Conscious of some mistakes he is â—â—tent to leave the Argument to Civilians and Divines who are as proper for it quatenus so as â—â—ch as the Lord Mayor of London and Court of Aldermen Now he falls into an Heroick Harangue and tells us it is most Evident but how he hath not 〈◊〉 yet that all the Humane Acts and Powers in the World cannot hinder the descent of the â—â—wn upon the next Heir of Blood to make this out he tells you of Watsons Case of the Kings â—â—er dying as if limiting the Succession would alter it After all he takes a great deal of pains to prove Allegiance due to Kings from the form of the Indictments for high Treason as if any Body in their right Wits would deny it Now he falls to a very confident but undue concluding the Question and says as the Common Law is more worthy than the Statute Law so the Law of Nature is more worthy than that from thence he Tryumphantly concludes no Humane Power can hinder the descent upon the Right Heir of the Crown Because Allegiance to the King is due by the Law of Nature as he proves by the forms of the Indictments before spoken of which no body will deny though they cannot agree with E. F. in the Conclusion as being too foreign to the point especially when it is obvious how that every day both the Common Law and the Law of Nature are impos'd upon and set aside by the Statute Law in something or other for the first it is known to every little Pettifogger to the latter I shall speak hereafter This Common Law that he so much without all reason cryes up as if he had by some Vow abandon'd the Divine faculty of the Soul as People do when they turn Papists received its vigor from a meaner Power than the Statute Law for it had its Sanction from the Conqueror alone who had right here neither by God nor Nature In the preamble to the confirmation of St. Edwards Laws which he made the Fourth of his Reign you may find these Words Electi igitur de singulis totius patriae comitatibus vir Sp. Glos L. 1. C. 6. duodecem quo 〈◊〉 pâ—ssent recto traimite incedentes nec ad dextram nec ad sinistram divertentes Legum suarum consuetudinum sancita patefacerent nihil praetermittontes nil addentes nil praevaricando mutantes Twelve men of every County being chosen did first make Oath before the King that to their Power they would without any deviation to the right hand or the left discover the Sanction of their Laws and Customs pretermitting nothing adding nothing changing by prevarication the Commissioners made their return and the practice hath gone since accordingly but when the Statute Law breaks in upon it and for the better ease and instruction of the People they were turned into French This was the Original and Growth of the Common Law so Sacred with my Author Yet E. F. mistrusting I suppose the efficacy of what he has said shuffles all off to the Law of Nature about which he had been nibbling a little all along and declares it not abrogable by any Humane Power and from thence concludes an incapability of disherison by Parliament as being but a Humane Power Then the Gentleman falls on to Illustrate his Dogmatismes by Examples of our own Stories to as little purpose as the rest He tells you that the Second William Usurped upon Robert his Elder Brother which cannot be Granted for William claimed by virtue of the Conquerors Will who after the example of the Patriarch Jacob who gave to Joseph his younger Son the Land which he had taken with his Sword and his Bow gave his younger Son his English Acquisition 't is true Robert made a bustle but all was compounded for 3000 marks per Annum at present and the Crown in reversion now though the Intrinsick value of that Summ be much more than so much now yet it falls far short of any thing like a valuable compensation To clear now the Usurpation of William the Second I offer this Foreign Story Alphonso of Arragon Conquered the Kingdom of Naples and gave it to his base Son Ferdinand his lawful Son Succeeded him in the Crown of Arragon Sicill Ferdinands Posterity enjoyed it without any imputation of Usurpation by any Writers of that or any succeeding Age until they were expuls'd by the French Arms the Treachery of the Spaniards concurring Then he tells you without any regard to Truth though it be to no purpose of the Establishment of H. the II. in whom the Saxon line was restor'd as he saith his Grandmother being the next Heir to Edgar Atheling which all that knows History must conclude a notorious untruth for Edgar King of Scotland was Brother uterine to that Lady whose Posterity is yet undetermin'd this Gentleman by these petty remarks I suppose will put in for a compurgatour at the Tryal of the next Traytors being as well qualifyed as any Young man of St. Omers From thence after some impertinent digression concerning the Multitude of men kill'd in the Civil Wars 'twixt York and Lancaster he comes to Records which he seems to set a great value upon and tells us That the entayl of the Crown upon H. 4. and his Heirs was over ruled by Rich Duke of Yorks Friends and gives you the Words Pro and Con and likewise tells you it had the same Success under Edw. 4. and from thence Magisterially concludes That a Title of that Sublimity and Grandeur is not at all impeachable even by Act of Parliament Now any man of common sense would have given another reason than the sublimity of the Title to have defeated that Act namely the incompetency of the Parliament that past it being not rightly Constituted as not Conven'd by a Legal Authority under a Lawful King that was the true reason of its faileur though others may be fancyed which more fully appears from the invalidity of all the Acts of Parliament by the Three Henryes E. d 4. C. 1. till Confirm'd in Edward the IV. time as may appear by the Statute of Confirmation to which I refer the Inquisitive Now further to confirm what he would be at he puts a modest Case of the King and his Three Estates for that 's the natural meaning of the Word Parliament of passing an Act that no man should Honour the King or Love his Parents or Children or give Alms to the Poor or pey Tithes to the Parson of the Parish it would be Void in it self as The better to adjust his two later Examples L. 1. C. 6. he Cites Doctor and Student * and 21 H. 7.2 but still according to his wonted ingenuity for the Doctors Words there are if it were Ordained that no Almes should be given for no necessity the Custom and Statute were void yet he with the same Wind determines that the Statute of 23 of Edw. III. since repealed which forbad under the
shall be Void Next he tells you That the Right Heir of the Crown cannot be Barr'd or Excluded by Act of Parliament Because the descent of the Crown in an Instant absolutely Purgeth and Dischargeth all Obstructions and Incapacities whatsoever Created by the same Act of Parliament but now if an Act of Parliament hinder that descent that Argument is Non-suit notwithstanding all his Examples according to his usual way to no purpose no Case alledged being any thing Parallel to that he pretends to One great Argument he hath is That the Law of the Crown differs from Subjects in point of descents as descending to an Alien no Coheirs in the Case no Tenancy by Courtesy Descent by half Bloud as all Honours do And therefore that may be Law in Case of the Crown p. 15. which is not in Case of the Subject So not to be affected by Parliament as he would imply or else he says nothing by that Rule Copy-hold Tenure and Gavel kind are exempted too because their Descents are not like the Common Law a pretty Consequence I must now take Notice how this unworthy Son of the Church of England as he and I think truly terms himself Treats Queen Elizabeth though it be out of my Province to say any thing in justification of the usage of the Queen of Scots yâ—â— I must vindicate that great Queen from his Black Calumny after a kind Expression or two about the Scots Queen he tells you That Queen Elizabeth Inheriting her Fathers Malaversion to the House of Scotland sent her to a loathsom Prison 't is true She was a Prisoner at large under the Care of the Earl of Shrewsbury where nothing of Liberty was denyed her but Access to the Queen until she fell into the Correspondence with Babington c. He tells you father That the generality of Mankind lookt upon Maryes Title to the Crown better than the other Elizabeth being Bastardized and rendred uncapable by Act of Parliament yet unrepealed at leastwise but a Statute Queen as he unmannerly Terms her when he Treats Queen Mary her Sister who was in his Sense but a Statute Queen at another rate for in the Dispute betwixt her and the Lady Jane Grey he brings in an Historian saying Tali constanti veneratione nos Angli legitimos Reges prosequimur ut ab corum debito obsequio c. By him thus Englished Such and so constant a Veneration have we Englishmen for our Lawful Princes that we are not to be drawn from our due Obedience c. Here Queen Mary notwithstanding her being Bastardized by Parliament is allowed a lawful Queen but Religion covered her Nakedness which laid the others more open but our Protestant is now come to himself for Cat will be Cat still I must ask this Protestant now who they were that Judged Queen Maryes Title better than Queen Elizabeth it was not the Parliament for Queen Elizabeth was Proclaimed Queen by a Popish Parliament sitting at her Sisters Death she was so by Heath the Chancellor Arch-Bishop of York She was allowed to be so by the Pope and so Stiled till his Holiness published his Bull against her she was so Stiled by all Christian Princes except you will say Francis the Second of France his Quartering her Arms was an implication to the contrary though he never had the Courage to justify it Besides all these my Author may remember what he allowed to be Law once in Her Case and in the Case of Hen. the Seventh That the Crown takes away all Defects in Blood and incapacities by Parliament and from that time that the King viz. Henry the Seventh did Assume the Crown all Impediments were discharged I have now run over the most material Points of his Arguments about Succession to which I shall now oppose something of my own I shall lay down for my Position That the Parliament may make what Laws they please even against the Law of Nature which nevertheless shall be Binding But before I enter any further I premise this That my Design is only to set forth the Power of a King environed with his Three Estates more terible than an Army with Banners His Power is then like that King Solomon speaks of In the Word of a King there is Power who may say unto him What dost thou it is not at all to Direct or Advise to make use of it hoping there may never be occasion for it In order now to the making good my assertion its fit to Examine a little what the Law of Nature is or what is meant by it which he was never so kind to do though he make such a noyse about the Words yet he would never tell us what he meant by them which by his good Favour is a kind of if not absolute Jargon or Canting one of the Fathers defines it to be impressio divini luminis an impression in us and a participation of the Eternal Light in the rational Creature Another says It is an Act of Reason taken properly Aquinas Man now being a Creature adopted to Society is allowed by Natures Law which according to which Definition you please is nothing but rectified reason to improve it as far as he pleases saying to every man the like Liberty either by way of commerce or otherways notwithstanding now this natural liberty nothing's more ordinary than to rescind it as in Case of Warrs betwixt Country and Country or upon other State accounts yet no complaining in our Streets by the Law of Nature every man is free to follow what Profession he pleases yet you see how there are restriction layd dayly in the Case upon men and such and such Trades confin'd to such and such Societyes of Men as the East Indy Guiny Companys c. or else to persons qualified by the contemptible Statute Law as the Learned Author would intimate to follow them yet not a word of these Violations upon the sacred Law of Nature nay to come more Home and familiarly to the Case the great Law of Nature is violated in the Statute that declares who are and what shall be the punishment of Rogues yet the most strict Casuist never wrote nor much spoke against them If now upon an Indictment E. F. should be enterteyned upon the Traverse who would make us believe he is a Lawyer to run down those Acts as Invalid because violences upon the Law of Nature as he doth endeavour to run down one though not yet in Embryo if it should pass into an Act upon the same Account he would pass for a Quaker or one Candidate for the new Palace in Morefields nay Polygamy is not against the Law of Nature yet the restrictions upon it I hope by E. F's leave are pardonable It will not be amiss now in order to our end to examine how those Laws of Nature for Succession according to Proximity of Blood are regarded in other Christian Countreys they are set aside in all Elective Kingdoms as the Empire
the Kingdom of Poland the Titulado Dukedom of Venice nay the Kingdom of France which is E. F. s beloved president gives no regard to the Example of Zelophehads Daughters though he lay such stress upon it in another case besides how many times without regard to the Male Line it self hath that Line bin altered yet none disputes that Kings Title but to say the Truth the Pope who alone may dispose of Succession had a hand in advancing the Carolingian Line to the prejudice of the Merovinian which like Offa Cerbero a sop to Cerberus keeps the Cur from snarling How was that Law of Nature violated by the guift of the Dauphinale to the Crown of France by the Union of the Kingdom of Navarr and Dutchy of Britain to the said Crown By Virtue of which Union Britagne is enjoyed by the French King when the Right of Proxinity of Blood lyes in the House of Savoy to no purpose If Natures Law be Violable or hath bin violated in one place without Taxation of Injustice at the Discretion of the Supreme Power which in every Constitution of Government is lodged somwhere as by these Examples is made out then it may admit of Violations again under the like Circumstances that is of Safety and Security for those were the true ends of those Unions For that rule of Living Quod tibi fieri non vis alteri ne feceris what thou wouldst not have done to thy self do not to another improved by the Law of Grace to whatsoever you would that Men should do unto you that do unto them does not at all reach Communityes or Societyes of Men as may modestly be offered otherways Malefactours might make use of that Plea against the security of the Laws in their concerns now a great Latitude must be allowed to the Legistative Power in making Laws upon emergent occasions to provide for the Publick safety otherwayes our Sanguinary Laws against Robbery and Polygamy being contrary to the Laws of God which directs otherways in the former and allowed the latter must fall under a severe censure I shall now hasten to Conclusion only subjoyn somwhat about Henry the Seventh Whose Laws E. F. says my Lord Bacon Comments because he says somthing in his Case very handsomly upon That King past two Notable Statutes as he says one that the Crown should rest and abide to himself and his Heirs c. The other that all persons should be indemnifyed that served the King for the time being in his Warrs This Law says my Lord Bacon had in it parts of prudent and deep foresight for it took away occasion for the People to busy themselves in prying into the Kings Title to the Crown for howsoever that fell out good or bad the peoples safety was provided for The same Author in the close of that Kings Life accounts it amongst his Blessings that he dyed so soon viz. before the Prince comes to mans Estate who in likelyhood considering his great Spirit would not have sitten down under the Law of settlement but have seazed the present Possession of the Crown as his Right by common Law the Curtesy not reaching the case of the Crown as has bin sayd before This E.F. is mighty fond on as coming from so great a Man but to examine the matter over again I cannot see notwithstanding my Land Bacons Authority how the Peoples safety was provided for by the Law of indemnity is the Kings was not by the Statute of settlement For if once Henry the Seventh had fallen under the Power of his Son as there has often hapned such Cases or any other Pretender of the House of York the Statute of safety for the People as well as that of settlement for the King had bin equally out of Doors by alledging that Henry the Seventh was no Legall King so no Legall Parliament like those of the three Henryes and therefore nothing of that King binding I wonder therefore so great a Man as my Lord Bacon should branch at so empty a Rate but more that so palpable a nothing should pass upon a man that has such Skill in that Knotty way of Argumentation as E. F. pretends to have Now that something has been said to prove that Parliaments have done and do daily encroach upon the Law of Nature without the least grumbling imaginable I shall give some Scripture Presidents when Proximity of Blood the thing insisted upon in the Case of Government hath not been much regarded yet no absolute proof of Gods immediate Command in the Case Cain was set aside for Seth Sem is not agreed to have bin the Elder Brother whether Abraham was or no is likewise a Question but to be sure neither Isaac nor Jacob were Reuben Simeon and Levi were set aside for their Vices and the Dominion of all given to Judah but these Examples may be Objected against because the times before the Flood were dark and the other may be said to be in relation to Spirituals because none of them had as appears many to exercise a Royal Authority over but a Royal Power some did Exercise as is Evident by Abrahams Offering to Sacrifice his Son and Judah's commanding his Daughter in Law to be burnt which none but an unaccountable person could do From the time of Moses unto David Proximity of Blood was not regarded Joshuah of another Tribe succeeded Moses in the Monarchy the Succession going at the same rate amongst all the Judges except in the Case of Abimelech whose manners and Success are not very Argumentative for the Traverse now That those Judges were Kings or so esteemed is plain from the Text In those days there was no King in Israel but every man c. because at that time when that Villany was committed by the Benjamites then was an Inter regnum none to Judge the People as formerly The Asmonaean Family or Machabees began at the same Rate for Mattatkias who got a party to oppose the Wicked proceedings of that ungodly Antiochus Epiphanes when he dyed bequeathed the Captainship of Israel which he had exercised amongst them successfully for a while unto Judas his Third Son as the most fit setting aside Simon his Eldest though a worthy person which he made appear when he came after the Death of Jonathan his Younger Brother to the Administration of Publick affairs no immediate hand of God in this as may be said in the other for then there was no Prophet in Israel to direct them the Theocracy being determined as may appear from Mach. 1. Cap. 4. Ver. 46. And they laid up the Stones in the Mountain of the Temple in a convenient place until there should come a Prophet to shew what should be done with them For a parting blow now in Answer to what is or can be said in the Case I shall lay down this Thesis That Statute Laws though contrarient to the Laws of God are binding this I shall make out by pertinent Examples an unanswerable Argument of the Power
Penalty of Imprisonment every man to give Almes to any Valiant Beggers as he terms them which I suppose were the Words of the Statute that may well labour that so they may be compelled to labour for their Living to be a good Statute for it observed the intent of the Law of God there is a later since made that so modifies Almes giving that it is not to be done at all times and all places under a penalty so that Authority makes nothing for his Case his other is like 151 Psalm no such thing in being for the last Act of H. 7. was in the 19 of his Reign as may appear by the Printed Statute which passes in all Courts for Record and uncontraversable Evidence Then Dictator like he concludes after all this foisting that he hath proved his two first Propositions That the Succession of the Crown in England is inseparably annexed to Proximity of Blood by the Laws of God and Nature and that Statutes contrarient to such are Voyd from whence it necessarily follows as he says That the Heir of the Blood Royal cannot be barr'd from Succession by Parliament what need he now say any more but being satisfied I suppose of proving nothing all this while he goes on to his second Reason That the Succession of the Crown to the next Heir of Blood is a Fundamental Constitution to confirm this now which no body will deny he Cites Sir Edward Cooke but now whither that or any other Fundamental or any thing so called be not alterable by Parliament is the Question about which Words the Gentleman seems to be fallacious for if by that Word he means only the major of Lords and Commons excluding the King as he seems to do by so slightly speaking of their Power he is in the right but if by Parliament he means as the Law means he is as I hope to make it appear mistaken now he would run down the reasonableness of their Authority from Consequences for if says he a Parliament may alter such a Constitution then the Monarchy of England will become Elective in a short space but why he does not so much as offer at but he says it and that 's enough well if it should be Elective as long as all parties concern'd are agreed no sin against the Holy Ghost I hope Poland is an Example in this Case which became an Elective Kingdom from Despotical upon the fayling of the Posterity of Crocus in Popielus the second as Denmark hath of late by consent of their Estates become an Hereditary from an Elective Monarchy but nothing of that can be here without the Royal Assent which as in probability it will never be demanded so it will never be granted to that then that fear is out of Doors Then he goes on with a company of lofty words about the Oriency of the Pearl of Succession and tells you that the Kings of England themselves their Chancellors Treasurers and all great Officers of State P. 9. their Privy Councellors and Judges are all by the Provision of the Law sworn upon the Holy Evangelists to defend and maintain the Rights of the Crown and that they suffer no Disherison or Dammage to accrue thereto 1. Edw. 3.18 and very gravely cites Poulton for his Authority this is very disingeniously done for that President he so much raves on is only the Form of the Oath for Justices by which name Judges were then called to take upon admittance which I suppose they may do at this day to their Offices which was amongst other things That they should not assent to any thing in Damage or Disherison to our Lord the King nor to know any such Damage or Disherison but to reveal or cause it to be revealed unto him not a word of the Rights of the Crown which are I suppose foisted in the better to impose upon the World that the Judges c. are bound by the Tenure of their Oath to hinder any Law to alter the Succession the words do not at all look forward but are only as to what may concern the King Regnant to whom they are sworn 'T is a great fayleur in our Law that there is no punishment for such Impudent mis-citers of Records to serve a turn for without doubt they are within the Equity of the Pillory for their officious pains and industry Next he comes to a great Remarque in Parliament which he cites the Roll for namely that the Lords and Commons being demanded their Advice by the King in a matter relating the Crown did Answer with one Voice That they could not Assent to any thing in Parliament 42. Edw. 3. that tended to the disherison of the King and his Heirs or the Crown whereto they were Sworn This looks like somewhat but will not appear much upon strickt Inspection The Story is thus The Arch-Bishop of Canterbury declared in that Parliament that the Offers of David Bruce of Scotland for Peace were so as he might freely Enjoy to him the whole Realm of Scotland without any subjection c. The Lords and Commons being willed to give their Advice made several Answers That they could not Assent to any such Peace but to the disherison of the King and of his Crown and to the great danger of themselves being Sworn to the same That Answer now resolves only into this it sets forth the ill consequence of such a Peace not much considered it may be before as the Disherison of the King of the Fee of Scotland which his Parliament could not that is were unwilling to Assent to an usual Form of denyal amongst great men it does not at all declare their incapability through want of Power for had that been the Case the Kings Council would not have been so weak as to have put it to them But Sir Edward Cokes Comment upon the Record makes all out as he says in Margine or the Margent of Inst 4.14 no King can Alien the Crown though by Consent of Lords and Commons then my Author is at his old Ward again for my Lord Cookes Words are not so full but only Declarative what were the Words of the Parliament at that time what his Opinion was of the Power of that High Court I shall shew hereafter Then he comes to a late Example of the recognition to King James in which that Kings Title is acknowledged and the Parliament doth Humbly beseech the King to accept the Recognition not only to himself but to his Heir forever nay 1 Jac. C. 1. they go further they desire that this Recognition may have the Royal Assent c. I Wonder now this should be urged for nothing of Virtue can be conveyed by an Act of Parliament to that Title that 's derived from God and Nature because one Parliament may undo the Acts of any of their Predecessors nay Magna Charta it self is not shotfree 25 Ed. 1. C. 2. notwithstanding the Statute that says all Judgments against Magna Charta