the blood royal in the entire male line, whereas the duke of Clarence left only one daughter, Philippa; from which female branch, by a marriage with Edmond Mortimer earl of March, the house of York descended; the other, by reviving an exploded rumour, first propagated by John of Gaunt, that Edmond earl of Lancaster (to whom Henry's mother was heiress) was in reality the elder brother of king Edward I.; though his parents, on account of his personal deformity, had imposed him on the world for the younger; *and therefore Henry [ *239] would be entitled to the crown, either as successor to Richard II., in case the entire male line was allowed a preference to the female, or, even prior to that unfortunate prince, if the crown could descend through a female, while an entire male line was existing.

However, as in Edward III.'s time we find the parliament approving and affirming the law of the crown, as before stated, so in the reign of Henry IV. they actually exerted their right of new-settling the succession to the crown. And this was done by the statute 7 Hen. 4, c. 2, whereby it is enacted, "that the inheritance of the crown and realms of England and France, and all other the king's dominions, shall be set and remain(t) in the presence of our sovereign lord the king, and in the heirs of his body issuing;" and prince Henry is declared heir apparent to the crown, to hold to him and the heirs of his body issuing, with remainder to lord Thomas, lord John, and lord Humphry, the king's sons, and the heirs of their bodies respectively: which is indeed nothing more than the law would have done before, provided Henry IV. had been a rightful king. It however serves to show that it was then generally understood, that the king and parliament had a right to new-model and regulate the succession to the crown: and we may also observe, with what caution and delicacy the parliament then avoided declaring any sentiment of Henry's original title. However, sir Edward Coke more than once expressly declares (u), that at the time of passing this act the right of the crown was in the descent from Philippa, daughter and heiress of Lionel duke of Clarence.

Nevertheless the crown descended regularly from Henry IV. to his son and grandson Henry V. and Henry VI.; in the latter of whose reigns the house of York asserted their dormant title; and, after embruing the kingdom in blood

estates and commons “to depose the said king from all kingly dignity, majesty, and honour, on the behalf and in the name and by the authority of all the said states, as in like cases from the ancient custom of the said kingdom had been observed." And forth. with the said commissioners, sitting on a tribunal before the royal chair of state, did "on the behalf and in the name, and by the authority aforesaid, pass sentence of deposi. tion upon the king, forbidding all and singular the lords, archbishops, bishops, and prelates, dukes, marquisses, earls, barons, knights, vassals, and valvasors, and other subjects and liege people, and that thenceforth none of them should any way obey or regard the said Richard as king or lord of the said kingdom and dominion." Commissioners were then appointed to resign fealty to king Richard. And then presently, "as, soon as it appeared that the crown of England was vacant, Henry rising up from his place and humbly fortifying himself with

the sign of the cross on his forehead and on
his breast, having also first called upon the
name of Christ, did claim the said kingdom
so vacant as aforesaid, with its crown and all
its members and appurtenances." After
which claim and challenge, 'the lords
spiritual and temporal and all the states
there present, with the whole people, did
unanimously consent that the said duke
should reign over them." And in conclu-
sion, the new king showed to the states of
the kingdom the signet of the late king,
'delivered to him as a token of his will that
he should succeed him as aforesaid." It was
not until after these long and formal pro-
ceedings that the title of the new king was
considered complete, and his coronation took
place; after which the commons chose their
speaker and the business of parliament pro-
ceeded in ordinary course.
(t) Soit mye et demoerge.
(u) 4 Inst. 37, 205.

*and confusion for seven years together, at last established it in the person of Edward IV. At his accession to the throne, after a breach [*240]

Henry V. Henry VI.

Edward IV.

of the succession that continued for three descents, and above threescore years, the distinction of a king de jure and a king de facto began to be first taken; in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honours conferred and all acts done, by those who were now called the usurpers, not tending to the disherison of the rightful heir. In statute 1 Edw. 4, c. 1, the three Henrys are styled, "late kings of England successively in deed, and not of right." And, in charters of king Edward, where he has occasion to speak of any of the line of Lancaster, he calls them "nuper de facto, et non de jure, reges Angliæ."

Edward V.

upon

Richard III.

Edward IV. left two sons and a daughter; the eldest of which sons, king Edward V., having been proclaimed king, was after two months deposed by Richard his unnatural uncle, who immediately usurped the royal dignity; having previously insinuated to the populace a suspicion of bastardy in the children of Edward IV., to make a show of some hereditary title. Afterwards he is generally believed to have murdered his two nephews, whose death the right to the crown devolved upon their sister Elizabeth. The tyrannical reign of king Richard III. gave occasion to Henry earl of Richmond to assert his title to the crown. A title the most remote and unaccountable that was ever set up, and which nothing could have given success to, but the universal detestation of the then usurper Richard. For, besides that Henry claimed under a descent from John of Gaunt, whose title was now exploded, the claim (such as it was) was through John earl of Somerset, a bastard son, begotten by John of Gaunt upon Catherine Swinford. It is true, that by an act of parliament, 20 Ric. 2, this son was, with others, legitimated and made inheritable to all lands, offices, and dignities, as if he had been born in *wedlock: but still with an [*241] express reservation of the crown, "exceptá dignitate regali "(x). Notwithstanding all this, immediately after the battle of Bosworth field, Henry earl of Richmond assumed the regal dignity; the right to the crown then being, as sir Edward Coke expressly declares (y), in Elizabeth, eldest daughter of Edward IV.: and his possession was established by parliament, holden the first year of his reign. In the act for which purpose, the parliament seems to have copied the caution of their predecessors in the reign of Henry IV.; and therefore (as lord Bacon, the historian of this reign, observes(z)) carefully avoided any recognition of Henry VII.'s right, which indeed was none at all; and the king would not have it by way of new law or ordinance, whereby a right might seem to be created and conferred upon him; and therefore a middle course was rather chosen by way (as the noble historian expresses it) of "establishment," and that under covert and indifferent words, "that the inheritance of the crown should rest, remain, and abide in" king Henry VII. and the heirs of his body; thereby providing for the future, and at the same time acknowledging his present possession; but not determining either way, whether that possession was de jure or de facto merely. However, he soon after married Elizabeth of York, the undoubted heiress of the Conqueror,

Henry VII.

(x) 4 Inst. 36.

(y) Ibid. 37.

(2) Bac. Works, ed. 1825, iii., 117.

and thereby gained (as sir Edward Coke declares (a)) by much his best title to the crown. Whereupon the act made in his favour was so much disregarded, that it never was printed in our statute books.

Henry VIII.

Henry VIII., the issue of this marriage, succeeded to the crown by clear indisputable hereditary right, and transmitted it to his three children in successive order. But in his reign we, at several times, find the parliament busy in regulating the succession to the kingdom. And, *first, by statute 25 Henry 8, c. 22, which recites the mischiefs which [ *242] have and may ensue by disputed titles, because no perfect and substantial provision hath been made by law concerning the succession; and then enacts, that the crown shall be entailed to his majesty, and the sons or heirs male of his body; and in default of such sons to the lady Elizabeth (who is declared to be the king's eldest issue female, in exclusion of the lady Mary, on account of her supposed illegitimacy by the divorce of her mother queen Catherine) and to the lady Elizabeth's heirs of her body; and so on from issue female to issue female, and the heirs of their bodies, by course of inheritance according to their ages, as the crown of England hath been accustomed and ought to go," in cases where there be heirs female to the same: and, in default of issue female, then to the king's right heirs for ever. This single statute is an ample proof of all the four positions we at first set out with.

66

But upon the king's divorce from Ann Boleyn, this statute was, with regard to the settlement of the crown, repealed by statute 28 Hen. 8, c. 7, wherein the lady Elizabeth is also, as well as the lady Mary, bastardized, and the crown settled on the king's children by queen Jane Seymour, and his future wives; and, in defect of such children, then with this remarkable remainder, to such persons as the king by letters patent, or last will and testament, should limit and appoint the same. A vast power; but, notwithstanding, as it was regularly vested in him by the supreme legislative authority, it was therefore indisputably valid. But this power was never carried into execution; for by statute 35 Hen. 8, c. 1, the king's two daughters are legitimated again, and the crown is limited to prince Edward by name, after that to the lady Mary, and then to the lady Elizabeth, and the heirs of their respective bodies; which succession took effect accordingly, being indeed no other than the usual course of the law, with regard to the descent of the crown.

[ *243]

Mary.

*But lest there should remain any doubt in the minds of the people, through this jumble of acts for limiting the succession, by statute 1

Mar. sess. 3, c. 1, queen Mary's hereditary right to the throne is acknowledged and recognized in these words: the crown of this realm "is most lawfully, justly, and rightfully descended and come unto the queen's highness that now is, being the very, true, and undoubted heir and inheritrix thereof." And again, upon the queen's marriage with Philip of Spain, in the statute which settles the preliminaries of that match(b), the hereditary right to the crown is thus asserted and declared: as touching the right of the queen's inheritance in the realm and dominions of England, the children, whether male or female, "shall succeed in them, according to the laws, statutes, and customs of the same." Which determination of the parliament, that the succession shall continue in the usual course, seems tacitly to imply a power of new-modelling and altering it, in case the legislature had thought proper.

(a) 4 Inst. 37.

(b) 1 Mar. sess. 3, c. 2.

On queen Elizabeth's accession, her right is recognized in still stronger terms than her sister's; the parliament acknowledging(c), that the queen's highness

Elizabeth.

❝is, and in very deed and of most mere right ought to be, by the laws of God, and the laws and statutes of this realm, our most rightful and lawful sovereign liege lady and queen:" and that her highness "is rightly, lineally, and lawfully descended and come of the blood royal of this realm of England; in and to whose princely person, and to the heirs of her body lawfully to be begotten, after her," the imperial crown and dignity of this realm doth belong. And in the same reign, by statute 13 Eliz. c. 1, we find the right of parliament to direct the succession of the crown asserted in the most explicit words. "If any person shall in any wise hold, and affirm, or [ *244] *maintain that the common laws of this realm, not altered by parliament, ought not to direct the right of the crown of England;" or that the queen's majesty, with and by the authority of parliament," is not able to make laws and statutes of sufficient force and validity, to limit and bind the crown of this realm, and the descent, limitation, inheritance, and government thereof; "such person, so holding, affirming, or maintaining, during the life of the queen, shall be guilty of high treason; and after her decease shall forfeit his goods and chattels.

James I.

On the death of queen Elizabeth, without issue, the line of Henry VIII. became extinct. It therefore became necessary to recur to the other issue of Henry VII. by Elizabeth of York his queen; whose eldest daughter Margaret having married James IV. king of Scotland, king James the Sixth of Scotland, and of England the First, was the lineal descendant from that alliance. So that in his person, as clearly as in Henry VIII., centered all the claims of different competitors, from the Conquest downwards, he being indisputably the lineal heir of the Conqueror. And, what is still more remarkable, in his person also centered the right of the Saxon monarchs which had been suspended from the Conquest till his accession. For, as was formerly observed, Margaret, the sister of Edgar Atheling, the daughter of Edward the outlaw, and grand-daughter of king Edmund Ironside, was the person in whom the hereditary right of the Saxon kings, supposing it not abolished by the Conquest, resided. She married Malcolm king of Scotland; and Henry II., by a descent from Matilda their daughter, is generally called the restorer of the Saxon line. But it must be remembered, that Malcolm by his Saxon queen had sons as well as daughters: and that the royal family of Scotland from that time downwards were the offspring of Malcolm and Margaret. Of this royal family king James I. was the direct lineal heir, and therefore united in his person every possible claim by hereditary right to *the [* 245] English as well as Scottish throne, being the heir of both Egbert and William the Conqueror.

And it is no wonder that a prince of greater learning than wisdom, who could deduce an hereditary title for more than eight hundred years, should easily be taught by the flatterers of the times, to believe there was something divine in this right, and that the finger of Providence was visible in its preservation. Whereas, though a wise institution, it was clearly a human institution; and the right inherent in him no natural, but a positive right. And in this and no other light was it taken by the English parliament; who by statute 1

(c) Stat. 1 Eliz. c. 3.

Charles I.

Jac. 1, c. 1, did "recognise and acknowledge," that immediately upon the dissolution and decease of Elizabeth late queen of England, the imperial crown thereof "did by inherent birthright, and lawful and undoubted succession, descend and come to" his most excellent majesty, "as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm." Not a word here of any right immediately derived from heaven: which, if it existed any where, must be sought for among the aborigines of the island, the ancient Britons; among whose princes indeed some have gone to seek it for him(d). But, wild and absurd as the doctrine of divine right most undoubtedly is, it is scarcely less astonishing, that when so many human hereditary rights had centered in this king, his son and heir king Charles I. should be told by the judges who pronounced his sentence, that he was an elective prince; elected by his people, and therefore accountable to them, in his own proper person, for his conduct(e). Very different from this was the language *afterwards used when a solemn parliamentary convention of [ *246] the estates restored the right heir of the crown. For in the proclamation for that purpose, which was drawn up and attended by both houses(ƒ), they declared, that they did, according to their duty and allegiance, “heartily, joyfully, and unanimously acknowledge and proclaim, that immediately upon the decease of our late sovereign lord king Charles," the imperial crown of these realms "did by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent majesty Charles II., as being lineally, justly, and lawfully, next heir of the blood royal of this realm:" and thereunto they did most humbly and faithfully submit and oblige themselves, their heirs, and posterity for ever.

Charles II.

tary.

Thus it clearly appears, from the highest authority this nation is acquainted with, that the crown of England has ever been an hereditary crown; though Crown is heredi- subject to limitations by parliament. This right of altering and limiting the succession; a right which, we have seen, was exercised and asserted in the reigns of Henry IV., Henry VII., Henry VIII., queen Mary, and queen Elizabeth, has also been asserted and exercised on the following occasions(g):—

Instances in which parliament has altered the succession.

First, in point of time, when the famous bill of exclusion was introduced, which raised such a ferment in the latter end of the reign of king Charles II. It is well known that the purport of this bill was to set aside the king's brother and presumptive heir, the duke of York, from the succession, on the score of his being a papist; *that it [ *247] passed the house of commons, but was rejected by the lords; the king having also declared beforehand, that he never would be brought to consent to it. And from this transaction we may collect two things: 1. That the crown was universally acknowledged to be hereditary; and the inheritance indefeasible

(d) Elizabeth of York, the mother of queen Margaret of Scotland, was heiress of the house of Mortimer. And Mr. Carte observes that the house of Mortimer, in virtue of its descent from Gladys only sister to Lewellin ap Jorwerth the Great, had the true right to the principality of Wales. Hist. Eng. iii. 705.

(e) Trial of Charles I., 4 St. Tr. 994.
(f) Com. Journ. 8 May, 1660.
(7) "Nothing is plainer than that the

people have a right to the laws and the constitution. This right the nation hath asserted and recovered out of the hands of those who had dispossessed them of it at several times. There are of this two famous instances in the knowledge of the present age: I mean that of the Restoration and that of the Revolution; in both these great events were the rega! power and the rights of the people recovered." Per Sir Jos. Jekyll, 15 St. Tr. 97.