THE Fundamental Constitution OF THE English Government PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful KING and QUEEN In Two Parts In the First is shewn The ORIGINAL CONTRACT with its Legal Consequences allowed of in former Ages In the Second All the Pretences to a Conquest of this Nation by Will 1. are fully examin'd and refuted With a large Account of the Antiquity of the English Laws Tenures Honours and Courts for Legislature and Justice And an Explanation of material Entries in Dooms-day-Book By W. A. Author of the first Answer to the late Chief Justice Herbert on the Dispensing Power Errat siquis existimat tutum ibi esse Regem ubi nihil à Rege tutum est securitas securitate mutuâ paciscenda est Sen. London Printed by J. D. for the Author 1690. To the Right honble AUBREY DE VERE Earl of Oxford Baron of Bolebec Sandford and Badlesnere Lieutenant General of their Majesties Forces Colonel of the Royal Regiment of Horse-Guards Lord Lieutenant for their Majesties in the County of Essex Knight of the most honourable Order of the Garter and one of His Majesty's most honourable Privy-Council My LORD THEY who observe what License has been given as well as taken to blemish the Instruments under God and our King in the greatest Deliverance with the most immediate appearance of God in it perhaps of any next to that of his chosen People of old would think the Nature of things to be inverted Triumph to belong to the Conquer'd and the most desir'd Deliverance to be worse than the deprecated Bondage or to lose its Nature because it was the return of Prayers and Tears and not purchas'd by Rivers of Blood And after-times I have seen an exact Pedegree o◠the Earl's Family from Syford a noble Norman Gothick Extraction Vid. Pref. who was eminent under Rollo who Anno 912 obtain'd Normandy by Treaty with Charles the Simple and marrying his Daughter This Syford made the like bargain with Arald the first Earl of Flanders from which Marriage the Earls of Flanders and the Veres Earls of Guisnes in Flanders descended Alberic or Aubrey de Vere or Ver as he stands enter'd in Dooms-day Book is suppos'd to have come into England with W. 1. 'T is certain at the time of the great Survey he was a Proprietor in several Counties particularly in Essex and Humphrey the Son of Alberic had at that time several Mannors in Norfolk and Suffolk 'T is probable that this Son of Alberic dy'd in his Father's Life-time I should take the Comes Albericus who is enter'd in Dooms-day Book in several Counties as a Proprietor from before the reputed Conquest to have been Alberic de Ver and the rather because otherwise he and his Descendents from that time are wholly lost and besides no place in England can be found of which any Alberic or Aubrey was Earl till the time of H. 2. when Aubrey the third of his Name was created Earl of Oxford But before that time the Office of High Chamberlain belonged to the Family and as appears by Records which I have seen in the Tower was annex'd to their Barony But that of Bolebec belong'd not to it till about the time of King John when Earl Robert married the eldest Daughter of the Lord of Bolebec the Barony of Sandford came by another Marriage about the time of H. 3. the Barony of Badesmere came not till the time of E. 3 with the eldest Sister and co-Co-heir of Bartholomew Lord Badlesmere in which your Lordship 's Great Name will flourish taking root downwards as it has spread upwards to the first Ages will treat their Memories with Contempt who would inure the Brand of Disloyalty and Unchristian Behaviour upon your Lordship and the Followers of so bright an Example Selden Dissert ad Flet. f. 519. speaking of the time of Will. 2. sub idem tempus c. eminentissimus erat pristini planè commatis juris sine ullâ Caesarci intermixtione peritus atque exercitatissimus apud nos Albericus de Ver. Nor was your Ancestor Earl Aubrey more eminent in the time of W. 2. for his Skill in the unmix'd English Laws than your Lordship is and will be to Posterity for your generous Defence of them Certain it is how much soever some pretend to passive Valour they cannot bear the Reproach of such extraordinary Vertue and are forced to shut their weak Eyes at that shining Bravery with which your Lordship strugled with the Flatteries and Threats of Fortune and of Power Becoming in the Language of the Heathen Philosopher a Spectacle most pleasing to the Gods the Effects of which Pleasure your Lordship has felt in the admir'd Tranquillity of your own Mind and in the Glory permitted you of being signally accessary towards the present Happiness of your Country not only by your resolute Vndertaking but even by your Sufferings I must own the Sufferings of others to have contributed to it by accident as those things may well be said to be which happen contrary to the intention of the Agent and nature of the Action But the Nation was glad to find their private Resentments and self-Defence to carry them along with the Publick Interest which some of them had sacrificed to low Ends or stupidly neglected being as unconcern'd at publick Calamities as if their former Exemptions which they seem'd to aim at had made them of another distinct Community Such as these deservedly lost the Credit of their share in this Revolution not only as they had drawn their Sufferings upon themselves and others by tempting those whom they flattered to make Experiment of the force of their Doctrine but as their subsequent Carriage has demonstrated upon what narrow Principles they engag'd not in the Cause of their Country but their Own Their lowness of Spirit makes them resemble those fawning Creatures whom the least Gentleness raises to Familiarity but notwithstanding the Advantages which they enjoy under this Government 't is not to be presum'd that they are given them otherwise than to reclaim and wean them from Notions as destructive as they are useless to this equal Administration They who now pretend to merit by transplanting the Doctrine of the Bow-string into the Service of this Government would do well to consider whether in the late Reign it really profited any but themselves and whether they kept to it any longer than while they found their account in it As it is our Happiness to have a King born and acting for the Good of Mankind it is not to be fear'd that he should cherish what is contrary to their common Sense and Interest or that he will countenance Reflections upon those noble Patriots who ventur'd every thing dear to them in the same Cause with himself while Success was doubtful and whose Reputations next to his own facilitated that Revolution for which late Posterity shall praise those of this Generation One would think that such a Cause should not stand in
And as anciently as the year 789. an Act was made in a General Convention of all England in Conventu Pananglico that their Kings should be Elected by the Clergy senioribus populi and Elders of the people that is such as were Members of their Great Councils or Witena Gemots Assemblies of Sage and Wise Men. This tho it was long before the reputed Conquest yet was never repealed or cut off by the Sword nay seems received with the Confessor's Laws as included in them 2. It appears by the several instances given in the fourth Chapter and the testimonies there both of Malmsbury and the Publisher of the life of King Alfred That no lineal Succession was observed here before the supposed Conquest 3. The Confessor's Law received by W. 1. Vid. Sup. and continued downwards as the noblest Transcript of the Common Law shews that the Kings of England were to be elected and the end for which they are chosen by the people After the same manner do the ancient Historians and Lawyers as well since that time as before commonly express accessions to the Throne and seem industriously to mind Kings of it that according to the caution given the Jewish Kings Deut. 17.20 their hearts be not lifted up above their Brethren 4. According to the usage from before the reputed Conquest downwards the People are asked Whether they are content to have such a Man King 5. The most absolute of the English Monarchs never believed Cambd. Brit. s 104. de W. 1 Neminem Anglici regi constituo Haredem sed a terno conditori cujus sum in cujus manu sunt omnia illud commendo non enim taâ—tum decus hereditario jure possedi c that then Children had a right to the Crown except the people consented that they should succeed as appears by King Alfred's Will and the Death-bed Declaration of William 1. And therefore some of our Kings against whom there has been no pretence of better Title in any particular Person or Family when they stood upon good Terms with their People have often prevail'd with them in their Lives-time to secure the Succession to their eldest Son and H. 2. to prevent hazarding the Succession endanger'd himself by getting his eldest Son Crown'd himself living But as the going no farther than the eldest argues that they looked on that as a Favour the pressing for a Settlement on their Issue in any manner argues That it was not look'd upon as a clear Point of Right without it Of later Times Settlements have been made in Tail which though they were occasion'd by Pretences to Titles are Records against an Hereditary Monarchy according to the common notion which is one that by the original Constitution descends to the next in the Line male or Female V. Leges W. 1. de Fide c. Statuimus etiam ut omnes liberi homines foedere sacramento affirment quod intra extra regnum Angliae Willielmo Regi Domino suo fideles esse volunt c. Leges S. Edw. tit Greve Vid. Juramentum homagii facti Regi 6. The Oaths of Allegiance required of all the Subjects were never extended to Heirs but were barely Personal till Settlements of the Crown were obtain'd upon the Quarrels between the Families of York and Lancaster and though H. 4. obtain'd in Parliament an Oath to himself the Prince and his Issue and to every one of his Sons successively and in the time of H. 6. the Bishops and Temporal Lords swore to be true to the Heirs of R. Duke of York yet perhaps no Oath of Allegiance to the King and his Heirs can be shewn to have been requir'd of the Subjects in general till that 26 H. 8. according to the Limitations of the Statute 25. 7. Even where the People had setled the Crown they seem'd to intend no more than to give a preference before other Pretenders not but that as Ideocy Frenzy or the like might set such an one aside so upon other weighty Reasons they might alter the Settlement Pryn 's Signal Loyalty p. 274. Pol. Virgil. 1. 22. sub initio as appears by Polydore Virgil who was never thought to lie on the Peoples side whatever Evidences for them he may have conceal'd or destroy'd whose words of H. 5. to whom the Crown had been limited by Parliament may be thus rendred Nota Proceres may take in the Nobiles minores Prince Henry having buried his Father causes a Council of Nobles to be conven'd at Westminster in which while they according to the Custom of their Ancestors consulted about making a King behold on a sudden some of the Nobility of their own accord swear Allegiance to him which officious Good-will was never known to have been shewn to any before he was declared King William 2. was elected during the Life of his eldest Brother who was set aside by the English against whom he had discovered Ill-will in spite of the Normans So H. 1. Stephen was elected while Maud the Daughter of H. 1. was alive and H. 2. succeeded in her Life-time upon an Agreement made with Stephen by the Peoples Consent R. 1. as within King John crown'd in the Life-time of his eldest Brother's Son Prince Arthur So was his Son H. 3. in the Life-time of Eleanor Prince Arthur's Sister E. 1. as within E. 2. elected E. 3. set up by the People in his Father's Life-time which the Father took for a Favour R. 2. declared Successor by Parliament in the Life-time of his Grandfather H. 4. of the younger House came in by the Peoples Choice upon their deposing R. 2. H. 5 6. Son and Grandson to H. 4. came in upon a Settlement E. 4. of the elder House came in under an Agreement made in Parliament between his Father who liv'd not to have the benefit of it and H. 6. His Son E. 5. was never crown'd R. 3. who set him aside was of the younger House H. 7. who vanquish'd him could have no Right of Proximity for the Daughter of E. 4. and his own Mother were before him All that came in since enjoy'd the Crown either under the various Settlements of H. 8. or that of H. 7. which took place again in J. 1. or from H. 6. at the highest 8. As the Practice of the Kingdom is an Evidence of its Right numerous Instances might be produc'd of Choices since the supposed Conquest not only so called by Historians but appearing so in their own Natures wherein no regard has been had to Proximity but barely to Blood And I believe no Man can shew me any more than Two since the reputed Conquest of whom it can be affirm'd with any semblance of Truth that they came in otherwise than upon Election express'd by the Historians of the Time or imply'd as they had no other Title or else a late Settlement of the Crown either upon themselves immediately or in Remainder The Two upon which I will yield
which Word was then of a large extent Wherefore I submit it to Consideration whether these are any Exceptions to the General Rule or are not at least such as confirm it 11 H. 7. c. 1. 9. The Parliament 11 H. 7. declares That it is against all Laws Reason and good Conscience that Subjects should lose or forfeit for doing their true Duty and Service of Allegiance to their Prince or Sovereign Lord for the time being that is to the King de facto as appears by the occasion of the Law which was to encourage the service of H. 7. who had no Title but from his Subjects And there is a Provision That any Act or Acts or other Process of Law to the contrary shall be void Which if it relates to Acts of Parliament being built upon the Supposition That according to the Fundamental Law the Peoples Choice gives sufficient Title perhaps is not vain and illusory Lord Bacon's Hist of H. 7. f. 145. as the Lord Bacon would have it but argues strongly that the Parliament then thought the Monarchy fundamentally Elective at least with that Restriction to the Blood which I yield And if this be part of the Fundamental Contract for which it bids very fair then perhaps no body of any other Stock may be King within this Statute But I take it not to be evident that the Acts here mention'd must needs be Acts of Parliament For they might and by the word other seem to be such Acts as are of the nature of ordinary Process or whereon such Process is grounded as Ordinances of the Lords in Parliament Orders of the Privy Council Judgments or Decrees in Courts of Law or Equity and the like However admit this Clause should be vicious and insignificant My Lord Bacon I am sure gives no countenance to a certain Dissenting Bishop's Argument in publick Discourse who undertook from hence to prove That the Statute it self is of no force Yet such sort of Arguments are of great service to men resolv'd upon a Conclusion nor can better be expected from them To what I have offer'd on this Head the following are all the Objections of seeming weight which have occurr'd to me Object 1 The Maxim in Law That the King never dies Or to use the words of Finch ' The Perpetuity which the Law ascribes to him Finch's Description of the Common Law French Edit An. 1613. f. 20. b. 21. a. The same made use of in Reflections upon our late and present Proceedings p. 10. having ' perpetual Succession and he never dies For in Law it is call'd the Demise of the King Answer To which I Answer 1. That neither that Book nor any Authority there cited is so ancient as the Settlement of the Crown above observ'd And that the Death of a King is but a Demise transferring the Right immediately to a Successor may be owing to the Settlement but is no Argument of any Right otherwise 2. Even where there is an Election Dyer f. 165. Anderson f. 44. He has it Le Successeur le Heir Elsewhere Heir on Successeur ib. f. 45. tho never so long after the Death of the Predecessor yet by way of Relation 't is as if there were a Demise or Translation of Interest without any Inter-regnum as it was resolved by all the Judges 1 Eliz. Of which the words of Lord Dyer are ' The King who is Heir or Successor may write and begin his Reign ' the same day that his Progenitor or Predecessor dies With which agrees the Lord Anderson But that to many intents a King dies in his Politick Capacity as well as Natural Vid. 1. E. 6. c. 7. 7 Rep. f. 30. appears by the discontinuance of Process in Criminal Causes and such in Civil as was not return'd in the Life of the former King till kept up by Statute the determination of Commissions and the like Agreement betwixt the present and former Government Suppos'd to be Doctor Fulwood's P. 42. A Learned Author that he may reconcile our present Settlement to this suppos'd Maxim which appears not to have any foundation in Antiquity will have it That by the Vacancy of the Throne no more was meant by the Convention than its being free from the former Possessor but that it was full of a Successor and that there was no Interregnum For says he such a Vacancy we have upon every Demise of the Crown And so there was a Vacancy of the Throne and no Vacancy at all For in ordinary Demises 't is manifest there is none Freedom from the last Possessor is not a Vacancy of the Throne Two Grounds this Doctor goes upon to justify his Equivocation in this for I can call it no better 1. That otherwise this would be inconsistent with the nature of our Ancient Hereditary Monarchy 2. That the Convention shew that they meant it no otherwise than in his Sense 1. As to the First It is observable 1. That the Notion which himself goes upon P. 40. is as inconsistent with the ordinary Rule For he makes the Heir to have only jus in re and to want Livery and Seisin And consequently till the Coronation there is an Interregnum Tho it may afterwards be supplied by relation to the Descent of the Right But herein the Doctor is certainly out For in ordinary Descents or Demises Hales's Pleas of the Crown p. 40. Treason may be committed against the Heir as in full possession before any Recognition or Coronation But since he will hardly affirm that it could have been so in our Case he must grant that there was a more absolute Vacancy than that for which he contends P. 54. It is his own Argument that our present Sovereigns are really King and Queen because Treason may be committed against them within the purview of the Statute 25 E. 3. And by the same Reason they were not King and Queen before they were declar'd so unless Treason could have been committed against them before such Declaration 2. But 2. The Doctor owns that though upon some extraordinary Revolution and some absolute necessary Reason of State for our common preservation a Stranger none of the Blood-Royal should be advanced to the Throne for one or more turns whilst that necessity continues the Constitution of the Government would not be alter'd And yet would suppose P. 56. V. p. 41. Where he speaks as his own Sense what in the other place is put by way of Objection that if our King and Queen come in otherwise than by Descent it would be a Design'd Alteration or Change of the Ancient Constitution of this Hereditary Monarchy And yet himself owns That by the Law of Nature Salus Populi is both the Supream and the first Law in Government and the scope and end of all other Laws and of Government it self Nay he yields That the Oath of Allegiance that Sign or Testimony between King and Subject is discharged or dispenced with when
quod defunctus habuit ' Inheritance is nothing else but Succession 'to all the Right which the deceased had Wherefore I cannot but wonder that so learned a Man as Sir P. P. should cite this to prove that Allegiance is due to the Heirs and Successors in a Legal Course of Descent That is as he explains or receives it out of Mr. Prynn by Proximity of Succession in regard of Line Nor is this Learned Man more fortunate in mentioning the Salvo which Littleton tells us is to be taken to the Oath of Homage to a Subject Salve la Foy que jeo doy a nostre Signior le Roy Sir P. P. f. 297. Littleton tit Homage Sect. 85. where there is not a word of Heirs But he tells us that Littleton cites Glanvil where the word Heirs is Whereas 't is the Lord Cook who makes the Quotation as he does of Bracton whose sense of the word Heirs we have seen And Littleton fully confirms it by leaving out the word Heirs as a Redundancy Allegiance being due to every one that becomes King and to no other But to put the Extent of Heirs to a King out of Controversy Popham 's Rep. f. 16 and 17. we have the resolution of all the Judges in B. R. in the time of Q. Eliz. on my side King R. 3. had granted certain Privileges to the Burgesses of Glocester with a saving to himself and his Heirs And it was agreed by all the Justices That although the words are saving to himself and his Heirs it shall be taken for a perpetual saving which shall go to his Successors This therefore they adjudged to reach the Queen who 't is well known was not Heir to R. 3. Object 4 The great Objection is That in the Contests for the Crown between the Families of York and Lancaster each side pretended Title by Proximity of Blood and as either prevail'd their Right was acknowledged to be according to God's Law Man's Law and the Law of Nature To which I answer As appears in the very Objection this was applied to those who had no Right of Proximity as well as to those who had And thus 't was to R. 3. as well as to E. 4. and even the Election of H. 4. after the Deposing and Relinquishing of R. 2. with his own express consent is by the same Parliament that says so much of the Title of E. 4. called an Usurpation upon R. 2. Wherefore if this Record be any way leading to our Judgments no Deposing or Resignation what ever be the Inducement can be of any force Whence 't is plain that all those are but Complements to the longest Sword However they neither set aside former Authorities nor establish any Right for the future at least not more for the Heirs of E. 4. than the Parliament of R. 3. did for His Heirs Yet whoever comes next by Right of Proximity according to any Settlement in being I will not deny that they enjoy the Crown according to God's Law Man's Law and the Law of Nature For Fortescue de laudibus legum Angliae c. 3. Jovian p. 253. as the great Fortescue has it All Laws published by Men have their Authority from God Upon which the Author of Jovian argues and supposes all Laws of Men to be the Laws and Ordinances of God Yet who can say but these Human Creatures or Ordinances of Men may be altered as they were made And thô it may seem strange to some yet I may with great Authority affirm That when the People had determined the Right on the side of R. 3. He was King as much according to God's Law as E. 4. For Peufendorf holds That where the Question is Peufendorf de Interregnis p. 288. Quod si dubitatur qui gradus aut quaelinea sitpotior declarata voluntas populi finem liti imponet c. What Degree or what Line is best The declared will of the People determines the Controversy since every one is presum'd to understand his own Intention And the people that is now is to be thought the same with that by which the Order of Succession was Constituted But let Men argue as nicely as they please for a Right or Sovereignty inseparable from the person of the next in Blood to the last Lawful King let this fall upon J. 2. the reputed Prince of Wales or any other person of unclouded Birth and Fame and let them argue upon the Declaration 1 E. 4. That Allegiance accordingly is due by God's Law Man's Law and the Law of Nature Certain it is That the Statute 11 H. 7. abovementioned was not only made in an Age of greater Light but being a subsequent Law derogates from whatever is contrary in the former By this last it is declared to be against all Laws That Subjects should suffer for doing true Duty and Service of Allegiance to the King de facto Which is as much as if 't were expressed to be against God's Law Vid. 3 Inst f. 7. upon the Stat. of Treason 25 E. 3. referring in the Margin to this Statute This is to be understood of a King n possession of the Crown and Kingdom For if there be a King Regnant in possession although he be Rex de facto and not de jure yet He is Seignior le Roy within the purview of this Statute and the other who hath the Right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto and after the King de jure come to the Crown he shall punish the Treason done to the King de facto And a Pardon granted by a King de jure that is not also de facto is void Man's Law and the Law of Nature By the necessary consequence of which Allegiance is due to a King de facto according to all these Laws Wherefore whoever denies Allegiance to King William and Queen Mary or maintains a contrary one to J. 2. offends against God's Law Man's Law and the Law of Nature Nor whatever some imagine can the Proviso at the end of this Statute in the least impair its force as to what I use it for The Proviso runs thus 11 H. 7. c. 1. 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 Where said Allegiance shews it to be meant of Allegiance to the King de facto whose Service is called true Duty And no Man surely can think the meaning to be that if after such Service they turn to the other side or become Traitors to the present Power they shall suffer for the former Service as Traitors against him that had the Right either during the Reign of the King in being which would be an unlikely owning the Ejected Power or hereafter if that should come to be restor'd which would be far from answering the apparent end of the Clause which is
Therde But because this without consideration of his Merits in rescuing them from R. 2. entituled him to the Crown no more than another of the Blood therefore the Lords and Commons drew up an Instrument purporting their Election Ib. n. 55. 4. But admit none of the foregoing Arguments were enough to shew That upon James the second 's Abdication or at least losing his Interest in the Government the People of England were restor'd to that Liberty which they had before the Settlement of the Crown which was in force till the Original Contract was broken by him yet I conceive the particular Consideration of the state of the Settlement might afford sufficient Argument Brady's Hist of the Succession f. 25. Henry the Fourth Fifth and Sixth if we believe Dr. Brady held the Crown by Usurpation Yet the earliest Settlement of the Crown farther than the first Son or Grandson was in the time of H. 4. Nor as I shall shew was the Crown enjoyed by J. 2. under better Title than they had H. 5. and 6. came in under an Entail of the Crown 7 H. 4. Vid. Rot. Parl. 8 H. 4. n. 60. confirm'd 8. The misgovernment of H. 6. having given occasion to Richard Duke of York of the Blood-Royal and Elder-house to assert the Peoples Rights not his own Henry and the Duke with the Consent of the Lords and Commons come to an agreement in Parliament That Richard and his Heirs should enjoy the Crown after the Death of Henry Tho here the word Heirs is mentioned without restraint yet considering that it is the first time that ever the Crown was setled so far Gomezius de Qualitatibus Contractuum f. 319. Hottomanni Com. de Verbis Juris usus-fructus est jus alienis rebus utendi fruendi salvâ rerumsubstantiâ Emphyteusis I know not whether it is not to be taken with Gomezius his Restriction of an Usufructuary or Emphyteutical Estate of the last of which much of the same nature with the other he says If it did not use to be granted to more than the first second or third Heirs the mention of Heirs simply ought to be restrain'd to those only because the Nature or Quality of the thing granted ought to be attended to After the Death of Richard Duke of York his Son Edward the Fourth as I before observ'd took the Government upon him as forfeited by breach of the Covenant estabish'd in Parliament However Vid. sup H. 6. being set up again ten Years after gets that Settlement by which E. 4. was to have benefit to be revok'd and the Crown to be entail'd on his Issue the Remainder to the Duke of Clarence younger Son to the Duke of York Afterwards E. 4. having success 13 E. 4. revives the Settlement 39 H. 6. Only that he attaints H. 6. Rot. Parl. 1 H. 7. n 16. Vid. Append. H. 7. Son to Edmund Earl of Richmond Brother by Mother's Side to H. 6. with others of his Party Which Attainder was remov'd 1 H. 7. and declar'd contrary to due Allegiance and all due Order And not only the Attainder but that Act of Parliament it self was revok'd So that hitherto there had been no Title in the Heirs of Richard Duke of York or of Edward the Fourth but what was deriv'd under the Settlement of Henry 6. call'd an Usurper and Edward the Fourth's Treason depriv'd him of the Benefit even of that Settlement H. 7. Indeed married the eldest Daughter of E. 4. But before that Marriage having conquer'd Rich. 3. he claimed the Crown as his Words in Parliament were Tam per justum titulum haereditantiae Rot. Parl. 1 H. 7. Vid. Append quam per verum Dei judicium in tribuendo sibi Victoriam de inimico suo As well by just Title of Inheritance as by the true Judgment of God in giving him the Victory over his Enemy If it be ask'd how he could have a Right of Inheritance when the Daughter of E. 4. and his own Mother were alive Vid. Rot. Parl. 1 H. 7. n. 16. supra it seems in the Judgment of that Parliament That E. 4. having acted contrary to his Allegiance due to H. 6. he and his had lost the Benefit of the Settlement reviv'd by his successful Treason and that this was lost even before the Revival was destroy'd by Parliament And then tho' H. 7. could not come in without an Election yet he as H. 4. before might have a sort of Inheritance according to a very witty Author Vindiciae contra Tyrânnos Ed. Amstelodami p. 110. who speaking of the Kingdom of Israel says Concludere licet regnum Israelis si stir pem spectas haereditarium certè fuisse at sanè si personas omnino electivum We may conclude That the Kingdom of Israel if you look at the Stock was certainly Hereditary but if at the Persons altogether Elective Be this as it will the Lords and Commons so far regarded King Henry's Claim that they not only receiv'd him for King but it was enacted by the Authority of the then Parliament Rot. Parl. 1 H. 7. That the Crowns of the Realms of England and France should rest in him and the Heirs of his Body lawfully coming perpetually and in NONE OTHER When they had thus done the Commons requested the King to Marry Elizabeth Daughter to E. 4. that by God's Grace there might be Issue of the Stock of their Kings So that this was only to preserve the Royal Blood not to give any new Countenance or Confirmation to his Title H. 8. enjoy'd the Crown not as Heir to his Mother but under the Settlement upon H. 7. Nor can it be said that he was in by Remitter since that Act under which his Mother should have deriv'd was Repeal'd And had it stood in force yet it would not have made the Title more Sacred unless it can be shewn that the Mother had a Title prior to the Act of Settlement 39 H. 6. the contrary to which appears by the former Account from Law and History H. 8. procur'd several Settlements of the Crown according as Love or Jealousie prevail'd in him 25 H. 8. c. 22. In the 25th of his Reign 't was settled upon Himself and the Heirs Male of his Body lawfully begotten on Queen Anne c. declaring the Marriage with Queen Katherine unlawful Remainder to the Lady Elizabeth Remainder to his own Right Heirs 26 H. 8. c. 2. 28 H. 8. c. 7. 26 H. 8. an Oath was enjoyn'd for that purpose 28 H. 8. the two former Acts 25 26 are Repeal'd the Illegitimation of Mary Daughter to Queen Katherine is confirmed the like declared of Elizabeth Daughter to Queen Anne and the Crown entail'd upon his Heirs Males by Queen Jane or any other Wife Remainder to Heirs Females by that Queen or any other lawful Wife Remainder to such Person or Persons and according to such Estates as he should appoint by Letters Patent or by Will 35.
Cancellario Angliae emergat seu judicium difficile coram Justiciariis fuerit reddendum hujusmodi si forte in hujusmodi deliberationibus omnes vel saltem major pars concordare non valeant tunc Comes Senescallus Comes Constabularius Comes Marescallus vel duo illorum eligent viginti quinque personas de omnibus paribus Regni scilicet duos Episcopos tres Procuratores pro Clero duos Comites tres Barones quinque Milites Comitatuum quinque Cives quinque Burgenses qui faciunt viginti quinque Et illi viginti quinque possunt eligere ex seipsis duodecim condescendere in eis ipsi duodecim sex condescendere in eis ipsi sex ad tres condescendere in eis illi tres in paucioribus se condescendere non possunt nisi optentâ licentiâ à Domino Rege Et si Rex consenceat ipsis tres possunt in duos de illis duobus aliter poterit in alium descendere Et ita demum stabit sua ordinatio super totum Parliamentum ita condescendendo à viginti quinque personis usque unam solam personam nisi numerus major concordare valeat ordinare tandem una persona ut est dictum pro omnibus ordinabit quòd cum seipsâ discordare non potest Salvo Domino Regi ejus Consilio quod ipsi hujusmodi ordinationes postquam Scriptae fuerint examinare emendare valeant si hoc facere sciant velint Ita quod hoc faciant ibidem tunc in pleno Parliamento de consensu Parliamenti non retro Parliamentum N. VII Vid. CAP. 7. F. 70. SEneschallia Angliae pertinet ad Comitem Leicester pertinet ab Antiquo Et sciendum est Sir John Cotton 's Library Tit. Tiberius n. 8 De Officio Seneschalliae quod ejus officium est supervidere regulare sub Rege immediate post Regem totum Regnum Angliae omnes ministros legum infra idem Regnum temporibus pacis guerrae c. Item officium Seneschalliae est quod si Rex habeat malos Consiliarios circa eum qui sibi dant Consilia ad faciend talia quae sunt apta prona ad dedecus suum aut exhaeredationem suam ad publicum malum destructionem populi sui tunc Seneschallus Angliae assumpto secum Constabulario aliis Magnatibus aliis de Communitate Regni Angliae mittent ad hujusmodi Consiliarium Regis quod ipsum Regem ita ducere consulere desistat de hujusmodi malis consiliis prius Regi factis mentionem faciend Quod ab eo ejus presentiâ recedat moram cum eo quod dedecus suum damnum publicum ut predictum est non faciat Quod si vero faciat tum mittent ad Regem quod ipsum ab eo amoveri faciat ejus consilium non audiat pro eo quod à toto populo malus Consiliarius inter Regem suum Populum praesumitur Quod si Rex non fecerit aliâs pluries mittent tam Regi quam ei Quod si demum non Rex nec hujusmodi Consiliarius de hujusmodi missionibus supplicationibus advertat sed ea potius facere neglexerit tum pro bono publico licebit Seneschallo Constabulario Angliae Magnatibus aliis de Communitate Regni capere corpus ejus salvum custodire usque ad proximum Parliamentum seisire res redditus omnes possessiones suas donec judicium suum attenderit subierit per considerationem istius rni in Parliamento N. VIII Vid. CAP. 7. F. 72. JOhannes Dei gratiâ c. sciatis nos concessisse presenti cartâ nostrâ confirmasse dilecto fideli nostro Willielmo Marescallo Comiti Pembroke haeredibus suis Magistratum Marescalciae Curiae nostrae quem Magistratum Gilbertus Marescallus H. Rs. avi patris nostri Johannes filius ipsius Gilberti disrationaverunt coram praed Rege H. in Curiâ suâ contra Rob. de Venoiz contra Willielmum de Hastings qui ipsum Magistratum calumpniabantur Et hoc judicium quia defecerunt se de recto ad diem quem eis inde constituerat Quare volumus firmiter precipimus quod predictus Willielmus heredes sui post eum habeant teneant pred Magistratum cum omnibus ad illum pertinen bene in pace liberè quietè integrè honorificè de nobis heredibus Testibus W. Lond. E. Elyens H. Sarum Ep. Dat. per manus H. Cant. Arch. N. IX Vid. CAP. 9. F. 93. Rot. Parl. 1. H. 7. Presentatio Praelocutoris SUbsequenterque idem dominus Rex prefatis communibus ore suo proprio eloquens ostendendo suum adventum ad jus Coronam Angliae fore tam per justum titulum haereditanciae quam per verum Dei Judicium in tribuendo sibi victoriam de inimico suo in Campo declaravit quod omnes subditi sui cujuscunque statûs gradûs seu conditionis fuerint haberent tenerent sibi haeredibus suis omnia terras tenementa redditus haereditamenta sua eisdemque gauderent exceptis talibus personis quales suam Majestatem Regiam ostenderunt qui juxta eorum demerita in presentis Parliamenti Curiâ aliter essent plectendi Titulus Regis Item Quaedam Billa exhibita fuit praefato Domino Regi in praesenti Parliamento per Communitates Regni Angliae in eodem Parliamento existentes hanc seriem verborum continens To the Pleasure of Almighty God the Wealth Prosperity and Suertie of this Realm of England to the singular comforth of all the King's Subjects of the same and in avoiding of all Ambiguities and Questions Be it ordeigned Stablished and Enacted by Auctoritee of this present Parliament that the Inheritance of the Crounes of the Realmes of England and of France with all the preeminence and dignitie Roiall to the same pertaining and all other Signeries to the King belonging beyond the See with th' Appurtenaunces thereto in eny wise due or perteineing be rest remaine and abide in the moost Roiall Personn of oure nowe Soveraigne Lord King Henrie the vii th and in the Heires of his Body lawfully comeing perpetually with the Grace of God so to endure and in none other Quà quidem Billâ in Parliamento praedicto lectâ auditâ maturâ deliberatione intellectâ eidem Billae de assensu Dominorum Spiritualium Temporalium in dicto Parliamento existen ad requisitionem Communitatis praedictae necnon authoritate ejusdem Parliamenti respondebat eidem in formâ sequenti Nostre Seigneur le Roy del assent des Seigneurs Espirituelx Temporelex esteaniz en cest Parlement a la request des Commens avantditz le voet en toutz poyntz The King our Soveraigne Lord remembering Restitutio Henrici Sexti 1. H. 7. n. 16. how ayenst all Rightwisnes