of this Law And by virtue of this extravagant Power in case his three Children died without Issue as afterwards they did he bequeathed the Crown to the House of Suffolk being the younger House and in defiance of all Laws and Brotherly Affection disinherited and totally excluded the elder House of Scotland And therefore all those Niceties and Designs considered it is most plain King Henry was constrain'd to pray in Aid of the People to give some Colour at leastwise to all the Contradictions and Impossiblities And therefore I conceive that no Man of common Reason or that bears true Faith and Allegiance to His Majesty that now is or his Crown will draw Arguments from the three Statutes above mentioned to prove that the Parliament of England may exclude the next Heir of the Blood So that upon the whole matter of this first Objection it appears most plainly That the Princes which submitted and stoop'd to these tumultuous and Statute-Kingships either it was because they invaded and usurp'd the Crown contrary to the Laws Divine Natural and Humane or to give a colour and varnish to Contradictions and Impossibilities and private Intrigues and Designs And yet after all these popular Establishments though munited and fenc'd about with the highest Penalties and Oaths that mortal Men could devise yet could not in reality transfer the Right from the next Heir of the Blood that being a Dowry as I have said which God reserves to his own immediate Donation and hath plac'd above the reach of a mortal Arm. For though an Act of Parliament shall command me to say That an Ethiopian is White and that under the highest Oaths and Penalties or That an Ape is a Man yet notwithstanding the Ethiöpian can never in truth change his Skin or Complexion nor the Ape his Species and commence a Creature rational Ay but saith another Why may not the Crown be transfer'd from the next Heir of the Blood by Parliament as well as all other Inheritances and Possessions whatsoever in the Kingdom may from the Right Heir of the Subject I Answer there is no similitude between the Cases For 1. Private Men derive their Inheritances from their Ancestors but the next Heir of the Blood Royal derives not the Crown from his Predecessor or the People but immediately from God as I have prov'd at large in this Discourse And no Person or Community can give away or transfer a Thing which they never had vested in them either in Possession or so much as Right Secondly The Law of the Crown which yet is a principal part of the Common Law of England differs from the Law of the Subject in Point of Descents and therefore that may be Law in case of the Crown which is not in case of thē Subject of which I shall here give some Instances A Private Man being an Alien Born cannot by our Law inherit Land here But the Crown shall descend upon the next Heir of the Blood though an Alien as it happened many years ago in the case of King Henry the second who was an Alien born and begot of a Father who was also an Alien And the like happened not long since in the case of King James of ever blessed Memory If a King of England have three Daughters and dye the Crown shall descend upon the Eldest alone but in case of a Subject the Inheritance shall go to all three Daughters Co. 1. Inst 165. a 25 H. 8. cap. 22. circa medium If a Subject marry an Heiress and hath Issue by her a Son and the Wife dye the Husband shall enjoy the Wive's Lands during his Life but if a Man marry a Queen Regnant of England and hath Issue by her a Son or a Daughter and then she dyes here the Crown descends immediately upon the Issue which becomes King or Queen presently though the Father be alive as ought to have been in the Case of King Henry the Seventh and his Son Prince Henry as I have before observed and would have been in the Case of Philip that married Queen Mary if she had dyed having Issue Ellesmere's Postnati 36. Lord Bacon's H. 7. fol. 4. 121 217 231. So the half Blood is no Impediment to the Descent of the Lands of the Crown as it happened in the Cases of Edward the Sixth and the two Queens Mary and Elizabeth and yet in the Cases of Subjects it is clearly otherwise Plowd Com. 245. a. Co. 7. Rep. 12. v. Postnati Co. Inst 15. v. So likewise if the Right Heir of the Blood or the Father or Mother of the Right Heir from whom the Crown descends are attainted of High Treason by Parliament these Attainders yet are no Obstructions to the Descent of the Crown as it happened in the Cases of our King Edward the Fourth and his Father Richard Plantagenet Duke of York who were both attainted of High Treason by Act of Parliament As also in the Case of King James as it is related to his Mother Mary Queen of Scots who was attainted of High Treason and executed and yet the Commissioners and Judges that gave Sentence upon her set forth a public Declaration That the Attainder of the Mother did not at all derogate from the Right of her Son to the Crown of England But all Men know 't is otherwise in the Case of Subjects whose Descents are obstructed by the Attainders of their Ancestors I could be infinite in Cases of this Nature but by these few Instances wherein the Law for ought I know is no more alterable by Parliament than the Succession it doth plainly appear That there is no small difference in Point of Law between the Descents of the Crown and Private Inheritances And therefore though an Inheritance may thus be given away from a Subject yet it doth not in any wise follow that the Crown may be dispos'd from the next Heir The third and last Objection is founded upon the Statute of 13 o Eliz. cap. 1. wherein it is enacted That if any Person shall affirm That the Parliament of England hath not full Power to bind and govern the Crown in Point of Succession and Descent that such Person during the Queen's life shall be guilty of High Treason and after her Death shall forfeit his Goods and Chattels c. I Answer First it is to be observed That this Law was made in the time of a Queen whose Title to the Crown depended upon Statute-Law as appears by the very Act recognizing her Title to the Crown and this Act of 13 o was made in affirmance and vindication of such Title to the Crown by Statute and this is plain from the Body of the same Act wherein it is expresly Enacted That if any Person shall affirm That any Statute for recognizing the Right of the Crown of England to be lawful in the Royal Person of the said Queen is not or ought not to be for ever of sufficient force to bind all
to be legitimated and made inheritable to all Preheminences Honours Dignities c. Exceptâ Regali Dignitate for so are the very words of the Record Excepting the Regal Dignity Besides Margaret Countess of Richmond and Derby the Mother of King Henry the Seventh through whom he must necessarily derive what ever Title he could pretend to died not till 1 H. 8. So then here are four plain Legal Impediments in the Title of King Henry the Seventh 1. He derived from a Bastard Stem or Slip. 2. Though the said Children by Katharine Swinford were legitimated by Parliament yet the Dignity Regal was excepted by the same Parliament and they remained illegitimate as to that 3. His Mother out-liv'd him And 4. which was worst of all the onely true and legal Title remained in Elizabeth eldest Daughter to King Edward the Fourth who descended lineally from Lionel Duke of Clarence John's elder Brother with which Elizabeth the said Henry afterwards married as I have observ'd And therefore this Prince having so many palpable Flaws and Impediments in his Title and well knowing that the Laws Divine Natural and Humane were all against him no man I suppose will wonder that he made his Courtship and Addresses to the People for their favour and good will and was so sollicitous of an Establishment by them And as the most considering and thinking men of that Age had no great opinion of this Prince's Parliamentary Title so it is plain that this King himself laid no great stress upon it which is the more remarkable because all our Historians do with one voice proclaim him one of the wisest and most sagacious Princes that ever sway'd the Scepter in this Realm Now that he himself relied not upon this Statute-Kingship is most plain from two Acts of Parliament which I that produce First by that very Statute Law by which the Crown was establish'd upon him for as my Lord Bacon hath observ'd he did not press to have that Act penn'd by way of Declaration or Recognition of Right as on the other side he avoided to have it by new Law or Ordinance but chose rather a kind of middle way by way of Establishment and that under covert and indifferent words viz. That the Inheritance of the Crown should rest remain and abide in the King c. Which Words might equally be applied That the Crown should continue to him but whether as having former right to it which was doubtful or having it then in fact and possession which no man denied was left fair to Interpretation every way Secondly from that Act of Parliament which he procur'd to be made in the 11th of his Reign in which it was ordain'd That no person that shall serve the King for the time being for so are the very words in his Wars shall therefore be attainted or impeach'd in his Person or Estate what fortune soever fall by chance in Battel against the mind and will of the same King for the time being This Law saith the Lord Chancellour Bacon who comments very handsomly upon it had in it parts of prudent and deep foresight for it took away occasion for the people to busie themselves in prying into the King's Title to the Crown for howsoever that fell out to be good or bad the People's Safety was already provided for And the same Author in the close of this King's Life reckons his opportune and seasonable Death among his greatest Felicities which withdrew him from any future blow of Fortune which certainly continues he in regard of the Title of his Son being then 18 years of Age and a bold Prince had not been impossible to have come upon him Because upon the decease of King Henry's Queen in whom as I have often said the true Title lodged and who died some years before the Crown immediately by the Law of England descended upon Prince Henry for there can be no Tenancy by the Courtesie of the Crown So then in the Opinion of the said Lord Chancellour also this King's Title by Statute was of small account in respect of that of his Son by Common Law By all which it plainly appears that this King had no legal or inherent Right of his own to the Crown and therefore full contrary to his own inclination he was constrain'd to stoop and truckle under an Establishment of the People which notwithstanding was invalid and null in Law as I have proved For King Henry the Eighth though no man ever doubted but that he was King de jure as bearing united in his own individual Person his Father's pretended Title of Lancaster and his Mother's legal and undoubted one of York yet there happened to fall out in this Prince's Case certain anomolous and odd Circumstances and Niceties and secret Intrigues which necessitated him contrary to his better knowledge and the native greatness of his Soul to allow his People a share or copartnership as I may say in the ordering the Succession of the Crown that so the matter might go as far as Human Power could carry it And therefore first by the Statute of 25 he confirms his Divorce from Katharine and bastardizeth Mary her Daughter and on the other hand corroborates his Marriage with Anne and legitimates Elizabeth her Daughter and makes her inheritable to the Crown The Legitimation or Bastardy of these two Daughters depending much upon the validity or weakness of the Papal Dispensation in the first Marriage and this point being a Vexata Quaestio in those days he had hoped to have cut this Gordian Knot which he could not untie with the Sword and pretended Omnipotency of a Parliament And then after he had done this he forthwith marries Jane Seymour and by the Statute of the 28 attaints his Wife Anne and bastardizeth Elizabeth her Daughter and so then according to the Poet Qui color albus erat nunc est contrarius albo And then breaking down the Boundaries of all Law and common Reason and with a prodigious wildness and extravagancy he procures it to be Enacted That in case he had no Issue by Jane he might dispose of the Crown to whatsoever Person he did in his own discretion think fit And the whole Nation was oblig'd by the Sanctimony of an Oath to the defence of this Law This he did that he might advance to the Throne his Natural Son Henry Fitz Roy Duke of Richmond whom he loved most passionately who yet died not long after and so to exclude for ever his Sister Margaret of Scotland and all her Descendents Then by the Statute of 35 he entails the Crown upon himself Prince Edward and the said Mary and Elizabeth and in case they happened to have no Issues of their Bodies then he was again impower'd by the same Act of Parliament to dispose of the Crown to what person or persons soever he pleased by his last Will and Testament And the whole Narion was likewise sworn to the Maintainance
Arthur of Britain who was the Son of Geossry John's Eldest Brother as all the Histories of that time do observe and lament And therefore wanting that Title which God Nature and the immutable Customs of this Realm give to the Right Heir he was constrain'd to pray in Aid of the People and to patch up a Title from them by Election The Story is this as I have extracted it out of Matthew Paris a learned Monk who lived in that time and who became afterwards Chronologer Royal to King Henry the third Son of the said King John John saith the Monk upon the Death of his Brother King Richard the first was advanced to the Throne by the favour and help of the great Ministers of State and at his Coronation in the presence of the Clergy Nobility and Populace Hubert Arch-bishop of Canterbury and Chancellor of England a Man of profound Subtilty and Reach tells them all in a very fine Harangue That no Man whatsoever was to succeed in the Kingdom here upon any previous Reason unless he were freely Elected by the universality of the People with consideration had of his Moralities and other personal Vertues after the Example of Saul's Election and then he added That John was a well qualified Person in that kind and that therefore they ought to choose him for their King But when the said Hubert was afterwards demanded why in so great an Assembly he durst broach so notorious a falshood viz. That the Monarchy of England was Elective O saith he this I did out of certain Revelations and Prophesies that I have received That John will at some time or other endanger the Realm and bring all into confusion Et ne haberet liberas habenas hoc faciendi ipsum Electione non Successione haereditaria eligi debere affirmavi for so are the Historian's Words And that I might curb him with this Bridle from effecting these things I did pronounce him admitted to the Crown by Election not by hereditary Succession So then we see here that the pronouncing the Monarchy of England to be Elective was done only by way of Umbrage and Dissimulation and to serve a turn at a certain Crisis and juncture of time And the truth is the People did accordingly afterwards check this unfortunate King with the same Bridle and reduc'd him to a very low condition and they chose Lewis the French King's Son their King And this was the consequence of King John's Election by the People and Invasion of the Right of his Nephew which Tenure was good only so long as he could maintain it with his Sword and so likewise is the Tenure of Pyrats and Robbers when they have ravish'd the Properties of other Men. Secondly For King Henry the fourth he was likewise King de facto only and not de Jure for he laid violent hands upon the Crown by the treasonable and barbarous Deposition and Murder of his natural Lord and Soveraign King Richard the second after whose Death without Issue the legal Title remain'd in the House of Clarence being the elder Line and so King Henry the fourth was constrain'd to truckle under an Election by the People and their Establishment in Parliament which Establishment was ipso facto void and null in Law against the House of York which married afterwards with the said House of Clarence as I have evidently proved by the Roll of Parliament of 39 o of Henry the sixth recited by me at large here in the beginning of this Discourse And indeed this very King Henry the fourth well knowing how much a Title to the Crown by the Common Law and Inherent Birth-right exceeded a Title by Statute and Suffrage of the People made his solemn Claim to the Crown in Parliament by Descent from King Henry the third which though it was the meerest figment and pretence that ever was as all the World knows yet he thought he might with more security rely upon that though fictitious than popular Establishment though real The Story is considerable and therefore I shall extract my Account thereof from the Roll of Parliament of that time Forthwith saith the Record upon vacancy of the Realm by Deposition of King Richard the second Henry Duke of Lancaster rising from his Seat and standing up so that he might be well seen by the People and humbly crossing his Forehead and Breast calling upon our Saviour's Cross he claim'd and challeng'd the Realm of England thus void in his Mother-Tongue under this very form of Words In the Name of Fader Sonne and Holy Gost I Henry of Lancastre challenge this Rewme of Ynglonde and the Crown with all the Membres and Appurtenances al 's I that am descendit be Ryght Lyne of the Blood comynge fro the gude Lord King Henry therde and thorghe that right that God of his Grace hath sent me with helpe of my Kin and of my frends to recover it and which Rewme was in poynt to be ondone for defaut of governance and un endoying of the gude Laws So we see here that the Title he laid stress upon was Al 's descendit be right line of the bloud comynge fro the gude Lord King Henry Therde he meant from Edmund second Son of King Henry the Third from whom the same Henry the Fourth by the Mother's side lineally derived and who would fain have fac'd down the World that the said Edmund was elder Brother to King Edward the First contrary to his own knowledge and that of all Mankind in that Age and the express Testimony of Matthew Paris who was Chronologer Royal to the said King Henry the Third at the time of the Birth of the said Edmund and Polydore Virgil and all our Historians Thirdly For King Henry the Seventh he was also King de facto but not de jure the legal Title abiding at that time in Elizabeth the eldest Daughter of King Edward the Fourth with which Elizabeth the same King Henry did afterwards marry Now because the Claim of the same King Henry the Seventh to the Crown is not generally understood and it will conduce much to my present purpose to clear that matter I shall crave leave here briefly to open it It is to be known then that King Henry the Seventh laid claim to the Crown as descending in a right line from John Duke of Somerset eldest Son to John of Gaunt Duke of Lancaster by his third Wife Katharine Swinford by which Katharine the same John of Gaunt had Issue the said Duke of Somerset and other Children before Marriage with her and during his Marriage with his second Wife the Lady Constance Daughter and Heir of Peter King of Castile So the said Children were plainly all Bastards by our Law and by consequence not capable of inheriting any thing After the death of his second Wife John for the passionate affection which he bare to his Children by Katharine married her and some time after procured them by Act of Parliament