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.

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.

A Hales'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 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's Nota, 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.

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 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, 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.

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.

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.

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.

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 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. Domitian A. 8. Sax. & Lat. which ſhews him to have been King of Kent, Surrey. and Suffex. 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 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.

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.

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 leftVid. Dr. Bradies uſe of this Introd. f. 360. Heir of his Father's Kingdoms, as well as Vertues: which Hiſtorians ſinceEaduuardum elegerunt, &c. miho; terras ad regios pertinentes filios in meos uſus tradiderunt 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 accordingCited and applied Spelmans Glos f. 277. to Florence of Woſter, he ſwore to be Faithful Lord, as the People did to be Leige Subjects. Bib. Cot. Cleo • . B. 13. De regno & nominibus Regum Anglor, &c. De Edm. Irnenſide Iſte erat Baſtardus.

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 timesGemet f. 271. Ipſe autem exivit hominem Edw. totius regni reliquit haeredem. Malms. f. 450. Poſt. Hard. fr. ipſius ex matre ribus Angliae in Regem electus &c. Heir of the Kingdom to the laſt Poſſeſſor Hardecnute, his Brother by the half blood. And yet it is obſervable, 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.

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.

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, 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 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 Vid. Introd. f. 326. 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 beThe juſticiaries or Chief Juſtices, the Chancellors, the Lawyers, the Miniſterial Officers, and under Judges, Earls, Sheriffs, Bailiffs, Hundredaries, were all Normans from his firſt coming until above 100 years. Introd. f. 20. The Engliſh had neither Eſtates nor Fortunes left, and therefore it could be no matter to them, by what Law, Right, or Property, other Men held their Eſtates. 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.

He adds.

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 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.

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 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, or Scotland'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, butMat. Par. de An. 1188. Ducatus Norm, gladium ſuſcepit &c. not till he had been ſolemnly inveſted with the Sword of that Dukedom. And Bromton informs us, that he accepted the Crown uponBromton f. 1159. condition of keeping his Coronation Oath; without undertaking which, the Archbiſhop charged him not to aſſume the Royal Dignity. He going to the holy Wars after his being Crown'd, his Brother John would have ſeiz'd the Government as vacant, but had no tollerable pretence, the War having been carried on with a National Conſent. Upon this, it was adjudged by 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. 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 Mat. Par. Addit. f. 281. The French King's Advocate ſays, Dare non potuit, potuit tamen dimittere eam. Ib, vacans ita que regnum ſine Barcnibus ordinari non debet; unde Barones elegerunt. become vacant; and during the vacancy, the Adminiſtration devolved upon the States: whereupon they reſolved to elect a new King, and ſent a ſolemn Embaſſy to the King of France, to ſend over his Son Lewis to be King of England; whoſe wife was John's Siſters Daughter. But the chief inducement to this Election, ſeems to have been that expectation, in which they were not deceived, that the 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. An. 1236. 20 H. 3. In ſignum quod eſt Comes Palatinus & Regem ſi oberret habeat de jure, poteſtatem cohibendi. Vid. Wendover. A Coronation at Canterbury 5 H. 3. Vid. etiam Lib. de Antiq. Leg. in Archivis Civ. Lond. f. 117. A Proclamation 53 H. 3. declaring that he would not then wear his Crown, and diſpenſing with the Services of the Citizens of London and others. one of his Coronations, had the Confeſſor's Sword carried before him, by the Earl of Cheſter, one of the Earls Palatine of England, for a ſign that that Sword was not to be born in vain.

He having trod in his Father's ſteps, the States were likely to have made good their 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 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 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, 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 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 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 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 ParliamentCommuni conſenſu regni juxta morem ejuſdem regni, &c. according to the Cuſtom 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 Party, till 26 H. 6 yet after Vid. 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.

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 by Vid. 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. 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 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 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, Baggot's Caſe 9 E. 4. Car-le corone fuit taille a lay per Parlement. 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 And furthermore by the ſame avis and auctoritie, wolle, conſenteth and agreeth, that after his deceſſe, or when it ſhall pleas his highneſs to ley from him the ſaid Corones &c. or thereof ceaſſeth &c. 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.

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 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, 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 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 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.

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.

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 been Vid. 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: 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.

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, 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 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.

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.

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

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.

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.

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.

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.

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 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 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 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,