and that giveth the Kingdoms of men to whom he will as the holy Scriptures tell us And who being the Creator of Nature can alone when it pleaseth him controul her Methods and Operations as appeareth by the Interruptions of the Succession in the cases of David Solomon Jehu and the like And they that from these and other instances of this nature do fancy they may maintain the Lawfulness of impeaching the Succession of the Crown in the true Line may as well infer that they may lawfully rob and spoil their Neighbours because God commanded the Israelites to spoil the Egyptians In those cases we are bound to the Law but not to the Example I come now to Records of Parliament which shall be three in number First that of the 39 H. 6. wherein the daring Rich Plantagenet D. of York by his Council exhibited to the Lords in full Parliam a Writing containing his Right and Claims to the Crowns of England and France Against which Claim it was objected on the King's part That the same Crowns had been entailed by Act of Parliament upon the King's Grandfather King Henry the Fourth and the Heirs of his Body from whence the same King Henry the Sixth did lineally descend The which Act say the King's Friends there is of Autoritee to defeat eny mannere Title made to eny person for so are the words To which Objection the said Duke of York answereth I shall cite the words of the Record as they are entered up in the old English That if King Henry the Fourth might have obteigned and rejoysed the seyd Corones of England and Fraunce by Title of Enheritaunce Descent or Succession he neither needed nor would have desired or made them to be granted to him in such wise as they be by the seyd Act. The which taketh noo place neither is of any force or effect against him that is right Enheritor of the seyd Corones as it accordeth with God's Laws and all natural Laws saith the Roll. And this Answer of the Duke of York to the King's Title and his said Claim is afterwards by express Act of the same Parliament declar'd and recognized to be good true just lawful and suffisaunt as it is there worded And at the same time for preventing Effusion of Bloud an Accord by the free consent of the said Duke is likewise established That King Henry the Sixth shall during his Life enjoy the Crown and that from thenceforth the Duke of York should be reputed Heir Apparent to the Crown The next Record is that of 1 Ed. 4. wherein after that Parliament hath in a long Pedigree disclos'd the Title of the same King Edward to the Crown as being in a right line descended from Lionel Duke of Clarence third Son to King Edward the Third and upon the death of his Father the above mentioned Richard Plantagenet next Heir of the Bloud Royal they immediately add these very words Knowing also certainly without doubt and ambiguity that by God's Law and Law of Nature he i. e. King Edward the Fourth and none other is and ought to be true rightwys and natural Leige and Soveraigne Lord. And that he was in right from the death of the seyd noble and famous Prince his Father very just King of the same Realm of England So here it is most expresly declared by two Parliaments of different Complexion and Interest and therefore the more remarkable that the Succession of the Crown of England is inseparably annexed to Proximity of Bloud by the Laws of God and Nature And that a Title of this Sublimity and Grandeur is not at all impeachable even by Act of Parliament And besides the said Parliament of 39 H. 6. doth make the same Declaration to the manifest prejudice of the Title of the King in possession who was ordained also by the same Accord to reign over them during his Life and whom for that reason it must be presum'd they would have favour'd if they had found but the least colour so to have done The last Record is the Statute of Recognition made in the first year of King James by the whole Parliament in which among other things They do in most humble and lowly manner I shall all along use the very words of the Act beseech His most Excellent Majesty that as a Memorial to all Posterity it might be publickly declar'd and enacted in the High Court of Parliament That they being bound thereunto by the Laws of God and Man did with unspeakable Joy recognize and acknowledge that immediately upon the Decease of Queen Elizabeth the Imperial Crown of the Realm ofEngland c. did by inherent Birthright and lawful and undoubted Succession descend and come to His most Excellent Majesty as being lineally justly and lawfully next and sole Heir of the Bloud Royal of this Realm And that by the goodness of God Almighty and lawful Right of Descent His Majesty was King of England c. And to this Recognition we do say they most humbly and faithfully submit and oblige our selves and posterities for ever untill the last drop of our bloud be spent And all the Judges of England some time after in the great Case of Calvin in the Exchequer Chamber do resolve That King James his Title to the Crown was founded upon the Law of Nature viz. by inherent Birthright and Descent from the Bloud Royal of this Realm So that this Parliament doth not in the least manner pretend to give any Title to King James or his Posterity by their own Act and Establishment but on the contrary doth expresly recognize that the same King 's Right and Title to the Crown doth accrue to him by the Laws of God and Man onely as the said Judges do by the Law of Nature viz. as next and sole Heir of the Bloud Royal. By all which it doth most manifestly appear That in the Opinion of the three several Parliaments the Succession of the Crown is united to Proximity and Nextness of Blood by the Laws Divine Natural and Human And a threefold Cord of this Sanctimony and Strength is not easily broken to say nothing of the said Resolution of all the Judges of England in the Point which as our Books tell us in matters of Law is of the most sacred Authority next unto the Court of Parliament This being thus made out I come now to prove That Statute-Laws contrariant to the Laws of God and Nature are ipso facto null and void And here I shall first observe That by a profound Polity of our Law the sole Power of expounding Statute-Laws whether relating to Church or State is intrusted and lodged in the Judges of the Common Law as King Charles the first hath noted in his Speech to both Houses upon passing the Bills of 3 d of his Reign And as the Authorities of Law are very clear now the Judges have exerted this constructive Power in expounding Statute-Laws sometimes even null and void
the true and legal Title abiding in the House of York See to prove this Brook Parl. pl. 105. 1 H. 7. 4. v. The second Instance is that of King Henry the Seventh This King while he was Earl of Richmond together with many Lords and Commons that took his part were all attainted of High Treason by the Parliament of Richard the Third Afterwards at the Battel of Bosworth the Earl obtain'd the Victory and slew Richard in the Field and on the same day assum'd the Crown upon him and presently afterward summon'd a Parliament On the first day of this Parliament say our Books of Law and Histories all the Judges of England were assembled in the Exchequer Chamber to resolve a very rare and perplex'd Case viz. What should be done about the reversal of the said Parlementary Attaindors of the King and divers Lords and many Knights Citizens and Burgesses that were to sit in Parliament that day And after mature Deliberation had among themselves they all Resolved That for all the Lords and Commons that were attainted they advised them not to sit in Parliament till an Act of Parliament was passed by the other Lords and Commons not attainted and assented to by the King for the reversal of those Attaindors and after the Reversal then all of them to sit in the Houses For that it was not convenient that any should sit as Judges in those Houses that were attainted But concerning the King himself they unanimously Resolved That the Crown takes away all defects in Bloud and Incapacities by Parliament And that from the time the King did assume the Crown the Fountain was cleared and all the said Attaindors and Corruptions of Bloud and other Impediments absolutely discharged And yet the said King Henry the Seventh was onely King de facto also the legal Title as I have before observed abiding in the House of York See to prove all this the Books of 1 H. 7. 4. v. Fitz. Parl. pl. 2. Brook P. Statutes pl. 37. 175. Plowden's Com. 238. v. Lord Barkley's case Co. 7 Rep. 12. â— Calvin's case Co. 1 Inst 16. a. Jenk centuries 203. Lord Bacon's Hist H. 7 fol. 13. All in express terms And if the Influence and Operation of Law be so forcible and vigorous in Cases of colourable and specious Title onely as that of the said King Henry the Seventh was as I shall demonstrate at large in the sequel of this Discourse how much more will it be where there is Proximity of Bloud and undoubted Right The last Instance is that of Queen Elizabeth an Instance of fresh and recent memory This Princess had been bastardiz'd and render'd incapable of Succession to the Crown by solemn Act of Parliament and yet notwithstanding upon the Death of Queen May the said Queen Elizabeth succeeded to the Crown And Sir Nicholas Bacon Lord Keeper of the Great Seal and Oracle of the Law in that Age and upon whom the Queen altogether relied in matter of Law and who no doubt in a Case of that Importance had consulted all the Judges of England was clear of Opinion saith Cambden That there needed not any formal Repeal of the said Act as there never was any because saith the same Author the Law of England had long before pronounced Coronam semel susceptam omnes omnino Defectas tollere That the Crown once obtain'd doth absolutely wipe out all Defects whatsoever And in this Point the Civil Law agrees also with the Common Law of England for Vpian a famous Doctor tells us That the possession of the Crown purgeth all Derects and maketh good the Act of him in Authority although he wanteth both Capacity and Right Moreover by the Laws of England the right Heir becomes absolute and perfect King in the very moment that the Crown descends upon him though he happen to be at the same time in the remotest parts of the World and before he be actually Crown'd And therefore King Edward the first though at the time of his Father's Death he was absent in the Holy Land in War against the Infidels yet he was immediately acknowledg'd here by the whole Realm for their King And in his return homewards did Homage to the French King for the Lands which he held of him in France and repressed certain of his Rebellious Subjects in Gascoign and yet he was not crown'd till almost two years afterwards And the Case of his Sacred Majesty that now is was very like for he began his Reign from the moment of that fatal and impious Stroke given to his Royal Father of ever glorious Memory and yet his present Majesty was not at that time in England And this is expresly resolved to be the Law of this Nation by all the Judges of England Mich. 1. Eliz. Dyer's Rep. 165. a. So King Henry the sixth Edward the fourth Henry the seventh summon'd Parliaments condemn'd Traitors made Grants and did all other Acts which a crowned King may do before their several Coronations And the like was done by King Henry the eighth Edward the sixth Queen Mary Queen Elizabeth King James King Charles the first and His Gracious Majesty that now is For coronation is but an Ornament and Solemnization of the Royal Descent but no part of the Title and the Kings of England are to all Intents and Purposes compleat and perfect Kings before Coronation and so it was expresly resolved by all the Judges of England 1 o Jacobi in the Cases of Watson Clarke and Sir Walter Raleigh which in a matter so clear shall suffice Having thus as I conceive made my Point good and impregnable Viz. That the next Heir of the Blood cannot be excluded from the Succession by Act of Parliament I come now to answer certain Objections which some Men I perceive are fond of and do not a little glory therein and the most considerable of them are three in Number First say they there are several Instances of Kings of this Realm whose Titles to the Crown depended purely upon the Election of the People and Acts of Parliament and not upon Proximity of Blood and Inherent Birth-right as to go no higher the Titles of King John Henry the fourth Henry the seventh Moreover Henry the eighth entail'd the Crown upon himself and his Children by Act of Parliament And these Establishments by Parliament were look'd upon as good Titles to the Kings in Possession and bars against the next Heirs I Answer they were never look'd upon as good Titles to the Kings in Possession or bars against the right Heirs neither ought they to be deemed so as doth most evidently appear by the former part of this Discourse And which I shall now farther demonstrate by Enquiry into the Titles and Circumstances of each particular King mentioned in the Objection First for King John it is plain he was King de facto but not de jure for he invaded the Crown against the Right of his Nephew
Arthur of Britain who was the Son of Geossry John's Eldest Brother as all the Histories of that time do observe and lament And therefore wanting that Title which God Nature and the immutable Customs of this Realm give to the Right Heir he was constrain'd to pray in Aid of the People and to patch up a Title from them by Election The Story is this as I have extracted it out of Matthew Paris a learned Monk who lived in that time and who became afterwards Chronologer Royal to King Henry the third Son of the said King John John saith the Monk upon the Death of his Brother King Richard the first was advanced to the Throne by the favour and help of the great Ministers of State and at his Coronation in the presence of the Clergy Nobility and Populace Hubert Arch-bishop of Canterbury and Chancellor of England a Man of profound Subtilty and Reach tells them all in a very fine Harangue That no Man whatsoever was to succeed in the Kingdom here upon any previous Reason unless he were freely Elected by the universality of the People with consideration had of his Moralities and other personal Vertues after the Example of Saul's Election and then he added That John was a well qualified Person in that kind and that therefore they ought to choose him for their King But when the said Hubert was afterwards demanded why in so great an Assembly he durst broach so notorious a falshood viz. That the Monarchy of England was Elective O saith he this I did out of certain Revelations and Prophesies that I have received That John will at some time or other endanger the Realm and bring all into confusion Et ne haberet liberas habenas hoc faciendi ipsum Electione non Successione haereditaria eligi debere affirmavi for so are the Historian's Words And that I might curb him with this Bridle from effecting these things I did pronounce him admitted to the Crown by Election not by hereditary Succession So then we see here that the pronouncing the Monarchy of England to be Elective was done only by way of Umbrage and Dissimulation and to serve a turn at a certain Crisis and juncture of time And the truth is the People did accordingly afterwards check this unfortunate King with the same Bridle and reduc'd him to a very low condition and they chose Lewis the French King's Son their King And this was the consequence of King John's Election by the People and Invasion of the Right of his Nephew which Tenure was good only so long as he could maintain it with his Sword and so likewise is the Tenure of Pyrats and Robbers when they have ravish'd the Properties of other Men. Secondly For King Henry the fourth he was likewise King de facto only and not de Jure for he laid violent hands upon the Crown by the treasonable and barbarous Deposition and Murder of his natural Lord and Soveraign King Richard the second after whose Death without Issue the legal Title remain'd in the House of Clarence being the elder Line and so King Henry the fourth was constrain'd to truckle under an Election by the People and their Establishment in Parliament which Establishment was ipso facto void and null in Law against the House of York which married afterwards with the said House of Clarence as I have evidently proved by the Roll of Parliament of 39 o of Henry the sixth recited by me at large here in the beginning of this Discourse And indeed this very King Henry the fourth well knowing how much a Title to the Crown by the Common Law and Inherent Birth-right exceeded a Title by Statute and Suffrage of the People made his solemn Claim to the Crown in Parliament by Descent from King Henry the third which though it was the meerest figment and pretence that ever was as all the World knows yet he thought he might with more security rely upon that though fictitious than popular Establishment though real The Story is considerable and therefore I shall extract my Account thereof from the Roll of Parliament of that time Forthwith saith the Record upon vacancy of the Realm by Deposition of King Richard the second Henry Duke of Lancaster rising from his Seat and standing up so that he might be well seen by the People and humbly crossing his Forehead and Breast calling upon our Saviour's Cross he claim'd and challeng'd the Realm of England thus void in his Mother-Tongue under this very form of Words In the Name of Fader Sonne and Holy Gost I Henry of Lancastre challenge this Rewme of Ynglonde and the Crown with all the Membres and Appurtenances al 's I that am descendit be Ryght Lyne of the Blood comynge fro the gude Lord King Henry therde and thorghe that right that God of his Grace hath sent me with helpe of my Kin and of my frends to recover it and which Rewme was in poynt to be ondone for defaut of governance and un endoying of the gude Laws So we see here that the Title he laid stress upon was Al 's descendit be right line of the bloud comynge fro the gude Lord King Henry Therde he meant from Edmund second Son of King Henry the Third from whom the same Henry the Fourth by the Mother's side lineally derived and who would fain have fac'd down the World that the said Edmund was elder Brother to King Edward the First contrary to his own knowledge and that of all Mankind in that Age and the express Testimony of Matthew Paris who was Chronologer Royal to the said King Henry the Third at the time of the Birth of the said Edmund and Polydore Virgil and all our Historians Thirdly For King Henry the Seventh he was also King de facto but not de jure the legal Title abiding at that time in Elizabeth the eldest Daughter of King Edward the Fourth with which Elizabeth the same King Henry did afterwards marry Now because the Claim of the same King Henry the Seventh to the Crown is not generally understood and it will conduce much to my present purpose to clear that matter I shall crave leave here briefly to open it It is to be known then that King Henry the Seventh laid claim to the Crown as descending in a right line from John Duke of Somerset eldest Son to John of Gaunt Duke of Lancaster by his third Wife Katharine Swinford by which Katharine the same John of Gaunt had Issue the said Duke of Somerset and other Children before Marriage with her and during his Marriage with his second Wife the Lady Constance Daughter and Heir of Peter King of Castile So the said Children were plainly all Bastards by our Law and by consequence not capable of inheriting any thing After the death of his second Wife John for the passionate affection which he bare to his Children by Katharine married her and some time after procured them by Act of Parliament