English adhered to Ethelred.

Upon whose death they chose his Son Edmund Ironside, who, asInternal, vid. Argl. Saer. Hist. Maj. appears by the stream of ancient Authorities,Winton' Cujus­dam Ducis fil. nomine Al­givam accepit, in Concubinam, exqua genuit filium nomine Edmundum Ir [...]side. Et was a Bastard.

Upon (i) Edmund's death, Cnute was Crown'd King of England by the Election of all; and accordingt to Florence of Woster, he swore to be Faithful Lord, as the People did to be Leige Subjects. 6

[Page 17] At Cnute's death, his two Sons, Harold, who was aIngulfas f. 58. Bastard, or rather, Spurious, and Hardecnute his legitimate Son by Emma, Ethelred's Widow, wereLeofric Comes & tota nobilitas ex­parte Aquilonis fluminis Tame­siae elegerunt Haroldum & Hardecnut fra­trem ejus &c. by Leofric and all the Nobility on the North-side of the River Thomes, elected Kings over all England; as partners in Power, and co-heirs. But Duke Godwin and other Noblemen in West-Saxony opposed, and prevailed.

It appears by an Author who wrote in the Con­fessor's Time, and whose words are transcrib'd by several, that they prevailed for the total rejection of Hardecnute; because he made not sufficient haste to take the Admini­stration upon him. Therefore Harold, (who, however, would have been King of Mercia, Edw. Conf. and the Northumbrian Kingdom) was elected over all England, Vid. etiam ib. by the Princes, and all the People:Cleop. A. 7. orBib. Cot. Abbrev. Cron. fin' temp. as an other of like antiquity has it;Cron' breve ad An. 1062. is elected King by all the People of England. Upon Harold's death,Haraldus: Rex eligitur ab om­ni populo Angl. and not before, Hardecnute was received: in what manner appears by the then standing Ritual, for the Co­ronation of Kings.

But Emmae's Sons by Ethelred, Alured and Edw. Malms f. 43. as Malms. observes, were despised almost by all; rather through the remembrance of their Fathers sloathfulness; than by rea­son of the Power of the Danes. Yet they two, without preference of one before the other, were accountedVid. Scrip. Norm, Eucomi­um Emmae Regno haereditatis vestrae privamini. Heirs of the Kingdom; and accordingly Cnute, Gemet. f. 271. while he was in fear of the then Duke of Normandy, offer'd half his Kingdom to Edward, and his Brother Alured. M. S. cited in Monast. Upon Har­decnute's death, Earl Godwin was chosen Administrator or Protector of the Kingdom, during the vacancy, and till a fit Person should be elected King.1. vol. Regni cura Reginae assensu & Mag­natum consilio Comiti God­wino commitri­tur donec qui digrus esset, eligeretur. & Bib. Cot. Do­mit. A. 13. Cron. Wint. Godwin summons a Con­vention of the States, where he nominated Edward, Ethel­red's only surviving Son by Emma, whom the Saxons call'd Elgive. After some debates, all consented to the election of Edward. He being so elected, was in the sense of those timesh Heir of the Kingdom to the last Possessor Har­decnute, his Brother by the half blood. And yet it is ob­servable, [Page 18] thatCart. An­tiq CC Mon. 1. vol. according to a Charter of Edward's pass'd in Parliament, at the latter end of his Reign, the Hereditary Succession was hazarded by the Danes: that is, according to what I before observ'd,f. 59. Pericli­tata sit haeredi­taria siccessio, magnum (que) in­terstitium inter fratrem meum qui pa­tri meo mortuo successit me (que) habitum fuit. the Anglo-Saxon regnant branch of the Royal Family was kept back, and was likely never to have been restored. 'Tis evident that it was not for Edward to carry this Point farther; for besides the Danish Royal Family, claiming from King Ethelbald; andMat. Par. Fretheric, Abbot of St. Albans in his time, coming from the ancient Saxons and Danes, and lineally descended from King Cnute; there was the HistorianEthelwerd's Hist. Meus atavus. Ethelwerd, or his immediate Ancestor, of the Family of King Ethered: and in all probability,addit. f. 46. there were several descendants ei­ther from Ethelstan, Ethelwolfs elder Brother, or from his Sons Ethelbald, and Ethelbert.

What was the known Law in the Confessor's time, both as to the Succession, and the continuing King, besides the former Evidences, appears beyond contradiction from that King's Laws: according to which.

1. TheVid. sup. of Ina. Monarchy was founded in election: which ex­plains in what Sense a King is there taken to be Constituted.

2. If the King do not answer the end for which he had been Constituted; Nec nomen Regis in eo con­stabit. not so much as the name of King shall con­tinue in him.

3. It receives as aVid. the Antiquity and Justice of an Oath of Abj. p. 90,. & 91. Rule in all Kingdoms, and par­ticularly here, the Judgment of Pope Zachary, encouraging the Franks to depose their King Childeric.

With Edward the Confessor, end the Saxon and Danish Suc­cessions of Kings: Harold, the Son of Earl Godwin, as I shall shew, never was King, nor reputed King by any, but his own Party.

Here I may observe.

1. That Dr. Brady is mightily mistaken in his assertion, that Introd. f. 363. the Saxons did in their subjection, owning of, and sub­mission to their Princs, acknowledge both proximity of blood, and nomination of their Princes, often both, sometimes only one of them; but never followed any other rule.

2. The chief rule of Succession, upon the death, or disa­bility of any King, was a proper election of a worthy Per­son, of the Regnant Branch of the Royal Family.

[Page 19] 3.Introd. f. 364 Dr. Bradie's notion, that Elegerunt, signifies no more than recognoverunt, they acknowledged, owned, sub­mitted unto him as their King, is by no means true;’ the recognition being manifestly subsequent to, or in conse­quence of the election: nor is any thing more plain, than that the States did from the beginning of the Monarchy down­wards, rightfully declare an Heir to the Kingdom, and then acknowledge his Right: tho' neither next upon the Royal Line, nor representing the next; nor yet nominated by the Predecessor. And indeed till a rare and noted instance in the case of Hen. 5. on whom the Crown had before been en­tailed in Parliament; no Prince was known to have been formally recogniz'd, till he had taken the Coronation Oath.Claud. B. 6.

4 If according to any good authority of the Saxon or Danish Times,Reg. magnum Abend. c. 50. it should seem, that any man came to the Crown by the Gift of his Predecessor; An. 931. Pa­triae procurato­ribus. it must have been made with such solemnity as was requisite, even for the granting of Lands. As that ofSup. Egbert's above-men­tioned,Vid. Rot. Par. orBib. Cot. Athelstan's in an Assembly of the Bishops, Abbots, 17 E. 3. p. 1. Dukes, or Earls, and the Procurators, or Represen­tatives, of the Country; m. 20. d. or anIb. ejusdem Tota plebis ge­neralitas. other before the Plebs, A Petition in Parl, from the Borough of Barnstaple, fetting forth that they had been a Borough, and sent Mem­bers to Parl. ever since King Athelstan's Charter. or Commons; or Edgar'sCart. An­ti (que) in Turri Lord. B. in the open air, with the privity of the Great, or Wisemen, of his whole Kingdom.

In the Confessor's life time, there were three Competi­tors for the Crown, Edward, Edgar Atheling's Father, and Son to Edmund Ironside; Harold, who was High Steward of England, and the most powerful of any Man, tho' not his Fathers eldest Son; and William Duke of Normandy, Grand Nephew to Emma, who had been Crown'd Queen of England, nor as has appear'd above, was William under any incapacity from his Bastardy. Besides his Wife Maud was descended from a Daughter of King Alfred, married to Baldwin Earl of Flanders: upon which account, a Com­mentator on the Grand Custumary of Normandy, held him to be the first, or chief Heir.

Edward, Guil. de Roville Erat regni Angtiae primior haeres e [...]. Matilda &c. Son to Edmund Ironside, was at one time de­signed by the Confessor for his Successor, if he could pre­vail with the Nation to consent; but that Edward dying before the Confessor, his Son being a Minor, seems never then to have been thought of.

[Page 20] Harold's design was covert; nor does he appear to have been a Pretender, till the Confessor lay upon his death-bed.

But Duke William had long been promis'd his Cousin King Edward's interest: in order whereunto, we may well believe, he inIngulf. the year 1651. came over to England, and, doubtless, to ingratiate him to the Nation, was by the Confessor carried up and down the Kingdom. In the year 1657. or 1658. the design was brought to bear; and in a Great Council of the whole Nation, William was declared Successor; or as the Law Leges Edw. Regis ed per Lamb. received by him has it, a­greeing with a Charter pass'd in Parl. 15. of his Reign, Cart. Orig. in Bib. Cot. Haredem sibi esse &c. adop­tavit. was adopted Heir; or as another Charter has it, Ed­ward instituted himRot. Pat. 1. adopted Heir. That this Adoption or Institution of an Heir to the Crown, was with a Consent truly National, I shall elsewhere have occasion to prove at large: at present, shall only observe, that the above-cited Law says,H. 6. m. 11. that Edward caused the Kingdom to Regnum praed. nobis ju­rare fecit. swear to William;& cart. Antiq. CC. that Wilnot Earl Godwin's Son, and Hacun, his Grandson, were sent Hostages to William, to secure the future Allegiance of that Family; that Robert, Archbish­iop of Canterbury, and Harold, were successively with the Duke to assure him of his being declared Heir to the Crown; which Harold swore to endeavour to preserve to William. But notwithstanding the Nations and his own Oath; while the Nobility and People were at the Confessor's Funeral at Westminster, Harold got a Party together at Lambeth, where, as some have it, he set the Crown upon his own Head. The mad Englishman, Pictav. ut memini. as a contemporary Writer has it, would not stay to see what the Publick Election would appoint.

Harold's Possession whatever it was, prov'd very short, lasting but nine Months: nor was he ever fully recogniz'd or submitted to by the States, or the Body of the Nation: he never held any Parliament or Con­vention of the States; which I take to be the reason that no Charter of his is to be seen, nor have I met with any men­tion of one: They who fought for him against William, were judged Traytors, and their EstatesVid. Domes­day-Book. forfeited: and it is rightly observ'd by the Lord Coke, that in Demesday, [Page 21] Harold, who usurped the Crown of England after the decease of King Edward the Confessor, is never named per nomen Regis, sed per nomen Comitis Haroldi.

Wherefore he leaves him out of his Lift of our Kings.

William, according to some Authors was encouraged to his attempt, from the consideration that Harold was nei­ther of the Saxon, nor Danish Royal Stock.

When William Landed,Pictav. f. 119. he claimed the Crown from his Cousins Gift,Quoniam omni­um qui genus suum attinge­rent me cre­debat excellen­tissimum. with the consnt of the Nobility of the King­dom, confirmed by Oath: and lays his qualification in be­ing thought the most deserving of all that were nearly related to the Confessor. Harold had nothing to plead against that, but the suggestion, that the Crown had not been setled by a Consent sufficiently formal;Selden's re­view p. 439. that it was made without a Convention, and Law, of the Senate and People: which 'tis no wonder that he should pretend,Abs (que) generali senatus & po­puli conventu & edicto. tho' there were never so formal an Election.

Notwithstanding the Right, with which the Norman Duke Landed, he proffered to submit to what the English should decree; and therefore to a new election if they thought fit. Upon Harold's death, some of the English who dreaded the consequence of receiving William after a bloody Bat­tle, set up Edgar Atheling for King: who, tho' but the se­cond degree from a Bastard, and tho' his Father never had Possession, was look'd upon as the true Heir of the Crown: that is the Person of the last Regnant Branch of the Royal Family, who ordinarily would have succeeded by common consent of the States, if of sufficient Merit; and reasons of State, or other obligations did not inter­pose. But the learnedOrd. vir. f. 525. Edga­rus Adelinus, alii (que) plures ex linea regalis prosapiae. Monk Guitmond, who could bot but know the constitution in this matter,Fl [...]. Wig. Fideli [...]tem juraver [...] quibus & ipse faedus p [...]pigit R. de Diceto col. [...]80. held him to be but one Heir among many of the Line of the Royal Fa­mily. However the generallity of the Clergy thought themselves bound to maintain the Title with which King William Landed, and that'twasWats Ad­vers. ad Mat. Par. Rebellion to oppose him: yet before his being received for King, he at Berkhamsted made a League, Bronton col. or Contract with the People, headed by the Great Earls,958. s. Dun. f. 195. Edwin, and Morcar; who came up with the Forces from the North, which had never been in the Bat­tle [Page 22] against the Duke.Cuncti Praesules reg­ni (que) proceres cum Guil. con­cordiam fece­runt; ae ut di­a lema regium sumeret, sicut mos An­glici princi­patus requirit oraverunt. Part of the League made with the People of England, was, that he should be Crown'd as the manner of the English Government requires: at his Coronation, the consent of the People was ask'd in the due and accu­stomed manner: and the account Historians give of the Oath he then took, shews it to be that which stood in the Saxon Ritual.

After which, he more than once received and swore to that Body of the Common-Law of England, which had obtain'd the name of King Edward's Laws: which, as has been observ'd, declare the end for which a King is Constituted, and that he loses the Name, or ceases to be King, when he answers not, that end.

Indeed Dr.All the Liber­ties and Privi­ledges the Peo­ple can pretend to were the Grants and Concessions of the Kings of this Nation, and derived from the Crown. Brady, who is as free with his Conquerors Memory, as with the Liberties of England; Pref. to his compleat Hist. which he calls the Grants and Concessions of the King of this Nation; will have it, that William the I. regarded his Oath only in the beginning of his Reign, and that by no­torious violations of his contract, with the People of England, he acquired the Right of a Conqueror; and there­by put an end to the ancient Constitution of this Monar­chy, and those Liberties and Priviledges of the Subject, which manifestly appear to have been of elder date than the Monarchy. Introd. f. 13.

Upon which,shall prove from undeniable rea­son and autho­rity that he go­vern'd the Na­tion as a Con­queror, and did so take and re­pute himself to be. if one would return the Freedom of his c Censures against others, it might be said, that this was not only to make the then King the Successor of a Con­queror; but with a prospect of applying the Rights which he ascribes to a supposed Qonquest, to justifie what should be practised upon the late intended Conquest of this Nation.

That the Judgment and Practice of William the I.f. 14. This appears first by his bringing in a new Law, and imposing it upon the People, and 'tis clear he did this. was very contrary to the Doctor's Imaginations, will be9 [Page 23] proved by numerous Instances; and that it was so as to that part of the Constitution which concerns the Succes­sion to the Crown, appears by that King's Death-bed Dec­laration: which some would set up for a will, disposing of the Crown at that very time when he owns that it is not his to give.

I, says he,
Ord. Vital Selden's Notes Polyolb. and Camden's Brit.
appoint no Heir of the Crown of England, but to the Universal Creator, whose I am, and in whose hands are all things, I commend it; for I did not possess so great Honour by Hereditary Right: but with direful con­flict, and much effusion of Humane Blood, I took it from the perjured King Harold, and brought it under subje­ction to me.

He adds.

Therefore I dare not bequeath the Scepter of this Kingdom to any body, but to God alone; least after my death, worse troubles happen in it by my occasioning. For my Son William, (always as became him obedient to me) I wish that God may give him his favour, and that, if it so please the Almighty, he may Reign after me.

According to this.

1. He had no right, or pretence, to dispose of the Crown.

2. If some would have regarded his disposition; so many would have been likely to assert their liberty, that it might occasion great troubles.19. H. 6. n. 16.

3. Providence only could determine who should suc­ceed:m. 7. per Inspex. which is almost as much as if he said, there is no fix'd or certain right in any body.vol. f. 48. vid. One reason why he pretended not to dispose of the Crown,Dr. B's Introd. was, that he had it not by Hereditary Right, The pretence that he claimed jure haeredita­rio, is idle, un­less, it were te­stamentario: for neither was be Heir to Ed­ward, nor Ed­ward Heir to the Crown by Descent. that is, as it came not to him by discent, neither was it disposable like common In­heritances: not but that after he was declared Heir, and admitted King, he had as true an Hereditary Right in the Crown, as any of his Predecessors had: and this is justified by his own and other Charters. InRot. Cart. one, he stiles himself by the Providence of God, and Inheritance of Consanguinity, King of the English. In another, he says, he wasMon. 1. made King by Hereditary Right. In another, he is call'd Heir to Edward by stock and gift: and in Charters of W. 2. and [Page 24] H. 1. their Father is said to have succeeded byMon. 1. vol. f. 98. Hereditary Right.

Indeed oneCart. An­tiq. in Tur. of the Charters of W. 1. seems to con­tradict his Death bed Declaration, or the sense I have gi­ven of it:Lord. F. Et Collectanea for speaking of his victory over Harold, he says, he acquired the Kingdom due to him and his Successors, to be pos­sessed for ever by Hereditary Right. M. [...]ale Mil. in Bib. Hospit. Linc.

Yet this if duely considered is no more, than that by his Rightful Possession, his became the Regnant Family; and the Successions were to be derived from him.

His Son W. An. 1087. 2. being, through the prevalence of the English against the Normans, elected soon after the Father's ddeath; truly succeded upon the old Hereditary Right: and, indeed stood fairer for a recognition than his elder Bro­ther Robert.

Dr.Introd. f. 370. Brady observes out of Knighton, that the Barons of England, Cum plenario consensu & consilio totius communitatis &c. with the plenary consent and counsel of all the Com­munity of the Kingdom, branded Robert with illegitimacy, because he came not from a lawful Bed. No Man, I be­lieve, has imagin'd that Robert was not the Son of W. 1. by Maud, and that after Marriage: but, as has appeared above, till she had been Crowned Queen of England, she was but as a Concubine; and her Issue illegitimate: and thus the very qualification to be elected, proceeded from that election which made the Wife Queen.

H. An. 1100. 1. Upon this account was to be preferred upon the death of W. 1. before the eldest Brother Robert, then alive: yet he did not scruple to own by hisCart. in Mat. Par. Charter, that next to God's mercy, this was owing to the Common-Council of the Barons.

The Ritual Bib. Cot. for his Coronation shews, that he had been elected in a Convention of the States; Claud. A. 3. prays to God to bless him whom they have elected King; De Conventu seniorum &c. and declares his Authority to be delegated to him haeeditario judicio, Et Episcopi prosternant se super pavimen­tum hinc & in­de circa ele­ctum Regem. by an Hereditary Judgment, or Decree, constituting him Heir of the Crown. Till he presumed too far upon the love of the People, and bore too hard upon 'em, they never thought of changing him for his elder Brother: nor was his Possession long disturbed.

[Page 25] He, well knowing that his Issue had no certain Right of Succeeding him, till the States should agree to it, prevail'd upon 'em, to make two Settlements of the Crown succes­sively; one upon his Son William, an other after the Son's death upon his Daughter Maud, An. 1116. and both the Settlements were establish'd by a National Oath.Hemirgford f. 473. But it is observable, that the last was,Gerv. Dorob. if the King died without Heir, say some, without Heir-male, Col. 1337. say others. According to which, with regard to the ancient Constitution, Stephen, Sisters Son to H. 1. when recognized by the States, became within the express Provision of that Settlement.

Agreeably to this, asBib. Cot. sub Effig. Ves­pat. A. 19. we have it from an Author of the Time. H. 1. upon his Death-bed, recommended Stephen to be received by Hereditary Right. And that Au­thor speaks of his Merits,De Monast. joyn'd with his being of the Roy­al Stock, Eliensi. Vt jure haeredita­rio suscipiatis. as inducements to his Election.

As anGesta Re­gis Steph. in­ter Script. other Author has it, because he appear'd fit to Reign,Et de stirpe re­gia descenderat. as well for the Dignity of his Stock, as the probity of his mind, they agreed upon a common Resolution, and all with concordant favour, Constituted him King; a compact being first made, and a mutual Oath, according to the vul­gar expression. Norm.

Maud's Title, tho' under a former Settlement of the Crown, gave him no disturbance, till he either broke his part of the mutual Contract, or at least disoblig'd the Cler­gy: which made his own BrotherMalms. Hist. Nov. f. 106. the Pope's Legate, turn against him,Dorob. Col. 1354. and help to bring in Maud; who refusing toGerv. swear to the Confessor's Laws, was (chiefly by means of the Londoners, who were very powerful at all Elections) rejected,Assensu cleri & populi in Regem electus. and never fully recogniz'd.

At that time election was counted no disparagement to a King's Title: for Stephen Bradies In­trod. f. 371. not only took into his Title Galba. A. 2. by the Grace of God, by the Assent of the Clergy and People,Inter Sermones ad populum. elected King of England; but in anBib. Cot. Assembly of the States, in a memorable Speach, too long to be here inserted,Quid obsti­natius quid perniciosius quam contra voluntatem omnium regni jura violenter abripere. appeals to them,‘who ought rather to succeed in a Kingdom; one whom the unanimous consent of the Nobility, and the University of the People earnestly wish'd for, desired, elected? Or one, whom every Sex, every Age, opposed and cried out against? What more perni­cious [Page 26] than against the will of all, violently to snatch the Rights of the Kingdom? Had Stephen's brave Son Eustace lived, in all probability H. 2. had never succeeded; and however, was glad to come after Stephen, as hisBrompton f. 1024. adopted Heir; as W. Cart. adoprio­nis, Successorem regni Anglie & haeredem meum jure bae­reditario con­stitui. 1. had been, to the Confessor. Neither was Maud's consent ever ask'd to the Settlement, or recognition after­wards, tho' she lived beyond that time: nor did the States take any notice of her pretended Title, after her manifest forfeiture, of all that she could claim by the Settlement in the time of H. 1. or otherwise howsoever. H. 2. knowing that the Consent of the States was the best Title any Child of his could have to succeed him; and yet that they had liberty of altering a Consent, Mat. Par. &c. given upon reasons, which might afterwards sail; out of abundant care for his Son Henry, had him Crowned in his life time; which, through French Counsels, put the Son upon insisting on the Rights of Kingship, Domit. A. 10. to the great clamity of the Nation: tho' the Subjects swore Allegiance to him with anAntiq. Brit f. 130. express Salvo for the Allegiance due to his Father.Lib. Rof. Ibi forma Conven­sionis inter u­aros (que) Reges Fid. etiam Ben. Abbatem Autor. ejusdem temporis. Which, whatever some have thought, orScotland's Sovereignty p. 285. affirm'd, wasBib Cot. Domit. A. 10. lib. Rof. Ibi forma Convenionis inter u­pos (que) Reges Fid. etiam Ben. Abbatem Autor. ejusdem remporis. the only Salvo in the Scotch Kings homage, according to ancient custom, for the Crown of Scotland.

To H. 2.R. 1. An. 1189. succeeded his eldest surviving Son, Richard, but was not accounted King upon the death of his Fa­ther. Authors say, he was to be Walsi [...]gham Ipod. Neustriae f. 45. promoted to be King, by Hereditary Right: which is far from being King by Here­ditary Right. But, as the former usage explains such words, he deserved to be elected and made King, in which sense one ofR. de Di­ceto Col. 647. the Authors who lived at the time, immediate­ly explains himself,Comes ita (que) mentioning his Coronation Oath, after the solemn and due election, Pictavorum Rie. [...]aeredita­ [...]io jure prae­movendus in Regem, post tam Cleri quam populi so­lemnem & de­bitam electio­nem &c. as well of the Clergy as Peo­ple.

Before this, he was at first only Earl of Poictou, and then Duke of Normandy, buth not till he had been solemnly invested with the Sword of that Dukedom. And Bromton informs us, that he accepted the Crown uponi condition of keeping his Coronation Oath; without undertaking [Page 27] which, the Archbishop charged him not to assume the Royal Dignity. He going to the holy Wars after his being Crown'd, his Brother John would have seiz'd the Govern­ment as vacant, but had no tollerable pretence, the War having been carried on with a National Consent. Upon this, it was adjudged by aHoveden de An. 1194. Common-Council of the Kingdom,Per commune consilium regne definitum est. that John should be disseiz'd of all that he held in England, which might extend to such right or expectancy as he had in the Crown.De omnibus tenementis suis.

Notwithstanding which, upon Richard's death, the great Question came upon the Stage, whether the Crown ought ordinarily to go according to the right of Proximity, or of Representation. Descheance.

The right of Proximity was in John, Brother to King Richard: this was the Right which the English seem'd to think most agreeable to the Constitution of this Monarchy; Calls the other mos Britanniae. and is according to theGrand Cust. cap. 25. Custom of Normandy for Suc­cession to that Dukedom; and, asCujac. de feudis f. 519. Cujacius supposes, of most Nations.Dicentes judi­cium esse & consuetudinem iliorum Regio­num. Foreigners were for Arthur of Brittain, as having the right of Representation, being the Son of John's elder Brother: and this was the RightWendover in Bib. Cot. according to the custom of Brittain in France.

But as to the Law of England, it appears byGlanv. tract. Glanvil's account of the Law,de Legibus & cons. as it was taken in the time of H. 2. that even for the Descent of private Inheritances, it was doubtful,rni Angliae lib. 7. c. 3. whether they ought to go to the Grandson, by the eldest Son who died in the Father's life time, or to his next surviving Son.Licet praemori­atur patri suo &c. nulla dubi­tatio est, &c. If indeed the eldest Son had in the Father's life time done homage to the Chief Lord for his Father's Inheritance; [...]unc quidem ita bodie obti­net inter avun­culum & nepo­tem, quia meli­or est conditio possedentis. this was held to remove the doubt. And Glanvil afterwards says upon the Question between Uncle and Nephew, that the condition of the Possessor is the better.

According to which, -King John having obtained Pos­session of the Crown, had it rightfully, and Arthur had no right to turn him out.

John Wendover de An. 1199. being beyond-sea at his Brother's death, sent over the Archbishop of Canterbury, and the Earl Marshal of England, to sollicit for his being admitted to the Throne. [Page 28] These Great Men, with the assistance of the Chief Justice of England, prevailed upon many to swear Allegiance to John: and in a Convention at Northampton, those Persons were Sponsors Wend. Quod jura sua red­deret universis: sub tali con­ventione, Comi­tes & Barones Comiti memo­rato fidelitatem contra omnes homines jura­verunt. for John's doing right to all men: upon which condition, or in confidence of his performing what had been undertaken in his name, the Earls and Barons swore Fidelity to him, against all Men: yet after this, he was formally elected in a full Convention of the States, whereMat. Par. the Archbishop declares it as matter known to 'em all, ‘that no man ought to succeed an other to the Kingdom, upon any previous reason, unless unanimously elected by the whole Realm, &c. But if any one of the Royal Stock was more deserving than others, his election ought to be consented to, the more promptly and rea­dily.’ Noverit discre­tio vestra, quod nulius praeviâ ratione alii suc­cedere habet regnum; nisi ab universitate regni unanimi­ter, invocatâ spiritus gratià electus, &c.

Notwithstanding what had pass'd in favour of John, in the Convention; theMat. Par. Archbishop at the time of the Coro­nation calls him but Earl.

King John not only took the Oath appointed by the standing Ritual, which declares every King of England to be elected; but assumed the Royal Dignity, as his Prede­cessor did, with the express condition of keeping his Oath. Having broken this Contract, and notoriously de­parted from that end, for which, according to the Con­fessors Law,Dico de hoc Comite &c. expresly sworn to by him, he had been con­stituted or created King; in making War upon his People with Foreign Forces, with which he exercis'd inhuman bar­barities; and as much as in him lay alienating his Imperi­al Crown to the Pope:Arch. and dis­tricte prohibi­tus, ne [...]ono­rem bunc acci­pere praesume­ret, nisi in men­re habeat opere quae juraverat p [...]implere. Ad hoc ille respor­dens promisit, se per auxilium Dei, bona side ea quae juraverat servaturum. he, in theWendover Dein adjuratus est ab eodem Judgment of the Court of France, as well as of the States and People of England, fell from his Royal Dignity: the Throne was e e become vacant; and during the vacancy, the Admini­stration devolved upon the States: whereupon they resol­ved to elect a new King, and sent a solemn Embassy to the King of France, to send over his Son Lewis to be King [Page 29] of England; whose wife was John's Sisters Daughter. But the chief inducement to this Election, seems to have been that expectation, in which they were not deceived, that the Mat. Par. Foreigners would desert John for Lewis.

Tho they promised to Crown him King, they, seeing great grounds to dislike his French Temper and Conduct, kept him upon his good behaviour, without a Crown; And having found by the dying Confession of one of his confederates, that he had sworn, if he came to be once Crowned King, he would treat the English as Rebels to their former Prince; they soon sent this Probationer pack­ing; yet did not hold John to be King.

After John's death, many of the greatest interest in Eng­land, while Lewis was here,An. 1216. and Elianor Prince Arthur's Sister alive in Bristol Castle, (who, according to the vulgar notion ought to have been Queen) elected Henry, John's Son: but were far from thinking him King upon the death of his Father; or from repenting of what they had done to the Father: but they thought it adviseable to cut off Lewis his expectation of the Crown: to which end the Martial of England Summons a Convention to Glocester: where he tellsMat. West. f. 277, & 279. the States, that tho' they had justly prosecuted the Father for his evil deeds, yet that Infant was innocent; because he is the Son of a King, Knighton col. 2426. and our future Lord, and Successer of the Kingdom, let us Constitute him our King.

At last all as with one voice, cried thrice, let him be made King.

Here 'tis evident that he was not accounted King till Constituted or made, and was but a future Lord: and agree­ably to thisMat. Par. Matthew Paris says, they assembled in order to exalt Henry, ut. H. Regis fil. primogen, in Regem Angle exaltarent. the King's eldest Son, to be King of England.

He took the Coronation Oath more han once, and at Mat. Par. 14 one of his Coronations, had the Confessor's Sword car­ried [Page 30] before him, by the Earl of Chester, one of the Earls Palatine of England, for a sign that that Sword was not to be born in vain.

He having trod in his Father's steps, the States were like­ly to have made good their solemnMat. Par. Ipsi de communi conc. totius regni ipsum cum iniquis corsiliariis suis a regno depelle­rent, & de novo Rege cre­ando tractarent. denunciation 17th of his Reign, of deposing him in a Common-Council of the whole Kingdom, and creating a new King, which as appears by Bracton lib. 2. c. 16. Bracton a very learned Judge in that Reign, was no more than the then known Law of the Kingdom. Various were the events of a long Civil War, in which at last the death of the great Darling of the Church and People,Rex autem ha­bet superiorem Deum; item Le­gem per quam factus est Rex; item Curiam suam &c. Vid. etiam ib. c. 24. & l. 3. c. 9. the then Hereditary High Steward of England, and the bravery of Edward Henry's Son gave him the victory: which they who were on his side, and his own experience of the conse­quence of his former Counsels, kept withing some bounds of moderation. Henry to secure the Succession to his eldest Son Edward, Lib. de Antiq. Leg. in Arch. Civ. had before that success, caused many, and particularly the Citizens of London, to swear to his Son as Successor.

And after that it should seem that a Parliament had madeLib. de An­tiq. Leg. in Archiv. Civ. a Settlement of the Crown.Lon. An. 1260. 44 H. 3. For in the 55th of his Reign a Writ was sent to London, the execution of which was return'd into the Parliament that year at Winchester; and 'tis probable the like had been throughout England; L. 55. H. 3. post ejus deces­sum rectis hae­redibus coronae Angliae. in pursuance of which Writ, the Mayor, Barons, Citizens, and University of the Commons, swore Allegiance to the King, after him to his eldest Son Edward, then to his Son John, after that to the right Heirs of the Crown of England: which not being to the Heirs of either of those Persons, plainly left the Inheritance as I have shewn it was from the beginning.

Upon the Father's death, theMat. West. Gilbertus & Johes Comites, nec non Clerus & populus, ad magnum altare ecc. Westm. celeriter prope­raunt Ed. prim. Regis fidel jurantes. Clergy and Laity flock'd to Westminster, where they declared or received for King, Edward, then beyond-sea in the Holy War, so called. Soon af­ter this, as I take it, a great Convention Annales Wav. f. 227. of the States was holden in his name: there a Chancellor was chosen, and o­ther Provisions made for the Peace of the Kingdom, in Edward's absence: the Writ which they issued out, requi­ring the Subjects in general to swear Allegiance to E. Facta convoca­tione omnium Prel &c. 1. says, the Government was devolved upon him by Heredi­tary [Page 31] Succession, Rot. claus. and the Will of the Nobility, and the Fidelity performed,1. E. 1. m. 11. or Allegiance sworn to him.

Agreeably to which, Walsingham says,Walsing. f. 1. ‘they recognized Edward their Leige Lord, and ordained him Successor of his Father's honour.’ Tho' he was a very gallant Prince, yet, having taken ill advice,Mat. West. f. 430. 25 E. 1. being to cross the Seas, he upon a Pedestal at Westminster-Hall Gate, with the Archbishop of Canturbury, and the Earl of Warwick by his side, publickly ask'd forgiveness of his People;Suscipiatis me: quod si non rediero, in Re­gem vestrum filium meum coronetis. entreated 'em to receive him again at his return; and if he died, to Crown his Son King: which they who were then assembled consented to.

How much it was then known to concern a King to keep to his part of the Contract, as he would have his People continue bound; appears by two great Authori­ties in our Law, of that time, Fleta, who, as to this mat­ter, transcribes Bracton almost verbatim; and the Mirrour Mirror p. 8. of Justices; which speaks of the first Institution of Kings among us, by Election; for what End they were Elected, and what they were to expect, if they answered not that End.

E. 2. asWals. f. 68. Walsingham informs us, succeeded not so much by Hereditary Right, Non tam jure haereditario &c. as by the unanimous Assent of the No­bility and Great Men.

He was for misgovernment, formally depos'd, orWals. f. 107. Rex dig­nitate regali abdicatur, & filius substitui­tur. Abdi­cated from the Regal Dignity, as Walsingham has it; and his Son Edward was Substituted, or Elected, in his stead.

The Son indeed, tho he had headed Forces against his Father, seem'd to scruple accepting the Crown, without his Fathers consent: And ex post Facto, after Edw. 2d. had been deposed, and his Son Elected, with a threat, that if he refused, they would Elect sombody else; the Father took some comfort at the Election of his Son, and, as muchKnighton col. 2550. as in him lay, consented.

The Son it must be own'd in a Writ, cited by Dr. Bra­dy, says,Post multos e­julatus &c. his Father amoved himself, by the assent of the Pre­lates, Earls, Rot. Claus, 1 E. 3. m. 28. Barons, and other Nobles, and also of the Com­monal [...]y of the whole Kingdom. Which being onely in Writs Issued out of the Chancery, can be of no Force to limit or explain that Act of the States: And was but a civility [Page 32] or complement from the Son to the Father. What the States judged in the matter, will be very plain from the following account, in a contemporary Author.

‘King Edward remaining in Custody at Kenelworth, Bib. Cot. a General Council of the whole Clergy and People of England, Cleop. D. 9. was Summon'd, viz. of every City and every County and Borough,Annales de Gestis Britc­num De. a certain number of Persons, to Treat and Ordain with the Great Men, An. 1326. of the State of the King and Kingdom.Convocatum est concilium generals &c. In which Council, at the cry of the whole People, unanimously persevering in that cry, that King Edward II. should be Deposed from the Throme of the King­dom; becuase from the beginning of his Reign to this day, he had misbehaved himself in his Government, had Ruled his People wickedly; had dissipated Lands, Ca­stles, and other things belonging to the Crown; had, by perverse Judgment, unjustly adjudged Noblemen to Death; had advanced the Ignoble; and had done many things con­trary to the Oath taken at his Coronation; Walter Archbishop of Canterbury, pronouncing Articles of this kind, by as­sent and consent of all, King Edward 2. is wholly deposed, and Edward his eldest SonIn Regem Angliae est sub­limatus. advanced to be King of England. And it is Ordained, that from thenceforth he should not be called King, but Edward of Karnarvan, the King's Fa­ther. And immediately Messengers were sent from the Council to the said Edward the King's Father, to notifie to him what had been done, and to read to him the Ar­ticles upon which he had been deposed. He answer'd, he was detained in custody, nor could contradict their Ordinances; but said, he would bear all patiently.’

And it is observable, that aStat. 1. E. 3. Rastal. Statute of the Kingdom 1 E. 3. justifies the taking Arms against E. 2. while he was in Possession of the Throne, and indemnifies all Per­sons for the pursuit of the said King, and taking and with­holding his body. E. 3. who knew that himself came in by and election of the States, being aware that if he should die before any Provision were made about the Succession, the Controversie concerning the Right of Proximity and that of Representation would be revived, between his eldest surviving Son, and Grandson by the eldest who died in his life time; obtained an Act of Parliament, [Page 33] wherebyRot. Parl. 50. E. 3. Richard, his Grandson by his eldest and best be­loved Son, was declared or made, very Heir to the Crown.

R. 2.Began his reign An. 1377. following the example of E. 2. had the same fate, of which the States of the Kingdom had some years before given him fair warning, telling himKnighton f. 2683. they had an ancient Statute, according to which they might,Propinquio­rem aliquem de stir pe regid. with the common assent and consent of the People of the Realm, abrogats him, and advance somebody near of kin of the Royal Stock.

He not profiting by this admonition, the States were some23 R. 2. years after put to the exercice of their authority, and having adjudged that he Rot. Parl. 1. H. 4. n. 16. justly ought to be deposed, the N. 52. whole States appointed Commissioners, for giving the Sentence of Deposition. And a Record speaking of it, says, he wasRot. serv. die Coron. H. 4. deposed for his demerits. The Act of State for this, says 'twas, as Rot. Parl. 1. H. 4. in like cases had been observed by the ancient custom of the Kingdom. This being done, Henry Duke of Lancuster Rot. Parl. as soon as the Kingdom was vacant, rose out of his Seat,1 H. 4. n. 54. so Welsing. and claim'd the Kingdom begin void.

His claim was Rot. Parl. sup. als descandit be ryght lyne of the blode comeynge fro the gude Lord Henry therde.Tpod. Neust. f. 156. Regnum Angliae sic va­cans.

The reason seems very plain, why he claim'd from H. 3. his being the last inheritable blood which he could claim from: not from R. 2. because deposed: nor from E. 3. because of the forseiture of R. 2. declared or constituted his next Heir: not from E. 2. because of his forfeiture: nor from E. 1. becuase E. 2. had been his next Heir.

Hen. 4ths Descent from H. 3. was the qualification for an election. This was not, as has been supposed, a strict right of Succession,Vid. The Debate at large. p. 127. as he was the next Heir then appearing: but he entituled himself to a preference before all other De­scendants from that Blood, as being a Deliverer of the Nation from Richard's tyranny: Walsing sup. & Rot. Parl. he having with the help of his Kinsmen and Friends, recovered the Kingdom, which was upon the point of destruction, through the defect of Govern­ment, and violation of the Laws. This induced theRot. Parl. n. 54. Iiden Status cum tote populo abs (que) quacun (que) diffi­cultate vel m [...]râ ut Dux praefatus super eos regnaret unanimiter consenserunt. States and all the People, unanimously to consent, that Henry should [Page 34] fill the vacant Throne: and theyRot. Servic. sup. appointed all the Cere­monies of his Coronation. But as far as proximity to the last King could infer a right, he being Grandson to E. 3. had it before Mortimer descended from Lionel Duke of Clarence, under whom the Family of York claim'd: besides, that H. 4. was undoubtedly the first on the Male line. Tho' noVid. inf. the case of Bi­shop Merk. Lay-man of knowledge and integrity, can be thought at that time to have questioned those grounds up­on which H. 4. was declared King; yet since 'tis hardly possible that there should be any Government, which some will not be desirous to shake off, as the Jews did the Theocrasy; it can be no wonder that some would co­lour their ambition or malice, under pretence of love to justice; and that they should object want of right to di­sturb the most just and equal Government. What was at the bottom of objections against H. 4ths Title, will appear by the case of a true Head of the Church Militant, Merk, or Mark, Bishop of Carlile; who not being able, as a Divine, to make good his Argument against the receiving H. 4th. for King; was resolved to justifie it by dint of Sword, after he was made King.

For inRot. Pat. second of H. 4. he was indicted, and tryed by a common Jury upon a special Commission,2 H. 4. rot. 4. for that he and other his Accomplices, among which there were two bigotted Knights, Blunt and Sely, wereInterliga. & confederati ad­versario & ini­mi [...]o nri Regis & rni sui, de Erancia & ad­herentibus ad eundem adver­sar. &c. leagued and confederated together with the Adversary and Enemy of England, the French, and thier Adherents; traiterously to bring the said Adversary into the Land of England, with intention to destroy the King, and all his Leige People of the Kingdom, and to new plant the Kingdom of England with our enemies of France: that they in an hostile manner went up and down, making great destruction and slaughter; and without any Authority, assuming to themselves. Royal Power, proclaim'dNota Ri­chard's name was used only to colour the inviting the French to over-run this hand. Richard to be King, and that they would not suffer Henry to be their Lord, or King.

To this Indictment the Bishop pleaded Church-Priviledge, as anQuod ipse Epus unctus [...]. anointed Bishop, which the Court over-ruled: the the reason for which is very remarkable; ‘because the matters contained in the said Indictment, concern the death of our Lord the King, and the destruction of the [Page 35] whole Kingdom of England; and consequently theNota Et consequenter eccles. Angli­canae per quam &c. manifest depression of the Church of England, by which he claims to be priviledged: all which is high, and the greatest Treason, and the Crime of laesa Majestas: nor ought any man of right to pray in aid of the Law, or to have it, who commits such a Crime, or intends to commit it, &c.

His plea being thus over-ruled, the Bishop pleaded not guilty: but being convicted of the horrid matter contained in the Indictment; it seems he did not think this a fit cause to die for; and whether he merited a Pardon or no, by sincere Repentance, at least obtained one: in which it is observable, that he is calledPardonae vimus eidem nuper Episcope sectam pacis &c. the late Bishop: for this restitution to the Peace, did not restore his Ecclesiastical Dignity.

He, who is still called the late Bishop, having a pardon sent him, petitioned to be delivered out of Prison: which was granted upon his finding Sureties for his good behaviour: and four undertook, that heQuod ipse amodo se bene geret erga Do­minum Regem. & populum. should for the future behave himself well, towards the King, and his People.

Thus the fear of death reformed this stiff Prelate; and made him engage to sit quietly under a Government, which none but the Enemies to England, and their Adhe­rents, endeavoured to subvert. Still some were found calling themselves Englishmen, who, for the like ends, with Merk, would do their utmost to blemish H. 4ths Title: this occasioned Oaths of Recognition, thrice repeated 5o.This reci­ted in the Peti­tions of the Commons Rot. of his Reign: first at a Council of Worcester, then at a Great Council at Westminster, and after that in a full Parliament; where the two former recognitions, Pat. 8 H. 4. which were voluntary Associations, p. 1. m. 4. were affirmed;D'un vo­lunt & d'un as­sentcoment quil nen busoignoit my afferme­rent. tho' as is there said, there was no need of it.

By those Oaths, they acknowledged the then King ‘to be their Sovereign Leige Lord, to obey him as their King;’ and acknowledge the Prince his eldest Son as Heir appa­rent, and inheritable to the Crown of England, to him and the Heirs of his Body. And for default of such Issue to his Bro­thers and their Issue successively, andEnhereta­blement. hereditably; according [Page 36] to the Law of England, to Pur viver & morer encon­tre touts les gents de monde. live and die against all Peo­ple in the World.

The perjury of some, and the doubts rais'd by others, upon some of the expressions in the Act, 5 H. 4. occasioned an otherRot. Pat. 7o. ‘which, by the Counsel and Assent, of the Lords Spiritual and Temporal,7. H. 4. pars. 2. in. 23. Ad ammovendam penitus materi­am disceptatio­nis &c. to wit, the Prelates, Great Men, Peers, and Clergy, and also at the earnest Petition of the Commons, and by Authority of the said Parliament, declares, that the King's eldest Son,’ Fore & esse [...] fore & esse debere. shall be, and is, and ought hereafter, and now to be, true lawful and undoubted Heir and Universal Successor to the Crown, Vid. alt. ib. reciting the breach of for­mer Oaths. and Kingdoms of England, and France, and all the King's Dominions, what­soever and wheresoever beyond the Sea; and also has right of universally succeeding the King, in the said Crown, Kingdoms, and Dominions. To have to him and the Heirs Male of his Body, and in default of such Issue so in remainder to his Brothers.

In an other Charter pass'd in that Parliament, theRot. Pat. Inheritance or Hereditation of the Crown is entail'd upon the King,sup. Hereditas sive heredita­ria. and the Heirs Male of his Body, then to his four Sons, and the Heirs Male of their Bodies successive­ly.

It seems theRot. Pat. next year some doubts arose upon these different Settlements,8 H. 4. p. 1. m. 4. that 5o. then remaining upon Record: therefore they cancel and make void the Letters Patent of the Entail 5o. and change, and amend that Settlement, which they seem to have thought defective.

1. In only declaring the Prince Heir Apparent, and Inhe­ritable to the Crown; which was no more than to declare him, before others, qualified to succeed, if the States should Elect him.

2. In declaring him Inheritable only to the Crown of England, without mentioningRot. Pat. its appurtenances; seem­ing to think,8. H. 4. that in Grants of this Nature, nothing would pass by implication.Ponrvous succe­der en voz saisditz corone, roialms, & Seigniories, pur les avoir ove routz leur appurtenances, apres vre decesse, a luy, &c.

But to prevent all ambiguities, they being, as is said in that Record, met in a Parliamentb according to the Custom [Page 37] of the Kingdom, for divers Matters and Things concerning the King and his Kingdom: The King, with common Con­sent of the Kingdom, Enacts, That a new Patent be Seal­ed, constituting Prince Henry Heir Heir appa­rent pour vous succeder. Apparent, to succeed the King in his Crown, Realms, and Dominions, to have them, with all their appurtenances, after the King's Decease, to him and the Heirs of his Body; and so in remainder to his three Brothers successively: whereby they had a larger Estate than by the Entail 7o which was to Heirs Male.

Thus, by Virtue of one or more Settlements, by Autho­rity of Parliament, H. 5. succeeded, and yet it was thought a great instance of the confidence the States had in him, that in a Convention, or Assembly, holden according to Ancient Custom, in which they treated aboutPol. Virg. in Vit. H. 5. & Drs. Gale Praef. Script. creating a new King, some of the Nobility immediately Swore Alle­giance to him,Saxon. Dan. before he had been declared King.

But it is to be observed, that whereas his Father di­ed theWalsingham. 20th of March, he is said to be created King on thePolydore Virgil. 5th of April; In quo de Rege creando more majorum agita­batur. Vid. etiam Stow in the Reign of H. 5. mention­ing this, and calling that Assembly a Par­liament. Death cutting off the course of his Glo­ries, his Infant Son, H. 6. came in under the Parliamentary Entail, but the Administration was held to have fallen up­on the States, Rot. Parl. 1 H. 6. who, accordingly, after having declared H. 6. King, in full Parliament, pass'd a Patent, constitu­ting Humfry Duke of Gloster Protecter of the Realm, John Duke of Bedford Regent of France, and Henry Beaufort Bi­shop of Winchester, and Thomas Beaufort Duke of Exeter, Governors of the young Prince.

The Death of the brave Duke of Bedford, occasioned not only the loss of France, but the raising the Family of York to a pretence, which in all probability had been buri­ed to this day, had not H. 6ths treacherous Ministers put him upon making Richard Duke of York13 H. 6. Regent of France, after being High Constable of England, and Lieutenant of Ireland.

With these advantages, Duke Richard set up under a Mask of Popularity, as if he only sought redress of grie­vances, while himself was the only National Calamity. As nothing but success could give him any colour of Title, he was forced to conceal his Ambition even from his own [Page 38] Party, till 26 H. 6 yet afterVid. the Oath 29 H. 6. that, acknowledged, and swore to H. 6ths Right,Stow, f. 395. and confirm'd it with the Sacra­ment; which Solemnities were to be subservient to his ima­ginary Divine Right. I am, and ought to be humble subject, and Lieage-man, &c. Tho' by his Frauds and Perjuries, he often came within the prospect of a Crown,Rot. Parl. 38 H. 6. n. 7. 38 H. 6. he was deservedly Attainted of High-Treason, and an Asso­ciation, with an Oath, was voluntarily enter'd into by the Lords; wherein every one severally acknowledges H. 6. to be his most redoubted Lord, and rightwish, or Rightful, by Succession born to Reign over him, and all the Kings Liege Peo­ple; that he will do his utmost for the Wele, and surety of the King's Person, of his most Royal Estats, and the very conser­vation and continuance of his most high Authority, Preheminence, and Prerogative, and for the preservation of the Queen, and of Prince Edward his Right redoubted Lord the Prince; that after the King's Death, he will take and accept the Prince for his Sovereign Lord, and after him the Issue of his Body law­fully begotten; for want of such Issue, any other Issue of the Body of the King; that he will never give Aid, Assi­stance, or Favour, to any thing contrary to the premises; and that he will put himself in his due undelayed devoir, with his Body, Goods, Might, Power, Counsel, and Advertisement, to re­sist, withstand, and subdue, all that should presume to do contra­ry to the premises, or any of them.

This Association, not being General throughout the King­dom, had no great effect; not so much from any belief the Nation had of Richard's being injured, as from the bur­dens a Treacherous Ministry induced a weak Prince to lay upon the Subjects: This made the Commons of Kent invite over, from abroad, the Duke and his Party, who had fled from Justice; then the Tide turn'd, and the King became wholly in the power of the Duke of York, under whose awe and influence a Parliament was call'd, where he laid claim to the Crown, with circumstances, which one would think, were enough to give any Man a face of Title: and yet his pretended Divine Right, countenanc'd by Provi­dence, was mightily qualify'd by the courage of the Par­liament, and their regard to the Constitution of this Monar­chy.

[Page 39] His claim wasRot. Parl. as Son to Ann, Daughter to Roger Mortimer, 39 H. 6. n. 11. Son and Heir to Philippa, Daughter and Heir to Lionel Duke of Clarence, third Son to E. 3. whereas H. 6. de­scended from John of Gaunt, the 4th and eldest surviving Son. After Debate among theN. 12. Lords upon this matter, these Objections were agreed upon against Richard's pre­tence of Title.

1. The Oaths they had taken to the King their Sovereign Lord.

2. Acts of Parliament made in divers Parliaments of the King's Progenitors, of Authority sufficient to defeat any manner of Title to be made to any Person.

3. Several Entails made to Heirs Male.

4. That Richard did not bear Lionel's Arms.

5. That H. 4. took upon him the Crown, not as Con­queror, but right Inheritor to H 3.

All that is urged materially against this for Richard, is,

1. That Oaths do not bind against God's Law; and that requires Truth and Justice to be maintain'd: but this being a Spiritual matter, he refers to any Judge Spiritual.

2. That there was but one Entail of the Crown, 7 H. 4. but that this was void against the right Inheritor of the Crown according to God's law, and all Natural laws.

3. It could be justify'd by Record, that H. 4ths saying was not true.

Upon which 'tis observable,

1. That Duke Richard's answer goes upon a manifest begging the Question, and supposing, that he had a Right which could not be barred by Act of Parliament.

2. That the Lords having mentioned several Entails up­on Heirs Male; we are to believe that there was then up­on Record, the Entail upon Heirs Male in the time of E. 3. pleaded byVid. un­reasonableness of the new sepa­ration, Fortes­cue's MS. of this belongs to the Cotton Li­brary, but not now to be found there, unless re­stored very late­ly. Judge Fortescue in defence of the Title of his King H. 6. This we are the rather to believe, because there was but one Entail upon Heirs male in H. 4ths reign: nor is Richard's denial any argument against this, it ap­pearing that he thought it sufficient for him to affirm any thing; and this was to pass for Truth and Law. Thus he denies, that there had been any Entail but 7o H. 4. forget­ting that which had been made 5o and was amended 8 H. 4. [Page 40] and so very much did he mistake, that he supposed the En­tail 7o to be upon theN. 15. Heirs of the Body, when it was up­on Heirs male of the Body. To be unto him, and to the Heirs of his Body co­ming, and to his 4 Sons, &c.

3. What the Lords say of Richard's not bearing Lionel's Arms, confirms another objection against him made by Judge Fortescue, from the Barstardy of Philippa, born while Lionel was beyond the four Seas; and never own'd by him; nor did she, or her descendants, till the time of this claim, bear the Arms of that Family.

4. Richard's Right of Descent, admitting there had been no Illegitimacy, is laid as a Right in Nature: but either this must be as the Laws of the Land guide the course of Nature, or, otherwise, we must go back in search of this Right, if not as far as Adam, yet to some descendant from the eldest House of the Saxon Royal Family: to such, at least, as could derive their Pedigree from some House elder than King Alfred's; which may be done at this day. Besides, if we should look back to a Right in Nature, all the Kings, descendants from H. 2. from whom Duke Richard came as well as H. 6. must have been Usurpers; H. 2ds Children ha­ving being begotten onElianor Wife of Lewis King of France, another Man's Wife, who had been Divorced for her Adultery; and therefore by God's Law could not Marry again: nor does it appear, that the Divorce was from the Contract.Mat. Par. de An. 1150. Or, if this Matter should admit of Debate, such of our Kings as descended from an other common Ancestor, King John, must have been Usurpers; not only by reasonof John's suppos'd Usurpation upon Arthur of Brittain, and his Sister; but in that his Children were begotten onMat. West. f. 1200. an other Man's Wife, who does not seem ever to have been divorced: and besides, according to the Law of Nature it would seem, that John had a former Wife in being. For he was di­vorced from her only for their being third Cousins, as H. 2ds. Wife was from her first Husband, as they were Cousins in the 4th Degree. If the first Marriages in both cases were void, or voidable, it could have been only by the Laws of the Romish Church; but if those Laws shall make a natural right, by governing the course of descents, much more shall the Laws of particular Countries. If, by the Law of Nature, Duke Richard meant that which [Page 41] the consent of Nations has made to pass for the dictates of nature; according toVid. Sup. p. 27. Cujacius, this Law of Nature is for the right of Proximity, which John of Gaunt, from whom H. 6. descended, had to his Father before R. 2. and H. 4 John of Gaunt's Son, had before the Son of Lionel's Daughter, supposing her legitimate. And by that Law it should seem, that Males are ordinarily to be preferred be­fore Females; tho' their Vertues have often rais'd 'em to Empire.

Farther yet, if by this he meant the Law of reasonable nature; what shadow of reason can be assigned, whyVid. Grot. de jure belli & pacis l. 2. the eldest Issue of a King's eldest Child, whether that Issue be an Infant,sect. 24. For the Neice from the elder Son to exclude the younger Son, cannot hold in Hereditary or void of understanding, or humanity, ought universally, to succeed to Crowns, before the King's eldest surviving Son; whatever be his Merits, or the exigencies of the Publick? And why should not a moral incapacity in this sense be a natural one?

But if the Great Lawyer Fortescue; Kingdoms; For that gives only a capacity to succeed. who, as may be seen by the Rolls of the King's Bench, was Chief Justice there from before Richard pretended to the Crown, and to the end of H. 6ths Reign, may be allowed to speak the Sense of the Learned in that Time;But of those that are capa­ble, regard is to be had to the priviledge of the Sex. they held the Power of the PrinceFortescue de Laud. Le­gum Angl. Rex a populo pote­statem effluxam habet. to flow, or be derived, from the People: ac­cording to which, it must have been taken to be more ac­cording to natural right, that the People, who appointed the Succession in any Family,Vid. Rot. de B. R. should govern and vary it, as they saw occasion; than that from their pitching upon a Person, or Family, they should be for ever debarred from doing justice to the demerits of one, and to the merits of another, in that very Family.

I am sure the learned Grotius, who distinguishesGrot. de jure belli & pacis Lib. 2. lineal Succession from Hereditary, says,Ib. Sect. 14. an Hereditary King­dom is one which was made so by the Peoples free consent. And in such Kingdoms he supposes several Rules of Succession, by guessing at,Sect. 22. or presuming, the will of the People.

If Duke Richard would have admitted the Law of the Land, to govern the course of Descents and Successions to the Crown; then 'tis evident beyond contradiction, that H. 6. came in by a legal and natural course of Descent: and, however, according to laudable custom from the [Page 42] beginning of this Monarchy, Acts of Parliament may al­ter that course.

However, the timerousRot, Parl. 39 H. 6. n. 18. Lords, without concurrence in that matter of the stouter Commons, The Oaths that the said Lords had made unto the King's highness, &c. agreed, that the Duke's Title could not be defeated: and yet thought not themselves discharged from their Oaths to H. 6. unless he would consent to the mean, or expedient, they found out: which was,saved, and their consciences therein clea­red, &c. for the King to keep his Estate and Dignity Royal during his life, and the Duke and his Heirs to succeed him in the same.

To this both the King and Duke consented:it was agreed that the said mean the should be opened and de­clared to the King's high­ness. but neither the King's Right to the Possession, nor the Duke's to the reversion, arose from their private agreement, but from theN. 18. Authority of Parliament; according to which, the King had as much rightN. 27. to the Possession, as the Duke to the reversion.

And it remains as the judgment even of that Parliament, whatever force or awe were over it,The King by advice of the Lords, conde­scended to the Accord, and to be authoriz'd by Authority of this present Parliament. that Richard Duke of York had no right to the Possession; and neither was King, nor of right ought to be King, till H. 6. should die, or cease to be King.

Nay even E. 4ths Judges owned, that H. 6. was not a meer Usurper, d because the Crown was entailed to him by Parliament.

As a just judgment upon Duke Richard's pretence of Title,saving and or­daining by the same auctority the King to have the said Corones, Reaumes, Roial Estate, Digni­ty, and Preemi­rence of the same, and the said Lordship of Ireland during his lyf natural. contrary not only to the National, but Divine Autho­rity, giving sanction to the Laws of the Kingdom, and his own Oaths; he died within sight of the Promised Land.

ButAn. 1460. soon after his death, his Son Edward having less to answer for, and success to recommend him to the People; upon more specious pretences, succeeded H. 6. by a mani­fest election.

Tho' he and his Father had, upon the agreement esta­blished in Parliament, sworn to be true to H. 6. during his life, or till he should freely quit his Crown; the dread of 17 [Page 43] their Arms got a liberty for 'em to enter their protestations, that this was upon the express condition, that the King per­formed his part: but if he should compass or imagine the death or destruction of the Duke, or his Blood, should for­feit the Crown. And indeed it seems that the first acts of Hostility after this agreement were committed by the Queen, and others of the King's Party; who in attempting to rescue him out of the custody of the Duke of York, put an end to his pretensions with his life. But his Son Edward Stow. f. 413. having routed the Earl of Pembroke and other the King's Loyal Subjects, in a Battle near Ludlow, march'd up to London, where he was recei­ved with joy on the 28th of February. Then he calls a Great Council of Peers, to whom he opens his claim, upon the King's breach of the Articles. After the Lords had con­sidered of the matter, theyVid. Notes upon the Earl of Stamford's Speech An. 1692. determined by Authority of the said Council, that forasmuch as King Henry, contrary to his Oath, Honor, and Agreement, had violated and infringed the order taken and enacted in the last Parliament; Citting Graf­ton's Chron. f. 652, 653. 658. Speed f. 851. Stow f. 414, 415. and also be­cause he was insufficient to rule the Realms, and unprofitable to the Common-wealth; he was therefore, by the aforesaid Autho­rity, deprived and dejected of all Kingly Honor, and Regal So­vereignty: and incontinent Edward Earl of March, was, by the Lords in the said Counseil assembled, named, elected, and admitted for King and Governour of the Realm.

After this, the same day, the consent of theIb. common People was ask'd in St. John's Fields; where a great num­ber, were assembled. The Lords being informed of the consent of the Commons, acquainted the said Earl with their election, and admission, and the loving assent of the Com­mons. The next day he went to Westminster, where his Title and Claim to the Crown was declared. 1. As Son and Heir to Richard his Father; right Inheriter to the same. 2. By Autho­rity of Parliament. 3.3d. Not mentioned in those Notes, but in Hollins­head f. 663. And forfeiture committed by H. 6.

TheNotes upon the Earl of S's Speech Sup. Commons being again demanded, if they would admit and take the said Earl, as their Sovereign Lord; all with one voice cried yea, yea: which agreement concluded, he was then proclaimed.

Here it is observable.

[Page 44] 1. That Edward did not claim upon any Title Prior to the Settlement in Parliament, 39 H. 6. and therefore, in effect, claimed as adopted Heir to H. 6. as H. 2. had been to King Stephen.

2. He alledges against H. 6. forfeiture, by breach of the Contrac̄t establish'd in Parliament; and a Moral in­capacity in him to Reign.

3. Notwithstanding this, he does not set up as King, before a solemn judgment pronounced against H. 6. and in favour of him; and the formallity of a publick election.

4. It appears, that tho' he came to London, and was pos­sessed of the head and strength of the Kingdom; and Hen. 6. had, in effect, abdicated, he, who according to the modern notion of the Successionaries, should have been King upon the death of his Father, was not King, nor so reputed by his own Party, till all those accustom­ed ceremonies were over; the last of which wasHollins­head 663. on the 4th of March. Now if it shall prove,After the Earl of March had taken upon him the Govern­ment. that in the judgment of King Edward's own Parliament, his right ot turn H. 6. out of Possession, was founded in H. 6ths breach of the Contract, establish'd in Parliament; that E. 4. was not King till the 4th of March; and that no Act committed a­gainst him before that day, was Treason; nor was there, or could there be Treason against his Father, who never had been King: then it will appear, that some consent, or election, of the States, or People, was essentially necessary to make a King, even of one who had, or at least was suppos'd to have, all the right that descent could give him: and that the other King must have forfeited, or ceased to be King, before such right could be duely claimed. But,

1. The Act of Parliament declaringRot. Parl. 1. E. 4. m. 8. E. 4ths Title, is held to be a restitution to the same: so that the very Title, or Right was as if it had been extinguished.Declaratio ti­tuli regii, & restitutio ad eandem.

2. It is in that ActIb. particularly insisted on, that H. 6. had declared before witness, that he would not keep the contract established in Parliament; and is expresly charged with the breach of it.

3. E. 4.Rot. Parl. 1 E. 4. m. 8. is adjudged to have been in lawful Possession of the Realm, n. 20, 21, 22, 23, 24. upon the 4th of March; and [on that day] law­fully seized, and possessed. But not before: and then the [Page 45] exercice of the Royal Estate by E. 4. and amotion of H. 6. are declared rightwise, lawful, and according to the Laws and Customs of the Realm.

4. That Act says the Crown ought to have descended to Edmund Mortimer, Edward's Ancestor, and after his de­cease to the next Heir of Blood: if the same Usurpation had not been committed. Wherefore, according to that Act, the Crown did not descend to any one of Mortimer's Family, while the Person who they supposed to have usurped the Crown, or any descendant from him, kept Possessi­on.

5.Edward's Parliament held his Father to have been no more than Duke of York: and tho' in theRot. Parl. 1 E 4. m. 17. Act attainting H. 6. he is charged with the Murder of Richard Duke of York, Convictio quo­rundam Dom. & al. authori­tate Parl. the first Treasonable Fact in H. 6. and others, is laid in levying War on the 29th of March, and imagining to depose their Sovereign Lord Edward: who had been de­clared King on the 4th of that March: and H. 6ths for­feiture is laid in acting against his Faith and Allegiance to his Sovereign Lord: whereby they plainly shew, that as there could be no Treason against the Duke of York, because he was never received for Sovereign Lord: neither could there have been any against E. 4. unless he had been so received.

6. If any now will own his present Majesty to have right by Law; and yet refuse to declare him rightful King; They go no farther then E. 4. and his Party did, even after his Possession, in relation to such as they held to be Usur­pers. And should such Men add, that neither has the late King any right; as it is probable that they mean, that he has no right making him King; they therein would still keep to that President. But then if they would exactly follow that, they must believe that the late King cannot be duely restored to the Regal Dignity, till he should be received by the election, or consent, of the States, or Body of the People: nor could that be rightfully done, unless his pre­sent Majesty in a legal sense ceased to be King; before such election, or consent.

Thus far I am sure they cannot come without a mani­fest departure from their avowed Principles: and, there­fore, [Page 46] to keep to them, they must give up the only co­lourable Authority for their notion of King de jure, and de facto.

And they must yield, that there is not the least shadow of pretence, from what was held in those times, that there was a King of right, at the very time that an other was in fact: it going no farther, than that the Person who was King, ought not to have been King; but while he was King the other was none.

7. The judgment of E. 4ths first Parliament, whatever hard names they gave that Family, on which they tramp­led,The Earl of March upon the death of R. 2. and con­sequently E. 4. from him was undoubted was so far from being an Authority, as has been Vid. The Debate at large &c. p. 128. pretended, against the receiving his present Majesty, up­on the late King's breach of the Original or Common-Law Contract, confirmed by several declaratory Statutes of the Kingdom, and the solemn Oaths of our Kings; that it is express for theRot. Parl. 1. E. 4. m. 7. & 8. and that God had given Ed. the grace of e­viction eviction and amotion of one King, upon his breach of a contract establish'd in Parliament, King by con­science, by Na­ture, by Custom, and by Law: re­ferring to the Par. Rol. 1 E. 4. and the setting up an other by an election.

And it is observable that the Act 1o StAT. 1. E. 4. C. 1. E. 4. which con­firms several judicial and other Acts of such as it calls Kings only in fact, says, other than by Authority of any Parliament holden in their times; plainly admitting that Authority to be sufficient in it self.

H. 6. coming again into Power; because of a Posses­sion with such a consent of the People as made E. 4. King; wasStow. 412. formally again elected at the Tower: and in H. 7ths time,De term. was adjudged to have had his attainder purged, by his re-adeption of Power: which seems not to have been till he had been re-elected.

Then H. 6. calls a Parliament, where he in his turn attaints the Adherents of E. Mic. 1. H. 7. f. 4. b. 4. and,Stat. 1 E. 4. c. 1. as we are to believe, himself: but the Record of that having been cancelled, and the Rolls loss'd, it appears not whether it was for any Act committed before H. Referr'd to 17o E. 4. 6ths re-adeption of Power.

The Tide againRot. Parl. 17 E. 4. n. 34. turning for E. 4. all the Acts of that Parliament are reversed and declared, or made, void: from the time that he had been declared,Vid. etiam he was held to have continued the Possession of the Regal Dignity,Rastal. cap. 6. tho' with-held from the exercice of the Power; and therefore [Page 47] H. 6. from the first admission of E. 4. to the Crown, was accounted no King, and his Parliament to be but a pre­tenced Parliament.

E. 4ths usage of H. 6. was repaid to his Sons by their Uncle R. 3. some will have it that he made them away, as indeed is intimated in the Act attainting R. 3. but 'tis certain that they were bastardized in a Convention, whose Acts were byRot. Parl. 1. R. 3. Parliament after Richard was admitted King, declared for truth, and not to be doubted; and there areVid. Buck's Hist. Authorities to induce the Belief, that Edward's Sons were really Bastards, by reason of the Father's pre-contract: however theRot. Parl. 1. R. 3. Convention declared, that they were not fit to Reign, because they were Infants, and their Mother ignoble, and married clandestinely without the knowing and assent of the Lords. George Duke of Clarence, the next Brother to E. 4. having been attainted in a Parliament of E. 4. they having singular confidence in Richard's particular merit, have chosen in all that in them is, and by that their certain writing, choose him their King and Sovereign Lord, to whom they know of certain, it appertaineth of Inheritance to be chosen.

And observing that tho' the Learned in the Laws and Customs know his Title to be good, the most part of the People is not sufficiently learned in the Laws and Cu­stoms; they declare ‘that the Court of Parliament is of such Authority and the People of this Land of such a dispositi­on, as experience teacheth, that Manifestation and Decla­ration of any Truth or Right made by the three States of the Realm assembled in Parliament, and by Authority of the same, maketh before all other things most faith, and certain quieting of mens minds, and removing the occasion of doubts and seditious language. Therefore by the Authority of that Parliament, it is pronounced and declared, that their Sovereign Lord the King, was, and is, the very undoubted King, as well by right of Consanguinity and Inheritance, as by lawful Election, Consecration, and Coronation. And they Enact, Establish, Pronounce, Decree, and Declare, Edward the King's eldest Son Heir Apparent: to him and his Heirs of his Body.

Any Man who compares that Act at large with the former Presidents; must see, that it was penn'd with [Page 48] great Wisdom, and regard to the Constitution of the Monarchy.

And tho' out of an usual complement to the prevailing side, R. 3. has generally been represented as a Monster in Person, and Nature; the learned Buck has made it doubt­ful, which was the most deserving in all things, R. 3. or H. 7. Certain it is, that tho' the Crown had, by Authority of Parliament, been settled in remainder after H. 6. upon Rot. Parl. 39 H. 6. n. 27. Duke Richard and his Heirs; and that Duke's Grand­daughter was alive and marriageable, in the Reign of R. 3. her suppos'd Right gave him no disturbance, and his Pos­session was very quiet till he disobliged the Duke of Bucks (who was the great Instrument in setting him up) by re­jecting his Claim to be High-Constable of England: which was an Authority dangerous to be trusted in the hands of so popular a Man: nor could the Duke and his Faction expect to succeed in their conspiracy, without the support of French Forces: and, accordingly, applied themselves to Henry Earl of Richmond, afterwards H. 7. with whom the Duke ofVid. Comi­nes Ʋn june Princ de Engle terre. Brittany had for some years kept even E. 4. in awe.

Henry was glad of the opportunity: and, to strengthen his Interest, agrees with some of his Party to marry the Daughter of E. 4. but was far from making any claim in her right. It is very probable that one of E. 4ths Sons was then alive: be that as it will, as appears by the Sta­tutes 1 H. 7. cited above, his Parliament held that he landed with Title: and R. 3. being deserted, and slain in the Field of Battle; that opposition to Henry was, by Authority of Par­liament, adjudged Treason against the Sovereign Lord of this Land: and H. 7th. was held to have recovered his right.

After this, when H. 7. meets Rot. Parl. 1 H. 7. Idem Dominus Rex praefatis com­munibus ore suo proprio elo­quens, ostenden­do suum adventum ad jus & coronam Angliae fore tam per justium titulum haereditantiae, quam per verum Dei judicium, in tribuendo sibi victoriam de inimito suo in campo. his first Parliament, he, with his own Mouth, tells the Commons in full Parlia­ment, that his accession to the Right and Crown of England, was as well by just Title of Inheritance, as by God's true judg­ment, in giving him the victory over his enemy in the Field.

[Page 49] In which, bating the Settlement in the time of the Con­fessor, H. 7. claim'd as W. 1. did, by the Inheritance of con­sanguinity, and that Success which gave him the preference before others of the same Blood; especially, since that enemy, whom he subdued, was held to be an Usurper.

This 'tis evident, that he was accounted before H. 7. Landed. But if it be truly considered, his Usurpation, if any, must have consisted in the Tyrannical Exercice of his Power, which the Duke of Bucks had urged to justify his Arms, and not from the assuming it; and that H. 7th's So­vereignty was founded in that election of the Body of the People, without a formal Convention, which pitch'd upon him as a fit Person to deliver them from their real or ima­gin'd Yoke. This will appear beyond contradiction, from the proceedings of the Parliament upon his Claim, and the moral impossibility of giving it any other colour. However, the Parliament took to it self full Authority in the matter; andStat. 1 H. 7. Rot. Parl. II est ordeign establie & enact par auctorite du die Parliament, &c. declaring their hopes that it might be to the pleasure of Almighty God, the Wealth, Prosperity, and Security of this Realm, by Authority of Parliament settles the Crown upon H. 7. and the Heirs of his Body, exclusive of all others. After which, indeed, they desire him to marry Eliz. E. 4th's Daughter,Rot. Parl. 1 H. 7. that by God's Grace there might be issue of the Stock of their Kings: but then special care is taken, that neither the King, or the Children by that mar­riage, should be thought to derive any Title from her: for tho' they, by Authority of Parliament, repeal her Bastardy declared 1o R. 3. they, by Ib. n. 18. the said Authority, ordein, that the then Act ne eny clause in the same, be hurtful or prejudicial to the Act of stablishment of the Crown of England, to the King and the Heirs of his Body begotten.

After this H. 7. obtains a Bull from the Pope, which says Bib. Cot. Cleop. E. 3. the Kingdom belonged to him, not only by right of War, and notorious undoubtedIb. proximo successionis titu­lo. nearest Title of Succession; but also by the election of the Prelates, Peers, Great Men, No­bles, and the Commons of all the Kingdom of England; and by the known and decreed Statute and Ordinance of the three States of the said Kingdom of England, In ipsorum conventu, &c. in their Convention called a Parliament.

[Page 50] According to this, tho' his Reign was held to have be­gun before he had been declared King, it was, as I shall have occasion to observe in other cases, only by way of relation to that solemn Investiture; without which he had never been King. That his Right must have been derived from a plain Election, is very evident; for,

1. He had beenVid. the Year-Book, 1 H. 7. f. 4. attainted in a Parliament of R. 3. and if the Royal Blood could not be so attainted but when­ever a former King ceased to be King, the Person so at­tainted, standing next to the Crown, should have his At­tainder purged by the descent of the Crown; then accord­ing to them of this Opinion, the Earl of Warwick, Son to George Duke of Clarence, who had been attainted by Par­liament in the Reign of his Brother E. 4. must have had the Right before H. 7.

And yet, if we regard the distinction between Proximity and Representation, H. 7. was, in that respect, more truly the Vid the [...]ull sup. next Heir to the Crown. But however, the resolution of the Judges,Year-Book 1 H. 7. f 4. Eo. Facto que il prist sur luy le royal dignity destre Roy. 1 H. 7. has been taken, they held the disability to cease eo facto, that he took upon him the Royal Dignity to be King; nor by any imagined Right of De­scent.

2. At least, one of the Children of E. 4. was alive when H. 7. came to the Crown.

3.This said of [...]. 6. and ap­plied to H. 7. Tho' in truth, it appears by the Statute reversing the Attainder of H. 6. to have been the judgment of H. 7th's Parliament, that H. 6ths Family, of which he was, ought to be the reigning Family; yet H. 7. had no pretence to preference in that Family, but from his Merits, and the People's Choice. For,

1. His own Mother, who stood before him upon that Line, was then alive.

2. He came from a Bastard branch, his Ancestor being the Bastard Son of John of Gaunt, during former Marriages on both sides. And tho' there was a legitimationRot. Parl. 20 R. pars 2. 20 R. 2. that neither did,m. 6. & 4 Inst. F. 36. nor was intended to extend to capaci­tate for the Royal Dignity: However, H. 7. is, in an Act of Parliament, calledRot. Parl. 3. H. 7. m. 15. Natural Sovereign Leige Lord.

Certain it is,The Attainder of the E. of Linc. that he was never in his time, or after, Authoritatively declared, or accounted, King only in Fact: [Page 51] and they who will take the distinction of King in Right and in Fact, from the last Parliamentary Declaration in this matter, before the Revolution, must hold; that till the re­stitution of the younger House, which had been settled the Regnant Family for three Reigns successively; all the Kings of the elder House were Kings only in Fact, but not of Right.

And yet it is not to be thence inferred, that while they of the elder House had possession, they were to be account­ed Usurpers, for not standing first upon that Line which ought to have had the preference: But when any Prince of either branch, had Justice done to his Merits, who would not say, that he ought sooner to have been King?

H. 8thAn. 1059. came in under the Authority of Parliament, which had made H. 7th the Head of a new Succession, as the Crown had been Entail'd upon him and his Issue. And tho' H. 8th's Mother was Daughter to E. 4. whatever Dr. Brady Introd. f. 391. next Heir to the Crown by proximity of Blood, as right Heir to his Mo­ther. suggests, it has appeared above, that parti­cular care was taken by H. 7th's Parliament, that the Crown should not be thought to descend by proximity of Blood; but that the Right of Succession was to be derived from Parliamentary Authority.

It is beyond contradiction, that in the judgment of H. 8th. and his Parliaments, the inheritance of the Crown was va­riable as Parliaments should determine; and that no Man could rightfully succeed, without such appointment.

By Authority Stat. 25. H 8. 6. 1. of his Paliament 25o. the Marriage with Katherine, Mother to Queen Mary, was declared void, and that with Ann, Mother to Queen Elizabeth, lawful, and the Children made inheritable, according to the course of Inhe­tances, and laws of this Realm; first to Males, then to Fe­males: 'twas made High-Treason by Writing, Print, Deed, or Act, to attempt any thing to the prejudice of that Set­tlement; and the substance of an Oath was appointedStat. 26. H. 8. afterwards made more express, by another Statute, re­pealing all Oaths to the contrary, and engaging the Sub­jects, in maintaining that Act of Succession, to do against all manner of Persons, of what estate, degree, or condition so­ever he be.

[Page 52] By28 H. 8. c. 7. Authority of Parliament, 28 H. 8. the Marriages with Queen Katharine and Queen Ann, are declared un­lawful, and the Children illegitimate; and the Crown is settled upon the issue of the Body of Queen Jane, E. 6ths Mother: for want of such issue, to such Person and Per­sons as the King should appoint by Virtue of the said Act. And it provides, that if any should attempt to succeed con­trary to that Settlement, they should lose and forfeit all right Title and Interest, that they may claim to the Crown, as Heirs by Descent, or otherwise.

The reason for reserving an appointment to the King is very remarkable; because, as the words of the Statute are, If such Heirs, should fail, as God defend, and no Pro­vision made in your life, who should rule and govern this Realm; for lack of such Heirs, then this Realm, af­ter your transitory life, shall be destitute of a lawful Go­vernor: or else per case encumbred with such a Person, that would covet to aspire to the same, whom the Subjects of this Realm shall not find in their hearts to love, dread, and obedient­ly serve, as their Sovereign Lord. And all offenders against that Act, their Abetters, Maintainers, Fautors, Counsel­lors, and Aiders, were to be deemed and adjudged High Traytors to the Realm.

According to which it is very evident,

1. That no Person would have had Right to succeed, who was not within the express limitations then made; or the future Provision by Virtue of the Authority of that Parliament.

2. If any Person should aspire to succeed from a pre­tended Right of Proximity, or the Settlement 1 H. 7. he would have been an Incumberer, or Usurper, of the Realm: unless the Subjects should find in their Hearts, or freely Consent, to serve him as their Sovereign Lord; that is, till he should be elected King.

3. That till the election of another King, there would be a vacancy; and whoever would pretend to be King till Elected, was punishable as a Traytor to the Realm.

By 28 H, 8, c. 10. Authority of the same Parliament, the Illegitima­tions of Mary and Elizabeth are continued; yet if the King, and Prince Edward should die without Heirs of their Bo­dies, [Page 53] the Crown was to go to the two Ladies successively: but their respective interests to determine, if they did not perform such Conditions as the King should appoint. And in case of failure of Issue, or in performance of the Con­ditions, least the Realm should be destitute of a lawful Governor, the Crown was to go as the King should appoint, in such manner as is there directed.

The35 H. 8. Settlement by Authority of Parliament, 28 H. 8. was by the same Authority confirmed in substance 35o, with a repetition of the inducement to place in the King a Power to appoint a Successor. But whoever should have been so appointed, or, for want of such appointment, elected by the Estates upon a vacancy, according to a Statute 25 H. 8. and that above cited 1 H. 7. would have become a natu­ral Lord.

That what I have observed in Acts of Parliament in the time of H. 8. proceeded not from the prevalence of any Party, or compliance with the King's humour, but was the settled Judgment of the Learned of those times, how much soever divided in other matters, may appear by some passages between the Learned Sir Thomas Moore, who had been Chancellor, and Ryche then Solicitor General.

Sir Thomas being a Prisoner in the Tower, for not own­ing the King's Supremacy, Ryche, to perswade him to com­ply, used this argument: later recor­da de An. If, says he, it should be enact­ed, by Authority of Parliament, that I should be King, and that if any one should deny it,27 H 8. sub cust. urrwum (que) Capital. Justic. & Attornat. it should be Treason, would you say that I were not King? For certain, adds he, in my conscience this would be no offence, but you would be obliged to say so, and to take me for King:Gen. Si in act­tat. fuisset au­toritate Parl. &c. si diceret non, &c. Vid. etiam B. Burnet's Hist. of the Ref. because your own consent was bound by the Act of Parliament.

Sir Thomas Answers, it would be an offence, if he should say he were not King: because he should be bound by the Act; for that he might give his consent to that matter. This, he said, was a light case: But what if a Parliament should enact,1 Vol. f. 354. That God should not be God? Ryche replies, It was im­possible God should not be God. But, says he, because your case from God is sublime, I will propose to you this of an inferior Nature: You know our King is constituted Supream Head on Earth of the Church of England, and [Page 54] why ought not you, Master Moore, so to affirm and take him, as well as in the case above, of my being made King? In which case you grant, that you would be obliged to affirm, and take me to be King. Moore says, these were not like cases, becauseQuia Rex per Parl. fieri porest & per Parl. deprivari potest. a King may be made by Parliament, and may be deprived by Parliament: to which Act, every Subject being pre­sent in Parliament, may give his consent: But to the case of the Primacy, he cannot be obliged, because to that he cannot give his consent in Parliament, &c. And it is ob­servable, that tho' this is set forth in the Indictment against Sir Thomas Moore, it is only used as proof of his denying the Supremacy; without any aggravation from what he says of the Power of a Parliament in the present Question.

E. 6.1546. succeded H. 8. according to Parliamentary Set­tlements, without any formal recognition.

Nor was1553. Mary, his half Sister, who succeeded him, recognized, but her Parliament thought it for her Honour to take off her illegitimation, tho' that was not necessary to give her a Right to the Crown: nor did that Parliament use any expressions whereby they might seem to think so. When she came to marry Philip King of Spain, they fully asserted their rightful Power; all the marriage Articles be­ing settled by Stat. 1 M. c. 2. Authority of Parliament: By that, Philip is made an English King: 1 and 2 P. M. c. 9. Another Parliament makes it forfeiture of Goods and Chattels, and perpetual Imprison­ment the first time, and High-Treason the second, after a former Conviction, maliciously to maintain, that either of them ought not to enjoy the Stile, Honour, and Kingly Name.

Her Right was founded upon the express limitation to her by Authority of Parliament; and her Husband's not in 1558. marrying her, but the consent of Parliament. Upon the same Right her half Sister Elizabeth succeeded her. By that good Providence which so often appear'd for her, Mary dyingCamden. Eliz. f. 12. while a Parliament was sitting; ‘The States, with general consent, decreed Elizabeth to be pro­claimed true and lawful Heir to the Crown, according to the Act of Succession,, 35 H. 8.’

[Page 55] And in the Act of Recognition, she is declared,Stat. 1 El. c. 3. their rightful and lawful Sovereign Leige Lady and Queen.

Soon after this, in a Letter written with her own hand Camd. to Ferdinand the Emperor, she tells him that she by God's goodness succeeded her Sister, by right of Inheritance, and consent of her Subjects.

Tho' she had sufficient opportunity to have procured an Act of Parliament to take off her illegitimacy; she seemed with wisdom to decline it.

1. Because the Authority of Parliament, under which she claimed, was more generally acknowledged in those days in relation to the Succession of the Crown, than in voiding or confirming Marriages: which has been held a Spiritual Matter.

2. To admit that she owed her Crown wholly to the Authority of Parliament, could not but be more popular, than to pretend to it by right of Blood.

In theJournals of Q. Eliz. f. 105, 106, 107. 8th and 9th of her Reign, the Lords addressed to her, that a Successor might be appointed in Parliament, least God should call the Queen, without certainty of Succes­sion: and affirm, that the not granting their request, would leave the Realm without Government.

In theStat. 13 Eliz. c. 1. 13th of her Reign it is made Treason during her Life, and forfeiture of Goods and Chattels after her death, to deny the Power of Parliament to limit and bind the Crown, and the Descent, Limitation, Inheritance, and Go­vernment thereof; and a penalty is set upon them, who should affirm, that any, but the Issue of the Queen's Body, had right to succeed after her.

For any one who expected the Crown, to pretend to it while she lived, is made disability during life only: but by aStat. 27 Eliz. subsequent Statute approving and explaining the voluntary Association of the Subjects that year, every such Person is excluded and disabled for ever. And tho' atCamd. Eliz. the time of giving judgment against Mary Queen of Scots, it was declared to be without prejudice to her Son; that could not hinder the operation of the Law upon that Sta­tute: and I would gladly know how he could have any right, since he had no pretence as a special Heir, under any Parliamentary Settlement then in force.

[Page 56] Upon the Queen's Treaty of Marriage 14o of her Reign with the French King's Brother, she declaredCamden f.160. that she could not grant, An. 1571. 14 El. without the assent of the States of the Realm, that he should be Crowned after the Marriage.

InCoke's En­tries f. 373. 380. an information in the Exchequer 21o of her Reign, upon which judgement was given, with the advice of the Judges of both Benches, Lands are said, after the death of E 6. to have come to Queen Mary, as his Sister and Heir, as in right of the Crown; and so from her to Queen Elizabeth: In both which instances, according to the judgment of that time, the rightful Possession of the Crown made them Heirs to their respective Predecessors: notwithstanding the half Blood of both, and the continuing illegitimacy of one of them.

ThatAn. 1602. J. 1. could not rightfully succeed that glorious Queen, without an election by the States of the Kingdom, had been declared with sufficient Authority in her time, and in the time of H. 8th. and without such Declaration would appear by the observing how the Law stood, and was ta­ken in all former times.

But whatever right was ascribed to him after he got Possession; his Party here found it requisite to setVid Camd. up a will or nomination of Queen Elizabeth, Eliz. & Wil­son's Hist. of J. 1. to facilitate his accession to the Throne.

Then with a new strain of Loyalty, Judges, Lawyers, and Juries, concurred in making attempts to prevent his coming to the Crown, Treason: the like of which, withal its Circumstances had not been known in any Age of this Monarchy. Tho' there had been Treason against W. 1. before his actual admittance to the Crown, it was, as has appeared above, after a National Settlement upon him by name: and this was the case of the unfortunate Lady Jane, and others who set l er up against Queen Mary. Yet that complement to J. 1. was but suitable to the flat­tering Act of Recognition 1o of hisStat. 1. J. 1. Reign: accor­ding to the Preamble of which, immediately upon the de­cease of Queen Elizabeth, the Crown did by Inherent Birth­right, and lawful, and undoubted Succession, descend and come to him; as lineally descended from Margaret, Daughter to

[Page 57] However, that Parliament made no Law in the Matter, and, by good luck, left the constitution as they found it: for they made no Settlement of the Crown, only offered that recognition as the first Fruits of their Faith to him, and his Royal Progeny, and Posterity for ever; which, if it had been a Settlement, would amount to no more, than what had been usual in former times; for Parliaments to make a branch of the Royal Family, a new head of future Suc­cessions: but by this any one of the Issue, or Posterity, stood fair for an election.

Yet, possibly, the Parliament had not been so forward with these Fruits of their Loyalty, but for his Speech to 'em, wherein he says,

Vid. K. Every King in a settled Kingdom is bound to observe the Paction James his Works. made to his People by his Laws, in framing his Go­vernment agreeable thereto. And a King governing in a settled Kingdom, leaves to be a King, and degenerates into a Ty­rant, as soon as he leaves off governing according to his Laws. In which case the King's conscience may speak to him, as the poor Widow said to Philip of Macedon; either govern according to your Law, or be no King.

The Parliament take him at his word, and grafting up­on it, say,Stat. 1. J. 1. His Majesty hath vouchsafed to express many ways, how far it is, and ever shall be from his Royal and Sincere Care and Affection to the Subjects of England, to alter, or in­novate, the Fundamental, and ancient Laws, Priviledges, and good Customs, of this Kingdom: whereby not only his Legal Authority, but the Peoples security, of Lands, Livings, and Priviledges, both in general, and particular, are preserved and maintained. And by the abolishing or altering of the which, it is impossible, but that present confusion will fall, upon the whole state and frame of this Kingdom. Where, in as modest terms as they could, they bid the King, at his peril, to violate the Fundamental Laws, on which his regal Authority depended, as well as their Rights and Priviledges.

But that King soon forgot upon what terms he had been received King; and, getting the leading Clergy on the side of his Divine Right, it pass'd at that time as the Doctrine of the Church of England.

[Page 58] While this fit of Loyalty lasted, C. 1. succeeded as by inherent Birthright, without any formal recognition: which then began to be thought needless. The occasions of the War between him and his Parliament, I shall not enquire into, but shall content my self with Dean Sermon be­fore the House of Commons p. 6. Sherlock's concession; who, as he will not dispute the lawfullness of re­sisting the King's Authority, and whether it were lawful for the Parliament to take Arms against the King, to desend the Laws, and Liberties of their Country; admits that they had aIb. They could pretend to no farther right &c. right to keep the King within the boundaries of Law: these C. 1. apparently broke; and where there is noVid. Vindic. of the Case of Allegiance p. 46, 47. Tribunal on Earth to appeal to, the Dean allows use of the Sword. But whatever was the consequence of that War, there has been no reason for the Pulpits to sound to loud, and long as they have done, with, denunciations of God's wrath, but, indeed, the Clergies, against this Kingdom, for what hapned in a War, for which the Parliament and People, who would not have carried the Point so far, as it unhap­pily went, are not to answer. C. 1. dying a deplorable death, the Nation was left without the exercice of any Legal Government, till the Restoration of C. 2. who was accounted King from the death of his Father.

But by what Law, or in what respect is worth enquiry, and will it appear.

1. That the supposed Maxim that the King never dies,Finehes de­scription of the Common Law ed. An. 1613. is of very late and doubtful Authority, in comparison with those which shew that no Man was, or ought to be ac­counted King, till he had been formally recognized.

2. Yet tho' this should be true, when any Prince suc­ceeds in vertue of a Settlement, made in the Ancestor's life time; it will not be so where there has been none, as was the case of C. 2.

3. If one should in the eye of Law be King immediately upon the death of an other, it would not follow that this would be by a strict right of descent; but that after the being admitted King, there should be a relation backwards, to prevent the loss of any rights belonging to the Crown: and thus it was plainly taken by the Chief Justices Dyer Dyer f. 165. Ander­son f. 44. and Anderson, who say, that the King who is Heir, or Successor, may write and begin his Reign, the same day that his Progenitor, or Predecessor, died.

[Page 59] And agreeably to this, it was the resolution of all the Judges of the King's Bench in Queen Elizabeth's time, that a saving to a King and his Heirs, shall go to a Successor of the Crown, tho' not Heir to that King.

That J. 2. made too great haste to succeed his Brother C. 2. now at least Men will be apt to believe: of whom I shall observe only in short,

1. That he was within no Parliamentary Settlement of the Crown then in force.

2. The best pretence J. 2. had of coming to the Crown without an immediate election, must have been the Settle­ment 1o H. 7. But no shadow of reason can be assigned, why the late Act of Settlement was not as rightful, and with as true Authority, as that 1o H. 7.

3. J. 2. being reconciled to the Sea of Rome, which is High Treason byStat. 23. our Law, and for which he had been convicted in his Brother's time,Eliz. c. 1. if the Indictment had not been arbitrarily defeated, was as much disabled from succeeding to the Crown, as the Family of George Duke of Clarence, by reason of that Duke's attainder.

4. Admit the assuming the Royal Dignity, had purged the former disability; the continuing a Papist was a constant incapacity to be the Head of this Protestant Church, Will you grant and keep &c. and Kingdom; rendring it impracticable for him to answer the end for which our Kings had been constituted. namely the Laws, and Cu­stoms, and Franchises granted to the Clergy, by the glorious King St. Edward your Predeces­sor according to the Laws of God, and the true profession of the Gospel, established in this Kingdom: and a Greeing to the Prerogative of the Kings thereof, and the ancient custom of this Realm.

5. He was never duely invested with the Royal Dignity Lib. Rega­lis penes Deca­num West. & Sandford's ac­count of the Coronation. not having taken the appointed Coronation-Oath: which for his sake, was traiterously altered; with an o­mission of the Rights of the People, and an unjustifiable Salvo for Prerogative. Nor was he ever fully recognized.

6. By seizing the Customs, and raising Taxes, without Autho­rity of Parliament, dispensing with the Laws of the Kingdom, raising and keeping a standing Army in the time of Peace, and the like enormities; he violated that constitution which should have made or kept him King: and if he ever was King, more than Harold, the Son of Earl Godwin, mani­festly ceased to be King, before his abdication.

[Page 60] 7. However it may have been at his first leaving the Kingdom, without any other Government, than what, ac­cording to ancient Custom, fell upon the States of the King­dom; he, having since discovered a settled intention to destroy the People of England, or the greater part of 'em, by a Foreign Power, with their Party here; accordingVid. Falk­ner's Christian Loyalty p. 526. to those Casuists who are most favourable to such rights as he has claimed; from the time, at least, of his manifesting such intention,Citing Barklay. &c. he ceased to be King: and His present Ma­jesty having been regularly declared King; the other is totally barred from all claim, and colour of pretence.

How great a noise soever some make for him since his flight after their deseting him; the greatest sticklers for his suppos'd rightful Authority, being disappointed of their sanguine expectations, warmly opposed his exercice of those rights to which their servillity had encouraged him: the very Bishops, who for his sake have set up for heads under him of a separate Church; not only disobeyed hisConcerning the Declaration of Indulgence. positive commands in matters which at other times, at least in things of the like nature, they would have contended to belong to his Headship of the Church; butVid, the Bishops Ad­dress to J. 2. they would have limited his Power little less than the 19 Propositions to C. 1. which they had long seem'd to abhor.

Some of their Party, if not themselves, joyn'd in sollici­ting his present Majesty to undertake our Deliverance: and a certain Person who would be thought never to have de­parted from their Principles, is said to have gone so far as to sign the invitation: tho' upon second thoughts he desired to have his name scratch'd out.

The Bishops being required to signVid the Form printed in Reflections upon the Jaco­lite Form of Prayer p. 26. an abhorrence of that enterprize, absolutely refused it. Their Archbishop was one of them who11 Dec. 1688. petitioned his present Majesty to take the Government upon him, before the late King left Eng­land: and Non-assistance to their jure Divino King, was be­come as Catholick Doctrine as Non-resistance.

During this time the designs of the Party were kept secret, but the People began to hope well of the Body of the Eng­lish Clergy; believing them, by a wonderful providence, to be reformed in their Principles of Government, with which they had brought a scandal upon the Reformation.

[Page 61] But the Convention meeting, to provide for the Peace and Settlement of the Nation; it then appear'd, that the migh­ty Zealots for the Monarchy, were only for setting up them­selves; and in truth, would have no Sovereignty but in the Church, as they called their Faction: for as they would not have his present Majesty to be King, but a Regent, or Officer for the interim, till the late King, should come to their terms: neither did they truly own him for their King; whom they neither would assist as Subjects, nor consult in choosing a new Government.

However, the Throne having, according to former Pre­sidents, and the plain right of the Kingdom, been decla­red Vid. the Vote of the Com­mons Jan. 28. 1689. and that of the Lords Feb. 6. vacant, upon the late King's breach of the original con­tracts, and abdication; the Lords and Commons, reciting many particulars of his misgovernment,Stat. 1. W. M. Ses. 2. cap. 2. resolve that William and Mary, Prince and Princess of Orange, be, and be declared, King and Queen: and make a farther Settlement of the Crown.

They having accepted the Crown,Vid. the Proclamation. the Lords and Commons, together with the Mayor and Citizens of Lon­don, and others of the Commons of this Realm, with full consent, publish and proclaim William and Mary, Prince and Princess of Orange, to be King and Queen of England, France, and Ireland; and in the Proclamation, own a miraculous deliverance from Popery, and Arbitrary Power; and that our preservation is due, next under God, to the resolution and conduct of His Highness the Prince of Orange, whom God hath chosen to be the Glorious Instrument of an inestimable Happiness, to us and our Posterity.’

A Parliament called soon after, Stat. 2. W. M. Ses. 1. cap. 1. declares, and enacts, that they do recognize and acknowledge, that Their Majesties are, and of Right ought to be, by the Laws of this Realm, their Sovereign Liege Lord and Lady, King and Queen of England, &c. in, and to whose Princely Persons, the Royal State, Crown and Dignity of the said Realms, with all Ho­nours, Prerogatives, &c. are fully, rightfully, and entirely, In­vested, Incorporated, United, and Annexed.

Notwithstanding which, many who have sworn to bear Faith and true Allegiance to King William, will be wiser than the Law, not only declared by this Act of Parliament, but [Page 62] by several in former Reigns; and with a gross Jesuitical evasion, without any colour of foundation in Law or Rea­son, pretend that they have sworn to K. William only as King in Fact; but that another was rightful King at the same time.

This groundless and wicked distinction, appears to have engaged some Men in an horrid and barbarous Plot against his Majesty's Person and Government, tho' they had sworn to be true and faithful to him: and it seems, by the case of Sir John Perkins, that neither he, nor his Casuists, thought the Oath to King William any departure from the Allegiance to King James: nor the design of Assassinating King William, any breach of the Oath to him.

Since therefore the deceit has taken rise from the sup­position, that the late King continues King of Right, to­gether with the general terms of the Oath, which are pre­tended to leave a latitude for this illegal and nonsensical supposition; and an Oath more explicit has been artfully kept off; a voluntary Declaration that his present Majesty, King William, is Rightful and Lawful King of these Realms, as it is fully warranted by the fundamental constitution of this Government, is, at this time, become a necessary du­ty; when it is evident to the World, what they who are of a contrary Opinion, will act, as they have opportunity. But to engage to stand by and assist each other in the de­fence of His Majesty's Person and Government, is not more a consequence of the declaring him rightful and law­ful King; than it is implied in the Oath of Allegiance ap­pointed by the Act of Parliament which settles the Crown; and, however, the Common-Law Oath, and the legal sense of Allegiance, manifestly require it.

If any who have taken the Oath of Allegiance, to his pre­sent Majesty, scruple to associate, because of the declaring His Majesty to be rightful and lawful King; it is evident, that they prevaricated when they swore. If they questioned the legality of entring into this before there was a posi­tive Law for it; 'tis certain, they have been little ac­quainted with the Common-Law Oath of Allegiance, and the warrantable Presidents of former times; according to which, theStat. 7 & 8 W. 3. For the better Security of his Majesty's Royal Person and Government. late Act, late Act, which enjoyns some to Sign the [Page 63] Association, not only gives it Sanction for the future; but, with express relation to its being voluntarily enter'd into, by great numbers of His Majesty's Subjects, declares that it is good and lawful.

And any Man who impartially weighs what I have laid together from Records, and other Authentick Memorials of pass'd times, must own, that it is, with full and indu­bitable Authority, enacted, That ‘if any person or persons shall maliciously, by Writing, Printing, Preaching, Teach­ing, or advised speaking, utter, publish; or declare, that His present Majesty is not the lawful and rightful King of these Realms; or that the late King James, or the pretended Prince of Wales, hath any Right or Title to the Crown of these Realms; or that any other person or persons hath, or have any right or title to the same, otherwise than according to an Act of Parliament made in the first year of the Reign of His present Majesty, and the late Queen, Intituled, An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown; such person or persons, being thereof lawfully Convicted, shall incur the danger and penalty of Prae­munire.

To imagine that after all this, the late King either is, or ought to be King, is to flight all Authorities, Ancient as well as Modern.

Which leads me to the Nature of our Lawyer's offence,Proof of the 6th general head. who, before the Act for the Security of His Majesty's Person and Government, held the Signing the Association to be an Overt-Act of Treason against the King de Jure: which, as has appeared above, tends manifestly to depose and un­king His present Majesty, as in the Eye of the Law there is but one King, and he is the only King de Jure.

Besides, this Gentleman admits, That by the Statute 11 H. 7. Allegiance is due to a King in Fact, and that the Oath of Allegiance was to be taken to him: nor can pre­tend that there ever, till of late, was any other Oath but what expresly obliged to the Defence of the King and Kingdom against all Men: therefore in consequence of his own Notion he must grant, that to contend that there may be Treason against any other but the King for the [Page 64] time being, is to suppose two contrary Allegiances; and therein to depart from that Allegiance which was due, even by his own interpretation of the Statute 11 H. 7. But it being evident, that by that Statute, and the whole course of the Common Law, there is but one King, I need not tell him the Crime of publishing a written Opinion, manifest­ly importing an endeavour to Depose him.

If this had been delivered only in Words, it is well known who used his Oratory to make words alone Trea­son, within the Statute 25 E. 3. for which I may refer him to the Trial of the now Earl of Macclesfield, in the be­ginning of the late King's Reign: and to the Author of the Magistracy and Government Vindicated.

But as the Opinion was written; he may well know from what late Authority, Soribere est agere, is become a Maxim, or Proverbial.

Nor can he deny the Words to be within the reason of what the Court heldYelverton, f. 1 07. 5 J. 1. in Blanch Flower's Case, of a Man's affirming the King to be a Bastard; or that another had better Tittle to the Crown: because it may draw the Subjects from their Allegiance, and beget Mutiny in the Realm: or Owen's Case, of declaring it Lawful to kill the King being 1 Rolls, f. 185. Excommunicated by the Pope: both which, not to mention more of the like kind, were adjudged High-Treason. According to the Print of the later Case, it would seem that Words alone made the Treason'; but it appears, by aBanks MS. p [...]nes meipsum Pas. 13 J. 1. MS. Report of one who had been Attorney Ge­neral, and afterwards Chief Justice of the Common-Pleas, that Owen's Subscribing his Confession of what he had publickly declared, was gi­ven in Evidence as the Overt-Act.

But if any Lawyer, who has labour'd to make Treason of Words alone; or Writing alone, without Publication; or Signing an Asso­ciation to defend the King for the time being, against one who had been King, but is not; should appear, not only to have Written, or Signed, the Opinion above, after a Discourse shewing to what Per­sons it related; but to have publish'd this; and to have Solicited Men not to Subscribe the Association, upon those, or the like topicks; should he be Convicted of High-Treason against our Sovereign Lord the King; it would be difficult not to apply that of the Poet,

—Nec lex est justior ulla,
Quam necis artifices arte perire suâ.
None can the Justice of that Law deny,
By which, who strain'd it against others, dye.

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