IT there passes through the same forms as in the other house, (except
engrossing, which is already done) and, if rejected, no more notice is
taken, but it passes _sub silentio_, to prevent unbecoming
altercations. But if it is agreed to, the lords send a message by two
masters in chancery (or sometimes two of the judges) that they have
agreed to the same: and the bill remains with the lords, if they have
made no amendment to it. But if any amendments are made, such
amendments are sent down with the bill to receive the concurrence of
the commons. If the commons disagree to the amendments, a conference
usually follows between members deputed from each house; who for the
most part settle and adjust the difference: but, if both houses remain
inflexible, the bill is dropped. If the commons agree to the
amendments, the bill is sent back to the lords by one of the members,
with a message to acquaint them therewith. The same forms are
observed, _mutatis mutandis_, when the bill begins in the house of
lords. And when both houses have done with the bill, it always is
deposited in the house of peers, to wait the royal assent.
THIS may be given two ways: 1. In person; when the king comes to the
house of peers, in his crown and royal robes, and sending for the
commons to the bar, the titles of all the bills that have passed both
houses are read; and the king's answer is declared by the clerk of the
parliament in Norman-French: a badge, it must be owned, (now the only
one remaining) of conquest; and which one could wish to see fall into
total oblivion; unless it be reserved as a solemn memento to remind us
that our liberties are mortal, having once been destroyed by a foreign
force. If the king consents to a public bill, the clerk usually
declares, "_le roy le veut_, the king wills it so to be;" if to a
private bill, "_soit fait come il est desire_, be it as it is
desired." If the king refuses his assent, it is in the gentle language
of "_le roy s'avisera_, the king will advise upon it." 2. By statute
33 Hen. VIII. c. 21. the king may give his assent by letters patent
under his great seal, signed with his hand, and notified, in his
absence, to both houses assembled together in the high house. And,
when the bill has received the royal assent in either of these ways,
it is then, and not before, a statute or act of parliament.
THIS statute or act is placed among the records of the kingdom; there
needing no formal promulgation to give it the force of a law, as was
necessary by the civil law with regard to the emperors edicts: because
every man in England is, in judgment of law, party to the making of an
act of parliament, being present thereat by his representatives.
However, a copy thereof is usually printed at the king's press, for
the information of the whole land. And formerly, before the invention
of printing, it was used to be published by the sheriff of every
county; the king's writ being sent to him at the end of every session,
together with a transcript of all the acts made at that session,
commanding him "_ut statuta illa, et omnes articulos in eisdem
contentos, in singulis locis ubi expedire viderit, publice proclamari,
et firmiter teneri et observari faciat_." And the usage was to
proclaim them at his county court, and there to keep them, that
whoever would might read or take copies thereof; which custom
continued till the reign of Henry the seventh[o].
[Footnote o: 3 Inst. 41. 4 Inst. 26.]
AN act of parliament, thus made, is the exercise of the highest
authority that this kingdom acknowleges upon earth. It hath power to
bind every subject in the land, and the dominions thereunto belonging;
nay, even the king himself, if particularly named therein. And it
cannot be altered, amended, dispensed with, suspended, or repealed,
but in the same forms and by the same authority of parliament: for it
is a maxim in law, that it requires the same strength to dissolve, as
to create an obligation. It is true it was formerly held, that the
king might in many cases dispense with penal statutes[p]: but now by
statute 1 W. & M. st. 2. c. 2. it is declared, that the suspending or
dispensing with laws by regal authority, without consent of
parliament, is illegal.
[Footnote p: Finch. L. 81. 234.]
VII. THERE remains only, in the seventh and last place, to add a word
or two concerning the manner in which parliaments may be adjourned,
prorogued, or dissolved.
AN adjournment is no more than a continuance of the session from one
day to another, as the word itself signifies: and this is done by the
authority of each house separately every day; and sometimes for a
fortnight or a month together, as at Christmas or Easter, or upon
other particular occasions. But the adjournment of one house is no
adjournment of the other[q]. It hath also been usual, when his majesty
hath signified his pleasure that both or either of the houses should
adjourn themselves to a certain day, to obey the king's pleasure so
signified, and to adjourn accordingly[r]. Otherwise, besides the
indecorum of a refusal, a prorogation would assuredly follow; which
would often be very inconvenient to both public and private business.
For prorogation puts an end to the session; and then such bills, as
are only begun and not perfected, must be resumed _de novo_ (if at
all) in a subsequent session: whereas, after an adjournment, all
things continue in the same state as at the time of the adjournment
made, and may be proceeded on without any fresh commencement.
[Footnote q: 4 Inst. 28.]
[Footnote r: Com. Journ. _passim_: _e.g._ 11 Jun. 1572. 5 Apr. 1604. 4
Jun. 14 Nov. 18 Dec. 1621. 11 Jul. 1625. 13 Sept. 1660. 25 Jul. 1667.
4 Aug. 1685. 24 Febr. 1691. 21 Jun. 1712. 16 Apr. 1717. 3 Feb. 1741.
10 Dec. 1745.]
A PROROGATION is the continuance of the parliament from one session to
another, as an adjournment is a continuation of the session from day
to day. This is done by the royal authority, expressed either by the
lord chancellor in his majesty's presence, or by commission from the
crown, or frequently by proclamation. Both houses are necessarily
prorogued at the same time; it not being a prorogation of the house of
lords, or commons, but of the parliament. The session is never
understood to be at an end, until a prorogation: though, unless some
act be passed or some judgment given in parliament, it is in truth no
session at all[s]. And formerly the usage was, for the king to give
the royal assent to all such bills as he approved, at the end of every
session, and then to prorogue the parliament; though sometimes only
for a day or two[t]: after which all business then depending in the
houses was to be begun again. Which custom obtained so strongly, that
it once became a question[u], whether giving the royal assent to a
single bill did not of course put an end to the session. And, though
it was then resolved in the negative, yet the notion was so deeply
rooted, that the statute 1 Car. I. c. 7. was passed to declare, that
the king's assent to that and some other acts should not put an end to
the session; and, even so late as the restoration of Charles II, we
find a proviso tacked to the first bill then enacted[w] that his
majesty's assent thereto should not determine the session of
parliament. But it now seems to be allowed, that a prorogation must be
expressly made, in order to determine the session. And, if at the time
of an actual rebellion, or imminent danger of invasion, the parliament
shall be separated by adjournment or prorogation, the king is
empowered[x] to call them together by proclamation, with fourteen days
notice of the time appointed for their reassembling.
[Footnote s: 4 Inst. 28. Hale of parl. 38.]
[Footnote t: Com. Journ. 21 Oct. 1553.]
[Footnote u: _Ibid._ 21 Nov. 1554.]
[Footnote w: Stat. 12 Car. II. c. 1.]
[Footnote x: Stat. 30 Geo. II. c. 25.]
A DISSOLUTION is the civil death of the parliament; and this may be
effected three ways: 1. By the king's will, expressed either in person
or by representation. For, as the king has the sole right of convening
the parliament, so also it is a branch of the royal prerogative, that
he may (whenever he pleases) prorogue the parliament for a time, or
put a final period to it's existence. If nothing had a right to
prorogue or dissolve a parliament but itself, it might happen to
become perpetual. And this would be extremely dangerous, if at any
time it should attempt to encroach upon the executive power: as was
fatally experienced by the unfortunate king Charles the first; who,
having unadvisedly passed an act to continue the parliament then in
being till such time as it should please to dissolve itself, at last
fell a sacrifice to that inordinate power, which he himself had
consented to give them. It is therefore extremely necessary that the
crown should be empowered to regulate the duration of these
assemblies, under the limitations which the English constitution has
prescribed: so that, on the one hand, they may frequently and
regularly come together, for the dispatch of business and redress of
grievances; and may not, on the other, even with the consent of the
crown, be continued to an inconvenient or unconstitutional length.
2. A PARLIAMENT may be dissolved by the demise of the crown. This
dissolution formerly happened immediately upon the death of the
reigning sovereign, for he being considered in law as the head of the
parliament, (_caput, principium, et finis_) that failing, the whole
body was held to be extinct. But, the calling a new parliament
immediately on the inauguration of the successor being found
inconvenient, and dangers being apprehended from having no parliament
in being in case of a disputed succession, it was enacted by the
statutes 7 & 8 W. III. c. 15. and 6 Ann. c. 7. that the parliament in
being shall continue for six months after the death of any king or
queen, unless sooner prorogued or dissolved by the successor: that, if
the parliament be, at the time of the king's death, separated by
adjournment or prorogation, it shall notwithstanding assemble
immediately: and that, if no parliament is then in being, the members
of the last parliament shall assemble, and be again a parliament.
3. LASTLY, a parliament may be dissolved or expire by length of time.
For if either the legislative body were perpetual; or might last for
the life of the prince who convened them, as formerly; and were so to
be supplied, by occasionally filling the vacancies with new
representatives; in these cases, if it were once corrupted, the evil
would be past all remedy: but when different bodies succeed each
other, if the people see cause to disapprove of the present, they may
rectify it's faults in the next. A legislative assembly also, which is
sure to be separated again, (whereby it's members will themselves
become private men, and subject to the full extent of the laws which
they have enacted for others) will think themselves bound, in interest
as well as duty, to make only such laws as are good. The utmost extent
of time that the same parliament was allowed to sit, by the statute 6
W. & M. c. 2. was _three_ years; after the expiration of which,
reckoning from the return of the first summons, the parliament was to
have no longer continuance. But by the statute 1 Geo. I. st. 2. c. 38.
(in order, professedly, to prevent the great and continued expenses of
frequent elections, and the violent heats and animosities consequent
thereupon, and for the peace and security of the government then just
recovering from the late rebellion) this term was prolonged to _seven_
years; and, what alone is an instance of the vast authority of
parliament, the very same house, that was chosen for three years,
enacted it's own continuance for seven. So that, as our constitution
now stands, the parliament must expire, or die a natural death, at the
end of every seventh year; if not sooner dissolved by the royal
prerogative.
CHAPTER THE THIRD.
OF THE KING, AND HIS TITLE.
THE supreme executive power of these kingdoms is vested by our laws in
a single person, the king or queen: for it matters not to which sex
the crown descends; but the person entitled to it, whether male or
female, is immediately invested with all the ensigns, rights, and
prerogatives of sovereign power; as is declared by statute 1 Mar. st.
3. c. 1.
IN discoursing of the royal rights and authority, I shall consider the
king under six distinct views: 1. With regard to his title. 2. His
royal family. 3. His councils. 4. His duties. 5. His prerogative. 6.
His revenue. And, first, with regard to his title.
THE executive power of the English nation being vested in a single
person, by the general consent of the people, the evidence of which
general consent is long and immemorial usage, it became necessary to
the freedom and peace of the state, that a rule should be laid down,
uniform, universal, and permanent; in order to mark out with
precision, _who_ is that single person, to whom are committed (in
subservience to the law of the land) the care and protection of the
community; and to whom, in return, the duty and allegiance of every
individual are due. It is of the highest importance to the public
tranquillity, and to the consciences of private men, that this rule
should be clear and indisputable: and our constitution has not left us
in the dark upon this material occasion. It will therefore be the
endeavour of this chapter to trace out the constitutional doctrine of
the royal succession, with that freedom and regard to truth, yet mixed
with that reverence and respect, which the principles of liberty and
the dignity of the subject require.
THE grand fundamental maxim upon which the _jus coronae_, or right of
succession to the throne of these kingdoms, depends, I take to be
this: "that the crown is, by common law and constitutional custom,
hereditary; and this in a manner peculiar to itself: but that the
right of inheritance may from time to time be changed or limited by
act of parliament; under which limitations the crown still continues
hereditary." And this proposition it will be the business of this
chapter to prove, in all it's branches: first, that the crown is
hereditary; secondly, that it is hereditary in a manner peculiar to
itself; thirdly, that this inheritance is subject to limitation by
parliament; lastly, that when it is so limited, it is hereditary in
the new proprietor.
1. FIRST, it is in general _hereditary_, or descendible to the next
heir, on the death or demise of the last proprietor. All regal
governments must be either hereditary or elective: and, as I believe
there is no instance wherein the crown of England has ever been
asserted to be elective, except by the regicides at the infamous and
unparalleled trial of king Charles I, it must of consequence be
hereditary. Yet while I assert an hereditary, I by no means intend a
_jure divino_, title to the throne. Such a title may be allowed to
have subsisted under the theocratic establishments of the children of
Israel in Palestine: but it never yet subsisted in any other country;
save only so far as kingdoms, like other human fabrics, are subject to
the general and ordinary dispensations of providence. Nor indeed have
a _jure divino_ and an _hereditary_ right any necessary connexion with
each other; as some have very weakly imagined. The titles of David and
Jehu were equally _jure divino_, as those of either Solomon or Ahab;
and yet David slew the sons of his predecessor, and Jehu his
predecessor himself. And when our kings have the same warrant as they
had, whether it be to sit upon the throne of their fathers, or to
destroy the house of the preceding sovereign, they will then, and not
before, possess the crown of England by a right like theirs,
_immediately_ derived from heaven. The hereditary right, which the
laws of England acknowlege, owes it's origin to the founders of our
constitution, and to them only. It has no relation to, nor depends
upon, the civil laws of the Jews, the Greeks, the Romans, or any other
nation upon earth: the municipal laws of one society having no
connexion with, or influence upon, the fundamental polity of another.
The founders of our English monarchy might perhaps, if they had
thought proper, have made it an elective monarchy: but they rather
chose, and upon good reason, to establish originally a succession by
inheritance. This has been acquiesced in by general consent; and
ripened by degrees into common law: the very same title that every
private man has to his own estate. Lands are not naturally descendible
any more than thrones: but the law has thought proper, for the benefit
and peace of the public, to establish hereditary succession in one as
well as the other.
IT must be owned, an elective monarchy seems to be the most obvious,
and best suited of any to the rational principles of government, and
the freedom of human nature: and accordingly we find from history
that, in the infancy and first rudiments of almost every state, the
leader, chief magistrate, or prince, hath usually been elective. And,
if the individuals who compose that state could always continue true
to first principles, uninfluenced by passion or prejudice, unassailed
by corruption, and unawed by violence, elective succession were as
much to be desired in a kingdom, as in other inferior communities. The
best, the wisest, and the bravest man would then be sure of receiving
that crown, which his endowments have merited; and the sense of an
unbiassed majority would be dutifully acquiesced in by the few who
were of different opinions. But history and observation will inform
us, that elections of every kind (in the present state of human
nature) are too frequently brought about by influence, partiality, and
artifice: and, even where the case is otherwise, these practices will
be often suspected, and as constantly charged upon the successful, by
a splenetic disappointed minority. This is an evil, to which 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 farther than jealousies and murmurs, which time
will effectually suppress; and, if true, the injustice may be remedied
by legal means, by an appeal to those 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 battels, 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 antient imperial Rome, and
the more modern experience of Poland and Germany, may shew 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 them, 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 descents. As in
them, the preference of males 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 them, on failure of the male
line, it descends to the issue female; according to the antient
British custom remarked by Tacitus[a], "_solent foeminarum 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 doctrine
of 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 whom both are descended, be he from whose veins the
blood royal is communicated to each. Thus Mary I inherited to Edward
VI, and Elizabeth inherited to Mary; all born 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.
[Footnote a: _in vit. Agricolae._]
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 or
hereditary right, generally subsisting in the royal person; so the
word, "successors," distinctly taken, must imply that this inheritance
may sometimes be broke 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 ideot, 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 no
where be so properly lodged 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.
4. BUT, fourthly; however the crown maybe limited or transferred, it
still retains it's 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; and the right of the crown vests, _eo instanti_, upon his
heir; either the _haeres natus_, if the course of descent remains
unimpeached, or the _haeres factus_, if the inheritance be under any
particular settlement. So 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 heirs at law: but if the transfer
be clogged with any limitations, conditions, or entails, the lands
must descend in that chanel, so limited and prescribed, and no other.
[Footnote b: 1 Hist. P.C. 61.]
IN these four points consists, as I take it, the constitutional notion
of hereditary right to the throne: which will be still farther
elucidated, and made clear beyond all dispute, from a short historical
view of the successions to the crown of England, the doctrines of our
antient 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 pursuit of
this enquiry we shall find, that from the days of Egbert, the first
sole monarch of this kingdom, even to the present, the four cardinal
maxims above mentioned have ever been held the constitutional canons
of succession. It is true, this 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 always at last returned back into the old hereditary chanel,
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 shew 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 enquire; and is indeed a point of such high
antiquity, as must render all enquiries 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 it's
government and states, and the other loses them; the latter entirely
assimilates or is melted down in the former, and must adopt it's 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.
[Footnote c: Puff. L. of N. and N. b. 8. c. 12. §. 6.]
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
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.
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, seised 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 antient 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 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 the first of the blood royal) who was the son 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_."
[Footnote d: _A.D._ 1066.]
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.
[Footnote e: William of Malmsb. _l._ 3.]
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 it's inherent
properties; the first and principal of which was it's 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 still the
_dernier resort_ of kings) a strong and undisputed title to the
inheritable crown of England.
[Footnote f: Hale, Hist. C.L. c. 5. Seld. review of tithes, c. 8.]
ACCORDINGLY it descended from him to his sons William II and Henry I.
Robert, it must be owned, his eldest son, was kept out of possession
by the arts and violence of his brethren; who proceeded upon a notion,
which prevailed for some time in the law of descents, 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. The real right was
in the empress Matilda or Maud, the daughter of Henry I; the rule of
succession being (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 the empress Maud did not
fail to assert her right by the sword: which dispute was attended with
various success, and ended at last in a compromise, that Stephen
should keep the crown, but that Henry the son of Maud should succeed
him; as he afterwards accordingly did.
HENRY, the second of that name, was the undoubted heir of William the
conqueror; but he had also another connexion in blood, which endeared
him still farther 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,
seised the throne; claiming, as appears from his charters, the crown
by hereditary right[g]: that is to say, he was next of kin to the
deceased king, being his surviving brother; whereas Arthur was removed
one degree farther, being his brother's son, though by right of
representation he stood in the place of his father Geoffrey. And
however flimzey 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 partizans, 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[h], 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[i].
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 second, a succession of six generations,
the crown descended in the true hereditary line. Under one of which
race of princes[k], 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 for ever."
[Footnote g: "_Regni Angliae; quod nobis jure competit haereditario._"
Spelm. _Hist. R. Joh. apud_ Wilkins. 354.]
[Footnote h: Glanv. _l._ 7. _c._ 3.]
[Footnote i: Mod. Un. Hist. xxx. 512.]
[Footnote k: Stat. 25 Edw. III. st. 2.]
UPON Richard the second's resignation of the crown, he having no
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. |
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