tion of a new estate of inheritance, and transmitted or endeavoured to transmit it to their own posterity, by a kind of hereditary right of usurpation.

King Egbert, about the year 800, found himself in possession of the throne of the West Saxons, by a long and undisturbed descent from his ancestors of above three hundred years. How his ancestors acquired their title, whether by force, by fraud, by contract, or by election, it matters not much to inquire; and is indeed a point of such high antiquity, as must render all inquiries at best but plausible guesses. His right must be supposed indisputably good, because we know no better. The other kingdoms of the heptarchy he acquired, some by consent, but most by a voluntary submission. And it is an established maxim in civil polity, and the law of nations, that when one country is united to another in such a manner, as that one keeps its government and states, and the other loses them, the latter entirely assimilates with or is melted down in the former, and must adopt its laws and customs. (c) And in pursuance of this maxim there hath ever been, since the union of the heptarchy in King Egbert, a *general acquiescence under the hereditary monarchy of the West Saxons, through all the united kingdoms.

[*198 ] From Egbert to the death of Edmund Ironside, a period of above two hundred years, the crown descended regularly, through a succession of fifteen princes, without any deviation or interruption: save only that the sons of King Ethelwolf succeeded to each other in the kingdom, without regard to the children of the elder branches, according to the rule of succession prescribed by their father, and confirmed by the wittena-gemote, in the heat of the Danish invasions; and also that King Edred, the uncle of Edwy, mounted the throne for about nine years, in the right of his nephew, a minor, the times being very troublesome and dangerous. But this was with a view to preserve, and not to destroy, the succession; and accordingly Edwy succeeded him. (3)

King Edmund Ironside was obliged, by the hostile irruption of the Danes, at first to divide his kingdom with Canute, King of Denmark; and Canute, after his death, seized the whole of it, Edmund's sons being driven into foreign countries. Here the succession was suspended by actual force, and a new family introduced upon the throne: in whom however this new acquired throne continued hereditary for three reigns; when, upon the death of Hardiknute, the ancient Saxon line was restored in the person of Edward the Confessor.

He was not indeed the true heir to the crown, being the younger brother of King Edmund Ironside, who had a son Edward, sirnamed (from his exile) the outlaw, still living. But this son was then in Hungary; and, the English having just shaken off the Danish yoke, it was necessary that somebody on the spot should mount the throne; and the Confessor was the next of the royal line then in England. On his decease without issue, Harold II usurped the throne; and almost at the same instant came on the Norman invasion: the right to the crown being all the time in Edgar, sirnamed Atheling, (which signifies in the Saxon language illustrious, or of royal blood,) who was the son of Edward the Outlaw, and grandson of Edmund *Ironside; or, as Matthew Paris (d) [*199] well expresses the sense of our old constitution, "Edmundus autem latusferreum, rex naturalis de stirpe regum, genuit Edwardum; et Edwardus genuit Edgarum, cui de jure debebatur regnum Anglorum."

William the Norman claimed the crown by virtue of a pretended grant from King Edward the Confessor; a grant which, if real, was in itself utterly invalid: because it was made, as Harold well observed in his reply to William's demand, (e) "absque generali senatus, et populi conventu et edicto;" which also very plainly implies, that it then was generally understood that the king, with consent of the general council, might dispose of the crown and change the line

(c) Puff. L. of N. and N. b. 8, c. 12, § 6.

(d) A. D. 1066.

(e) William of Malmsb. 1. 3.

(3) There were some other exceptions: Athelstan and Edmund Ironside were both illegitimate sons, and both took the crown while they had legitimate brothers living.]

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of succession. (4) William's title however was altogether as good as Harold's, he being a mere private subject, and an utter stranger to the royal blood. Edgar Atheling's undoubted right was overwhelmed by the violence of the times; though frequently asserted by the English nobility after the conquest, till such time as he died without issue: but all their attempts proved unsuccessful, and only served the more firmly to establish the crown in the family which had newly acquired it.

This conquest then by William of Normandy was, like that of Canute before, a forcible transfer of the crown of England into a new family: but, the crown being so transferred, all the inherent properties of the crown were with it transferred also. For, the victory obtained at Hastings not being (f) a victory over the nation collectively, but only over the person of Harold, the only right that the conqueror could pretend to acquire thereby, was the right to possess the crown of England, not to alter the nature of the government. And therefore, as the English laws still remained in force, he must necessarily take the crown subject to those laws, and with all its inherent properties; the first and principal of which was its descendibility. Here then we must drop our race of Saxon kings, at least for a while, and derive our descents from William the Conqueror as from a new stock, who acquired by right of war (such as it is, yet still the [*200 ] *dernier resort of kings) a strong and undisputed title to the inheriable crown of England.

Accordingly it descended from him to his sons William II and Henry I. Robert, it must be owned, his eldest son, was kept out of possession by the arts and violence of his brethren; who perhaps might proceed upon a notion, which prevailed for some time in the law of descents, (though never adopted as the rule of public successions,) (g) that when the eldest son was already provided for, (as Robert was constituted Duke of Normandy by his father's will,) in such a case the next brother was entitled to enjoy the rest of their father's inherit ance. But, as he died without issue, Henry at last had a good title to the throne, whatever he might have at first.

Stephen of Blois, who succeeded him, was indeed the grandson of the conqueror, by Adelicia his daughter, and claimed the throne by a feeble kind of hereditary right: not as being the nearest of the male line, but as the nearest male of the blood royal, excepting his elder brother Theobald; who was Earl of Blois, and therefore seems to have waived, as he certainly never insisted on, so troublesome and precarious a claim. The real right was in the Empress Matilda or Maud, the daughter of Henry I; the rule of succession being, (where women are admitted at all,) that the daughter of a son shall be preferred to the son of a daughter. So that Stephen was little better than a mere usurper; and therefore he rather chose to rely on a title by election, (h) while the Empress Maud did no fail to assert her hereditary right by the sword: which dispute was attended with various success, and ended at last in the compromise made at Wallingford, that Stephen should keep the crown, but that Henry, the son of Maud, should succeed him, as he afterwards accordingly did.

Henry, the second of that name, was (next after his mother Matilda) the undoubted heir of William the Conqueror; but he had also another connexion in blood, which endeared *him still farther to the English. He was line[ *201 ] ally descended from Edmund Ironside, the last of the Saxon race of hereditary kings. For Edward the Outlaw, the son of Edmund Ironside, had (besides Edgar Atheling, who died without issue) a daughter, Margaret, who

(f) Hale, Hist. C. L. c. 5. Seld. Review of Tithes, c. 8. vol. 1. p. 467.

(g) See Lord Lyttleton's Life of Henry II,

(h) Ego Stephanus Dei gratia assensu cleri et populi in regem Anglorum electus, &c." (Cart. A. D. 1136. Ric. de Hagustald. 314. Hearne ad Guil. Neubr. 711.)

(4) [Perhaps it also as plainly implies, what the coronation service and other documents, together with the reason of the thing, raise a strong presumption of, that at this time the crown was partly elective; elective with a restriction to one family, and a preference of primogeniture ⚫ and legitimacy.]

was married to Malcolm king of Scotland; and in her the Saxon hereditary right resided. By Malcolm she had several children, and among the rest Matilda the wife of Henry I, who by him had the Empress Maud, the mother of Henry II. Upon which account the Saxon line is in our histories frequently said to have been restored in his person, though in reality that right subsisted in the sons of Malcolm by Queen Margaret; King Henry's best title being as heir to the conqueror. (5)

From Henry II the crown descended to his eldest son Richard I, who dying childless, the right vested in his nephew Arthur, the son of Geoffrey his next brother: but John, the youngest son of King Henry, seized the throne; claiming, as appears from his charters, the crown by hereditary right: (i) that is to say, he was next of kin to the deceased king, being his surviving brother; whereas Arthur was removed one degree farther, being his brother's son, though by right of representation he stood in the place of his father Geoffrey, And however flimsy this title, and those of William Rufus and Stephen of Blois, may appear at this distance to us, after the law of descents hath now been settled for so many centuries, they were sufficient to puzzle the understandings of our brave, but unlettered ancestors. Nor, indeed, can we wonder at the number of partisans who espoused the pretensions of King John in particular, since even in the reign of his father King Henry II, it was a point undetermined, (k) whether, ever in common inheritances, the child of an elder brother should succeed to land in right of representation, or the younger suviving brother in right of proximity of blood. Nor is it to this day decided, in the collateral succession to the fiefs of the empire, whether the order of the stocks, or the proximity of degree, shall take place. (1) However, on the death of Arthur and his sister Eleanor without issue, a clear and indisputable title vested in Henry III, the son of John; and from him to Richard the [*202] Second, a succession of six generations, the crown descended in the true hereditary line. Under one of which race of princes (m) we find it declared in parliament, "that the law of the crown of England is, and always hath been, that the children of the king of England, whether born in England or elsewhere, ought to bear the inheritance after the death of their ancestors. Which law our sovereign lord the king, the prelates, earls, and barons, and other great men, together with all the commons in parliament assembled, do approve and affirm for ever."

Upon Richard the Second's resignation of the crown, he having no children, the right resulted to the issue of his grandfather Edward III. That king had many children besides his eldest, Edward the black prince of Wales, the father of Richard II; but, to avoid confusion, I shall only mention three: William his second son, who died without issue; Lionel, duke of Clarence, his third son; and John of Gant, duke of Lancaster, his fourth. By the rules of succession, therefore, the posterity of Lionel, duke of Clarence, were entitled to the throne upon the resignation of King Richard; and had accordingly been declared by the king, many years before, the presumptive heirs of the crown; which declaration was also confirmed in parliament. (n) But Henry, duke of Lancaster, the son of John of Gant, having then a large army in the kingdom, the pretence of raising which was to recover his patrimony from the king, and to redress the grievances of the subject, it was impossible for any other title to be asserted with any safety; and he became king under the title of Henry IV. But, as Sir Mathew Hale remarks, (0) though the people unjustly assisted Henry IV in his usurpation of the crown, yet he was not admitted thereto until he had declared that he claimed, not as a conqueror, (which he very much inclined to do) (p) but as (i) " —Regni Angliae; quod nobis jure competit haereditario." Spelm. Hist. R. John apud Wilkins, 354. (k) Glanl. 1. 7, c. 3. (7) Mod. Un. Hist. xxx. 512. (m) Stat. 25 Edw. III, st. 2. (n) Stanford's Geneal. Hist. 246. (0) Hist. C. L. c. 5. (p) Seld. Tit. Hon. 1, 3.

(5) [Henry the Second crowned his eldest son Henry (who died before him) in his life-time; another strong circumstance to show in how unsettled and precarious a state was the right of hereditary succession in his age. See Lord Lyt, book 3.]

a successor, descended by right line of the blood royal; as appears from the rolls of parliament in those times. And, in order to do this, he set up a show of two titles: *the one upon the pretence of being the first of the blood royal [*203 ] 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 propogated by John of Gant, that Edmond, Earl of Lancaster, (to whom Henry's mother was heiress) was in reality the elder brother of Edward I; though his parents, on account of his personal deformity, had imposed him on the world for the younger; and therefore Henry 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 the Third'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. IV, 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 (9) in the person 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 the 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 the Fourth had been a rightful king. It however serves to shew 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, (r) that at the time of *passing this act the right of the crown was in the [*204] descent from Philippa, daughter and heir of Lionel duke of Clarence. Nevertheless the crown descended regularly from Henry IV to his son and grandsons Henry V and VI; in the latter of whose reigns the house of York asserted their dormant title; and, after imbruing the kingdom in blood 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 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. IV, c. 1, the three Henrys are styled, "late kings of England successively in dede, and not of ryght." And in all the charters which I have met with of King Edward, wherever 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 IV left two sons and a daughter; the eldest of which sons, King Edward V, enjoyed the regal dignity for a very short time, and was then deposed by Richard, his unnatural uncle, who immediately usurped the royal dignity, after which having previously insinuated to the populace a suspicion of bastardy in the children of Edward IV, to make a shew of some hereditary title; he is generally believed to have murdered his two nephews, upon whose death the right of the crown devolved to their sister Elizabeth.

The tyrannical reign of King Richard III, gave occasion to Henry, earl of A title the most remote and unacRichmond, to assert his title to the crown. countable 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 he

(q) Soit mye et demoerge.

(r) 4 Inst. 37, 205.

claimed under a descent from John of Gant, whose title was now exploded, the claim, (such as it was) was through John Earl of Somerset, a bastard son, begotten by John of *Gant upon Catharine Swinford. It is true that, by an act of parliament, 20 Ric. II, this son was, with others, legitimated and made [*205] inheritable to all lands, offices, and dignities, as if he had been born in wedlock; but still with an express reservation of the crown, "excepta dignitate regali." (s) Notwithstanding all this, immediately after the battle of Bosworth Field, he assumed the regal dignity; the right of the crown then being, as Sir Edward Coke expressly declares, () 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,) 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 way was rather chosen, by way (as the noble historian expresses it,) of establishment, and that under covert and indiferent 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, and thereby gained (as Sir Edward Coke (u) declares) by much his best title to the crown. (6) Whereupon the act made in his favour was so much disregarded, that it never was printed in our statute books.

Henry the Eighth, 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 Hen. VIII, c. 12, which recites the mishiefs which have and may ensue [*206] 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 Catharine) 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 case where there be heirs female of 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.

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. VIII, 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 statue 35 Hen. VIII, 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

(6) [And yet it is difficult to see what title to the crown he could have gained by marrying the rightful queen.]