ceeded to the crown, in preference to Richard his younger brother, and Elizabeth his eldest sister. Like lands or tenements, the crown, on failure of the male line, descends to the issue female. 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." Thus, as the late duke of Kent would have succeeded to his brother king William IV., if he had survived that prince, her majesty queen Victoria, as the representative of her deceased father, inherited the throne from king William, to the exclusion of her uncles, the dukes of Cumberland, Cambridge, and Sussex. "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.

"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 broken 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 idiot, 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 exercised 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 prejudicial to his own descendants; and therefore in the kings, lords, and commons in parliament assembled, our laws have expressly lodged 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; but, as Sir Matthew Hale1 observes, the right of the 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 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."

Hale, Pleas of the Crown, 61.

H

"In these four points, as I take it, consists the constitutional notion of hereditary right to the throne."1

The general hereditary succession to the crown of England having thus been set forth, we will proceed to take a brief review of those instances wherein parliament has asserted or exercised the right of altering or limiting the succession.

The first of those cases in point of time is that of Henry IV., who, having come to the throne by a doubtful title, after dethroning king Richard II., sought to strengthen it by an appeal to parliament; and thus that assembly actually asserted their right of new-settling the succession to the crown. A statute of the seventh year of that king (c. ii.) enacted accordingly, "that the inheritance of the crown and realms of England and France, and all other the king's dominions, shall be set and remain (soit mys et demurge) in the person of our sovereign lord the king, and the heirs of his body issuing ;" and prince Henry was thereby 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 Humphrey, the king's sons, and the heirs of their bodies respectively. Blackstone remarks, that it 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 he observes, that the parliament cautiously avoided declaring any sentiment of Henry's original title. Sir E. Coke more than once declares, that at the time of passing this act the right of the crown was in the descent from Philippa, daughter and heir to Lionel duke of Clarence, third son of king Edward III., whom (through her

1 Blackst. Com. b. i. c. iii. p. 191, &c.

2 Id. p. 203. Crabbe, Hist. of Com. L. c. xxii. p. 333.

marriage with Edmond Mortimer, earl of March,) the house of York represented. The crown, however, descended regularly, according to the statute, from Henry IV. to his son and grandson Henry V. and Henry VI.

The next case to which we must advert is that of Henry VII., whose title to the crown Blackstone characterises as the most remote and unaccountable that was ever set up. He claimed under a descent from John of Gant (whose title was now exploded), and the claim was through John earl of Somerset, a bastard son, begotten by John of Gant upon Catherine Swinford, who was legiti mated by stat. 20 Richard II. It must, however, be remarked, that Blackstone's assertion, on the authority of Coke (4 Inst. 37), that in the act of legitimation there was an express reservation excluding the right of succession to the throne, has been discovered to be unfounded."

Immediately after the battle of Bosworth Field, the earl of Richmond assumed the regal dignity, under the style of king Henry VII., the right of the crown then being, as Sir E. Coke declares," in Elizabeth, eldest daughter of Edward IV.; and his possession was established by a parliament holden the first year of his reign. "In the act for which purpose," says Blackstone," the parliament seems to have copied the caution of their predecessors in

1 4 Inst. 37, 205.

* In the original rolls of parliament, the exception of the right of succession to the throne is not contained; but it was introduced by interlineation on the patent roll subsequently to the grant of legitimation, and was included in the confirmation by Henry IV. It is clear that the operative grant was the statute of R. II.; and as that statute legitimated John of Gant's children for all purposes, without exception, they were thereby made capable of inheriting the crown. Sir H. Nicholas, Observ. on the State of Histor. Literature (London, 1830), p. 176.

3 4 Inst. 37.