for certain Reasons to them appearing As sometimes for Repugnancy and Impertinence and therefore where the Statute of Carlile enacted That the Common Seal of the Cistercian and Augustine Monks should be in the Custody of the Abbot and four others of the Covents And that any Deed seal'd with the same Seal not so kept should be of no effect This Statute was adjudged void for Repugnancy because the Seal being in the Custody of the four the Abbot could not Seal with it and when it was in the hands of the Abbot it was out of the Custody of the four And so by this Statute these two Orders could make no Deed valid in Law Sometimes for Absurdity as where the Statute of Edw. 6. gives Chantries to the King saving to the Donors and Founders all Services c. This Act was adjudged void as to the Services For it is absurd and contrary to Common Reason saith the Book that the King should hold of or do Service to his Subjects 14 Eliz. Dyer 3. 13. a. Mich. 16 17 Eliz. c. B. Strowd's Case Lastly the Judges have expounded Statute-Laws void in themselves when they are contrary to those of God and Nature and they are bound to adjudge them so when ever such Statute Laws come before them because the Laws of God and Nature are the Rays and Emanations of the Divinity they are eternal indelible immutable and therefore cannot be altered or Impeached by any human Power or Authority but only by the God of Nature it self who did originally ordain them And of this because it is the principal Matter now in hand I shall be the more plentiful in Instances And therefore if it should be enacted by Parliament That no Man should honour the King or love his Parents or Children or give Alms to the Poor or pay Tithes to the Parson of his Parish or the like these Acts are ipso facto void because they are contrary to the express Divine Commands Dr. Stud. lib. 1. cap. 6. 21 Hen. 7. 2. v. So where a Man was made Judge in his own Cause by Act of Parliament This Act hath been adjudged void because say our Books it is contrary to the Law of Nature that one and the same Person should be Judge and Party Cokes 8 Rep. a. v. Dr. Bonham's Case Hobart's Rep. 87. Day v. Savadge So an Act of Parliament can never make the Grant of an Ideot or Lunatic good for Jura Naturae sunt immutabilia saith the Book The Laws of Nature are immutable Hob. 224. Needler's Case By the Statute of the 25 Edw. 3. cap. 22. a Man attainted in a Praemunire is by express words out of the Kings protection generally and that it should be done with him as with an Enemy by which words any Man might have slain him as it is holden 28 Hen. 8. Title Crown Br. 197 until the Statute of 5 Eliz. 1. yet the King may protect him and pardon him Because the Protection of the Soveraign to the Subject is due by the Law of Nature Coke's 7th Rep. 14. a. Calvin's Case The Statute of 23 Hen 6. cap. 8. and several other Statutes enact That no Man shall be Sheriff of any County above one year and that any Patent of the King to any person for a longer Term though with an express Clause of Non obstante shall be absolutely void and of none effect and the Patentee perpetually disabled to bear the Office And yet notwithstanding it is resolved by all the Judges of England That these Acts of Parliament are void And that the King may by non obstante constitute a Sherif for Years Life or Inheritance And what is the Reason which the Judges give of this Resolution Why because say they in express words this Act of Parliament cannot bar the King of the Service of the Subject which the immutable Law of Nature doth give unto him for Obedience and Ligeance of the Subject add they is due to the Soveraign by the Law of Nature See 2 Hen. 7. 6. v. Calvin's Case 14. a. in Coke's 7th Rep. And thus upon the whole Matter of my first Reason I have as I conceive effectually prov'd these two Propositions First That the Succession of the Crown of England is inseparably annexed to Proximity of Blood by the Laws of God and Nature Secondly That Statute-Laws contrariant to those of God and Nature are ipso facto null and void And from hence it doth necessarily follow That the next Heir of the Blood Royal cannot be barr'd from the Succession by Act of Parliament Secondly The Succession of the Crown to the next Heir of the Blood Royal is a fundamental and primary Constitution of this Realm and indeed the Basis and Foundation of all our Laws Sir Ed. Coke says That the Kingdom of England is a Monarchy successive by inherent Birth-right of all others the most absolute and perfect form of Government excluding Interregnums and with it infinite inconveniences The Lord Chancellor Egerton tells us That in Cases of the Crown the Eldest sole or alone is to be prefer'd And this he reckons among the ancient Customs of this Nation against which there never hath been saith he nor ought to be any Dispute And indeed if the Parliament may alter so essential and fundamental a Custom or Constitution then the Monarchy of England which by the Law is and ever since we were a Nation hath been Hereditary will immediately become Elective and disposable at the Arbitry and Will of the People And by the same reason that they may exclude and reprobate the next Heir they may the next to that and so by consequence the whole Line For when Men have once transgress'd and broken down the Boundaries which the Law hath set and prefix'd the Progress is infinite and there is no stop And though the Common Law of England which as I have said doth superintend all Statute-Laws doth allow the Parliament to repair and amend and improve the Building yet it doth never allow them to pull it down and subvert the Foundations thereof And it is some odds that such Electors may in time believe that they have a Power to mar what they can so easily make and that with good Conscience they may destroy when they think fit their own Creature and Work of their own hands And therefore those Kings of England who have submitted their Necks to this popular or Statute-Kingship as I may call it it is plain they came not in at the Door but evermore at the Windows and have been constrain'd during their whole Reigns to stand upon their Guards and to defend their wrongful Possessions by Divine Right of the Sword as some in Raillery have call'd it as well even against the People that chose them as the Right Heirs As I shall anon Demonstrate at large And this alteration of the Monarchy in so fundamental a part thereof from Inheritance to Election may prove equally mischievous
also to a King in Possession though he claim too by Inherent and undoubted Birth-right for the same Reason which the People may think sufficient to exclude the Right Heir may when they please be deem'd valid enough also to depose and eject the lawful Possessor of the Crown Thirdly No Person or Community of Mankind can give away or transfer a thing which they never had in them to give And of this Nature is the Right of Succession to the Crown which is not the Gift of Man but the immediate Dowry of God Nature and the immutable Customs of the State This may be prov'd by the Scriptures Fathers Councils Canon Civil Common and Statute-Laws of which I shall give only a Tast Fourthly The Succession of the Crown to the next Heir of the Bloud is one of the highest most essential and undivided Rights of the Crown and a Pearl of the most transcendent Oriency and Magnitude in the Imperial Diadem of England And the Kings of England themselves their Chancellors Treasurers and all other the great Officers of State their Privy Counsellors and the Judges who are onely to expound all Statutes by which this Right of Succession may be violated are all by provision of the Law solemnly sworn upon the Holy Evangelists to maintain and defend the Rights of the Crown and that they suffer no Disinherison or Damage to accrue thereto And every Member of the Commons House who is to be a Party to the making these Laws of Reprobation by the Statute of Eliz. is obliged before he enter or have voice in the said House to swear that he will to his power defend all Jurisdictions Privileges Preheminences and Authorities united and annexed to the Imperial Crown of this Realm and if he do not he shall be deem'd no Member of that House and shall receive also further Punishment And the Oath at this day to be taken in the Court Leets all over the Kingdom by every Subject above 12 years old is That he will be true and faithful to our Sovereign Lord King Charles the Second and his Heirs c. And it is remarkable that in the Parliament of 42 Ed. 3. the Lords and Commons being demanded their Advice by the King in a matter relating to the Crown did answer with one voice That they could not assent to any thing in Parliament that tended to the Disinherison of the King and his Heirs or the Crown whereunto they were sworn And Sir Edward Coke commenting upon that Record saith That it is Law and Custom of Parliament That no King can alien the Crown from the right Heir though by consent of the Lords and Commons And in another place he saith That King John 's Resignation of the Crown to the Pope was utterly void Because saith he the Royal ' Dignity is an Inherent inseparable to the Royal Bloud of the King descendable to the next of Bloud of the King and cannot be transferr'd to another thus he And which is much more the Parliament of 1 Jacobi do recognize That the Crown of England did descend upon King James by inherent Birthright as being lincally justly and lawfully next and sole Heir of the Bloud Royal. And to this Recognition they do submit themselves and Posterities for ever untill the last drop of their Bloud be spilt And further do beseech his Majesty to accept of the same Recognition as the first fruits of their Loyalty and Faith not only to His Majesty but also and to his Royal Progeny and Posterity forever for so are the words So here this Parliament do oblige themselves and Posteritics which we are to defend and maintain the Succession of the Crown not onely to King James but also to his Royal Progeny and that not in a general way to any of his Bloud but onely to such Person to whom it shall be due by inherent Birthright and Proximity of Bloud as they recognize it was to the same King James So then the Succession of the Crown to the next Heir of the Bloud being a fundamental Right of the Crown and a Right annexed and secured to the same Heir not onely by the Laws Divine Natural and Humane but also as I have clearly proved by the Obligation and Sanctimony of National Lawful Recognitions and Oaths it doth evidently follow That the Parliament of England cannot by Law alter or violate the said Succession contrary to the same National and Legal Recognitions and Oaths Lastly The right Heir of the Crown cannot be barr'd or excluded by Act of Parliament Because the Accession and Descent of the Crown in an instant absolutely purgeth and dischargeth all Obstructions and Incapacities whatsoever created by the same Act of Parliament And the reason given in our Books of Law is Because say they upon Descent of the Crown immediately a Body Politic is superadded to the Body Natural of the King 's and these two Bodies in an instant become Consolidate Consubstantiate and Indivisible in one and the same Royal Person and thereupon the Body Politic which is the more worthy and sublime Nature and that is in no wise subject and obnoxious to the humane Imbecillities of Death Infancy Crime or the like draweth from the Natural Body all Imperfections and Incapacities whatsoever and in a moment endows and ennobles the same Natural Body with the Divine Embellishments and Perfections of the Politic. As it hath been frequently resolved by the Judges of England Plowd Com. 238. v. Lord Barkley's case Et ibid. 2 3. a. v. the case of the Dutchy of Lancaster Coke's 7th Rep. 10. a. Calvin's case And in the same Calvin's case 12. a. a Case argued by the Lord Chancellour and all the Judges of England it is affirmed That the King 's being a Body Politic is founded upon Necessity and the deepest Polities and Wisdom of our Law And why so Because saith that Case expresly Hereby the Attaindors and Disability of him that hath Right to the Crown are avoided lest in the interim there should be an Interregnum which the Law will not suffer This I shall now proceed to make good by two great and impregnable Instances drawn out of our Books of Common Law Histories and Records The first is that of King Henry the Sixth who being discomfited in Battel by King Edward the Fourth was in the first of the same King Edward disabled from all Regiment and attainted of High Treason by Act of Parliament The said King Henry some years afterwards by the assistance of the great Earl of Warwick was restor'd again to the Crown and held a Parliament And the Judges of that time were all of opinion That notwithstanding the Parliament of Edward had disabled Henry from all Government and attainted him of Treason that yet in the same moment that Henry reassumed the Crown the said Parliamentary Incapacities were to all intents discharged and avoided And yet Henry was at first but onely King de facto
the true and legal Title abiding in the House of York See to prove this Brook Parl. pl. 105. 1 H. 7. 4. v. The second Instance is that of King Henry the Seventh This King while he was Earl of Richmond together with many Lords and Commons that took his part were all attainted of High Treason by the Parliament of Richard the Third Afterwards at the Battel of Bosworth the Earl obtain'd the Victory and slew Richard in the Field and on the same day assum'd the Crown upon him and presently afterward summon'd a Parliament On the first day of this Parliament say our Books of Law and Histories all the Judges of England were assembled in the Exchequer Chamber to resolve a very rare and perplex'd Case viz. What should be done about the reversal of the said Parlementary Attaindors of the King and divers Lords and many Knights Citizens and Burgesses that were to sit in Parliament that day And after mature Deliberation had among themselves they all Resolved That for all the Lords and Commons that were attainted they advised them not to sit in Parliament till an Act of Parliament was passed by the other Lords and Commons not attainted and assented to by the King for the reversal of those Attaindors and after the Reversal then all of them to sit in the Houses For that it was not convenient that any should sit as Judges in those Houses that were attainted But concerning the King himself they unanimously Resolved That the Crown takes away all defects in Bloud and Incapacities by Parliament And that from the time the King did assume the Crown the Fountain was cleared and all the said Attaindors and Corruptions of Bloud and other Impediments absolutely discharged And yet the said King Henry the Seventh was onely King de facto also the legal Title as I have before observed abiding in the House of York See to prove all this the Books of 1 H. 7. 4. v. Fitz. Parl. pl. 2. Brook P. Statutes pl. 37. 175. Plowden's Com. 238. v. Lord Barkley's case Co. 7 Rep. 12. â— Calvin's case Co. 1 Inst 16. a. Jenk centuries 203. Lord Bacon's Hist H. 7 fol. 13. All in express terms And if the Influence and Operation of Law be so forcible and vigorous in Cases of colourable and specious Title onely as that of the said King Henry the Seventh was as I shall demonstrate at large in the sequel of this Discourse how much more will it be where there is Proximity of Bloud and undoubted Right The last Instance is that of Queen Elizabeth an Instance of fresh and recent memory This Princess had been bastardiz'd and render'd incapable of Succession to the Crown by solemn Act of Parliament and yet notwithstanding upon the Death of Queen May the said Queen Elizabeth succeeded to the Crown And Sir Nicholas Bacon Lord Keeper of the Great Seal and Oracle of the Law in that Age and upon whom the Queen altogether relied in matter of Law and who no doubt in a Case of that Importance had consulted all the Judges of England was clear of Opinion saith Cambden That there needed not any formal Repeal of the said Act as there never was any because saith the same Author the Law of England had long before pronounced Coronam semel susceptam omnes omnino Defectas tollere That the Crown once obtain'd doth absolutely wipe out all Defects whatsoever And in this Point the Civil Law agrees also with the Common Law of England for Vpian a famous Doctor tells us That the possession of the Crown purgeth all Derects and maketh good the Act of him in Authority although he wanteth both Capacity and Right Moreover by the Laws of England the right Heir becomes absolute and perfect King in the very moment that the Crown descends upon him though he happen to be at the same time in the remotest parts of the World and before he be actually Crown'd And therefore King Edward the first though at the time of his Father's Death he was absent in the Holy Land in War against the Infidels yet he was immediately acknowledg'd here by the whole Realm for their King And in his return homewards did Homage to the French King for the Lands which he held of him in France and repressed certain of his Rebellious Subjects in Gascoign and yet he was not crown'd till almost two years afterwards And the Case of his Sacred Majesty that now is was very like for he began his Reign from the moment of that fatal and impious Stroke given to his Royal Father of ever glorious Memory and yet his present Majesty was not at that time in England And this is expresly resolved to be the Law of this Nation by all the Judges of England Mich. 1. Eliz. Dyer's Rep. 165. a. So King Henry the sixth Edward the fourth Henry the seventh summon'd Parliaments condemn'd Traitors made Grants and did all other Acts which a crowned King may do before their several Coronations And the like was done by King Henry the eighth Edward the sixth Queen Mary Queen Elizabeth King James King Charles the first and His Gracious Majesty that now is For coronation is but an Ornament and Solemnization of the Royal Descent but no part of the Title and the Kings of England are to all Intents and Purposes compleat and perfect Kings before Coronation and so it was expresly resolved by all the Judges of England 1 o Jacobi in the Cases of Watson Clarke and Sir Walter Raleigh which in a matter so clear shall suffice Having thus as I conceive made my Point good and impregnable Viz. That the next Heir of the Blood cannot be excluded from the Succession by Act of Parliament I come now to answer certain Objections which some Men I perceive are fond of and do not a little glory therein and the most considerable of them are three in Number First say they there are several Instances of Kings of this Realm whose Titles to the Crown depended purely upon the Election of the People and Acts of Parliament and not upon Proximity of Blood and Inherent Birth-right as to go no higher the Titles of King John Henry the fourth Henry the seventh Moreover Henry the eighth entail'd the Crown upon himself and his Children by Act of Parliament And these Establishments by Parliament were look'd upon as good Titles to the Kings in Possession and bars against the next Heirs I Answer they were never look'd upon as good Titles to the Kings in Possession or bars against the right Heirs neither ought they to be deemed so as doth most evidently appear by the former part of this Discourse And which I shall now farther demonstrate by Enquiry into the Titles and Circumstances of each particular King mentioned in the Objection First for King John it is plain he was King de facto but not de jure for he invaded the Crown against the Right of his Nephew