Or, if you like it better, in the words of a great cardinal*, & 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 govern. ment, must be guilty of violating this divine institution. And, per. haps, 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 Nether. lands, who admit no monarch at all ? Poland, and the empire, who elect their princes, and will not hear talk of this divine right of suce 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 re. quires, 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 denomina. tion, 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 in it,

• Card. Palay, Hist. Conc. Trid. lib. 18. C. 15.

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 sword to support the grant to William. Nor did he claim a power by con. quest, (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 estas blished the succession, that the course of it cannot be altered. This is surely a new discovery unknown to our fore.fathers, as the fore. going 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 crowo 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, eo facto, 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. tainders were reversed ; and they all agree that their attainders 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 con. sider, 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.

1 H. 7. fol. 4. b. Que le roy fuest person able et discharge d'auscup attaịnder eo facta

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 uncapa. ble 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 cor. ruption 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, design, ing 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 para 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. Westm. 275. p. supra, # V. sup. & Cutt. Rec. 709.


6 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 6 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 Lan. caster, 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 niceness 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 extra judicial 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 j 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.

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 6 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 parlia. ment, 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 imme. diate 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 re. fuse obedience to any of them. And surely those, that should do so, would be an excellent loyal party. God defend this oatione from such loyalty, as opposes itself to the laws,

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