A LETTER FROM A Gentleman of Quality IN THE COUNTRY TO HIS FRIEND UPON His being Chosen a MEMBER to serve in the Approaching PARLIAMENT and desiring his Advice BEING AN ARGUMENT Relating to the Point of Succession to the Crown SHEWING From Scripture Law History and Reason how Improbable if not impossible it is to Bar the next Heir in the Right Line from the Succession Printed in the Year 1679. To my Honoured Friend A. B. SIR YOU have been pleased among far better choice to consult a mean Man in a great Point now depending before you in Parliament and agitated in every Man's mouth it is no less than Whether the Parliament of England may by their Act exclude and disable the next Heir of the Blood Royal from Succession to the Crown I know it hath been commonly discours'd that the Statute of 13 o Eliz. cap. 1. hath already setled this Point and anticipated the Debate thereof wherein it is Enacted That whosoever shall after the Death of that Queen affirm That the Parliament of England hath not full Power to bind the Crown in Point of Descent and Succession shall forfeit his Goods and Chattels But Sir under favour this Law doth not in any wise affect either you or me as this Case is It doth not affect you because you being a Member of the Grand Council of the Nation have thereupon a part and share in the Legislature that is in the making new and abrogating of Old Laws and all Men know that Freedom and Liberty of Speech and Debate are the very Essence and Soul of all Councils It doth not affect me because this being a Point stir'd in your House and being also of that sublime Nature and Importance it is but natural for any Member thereof freely to advise with his Friend about it with mutual security for if it were enacted even by Parliament that no Member thereof should consult his Books or Friends about any Affair moved in either House that Act would be null and void in it self as being ridiculous and impertinent And I am able to prove by irrefragable Records of Parliament which I have perus'd That the Members of your House in ancient time have sometimes demurr'd to pass certain Bills of extraordinary Nature till they have confer'd and advis'd with their Countreys who had intrusted and chose them And if the Question now before you be not of that Nature I know not what is But because the Objection founded upon the said Statute of 13 o El. is one of the Herculcan Arguments now in every Man's mouth and of which I observe some Men are not a little fond and lay a great part of their stress upon it it shall not so easily escape my Animadversions and therefore towards the close of this Discourse I hope you will find I have stab'd it into the fifth Rib. Only I conceived it not altogether unseasonable to pinch this sturdy Objection a little in the beginning by way of Anticipation Sir There is no English Man hath a more profound Veneration and Deference for the public Sanctions and Establishments of my Country than my self I know well they contain the collective Wisdom and Providence of the Nation They are in great measure the Ramparts and Sea-walls of the Common Liberties and Propriety They are humanly speaking the Fountains and Sources of all that is dear to our Souls and Bodies but withall it is to be remembred That God Nature and the immutable Customs of this Realm have plac'd some Things and Matters above their Influence and Coercion And we know that the Judges of the Common Law to whom alone by a deep Polity the Construction and Superintendency of all Statute-Laws is intrusted have in all Ages made bold sometimes to weigh the same Statute-Laws in the Ballance and for certain Reasons appearing to them have now and then without deflowring their Consciences and Integrity adjudged them null and void Of this kind I shall produce some Instances in their proper place Neither is it to be forgotten that his Sacred Majesty whose concernment in the Fate and Event of this Question is not small hath in several of his late Speeches Printed and Publish'd by his Special Command admonish'd the Two Houses That they do not in any of their Bills Impeach the Right of the Succession nor the Descent of the Crown in the true Line Upon this Foundation it is together with that profound Duty which I owe to my gracious Soveraign and Love to my Country to say nothing of my particular respect to your self that I have undertaken the following Discourse In the which you will perceive I have laid before you my Sentiments and Notions with that Freedom and Assurance which becomes a faithful Advisor and Friend And I should be sorry you should find any thing in the whole Discourse contrary to right Reason or the Laws of England or not munited with Authorities Sacred and Inviolable There is one Thing I had almost forgot to tell you which yet perhaps may seem superfluous enough to your self who knows me so well which is That I am an unworthy Member of the Church of England I was Baptis'd in that Faith and I design by God's Grace to Live and Dye in it And which doth not always happen I know no Relation I have in the World of a contrary Persuasion For my Principles as they respect the State I am for supporting the Monarchy of England with those Regalities and Flowers with which the Laws of my Country have embellish'd and illustrated the Crown And yet am and shall upon all Occasions appear as Zealous in the Defence and Vindication of the Common Liberties and Property of my Country-men as any Man whatsoever And if I may mention it without too much Ostentation or Envy my Relations were Fidele and Loyal to the Crown during our late Domestic Revolutions the tragical Marks whereof I praise God we have chearfully born in our Bodies and Estates Having thus premised these things I shall now address my self to the Debate of the principal Matter wherein Sir I must all a long so consider your Time and Patience that I must much more consider the Dignity and Nature of the Argument and subject matter And I doubt not under favour effectively to maintain and prove That the Parliament of England cannot by their Act exclude or disable the next Heir of Blood Royal from Succession to the Imperial Crown of this Nation This I shall make good by great and important Reasons and Authority drawn from the Laws of God Nature the Laws of England Common and Statute the Canon and Civil Laws Histories Ancient and Modern and Records of Parliament and other Courts from which Foundations a Point of this nature and sublimity is to be decided First then I shall lay this down for a Ground That the Succession of the Crown of England by the Laws of God and Nature is inseparably annexed to proximity and nextness of Blood And then all Statute-Laws
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
for certain Reasons to them appearing As sometimes for Repugnancy and Impertinence and therefore where the Statute of Carlile enacted That the Common Seal of the Cistercian and Augustine Monks should be in the Custody of the Abbot and four others of the Covents And that any Deed seal'd with the same Seal not so kept should be of no effect This Statute was adjudged void for Repugnancy because the Seal being in the Custody of the four the Abbot could not Seal with it and when it was in the hands of the Abbot it was out of the Custody of the four And so by this Statute these two Orders could make no Deed valid in Law Sometimes for Absurdity as where the Statute of Edw. 6. gives Chantries to the King saving to the Donors and Founders all Services c. This Act was adjudged void as to the Services For it is absurd and contrary to Common Reason saith the Book that the King should hold of or do Service to his Subjects 14 Eliz. Dyer 3. 13. a. Mich. 16 17 Eliz. c. B. Strowd's Case Lastly the Judges have expounded Statute-Laws void in themselves when they are contrary to those of God and Nature and they are bound to adjudge them so when ever such Statute Laws come before them because the Laws of God and Nature are the Rays and Emanations of the Divinity they are eternal indelible immutable and therefore cannot be altered or Impeached by any human Power or Authority but only by the God of Nature it self who did originally ordain them And of this because it is the principal Matter now in hand I shall be the more plentiful in Instances And therefore if it should be enacted by Parliament That no Man should honour the King or love his Parents or Children or give Alms to the Poor or pay Tithes to the Parson of his Parish or the like these Acts are ipso facto void because they are contrary to the express Divine Commands Dr. Stud. lib. 1. cap. 6. 21 Hen. 7. 2. v. So where a Man was made Judge in his own Cause by Act of Parliament This Act hath been adjudged void because say our Books it is contrary to the Law of Nature that one and the same Person should be Judge and Party Cokes 8 Rep. a. v. Dr. Bonham's Case Hobart's Rep. 87. Day v. Savadge So an Act of Parliament can never make the Grant of an Ideot or Lunatic good for Jura Naturae sunt immutabilia saith the Book The Laws of Nature are immutable Hob. 224. Needler's Case By the Statute of the 25 Edw. 3. cap. 22. a Man attainted in a Praemunire is by express words out of the Kings protection generally and that it should be done with him as with an Enemy by which words any Man might have slain him as it is holden 28 Hen. 8. Title Crown Br. 197 until the Statute of 5 Eliz. 1. yet the King may protect him and pardon him Because the Protection of the Soveraign to the Subject is due by the Law of Nature Coke's 7th Rep. 14. a. Calvin's Case The Statute of 23 Hen 6. cap. 8. and several other Statutes enact That no Man shall be Sheriff of any County above one year and that any Patent of the King to any person for a longer Term though with an express Clause of Non obstante shall be absolutely void and of none effect and the Patentee perpetually disabled to bear the Office And yet notwithstanding it is resolved by all the Judges of England That these Acts of Parliament are void And that the King may by non obstante constitute a Sherif for Years Life or Inheritance And what is the Reason which the Judges give of this Resolution Why because say they in express words this Act of Parliament cannot bar the King of the Service of the Subject which the immutable Law of Nature doth give unto him for Obedience and Ligeance of the Subject add they is due to the Soveraign by the Law of Nature See 2 Hen. 7. 6. v. Calvin's Case 14. a. in Coke's 7th Rep. And thus upon the whole Matter of my first Reason I have as I conceive effectually prov'd these two Propositions First That the Succession of the Crown of England is inseparably annexed to Proximity of Blood by the Laws of God and Nature Secondly That Statute-Laws contrariant to those of God and Nature are ipso facto null and void And from hence it doth necessarily follow That the next Heir of the Blood Royal cannot be barr'd from the Succession by Act of Parliament Secondly The Succession of the Crown to the next Heir of the Blood Royal is a fundamental and primary Constitution of this Realm and indeed the Basis and Foundation of all our Laws Sir Ed. Coke says That the Kingdom of England is a Monarchy successive by inherent Birth-right of all others the most absolute and perfect form of Government excluding Interregnums and with it infinite inconveniences The Lord Chancellor Egerton tells us That in Cases of the Crown the Eldest sole or alone is to be prefer'd And this he reckons among the ancient Customs of this Nation against which there never hath been saith he nor ought to be any Dispute And indeed if the Parliament may alter so essential and fundamental a Custom or Constitution then the Monarchy of England which by the Law is and ever since we were a Nation hath been Hereditary will immediately become Elective and disposable at the Arbitry and Will of the People And by the same reason that they may exclude and reprobate the next Heir they may the next to that and so by consequence the whole Line For when Men have once transgress'd and broken down the Boundaries which the Law hath set and prefix'd the Progress is infinite and there is no stop And though the Common Law of England which as I have said doth superintend all Statute-Laws doth allow the Parliament to repair and amend and improve the Building yet it doth never allow them to pull it down and subvert the Foundations thereof And it is some odds that such Electors may in time believe that they have a Power to mar what they can so easily make and that with good Conscience they may destroy when they think fit their own Creature and Work of their own hands And therefore those Kings of England who have submitted their Necks to this popular or Statute-Kingship as I may call it it is plain they came not in at the Door but evermore at the Windows and have been constrain'd during their whole Reigns to stand upon their Guards and to defend their wrongful Possessions by Divine Right of the Sword as some in Raillery have call'd it as well even against the People that chose them as the Right Heirs As I shall anon Demonstrate at large And this alteration of the Monarchy in so fundamental a part thereof from Inheritance to Election may prove equally mischievous
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