It is also made treason, if any usurp upon those, to whom it is so appointed. Here the parliament do not only use their power of changing the succession, but they delegate it to another.

And, in the thirty-fifth year of this king's reign, the parliament *, by another act, take notice of the great and high trust which the subjects had in him, in putting into his hands wholly the order and declaration of the succession; yet the king being then ready to go into France, they do enact, that after his death and the death of Prince Edward, without issue, the crown should be to the Lady Mary, and the heirs of her body; but both subject to such conditions as the king should limit by his letters patents, or by his last will, signed with his hand: And if the Lady Mary performed not those conditions, that then the crown should go to the Lady Elisabeth, as if. the Lady Mary had been dead without issue; and if the Lady Elisabeth neglected to perform such conditions, then it should go to such other person as the king should appoint, in the same manner as before, as if the Lady Elisabeth had been dead without issue t. And autho rity is given to him, by his letters patents, or his last will signed with his own hand, to appoint the crown to remain to such person or persons and for such estate, and under such conditions as he should please.

An oath also for observing this statute is appointed, and it is made treason to refuse it, or to disturb or interrupt any person, to whom it is limited by this act, or should be by the king, pursuant to the power given him thereby.

This is abundantly sufficient to prove, that it was the universal opinion of that age, that the succession was wholly under the controul of parliament, who not only limited it as they pleased themselves, but subjected it to conditions, and to the appointment of others. But the thing was in its own nature so evident, that they who had the greatest reason, and were most concerned to do it, did never presume to question the power of a parliament in this point.

Lethington, secretary of Scotland, in a letter, of his, written to Sir William Cecil ‡, then secretary of state here, wherein he argues in behalf of the title of his mistress, Mary Queen of Scots, to succeed Queen Elisabeth, against a pretended disposition made by the last will of Henry the Eighth, to his niece the Lady Frances, daughter to the French Queen, if his own issue failed, says of these statutes that gave the king power to dispose of the crown, that they were against equity to disinherit a race of foreign princes, and that they were made in an abrupt time (as he terms it), but yet he confesses, that since the thing was done, it was now valid and unavoidable, unless some circumstances did annihilate the limitation and disposition made by King Henry's will.

And so he proceeds to prove that the power, which was given to the king by these statutes, was not pursued (which it ought to have been most strictly, and in a precise form) for that the king never signed the will, but that his name, set to it, was forged: nay, I will 35 H. 3. cap. 1. + See the instrument of Queen Jane's proclamation, &c. in vol. 1. Burn. Hist. Reform. Collect. 268.

p. 318.

venture to say that in all the books, which were written to support the claim of the Scotish Queen against King Henry's will (though the whole power and wealth of the Guises were employed to set every wit at work on that design *) there was never any stress laid upon it, or so much as a pretence that these acts of parliament were void or ineffectual in themselves. In that discourse which was published by Philips, and composed by Sir Anthony Brown, one of the justi. ces of the common pleas, who was (in Judge Dodderidge's opinion) a person of an incomparable sharpness of wit, there was all the help that learning either in divinity, civil or common laws, could give; yet there the authority of the parliament in the case, and the validity of these statutes, is all along admitted. Indeed, they endeavour to put some other construction upon the statutes: but their great argument is, that King Henry, as king, had no power to dispose of the crown, and therefore these laws only gave him an authority, and made him only as it were a commissioner, and therefore, as all other authorities (especially being in derogation of the course of the common line) was to be strictly followed. They allow that he had sufficient power to devise, and that he might honourably have used that power; but that he ever did exercise that authority, is the thing denied. But it is time for us to go on.

Edward the Sixth succeeded his father and took upon him a power, which surely no king ever had, to dispose of his crown, by will. But that disposition serving to no other purpose but and after, to the ruin of Lady Jane Grey †, his sister Queen Mary first, Queen Elisabeth, enjoyed the crown according to the limitation of the statute, 35 H. VIII. c. 1. and, that one of them had no other title, must be agreed by all: For Queen Catharine was alive, at the time when Elisabeth was born; so that, if the first marriage was unlawful, Queen Mary; and if the second was unlawful, Queen Elisabeth must necessarily have been illegitimate.

I cannot but observe one passage to our present purpose, which I meet with in the time of Queen Mary. Sir Edward Montague, first Lord Chief Justice of the Common Pleas, and afterwards of the King's Bench (one who had the reputation of the ablest and wisest lawyer of his age) being accused to have drawn the will of Edward the Sixth, whereby that queen was to have been disinherited, and being in great danger upon that account, drew up a state of his own case, and therein sets forth, that the great reason which prevailed with him to obey the king in that particular, and upon which he did still rely for his indemnity, was, that if Queen Mary came to the crown, she took it by force of the act of parliament, which did limit it to her in remainder; so that she came in as a purchaser, and not in privity of estate to her brother, and consequently could not punish treasons or offences committed in his time .

I must needs also observe, that in the articles made upon the marriage of Queen Mary with Philip of Spain, which were confirmed

See a treatise of the title of Queen Mary to the succession, pages 38, 39, &c. Lib. Dodd. Engl. Lawyer, page 8.

+ Sce the introduction to her proclamation, in vol. 1. page 314.

More's reports, 827, and 828. Fuller's Ch. History, Lib. 8. Fol. 5.

by act of parliament, the several crowns and territories of Philip are distributed, part to Charles the Infant of Spain, part to the issue of the intended marriage *. Whereby it does appear not only what opinion all Europe had of the power of an English parliament, but also that by the consent of the estates of other realms, crowns might be limited and disposed out of the ordinary course of descent.

In the first year of Queen Elisabeth, the parliament recognise her title to the crownt, with express relation to the statute 35 H. VIII. which invests it in her and the heirs of her body, and do enact that the limitation, made by that statute, shall stand and remain as a law for ever, and all sentences, judgments, and decrees to the contrary, are declared to be void, and appointed to be cancelled. And the se veral offences, which are made treason by another statute in the same year, are all restrained to the queen and the heirs of her body only: The parliament intending to extend that new security no farther than her estate in the crown (which she took by that parliamentary limitation) did extend.

In her thirteenth year it was enacted ‡, that if any person claim title to the crown for himself or any other, during her life, or shall not upon demand acknowledge her right, he shall be disabled, during his life, to have the crown in succession as if he was naturally dead.' And to affirm right of succession in such claimer or usurper, (after proclamation made of such claim or usurpation) is made treason. Nor does the statute stop there, but makes it treason, during the life of the queen, and forfeiture of all goods and chattels after her decease, to affirm that the queen, with and by the authority of parliament, is not able to make laws and statutes of sufficient force and validity to limit and bind the crown of this realm, and the descent, limitation, inheritance, and government thereof; or that this or any other statute made by parliament, with the queen's assent, is not or ought not to be for ever of sufficient force to bind and govern all persons, their rights and titles, that may claim any interest or possibility in or to the crown in possession, remainder, inheritance, succession, or otherwise. It were well if some rash men, who presume in their discourses to restrain the power of the parliament (that is, the king, lords, and commons) in the great business of the succession, would be so wise as to remember this act (which is still in force) and the penalty to which they subject themselves by such sawcy talk. That incomparable statesman the Lord Burleigh had another kind of opinion of the security which an act of parliament could give his royal mistress, by making the Scotish Queen (the Popish successor of that time) unable and unworthy of the succession; as appears in a letter which he wrote about this time, to Sir Francis Walsingham, then ambassador in France ||.

In the twenty-seventh year of Queen Elisabeth, it was enacted §, that if any invasion was made, or rebellion, or other thing tending to the hurt of her person, by, or for, or with the privity of any one who

1. Mar. Parl. 2. cap. 2. Compleat Ambassad. fol. 289.

1 Elis. c. 3, and 5. 13 Elis. c. 1. Rast. Treason. 27. § 27 Elis. c. 1.

should or might pretend title to the crown, and the same should be adjudged in such manner as that law appoints, then every person, against whom such judgment should be given, should be excluded and disabled for ever to have or claim the crown; and that the sub jects of this realm lawfully might, by all forcible and possible means, pursue all such offenders: and their issues, assenting or privy thereto, are in like manner disabled, and to be pursued. And this act was made in pursuance of an association entered into by the people, in the vacancy of parliament, out of their great zeal for the preservation of the life of that excellent princess.

By virtue of this statute, Mary, Queen of Scotland, was afterwards executed, as appears by the commission for her tryal *.

King James, her son, who was a wiser prince, and not wholly go verned by priests, as his mother was, though he had the same preten. ces that she had, yet never disputed his right, or set on foot any title, during the life of the ever renowned queen; though she would never suffer him to be declared her successor. He was too wise to incur the like disability as his mother had done, and to contest a title esta blished by parliament.

After Queen Elisabeth's death, the act of recognition, made upon King James's coming to the crown, doth particularly insist upon that title, which was raised by act of parliament to Henry the Seventh, and the heirs of his body, and that immediately, upon the queen's decease, the crown descended and came to King James; so that you see the title of Queen Elisabeth is again acknow. ledged by parliament. And the entail made by the statute of 35 Hen. 8. being spent upon her death without issue, King James comes in, as next heir to the old entail made the first year of Henry the Seventh.

Thus, I have set down before you the whole course of the English succession, as plainly, as truly, and as briefly as is possible. I shall leave every man to make his own observations on this historical de duction: but this one observation, I believe, all men must make from it, that it hath been the constant opinion of all ages, that the parlia ment of England had an unquestionable power to limit, restrain, and qualify the succession as they pleased, and that in all ages they have put their power in practice; and that the historian had reason for say. ing, that seldom, or never, the third heir, in a right descent, enjoyed the crown of England.

It were as easy to shew, that in all other kingdoms, the next of blood hath been frequently excluded from the succession+; but the history of our own country is our business; yet I cannot forbear re citing the speech which ambassadors, sent from the States of France, made to Charles of Lorrain, when they had solemnly rejected him (though he was brother to Loys d' Outremes, and next heir to the crown) and had elected Hugh Capet for their king. They told him, that every one knew that the succession of the crown of France be longed to him, and not Hugh Capet. But yet (say they the very

Strangway's Hist. of Mary Queen of Scotlaud, fol. 179. † Daniel, fol. 5. in vita H. 1. Gerr, du Hail, lib, 6. An. 988.

same laws, which give you this right of succession, do now judge you also unworthy of the same; for that you have not hitherto endea voured to frame your manners according to the prescript of those laws, nor according to the usages and customs of your country, but rather have allied yourself with the German nation, our old ene. mies, and have loved their vile and base manners. Wherefore, see ing you have forsaken the ancient virtue and sweetness of your country, we have also forsaken and abandoned you, and have chosen Hugh Capet for our king, and put you back; and this, without any scruple of conscience at all, esteeming it better, and more just, to live under him, enjoying our ancient laws, customs, privileges, and liberties, than under you, the heir by blood, in oppressions, strange customs, and cruelty. For, as those, who are to make a voyage at sea, do not much consider whether the pilot be owner of the ship, but whether he be skilful and wary: so our care is, to have a prince to govern us gently and happily (which is the end for which princes were appointed), and for these ends we judge this man fitter to be our king.

Certainly, it were a most dangerous thing to have an opinion prevail, that the king, in concurrence with his parliament, should not have power to change the direct order of succession, though the preservation both of him and his people did depend upon it. For it does directly tend to anarchy, and makes the government to want power to defend itself, by making such alterations, as the variety of accidents in several ages may make absolutely necessary. There must be a supreme uncontroulable power lodged somewhere. And the men, who talk at this rate, can hardly find where it is lodged in England, if not in the king, lords, and commons, in parliament.

But when a man begins to ask a reason of this doctrine of theirs, that proximity of blood does give a title unchangeable by any human laws, the teachers of it differ exceedingly. Some of them tell us of a divine patriarchal right, which kings, as natural fathers of their people, have derived down to them from Adam. And this notion, though it be no older than the present age, has been very frequent in men's mouths and books, and has much pleased of late (as new things use to do.) But they consider not, that, if this be true, there never can be but one rightful monarch in the universe; that is, he only who is the direct and lineal heir of Adam then living. And thus these great patrons of absolute power, instead of supporting, do shake the thrones of all the princes in the world, since none of them, at this day, can make out any such title.

There are others, who, being desirous to bestow upon the crown a compliment of the like nature, which they were at the same time obtaining from it, have declared in general, that monarchy is of divine right, that princes succeed by the laws of God, that their title is not subject to any earthly cognisance, nor owing to any consent of the people. But the consequences of this opinion are not once considered by these men, that thereby the property of all subjects and the laws of all countries are destroyed together. For no human Jaws or contracts can bind or restrain a power divinely instituted,