true lawful and undoubted Heir and Universal Successor to the Crown and Kingdoms of England and France and all the King's Dominions whatsoever and wheresoever beyond the Sea and also has right of universally succeeding the King in the said Crown Kingdoms and Dominions To have to him and the Heirs Male of his Body and in default of such Issue so in remainder to his Brothers In an other Charter pass'd in that Parliament the Inheritance or Hereditation of the Crown is entail'd upon the King and the Heirs Male of his Body then to his four Sons and the Heirs Male of their Bodies successively It seems the next year some doubts arose upon these different Settlements that 5o. then remaining upon Record therefore they cancel and make void the Letters Patent of the Entail 5o. and change and amend that Settlement which they seem to have thought defective 1. In only declaring the Prince Heir Apparent and Inheritable to the Crown which was no more than to declare him before others qualified to succeed if the States should Elect him 2. In declaring him Inheritable only to the Crown of England without mentioning its appurtenances seeming to think that in Grants of this Nature nothing would pass by implication But to prevent all ambiguities they being as is said in that Record met in a Parliament according to the Custom of the Kingdom for divers Matters and Things concerning the King and his Kingdom The King with common Consent of the Kingdom Enacts That a new Patent be Sealed constituting Prince Henry Heir Apparent to succeed the King in his Crown Realms and Dominions to have them with all their appurtenances after the King's Decease to him and the Heirs of his Body and so in remainder to his three Brothers successively whereby they had a larger Estate than by the Entail 7º which was to Heirs Male Thus by Virtue of one or more Settlements by Authority of Parliament H. 5. succeeded and yet it was thought a great instance of the confidence the States had in him that in a Convention or Assembly holden according to Ancient Custom in which they treated about creating a new King some of the Nobility immediately Swore Allegiance to him before he had been declared King But it is to be observed that whereas his Father died the 20th of March he is said to be created King on the 5th of April Death cutting off the course of his Glories his Infant Son H. 6. came in under the Parliamentary Entail but the Administration was held to have fallen upon the States who accordingly after having declared H. 6. King in full Parliament pass'd a Patent constituting Humfry Duke of Gloster Protecter of the Realm John Duke of Bedford Regent of France and Henry Beaufort Bishop of Winchester and Thomas Beaufort Duke of Exeter Governors of the young Prince The Death of the brave Duke of Bedford occasioned not only the loss of France but the raising the Family of York to a pretence which in all probability had been buried to this day had not H. 6ths treacherous Ministers put him upon making Richard Duke of York Regent of France after being High Constable of England and Lieutenant of Ireland With these advantages Duke Richard set up under a Mask of Popularity as if he only sought redress of grievances while himself was the only National Calamity As nothing but success could give him any colour of Title he was forced to conceal his Ambition even from his own Party till 26 H. 6 yet after that acknowledged and swore to H. 6ths Right and confirm'd it with the Sacrament which Solemnities were to be subservient to his imaginary Divine Right Tho' by his Frauds and Perjuries he often came within the prospect of a Crown 38 H. 6. he was deservedly Attainted of High-Treason and an Association with an Oath was voluntarily enter'd into by the Lords wherein every one severally acknowledges H. 6. to be his most redoubted Lord and rightwish or Rightful by Succession born to Reign over him and all the Kings Liege People that he will do his utmost for the We le and surety of the King's Person of his most Royal Estats and the very conservation and continuance of his most high Authority Preheminence and Prerogative and for the preservation of the Queen and of Prince Edward his Right redoubted Lord the Prince that after the King's Death he will take and accept the Prince for his Sovereign Lord and after him the Issue of his Body lawfully begotten for want of such Issue any other Issue of the Body of the King that he will never give Aid Assistance or Favour to any thing contrary to the premises and that he will put himself in his due undelayed devoir with his Body Goods Might Power Counsel and Advertisement to resist withstand and subdue all that should presume to do contrary to the premises or any of them This Association not being General throughout the Kingdom had no great effect not so much from any belief the Nation had of Richard's being injured as from the burdens a Treacherous Ministry induced a weak Prince to lay upon the Subjects This made the Commons of Kent invite over from abroad the Duke and his Party who had fled from Justice then the Tide turn'd and the King became wholly in the power of the Duke of York under whose awe and influence a Parliament was call'd where he laid claim to the Crown with circumstances which one would think were enough to give any Man a face of Title and yet his pretended Divine Right countenanc'd by Providence was mightily qualify'd by the courage of the Parliament and their regard to the Constitution of this Monarchy His claim was as Son to Ann Daughter to Roger Mortimer Son and Heir to Philippa Daughter and Heir to Lionel Duke of Clarence third Son to E. 3. whereas H. 6. descended from John of Gaunt the 4th and eldest surviving Son After Debate among the Lords upon this matter these Objections were agreed upon against Richard's pretence of Title 1. The Oaths they had taken to the King their Sovereign Lord. 2. Acts of Parliament made in divers Parliaments of the King's Progenitors of Authority sufficient to defeat any manner of Title to be made to any Person 3. Several Entails made to Heirs Male 4. That Richard did not bear Lionel's Arms. 5. That H. 4. took upon him the Crown not as Conqueror but right Inheritor to H 3. All that is urged materially against this for Richard is 1. That Oaths do not bind against God's Law and that requires Truth and Justice to be maintain'd but this being a Spiritual matter he refers to any Judge Spiritual 2. That there was but one Entail of the Crown 7 H. 4. but that this was void against the right Inheritor of the Crown according to God's law and all Natural laws 3. It could
King of Denmark Landing with an additional Force this with Ethelred's sloath and unacceptableness to his own People drove him to an Abdication Upon Swane's death the English invited back the Abdicated King on condition he would govern better than he had done for which his Son Edward undertook Ethelred returning as an Author who lived about the time has it a contract was established between the King and his People and firm friendship and it was enacted with an Oath that there never more should be a Danish King in England After this Cnute the Son of Swane laid claim to the Crown of England as a Saxon as well as Dane deriving from King Ethelbald who doubtless was that Son of an elder Brother of King Alfred who oppos'd Edward the elder Notwithstanding this tho' the Danes elected Cnute the English adhered to Ethelred Upon whose death they chose his Son Edmund Ironside who as appears by the stream of ancient Authorities was a Bastard Upon i Edmund's death Cnute was Crown'd King of England by the Election of all and according to Florence of Woster he swore to be Faithful Lord as the People did to be Leige Subjects At Cnute's death his two Sons Harold who was a Bastard or rather Spurious and Hardecnute his legitimate Son by Ethelred's Widow were by Leofric and all the Nobility on the North-side of the River Thomes elected Kings over all England as partners in Power and co-heirs But Duke Godwin and other Noblemen in West-Saxony opposed and prevailed It appears by an Author who wrote in the Confessor's Time and whose words are transcrib'd by several that they prevailed for the total rejection of Hardecnute because he made not sufficient haste to take the Administration upon him Therefore Harold who however would have been King of Mercia and the Northumbrian Kingdom was elected over all England by the Princes and all the People or as an other of like antiquity has it is elected King by all the People of England Upon Harold's death and not before Hardecnute was received in what manner appears by the then standing Ritual for the Coronation of Kings But Emmae's Sons by Ethelred Alured and Edw. as Malms observes were despised almost by all rather through the remembrance of their Fathers sloathfulness than by reason of the Power of the Danes Yet they two without preference of one before the other were accounted Heirs of the Kingdom and accordingly Cnute while he was in fear of the then Duke of Normandy offer'd half his Kingdom to Edward and his Brother Alured Upon Hardecnute's death Earl Godwin was chosen Administrator or Protector of the Kingdom during the vacancy and till a fit Person should be elected King Godwin summons a Convention of the States where he nominated Ethelred's only surviving Son by Emma whom the Saxons call'd Elgive After some debates all consented to the election of Edward He being so elected was in the sense of those times Heir of the Kingdom to the last Possessor Hardecnute his Brother by the half blood And yet it is observable that according to a Charter of Edward's pass'd in Parliament at the latter end of his Reign the Hereditary Succession was hazarded by the Danes that is according to what I before observ'd the Anglo-Saxon regnant branch of the Royal Family was kept back and was likely never to have been restored 'T is evident that it was not for Edward to carry this Point farther for besides the Danish Royal Family claiming from King Ethelbald and Fretheric Abbot of St. Albans in his time coming from the ancient Saxons and Danes and lineally descended from King Cnute there was the Historian Ethelwerd or his immediate Ancestor of the Family of King Ethered and in all probability there were several descendants either from Ethelstan Ethelwolfs elder Brother or from his Sons Ethelbald and Ethelbert What was the known Law in the Confessor's time both as to the Succession and the continuing King besides the former Evidences appears beyond contradiction from that King's Laws according to which 1. The Monarchy was founded in election which explains in what Sense a King is there taken to be Constituted 2. If the King do not answer the end for which he had been Constituted not so much as the name of King shall continue in him 3. It receives as a Rule in all Kingdoms and particularly here the Judgment of Pope Zachary encouraging the Franks to depose their King Childeric With Edward the Confessor end the Saxon and Danish Successions of Kings Harold the Son of Earl Godwin as I shall shew never was King nor reputed King by any but his own Party Here I may observe 1. That Dr. Brady is mightily mistaken in his assertion that the Saxons did in their subjection owning of and submission to their Princs acknowledge both proximity of blood and nomination of their Princes often both sometimes only one of them but never followed any other rule 2. The chief rule of Succession upon the death or disability of any King was a proper election of a worthy Person of the Regnant Branch of the Royal Family 3. Dr. Bradie's notion that Elegerunt signifies no more than recognoverunt they acknowledged owned submitted unto him as their King is by no means true the recognition being manifestly subsequent to or in consequence of the election nor is any thing more plain than that the States did from the beginning of the Monarchy downwards rightfully declare an Heir to the Kingdom and then acknowledge his Right tho' neither next upon the Royal Line nor representing the next nor yet nominated by the Predecessor And indeed till a rare and noted instance in the case of Hen. 5. on whom the Crown had before been entailed in Parliament no Prince was known to have been formally recogniz'd till he had taken the Coronation Oath 4 If according to any good authority of the Saxon or Danish Times it should seem that any man came to the Crown by the Gift of his Predecessor it must have been made with such solemnity as was requisite even for the granting of Lands As that of Egbert's above-mentioned or Athelstan's in an Assembly of the Bishops Abbots Dukes or Earls and the Procurators or Representatives of the Country or an other before the Plebs or Commons or Edgar's in the open air with the privity of the Great or Wisemen of his whole Kingdom In the Confessor's life time there were three Competitors for the Crown Atheling's Father and Son to Edmund Ironside Harold who was High Steward of England and the most powerful of any Man tho' not his Fathers eldest Son and William Duke of Normandy Grand Nephew to Emma who had been Crown'd Queen of England nor as has appear'd above was William under any
incapacity from his Bastardy Besides his Wife Maud was descended from a Daughter of King Alfred married to Baldwin Earl of Flanders upon which account a Commentator on the Grand Custumary of Normandy held him to be the first or chief Heir Edward Son to Edmund Ironside was at one time designed by the Confessor for his Successor if he could prevail with the Nation to consent but that Edward dying before the Confessor his Son being a Minor seems never then to have been thought of Harold's design was covert nor does he appear to have been a Pretender till the Confessor lay upon his death-bed But Duke William had long been promis'd his Cousin King Edward's interest in order whereunto we may well believe he in the year 1651. came over to England and doubtless to ingratiate him to the Nation was by the Confessor carried up and down the Kingdom In the year 1657. or 1658. the design was brought to bear and in a Great Council of the whole Nation William was declared Successor or as the Law received by him has it agreeing with a Charter pass'd in Parl. 15. of his Reign was adopted Heir or as another Charter has it Edward instituted him adopted Heir That this Adoption or Institution of an Heir to the Crown was with a Consent truly National I shall elsewhere have occasion to prove at large at present shall only observe that the above-cited Law says that Edward caused the Kingdom to swear to William that Wilnot Earl Godwin's Son and Hacun his Grandson were sent Hostages to William to secure the future Allegiance of that Family that Robert Archbishiop of Canterbury and Harold were successively with the Duke to assure him of his being declared Heir to the Crown which Harold swore to endeavour to preserve to William But notwithstanding the Nations and his own Oath while the Nobility and People were at the Confessor's Funeral at Westminster Harold got a Party together at Lambeth where as some have it he set the Crown upon his own Head The mad Englishman as a contemporary Writer has it would not stay to see what the Publick Election would appoint Harold's Possession whatever it was prov'd very short lasting but nine Months nor was he ever fully recogniz'd or submitted to by the States or the Body of the Nation he never held any Parliament or Convention of the States which I take to be the reason that no Charter of his is to be seen nor have I met with any mention of one They who fought for him against William were judged Traytors and their Estates forfeited and it is rightly observ'd by the Lord Coke that in Demesday Harold who usurped the Crown of England after the decease of King Edward the Confessor is never named per nomen Regis sed per nomen Comitis Haroldi Wherefore he leaves him out of his Lift of our Kings William according to some Authors was encouraged to his attempt from the consideration that Harold was neither of the Saxon nor Danish Royal Stock When William Landed he claimed the Crown from his Cousins Gift with the consnt of the Nobility of the Kingdom confirmed by Oath and lays his qualification in being thought the most deserving of all that were nearly related to the Confessor Harold had nothing to plead against that but the suggestion that the Crown had not been setled by a Consent sufficiently formal that it was made without a Convention and Law of the Senate and People which 't is no wonder that he should pretend tho' there were never so formal an Election Notwithstanding the Right with which the Norman Duke Landed he proffered to submit to what the English should decree and therefore to a new election if they thought fit Upon Harold's death some of the English who dreaded the consequence of receiving William after a bloody Battle set up Edgar Atheling for King who tho' but the second degree from a Bastard and tho' his Father never had Possession was look'd upon as the true Heir of the Crown that is the Person of the last Regnant Branch of the Royal Family who ordinarily would have succeeded by common consent of the States if of sufficient Merit and reasons of State or other obligations did not interpose But the learned Monk Guitmond who could bot but know the constitution in this matter held him to be but one Heir among many of the Line of the Royal Family However the generallity of the Clergy thought themselves bound to maintain the Title with which King William Landed and that'twas Rebellion to oppose him yet before his being received for King he at Berkhamsted made a League or Contract with the People headed by the Great Earls Edwin and Morcar who came up with the Forces from the North which had never been in the Battle against the Duke Part of the League made with the People of England was that he should be Crown'd as the manner of the English Government requires at his Coronation the consent of the People was ask'd in the due and accustomed manner and the account Historians give of the Oath he then took shews it to be that which stood in the Saxon Ritual After which he more than once received and swore to that Body of the Common-Law of England which had obtain'd the name of King Edward's Laws which as has been observ'd declare the end for which a King is Constituted and that he loses the Name or ceases to be King when he answers not that end Indeed Dr. Brady who is as free with his Conquerors Memory as with the Liberties of England which he calls the Grants and Concessions of the King of this Nation will have it that William the I. regarded his Oath only in the beginning of his Reign and that by notorious violations of his contract with the People of England he acquired the Right of a Conqueror and thereby put an end to the ancient Constitution of this Monarchy and those Liberties and Priviledges of the Subject which manifestly appear to have been of elder date than the Monarchy Upon which if one would return the Freedom of his Censures against others it might be said that this was not only to make the then King the Successor of a Conqueror but with a prospect of applying the Rights which he ascribes to a supposed Qonquest to justifie what should be practised upon the late intended Conquest of this Nation That the Judgment and Practice of William the I. was very contrary to the Doctor 's Imaginations will be proved by numerous Instances and that it was so as to that part of the Constitution which concerns the Succession to the Crown appears by that King's Death-bed Declaration which some would set up for a will disposing of the Crown at that very time when he owns that it is not his to give
REFLECTIONS UPON A Treasonable Opinion Industriously promoted Against SIGNING the National Association AND The Entring into it prov'd to be the Duty of all the Subjects of this KINGDOM Hoc quidem perspicuum est eos ad imperandum deligi solitos quorum de justitiâ magna esset opinio multitudinis adjuncto verò ut iidem etiam prudentes haberentur nihil erat quod homines his auctoribus non posse consequi se arbitrarentur Civ de of lib. 2. LONDON Printed and Sold by E. Whitlock near Stationers-Hall 1696. To His Excellency CHARLES Duke of SHREWSBURY one of the Lords Justices of England and one of His Majesty's Principal Secretaries of State c. May it please your Excellency SINCE among the many subjects of just Praise which make up Excellency's distinction it is not the least that the true Religion and Loyalty are known to have been chosen with a Judgment properly your own my ambition could not carry me to a fitter Patron for Truths which are to encounter a strong Pre-possession in Men taught to object novelty against this Revolution tho' with as little cause of triumph as the Papists have for their question where was the Protestant Church before Luther As your Excellency's wise and vigorous discharge of Offices of the highest Trust and Consequence under our only rightful Sovereign King WILLIAM revives to France the noted Terrors in the name of Talbot permit me from thence to take an Omen of Success against Arguments supported by the French Interest and Power more than by any colour of reason Yet they who oppose the Right of the present Government having pretended to seeming Authorities I have used that method which I hope may be proper for their conviction giving a short view of what upon the various Exigencies of the Publick in all Ages of this Monarchy has been the uniform Judgment and regular Practice of Conventions of the States and Parliaments of this Kingdom in concurrence with several glorious Preservers of the English Liberties But that I may use an Authority sufficient in it self to justifie our present Settlement I beg leave to appeal to Excellency's early and eminent Example which will weigh more with Persons acquainted with so illustrious a Character than any Argument from pass'd Times And yet what I here offer being for the most part the Result of the Collective Wisdom of the Nation may not be wholly undeserving of your Excellency's Patrondge nor can I apprehend that you will refuse these Fundamental Truths the benefit of being recommended to the World under so Great a Name which tho' it will set my faults in the clearer light if your Excellency shall be thought to bear with 'em cannot but moderate the Censures against Your Excellency's most devoted humble Servant W. Atwood REFLECTIONS UPON A Treasonable Opinion c. THE Enemies of the Peace of these Realms having handed about a Paper as the Opinion of a certain florid Gentleman of the long Robe eminent for making New Treasons and whose Authority is said to have prevailed with several to refuse Signing the Associatlon for the defence of His Majesty's Sacred Person and Rightful Authority I shall offer what I conceive a sufficient Antidote to the Poyson he would spread with all his affected softness The words of the Opinion as they have occurr'd to me are these By the Statute of Hen. 7. the Subjects are Indemnified in taking an Oath or Fighting for a King de Facto But the Association is not within the Statute but an Overt Act of Treason against the King de Jure and Punishable as such when he shall be restored In refuteing the pernicious Errors contained in this Opinion I shall evince First That according to the best Authorities of them who suppose that there may be a King de Jure as distinguished from a King in Fact the Right of the supposed King de Jure is not such as makes any Act against him to be Treason nor is he King or has any Right against the King in Possession or his Issue Secondly That an Association for the Defence of the King's Person and Right is within the purview of the Stat. 11 H. 7. and that as plainly as an Oath of Allegianee Thirdly That it is not supposed or implyed in that Act that there was or might be a King de Jure while an other was King in Fact but that according to that Act the King for the time being is the onely Rightful King Fourthly That the Statute 11 H. 7. is not introductory of any new Law in this matter Fifthly That his Present Majesty is the only King de Jure and that the late King neither is nor of Right ought to be King Sixthly That according to this Gentleman 's own Law he is Guilty of High-Treason against our Sovereign Lord the King 1. The Lord Coke upon the Statute of Treason 25 E. 3. referring in the Margin to the Statute 11 H. 7. says This is to be understood of a King in Possession of the Crown and Kingdom For if there be a King Regnant in Possession altho' he be Rex de Facto and not de Jure yet he is Seignior le Roy within the purview of this Statute and the other who hath the Right and is out of Possession is not within this Act. Sir Mathew Hale says what in substance agrees with the Lord Coke A King says he speaking of the Statute 25 E. 3. de Facto and not de Jure is a King withing that Act and Treason against him is punishable tho' the right Heir get the Crown Indeed both those Great Men seem to suppose or admit that there might be one who had or at some time or other might have a sort of Right notwithstanding another's being so fully King that a Conspiracy to Kill or Depose him would be Treason But it is to be consider'd 1. That the Lord Coke does not suppose that there may be a King de Jure while another is King in Fact unless this supposition is warranted by the Statute 11 H. 7. which as I shall prove it is not 2. The Statute which in both their Judgments regards only the King Regnant makes it Treason to Conspire the Death of the King 's Eldest Son or to violate his Eldest Daughter for the last of which the Lord Coke assigns this Reason That for default of Issue Male she only is Inheritable to the Crown So that the supposed King de Jure appears to be barred not only by the Possession of the King in Fact but even by that Right which is Vested in his Son or Daughter before either of them have Possession And indeed That Right which ordinarily would descend to the Eldest Son of the King Regnant is truly explanatory of all that will be found to have belonged to one who since E. 4. of the elder branch of the Royal Stock got Possession has often been call'd King de Jure tho' as will appear in
a sence very different from the Modern vulgar Notion Nor does the Judgment even of E. the 4th's own Parliament in the least favour the late King however if it did later Parliaments in the time of H. 7. have taken away all colour from such pretences That the Eldest Son even of the most Rightful Regnant King was not King upon the Death of his Father without a Parliamentary Settlement of the Crown upon him before his Fathers Death nor with it till the States of the Kingdom had actually received and recognized such Son will appear beyond contradiction And that the Eldest Son 's Right was only a Right to be declared King unless he was unfit to Reign or the exigencies of the Publick required the advancing some other Person of the Royal Family If a deserving Person was kept back or one so judged by his own Party or the Nation when he prevailed the least Complement they could make him was that of Right he ought to have been King before he was King but farther they never extended their Transports of Loyalty nor ever Authoritatively declared That he had such a Right as made him King while another possessed the Throne And till he got Possession it was never declared that he had Right Nor does the setting one aside before his coming to Possession or after make any difference in the Nature of the Right in question And I shall put it beyond Controversie that whenever a worthy Person of the Saxon Royal Family especially of that branch which for some Successions had been settled as the Regnant Family was solemnly recognized by the States of the Kingdom upon the Death or disability of a Person who stood forwarder in the Royal Line the Person so recognized became King de Jure and no other Person had any manner of Right unless such as was in Abeiance or in the Clouds and indeed no where till Possession brought it to Light and Being 3. Fully to shew this Gentleman his mistakes upon the Statute 11 H. 7. it will be requisite to transcribe the whole which is as follows The King our Sovereign Lord calling to remembrance the Duty of Allegiance of his Subjects of this his Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the Defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter and abide in Service in Battle if case so require That for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince as in this Land some time passed hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon him in his Person or being in other places by his Commandment within this Land or without any thing should leese or forfeit for doing their true Duty and Service of Allegiance It be therefore Ordained Enacted and Established by the King our Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament Assembled and by the Authority of the same That from henceforth no manner of Person or Persons whatsoever he or they be that attend upon the King and Sovereign Lord of this Land for the time being in his Person and do him true and faithful Service of Allegiance in the same or be in other places by his Commandment in the Wars within this Land or without that for the said deed and true Duty of Allegiance he or they be in no wise Convict or Attaint of High-Treason or of other Offences for that Cause by Act of Parliament or otherwise by any Proces of Law whereby he or any of them shall now forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chatals or any other things but to be for that Deed and Service utterly discharged of any Vexation Trouble or Loss And if any Act or Acts or other Proces of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that Act or Acts or other Proces of Law whatsoever they shall be stand and be utterly void Provided always that no Person or Persons shall take any Benefit or Advantage by this Act which shall hereafter decline from his or their said Allegiance Here 't is observable 1st That whereas this Gentleman absurdly supposes that it is Treason to engage to fight against one whom one may lawfully kill and that one may enter into a contrary Allegiance but may not do any voluntary act of Allegiance it is evident by the Words that if Swearing Allegiance is safe so are all voluntary Acts of Allegiance for the Swearing is not expresly provided for by that Act or any otherwise than as it is a part of the Duty and Service of Allegiance to the Sovereign Lordâ— but if Associating for the Defence of the King's Person and Right be part of the Allegiance due then that is as much provided for as the Oath is and consequently this Gentleman must grant that the Statute 11 H. 7. indemnifies the present Associators That this is part of the Allegiance due appears by the Common-Law Oath of Allegiance affirmed in the Laws of W. 1. and continued down to this day in Substance and Obligation according to which all the Freemen of the whole Kingdom are to affirm with a League or Association and Oath that within and without the whole Kingdom of England they will be faithful to their Lord the King preserve his Lands and Honors with all fidelity together with his Person and defend them against Enemies and Strangers And in an other Chapter of that Law after Provision that all Freemen shall enjoy their Estates as had been before enacted and granted in a Common-Council of the whole Kingdom it adds We also enact and firmly enjoyn that all Freemen of the whole Kingdom be sworn Brethren or Associators to defend our Monarchy and our Kingdom according to their Strength and Faculties and manfully keep the Peace and preserve the Dignity of our Crown entire and constantly to maintain Right and just Judgment by all means according to their power without fraud and without delay What is this but an Association to defend the King and Kingdom against any Person whatever and by consequence to declare that the King for the time being is the only Rightful King Since his Person Crown and Dignity is to be preserved by all means in their Power This part of the Common-Law is affirmed by the Statute 11 H. 7. declaring it the Duty of Allegiance to defend the King and Land against every Power and Might and therefore as well against Pretenders to Title as others 2. This Act expresly indemnifies for voluntary Acts of Allegiance against the mind and will of the Prince 3. It can by no means have
Man who shall with me carefully compare Records Histories Law-Books Charters and Authentick Manuscripts from before the fixation of the Monarchy downwards The most antient uncontested Authority of this kind which is allowed us even by the Scotch Writers who think themselves concerned to blemish our Antiquities is the Venerable Bede who died in the year 735. He speaking of the coming of the Picts into the Northern Parts of Britanny says The Scotch gave them Wives on condition that when any Controversie arose they should chuse themselves a King of the Female Stock of Kings rather than of the Male. Whereby it appears what was his Judgment of the Successions where they have seemed most fond of an Inherent Right of Birth But as to England where a King has lest three Sons Bede calls them all Heirs Accordingly he more than once mentions Brothers reigning together as Sighard and Frede among the East-Saxons while the West-Saxon Kingdom was govern'd by several petty Kings in distinct Divisions These Kings probably at that time were Tributary or Feudatory Kings under the Mercian Kingdom for in the year 730 I find King Aetilbalt stiles himself not only King of the Mercians but also of all the Counties which by the general name are call'd South-Angles subscribing King of Britanny And in the same year I find an Offa who stiles himself King of the Mercians and also of the other Nations where ever round about By reason of the Inheritance of Crowns belonging to several Sons of Kings the Kings were so numerous that Bede mentions two Brothers Crown'd Kings even of the Isle of Wight But when any were Constituted Kings to the setting aside all the old Regnant Family of that particular Kingdom the Persons so constituted were according to Bede Strangers or doubtful by way of distinction from Lawful Kings And yet all the Kings of the several Kingdoms were descended from Woden from which Common-Stock they all took their Qualifications for an Election as afterwards the West-Saxon Kings did from Cerdic then from Ina and after that from Egbert But generally I take it regard was had to that part or branch of Woden's Family which was the regnant Family within the particular Kingdom where one of that branch was advanced according to that Charter of an Offa where he is stiled King of the Mercians descended from the Mercian Royal Stock About which time I find two Kings of Kent Sigered and Eadberht governing in severalty These 't is likely were Brothers but Eadberht who became King of all Kent upon Sigered's death or amotion was constituted King and Prince by the whole County This was above 60 years before the Foundation of the Monarchy was laid by the West-Saxon King Ina. Tho most of the Moderns and many of the Ancients lay it as late as Egbert's time the Confessors Laws received and sworn to by William the I. and following Kings say of Ina he was elected King throughout England and first obtained the Monarchy since the coming of the English into Britanny His qualification for an Election the Saxon Cronicle places in a Descent from Cerdic But Malmsbury assures us he was advanced rather for his Merit than his being of the Successive or Inheritable Family and that from him to Brictric the Kings were far out of the Royal Line That Brictric was truly elected appears not only in his bare qualification from the Stock of Cerdic but as he was immediate Successor to Kenwolf elected upon the like qualification and in whose Reign it was ordained in a National and Legantine Council that no man suffer the assent of Wicked men to prevail but that Kings be lawfully elected by the Priests and Elders of the People where 't is manifest that lawfully does not limit the Election to any other Rule than what follows in that Law viz. to avoid electing Persons born in Adultery or Incest The Person lawfully Elected is there called Heir of the Country Where Heir is plainly used in the Sense both of the Civil and of our Common Law for the Person that comes duely to the Inheritance in this sense all that have been elected Kings have been held to succeed by Hereditary Right And thus in numbers of Charters in the Saxon Times and after Private Inheritances are granted to Men to leave to what Heir they please to the Church and its Sacred Heirs and to the Barons or Citizens of London and their Heirs To Brictric the first West-Saxon King after the Peoples Right to Elect had been declared by National Authority succeeded Egbert who derived after several degrees pass'd from Ina's Brother It may well be thought that he was Elected with a Consent no less full and formal than was held essential to his Grants of Lands one of which was with the License and Consent of all his Nation and the unanimity of all the Great men Egbert was alive in the year 838 tho' Historians generally suppose him to have died two years before His Sons Ethelstan the Eldest and Ethelwolf were Kings in his life time As I might prove by several Charters but shall here mention but two one in the year 827. where an Ethelstan subscribes as Monarch of all Britanny an other An. 836. where Egbert grants with the Consent of his Son Ethelwolf King of Kent In the year 838. Ethelwolf succeeded Egbert in the Kingdom of West-Saxony by a manifest Election his eldest Brother Ethelstan being then alive and continuing the Monarch or chief King of all Britanny Besides the Evidences above that there was not at that time such a fix'd rule of descent in the West-Saxon Royal Family as made the Kings eldest Son to be King or to have a certain and indefesible Right to be King may appear by the Law or Custom of that Kingdom mentioned by Asser and Nicolas of Gloster and others not to suffer the King's Wife to be called Queen or to sit near her Husband which seems to have occasioned the Ritual for the Consecrating the Wife in consortium regalis thori for the consortship of the Royal Bed Till she was so Consecrated which was to be in a Convention of the States or coming from it she had no more right to the Kings Bed than a Concubine Of this doubtless W. 1. was aware when he expressed a desire to have his Wife Crowned with him Certain it is that the Sons of Kings begotten on Conubines after they had been elected or adopted by the States were always held to have succeeded as Rightfully and to have been as legitimate Heirs as the Sons begotten in Wedlock the Mother's being Queen and by consequence the legitimation of the issue and capacity to inherit the Crown having depended upon the will of the States But that in Ethelwolf's time the word Elected was duely applied
to English Kings and upon what qualification may farther appear by an Author of the Saxon time who speaking of Eastengle where Sr. Edmund was Crownd King two or three years before Ethelwolf's death says Over this Province reigned the most holy Eadmund descended from the Noble Stock of the Ancient Saxons c. who coming from Kings his Ancestors being eminent for his vertue with the unanimous favour of all the People of the Province is not so much elected by reason of * the Succession or Inheritance of the Stock as he is forced to reign over them With in this time Ethelwolf's eldest Son reigned in his Father's life time and retained West-Saxony to his share whilst the bigotted Father having withdrawn to Rome tho' animo revertendi was held to have abdicated and with much ado prevailed with his Son and the People to let him be an underling King of an inferior Kingdom Besides other objections to any right of descent from him according to a good Authority his elder Brother Ethelstan survived However one or more Acts of Parliament in his life time had provided for three Successions after him as appears by the Will of his fourth Son Alfred made in the Presence and with the Consent of all West-Saxony That Will recites what Dr. Brady calls Ethelwolf's Will but was a Charter passed in a General Council for Alfred is express that the Inheritance of King Ethelwolf came to him by Charter thereof made in a general Council at Langedene Yet that Charter was but recommendatory to a future relection for Ethelbert who is not named in Alfred's Account of that Settlement was upon the Fathers death ordained King of several of the Kingdoms and succeeded his Uncle Ethelstan in Kent Alfred's Will shews that by the Parliamentary Settlement of the Crown he was to be Partner in Power when his Brother Ethered should succeed for which he appeals to the Testimony of all West-Saxony accordingly they are both represented as Kings at the same time Alfred was Ethelwolf's fourth Son which soever therefore of his three Brothers left Sons every one of 'em according to the vulgar notion had Right to the Crown before him and yet that great and good Prince in the last Publick Act of his Life expresses a satisfaction in that Inheritance which God and the Princes with the Elders of the People mercifully and bountifully gave him That Will shews that he had two Nephews then alive Athelm and Ethelbalt who were not regarded in the Succession but Alfred was upon his Brother Ethered's death elected by all the Saxons To Alfred succeeded his Son Edward by a manifest Election having Cousin Germans of at least one Elder House Ethelbald or Ethelwold who was one of them was a Competitour with Edward and was elected by the Danes Ethelwerd who himself descended from Ethered's Elder House says of Edward Indeed the then Successor of the Monarchy Edward Son of the above-mentioned King is Crowned after him He being of the Royal Stem was Elected by the Nobility at Whitsuntide one hundred years being pass'd since his Ancestor Egbert had his present Dominion Where the Right of the Saxon Crown to the Monarchy or Primacy for even Edward had no more was laid in perscription but his Right to the Crown in an Election upon a qualification from the Royal Stem Edward's Son and Successor Athelstan was a Bastard tho' Dr. Brady would have the contrary believ'd from Malmsbury's tenderness in the Matter least it should diminish that King's Glory The Saxon Cronicle mentioning the Father's death in Mercia says Ethelstan was elected King by the Mercians Huntingdon says in Mercia whither they might have flock'd from other Kingdoms To Athelstan succeeded his Father's eldest lawfully begotten Son Edmund Tho' Edmund had Sons Eadred his Brother succeeded and that as an Author of those Times affirms in the Right of a Brother And an Author of like antiquity whose words are transcribed by others since the reputed Conquest says The next Heir Eadred took upon him the Natural or Hereditary Kingdom by succeeding his Brother Where the Uncle is plainly accounted the next Heir fit to Reign And yet the Enquirer and Dr. Brady absurdly suppose that Eadred was only Tutor Curator Regent or Protector of the young Princes and Kingdom Which was far from the meaning of that ancient Author who blames the eldest of those Princes for pretending to succeed his Uncle before he had been elected tho' both with Clergy and Laity one Elected supplied the Numbers and Names of the Kings that is no Man was accounted King who was not Elected speaks of the day of the common Election what Authority the States exercised over him for his egregious folly on that day and his being cast off by the Northern Part of the Nation because he foolishly administer'd the Government committed to or entrusted with him He being forsaken by an Universal Conspiracy or Agreement they says that Author the Lord so dictating Elected his Brother Edgar After Eadwig's death the same Author says Edgar took his Kingdom upon him being Elected by the People of both Kingdoms as equal Heir to both As an other Author has it he was elected by all the People of England To Edgar succeeded his eldest Son Edward the Martyr who whatever many of the Moderns and some of the Ancients may have thought was undoubtedly a Bastard which is not only shewn by an Author of the Time but is confirmed by the Brother Ethelred's Charter which informs us that the Election of the States preferred his Brother as the Charter has it The Great Men of both Orders elected my Brother King and gave me Livery of the Lands belonging to the Kings Sons which plamly proves that Edward was a Bastard the Private Inheritance having fallen to the Father's younger Son However this is an undeniable President of an Election and yet for the reason above it may well be said that Edward was left Heir of his Father's Kingdoms as well as Vertues which Historians since the time of W. 1. transcribed from one of the Writers of Sr. Dunstan's Life That Ethelred who succeeded the Martyr was truly elected appears beyond contradiction by the Ritual of his Coronation which requires that the King being elected by the Bishops and the Plebs or Commonalty take his Coronation Oath after the Oath taken the People are solemnly ask'd whether they will have him to be King they answer we will and grant they pray to God to bless his Servant whom they have elected King and in an other place they pray God to bless this purely elected Prince To this time the Danes possessed great part of England and Swane
I says he appoint no Heir of the Crown of England but to the Universal Creator whose I am and in whose hands are all things I commend it for I did not possess so great Honour by Hereditary Right but with direful conflict and much effusion of Humane Blood I took it from the perjured King Harold and brought it under subjection to me He adds Therefore I dare not bequeath the Scepter of this Kingdom to any body but to God alone least after my death worse troubles happen in it by my occasioning For my Son William always as became him obedient to me I wish that God may give him his favour and that if it so please the Almighty he may Reign after me According to this 1. He had no right or pretence to dispose of the Crown 2. If some would have regarded his disposition so many would have been likely to assert their liberty that it might occasion great troubles 3. Providence only could determine who should succeed which is almost as much as if he said there is no fix'd or certain right in any body One reason why he pretended not to dispose of the Crown was that he had it not by Hereditary Right that is as it came not to him by discent neither was it disposable like common Inheritances not but that after he was declared Heir and admitted King he had as true an Hereditary Right in the Crown as any of his Predecessors had and this is justified by his own and other Charters In one he stiles himself by the Providence of God and Inheritance of Consanguinity King of the English In another he says he was made King by Hereditary Right In another he is call'd Heir to Edward by stock and gift and in Charters of W. 2. and H. 1. their Father is said to have succeeded by Hereditary Right Indeed one of the Charters of W. 1. seems to contradict his Death bed Declaration or the sense I have given of it for speaking of his victory over Harold he says he acquired the Kingdom due to him and his Successors to be possessed for ever by Hereditary Right Yet this if duely considered is no more than that by his Rightful Possession his became the Regnant Family and the Successions were to be derived from him His Son W. 2. being through the prevalence of the English against the Normans elected soon after the Father's ddeath truly succeded upon the old Hereditary Right and indeed stood fairer for a recognition than his elder Brother Robert Dr. Brady observes out of Knighton that the Barons of England with the plenary consent and counsel of all the Community of the Kingdom branded Robert with illegitimacy because he came not from a lawful Bed No Man I believe has imagin'd that Robert was not the Son of W. 1. by Maud and that after Marriage but as has appeared above till she had been Crowned Queen of England she was but as a Concubine and her Issue illegitimate and thus the very qualification to be elected proceeded from that election which made the Wife Queen H. 1. Upon this account was to be preferred upon the death of W. 1. before the eldest Brother Robert then alive yet he did not scruple to own by his Charter that next to God's mercy this was owing to the Common-Council of the Barons The Ritual for his Coronation shews that he had been elected in a Convention of the States prays to God to bless him whom they have elected King and declares his Authority to be delegated to him haeeditario judicio by an Hereditary Judgment or Decree constituting him Heir of the Crown Till he presumed too far upon the love of the People and bore too hard upon 'em they never thought of changing him for his elder Brother nor was his Possession long disturbed He well knowing that his Issue had no certain Right of Succeeding him till the States should agree to it prevail'd upon 'em to make two Settlements of the Crown successively one upon his Son William an other after the Son's death upon his Daughter Maud and both the Settlements were establish'd by a National Oath But it is observable that the last was if the King died without Heir say some without Heir-male say others According to which with regard to the ancient Constitution Stephen Sisters Son to H. 1. when recognized by the States became within the express Provision of that Settlement Agreeably to this as we have it from an Author of the Time H. 1. upon his Death-bed recommended Stephen to be received by Hereditary Right And that Author speaks of his Merits joyn'd with his being of the Royal Stock as inducements to his Election As an other Author has it because he appear'd fit to Reign as well for the Dignity of his Stock as the probity of his mind they agreed upon a common Resolution and all with concordant favour Constituted him King a compact being first made and a mutual Oath according to the vulgar expression Maud's Title tho' under a former Settlement of the Crown gave him no disturbance till he either broke his part of the mutual Contract or at least disoblig'd the Clergy which made his own Brother the Pope's Legate turn against him and help to bring in Maud who refusing to swear to the Confessor's Laws was chiefly by means of the Londoners who were very powerful at all Elections rejected and never fully recogniz'd At that time election was counted no disparagement to a King's Title for Stephen not only took into his Title by the Grace of God by the Assent of the Clergy and People elected King of England but in an Assembly of the States in a memorable Speach too long to be here inserted appeals to them who ought rather to succeed in a Kingdom one whom the unanimous consent of the Nobility and the University of the People earnestly wish'd for desired elected Or one whom every Sex every Age opposed and cried out against What more pernicious than against the will of all violently to snatch the Rights of the Kingdom Had Stephen's brave Son Eustace lived in all probability H. 2. had never succeeded and however was glad to come after Stephen as his adopted Heir as W. 1. had been to the Confessor Neither was Maud's consent ever ask'd to the Settlement or recognition afterwards tho' she lived beyond that time nor did the States take any notice of her pretended Title after her manifest forfeiture of all that she could claim by the Settlement in the time of H. 1. or otherwise howsoever H. 2. knowing that the Consent of the States was the best Title any Child of his could have to succeed him and yet that they had liberty of altering a Consent given upon reasons which
might afterwards sail out of abundant care for his Son Henry had him Crowned in his life time which through French Counsels put the Son upon insisting on the Rights of Kingship to the great clamity of the Nation tho' the Subjects swore Allegiance to him with an express Salvo for the Allegiance due to his Father Which whatever some have thought or affirm'd was the only Salvo in the Scotch Kings homage according to ancient custom for the Crown of Scotland To H. 2. succeeded his eldest surviving Son Richard but was not accounted King upon the death of his Father Authors say he was to be promoted to be King by Hereditary Right which is far from being King by Hereditary Right But as the former usage explains such words he deserved to be elected and made King in which sense one of the Authors who lived at the time immediately explains himself mentioning his Coronation Oath after the solemn and due election as well of the Clergy as People Before this he was at first only Earl of Poictou and then Duke of Normandy but not till he had been solemnly invested with the Sword of that Dukedom And Bromton informs us that he accepted the Crown upon condition of keeping his Coronation Oath without undertaking which the Archbishop charged him not to assume the Royal Dignity He going to the holy Wars after his being Crown'd his Brother John would have seiz'd the Government as vacant but had no tollerable pretence the War having been carried on with a National Consent Upon this it was adjudged by a Common-Council of the Kingdom that John should be disseiz'd of all that he held in England which might extend to such right or expectancy as he had in the Crown Notwithstanding which upon Richard's death the great Question came upon the Stage whether the Crown ought ordinarily to go according to the right of Proximity or of Representation The right of Proximity was in John Brother to King Richard this was the Right which the English seem'd to think most agreeable to the Constitution of this Monarchy and is according to the Custom of Normandy for Succession to that Dukedom and as Cujacius supposes of most Nations Foreigners were for Arthur of Brittain as having the right of Representation being the Son of John's elder Brother and this was the Right according to the custom of Brittain in France But as to the Law of England it appears by Glanvil's account of the Law as it was taken in the time of H. 2. that even for the Descent of private Inheritances it was doubtful whether they ought to go to the Grandson by the eldest Son who died in the Father's life time or to his next surviving Son If indeed the eldest Son had in the Father's life time done homage to the Chief Lord for his Father's Inheritance this was held to remove the doubt And Glanvil afterwards says upon the Question between Uncle and Nephew that the condition of the Possessor is the better According to which King John having obtained Possession of the Crown had it rightfully and Arthur had no right to turn him out John being beyond-sea at his Brother's death sent over the Archbishop of Canterbury and the Earl Marshal of England to sollicit for his being admitted to the Throne These Great Men with the assistance of the Chief Justice of England prevailed upon many to swear Allegiance to John and in a Convention at Northampton those Persons were Sponsors for John's doing right to all men upon which condition or in confidence of his performing what had been undertaken in his name the Earls and Barons swore Fidelity to him against all Men yet after this he was formally elected in a full Convention of the States where the Archbishop declares it as matter known to 'em all that no man ought to succeed an other to the Kingdom upon any previous reason unless unanimously elected by the whole Realm c. But if any one of the Royal Stock was more deserving than others his election ought to be consented to the more promptly and readily Notwithstanding what had pass'd in favour of John in the Convention the Archbishop at the time of the Coronation calls him but Earl King John not only took the Oath appointed by the standing Ritual which declares every King of England to be elected but assumed the Royal Dignity as his Predecessor did with the express condition of keeping his Oath Having broken this Contract and notoriously departed from that end for which according to the Confessors Law expresly sworn to by him he had been constituted or created King in making War upon his People with Foreign Forces with which he exercis'd inhuman barbarities and as much as in him lay alienating his Imperial Crown to the Pope he in the Judgment of the Court of France as well as of the States and People of England fell from his Royal Dignity the Throne was become vacant and during the vacancy the Administration devolved upon the States whereupon they resolved to elect a new King and sent a solemn Embassy to the King of France to send over his Son Lewis to be King of England whose wife was John's Sisters Daughter But the chief inducement to this Election seems to have been that expectation in which they were not deceived that the Foreigners would desert John for Lewis Tho they promised to Crown him King they seeing great grounds to dislike his French Temper and Conduct kept him upon his good behaviour without a Crown And having found by the dying Confession of one of his confederates that he had sworn if he came to be once Crowned King he would treat the English as Rebels to their former Prince they soon sent this Probationer packing yet did not hold John to be King After John's death many of the greatest interest in England while Lewis was here and Elianor Prince Arthur's Sister alive in Bristol Castle who according to the vulgar notion ought to have been Queen John's Son but were far from thinking him King upon the death of his Father or from repenting of what they had done to the Father but they thought it adviseable to cut off Lewis his expectation of the Crown to which end the Martial of England Summons a Convention to Glocester where he tells the States that tho' they had justly prosecuted the Father for his evil deeds yet that Infant was innocent because he is the Son of a King and our future Lord and Successer of the Kingdom let us Constitute him our King At last all as with one voice cried thrice let him be made King Here 't is evident that he was not accounted King till Constituted or made and was but a future Lord and agreeably to this Matthew Paris
says they assembled in order to exalt Henry the King 's eldest Son to be King of England He took the Coronation Oath more han once and at one of his Coronations had the Confessor's Sword carried before him by the Earl of Chester one of the Earls Palatine of England for a sign that that Sword was not to be born in vain He having trod in his Father's steps the States were likely to have made good their solemn denunciation 17th of his Reign of deposing him in a Common-Council of the whole Kingdom and creating a new King which as appears by Bracton a very learned Judge in that Reign was no more than the then known Law of the Kingdom Various were the events of a long Civil War in which at last the death of the great Darling of the Church and People the then Hereditary High Steward of England and the bravery of Henry's Son gave him the victory which they who were on his side and his own experience of the consequence of his former Counsels kept withing some bounds of moderation Henry to secure the Succession to his eldest Son Edward had before that success caused many and particularly the Citizens of London to swear to his Son as Successor And after that it should seem that a Parliament had made a Settlement of the Crown For in the 55th of his Reign a Writ was sent to London the execution of which was return'd into the Parliament that year at Winchester and 't is probable the like had been throughout England in pursuance of which Writ the Mayor Barons Citizens and University of the Commons swore Allegiance to the King after him to his eldest Son Edward then to his Son John after that to the right Heirs of the Crown of England which not being to the Heirs of either of those Persons plainly left the Inheritance as I have shewn it was from the beginning Upon the Father's death the Clergy and Laity flock'd to Westminster where they declared or received for King Edward then beyond-sea in the Holy War so called Soon after this as I take it a great Convention of the States was holden in his name there a Chancellor was chosen and other Provisions made for the Peace of the Kingdom in Edward's absence the Writ which they issued out requiring the Subjects in general to swear Allegiance to E. 1. says the Government was devolved upon him by Hereditary Succession and the Will of the Nobility and the Fidelity performed or Allegiance sworn to him Agreeably to which Walsingham says they recognized Edward their Leige Lord and ordained him Successor of his Father's honour Tho' he was a very gallant Prince yet having taken ill advice being to cross the Seas he upon a Pedestal at Westminster-Hall Gate with the Archbishop of Canturbury and the Earl of Warwick by his side publickly ask'd forgiveness of his People entreated 'em to receive him again at his return and if he died to Crown his Son King which they who were then assembled consented to How much it was then known to concern a King to keep to his part of the Contract as he would have his People continue bound appears by two great Authorities in our Law of that time Fleta who as to this matter transcribes Bracton almost verbatim and the Mirrour of Justices which speaks of the first Institution of Kings among us by Election for what End they were Elected and what they were to expect if they answered not that End E. 2. as Walsingham informs us succeeded not so much by Hereditary Right as by the unanimous Assent of the Nobility and Great Men. He was for misgovernment formally depos'd or Abdicated from the Regal Dignity as Walsingham has it and his Son Edward was Substituted or Elected in his stead The Son indeed tho he had headed Forces against his Father seem'd to scruple accepting the Crown without his Fathers consent And ex post Facto after Edw. 2d had been deposed and his Son Elected with a threat that if he refused they would Elect sombody else the Father took some comfort at the Election of his Son and as much as in him lay consented The Son it must be own'd in a Writ cited by Dr. Brady says his Father amoved himself by the assent of the Prelates Earls Barons and other Nobles and also of the Commonalâ—y of the whole Kingdom Which being onely in Writs Issued out of the Chancery can be of no Force to limit or explain that Act of the States And was but a civility or complement from the Son to the Father What the States judged in the matter will be very plain from the following account in a contemporary Author King Edward remaining in Custody at Kenelworth a General Council of the whole Clergy and People of England was Summon'd viz. of every City and every County and Borough a certain number of Persons to Treat and Ordain with the Great Men of the State of the King and Kingdom In which Council at the cry of the whole People unanimously persevering in that cry that King Edward II. should be Deposed from the Throme of the Kingdom becuase from the beginning of his Reign to this day he had misbehaved himself in his Government had Ruled his People wickedly had dissipated Lands Castles and other things belonging to the Crown had by perverse Judgment unjustly adjudged Noblemen to Death had advanced the Ignoble and had done many things contrary to the Oath taken at his Coronation Walter Archbishop of Canterbury pronouncing Articles of this kind by assent and consent of all King Edward 2. is wholly deposed and Edward his eldest Son advanced to be King of England And it is Ordained that from thenceforth he should not be called King but Edward of Karnarvan the King's Father And immediately Messengers were sent from the Council to the said Edward the King's Father to notifie to him what had been done and to read to him the Articles upon which he had been deposed He answer'd he was detained in custody nor could contradict their Ordinances but said he would bear all patiently And it is observable that a Statute of the Kingdom 1 E. 3. justifies the taking Arms against E. 2. while he was in Possession of the Throne and indemnifies all Persons for the pursuit of the said King and taking and withholding his body E. 3. who knew that himself came in by and election of the States being aware that if he should die before any Provision were made about the Succession the Controversie concerning the Right of Proximity and that of Representation would be revived between his eldest surviving Son and Grandson by the eldest who died in his life time obtained an Act of Parliament whereby Richard his Grandson by his eldest and best beloved Son was declared or made very
Heir to the Crown R. 2. following the example of E. 2. had the same fate of which the States of the Kingdom had some years before given him fair warning telling him they had an ancient Statute according to which they might with the common assent and consent of the People of the Realm abrogats him and advance somebody near of kin of the Royal Stock He not profiting by this admonition the States were some years after put to the exercice of their authority and having adjudged that he justly ought to be deposed the whole States appointed Commissioners for giving the Sentence of Deposition And a Record speaking of it says he was deposed for his demerits The Act of State for this says 't was as in like cases had been observed by the ancient custom of the Kingdom This being done Henry Duke of Lancuster as soon as the Kingdom was vacant rose out of his Seat and claim'd the Kingdom begin void His claim was al 's descandit be ryght lyne of the blode comeynge fro the gude Lord Henry therde The reason seems very plain why he claim'd from H. 3. his being the last inheritable blood which he could claim from not from R. 2. because deposed nor from E. 3. because of the forseiture of R. 2. declared or constituted his next Heir not from E. 2. because of his forfeiture nor from E. 1. becuase E. 2. had been his next Heir Hen. 4ths Descent from H. 3. was the qualification for an election This was not as has been supposed a strict right of Succession as he was the next Heir then appearing but he entituled himself to a preference before all other Descendants from that Blood as being a Deliverer of the Nation from Richard's tyranny he having with the help of his Kinsmen and Friends recovered the Kingdom which was upon the point of destruction through the defect of Government and violation of the Laws This induced the States and all the People unanimously to consent that Henry should fill the vacant Throne and they appointed all the Ceremonies of his Coronation But as far as proximity to the last King could infer a right he being Grandson to E. 3. had it before Mortimer descended from Lionel Duke of Clarence under whom the Family of York claim'd besides that H. 4. was undoubtedly the first on the Male line Tho' no Lay-man of knowledge and integrity can be thought at that time to have questioned those grounds upon which H. 4. was declared King yet since 't is hardly possible that there should be any Government which some will not be desirous to shake off as the Jews did the Theocrasy it can be no wonder that some would colour their ambition or malice under pretence of love to justice and that they should object want of right to disturb the most just and equal Government What was at the bottom of objections against H. 4ths Title will appear by the case of a true Head of the Church Militant Merk or Mark Bishop of Carlile who not being able as a Divine to make good his Argument against the receiving H. 4th for King was resolved to justifie it by dint of Sword after he was made King For in second of H. 4. he was indicted and tryed by a common Jury upon a special Commission for that he and other his Accomplices among which there were two bigotted Knights Blunt and Sely were leagued and confederated together with the Adversary and Enemy of England the French and thier Adherents traiterously to bring the said Adversary into the Land of England with intention to destroy the King and all his Leige People of the Kingdom and to new plant the Kingdom of England with our enemies of France that they in an hostile manner went up and down making great destruction and slaughter and without any Authority assuming to themselves Royal Power proclaim'd Richard to be King and that they would not suffer Henry to be their Lord or King To this Indictment the Bishop pleaded Church-Priviledge as an anointed Bishop which the Court over-ruled the the reason for which is very remarkable because the matters contained in the said Indictment concern the death of our Lord the King and the destruction of the whole Kingdom of England and consequently the manifest depression of the Church of England by which he claims to be priviledged all which is high and the greatest Treason and the Crime of laesa Majestas nor ought any man of right to pray in aid of the Law or to have it who commits such a Crime or intends to commit it c. His plea being thus over-ruled the Bishop pleaded not guilty but being convicted of the horrid matter contained in the Indictment it seems he did not think this a fit cause to die for and whether he merited a Pardon or no by sincere Repentance at least obtained one in which it is observable that he is called the late Bishop for this restitution to the Peace did not restore his Ecclesiastical Dignity He who is still called the late Bishop having a pardon sent him petitioned to be delivered out of Prison which was granted upon his finding Sureties for his good behaviour and four undertook that he should for the future behave himself well towards the King and his People Thus the fear of death reformed this stiff Prelate and made him engage to sit quietly under a Government which none but the Enemies to England and their Adherents endeavoured to subvert Still some were found calling themselves Englishmen who for the like ends with Merk would do their utmost to blemish H. 4ths Title this occasioned Oaths of Recognition thrice repeated 5o. of his Reign first at a Council of Worcester then at a Great Council at Westminster and after that in a full Parliament where the two former recognitions which were voluntary Associations were affirmed tho' as is there said there was no need of it By those Oaths they acknowledged the then King to be their Sovereign Leige Lord to obey him as their King and acknowledge the Prince his eldest Son as Heir apparent and inheritable to the Crown of England to him and the Heirs of his Body And for default of such Issue to his Brothers and their Issue successively and hereditably according to the Law of England to live and die against all People in the World The perjury of some and the doubts rais'd by others upon some of the expressions in the Act 5 H. 4. occasioned an other 7o. which by the Counsel and Assent of the Lords Spiritual and Temporal to wit the Prelates Great Men Peers and Clergy and also at the earnest Petition of the Commons and by Authority of the said Parliament declares that the King 's eldest Son shall be and is and ought hereafter and now to be
his death his Son Edward having less to answer for and success to recommend him to the People upon more specious pretences succeeded H. 6. by a manifest election Tho' he and his Father had upon the agreement established in Parliament sworn to be true to H. 6. during his life or till he should freely quit his Crown the dread of their Arms got a liberty for 'em to enter their protestations that this was upon the express condition that the King performed his part but if he should compass or imagine the death or destruction of the Duke or his Blood should forfeit the Crown And indeed it seems that the first acts of Hostility after this agreement were committed by the Queen and others of the King's Party who in attempting to rescue him out of the custody of the Duke of York put an end to his pretensions with his life But his Son Edward having routed the Earl of Pembroke and other the King 's Loyal Subjects in a Battle near Ludlow march'd up to London where he was received with joy on the 28 th of February Then he calls a Great Council of Peers to whom he opens his claim upon the King's breach of the Articles After the Lords had considered of the matter they determined by Authority of the said Council that forasmuch as King Henry contrary to his Oath Honor and Agreement had violated and infringed the order taken and enacted in the last Parliament and also because he was insufficient to rule the Realms and unprofitable to the Common-wealth he was therefore by the aforesaid Authority deprived and dejected of all Kingly Honor and Regal Sovereignty and incontinent Edward Earl of March was by the Lords in the said Counseil assembled named elected and admitted for King and Governour of the Realm After this the same day the consent of the common People was ask'd in St. John's Fields where a great number were assembled The Lords being informed of the consent of the Commons acquainted the said Earl with their election and admission and the loving assent of the Commons The next day he went to Westminster where his Title and Claim to the Crown was declared 1. As Son and Heir to Richard his Father right Inheriter to the same 2. By Authority of Parliament 3. And forfeiture committed by H. 6. The Commons being again demanded if they would admit and take the said Earl as their Sovereign Lord all with one voice cried yea yea which agreement concluded he was then proclaimed Here it is observable 1. That Edward did not claim upon any Title Prior to the Settlement in Parliament 39 H. 6. and therefore in effect claimed as adopted Heir to H. 6. as H. 2. had been to King Stephen 2. He alledges against H. 6. forfeiture by breach of the Contrac̄t establish'd in Parliament and a Moral incapacity in him to Reign 3. Notwithstanding this he does not set up as King before a solemn judgment pronounced against H. 6. and in favour of him and the formallity of a publick election 4. It appears that tho' he came to London and was possessed of the head and strength of the Kingdom and Hen. 6. had in effect abdicated he who according to the modern notion of the Successionaries should have been King upon the death of his Father was not King nor so reputed by his own Party till all those accustomed ceremonies were over the last of which was on the 4 th of March Now if it shall prove that in the judgment of King Edward's own Parliament his right ot turn H. 6. out of Possession was founded in H. 6 ths breach of the Contract establish'd in Parliament that E. 4. was not King till the 4 th of March and that no Act committed against him before that day was Treason nor was there or could there be Treason against his Father who never had been King then it will appear that some consent or election of the States or People was essentially necessary to make a King even of one who had or at least was suppos'd to have all the right that descent could give him and that the other King must have forfeited or ceased to be King before such right could be duely claimed But 1. The Act of Parliament declaring E. 4 ths Title is held to be a restitution to the same so that the very Title or Right was as if it had been extinguished 2. It is in that Act particularly insisted on that H. 6. had declared before witness that he would not keep the contract established in Parliament and is expresly charged with the breach of it 3. E. 4. is adjudged to have been in lawful Possession of the Realm upon the 4 th of March and on that day lawfully seized and possessed But not before and then the exercice of the Royal Estate by E. 4. and amotion of H. 6. are declared rightwise lawful and according to the Laws and Customs of the Realm 4. That Act says the Crown ought to have descended to Edward's Ancestor and after his decease to the next Heir of Blood if the same Usurpation had not been committed Wherefore according to that Act the Crown did not descend to any one of Mortimer's Family while the Person who they supposed to have usurped the Crown or any descendant from him kept Possession 5. Edward's Parliament held his Father to have been no more than Duke of York and tho' in the Act attainting H. 6. he is charged with the Murder of Richard Duke of York the first Treasonable Fact in H. 6. and others is laid in levying War on the 29 th of March and imagining to depose their Sovereign Lord Edward who had been declared King on the 4 th of that March and H. 6 ths forfeiture is laid in acting against his Faith and Allegiance to his Sovereign Lord whereby they plainly shew that as there could be no Treason against the Duke of York because he was never received for Sovereign Lord neither could there have been any against E. 4. unless he had been so received 6. If any now will own his present Majesty to have right by Law and yet refuse to declare him rightful King They go no farther then E. 4. and his Party did even after his Possession in relation to such as they held to be Usurpers And should such Men add that neither has the late King any right as it is probable that they mean that he has no right making him King they therein would still keep to that President But then if they would exactly follow that they must believe that the late King cannot be duely restored to the Regal Dignity till he should be received by the election or consent of the States or Body of the People nor could that be rightfully done unless his present Majesty in a legal sense ceased to be King before such election or consent Thus far I am sure they cannot
Treason during her Life and forfeiture of Goods and Chattels after her death to deny the Power of Parliament to limit and bind the Crown and the Descent Limitation Inheritance and Government thereof and a penalty is set upon them who should affirm that any but the Issue of the Queen's Body had right to succeed after her For any one who expected the Crown to pretend to it while she lived is made disability during life only but by a subsequent Statute approving and explaining the voluntary Association of the Subjects that year every such Person is excluded and disabled for ever And tho' at the time of giving judgment against Mary Queen of Scots it was declared to be without prejudice to her Son that could not hinder the operation of the Law upon that Statute and I would gladly know how he could have any right since he had no pretence as a special Heir under any Parliamentary Settlement then in force Upon the Queen's Treaty of Marriage 14º of her Reign with the French King's Brother she declared that she could not grant without the assent of the States of the Realm that he should be Crowned after the Marriage In an information in the Exchequer 21º of her Reign upon which judgement was given with the advice of the Judges of both Benches Lands are said after the death of E 6. to have come to Queen Mary as his Sister and Heir as in right of the Crown and so from her to Queen Elizabeth In both which instances according to the judgment of that time the rightful Possession of the Crown made them Heirs to their respective Predecessors notwithstanding the half Blood of both and the continuing illegitimacy of one of them That J. 1. could not rightfully succeed that glorious Queen without an election by the States of the Kingdom had been declared with sufficient Authority in her time and in the time of H. 8 th and without such Declaration would appear by the observing how the Law stood and was taken in all former times But whatever right was ascribed to him after he got Possession his Party here found it requisite to set up a will or nomination of Queen Elizabeth to facilitate his accession to the Throne Then with a new strain of Loyalty Judges Lawyers and Juries concurred in making attempts to prevent his coming to the Crown Treason the like of which withal its Circumstances had not been known in any Age of this Monarchy Tho' there had been Treason against W. 1. before his actual admittance to the Crown it was as has appeared above after a National Settlement upon him by name and this was the case of the unfortunate Lady Jane and others who set l er up against Queen Mary Yet that complement to J. 1. was but suitable to the flattering Act of Recognition 1º of his Reign according to the Preamble of which immediately upon the decease of Queen Elizabeth the Crown did by Inherent Birth-right and lawful and undoubted Succession descend and come to him as lineally descended from Margaret Daughter to However that Parliament made no Law in the Matter and by good luck left the constitution as they found it for they made no Settlement of the Crown only offered that recognition as the first Fruits of their Faith to him and his Royal Progeny and Posterity for ever which if it had been a Settlement would amount to no more than what had been usual in former times for Parliaments to make a branch of the Royal Family a new head of future Successions but by this any one of the Issue or Posterity stood fair for an election Yet possibly the Parliament had not been so forward with these Fruits of their Loyalty but for his Speech to 'em wherein he says Every King in a settled Kingdom is bound to observe the Paction made to his People by his Laws in framing his Government agreeable thereto And a King governing in a settled Kingdom leaves to be a King and degenerates into a Tyrant as soon as he leaves off governing according to his Laws In which case the King's conscience may speak to him as the poor Widow said to Philip of Macedon either govern according to your Law or be no King The Parliament take him at his word and grafting upon it say His Majesty hath vouchsafed to express many ways how far it is and ever shall be from his Royal and Sincere Care and Affection to the Subjects of England to alter or innovate the Fundamental and ancient Laws Priviledges and good Customs of this Kingdom whereby not only his Legal Authority but the Peoples security of Lands Livings and Priviledges both in general and particular are preserved and maintained And by the abolishing or altering of the which it is impossible but that present confusion will fall upon the whole state and frame of this Kingdom Where in as modest terms as they could they bid the King at his peril to violate the Fundamental Laws on which his regal Authority depended as well as their Rights and Priviledges But that King soon forgot upon what terms he had been received King and getting the leading Clergy on the side of his Divine Right it pass'd at that time as the Doctrine of the Church of England While this fit of Loyalty lasted C. 1. succeeded as by inherent Birthright without any formal recognition which then began to be thought needless The occasions of the War between him and his Parliament I shall not enquire into but shall content my self with Dean Sherlock's concession who as he will not dispute the lawfullness of resisting the King's Authority and whether it were lawful for the Parliament to take Arms against the King to desend the Laws and Liberties of their Country admits that they had a right to keep the King within the boundaries of Law these C. 1. apparently broke and where there is no Tribunal on Earth to appeal to the Dean allows use of the Sword But whatever was the consequence of that War there has been no reason for the Pulpits to sound to loud and long as they have done with denunciations of God's wrath but indeed the Clergies against this Kingdom for what hapned in a War for which the Parliament and People who would not have carried the Point so far as it unhappily went are not to answer C. 1. dying a deplorable death the Nation was left without the exercice of any Legal Government till the Restoration of C. 2. who was accounted King from the death of his Father But by what Law or in what respect is worth enquiry and will it appear 1. That the supposed Maxim that the King never dies is of very late and doubtful Authority in comparison with those which shew that no Man was or ought to be accounted King till he had been formally recognized 2. Yet tho' this should be true when any Prince succeeds in vertue of
a Settlement made in the Ancestor's life time it will not be so where there has been none as was the case of C. 2. 3. If one should in the eye of Law be King immediately upon the death of an other it would not follow that this would be by a strict right of descent but that after the being admitted King there should be a relation backwards to prevent the loss of any rights belonging to the Crown and thus it was plainly taken by the Chief Justices Dyer and Anderson who say that the King who is Heir or Successor may write and begin his Reign the same day that his Progenitor or Predecessor died And agreeably to this it was the resolution of all the Judges of the King's Bench in Elizabeth's time that a saving to a King and his Heirs shall go to a Successor of the Crown tho' not Heir to that King That J. 2. made too great haste to succeed his Brother C. 2. now at least Men will be apt to believe of whom I shall observe only in short 1. That he was within no Parliamentary Settlement of the Crown then in force 2. The best pretence J. 2. had of coming to the Crown without an immediate election must have been the Settlement 1º H. 7. But no shadow of reason can be assigned why the late Act of Settlement was not as rightful and with as true Authority as that 1º H. 7. 3. J. 2. being reconciled to the Sea of Rome which is High Treason by our Law and for which he had been convicted in his Brother's time if the Indictment had not been arbitrarily defeated was as much disabled from succeeding to the Crown as the Family of George Duke of Clarence by reason of that Duke's attainder 4. Admit the assuming the Royal Dignity had purged the former disability the continuing a Papist was a constant incapacity to be the Head of this Protestant Church and Kingdom rendring it impracticable for him to answer the end for which our Kings had been constituted 5. He was never duely invested with the Royal Dignity not having taken the appointed Coronation-Oath which for his sake was traiterously altered with an omission of the Rights of the People and an unjustifiable Salvo for Prerogative Nor was he ever fully recognized 6. By seizing the Customs and raising Taxes without Authority of Parliament dispensing with the Laws of the Kingdom raising and keeping a standing Army in the time of Peace and the like enormities he violated that constitution which should have made or kept him King and if he ever was King more than Harold the Son of Earl Godwin manifestly ceased to be King before his abdication 7. However it may have been at his first leaving the Kingdom without any other Government than what according to ancient Custom fell upon the States of the Kingdom he having since discovered a settled intention to destroy the People of England or the greater part of 'em by a Foreign Power with their Party here according to those Casuists who are most favourable to such rights as he has claimed from the time at least of his manifesting such intention he ceased to be King and His present Majesty having been regularly declared King the other is totally barred from all claim and colour of pretence How great a noise soever some make for him since his flight after their deseting him the greatest sticklers for his suppos'd rightful Authority being disappointed of their sanguine expectations warmly opposed his exercice of those rights to which their servillity had encouraged him the very Bishops who for his sake have set up for heads under him of a separate Church not only disobeyed his positive commands in matters which at other times at least in things of the like nature they would have contended to belong to his Headship of the Church but they would have limited his Power little less than the 19 Propositions to C. 1. which they had long seem'd to abhor Some of their Party if not themselves joyn'd in solliciting his present Majesty to undertake our Deliverance and a certain Person who would be thought never to have departed from their Principles is said to have gone so far as to sign the invitation tho' upon second thoughts he desired to have his name scratch'd out The Bishops being required to sign an abhorrence of that enterprize absolutely refused it Their Archbishop was one of them who petitioned his present Majesty to take the Government upon him before the late King left England and Non-assistance to their jure Divino King was become as Catholick Doctrine as Non-resistance During this time the designs of the Party were kept secret but the People began to hope well of the Body of the English Clergy believing them by a wonderful providence to be reformed in their Principles of Government with which they had brought a scandal upon the Reformation But the Convention meeting to provide for the Peace and Settlement of the Nation it then appear'd that the mighty Zealots for the Monarchy were only for setting up themselves and in truth would have no Sovereignty but in the Church as they called their Faction for as they would not have his present Majesty to be King but a Regent or Officer for the interim till the late King should come to their terms neither did they truly own him for their King whom they neither would assist as Subjects nor consult in choosing a new Government However the Throne having according to former Presidents and the plain right of the Kingdom been declared vacant upon King's breach of the original contracts and abdication the Lords and Commons reciting many particulars of his misgovernment resolve that William and Mary Prince and Princess of Orange be and be declared King and Queen and make a farther Settlement of the Crown They having accepted the Crown the Lords and Commons together with the Mayor and Citizens of London and others of the Commons of this Realm with full consent publish and proclaim William and Mary Prince and Princess of Orange to be King and Queen of England France and Ireland and in the Proclamation own a miraculous deliverance from Popery and Arbitrary Power and that our preservation is due next under God to the resolution and conduct of His Highness the Prince of Orange whom God hath chosen to be the Glorious Instrument of an inestimable Happiness to us and our Posterity A Parliament called soon after declares and enacts that they do recognize and acknowledge that Their Majesties are and of Right ought to be by the Laws of this Realm their Sovereign Liege Lord and Lady King and Queen of England c. in and to whose Princely Persons the Royal State Crown and Dignity of the said Realms with all Honours Prerogatives c. are fully rightfully and entirely Invested Incorporated United and Annexed Notwithstanding which many who have sworn to bear Faith