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 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 attaints R. 3. for traiterously conspiring against their Sovereign Leige Lord H. 7. Another 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 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. 7 ths Right and R. 3 ds 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 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. 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 that the Judgment of Hen. 7 ths 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
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 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 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 28 th 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 they 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 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 the 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. And forfeiture committed by H. 6. The 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 was on the 4 th of March Now if it shall prove that in the judgment of King Edward's own Parliament his right ot turn H. 6. out of Possession was founded in H. 6 ths breach of the Contract establish'd in Parliament that E. 4. was not King till the 4 th 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 declaring E. 4 ths Title is held to be a restitution to the same so that the very Title or Right was as if it had been extinguished 2. It is in that Act 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. is adjudged to have been in lawful Possession of the Realm upon the 4 th 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 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 the Act attainting H. 6. he is charged with the Murder of Richard Duke of York the first Treasonable Fact in H. 6. and others is laid in levying War on the 29 th of March and imagining to depose their Sovereign Lord Edward who had been declared King on the 4 th of that March and H. 6 ths 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
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. 7 th'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 and 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 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 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 the Kingdom belonged to him not only by right of War and notorious undoubted 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 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 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 next Heir to the Crown But however the resolution of the Judges 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. 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 legitimation 20 R. 2. that neither did nor was intended to extend to capacitate for the Royal Dignity However H. 7. is in an Act of Parliament called Natural Sovereign Leige Lord. Certain it is 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. 8th 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 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 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 't was 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 appointed 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 By 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 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 The 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 If says he it should be enacted by Authority of Parliament that I should be King and that if any one should deny it 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 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 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 because 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. succeded H. 8. according to Parliamentary Settlements without any formal recognition Nor was 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 Authority of Parliament By that Philip is made an English King 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 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 dying 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 their rightful and lawful Sovereign Leige Lady and Queen Soon after this in a Letter written with her own hand 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 the 8 th and 9 th 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 the 13 th of her Reign it is made
a sence very different from the Modern vulgar Notion Nor does the Judgment even of E. the 4th's own Parliament in the least favour the late King however if it did later Parliaments in the time of H. 7. have taken away all colour from such pretences That the Eldest Son even of the most Rightful Regnant King was not King upon the Death of his Father without a Parliamentary Settlement of the Crown upon him before his Fathers Death nor with it till the States of the Kingdom had actually received and recognized such Son will appear beyond contradiction And that the Eldest Son 's Right was only a Right to be declared King unless he was unfit to Reign or the exigencies of the Publick required the advancing some other Person of the Royal Family If a deserving Person was kept back or one so judged by his own Party or the Nation when he prevailed the least Complement they could make him was that of Right he ought to have been King before he was King but farther they never extended their Transports of Loyalty nor ever Authoritatively declared That he had such a Right as made him King while another possessed the Throne And till he got Possession it was never declared that he had Right Nor does the setting one aside before his coming to Possession or after make any difference in the Nature of the Right in question And I shall put it beyond Controversie that whenever a worthy Person of the Saxon Royal Family especially of that branch which for some Successions had been settled as the Regnant Family was solemnly recognized by the States of the Kingdom upon the Death or disability of a Person who stood forwarder in the Royal Line the Person so recognized became King de Jure and no other Person had any manner of Right unless such as was in Abeiance or in the Clouds and indeed no where till Possession brought it to Light and Being 3. Fully to shew this Gentleman his mistakes upon the Statute 11 H. 7. it will be requisite to transcribe the whole which is as follows The King our Sovereign Lord calling to remembrance the Duty of Allegiance of his Subjects of this his Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the Defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter and abide in Service in Battle if case so require That for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince as in this Land some time passed hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon him in his Person or being in other places by his Commandment within this Land or without any thing should leese or forfeit for doing their true Duty and Service of Allegiance It be therefore Ordained Enacted and Established by the King our Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament Assembled and by the Authority of the same That from henceforth no manner of Person or Persons whatsoever he or they be that attend upon the King and Sovereign Lord of this Land for the time being in his Person and do him true and faithful Service of Allegiance in the same or be in other places by his Commandment in the Wars within this Land or without that for the said deed and true Duty of Allegiance he or they be in no wise Convict or Attaint of High-Treason or of other Offences for that Cause by Act of Parliament or otherwise by any Proces of Law whereby he or any of them shall now forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chatals or any other things but to be for that Deed and Service utterly discharged of any Vexation Trouble or Loss And if any Act or Acts or other Proces of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that Act or Acts or other Proces of Law whatsoever they shall be stand and be utterly void Provided always that no Person or Persons shall take any Benefit or Advantage by this Act which shall hereafter decline from his or their said Allegiance Here 't is observable 1st That whereas this Gentleman absurdly supposes that it is Treason to engage to fight against one whom one may lawfully kill and that one may enter into a contrary Allegiance but may not do any voluntary act of Allegiance it is evident by the Words that if Swearing Allegiance is safe so are all voluntary Acts of Allegiance for the Swearing is not expresly provided for by that Act or any otherwise than as it is a part of the Duty and Service of Allegiance to the Sovereign Lordâ— but if Associating for the Defence of the King's Person and Right be part of the Allegiance due then that is as much provided for as the Oath is and consequently this Gentleman must grant that the Statute 11 H. 7. indemnifies the present Associators That this is part of the Allegiance due appears by the Common-Law Oath of Allegiance affirmed in the Laws of W. 1. and continued down to this day in Substance and Obligation according to which all the Freemen of the whole Kingdom are to affirm with a League or Association and Oath that within and without the whole Kingdom of England they will be faithful to their Lord the King preserve his Lands and Honors with all fidelity together with his Person and defend them against Enemies and Strangers And in an other Chapter of that Law after Provision that all Freemen shall enjoy their Estates as had been before enacted and granted in a Common-Council of the whole Kingdom it adds We also enact and firmly enjoyn that all Freemen of the whole Kingdom be sworn Brethren or Associators to defend our Monarchy and our Kingdom according to their Strength and Faculties and manfully keep the Peace and preserve the Dignity of our Crown entire and constantly to maintain Right and just Judgment by all means according to their power without fraud and without delay What is this but an Association to defend the King and Kingdom against any Person whatever and by consequence to declare that the King for the time being is the only Rightful King Since his Person Crown and Dignity is to be preserved by all means in their Power This part of the Common-Law is affirmed by the Statute 11 H. 7. declaring it the Duty of Allegiance to defend the King and Land against every Power and Might and therefore as well against Pretenders to Title as others 2. This Act expresly indemnifies for voluntary Acts of Allegiance against the mind and will of the Prince 3. It can by no means have
come without a manifest departure from their avowed Principles and therefore to keep to them they must give up the only colourable Authority for their notion of King de jure and de facto And they must yield that there is not the least shadow of pretence from what was held in those times that there was a King of right at the very time that an other was in fact it going no farther than that the Person who was King ought not to have been King but while he was King the other was none 7. The judgment of E. 4 ths first Parliament whatever hard names they gave that Family on which they trampled was so far from being an Authority as has been pretended against the receiving his present Majesty upon the late King's breach of the Original or Common-Law Contract confirmed by several declaratory Statutes of the Kingdom and the solemn Oaths of our Kings that it is express for the eviction and amotion of one King upon his breach of a contract establish'd in Parliament and the setting up an other by an election And it is observable that the Act 1º E. 4. which confirms several judicial and other Acts of such as it calls Kings only in fact says other than by Authority of any Parliament holden in their times plainly admitting that Authority to be sufficient in it self H. 6. coming again into Power because of a Possession with such a consent of the People as made E. 4. King was formally again elected at the Tower and in H. 7 ths time was adjudged to have had his attainder purged by his re-adeption of Power which seems not to have been till he had been re-elected Then H. 6. calls a Parliament where he in his turn attaints the Adherents of E. 4. and as we are to believe himself but the Record of that having been cancelled and the Rolls loss'd it appears not whether it was for any Act committed before H. 6 ths re-adeption of Power The Tide again turning for E. 4. all the Acts of that Parliament are reversed and declared or made void from the time that he had been declared he was held to have continued the Possession of the Regal Dignity tho' with-held from the exercice of the Power and therefore H. 6. from the first admission of E. 4. to the Crown was accounted no King and his Parliament to be but a pretenced Parliament E. 4 ths usage of H. 6. was repaid to his Sons by their Uncle R. 3. some will have it that he made them away as indeed is intimated in the Act attainting R. 3. but 't is certain that they were bastardized in a Convention whose Acts were by Parliament after Richard was admitted King declared for truth and not to be doubted and there are Authorities to induce the Belief that Edward's Sons were really Bastards by reason of the Father's pre-contract however the Convention declared that they were not fit to Reign because they were Infants and their Mother ignoble and married clandestinely without the knowing and assent of the Lords George Duke of Clarence the next Brother to E. 4. having been attainted in a Parliament of E. 4. they having singular confidence in Richard's particular merit have chosen in all that in them is and by that their certain writing choose him their King and Sovereign Lord to whom they know of certain it appertaineth of Inheritance to be chosen And observing that tho' the Learned in the Laws and Customs know his Title to be good the most part of the People is not sufficiently learned in the Laws and Customs they declare that the Court of Parliament is of such Authority and the People of this Land of such a disposition as experience teacheth that Manifestation and Declaration of any Truth or Right made by the three States of the Realm assembled in Parliament and by Authority of the same maketh before all other things most faith and certain quieting of mens minds and removing the occasion of doubts and seditious language Therefore by the Authority of that Parliament it is pronounced and declared that their Sovereign Lord the King was and is the very undoubted King as well by right of Consanguinity and Inheritance as by lawful Election Consecration and Coronation And they Enact Establish Pronounce Decree and Declare Edward the King 's eldest Son Heir Apparent to him and his Heirs of his Body Any Man who compares that Act at large with the former Presidents must see that it was penn'd with great Wisdom and regard to the Constitution of the Monarchy And tho' out of an usual complement to the prevailing side R. 3. has generally been represented as a Monster in Person and Nature the learned Buck has made it doubtful which was the most deserving in all things R. 3. or H. 7. Certain it is that tho' the Crown had by Authority of Parliament been settled in remainder after H. 6. upon Duke Richard and his Heirs and that Duke's Grand-daughter was alive and marriageable in the Reign of R. 3. her suppos'd Right gave him no disturbance and his Possession was very quiet till he disobliged the Duke of Bucks who was the great Instrument in setting him up by rejecting his Claim to be High-Constable of England which was an Authority dangerous to be trusted in the hands of so popular a Man nor could the Duke and his Faction expect to succeed in their conspiracy without the support of French Forces and accordingly applied themselves to Henry Earl of Richmond afterwards H. 7. with whom the Duke of Brittany had for some years kept even E. 4. in awe Henry was glad of the opportunity and to strengthen his Interest agrees with some of his Party to marry the Daughter of E. 4. but was far from making any claim in her right It is very probable that one of E. 4 ths Sons was then alive be that as it will as appears by the Statutes 1 H. 7. cited above his Parliament held that he landed with Title and R. 3. being deserted and slain in the Field of Battle that opposition to Henry was by Authority of Parliament adjudged Treason against the Sovereign Lord of this Land and H. 7 th was held to have recovered his right After this when H. 7. meets his first Parliament he with his own Mouth tells the Commons in full Parliament that his accession to the Right and Crown of England was as well by just Title of Inheritance as by God's true judgment in giving him the victory over his enemy in the Field In which bating the Settlement in the time of the Confessor H. 7. claim'd as W. 1. did by the Inheritance of consanguinity and that Success which gave him the preference before others of the same Blood especially since that enemy whom he subdued was held to be an Usurper This 't is evident that he was accounted before H. 7. Landed But if
REFLECTIONS UPON A Treasonable Opinion Industriously promoted Against SIGNING the National Association AND The Entring into it prov'd to be the Duty of all the Subjects of this KINGDOM Hoc quidem perspicuum est eos ad imperandum deligi solitos quorum de justitiâ magna esset opinio multitudinis adjuncto verò ut iidem etiam prudentes haberentur nihil erat quod homines his auctoribus non posse consequi se arbitrarentur Civ de of lib. 2. LONDON Printed and Sold by E. Whitlock near Stationers-Hall 1696. To His Excellency CHARLES Duke of SHREWSBURY one of the Lords Justices of England and one of His Majesty's Principal Secretaries of State c. May it please your Excellency SINCE among the many subjects of just Praise which make up Excellency's distinction it is not the least that the true Religion and Loyalty are known to have been chosen with a Judgment properly your own my ambition could not carry me to a fitter Patron for Truths which are to encounter a strong Pre-possession in Men taught to object novelty against this Revolution tho' with as little cause of triumph as the Papists have for their question where was the Protestant Church before Luther As your Excellency's wise and vigorous discharge of Offices of the highest Trust and Consequence under our only rightful Sovereign King WILLIAM revives to France the noted Terrors in the name of Talbot permit me from thence to take an Omen of Success against Arguments supported by the French Interest and Power more than by any colour of reason Yet they who oppose the Right of the present Government having pretended to seeming Authorities I have used that method which I hope may be proper for their conviction giving a short view of what upon the various Exigencies of the Publick in all Ages of this Monarchy has been the uniform Judgment and regular Practice of Conventions of the States and Parliaments of this Kingdom in concurrence with several glorious Preservers of the English Liberties But that I may use an Authority sufficient in it self to justifie our present Settlement I beg leave to appeal to Excellency's early and eminent Example which will weigh more with Persons acquainted with so illustrious a Character than any Argument from pass'd Times And yet what I here offer being for the most part the Result of the Collective Wisdom of the Nation may not be wholly undeserving of your Excellency's Patrondge nor can I apprehend that you will refuse these Fundamental Truths the benefit of being recommended to the World under so Great a Name which tho' it will set my faults in the clearer light if your Excellency shall be thought to bear with 'em cannot but moderate the Censures against Your Excellency's most devoted humble Servant W. Atwood REFLECTIONS UPON A Treasonable Opinion c. THE Enemies of the Peace of these Realms having handed about a Paper as the Opinion of a certain florid Gentleman of the long Robe eminent for making New Treasons and whose Authority is said to have prevailed with several to refuse Signing the Associatlon for the defence of His Majesty's Sacred Person and Rightful Authority I shall offer what I conceive a sufficient Antidote to the Poyson he would spread with all his affected softness The words of the Opinion as they have occurr'd to me are these By the Statute of Hen. 7. the Subjects are Indemnified in taking an Oath 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. 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 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 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 Eldest Son or to violate his Eldest Daughter for the last of which the Lord Coke 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
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 two or three years before Ethelwolf's death says Over this Province reigned the most holy Eadmund descended from the 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 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 Ethelwolf's eldest Son reigned in his Father's life time and retained West-Saxony to his share whilst the bigotted Father having 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 good 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 what Dr. Brady calls Ethelwolf's Will but was a Charter passed in a General Council for Alfred is express that the Inheritance of King Ethelwolf came to him by Charter thereof made 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 death ordained King of several of the Kingdoms and succeeded his Uncle Ethelstan in Kent 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 for which he appeals to the Testimony of all West-Saxony accordingly they are both represented as Kings at the same time Alfred was Ethelwolf's fourth Son 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 which 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 but 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 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 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 one hundred years being pass'd since his Ancestor Egbert had his present Dominion Where the Right of the Saxon Crown to the Monarchy or Primacy for even Edward had no more was laid in perscription but his Right to the Crown in an Election upon a qualification from the Royal Stem Edward's Son and Successor Athelstan was a 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 The Saxon 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 Tho' Edmund had Sons Eadred his Brother succeeded and that as an Author of those Times affirms in the Right of a Brother And an 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 the 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 Uncle before he had been elected tho' both with Clergy and Laity one Elected supplied the Numbers and Names of the Kings 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 Nation because he foolishly administer'd the Government committed to or entrusted with him He being forsaken by an Universal Conspiracy or Agreement they says that Author the Lord so dictating Elected his Brother Edgar After Eadwig's death the same Author says Edgar took his Kingdom upon him being Elected by the People of both Kingdoms as equal Heir to both As an other Author has it he was elected by all the People of England To Edgar succeeded 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 an Author of the Time 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 The Great Men of both Orders elected my Brother King and gave me Livery of the Lands belonging to the Kings Sons 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 and yet for the reason above it may well be said that Edward was left Heir of his Father's Kingdoms as well as Vertues which Historians since the time of W. 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 the Ritual of his Coronation 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 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 purely elected Prince To this time the Danes possessed great part of England and Swane
true lawful and undoubted Heir and Universal Successor to the Crown 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 the Inheritance or Hereditation of the Crown is entail'd upon the King and the Heirs Male of his Body then to his four Sons and the Heirs Male of their Bodies successively It seems the next year some doubts arose upon these different Settlements 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 mentioning its appurtenances seeming to think that in Grants of this Nature nothing would pass by implication But to prevent all ambiguities they being as is said in that Record met in a Parliament 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 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 about creating a new King some of the Nobility immediately Swore Allegiance to him before he had been declared King But it is to be observed that whereas his Father died the 20th of March he is said to be created King on the 5th of April 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 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 York 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 that acknowledged and swore to H. 6ths Right and confirm'd it with the Sacrament which Solemnities were to be subservient to his imaginary Divine Right Tho' by his Frauds and Perjuries he often came within the prospect of a Crown 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 We le 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 was as Son to Ann Daughter to Roger Mortimer 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 the 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
and true Allegiance to King William will be wiser than the Law not only declared by this Act of Parliament but by several in former Reigns and with a gross Jesuitical evasion without any colour of foundation in Law or Reason pretend that they have sworn to K. William only as King in Fact but that another was rightful King at the same time This groundless and wicked distinction appears to have engaged some Men in an horrid and barbarous Plot against his Majesty's Person and Government tho' they had sworn to be true and faithful to him and it seems by the case of Sir John Perkins that neither he nor his Casuists thought the Oath to King William any departure from the Allegiance to King James nor the design of Assassinating King William any breach of the Oath to him Since therefore the deceit has taken rise from the supposition that the late King continues King of Right together with the general terms of the Oath which are pretended to leave a latitude for this illegal and nonsensical supposition and an Oath more explicit has been artfully kept off a voluntary Declaration that his present Majesty King William is Rightful and Lawful King of these Realms as it is fully warranted by the fundamental constitution of this Government is at this time become a necessary duty when it is evident to the World what they who are of a contrary Opinion will act as they have opportunity But to engage to stand by and assist each other in the defence of His Majesty's Person and Government is not more a consequence of the declaring him rightful and lawful King than it is implied in the Oath of Allegiance appointed by the Act of Parliament which settles the Crown and however the Common-Law Oath and the legal sense of Allegiance manifestly require it If any who have taken the Oath of Allegiance to his present Majesty scruple to associate because of the declaring His Majesty to be rightful and lawful King it is evident that they prevaricated when they swore If they questioned the legality of entring into this before there was a positive Law for it 't is certain they have been little acquainted with the Common-Law Oath of Allegiance and the warrantable Presidents of former times according to which the late Act late Act which enjoyns some to Sign the Association not only gives it Sanction for the future but with express relation to its being voluntarily enter'd into by great numbers of His Majesty's Subjects declares that it is good and lawful And any Man who impartially weighs what I have laid together from Records and other Authentick Memorials of pass'd times must own that it is with full and indubitable Authority enacted That if any person or persons shall maliciously by Writing Printing Preaching Teaching or advised speaking utter publish or declare that His present Majesty is not the lawful and rightful King of these Realms or that the late King James or the pretended Prince of Wales hath any Right or Title to the Crown of these Realms or that any other person or persons hath or have any right or title to the same otherwise than according to an Act of Parliament made in the first year of the Reign of His present Majesty and the late Queen Intituled An Act declaring the Rights and Liberties of the Subject and settling the Succession of the Crown such person or persons being thereof lawfully Convicted shall incur the danger and penalty of Praemunire To imagine that after all this the late King either is or ought to be King is to flight all Authorities Ancient as well as Modern Which leads me to the Nature of our Lawyer 's offence who before the Act for the Security of His Majesty's Person and Government held the Signing the Association to be an Overt-Act of Treason against the King de Jure which as has appeared above tends manifestly to depose and unking His present Majesty as in the Eye of the Law there is but one King and he is the only King de Jure Besides this Gentleman admits That by the Statute 11 H. 7. Allegiance is due to a King in Fact and that the Oath of Allegiance was to be taken to him nor can pretend that there ever till of late was any other Oath but what expresly obliged to the Defence of the King and Kingdom against all Men therefore in consequence of his own Notion he must grant that to contend that there may be Treason against any other but the King for the time being is to suppose two contrary Allegiances and therein to depart from that Allegiance which was due even by his own interpretation of the Statute 11 H. 7. But it being evident that by that Statute and the whole course of the Common Law there is but one King I need not tell him the Crime of publishing a written Opinion manifestly importing an endeavour to Depose him If this had been delivered only in Words it is well known who used his Oratory to make words alone Treason within the Statute 25 E. 3. for which I may refer him to the Trial of the now Earl of Macclesfield in the beginning of the late King's Reign and to the Author of the Magistracy and Government Vindicated But as the Opinion was written he may well know from what late Authority Soribere est agere is become a Maxim or Proverbial Nor can he deny the Words to be within the reason of what the Court held in Flower 's Case of a Man's affirming the King to be a Bastard or that another had better Tittle to the Crown because it may draw the Subjects from their Allegiance and beget Mutiny in the Realm or Owen's Case of declaring it Lawful to kill the King being Excommunicated by the Pope both which not to mention more of the like kind were adjudged High-Treason According to the Print of the later Case it would seem that Words alone made the Treason ' but it appears by a MS. Report of one who had been Attorney General and afterwards Chief Justice of the Common-Pleas that Owen's Subscribing his Confession of what he had publickly declared was given in Evidence as the Overt-Act But if any Lawyer who has labour'd to make Treason of Words alone or Writing alone without Publication or Signing an Association to defend the King for the time being against one who had been King but is not should appear not only to have Written or Signed the Opinion above after a Discourse shewing to what Persons it related but to have publish'd this and to have Solicited Men not to Subscribe the Association upon those or the like topicks should he be Convicted of High-Treason against our Sovereign Lord the King it would be difficult not to apply that of the Poet Nec lex est justior ulla Quam necis artifices arte perire suâ None can the Justice of that Law deny By which who strain'd it against others dye FINIS The
Opinion No Treason against any King but the Regnant nor has any other Person Right against him or his Issue 3 Inst F. 7. a Hales's Pleas of the Crown p. 11. b 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. c 3 Inst Proof of the 2d and 3d General Heads Stat. 11. H. 7. c. 1. Vid. Leges W. 1. c. 52. de fide obsequio erga Regem Cap. 58. Proof of the 3d. General Head Vid. Printed Stat. 1 H. 7. * Ret. Parl. 1 H. 7. n. 3. †Vid. Abridg. Stat. usque ad 15 H. 8. ‖ Stat. 1 H. 7. 6. Vid. Inf. Ret. Parl. 1 H. 7. n. 16. Restitutio H. 6. Obj. 3 d. Proof of the 4 th and 5 th General Heads Bede Lib. 1. cap. 1. Vbires veniret in dubium magis de foemineâ regum prosapiâ quam de masculinâ fibi eligerent a Lib. 5. c. 24. An. 725. b Lib. 4. c. 11. Susceperunt Subreguli regnum gentis divisum inter se tenuerunt annis circiter decem c Ib. c. 12. d An. 730. Cart. Orig. in Eib. Cot. e Bede Lib. 4. c. 26. Circiter an 685. Per aliquod spatium reges dubii vel externi disperdiderunt donec legitimus Rex Victred c. f Mon. 1. vol. f. 28. An. 764. g Ib. col 1. An. 762. Ib. col 2. alt cart h Cart. Orig. in Bib. Cot. i An. 699. k Leges Sâ—i Edw. Lamb. Arch. Bib. Cot. sub effig Claud. D. k Cron. Sax. nuper ed. Cujus prosapia oriunda est Cerdico l Malms f. 7. Quam successivae sobolis prosapia m Non parum lineâ Regiae stirpis exexorbitaverunt n Cron. Sax. p. 16 61. o Cron. Sax. Bromton col 770. super populum regnum elegerunt p Spelm. Conc. 1. vol. f. 291 292. q Fund Const 1. part f. 80. r Bracton l. 2. c. 29. Concil Calchuthense Legantinum Pananglicum An. 787. Haeres Patriae An. 800. vel Potius 801. s Cart. in Regist Ab. Bib. Cot. Claud. B. Cum licentià consensu totius gentis nostre c. t Few 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 x Evid Ec. Cant. inter Decem script col 2220. y Bib. Cot. Julius D. 2. f. 125. a z Vid. Cart. Orig. in Bib. Cot. eod An. Egbert Ethelwolf acting together both Kings a Mon. 1. vol. f. 195. An. 843. Welding ealle Britone b Asser Men. ending with the life of King Alfred f. 156. c Nic. Gloc. in Bib. Cot. Caligula A. Ending with the life of Ethelwolf d Rituale in Bib. Cot. Coronat Ethelredi H. 1. e Pictav de Gestis ejus f. 205. f An. 855. g Bib. Cot. Tiber. B. Albas Floriacencis h Exantiq Sax. nobili prosapia oriundus c. Omnium comprovincialium i Exgeneris Successione i Asser Men. k Cron. de Mailros l Bradies Introd f. 359. m Asser Epistola haereditaria immo commendatoria n Append. vitae Alfredi o Ita Haereditas Aethelwolfis Rs. primei ad me devoluta est per cartam inde confectam in concilio nostro apud Langedene p Ethelwerdi Cron. f. 479. Ordinati sunt filii ejus c. q Cron. de Mailros f. 143. An. 160. An. 160. r Append. sup s Polycron R. Higden f. 255. S. Dun. f. 125. 126. An. 872. t Append. Sup. De haereditate quam Deus ac Principes cum senioribus populi misericorditer ac benigne dederunt s S. Dun. A ducibus presulibus totius gentis eligitur non solum ab ipsis verum etiam ab omni populo adoratur ut eis praeseset t Asserii Annales Huntindon u Vid. his Book dedicated to Maud Wife to W. 1. M S. in Bib. COT. Ed. Ipse stemmate regali a Primatis electus An. 925. or 924. x Mat. West f. 180. Selden's Notes upon Polyolb f. 211. MS. Lelandi Wendover MS. in Bib. Cot. y Cron. Sax. p. 11. Huntindon f. 204. Electus est Rex in Merce An. 944. z Bib. Cot. Vitel. D. 15. vita sti Dunstani Autore Osberno Dorob edit Inser script sub nomine Anglia sacra Successst in iure frarris a Bib. Cot. Cleopat B. 13. Alter autor vitae Sti. Dunstani Mox proximus haeres Eadredus c Vid. Enquiry said to be Dr. Bradies p. 14. and the Doctors Introd f. 364. d Bib. Cot. Sup. An. 955. Post hunc surrexit Eadwig regnandi gratiâ poliens licet in utraque plebe Regum numeros nomina suppleretelectus e Quoniam in commisso regimine insipienter egit f Ib. Hoc ita omnium conspiratione relicto elegere sibi Do. dictante c. g Ib. Et regnum ipsius velut aequus haeres abutroque populo electus h Bib. Cot. i An. 975. k Osbernas sup Vitellius A. 20. l Bib. Cot. Regist Magn. Abendoniae sub Effig Claud. B. f. 89. b Omnes utriusque ordinis Optimates ad regni gubernacula moderanda fratrem meum m Vid. Dr. Bradies use of this Introd f. 360. Eaduuardum elegerunt c. miho terras ad regios pertinentes filios in meos usus tradiderunt Ar. 979. * Bib. Cot. sub Effig Claudii A. 3. Ab Episcopis a plebe electus m Ib. volumus concedimus n Benedic domine hunc pure electum Principem Firmatum est pactum inter Regem populum suum firma amicitia jure jurando etiant statutum est ut nunquam amplius esset Rex Danus in Arglià o Bib. Cot. Domition A. 8. sup p An. 1015. or 1016. q Knighton f. 2320. Misit clameum c. r Malms f. 39. Dani Cnutonem eligunt s Internal vid. Argl. Saer Hist Maj. Winton ' Cujusdam Ducis fil nomine Algivam accepit in Concubinam exqua genuit filium nomine Edmundum Irâ—â—side Et t Cited and applied Spelmans Glos f. 277. Bib. Cot. Cleoâ— B. 13. De regno nominibus Regum Anglor c. De Edm. Irnenside Iste erat Bastardus a Ingulfas f. 58. b Leofric Comes tota nobilitas exparte Aquilonis fluminis Tamesiae elegerunt Haroldum Hardecnut fratrem ejus c. Edw. Conf. Vid. etiam ib. Cleop. A. 7. c Bib. Cot. Abbrev. Cron. fin ' temp Cron ' breve ad An. 1062. Haraldus Rex eligitur ab omni populo Angl. d Malms f. 43. e Vid. Scrip. Norm Eucomium Emmae Regno haereditatis vestrae privamini f Gemet f. 271. g M. S. cited in Monast 1. vol. Regni cura Reginae assensu Magnatum consilio Comiti Godwino commitritur donec qui digrus esset eligeretur Bib. Cot. Domit A. 13. Cron. Wint. h Gemet f. 271. Ipse autem