might afterwards sail out of abundant care for his Son Henry had him Crowned in his life time which through French Counsels put the Son upon insisting on the Rights of Kingship to the great clamity of the Nation tho' the Subjects swore Allegiance to him with an express Salvo for the Allegiance due to his Father Which whatever some have thought or affirm'd was the only Salvo in the Scotch Kings homage according to ancient custom for the Crown of Scotland To H. 2. succeeded his eldest surviving Son Richard but was not accounted King upon the death of his Father Authors say he was to be promoted to be King by Hereditary Right which is far from being King by Hereditary Right But as the former usage explains such words he deserved to be elected and made King in which sense one of the Authors who lived at the time immediately explains himself mentioning his Coronation Oath after the solemn and due election as well of the Clergy as People Before this he was at first only Earl of Poictou and then Duke of Normandy but not till he had been solemnly invested with the Sword of that Dukedom And Bromton informs us that he accepted the Crown upon condition of keeping his Coronation Oath without undertaking which the Archbishop charged him not to assume the Royal Dignity He going to the holy Wars after his being Crown'd his Brother John would have seiz'd the Government as vacant but had no tollerable pretence the War having been carried on with a National Consent Upon this it was adjudged by a Common-Council of the Kingdom that John should be disseiz'd of all that he held in England which might extend to such right or expectancy as he had in the Crown Notwithstanding which upon Richard's death the great Question came upon the Stage whether the Crown ought ordinarily to go according to the right of Proximity or of Representation The right of Proximity was in John Brother to King Richard this was the Right which the English seem'd to think most agreeable to the Constitution of this Monarchy and is according to the Custom of Normandy for Succession to that Dukedom and as Cujacius supposes of most Nations Foreigners were for Arthur of Brittain as having the right of Representation being the Son of John's elder Brother and this was the Right according to the custom of Brittain in France But as to the Law of England it appears by Glanvil's account of the Law as it was taken in the time of H. 2. that even for the Descent of private Inheritances it was doubtful whether they ought to go to the Grandson by the eldest Son who died in the Father's life time or to his next surviving Son If indeed the eldest Son had in the Father's life time done homage to the Chief Lord for his Father's Inheritance this was held to remove the doubt And Glanvil afterwards says upon the Question between Uncle and Nephew that the condition of the Possessor is the better According to which King John having obtained Possession of the Crown had it rightfully and Arthur had no right to turn him out John being beyond-sea at his Brother's death sent over the Archbishop of Canterbury and the Earl Marshal of England to sollicit for his being admitted to the Throne These Great Men with the assistance of the Chief Justice of England prevailed upon many to swear Allegiance to John and in a Convention at Northampton those Persons were Sponsors for John's doing right to all men upon which condition or in confidence of his performing what had been undertaken in his name the Earls and Barons swore Fidelity to him against all Men yet after this he was formally elected in a full Convention of the States where the Archbishop declares it as matter known to 'em all that no man ought to succeed an other to the Kingdom upon any previous reason unless unanimously elected by the whole Realm c. But if any one of the Royal Stock was more deserving than others his election ought to be consented to the more promptly and readily Notwithstanding what had pass'd in favour of John in the Convention the Archbishop at the time of the Coronation calls him but Earl King John not only took the Oath appointed by the standing Ritual which declares every King of England to be elected but assumed the Royal Dignity as his Predecessor did with the express condition of keeping his Oath Having broken this Contract and notoriously departed from that end for which according to the Confessors Law expresly sworn to by him he had been constituted or created King in making War upon his People with Foreign Forces with which he exercis'd inhuman barbarities and as much as in him lay alienating his Imperial Crown to the Pope he in the Judgment of the Court of France as well as of the States and People of England fell from his Royal Dignity the Throne was become vacant and during the vacancy the Administration devolved upon the States whereupon they resolved to elect a new King and sent a solemn Embassy to the King of France to send over his Son Lewis to be King of England whose wife was John's Sisters Daughter But the chief inducement to this Election seems to have been that expectation in which they were not deceived that the Foreigners would desert John for Lewis Tho they promised to Crown him King they seeing great grounds to dislike his French Temper and Conduct kept him upon his good behaviour without a Crown And having found by the dying Confession of one of his confederates that he had sworn if he came to be once Crowned King he would treat the English as Rebels to their former Prince they soon sent this Probationer packing yet did not hold John to be King After John's death many of the greatest interest in England while Lewis was here and Elianor Prince Arthur's Sister alive in Bristol Castle who according to the vulgar notion ought to have been Queen John's Son but were far from thinking him King upon the death of his Father or from repenting of what they had done to the Father but they thought it adviseable to cut off Lewis his expectation of the Crown to which end the Martial of England Summons a Convention to Glocester where he tells the States that tho' they had justly prosecuted the Father for his evil deeds yet that Infant was innocent because he is the Son of a King and our future Lord and Successer of the Kingdom let us Constitute him our King At last all as with one voice cried thrice let him be made King Here 't is evident that he was not accounted King till Constituted or made and was but a future Lord and agreeably to this Matthew Paris
true lawful and undoubted Heir and Universal Successor to the Crown and Kingdoms of England and France and all the King's Dominions whatsoever and wheresoever beyond the Sea and also has right of universally succeeding the King in the said Crown Kingdoms and Dominions To have to him and the Heirs Male of his Body and in default of such Issue so in remainder to his Brothers In an other Charter pass'd in that Parliament the Inheritance or Hereditation of the Crown is entail'd upon the King and the Heirs Male of his Body then to his four Sons and the Heirs Male of their Bodies successively It seems the next year some doubts arose upon these different Settlements that 5o. then remaining upon Record therefore they cancel and make void the Letters Patent of the Entail 5o. and change and amend that Settlement which they seem to have thought defective 1. In only declaring the Prince Heir Apparent and Inheritable to the Crown which was no more than to declare him before others qualified to succeed if the States should Elect him 2. In declaring him Inheritable only to the Crown of England without mentioning its appurtenances seeming to think that in Grants of this Nature nothing would pass by implication But to prevent all ambiguities they being as is said in that Record met in a Parliament according to the Custom of the Kingdom for divers Matters and Things concerning the King and his Kingdom The King with common Consent of the Kingdom Enacts That a new Patent be Sealed constituting Prince Henry Heir Apparent to succeed the King in his Crown Realms and Dominions to have them with all their appurtenances after the King's Decease to him and the Heirs of his Body and so in remainder to his three Brothers successively whereby they had a larger Estate than by the Entail 7º which was to Heirs Male Thus by Virtue of one or more Settlements by Authority of Parliament H. 5. succeeded and yet it was thought a great instance of the confidence the States had in him that in a Convention or Assembly holden according to Ancient Custom in which they treated about creating a new King some of the Nobility immediately Swore Allegiance to him before he had been declared King But it is to be observed that whereas his Father died the 20th of March he is said to be created King on the 5th of April Death cutting off the course of his Glories his Infant Son H. 6. came in under the Parliamentary Entail but the Administration was held to have fallen upon the States who accordingly after having declared H. 6. King in full Parliament pass'd a Patent constituting Humfry Duke of Gloster Protecter of the Realm John Duke of Bedford Regent of France and Henry Beaufort Bishop of Winchester and Thomas Beaufort Duke of Exeter Governors of the young Prince The Death of the brave Duke of Bedford occasioned not only the loss of France but the raising the Family of York to a pretence which in all probability had been buried to this day had not H. 6ths treacherous Ministers put him upon making Richard Duke of York Regent of France after being High Constable of England and Lieutenant of Ireland With these advantages Duke Richard set up under a Mask of Popularity as if he only sought redress of grievances while himself was the only National Calamity As nothing but success could give him any colour of Title he was forced to conceal his Ambition even from his own Party till 26 H. 6 yet after that acknowledged and swore to H. 6ths Right and confirm'd it with the Sacrament which Solemnities were to be subservient to his imaginary Divine Right Tho' by his Frauds and Perjuries he often came within the prospect of a Crown 38 H. 6. he was deservedly Attainted of High-Treason and an Association with an Oath was voluntarily enter'd into by the Lords wherein every one severally acknowledges H. 6. to be his most redoubted Lord and rightwish or Rightful by Succession born to Reign over him and all the Kings Liege People that he will do his utmost for the We le and surety of the King's Person of his most Royal Estats and the very conservation and continuance of his most high Authority Preheminence and Prerogative and for the preservation of the Queen and of Prince Edward his Right redoubted Lord the Prince that after the King's Death he will take and accept the Prince for his Sovereign Lord and after him the Issue of his Body lawfully begotten for want of such Issue any other Issue of the Body of the King that he will never give Aid Assistance or Favour to any thing contrary to the premises and that he will put himself in his due undelayed devoir with his Body Goods Might Power Counsel and Advertisement to resist withstand and subdue all that should presume to do contrary to the premises or any of them This Association not being General throughout the Kingdom had no great effect not so much from any belief the Nation had of Richard's being injured as from the burdens a Treacherous Ministry induced a weak Prince to lay upon the Subjects This made the Commons of Kent invite over from abroad the Duke and his Party who had fled from Justice then the Tide turn'd and the King became wholly in the power of the Duke of York under whose awe and influence a Parliament was call'd where he laid claim to the Crown with circumstances which one would think were enough to give any Man a face of Title and yet his pretended Divine Right countenanc'd by Providence was mightily qualify'd by the courage of the Parliament and their regard to the Constitution of this Monarchy His claim was as Son to Ann Daughter to Roger Mortimer Son and Heir to Philippa Daughter and Heir to Lionel Duke of Clarence third Son to E. 3. whereas H. 6. descended from John of Gaunt the 4th and eldest surviving Son After Debate among the Lords upon this matter these Objections were agreed upon against Richard's pretence of Title 1. The Oaths they had taken to the King their Sovereign Lord. 2. Acts of Parliament made in divers Parliaments of the King's Progenitors of Authority sufficient to defeat any manner of Title to be made to any Person 3. Several Entails made to Heirs Male 4. That Richard did not bear Lionel's Arms. 5. That H. 4. took upon him the Crown not as Conqueror but right Inheritor to H 3. All that is urged materially against this for Richard is 1. That Oaths do not bind against God's Law and that requires Truth and Justice to be maintain'd but this being a Spiritual matter he refers to any Judge Spiritual 2. That there was but one Entail of the Crown 7 H. 4. but that this was void against the right Inheritor of the Crown according to God's law and all Natural laws 3. It could
and true Allegiance to King William will be wiser than the Law not only declared by this Act of Parliament but by several in former Reigns and with a gross Jesuitical evasion without any colour of foundation in Law or Reason pretend that they have sworn to K. William only as King in Fact but that another was rightful King at the same time This groundless and wicked distinction appears to have engaged some Men in an horrid and barbarous Plot against his Majesty's Person and Government tho' they had sworn to be true and faithful to him and it seems by the case of Sir John Perkins that neither he nor his Casuists thought the Oath to King William any departure from the Allegiance to King James nor the design of Assassinating King William any breach of the Oath to him Since therefore the deceit has taken rise from the supposition that the late King continues King of Right together with the general terms of the Oath which are pretended to leave a latitude for this illegal and nonsensical supposition and an Oath more explicit has been artfully kept off a voluntary Declaration that his present Majesty King William is Rightful and Lawful King of these Realms as it is fully warranted by the fundamental constitution of this Government is at this time become a necessary duty when it is evident to the World what they who are of a contrary Opinion will act as they have opportunity But to engage to stand by and assist each other in the defence of His Majesty's Person and Government is not more a consequence of the declaring him rightful and lawful King than it is implied in the Oath of Allegiance appointed by the Act of Parliament which settles the Crown and however the Common-Law Oath and the legal sense of Allegiance manifestly require it If any who have taken the Oath of Allegiance to his present Majesty scruple to associate because of the declaring His Majesty to be rightful and lawful King it is evident that they prevaricated when they swore If they questioned the legality of entring into this before there was a positive Law for it 't is certain they have been little acquainted with the Common-Law Oath of Allegiance and the warrantable Presidents of former times according to which the late Act late Act which enjoyns some to Sign the Association not only gives it Sanction for the future but with express relation to its being voluntarily enter'd into by great numbers of His Majesty's Subjects declares that it is good and lawful And any Man who impartially weighs what I have laid together from Records and other Authentick Memorials of pass'd times must own that it is with full and indubitable Authority enacted That if any person or persons shall maliciously by Writing Printing Preaching Teaching or advised speaking utter publish or declare that His present Majesty is not the lawful and rightful King of these Realms or that the late King James or the pretended Prince of Wales hath any Right or Title to the Crown of these Realms or that any other person or persons hath or have any right or title to the same otherwise than according to an Act of Parliament made in the first year of the Reign of His present Majesty and the late Queen Intituled An Act declaring the Rights and Liberties of the Subject and settling the Succession of the Crown such person or persons being thereof lawfully Convicted shall incur the danger and penalty of Praemunire To imagine that after all this the late King either is or ought to be King is to flight all Authorities Ancient as well as Modern Which leads me to the Nature of our Lawyer 's offence who before the Act for the Security of His Majesty's Person and Government held the Signing the Association to be an Overt-Act of Treason against the King de Jure which as has appeared above tends manifestly to depose and unking His present Majesty as in the Eye of the Law there is but one King and he is the only King de Jure Besides this Gentleman admits That by the Statute 11 H. 7. Allegiance is due to a King in Fact and that the Oath of Allegiance was to be taken to him nor can pretend that there ever till of late was any other Oath but what expresly obliged to the Defence of the King and Kingdom against all Men therefore in consequence of his own Notion he must grant that to contend that there may be Treason against any other but the King for the time being is to suppose two contrary Allegiances and therein to depart from that Allegiance which was due even by his own interpretation of the Statute 11 H. 7. But it being evident that by that Statute and the whole course of the Common Law there is but one King I need not tell him the Crime of publishing a written Opinion manifestly importing an endeavour to Depose him If this had been delivered only in Words it is well known who used his Oratory to make words alone Treason within the Statute 25 E. 3. for which I may refer him to the Trial of the now Earl of Macclesfield in the beginning of the late King's Reign and to the Author of the Magistracy and Government Vindicated But as the Opinion was written he may well know from what late Authority Soribere est agere is become a Maxim or Proverbial Nor can he deny the Words to be within the reason of what the Court held in Flower 's Case of a Man's affirming the King to be a Bastard or that another had better Tittle to the Crown because it may draw the Subjects from their Allegiance and beget Mutiny in the Realm or Owen's Case of declaring it Lawful to kill the King being Excommunicated by the Pope both which not to mention more of the like kind were adjudged High-Treason According to the Print of the later Case it would seem that Words alone made the Treason ' but it appears by a MS. Report of one who had been Attorney General and afterwards Chief Justice of the Common-Pleas that Owen's Subscribing his Confession of what he had publickly declared was given in Evidence as the Overt-Act But if any Lawyer who has labour'd to make Treason of Words alone or Writing alone without Publication or Signing an Association to defend the King for the time being against one who had been King but is not should appear not only to have Written or Signed the Opinion above after a Discourse shewing to what Persons it related but to have publish'd this and to have Solicited Men not to Subscribe the Association upon those or the like topicks should he be Convicted of High-Treason against our Sovereign Lord the King it would be difficult not to apply that of the Poet Nec lex est justior ulla Quam necis artifices arte perire suâ None can the Justice of that Law deny By which who strain'd it against others dye FINIS The
Opinion No Treason against any King but the Regnant nor has any other Person Right against him or his Issue 3 Inst F. 7. a Hales's Pleas of the Crown p. 11. b Nota In the Act 1 H. 7. restoring H. 6. of the younger House His Eldest Son Edward who died in his life time is called Prince of Wales Rot. Parl. 1 H. 7. N. 16. c 3 Inst Proof of the 2d and 3d General Heads Stat. 11. H. 7. c. 1. Vid. Leges W. 1. c. 52. de fide obsequio erga Regem Cap. 58. Proof of the 3d. General Head Vid. Printed Stat. 1 H. 7. * Ret. Parl. 1 H. 7. n. 3. †Vid. Abridg. Stat. usque ad 15 H. 8. ‖ Stat. 1 H. 7. 6. Vid. Inf. Ret. Parl. 1 H. 7. n. 16. Restitutio H. 6. Obj. 3 d. Proof of the 4 th and 5 th General Heads Bede Lib. 1. cap. 1. Vbires veniret in dubium magis de foemineâ regum prosapiâ quam de masculinâ fibi eligerent a Lib. 5. c. 24. An. 725. b Lib. 4. c. 11. Susceperunt Subreguli regnum gentis divisum inter se tenuerunt annis circiter decem c Ib. c. 12. d An. 730. Cart. Orig. in Eib. Cot. e Bede Lib. 4. c. 26. Circiter an 685. Per aliquod spatium reges dubii vel externi disperdiderunt donec legitimus Rex Victred c. f Mon. 1. vol. f. 28. An. 764. g Ib. col 1. An. 762. Ib. col 2. alt cart h Cart. Orig. in Bib. Cot. i An. 699. k Leges Sâ—i Edw. Lamb. Arch. Bib. Cot. sub effig Claud. D. k Cron. Sax. nuper ed. Cujus prosapia oriunda est Cerdico l Malms f. 7. Quam successivae sobolis prosapia m Non parum lineâ Regiae stirpis exexorbitaverunt n Cron. Sax. p. 16 61. o Cron. Sax. Bromton col 770. super populum regnum elegerunt p Spelm. Conc. 1. vol. f. 291 292. q Fund Const 1. part f. 80. r Bracton l. 2. c. 29. Concil Calchuthense Legantinum Pananglicum An. 787. Haeres Patriae An. 800. vel Potius 801. s Cart. in Regist Ab. Bib. Cot. Claud. B. Cum licentià consensu totius gentis nostre c. t Few Historians take notice of him vid. tamen Bib. Cot. Domitian A. 8. Sax. Lat. which shews him to have been King of Kent Surrey and Suffex x Evid Ec. Cant. inter Decem script col 2220. y Bib. Cot. Julius D. 2. f. 125. a z Vid. Cart. Orig. in Bib. Cot. eod An. Egbert Ethelwolf acting together both Kings a Mon. 1. vol. f. 195. An. 843. Welding ealle Britone b Asser Men. ending with the life of King Alfred f. 156. c Nic. Gloc. in Bib. Cot. Caligula A. Ending with the life of Ethelwolf d Rituale in Bib. Cot. Coronat Ethelredi H. 1. e Pictav de Gestis ejus f. 205. f An. 855. g Bib. Cot. Tiber. B. Albas Floriacencis h Exantiq Sax. nobili prosapia oriundus c. Omnium comprovincialium i Exgeneris Successione i Asser Men. k Cron. de Mailros l Bradies Introd f. 359. m Asser Epistola haereditaria immo commendatoria n Append. vitae Alfredi o Ita Haereditas Aethelwolfis Rs. primei ad me devoluta est per cartam inde confectam in concilio nostro apud Langedene p Ethelwerdi Cron. f. 479. Ordinati sunt filii ejus c. q Cron. de Mailros f. 143. An. 160. An. 160. r Append. sup s Polycron R. Higden f. 255. S. Dun. f. 125. 126. An. 872. t Append. Sup. De haereditate quam Deus ac Principes cum senioribus populi misericorditer ac benigne dederunt s S. Dun. A ducibus presulibus totius gentis eligitur non solum ab ipsis verum etiam ab omni populo adoratur ut eis praeseset t Asserii Annales Huntindon u Vid. his Book dedicated to Maud Wife to W. 1. M S. in Bib. COT. Ed. Ipse stemmate regali a Primatis electus An. 925. or 924. x Mat. West f. 180. Selden's Notes upon Polyolb f. 211. MS. Lelandi Wendover MS. in Bib. Cot. y Cron. Sax. p. 11. Huntindon f. 204. Electus est Rex in Merce An. 944. z Bib. Cot. Vitel. D. 15. vita sti Dunstani Autore Osberno Dorob edit Inser script sub nomine Anglia sacra Successst in iure frarris a Bib. Cot. Cleopat B. 13. Alter autor vitae Sti. Dunstani Mox proximus haeres Eadredus c Vid. Enquiry said to be Dr. Bradies p. 14. and the Doctors Introd f. 364. d Bib. Cot. Sup. An. 955. Post hunc surrexit Eadwig regnandi gratiâ poliens licet in utraque plebe Regum numeros nomina suppleretelectus e Quoniam in commisso regimine insipienter egit f Ib. Hoc ita omnium conspiratione relicto elegere sibi Do. dictante c. g Ib. Et regnum ipsius velut aequus haeres abutroque populo electus h Bib. Cot. i An. 975. k Osbernas sup Vitellius A. 20. l Bib. Cot. Regist Magn. Abendoniae sub Effig Claud. B. f. 89. b Omnes utriusque ordinis Optimates ad regni gubernacula moderanda fratrem meum m Vid. Dr. Bradies use of this Introd f. 360. Eaduuardum elegerunt c. miho terras ad regios pertinentes filios in meos usus tradiderunt Ar. 979. * Bib. Cot. sub Effig Claudii A. 3. Ab Episcopis a plebe electus m Ib. volumus concedimus n Benedic domine hunc pure electum Principem Firmatum est pactum inter Regem populum suum firma amicitia jure jurando etiant statutum est ut nunquam amplius esset Rex Danus in Arglià o Bib. Cot. Domition A. 8. sup p An. 1015. or 1016. q Knighton f. 2320. Misit clameum c. r Malms f. 39. Dani Cnutonem eligunt s Internal vid. Argl. Saer Hist Maj. Winton ' Cujusdam Ducis fil nomine Algivam accepit in Concubinam exqua genuit filium nomine Edmundum Irâ—â—side Et t Cited and applied Spelmans Glos f. 277. Bib. Cot. Cleoâ— B. 13. De regno nominibus Regum Anglor c. De Edm. Irnenside Iste erat Bastardus a Ingulfas f. 58. b Leofric Comes tota nobilitas exparte Aquilonis fluminis Tamesiae elegerunt Haroldum Hardecnut fratrem ejus c. Edw. Conf. Vid. etiam ib. Cleop. A. 7. c Bib. Cot. Abbrev. Cron. fin ' temp Cron ' breve ad An. 1062. Haraldus Rex eligitur ab omni populo Angl. d Malms f. 43. e Vid. Scrip. Norm Eucomium Emmae Regno haereditatis vestrae privamini f Gemet f. 271. g M. S. cited in Monast 1. vol. Regni cura Reginae assensu Magnatum consilio Comiti Godwino commitritur donec qui digrus esset eligeretur Bib. Cot. Domit A. 13. Cron. Wint. h Gemet f. 271. Ipse autem