hereditary title: after which he is generally believed to have murdered his two nephews; upon whofe death the right of the crown devolved to their fifter Elizabeth.

THE tyrannical reign of king Richard III gave occafion to Henry earl of Richmond to affert his title to the crown. title the most remote and unaccountable that was ever fet up, and which nothing could have given fuccefs to, but the univerfal deteftation of the then ufurper Richard. For, befides that he claimed under a defcent from John of Gant, whofe title was now exploded, the claim (fuch as it was) was through John earl of Somerset, a bastard fon, begotten by John of Gant upon Catherine Swinford. It is true, that, by an act of parliament 20 Ric. II, this fon was, with others, legitimated and made inheritable to all lands, offices, and dignities, as if he had been born in wedlock: but ftill, with an exprefs refervation of the crown, "excepta dignitate regali'."

NOTWITHSTANDING all this, immediately after the battle of Bofworth field, he affumed the regal dignity; the right of the crown then being, as fir Edward Coke exprefsly declares, in Elizabeth, eldest daughter of Edward IV: and his poffeffion was established by parliament, holden the first year of his reign. In the act for which purpofe, the parliament feems to have copied the caution of their predeceffors in the reign of Henry IV: and therefore (as lord Bacon the hiftorian of this reign obferves) 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 feem to be created and conferred upon him; and therefore a middle way was rather chofen, by way (as the noble hiftorian expreffes it) of establishment, and that under covert and indifferent words, "that the in"heritance of the crown fhould reft, remain, and abide "in king Henry VII and the heirs of his body:" thereby providing for the future, and at the fame time acknowleging his prefent poffeffion; but not determining either way,

4

Init. 36.

s Ibid. 37.

whether

whether that poffeffion was de jure or de facto merely. How ever, he foon after married Elizabeth of York, the undoubted heiress of the conqueror, and thereby gained (as fir Edward Coke declares) by much his best title to the crown. Whereupon the act made in his favour was fo much difregarded, that it never was printed in our statute books.

HENRY the eighth, the iffue of this marriage, fucceeded to the crown by clear indifputable hereditary right, and tranfmitted it to his three children in fucceffive order. But in his reign we at feveral times find the parliament bufy in regulating the fucceffion to the kingdom. And, first, by statute 25 Hen. VIII. c. 12. which recites the mifchiefs which have and may enfue by difputed titles, because no perfect and fubftantial provision hath been made by law concerning the fucceffion; and then enacts, that the crown fhall be entailed to his majesty, and the fons or heirs male of his body; and in default of such fons to the lady Elizabeth (who is declared to be the king's eldeft iffue female, in exclufion of the lady Mary, on account of her fuppofed illegitimacy by the divorce of her mother queen Catherine) and to the lady Elizabeth's heirs of her body; and fo on from iffue female to iffue female, and the heirs of their bodies, by courfe of inheritance according to their ages, as the crown of England hath been accuftomed and ought to go, in cafe where there be heirs female of the fame: and in default of iffue female, then to the king's right heirs for ever. This fingle ftatute is an ample proof of all the four pofitions we at first fet out with.

BUT, upon the king's divorce from Ann Boleyn, this ftatute was, with regard to the fettlement of the crown, repealed by statute 28 Hen. VIII. c. 7. wherein the lady Elizabeth is alfo, as well as the lady Mary, baftardized, and the crown fettled on the king's children by queen Jane Seymour, and his future wives; and, in defect of fuch children, then with this remarkable remainder, to fuch perfons as the king by letters patent, or laft will and teftament, fhould limit and

appoint the fame. A vaft power; but, notwithstanding, as it was regularly vefted in him by the fupreme legislative authority, it was therefore indifputably valid. But this power was never carried into execution; for by ftatute 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 refpective bodies; which fucceffion took effect accordingly, being indeed no other than the ufual course of the law, with regard to the defcent of the crown.

BUT left there fhould remain any doubt in the minds of the people, through this jumble of acts for limiting the fucceffion, by ftatute 1 Mar. p. 2. c. 1. queen Mary's hereditary right to the throne is acknowleged and recognized in thefe words: "the crown of thefe realms is moft lawfully, "juftly, and rightly defcended and come to the queen's

66

highness that now is, being the very, true, and undoubt"ed heir and inheritrix thereof." And again, upon the queen's marriage with Philip of Spain, in the ftatute which fettles the preliminaries of that match', the hereditary right to the crown is thus afferted and declared: “as touching the "right of the queen's inheritance in the realm and domi"nions of England, the children, whether male or female, "fhall fucceed in them, according to the known laws, fta"tutes, and cuftoms of the fame." Which determination of the parliament, that the fucceflion fball 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 acceffion, her right is recognized in ftill ftronger terms than her fifter's; the parliament acknowleging","that the queen's highness is, and in very deed "and of moft mere right ought to be, by the laws of God, "and the laws and ftatutes of this realm, our most lawful "and rightful fovereign liege lady and queen; and that

ti Mar. p. 2. c. 2.

u Stat. 1 Eliz. c. 3.

"her

BOOK 1. "her highness is rightly, lineally, and lawfully defcended 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 fame reign, by ftatute 13 Eliz. c. 1. we find the right of parliament to direct the fucceffion of the crown afferted in the most explicit words. "If any person shall hold, af"firm, 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 ftatutes of fufficient force and validity, to "limit and bind the crown of this realm, and the defcent, "limitation, inheritance, and government thereof;-fuch "perfon, fo holding, affirming, or maintaining, fhall, during "the life of the queen, be guilty of high treafon; and after "her decease shall be guilty of a misdemefnor, and forfeit "his goods and chattels."

:

On the death of queen Elizabeth, without iffue, the line of Henry VIII became extinct. It therefore became neceffary to recur to the other iffue of Henry VII, by Elizabeth of York his queen whose eldest daughter Margaret having married James IV king of Scotland, king James the fixth of Scotland, and of England the firft, was the lineal defcendant from that alliance. So that in his perfon, as clearly as in Henry VIII, centered all the claims of different competi tors, from the conqueft downwards, he being indifputably the lineal heir of the conqueror. And, what is ftill more remarkable, in his perfon alfo centered the right of the Saxon monarchs, which had been fufpended from the conqueft till his acceffion. For, as was formerly obferved, Margaret the fifter of Edgar Atheling, the daughter of Edward the outlaw, and grand-daughter of king Edmund Ironfide, was the perfon in whom the hereditary right of the Saxon kings, fuppofing it not abolished by the conqueft, refided. She married Malcolm king of Scotland; and Henry II, by a defcent from Matilda their daughter, is generally called

the

the restorer of the Saxon line. But it must be remembered, that Malcolm by his Saxon queen had fons 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 perfon every poffible 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 fomething divine in this right, and that the finger of Providence was visible in it's perfervation. Whereas, though a wife institution, it was clearly a human inftitution; and the right inherent in him no natural, but a pofitive, right. And in this and no other light was it taken by the English parliament; who by sta'tute 1 Jac. I. c. 1. did "recognize and acknowlege, that "immediately upon the diffolution and decease of Elizabeth "late queen of England, the imperial crown thereof did by "inherent birthright, and lawful and undoubted fucceffion, "defcend and come to his most excellent majefty, as being "lineally, justly, and lawfully, next and fole 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 fought for among the aborigines of the island, the antient Britons; among whofe princes indeed fome have gone to fearch it for him ".

BUT, wild and abfurd as the doctrine of divine right most undoubtedly is, it is ftill more aftonishing, that when fo many human hereditary rights had centered in this king, his

w Elizabeth of York, the mother of queen Margaret of Scotland, was heirefs of the house of Mortimer. And Mr. Carte obferves, that the house of Mortimer, in virtue of it's defcent from

VOL. I.

Gladys only fifter to Lewellin ap Jorwerth the great, had the true right to the principality of Wales. Hift, Eng. iii. 705.

fon