incapacity from his Bastardy Besides his Wife Maud was descended from a Daughter of King Alfred married to Baldwin Earl of Flanders upon which account a Commentator on the Grand Custumary of Normandy held him to be the first or chief Heir Edward Son to Edmund Ironside was at one time designed by the Confessor for his Successor if he could prevail with the Nation to consent but that Edward dying before the Confessor his Son being a Minor seems never then to have been thought of Harold's design was covert nor does he appear to have been a Pretender till the Confessor lay upon his death-bed But Duke William had long been promis'd his Cousin King Edward's interest in order whereunto we may well believe he in the year 1651. came over to England and doubtless to ingratiate him to the Nation was by the Confessor carried up and down the Kingdom In the year 1657. or 1658. the design was brought to bear and in a Great Council of the whole Nation William was declared Successor or as the Law received by him has it agreeing with a Charter pass'd in Parl. 15. of his Reign was adopted Heir or as another Charter has it Edward instituted him adopted Heir That this Adoption or Institution of an Heir to the Crown was with a Consent truly National I shall elsewhere have occasion to prove at large at present shall only observe that the above-cited Law says that Edward caused the Kingdom to swear to William that Wilnot Earl Godwin's Son and Hacun his Grandson were sent Hostages to William to secure the future Allegiance of that Family that Robert Archbishiop of Canterbury and Harold were successively with the Duke to assure him of his being declared Heir to the Crown which Harold swore to endeavour to preserve to William But notwithstanding the Nations and his own Oath while the Nobility and People were at the Confessor's Funeral at Westminster Harold got a Party together at Lambeth where as some have it he set the Crown upon his own Head The mad Englishman as a contemporary Writer has it would not stay to see what the Publick Election would appoint Harold's Possession whatever it was prov'd very short lasting but nine Months nor was he ever fully recogniz'd or submitted to by the States or the Body of the Nation he never held any Parliament or Convention of the States which I take to be the reason that no Charter of his is to be seen nor have I met with any mention of one They who fought for him against William were judged Traytors and their Estates forfeited and it is rightly observ'd by the Lord Coke that in Demesday Harold who usurped the Crown of England after the decease of King Edward the Confessor is never named per nomen Regis sed per nomen Comitis Haroldi Wherefore he leaves him out of his Lift of our Kings William according to some Authors was encouraged to his attempt from the consideration that Harold was neither of the Saxon nor Danish Royal Stock When William Landed he claimed the Crown from his Cousins Gift with the consnt of the Nobility of the Kingdom confirmed by Oath and lays his qualification in being thought the most deserving of all that were nearly related to the Confessor Harold had nothing to plead against that but the suggestion that the Crown had not been setled by a Consent sufficiently formal that it was made without a Convention and Law of the Senate and People which 't is no wonder that he should pretend tho' there were never so formal an Election Notwithstanding the Right with which the Norman Duke Landed he proffered to submit to what the English should decree and therefore to a new election if they thought fit Upon Harold's death some of the English who dreaded the consequence of receiving William after a bloody Battle set up Edgar Atheling for King who tho' but the second degree from a Bastard and tho' his Father never had Possession was look'd upon as the true Heir of the Crown that is the Person of the last Regnant Branch of the Royal Family who ordinarily would have succeeded by common consent of the States if of sufficient Merit and reasons of State or other obligations did not interpose But the learned Monk Guitmond who could bot but know the constitution in this matter held him to be but one Heir among many of the Line of the Royal Family However the generallity of the Clergy thought themselves bound to maintain the Title with which King William Landed and that'twas Rebellion to oppose him yet before his being received for King he at Berkhamsted made a League or Contract with the People headed by the Great Earls Edwin and Morcar who came up with the Forces from the North which had never been in the Battle against the Duke Part of the League made with the People of England was that he should be Crown'd as the manner of the English Government requires at his Coronation the consent of the People was ask'd in the due and accustomed manner and the account Historians give of the Oath he then took shews it to be that which stood in the Saxon Ritual After which he more than once received and swore to that Body of the Common-Law of England which had obtain'd the name of King Edward's Laws which as has been observ'd declare the end for which a King is Constituted and that he loses the Name or ceases to be King when he answers not that end Indeed Dr. Brady who is as free with his Conquerors Memory as with the Liberties of England which he calls the Grants and Concessions of the King of this Nation will have it that William the I. regarded his Oath only in the beginning of his Reign and that by notorious violations of his contract with the People of England he acquired the Right of a Conqueror and thereby put an end to the ancient Constitution of this Monarchy and those Liberties and Priviledges of the Subject which manifestly appear to have been of elder date than the Monarchy Upon which if one would return the Freedom of his Censures against others it might be said that this was not only to make the then King the Successor of a Conqueror but with a prospect of applying the Rights which he ascribes to a supposed Qonquest to justifie what should be practised upon the late intended Conquest of this Nation That the Judgment and Practice of William the I. was very contrary to the Doctor 's Imaginations will be proved by numerous Instances and that it was so as to that part of the Constitution which concerns the Succession to the Crown appears by that King's Death-bed Declaration which some would set up for a will disposing of the Crown at that very time when he owns that it is not his to give
I says he appoint no Heir of the Crown of England but to the Universal Creator whose I am and in whose hands are all things I commend it for I did not possess so great Honour by Hereditary Right but with direful conflict and much effusion of Humane Blood I took it from the perjured King Harold and brought it under subjection to me He adds Therefore I dare not bequeath the Scepter of this Kingdom to any body but to God alone least after my death worse troubles happen in it by my occasioning For my Son William always as became him obedient to me I wish that God may give him his favour and that if it so please the Almighty he may Reign after me According to this 1. He had no right or pretence to dispose of the Crown 2. If some would have regarded his disposition so many would have been likely to assert their liberty that it might occasion great troubles 3. Providence only could determine who should succeed which is almost as much as if he said there is no fix'd or certain right in any body One reason why he pretended not to dispose of the Crown was that he had it not by Hereditary Right that is as it came not to him by discent neither was it disposable like common Inheritances not but that after he was declared Heir and admitted King he had as true an Hereditary Right in the Crown as any of his Predecessors had and this is justified by his own and other Charters In one he stiles himself by the Providence of God and Inheritance of Consanguinity King of the English In another he says he was made King by Hereditary Right In another he is call'd Heir to Edward by stock and gift and in Charters of W. 2. and H. 1. their Father is said to have succeeded by Hereditary Right Indeed one of the Charters of W. 1. seems to contradict his Death bed Declaration or the sense I have given of it for speaking of his victory over Harold he says he acquired the Kingdom due to him and his Successors to be possessed for ever by Hereditary Right Yet this if duely considered is no more than that by his Rightful Possession his became the Regnant Family and the Successions were to be derived from him His Son W. 2. being through the prevalence of the English against the Normans elected soon after the Father's ddeath truly succeded upon the old Hereditary Right and indeed stood fairer for a recognition than his elder Brother Robert Dr. Brady observes out of Knighton that the Barons of England with the plenary consent and counsel of all the Community of the Kingdom branded Robert with illegitimacy because he came not from a lawful Bed No Man I believe has imagin'd that Robert was not the Son of W. 1. by Maud and that after Marriage but as has appeared above till she had been Crowned Queen of England she was but as a Concubine and her Issue illegitimate and thus the very qualification to be elected proceeded from that election which made the Wife Queen H. 1. Upon this account was to be preferred upon the death of W. 1. before the eldest Brother Robert then alive yet he did not scruple to own by his Charter that next to God's mercy this was owing to the Common-Council of the Barons The Ritual for his Coronation shews that he had been elected in a Convention of the States prays to God to bless him whom they have elected King and declares his Authority to be delegated to him haeeditario judicio by an Hereditary Judgment or Decree constituting him Heir of the Crown Till he presumed too far upon the love of the People and bore too hard upon 'em they never thought of changing him for his elder Brother nor was his Possession long disturbed He well knowing that his Issue had no certain Right of Succeeding him till the States should agree to it prevail'd upon 'em to make two Settlements of the Crown successively one upon his Son William an other after the Son's death upon his Daughter Maud and both the Settlements were establish'd by a National Oath But it is observable that the last was if the King died without Heir say some without Heir-male say others According to which with regard to the ancient Constitution Stephen Sisters Son to H. 1. when recognized by the States became within the express Provision of that Settlement Agreeably to this as we have it from an Author of the Time H. 1. upon his Death-bed recommended Stephen to be received by Hereditary Right And that Author speaks of his Merits joyn'd with his being of the Royal Stock as inducements to his Election As an other Author has it because he appear'd fit to Reign as well for the Dignity of his Stock as the probity of his mind they agreed upon a common Resolution and all with concordant favour Constituted him King a compact being first made and a mutual Oath according to the vulgar expression Maud's Title tho' under a former Settlement of the Crown gave him no disturbance till he either broke his part of the mutual Contract or at least disoblig'd the Clergy which made his own Brother the Pope's Legate turn against him and help to bring in Maud who refusing to swear to the Confessor's Laws was chiefly by means of the Londoners who were very powerful at all Elections rejected and never fully recogniz'd At that time election was counted no disparagement to a King's Title for Stephen not only took into his Title by the Grace of God by the Assent of the Clergy and People elected King of England but in an Assembly of the States in a memorable Speach too long to be here inserted appeals to them who ought rather to succeed in a Kingdom one whom the unanimous consent of the Nobility and the University of the People earnestly wish'd for desired elected Or one whom every Sex every Age opposed and cried out against What more pernicious than against the will of all violently to snatch the Rights of the Kingdom Had Stephen's brave Son Eustace lived in all probability H. 2. had never succeeded and however was glad to come after Stephen as his adopted Heir as W. 1. had been to the Confessor Neither was Maud's consent ever ask'd to the Settlement or recognition afterwards tho' she lived beyond that time nor did the States take any notice of her pretended Title after her manifest forfeiture of all that she could claim by the Settlement in the time of H. 1. or otherwise howsoever H. 2. knowing that the Consent of the States was the best Title any Child of his could have to succeed him and yet that they had liberty of altering a Consent given upon reasons which
REFLECTIONS UPON A Treasonable Opinion Industriously promoted Against SIGNING the National Association AND The Entring into it prov'd to be the Duty of all the Subjects of this KINGDOM Hoc quidem perspicuum est eos ad imperandum deligi solitos quorum de justitiâ magna esset opinio multitudinis adjuncto verò ut iidem etiam prudentes haberentur nihil erat quod homines his auctoribus non posse consequi se arbitrarentur Civ de of lib. 2. LONDON Printed and Sold by E. Whitlock near Stationers-Hall 1696. To His Excellency CHARLES Duke of SHREWSBURY one of the Lords Justices of England and one of His Majesty's Principal Secretaries of State c. May it please your Excellency SINCE among the many subjects of just Praise which make up Excellency's distinction it is not the least that the true Religion and Loyalty are known to have been chosen with a Judgment properly your own my ambition could not carry me to a fitter Patron for Truths which are to encounter a strong Pre-possession in Men taught to object novelty against this Revolution tho' with as little cause of triumph as the Papists have for their question where was the Protestant Church before Luther As your Excellency's wise and vigorous discharge of Offices of the highest Trust and Consequence under our only rightful Sovereign King WILLIAM revives to France the noted Terrors in the name of Talbot permit me from thence to take an Omen of Success against Arguments supported by the French Interest and Power more than by any colour of reason Yet they who oppose the Right of the present Government having pretended to seeming Authorities I have used that method which I hope may be proper for their conviction giving a short view of what upon the various Exigencies of the Publick in all Ages of this Monarchy has been the uniform Judgment and regular Practice of Conventions of the States and Parliaments of this Kingdom in concurrence with several glorious Preservers of the English Liberties But that I may use an Authority sufficient in it self to justifie our present Settlement I beg leave to appeal to Excellency's early and eminent Example which will weigh more with Persons acquainted with so illustrious a Character than any Argument from pass'd Times And yet what I here offer being for the most part the Result of the Collective Wisdom of the Nation may not be wholly undeserving of your Excellency's Patrondge nor can I apprehend that you will refuse these Fundamental Truths the benefit of being recommended to the World under so Great a Name which tho' it will set my faults in the clearer light if your Excellency shall be thought to bear with 'em cannot but moderate the Censures against Your Excellency's most devoted humble Servant W. Atwood REFLECTIONS UPON A Treasonable Opinion c. THE Enemies of the Peace of these Realms having handed about a Paper as the Opinion of a certain florid Gentleman of the long Robe eminent for making New Treasons and whose Authority is said to have prevailed with several to refuse Signing the Associatlon for the defence of His Majesty's Sacred Person and Rightful Authority I shall offer what I conceive a sufficient Antidote to the Poyson he would spread with all his affected softness The words of the Opinion as they have occurr'd to me are these By the Statute of Hen. 7. the Subjects are Indemnified in taking an Oath or Fighting for a King de Facto But the Association is not within the Statute but an Overt Act of Treason against the King de Jure and Punishable as such when he shall be restored In refuteing the pernicious Errors contained in this Opinion I shall evince First That according to the best Authorities of them who suppose that there may be a King de Jure as distinguished from a King in Fact the Right of the supposed King de Jure is not such as makes any Act against him to be Treason nor is he King or has any Right against the King in Possession or his Issue Secondly That an Association for the Defence of the King's Person and Right is within the purview of the Stat. 11 H. 7. and that as plainly as an Oath of Allegianee Thirdly That it is not supposed or implyed in that Act that there was or might be a King de Jure while an other was King in Fact but that according to that Act the King for the time being is the onely Rightful King Fourthly That the Statute 11 H. 7. is not introductory of any new Law in this matter Fifthly That his Present Majesty is the only King de Jure and that the late King neither is nor of Right ought to be King Sixthly That according to this Gentleman 's own Law he is Guilty of High-Treason against our Sovereign Lord the King 1. The Lord Coke upon the Statute of Treason 25 E. 3. referring in the Margin to the Statute 11 H. 7. says This is to be understood of a King in Possession of the Crown and Kingdom For if there be a King Regnant in Possession altho' he be Rex de Facto and not de Jure yet he is Seignior le Roy within the purview of this Statute and the other who hath the Right and is out of Possession is not within this Act. Sir Mathew Hale says what in substance agrees with the Lord Coke A King says he speaking of the Statute 25 E. 3. de Facto and not de Jure is a King withing that Act and Treason against him is punishable tho' the right Heir get the Crown Indeed both those Great Men seem to suppose or admit that there might be one who had or at some time or other might have a sort of Right notwithstanding another's being so fully King that a Conspiracy to Kill or Depose him would be Treason But it is to be consider'd 1. That the Lord Coke does not suppose that there may be a King de Jure while another is King in Fact unless this supposition is warranted by the Statute 11 H. 7. which as I shall prove it is not 2. The Statute which in both their Judgments regards only the King Regnant makes it Treason to Conspire the Death of the King 's Eldest Son or to violate his Eldest Daughter for the last of which the Lord Coke assigns this Reason That for default of Issue Male she only is Inheritable to the Crown So that the supposed King de Jure appears to be barred not only by the Possession of the King in Fact but even by that Right which is Vested in his Son or Daughter before either of them have Possession And indeed That Right which ordinarily would descend to the Eldest Son of the King Regnant is truly explanatory of all that will be found to have belonged to one who since E. 4. of the elder branch of the Royal Stock got Possession has often been call'd King de Jure tho' as will appear in
Man who shall with me carefully compare Records Histories Law-Books Charters and Authentick Manuscripts from before the fixation of the Monarchy downwards The most antient uncontested Authority of this kind which is allowed us even by the Scotch Writers who think themselves concerned to blemish our Antiquities is the Venerable Bede who died in the year 735. He speaking of the coming of the Picts into the Northern Parts of Britanny says The Scotch gave them Wives on condition that when any Controversie arose they should chuse themselves a King of the Female Stock of Kings rather than of the Male. Whereby it appears what was his Judgment of the Successions where they have seemed most fond of an Inherent Right of Birth But as to England where a King has lest three Sons Bede calls them all Heirs Accordingly he more than once mentions Brothers reigning together as Sighard and Frede among the East-Saxons while the West-Saxon Kingdom was govern'd by several petty Kings in distinct Divisions These Kings probably at that time were Tributary or Feudatory Kings under the Mercian Kingdom for in the year 730 I find King Aetilbalt stiles himself not only King of the Mercians but also of all the Counties which by the general name are call'd South-Angles subscribing King of Britanny And in the same year I find an Offa who stiles himself King of the Mercians and also of the other Nations where ever round about By reason of the Inheritance of Crowns belonging to several Sons of Kings the Kings were so numerous that Bede mentions two Brothers Crown'd Kings even of the Isle of Wight But when any were Constituted Kings to the setting aside all the old Regnant Family of that particular Kingdom the Persons so constituted were according to Bede Strangers or doubtful by way of distinction from Lawful Kings And yet all the Kings of the several Kingdoms were descended from Woden from which Common-Stock they all took their Qualifications for an Election as afterwards the West-Saxon Kings did from Cerdic then from Ina and after that from Egbert But generally I take it regard was had to that part or branch of Woden's Family which was the regnant Family within the particular Kingdom where one of that branch was advanced according to that Charter of an Offa where he is stiled King of the Mercians descended from the Mercian Royal Stock About which time I find two Kings of Kent Sigered and Eadberht governing in severalty These 't is likely were Brothers but Eadberht who became King of all Kent upon Sigered's death or amotion was constituted King and Prince by the whole County This was above 60 years before the Foundation of the Monarchy was laid by the West-Saxon King Ina. Tho most of the Moderns and many of the Ancients lay it as late as Egbert's time the Confessors Laws received and sworn to by William the I. and following Kings say of Ina he was elected King throughout England and first obtained the Monarchy since the coming of the English into Britanny His qualification for an Election the Saxon Cronicle places in a Descent from Cerdic But Malmsbury assures us he was advanced rather for his Merit than his being of the Successive or Inheritable Family and that from him to Brictric the Kings were far out of the Royal Line That Brictric was truly elected appears not only in his bare qualification from the Stock of Cerdic but as he was immediate Successor to Kenwolf elected upon the like qualification and in whose Reign it was ordained in a National and Legantine Council that no man suffer the assent of Wicked men to prevail but that Kings be lawfully elected by the Priests and Elders of the People where 't is manifest that lawfully does not limit the Election to any other Rule than what follows in that Law viz. to avoid electing Persons born in Adultery or Incest The Person lawfully Elected is there called Heir of the Country Where Heir is plainly used in the Sense both of the Civil and of our Common Law for the Person that comes duely to the Inheritance in this sense all that have been elected Kings have been held to succeed by Hereditary Right And thus in numbers of Charters in the Saxon Times and after Private Inheritances are granted to Men to leave to what Heir they please to the Church and its Sacred Heirs and to the Barons or Citizens of London and their Heirs To Brictric the first West-Saxon King after the Peoples Right to Elect had been declared by National Authority succeeded Egbert who derived after several degrees pass'd from Ina's Brother It may well be thought that he was Elected with a Consent no less full and formal than was held essential to his Grants of Lands one of which was with the License and Consent of all his Nation and the unanimity of all the Great men Egbert was alive in the year 838 tho' Historians generally suppose him to have died two years before His Sons Ethelstan the Eldest and Ethelwolf were Kings in his life time As I might prove by several Charters but shall here mention but two one in the year 827. where an Ethelstan subscribes as Monarch of all Britanny an other An. 836. where Egbert grants with the Consent of his Son Ethelwolf King of Kent In the year 838. Ethelwolf succeeded Egbert in the Kingdom of West-Saxony by a manifest Election his eldest Brother Ethelstan being then alive and continuing the Monarch or chief King of all Britanny Besides the Evidences above that there was not at that time such a fix'd rule of descent in the West-Saxon Royal Family as made the Kings eldest Son to be King or to have a certain and indefesible Right to be King may appear by the Law or Custom of that Kingdom mentioned by Asser and Nicolas of Gloster and others not to suffer the King's Wife to be called Queen or to sit near her Husband which seems to have occasioned the Ritual for the Consecrating the Wife in consortium regalis thori for the consortship of the Royal Bed Till she was so Consecrated which was to be in a Convention of the States or coming from it she had no more right to the Kings Bed than a Concubine Of this doubtless W. 1. was aware when he expressed a desire to have his Wife Crowned with him Certain it is that the Sons of Kings begotten on Conubines after they had been elected or adopted by the States were always held to have succeeded as Rightfully and to have been as legitimate Heirs as the Sons begotten in Wedlock the Mother's being Queen and by consequence the legitimation of the issue and capacity to inherit the Crown having depended upon the will of the States But that in Ethelwolf's time the word Elected was duely applied
King of Denmark Landing with an additional Force this with Ethelred's sloath and unacceptableness to his own People drove him to an Abdication Upon Swane's death the English invited back the Abdicated King on condition he would govern better than he had done for which his Son Edward undertook Ethelred returning as an Author who lived about the time has it a contract was established between the King and his People and firm friendship and it was enacted with an Oath that there never more should be a Danish King in England After this Cnute the Son of Swane laid claim to the Crown of England as a Saxon as well as Dane deriving from King Ethelbald who doubtless was that Son of an elder Brother of King Alfred who oppos'd Edward the elder Notwithstanding this tho' the Danes elected Cnute the English adhered to Ethelred Upon whose death they chose his Son Edmund Ironside who as appears by the stream of ancient Authorities was a Bastard Upon i Edmund's death Cnute was Crown'd King of England by the Election of all and according to Florence of Woster he swore to be Faithful Lord as the People did to be Leige Subjects At Cnute's death his two Sons Harold who was a Bastard or rather Spurious and Hardecnute his legitimate Son by Ethelred's Widow were by Leofric and all the Nobility on the North-side of the River Thomes elected Kings over all England as partners in Power and co-heirs But Duke Godwin and other Noblemen in West-Saxony opposed and prevailed It appears by an Author who wrote in the Confessor's Time and whose words are transcrib'd by several that they prevailed for the total rejection of Hardecnute because he made not sufficient haste to take the Administration upon him Therefore Harold who however would have been King of Mercia and the Northumbrian Kingdom was elected over all England by the Princes and all the People or as an other of like antiquity has it is elected King by all the People of England Upon Harold's death and not before Hardecnute was received in what manner appears by the then standing Ritual for the Coronation of Kings But Emmae's Sons by Ethelred Alured and Edw. as Malms observes were despised almost by all rather through the remembrance of their Fathers sloathfulness than by reason of the Power of the Danes Yet they two without preference of one before the other were accounted Heirs of the Kingdom and accordingly Cnute while he was in fear of the then Duke of Normandy offer'd half his Kingdom to Edward and his Brother Alured Upon Hardecnute's death Earl Godwin was chosen Administrator or Protector of the Kingdom during the vacancy and till a fit Person should be elected King Godwin summons a Convention of the States where he nominated Ethelred's only surviving Son by Emma whom the Saxons call'd Elgive After some debates all consented to the election of Edward He being so elected was in the sense of those times Heir of the Kingdom to the last Possessor Hardecnute his Brother by the half blood And yet it is observable that according to a Charter of Edward's pass'd in Parliament at the latter end of his Reign the Hereditary Succession was hazarded by the Danes that is according to what I before observ'd the Anglo-Saxon regnant branch of the Royal Family was kept back and was likely never to have been restored 'T is evident that it was not for Edward to carry this Point farther for besides the Danish Royal Family claiming from King Ethelbald and Fretheric Abbot of St. Albans in his time coming from the ancient Saxons and Danes and lineally descended from King Cnute there was the Historian Ethelwerd or his immediate Ancestor of the Family of King Ethered and in all probability there were several descendants either from Ethelstan Ethelwolfs elder Brother or from his Sons Ethelbald and Ethelbert What was the known Law in the Confessor's time both as to the Succession and the continuing King besides the former Evidences appears beyond contradiction from that King's Laws according to which 1. The Monarchy was founded in election which explains in what Sense a King is there taken to be Constituted 2. If the King do not answer the end for which he had been Constituted not so much as the name of King shall continue in him 3. It receives as a Rule in all Kingdoms and particularly here the Judgment of Pope Zachary encouraging the Franks to depose their King Childeric With Edward the Confessor end the Saxon and Danish Successions of Kings Harold the Son of Earl Godwin as I shall shew never was King nor reputed King by any but his own Party Here I may observe 1. That Dr. Brady is mightily mistaken in his assertion that the Saxons did in their subjection owning of and submission to their Princs acknowledge both proximity of blood and nomination of their Princes often both sometimes only one of them but never followed any other rule 2. The chief rule of Succession upon the death or disability of any King was a proper election of a worthy Person of the Regnant Branch of the Royal Family 3. Dr. Bradie's notion that Elegerunt signifies no more than recognoverunt they acknowledged owned submitted unto him as their King is by no means true the recognition being manifestly subsequent to or in consequence of the election nor is any thing more plain than that the States did from the beginning of the Monarchy downwards rightfully declare an Heir to the Kingdom and then acknowledge his Right tho' neither next upon the Royal Line nor representing the next nor yet nominated by the Predecessor And indeed till a rare and noted instance in the case of Hen. 5. on whom the Crown had before been entailed in Parliament no Prince was known to have been formally recogniz'd till he had taken the Coronation Oath 4 If according to any good authority of the Saxon or Danish Times it should seem that any man came to the Crown by the Gift of his Predecessor it must have been made with such solemnity as was requisite even for the granting of Lands As that of Egbert's above-mentioned or Athelstan's in an Assembly of the Bishops Abbots Dukes or Earls and the Procurators or Representatives of the Country or an other before the Plebs or Commons or Edgar's in the open air with the privity of the Great or Wisemen of his whole Kingdom In the Confessor's life time there were three Competitors for the Crown Atheling's Father and Son to Edmund Ironside Harold who was High Steward of England and the most powerful of any Man tho' not his Fathers eldest Son and William Duke of Normandy Grand Nephew to Emma who had been Crown'd Queen of England nor as has appear'd above was William under any
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
come without a manifest departure from their avowed Principles and therefore to keep to them they must give up the only colourable Authority for their notion of King de jure and de facto And they must yield that there is not the least shadow of pretence from what was held in those times that there was a King of right at the very time that an other was in fact it going no farther than that the Person who was King ought not to have been King but while he was King the other was none 7. The judgment of E. 4 ths first Parliament whatever hard names they gave that Family on which they trampled was so far from being an Authority as has been pretended against the receiving his present Majesty upon the late King's breach of the Original or Common-Law Contract confirmed by several declaratory Statutes of the Kingdom and the solemn Oaths of our Kings that it is express for the eviction and amotion of one King upon his breach of a contract establish'd in Parliament and the setting up an other by an election And it is observable that the Act 1º E. 4. which confirms several judicial and other Acts of such as it calls Kings only in fact says other than by Authority of any Parliament holden in their times plainly admitting that Authority to be sufficient in it self H. 6. coming again into Power because of a Possession with such a consent of the People as made E. 4. King was formally again elected at the Tower and in H. 7 ths time was adjudged to have had his attainder purged by his re-adeption of Power which seems not to have been till he had been re-elected Then H. 6. calls a Parliament where he in his turn attaints the Adherents of E. 4. and as we are to believe himself but the Record of that having been cancelled and the Rolls loss'd it appears not whether it was for any Act committed before H. 6 ths re-adeption of Power The Tide again turning for E. 4. all the Acts of that Parliament are reversed and declared or made void from the time that he had been declared he was held to have continued the Possession of the Regal Dignity tho' with-held from the exercice of the Power and therefore H. 6. from the first admission of E. 4. to the Crown was accounted no King and his Parliament to be but a pretenced Parliament E. 4 ths usage of H. 6. was repaid to his Sons by their Uncle R. 3. some will have it that he made them away as indeed is intimated in the Act attainting R. 3. but 't is certain that they were bastardized in a Convention whose Acts were by Parliament after Richard was admitted King declared for truth and not to be doubted and there are Authorities to induce the Belief that Edward's Sons were really Bastards by reason of the Father's pre-contract however the Convention declared that they were not fit to Reign because they were Infants and their Mother ignoble and married clandestinely without the knowing and assent of the Lords George Duke of Clarence the next Brother to E. 4. having been attainted in a Parliament of E. 4. they having singular confidence in Richard's particular merit have chosen in all that in them is and by that their certain writing choose him their King and Sovereign Lord to whom they know of certain it appertaineth of Inheritance to be chosen And observing that tho' the Learned in the Laws and Customs know his Title to be good the most part of the People is not sufficiently learned in the Laws and Customs they declare that the Court of Parliament is of such Authority and the People of this Land of such a disposition as experience teacheth that Manifestation and Declaration of any Truth or Right made by the three States of the Realm assembled in Parliament and by Authority of the same maketh before all other things most faith and certain quieting of mens minds and removing the occasion of doubts and seditious language Therefore by the Authority of that Parliament it is pronounced and declared that their Sovereign Lord the King was and is the very undoubted King as well by right of Consanguinity and Inheritance as by lawful Election Consecration and Coronation And they Enact Establish Pronounce Decree and Declare Edward the King 's eldest Son Heir Apparent to him and his Heirs of his Body Any Man who compares that Act at large with the former Presidents must see that it was penn'd with great Wisdom and regard to the Constitution of the Monarchy And tho' out of an usual complement to the prevailing side R. 3. has generally been represented as a Monster in Person and Nature the learned Buck has made it doubtful which was the most deserving in all things R. 3. or H. 7. Certain it is that tho' the Crown had by Authority of Parliament been settled in remainder after H. 6. upon Duke Richard and his Heirs and that Duke's Grand-daughter was alive and marriageable in the Reign of R. 3. her suppos'd Right gave him no disturbance and his Possession was very quiet till he disobliged the Duke of Bucks who was the great Instrument in setting him up by rejecting his Claim to be High-Constable of England which was an Authority dangerous to be trusted in the hands of so popular a Man nor could the Duke and his Faction expect to succeed in their conspiracy without the support of French Forces and accordingly applied themselves to Henry Earl of Richmond afterwards H. 7. with whom the Duke of Brittany had for some years kept even E. 4. in awe Henry was glad of the opportunity and to strengthen his Interest agrees with some of his Party to marry the Daughter of E. 4. but was far from making any claim in her right It is very probable that one of E. 4 ths Sons was then alive be that as it will as appears by the Statutes 1 H. 7. cited above his Parliament held that he landed with Title and R. 3. being deserted and slain in the Field of Battle that opposition to Henry was by Authority of Parliament adjudged Treason against the Sovereign Lord of this Land and H. 7 th was held to have recovered his right After this when H. 7. meets his first Parliament he with his own Mouth tells the Commons in full Parliament that his accession to the Right and Crown of England was as well by just Title of Inheritance as by God's true judgment in giving him the victory over his enemy in the Field In which bating the Settlement in the time of the Confessor H. 7. claim'd as W. 1. did by the Inheritance of consanguinity and that Success which gave him the preference before others of the same Blood especially since that enemy whom he subdued was held to be an Usurper This 't is evident that he was accounted before H. 7. Landed But if
declaring that he would not then wear his Crown and dispensing with the Services of the Citizens of London and others * Mat. Par. Ipsi de communi conc totius regni ipsum cum iniquis corsiliariis suis a regno depellerent de novo Rege creando tractarent a Bracton lib. 2. c. 16. Rex autem habet superiorem Deum item Legem per quam factus est Rex item Curiam suam c. Vid. etiam ib. c. 24. l. 3. c. 9. b Lib. de Antiq. Leg. in Arch. Civ c Lib. de Antiq Leg. in Archiv Civ Lon. An. 1260. 44 H. 3. L. 55. H. 3. post ejus decessum rectis haeredibus coronae Angliae d Mat. West Gilbertus Johes Comites nec non Clerus populus ad magnum altare ecc Westm celeriter properaunt Ed. prim Regis fidel jurantes e Annales Wav f. 227. Facta convocatione omnium Prel c. a Rot. claus 1. E. 1. m. 11. b Walsing f. 1. c Mat. West f. 430. 25 E. 1. d Suscipiatis me quod si non rediero in Regem vestrum filium meum coronetis e Mirror p. 8. f Wals. f. 68. Non tam jure haereditario c. g Wals. f. 107. Rex dignitate regali abdicatur filius substituitur h Knighton col 2550. Post multos ejulatus c. i Rot. Claus 1 E. 3. m. 28. a Bib. Cot. Cleop. D. 9. Annales de Gestis Britcnum De. An. 1326. Convocatum est concilium generals c. b In Regem Angliae est sublimatus c Stat. 1. E. 3. Rastal a Rot. Parl. 50. E. 3. b Began his reign An. 1377. c Knighton f. 2683. Propinquiorem aliquem de stir pe regid d 23 R. 2. e Rot. Parl. 1. H. 4. n. 16. f N. 52. g Rot. serv die Coron H. 4. h Rot. Parl. 1. H. 4. i Rot. Parl. 1 H. 4. n. 54. so Welsing k Rot. Parl. sup Tpod. Neust f. 156. Regnum Angliae sic vacans l Vid. The Debate at large p. 127. m Walsing sup Rot. Parl. n Rot. Parl. n. 54. Iiden Status cum tote populo absque quacunque difficultate vel mâ—râ ut Dux praefatus super eos regnaret unanimiter consenserunt a Rot. Servic sup b Vid. inf the case of Bishop Merk c Rot. Pat. 2 H. 4. rot 4. d Interliga confederati adversario inimiâ—o nri Regis rni sui de Erancia adherentibus ad eundem adversar c. e Nota Richard's name was used only to colour the inviting the French to over-run this hand f Quod ipse Epus unctus 〈◊〉 a Nota Et consequenter eccles Anglicanae per quam c. b Pardonae vimus eidem nuper Episcope sectam pacis c. c Quod ipse amodo se bene geret erga Dominum Regem populum d This recited in the Petitions of the Commons Rot. Pat. 8 H. 4. p. 1. m. 4. e D'un volunt d'un assentcoment quil nen busoignoit my affermerent f Enheretablement a Pur viver morer encontre touts les gents de monde b Rot. Pat. 7. H. 4. pars 2. in 23. Ad ammovendam penitus materiam disceptationis c. c Fore esse 〈◊〉 fore esse debere Vid. alt ib. reciting the breach of former Oaths d Rot. Pat. sup Hereditas sive hereditaria e Rot. Pat. 8 H. 4. p. 1. m. 4. a Rot. Pat. 8. H. 4. Ponrvous succeder en voz saisditz corone roialms Seigniories pur les avoir ove routz leur appurtenances apres vre decesse a luy c. b Communi consensu regni juxta morem ejusdem regni c. c Heir apparent pour vous succeder d Pol. Virg. in Vit. H. 5. Drs. Gale Praef. Script Saxon. Dan. e Walsingham f Polydore Virgil. In quo de Rege creando more majorum agitabatur Vid. etiam Stow in the Reign of H. 5. mentioning this and calling that Assembly a Parliament g Rot. Parl. 1 H. 6. h 13 H. 6. a Vid. the Oath 29 H. 6. Stow f. 395. I am and ought to be humble subject and Lieage-man c. b Rot. Parl. 38 H. 6. n. 7. a Rot. Parl. 39 H. 6. n. 11. b N. 12. c Vid. unreasonableness of the new separation Fortescue's MS. of this belongs to the Cotton Library but not now to be found there unless restored very lately b N. 15. To be unto him and to the Heirs of his Body coming and to his 4 Sons c. c Elianor Wife of Lewis King of France Mat. Par. de An. 1150. d Mat. West f. 1200. a Vid. Sup. p. 27. b Vid. Grot. de jure belli pacis l. 2. sect 24. For the Neice from the elder Son to exclude the younger Son cannot hold in Hereditary Kingdoms For that gives only a capacity to succeed But of those that are capable regard is to be had to the priviledge of the Sex c Fortescue de Laud. Legum Angl. Rex a populo potestatem effluxam habet Vid. Rot. de B. R. d Grot. de jure belli pacis Lib. 2. e Ib. Sect. 14. Sect. 22. a Rot Parl. 39 H. 6. n. 18. The Oaths that the said Lords had made unto the King's highness c. saved and their consciences therein cleared c. it was agreed that the said mean the should be opened and declared to the King's highness b N. 18. c N. 27. The King by advice of the Lords condescended to the Accord and to be authoriz'd by Authority of this present Parliament d Baggot's Case 9 E. 4. Car-le corone fuit taille a lay per Parlement saving and ordaining by the same auctority the King to have the said Corones Reaumes Roial Estate Dignity and Preemirence of the same and the said Lordship of Ireland during his lyf natural e An. 1460. And furthermore by the same avis and auctoritie wolle consenteth and agreeth that after his decesse or when it shall pleas his highness to ley from him the said Corones c. or thereof ceasseth c. a Stow. f. 413. b Vid. Notes upon the Earl of Stamford's Speech An. 1692. Citting Grafton's Chron. f. 652 653. 658. Speed f. 851. Stow f. 414 415. c Ib. d 3d. Not mentioned in those Notes but in Hollinshead f. 663. e Notes upon the Earl of S's Speech Sup. a Hollinshead 663. After the Earl of March had taken upon him the Government b Rot. Parl. 1. E. 4. m. 8. Declaratio tituli regii restitutio ad eandem c Ib. d Rot. Parl. 1 E. 4. m. 8. n. 20 21 22 23 24. a Rot. Parl. 1 E 4. m. 17. Convictio quorundam Dom. al. authoritate Parl. The Earl of March upon the death of R. 2. and consequently E. 4. from him was undoubted a Vid. The Debate at large c. p. 128. b Rot. Parl. 1. E. 4. m. 7. 8. and that God had given Ed. the