in ejus promotionem Willielmo Cantuariensis Archiepiscopo Clericorum Laicorum universitate apud London Jo. Hagulstad 250. Predictus Stephanus à cunctis in Regem Electus Gervas Chron. f. 340. Congregatis Londiniis terrae magnatibus Mat. Paris 74. with the Estates of the Realm to elect him King And in this Charter which he made soon after he owns this Title beginning it thus Ego Stephanus Dei gratia assensu Cleri Populi in Regem Angliae electus c. And the Pope in his Charter of Confirmation sent to him in the first year of his Reign tells him That he was Communi voto unanimi assensu tam Procerum quam etiam Populi in Regem electus And then he adds That since so universal an Assent could not be directed but by the Divine Grace he therefore allows his Title and confirms him in the Kingdom 'T is true that afterwards Mawd the Empress together with her Son Henry having after some years gained many to their side gave him great disturbance till at last Stephen having lost his Eldest Son Eustace in whom he placed his hopes (e) Hen. Hunt l. 8. f. 395. R. Hag. de gestii Steph. 314. and used all means whilst he liv'd to have got him declared his Successor but without Success came to an Agreement with the Empress and her Son and (a) Facto Wintoniae conventu publica Rex Stephanus ipsum Ducem cunctis videntibus adoptavit in Filium utque interposito omnium Juramento concessit confirmarit ei totius Angliae principatum Dux autem suscepit eum in loeum genitoris contendens ei omnibus diebus vitae fuae nomen rem Regij culminis obtinere Gervas f. 1375. In conventu Episcoporum aliorum de Regno optum Mat. Westm f. 246. an 1153. 282. an 1154. Consenserunt in hoc omnes principes Regni Jo. Hagulstad f. 282. Mat. pacis 86. Hen. Hunt l. 8. f. 398. Jo. Hagalstad 282. an 1154. the Parliament who alone could give a Sanction to such Agreement was assembled at Winchester to confirm it and then Stephen publickly Adopts Henry for his Son and with their full consent declares him his Heir and with the same consent Henry gives Stephen the name of Father and agrees that he should continue to be King during his Life and they all Swore That if Henry surviv'd he should without opposition obtain the Crown and Stephen by his Charter which is set down at large in Brompton publishes this Agreement Brompt 1037. In all this Transaction certainly there was no consideration had of any other Right but that which universal consent conferred For if Stephen's Heir had any pretence he had a Son then living whose Name was William and who by the same Agreement was to have all the Possessions which his Father enjoyed before he was made King If the Heir of Henry the first had any Title that was vested in Mawd the Empress who was then also living so that neither of the parties had any other colour of Right to the Crown than what the consent of the People gave them According to this Parliamentary Agreement and Limitation Stephen enjoy'd the Crown peaceably during his Life and after his Death Henry the Second came to it as peaceably but he remembred by what Title and therefore was desirous to secure it to his Son in the same manner that he took a very dangerous and unusual way to do it (b) Convenerunt interim die statuto ex mandato Regis Londoniam totius Angliae Episcopi Abbates Comites Barones vicecomites prepositi Aldermanit cum sidejussoribus Gervas H 2. f 1412. For Summoning a Parliament to meet at London he procures his Son Henry to be declared King together with himself by their consent and thereupon he was Crowned by the Archbishop of York and Fealty Sworn to him by all This was the occasion of Civil Wars between them for the Father meant hereby only to have secured the Succession to him and the Son was impatient of having only the bare Title of a King all along pretending to an Equal Authority as doth sufficiently appear by what he writes to the Prior and Convent of Canterbury where he takes notice That his Father did attempt some Invasions upon them which he ought not to have done without his assent (c) Gervas H. 2. f 1425. Qui ratione Regiae unctionis Regnum totius Regni curam suscepiemus and therefore he appeal'd to the Pope in that behalf Nay the Father himself paid that Respect to his Sons Dignity That when he at last subdued him and his Rebellious Brothers (d) Brompt f. 1100. he would not suffer him to do him Hommage with his other Sons though he offered it But Henry the Son dying in the Life of his Father Richard was then his Eldest Son surviving and consequently had all the Right which a next Heir could claim But the wise and wary King had not confidence enough to rely upon this now so much talk'd of sacred Right but though he had already suffered so much from disobedient Sons was glad to get the Succession confirmed to him in his Life-time And the Truth is there was reason enough that he should do so for he had all his Children by Eleanor the Daughter of William Duke of Guyen (a) M. Paris 84 who was before the Wife of Lewis the 7th King of France who was still living and she onely Divorced causa Adulterii which being not a Divorce à vinculo Matrimonii she could not either by the Canon-Law universally received or the Laws of England lawfully Marry with any other Husband After his Father's Death Richard came to London to which place all the Clergy and Laity were summoned and (b) Post tamcleri quam populi solennem debitam Electionem R. de daeto f 647. R. H. par 2. f. 6. 56. after he had been solemnly and duely Elected by the whole Clergy and Laity they are the very words of the Historian and taken the usual Oaths he was Crowned And when he undertook the holy War he (c) Flo. Hist An. 1190. declared Arthur Son of his next Brother Geoffery the Duke of Britain the next Heir to the Crown Richard dying without Issue this Arthur ought to have succeeded and his Sister Elianor also had a Title before her Uncle But John the younger Brother without regarding this divine Right of his Nephew applies himself to the People for a more sure though but a humane Title (d) Praelatorum Comitum aliorum Nobilium multitudo insinita Brompt 1281. who being summon'd together elected him King And (e) Mat. Paris 197. An. 1199. Si aliquis ex stirpe Regis Defuncti aliis praepolliret pronius promptius in electionem ejus esse consentiendum Hubert the then Archbishop of Canterbury did at his Coronation preach a Doctrine which would have sounded very strangely to the Convocation in 1640. viz. No one
for Edmond Ironside their Elder Brother had a Son then alive (e) Brompt 945. whose Name was Edward and who was Father to Edgar Atheling living also at the same time And though this Edward had an undoubted Title to the Crown if proximity of Blood could have given it yet the Confessor was so far from suspecting any danger from such a Title as that he invited his Nephew into England and welcom'd him when he came with the greatest expressions of Joy and entertain'd him with the greatest Confidence Nor had the People any regard to this Royal Bloud upon the Death of the Confessor but elected Harald the Son of Earl Godwin who had no pretence of Kindred to the Saxon Line These few among many other Instances which may be given will shew plainly enough how men entituled themselves to the Crown in those days and that then it was no strange thing to hear of a Parliaments medling with the Successon Therefore I suppose the men who seem astonished at the boldness of a Parliament in presuming to speak of it at this time will say that they ought not to be troubled with Presidents before the Norman Conquest and that though the Saxons might be guilty of preferring a brave and deserving Bastard before a cruel or a silly legitimate Prince and of many other Irregularities yet no such things are to be found in our Histories since the time of William the first whose Reign is the great Epoche from whence we do compute our Kings Let us therefore go on more particularly to observe what has been done since that time and we hall see whether they who wonder so much have any reason to do so William the Conquerour was himself illegitimate and yet succeeded his Father in the Dutchy of Normandy and therefore had no reason to set any great value upon that fort of Title which is derived from a Right of Bloud And it seems he did not much regard it for passing by Robert his eldell he gave the Crown (a) A patre ultima valetudine decumbente in Successorem adoptatus Guil. Malmab lib. 4. fol. 120. Sim. Dunel anno 1087. fol. 213. Brompt f. 980. by his last Will to William Rufus his younger Son disposing only with regard to his own Inclinations the Crown which himself had gain'd But his Son was too wise to rely upon this Disposition as a sufficient Title and therefore had recourse to a more sute one (b) Convocatis terrae magnatibus Brompt 983. Optimates frequentes 〈◊〉 Westmonasterium in Concilium convenere ubi loci post lorgam Consultatinnem Guilielinum Rufum Regem fecere Mat. Paris Flores hist fol. 231. Volentibus omnium Provincianum animis in Regem acceptus Mat. Paris in vit Gull 2. fol. 14. anno 1088. For calling together the Nobles and wise Men of the Kingdom he acquainted them in a full Council with his Fathers Will and desired their Consent to it who after a long Consultation did at last unanimously agree to make him their King and thereupon he was Crown'd by Langfranck Archbishop of Canterbury I cannot but observe one thing farther that though some men make use of the absolute Victory which the Conquerour had made and affirm that thereby the English were wholly broken and all the old Laws and Customs of the Realm were destroy'd yet it is plain that at this time the English Interest was so great that it kept the Crown upon William Rufus's Head in spight of all that the Normans could do in behalf of Robert though they universally joyn'd with him (c) Rex fecit convocare Anglos Sim. Dunelm an 1088. fol. 214. For the King calling together the English and opening to them the Treason of the Normans and (d) Angli cum fideliter juvabant c. Sim. Dun. ubi supra promising them a compleat Resticution of their ancient Laws they stood firm to him and soon put an end to all the Attempts of his Brother and his Norman Accomplices Upon the Death of William Rufus Robert had a fair pretence to renew his Claim to the Crown (a) Hic Robertus semper contraraus adeo innaturalis extiterat Baronibus Regni Angliae quod plenario consersie consilio totius Communitatis Regn◠ipsum refutaverunt pro Rege omnino reousaverunt Henricum fratrem in Regem erexerunt H. de Knyght c. 8. 2374. Post mortem Willielmi Rufi electus est Henricus frater ejus M. Paris 55. in vita H. 1. an 1100. 62. anno 1105 Mat. West 235. Apud Winton in Regem electus est Brempt 997. but that Prince had discover'd too much of the Cruelty of his Disposition of his aversion to the English Nation and of his proneness to Revenge so that by the full Consent and Counsel of the whole Body of the Realm assembled at Winchester he was finally rejected and they did concur to elect the Conqueror's third Son Henry for their King as Mar. Westminster expresses it Nor did they do this but upon Terms for both the Clergy and Laity said that if he would restore them their ancient Liberties and confirm them by his Charter and abrogate some severe Laws which his Father had made they would consent to make him King And this prudent and learned King was not ashamed or unwilling to own this Title for he does at large recite it in his Charter whereby he confirms their Liberties (b) Rich. Hagulstad 310. Brompt 10.21 Mat. Paris 240. Sciatis me misericordia Dei communi consilio Baronum Regni Angliae ejusdem Regni Regem Coronatum esse c. Henry the first you see had reason to believe and own the Power of the Kingdom in setting the Crown upon what head they pleased and therefore he desired to secure it that way to his Posterity To that end in the 13th year of his Reign (c) Coacio Concilio fecit omnes Principes Potentes Anglicani Regni adjurare terram Regnum Willielmo filio suo c. Gervas Cron. 1138. he summon'd a Council and procured all the great and powerful men of the Kingdom to swear that his Son William should succeed him But afterwards this Son of his was unfortunately drown'd and the King dy'd leaving no other Issue but Maud his Daughter who had been married to the Emperor and afterward to Geoffery Plantaginet Earl of Anjou No dispute can be made but that she had all the Right which proximity of Bloud could give yet Stephen Earl of Boloign who was the Son of Adela one of the Conquerors Daughters and whose elder Brother Theobald Earl of Blois was then living stept in before her and by representing to them the Inconvenience of a Feminine Government and promising them to consent to such good and gentle Laws as they should devise prevail'd (d) A primoribus Regni cum fuvere Cleri populi Electus est à Wil. Cant. Archiepiscopo in Regem Consecratur R. Hagulstad an 1156. f. 312. Consentientibus
the Crown and the name and power of King discharging all his Subjects from all Oaths which they had taken of Allegiance to him confessing himself thereby insufficient for the Government and swearing never to make any pretences to the same for the future All which he Pronounced and Subscribed wishing if it were in his power to have Henry Duke of Lancaster for his Successour but since it was not he desired the Commissioners to signifie his Desires to the States of the Realm The next day all the States of the Realm accepted his Resignation and when that was done they proceeded to read publickly his Coronation-Oath and all the Breaches of it that so it might appear how justly he had deserved to be deposed All which are contained in Thirty three Articles entred at large in the Rolls of Parliament and well deserve to be read whereupon the States adjudged that he shall be Depos'd and appoint Commissioners ad Deponendum eundem Richardum Regem ab omne Dignitate Majestate honore Regiis vice nomine authoritate omnium statuum praedictorum prout in Consimilibus casibus de antiqua consuetudine dicti Regni fuit observatum which the Bishop of St. Asaph did in full Parliament in their names and by their directions The same Commissioners were also to resign up to him their Homage and Fealty and intimate the Sentence of Deposition which they did accordingly by the Mouth of Sir William Thirning whose words are at large entred upon Record Then did the Parliament proceed to choose Henry the Fourth King And upon this Title onely did he rely though he mentioned some other trifling ones as that he challenged it being then void by Force as Descended to him from King Henry the Third But this could give him no Title for 't is plain that whilst any of the Issue of Lionel Duke of Clarence the Third Son of Henry the Third were in being no right of Blood could Descend to him who derived his Pedigree onely from John of Gaunt who was but his Fourth Son And he plainly shewed what a good Opinion he had of a Parliamentary Title to the Crown when in the 7th year of his Reign 7 H. 4. cap. 2. he procured an Act of Parliament to pass whereby the Inheritance of the Crown and Realms of England and France were setled upon himself for Life and the Remainder entail'd upon his four Sons by name and the Issue of their Bodies begotten He was contented that it should be limited no farther but that after failure of his own Issue it should go according to the general direction of the Law And he made a Charter soon after whereby he setled the Crown pursuant to this Act of Parliament Bucks Hist R. 3. l. 2. f. 50. Post ipsum successive haeredibus suis de ipsius Corpore legitime procreandis which Charter was again confirm'd in Parliament the 22 December 8 H. 4. and the Original Charter is still to be seen in the Cotton Library Immediately upon the Death of Henry the Fourth a Parliament met at Westminster and there according to the custom of the Realm it was debated who should be King But all Men had entertained so good thoughts of Prince Henry that without staying till the whole Assembly had declared him King divers of them began to swear Allegiance to him A thing strange and without President as only occasioned by the extraordinary Opinion which was generally conceived of him before And the certain Title vested in him by an Act of Parliament Princeps Henricus facto Patris sui funere Concilium Principum apud Westmonasterium Convocandum Curat in quo de Rege Creando more Majorum agitabatur Continuò aliquot Principe ultro in ejus Verba jurare coeperunt quod Benevolentiae Officium Nulli priusquam Rex renunciatus esset praestitum constat Adeo Henricus ab ineunto aetate spem omnibus optimae Indolis fecit Pol. Virg. l. 22. Hist Angl. in Vit. H. 5. Henry the Fifth dying and leaving but one Son who was an Infant of Eight Months old Titus Livius says there was some doubt whether he should be accepted as King Titus Liv. Ms in Bibl. Bod. Cott. Record f. 666. but as soon as his Fathers Funerals were Solemnized the Estates of the Realm of England Assembling and Consulting together they declared Henry the Sixth to be their Sovereign In the Thirty fifth year of Henry the Sixth a new Limitation of the Crown was made by Parliament for though the King had a Son then living yet it was Enacted Hubington's Hist E. 4. f. 10. That during his own Life onely Henry the Sixth should hold and enjoy the Crown and that during his Life Richard Duke of York should be reputed and stil'd Heir Apparent to the Crown and that it should be Treason to compass his Death Cott. Rec. 670. Fructus Temp. part 7. f. 162. and after the Death Resignation c. of Henry the Crown was limited in Remainder to Richard and his Heirs with a Proviso that if Henry or any in his behalf should endeavour to disanul or frustrate this Act that then Richard should have the present possession of the Crown And by force of this Act of Parliament the same Duke of York taking advantage of Henry's Violation of it did lay claim to Hubingt E. 4. f. 73. and attempt the recovery of the Kingdom as also did his Son Edward after him with better success and Edward did openly insist upon this Title in the Speech which he made at his Coronation It was also Declared by Edward's first Parliament in the first year of his Reign that Henry the Sixth having broken the aforesaid Concord in many particulars the Crown was duely devolved to Edward the Fourth by vertue thereof Afterwards Edward the Fourth being driven out of the Kingdom in the Tenth year of his Reign the Parliament did again entail the Crown on Henry the Sixth and the Heirs Male of his Body with the Remainder to George Duke of Clarence Brother to Edward the Fourth who was thereby also declared Heir to Richard Duke of York 'T is worthy observation that both the Families of York and Lancaster claimed a Title by Act of Parliament and as long as that Title continued the Issue of Henry the Fourth had never any Disturbance from the Pretences of the House of York who had undoubtedly the Right of Blood on their side Buck's Hist Rich. 3. lib. 1. fol. 20. But as soon as Richard Duke of York had a Title vested in him by the Statute made in the Thirty ninth year of Henry the Sixth then he thought it was worth contending for nor did he and his Son desist till they had driven out Henry the Sixth Edward the Fourth did recover the Kingdom again as suddenly as he lost it and prevail'd with his Parliament to repeal that Law which was made during his Expulsion and so left the Crown to that young unfortunate Prince
to it frequently In the 25th year of his Reign an Act passed St. 25 H. 8. cap. 22. wherein the Parliament say they were bounden to provide for the perfect surety of the Succession they did not certainly reckon themselves bound to do a thing that was not in their Power And then they take notice of the great Mischiefs and Effusions of Bloud which had happened by reason of the doubtfulness of the true Title and for the avoiding of all future Questions do Enact That the Imperial Crown of this Realm shall be to King Henry 8th and the Heirs of his Body Lawfully begotten on Queen Anne and the Heirs of the Bodies of such several Sons respectively according to the course of Inheritance and for default of such Issue then to the Sons of his Body in like manner and upon failure of such Issue then to the Lady Elizabeth and after her to any other Issue in Tail and then the Remainder is limited to the right Heirs of Henry the 8th By the same Statute every Subject at his full Age is oblig'd to take an Oath to defend the Contents of it and the refusal is made Misprision of Treason And the next Parliament 26 H. 8. c. 2. which was held in the year following does particularly Enact an Oath for that purpose Some few years after these Acts were Repealed 28 H. 8. Rast Crown 4. and the Parliament Entailed the Crown upon the King and the Heirs of his Body by Queen Jane And Power is given the King for want of Issue of his Body to dispose of the Succession by his Letters Patents or his last Will. It is also made Treason if any Usurp upon those to whom it is so appointed Here the Parliament do not only use their power of changing the Succession but they Delegate it to another And in the thirty fifth Year of this King's Reign 35 H. 3. cap. 1. the Parliament by another Act take notice of the great and high Trust which the Subjects had in him in putting into his hands wholly the Order and Declaration of the Succession Yet the King being then ready to go into France they do Enact that after his Death and the Death of Prince Edward without Issue the Crown should be to the Lady Mary and the Heirs of her Body but both subject to such Conditions as the King should limit by his Letters Patents or by his last Will sign'd with his Hand And if the Lady Mary performed not those Conditions that then the Crown should go to the Lady Elizabeth as if the Lady Mary had been dead without Issue and if the Lady Elizabeth neglected to perform such Conditions then it should go to such other Person as the King should appoint in the same manner as before as if the Lady Elizabeth had been dead without Issue And Authority is given to him by his Letters Patents or his last Will signed with his own Hand to appoint the Crown to remain to such Person or Persons and for such Estate and under such Conditions as he should please An Oath also for observing this Statute is appointed and it is made Treason to refuse it or to disturb or interrupt any Person to whom it is limited by this Act or should be by the King pursuant to the Power given him thereby This is abundantly sufficient to prove That it was the universal Opinion of that Age That the Succession was wholly under the Controul of Parliament who not only limited it as they pleased themselves but subjected it to Conditions and to the Appointments of others But the thing was in its own Nature so evident that they who had the greatest Reason and were most concern'd to do it did never presume to question the Power of a Parliament in this Point Lethington Burn. Hist Reform Collect. 268. Secretary of Scotland in a Letter of his written to Sir William Cecill then Secretary of State here wherein he argues in behalf of the Title of his Mistriss Mary Queen of Scots to succeed Queen Elizabeth against a pretended Disposition made by the last Will of Henry the Eighth to his Neece the Lady Frances Daughter to the French Queen if his own Issue fail'd says of these Statutes that gave the King Power to dispose of the Crown That they were against Equity to disinherit a Race of Forreign Princes and that they were made in an abrupt Time as he terms it but yet he confesses that since the thing was done it was now valid and unavoidable unless some Circumstances did annihilate the Limitation and Disposition made by King Henry's Will And so he proceeds to prove that the power which was given to the King by these Statutes was not pursued which it ought to have been most strictly and in a precise Form for that the King never signed the Will but that his name set to it was forged Nay I will venture to say that in all the Books which were written to support the Claim of the Scottish Queen against King Henries Will though the whole power and wealth of the Guises were employed to set every wit at work on that Design there was never any stress laid upon it Treatise of the Title of Queen Mary to the Succession pag. 38 39. c. lib. 2. Dodd Engl. Lawyer pag. 8. or so much as a pretence that these Acts of Parliament were void or ineffectual in themselves In that Discourse which was published by Philips and composed by Sir Anthony Brown one of the Justices of the Common Pleas who was in judge Dodderidges opinion a person of an incomparable sharpness of Wit There was all the help that learning either in Divinity Civil or Common Laws could give yet there the Authority of the Parliament in the case and the validity of these Statutes is all along admitted Indeed they endeavour to put some other construction upon the Statutes but their great Argument is That King Henry as King had no power to dispose of the Crown and therefore these Laws only gave him an Authority and made him only as it were a Commissioner and therefore as all other Authorities especially being in Derogation of the course of the Common Line was to be strictly followed They allow that he had sufficient power to Devise and that he might Honourably have used that Power but that he ever did exercise that Authority is the thing denyed But it is time for us to go on Edward the Sixth succeeded his Father and took upon him a power which surely no King ever had to dispose of his Crown by the Will But that disposition serving to no other purpose but to the Ruine of the Lady Jane Gray His Sister Queen Mary first and after Queen Elizabeth enjoy'd the Crown according to the Limitation of the Statute 35 H. 8. c. 1. and that one of them had no other Title must be agreed by all For Queen Catherine was alive at the time when Elizabeth was born so that if the
first Marriage was unlawful Queen Mary and if the second was unlawful Queen Elizabeth must necessarily have been Illegitimate I cannot but observe one passage to our present purpose which I meet with in the time of Queen Mary Sir Edward Montague first Lord Chief Justice of the Common Pleas Mores Reports 827. 828. and afterwards of the Kings Bench one who had the reputation of the ablest and wisest Lawyer of his Age being accused to have drawn the Will of Edward the Sixth whereby that Queen was to have been disinherited and being in great danger upon that account drew up a State of his own case and therein sets forth that the great reason which prevailed with him to obey the King in that particular and upon which he did still rely for his indemnity was that if Queen Mary came to the Crown Eullers Church-History lib. 8. fol. 5. she took it by force of the Act of Parliament which did limit it to her in Remainder so that she came in as a purchaser and not in privity of estate to her Brother and consequently could not punish Treasons or offences committed in his time I must needs also observe that in the Articles made upon the Marriage of Q. Mary with Ph. of Spain which were confirmed by Act of Parliament 1 Mar. Parl. 2. cap. 2. the several Crowns and Territories of Philip are distributed part to Charles the Infant of Spain part to the Issue of the intended Marriage Whereby it does appear not only what opinion all Europe had of the power of an English Parliament but also that by the consent of the Estates of other Realms Crowns might be limited and disposed out of the ordinary course of Descent In the first year of Queen Elizabeth The Parliament recognize her Title to the Crown 1 Eliz. c. 3. with express Relation to the Statute 35 H. 8. which invests it in her and the heirs of her Body and do enact that the Limitation made by that Statute shall stand and remain as Law for ever and all Sentences 1 Eliz. c. 5. Judgements and Decrees to the contrary are declared to be void and appointed to be cancell'd And the several offences which are made Treason by another Statute in the same year are all restrain'd to the Queen and the Heirs of her Body only The Parliament intending to extend that new security no further than her Estate in the Crown which she took by that Parliamentary limitation did extend In her Thirteenth year it was Enacted 13 Eliz. c. 1. Rast Treason 27. That if any person claim Title to the Crown for himself or any other during her Life or shall not upon Demand acknowledge her Right He shall be disabled during his Life to have the Crown in Succession as if he were naturally Dead And to affirm Right of Succession in such claimer or usurper after Proclamation made of such claim or usurpation is made Treason Nor does the Statute stop there but makes it Treason during the life of the Queen and forfeiture of all Goods and Chattels after her decease to affirm that the Queen with and by the Authority of Parliament is not able to make Laws and Statutes of sufficient force and validity to limit and bind the Crown of this Realm and the Descent Limitation Inheritance and Government thereof or that this or any other Statute made by Parliament with the Queens assent is not or ought not to be for ever of sufficient force to bind and Govern all persons their Rights and Titles that may claim any Interest or Possibility in or to the Crown in Possession Remainder Inheritance Succession or otherwise It were well if some rash men who presume in their discourses to restrain the power of the Parliament that is the King Lords and Commons in the great business of the Succession would be so wise as to remember this Act which is still in force and the penalty to which they subject themselves by such sawey Talk That incomparable States-man the Lord Burleigh had another kind of opinion of the Security which an Act of Parliament could give his Royal Mistress Compleat Ambassad fol. 219. by making the Scottish Queen the Popish Successor of that time unable and unworthy of the Succession as appears in a Letter which he wrote about this time to Sir Francis Walsingham then Ambassadour in France In the Twenty Seventh year of Queen Elizabeth 27 Eliz. cap. 1. it was enacted that if any Invasion was made or Rebellion or other thing tending to the hurt of Her person by or for or with the privity of any one who should or might pretend Title to the Crown and the same should be adjudged in such manner as that Law appoints then every person against whom such Judgment should be given should be excluded and disabled for ever to have or claim the Crown And that the Subjects of this Realm lawfully might by all forcible and possible means pursue all such offenders And their Issues assenting or privy thereto are in like manner disabled and to be pursued And this Act was made in pursuance of an Association enter'd into by the People in the vacancy of Parliament out of their great zeal for the preservation of the life of that excellent Princess By vertue of his Statute Mary Queen of Scotland was afterwards executed Strangways Hist of Mary Queen of Scotland fol. 179. as appears by the Commission for her Tryal King James her Son who was a wiser Prince and not wholly govern'd by Priests as his Mother was though he had the same pretences that she had yet never disputed his Right or set on foot any Title during the life of the ever Renowned Queen though she would never suffer him to be declared her successor He was too wise to incur the like disability as his Mother had done and to contest a Title Establisht by Parliament After Queen Elizabeths Death The Act of Recognition made upon King James his coming to the Crown doth particularly insist upon that Title which was raised by Act of Parliament to Henry the Seventh and the Heirs of his body and that immediately upon the Queens decease the Crown descended and came to King James so that you see the Title of Queen Elizabeth is again acknowledged by Parliament And the entail made by the Statute of 35 H. 8. being spent upon her death without Issue King James comes in as next Heir to the old entail made the first year of Henry the Seventh Thus have I set down before you the whole course of the English Succession as plainly as truly and as briefly as is possible I shall leave every man to make his own observations on this Historical Deduction But this one observation I believe all men must make from it That it hath been the constant opinion of all ages that the Parliament of England had an unquestionable power to Limit Restrain and Qualify the Succession as they pleased and that
of Edward the Fourth George Duke of Clarence was Attainted of Treason by reason whereof all the Issue of the said George was and is Disabled and Barred of all Right and Claim that in any case he or his Issue might have or challenge by Inheritance to the Crown and Dignity Royal of these Realms After that we consider that you be the undoubted Heir c. And so they proceed affirming that all Learned men in the Laws do approve his Title You see within less than three years before this opinion of the Judges The whole Parliament do not only give their opinion but assure you that all Learned men of that time held clearly that an Attainder did hinder the descent of the Crown and incapacitate the person to take it Nay what goes yet further in this matter Richard himself though he was as jealous to secure his Title as ever Tyrant was and had as good advice to discern the most distant danger though he was always restless in endeavouring to get the Earl of Richmond into his Hands who was a very remote pretender and only descended from a Bastard of the House of Lancaster yet he fear'd nothing on this side He knew how he had wrong'd the Children of his Brother Edward and could not be at ease till he had sent them out of the World but he let the Children of his Brother Clarence live without apprehending any danger from them because their blood was corrupted and all possibility of Descent taken from them by the Attainder of their Father It was this only preserved them alive and not any remorse of Conscience or any niceness in sending another Nephew out of the World after those whom he had dispatcht before This notable case attended with these circumstances will convince every man either that the Judges intended no such thing by their opinion as some men fancy or else at least that extra-judicial opinions were then as Apocryphal as they have been since Consider Lastly the unreasonableness of this Doctrine which tends directly to subvert Government and to put the life of the King Regnant into the hands of his Successor The next Heir may commit Rapes and Murders and Treasons Burn Cities or Betray Fleets may conspire against the life of his Prince and yet after all if by Flight or Force he can save himself till some of his accomplices can get the King dispatcht in spight of all Laws and Justice he must come to the Crown and be Innocent But when I reflect what sort of men I am arguing with and how willingly they use to submit to Authority I think I shall convince them best by citing the opinions of two great men the one a Cardinal the other a Lord Chancellour both of them Martyrs for the Papal Supremacy I mean Fisher and Sir Thomas Moor. And if their Judgments approve the power of Parliaments in the business of the Succession it cannot but weigh very much on such occasions as this 'T is well known how resolution even to death they refused the Oath of Succession which the Parliament had framed Burn. Hist Ref. lib. 2. fol. 156. because therein the Kings Supremacy was avow'd and therefore they cannot be suspected to dissemble when at the very same time they declared that if that of Supremacy was left out they would willingly Swear an Oath to maintain the Succession of the Crown to the Issue of the Kings present Marriage as it was then establisht by Parliament and gave this reason for it that this was in the power of a Parliament to determine but not who was supreme head of the Church Sir Thomas Moor went further and own'd a very strange opinion of their power in this point But he says expresly at the same time that the Parliament had unquestionable Authority in the ordering of the Succession and that the people were bound to obey them therein After the Testimonies of these two great Papists it will be little to add the Testimony of a Protestant But yet I will mention what Sir Walter Rawleigh who was no inconsiderable man though a Protestant says in his Incomparable Preface to the History of the World Without doubt says he Humane Reason would have judged no otherwise but that Henry the Fourth had rendred the Succession as unquestionable by the Act of Parliament which he had procured to entail it on his Issues as by his own Act he had left his enemies powerless But sinking men catch hold of every thing and when they cannot object to the validity they will tell us That such an Act of Parliament to disinherit the next Heir is unjust and without a sufficient ground I will not at present enter into the dispute how far the difference of Religion which will also necessarily draw on a change in the Government does justifie men in seeking to present the two dearest things on earth in an orderly and lawful way I will not though I safely might challenge these men to tell me where ever any settled Nation which had Laws of their own and were not under the immediate force of Conquerour did ever admit of a King of another Religion than their own I will not insist on it that the Crown is not a Bare Inheritance but an Inheritance accompanying an Office of Trust and that if a mans defects render him uncapable of the Trust he has also forfeited the Inheritance I need not say how far a Nation is to be excused for executing Justice summarily and without the tedious formalities of Law when the necessity of things requires haste and the party flies from Justice and his confederates are numerous and daring and the Princes life in danger But this I will say that if the Parliament have power in this thing which I need not prove by shewing that the ordinary course of Law allows Heirs to be disinherited of Fines and Recoveries and that the Parliament in all ages has frequently done it by making Acts to alter the strongest Settlements where Equity has Dictated it though the Heirs were never in any wise criminal There according to Sir Thomas Moors opinion the people are bound in conscience to obey their Laws and must not pretend to enquire whether they were made upon just grounds For by the some Rerson they may pretend that all other Laws were made without just cause and refuse obedience to any of them And surely those that should do so would be an Excellent Loyal Party God defend this Nation from such Loyalty as opposes it self to the King and the Laws and God defend the King from the pretended Duty and Submission of those men who whilst they talk of his power so much Renounce it openly and oppose what would be the greatest security of his person and in effect set up his Successor above him even in his life time FINIS