« PreviousContinue »
ration was also confirmed in parliament.(n) But Henry, duke of Lancaster, the son of John of Gaunt, 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 inipossible 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,(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 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 show *203]
of two titles : *the one upon the pretence of being the first of the blood
royal in the entire male sine, 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 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(?) 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 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 *204]
sentiment of Henry's original title. However, Sir Edward Coke moro
than once expressly declares,() that at the time of *passing this act the right of the crown was in the descent from Philippa, daughter and heir of Lionel duke of Clarence.
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 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 suns, 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 show of some hereditary title: after which 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 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 he 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. II. 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 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 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 morely. 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. 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 mischiefs which have and [ *206 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
(w) Ibid. 37. (9) Ibid. 37. 6 It must be remarked that Blackstone's assertion, on the authority of Coke, (4 Inst 37,) that in the act of legitimation there was an express reservation excluding the right of succession to the throne, has been discovered to be unfounded. In the original rolls of parliament, the exception of the right of succession to the throne is not contained ; but it was introduced by interlineation on the patent-roll subsequently to the grant of legitimation, and was included in the confirmation by Henry IV. It is clear the operative grant was the statute of Richard II.; and as that statute legitimated Jolin of Gaunt's children for all purposes, without exception, they were thereby made capable of inheriting the crown. Sir N. Nicholas's Observ. on the State of Historical Literature, p. 176. Bowyer's Const. Law, 105.-SHARSWOOD.
(°) 4 Inst. 36.
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 co 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 forever. 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 Anne 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 statute 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 accordingly, being indeed no other than the usual course of the law, with regard to the descent of the crown.
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. st. 2, c. 1, *207]
queen Mary's *hereditary right to the throne is acknowledged and
recognised in these words :-" The crown of these realms is most lawfully, justly, and rightly descended and come to 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,(x) 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 known 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.
On queen Elizabeth's accession, her right is recognised in still stronger terms than her sister's; the parliament acknowledging(y) “ that the queen's highness 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 lawful and rightful 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 hold, affirm, or 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, shall, *209] decease shall be guilty of a misdemesnor, and forfeit his goods and
*during the life of the queen, be guilty of high treason; and after her chattels.”
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, () 1 Mar. st. 2, c. 2.
() Stat. 1 Eliz. c. 3.
and of England the First, was the lineal descendant from that alliance. So that in his person, as clearly as in Henry VIII., centred 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 centred the right of the Saxon monarchs, which had been suspended from the conquest till his accession. For, as 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 the First was the direct lineal heir, and therefore united in his person every possible claim by hereditary right to the English as well as Scottish throne, being the heir both of Egbert and William the Conqueror.
And it is no wonder that a prince of more 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 his right, and that the finger of Providence was visible in its *preservation. Whereas, though a wise institution, it was clearly a human insti
[*209 tution; 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 Jac. I. 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 anywhere, must be sought for among the aborigines of the island, the ancient Britons, among whose princes, indeed, some have gone to search it for him.(z)
But, wild and absurd as the doctrine of divine right most undoubtedly is, it is still more astonishing, that when so many hereditary rights had centred in this king, his son and heir king Charles the First should be told by those infamous judges who pronounced his unparalleled sentence, that he was an elective prince ; elected by his people, and therefore accountable to them, in his own proper person, for his conduct. The confusion, instability, and madness which followed the fatal catastrophe of that pious and unfortunate prince, will be a standing argument in favour of hereditary monarchy to all future ages; as they proved at last to the then deluded people; who, in order to recover that peace and happiness, which for twenty years together they had lost, in a solemn parliamentary convention of the states restored the right heir of the crown. And in the proclamation for that purpose, which was drawn up and attended by both houses, (a) they declared "that, according to their duty and allegiance, they did heartily, joyfully, and unanimously acknowledge and proclaim, that immediately upon the *decease of our late sovereign lord king Charles, the imperial
[*210 crown of these realms did by inherent birthright and lawful and undoubted succession descend and come to his most excellent majesty Charles the Second, as being lineally, justly, and lawfully next heir of the blood royal of () Elizabeth of York, the mother of queen Margaret of the Great, had the true right to the principality of Wales.
(a) Com. Jour. 8 May, 1660. descent from Gladys, only sister to Llewellin ap Jorwerth
Hist. Eng. iii. 705.
Scotland, was heiress of the house of Mortimer. And Mr.
This position is correct only on the assumption that the will of Henry VIII., whereby he (by virtue of the statute 28 Hen. VIII. c. 7) entailed the crown on the descendants of his youngest sister, Mary, duchess of Suffolk, before those of Margaret, queen of Scots, is not authentic and valid; for there were descendants of Mary living at the decease of queen Elizabeth. Bowyer's Const. Law, 108. Hallam, vol. i. p. 395.-SHARSWOOD.
this realm: and thereunto they most humbly and faithfully did submit and oblige themselves, their heirs, and posterity forever.”
Thus I think it clearly appears, from the highest authority this nation is acquainted with, that the crown of England hath been ever an hereditary crown, though subject to limitations by parliament. The remainder of this chapter will consist principally of those instances wherein the parliament has asserted or exercised this right of altering and limiting the succession; a right which, we have seen, was before exercised and asserted in the reigns of Henry IV., Henry VII., Henry VIII., queen Mary, and queen Elizabeth.
The first instance, in point of time, is the famous bill of exclusion, which raised such a ferment in the latter end of the reign of king Charles the Second. It is well known that the purport of this bill was to have 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 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 unless by parliament: else it had been needless to prefer such a bill. 2. That the parliament had a power to have defeated the in. heritance: else such a bill had been ineffectual. The commons acknowledged the hereditary right then subsisting; and the lords did not dispute the power, but merely the propriety, of an exclusion. However, as the bill took no effect, king James the Second succeeded to the throne of his ancestors; and might have enjoyed it during the remainder of his life but for his own infatuated conduct, which, with other concurring circumstances, brought on the revolution in 1688. *211]
*The true ground and principle upon which that memorable event
proceeded was an entirely new case in politics, which had never before happened in our history,—the abdication of the reigning monarch, and the vacancy of the throne thereupon. It was not a defeasance of the right of succession, and a new limitation of the crown, by the king and both houses of parliament: it was the act of the nation alone, upon a conviction that there was no king in being. For, in a full assembly of the lords and commons, met in a convention upon the supposition of this vacancy, both houses(6) came to this resolution :-" That king James the Second, having endeavoured to subvert the constitution of the kingdom, by breaking the original contract between king and people; and, by the advice of jesuits and other wicked persons, having violated the fundamental laws; and having withdrawn himself out of this kingdom; has abdicated the government, and that the throne is thereby vacant.” Thus ended at once, by this sudden and unexpected vacancy of the throne, the old line of succession; which from the conquest had lasted above six hundred years, and from the union of the heptarchy in king Egbert almost nine hundred. The facts themselves thus appealed to, the king's endeavour to subvert the constitution by breaking the original contract, his violation of the fundamental laws, and his withdrawing himself out of the kingdom, were evident and notorious; and the consequences drawn from these facts, (namely, that they amounted to an abdication of the government; which abdication did not affect only the person of the king himself, but also all his heirs, and rendered the throne absolutely and completely vacant,) it belonged to our ancestors to determine.' For, when.
Com. Jour. 7 Feb. 1688.
? The convention in Scotland drew the same conclusion, viz., the vacancy of the throne, from premises and in language much more bold and intelligible. The mystery of the declaration of the English convention betrays that timidity which it was intended to conceal:"The estates of the kingdom of Scotland find and declare, that king James Seventh, being a professed papist, did assume the royal power, and acted as a king without ever taking the oath required by law; and had, by the advice of evil and wicked counsellors, invaded the fundamental constitution of this kingdom, and altered it from a legal and limited monarchy to an arbitrary despotic power; and had governed the same to the subversion of the protestant religion and violation of the laws and liberties