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son_n	brother_n	father_n	sister_n	23,792	5	10.2345	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26169	The fundamental constitution of the English government proving King William and Queen Mary our lawful and rightful king and queen : in two parts : in the first is shewn the original contract with its legal consequences allowed of in former ages : in the second, all the pretences to a conquest of this nation by Will. I are fully examin'd and refuted : with a large account of the antiquity of the English laws, tenures, honours, and courts for legislature and justice : and an explanation of material entries in Dooms-day-book / by W.A.	Atwood, William, d. 1705?; Atwood, William, d. 1705? Reflections on Bishop Overall's Convocation-book.	1690 (1690)	Wing A4171; ESTC R27668	243,019	223

And as anciently as the year 789. an Act was made in a General Convention of all England in Conventu Pananglico that their Kings should be Elected by the Clergy senioribus populi and Elders of the people that is such as were Members of their Great Councils or Witena Gemots Assemblies of Sage and Wise Men. This tho it was long before the reputed Conquest yet was never repealed or cut off by the Sword nay seems received with the Confessor's Laws as included in them 2. It appears by the several instances given in the fourth Chapter and the testimonies there both of Malmsbury and the Publisher of the life of King Alfred That no lineal Succession was observed here before the supposed Conquest 3. The Confessor's Law received by W. 1. Vid. Sup. and continued downwards as the noblest Transcript of the Common Law shews that the Kings of England were to be elected and the end for which they are chosen by the people After the same manner do the ancient Historians and Lawyers as well since that time as before commonly express accessions to the Throne and seem industriously to mind Kings of it that according to the caution given the Jewish Kings Deut. 17.20 their hearts be not lifted up above their Brethren 4. According to the usage from before the reputed Conquest downwards the People are asked Whether they are content to have such a Man King 5. The most absolute of the English Monarchs never believed Cambd. Brit. s 104. de W. 1 Neminem Anglici regi constituo Haredem sed a terno conditori cujus sum in cujus manu sunt omnia illud commendo non enim ta●tum decus hereditario jure possedi c that then Children had a right to the Crown except the people consented that they should succeed as appears by King Alfred's Will and the Death-bed Declaration of William 1. And therefore some of our Kings against whom there has been no pretence of better Title in any particular Person or Family when they stood upon good Terms with their People have often prevail'd with them in their Lives-time to secure the Succession to their eldest Son and H. 2. to prevent hazarding the Succession endanger'd himself by getting his eldest Son Crown'd himself living But as the going no farther than the eldest argues that they looked on that as a Favour the pressing for a Settlement on their Issue in any manner argues That it was not look'd upon as a clear Point of Right without it Of later Times Settlements have been made in Tail which though they were occasion'd by Pretences to Titles are Records against an Hereditary Monarchy according to the common notion which is one that by the original Constitution descends to the next in the Line male or Female V. Leges W. 1. de Fide c. Statuimus etiam ut omnes liberi homines foedere sacramento affirment quod intra extra regnum Angliae Willielmo Regi Domino suo fideles esse volunt c. Leges S. Edw. tit Greve Vid. Juramentum homagii facti Regi 6. The Oaths of Allegiance required of all the Subjects were never extended to Heirs but were barely Personal till Settlements of the Crown were obtain'd upon the Quarrels between the Families of York and Lancaster and though H. 4. obtain'd in Parliament an Oath to himself the Prince and his Issue and to every one of his Sons successively and in the time of H. 6. the Bishops and Temporal Lords swore to be true to the Heirs of R. Duke of York yet perhaps no Oath of Allegiance to the King and his Heirs can be shewn to have been requir'd of the Subjects in general till that 26 H. 8. according to the Limitations of the Statute 25. 7. Even where the People had setled the Crown they seem'd to intend no more than to give a preference before other Pretenders not but that as Ideocy Frenzy or the like might set such an one aside so upon other weighty Reasons they might alter the Settlement Pryn 's Signal Loyalty p. 274. Pol. Virgil. 1. 22. sub initio as appears by Polydore Virgil who was never thought to lie on the Peoples side whatever Evidences for them he may have conceal'd or destroy'd whose words of H. 5. to whom the Crown had been limited by Parliament may be thus rendred Nota Proceres may take in the Nobiles minores Prince Henry having buried his Father causes a Council of Nobles to be conven'd at Westminster in which while they according to the Custom of their Ancestors consulted about making a King behold on a sudden some of the Nobility of their own accord swear Allegiance to him which officious Good-will was never known to have been shewn to any before he was declared King William 2. was elected during the Life of his eldest Brother who was set aside by the English against whom he had discovered Ill-will in spite of the Normans So H. 1. Stephen was elected while Maud the Daughter of H. 1. was alive and H. 2. succeeded in her Life-time upon an Agreement made with Stephen by the Peoples Consent R. 1. as within King John crown'd in the Life-time of his eldest Brother's Son Prince Arthur So was his Son H. 3. in the Life-time of Eleanor Prince Arthur's Sister E. 1. as within E. 2. elected E. 3. set up by the People in his Father's Life-time which the Father took for a Favour R. 2. declared Successor by Parliament in the Life-time of his Grandfather H. 4. of the younger House came in by the Peoples Choice upon their deposing R. 2. H. 5 6. Son and Grandson to H. 4. came in upon a Settlement E. 4. of the elder House came in under an Agreement made in Parliament between his Father who liv'd not to have the benefit of it and H. 6. His Son E. 5. was never crown'd R. 3. who set him aside was of the younger House H. 7. who vanquish'd him could have no Right of Proximity for the Daughter of E. 4. and his own Mother were before him All that came in since enjoy'd the Crown either under the various Settlements of H. 8. or that of H. 7. which took place again in J. 1. or from H. 6. at the highest 8. As the Practice of the Kingdom is an Evidence of its Right numerous Instances might be produc'd of Choices since the supposed Conquest not only so called by Historians but appearing so in their own Natures wherein no regard has been had to Proximity but barely to Blood And I believe no Man can shew me any more than Two since the reputed Conquest of whom it can be affirm'd with any semblance of Truth that they came in otherwise than upon Election express'd by the Historians of the Time or imply'd as they had no other Title or else a late Settlement of the Crown either upon themselves immediately or in Remainder The Two upon which I will yield

Family was barely which of the Competitors all Circumstances being considered was most likely to advance the Publick Interest of which the People were to be Judges whereas according to his Limitation they were bound to take the Person who was next in the Line if he lay not under a natural or moral Incapacity directly contrary to what he shews out of Malmsbury of the West Saxon Kingdom in which after Ina no Lineal Succession was observed When Athelstan Page 15. of his own shewing was chosen King were his Brothers Edward and Edwin under any natural or moral Incapacity Or were the Sons of Edmond Iron-side either way uncapable when Edward the Confessor was elected For Confirmation of what himself produces upon this Head I take leave to add one Authority from the Writer of the Life of King Alfred Vita Aelfredi lib. 1. f. 19. Many Examples says he are found among the Saxon Kings of a Brother's succeeding to the Brother before his Son especially if the Son had any Impediment from the Infirmity of his Age or other Ineptitude for governing Nay OFTEN BY REASON OF LESS MERIT I must admit that for the deposing one actually invested with the Regal Authority the Author's Limitations were to be observ'd tho they were not strictly kept to and I cannot but think that this Author confounds himself for want of this Distinction Either the frequent Examples of setting Kings aside whom the Nation judg'd uncapable of the Government through some natural or moral Defect or Excess or rather the continual Engagements in war with Foreigners had such Effect that from the time of King Edwin Nephew to the English Monarch Edred who was driven out of the Kingdom Anno 957 to the time of W. 1. being 109 Years I find no like Instance but one Anno 1014 52 Years before the suppos'd Conquest which was the case of Etheldred who abdicated the Government and went into Normandy from whence the Nation agreed to receive him again upon Condition si vel rectiùs gubernaret Flor. Wigorn. An. 1014. vel mitiùs eos tractare vellet if he would either govern more according to Law or treat them more mildly Upon which he promiss'd omnia Rege Populo digna All things which become a King to his People For the most part during the Saxon Government a King was but a more splendid General nor could he hope to maintain his Dignity but by hardy Actions and tender Usage of his People Even Will. 1. notwithstanding the Pretence made in after-Ages of his having broken the English Spirit Vid. second Part. was not only oblig'd to keep within Bounds as the following Discourse will evince but to renew his Compact with the People more than once Their extraordinary Power had slept very few Years after the Death of this reputed Conqueror Ed. Lond. Mat. Par. f. 19. Rex Willielmus videns omnes pene regni proceres una rabie conspiratos Anglos fortitudine probitate insignes faciles Leges tributorum lenamen liberasque illis venationem promittendo sibi primo devinxit for the Sickness of his Son W. 2. giving the English Nobility an opportunity of consulting together they almost as one Man were for declaring against him which he timely prevented by fair Promises to them Nay tho his Brother H. 1. came in with the universal Applause of the Nation yet a great part of his Navy deserted him and declar'd for his Brother Robert not because he was the elder Brother but because Henry was unmindful of that Contract which gain'd him the Preference Quia Rex jam tyrannazaverit as the Historian has it because the King prov'd a Tyrant King Stephen his immediate Successor after Allegiance sworn to him had it a while withdrawn for Maud the Empress Daughter to H. 1. but the People soon return'd to it again rejecting her who was nighest in Blood because she deny'd them the benefit of St. Edward's Laws And Discourse p. 21. as the Author of the learned Discourse about the New Separation observes out of Manuscript written by Fortescue Chancellor to H. 6. Maud was set aside and the Reversion of the Crown entail'd on her Son altho she was living and this was done in Parliament Communi Consensu Procerum Communitatis Regni Angliae By the common Consent of the Peers and Commons of England for which Fortescue whose Skill and Integrity no Man can justly question appeals not only to the Cronicles but to the Proceedings of Parliament However this Author will have it that the Commons were not there but as represented by the Barons being misled by the general Expressions of the Historians whose Authority he opposes to the Rolls of Parliament Yet for the purpose here it is enough that this was done by a Parliament of that Time that the Agreement then made was confirm'd by the Oaths of the Great Men and that the Publick Good which was the Foundation of the Agreement was thought to be the measure of the Obligation of such Oaths Hen. 2. came to the Crown by virtue of an Agreement with King Stephen to which the Nation consented for ought appears he was a strict Observer of the Constitution of the Government but being render'd uneasy by the Refractoriness of the Clergy and desirous that his Son should enjoy that Kingdom which he found a desirable Possession to them who would keep the Laws he took his Son into a Partnership of the Care and Dignity this occasion'd a Competition for Power which the Admirers of the traiterous St. Becket improv'd into a War which divided the People Archbishop Parker's Antiquitates Britanicae f. 130. salvâ fide Regi patri quamdiu viveret ac regno praeesse vellet but this being between two Kings both in Possession I should not look on as any Precedent to our Point did I not find that the Allegiance sworn to the Son at the receiving him to the Succession was with a Salvo for that which was due to his Father as long as he should live or think fit to reign CHAP. V. The Barons Wars in the time of King John That he had abdicated the Government That he had lost all means of being trusted by his People How unwilling they were to engage in a War against him They invite over Lewis the Dauphin of France His Case a Parallel to the late Abdication The Vacancy of the Throne insisted on by the French King's Advocate and that thereupon the Barons had right to chuse another King of the Blood Royal of England as Lewis was Why the Barons fell off from Lewis What the Homilies say concerning their inviting Lewis swearing Allegiance to him and fighting under his Banner against King John considered THE Power lodg'd in the People for the publick Good to be sure was rous'd and justified by the Tyrannical Reign of King John who tho he had effectually abdicated or unking'd himself by his giving up his Crown as much as in him

away all the evil Counsellors which the King perceiving again betook himself to the Tower But an agreement being made with some of the Barons by the Queens mediation the King having left the Tower in the Custody of one in whom he confided went a progress and found his Barons very quiet and peaceable but he soon discover'd that he was resolv'd to act without regard to the Provisions at Oxford Violently seiz'd several Castles and coming to Winchester displaced the Chief Justice and Chancellor which had been constituted by the Baronage F. 1335. the Barons met him at Winchester with a considerable Force upon which the King hastens again to the Tower of London The Barons one would have thought were now in a fair way of securing the performance of the last Contract made at Oxford but now the Clergy had their Game to play and acted it like Men who knew how to manage the Nation against its interest they keeping a correspondence with the Clergy of France were Authors of advice to the Barons That all things in difference should be referred to the Determination of the French King no doubt making the Barons believe that they had assurance of that King 's good Wishes for the Prosperity of England Both the King and Barons agreed upon the reference upon which as was to be expected the French King gave Sentence for the King against the Barons and for annulling the Statutes at Oxford with all Provisions Ordinances and Obligations thereunto belonging With this Exception that he intended not by that Sentence in the least to derogate from the Ancient Charter of King John granted to the Kingdom of England Qui habebant sensus exercitatos Which Exception says the Historian oblig'd the Earl of Leicester and others of sound Judgments to resolve firmly to keep the Statutes of Oxford which were founded upon that Charter And Matthew Paris condemns those as guilty of Perjury who upon this A fidelitate Comitis Leicestriae receded from their Faith to the Earl of Leicester who fought for Justice He grew so strong and so successful that the King came again to Terms with him and with the other Barons the Terms were these Mat. Par. f. 1327. That Henry his Brothers Son should be deliver'd out of Prison That all the Kings Castles throughout England should be put into the Custody of the Barons That the Provisions of Oxford should be inviolably observed That all Foreigners shall depart the Kingdom within a certain time excepting only them whose stay should be permitted by unanimous Consent as being faithful to the Kingdom Mat. Par. But notwithstanding all Pacts Promises and Oaths the King sends to have Windsor-Castle besieg'd but was disappointed by the Earl of Leicester After this a Parliament met at London in which several deserted the Earl and adher'd to the King so that he seem'd the strongest The Barons writ him a Submissive Letter declaring That they had no evil Intentions against his Person but complain of his Counsellors The King in his Answer justifies his Counsellors and says their Enemies are his The Barons on the King's side send a defiance to the others and particularly to the Earl of Liecester and to Gilbert de Clare Earl of Glocester and Hereford undertaking to prove them Traytors in the King's Court. Which Tryal the Barons thought they then had Reason to decline but the Barons offer the King 30000 l. for his Damage sustained by the War 1329. provided the Statute of Oxford may be observed but their Proposals not being accepted they came to a pitch'd Battel at Lewis wherein the King was totally routed and taken Prisoner and his Son Edward soon after yielded himself Upon which followed a form of Peace solemnly sworn to while the King and his Son were in Prison Pat. 48. H. 3. m. 6. dors but the Son making his Escape took the Advantage of a Difference between the Earls of Leicester and Glocester Vide Cave de Scriptoribus Eccles f. 716. His Character of that Bp. who animated the Barons Vir erat ut pietatem vitae Sanctimoniam reliquasque virtutes Christiano Praesule dignas praetermittam ingentis animi acris ingenii in re literariâ quantum ea ferebant tempora ad summum pen̄e apicem evectus totum encyclopediae circulum emensus in literis sacris pariter prophanis c. and over-powering Montfort gained an entire Victory at Evesham by the Death of that Earl who as Matthew Paris's Continuator tells us laid out himself for the Relief of the Poor the Assertion of Justice and the Right of the Kingdom and was incited to it by the Famous Grosthead Bishop of Lincoln who always affirmed that they who died in that Cause would be Martyrs The King being victorious no wonder that a Parliament called immediately upon it at Winchester condemned the Conquered for Rebels but it is evident that more Parliaments justified such as then were Rebels for being beaten Falkner's Christian Loyalty p. 349. and methinks Mr. Falkner does not argue with his usual fairness when he urges the unfortunate conclusion of the Barons Wars in the later end of H. 3. as sufficient evidence that if we look into the Records of the former ages we may thence discern that no Subjects whatsoever of this Realm had under any pretence an authority to bear arms against the King The Dictum de Kenelworth 51 H. 3. mentioned by him as an evidence of the sense of another Parliament besides that of Winchester is plainly an abatement of the rigours of that Parliament and was only a determination and award made after Simon Montfort the younger Vid. Brady's Hist f. 655. had submitted to any terms that should be imposed saving his Life and Limbs and excepting perpetual Imprisonment Mr. Falkner adds Anno 52. P. 351. The Statute of Marlbridge mentions it as a great and heavy mischief and evil that in the time of the late Troubles in England many Peers and others refused to receive Justice from the King and his Court as they ought to have done which is more expresly contained in the Original Latin than in the common English Translation Justitiam indignati fuerint recipere per dominum Regem curiam suam prout debuerunt consueverunt and did undertake to vindicate their own Causes of themselves P. 352. Now to declare that all Peers and all other Persons ought to have received Justice only from the King and his Courts and not to revenge themselves or be Judges in their own cases doth more especially condemn the entring into War its self which is an Undertaking founded upon a direct contrary Proceeding And thus we have a sufficient Censure in our English Laws upon that War against the King which those who have pleaded for the Lawfulness of Subjects taking Arms do account the most plausible Instance for their purpose as our Chronicles can furnish them with Answer But to any who consider

Blood was always chosen but the next in Lineal Succession very seldom is evident from the Genealogies of the Saxon Kings from an old Law made at Calchuyth appointing how and by whom Kings shall be chosen and from many express and particular Accounts given by our old Historians of such Assemblies held for Electing of Kings Now such Assemblies could not be Summon'd by any King and yet in conjunction with the King that themselves set up they made Laws binding the King and all the Realm Thirdly After the Death of King William Rufus Robert his Elder Brother being then in the Holy Land Henry the youngest Son of King William the First procur'd an Assembly of the Clergy and People of England to whom he made large promises of his good Government in case they would accept of him for their King and they agreeing That if he would restore to them the Laws of King Edward the Confessor then they would consent to make him their King He swore that he would do so and also free them from some Oppressions which the Nation had groan'd under in his Brothers and his Fathers time Hereupon they chose him King and the Bishop of London and the Archbishop of York set the Crown upon his Head Which being done a Confirmation of the English Liberties pass'd the Royal Assent in that Assembly the same in substance though not so large as King John's and King Henry the Third's Magna Charta's afterwards were Fourthly After that King's Death in such another Parliament King Stephen was Elected and Mawd the Empress put by though not without some stain of perfidiousness upon all those and Stephen himself especially who had sworn in her Father Life-time to acknowledg her for their Sovereign after his decease Fifthly In King Richard the First 's time the King being absent in the Holy Land and the Bishop of Ely then his Chancellor being Regent of the Kingdom in his Absence whose Government was intolerable to the People for his Insolence and manifold Oppressions a Parliament was convened at London at the Instance of Earl John the King's Brother to treat of the great and weighty Affairs of the King and Kingdom in which Parliament this same Regent was depos'd from his Government and another set up viz. the Arch-Bishop of Roan in his stead This Assembly was not conven'd by the King who was then in Palaestine nor by any Authority deriv'd from him for then the Regent and Chancellor must have call'd them together but they met as the Historian says expresly at the Instance of Earl John And yet in the King's Absence they took upon them to settle the publick Affairs of the Nation without Him Sixthly When King Henry the 3 d. died his Eldest Son Prince Edward was then in the Holy Land and came not Home till within the third Year of his Reign yet immediately upon the Father's Death all the Prelates and Nobles and four Knights for every Shire and four Burgesses for every Borough Assembled together in a great Council and setled the Government till the King should return Made a new Seal and a Chancellor c. I inferr from what has been said that Writs of Summons are not so Essential to the being of Parliaments but that the People of England especially at a time when they cannot be had may by Law and according to our Old Constitution Assemble together in a Parliamentary way without them to treat of and settle the Publick Affairs of the Nation And that if such Assemblies so conven'd find the Throne Vacant they may proceed not only to set up a Prince but with the Assent and Concurrence of such Prince to transact all Publick Business whatsoever without a new Election they having as great Authority as the People of England can delegate to their Represantatives II. The Acts of Parliaments not Formal nor Legal in all their Circumstances are yet binding to the Nation so long as they continue in Force and not liable to be questioned as to the Validity of them but in subsequent Parliaments First The two Spencers Temp. Edvardi Secundi were banished by Act of Parliament and that Act of Parliament repealed by Dures Force yet was the Act of Repeal a good Law till it was Annull'd 1 Ed. 3. Secondly Some Statutes of 11 Rich. 2. and Attainders thereupon were Repealed in a Parliament held Ann. 21. of that King which Parliament was procur'd by forc'd Elections and yet the Repeal stood good till such time as in 1 Henry 4. the Statutes of 11 Rich. 2. were revived and appointed to be firmly held and kept Thirdly The Parliament of 1 Hen. 4. consisted of the same Knights Citizens and Burgesses that had served in the then last dissolved Parliament and those Persons were by the King's Writs to the Sheriffs commanded to be returned and yet they passed Acts and their Acts though never confirmed continue to be Laws at this day Fourthly Queen Mary's Parliament that restored the Popes Supremacy was notoriously known to be pack'd insomuch that it was debated in Queeen Elizabeth's time whether or no to declare all their Acts void by Act of Parliament That course was then upon some prudential Considerations declined and therefore the Acts of that Parliament not since repealed continue binding Laws to this day The reason of all this is Because no inferiour Courts have Authothority to judge of the Validity or Invalidity of the Acts of such Assemblies as have but so much as a colour of Parliamentary Authority The Acts of such Assemblies being Entred upon the Parliament-Roll and certified before the Judges of Westminster-Hall as Acts of Parliament are conclusive and binding to them because Parliaments are the only Judges of the Imperfections Invalidities Illegalities c. of one another The Parliament that call'd in King Charles the Second was not assembled by the King 's Writ and yet they made Acts and the Royal Assent was had to them many of which indeed were afterwards confirmed but not all and those that had no Confirmation are undoubted Acts of Parliament without it and have ever since obtained as such Hence I Infer that the present Convention may if they please assume to themselves a Parliamentary Power and in conjunction with such King or Queen as they shall declare may give Laws to the Kingdom as a legal Parliament ALLEGATIONS In behalf of the High and Mighty Princess THE LADY MARY NOW Queen of Scots Against the Opinions and Books set forth in the Part and Favour of the LADY KATHERINE And the rest of the Issues of the French Queen Touching the Succession of the Crown Written in the Time of QUEEN ELIZABETH London Printed by J. D. in the Year 1690. THE PUBLISHER TO THE READER I Thought it not improper to subjoin the following Treatise written by a Lawyer in Queen Elizabeth's Time whether ever printed or no I cannot say in favour of the Title of the Queen of Scots against the Pretences of the Lady Katherine descended from the