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
REFLECTIONS UPON A Treasonable Opinion Industriously promoted Against SIGNING the National Association AND The Entring into it prov'd to be the Duty of all the Subjects of this KINGDOM Hoc quidem perspicuum est eos ad imperandum deligi solitos quorum de justitiâ magna esset opinio multitudinis adjuncto verò ut iidem etiam prudentes haberentur nihil erat quod homines his auctoribus non posse consequi se arbitrarentur Civ de of lib. 2. LONDON Printed and Sold by E. Whitlock near Stationers-Hall 1696. To His Excellency CHARLES Duke of SHREWSBURY one of the Lords Justices of England and one of His Majesty's Principal Secretaries of State c. May it please your Excellency SINCE among the many subjects of just Praise which make up Excellency's distinction it is not the least that the true Religion and Loyalty are known to have been chosen with a Judgment properly your own my ambition could not carry me to a fitter Patron for Truths which are to encounter a strong Pre-possession in Men taught to object novelty against this Revolution tho' with as little cause of triumph as the Papists have for their question where was the Protestant Church before Luther As your Excellency's wise and vigorous discharge of Offices of the highest Trust and Consequence under our only rightful Sovereign King WILLIAM revives to France the noted Terrors in the name of Talbot permit me from thence to take an Omen of Success against Arguments supported by the French Interest and Power more than by any colour of reason Yet they who oppose the Right of the present Government having pretended to seeming Authorities I have used that method which I hope may be proper for their conviction giving a short view of what upon the various Exigencies of the Publick in all Ages of this Monarchy has been the uniform Judgment and regular Practice of Conventions of the States and Parliaments of this Kingdom in concurrence with several glorious Preservers of the English Liberties But that I may use an Authority sufficient in it self to justifie our present Settlement I beg leave to appeal to Excellency's early and eminent Example which will weigh more with Persons acquainted with so illustrious a Character than any Argument from pass'd Times And yet what I here offer being for the most part the Result of the Collective Wisdom of the Nation may not be wholly undeserving of your Excellency's Patrondge nor can I apprehend that you will refuse these Fundamental Truths the benefit of being recommended to the World under so Great a Name which tho' it will set my faults in the clearer light if your Excellency shall be thought to bear with 'em cannot but moderate the Censures against Your Excellency's most devoted humble Servant W. Atwood REFLECTIONS UPON A Treasonable Opinion c. THE Enemies of the Peace of these Realms having handed about a Paper as the Opinion of a certain florid Gentleman of the long Robe eminent for making New Treasons and whose Authority is said to have prevailed with several to refuse Signing the Associatlon for the defence of His Majesty's Sacred Person and Rightful Authority I shall offer what I conceive a sufficient Antidote to the Poyson he would spread with all his affected softness The words of the Opinion as they have occurr'd to me are these By the Statute of Hen. 7. the Subjects are Indemnified in taking an Oath or Fighting for a King de Facto But the Association is not within the Statute but an Overt Act of Treason against the King de Jure and Punishable as such when he shall be restored In refuteing the pernicious Errors contained in this Opinion I shall evince First That according to the best Authorities of them who suppose that there may be a King de Jure as distinguished from a King in Fact the Right of the supposed King de Jure is not such as makes any Act against him to be Treason nor is he King or has any Right against the King in Possession or his Issue Secondly That an Association for the Defence of the King's Person and Right is within the purview of the Stat. 11 H. 7. and that as plainly as an Oath of Allegianee Thirdly That it is not supposed or implyed in that Act that there was or might be a King de Jure while an other was King in Fact but that according to that Act the King for the time being is the onely Rightful King Fourthly That the Statute 11 H. 7. is not introductory of any new Law in this matter Fifthly That his Present Majesty is the only King de Jure and that the late King neither is nor of Right ought to be King Sixthly That according to this Gentleman 's own Law he is Guilty of High-Treason against our Sovereign Lord the King 1. The Lord Coke upon the Statute of Treason 25 E. 3. referring in the Margin to the Statute 11 H. 7. says This is to be understood of a King in Possession of the Crown and Kingdom For if there be a King Regnant in Possession altho' 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. Sir Mathew Hale says what in substance agrees with the Lord Coke A King says he speaking of the Statute 25 E. 3. de Facto and not de Jure is a King withing that Act and Treason against him is punishable tho' the right Heir get the Crown Indeed both those Great Men seem to suppose or admit that there might be one who had or at some time or other might have a sort of Right notwithstanding another's being so fully King that a Conspiracy to Kill or Depose him would be Treason But it is to be consider'd 1. That the Lord Coke does not suppose that there may be a King de Jure while another is King in Fact unless this supposition is warranted by the Statute 11 H. 7. which as I shall prove it is not 2. The Statute which in both their Judgments regards only the King Regnant makes it Treason to Conspire the Death of the King 's Eldest Son or to violate his Eldest Daughter for the last of which the Lord Coke assigns this Reason That for default of Issue Male she only is Inheritable to the Crown So that the supposed King de Jure appears to be barred not only by the Possession of the King in Fact but even by that Right which is Vested in his Son or Daughter before either of them have Possession And indeed That Right which ordinarily would descend to the Eldest Son of the King Regnant is truly explanatory of all that will be found to have belonged to one who since E. 4. of the elder branch of the Royal Stock got Possession has often been call'd King de Jure tho' as will appear in
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
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
come without a manifest departure from their avowed Principles and therefore to keep to them they must give up the only colourable Authority for their notion of King de jure and de facto And they must yield that there is not the least shadow of pretence from what was held in those times that there was a King of right at the very time that an other was in fact it going no farther than that the Person who was King ought not to have been King but while he was King the other was none 7. The judgment of E. 4 ths first Parliament whatever hard names they gave that Family on which they trampled was so far from being an Authority as has been pretended against the receiving his present Majesty upon the late King's breach of the Original or Common-Law Contract confirmed by several declaratory Statutes of the Kingdom and the solemn Oaths of our Kings that it is express for the eviction and amotion of one King upon his breach of a contract establish'd in Parliament and the setting up an other by an election And it is observable that the Act 1º E. 4. which confirms several judicial and other Acts of such as it calls Kings only in fact says other than by Authority of any Parliament holden in their times plainly admitting that Authority to be sufficient in it self H. 6. coming again into Power because of a Possession with such a consent of the People as made E. 4. King was formally again elected at the Tower and in H. 7 ths time was adjudged to have had his attainder purged by his re-adeption of Power which seems not to have been till he had been re-elected Then H. 6. calls a Parliament where he in his turn attaints the Adherents of E. 4. and as we are to believe himself but the Record of that having been cancelled and the Rolls loss'd it appears not whether it was for any Act committed before H. 6 ths re-adeption of Power The Tide again turning for E. 4. all the Acts of that Parliament are reversed and declared or made void from the time that he had been declared he was held to have continued the Possession of the Regal Dignity tho' with-held from the exercice of the Power and therefore H. 6. from the first admission of E. 4. to the Crown was accounted no King and his Parliament to be but a pretenced Parliament E. 4 ths usage of H. 6. was repaid to his Sons by their Uncle R. 3. some will have it that he made them away as indeed is intimated in the Act attainting R. 3. but 't is certain that they were bastardized in a Convention whose Acts were by Parliament after Richard was admitted King declared for truth and not to be doubted and there are Authorities to induce the Belief that Edward's Sons were really Bastards by reason of the Father's pre-contract however the Convention declared that they were not fit to Reign because they were Infants and their Mother ignoble and married clandestinely without the knowing and assent of the Lords George Duke of Clarence the next Brother to E. 4. having been attainted in a Parliament of E. 4. they having singular confidence in Richard's particular merit have chosen in all that in them is and by that their certain writing choose him their King and Sovereign Lord to whom they know of certain it appertaineth of Inheritance to be chosen And observing that tho' the Learned in the Laws and Customs know his Title to be good the most part of the People is not sufficiently learned in the Laws and Customs they declare that the Court of Parliament is of such Authority and the People of this Land of such a disposition as experience teacheth that Manifestation and Declaration of any Truth or Right made by the three States of the Realm assembled in Parliament and by Authority of the same maketh before all other things most faith and certain quieting of mens minds and removing the occasion of doubts and seditious language Therefore by the Authority of that Parliament it is pronounced and declared that their Sovereign Lord the King was and is the very undoubted King as well by right of Consanguinity and Inheritance as by lawful Election Consecration and Coronation And they Enact Establish Pronounce Decree and Declare Edward the King 's eldest Son Heir Apparent to him and his Heirs of his Body Any Man who compares that Act at large with the former Presidents must see that it was penn'd with great Wisdom and regard to the Constitution of the Monarchy And tho' out of an usual complement to the prevailing side R. 3. has generally been represented as a Monster in Person and Nature the learned Buck has made it doubtful which was the most deserving in all things R. 3. or H. 7. Certain it is that tho' the Crown had by Authority of Parliament been settled in remainder after H. 6. upon Duke Richard and his Heirs and that Duke's Grand-daughter was alive and marriageable in the Reign of R. 3. her suppos'd Right gave him no disturbance and his Possession was very quiet till he disobliged the Duke of Bucks who was the great Instrument in setting him up by rejecting his Claim to be High-Constable of England which was an Authority dangerous to be trusted in the hands of so popular a Man nor could the Duke and his Faction expect to succeed in their conspiracy without the support of French Forces and accordingly applied themselves to Henry Earl of Richmond afterwards H. 7. with whom the Duke of Brittany had for some years kept even E. 4. in awe Henry was glad of the opportunity and to strengthen his Interest agrees with some of his Party to marry the Daughter of E. 4. but was far from making any claim in her right It is very probable that one of E. 4 ths Sons was then alive be that as it will as appears by the Statutes 1 H. 7. cited above his Parliament held that he landed with Title and R. 3. being deserted and slain in the Field of Battle that opposition to Henry was by Authority of Parliament adjudged Treason against the Sovereign Lord of this Land and H. 7 th was held to have recovered his right After this when H. 7. meets his first Parliament he with his own Mouth tells the Commons in full Parliament that his accession to the Right and Crown of England was as well by just Title of Inheritance as by God's true judgment in giving him the victory over his enemy in the Field In which bating the Settlement in the time of the Confessor H. 7. claim'd as W. 1. did by the Inheritance of consanguinity and that Success which gave him the preference before others of the same Blood especially since that enemy whom he subdued was held to be an Usurper This 't is evident that he was accounted before H. 7. Landed But if
King of Denmark Landing with an additional Force this with Ethelred's sloath and unacceptableness to his own People drove him to an Abdication Upon Swane's death the English invited back the Abdicated King on condition he would govern better than he had done for which his Son Edward undertook Ethelred returning as an Author who lived about the time has it a contract was established between the King and his People and firm friendship and it was enacted with an Oath that there never more should be a Danish King in England After this Cnute the Son of Swane laid claim to the Crown of England as a Saxon as well as Dane deriving from King Ethelbald who doubtless was that Son of an elder Brother of King Alfred who oppos'd Edward the elder Notwithstanding this tho' the Danes elected Cnute the English adhered to Ethelred Upon whose death they chose his Son Edmund Ironside who as appears by the stream of ancient Authorities was a Bastard Upon i Edmund's death Cnute was Crown'd King of England by the Election of all and according to Florence of Woster he swore to be Faithful Lord as the People did to be Leige Subjects At Cnute's death his two Sons Harold who was a Bastard or rather Spurious and Hardecnute his legitimate Son by Ethelred's Widow were by Leofric and all the Nobility on the North-side of the River Thomes elected Kings over all England as partners in Power and co-heirs But Duke Godwin and other Noblemen in West-Saxony opposed and prevailed It appears by an Author who wrote in the Confessor's Time and whose words are transcrib'd by several that they prevailed for the total rejection of Hardecnute because he made not sufficient haste to take the Administration upon him Therefore Harold who however would have been King of Mercia and the Northumbrian Kingdom was elected over all England by the Princes and all the People or as an other of like antiquity has it is elected King by all the People of England Upon Harold's death and not before Hardecnute was received in what manner appears by the then standing Ritual for the Coronation of Kings But Emmae's Sons by Ethelred Alured and Edw. as Malms observes were despised almost by all rather through the remembrance of their Fathers sloathfulness than by reason of the Power of the Danes Yet they two without preference of one before the other were accounted Heirs of the Kingdom and accordingly Cnute while he was in fear of the then Duke of Normandy offer'd half his Kingdom to Edward and his Brother Alured Upon Hardecnute's death Earl Godwin was chosen Administrator or Protector of the Kingdom during the vacancy and till a fit Person should be elected King Godwin summons a Convention of the States where he nominated Ethelred's only surviving Son by Emma whom the Saxons call'd Elgive After some debates all consented to the election of Edward He being so elected was in the sense of those times Heir of the Kingdom to the last Possessor Hardecnute his Brother by the half blood And yet it is observable that according to a Charter of Edward's pass'd in Parliament at the latter end of his Reign the Hereditary Succession was hazarded by the Danes that is according to what I before observ'd the Anglo-Saxon regnant branch of the Royal Family was kept back and was likely never to have been restored 'T is evident that it was not for Edward to carry this Point farther for besides the Danish Royal Family claiming from King Ethelbald and Fretheric Abbot of St. Albans in his time coming from the ancient Saxons and Danes and lineally descended from King Cnute there was the Historian Ethelwerd or his immediate Ancestor of the Family of King Ethered and in all probability there were several descendants either from Ethelstan Ethelwolfs elder Brother or from his Sons Ethelbald and Ethelbert What was the known Law in the Confessor's time both as to the Succession and the continuing King besides the former Evidences appears beyond contradiction from that King's Laws according to which 1. The Monarchy was founded in election which explains in what Sense a King is there taken to be Constituted 2. If the King do not answer the end for which he had been Constituted not so much as the name of King shall continue in him 3. It receives as a Rule in all Kingdoms and particularly here the Judgment of Pope Zachary encouraging the Franks to depose their King Childeric With Edward the Confessor end the Saxon and Danish Successions of Kings Harold the Son of Earl Godwin as I shall shew never was King nor reputed King by any but his own Party Here I may observe 1. That Dr. Brady is mightily mistaken in his assertion that the Saxons did in their subjection owning of and submission to their Princs acknowledge both proximity of blood and nomination of their Princes often both sometimes only one of them but never followed any other rule 2. The chief rule of Succession upon the death or disability of any King was a proper election of a worthy Person of the Regnant Branch of the Royal Family 3. Dr. Bradie's notion that Elegerunt signifies no more than recognoverunt they acknowledged owned submitted unto him as their King is by no means true the recognition being manifestly subsequent to or in consequence of the election nor is any thing more plain than that the States did from the beginning of the Monarchy downwards rightfully declare an Heir to the Kingdom and then acknowledge his Right tho' neither next upon the Royal Line nor representing the next nor yet nominated by the Predecessor And indeed till a rare and noted instance in the case of Hen. 5. on whom the Crown had before been entailed in Parliament no Prince was known to have been formally recogniz'd till he had taken the Coronation Oath 4 If according to any good authority of the Saxon or Danish Times it should seem that any man came to the Crown by the Gift of his Predecessor it must have been made with such solemnity as was requisite even for the granting of Lands As that of Egbert's above-mentioned or Athelstan's in an Assembly of the Bishops Abbots Dukes or Earls and the Procurators or Representatives of the Country or an other before the Plebs or Commons or Edgar's in the open air with the privity of the Great or Wisemen of his whole Kingdom In the Confessor's life time there were three Competitors for the Crown Atheling's Father and Son to Edmund Ironside Harold who was High Steward of England and the most powerful of any Man tho' not his Fathers eldest Son and William Duke of Normandy Grand Nephew to Emma who had been Crown'd Queen of England nor as has appear'd above was William under any
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
says they assembled in order to exalt Henry the King 's eldest Son to be King of England He took the Coronation Oath more han once and at one of his Coronations had the Confessor's Sword carried before him by the Earl of Chester one of the Earls Palatine of England for a sign that that Sword was not to be born in vain He having trod in his Father's steps the States were likely to have made good their solemn denunciation 17th of his Reign of deposing him in a Common-Council of the whole Kingdom and creating a new King which as appears by Bracton a very learned Judge in that Reign was no more than the then known Law of the Kingdom Various were the events of a long Civil War in which at last the death of the great Darling of the Church and People the then Hereditary High Steward of England and the bravery of Henry's Son gave him the victory which they who were on his side and his own experience of the consequence of his former Counsels kept withing some bounds of moderation Henry to secure the Succession to his eldest Son Edward had before that success caused many and particularly the Citizens of London to swear to his Son as Successor And after that it should seem that a Parliament had made a Settlement of the Crown For in the 55th of his Reign a Writ was sent to London the execution of which was return'd into the Parliament that year at Winchester and 't is probable the like had been throughout England in pursuance of which Writ the Mayor Barons Citizens and University of the Commons swore Allegiance to the King after him to his eldest Son Edward then to his Son John after that to the right Heirs of the Crown of England which not being to the Heirs of either of those Persons plainly left the Inheritance as I have shewn it was from the beginning Upon the Father's death the Clergy and Laity flock'd to Westminster where they declared or received for King Edward then beyond-sea in the Holy War so called Soon after this as I take it a great Convention of the States was holden in his name there a Chancellor was chosen and other Provisions made for the Peace of the Kingdom in Edward's absence the Writ which they issued out requiring the Subjects in general to swear Allegiance to E. 1. says the Government was devolved upon him by Hereditary Succession and the Will of the Nobility and the Fidelity performed or Allegiance sworn to him Agreeably to which Walsingham says they recognized Edward their Leige Lord and ordained him Successor of his Father's honour Tho' he was a very gallant Prince yet having taken ill advice being to cross the Seas he upon a Pedestal at Westminster-Hall Gate with the Archbishop of Canturbury and the Earl of Warwick by his side publickly ask'd forgiveness of his People entreated 'em to receive him again at his return and if he died to Crown his Son King which they who were then assembled consented to How much it was then known to concern a King to keep to his part of the Contract as he would have his People continue bound appears by two great Authorities in our Law of that time Fleta who as to this matter transcribes Bracton almost verbatim and the Mirrour of Justices which speaks of the first Institution of Kings among us by Election for what End they were Elected and what they were to expect if they answered not that End E. 2. as Walsingham informs us succeeded not so much by Hereditary Right as by the unanimous Assent of the Nobility and Great Men. He was for misgovernment formally depos'd or Abdicated from the Regal Dignity as Walsingham has it and his Son Edward was Substituted or Elected in his stead The Son indeed tho he had headed Forces against his Father seem'd to scruple accepting the Crown without his Fathers consent And ex post Facto after Edw. 2d had been deposed and his Son Elected with a threat that if he refused they would Elect sombody else the Father took some comfort at the Election of his Son and as much as in him lay consented The Son it must be own'd in a Writ cited by Dr. Brady says his Father amoved himself by the assent of the Prelates Earls Barons and other Nobles and also of the Commonalâ—y of the whole Kingdom Which being onely in Writs Issued out of the Chancery can be of no Force to limit or explain that Act of the States And was but a civility or complement from the Son to the Father What the States judged in the matter will be very plain from the following account in a contemporary Author King Edward remaining in Custody at Kenelworth a General Council of the whole Clergy and People of England was Summon'd viz. of every City and every County and Borough a certain number of Persons to Treat and Ordain with the Great Men of the State of the King and Kingdom In which Council at the cry of the whole People unanimously persevering in that cry that King Edward II. should be Deposed from the Throme of the Kingdom becuase from the beginning of his Reign to this day he had misbehaved himself in his Government had Ruled his People wickedly had dissipated Lands Castles and other things belonging to the Crown had by perverse Judgment unjustly adjudged Noblemen to Death had advanced the Ignoble and had done many things contrary to the Oath taken at his Coronation Walter Archbishop of Canterbury pronouncing Articles of this kind by assent and consent of all King Edward 2. is wholly deposed and Edward his eldest Son advanced to be King of England And it is Ordained that from thenceforth he should not be called King but Edward of Karnarvan the King's Father And immediately Messengers were sent from the Council to the said Edward the King's Father to notifie to him what had been done and to read to him the Articles upon which he had been deposed He answer'd he was detained in custody nor could contradict their Ordinances but said he would bear all patiently And it is observable that a Statute of the Kingdom 1 E. 3. justifies the taking Arms against E. 2. while he was in Possession of the Throne and indemnifies all Persons for the pursuit of the said King and taking and withholding his body E. 3. who knew that himself came in by and election of the States being aware that if he should die before any Provision were made about the Succession the Controversie concerning the Right of Proximity and that of Representation would be revived between his eldest surviving Son and Grandson by the eldest who died in his life time obtained an Act of Parliament whereby Richard his Grandson by his eldest and best beloved Son was declared or made very