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.

[Object. 8] Obj. 8. The Son of a King, born after he is King, is to be prefer'd in Succession before the Son of a King born, while he is Prince.

And of this there are many Examples, as Henry the First, being the youngest Son of William the Conqueror,* 1.1 standing in Competition for the Crown of England against Robert Duke of Normandy, his elder Brother, made this one of his Objections, That Robert was born when his Father was but a Duke, but Henry was born when his Father was a King; and therefore obtained the Kingdom against Robert his eldest Brother. And it is recited by Grot. de Jur. Bel. & Pac. p. 171. That the like passed in Persia, between Cyrus and Arsica; in Judea, between

Antipater the Son of Herod the Great, and his Brother; in Hungary, when Geissa obtained the Kingdom; in Germany, between Otto the First, and Henry, though not without Arms; and likewise the same Question was between Xerxes, and his Brother Atabarzanes, and between Artaxerxes Mnemon, and Cyrus, the Sons of Darius, and Parisatis Artaxerxes being the elder, but born during the Private fortune of Darius, and the like happened between Bajazet, and Zemez, contending for the Turkish Empire, and many others.

Answ. These were put to the Tryal of Battel, and for the greatest part the eldest Son had the Success; but if it had been otherwise, the Event of War is no Rule of Justice; and if it had been without War, yet where there is a standing Act of Parliament Judicandum est Legibus non Examplis. And this Act of Parliament was made to prevent the present, and all other. Accidents which might happen to disturb the Peace of Succession of the Kingdom, and raise Civil Wars, which it could not do without all other Sons and Heirs to the eldest Son, and there being no other Son mentioned in the Letter of the Statute but the eldest, and not a word of Distinction whe∣ther born before or after the Father's obtaining the Kingdom; Ʋbi lex non distinguit ibi nec nos distinguere debemus; for then the same mischiefs would insue beforementioned of extending a Statute of Treason by Equity, which leaves Treason arbitra∣ry to every Judge who will assume to declare it beyond the Letter, and to insert as many kinds of Sons and Heirs as he pleased, which would make the Law, and all the Care and Wis∣dom of it in ascertaining the Son Heir to be of no Effect, and leave the Kingdom in a dangerous Condition, that every Prince Married in his Father's life-time, and having then some Chil∣dren, and after his Father's Death others, might occasion a Civil War, who should succeed to the Crown when he died.

Notes

• * 1.1

  Born when a Prince, and born when a King.