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* of Clarence was attainted of treason, by reason whereof all the 'issue of the said George was, and is disabled and barred of all 'right and claim, that in any case, he, or his issue, might have, or 'challenge by inheritance to the crown, and dignity royal of these 'realms. After that we consider, that you be the undoubted heir, '&c. And so they proceed, affirming that all learned men in the 'laws do approve his title.' You see, within less than three years before this opinion of the judges, the whole parliament do not only give their opinion, but assure you that all learned men of that time held clearly, that an attainder did hinder the descent of the crown, and incapacitate the person to take it. Nay, what goes yet further in this matter, Richard himself, though he was as jealous to secure his title as ever tyrant was, and had as good advice to discern the most distant danger; though he was always restless in endeavouring to get the Earl of Richmond into his hands, who was a very remote pretender, and only descended from a bastard of the house of Lancaster, yet he feared nothing on this side. He knew how he had wronged the children of his brother Edward, and could not be at ease till he had sent them out of the world; but he let the children of his brother Clarence live, without apprehending any danger from them, because their blood was corrupted, and all possibility of descent taken from them, by the attainder of their father. It was this only preserved them alive, and not any remorse of conscience, or any niceucss in sending another nephew out of the world, after those whom he had dispatched before. This notable case, attended with these circumstances, will convince every man either that the judges intended no such thing by their opinion as some men fancy, or else at least that extrajudicial opinions were then as apocryphal as they have been since.
Consider, lastly, the unreasonableness of this doctrine, which tends directly to subvert government, and to put the life of the king regnant into the hands of his successor. The next heir may com. mit rapes, and murders, and treasons; burn cities, or betray fleets; may conspire against the life of his prince, and yet, after all, if by flight or force he can save himself, till some of his accomplices can get the king dispatched, in spight of all laws and justice he must come to the crown,and be innocent.
But when I reflect what sort of men I am arguing with, and how willingly they use to submit to authority, I think I shall convince them best by citing the opinions of two great men, the one a cardi. nal, the other a lord-chancellor, both of them martyrs for the papal supremacy; I mean, Bishop Fisher and Sir Tho. Moor. And, if their judgments approve the power of parliaments in the business of the succession, it cannot but weigh very much on such occasions as this. It is well known, how * with resolution, even to death, they refused the oath of succession which the parliament had framed, because therein the king's supremacy was avowed, and therefore they cannot be suspected to dissemble, when at the very same time they declared, that, if that of supremacy was left out, they would ■willingly swear an oath to maintain the succession of the crown to the issue of the king's present marriage, as it was then established by parliament, and gave this reason for it, that this was in the power of a parliament to determine; but not who was supreme head of the church. Sir Tho. Moor went further, and owned a very strange opinion of their power in this point. But he says expresly at the same time, that the parliament had unquestionable authority in the ordering the succession, and that the people were bound to obey them therein.
* Burn. Hitt. Kerorm. lib.t. fol. IKS.
After the testimonies of these two great Papists, it will be little to add the testimony of a Protestant. But yet I will mention what Sir Walter Rawleigh (who was no inconsiderable man, though a Protestant) says in his incomparable preface to the history of the world: 'Without doubt (says he) human reason would have judged no 'otherwise, but that Henry the Fourth had rendered the succession 'as unquestionable, by the act of parliament which he had procured 'to entail it on his issues, as by his own act he had left his enemies 'powerless.'
But sinking men catch hold of every thing, and, when they cannot object to the validity, they will tell us, That such an act of parliament, to disinherit the next heir, is unjust and without a sufficient ground.
I will not, at present, enter into a dispute how far the difference of religion, which will also necessarily draw on a change in the government, does justify men in seeking to preserve the two dearest things on earth in an orderly and lawful way. I will not (though I safely might) challenge these men to tell me, wherever any settled nation which had laws of their own, and were not under the immediate force of a conqueror, did ever admit of a king of another religion than their own. I will not insist on it that the crown is not a bare inheritance, but an inheritance accompanying an office of trust; and that, if a man's defects render him uncapable of the trust, he has also forfeited the inheritance. I need not say how far a nation is to be excused for executing justice summarily, and without the tedious formalities of law, when the necessity of things requires haste, and the party flies from justice, and his confederates are numerous and daring, and the prince's life in danger. But this I will say, that, if the parliament have power in this thing, which I need not prove, by shewing, that the ordinary course of law allows heirs to be disinherited of fines and recoveries, and that the parliament, in all ages, has frequently done it by making acts to alter the strongest settlements, where equity has dictated it, though the heirs were never, in any wise, criminal: There, according to Sir Thomas Moor's opinion,'the people are bound, in conscience, to obey their laws, and must not pretend to enquire whether they were made upon just grounds.' For by the same reason they may pretend that all other laws were made without just cause, and refuse obedience to any of them. And surely those, that should do so, would be an excellent loyal party. God defend this nation from such loyalty, as opposes itself to the laws.
THE SUCCESSION OF THE CROWN.
Folio, containing two pages.
HETHER the history of the succession of the crown will allow so good and clear an hereditary right, jure humano, the reader will best judge, by the short historical collection, touching the succession, hereto subjoined.
In the heptarchy, there was no fixed hereditary right, one king tripping up the heels of another, as he had power, till one got all.
After no fixed hereditary right, for Athelstan, the great king, was a bastard, and so were several others; who, by their courage and policy, got the crown; so that a law was made, under the Saxon monarchy, De ordinatione regum, that directed the election of kings, prohibiting bastards to be elected.
Edward the Confessor was not king jure hesr editario,
William the First, called the Conqueror, had no right but from the people's election.
William Rufus was elected against the right of his elder brother. Henry the First came in by the same way. King Stephen was elected a clero Sf populo, and confirmed by the Pope.
Henry the Second came in by consent, yet he had no hereditary right, for his mother was living.
Richard the First was charged before God and man, by the arch. bishop, upon his coronation, that he should not presume to take the crown, unless he resolved faithfully to observe the laws.
King John, his brother, because his elder brother's son was a foreigner, was elected a clero Sf populo, and being divorced from his wife, by his new queen, had Henry the Third.
Henry the Third was confirmed and settled in the kingdom, by the general election of the people; and, in his life-time, the nation was sworn to the succession of Edward the First, before he went to the Holy-Land.
Edward the First, being out of England, by the consent of lords and commons, was declared king.
Edward the Second, being misled, and relying too much upon his favourites, was deposed, and his son was declared king in his life-time.
Richard the Second, for his evil government, had the fate of the second Edward.
Henry the Fourth came in by election of the people, to whom succeeded Henry the Fifth, and Henry the Sixth, in whose time Richard Duke of York claimed the crown, and an act of parliament was made, that Henry the Sixth should enjoy the crown for his life, and the said duke after him; after which, King Henry raised an army, by assistance of the queen and prince, and, at Wakefield, in battle kills the duke, for which, in parliament, 1 Ed. 4. they were all by act of parliament attainted of treason; and one principal reason thereof was, for that, the duke being declared heir to the crown after Henry, by act of parliament, they had killed him. Edward the Fourth enters the stage, and leaves Edward the Fifth to succeed, to whom succeeds Richard the Third, confirmed king by act of parliament, upon two reasons: First, that, by reason of a pre-contract of Edward the Fourth, Edward the Fifth, his eldest son, and all his other children, were bastards. Secondly, For that the son of the Duke of Clarence, second brother to Edward the Fourth, had no right, because the duke was attainted of treason, by a parliament of Edward the Fourth.
Henry the Seventh comes in, but had no title. First, because Edward the Fourth's daughter was then living. Secondly, his own mother, the Countess of Richmond, was then living.
After him Henry the Eighth wore the crown, who could have no title by the father. In his time, the succession of the crown was limited three several times, and the whole nation sworn to the observance.
Sir Thomas Moor declared, that the parliament had a power to bind the succession, and would subscribe thereto.
Edward the Sixth succeeded, but his mother was married to King Henry, while Catharine of Spain, his wife, was living.
Queen Mary was declared a bastard, and, by virtue of an act of parliament of Henry the Eighth, she succeeded; which act being repealed in the first of her reign, and the crown being limited otherwise by parliament, all the limitations of the crown in Henry the Eighth's reign were avoided; so that
Queen Elisabeth, who was declared a bastard, by act of par1 lament, in Henry the Eighth's time, and limited to succeed, in another act in his time, and that act repealed by Queen Mary, became queen in the force of her own act of parliament, which declared her lawful queen.
The crown was entailed in Richard the Second's time; again in the time of Henry the Fourth; again in the time of Henry the Sixth; again in the time of Edward the Fourth; again in the time of Richard the Third; again in the time of Henry the Seventh; thrice in the time of Henry the Eighth.
And, upon the marriage of Queen Mary to Philip of Spain, both the crowns of England and Spain were entailed; whereby it was provided, that, of the several children to be begotten upon the queen, one was to have the crown of England, another Spain, another the Low-Countries; the articles of marriage, to this purpose, were confirmed by act of parliament, and the Pope's bull.
So that it was agreed, by the states of both kingdoms, and the Low-Countries; and, therefore, probably, the universal opinion of the great men of that age, that kings and sovereign princes, with the consent of their states, had a power to alter and bind the succession of the crown*
THE GREAT BASTARD,* PROTECTOR OF THE LITTLE ONE.
DONE OUT OF THE FRENCH.
And for which, a Proclamation, with a Reward of 5000 Louis'dors; to discover the Author, was published.
Printed at Cologne, 1689. Quarto, containing thirty pages.
E find in holy writ, that, in the Jewish law, it was expresly provided by the supreme legislator, ' That a bastard should not enter into the congregation of the Lord, even to the tenth genera. tion:' but it seems the unhappy kingdom of France allows the bastard himself, not only to enter into the congregation, but to settle himself upon the throne, and to bear it higher than all the preceding kings before him, which had a better right to do it, as being the offspring of kings, and not the sons of the people, the proper term the Roman law gives to bastards. We have heard of the Salick law, in force in that kingdom, for a great many ages, by which the crown of France cannot fall from the sword to the distaff; but, 'till the blessed days of our august monarch, we never had the happiness to be acquainted with a law or custom, by which that was in the power of a Queen of France, to provide us an heir to the crown, without the concurrence of her husband, and to impose upon us, for our king, a brat of another man's making. All the reign of our invincible monarch has been a constant series of wonders; but, amongst them all, this is none of the least, That he, who was, in the opinion of all the world, the son of a private gentleman, from his birth to the end of the Prince of Conde's wars, has had the good fortune to be, ever since, no less than the son of Lewis the Thirteenth. After this, let no body call in question the commonly supposed fable of the transmutation of Iphis from a woman to a man, since to be translated from a bastard, to a son lawfully begotten, is equally as difficult.
Among a great many other quarrels I have with the English nation, this is one, That they are a people too nice in believing miracles; and their haughtiness is such, as they scorn, forsooth, to
• This ii the 65th number in the catalogue of pamphlet! in the Harlelan Library. TOL. IX. T