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 awhile, and derive our descents from William the Conqueror (14) as from a new stock, who acquired by right of war (such as it is, yet still the *dernier resort of [*200 ] kings) a strong and undisputed title to the inheritable crown of England. Henry I. Accordingly, it descended from him to his sons William II. 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 inheritance. 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 grand- Stephen of Blois. son 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 (15): and therefore he rather chose to rely on a title by election (h), while the Empress (g) See Lord Lyttleton's Life of Henry II. Vol. 1, p. 467. (h) "Ego Stephanus Dei gratia assensu cleri et populi in regem Anglorum electus, &c." (Cart. A. D. 1136; Ric. (14) See Vol. 2, p. 243. Henry 11. Maud did not 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 [ *201] *him still farther to the English. He was lineally 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 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. Richard I. John. 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 heredi. tary 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 (16). Nor, indeed, (i) "-Regni Angliæ; quod nobis jure competit hæreditario." Spelm. Hist. R. Joh. apud Wilkins, 354. (16) The contest between Baliol and Bruce for the Scottish throne, so far as right was concerned, turned upon this point. Baliol had the preferable title, can we wonder at the number of partizans 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 (j), whether, even in common inheritances, the child of an elder brother should succeed to the land in right of representation, or the younger surviving 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 (k). 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 Second, a succession of six generations, the crown descended in the true hereditary line. Under one of which race of princes (1) 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." [ *202 ] Henry III. Richard II. 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 (m). But Henry duke of Usurpation of (j) Glanv. 1. 7, c. 3. (k) Mod. Un. Hist. xxx. 512. if the doctrine of representation was admitted: Bruce had proximity in his favour, and, what was of more avail in (1) Stat. 25 Edw. III. st. 2. those days, he was the stouter soldier Henry IV. 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 Matthew Hale remarks (n), 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) (0), but as a successor, descended by right line of the blood royal; as appears from the rolls of parliament in those times. And, in order to this, he set up a shew of two [203] titles: *the one upon the pretence of being the first of the blood roval 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 Gant, 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 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. New settlement of the crown by 7 Hen. IV., c. 2. 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 (p) 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 (n) Hist. C. L. c. 5. (0) Seld. Tit. Hon. 1. 3. (p) Soit mys et demoerge. 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 (q), that at the time of *passing this act the right [*204 ] of the crown was in the descent from Philippa, daughter and heir of Lionel, Duke of Clarence. Henry V. Henry VI. Nevertheless, the crown descended regularly from Henry IV. to his son and grandson 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 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. 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 Anglia." 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, having previously insinuated to the populace a suspicion of bastardy in the children of Edward IV., to make a shew of some hereditary title: after which he is generally be (g) 4 Inst. 37. 205. Edward V. Richard III. |