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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 subjects 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 governed by priests, as his mother was, though he had the same pretences 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 established 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 acknowledged 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 parliamerit 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 reciting 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 belonged to him, and not Hugh Capet %. But yet (say they the very
« Stranitway's Hist- of Mary Queen of ScoUaud, fol. 179 • t Daniel, fol. i. ia vita H-1. 1 Gcrr. ilu Hail, lib, 6. An. 988
same laws, which give you this right of succession, do now judge yon .also unworthy of the same; for that you have not hitherto endeavoured 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 laws or contracts can bind or restrain a power divinely instituted. Or, if you like it better, in the words of a great cardinal*, a jurisdiction; which is of divine right, is not alterable by the will or power of man.
Besides, all communities, which live under another form of government, must be guilty of violating this divine institution. And, perhaps, there are few others, besides the Great Turk's dominions, which are governed as they ought to be.
In what a damnable condition are the Venetians and the Netherlands, who admit no monarch at all? Poland, and the empire, who elect their princes, and will not hear talk of this divine right of sue. cession?
Arragon, where they do not only elect their king, but tell him plainly at his coronation, that they will depose him, if he observes not the conditions which they require from him, and have a settled officer, called el' justitia, for that purpose. Nay, even France itself, which, it is notoriously known, does exclude women from this divine right.
That government is of nature, and derived from God, is manifest. Nothing is more natural in man, than the desire of society, and without government, society would be intolerable. But can it be proved from hence, that the government cannot be moulded into several forms, agreeable to the interest and dispositions of several nations, and may not be varied from time to time, as occasion requires, by the mutual consent of the governors, and of those who are governed?
And after all pretences of this kind, let any place of scripture be produced, wherein God obliges a people to this, or that form, till they have first obliged themselves to it, by some act of their own?
I do agree that, if God by any extraordinary revelation has ordained any sort of government, or, by any immediate denomination, has conferred a kingdom on any family, and has directed in what order the crown shall descend, that all men are bound to submit to it, and acquiesce in the divine will, as soon as it is clearly and evidently made out to them; but they must not be angry, if men expect such an evidence.
There is a third sort of men, who tell us, this realm being intirely subdued by the conqueror, and by him left to descend to his heirs, none of these heirs, who derive a title under him, can deprive those who are to succeed of any right, which they ought to have, but must leave the crown as free to them, as they themselves received it from their ancestors.
I will not here insist upon the danger that any prince runs into, who founds his title in force, because it will be hard to prove that such an one does not leave as good a title open for every man, who can make himself strong enough. Nor need I trouble myself to shew, that all conquest does not put the conqueror into an absolute right. Though it be most evident in the case of William the First, who did by his sword prosecute a claim of another nature, and meant only to acquire that right, and after conquest rested >u it,
• Card. Palav. Hist. Cone. Trill. lib. 18. C It.
He pretended to the crown as the gift of King Edward, and to vindicate that title, he entered with arms. And though his relation to the crown was more remote than that of Edgar Atheling (then a child), yet this title was better than Harold's the present usurper, who could pretend no kindred at all, and who had himself sworn to support the grant to William. Nor did he claim a power by conquest, (though the name of Conqueror was given him by after times, says Daniel) but submitted to the orders of the kingdom, desirous rather to have his testamentary title, than his sword, to make good his succession. But I will admit that he made an absolute conquest, and then these men will grant that he might himself dispose of this conquered kingdom. Therefore, if he did not leave it to descend in such a manner as they would have it go, nor did institute any such sort of succession, surely this argument of theirs will fall to the ground. Now it is plain, that he never designed that the crown should descend, but gave it to his second son, and thereby gave an early example of excluding and pretermitting the unworthy.
Lastly, others object, that the fundamental laws of the land, against which no act of parliament can be of force, have so esta. blished the succession, that the course of it cannot be altered. This is surely a new discovery unknown to our fore-fathers, as the foregoing history does abundantly prove. But let these objectors be asked, By what authority these imaginary laws were made? For if an authority, equal to that which made them, be still in being, that authority may certainly repeal them, whenever it pleases to exert itself. If the king alone made them, no doubt but that he may change them too. If they will say they were made by the diffusive body of the people; they run before they are aware, into the guilt of worshiping that idol the multitude, and make a great step towards placing the foundation of the government upon contract and consent. But then let them produce those laws, or some authentick memorial of them, before it be exacted from us to believe, there were ever any such.
Yes, they will say, there is such an ancient law, acknowledged by all the judges, and known to every man, that the descent of the crown purges all defects whatsoever. This maxim, as it is usually repeated, is in these words; and this might be admitted, and yet could not be pertinently applied to a case, where the descent itself is prevented by a law. But I will not take advantage of their words, but will consider the objection, as it stands in that book, where the first mention of it was made; and that is in the Year Book of Henry the Seventh, it being said there by the judges, That the king was a person able, and discharged of any attainder, eofaeto^ that he took upon him the government, and to be king.*
First, This was not only an extrajudicial opinion, but was not pertinent to the question referred to their consideration, Whether those who were chosen into the house of commons, and were at that time attainted of treason, might sit in parliament till their at. t
* 1 H 7. to!. 4. b. Que le roy fuest person able et discharge d'auscuo attainder eo factq nu'il prist sur l.i le reign ct estre roy. .
tainders were reversed; and they all agree that their attainder! should first be annulled. But then they proceed to say, That there was no necessity that the king's attainder should be reversed; for that he might enable himself, and needed not any act of reversal. But surely they said very wisely in what they said, for he, who had won a crown in the field, had gone a great way towards enabling himself to wear it. Most sure it is, that if an act of reversal were necessary before he could sit, that then it was impossible he ever should sit there, because no such act could be made, without the royal assent. Henry the Seventh was then king de facto, and in possession of the throne, and it was somewhat of the latest to consider, whether he was qualified or not. Certainly it had been strange self-denial in the judges, and a neglect of themselves (which is not usual with them) to have alledged an incurable disability in the king, from whence they had their patents and authority.
In the next place let us consider, what precedent the judges cite to justify this opinion of theirs, and how opposite it is. Henry the Sixth, being driven out of the kingdom by Edward the Fourth, the conqueror called a parliament, and got an act to pass, whereby Henry was disabled to hold the crown. About ten years after, Henry regains the kingdom, and upon this re-accession to the crown (as it is usually called) this act is never repealed. But does not every child see the reasons of it? For if Henry was lawful king (and before he was not to doubt that) the act itself was void, inasmuch as it wanted the royal assent. So that for him to have procured an act of repeal, had been to affirm a title to the crown in Edward. But without doubt, this opinion of the judges, as it is applied by the objectors, was new and unheard of before. We see the king of France was otherwise informed by the learned men in the time of King John,* for they thought his blood corrupted, and him uncapable of taking the crown by descent, because he was attainted of treason; which prevailed with that king to send over his son Lewis, to put in his claim, in right of his wife, who was the next heir. It also ought to be observed, that the true reason, why the generality of the nation did so long approve the title of the house of Lancaster, was, because all the princes of the house of York were attainted of treason, and their blood corrupted. But as soon as ever this corruption was purged, and Richard Duke of York was declared heir apparent by parliament, the people soon forsook the Lancastrians, and set the house of York on the throne.
Nay the very learned men of the same age with these judges thought quite otherwise, as will appear beyond contradiction, in this famous case which follows. Richard the Third had two elder brothers, Edward and George Duke of Clarence. Richard, designing to secure the crown to himself, had procured the children of Edward to be declared illegitimate, yet still the Duke of Clarence had issue living, which might pretend. But observe what the par, liament say (as to this) in the first year of Richard the Third:t • That, in the seventeenth year of Edward the Fourth, George Duke
• Mat Wettm. S75. T. supra. t V- rap. It Cult. Ret. 700.