And therefore, as the Englifh laws ftill remained in force, he muft neceffarily take the crown fubject to those laws, and with all it's inherent properties; the firft and principal of which was it's defcendibility. Here then we must drop our race of Saxon kings, at leaft for a while, and derive our defcents from William the conqueror as from a new stock, who acquired by right of war (fuch as it is, yet ftill the dernier refort of kings) a ftrong and undisputed title to the inheritable crown of England. ACCORDINGLY it defcended from him to his fons William II and Henry I. Robert, it must be owned, his eldest fon, was kept out of poffeffion by the arts and violence of his brethren; who perhaps might proceed upon a notion, which prevailed for fome time in the law of defcents, (though never adopted as the rule of public fucceffions) that when the eldest fon was already provided for, (as Robert was conftituted duke of Normandy by his father's will) in fuch a cafe the next brother was entitled to enjoy the reft of their father's inheritance. But, as he died without iffue, Henry at last had a good title to the throne, whatever he might have at firft. STEPHEN of Blois, who fucceeded him, was indeed the grandfon of the conqueror, by Adelicia his daughter, and claimed the throne by a feeble kind of hereditary right: not as being the neareft 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 feems to have waved, as he certainly never insisted on, fo troublesome and precaricus a claim. The real right was in the emprefs Matilda or Maud, the daughter of Henry I; the rule of fucceffion being (where women are admitted at all) that the daughter of a fon fhall be preferred to the fon of a daughter. So that Stephen was little better than a mere ufurper; and therefore he rather chofe to rely on a title by election ", while the empress g See lord Lyttleton's Life of Henry "clri et populi in regem Anglorum electus JI. Vol. I. pag. 467. "&c."(Cart.A.D.1136.Ric. de Haguh"Ego St.phanus Dei gratia affenfu ftald. 314. Hearne ad Guil Neubr. 711.) Maud Maud did not fail to affert her hereditary right by the fword: which difpute was attended with various fuccefs, and ended at laft in the compromise made at Wallingford, that Stephen fhould keep the crown, but that Henry the fon of Maud fhould fucceed him; as he afterwards accordingly did. HENRY, the fecond 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 him ftill farther to the English. He was lineally defcended from Edmund Ironfide, the laft of the Saxon race of hereditary kings. For Edward the outlaw, the fon of Edmund Ironfide, had (befides Edgar Atheling, who died without issue) a daughter Margaret, who was married to Malcolm king of Scotland; and in her the Saxon hereditary right refided. By Malcolm fhe had feveral children, and among the reft Matilda the wife of Henry I, who by him had the emprefs Maud, the mother of Henry II. Upon which account the Saxon line is in our histories frequently faid to have been restored in his perfon: though in reality that right fubfifted in the fons of Malcolm by queen Margaret; king Henry's best title being as heir to the conqueror, FROM Henry II the crown defcended to his eldest fon Richard I, who dying childless, the right vested in his nephew Arthur, the fon of Geoffrey his next brother: but John, the youngest son of king Henry, feifed the throne; claiming, as appears from his charters, the crown by hereditary right : that is to fay, he was next of kin to the deceafed king, being his furviving brother: whereas Arthur was removed one degree farther, being his brother's fon, though by right of reprefentation he stood in the place of his father Geoffrey. And however flimfy this title, and thofe of William Rufus and Stephen of Blois, may appear at this distance to us, after the law of defcents hath now been fettled for fo many centuries, they were fufficient to puzzle the understandings of our brave, 1 “—Regni Angliae; quod nobis jure competit baereditario." Spelm. Hift. R. Jeb. apud Wilkins 354. 4 but but unlettered, ancestors. Nor indeed can we wonder at the number of partizans, who espoused the pretensions of king John in particular; fince even in the reign of his father king Henry II, it was a point undetermined, whether, even in common inheritances, the child of an elder brother should fucceed to the land in right of reprefentation, or the younger furviving brother in right of proximity of blood. Nor is it to this day decided in the collateral fucceffion to the fiefs of the empire, whether the order of the stocks, or the proximity of degree, fhall take place. However, on the death of Arthur and his fifter Eleanor without iffue, a clear and indifputable title vested in Henry III the fon of John: and from him to Richard the fecond, a fucceffion of fix generations, the crown defcended in the true hereditary line. Under one of which race of princes 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 Eng"land or elsewhere, ought to bear the inheritance after the "death of their ancestors. Which law our fovereign lord "the king, the prelates, earls, and barons, and other great "men, together with all the commons in parliament affem❝bled, do approve and affirm for ever." UPON Richard the fecond's refignation of the crown, he having no children, the right refulted to the iffue of his grand, father Edward III. That king had many children, besides his eldeft, Edward the black prince of Wales, the father of Richard II: but to avoid confusion I fhall only mention three; William his fecond fon, who died without iffue; Lionel duke of Clarence, his third fon; and John of Gant duke of Lancaster, his fourth. By the rules of fucceflion therefore the posterity of Lionel duke of Clarence were entitled to the throne, upon the refignation of king Richard; and had accordingly been declared by the king, many years before, the prefumptive heirs of the crown: which declaration was alfo confirmed in parliament ". But Henry duke of Lancaster, the fon of John of Gant, having then a large i Glanv. 1. 7. c. 3. k Mod. Un. Hift. xxx. 512. 1 Stat. 25 Edw. III. ft. 2. army army in the kingdom, the pretence of raifing which was to recover his patrimony from the king, and to redrefs the griev ances of the fubject, it was impoflible for any other title to be afferted with any fafety; and he became king under the title of Henry IV. But, as fir Matthew Hale remarks ", though the people unjustly affifted Henry IV in his ufurpation 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°) but as a fucceffor, defcended by right line of the blood royal; as appears from the rolls of parliament in thofe times. And in order to this he fet up a fhew of two titles; the one upon the pretence of being the firft 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 defcended: the other, by reviving an exploded rumour, first propagated by John of Gant, that Edmond earl of Lancafter (to whom Henry's mother was heirefs) was in reality the elder brother of king Edward I; though his parents, on account of his perfonal deformity, had imposed him on the world for the younger; and therefore Henry would be entitled to the crown, either as fucceffor to Richard II, in cafe the intire male line was allowed a preference to the female; or, even prior to that unfortunate prince, if the crown could defcend through a female, while an entire male line was exifting. And HOWEVER, as in Edward the third's time we find the parliament approving and affirming the law of the crown, as before ftated, fo in the reign of Henry IV they actually exerted their right of new-fettling the fucceffion to the crown. this was done by the ftatute 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, fhall be fet and remain in the perfon of our fovereign lord "the king, and in the heirs of his body iffuing;" and prince Henry is declared heir apparent to the crown, to hold to him n Hift. C. L. c. 5. Seld. tit. hon. 1. 3. Pfeit mys et democrge. and and the heirs of his body iffuing, with remainder to lord Thomas, lord John, and lord Humphry, the king's fons, and the heirs of their bodies refpectively: which is indeed nothing more than the law would have done before, provided Henry the fourth had been a rightful king. It however ferves to fhew that it was then generally understood, that the king and parliament had a right to new-model and regulate the fuccellion to the crown: and we may also obferve, with what caution and delicacy the parliament then avoided declaring any fentiment of Henry's original title. However fir Edward Coke more than once exprefsly declares, that at the time of paffing this act the right of the crown was in the defcent from Philippa, daughter and heir of Lionel duke of Clarence. NEVERTHELESS the crown defcended regularly from Henry IV to his fon and grandfon Henry V and VI; in the latter of whofe reigns the houfe of York afferted their dormant title; and, after imbruing the kingdom in blood and confufion for feven years together, at laft established it in the perfon of Edward IV. At his acceffion to the throne, after a breach of the fucceffion that continued for three defcents, and above threefcore years, the diftinction of a king de jure and a king de facto began to be first taken; in order to indemnify fuch as had fubmitted 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 ufurpers, not tending to the difherifon of the rightful heir. In ftatute 1 Edw. IV. c. 1. the three Henrys are ftiled, "late kings of England fucceffively in dede, and not of ryght.” And, in all the charters which I have met with of king Edward, whereever he has occafion 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 fons and a daughter; the eldest of which fons, king Edward V, enjoyed the regal dignity for a very fhort time, and was then depofed by Richard his unnatural uncle, who immediately ufurped the royal dignity; having previously infinuated to the populace a fufpicion of bastardy in the children of Edward IV. to make a fhew of fome 94 Inft. 37. 205. hereditary' |