under Imprudent to seek to perpetuate Races against Nature Fate and Providence which are irresistible few above So in the Ancient Kingdom of the Egyptians there were above Twenty Dynastyes at the Period of every one of which the Race of that King who began to Rule the Dynastye Either Expired or was Extinguished or Destroyed and it is easie to see how many Races and Names of several Kings have in short time worn out and been changed to new both in England Scotland France Spain c. It is in vain therefore by human Laws to seek to resist the Decrees of God and perpetuate a Race which God hath appointed to Determine Seeing as Solomon saith Eccles 9.11 The Race is not to the swift nor the Battel to the strong neither yet Bread to the wise nor yet Riches to men of understanding nor yet Favour to men of skill And it is said Dan. 4. The Most High Ruleth in the Kingdom of men and giveth it to whomsoever he will Better therefore both to Princes and Subjects is the Counsel of Christ Matth. 6.33 Seek ye first the Kingdom of God and his Righteousness and all these things shall be added unto you Dan. 7.27 Whose Kingdom is an Everlasting Kingdom And as is said Psal 16.11 In his Presence is fulness of Joy at his Right Hand are Pleasures for evermore Answ 1 Answ 1. As to the first Objection That the Brother ought to be preferred before the Son and Liberty left according to ancient Custom to the Parliament to Elect him if he is Judged fittest for Succession And that the Brother is alwaies most fit and more for the Safety of the Kingdom he being alwaies of greater Age and Experience than the Son who may chance to be a Child and more need Tutors and Governours himself than to Govern others As to which part of the Reason of possibility of Minority in the Son I answer First That à Posse ad esse non valet Argumentum And with all due Honour had to the Age and Experience of others the Eldest Son is here no Infant or Minor But hath attained to a higher Maturity and Flower of Age and Strength than Alexander the Great who began at Twenty to Conquer the World and hath shewn already the Highest Proof of Valour in War and Affection to Religion and Justice in Peace Secondly admit it should happen the Eldest Son to be an Infant or Minor as the intention of this Statute is it may which make it notwithstanding his Infancy Treason to Practise against him And though an Eldest Son should be left at the Death of any King an Infant or Minor yet by the Mercy of God the Righteousness of the Title and a standing Parliament During the Minority The Infant and Kingdoms are as Safe as if he were of full Age And more Safe than in the hand of a Collateral Heir of full Age whose Guardianship is most dangerous to a Lineal Heir Answ 2 Answ 2. As to the Reason That it is more for the Fame of Vertue for the Father to have none of his name Than to have his name Lost amongst a Multitude of the same names derived from him to numerous Posterity I shall answer in the words of Buchanan in another place on another dispute p. 406. Quod si de honore unus Et non de omnium salute hic esset disputatio Ego quoque facile ac Lubens ad eorum sententiam accederem verum cum de eo Statuendum sit hodie quod omnium privatorum vitam Et fortunam quod totius Regni incolumitatem complectitur huic uni câ—gitationi omnes Singulorum rationes concedere oportet Answ 3 Answ 3. As to that Reason of the Objection That Periods of Royal Races and Successions to Kingdoms are natural in regard the subject matter is so frail as not to be Capable of Perpetuity and fatal in regard God hath appointed the same by an Immutable Decree and Providential in regard it is often likewise effected by a particular Providence and seeing the Laws by which God Governs the World God governs the World by the Lawes of Nature Fate and Providence are the Law of Nature the Law of Fate and the Law of Providence quae supra nos nihil ad nos they are irresistible and all Human Laws to cause or avoid their effects are in vain To which is answer'd and gladly acknowledg'd That God is pleased to Govern the World by all these Three Lawes First the Law of Nature which is his Decree of Subordination of Causes Secondly the Law of Fate which is his Decree of Co-ordination of Causes to such Ends as to his Wisedom seem best These two are the Greatest Imperial and Immutable Law of the World and against these it is not only folly and a Sin to make Common Laws or Acts of Parliament Not lawful to pray against the Law of Nature or Fate but even to pray Desine fata Deum flecti sperare precando Hope not from Prayers thou Thy Fate from God canst bow Thirdly The Law of Providence which is the Regulation of Accidents which are neither Decreed nor Immutable And this is the Law Paternal Prayers not only Lawful but necessary in matters reserved to Providence by which he Governs all his Creatures sensible of Good and Evil. And as to this Law of Providence human Laws Endeavours and Prayers are not only Lawful in such as are Capable to Pray but necessary to obtain the good and to avert the evil and both these are acknowledged by the Heathen Poets themselves Sed satis est orasse Jovem qui donat et aufert Det vitam Det opes aequum mî animum ipse parabo Hor. lib. 1. ad Lollium Epist Flectitur Iratus voce Rogante Deus Ovid. But if we will take our Limitations of Prayer from Christians they must have alwaies these two That they must be Lawful that is not contrary to any revealed Law or Will of God and likewise be alwaies with submission to his Secret Will The Law Moral a Fourth Law by which God governs the World I Answer therefore That though the Three Laws mentioned are great and wonderful Wages by which God governs the World in general and Successions to Kingdoms in particular yet they are not the only Lawes by which he doth it but there is a Fourth Law as great as any of the former which is the Law Moral the obligation of which is Reward and Punishment which not Improperly may be called a Law Magistratical for as God is the Supreme King and Father so is he likewise Supreme Magistrate of the World and beareth not the Sword in vain And this Law may only be Exercised and the Obligations thereof laid on the most Noble Subjects who are so in Three respects First In regard of their Knowledg as the Law Moral can only be Exercised over the Subjects Sensible and Intellectual What Subjects liable to the Law Moral and
Cohabitation 3. No lawful Impediment why the Parties should not Marry 4. Chastity and Children 5. Length of time and no Judicial Questioning and Sentence to the contrary while alive 7. Promise of Marriage 8. Acknowledgment by the Father of the Children either by word or writing or by giving them Aliment and Education as Children As to the First Fame and Reputation which are Voces opinio Vulgi are an usual Presumption of Marriage As to the Second The Cannon Law it self Jus Pontificium praesumit ex diuturna Cohabitatione filium esse Legitimum Craig Feud 270. Cohabitation for any time is so high a Presumption of Marriage as it Legitimates the Son And amongst the Old Romans one of their chief ways of Lawful Marriage without Ceremony of Priest or Temple was Vsus that is Cohabitation and Conjugal Society for the space of a year and this was reputed so considerable a time as it made a Marriage by Prescription As to the Third which is where there is no Lawful Impediment nor the Parties are prohibited by the Law of God to Marry this makes a presumption of Marriage because it was no Sin for them by the Law of God to Marry As to the Fourth cause of Presumption which is Chastity and Children where all the Circumstances concur of Lawful Marriage as Cohabitation no Lawful Impediment Chastity of the Lady Children and acknowledgment by the Father of the Children to be his these are not only the strongest presumptions which can be made of a Lawful Marriage but are of themselves as is fully proved in the following Discourse without any Ceremony a Marriage Lawful Holy and Indissoluble As to the Fifth cause of presumption which is no Judicial Questioning and Sentence against the Marriage in the space of Thirty years in which time all Witnesses may be Dead and Writings lost or burnt the same is so high as by the Laws of the Land and of all Nations no proof ought to be admitted to the contrary nor no questioning now to be permitted of the same because it is beyond the time of Limitation of Actions and the peace and security of all Families and Kingdoms must be destroyed should Witnesses be required Thirty years after of all such Marriages as have not been Judicially question'd and sentenced in all that time As to the Sixth cause of presumption which is the Death of either Party without being Judicially question'd or sentenced while alive This by the Law of God and of the Land is so high a presumption for the Parents and so necessary justice for the Children That no Probation ought to be admitted to the contrary nor ought or can the Legitimation of the Child be question'd after the Death of either Parent yea though the Marriage of the Parents were Unlawful as if a man Marry his own Sister which is a far more Unlawful Marriage than to Marry without a Papal or Episcopal Ceremony and have Issue by her if she die before a Judicial hearing and sentence pass'd against her her Children are Inheritable and their Legitimation can never be question'd for she that is Deceased cannot be Summon'd before any Humane Tribunal And if Sentence should be there pass'd against her she is condemn'd without Hearing and therefore that the Children ought to be Legitimate and Inheritable hath been resolved by the Parliament it self as may appear Bro. Deraignement 5. Bro. Bastardy 23.44 24 H. 8. 39 E. 3.32 And it is for the same reason very clear That if Queen Katherine the Wife of H. 8. had died before Judicial Sentence pass'd against her the Legitimation of his Daughter by her who was afterwards Queen Mary could never have been question'd and should the Legitimation of the Royal Lines of England Scotland and Ireland or any other Kingdom in the World be permitted to be question'd after the Death of one or both of the Parents It is impossible but all certainty and security of the Successions to them must be utterly destroyed As to the Seventh cause of presumption which is presumption of a Promise of Marriage to shew which all the foremention'd circumstances concur and though the Ecclesiasticks of Scotland keep the people under sufficient servility of their Ceremonies of Marriage yet even thereby the Laws of the Land doth promise of Marriage without any Proclamation of Banns or other Ceremony both Endow the Mother and Legitimate the Children as appears Craig Feud 269.270 As to the last Cause of Presumption which is Filiation not only the Civil Law but the Law of God in the Scripture Legitimates every Son and makes him Heir to the Father who begot him either of a Primogenial or Filial Portion except of Inheritance intail'd to a former Wife as was that of Abraham to Sarah and whether this Probation of Filiation is made by the Son or Father as in the Civil Law is said Filium alicujus se esse probans videtur probare se esse Legitimum § Et ib. ad Marg. de Adopt who proves himself a Son to any proves himself Legitimate And by the same Law such as are proved Children are Legitimated though there were no Ceremonies of Marriage Authen Collation 6. Novella 174. Tit. 3. quibus modis Natur. cap. primo Siquis 3530. And the Scripture is Positive in the point Rom. 8.17 If Children then Heirs Et Gal. 4.7 If a Son then an Heir 5. To return again to other Laws of the Land besides those of Presumptions It is not necessary to prove a Lawful Marriage by proving Ceremonies But all Marriage is declared Lawful whether with or without Ceremonies by the Doctrine of the Church of England and the Law of the Land which is not Prohibited by the Law of God as appears by the 32 Art of the 39 Articles Roger's Articles p. 185. 187 188. as shewn more at large in the Discourse following and likewise in the Statute 32 H. 8. cap. 38. of Precontracts wherein there is this Clause And that no Reservation or Prohibition God's Law except shall Trouble or Impeach any Marriage without the Levitical Degrees Whereby it is clear that this Marriage being without the Levitical Degrees and not Prohibited by the Law of God ought not by the express words of the Act of Parliament to be troubled or impeach'd by any Humane Law whatsoever Ecclesiastical or Temporal Which said Act of Parliament except as to matter of Pre-contracts stands unrepealed to this Day and of full force And the Reasons of the said Act are expressed in the Preamble of the same to be because the Usurped Power of the Bishop of Rome hath always intangled and troubled the meer Jurisdiction and Regal Power of this Realm of England and also unquieted much the Subjects of the same by his Usurped Power in them and by making that Unlawful which by God's Word is Lawful both in Marriages and other things 6. They whom no Law of the Land makes Illegitimate are Legitimate by the Law of the Land But no Law of the Land either
World for he that began it could not end it but it lasted almost Three Hundred Years and was never throughly abolished till it pleased God to Unite the Discordant Blood of the Three Kingdoms in King James Which Discords had never happened amongst these Ten Competitors had not the Ancient Law of Electing by Parliaments the fittest of the Blood-Royal whereby generally Brothers were Elected before Sons been abolished A very Imprudent way therefore is it to design for Publique Peace what Experience shews to have the greatest cause of perpetual Wars for so long a time as 300 years together The like Civil Wars in England followed between York and Lancaster from Generation to Generation and this Statute of Treason prevented not the same The Civil Wars between York and Lancaster not prevented by the Statute making the Eldest Son Heir Another Imprudence Buchanan mentions p. 201. Vt Reges videlicet constituamus quibus alij Rectores praeficiendi in eorum potestatem universum tradamus populum qui ipsi sui potestatem non habent qui aegre Regibus usu rerum peritis prudentia praestantibus parent poscimus ut qualibuscunque Regum umbris pareant That we should constitute Kings to govern who must have others set over them to govern themselves and that we should deliver the whole People into their Power who have not power over themselves and that we should require of such who will hardly obey the best Kings and most Excellent in Experience and Wisdom to obey any shadows of Kings shall be set over them Imprudence of attempts by such Acts to perpetuate a Name or Race Of a third Imprudence and Infortunateness incident in this to Princes themselves he sayes Quod autem privatunt ex hac Lege petunt Reges Emolumentum ut generis et nominis perpetuitatem inde sibi promittunt id quam sit vanum et fallax c. That the private profit which Kings seek out of this Law being the Perpetuity of their Race and Name is very vain and deceitful not only in manifold ancient Examples but Nature it self may teach them if they will consider with how many Laws and Rewards the Romans endeavoured to perpetuate the Famous Names of their Families of whom there remains now not the least sign in the whole World conquered by them And deservedly I think this happens to them who contend to give Eternity which neither themselves have nor can have to a thing in its nature so flying and frail and every moment obnoxious to all Casuality as cannot be capable of Stability And attempt the same by such a way as is most contrary to their design for what is less faithful to Diuturnity then Tyranny but to the same this new Law prepares the way and a Tyrant is the universal mark of the hate of Mankind for whom it is impossible to stand long and when he falls he draws the Ruine of his whole Family with him This Endeavour of Foolish Men the Deity seems to me many times to break with a Contemptuous stroak and sometimes as a Competitor with him in Power to expose it to publique derision And I know not whether there can be any more fit or manifest Example of the Divine Pleasure than in him whom we now mention Malcolm the Author of the Law of Succession of Eldest Sons dyed without a Son For Milcolumbus who so much Laboured to confirm by Parliament a Law Enacted by his Father by force for the Succession of the Sons of Kings in their Fathers room left no Issue Male behind him And as to his two Daughters one of them called Beatrice he matched to a Noble-man call'd Crinus a Thane of the Western Isles and a Chief of the other Thanes whom that Age call'd an Athan. The other call'd Doaca he match'd to the Thane of Angus by whom was begot Macbeth of whom I shall speak further in his proper place and indeed do we not find in all Ages the greatest Races sooner destroyed than the meaner And if any have escaped the Tempest of Time they have not been the Lofty Cedars but the humble shrubs Where are now all the Races of Gyants of the Old World Where are now the Races of the Egyptian Gods who in the reputed forms of Men reigned on the Earth Where is the Race of Nimrod the Founder of the Assyrian Of Arbaces the Founder of the Median Of Cyrus the Founder of the Persian Empire The Crown endureth not to every Generation Is not the saying of Solomon true Prov. 27.24 Riches are not for ever and doth the Crown endure to every Generation 2. This new Law of intayling to Sons though it may preserve the Counterfeit name yet destroys the true Fame of the Father which is call'd Children of the same Name destroy the Name of the Father Isa 56.5 a Name better then of Sons and Daughters As there were so many Pharaohs that the Chronologists are by the Ears and cannot agree which was the Pharaoh when Abraham went into Egypt which was the Pharaoh Entertained Joseph which was the Pharaoh commanded the Male Children to be destroyed And which was the Pharaoh was drowned in the Sea The like of the Dariusses and of the Herods though they were but few and many others Many other Names and Races whereby there can be no Encouragement of Fame to Vertuous Actions for Publique good nor Discouragement to Vitious by Infamy who are causes of Publique Evils whereas on the contrary as is well observed by Sir Francis Bacon Actions of the highest Fame and of greatest Merit to the Publique have been done by the unmarried and Childless Men yea we find this Vanity of Intayling the Father's Name so much slighted by the great Nestorian Church in Persia that if after Marriage a Male-Child were born Father lost his Name to his Son in Persia the Father lost his own Name and was called by the Name of his Eldest Son as if the Father's name was Moses and the Son's name Joseph the Father was no more called Moses but Aben-Joseph that is the Father of Joseph Heylin 660. And we find though Darius destroyed Belshazzar the Son of the Conquering Nebuchadnezzer and Cassander the Children and Mother of the Great Alexander and Augustus destroyed Caesarian the Son of the Renowned Julius Caesar whereby the Race of every one of these Conquerours became Extinguished soon after their death yet we hear the Names of the Fathers resound to this Day more gloriously from the single Trumpet of Fame than they could have done from the weak Cryes of Infants in a Numerous Off-spring had they left a Posterity 3. It is said against this Law of Intayling to Sons That though the Royal Lines are not alwaies so suddenly Extinguished as in the Last Examples Yet the Periods of them and their Heirs Male and of Races and Kingdoms themselves are fatal and as some Polititians observe terminate most with about the Term of about 500 Years many
ubi Rex pervenerit ipsi sibi curatores Eligere posset That the King being under the Age of Fourteen Years Election should be made of a Guardian of great Estate and Wisdom who should be his Regent in the mean while and Administer his Affairs in the King's Name till he arrived at the Age of Fourteen and when he came to that Age he himself might choose his own Guardians Which Election of a Guardian must be intended to be by Parliament for it appears by the words That the Infant or Minor King must not nor is able to choose himself till he come to the Age of Fourteen And it is contrary to Reason that any other should be his own Judge to choose himself to have to himself to his own use the Custody of the Person of the King Dangerous to Commit the Guardianship of a Minor prince to the next Major in whom all his Subjects have an Interest And it would be very Dangerous to the Infant if he who is next Successor to the Crown should get the Custody of the Heir into his hands There is no Third Power can be therefore above Exception who ought to choose the Guardian of an Infant King but the Parliament And accordingly we find it to be the constant Practice of that Kingdom as appears Buchanan Lib. 19. p. 687. when it is said Sed cum homines usu rerum Edocti Perspicerint vix fieri posse ut in tanta fortunae inconstantia non aliquando in pueros aut alioqui Regno ineundo Impares haeredes jus summi Magistratus inciderit c. But when taught by Experience men saw that it could not be but in so great inconstancy of Fortune but the Right of the Supreme Magistracy might fall amongst Children or other Heirs unfit to Govern a Kingdom they Ordained That in the mean time one should be Elected Regent who Excell'd the rest in Estate and Counsel Guardians chosen by Parliament the only Security of Kings in Minority and our Ancestors following this way for the space of Six hundred Years have transmitted thereby the Kingdom safe to Posterity So Robert Bruce being dead Thomas Randolph Earl of Murray and Donald Earl of Mar Andrew Murray John Randolph Robert Stuart succeeded singly and sometimes more number are by Parliament chosen into that place So James II. being a child Alexander Leviston being of no Kin nor of the chief Rank of Nobility but only a Knight and of more repute for Prudence then Antient Descent was elected to be his Guardian Neither can there be alledged any want of persons of the Royal Stock to have been the cause of such choice for there was at that time John Kennedy chief of his Family and King James his Nephew by his Sister there were his Uncles James Kennedy Archbishop of St. Andrews Primate of the whole Kingdom in all kind of Vertue and his Brother born of the Kings Aunt Douglass Earl of Angus was not remote from the Kings Blood Archibald Earl of Douglas in Power almost equal to the King and superiour to any of the rest yet did none of these complain of any Injustice in the Parliament for making another choice and not long after four Guardians were given to James III. not taken for the Kindred but chosen by Parliament It was but of late that John Duke of Albin was sent for by the Nobility out of France to moderate the Affairs of Scotland James I. being then a child and was confirmed by a publick Act of Parliament Neither was it done because he was next of Kin for he had an Elder Brother called Alexander But James I. being absent Robert his Uncle ruled the Kingdom And with what Right Was he taken for nearness of Blood No he was chosen by the People Nor so neither How then was he created When Robert III. was so sick in body and mind that he was not able to discharge his Office he made his Brother Robert his Vice-Roy and commended his Children to him So his Brother starved to death David his Eldest Son and sought how to destroy likewise James his Younger had he not escaped by slight But he being now placed in possession of his Tyranny and his Brother dead with grief without Parliament or assent of the People he kept it and by force left it to his Son Mordach c. Buchanan proceeds p. 688. Quid enim minus justum esse poterat quam aetatem innoxiam atque infirmam ejus fidei committere qui pupilli sibi crediti mortem semper expectat optat What can be more injust then to commit the innocent and weak Age to one who always hopes for or wishes the death of the Pupil intrusted in his hands And after he saith Laodice the Queen of the Cappadoceans is related to have killed every one of her children as in order they arrived at fourteen years of age to gain thereby a little more time to reign If a Mother will destroy her Children to get the use of a little time what shall we think will their old Enemies dare yea will they not dare to do inflamed with the Brands of Covetousness to cruelty against a Child hindering their hopes of a perpetual Kingdom If this Example seems old and obscure or far-fetch'd I will add more clear and nearer home For who is so ignorant of things so lately acted as he knows not Galeacius Sfortia though at mans Estate though married and the Son in Law of a Potent King to be killed by Lodowick his Uncle Or to whom are the Calamities unknown which ensued that cruel Parricide the most beautiful Region of Italy brought almost to a Devastation the Sfortian Family The not abolishing Episcopal Laws which pretend to Illegitimate whom they please the sense of the Murder of Edward V. and his Brother so fruitful of valiant men destroyed Barbarians let into the most pleasant Country watered by Po. Against whose Rapine nothing was safe against whose Cruelty nothing was secure Who hath been born in the soil of Great Britain and hath not heard of the cruel Murder by Richard III. King of England of the Sons of his Brother Edward IV A great cause of the murder likewise of these Princes was that Papal and Episcopal Laws were not abolished which pretend to illegitimate whom they please Answ 5 Making a Kingdom hereditary to the eldest Son weakens not the Power of Parliaments And 5. as to the Reason against these Statutes which maketh the Crown hereditary to the eldest Son that the same enervate the strength of Parliaments and without a Contract made by every Prince with a Parliament no Government can be just in regard if he receives not the Kingdom by Contract he assumes it by Conquest which over a Free Nation is unjust To which is answered First that these Acts of Parliament of England and Scotland which entail the Crown to the Eldest Son do no way weaken but confirm and establish the Power of Parliaments and
which was to them a Just and Necessary Right though it had been so long delay'd and was a Restitutio Naturalium and no less yea rather a more necessary Right though it hath been longer delayed were an Act of Legitimation of the Children of all Protestant Parents born between June 14. 1641. and March 24. 1660 who at the time of their begetting were not prohibited by the Moral Law of God to Contract Marriage would be Restitutio Natalium Restitutio Natalium as necessary to the Relief of the Children of such as suffered for his Majesty in his Dominions as Restitutio Naturalium to such as were born beyond Sea And be a great Relief to the Children of such Parents as Suffered for his Majestie in his Dominions and are far more in number than such Children as happened to be born beyond Sea there having been so many whose Necessities Disabled them to transport themselves from the Danger at home yet could not avoid it by staying here but living in fear of the power of the Sword Dared neither to Marry by the Common Prayer-Book because prohibited nor by the Ordinances of Parliament because by such Publication of themselves they had been Exposed to have been seised on by their Enemies So it seems either such Act of Legitimation or the former Act of Confirmation of Marriages will be Just and Necessary for the Suffering-Party not yet Relieved 5. If Bishops acknowledg in deed what they alledge in words Not necessary for a King to be Marryed by a Priest or Common-Prayer Book Supremacy in Causes Ecclesiastical in the King then must they acknowledg Supremacy of Marriage to be in him because they alledg Marriage to be a Cause Ecclesiastical and they themselves De facto Exercise the supremacy of Ecclesiastical Jurisdiction in it and if they give him Supremacy of Jurisdiction of Marriage in general They much more give Supremacy of Jurisdiction of his own Marriage in particular for majus continet minus Et cui licet quod majus est non aequum est quod minus non Licere If therefore a King of England hath Supream Ecclesiastical Jurisdiction of his own Marriage and neither Pope nor Bishop can null or invalidate any Mariage of the King his Predecessors to Depose him from his Throne nor any Marriage of his own to Dis-inherit his Lineal Heir from the Succession Jus Coronae in the King relating to Marriage and Succession as shall be after further shewn is different from that of Subjects and as is by the Bishops themselves affirmed Canon 2. The same Supremacy belongs to the King which belonged to the godly Kings of the Jewes who could thereby marry themselves without Priest or Bishop The matter therefore must come to this Push If the Bishop acknowledg the King hath Supreme Ecclesiastical Jurisdiction of his own Marriage and no longer under a Guardian of the Spiritualities then must he acknowledg he may Exercise the Acts of such Supremacy for frustra est illa potentia quae nunquam reducitur in actum And if he will acknowledg the King to be Supreme Ordinary as all the Common Law-Books do then must he acknowledg he may Exercise all Acts of a Supreme Ordinary But if he will not acknowledg him to have Ecclesiastical Supremacy and to be Supreme Ordinary and to have the same Supremacy the godly Kings of the Jewes had of their own Marriages Then must the Bishop shew a sign of his Mission from God to Exercise Supremacy and to be Supreme Ordinary over Marriages of Kings which neither Pope nor Bishop nor Priest ever could or can do Now all the height of Ecclesiastical Supremacy of Marriage whereof human Power is Capable A. King may dispence with Malum Probibitum in his own Marriage but not with Malum in S◠is to Dispence with Malum Prohibitum but not with Malum in se Malum Prohibitum is that which is Prohibited only by some positive Law of Man Malum in se is that which is Prohibited by the Moral Law of God As Prohibitions of Marriage without Banns Licence Ceremony Common Prayer-Book Priest or Temple these make only Mala Prohibita Because Prohibited only by the Positive Laws of Men and not by the Moral Law of God and Vnumquodque Dissolvitu◠eodem modo quo conflatum est All Lawes made of Marriage by men may be again dispenced changed repealed and abrogated by men who have the Supremacy of Marriage But Adultery Fornication Desertion of Virgins after Deslouring Divorce of a Wife without cause Abdication of a Natural Child without Crime charging a Child on a wrong Father charging adulterous or false Children on the Husband of a Woman Married by a Priest in a Temple c. These are Mala in se Because prohibited by the Moral Law of God which is Eternal and Immutable and cannot therefore be dispenced with or confirmed but all Lawes Customs Canons and Acts of Parliament Dispencing or Confirming any of these are void A King therefore who hath Supremacy Ecclesiastical may Dispence with all Mala prohibita if there were any in his own Marriage He may Self-Marry himself A King being Supreme Ordinary may Marry himself without Ceremonies by the Law of the Land as the Kings of Israel and Judah did without a Priest Banns Lycence Book of Cannons Common Prayer-Book Temple or any Ceremony And being Supreme Ordinary as the Kings of Israel and Judah were needs not the Bishops Certificate but may Certifie his own Marriage according to the Moral Law of God And this is clear and unanswerable by any who doth not deny the Supremacy Ecclesiastical 6. As Supremacy in the Person of the King inables him to Dispence with and Confirm his own Marriage in manner before said So à fortiore the Supremacy of this Statute made by the Supreme Legislative Power both of the King and Parliament united can clear the Marriage therein intended from all the Mala Prohibita laid on it for no Mala Prohibita could be laid on it but by some former Common-Law Custom Canon or Statute-Law But this Statute hath Supremacy of all those for Leges Posteriores Priores contrarias abrogant Latter Laws abrogate all former which are contrary So all contrary Laws which were before of Marriage Filiation Heirship Succession and Certificates of Bishops contrary to the intention of this Statute for the Safety of the Lady his Companion and their Eldest Son and Heir are by the same Intention abolished 7. As this Statute had Power to Enact what it Intended So is it manifest This Statute intended not that Marrlage or Filiation should be tryed by Certificate of the Bishop that it never intended to restrain the Companion Royal to be one Married by the Mass-Book or Book of Canons or their Eldest Son and Heir to be only one so made by the Certificate of a Bishop for Edward the Third who was the Author of this Statute was one of the most Wise Valiant Kings at that time
required by the Statute Answ To which is Answered That if she had been the Wife of another man or any other had had a Lawful Propriety in her it is not denied but the Objection might have been material but here was the most Lawful way of Election of a Companion and acquiring Propriety in her not only according to Gods Ordinance but the Lawes of all Nations except the Papal and Episcopal and not Impertinently as expressed by the Poet Elige de vacuis quam non sibi vindicat alter Si nescis Dominum res habet ista suum Take her that 's free if it thou knowest not Think she some unknown Master then hath got Here was Possessio vacua Virgo intacta neither Party Prohibited by any Law of God to take or yield Possession or acquire Propriety one in another All Lawyers which write de modis acquirendi Dominij in a Wife and Children though they lay it as a Fundamental That Contract Sponsions Promises yea Buying and Selling it self only create an obligation but Transfer no Propriety without Tradition of Possession according to the Old Verses Rem Domino vel non Domino vendente duòbus In jute est potior traditione prior And though acquisition of the possession of Women and Children by Tradition or Seizure or other wayes without carnal knowledge and Generation doth only acquire the Propriety of them as of Slaves or Servants but not as of Wives or Children yet they assirm and the whole Scripture assirms with them that carnal knowledge between persons not prohibited by the Law of God is an acquisition of Propriety in the Woman and generation an acquisition of Propriety in children And that all Ceremonies of acquiring Propriety in Wives without carnal knowledge and all Adoptions for acquiring Propriety in children without genoration of them are Fictions and Fopperies The Scripture therefore calls every woman Lawfully laien with by a Man his Wife and every Son he begets his Son which gives a Propriety of all which Texts of Scripture I shall speak more largely in answer to the next Objection Object 4 Not Married according to the Law of God Object 4. That she was not Married according to the Law of God Answ 1 Before the contrary is proved to this Negative and the Truth shewen unanswerably that she was married according to the Law of God It will be necessary to prove by what Law the Law of God concerning marriage ought not and ought to be Judged whether it be the Law of God or no. Secondly By what Judge Marriage ought not and ought to be Judged to be not according or according to the Law of God As to the Law by which it ought not it is clearly and fully already prov'd therefore to avoid repetition I refer the Reader to the former Books Chapters Pages here following quoted viz. That it ought not to be Judged 1. By the Law of Moses and Customes of the Jewes of which Vid. Lib. 1. p. 2. 2. By the Laws and Customes of the Heathen Nations Vide. Lib. 1. p. 10. 3. By the Laws Civil Canon or Feudal Vid. Lib. 1. p. 21. 4. By the Laws of Mahomet Vid. Lib. 1. p. 26. 5. By Ecclesiastical Laws Vid. Lib. 1. p. 31. 6. By such Laws of England Scotland or Ireland as are Reliques of Popery or contrary to the Laws of God Vid. Lib. 1. p. 64. usque ad p. 125. 7. By Ceremonial Laws Vid. Lib. 1. p. 127. Of the Absurd and Ridiculous Ceremonies on which Priests would have Marriage Filiation Aliment and Succession to depend Vid. Lib. 1. p. 127. Of the Original of Compulsion to the Ceremonies of a Priest and Temple in Marriage which came from the Priests of Priapus and Venus Pagan Gods and Goddesses Magicians Aruspices Astrologers Daemons with the Strumpets Theodora Marozia and others and Popes and Bishops their Chaplains Vid. Lib. 1. p. 43.45.52.83 of Theodora and Morozia more p. 79. Of the sinal causes of Compulsion to the said Ceremony of a Priest and a Temple viz. the Insatiable Lust Covetousness and Ambition of Priests Vid. Lib. 1. p. 53. Of the most Dismal Effects and Mischiefs insuing Compulsion of the Ceremony of a Priest and Temple in Marriage Vid. Lib. 2. p. 192. usque ad 250. et ultra Of certain other Mischiefs not before Recited Of the damnable Effects ensuing Prohibitions to Marry and nulling Marriage except by a Priest in a Temple contrary to the Moral Law of God Other mischiefs not before recited of Compulsion of the Ceremony of a Priest and Temple in Marriage and the false naming that Marriage which is no Marriage and false nameing that no Marriage which is a Marriage whereby they call Good Evil and Evil Good Light Darkness and Darkness Light so that the whole Mystery of the Romish Antichrist depends on the Compulsion of this Ceremony to Marry Bury and Pray by a Priest in a Temple The wicked Causes of Prohibiting the Clergy to Marry by this Ceremony of a Priest and Temple and compelling the Laity 1 Without this Ceremony they could not prohibit marriage to their Clergy which Militia Togata of theirs to keep unmarried is one of the Arcana Imperij Papalis and was first Decreed by Pope Nicholas the First The sinal causes were 1. That the Priests might have no Dependance or be under command of the Lay-Lords by reason of their Wives and Families for whom if they kept them they would be necessitated to provide Lay-Maintenance the Spiritual being too short Commons for so many 2. That what Wives and Children the Priests had they might sit by other mens Fires and be maintained at other mens Tables and succeed to other mens Inheritances 3. That the Priests might be the Richer and Abler to pay the more Tributes and Taxes to the Pope 4. That they might be provoked to Lye with the more Lay-mens Wives and thereby fish out all the Secrets of their Husbands for Intelligence to Lay their own Plots and discover those against them in Auricular Confession 5. That they might not be put to the usual Cost of Intelligence which is commonly very Dear but might by this way be had for nothing and probably with Rewards to such Gallants 6. That between the Woman and the Priest they might Rob the Lay-man of his Goods and share it between them 7. That when the Lay-man was come to die the Woman to whom her Living man was more pleasant than her Dying might persuade him to make the Priest Overseer of his Goods and of the Children he had got for him And to give Land to Pious that is to say Pontifical Uses 8. That the Lay-men might not Lye with the Priests Wives and return to them the Talio to which end they made themselves Judges of the Causes of Divorce And made strict Canons Prohibiting the Lay Divorce à Vinculo for Adult'ry and that they should give Surety and Bond though Divorced à Mensâ Thoro while either was Living never to
Facto by the Birth of a Child Secondly That such Marriage and Matrimony between Persons not prohibited by the Moral Law are Lawful I prove 1 The Lawfulness of such Marriage and Matrimony in Respect no Prohibition by the Law of God of the same though without Ceremony 1. Because all Marriage and Matrimony is Lawful which is not Prohibited by the Moral Law of God but these are not Prohibited by the Moral Law of God Therefore they are Lawful Prohibition of Marriage without Ceremony not Prohibited by the Law of God is the Doctrine of Devils The Major is proved 1 Tim. 4.1 Because all Humane Laws forbidding Marriages or Meats which are not forbidden by the Moral Law of God are declared to come from the Devil and to be the Doctrine of Devils And accordingly all Papal and Episcopal Laws all Ecclesiastical Canon and Civil Laws all Decrees of Councils of Trent or any other Councils or Synods forbidding to Marry in any Circumstance or Ceremony not forbidden by the Law of God came from the Devil and are the Doctrine of Devils which see proved Lib. 1. p. 52. And that the final cause of such Prohibitions of Marriage without Pontifical Ceremonies The final Cause of such Prohibitions is only filthy Lucre of the Priests are only accumulation of Fees and Ambition of Pontiffs and Bishops Vid. Lib. 1. p. 55 56 57. 2. All Marriage and Matrimony is Lawful which is not a Sin or a Transgression but such Marriage and Matrimony which are not Prohibited by the Law of God are no Sin or Transgression Therefore they are Lawful The Minor is proved 1 Joh. 3.4 Sin is the Transgression of the Law And Rom. 4.15 Where no Law no Transgression Where no Law is there is no Transgression 3. What is declared no Sin by Scripture is lawful but Marriage between persons not Prohibited is declared no Sin by Scripture therefore Lawful The Minor is proved 1 Cor. 7.28 If thou marry thou hast not sinned and if a Virgin marry she hath not sinned 4. What is commanded by Scripture is Lawful and not Prohibited But Marriage and Matrimony is commanded by Scripture to young Women therefore Lawful The Minor is proved 1 Tim. 5.14 I will therefore the young women marry bear Children 5. What is in Scripture commanded and blessed between persons not Prohibited is Lawful and not Prohibited But Marriage and Matrimony by Carnal knowledge and multiplying Mankind is commanded and blessed in Scripture Therefore Lawful The Minor is proved Gen. 1.27 Male and Female â—reated he them And God blessed them and said unto them Increase and Multiply and replenish the earth 6. What is rewarded in Scripture in Persons not Prohiâ—ited is Lawful and not Prohibited but Marriage and Matrimony between Persons not Prohibited is rewarded Therefore â—awful The Minor is proved 1 Tim. 2.15 She shall be saved in Childbearing if she continue in Faith and Charity and Holiness with Sobriety The Lawfulness of Marriage which is not Prohibited by the Law of God is acknowledged by the Church of England Which I prove thus All Marriage acknowledged Lawful by the 39 Articles is acknowledged Lawful by the Church of England but the present Marriage whether there are any Witnesses alive or no to prove it Ceremonial is acknowledged Lawful by the 39 Articles Therefore the present Marriage is acknowledged Lawful by the Church of England The Minor is proved thus All Marriage not Prohibited by the Law of God is acknowledged lawful by the 39 Articles But the present Marriage is not Prohibited by the Law of God Therefore the present Marriage is acknowledged Lawful by the 39 Articles Though it is no ways necessary amongst so many clear and unanswerable Precepts and Examples of Scripture it self as are here cited establishing the Lawfulness of the present Marriage to add the Humane Authority of the Church of England or any other National Church yet in regard the Bishops in their Practice and Certificates deny that Doctrine of the Lawfulness of Marriage which they themselves acknowledge and pretend to establish in their own Book of Articles To confute therefore those Certificates of theirs out of their own mouths I have here inserted their own 32d Article without which they are not able to secure the Lawfulness of their own Marriages and Legitimation of their own Children against Papists Ossens Gnosticks Nicholaitans Hermogenians and other Hereticks but only on this Principle That all Marriages not Prohibited by the Law of God are Lawful as appears by the Article it self made Anno Dom. 1562. in the Fourth year of the Reign of Queen Elizabeth Roger's Articles p. 185 187 188. where is mentioned 1. That Bishops Priests and Deacons are not Prohibited by God's Law to Marry therefore it is Lawful for them to Marry 2. That it is Lawful for them and all other Christian men to marry at their own discretion as they shall judge the same to serve best to Godliness Whence will likewise follow That the Doctrine of the Church of England and the Ceremonies of the Church of England are two distinct things and to use the words of the Article As every Christian may Marry or not Marry according to his Discretion where not Prohibited by the Law of God so he may Marry with or without Ceremonies where not Prohibited by the same Law of God As Adam might have eaten of all the Fruits in Eden with Ceremony or without Ceremony according to his Discretion where not Prohibited by the Law of God And I think no man will question this 32d Article not to be according to the Doctrine of the Church of England And the same Article touching Marriage is known to be the Doctrine of the Helvetian Bohemian Saxon Suevian and all the Reformed Churches If therefore the Tree is Holy the Fruit is Holy if the Marriage is Lawful the Son is Lawful I have therefore proved him Lawful by Three unanswerable Laws 1 The Act of Parliament of Treasons 2 The Law of the Church of England 3 The eternal and immutable Law of God in the Scriptures 2. The Lawfulness of such Marriage and Matrimony without Ceremony appears in Respect of no Command of any Ceremony by the Law of God 1. There 's no Commandment of any Ceremony in Marriage in the whole Scriptures either Old Testament or New of Moses or Christ of Prophets or Apostles but the same as hath been already shewn have been invented by Priests of Priapus Venus Juno Diana Popes and Bishops either for Lust Covetousness or Ambition No Sin where no breach of a Commandment of God 2. The Scripture makes nothing unlawful nor Sin but what is a breach of the Commandment of God where there 's no Commandment therefore of God of joyning Ceremony with Marriage or Matrimony Marriage and Matrimony between Persons not Prohibited is lawful without them This is proved Luk. 18.18 And a certain Ruler asked him saying Good Master What shall I do to inherit eternal life The answer is
great Slander Peril and Disherison of such Children which untrue slanderous report of Holy Matrimony doth not only redound to the high dishonour of Almighty God but also to the King's Majesties dishonour and the High Court of Parliament and the Learned Clergy of this Realm who have determined the same to be most lawful by the Law of God in their Convocation as well by the Common consent as by the Subscription of their Hands and that most of all is to be lamented through such uncomely Railings of Matrimony and slanderous Reproaches of the Clergy the Word of God is not heard with Reverence followed with Diligence the Godly proceeding of the King's Majesty not received with due Obedience c. Banns required to the Marriage of the Clergy Provided always That this Act nor any thing therein contained shall extend to give Liberty to any Person to Marry without Asking in the Church or without Ceremonies according to the Book of Common Prayer and Administration of the Sacraments nor shall make any such Matrimony already made or hereafter to be made good which are Prohibited by the Law of God for any other cause The Protestant Clergy by these Acts thought themselves as secure as they do now But Queen Mary immediatly on King Edward's Death repealed this Law and made all the Married Clergy their Wives and Children Rogues Whores and Bastards From whence may be observed 1. That a Marriage and Legitimation which is lawful by the Law of God may be wickedly Slandered by Papists and by Papal and Episcopal Laws to be unlawful 2. It hath been already shewn that the Marriages of the Lady Mothers of King Edward the Sixth and of Queen Elizabeth and of the King 's eldest Son and the Legitimation of Children were and are lawful by the Moral Law of God but the same have been Slandered and still are by the virulent Tongues of Papists 3. That these wicked Slanders of the Legitimation of the King 's eldest Son do produce not only the same evil Effects which the Statute declares to insue from the Slander of the Legitimation of the Sons of the Clergy but greater and more dangerous 4. That the final Cause why the Papists and their Laws Slander the Legitimation of the King 's eldest Son and of all the Sons of the Protestant Clergy is the same which is because they would seize on their Inheritance or Estate and divide the Spoil amongst the Papists 5. It is well known that the Inheritances and Estates of the Descendents of the Protestant Spirituallity and Clergy in which Body are included all Spiritual Persons Doctors of the Civil Law exercising Spiritual Jurisdiction Church-men Ministers all persons within Orders are great and numerous through the Three Kingdoms who will all Suffer if a relapse to Popery 6. That their Wives and their Descendents which have Married have been obnoxious ever since the Time of Reformation the first to Consiscation of their Dowers Jointures and Thirds The other to Illegitimation and thereon Confiscation of their Inheritances Lands and Goods The Law which forbid the Clergy to Marry was made by Pope Nicholas the First to wicked intents which have been before already shewn the Clergy and their Wives and Children are likewise left obnoxious to the same by the Proviso mentioned which requires Banns to make lawful the Marriage of the Clergy but they usually have none but are Married by Licences which makes them likewise obnoxious to the very Letter of the Act which if there should happen a Papist Successor he may take advantage thereof without a Repeal or Repeal the Act and so take advantage either way which he will Let not the Protestant Clergy therefore nor the Bishops be deceived or vainly flatter themselves that they can compound or lay the Obligation of an Oath or an Act of Parliament on a Papist Successor if any happen to be nor think he will lose so infinite heaps of Treasures as this point of the Marriage of the Clergy and the Illegitimation of their Descendents will by Confiscations of all the Jointures Dowers Thirds of all the Archbishops Bishops and inferiour Clergies Wives and of the Successions of their Posterities in the Three Kingdoms will bring into his Treasury Therefore certainly if a Papist Successor happen there will be no living for a Married Clergy-man in England it will be Heresie sufficient to Burn him if he is Married and a cause sufficient will be his Estate and for Provision his Wife must expect none unless like the Indian Wife she Burn with him in hope to find it in another World Queen Mary Illegitimated and Destroyed all the Wives and Children of the Protestant Clergy notwithstanding they were Legitimated by Act of Parliament They need look no further for an Example than of Queen Mary who was a Papist Successor to the Protestant Act of King Edward her Brother who though he confirmed the Marriages of the Clergy and the Legitimation of their Children by two Acts of Parliament left in their highest Vigour and Power and though she had solemnly promised the Protestants without whose help she had not probably come to the Throne that they should injoy Liberty of Conscience yet as soon as ever she obtained the Kingdom she repealed her Brothers two Acts and made Whores of the Wives and Bastards of the Children of all the Protestant Clergy Married Burnt them and Confiscated their Estates And that Pious Martyr Archbishop Cranmer who was Married was Cruelly Burnt amongst the rest 7. There is no way to preserve the Marriages and Legitimations of the Protestant Clergy their Wives and Children from the destruction of a Papist Successor but to have Protection from a Protestant Successor of the Crown and to cast off this Papal Doctrine of Ceremonial Marriage and to teach the truth of Marriage according to the Moral Law of God which is the true Jus Coronae as hath been already shewn and makes the eldest Son of a Protestant King and himself a Protestant to be of the same Interest with the Sons of a Protestant Clergy and to ingage him by God's help to be his Instrument to defend them and the Protestant Religion Liberty and Propriety to the Glory of God and Comfort of the People Can therefore any of the Protestant Clergy be so imprudent as in their Doctrine to destroy the Holy Just True Ancient Eternal and Immutable Moral Law of God of Marriage and Legitimation to bring in the Unclean Adulterous Spurious Illegitimate Injust Lying Upstart new-fangled Ceremonial Laws of Priapusses and Popes and not understand they thereby Slander their own Mothers and Wives to be Whores their Daughters to be Bastards themselves and all their Sons to be Sons of Whores and Bastards Can they be so inconsiderate as to imagine that any Slander they shall raise against the Marriages of the Lady Mothers of Queen Elizabeth King Edward or the King 's eldest Son or the Legitimations of Queen Elizabeth her self King Edward or
Emperors of this Realm whereby hath insued great Effusion and Destruction of man's Blood as well of a great number of the Nobles as of other Subjects and especially Inheritors in the same and the greatest occasion thereof hath been because no perfect and substantial Provision in Law hath been made within this Realm of it self when Doubts and Questions have been moved and proponed of the Certainty and Legalty of the Succession and Posterity of the Crown By which Statute appears the Judgment of the King and Parliament to be That the great incertainty of the Law in points of Succession of the Crown was one great Cause of the great Mischiefs of effusion of Blood both of Nobles and Commons which insued thereby and the fittest Remedy to be the Declaration of the Successor incertain by the King and Parliament which is accordingly therefore done in the same Statute And it likewise appears that the same Doubt in Law was raised then as to Succession which is now Whether the King's Marriage and Issue by the Mother of Queen Elizabeth was Lawful and Legitimate which is Declared by this Act of Parliament that it was And H. there is first intendency there to Declared a Legitimation of the same Marriage with Queen Ann the said Mother of Queen Elizabeth And that all the Issue had and procreate or to be had procreate without saying Lawfully between the King and Queen Ann shall be his Lawful Children and be Inheritable to the Crown Then is the Crown Declared to be to the King for Life and the Remainder to be to the first Son of his Highness of his said Lawful Wife Queen Ann begotten and to the Heirs of the Body of the said first Son Lawfully begotten and for default of such Issue with divers Remainders over and make it High Treason to slander the King's Marriage in prejudice of the Heirs of the same 3. Danger of Arbitrary disposing the Crown by Rome or Canterbury 3. The other great Danger from the incertainty of the Laws of Succession besides effusion of Blood which is the Arbitrary disposing by Episcopal Sees whether of Rome or Canterbury though only Rome named unless a Successor is Declared by the King and Parliament is likewise mentioned in the said Statute 25 H. 8. cap. 22. in these words viz. By Reason whereof the Bishop of Rome and See Apostolick Contrary to the great and inviolable Grants of Jurisdictions by God immediately to Emperors Kings and Princes in Succession to their Heirs hath Presumed in time past to invest who should please them to Inherit in other mens Kingdoms and Dominions which thing we your most humble Subjects both Spiritual and Temporal do most Abhor and Detest 4. Danger of Predominancy of Papal and Episcopal Laws of Marrlage above the Moral Law of God 4. One great Cause of the incertainty of the Laws of Succession of the Crown is That Papal and Episcopal Ceremonial Laws of Marriage Filiation and Succession are tollerated in the Three Kingdoms to Usurp a Predomination not only over the Law of the Land but the Moral Law of God It is therefore necessary to avoid the Danger mention'd to proceed from the incertainty caused by Papal and Episcopal Laws That a Declaration by King and Parliament be Who shall be Successor in Particular and by Name which clears all Doubts and is the highest Security under God on which any Crown or Succession to it can depend 5. Danger to the King's Person Line and House 5. The not Declaring a Successor is Dangerous to the Person of the King and his House of which we need not look on any other Example than Alexander the Great of whom Justin Lib. 15. relates That he being desired to Declare a Successor though he had a Son called Hercules and though his Wife Roxana were Great with Child yet would he Declare neither but Will'd That he who was most worthy should Succeed which was the same in effect as if he had Will'd they should after his Death destroy one another with Civil Wars and his own House amongst them for so they did And Cassander one of his mean and not Chief Officers destroyed his Mother Olympias and all his Kindred Such was the Fate of so great a Monarch who while alive thought the World too little yet was he himself Poison'd and when Dead nor he nor his Mother nor his Children nor any of his Kindred retained any Spot but their Graves being all destroyed with him of which there appears no second Cause but his Neglect to Declare his Son Hercules his Successor who might have been a Preservative to him according to Tacitus Pravas aliorum spes cohiberi si Successor non in incerto The wicked hopes of Plots against the Possessor are Checkt if the Successor is not incertain 6. Danger of Lineal and Collateral Heirs to destroy one another 6. The Danger of the Lineal and Collateral Heirs destroying one another doth cause all those Murthers Poisoning Strangling Burning out the Eyes or perpetual Imprisonments of the Blood Royal of the Turkish Persian Aethiopian and other Eastern Kings and Emperors but that they have no Parliaments Elected by the people to Declare their Successor and to Protect the Liberty Propriety and Lives of their younger Children by standing Laws but on the Death of the old Emperor the Election or rather Sale of the Empire to the New is left to the Lawless will of the Priest or Soldier 7. The Danger if the King 's Eldest Son should die and leave Children in Minority of Guardians in Majority of Contention for the Crown between Nephews and Uncles This Danger is not so great in Scotland as in England for there as hath been already said as Buchanan mentions their Ancient Act of Parliament Enacts Vt quemadmodum Regi maximus Natu filius in Regnum Succederet ita filio ante Patrem Defuncto Nepos avo subrogaretur That as the Eldest Son of the King should Succeed to him in the Kingdom so the Son being Dead before his Father the Nephew should Succeed in his stead to his Grandfather It hath been already before shewn how dangerous Guardians Uncles are to Nephews in Minority and if in Majority all Histories witness under how great incertainty the Law is in most Nations to determin the Question which ought to be preferred the Uncle or Nephew in Succession to a Kingdom that is to say in such Kingdoms who have no Parliaments Elected by the People to establish the manner of Succession And how great Wars and Devastations have been made between Nephews and Uncles on the incertainty of the Law of the Country in that point And though in Succession to Common Inheritances in England the Nephew is by Custom preferred Jure Representationis to the Uncle and though my Lord Coke likewise in his Exposition on the said Statute of 25. E 3. cap. 2. Coke 3. Part. fol. 8. saith to be the Fitz-Eigne the Eldest Son of the King within that Statute it
is not always necessary he should be his first begotten Son for the Second after the Death of the first begotten without Issue is Fitz-Eigne with the Statute Et sic de caeteris which doth implicitly seem to affirm That till the Issue of the Eldest Son fails the second Son shall not Succeed by this Statute which implicitly prefers the Nephews in Successions before the Uncle but he shewing no Authority therein but his own and that only implicit and not Express and the Common Law and Customs of the Crown being very incertain obscure and as often broken as kept when not Confirmed by Act of Parliament And King Edward himself the Wife Author of this Act when the Black Prince Died and left his Eldest Son Richard of Bindeax who was after R. 2. Doubting of the certainty of the Law in the Point did as the wisest way procure Richard to be Declared Successor by Act of Parliament in his Life-time to secure him against his Uncles Tâ—â—â—aw of Eâ—… not clear in point of Succession of the Crown between Nephew and Uncle where the Father dies before the Grandfather The certainty of the Law of England therefore may be not without Cause doubted in this Point of Succession between Nephew and Uncle and Danger there may be lest the incertainty of the same give the same Pretences to create Civil Wars here as it doth in other Countries unless prevented by an Act of Parliament as in Scotland Vt filio ante patrem Defuncto Nepos Avo Subrogaretur 8. Danger without Assent of the People Danger if the Successor assume the Crown without the Assent of the People by their Representative in Parliament the Right of a Successor is not here Disputed nor the Law whether he is King before Coronation or not until Contract with his Parliament and Coronation received from them Highest a Successor can say is only as Paul saith 1 Cor. 10.23 All things are lawful for me but all things are not expedient All things are lawful for me but all things edifie not Though the manner whereby a Successor ascends the Throne may be lawful yet may it not be Expedient neither may it Edifie the Throne H. 8. was a King of great Courage and Wisdom and doubted not the Right of him and his Posterity to the Crown Yea though he had more than any other King Power granted him by Act of Parliament himself to Declare his own Successor either by his Letters Patents or last Will yet he shewed therein his great Wisdom and Moderation and would not do it without Assent of his Subjects as appears in the already mentioned Statute 35 H. 8. cap. 1. in these words viz. And albeit that the King 's most Excellent Majesty for default of such Heirs as are Inheritable by the said Act might by the Authority of the said Act give and dispose the said Imperial Crown and other the Premisses by his Letters Patents under his Great Seal or by his Last Will in Writing Signed with his most gracious Hand to any Person or Persons of such Estate therein as should please his Highness to Limit and Appoint Yet to the Intent that his Majestie 's Disposition and Mind therein should be openly Declared and Manifestly known and notified as well to the Lords Spiritual and Temporal as to all other his Loving and Obedient Subjects of this his Realm to the intent that their ASSENT and CONSENT might appear to Concur with thus far as followeth of his Majestie 's Declaration in this behalf For so Wise a King well know that let the Right of a Successor be what it will yet if he lose the Love of his People which cannot be obtained without their Assent and Consent he loseth the Chief Defence under God of that and all other Right he hath if therefore a Successor is Declared by Act of Parliament so great a Danger is avoided of not having the Assent and Consent of his Subjects seeing such an Act of Parliament cannot be without the Assent and Consent of the major part of the People included in the plurality of Votes of their Representative 9. Danger of assuming the Crown by a Papist The next great Danger is The assuming of the Crown by Force by a Papist Successor if not prevented by a Declaration of a Protestant Successor by the King and Parliament That a Papist Successor is most Dangerous to all Lay-Papists themselves and that they may Live far more Happy under a Protestant than one of their own Religion A Distinction ought to be made between Lay-Papists and Papist Priests Both Religion Justice and Mercy ingage all those who are affected with the least of any of them to put a great difference betwixt the Deceived and Deceivers and betwixt the Blind and those who mislead them to fall into the Ditch A Distinction is therefore necessary to be made by all Protestants between the Lay Papist and the Papist Priest Mercy is to be shewn the one and Justice the other And if this just Course had been used from the Beginning of the Reformation that no Penal Statute had been made against the Lay-Papists but only against the Papist Priests The Protestant cannot be secure unless the Lay Papist be likewise secure from Penal Laws against Conscience No Bishop Bencroft under pretence of maintaining the Dominicans against the Jesuits and Regulars against Seculars had been able to maintain Legions of both in Secret to Destroy the Protestants in their own Land nor under the blind name of Recusants to turn the edge of all the Penal Laws pretending to be made against Papists to cut off the Protestants And the Sacrament of the Paschal Lamb to be a Destruction to the Israelites and a Passover to the Egyptians those Penal Laws being pursued with the highest Rigour against the Protestants but came not near the Papists Dwellings or if they did they took more easie Pardons from the Exchequer than from the Pope So if the late Act concerning Oaths and Sacraments had been Restrained only to Papists Protestants had not suffered in so high a Degree as now they do But I pass from what is past to what is future to shew what Mischiefs the Papists themselves are to expect from a Papist Successor and what benefit from a Protestant 1. The first Mischiefs they will meet with in a Papist Successor is a most miserable one take what Covenant what Vow what Promise what Oath they can from him yea an Hundred Oaths his Conscience cannot be bound with any of them and the Catholicks themselves shall take as little hold of his Catholick Faith as the most of those whom they think or call Hereticks As for Example William the Conqueror was a Papist and is mentioned Dan. Hist 36. to get Assistance of the King of France who was then young in his Design for England William the Conqueror a Papist King forswore himself to Papist Subjects promised if he obtained the Kingdom to hold it
which were Five viz. 1. Don Antonio Son of Lewis second Son of Emanuel 2. Philip the Second King of Spain Grandchild to Emanuel by his eldest Daughter Isabella 3. Philibert Duke of Savoy Grandchild to Emanuel by his second Daughter Beatrix 4. Mary Dutchess of Rarma eldest Daughter of Edward youngest Son of Emanuel 5. Katherine Dutchess of Brigance youngest Daughter of Edward youngest Son of Emanuel Of the Exceptions Declinatory Don Antonio might have made to this Judicatory 1. That 't was no Convention of Estates Elected by the People 2. That the Judges were Elected by the King who became thereby Judge in his own Case for King Henry was only the third Son of Emanuel whereas Antonio's Father Lewis was second Son to Emanuel so he being Son of Henry's elder Brother Henry would be adjudged to restore the Kingdom to him if the Judges were equal and not of Henry's choosing 3. That the Pope and Bishops were inequal Judges they assuming the only Jurisdiction of Marriage and Succession according to the Papal Laws who take Bribes and Sell the Successions of the Kingdom and so become Judges in their own Causes as 't is well known in the Case of the Natural Son of Henry King of Castile who bought a Legitimation of the Pope and thereby excluded his Brother Peter born of a Canonical Marriage after Peter had been admitted to the Throne and acknowledged for King divers years 4. That Pope Julius the Third put forth a Decree against the Promotion of Bastards without the Assent of Don Antonio or the people of Portugal he ought not to be Judged by the Law of a Foreign Prelate who thereby makes himself a Judge in his own Case The Reasons pretended why King Henry 's Judges Adjudged Don Antonio Illegitimate 1. Because he was a Bastard in Reputation but what is this to the purpose what the vulgar think who are Educated and blinded in Popish Superstition and thereby neither understand what Legitimation or Illegitimation means Judges of Legitimation ought to be Wise men and not Fools 2. Because when Pope Julius the Third put forth a Decree against the Promotion of Bastards Don Antonio sued to be exempted and thereby owned his Bastardy and what is it to the purpose what a Foreign Pope who ought to have no Jurisdiction in Portugal Decrees there without the Assent of the People or what Antonio did terrified with the superstitious fear of his Excommunications 3. Because Lewis his Father declared him by his last Will and Testament his Bastard Son To which it may be said That it was Testamentum inofficiosum against the Law of God and against the Law of Nature and void and he himself was therein worse than an Infidel to Illegitimate him whom in the same Testament he acknowledges to be his Son 4. Because Lewis never acquainted any of his Friends with his Marriage nor told his Brother Henry in his Sickness To which it may be said Marriage or no Marriage is a Matter of Law and not of Fact and Lewis being a Papist understood not what it was but according to the Papist Laws which are contrary to the Law of God But 't is manifest he acquainted his Friends and Lewis himself with what was Marriage and what was not according to the Law of God viz. Carnal Knowledge of the Mother with whom he was not Prohibited to Marry by the Law of God and begetting Don Antonio of her besides Henry was no Competent witness in his own Case of what his Brother told him or not 5. Because the witness brought to prove the Marriage of his Mother with his Father Confessed they were suborned thereunto To which may be said These Witnesses prove themselves to be Witnesses Incompetent and are of no value for a suborned Witness will as well Swear false in his Recantation as in his first Testimony It being the common practice of wicked Persons to hire Knights of the Post to testifie at first the same which true Witnesses or other Lawful Probation have proved and after discover they were suborned to draw Suspition on the true Testimony Too much of the same wicked practices have been to dishonour the true Evidence hath been given against the late Horrid Popish Plotters The Reasons alleadged by the other Pretenders to the Crown of Portugal 1. Grandchild by a Daughter and great Grandchild by a Son Couzin German of the first Degree by a Daughter and of the Second by a Son The King of Spain by his Learned Lawyers alleadged against the Dukes of Parma and Brigance that he was Grandchild to Emanuel whereas the two Dukes were great Grand-children and he was Couzin German of the first Degree to Henry the present King in Possession whereas they were only Couzin Germans of the second Degree and so the next Degree of Consanguinity was to be preferred before a more remote Degree and this the Civilians pretended to be a strong Argument in their Law 2. That when John the Base Son of Pedro was Crowned King of Portugal it was to the Injury of the King of Castile the right being in him as having then Married Beatrix the Legitimate Daughter and Heir of Ferdinando King of Portugal Legitimate Son of Pedro and Bastard Brother to Ferdinando Father to Beatrix 3. Because Portugal was given away by a former King of Castile in Marriage with one of his Daughters contrary to the Law of the Land Son of the eldest Daughter of the Son and Son of the eldest Daughter of the Father The Duke of Parma pleaded by Farneso Bishop of Parma That being Son of the eldest Daughter of Edward fourth Son of Emanuel he ought to be preferred before the King of Spain being but Son of a Daughter of Emanuel and therefore he deriving from the Male Line ought to be preferred before him who derives only from the Female Alien and Native Born The Duke of Brigance pleaded his Cause himself and against Spain alleadged the same as Parma did and to Bar Parma who was descended from the eldest Daughter as himself was from the younger Pleaded that Parma was an Alien because an Italian and he a Natural-born Portuguese The Duke of Savoy pleaded his Cause by Charles Renero afterwards a Cardinal but he being descended from a younger Daughter of Emanuel as the King of Spain was from the eldest he was presently excluded as having no colour of Right Besides these Pretenders Queen Catherine of France would have put in her Claim as descended by her Mother from Alphonse but the Claim being groundless they denyed to receive it and so the dispute remained between the King of Spain and the two Dukes of Parma and Brigance But King Henry dying while the business was in hot debate and before he had decided the Controversie the King of Spain making himself Judge in his own Case King Philip Claimed his own Kingdoms from Natural Children but would not allow it in others seized on the Kingdom which he his Son and Grandson