Robert, either by negligence and want of foresight, or by the perpetuall malice of his destinie, or happily not without his fathers contriuance, was absent in Germanie, whilest his yonger brother William did thus possesse himselfe, both of the Kingdome of his father, and of his treasure. Otherwise he wanted neither pretence, nor purpose, nor fauour of friends to haue empeached his brothers proceedings. For it was then doubted by many, and since hath bene by many debated; whether in any case, vpon any cause or consideration whatsoeuer, a King hath power to disinherite his eldest sonne, and to appoint another to succeed in his estate.
That a King may aduance any of his sonnes to bee his successour, without respect of prioritie in birth, there seemeth to want neither warrant of example, nor weight of authoritie. Dauid[29] a man greatly prooued and approoued by God, did preferre Solomon[30] to succeede him, before his eldest sonne Adonia. And in like sort Rehoboam the sonne of Solomon, appointed the yongest of all his sonnes to succeed him in the Kingdome.[31] So some Lawyers affirme, That a King may determine in his life, which of his sonnes shall reigne after him.
But this must be vnderstood, either when a State is newly raised to the title of a kingdome, or else when by Conquest, Vsurpation, or some other meanes of change, the gouernment thereof is newly transferred from one stemme to another: For then because there is no certaine Law or Custome of succession in force, the right seemeth to depend vpon the disposition of the Prince. And yet euen in this case, the eldest or neerest cannot be excluded without iust cause. For so when Iacob[32] depriued his eldest sonne Reuben of his priuiledge of birth, he expressed the cause, For that he had defiled his fathers bed; which fact of his Hierome applieth to the case in question. So when Ptolemie[33] the first King of Egypt commended the State to his yongest sonne, he yeelded a reason for that which he did. So Henrie the fourth Emperour, crowned Henrie his yonger sonne King, reiecting Conrade his eldest sonne, for that hee had borne armes against him, and ioyned in league with his open enemies.
But when by expresse Lawe or long grounded Custome the Succession of a State is established to the eldest sonne, the best approoued interpreters of the Canon and Ciuill law doe conclude,[34] that the father hath no power to inuert or peruert that course of order. For parents may debarre their children of that which proceedeth from themselues, of that which dependeth vpon their appointment; but of that which is due by nature,[35] by the immutable law of the State, the parents can haue no power to dispose. When by a fundamentall Lawe or Custome of State, Succession is annexed to the dignity of a Crowne, according to prioritie in birth, it followeth, that so soone as the first borne commeth into light, the right of succession is fixed in him;[36] not in hope onely, but also in habite; whereof neither the father nor any other can dispossesse him.
And therefore when Prusias[37] intended to depriue his eldest sonne Nicomedes of his prerogatiue of birth, and to preferre his yonger sonnes, which he had by another wife, in succession before him, he could not assure it by any meanes, but by determining the death of Nicomedes; which Nicomedes to preuent, dispoiled his father both of kingdom and of life. Ptolemie the first King of Egypt[38] of that name, who after the death of Alexander the great possessed himselfe of Egypt, & part of Arabia, and of Affrick, left his kingdom to the yōgest of his sons: but afterward when Ptolemie, surnamed Phiscon,[39] vpon the importunity of his wife Cleopatra, attempted the like, the kingdome being then setled in succession, the people opposed, & reuersed his order after his death. So Pepine[40] after hee had made seisure of the kingdome of France, & ordered all things which he thought necessary for the suerty therof, disposed the succession therein by his Testament; leauing the Realme of Noion to his sonne Charles, and to Carloman his other sonne the Realme of Soissons. The like was done by some other of the first Kings of his race. But since that time the custome hath been strongly stablished, that the kingdome passeth entirely to the eldest sonne, and possessions are assigned to the rest vnder the name of Appanage. And therefore the French[41] writers affirme, that the eldest sonne of France cannot be depriued of succession, vpon any cause of ingratitude against his parents; and that if the King should institute his eldest sonne,[42] yet cannot hee take the kingdome by force of his fathers guift, but onely by the immutable law of the Realme. Yea, Girard writeth of Charles the simple, that hee was King of France[43] before hee was borne. And in this regard the Glossographer[44] vpon the Decrees noteth, that the sonne of a King may bee called King during the life of his father, as wanting nothing but administration. And the same also doth Seruius note out of Virgil, where hee saith of Ascanius: regémq; requirunt, his father Aeneas being then aliue.
Now then, for that the right of Succession to the Crowne of England was not at that time so surely setled as it hath been since; but had waued in long vncertainetie: First, in the Heptarchie of the Saxons and English, afterward betweene the English and the Danes, and was then newly possessed by the Normane, and that chiefly by the sword: For that also Robert the Kings eldest sonne gaue iust cause of offence, by bearing armes against his father; it may seeme that the King might lawfully direct the succession to his second sonne. And yet, because as Herodotus[45] saith, It is a generall custome amongst all men, that the first in birth is next in succession; because as Baldus[46] affirmeth, Semper fuit, & semper erit, &c. Alwayes it hath been, and alwayes it shall bee, that the first borne succeedeth in a kingdome; because as S. Hierome[47] writeth, A kingdome is due vnto the first borne; and as S. Chrysostome[48] saith, The first borne is to bee esteemed more honourable then the rest; whereupon diuers Lawyers obserue, that the word Senior[49] is often times taken for a Lord. Lastly, because this precedencie both in honour, and in right seemeth to be the Law of all nations, deriued from the Law of Nature, and expresly either instituted or approoued by the voice of God: First, where he said to Cain[50] of his yonger brother Abel; His desires shall be subiect to thee, and thou shalt haue dominion ouer him: Secondly,[51] where he forbiddeth the father to disinherite the first sonne of his double portion, because by right of birth it is due vnto him: Lastly, where hee maketh choice of the first borne to be sanctified and consecrated to himselfe;[52] it hath almost neuer happened that this order hath been broken, that the neerest haue bene excluded from Succession in State, but it hath been followed with tragicall euents.
Yea, albeit the eldest sonne be vnfit to beare rule, albeit hee be vnable to gouerne either others or himselfe; as if hee be in a high degree furious, or foolish, or otherwise defectiue in body or in minde, (vnlesse he degenerate from humane condition) yet can he not therefore be excluded from succession:[53] because it is due vnto him, not in respect of abilitie, but by reason of his prioritie of birth. As for the kingdom, it shall better be preserued by the gouernment of a Protector (as in diuers like causes it is both vsual and fit) then by receiuing another Prince:[54] as well for other respects, as for that by cutting off continuance in the Royall descent, by interrupting the setled order of gouernment, by making a breach in so high a point of State, opportunitie is opened both for domesticall disturbances, and for inuasions from abroad: whereupon greater inconueniences do vsually ensue, then did euer fall by insufficiencie of a Prince. For if these pretenses may be allowed for good, what aspiring Subiect, what encroaching enemy, finding themselues furnished with meanes, will not be ready to rise into ambitious hopes? Gabriel the yonger brother of the house of Saluse, kept his eldest brother in prison, vsurped his estate, giuing foorth to the people that he was mad. And seldome hath any vsurpation happened, but vpon pretence of insufficiencie in gouernment. Assuredly, if these principall points of Principalitie be not punctually obserued, the ioynts of a State are loosened, the foundation is shaken, the gates are opened for all disorders, to rise vp, to rush in, to prosper, to preuaile.
Hereupon Medon[55] the eldest sonne of Codrus, albeit he was lame and otherwise defectiue, was by sentence of the Oracle of Apollo preferred to succeed his father in the kingdome of Athens, before Neleus his yonger brother. So when Alexandrides[56] King of Sparta left two sonnes, Cleomenes the eldest, distracted in wits, and Doricus the yongest, both able and enclined to all actions of honour; the Spartans acknowledged Cleomenes for their King. Agisilaus the famous King of Sparta was also lame, as Plutarch[57] and Prob. Æmilius do report; Orosius saith, that the Spartans did rather choose to haue their King halt, then their Kingdome. And therefore when Lisander[58] moued them to decree, that the worthiest and not alwayes the next in blood of the line of Hercules should reigne, he found no man to second his aduise. Aristobulus[59] and Hircanus after a long and cruel contention for the Kingdome of Iewrie, committed their controuersie to the arbitrement of Pompey: Hircanus alledged, that hee was the eldest brother; Aristobulus obiected, that Hircanus was insufficient to gouerne: but Pompey gaue iudgement for Hircanus. The like iudgement did Annibal[60] giue for the kingdome of that Countrey which is now called Sauoy; restoring Brancus[61] to his State, from which he had bene expelled by his yonger brother. And although Phirrus[62] did appoint that sonne to succeed, whose sword had the best edge; yet was the eldest acknowledged, who bare the least reputation for valour.
Ladislaus[63] King of Hungarie left by his brother Geysa two Nephewes; Colomannus the eldest, who was lame, bunch-backed, crab-faced, blunt-sighted, bleare-eyed, a dwarfe, a stammerer, and (which is more) a Priest; and Almus the yongest, a man of comely presence, and furnished with many princely vertues: In regard of these natural prerogatiues Ladislaus appointed Almus to succeed; but in regard of the prerogatiue in blood, the Hungarians receiued Colomānus for their King. Barbatius[64] writeth, that Galeace Duke of Milane did oft times expresse his griefe, for that he could not preferre in successiō Philip Maria his yongest sonne, before Iohn his eldest; for that he seemed the most sufficient to vndertake the manage of the State. Girard[65] affirmeth that it hath bene the custome of the French, to honour their Kings whatsoeuer they are; whether wise or foolish, valiant or weake; esteeming the name of King to be sacred by whomsoeuer it be borne. And therefore they obeyed not only Charles the simple, but Charles the sixt also; who reigned many yeres in plaine distraction of his mind. It was an ancient custome in Scotland, that the most sufficient of the blood of Fergusus[66] was receiued for King; but such warres, murthers, and other mischiefes did thereupon ensue, that a law was made vnder Kenet the third, and afterwards confirmed by Millcolumbus, that the nighest in blood should alwayes succeede. And accordingly the Scots refused not for their King Iohn the eldest sonne of Robert the second, albeit he was borne out of marriage, and did halt, and was both in wit and in courage dull.