where be so properly lodged as in the two houses of parliament, by and with the consent of the reigning sovereign; 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 sovereign, the lords, and the commons, in parliament assembled, our law has expressly lodged it. 4. The crown always hereditary in the wearer of it. 4. But, fourthly; however the crown may be limited or transferred, it still retains its 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. For the right of the crown vests, eo instante, upon his heir; either the hæres natus, if the course of descent remains unimpeached, or the hæres factus, if the inheritance be under any particular settlement. So that there can be no interregnum(c); but, as sir Matthew Hale (d) observes, the right of sovereignty is fully vested in the successor by the very descent of the *crown. And [ *230] 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 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 heir at law; but if the transfer be clogged with any limitations, conditions, or entails, the lands must descend in that channel, so limited and prescribed, and no other. sion to the crown. In these four points consists the constitutional notion of hereditary right to the throne; which will be still further elucidated, and made clear beyond all Concise history dispute, from a short historical view of the successions to the of the succes- crown of England, the doctrines of our ancient 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 inquiry 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 constitutional canons of succession. It is true, the 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 it has generally at last returned, though sometimes after a considerable interval, into the old hereditary channel. 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 show of a title by descent, in order to amuse the people while they gained possession of the kingdom. And, when possession was once gained, they considered it as *the purchase or acquisition of a new state of inheritance, and transmitted it or endeav (c) Therefore, in contemplation of law, Charles II. succeeded to the crown upon the execution of his royal father, and the dates of the statutes and other legal proceedings of [ *231] the reign of Charles II. are reckoned from the oured to transmit it to their own posterity, by a kind of hereditary right of usurpation. King Egbert, A. D. 800, found himself in possession of the throne of the west Saxons, by a long and undisturbed descent from his ancestors of above three Egbert. hundred years. How his ancestors acquired their title, whether by force, by fraud, by contract, or by election, it matters not much to inquire; and is indeed a point of such high antiquity as must render all inquiries 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 its government and states and the other loses them, the latter entirely assimilates with or is melted down in the former, and must adopt its laws and customs(e). And in pursuance of this maxim there has ever been, since the union of the heptarchy in king Egbert (A.D. 827), a general acquiescence under the hereditary monarchy of the west Saxons, throughout all the kingdoms which he united(ƒ). Edmund Ironside. From the accession of 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 the sons of king Ethelwolf succeeded to each other in the kingdom, according to the rule of succession prescribed by their father, and confirmed by the wittena-gemôt, in the heat of the Danish invasions: and also 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 [ *232] 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, seized the whole of it, Edmund's son 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 ancient Saxon line was restored in the person of Edward the Confessor, who was the son of Ethelred II., by his queen Emma, daughter of Richard duke of Normandy. fessor. The Confessor was not indeed the true heir to the crown, being the younger brother of king Edmund Ironside, who had a son Edward, surnamed (from his Edward the Con- 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, surnamed Atheling (which signifies in the Saxon language "illustrious," or of royal blood), who was the son of Edward the outlaw, and grandson of (e) Puff. L. of N. and N. b. 8, c. 12, s. 6. under Egbert, see Turner's Hist. Anglo-Sax ons, Bk. iii. c. 11. Edmund Ironside; or, as Matthew Paris 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." queror. [ *233] William the Norman claimed the crown by virtue of a pretended grant(g) from king Edward the Confessor; a *grant which, if real, was in itself William the Con- utterly invalid; because it was made, as Harold well observed in his reply to William's demand(h), "absque generali senatus et populi conventu et edicto;" words which plainly imply 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. 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, it may reasonably be affirmed, all the inherent properties of the crown were with it transferred also. For, the victory obtained at Hastings being a victory not over the nation collectively, but over the person of Harold (i), the only right that the Conqueror could in strictness 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 its inherent properties; the first and principal of which was its descendibility. Here then we must drop our race of Saxon kings, at least *for a while, [*234] 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 ressort of kings) a strong and undisputed title to the inheritable crown of England. 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 perhaps might proceed upon a notion, which prevailed for some time in the law of descents (though never adopted as the rule of public successions (k)), 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 had at first. William II. Henry I. (g) "Although the Conqueror appears to have called himself rex hereditarius in some charters, historians and antiquaries are agreed that this could only mean heir under the supposed will of the Confessor; for the only dispute as to his title that has ever been raised is whether he took by the sword or as conquæstor by purchase under the supposed will or gift of the Confessor, about the exist ence of which much controversy has always been held." Per Lord Brougham, Birt whistle v. Vardill, 7 Cl. & F. 947. (h) William of Malmsb. 1, 3. (i) Hale, Hist. C. L. c. 5; Seld. Review of Tithes, c. 8. (k) See Lord Lyttleton's Life of Henry II., vol. 1, p. 467. Stephen. Stephen of Blois, who succeeded him, was indeed the grandson of the Conqueror, by Adela 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, excepting his elder brother Theobald; who was earl of Blois, and therefore seems to have waived, as he certainly never insisted on, so troublesome and precarious a claim. 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 therefore he rather chose to rely on a title by election(7), while the empress Maud did not fail to assert her hereditary right by the *sword; which dispute was attended with various success, and ended at [*235] last in the compromise made at Wallingford, 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 (next after his mother Matilda) the undoubted heir of William the Conqueror; but he had also another connexion in blood, which endeared him still further to the English. He Henry II. 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 (beside 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 them 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. Richard I. John. From Henry II. the crown descended to his eldest surviving 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, seized the throne; claiming, as appears from his charters, the crown by hereditary right(m): 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 flimsy this title, and those of William Rufus and Stephen of Blois, may appear at this distance to us, after the law of descents has now been *settled [*236] for 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, in the reign of his father king Henry II., it was a point undetermined(n); 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. However, on the death of Arthur and his sister Eleanor without issue, a clear and indisputable title (1)" Ego Stephanus Dei gratiâ assensu cleri et populi in regem Anglorum electus, &c." Cart. A. D. 1136; Ric. de Hagustald. 314; Hearne ad Guil. Neubr. 711. (m) - Regni Anglia; quod nobis jure competit hæreditario." Spelm. Hist. R. Joh apud Wilkins, 354. (n) Glanv. 1. 7, c. 3. Henry III. Richard II. vested in Henry III. the son of John: and from him to Richard II., a succession of six generations, the crown descended in the true hereditary line. Under one of which race of princes(0) we find a declaration by parliament to this effect: 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. Upon Richard II.'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 Gaunt, 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 (p). But Henry [ *237] 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 impossible for any other title to be asserted with safety; and he became king under the title of Henry IV, But, as sir Matthew Hale remarks(9), 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(r)), but as a successor, descended by right line of the blood royal; as appears from the rolls of parliament in those times (s). And in *order to this he set up Henry IV. a show of two titles: the one, upon the pretence of being the first of (0) Stat. 25 Edw. 3, st. 2. (r) Seld. Tit. Hon. 1, 3. (3) The proceedings, as stated in the Parliament Roll (vol. 3), were as follows:- In the first place, Richard II., "after absolving all his subiects from their allegiance and renouncing the name of king, and the honour, regality, and celsitude royal, purely, voluntarily, simply, and absolutely, by the best way and form that the same could be done, did confess, acknowledge, repute, and truly and out of certain knowledge judge himself to have been and to be utterly insufficient and unuseful for the rule and government of the said kingdoms and dominions, and declared that for his notorious demerits he deserved to be deposed." We then find this abdication, cession, or renunciation of the crown "unanimously admitted by the lords spiritual and temporal, and the commons of the kingdom assembled in a great multitude in parliament," or rather in convention, "the chair of state being then empty, without any person whatsoever presiding therein." In the next place, we find the convention acting VOL. I.-21 [ *238] judicially and "for removing all scruples and taking away sinister suspicions, charging the king with very many crimes and defects very often committed by him, and with the general ill-governance of his kingdom, by reason of which they adjudged him unworthy to reign." The record contains no fewer than fifty articles of impeachment, setting forth elaborately the late violent and unconstitutional proceedings, and all the "frauds and deceitful tricks of the said king." After these articles and objections, the record proceeds thus: "And because it seemed to all the estates of the realm that these causes of crimes and defaults were sufficient and notorious to depose the said king; considering also his own confession of his insufficiency and other things contained in his said renunciation and cession openly delivered; all the said states did unanimously consent that ex abundante they should proceed unto a deposition of the said king for the greater security and tranquillity of the people and benefit of the kingdom." Whereupon a commission consisting of two bishops, two peers, two knights, and one justice, was regularly appointed by the unanimous consent of the said |