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A43135
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The right of succession asserted against the false reasonings and seditious insinuations of R. Dolman alias Parsons and others by ... Sir John Hayward ... ; dedicated to the King ; and now reprinted for the satisfaction of the zealous promoters of the bill of exclusion.
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Hayward, John, Sir, 1564?-1627.
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1683
(1683)
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Wing H1233; ESTC R11039
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98,336
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190
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THE Right of Succession ASSERTED Against the False Reasonings AND Seditious Insinuations OF R. DOLMAN alias Parsons And others By the Learned Sir JOHN HAYWARD Kt. Doctor of Laws Dedicated to the King AND Now reprinted for the Satisfaction OF THE ZEALOUS PROMOTERS OF The Bill of Exclusion LONDON Printed for Mat. Gillyflower Will. Hensman and Tho. Fox Booksellers in Westminster-hall 1683. TO THE KING'S Most Excellent Majesty Most dread Soveraign TO offer Excuse for that which I needed not to have done were secretly to confess that having the Judgement to discern a fault I wanted the Will not to commit it Again to seek out some colours to make it more plausible were to bring in question the sufficiency thereof Therefore without further insinuation either for Pardon or for Acceptance I here present unto your Majesty this Defence both of the present Authority of Princes and of Succession according to Proximity of Bloud wherein is maintained that the People have no lawful Power to remove the one or repel the other In which two Points I have heretofore also declared my opinion by publishing the tragical Events which ensued the deposition of King Richard and Usurpation of King Henry the Fourth Both these labours were undertaken with particular respect to your Majesties just Title of Succession in this Realm and I make no doubt but all true-hearted Englishmen will always be both ready and forward to defend the same with expence of the dearest drops of their bloud The Lord vouchsafe to second your honourable Entrance to the Possession of this Crown with a long and prosperous continuance over us Your Majesties most humble and faithful Subject JO. HAYWARD Qui tibi Nestoreum concessit pectus ora Nestoreos etiam concedat Jupiter annos TO R. Dolman YOu will think it strange Master Dolman that having lain these many years in quiet harbour from the tempest of mens Tongues you should now feel a Storm to break upon you peradventure you were perswaded as every one suffereth himself to be beguiled with desire that this silence did grow either upon acceptance of your opinion or from insufficiency to oppose against it I assure you neither but partly from contempt and partly from fear The contempt proceeded from the manner of your writing wherein you regard not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not how either truly or penitently but how largely you do write endeavouring nothing else but either to abuse weak judgements or to feed the humours of such discontented persons as want or disgrace hath kept lower than they had set their swelling thoughts The fear was occasioned by the nimble Ear which lately was born to the touch of this String For which cause our English Fugitives did stand in some advantage in that they had free scope to publish whatsoever was agreeable to their pleasure knowing right well that their Books could not be suppressed and might not be answered It may be you will question wherefore I have not answered your Second Part It is ready for you but I have not now thought fit to divulge the same partly because it hath been dealt in by some oâ—hâ—rs but principally because I know not how convenient it may seem to discuss such particulars as with general both liking and applause are now determined I forbâ—ar to express your true name I have reserved thâ—â— to my Answer to some cast Pamphlet which I eâ—â—ect you will cast forth against me And I make â—â—ttle doubt but to drive you in the end to such desperate extremity as with Achitophel to sacrifice your self to your own shame because your mischievous Counsel hath not been embraced AN ANSWER TO THE FIRST CHAPter whereof the Title is this That Succession to Government by nearness of blood is not by law of Nature or divine but only by humane and positive Laws of every particular common-wealth and consequently that it may upon just causeâ— be altered by the same HERE you begin that other conditions are requisite for coming to Government by succession besides propinquity or priority of blood which conditions must be limited by some higher authority than that of the King and yet are they prescribed by no Law of Nature or Divine For otherwise one that wanteth his wits or sences or is a Turk in Religion might succeed in Government which you affirm to be against all Reason Law Religion Wisdom conscience and against the first end of Institution of common wealths And that Byllay who maintaineth the contrary doth it in favor and flattery of some particular Prince What conditions are requisit in succession besides priority of blood and by what authority they are to be limited I will then examin when you shall propound but for your reason of this assertion you must have other men them Billay out of credit for reason law conscience and wisdom before you carry it for clear good As for entire contrariety in Religion or difference in some particular points thereof whether it be a sufficient cause of exclusion or no I will refer my self to that place where you do strain your strength about it In disabilities to govern Baldus doth distinguish whether it be natural or accidental affirming that in the first case it sufficeth to exclude because he that is incapable of government from his birth had never any right of succession setled in him in the other it doth not suffice because he that is once inveited in right of succession cannot be deprived thereof without his fault Many do follow this distinction Io. Igneus doth limit it to such dignities as are not absolute But Iason Angelus and divers others do indistinctly hold that the eldest Son of a King or other Governor although he be born either furious or a fool or otherwise defective cannot therefore be excluded from his succession These affirm that any end of institution of Common-wealths is if not fully yet better satisfied by appointing a protector of the state as upon divers occasions it hath been usual then by acknowledging another Prince as well for other respects as for that by continuance of succession in one discent a fair and ordinary occasion is removed both of mutiny and invasion For enemies will not readily attempt and subjects do most willingly obey that prince whose ancestors have worn out those humors both of hatred and contempt which do commonly accompany new raised estates I will not confirm this last opinion by the example of Neptune the son of Saturn who although he was lame on both his legs yet had the Government of the sea allotted to him but I will confirm it by the practise of Athens and Lacedaemon the two eyes of Graecia as Leptines and Iustine do aptly term them Herodoâ—us reporteth that when Alexandrides King of Sparta left 2. sons Cleomenes the eldest distracted in wits and Dorieus the youngest both of ability and inclination to all actions of honor the Lacedaemonians acknowledged Cleomenes for their King
interpreters of both Laws as namely the Glossographer Iohan. Andreas Hostiensis Collect. Pet. Anchoranus Antonius Imola Card. Florentinus Abb. Panormitanus Oldradus Albericus Angelus Felinus Paul Castrensis Alexander Barbatius Franc. Curtius Guido Pape Card. Alexander Philip. Francus Iason Philippus Decius Carol. Ruinus Anto. Corsetta Ripa Calderine Alciate and many other of somwhat more ordinary name Who all with full voice do agree that in Kingdoms and other dignities â—hich cannot be either valued or divided but they are dismembred the eldest Son doth entirely succeed And this many of them do call the Law of all Nations derived from the order of nature and from the institution of God and confirmed by the Canon civil and other positive Laws For the Succession of Children is one of the primary precepts of nature whereby his mortality is in some sort repaired and his continuance perpetuated by his posterity But among all the Children nature seemeth to prefer the first born by imprinting in the mind of parents the greatest love and inclination towards them as divers of the authors before alleaged do affirm and as it may appear by that of the prophet Zacharie and they shall lament over him as men use to lament in the death of their first born and likewise by that which is said of David that he would not grieve his Son Ammon for that he loved him because he was his first born Hereupon Lyra and before him Saint Augustin and Saint Chrysostom do affirm that the last plague of the Egyptians which was the death of their first born was the most sharp and heavy unto them For nothing saith Saint Augustin is more dear than the first born Aristotle Plinie Aelian and Tzetzes do write that the same affection is also found in certain beasts And to this purpose is that which Herodotus reporteth that when the Lacedaemonians had received an oracle â—hat they should take for Kings the two sons of Aristodemus and Aegina but give most honor unto the eldest and they were ignorant which was eldest because the Mother and the Nurse refused to declare it they observed which of the children the mother did wash and feed first and thereby found out that Eristhenes was the eldest Lucian citeth the love of the first born as grown into a proverb Gregorie Nazianzene saith that all men have a sense thereof Saint Ambrose writeth that in this respect God called the People of Israel his first born for that they were not most ancient but best beloved Lastly S. Chrysostome affirmeth that the first born were to be esteemed more honorable than the rest And this natural precedence both in honor and in favor seemeth to be expresly ratified by God first where he said unto Cain of his brother Abel His desires shall be subject unto thee and thou shalt have dominion over him according to which institution when Iacob had bought his brothers right of birth Isaac blessed him in these words Be Lord over thy Brethren and lâ—t the sons of thy mother bow before thee Secondly where he forbiddeth the Father to disinherit the first Son of his double portion because by right of birth it is his due Thirdly where he maketh choice of the first born to be sanctified to himself And whereas God hath often preferred the youngest as Abel Isaac Iacob Iuda Phares Ephraim Moses David Solomon and others it was no other than that which Christ said that many that were last should be first and that which Saint Paul hath delivered that God hath chosen the weak and base and contemptible things of this world least any flesh should glory in his sight So hath Herodotus written how Artabanus the Persian in a complaining manner did confess that God delighted to depress those things that were high But if the first born dye before succession fall or if being possessed of the Kingdom he dye without issue his right of birth devolveth unto the next in blood and if he dyeth in like manner then unto the third and so likewise to the rest in order This is affirmed by Albericus and may be confirmed by that which Baldus saith that succession hath reference to the time of death and respecteth the priority which 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 this opinion is embraced by Alciate because as Celsus saith Primus is dicitur ante quem nemo sit He is first who hath none before him Iaco. Aretinus Cinus Albericus and Baldus do form this case There is a custom that the first born of the first marriage should succeed in a baronny a certain baron had three Wives by the first he had no Children by the other too many the first son of the second marriage shall succeed Because as the glossographer there saith the second marriage in regard of the third is accompted first Baldus doth extend it further that if he hath a son by the first marriage and he refuse the barony the first son by the second marriage shall succeed in his right and so he saith it was determined in the Kingdom of Apulia when Lewes the Kings eldest son was professed a friar And this decision is allowed by Alexander Oldradus and Antonius Corsetta and is proved by plain text of the Canon Law both where the second born is called first born when the first born hath given place and also where he is called the only son whose brother is dead But because it is a notorious custom that the nearest in blood doth succâ—ed altho perhaps removed in degree I will labor no more to load it with proof for who will proclaim that the sun doth shine But if we should now grant unto you which is a greater courtesie than with modesty you can require that no particular form of Government is natural what will you conclude thereof what inference can you hereupon enforce That thâ—re is no doubt but the People have power to choose and to change the fashion of Government and to limit the same with what conditions they please What Sir can you find no third But that either one form of Government is natural or that the People must always retain such liberty of power Have they no power to relinquish their power Is there no possibility that they may loose it Whether are you so ignorant to think as you speak or so deceitful to speak otherwise then you think There is no Authority which the People hath in matters of state but it may be either bound or streightned by three means The first is by cession or grant for so the Romans by the Law of royalty yeelded all their Authority in Government to the Prince Of this Law Vlpian maketh mention and Bodin reporteth that it is yet extant in Rome graven in stone So the People of Cyrene of Pergame and of Bithynia did submit themselves