The right of primogeniture, in succession to the kingdoms of England, Scotland, and Ireland as declared by the statutes of 24 E.3 cap 2. De Proditionibus, King of England, and of Kenneth the third, and Malcolm Mackenneth the second, Kings of Scotland : as likewise of 10 H.7 made by a Parliament of Ireland : with all objections answered, and clear probation made : that to compass or imagine the death, exile, or disinheriting of the King's eldest son, is high treason : to which is added, an answer to all objections against declaring him a Protestant successor, with reasons shewing the fatal dangers of neglecting the same.

Obj. 7. The eldest Son not Heir intended by the Statute.

* 1.1Answ. 1. This Objection is in its own Nature repugnant to it self, That the eldest Son and Heir in the Letter of the Sta∣tute, is not the Heir in the Intention.

(2.) Tis Protestatio contraria facto, and not only to the Fact of another, but to the Parties own-Fact; who Objects for the Popish Party who deny him to be Heir in their words, affirm him to be Heir by their Deeds and wicked Plots to kill him as Heir, that they may seize on his Inheritance, as is already shewn, Matth. 21.38. They said amongst themselves, This is the Heir, come let us seize on his Inheritance.

* 1.2(3.) The word Heir is the Genus, and eldest Son is the Dif∣ference. So the Heir intended by this Statute is not only de∣scribed, but perfectly defined and differenced from all other Species of Heirs; As there is Haeres Sanguinis, and Haeres Haere∣ditatis, there is Haeres factus, and Haeres Natus, Haeres de facto, and Haeres de Jure, Haeres verus, and Haeres fictitius, Haeres Astra∣rius, and Haeres Apparens. There is farther, the Heir by the Civil Law, who succeeds in Ʋniversum Jus Antecessoris, im∣moveable and moveable Possessions, and Obligations; There is the Hier by the Law of Scotland, and Customs in the North, who succeeds to Lands, Heirlooms, and Heretable Bonds; but not to other Moveables. There is the Heir by Custom, and the Heir by Law. There is Haeres ex provisione Legis, and Haeres ex provisione hominis. There is the Heir by Contract in∣ter viros, and Heir Testamentary and Heir Dative. There is Haeres Viventis, and Haeres Defuncti. There is the Heir in Gavelkind, and Heir in Burgh English. There is the Heir by the Ecclesiastical Law, and Heir by the Common Law, and Heir by the Statute Law. There is the true Heir, and Heir by the Certificate of the Bishop. There is the Heir per Jus Co∣ronae, and the Heir by the Law for Subjects. There is the Heir by the Ceremonial Laws of Men, and the Heir by the Moral Law of God: There is the Heir of the Husband, and the Heir of the Wife; Heir of the first, and Heir of the second Mar∣riage, and so many other Kinds there are of Heirs here not

named; as the old Rhyme, though made on another Subject, may be true enough applied to this:

Of Heirs there are as many Kinds, As Marriners have found out Winds.

And should all these Kinds of Heirs, the greatest part of whom were before this Statute, left unlimitted as to Supreme Successions, either at once or Successively in the Three King∣doms, bring their pretensions of Right to Tryal by Battels, though Papists would Rejoyce in such perpetual Tempests as they themselves had raised to Rent the Brittish Oak in pieces, yet no Protestant there would be who would not acknowledge it a great Providence of God, and Piety and Prudence in this Statute, which to prevent the Causes of so many Intestine Dis∣cords, hath restrained the manifold kinds of Heirs, to whom there can be but one at a time in the Three Kindoms who is the King's eldest Son, and Heir of his Blood.

* 1.3(4.) 'Tis manifest this Statute intended no kind of Heir but the eldest Son and Heir; First, Because the Natural affection of the Father directs his intention irresistably to his eldest Son. Secondly, Because his Wisdom and Self-Preservation leads to the eldest Son, who, as is before shewn, is above all other Children the chiefest Defence of the Father. Thirdly, Be∣cause the Black Prince, who was intended to have the benefit of this Statute, was the eldest Son and Heir of Edward the Third, the maker of this Statute.

* 1.4(5.) 'Tis manifest this Statute intended Haeres Sanguinis, and not Haeres haereditatis; Heir of Blood, and not Heir of Goods; and Haeres viventis, and not Haeres Defun••ti; Except before he is Born, and not after. And though John-an-Oaks, who hath been so long the Parret of Littleton and Coke's Law, will sto∣mach it very much to be taught a new Lesson; yet under his favour, his Tutors in these matters of Marriage, Filiation, and Succession, were very much Mistaken or Partial in this as other Matters, and many of them in the two former Books have been already shewn. And I shall, as to the two particu∣lars here mention'd, further shew, first therefore, That Haeres

Sanguinis, is intended in this Statute, and not Hares Haere∣ditatis.

(1.) Because Haeres Sanguinis, is Haeres designans; & Haeres Haereditatis, Haeres designatus, to be known by the other.

(2.) Because the words of the Statute are, our Lord the King, the Lady his Companion, or their Eldest Son and Heir: Now the Heir of the Inheritance of a Kingdom cannot be intended, Be∣cause he derives his Title to the same only from the King, and not from the Lady Companion, unless a Queen Regnant; there∣fore he cannot be the Heir of both of them, as he is Haeres He∣reditatis; but as he is Haeres Sanguinis, he is Heir of the Blood of both of them, which is the only Heir, intended by this Statute. Secondly, seeing the Heir of Blood, is in the Express words of the Statute: And no words at all of the Heir of the Inheritance, therefore the Heir of Inheritance ought not to be put in the intention, otherwise than as Haeres designatus, marked to be known, by the first knowing who is Haeres Sanguinis, because then a Penal Statute would be extended by Equity.

And as to the other Particular, It is manifest, That Haeres viventis is intended in this Statute, and not Haeres defuncti, ex∣cept before he is born, and not after. First, because the eldest Son who is Haeres Sanguinis, most times happens to be born in the life-time of his Father, and not to be a Rosthume, and, ad ea quae frequentius accidunt Jura adaptantur. Therefore Posthu∣mes, which do rarely happen to be eldest Sons, shall not be on∣ly intended to be within the Statute, and the eldest Son on whom the Royal Blood descended en ventre sa mere; And he was Heir to the same before he was born, be therefore excluded, because he is Haeres viventis to the same after he is born, and his Father died not before his Birth. Secondly, The words of the Statute, Restrain not the Heir to be, Haeres defuncti; before he is born, or after he is born; therefore to restrain by the intention of either, is to extend a Penal Statute by Equity; which ought not to be done. Thirdly, my Lord Coke himself, 3 part, fol. 9. in his Exposition on this Statute, says, That Heir, is here taken for Heir apparent, for he cannot be Heir in the life of the Father.* 1.5 It is a clear mistake; for first, an Heir apparent can only be of the King, but the Statute makes him Heir both to King and Lady, and the catch which they

have got of Haeres non est viventis, was never intended to be any other than Haeres Haereditatis, which kind of Heir is before un∣answerably Proved not to be intended within this Statute. And if it had, the Statute had served to little purpose to ascertain the Heir of the Crown, so many sorts of Laws and Customs pretending to be the Rule of Judgment of Haeres Haereditatis: but the eldest Son, who is Haeres Sanguinis, as is already shewn, can be but one in the Three Kingdoms; and that the King's eldest Son, who is Haeres Sanguinis, the Chief Heir of his Blood, by the Law of Nature, and not him who is made Haeres Haere∣ditatis by Papal and Episcopal Laws. When Theseus had occa∣sioned the Death of his Vertuous, Valiant and eldest Son Hippolitus, by the false Calumnies of Phaedra his Stepmother, he crys out,

O nimium Potens, Quanto Parentes Sanguinis vinclo tenes, Natura! quam te colimus inviti quoque! Occidere volui noxium, amissum fleo. Seneca in Hippol.

I cannot, oh too potent Nature shun The Bonds of blood 'twixt Father and a Son: His blood, his blood, I in my anger shed, For whom I now shed Tears when he is dead.

And did not David fall into a greater Passion of Love for Absolon, though the most Unnatural, Ingrateful, and Traite∣rous Son that ever was. 2 Sam. 18.32. And the King said unto Cushi, Is the young man Absolon safe? and Cushi answered, The enemies of my Lord the King, and all that Rise against thee to do the hurt, be as that young man is; And the King was much moved, and went up to the Chamber over the Gate and wept; and as he wept, thus he said, Oh my Son Absolon, would God I had died for thee, oh Ab∣solon, my Son, my Son. But what would David have done if Absolon had been a Loyal and Obedient Son. Oh! where he now only wished he had died once, he would then have cryed out and wished he had died twice for him.

(7.) All Heirs are either Lineal or Collateral, unless there∣fore one of these Kinds are intended, the Statute can intend

none at all;* 1.6 now that Collateral Heirs are not intended, is ex∣presly delivered by Coke, 3 Part. fol. 9. where he saith, if the Heir apparent to the Crown be a Collateral Heir apparent, he is not within this Statute as he saith, Roger Mortimer Earl of March, was Anno Dom. 1487. (11. R.) Proclaimed Heir appa∣rent Anno 39. H. 6. Richard Duke of York was likewise Pro∣claimed Heir apparent, so was John de la Poole, Earl of Lin∣coln, by R. 3. and Henry Marquess of Exceter by King Henry the Eight, but none of these or of the like are within this Sta∣tute, if only Lineal Heirs are within the Statute, there can be none but the eldest Son can be Heir intended, the eldest being expresly named Heir, and none besides named at all.

That to compass the Exile or Disinheriting of the King's eldest Son, is High Treason.

* 1.7First, Because the Exiling or Disinheriting the King's eldest Son indangers the King himself. Secondly, Because to compass the Exile, compasseth the Death of the eldest Son; by depriv∣ing him of the King's Protection, and exposing him to Poison or Assassination of his Enemies, and to compass to Disinherit him, is a manifest design to destroy him, without which his Inheritance cannot be taken from him; as Matth. 21.38. They said amongst themselves, this is the Heir, come let us kill him, and let us seize on his inheritance, And they caught him, and cast him out of the Vinyard, and slew him.

Notes

• * 1.1

  Eldest Son not Heir.
• * 1.2

  A multitude of kinds of Heirs.
• * 1.3

  Eldest Son the only Heir in∣tended.
• * 1.4

  Haeres Sangui∣nis, & non Haereditatis intended.
• * 1.5

  Haeres viventis intended Hae∣res Sanguinis and not Haeres Haereditatis.
• * 1.6

  Collateral Heirs of the Crown not within this Statute.
• * 1.7

  To Exile or Disinherit the King's eldest Son, High Treason.