60. Why with these unjust exactions do not the Barons require the Kingdom and swore he would never grant such Liberties whereby he should be made a Servant However he was afterwards at Runing-mede compelled to sign the Charter there being with him but eight or nine Bishops four Earls and some twelve Barons as Matthew Paris numbers them but he saith as to those present on the behalf of the Barons the Company was innumerable as being tota Angliae Nobilitas in unum collecta Therefore the King grants them the Liberties by way of Charter (i) Idem fol. 215. num 13. per consilium venerabilium Patrum nostrorum c. and so recounts those that were present with him not mentioning any of those that were against him as I remember This was the Charter which Henry the third (k) Idem fol 216. num 30. confirmed and is called Magna Charta the principal matter in it which relates to my purpose was that he made some alteration in the manner of Summoning Members to the Great Council viz. The alteration of the Summoning the Members to the Great Council Note In this Charter the King grants he will raise no Money on the Subject without Consent but in three Cases to redeem his Body make his eldest Son Knight and marry his eldest Daughter And the like Power others â— had over their Liberi homines That the Archbishop Bishops Abbats Earls and greater Barons of the Kingdom should be summoned by special Writs and that he would cause to be summoned by the Sheriffs and his Bailiffs those which held in Capite of him to a certain day by general Summons So that it is apparent that the Great Councils heretofore had only consisted of such Earls and great Barons and Tenents in Capite as the King by special Writ pleased to Summon and this new way brought in a greater number of the Tenents in Capite but still here were no Representatives of the Commons In the Charta de Foresta the King saith Dei intuitu c. ad emendationem Regni nostri spontanea bona voluntate nostra dedimus concessimus pro nobis haeredibus nostris has libertates subscriptas The King was sore vexed He repents his granting the Charter that these Liberties had been extorted from him and sent to Pope (m) Idem 224. Innocent who also absolved him from the Obligation upon the ground that he had given (n) Id. 227. num 20. The Pope absolves him the Kingdom to St. Peter and the Church of Rome and so could make no such Charter without his leave and after he Excommunicated the Rebellious Barons In this Charter as in all the rest of the Charters of Liberties we (o) Animad on Jan. Augl fol. 167. The King 's Grant by Charter a good Law then may observe that the Petitions of the People were drawn into the form of a Charter and passed under the Kings Seal as his meer voluntary free Grants and Concessions without any Votes Suffrages or Authority of the People So Matt. Paris saith of this Charter that when King John saw the Barons too powerful for him (p) Fol. 255. num 30 50. gratanter eis concederet Leges Libertates quas petebant he willingly granted the Laws and Liberties which they asked or petitioned for So in the Charter it self (q) Ibid. fol. 256. lin 18. Concessimus etiam omnibus liberis hominibus nostri Regni Angliae pro nobis haeredibus nostris in perpetuum omnes libertates subscriptas habendas tenendas eis haeredibus suis de nobis haeredibus nostris that is And we have also granted to all our Free-men of the Kingdom of England for us and our Heirs for ever By Freemen here to be understood the Tenents in Capite all the under-written Liberties to have and to hold to them and their Heirs of us and our Heirs c. CHAP. XXVI Of the Great Councils and Parliaments during the Reign of King Henry the Third to the end of the Reign of King Edward the Third THE first great Council I find in this Kings Reign was on the Eighth of the Octaves of (a) Matt. Paris fol. 266. num 60. Epiphany Anno 1223. 7 H. 3. The King having kept his Christmas at Oxford came to London to have a Colloquium with his Barons and the Archbishop and other Magnates pressed the King to confirm the Liberties and Free customs for which Wars had been moved against his Father and which he had confirmed by Oath upon the recess of Lewis of France to which also he said the (b) Juravit tota Nobilitas cum eo quod libertates praescriptas omnes observarent omnibus traderent observandas Ibid. whole Nobility had sworn that they would observe them and deliver them to all others to observe To which William Briwere one of the Kings Council answering for the King said The Liberties they desired being violently extorted from the King they ought not of right to be observed From whence we may observe Liberties violently extorted from the King not binding that whatever claims were made for Liberties still they were grounded on the Monarchâ— Concessions and such as were by any violence wrested from the Kings were not reputed binding to the Crown In the Octaves of the Holy Trinity the Eighth of Henry the Third there met at a Colloquium at Northampton the King with (c) Rex cum Archiepiscopis Episcopis Comitibus Baronibus aliis multis de Regni negotiis tractaturus Idem fol. 269. num 60. 270. the Archbishops Bishops Earls and Barons and many other to treat of the Affairs of the Kingdom By these alii multi the Tenents in Capite are to be understood which more numerously appeared since King John's Charter This Great Council was intended for the relief of Poicton but Falcacius de Brent having seiz'd on Bedford Castle and taken Henry de Berybroke one of the Kings Itinerant Justices obliged the King to prosecute him At this (d) Idem fol. 271. num 20. Council the Prelates and Laics gave the King for his great Labours and Expences 2 s. upon every Plough The King grants the Tenents in Capite Scutage upon their Tenents and the King granted to the Magnates 2 m. out of every Knights Fee This was to be levied by the Magnates such as held of the King in Capite of their Tenents to reimburse them what they had expended in aiding the King And so the Council broke up But the King 9 Regni Anno 1225. (e) Idem fol. 272. num 20. keeping his Court at Christmas at Westminster praesentibus Clero Populo cum Magnatibus Regionis After the Solemnity was passed Hubert de Burgo the Kings Justiciary on the part of the King proposed to the Archbishops Et alâ—â—t universis Bishops Earls Barons and all the Vniverse that is the Tenent in Capite the damages and
without citing or hearing them For if they had such Power we should be the greatest Slaves and live under the most arbitrary Government imaginable Therefore an absolute Prince cannot in an Hereditary Kingdom where the Successor is to succeed Jure Regni (z) Nulla clausula Successori Jus auferri potest modo succedat ille Jure Regni Aristaeus c. 7. num 5. prejudge the Successors right of Succession for the same right the present King hath to the Possession the next of Blood hath to the Succession Therefore Hottoman Lib. 2. de Regno Galliae affirms That ea quae Jure Regni primogenito competunt ne Testamento quidem Patris adimi possunt That in the absolute Monarchy of France The Father cannot by his last Will deprive the First-born of those things which belong to him by Royal right So when the King of France designed to break the Salique Law of Succession as in the Reign of Charles the Fifth it was found impracticable by the three States So when Pyrrhus would have preferred his younger Son to the Crown (a) Pausanias lib. 1. the Epirots following the Law of Nations and then own refused him So Anno 1649. when Amurat the Grand Signior left the Empire to Han the Tartarian passing his Brother Ibrahim the whole Officers of State did unanimously cancel the Testament and restored Ibrahim the true Heir though no other than a Fool. So if Kings could have inverted their Succession Saint Lewis had preferred his own Third Son to Lewis his Eldest and Alphonsus King of Leon in Spain had preferred his Daughter to Ferdinand his Eldest Son and Edward the Sixth of England had preferred and did actually prefer the Lady Jane Grey to his Sisters Mary and Elizabeth Thirdly It is undeniable in the opinion of all Lawyers That a King cannot in Law alienate his Crown but that the Deed is void nor can he in Law consent to an Act of Parliament declaring that he should be the last King For if such consents and Acts (b) Jus Regium p. 163. had been sufficient to bind Successors then weak Kings by their own simplicity and gentle Kings by the Rebellion of their Subjects or being wrought upon by the importunity of their Wives or Concubines or the mis-representation of Favourites might do great mischiefs to their People in raising up continual Factions of the miseries of which I shall speak hereafter This is owned in Subjects That the Honour and Nobility that is bestowed upon a man and his Heirs doth so necessarily descend upon those Heirs that the Father or Predecessor cannot exclude the Successor or derogate from his Right by renouncing resigning following base or mean Trades or such like For Fab. Cod. 9. tiâ— 28. say the Lawyers since he derives his Right from his old Progenitors and owes it not to his Father his Fathers Deed should not prejudge him so much more in Kings the ill consequences of such violations of Justice and Right being infinitely more destructive the Predecessor should not do any Act to prejudice his Successor For that right of blood which makes the Eldest First makes the other Second and all the Statutes that acknowledge the present Kings Prerogative acknowledge that they belong to him and his Heirs For as a Prince cannot even ex plenitudine potestatis legitimate a Bastard in prejudice of former Children though they have only but an hope of Succession much less can he bastardize or disinherit the Right Heir who is so made by God and honoured from him with the Character If therefore Kings how absolute soever cannot de jure invert the natural order of Succession there is no reason that the States of Parliament should have such a Power For by the known Laws they have no Legislative Power otherwise than by assenting to what the King does and all that their assent could do would be no more than that they and their Successors should not oppose his nomination because of their consent but that can never amount to a Power of transferring For if the States of Parliament had this Power originally in themselves to bestow why might they not reserve it for themselves and so perpetuate the Government in their own hands So Judge Jenkin asserts according to Law That no King can be named or in any time made in this Kingdom (d) Liberty of Subject p. 25. by the People Kings being before there were Parliaments and there is good reason for then the Monarchy should not be Hereditary but Elective the very Essence of Hereditary Monarchy consisting in the Right of Succession whereas if the Parliament can prefer the next save one they may prefer the last of all the Line and the same reason by which they can chuse a Successor which can only be that they have Power above him should likewise in the opinion of a very (e) Jus Regium p. 167. learned Person justify their deposing of Kings as we saw in the last Age that such reasons as of late have been urged to incapacitate the Children of King Charles the First from the hope of Succession viz. Popery and Arbitrary Government did embolden men to dethrone and murther the Father who was actual King For if it were once yielded that the Houses had a Right in themselves to take care for the Salus populi that none but such Princes should succeed who were approved of by the prevailing Faction in their body nothing but confusion would follow one Party having their Votes seconded by force one time and a quite contrary another yet all pretending the Publick Weal and so a large breach should be made by pretending to stop one dangerous Successor to the inflowing of successive Usurpers and thereby the Crown should not only by ambulatory but unstable upon every head that wore it and alwaies in danger of a bloody surprise till at last the Regalia being secured from the expectant Heir the Factious would find a way to pillage them from the present Soveraign and convert them into a Mace for an House of Commons I writ this Part with greater Enlargements in answer to the plausiblest Arguments for the Bill of Seclusion while that matter was in the hottest agitation But since there will be no need of dilating upon that Subject now that God Almighty hath so signally determined the Controversie by the peaceable settlement of his Majesty upon his Throne I shall close this Chapter with some few remarks of the miseries have been brought upon Kingdoms and especially upon this by the disjoynting the Succession So we read what dreadful (f) Jus Regium p. 166. mischiefs arose from Pelops preferring his younger Son to the Kingdom of Mycene The Miseries which Kingdoms have sustained where the Succession hath been interrupted from Oedipus commanding that Polynices his Youngest Son should reign interchangeably with the Eldest From Parisatis the Queen of Persia's preferring her Youngest Son Cyrus to her Eldest Artaxerxes From Aristodomus admitting
de Sabaudia J. Filius Galfridi Jacobus de Audel Petrus de Monteforti vice totius Communitatis praesentibus Literis sigilla nostra apposuimus in Testimonium praedictorum So that it is plain it was not Peter de Montefort that signed vice Communitatis but they all did it and he was a great Baron himself the Head of whose Barony was Beldesent Castle in Warwickshire I think it not amiss here to offer my Opinion concerning this Question and the great Controversie betwixt Dr. Concerning the Commons first summoning to Parliament Brady and Mr. Petyt and those that are so earnest to find the Commons summoned to Parliament before the 49 H. 3. before King John granted his Charter wherein he grants that he will cause to be summoned the Archbishops Bishops Abbats Earls and greater Barons of his Kingdom singly by his Letters and besides (i) Et Praeterea faciemus submoneri in generali per Viâ—ecomites Ballivos nostros omnes alios qui in Capite tenent de nobis Matt. Paris fol. 216. Edit ult num 20. will cause to be summoned in general by his Sheriffs The Tenents in Capite in stead of the Representative Commons as now and Bayliffs all others which hold of him in Capite at a certain day there is no doubt but the Tenents in Capite such of them at least as were eminent for Parts or as the King pleased were summoned to the great Councils and it being in that Charter said that the cause of the Meeting should be expressed in the Summons and that Forty days warning should be given and in the same Charter that the City of London should have all its ancient Liberties and free Customs and that all other Cities Burghs and Villa's which was of the same import as a Free Burrough as we find in Pontefract which is always stiled Villa Some summoned from Cities and Burroughs before King John's time but not as our Citizens and Burgesses now by Representation and the Inhabitants Burgenses who held a certain Land called Burgage Land and the Barons of the Cinque Ports and all the Ports should have all their Liberties and their Free Customs ad habendum commune concilium Regni de Auxiliis c. that is as I suppose to have some of their Members at the great Councils where Aids were to be granted to the King other ways than in three cases before excepted that is to redeem the Kings body to make his Eldest Son a Knight and to marry once his Eldest Daughter excepting which three Particulars reserved before in his Charter he had granted that no Scutage nor Aid should be laid on his Kingdom unless by the Common Council of his Kingdom From whence I think may be inferred that such Cities Burroughs and Villa's which held in Capite or the Lord that was principal owner of them by his Praepositus Ballivus or some that held immediately under him and so some for the Dominicae Civitates Burgi Regis might be summoned with the lesser Barons or the other Tenents inc Capite But this doth not prove them to come by way of Representatives nor that they had any more Power than the Knights Citizens and Burgesses had in after-times which as I have made it apparent by the several expressions in the Summons was only to hear and assent to what the King and Magnates ordained Since there are now extant no Summons in King John's time or before the 49 H. 3. except some few that are about the Tenents in Capite aiding the King in his Wars the subsequent Practices are the best Expounders of ancient Usages Upon the whole I do judge that before King John's Charter there were many of the Tenents in Capite summoned to the great Councils but so as the King had his liberty to summon whom he pleased and that some from Cities Burghs Villa's and other Ports did come to the great Council but still at the Kings pleasure and that in King John's time the body of the Kingdom siding with the Lords that so often rebelled against him the Lords thinking to make their Party stronger got the Clause for other Tenents in Capite to be summoned by general Summons After King John's Charter the Tenents in Capite so numerous as might be reputed an House of Commons Now whatever number were convened before King John's Charter this general Summons must greatly encrease the House of Commons as I may call it and there needs no such strife about the want of Freemen in these Councils for after this Charter all who were properly Freemen were capable the other were generally Tenents to them and Homagers which was a Tenure that though it might free their Persons yet their Lands were obnoxious to forfeiture upon every breach of Homage and their Lords had the power of taxing them so that in some sense they were their Tenents Representatives and as long as they were Freeholders themselves and were a more numerous body if they all appeared as for any thing I see they might do if not hindred by Impotence Nonage or the Kings service they far exceeded the number of Representatives in the Reigns of King H. 3. E. 1. and E. 2. So that it amounts to the same thing as to the general Freedom of the Nation when all these were Members of the Great Councils Who properly Freeholders in Kâ— John's time whether the common Freeholder were represented or not as now which Dr. Brady hath so nervously confuted every where in his Introduction that they were not that I think the Freedom Mr. Petyt Mr. Pen and others make so great a coyl about no ways impaired by Dr. Brady who like a judicious Person would have us use propriety of Speech and rather be thankful for the Freedom we now enjoy and our Ancestors have from time to time obtained by the grant of Kings than to make such Claims to native Freedoms and Liberties as Mr. Pen would have it that our Ancestors contended for as if their Ancestors had enjoyed them before we had any Kings and stipulated with their Kings for them before they admitted them to Soveraignty which no considering person that will impartially read ancient History either of our Country or others can find any certain footsteps of To return now to the business which the foregoing observation gives some light to I conceive as the Thegns the Kings Prepositi and Reeves As the Thegns in the Saxon-times so the Praepositi Reeves c. of Burroughs after by reason of their Imployments about the Kings Demesn Lands governing of Burroughs Stewards of Hundreds Wapentakes and men employed in other civil Affairs of the Kingdom did meet in the Saxon Councils so from Cities and Burroughs where great Lords had Fees as most if not all of them may be easily proved to have been held immediately of the King or of some of the very great Barons there might come before King John's time some Members to the great
vertuous but less innocent for there is rarely any rising without a Commixture of good and bad Acts but it is reasonable that the Memory of their Vertues remain to Posterity and their Faults dye with themselves (c) miserum est aliorum incumbere famae Ne collapsa ruant subduct is tecta columnis Juv. Sat. 8. v. 77 78. It is glorious in the Progeny of the old Nobility and useful to themselves their King and Country to study to imitate the Perfections and eschew the Imperfections of their noble Progenitors who were Founders of their Families and Honours They no doubt were Learned Judicious and able Ministers of State such as eased their Prince of their otherwise unsupportable Burthen of Government such as were sensible of the true Fountain of Honour true Patriots of their Country because zealous for the established Government and coveted not to make themselves popular in opposition to their Prince Honour is one of the prime Badges of Nobility The Use of Nobility the winning of that saith (d) St. Alban's Essays Of Honour and Reputation the learned Chancellor is the revealing of a mans Virtue without disadvantage If a man perform that which hath not been attempted before or attempted and given over or hath been atchieved but not with so good Circumstances he hath purchased more Honour than by effecting a matter of greater difficulty or Virtue when he is but a follower Honour that is gained broken upon another hath the quickest reflection like Diamonds cut with Fucets therefore it s commendable for any to exceed his Competitors in Honour by outshooting them in their own Bows (e) Idem Essays c. 14. A Monarchy where there is no Nobility at all as among the Turks is ever a pure and absolute Tyranny For Nobility attempers Soveraignty a great and potent Nobility addeth Majesty to a Monarch but diminisheth Power putteth Life and Spirit into the People but presseth their Fortunes It is well when Nobles are not too great for Soveraignty or Justice and yet maintained in that heighth as the Insolence of Inferiors may be broken upon them before it come on over fast upon the Majesty of Kings A numerous Nobility causeth Poverty and Inconvenience in a State Concerning numerous Nobility brings a surcharge of Expence and some falling to be weak in Estate it makes a kind of Dis-proportion betwixt Honour and Means To keep Nobles at some distance is not amiss but to despise them Kings to countenance their Nobility may make a King less safe and less able to perform any thing he desires This Henry the Seventh did and though they continued Loyal to him yet they did not co-operate with him in his Business The reason of State that we may presume swayed with so wise a King was for that the Wars betwixt the Houses of York and Lancaster had been carried on by the sidings of the Nobility who had in those Days numerous Retinues the younger Sons of the Gentry and sometimes the elder making a great part of the vast Families of Noblemen and their Tenents holding their Lands by small Rents and due Service enabled them to make great alterations in the State accordingly as the chief of the Nobility were combined So that he made Laws against the number of Retainers to lessen such dependences and likewise bringing in use the making of Leases made the Tenents less obliged to their Lords paying their Rents and by such Tenures for Years Honours not to be too common they grew Rich so that thereby Freeholders exceedingly encreased and all this helped to subduct from the Power of the Nobility Honours are not rashly to be made common or prodigally given otherwise they grow dis-esteemed and unregarded rare and few Honours are more glorious saith (f) Honores non essâ— remere pervulgandos aut essuse dandos alioquin eos obsoleseere raros enim honores tenues esse gloriosos effusos pervulgatos esse obsoletos contemptos Giphanii Com. in cap. 3. lib. 5. olit Arist the judicious Comentator diffused and common bring Contempt and Sleight Consentaneous to which is what the forementioned Chancellor saith That States which aim at greatness St. Alban's Essays Of Greatness of Kingdoms must take heed how the Nobility and Gentry multiply too fast for that maketh the common Subject to grow to a Peasant driven out of Heart and in effect but a Gentleman's Labourer As in Copice Wood if you leave the Stadle too thick you shall never have clean Underwood but Shrubs and Bushes and so you bring that the Hundredth Poll is not fit for the Helmet especially as to the Infantry which is the State of France not of England But in this Particular the Custom of other Nations a Princes Service and incident conveniences are to be considered For some will be won as much by Honours as Offices of Profit and it is less Expence to a Prince in the gratifying his well-deserving Subjects Besides something must be allowed to Aemulations and a rich Soil will bring a greater Crop than a barren In all Ages likewise some of the ancient Nobility are extinguished and it is fit to plant new Standards in the room of the decayed So that what these Learned Men assert concerning spare Distribution of Honours is to be considered with just Limitations The Splendor Magnificence and great Retinues of Noblemen conduce much to Martial greatness Great Retinues of the Nobility useful except in Poland the State of Free-Servants and Attendants upon Noblemen and the richer Gentlemen hath been observed to be no where so peculiar in former times as in England Those Retainers and humble Friends are fitted for all gentile Employments and are a Seminary of the more polite Yeomanry whereas a close and reserved living of Noblemen and Gentlemen causeth a Penury of Military Forces and well-bred Yeomanry The Nobility may be Eclipsed by sinking beneath their Orbs in affecting Popularity in opposition to their Prince The Nobility not to Desert the Crown or rearing their Heads among the Clouds in Ambition Whenever by Malevolent Aspects of other Planets their Influence on the State is less benign or that the putrid Breath of some Male-contents taint their Allegiance the Contagion is of a large Spread their Blood being mingled with so many others of Power takes Fire at once and can neither be shed or rectified alone Sometimes their Blood may be chilled when they conceive others interpose betwixt them and the warmer Gleams of the Throne and they will not want Factious Torpedoes that will benum their brisker Souls The old Nobility not to envy the new ones if they be not wary to avoid their touch But when their Lordships consider that as they and their happy Ancestors have had a plentiful Portion of their Princes Regards and Bounty so they should be content that others share with them in their Princes Munificence and should not expect that their Families should be every Ages Darlings they
Presence and Bounty puts an end to them Therefore as a grave (f) Nalson's Common Interest p. 118. Author observes He that hath not deposed Reason the King of his Soul and elected in its place Prejudice and Passion to govern there or dare credit the universal Experience of the World must be convinced of the great necessary and desperate Inconveniences of a long Interregnum and elective Monarchy and that a lineal Succession is the best Barrier against assaults from abroad and is that sacred perpetual vital Energy which preserves Government from internal Putrifaction and secures us from one most dangerous Inconvenience of having another Family to provide for Therefore the (g) 10. Annal. Excellent Historian most wisely observes That Minoris est discriminis Principem nasci quam sumi That Subjects more naturally submit to an undoubted unquestionable Title when the Government descends in the same manner as other Inheritances with due respect to the singleness of Sovereignty than to new Princes the worth of whom and their Families are untried This leads me to consider that this right of Succession flows from the Law of (h) Right of Succession p. 149. Nature is founded on the Law of God and Nations First That is accounted to flow from the Law of Nature Hereditary Succession agreeable to the Law of Nature which every Man finds grafted in his own Heart and which is obeyed without any other Law and for which Men neither seek nor can give any other distinct reason all which holds in this case For who doubts when he hears of an hereditary Monarchy but that the next in Blood must succeed and for which we need no positive Law nor does any Man enquire for a further Reason being satisfied therein by the Principles of his own Heart From this ground it is that though a remoter Kinsman did possess as Heir he could by no length of time prescribe a valid right because no man as Lawyers conclude can prescribe a right against the Law of Nature therefore the Law (i) Cum ratio naturalis ff de bonis damnati saith Cum ratio naturalis quasi lex quaedam tacita liberis parentum haereditatem adjecerit veluti ad debitam successionem eos vocando propter quod suorum haeredum nomen eis indultum est adeo ut ne a parentibus quidem ab ea Successione amoveri possint So in the (k) Matth. 21. Parable the Husbandman who is presumed to understand nothing but the Law of Nature is brought in saying This is the Heir let us kill him and seize on his Inheritance So the (l) Et Sect. emancipati Institut de Haered quae ab Intestato Law further saith Praetor naturalem aequitatem sequutus iis etiam bonorum possessionem contra 12 Tabularum leges contra jus civile permittit By which it is apparent that this right of Nature was stronger than the Laws of the twelve Tables though these were the most ancient and chief Statutes of Rome This holds also in the Collateral Succession of Brothers and others according to that (m) L. hac parte ff unde cognati Hac parte Proconsul naturali aequitate motus omnibus cognatis permittit bonorum possessionem quos sanguinis ratio vocat ad haereditatem For those who are now Brothers to a present Prince have been Sons to the former therefore as St. Paul says If a Son then an Heir except he be secluded by the Existence and Succession of an elder Brother Secondly Agreeable to the law of God That the Law of God gives right of Succession to proximity of Blood is manifest in that if a Man hath no (n) Numb 27. v. 9 10. Son or Daughter his Inheritance shall descend upon his Brother and so God determines in the case of (o) Numb 36. Zelophead's Daughters and so (p) 2 Chron. 22.1 Ahaziah was made King though the youngest in his Fathers stead because says the Text The Arabians had slain all the eldest which clearly shews That by Gods Law he could not have succeeded if the eldest had been alive So we see the birth-right was owned in Esau but that he sold it the priviledge of which is there fully discovered not only in discovering the right of Primogeniture but likewise in the Donation of Parents to their Children that Blessing being like the last Will and Testament Thirdly Agreeable to the Law of Nations As to the Law of Nations it might be made clear by the recital of all the Laws of Kingdoms that are Hereditary and not Elective That degrees of Succession were exactly observed according to that of (q) De Repub. lib. 6. c. 5. Bodin Ordo non tantum naturae divinae legis sed omnium ubique gentium hoc postulat So Pope (r) In c. grand de supplenda neglig Pralat Innocent In regnis haereditariis caveri non potest ne filius aut frater succedat and so in all Histories of Hereditary Monarchies we find it where Potent Usurpation hath not obstructed the free current or by some violent means derived it into another Channel If Successions of so great importance had not been fixed by immutable Laws of God and Nature the various and inconstant inclinations of present Governors saith a very (s) Jus Regium p. 158. Judicious Author had made the Nations whom they governed very unhappy If they yielding to the importunities of Mothers or Stepmothers or clouded by the Jealousie of Flatterers or Favourites or upon some unaccountable aversion should place the Crown upon what Head they pleased Therefore God did very justly and wisely settle this Succession that both King and People might know That it is by him that Kings Reign and Kingdoms are secured in Peace against Factions To come more particularly to our own Country The Monarchy of great Britain and Ireland The British Monarchy Hereditary is undoubtedly as firmly established hereditarily in his Majesties Blood and Family as it is in any Monarch's in Europe A late French (t) Of the States and their Powers p. 68. Author speaking of the Succession of the Crown of France saith That the Election of the Kingdom is not of one Person only but of the blood and operates so far as there is life in that blood The blood being chosen with the Prerogative of Primogeniture So that when one Person of the blood is dead the Power by the same Prerogative being transferred to the blood remains and rests in the blood still living and in him of the blood who succeeds by that Prerogative and in none else The Majesty Royal saith a (u) Majestas Intemerata profound Lawyer and Antiquary upon the murther of King Charles the First expired not nor was left adhering to the bloody Axe or Block It wandred not like Adrian's Ghost nor hovered in an Airy abstraction For the King or rather the Kings line saith another (w) Finch p. 83. great Lawyer is
a name of Continuance which as the Law presumes shall always remain as Head and Governour of the People For the English Monarchy (x) Coke 4. Report Praef. knows no Interregnum being Successive by inherent Birthright whereby infinite inconveniences are avoided so that the young Phenix stays not to arise out of the Spicy ashes of the old but the Soul of Royalty by a kind of Transmigration passeth immediately out of one body into another and in the same manner will every right Heir acquire the Royalty after his Predecessor ceaseth to be Therefore the judicious Lord (y) Interregnum aut tituli suspensionem â—aeges Regni non permittere Hist H. 7. p. 26. Verulam observes That H. 7. knowing that the Laws permit not any interim suspension or stay of the Title and having no mind to own his Queens Title the best She being the Heiress of the house of York as he in some respects was Heir of the House of Lancaster he ordered the Act so that it should neither be by recognition nor his Title be established by a new Law (z) Potius media via institit simplicis stabilimenti Ideo verbis tectis utrinque nutantibus his ut haereditas Coronae resideres remaneret continuaretur in Rege but chose a milder way viz. of simple Establishment in covert words interpretable several ways that the inheritance of the Crown should reside remain and continue in him So King James in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 p. 209. tells the Prince That at the very moment of the expiring of the King Reigning the nearest and lawful Heir entreth in his place and so to refuse him or intrude another is not to hold out the Successor from coming in but to expel and put out their Righteous King So Sir (a) Report 7 8 10 11. Calvin ' s Case Watson and Clark ' s Case 1 Jac. 1. Edward Coke affirms That it is a known Maxim of the Laws That in the moment of the descent of the Crown the person on whom it descends which is the next immediate Heir only becomes complete and absolute King to all intents and purposes And so he saith The second Son of the King of England after (b) 3. Instit 8. the death of the first-born is eldest Son within the Statute of 25 E. 3. as it was resolved in the case of Prince Charles concerning the Dutchy of Cornwall It would be a tedious work to recite all the Authorities in this Case may be found in the Statutes and Law-Books I will content my self instead of all others with the Act of (c) Cap. 2. Recognition 1 Jacobi primi wherein The Recognition of King James the First after the two Houses had enumerated the benefits by the Conjunction of the Houses of York and Lancaster and the uniting of England and Scotland in the Kings Person and that They agnize their constant Faith Obedience and Loyalty to him and his Royal Progeny The worlds of the Act are In most humble and lowly manner do beseech your most Excellent Majesty as a memorial to all posterity among the Records of your High Court of Parliament for ever to endure of our Loyalty Obedience and hearty humble affection it may be published and declared in the High Court of Parliament and enacted by Authority of the same That we being bound thereunto by the Laws of God and man do recognize and acknowledge and thereby express our unspeakable joyes that immediately upon the dissolution and decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England c. did by inherent Birthright and lawful undoubted Succession descend and come to your most Excellent Majesty as being lineally justly and lawfully next and sole Heir of the blood Royal of this Realm as is aforesaid c. and thereunto we most humbly and faithfully do submit and oblige our selves our Heirs and Posterities for ever until the last drop of our blood be spent and do beseech your Majesty to accept the same as the first-fruits of this High Court of Parliament of our Loyalty and Faith to your Majesty and your Royal Progeny and Posterity for ever By which it first appears that the Crown of England is an unalterable Entail and the reversion in him only by whom Kings reign without any Election or consent of the People otherwise than by acknowledging the lawful Right of the Kings derived from God by their blood to them Also from this Recognition we may consider How to understand the Act made by Queen Elizabeth against the Claims of Mary Queen of Scots Secondly what to think of that Act of Queen Elizabeth That if any Person shall affirm that the Parliament of England has not full power to bind and govern the Crown in point of Succession and descent that such a Person during the Queens life shall be guilty of High Treason For we must consider that by the words bind and govern we may conceive the sence to be That the Parliament is Judge where there are differences (d) Jus Regium p. 181. betwixt Competitors in nice and controvertible points which cannot be otherwise decided So that such temporary Acts as these are to be interpreted and restrained by other uncontroverted Laws We must also look upon it as made to secure the Queen against Mary Queen of Scots and to let her know it was to no purpose for her to design any thing against the Right or Person of Queen Elizabeth upon that ground as may be presumed the Queen of Scots might claim for that Queen Elizabeth by Act of Parliament had been declared a Bastard Therefore to let her know that it was to no purpose to insist upon any such claim and that her other Right as next undoubted Heir by blood to the Crown might be altered or governed this Act was made So that we must from hence conclude That it was to be reckoned only as one of those Statutes which the Law says are made ad terrorem ex terrore only which may appear the more evidently because it was never made use of For it is to be mainly considered that this Law being made to exclude Queen Mary and the Scotish Line as appears by that clause wherein it is declared That every Person or Persons of what degree or Nation soever they be who shall during the Queens life declare or publish that they have Right to the Crown of England shall be disinabled to enjoy the Crown in Succession Therefore it was never valid (e) Id. p. 183. For if it had been good King James might have thereby been excluded by that person who should have succeeded next to the Scotish Race For it is undeniable that Queen Mary did during Queen Elizabeth's life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard Therefore the calling in of King James after this Act and the acknowledging his Title do clearly evince that the