could make any title to the Crown nisi ab universitate Regni unanimiter Electus And that he who was most worthy ought to be preferred But as he goes on if any one of the Race of the deceased King was more deserving than others as John the Brother of the deceased King was the People ought more readily to elect him than a Stranger to the Royal Bloud This was all the Title King John pretended and this was then sufficient to put by his Nephew And in his (f) Charta Moderationis feodi Magni figilli an 1 Jo. ex vet Reg. in Archivis Arch. Cant. he says he came to the Crown Jure Hereditarin mediante tam Cleri quam Populi unanimi Consensu Favore Charters he does more than once own that he owed his Crown to the election and favour of his Subjects But when King John gave over to dissemble his Nature and went about to change his Religion (g) Nâ—enon Legem Christianum Quam vanam cersuit retinquens Legi Mahometis fideliter adhaereret Mat. Par. 243. for he made offers of that sort to the King of Morocco when he discovered himself not to be that worthy man which the People supposed him to have been they remembred whence he derived his Title and proceeded upon the same reason that they had chosen him to make a new Election (h) Mat. Par. 279. Flo. Hist an 1216. chusing Lewis Son of Philip King of France who was next Heir to the Crown in the right of Blanch his Wife Neece to King John and Daughter to his Sister Elianor both the Children of Geoffery Duke of Britain being dead before that time When King Philip heard of their choice he consented to send his Son being the rather induced thereto by this reason (i) Velens fratrem suum Regem Ricardum à Regno Angliae injuste privare inde de proditiane accusatus coram eo convictus Damnatus fuit per judicium in Curia ipsius Regis Mat. Westm 275. Mat. Par. 281. That John's Bloud being corrupted by an Attainder of Treason in the Life-time of his Brother Richard he was uncapable of taking the Crown by Descent and unworthy to take it any other way Lewis coming to London was there Elected and Constituted King swearing to preserve the Peoples Laws and they swearing Allgiance to him But he soon forgot his Coronation-Oath and attempted several ways to introduce an Arbitrary Government before he was well Established in his Throne which the English assoon resented And King John happening to die very opportunely The Earl-Marshal calling together the Great men of the Kingdom and placing Henry the third then an Infant in the midst of them perswaded them to make him King who was altogether innocent of his Fathers faults (k) Mat. West 275. Hen. de Knyght f. 2426 c. 15. l. 2. The Earl of Gloucester said this was contrary to their Oath to Lewis To which the Marshal replied that Lewis by breaking his Oath had absolved them from theirs and that he despised the English to set up the French and that he would be the destruction of the Realm With whose Reasons the whole Assembly being convinced cried out unanimously Fiat Rex and accordingly they Crown'd King Henry the third and soon after compelled Lewis to re-renounce all pretences to the Crown Henry the Third dying Hen. de Knight f. 2472. c. 16. l. 2. after a long and troublesome Reign his Son Edward the First a Prince of great hopes and whose Life answered the highest expectations succeeded but whether he was the eldest Son of his Father remains a doubt in History The House of Lancaster who derived themselves from his Brother Edmond pretending always that Edmond was the Elder and Edward the Younger Brother and that Edmond was put by the Crown by common Consent for his Deformity After the Death of Edward the First Tho. Walsingh in Vit. Ed. 2. f. 126. his Son Edward the Second succeeded but he degenerating from so great a Father the People grew weary of his Irregular and Arbitrary Government And a Parliament being by him summoned at Westminster Pol. Virg. l. 18. f. 352. as all our Writers say or as Polydor Virgil words it Principes Convocato Concilio pervenerunt Londini which I observe only that we may know what Polydor means when he makes use of the expression of Principes in Concilio Congregati They presently entred into a consideration of the miserable state of the Nation Froissart 1. vol c. 14. Fructus Temporum Part 7. f. 107. Hen. de Knight l. 3. c. 15. f. 2549. and a Paper being publickly read containing many Instances of the King's Misgovernment all which he had confessed they concluded he was unworthy to Reign any longer and that he ought to be deposed and sent to him to let him know their Resolution and to require him to renounce his Crown and Royal Dignity otherwise they would proceed as they thought good And they appointed Commissioners to go to him in their Names The Bishop of Ely for the Bishops The Earl of Warren for the Earls Sir Henry Piercy for the Barons and Sir William Frussel for the Commons to resign their Homage up to him which Frussel pronounced in all their Names and formally deprived him of all Royal Power the form of which is particularly set down by Knighton The King read this sad Sentence with extraordinary grief and many complaints of those evil Counsellors who had seduced him but in the midst of his Sorrow (a) Quod Filium suum Edwardum post se Regnaturum Eligissemt Knyght 2550. he gave them thanks that they Elected his Son to reign after him Thus was that glorious Prince Edward the Third elected King in his Fathers Life-time Et huic Electioni universus populus consensit Walter Arch-Bishop of Canterbury who preached the Coronation-Sermon took this for his Text Vox Populi vox Dei. By this we may see that all his Predecessors were not of Archbishop Lawd's minde but thought there was a Divine Right somewhere else than where he placed it Upon the death of Edward the black Prince there was some Dispute whether John of Gaunt the eldest surviving Son of Edward the Third should Succeed Jure propinquitatis or Richard the Son of the Black Prince whereupon Edward the Third procured the Parliament to confirm the Succession to Richard the Second And afterwards when Edward the Third dyed (b) Pol. Virg. 20. f. 295. (c) Juri Hereditario ac etiam voto communi singulorum H. Knyght l. 5. f. 2630. Polidorus Virgil says Rot. Parl. 1 H. 4. Principes Regni habito Concilio apud Westm you know what Polidor means by principes Richardum Edwardi principis Filium Regem dicunt by their common Suffrages Pol. Virg. l. 5. In the 21 year of Richard's Reign a Parliament being assembled at Westminster they drew up by their common Consent a Form whereby he did resign
the Crown and the name and power of King discharging all his Subjects from all Oaths which they had taken of Allegiance to him confessing himself thereby insufficient for the Government and swearing never to make any pretences to the same for the future All which he Pronounced and Subscribed wishing if it were in his power to have Henry Duke of Lancaster for his Successour but since it was not he desired the Commissioners to signifie his Desires to the States of the Realm The next day all the States of the Realm accepted his Resignation and when that was done they proceeded to read publickly his Coronation-Oath and all the Breaches of it that so it might appear how justly he had deserved to be deposed All which are contained in Thirty three Articles entred at large in the Rolls of Parliament and well deserve to be read whereupon the States adjudged that he shall be Depos'd and appoint Commissioners ad Deponendum eundem Richardum Regem ab omne Dignitate Majestate honore Regiis vice nomine authoritate omnium statuum praedictorum prout in Consimilibus casibus de antiqua consuetudine dicti Regni fuit observatum which the Bishop of St. Asaph did in full Parliament in their names and by their directions The same Commissioners were also to resign up to him their Homage and Fealty and intimate the Sentence of Deposition which they did accordingly by the Mouth of Sir William Thirning whose words are at large entred upon Record Then did the Parliament proceed to choose Henry the Fourth King And upon this Title onely did he rely though he mentioned some other trifling ones as that he challenged it being then void by Force as Descended to him from King Henry the Third But this could give him no Title for 't is plain that whilst any of the Issue of Lionel Duke of Clarence the Third Son of Henry the Third were in being no right of Blood could Descend to him who derived his Pedigree onely from John of Gaunt who was but his Fourth Son And he plainly shewed what a good Opinion he had of a Parliamentary Title to the Crown when in the 7th year of his Reign 7 H. 4. cap. 2. he procured an Act of Parliament to pass whereby the Inheritance of the Crown and Realms of England and France were setled upon himself for Life and the Remainder entail'd upon his four Sons by name and the Issue of their Bodies begotten He was contented that it should be limited no farther but that after failure of his own Issue it should go according to the general direction of the Law And he made a Charter soon after whereby he setled the Crown pursuant to this Act of Parliament Bucks Hist R. 3. l. 2. f. 50. Post ipsum successive haeredibus suis de ipsius Corpore legitime procreandis which Charter was again confirm'd in Parliament the 22 December 8 H. 4. and the Original Charter is still to be seen in the Cotton Library Immediately upon the Death of Henry the Fourth a Parliament met at Westminster and there according to the custom of the Realm it was debated who should be King But all Men had entertained so good thoughts of Prince Henry that without staying till the whole Assembly had declared him King divers of them began to swear Allegiance to him A thing strange and without President as only occasioned by the extraordinary Opinion which was generally conceived of him before And the certain Title vested in him by an Act of Parliament Princeps Henricus facto Patris sui funere Concilium Principum apud Westmonasterium Convocandum Curat in quo de Rege Creando more Majorum agitabatur Continuò aliquot Principe ultro in ejus Verba jurare coeperunt quod Benevolentiae Officium Nulli priusquam Rex renunciatus esset praestitum constat Adeo Henricus ab ineunto aetate spem omnibus optimae Indolis fecit Pol. Virg. l. 22. Hist Angl. in Vit. H. 5. Henry the Fifth dying and leaving but one Son who was an Infant of Eight Months old Titus Livius says there was some doubt whether he should be accepted as King Titus Liv. Ms in Bibl. Bod. Cott. Record f. 666. but as soon as his Fathers Funerals were Solemnized the Estates of the Realm of England Assembling and Consulting together they declared Henry the Sixth to be their Sovereign In the Thirty fifth year of Henry the Sixth a new Limitation of the Crown was made by Parliament for though the King had a Son then living yet it was Enacted Hubington's Hist E. 4. f. 10. That during his own Life onely Henry the Sixth should hold and enjoy the Crown and that during his Life Richard Duke of York should be reputed and stil'd Heir Apparent to the Crown and that it should be Treason to compass his Death Cott. Rec. 670. Fructus Temp. part 7. f. 162. and after the Death Resignation c. of Henry the Crown was limited in Remainder to Richard and his Heirs with a Proviso that if Henry or any in his behalf should endeavour to disanul or frustrate this Act that then Richard should have the present possession of the Crown And by force of this Act of Parliament the same Duke of York taking advantage of Henry's Violation of it did lay claim to Hubingt E. 4. f. 73. and attempt the recovery of the Kingdom as also did his Son Edward after him with better success and Edward did openly insist upon this Title in the Speech which he made at his Coronation It was also Declared by Edward's first Parliament in the first year of his Reign that Henry the Sixth having broken the aforesaid Concord in many particulars the Crown was duely devolved to Edward the Fourth by vertue thereof Afterwards Edward the Fourth being driven out of the Kingdom in the Tenth year of his Reign the Parliament did again entail the Crown on Henry the Sixth and the Heirs Male of his Body with the Remainder to George Duke of Clarence Brother to Edward the Fourth who was thereby also declared Heir to Richard Duke of York 'T is worthy observation that both the Families of York and Lancaster claimed a Title by Act of Parliament and as long as that Title continued the Issue of Henry the Fourth had never any Disturbance from the Pretences of the House of York who had undoubtedly the Right of Blood on their side Buck's Hist Rich. 3. lib. 1. fol. 20. But as soon as Richard Duke of York had a Title vested in him by the Statute made in the Thirty ninth year of Henry the Sixth then he thought it was worth contending for nor did he and his Son desist till they had driven out Henry the Sixth Edward the Fourth did recover the Kingdom again as suddenly as he lost it and prevail'd with his Parliament to repeal that Law which was made during his Expulsion and so left the Crown to that young unfortunate Prince
to it frequently In the 25th year of his Reign an Act passed St. 25 H. 8. cap. 22. wherein the Parliament say they were bounden to provide for the perfect surety of the Succession they did not certainly reckon themselves bound to do a thing that was not in their Power And then they take notice of the great Mischiefs and Effusions of Bloud which had happened by reason of the doubtfulness of the true Title and for the avoiding of all future Questions do Enact That the Imperial Crown of this Realm shall be to King Henry 8th and the Heirs of his Body Lawfully begotten on Queen Anne and the Heirs of the Bodies of such several Sons respectively according to the course of Inheritance and for default of such Issue then to the Sons of his Body in like manner and upon failure of such Issue then to the Lady Elizabeth and after her to any other Issue in Tail and then the Remainder is limited to the right Heirs of Henry the 8th By the same Statute every Subject at his full Age is oblig'd to take an Oath to defend the Contents of it and the refusal is made Misprision of Treason And the next Parliament 26 H. 8. c. 2. which was held in the year following does particularly Enact an Oath for that purpose Some few years after these Acts were Repealed 28 H. 8. Rast Crown 4. and the Parliament Entailed the Crown upon the King and the Heirs of his Body by Queen Jane And Power is given the King for want of Issue of his Body to dispose of the Succession by his Letters Patents or his last Will. It is also made Treason if any Usurp upon those to whom it is so appointed Here the Parliament do not only use their power of changing the Succession but they Delegate it to another And in the thirty fifth Year of this King's Reign 35 H. 3. cap. 1. the Parliament by another Act take notice of the great and high Trust which the Subjects had in him in putting into his hands wholly the Order and Declaration of the Succession Yet the King being then ready to go into France they do Enact that after his Death and the Death of Prince Edward without Issue the Crown should be to the Lady Mary and the Heirs of her Body but both subject to such Conditions as the King should limit by his Letters Patents or by his last Will sign'd with his Hand And if the Lady Mary performed not those Conditions that then the Crown should go to the Lady Elizabeth as if the Lady Mary had been dead without Issue and if the Lady Elizabeth neglected to perform such Conditions then it should go to such other Person as the King should appoint in the same manner as before as if the Lady Elizabeth had been dead without Issue And Authority is given to him by his Letters Patents or his last Will signed with his own Hand to appoint the Crown to remain to such Person or Persons and for such Estate and under such Conditions as he should please An Oath also for observing this Statute is appointed and it is made Treason to refuse it or to disturb or interrupt any Person to whom it is limited by this Act or should be by the King pursuant to the Power given him thereby This is abundantly sufficient to prove That it was the universal Opinion of that Age That the Succession was wholly under the Controul of Parliament who not only limited it as they pleased themselves but subjected it to Conditions and to the Appointments of others But the thing was in its own Nature so evident that they who had the greatest Reason and were most concern'd to do it did never presume to question the Power of a Parliament in this Point Lethington Burn. Hist Reform Collect. 268. Secretary of Scotland in a Letter of his written to Sir William Cecill then Secretary of State here wherein he argues in behalf of the Title of his Mistriss Mary Queen of Scots to succeed Queen Elizabeth against a pretended Disposition made by the last Will of Henry the Eighth to his Neece the Lady Frances Daughter to the French Queen if his own Issue fail'd says of these Statutes that gave the King Power to dispose of the Crown That they were against Equity to disinherit a Race of Forreign Princes and that they were made in an abrupt Time as he terms it but yet he confesses that since the thing was done it was now valid and unavoidable unless some Circumstances did annihilate the Limitation and Disposition made by King Henry's Will And so he proceeds to prove that the power which was given to the King by these Statutes was not pursued which it ought to have been most strictly and in a precise Form for that the King never signed the Will but that his name set to it was forged Nay I will venture to say that in all the Books which were written to support the Claim of the Scottish Queen against King Henries Will though the whole power and wealth of the Guises were employed to set every wit at work on that Design there was never any stress laid upon it Treatise of the Title of Queen Mary to the Succession pag. 38 39. c. lib. 2. Dodd Engl. Lawyer pag. 8. or so much as a pretence that these Acts of Parliament were void or ineffectual in themselves In that Discourse which was published by Philips and composed by Sir Anthony Brown one of the Justices of the Common Pleas who was in judge Dodderidges opinion a person of an incomparable sharpness of Wit There was all the help that learning either in Divinity Civil or Common Laws could give yet there the Authority of the Parliament in the case and the validity of these Statutes is all along admitted Indeed they endeavour to put some other construction upon the Statutes but their great Argument is That King Henry as King had no power to dispose of the Crown and therefore these Laws only gave him an Authority and made him only as it were a Commissioner and therefore as all other Authorities especially being in Derogation of the course of the Common Line was to be strictly followed They allow that he had sufficient power to Devise and that he might Honourably have used that Power but that he ever did exercise that Authority is the thing denyed But it is time for us to go on Edward the Sixth succeeded his Father and took upon him a power which surely no King ever had to dispose of his Crown by the Will But that disposition serving to no other purpose but to the Ruine of the Lady Jane Gray His Sister Queen Mary first and after Queen Elizabeth enjoy'd the Crown according to the Limitation of the Statute 35 H. 8. c. 1. and that one of them had no other Title must be agreed by all For Queen Catherine was alive at the time when Elizabeth was born so that if the
to shew that all Conquest does not put the Conquerour into an Absolute Right Though it be most evident in the case of William the First who did by his Sword prosecute a claim of another nature and meant only to acquire that Right and after conquest rested in it He pretended to the Crown as the Gift of King Edward and to vindicate that Title he enter'd with Arms. And though his Relation to the Crown was more remote than that of Edgar Atheling then a child yet his Title was better than Harolds the present Usurper who could pretend no kindred at all and who had himself Sworn to support the Grant to William Nor did he claim a Power by conquest though the name of Conquerour was given him by after times says Daniel but submitted to the orders of the Kingdom desirous rather to have his Testamentary Title than his Sword to make good his succession But I will admit that he made an absolute conquest and then these men will grant that he might himself dispose of this conquer'd Kingdom Therefore if he did not leave it to descend in such a manner as they would have it go nor did institute any such sort of Succession surely this Argument of theirs will fall to the ground Now 't is plain that he never design'd that the Crown should descend but gave it to his second Son and thereby gave an early example of excluding and pretermitting the unworthy Lastly Others object that the Fundamental Laws of the Land against which no Act of Parliament can be of force have so establisht the Succession that the course of it cannot be alter'd This is surely a new discovery unknown to our Fore-fathers as the foregoing History does abundantly prove But let these objectors be asked by what Authority these imaginary Laws were made For if an Authority equal to that which made them be still in being That Authority may certainly repeal them when ever it pleases to exert it self If the King alone made them no doubt but that he may change them too If they will say they were made by the diffusive body of the people they run before they are aware into the guilt of worshipping that Idol The Multitude and make a great step towards placing the foundation of the Government upon contract and consent But then let them produce those Laws or some Authentick memorial of them before it be exacted from us to believe there were ever any such Yes they will say there is such an ancient Law acknowledged by all the Judges and known to every man that the Descent of the Crown purges all Defects whatsoever This Maxim as it is usually repeated is in these words and this might be admitted and yet could not be pertinently apply'd to a case where the Descent it self is prevented by a Law But I will not take advantage of their words but will consider the Objection as it stands in that Book where the first mention of it was made 1 H. 7. f. 〈◊〉 b. Que le Roy fuist person able discharge d'auscun attainder eo facto qu' il prist sur lui le Reign estre Roy. and that is in the Year Book of Henry the Seventh it being said there by the Judges That the King was a person Able and Discharged of any Attainder eo facto that he took upon him the Government and to be King First This was not only an extra-judical opinion but was not pertinent to the Question referr'd to their consideration Whether those who were chosen into the House of Commons and were at that time attainted of Treason might sit in Parliament till their Attainders were Reversed and they all agree that their Attainders should first be annulled But then they proceed to say that there was no necessity that the Kings Attainder should be Reversed for that he might enable himself and needed not any Act of Reversal But surely they said very wisely in what they said for he who had won a Crown in the field had gone a great way towards enabling himself to wear it Most sure it is that if an Act of Reversal were necessary before he could sit that then it was impossible he ever should sit there because no such Act could be made without the Royal Assent Henry the Seventh was then King de facto and in possession of the Throne and it was somewhat of the latest to consider whether he was qualified or not Certainly it had been strange self-denyal in the Judges and a neglect of themselves which is not usual with them to have alledged an Incurable Disability in the King from whom they had their Patents and Authority In the next place let us consider what precedent the Judges cite to justifie this opinion of theirs and how apposite it is Henry the Sixth being driven out of the Kingdom by Edward the Fourth The Conquerour call'd a Parliament and got an Act to pass whereby Henry was disabled to hold the Crown About ten years after Henry regains the Kingdom and upon this re-accession to the Crown as 't is usually call'd This Act is never repeal'd But does not every Child see the Reasons of it For if Henry was Lawful King and before he was not to doubt that The Act it self was void in as much as it wanted the Royal Assent So that for him to have procured an Act of Repeal had been to affirm a Title to the Crown in Edward But without doubt this opinion of the Judges as it is apply'd by the Objectors was new and unheard of before We see the King of France was otherwise informed by the learned men in the time of King John for they thought his Blood corrupted Mat. Westni 275. v. supra and him uncapable of taking the Crown by Descent because he was Attainted of Treason which prevailed with that King to send over his Son Lewis to put in his claim in right of his wife who was the next Heir It also ought to be observed that the true Reason why the generality of the Nation did so long approve the Title of the House of Lancaster was because all the Princes of the House of York were Attainted of Treason and their Blood corrupted But as soon as ever this corruption was purged and Richard Duke of York was declared Heir Apparent by Parliament the people soon forsook the Lancastrians and set the House of York in the Throne Nay the very learned men of the same Age with these Judges though quite otherwise as will appear beyond contradiction in this samous case which follows Richard the Third had two Elder Brothers Edward and George Duke of Clarence Richard designing to secure the Crown to himself had procured the Children of Edward to be declared Illegitimate yet still the Duke of Clarence had Issue living which might pretend But observe what the Parliament say as to this in the first year of Richard the Third V. Sup. Cott. Rec. 709. That in the seventeenth year