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[l]. 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 Matthew Hale
remarks[m], 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[n]) 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 titles: the one upon the
pretence of being the first of the blood royal in the intire 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 intitled to the crown, either as successor to
Richard II, in case the intire 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 intire male line was
existing.
[Footnote l: Sandford's geneal. hist. 246.]
[Footnote m: Hist. C.L. c. 5.]
[Footnote n: Seld. tit. hon. 1. 3.]
HOWEVER, as in Edward the third's time we find the parliament
approving and affirming the right 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_[o] 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 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 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[p], 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.
[Footnote o: _soit mys et demoerge._]
[Footnote p: 4 Inst. 37, 205.]
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 honors 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
stiled, "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 Angliae_."
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 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
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 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_[q]."
[Footnote q: 4 Inst. 36.]
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[r], in Elizabeth, eldest
daughter of Edward IV: and his possession was established by
parliament, held 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 acknowleging 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[s] 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.
[Footnote r: 4 Inst. 37.]
[Footnote s: _Ibid._]
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 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 males 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 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 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 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. p. 2. c. 1. queen Mary's hereditary right to the throne is
acknowleged and recognized 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[t], 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.
[Footnote t: 1 Mar. p. 2. c. 2.]
ON queen Elizabeth's accession, her right is recognized in still
stronger terms than her sister's; the parliament acknowleging[u],
"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 during the life of the queen be guilty of high
treason; and after her decease shall be guilty of a misdemesnor, and
forfeit his goods and chattels."
[Footnote u: Stat. 1 Eliz. c. 3.]
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, and of England the first, was the lineal
descendant from that alliance. So that in his person, as clearly as in
Henry VIII, centered 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
centered the right of the Saxon monarchs, which had been suspended
from the conquest till his accession. For, as was formerly observed,
Margaret the sister of Edgar Atheling, the daughter of Edward the
outlaw, and granddaughter 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 this right, and that the finger of
providence was visible in it's preservation. Whereas, though a wise
institution, it was clearly a human institution; 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 "recognize and acknowlege, 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 any where, must be sought
for among the _aborigines_ of the island, the antient Britons; among
whose princes indeed some have gone to search it for him[w].
[Footnote w: Elizabeth of York, the mother of queen Margaret of
Scotland, was heiress of the house of Mortimer. And Mr Carte observes,
that the house of Mortimer, in virtue of it's descent from Gladys only
sister to Lewellin ap Jorweth the great, had the true right to the
principality of Wales. iii. 705.]
BUT, wild and absurd as the doctrine of divine right most undoubtedly
is, it is still more astonishing, that when so many human hereditary
rights had centered 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[x],
they declared, "that, according to their duty and allegiance, they did
heartily, joyfully, and unanimously acknowlege and proclaim, that
immediately upon the decease of our late sovereign lord king Charles,
the imperial 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 this realm: and thereunto they most
humbly and faithfully did submit and oblige themselves, their heirs
and posterity for ever."
[Footnote x: Com. Journ. 8 May, 1660.]
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 acknowleged 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 inheritance: else such a
bill had been ineffectual. The commons acknowleged 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.
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
defeazance 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 an apprehension that there was no king in
being. For in a full assembly of the lords and commons, met in
convention upon this apprehended vacancy, both houses[y] 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 endeavours
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, whenever a question arises between the society at
large and any magistrate vested with powers originally delegated by
that society, it must be decided by the voice of the society itself:
there is not upon earth any other tribunal to resort to. And that
these consequences were fairly deduced from these facts, our ancestors
have solemnly determined, in a full parliamentary convention
representing the whole society. The reasons upon which they decided
may be found at large in the parliamentary proceedings of the times;
and may be matter of instructive amusement for us to contemplate, as a
speculative point of history. But care must be taken not to carry this
enquiry farther, than merely for instruction or amusement. The idea,
that the consciences of posterity were concerned in the rectitude of
their ancestors' decisions, gave birth to those dangerous political
heresies, which so long distracted the state, but at length are all
happily extinguished. I therefore rather chuse to consider this great
political measure, upon the solid footing of authority, than to reason
in it's favour from it's justice, moderation, and expedience: because
that might imply a right of dissenting or revolting from it, in case
we should think it unjust, oppressive, or inexpedient. Whereas, our
ancestors having most indisputably a competent jurisdiction to decide
this great and important question, and having in fact decided it, it
is now become our duty at this distance of time to acquiesce in their
determination; being born under that establishment which was built
upon this foundation, and obliged by every tie, religious as well as
civil, to maintain it.
[Footnote y: Com. Journ. 7 Feb. 1688.]
BUT, while we rest this fundamental transaction, in point of
authority, upon grounds the least liable to cavil, we are bound both
in justice and gratitude to add, that it was conducted with a temper
and moderation which naturally arose from it's equity; that, however
it might in some respects go beyond the letter of our antient laws,
(the reason of which will more fully appear hereafter[z]) it was
agreeable to the spirit of our constitution, and the rights of human
nature; and that though in other points (owing to the peculiar
circumstances of things and persons) it was not altogether so perfect
as might have been wished, yet from thence a new aera commenced, in
which the bounds of prerogative and liberty have been better defined,
the principles of government more thoroughly examined and understood,
and the rights of the subject more explicitly guarded by legal
provisions, than in any other period of the English history. In
particular, it is worthy observation that the convention, in this
their judgment, avoided with great wisdom the wild extremes into which
the visionary theories of some zealous republicans would have led
them. They held that this misconduct of king James amounted to an
_endeavour_ to subvert the constitution, and not to an actual
subversion, or total dissolution of the government, according to the
principles of Mr Locke[a]: which would have reduced the society almost
to a state of nature; would have levelled all distinctions of honour,
rank, offices, and property; would have annihilated the sovereign
power, and in consequence have repealed all positive laws; and would
have left the people at liberty to have erected a new system of state
upon a new foundation of polity. They therefore very prudently voted
it to amount to no more than an abdication of the government, and a
consequent vacancy of the throne; whereby the government was allowed
to subsist, though the executive magistrate was gone, and the kingly
office to remain, though king James was no longer king. And thus the
constitution was kept intire; which upon every sound principle of
government must otherwise have fallen to pieces, had so principal and
constituent a part as the royal authority been abolished, or even
suspended.
[Footnote z: See chapter 7.]
[Footnote a: on Gov. p. 2. c. 19.]