ous 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 son of a daughter. So that Ste phen was little better than a mere ufurper; and therefore he rather chofe to rely on a title by election ", while the empress Maud did not fail to affert her hereditary right by the sword: which difpute was attended with various success, and ended at laft in the compromife 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 mo ther 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 [201] from Edmund Ironfide, the last of the Saxon race of hereditary kings. For Edward the outlaw, the fon of Edmund Ironfide, had (befides Edgar Atheling, who died without iffue) a daughter Margaret, who was married to Malcolm king of Scotland; and in her the Saxon hereditary right refided. By Malcolm the had feveral children, and among the rest 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 hiftories 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 childlefs, the right vested in his nephew Arthur, the fon of Geoffrey his next brother: but John, the youngest son of king Henry, feised the throne; claiming, as appears from his charters, the crown by hereditary right i: "Ego Stephanus Dei gratia affenfu " cleri et populi in regem Anglorum electus "&c."(Cart.A.D.1136.Ric.de Hagufald. 314. Hearne ad Guil. Neubr.711.) i “—Regni Angliae; quod nobis jure competit baereditario." Spelm. Hift. R. Job. apud Wilkins 354. that that is to fay, he was next of kin to the deceased 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, but unlettered, ancestors. Nor indeed can we wonder at the number of partizans, who efpoufed the pretenfions 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 representation, 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 ftocks, or the proximity of degree, fhall take place *. However, on the death of Arthur [202] and his fifter Eleanor without iffue, a clear and indisputable title vested in Henry III the son 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 resulted to the iffue of his grandfather Edward III. That king had many children, befides his eldeft, Edward the black prince of Wales, the father of Richard II: but to avoid confufion I fhall only mention i Glanv. 1. 7. c. 3• 1 Stat. 25 Edw. III. A. 2, three; 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 fucceffion 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 also confirmed in parliament ". But Henry duke of Lancaster, the fon 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 griev ances of the fubject, it was impoffible 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 first of the blood royal [203] in the entire 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 houfe 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 impofed 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 entire 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. Standford's geneal. hist. 245. a Hift. C. L. c. 5. Seld, tit. hon. 1. 3. HOWEVER, HOWEVER, as in Edward the third's time we find the par liament approving and affirming the law of the crown, as before stated, so in the reign of Henry IV they actually exerted their right of new-fettling the fucceffion to the crown. And 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 person 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 and the heirs of his body iffuing, with remainder to the lord Thomas, lord John, and lord Humphry, the king's fons, 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 ferves to fhew that it was then generally understood, that the king and parliament had a right to new-model and regulate the fucceffion to the crown: and we may also observe, 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 [204] 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 house of York afferted their dormant title; and, after imbruing the kingdom in blood and confufion for feven years together, at laft eftablished 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 submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honours conferred' and all acts done, by thofe who were now called the ufurpers, Pfait mys et demeerge. 94 Inft. 37. 205. not tending to the disherifon of the rightful heir. In ftatute 1 Edw. IV. c. 1. the three Henrys are stiled, "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 short time, and was then depofed by Richard his unnatural uncle, who immediately ufurped the royal dignity; having previously infinuated to the populace a suspicion of bastardy in the children of Edward IV. to make a fhew of fome 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. A 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 descent from John of Gant, whose title was now exploded, the claim (fuch as it was) was through John earl of Somerfet, a baftard fon, begotten by John of Gant upon Catherine Swinford. It is true, that, by an act [205] 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 Bosworth 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 parlia 4 Inft. 36. Ibid. 37. ment |