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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 rest. But in the former there is this advantage; that such suspicions, if false, proceed no further than jealousies and murmurs, which time will effectually suppress; and, if true, the injustice may be remedied by legal means, by an appeal to the tribunals to which every member of society has (by becoming such) virtually engaged to submit. Whereas in the great and independent society, which every nation composes, there is no superior to resort 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; so in one and the same 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 intestine war. An hereditary succession to the crown is therefore now established, in this and most other countries, in order to prevent that periodical bloodshed and misery, which the history of ancient imperial Rome, and the more modern experience of Poland and Germany, may show us are the consequences of elective kingdoms.

2. But, secondly, as to the particular mode of inheritance, it in general corresponds with the feodal path of descents, chalked out by the common law in the succession to landed estates; yet with one or two material exceptions. Like estates, the crown will descend lineally to the issue of the reigning monarch; as it did from king John to Richard II., through *a regular pedigree of six lineal generations. As in common descents, the preference of males [*194 to females, and the right of primogeniture among the males, are strictly adhered to. Thus Edward V. succeeded to the crown, in preference to Richard, his younger brother, and Elizabeth, his elder sister. Like lands or tenements, the crown, on failure of the male line, descends to the issue female; according to the ancient British custom remarked by Tacitus;(a) "solent fœminarum ductu bellare, et sexum in imperiis non discernere." Thus Mary I. succeeded to Edward VI.; and the line of Margaret Queen of Scots, the daughter of Henry VII., succeeded on failure of the line of Henry VIII., his son. But, among the females, the crown descends by right of primogeniture to the eldest daughter only and her issue; and not, as in common inheritances, to all the daughters at once; the evident necessity of a sole succession to the throne having occasioned the royal law of descents to depart from the common law in this respect: and therefore queen Mary on the death of her brother succeeded to the crown alone, and not in partnership with her sister Elizabeth. Again: the doctrineof representation prevails in the descent of the crown, as it does in other inheritances; whereby the lineal descendants of any person deceased stand in the same place as their ancestor, if living, would have done. Thus Richard II. succeeded his grandfather Edward III., in right of his father the Black Prince; to the exclusion of all his uncles, his grandfather's younger children. Lastly, on failure of lineal descendants, the crown goes to the next collateral relations of the late king; provided they are lineally descended from the blood royal, that is, from that royal stock, which originally acquired the crown. Thus Henry I. succeeded 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 case of common descents) to the succession of a brother, an uncle, or other collateral relation, of the half blood; that is, where the relationship proceeds not from the same couple of ancestors (which constitutes a kinsman of the whole blood) but from a single ancestor only; as when two persons are derived from the same father and not from the same *mother, or vice versa; provided only, that the one ancestor, from [*195 whom both are descended, be that from whose veins the blood royal is communicated to each. Thus Mary I. inherited to Edward VI., and Elizabeth

(•) In vil. Agricolæ,

inherited to Mary; all children of the same father, King Henry VIII., but all by different mothers. The reason of which diversity, between royal and common descents, will be better understood 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, assert this, that has considered 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 provisions, to exclude the immediate heir, and vest the inheritance in any one else. This is strictly consonant to our laws and constitution; as may be gathered from the expression so frequently used in our statute book, of "the king's majesty, his heirs, and successors." In which we may observe, that as the word, "heirs," necessarily implies an inheritance of hereditary right, generally subsisting in the royal person; so the word, "successors," distinctly taken, must imply that this inheritance may sometimes be broken through; or, that there may be a successor, without being the heir, of the king. And this is so extremely reasonable, that without such a power, lodged somewhere, our polity would be very defective. For, let us barely suppose so melancholy 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 also incapable of being set aside! It is therefore necessary that this power should be lodged somewhere: 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 subject only, to be exerted whenever prejudice, caprice, or discontent, should happen to take the lead. Consequently it can nowhere be so properly lodged *196] as in the two houses of parliament, by and with the consent of the reigning king; who, it is not to be supposed, will agree to any thing improperly prejudicial to the rights of his own descendants. And therefore in the king, lords, and commons, in parliament assembled, our laws have expressly lodged it.

So

4. But, fourthly; however the crown may be limited or transferred, it still retains its descendible 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 subject to mortality in his natural: because immediately upon the natural death of Henry, William, or Edward, the king survives in his successor. For the right of the crown vests, eo instant, upon his heir; either the hæres natus, if the course of descent remains unimpeached, or the hæres factus, if the inheritance be under any particular settlement. that there can be no interregnum; but, as Sir Matthew Hale(b) observes, the right of sovereignty is fully invested in the successor by the very descent of the crown. And therefore, however acquired, it becomes in him absolutely hereditary, unless by the rules of the limitation it is otherwise ordered and determined. In the same manner as landed estates, to continue our former comparison, are by the law hereditary, or descendible to the heirs of the owner; but still there exists a power, by which the property of those lands may be transferred to another person. If this transfer be made simply 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 entails, the lands must descend in that channel, so limited and prescribed, and no other.

In these four points consists, as I take it, the constitutional notion of hereditary right to the throne: which will be still further elucidated, and made clear

() 1 Hist. P. C. 61.

2 Hence the statutes passed in the first year after the restoration 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 1660.-CHRISTIAN.

beyond all dispute, from a short historical view of the successions to the crown of England, the doctrines of our ancient lawyers, and the several acts of parliament that have from time to time been made, to create, to declare, to confirm, to limit, or to bar, the hereditary *title to the throne. And in the pur

[*197 suit of this inquiry we shall find, that, from the days of Egbert, the first sole monarch of this kingdom, even to the present, the four cardinal maxima above mentioned have ever been held the constitutional canons of succession. It is true, the succession, through fraud, or force, or sometimes through necessity, when in hostile times the crown descended on a minor or the like, has been very frequently suspended; but has generally at last returned back into the old hereditary channel, though sometimes a very considerable period has intervened. And, even in those instances where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it. Of which the usurpers themselves were so sensible, that they for the most part endeavoured to vamp up some feeble show of a title by descent, in order to amuse the people, while they gained the possession of the kingdom. And, when possession was once gained, they considered it as the purchase or acquisition 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

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

But Edmund, the son of Edward the elder, was put aside to make way for Athelstan, his bastard brother; and Edmund, his brother, succeeded him.-CHITTY.

It has been remarked that Edmund Ironside being illegitimate, Edward the Con

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 *199] of Edward the Outlaw, and grandson of Edmund *Ironside; or as Matthew Paris (d) 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 of succession. 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 *200] heritable crown of England. still the dernier resort of kings) a strong and undisputed title to the in

Accordingly it descended from him to his sons William II. and Henry L 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 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 veing, (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 there

A.D. 1066.

William of Malmsb. l. 3.

() Hale, Hist. C. L. c. 5. Seld. Review of Tithes, c. 8. (#) See Lord Lyttleton's Life of Henry II. vol. i. p. 467.

fessor the legitimate son of Ethelred the Unready, was the true heir to the crown, at least in preference to Edmund or any child of his.-COLERIDGE,

fore he rather chose to rely on a title by election, (h) while the empress 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.

[*201

Henry, the second of that name, was (next after his mother Matilda) the undoubted heir of William the Conqueror; but he had also another connection in blood, which endeared *him still further 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.

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 further, 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, 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.(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 forever."

Upon Richard the Second's resignation of the crown, he having no children, he 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 Gaunt, 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 decla

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

()"-Regni Angliæ; quod nobis jure competit hæredi tario." Spelm. Hist. R. Joh. apud Wilkins, 354.

VOL. L-11

(*) Glanv. 1. 7, c. 3.
() Mod. Un. Hist. xxx. 512.
() Stat. 25 Edw. III. st. 2.

161

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