equally jure divino, as thofe of either Solomon or Ahab; and yet David flew the fons of his predeceffor, and Jehu his predeceffor himself. And when our kings have the fame warrant as they had, whether it be to fit upon the throne of their fathers, or to destroy the house of the preceding sovereign, they will then, and not before, poffefs the crown of England by a right like theirs, immediately derived from heaven. The hereditary right which the laws of England acknowledge, owes it's origin to the founders of our conftitution, and to them only. It has no relation to, nor depends upon, the civil laws of the Jews, the Greeks, the Romans, or any other nation upon earth: the municipal laws of one fociety having no connection with, or influence upon, the fundamental polity of another. The founders of our English monarchy might perhaps, if they had thought proper, have made it an elective monarchy: but they rather chofe, and upon good reason, to establish originally a fucceffion by inheritance. This has been acquiefced in by general confent; and ripened by degrees into common law: the very fame title that every private man has to his own estate. Lands are not naturally descendible any more than thrones: but the law has thought proper, for the benefit and peace of the public, to establish hereditary fucceffion in the one as well as the other.

Ir must be owned, an elective monarchy feems to be the moft obvious, and best suited of any to the rational principles of government, and the freedom of human nature: and accordingly we find from history that, in the infancy and first rudiments of almost every state, the leader, chief magiftrate, or prince, hath usually been elective. And, if the individuals who compose that state could always continue true to first principles, uninfluenced by paffion or prejudice, unaffailed by corruption, and unawed by violence, elective fucceffion were as much to be defired in a kingdom, as in other inferior communities. The beft, the wisest, and the braveft man would then be fure of receiving that crown, which his endowments have merited; and the sense of an unbiaffed majority would be dutifully acquiefced in by the few who were

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of different opinions. But history and obfervation will inform us, that elections of every kind (in the prefent ftate of human nature) are too frequently brought about by influence, partiality, and artifice: and, even where the cafe is otherwise, thefe practices will be often fufpected, and as conftantly charged upon the successful, by a splenetic disappointed minority. This is an evil to which all societies are liable; as well those of a private and domestic kind, as the great community of the public, which regulates and includes the reft. But in the former there is this advantage; that fuch fufpicions, if false, proceed no farther than jealoufies and murmurs, which time will effectually fupprefs; and, if true, the injustice may be remedied by legal means, by an appeal to those tribunals to which every member of fociety has (by becoming fuch) virtually engaged to fubmit. Whereas in the great and independent fociety, which every nation composes, there is no fuperior to refort to but the law of nature; no method to redress the infringements of that law but the actual exertion of private force. As therefore between two nations, complaining of mutual injuries, the quarrel can only be decided by the law of arms; fo in one and the fame nation, when the fundamental principles of their common union are supposed to be invaded, and more especially when the appointment of their chief magistrate is alleged to be unduly made, the only tribunal to which the complainants can appeal, is that of the God of battles; the only process by which the appeal can be carried on is that of a civil and inteftine war. An hereditary fucceffion to the crown is therefore now established, in this and most other countries, in order to prevent that periodical bloodshed and mifery, which the history of antient imperial Rome and the more modern experience of Poland and Germany, may shew us are the confequences of elective kingdoms.

2. BUT, fecondly, as to the particular mode of inheritance, it in general correfponds with the feodal path of descents, chalked out by the common law in the fucceffion to landed estates; yet with one or two material exceptions. Like eftates, the crown will defcend lineally to the iffue of the VOL. I. reigning

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reigning monarch; as it did from king John to Richard II., [194] through a regular pedigree of fix lineal generations. As in common defcents, the preference of males to females, and the right of primogeniture among the males, are strictly adhered to. Thus Edward V. fucceeded to the crown in preference to Richard his younger brother, and Elizabeth his eldest fifter. Like lands or tenements, the crown, on failure of the male line, descends to the iffue female; according to the antient British custom remarked by Tacitus": "folent foeminarum " ductu bellare, et fexum in imperiis non difcernere." Thus Mary I. fucceeded to Edward VI., and the line of Margaret queen of Scots, the daughter of Henry VII., fucceeded on failure of the line of Henry VIII. his fon. But, among the females, the crown descends by right of primogeniture to the eldest daughter only and her iffue; and not, as in common inheritances, to all the daughters at once; the evident neceffity of a fole fucceffion to the throne having occafioned the royal law of descents to depart from the common law in this respect; and therefore queen Mary on the death of her brother fucceeded to the crown alone, and not in partnership with her fifter Elizabeth. Again; the doctrine of reprefentation prevails in the descent of the crown, as it does in other inheritances; whereby the lineal defcendants of any perfon deceased stand in the fame place as their ancestor, if living, would have done. Thus Richard II. fucceeded his grandfather Edward III., in right of his father the black prince; to the exclufion of all his uncles, his grandfather's younger children. Laftly, on failure of lineal descendants, the crown goes to the next collateral relations of the late king; provided they are lineally defcended from the blood-royal, that is, from that royal stock which originally acquired the crown. Thus Henry I. fucceeded to William II., John to Richard I., and James I. to Elizabeth; being all derived from the conqueror, who was then the only regal stock. But herein there is no objection (as in the cafe of common descents) to the fucceffion of a brother, an uncle, or other collateral relation, of the half blood; that is, where the relationship proceeds not from the fame

• In vit. Agricolae.

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couple of ancestors (which conftitutes a kinfman of the whole blood) but from a single ancestor only; as when two persons are derived from the fame father, and not from the fame mother, or vice verfa: provided only, that the one ancestor, [195] from whom both are defcended, be that from whofe veins the blood-royal is communicated to each. Thus Mary I. inherited to Edward VI., and Elizabeth inherited to Mary; all children of the fame father, king Henry VIII., but all by different mothers. The reason of which diversity, between royal and common descents, will be better underflood hereafter, when we examine the nature of inheritances in general.

3. THE doctrine of hereditary right does by no means imply an indefeasible right to the throne. No man will, I think, affert this, that has confidered our laws, constitution, and history, without prejudice, and with any degree of attention. It is unquestionably in the breast of the supreme legislative authority of this kingdom, the king and both houses of parliament, to defeat this hereditary right; and, by particular entails, limitations, and provifions, to exclude the immediate heir, and vest the inheritance in any one elfe. This is strictly confonant to our laws and conftitution; as may be gathered from the expreffion fo frequently used in our ftatute book, of "the king's majesty, his heirs and fucceffors." In which we may observe, that as the word "heirs" neceffarily implies an inheritance or hereditary right, generally subsisting in the royal perfon; fo the word "fucceffors," distinctly taken, must imply that this inheritance may fometimes be broken through; or, that there may be a fucceffor, without being the heir, of the king. And this is fo extremely reasonable, that without fuch a power, lodged somewhere, our polity would be very defective. For, let us barely fuppofe fo melan.. choly a case, as that the heir apparent should be a lunatic, an idiot, or otherwise incapable of reigning; how miserable would the condition of the nation be, if he were alfo incapable of being fet afide! It is therefore neceffary that this power should be lodged fomewhere: and yet the inheritance, and regal dignity, would be very precarious indeed, if this power were expressly and avowedly lodged in the hands of the fubje&t

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fubject only, to be exerted whenever prejudice, caprice, or discontent should happen to take the lead. Confequently it can no where be fo properly lodged as in the two houses of [196] parliament, by and with the consent of the reigning king; who, it is not to be fuppofed, will agree to any thing improperly prejudicial to the rights of his own descendants. And therefore in the king, lords, and commons, in parliament affembled, our laws have exprefsly lodged it.

4. BUT, fourthly; however the crown may be limited or transferred, it ftill retains it's defcendible quality, and becomes hereditary in the wearer of it. And hence in our law the king is said never to die, in his political capacity; though, in common with other men, he is fubject to mortality in his natural: because immediately upon the natural death of Henry, William, or Edward, the king furvives in his fucceffor. For the right of the crown vests, eo inftanti, upon his heir; either the haeres natus, if the course of descent remains unimpeached, or the haeres factus, if the inheritance be under any particular fettlement. So that there can be no interregnum (1); but, as fir Matthew Haleb obferves, the right of sovereignty is fully invested in the fucceffor by the very descent of the crown. And therefore, however acquired, it becomes in him abfolutely hereditary, unless by the rules of the limitation it is otherwife ordered and determined. In the fame manner as landed estates, to continue our former comparison, are by the law hereditary, or descendible to the heirs of the owner; but ftill there exifts a power, by which the property of those lands may be transferred to another perfon. If this transfer be made fimply and absolutely, the lands will be hereditary in the new owner, and descend to his heir at law; but if the transfer be clogged with any limitations, conditions, or en

(1) Hence the ftatutes passed in the first year after the reftoration of Car. II. are always called the acts in the twelfth year of his reign and all the other legal proceedings of that reign are reckoned from the year 1648, and not from the year 1660.

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