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 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-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
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
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
been intended or implied by that Statute that there was or could be any other King besides the King for the time being For 1. To take it in that sense would be to make the Statute fight against it self and not only to admit that he were but a King not the King but to require the Subjects to fight for and against one and the same Person 4. H. 7. And his Parliament could not be thought to admit that he was an Usurper or a King contrary to Law or Right But H. 7. certainly intended to provide for the indempnity of those that should pay Allegiance to him as well as of those that should pay Allegiance to future Kings for the time being And indeed upon some of the Words it may seem doubtful whether the enacting part was intended to reach beyond his time and whether any other Sovereign Lord for the time being was intended but he who was at that time But if in relation to the King whose Parliament passed this Act the King for the time being was supposed to be the only Lawful and Rightful King it must be so taken in relation to all other Kings for the time being if either the enacting Part or the Preamble extend to ' em 5. If this Act should carry a plain implication that some other besides the King for the time being was the King of Right this would be so far from being for the Security of the King for the time being as must have been then intended as well as the indemnity of his Subjects that it must needs have the like effect with their Discourses who will have it that the present Government is not Rightful but yet that a sort of Allegiance is due to it because of God's Authority tho' contrary to Right Whenever these Men speak out it appears that they allow no Authority to the King for the time being but what is derived from the Tacit or implied Consent of their King of Right But this Jesuitism was not thought of at the making of that Statute 6. I desire to know what Person besides H. 7. was so much as imagined to be Rightful King or Queen of England when that Act was made However whether it can be thought that in the Judgment of that Parliament any Person besides H. 7. had Right to the Crown after a former Parliament had Ordained Established and Enacted that the Inheritance of the Crown of England and France should be stand and remain in King H. 7. and the Heirs of his Body and in no other Person That they held this Settlement to have been duely and righfully made and that without any relation to his marrying the supposed Heiress to the Crown appears by three other Acts of the same Parliament One of which attaints R. 3. for traiterously conspiring against their Sovereign Leige Lord H. 7. Another indempnifies Men for Trespass or taking Goods in maintenance of the Title of H. 7. for the time that his Banner was displaied against Richard late Duke of Gloucester Usurper of the Realm Another goes farther and indemnifies them who came from beyond-Sea with H. 7. or were in Sanctuary or Hidel for his Quarrel and Title and speaks of the Battle against his Enemies in recovering and obtaining his Just Title and Right to his Realm of England Wherein H. 7 ths Right and R. 3 ds Usurpation consisted shall afterwards be considered 7. When the Parliament 11 H. 7. speaks only of the King or Prince or Sovereign Lord for the time being without giving any discription whereby it should be known who is the Prince unless what relates particularly to H. 7. It must be presumed that no King is intended but he that was the Sovereign or Leige Lord in the Eye and Reputation of Law which as appears by the Case of R. 3. an Usurper continuing so was not then taken to be But who ever was in the Possession of the Throne without Usurpation was always lawful and rightful King 8. It cannot be thought the Parliament 11 H. 7. would have made an Act directly contrary to three others of the same Reign but they would have expresly repealed the former Acts or have offered some reason to palliate or colour their Proceedings to the contrary But take the Statute of 11 H. 7. in this Lawyers Sense only with an Exception that as to the Matter in Question it was a Declaratory Law as the words plainly shew and it will farther appear and it is evident that the Statutes against R. 3. and indemnifying them that acted for H. 7. before the displaying his Banner as well as after while R. 3. was in Possession of the Throne were contrary to this Lawyer 's Sense of the Statute 11 H. 7. according to which they who assisted H. 7. must have acted contrary to their Duty of Allegiance to the King for the time being Wherefore it plainly follows that R. 3. was not King for the time being according to the true meaning of the Statute 11 H. 7. and yet H. 6. who was of the younger House was in his time the only King for the time being in the Judgment of that very Parliament which supposes R. 3. not to have been so as appears by their reversing the Attainder of H. 6. and declaring the Act of Attainder to have been contrary to the Allegiance of the Subject against all right wiseness honour nature and duty inordinate seditious and slanderous and reversing the Attainders of others for their true and faithful Allegiance and Service to Hen. 6. and yet those Attainders were in a Parliament of a King by many supposed to be the only Person that had Right to be King and that after his being formally recognized by the States and then in Possession of the Power of the Kingdom Obj. But it may be objected if the Act 11 H. 7. was made only to indemnifie them that paid Allegiance to Rightful Kings there was no manner of need of it Answ 1. Many needless Statutes have been made in affirmance of the Common-Law out of abundant caution 2. It could not be needless to obviate mens fears upon pretences which might be set up against the King for the time being by removing the supposal that Allegiance could be due to any body else 3. The enacting part extends to indemnifie Men for what they out of Loyalty should do in time of War against the mind and will of the Prince for which the caution was but reasonable Effectually to prove that the Judgment of Hen. 7 ths Parliament That there could be but one Rightful King at a time except where they were Partners in Power is according to the fix'd and known Constitution of this Monarchy and that this manifests His present Majesty to be our only lawful and rightful Sovereign Lord and that the late King neither is nor of Right ought to be King I shall as briefly as well as I can give an Abstract of what will appear to any
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
it be truly considered his Usurpation if any must have consisted in the Tyrannical Exercice of his Power which the Duke of Bucks had urged to justify his Arms and not from the assuming it and that H. 7 th's Sovereignty was founded in that election of the Body of the People without a formal Convention which pitch'd upon him as a fit Person to deliver them from their real or imagin'd Yoke This will appear beyond contradiction from the proceedings of the Parliament upon his Claim and the moral impossibility of giving it any other colour However the Parliament took to it self full Authority in the matter and declaring their hopes that it might be to the pleasure of Almighty God the Wealth Prosperity and Security of this Realm by Authority of Parliament settles the Crown upon H. 7. and the Heirs of his Body exclusive of all others After which indeed they desire him to marry Eliz. E. 4th's Daughter that by God's Grace there might be issue of the Stock of their Kings but then special care is taken that neither the King or the Children by that marriage should be thought to derive any Title from her for tho' they by Authority of Parliament repeal her Bastardy declared 1º R. 3. they by the said Authority ordein that the then Act ne eny clause in the same be hurtful or prejudicial to the Act of stablishment of the Crown of England to the King and the Heirs of his Body begotten After this H. 7. obtains a Bull from the Pope which says the Kingdom belonged to him not only by right of War and notorious undoubted nearest Title of Succession but also by the election of the Prelates Peers Great Men Nobles and the Commons of all the Kingdom of England and by the known and decreed Statute and Ordinance of the three States of the said Kingdom of England in their Convention called a Parliament According to this tho' his Reign was held to have begun before he had been declared King it was as I shall have occasion to observe in other cases only by way of relation to that solemn Investiture without which he had never been King That his Right must have been derived from a plain Election is very evident for 1. He had been attainted in a Parliament of R. 3. and if the Royal Blood could not be so attainted but whenever a former King ceased to be King the Person so attainted standing next to the Crown should have his Attainder purged by the descent of the Crown then according to them of this Opinion the Earl of Warwick Son to George Duke of Clarence who had been attainted by Parliament in the Reign of his Brother E. 4. must have had the Right before H. 7. And yet if we regard the distinction between Proximity and Representation H. 7. was in that respect more truly the next Heir to the Crown But however the resolution of the Judges 1 H. 7. has been taken they held the disability to cease eo facto that he took upon him the Royal Dignity to be King nor by any imagined Right of Descent 2. At least one of the Children of E. 4. was alive when H. 7. came to the Crown 3. Tho' in truth it appears by the Statute reversing the Attainder of H. 6. to have been the judgment of H. 7th's Parliament that H. 6ths Family of which he was ought to be the reigning Family yet H. 7. had no pretence to preference in that Family but from his Merits and the People's Choice For 1. His own Mother who stood before him upon that Line was then alive 2. He came from a Bastard branch his Ancestor being the Bastard Son of John of Gaunt during former Marriages on both sides And tho' there was a legitimation 20 R. 2. that neither did nor was intended to extend to capacitate for the Royal Dignity However H. 7. is in an Act of Parliament called Natural Sovereign Leige Lord. Certain it is that he was never in his time or after Authoritatively declared or accounted King only in Fact and they who will take the distinction of King in Right and in Fact from the last Parliamentary Declaration in this matter before the Revolution must hold that till the restitution of the younger House which had been settled the Regnant Family for three Reigns successively all the Kings of the elder House were Kings only in Fact but not of Right And yet it is not to be thence inferred that while they of the elder House had possession they were to be accounted Usurpers for not standing first upon that Line which ought to have had the preference But when any Prince of either branch had Justice done to his Merits who would not say that he ought sooner to have been King H. 8th came in under the Authority of Parliament which had made H. 7th the Head of a new Succession as the Crown had been Entail'd upon him and his Issue And tho' H. 8th's Mother was Daughter to E. 4. whatever Dr. Brady suggests it has appeared above that particular care was taken by H. 7th's Parliament that the Crown should not be thought to descend by proximity of Blood but that the Right of Succession was to be derived from Parliamentary Authority It is beyond contradiction that in the judgment of H. 8th and his Parliaments the inheritance of the Crown was variable as Parliaments should determine and that no Man could rightfully succeed without such appointment By Authority of his Paliament 25o. the Marriage with Katherine Mother to Queen Mary was declared void and that with Ann Mother to Queen Elizabeth lawful and the Children made inheritable according to the course of Inhetances and laws of this Realm first to Males then to Females 't was made High-Treason by Writing Print Deed or Act to attempt any thing to the prejudice of that Settlement and the substance of an Oath was appointed afterwards made more express by another Statute repealing all Oaths to the contrary and engaging the Subjects in maintaining that Act of Succession to do against all manner of Persons of what estate degree or condition soever he be By Authority of Parliament 28 H. 8. the Marriages with Queen Katharine and Queen Ann are declared unlawful and the Children illegitimate and the Crown is settled upon the issue of the Body of Queen Jane E. 6ths Mother for want of such issue to such Person and Persons as the King should appoint by Virtue of the said Act. And it provides that if any should attempt to succeed contrary to that Settlement they should lose and forfeit all right Title and Interest that they may claim to the Crown as Heirs by Descent or otherwise The reason for reserving an appointment to the King is very remarkable because as the words of the Statute are If such Heirs should fail as God defend and no Provision made in your life who should
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