obert Duke of Normandie, the eldest brother to King William the second, was in Palestina when King William was slaine; being one of the principal leaders in that Heroical warre, which diuers Christian Princes of Europe set vp, to recouer Hierusalem out of the power and possession of the Saracens. In this expedition hee purchased so honourable reputation, for skill, industrie, and valour of hand, that when the Christian forces had surprised Hierusalem, and diuers other Cities in those quarters, the kingdome thereof was offered vnto him. But the Duke, whether he coniectured the difficulties of that warre, for that the enemie was both at hand, and vnder one command, but the Armie of the Christians was to be supplied from farre, and also consisted of many Confederats; In which case albeit sometimes men performe well at the first, yet in short time inconueniences encreasing, they alwayes either dissipate and dissolue, or else fall into confusion. Or whether he heard of the death of his brother, to whose Kingdome he pretended right; as well by prerogatiue of blood, as by expresse couenant betweene them confirmed by oath; refused the offer, which was the last period of all his honour, and in short time after tooke his iourney from Palestine towards France.
But Henry the Kings yonger brother, apprehending the opportunitie of the Dukes absence, did foorthwith seaze vpon the treasure of the King, and thereby also vpon his State, and so was crowned at Westminster vpon the second day of August, in the yeere 1100. by Maurice Bishop of London; because Anselme Archb. of Canterburie was then in exile. This enterprise was much aduanced by the authoritie and industrie of Henry Newborow Earle of Warwicke, who appeased all opposition that was made against it. The people also, albeit they had bene managed so tame, as easily to yeeld their backe to the first sitter; yet to Henry they expressed a prone inclination, for that hee was borne in England, at a place called Selby in Lincolneshire, since his father was crowned King: whereas Duke Robert his brother was borne before his father attained the kingdome.
This serued Prince Henry not onely to knit vnto him the affections of the people, but also to forme a title to the Crowne. For it hath bin a question often debated, both by Arguments and by Armes, and by both trials diuersly decided; when a king hath two sonnes, one borne before he was King, and the other after, whether of them hath right to succeed?
Herodotus writeth, That when Darius[77] the sonne of Hysdaspis King of Persia made preparation for warre against the Græcians and Egyptians, he first went about to settle his succession: because by the Lawes of Persia, the King might not enter into enterprise of Armes, before he had declared his successour. Now Darius had three children before he was King, by his first wife the daughter of Gobris. After he was King he had other foure, by Atossa the daughter of Cyrus. Artabazanes, or (as other terme him) Arthemenes was eldest of the first sort; Xerxes of the second. Artabazanes alleaged that he was the eldest of all the Kings sonnes, and that it was a custome among all nations, That in principalities the eldest should succeed. Xerxes alleaged, that he was begotten of Atossa the daughter of Cyrus, by whose valour the Persians had obteined their Empire. Before Darius had giuen sentence, Demaratus the sonne of Aristo, cast out of his kingdome of Sparta and then liuing an exile in Persia, came vnto Xerxes, and aduised him further to alleage, that he was the eldest sonne of Darius after hee was King; And that it was the custome of Sparta, that if a man had a sonne in priuate state, and afterwards another when he was King, this last sonne should succeed in his kingdome. Vpon this ground Artabazanes was reiected, and Darius gaue iudgement for Xerxes. This history is likewise reported by Iustine,[78] and touched also by Plutarch: although they disagree in names, and some other points of circumstance.
So when Herode King of Iudea appointed Antipater his eldest sonne, but borne to him in priuate state, to succeed in his Royaltie, and excluded Alexander and Aristobulus his yonger sonnes, whom he had begot of Mariamne, after he had obteined his kingdome; Iosephus[79] plainly reprehendeth the fact, and condemneth the iudgement of Herode for partiall and vniust. So Lewes borne after his father was Duke of Milane,[80] was preferred in succession before his brother Galeace, who was borne before. And so when Otho the first was elected Emperour, his yonger brother Henry pretended against him; for that Otho[81] was borne before their father was Emperour, and Henry after. In which quarrell Henry was aided by Euerharde Earle Palatine, and Giselbert Duke of Lorreine, with diuers other Princes of Almaine: But when the cause came to be canuased by the sword, the victorie adiudged the Empire to Otho.
Furthermore, this right of title seemeth to be confirmed by many grounds of the Imperial Law. As[82] that sonnes borne after their father is aduanced to a dignitie, doe hold certaine priuiledges, which sonnes formerly borne doe not enioy. That[83] those children which are borne after a person is freed from any infamous or seruile condition, doe participate onely of that libertie, and not they who were borne before. That if a man taketh a wife in the Prouince wherein he holdeth office, the marriage is good, if after the time his Office shall expire, they continue in the same consent[84]: but so that the children borne before, shall not be thereby helde for legitimate. That[85] those children which are borne after their father is honoured with the title of Clarissimus, do enioy the rights due vnto that degree of dignitie, and not they who were borne before. That as a sonne borne after the father hath lost his kingdome, is not esteemed for the sonne of a King[86]: so neither hee that is borne before the father be a King[87].
And although these and diuers like passages of Law commonly alleadged, doe seeme little or nothing pertinent to this purpose; for that they concern not any vniuersall right of inheritance, which is due vnto children after the death of their parents; but certaine particular priuiledges and rights attributed vnto them whilest their parents were in life, which for the most part are arbitrarie and mutable, as depending vpon the pleasure of the Prince: Yet many Interpreters of both Lawes haue bene drawen by these reasons to subscribe their iudgements for this kind of Title: and namely Pet. Cynus, Baldus, Albericus[88], Iac. Rebuffus, & Luc. Penna[89]. Also Panormitane[90], Collect.[91], Dynus[92], Franc. Cremen.[93], Marti. Laud.[94], Card. Alexander[95], Phil. Decius[96], Alceat[97], Bon. Curti.[98]. And lastly, Anton. Corsetta[99], deliuereth it for a common receiued and followed opinion. Which must be vnderstood with this distinction, if the kingdome be either newly erected, or else newly acquired by Conquest, Election, or any such title, other then by hereditarie succession according to proximitie in blood. For if the kingdome bee once seded in a certaine course of succession, because the dignitie is inherent in the blood of that stocke; because it is not taken from the father but from the ancestors; because it is not taken onely from the ancestors, but from the fundamentall law of the State; the eldest sonne shall indistinctly succeede, although hee were borne before his father was King[100]. And therefore after the kingdome of Persia had been caried by succession in some descents, when Darius the King had foure sonnes, Artaxerxes the eldest, Cyrus the next, and two others; Parysates the wife of Darius hauing a desire that Cyrus should succeede in the kingdome, alleaged in his behalfe the same reason wherewith Xerxes had preuailed before: to wit, that shee had brought foorth Artaxerxes to Darius, when hee was in priuate state; but Cyrus was borne to him when he was a King. Yet Plutarch[101] affirmeth, that the reason which she vsed was nothing probable, and that Artaxerxes the eldest sonne was appointed to be King. And so Blondus[102] and Ritius doe report, that Bela the King of Hungarie being dead, Geysa succeeded, although borne vnto him before he was a King.
Others inferiour in number, but not in weight of Iudgement do affirme, that whether a Kingdome be setled in succession, or whether by any other title newly attained, the right to succeed by all true grounds of law pertaineth to the eldest sonne; albeit borne before his fathers aduancement to the kingdome, in case there be no expresse law of the state to the contrary. The principall reason is, because this is the nature of all successions by way of inheritance: For, if a father purchaseth lands, leases, cattell, or other goods, the inheritance shall bee transmitted to his eldest sonne, although borne before the purchase. Likewise if a father be aduanced to any title of honour, as Duke, Earle, Marquesse, &c. it was neuer, I will not say denied, but once doubted, but that the eldest sonne should succeede in the same, albeit he was borne before the aduancement. And therefore seeing this is the generall rule of all other inheritable successions, and there is no reason of singularitie in a kingdome; it followeth, that in like case the succession of a kingdome should also descend to the eldest sonne, although borne before the kingdome were atchieued.
Againe, the sonne who was borne before his father was a King, had once a right to succeede in the kingdome; for if another sonne had not afterwards beene borne, without all question hee should haue succeeded. But a right which a man by his owne person hath acquired; albeit in some cases it may be diminished, yet can it not bee altogether extinguished by any externall or casuall euent, which hath no dependencie vpon himselfe. And so the right which the eldest sonne hath to his fathers inheritance, may bee diminished by the birth of other children, in regard of those goods which are to bee distributed in parts among them; but it cannot possibly be extinguished. Neither can it bee diminished in those things which are not of nature to bee either valued or diuided (of which sort a Kingdome is the chiefe) but doe passe entirely vnto one. For the right of blood which onely is regarded in lawfull successions, is acquired and held from the natiuitie of the childe, and doth not begin at the fathers death; at which time the inheritance doth fall.
Lastly, if it be true in sonnes, that he shal succeede in a kingdome who is first borne, after the father is exalted to bee a King; then is it true also in other remote degrees of consanguinitie. And hereby it should often happen, that when a King dieth without issue of his body, they who are not onely inferiour in age, but more remote in degree, should exclude both the elder and the neerer in blood; because perhaps borne after the kingdome was attained: which is against all lawes of lawfull succession.