his death his Son Edward having less to answer for and success to recommend him to the People upon more specious pretences succeeded H. 6. by a manifest election Tho' he and his Father had upon the agreement established in Parliament sworn to be true to H. 6. during his life or till he should freely quit his Crown the dread of their Arms got a liberty for 'em to enter their protestations that this was upon the express condition that the King performed his part but if he should compass or imagine the death or destruction of the Duke or his Blood should forfeit the Crown And indeed it seems that the first acts of Hostility after this agreement were committed by the Queen and others of the King's Party who in attempting to rescue him out of the custody of the Duke of York put an end to his pretensions with his life But his Son Edward having routed the Earl of Pembroke and other the King 's Loyal Subjects in a Battle near Ludlow march'd up to London where he was received with joy on the 28 th of February Then he calls a Great Council of Peers to whom he opens his claim upon the King's breach of the Articles After the Lords had considered of the matter they determined by Authority of the said Council that forasmuch as King Henry contrary to his Oath Honor and Agreement had violated and infringed the order taken and enacted in the last Parliament and also because he was insufficient to rule the Realms and unprofitable to the Common-wealth he was therefore by the aforesaid Authority deprived and dejected of all Kingly Honor and Regal Sovereignty and incontinent Edward Earl of March was by the Lords in the said Counseil assembled named elected and admitted for King and Governour of the Realm After this the same day the consent of the common People was ask'd in St. John's Fields where a great number were assembled The Lords being informed of the consent of the Commons acquainted the said Earl with their election and admission and the loving assent of the Commons The next day he went to Westminster where his Title and Claim to the Crown was declared 1. As Son and Heir to Richard his Father right Inheriter to the same 2. By Authority of Parliament 3. And forfeiture committed by H. 6. The Commons being again demanded if they would admit and take the said Earl as their Sovereign Lord all with one voice cried yea yea which agreement concluded he was then proclaimed Here it is observable 1. That Edward did not claim upon any Title Prior to the Settlement in Parliament 39 H. 6. and therefore in effect claimed as adopted Heir to H. 6. as H. 2. had been to King Stephen 2. He alledges against H. 6. forfeiture by breach of the Contrac̄t establish'd in Parliament and a Moral incapacity in him to Reign 3. Notwithstanding this he does not set up as King before a solemn judgment pronounced against H. 6. and in favour of him and the formallity of a publick election 4. It appears that tho' he came to London and was possessed of the head and strength of the Kingdom and Hen. 6. had in effect abdicated he who according to the modern notion of the Successionaries should have been King upon the death of his Father was not King nor so reputed by his own Party till all those accustomed ceremonies were over the last of which was on the 4 th of March Now if it shall prove that in the judgment of King Edward's own Parliament his right ot turn H. 6. out of Possession was founded in H. 6 ths breach of the Contract establish'd in Parliament that E. 4. was not King till the 4 th of March and that no Act committed against him before that day was Treason nor was there or could there be Treason against his Father who never had been King then it will appear that some consent or election of the States or People was essentially necessary to make a King even of one who had or at least was suppos'd to have all the right that descent could give him and that the other King must have forfeited or ceased to be King before such right could be duely claimed But 1. The Act of Parliament declaring E. 4 ths Title is held to be a restitution to the same so that the very Title or Right was as if it had been extinguished 2. It is in that Act particularly insisted on that H. 6. had declared before witness that he would not keep the contract established in Parliament and is expresly charged with the breach of it 3. E. 4. is adjudged to have been in lawful Possession of the Realm upon the 4 th of March and on that day lawfully seized and possessed But not before and then the exercice of the Royal Estate by E. 4. and amotion of H. 6. are declared rightwise lawful and according to the Laws and Customs of the Realm 4. That Act says the Crown ought to have descended to Edward's Ancestor and after his decease to the next Heir of Blood if the same Usurpation had not been committed Wherefore according to that Act the Crown did not descend to any one of Mortimer's Family while the Person who they supposed to have usurped the Crown or any descendant from him kept Possession 5. Edward's Parliament held his Father to have been no more than Duke of York and tho' in the Act attainting H. 6. he is charged with the Murder of Richard Duke of York the first Treasonable Fact in H. 6. and others is laid in levying War on the 29 th of March and imagining to depose their Sovereign Lord Edward who had been declared King on the 4 th of that March and H. 6 ths forfeiture is laid in acting against his Faith and Allegiance to his Sovereign Lord whereby they plainly shew that as there could be no Treason against the Duke of York because he was never received for Sovereign Lord neither could there have been any against E. 4. unless he had been so received 6. If any now will own his present Majesty to have right by Law and yet refuse to declare him rightful King They go no farther then E. 4. and his Party did even after his Possession in relation to such as they held to be Usurpers And should such Men add that neither has the late King any right as it is probable that they mean that he has no right making him King they therein would still keep to that President But then if they would exactly follow that they must believe that the late King cannot be duely restored to the Regal Dignity till he should be received by the election or consent of the States or Body of the People nor could that be rightfully done unless his present Majesty in a legal sense ceased to be King before such election or consent Thus far I am sure they cannot
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
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
a sence very different from the Modern vulgar Notion Nor does the Judgment even of E. the 4th's own Parliament in the least favour the late King however if it did later Parliaments in the time of H. 7. have taken away all colour from such pretences That the Eldest Son even of the most Rightful Regnant King was not King upon the Death of his Father without a Parliamentary Settlement of the Crown upon him before his Fathers Death nor with it till the States of the Kingdom had actually received and recognized such Son will appear beyond contradiction And that the Eldest Son 's Right was only a Right to be declared King unless he was unfit to Reign or the exigencies of the Publick required the advancing some other Person of the Royal Family If a deserving Person was kept back or one so judged by his own Party or the Nation when he prevailed the least Complement they could make him was that of Right he ought to have been King before he was King but farther they never extended their Transports of Loyalty nor ever Authoritatively declared That he had such a Right as made him King while another possessed the Throne And till he got Possession it was never declared that he had Right Nor does the setting one aside before his coming to Possession or after make any difference in the Nature of the Right in question And I shall put it beyond Controversie that whenever a worthy Person of the Saxon Royal Family especially of that branch which for some Successions had been settled as the Regnant Family was solemnly recognized by the States of the Kingdom upon the Death or disability of a Person who stood forwarder in the Royal Line the Person so recognized became King de Jure and no other Person had any manner of Right unless such as was in Abeiance or in the Clouds and indeed no where till Possession brought it to Light and Being 3. Fully to shew this Gentleman his mistakes upon the Statute 11 H. 7. it will be requisite to transcribe the whole which is as follows The King our Sovereign Lord calling to remembrance the Duty of Allegiance of his Subjects of this his Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the Defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter and abide in Service in Battle if case so require That for the same Service what Fortune ever fall by chance in the same Battle against the Mind and Will of the Prince as in this Land some time passed hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon him in his Person or being in other places by his Commandment within this Land or without any thing should leese or forfeit for doing their true Duty and Service of Allegiance It be therefore Ordained Enacted and Established by the King our Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament Assembled and by the Authority of the same That from henceforth no manner of Person or Persons whatsoever he or they be that attend upon the King and Sovereign Lord of this Land for the time being in his Person and do him true and faithful Service of Allegiance in the same or be in other places by his Commandment in the Wars within this Land or without that for the said deed and true Duty of Allegiance he or they be in no wise Convict or Attaint of High-Treason or of other Offences for that Cause by Act of Parliament or otherwise by any Proces of Law whereby he or any of them shall now forfeit Life Lands Tenements Rents Possessions Hereditaments Goods Chatals or any other things but to be for that Deed and Service utterly discharged of any Vexation Trouble or Loss And if any Act or Acts or other Proces of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that Act or Acts or other Proces of Law whatsoever they shall be stand and be utterly void Provided always that no Person or Persons shall take any Benefit or Advantage by this Act which shall hereafter decline from his or their said Allegiance Here 't is observable 1st That whereas this Gentleman absurdly supposes that it is Treason to engage to fight against one whom one may lawfully kill and that one may enter into a contrary Allegiance but may not do any voluntary act of Allegiance it is evident by the Words that if Swearing Allegiance is safe so are all voluntary Acts of Allegiance for the Swearing is not expresly provided for by that Act or any otherwise than as it is a part of the Duty and Service of Allegiance to the Sovereign Lordâ— but if Associating for the Defence of the King's Person and Right be part of the Allegiance due then that is as much provided for as the Oath is and consequently this Gentleman must grant that the Statute 11 H. 7. indemnifies the present Associators That this is part of the Allegiance due appears by the Common-Law Oath of Allegiance affirmed in the Laws of W. 1. and continued down to this day in Substance and Obligation according to which all the Freemen of the whole Kingdom are to affirm with a League or Association and Oath that within and without the whole Kingdom of England they will be faithful to their Lord the King preserve his Lands and Honors with all fidelity together with his Person and defend them against Enemies and Strangers And in an other Chapter of that Law after Provision that all Freemen shall enjoy their Estates as had been before enacted and granted in a Common-Council of the whole Kingdom it adds We also enact and firmly enjoyn that all Freemen of the whole Kingdom be sworn Brethren or Associators to defend our Monarchy and our Kingdom according to their Strength and Faculties and manfully keep the Peace and preserve the Dignity of our Crown entire and constantly to maintain Right and just Judgment by all means according to their power without fraud and without delay What is this but an Association to defend the King and Kingdom against any Person whatever and by consequence to declare that the King for the time being is the only Rightful King Since his Person Crown and Dignity is to be preserved by all means in their Power This part of the Common-Law is affirmed by the Statute 11 H. 7. declaring it the Duty of Allegiance to defend the King and Land against every Power and Might and therefore as well against Pretenders to Title as others 2. This Act expresly indemnifies for voluntary Acts of Allegiance against the mind and will of the Prince 3. It can by no means have