Liege Subjects And the Fidelity which the Subject owes to the Crown Natural Obedience And this more clearly appears in Indictments of Treason which of all other Law Process are pen'd with the greatest Niceness and Certainty And therefore in the Indictment of the Lord Dacre upon the Northern Rebellion 26 H. 8. it is said Predictus Dominus Dacre debitum fidei Ligeantiae suae quod prefat Domino Regi Naturaliter de jure impendere debet minime curans c. The said Lord Dacre not regarding the Faith which he did Naturally and of Right owe to the King c. And Reginald Poole a Cardinal of the Church of Rome was Indicted 30 o H. 8. for committing Treason contra Dominum Regem supremum Naturalem Dominum suum Against the Lord the King his supreme and Natural Lord. And the constant form of the Indictments against the Persons lately executed for the Popish Plot is That they as false Traitors against the most Illustrious most Serene and most Excellent Prince Charles the Second c. their Supreme and Natural Lord the cordial Love and natural Obedience which faithful Subjects should and of right ought to bear to our said Soveraign Lord the King wholly withdrawing did compass c. And therefore as the Common Law is more worthy than the Statute so the Law of Nature is more worthy than both So then no Human Power can hinder the Descent upon the Right Heir of the Crown The Descent makes the King Allegiance is due to the King by the Law of Nature the Law of Nature cannot be abrogated by Human Power ergo The right Heir of the Blood cannot be excluded by Parliament which is a Human Power Secondly It is evermore a certain Vestigue or Footstep of a Law founded in Nature when a Thing displac'd is seldom or never in a State of Rest until it be compos'd again in its own Native Centre and Repository For though all human and written Laws may be worn out by Desuetude and tacit Consent yet the Institutions of Nature will never be abolish'd by the longest tracts and courses of Time but will always retain an Animum revertendi and will certainly at length attain it And of this kind is the Law of Succession to the Crown by the right Heir For we find in the Stories of all Nations as well Barbarous as Civil that during Usurpations and Invasions upon the Crown though countenanced even by public Establishments and Consent of the People that those States notwithstanding have always continued under Convulsion and Disease like a Magnetic Needle that never ceaseth to tremble and trepidate 'till it have found out its beloved North-Pole And in such Case it hath constantly far'd with those Bodies Politic as with a Body Natural upon Dislocation of a principal Bone they have breathed it may be and moved a little but still under Languors and Anguish and Feavorish Habits and Dispositions and never well 'till the Bone was set again and reduced to its right place I will rather choose to extract some short Instances of this kind out of the Memoirs of our own than foreign Nations as being Argumentum ad Hominem And shall for brevity ascend no higher than the Norman Conquest And the same Instances shall be of Usurpations upon the Crown contenanc'd by the Public Sanctions of this State The second William and first Henry usurp'd the Crown and thereupon this Realm remain'd constantly under inquietude and commotion until the Death of Robert their elder Brother and his Son William without Issue whereby the Right of the Crown centred in the said Henry The Usurpation of Stephen upon Maud the Empress Daughter and Heir of the said Henry was accompanied with Tragical Convulsions of this Nation which never ceased till the Restauration of the right Heir viz. Henry the second Son of the said Maud in which Henry the Saxon Bloud was likewise restor'd his Grandmother being next Heir of the Bloud to Edgar Atheling Upon the Disinherison of the House of York by that of Lancaster this State sustain'd a Convulsion not to be parallell'd in all the Stories of the World It is infinite to recount the Laniages the Butcheries the Rapines that were committed here There were fought in this Island during this Tempest of War as a modern Author hath observed 17 pitch'd Battels and no less than 8 Kings and Princes of the Bloud 40 Dukes Marquesses and Earls besides Barons and Gentlemen innumerable and 200000 of the Common People slaughter'd and destroy'd And though this Combustion continued 60 years for so long it was from the Usurpation of Henry the Fourth to the Expulsion of his Grandson Henry the Sixth yet the Body Politic enjoyed little ease till it had purged out the Usurpers like a Body Natural that having received into the Stomach matter inimical and contrariant to Nature is never at quiet till it have work'd out the same noxious and malignant matter by all the Passages of Evacuation though to the manifest hazard or destruction of the Man himself The Usurpation of Richard the Third determined in his own death and the Introduction of the right Heir some time after That of Jane Grey of the House of Suffolk was but an Offer of Usurpation as being a Quotidian Ague that lasted but nine days which ended upon the Restitution of Queen Mary Lastly it 's a matter of fresh and bleeding sentiment and experience what Agonies and Throws the English Nation sustained after that fatal and impious stroke given to King Charles the First of ever Glorious Memory Nature is wanting in adequate Metaphors and Similitudes to express so great a Calamity This State was like the Demoniac in the Gospel she was torn worried and shak'd together and of this there was no intermission untill the evil spirit was dispossessed and His Gracious Majesty that now is whom God long preserve restor'd to that Crown which God and Nature and the immutable Customs of this Nation had given him So then it doth most evidently appear by these Instances that the Succession of the Crown to the next of Bloud is a Law eternal and wrote with the immediate hand of God and Nature And that although Nature may for some time be repell'd and kept off with the Forks and Instruments of humane violence that yet it will sooner or later ever more recur and return with the greater swing and vigour And that therefore a Dominion obtain'd by Usurpation is like a vast and ponderous Globe of Iron supported in the Air by main strength of Arms which upon removal or withdrawing of the same force by fatigue or imbecillity of the Bearers will at length certainly attain its Centre of Gravity and with the fall crush and confound the Supporters And where ever this eternal Law and Rule of Nature hath been impeached and violated that hath evermore been done by the immediate and most visible act and finger of the Divinity it self who is King of Kings by whom they reign
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
contrariant to the Laws of God and Nature are ipso facto null and void So then I am here to prove two Things First That the Succession to the Crown is inseparably annexed to proximity of Blood by the Laws of God and Nature Secondly That Statute-Laws contrariant to those Laws are null and void That the Succession of the Crown by the Laws of God is inseparably annexed to proximity of Blood appears plainly by that Statute-Law or Statute of Judgment as it is there call'd which God himself with his own mouth pronounced for the ordering the Descent of Honors and Possessions Numb chap. 27. which are there by his immediate direction to be conferr'd by Birth-right and Propinquity of Blood and not by the Election or Discretion either of Moses their Supreme Magistrate or the Community of the People a part or both in conjunction And there Verses 9 and 10 it is expresly enjoyn'd by the same Divine Authority That if a Man have no Son or Daughter his Inheritance shall descend upon his Brother The preference likewise and prerogative of Primogeniture in point of Dignities and Possessions is of the same Divine Institution as appeareth in several places of the Holy Scriptures As where God said to Cain of his younger Brother Abel His desires shall be subject unto thee and thou shalt rule over him Again where he forbiddeth the Father to disinherit the First-born of his double Portion because by right of Birth it is due unto him And lastly where he maketh choice of the First-born to be sanctifi'd and consecrated to himself Consonant hereunto are the Suffrages of the Fathers and Doctors of the Civil or Imperial Law St. Hicrom writeth That a Kingdom is due unto the First-born St. Chrysostome saith The First-born is to be esteemed more Honourable than the rest Bodine the Great French Lawyer tells us That it is not enough that the Kingdom go in Succession but that it descend also upon the eldest issue Male where he is next of the Blood sic enim Ordo non tantùm Naturae Divinae Legis sed etiam omnium ubique Gentium postulat For so saith he not only the Law of God and Nature but also of all Nations doth require And Baldus a famous Doctor of the Civil Law saith semper fuit semper erit c. Always it hath been and always it shall be That the First-born and next of Blood succeedeth in the Kingdom Wherein he is followed with open Cry of all the choice Interpreters both of the Canon and Civil Law as namely Panormitanus Hostiensis Corsetta Alciat and innumerable others Now what hath been said here of Primogeniture in Point of Succession to the Crown is said likewise with equal consequence of proximity of Blood For by the Civil Law if a King have issue five Sons and the First-born die before the Succession fall or if he being possess'd of the Kingdom die without Heirs of his Body his right of Primogeniture devolveth unto the next in Blood and if he dyeth in like manner then unto the third and so likewise to the next in Order And herein Albericus a famous Doctor is most express in Point And Baldus saith That Succession hath reference to the time of Death and respecteth the Priority that is then extant And again He is not said the First-born in Law who dyeth before the Fee openeth but he who at that time is eldest in Life And of the same Opinion is Alciate for as Celsus saith primus is dicitur ante quem nemo sit He is first who hath none before him And herein the Common Law of this Nation accordeth with the Civil Law And therefore the second Son of the King of England after the Death of the First-born is eldest Son within the Statute of 25 Ed. 3. where it is enacted That it shall be high Treason for a Man to compass the Death of the King 's eldest Son and Heir c. So if the first Son dye in the Life time of the King his Father the second Son forthwith becomes Primogenitus or First-born within the Charter of King Edw. 3. for the Dutchy of Cornwal as it was resolved in the case of Prince Charles upon the Death of his elder Brother Prince Henry By which it appeareth that Proximity of Blood is ennobled with all the Prerogatives and Preferences of Primogeniture But leaving this way of arguing the Point to be farther illustrated and pursued by the Church-men and Civilians I shall for the most part derive my own Proofs thereof from the Authority of the Common and Statute-Laws of England from Records of Parliament and other Eruditions of that kind as best sorting with my Person and Profession and a Discourse of this nature First then it is most evident That all the Human Acts and Powers in the World cannot hinder the Descent of the Crown upon the next Heir of the Blood I do agree they may hinder the possession and enjoyment and so they have often done by open Hostilities and Violence but I say they cannot hinder the Descent And the reason is plain because this is a Dowry which the great King of Kings hath reserved to his own immediate Donation and hath plac'd above the reach of a mortal Arm and Mankind can no more hinder or intercept this Descent than it can the Influences of the Stars or the Heavens upon the sublunary World or beat down the Moon And this though perspicuous enough in it self I shall farther prove anon in my last Reason of this Point by irrefragable Authorities of the Common Law of England and in my Answer to the second Objection This being so I shall add That in the very moment of the Descent the Person on whom it descends by the Law of this Nation becomes compleat and absolute King to all intents and purposes And so it was expresly Resolv'd by all the Judges of England 1 o Jacobi Watson and Clarks Case And the same Person being thus compleat and absolute King by the said Descent I do then farther add That the Ligeance and Fidelity of the Subject is due to that person by the immutable Law of Nature And so it was solemnly adjudged by the Lord Chancellor and all the Judges of England in the Exchequer Chamber in the great Case of Calvin 6 Jacobi Coke's 7th Rep. 12. v. 13. a. c. 25. a. And herewith concurs the Principal Secretary or Amanuensis of Nature I mean Aristotle who writes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 By the Law of Nature the Father hath the Rule over his Children and the King over his Subjects And Seneca the Philosopher hath a saying not unlike Natura commenta est Regem Nature saith he did first find out a King And for this Reason it is that our Statute-Laws do so frequently stile the King our Natural Liege Lord and the People Natural
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
and that giveth the Kingdoms of men to whom he will as the holy Scriptures tell us And who being the Creator of Nature can alone when it pleaseth him controul her Methods and Operations as appeareth by the Interruptions of the Succession in the cases of David Solomon Jehu and the like And they that from these and other instances of this nature do fancy they may maintain the Lawfulness of impeaching the Succession of the Crown in the true Line may as well infer that they may lawfully rob and spoil their Neighbours because God commanded the Israelites to spoil the Egyptians In those cases we are bound to the Law but not to the Example I come now to Records of Parliament which shall be three in number First that of the 39 H. 6. wherein the daring Rich Plantagenet D. of York by his Council exhibited to the Lords in full Parliam a Writing containing his Right and Claims to the Crowns of England and France Against which Claim it was objected on the King's part That the same Crowns had been entailed by Act of Parliament upon the King's Grandfather King Henry the Fourth and the Heirs of his Body from whence the same King Henry the Sixth did lineally descend The which Act say the King's Friends there is of Autoritee to defeat eny mannere Title made to eny person for so are the words To which Objection the said Duke of York answereth I shall cite the words of the Record as they are entered up in the old English That if King Henry the Fourth might have obteigned and rejoysed the seyd Corones of England and Fraunce by Title of Enheritaunce Descent or Succession he neither needed nor would have desired or made them to be granted to him in such wise as they be by the seyd Act. The which taketh noo place neither is of any force or effect against him that is right Enheritor of the seyd Corones as it accordeth with God's Laws and all natural Laws saith the Roll. And this Answer of the Duke of York to the King's Title and his said Claim is afterwards by express Act of the same Parliament declar'd and recognized to be good true just lawful and suffisaunt as it is there worded And at the same time for preventing Effusion of Bloud an Accord by the free consent of the said Duke is likewise established That King Henry the Sixth shall during his Life enjoy the Crown and that from thenceforth the Duke of York should be reputed Heir Apparent to the Crown The next Record is that of 1 Ed. 4. wherein after that Parliament hath in a long Pedigree disclos'd the Title of the same King Edward to the Crown as being in a right line descended from Lionel Duke of Clarence third Son to King Edward the Third and upon the death of his Father the above mentioned Richard Plantagenet next Heir of the Bloud Royal they immediately add these very words Knowing also certainly without doubt and ambiguity that by God's Law and Law of Nature he i. e. King Edward the Fourth and none other is and ought to be true rightwys and natural Leige and Soveraigne Lord. And that he was in right from the death of the seyd noble and famous Prince his Father very just King of the same Realm of England So here it is most expresly declared by two Parliaments of different Complexion and Interest and therefore the more remarkable that the Succession of the Crown of England is inseparably annexed to Proximity of Bloud by the Laws of God and Nature And that a Title of this Sublimity and Grandeur is not at all impeachable even by Act of Parliament And besides the said Parliament of 39 H. 6. doth make the same Declaration to the manifest prejudice of the Title of the King in possession who was ordained also by the same Accord to reign over them during his Life and whom for that reason it must be presum'd they would have favour'd if they had found but the least colour so to have done The last Record is the Statute of Recognition made in the first year of King James by the whole Parliament in which among other things They do in most humble and lowly manner I shall all along use the very words of the Act beseech His most Excellent Majesty that as a Memorial to all Posterity it might be publickly declar'd and enacted in the High Court of Parliament That they being bound thereunto by the Laws of God and Man did with unspeakable Joy recognize and acknowledge that immediately upon the Decease of Queen Elizabeth the Imperial Crown of the Realm ofEngland c. did by inherent Birthright and lawful and undoubted Succession descend and come to His most Excellent Majesty as being lineally justly and lawfully next and sole Heir of the Bloud Royal of this Realm And that by the goodness of God Almighty and lawful Right of Descent His Majesty was King of England c. And to this Recognition we do say they most humbly and faithfully submit and oblige our selves and posterities for ever untill the last drop of our bloud be spent And all the Judges of England some time after in the great Case of Calvin in the Exchequer Chamber do resolve That King James his Title to the Crown was founded upon the Law of Nature viz. by inherent Birthright and Descent from the Bloud Royal of this Realm So that this Parliament doth not in the least manner pretend to give any Title to King James or his Posterity by their own Act and Establishment but on the contrary doth expresly recognize that the same King 's Right and Title to the Crown doth accrue to him by the Laws of God and Man onely as the said Judges do by the Law of Nature viz. as next and sole Heir of the Bloud Royal. By all which it doth most manifestly appear That in the Opinion of the three several Parliaments the Succession of the Crown is united to Proximity and Nextness of Blood by the Laws Divine Natural and Human And a threefold Cord of this Sanctimony and Strength is not easily broken to say nothing of the said Resolution of all the Judges of England in the Point which as our Books tell us in matters of Law is of the most sacred Authority next unto the Court of Parliament This being thus made out I come now to prove That Statute-Laws contrariant to the Laws of God and Nature are ipso facto null and void And here I shall first observe That by a profound Polity of our Law the sole Power of expounding Statute-Laws whether relating to Church or State is intrusted and lodged in the Judges of the Common Law as King Charles the first hath noted in his Speech to both Houses upon passing the Bills of 3 d of his Reign And as the Authorities of Law are very clear now the Judges have exerted this constructive Power in expounding Statute-Laws sometimes even null and void
also to a King in Possession though he claim too by Inherent and undoubted Birth-right for the same Reason which the People may think sufficient to exclude the Right Heir may when they please be deem'd valid enough also to depose and eject the lawful Possessor of the Crown Thirdly No Person or Community of Mankind can give away or transfer a thing which they never had in them to give And of this Nature is the Right of Succession to the Crown which is not the Gift of Man but the immediate Dowry of God Nature and the immutable Customs of the State This may be prov'd by the Scriptures Fathers Councils Canon Civil Common and Statute-Laws of which I shall give only a Tast Fourthly The Succession of the Crown to the next Heir of the Bloud is one of the highest most essential and undivided Rights of the Crown and a Pearl of the most transcendent Oriency and Magnitude in the Imperial Diadem of England And the Kings of England themselves their Chancellors Treasurers and all other the great Officers of State their Privy Counsellors and the Judges who are onely to expound all Statutes by which this Right of Succession may be violated are all by provision of the Law solemnly sworn upon the Holy Evangelists to maintain and defend the Rights of the Crown and that they suffer no Disinherison or Damage to accrue thereto And every Member of the Commons House who is to be a Party to the making these Laws of Reprobation by the Statute of Eliz. is obliged before he enter or have voice in the said House to swear that he will to his power defend all Jurisdictions Privileges Preheminences and Authorities united and annexed to the Imperial Crown of this Realm and if he do not he shall be deem'd no Member of that House and shall receive also further Punishment And the Oath at this day to be taken in the Court Leets all over the Kingdom by every Subject above 12 years old is That he will be true and faithful to our Sovereign Lord King Charles the Second and his Heirs c. And it is remarkable that in the Parliament of 42 Ed. 3. the Lords and Commons being demanded their Advice by the King in a matter relating to the Crown did answer with one voice That they could not assent to any thing in Parliament that tended to the Disinherison of the King and his Heirs or the Crown whereunto they were sworn And Sir Edward Coke commenting upon that Record saith That it is Law and Custom of Parliament That no King can alien the Crown from the right Heir though by consent of the Lords and Commons And in another place he saith That King John 's Resignation of the Crown to the Pope was utterly void Because saith he the Royal ' Dignity is an Inherent inseparable to the Royal Bloud of the King descendable to the next of Bloud of the King and cannot be transferr'd to another thus he And which is much more the Parliament of 1 Jacobi do recognize That the Crown of England did descend upon King James by inherent Birthright as being lincally justly and lawfully next and sole Heir of the Bloud Royal. And to this Recognition they do submit themselves and Posterities for ever untill the last drop of their Bloud be spilt And further do beseech his Majesty to accept of the same Recognition as the first fruits of their Loyalty and Faith not only to His Majesty but also and to his Royal Progeny and Posterity forever for so are the words So here this Parliament do oblige themselves and Posteritics which we are to defend and maintain the Succession of the Crown not onely to King James but also to his Royal Progeny and that not in a general way to any of his Bloud but onely to such Person to whom it shall be due by inherent Birthright and Proximity of Bloud as they recognize it was to the same King James So then the Succession of the Crown to the next Heir of the Bloud being a fundamental Right of the Crown and a Right annexed and secured to the same Heir not onely by the Laws Divine Natural and Humane but also as I have clearly proved by the Obligation and Sanctimony of National Lawful Recognitions and Oaths it doth evidently follow That the Parliament of England cannot by Law alter or violate the said Succession contrary to the same National and Legal Recognitions and Oaths Lastly The right Heir of the Crown cannot be barr'd or excluded by Act of Parliament Because the Accession and Descent of the Crown in an instant absolutely purgeth and dischargeth all Obstructions and Incapacities whatsoever created by the same Act of Parliament And the reason given in our Books of Law is Because say they upon Descent of the Crown immediately a Body Politic is superadded to the Body Natural of the King 's and these two Bodies in an instant become Consolidate Consubstantiate and Indivisible in one and the same Royal Person and thereupon the Body Politic which is the more worthy and sublime Nature and that is in no wise subject and obnoxious to the humane Imbecillities of Death Infancy Crime or the like draweth from the Natural Body all Imperfections and Incapacities whatsoever and in a moment endows and ennobles the same Natural Body with the Divine Embellishments and Perfections of the Politic. As it hath been frequently resolved by the Judges of England Plowd Com. 238. v. Lord Barkley's case Et ibid. 2 3. a. v. the case of the Dutchy of Lancaster Coke's 7th Rep. 10. a. Calvin's case And in the same Calvin's case 12. a. a Case argued by the Lord Chancellour and all the Judges of England it is affirmed That the King 's being a Body Politic is founded upon Necessity and the deepest Polities and Wisdom of our Law And why so Because saith that Case expresly Hereby the Attaindors and Disability of him that hath Right to the Crown are avoided lest in the interim there should be an Interregnum which the Law will not suffer This I shall now proceed to make good by two great and impregnable Instances drawn out of our Books of Common Law Histories and Records The first is that of King Henry the Sixth who being discomfited in Battel by King Edward the Fourth was in the first of the same King Edward disabled from all Regiment and attainted of High Treason by Act of Parliament The said King Henry some years afterwards by the assistance of the great Earl of Warwick was restor'd again to the Crown and held a Parliament And the Judges of that time were all of opinion That notwithstanding the Parliament of Edward had disabled Henry from all Government and attainted him of Treason that yet in the same moment that Henry reassumed the Crown the said Parliamentary Incapacities were to all intents discharged and avoided And yet Henry was at first but onely King de facto
the true and legal Title abiding in the House of York See to prove this Brook Parl. pl. 105. 1 H. 7. 4. v. The second Instance is that of King Henry the Seventh This King while he was Earl of Richmond together with many Lords and Commons that took his part were all attainted of High Treason by the Parliament of Richard the Third Afterwards at the Battel of Bosworth the Earl obtain'd the Victory and slew Richard in the Field and on the same day assum'd the Crown upon him and presently afterward summon'd a Parliament On the first day of this Parliament say our Books of Law and Histories all the Judges of England were assembled in the Exchequer Chamber to resolve a very rare and perplex'd Case viz. What should be done about the reversal of the said Parlementary Attaindors of the King and divers Lords and many Knights Citizens and Burgesses that were to sit in Parliament that day And after mature Deliberation had among themselves they all Resolved That for all the Lords and Commons that were attainted they advised them not to sit in Parliament till an Act of Parliament was passed by the other Lords and Commons not attainted and assented to by the King for the reversal of those Attaindors and after the Reversal then all of them to sit in the Houses For that it was not convenient that any should sit as Judges in those Houses that were attainted But concerning the King himself they unanimously Resolved That the Crown takes away all defects in Bloud and Incapacities by Parliament And that from the time the King did assume the Crown the Fountain was cleared and all the said Attaindors and Corruptions of Bloud and other Impediments absolutely discharged And yet the said King Henry the Seventh was onely King de facto also the legal Title as I have before observed abiding in the House of York See to prove all this the Books of 1 H. 7. 4. v. Fitz. Parl. pl. 2. Brook P. Statutes pl. 37. 175. Plowden's Com. 238. v. Lord Barkley's case Co. 7 Rep. 12. â— Calvin's case Co. 1 Inst 16. a. Jenk centuries 203. Lord Bacon's Hist H. 7 fol. 13. All in express terms And if the Influence and Operation of Law be so forcible and vigorous in Cases of colourable and specious Title onely as that of the said King Henry the Seventh was as I shall demonstrate at large in the sequel of this Discourse how much more will it be where there is Proximity of Bloud and undoubted Right The last Instance is that of Queen Elizabeth an Instance of fresh and recent memory This Princess had been bastardiz'd and render'd incapable of Succession to the Crown by solemn Act of Parliament and yet notwithstanding upon the Death of Queen May the said Queen Elizabeth succeeded to the Crown And Sir Nicholas Bacon Lord Keeper of the Great Seal and Oracle of the Law in that Age and upon whom the Queen altogether relied in matter of Law and who no doubt in a Case of that Importance had consulted all the Judges of England was clear of Opinion saith Cambden That there needed not any formal Repeal of the said Act as there never was any because saith the same Author the Law of England had long before pronounced Coronam semel susceptam omnes omnino Defectas tollere That the Crown once obtain'd doth absolutely wipe out all Defects whatsoever And in this Point the Civil Law agrees also with the Common Law of England for Vpian a famous Doctor tells us That the possession of the Crown purgeth all Derects and maketh good the Act of him in Authority although he wanteth both Capacity and Right Moreover by the Laws of England the right Heir becomes absolute and perfect King in the very moment that the Crown descends upon him though he happen to be at the same time in the remotest parts of the World and before he be actually Crown'd And therefore King Edward the first though at the time of his Father's Death he was absent in the Holy Land in War against the Infidels yet he was immediately acknowledg'd here by the whole Realm for their King And in his return homewards did Homage to the French King for the Lands which he held of him in France and repressed certain of his Rebellious Subjects in Gascoign and yet he was not crown'd till almost two years afterwards And the Case of his Sacred Majesty that now is was very like for he began his Reign from the moment of that fatal and impious Stroke given to his Royal Father of ever glorious Memory and yet his present Majesty was not at that time in England And this is expresly resolved to be the Law of this Nation by all the Judges of England Mich. 1. Eliz. Dyer's Rep. 165. a. So King Henry the sixth Edward the fourth Henry the seventh summon'd Parliaments condemn'd Traitors made Grants and did all other Acts which a crowned King may do before their several Coronations And the like was done by King Henry the eighth Edward the sixth Queen Mary Queen Elizabeth King James King Charles the first and His Gracious Majesty that now is For coronation is but an Ornament and Solemnization of the Royal Descent but no part of the Title and the Kings of England are to all Intents and Purposes compleat and perfect Kings before Coronation and so it was expresly resolved by all the Judges of England 1 o Jacobi in the Cases of Watson Clarke and Sir Walter Raleigh which in a matter so clear shall suffice Having thus as I conceive made my Point good and impregnable Viz. That the next Heir of the Blood cannot be excluded from the Succession by Act of Parliament I come now to answer certain Objections which some Men I perceive are fond of and do not a little glory therein and the most considerable of them are three in Number First say they there are several Instances of Kings of this Realm whose Titles to the Crown depended purely upon the Election of the People and Acts of Parliament and not upon Proximity of Blood and Inherent Birth-right as to go no higher the Titles of King John Henry the fourth Henry the seventh Moreover Henry the eighth entail'd the Crown upon himself and his Children by Act of Parliament And these Establishments by Parliament were look'd upon as good Titles to the Kings in Possession and bars against the next Heirs I Answer they were never look'd upon as good Titles to the Kings in Possession or bars against the right Heirs neither ought they to be deemed so as doth most evidently appear by the former part of this Discourse And which I shall now farther demonstrate by Enquiry into the Titles and Circumstances of each particular King mentioned in the Objection First for King John it is plain he was King de facto but not de jure for he invaded the Crown against the Right of his Nephew
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