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 acknowledging his present possession, but not determining either way, whether that possession was de jure or de facto merely. However, he soon after married Margaret of York, the undoubted heiress of the Conqueror, and thereby gained (as Sir Edward Coke declares) by much his best

' daught, title to the crown."

wife.

King Henry VIII., the issue of this marriage, succeeded to the crown by clear indisputable hereditary right, and transmitted it to his children in successive order. But during his reign the parliament several times regulated the succession to the crown. And first, by statute 25 Hen. VIII. c. 12, after reciting the mischiefs which have and may ensue by disputed titles, because no perfect and substantial provision hath been made by law concerning the succession, it is enacted, that the crown shall be entailed to his majesty, and the sons or heirs male of his body; and, in default of such sons, to the lady Elizabeth (who is declared to be the king's eldest issue female, in exclusion of the lady Mary, on account of her supposed illegitimacy

Blackst. Com. b. i. c. iii. p. 205. 4 Inst. 37. Sir E. Coke must have meant to say that his line gained their best title; for Hen. VII. himself could clearly gain no title to the crown by marrying the rightful queen.

by the divorce of her mother queen Catherine), and to the lady Elizabeth's heirs of her body; and so on from issue female to issue female and the heirs of their bodies, by course of inheritance according to their ages, as the crown of England hath been accustomed and ought to go, in case where there be heirs female of the same; and in default of issue female, then to the king's right heirs for ever.

This act was, however, repealed with regard to the settlement of the crown, upon the king's divorce from Ann Boleyn, by the statute 28 Hen. VIII. c. vii. whereby the lady Elizabeth is, as well as the lady Mary, bastardised, and the crown settled on the king's children by queen Jane Seymour and his future wives; and, in defect of such children, then with this remarkable remainder, to such persons as the king by letters patent, or last will and testament, should limit and appoint the same. But (as Blackstone informs us) "this power was never carried into execution; for by stat. 25 Henry VIII. c. i., 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 respective bodies; which succession took effect accordingly, being indeed no other than the usual course of law with regard to the descent of the crown." Hallam, however, shews that there are strong grounds for believing that Henry VIII. executed by his will the power vested in him by the stat. 28 Henry VIII. c. vii., and thereby entailed the crown, in default of issue from his children, upon the descendants of his younger sister, Mary duchess of Suffolk, before those of Margaret queen of Scots. The authenticity of Henry VIII.'s will was indeed doubted; it being alleged, that when he was at the last extremity some one put to the instrument a stamp which the king in the latter part of his life was accustomed to use instead of

making his signature. But Hallam is of opinion that the presumed signature is clearly made with a pen, and not with a stamp; and maintains with great reason, that as the instrument is attested by many witnesses, and cannot be proved to be a forgery, the legal presumption turns much in its favour. The will, however, could not have taken effect until after the death of queen Elizabeth.

To remove any doubt which might remain in the minds of the people as to the effect of these statutes, it is declared by the stat. 1 of queen Mary, stat. 2. c. i., that “the crown of these realms is most lawfully, justly, and rightly descended and come to the queen's highness that now is, being the very, true, and undoubted heir and inheritrix thereof." And again, upon the queen's marriage with Philip of Spain, in the statute which settles the preliminaries of that match (st. 1 Mary, st. 3. c. ii.), the hereditary right to the crown is thus asserted and declared, “as touching the right of the queen's inheritance in the realm of England, the children, whether male or female, shall succeed in them according to the known laws, statutes, and customs of the same." Blackstone remarks, that this determination of parliament, that the succession shall continue in the usual course, seems tacitly to imply a power of new-modelling and altering it, in case the legislature had thought proper.

Queen Elizabeth's right is recognised by an act passed at her accession (stat. 1 Eliz. c. iii.) in still stronger terms than her sister's, the parliament acknowledging" that the queen's highness is, and in very deed of most meer right ought to be, by the laws of God and the laws and statutes of this realm, our most rightful and lawful sovereign and liege lady and queen; and that her highness is rightly, lineally,

1 Hallam, Const. Hist. vol. i. p. 395-7, &c. And see stat. 2 Geo. IV. c. xxiii. authorising the use of a stamp instead of the sign manual.

and lawfully descended 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 again; by the stat. 13 Eliz. c. i. the right of parliament to direct the succession of the crown is asserted in the most explicit words. "If any person shall hold, affirm, or maintain, that the common laws of this realm, not altered by parliament, ought not to direct the right to the crown of England; or that the queen's majesty, with and by the authority of parliament, is not able to make laws and statutes of sufficient force and validity to limit and bind the crown of this realm, and the descent, limitation, inheritance, and government thereof,-such person so holding, affirming, or maintaining, shall, during the life of the queen, be guilty of high treason; and, after her decease, shall be guilty of a misdemeanor, and forfeit his goods and chattels.”

The line of Henry VIII. becoming extinct by the death of queen Elizabeth, king James succeeded to the throne as king James I. of England, in right of his grandmother Margaret, eldest daughter of Henry VII. by Elizabeth of York his queen, who married king James IV. of Scotland. In him, Blackstone informs us, centred all the claims of different competitors from the Conquest downwards, he being indisputably the lineal heir of the Conqueror, and even of the Saxon monarchs.

This position, however, is correct only on the assumption that the will of Henry VIII., whereby he (by virtue of the statute 28 Hen. VIII. c. vii.) entailed the crown on the descendants of his youngest sister, Mary duchess of Suffolk, before those of Margaret queen of Scots, is not authentic: for there were descendants of Mary, living at the decease of queen Elizabeth, by her two daughters

Frances second duchess of Suffolk, and Eleanor countess of Cumberland; and they were entitled to succeed to the crown under that entail before king James. But the doubtful legitimacy of lord Beauchamp, son of the earl of Hertford by Catherine Grey, rendered it somewhat questionable from which of the two daughters of Brandon duke of Suffolk, by the king's sister, the hereditary stock was to be derived.1

The extraordinary pedigree of James I. Blackstone believes to have encouraged the notions of divine right in that king; while Hallam attributes them to the doubtfulness of his parliamentary title. Parliament, however, admitted none but a human positive right; and by stat. 1 Jac. I. c. i. did "recognise and acknowledge, that immediately upon the dissolution and decease of Elizabeth, late queen of England, the imperial crown thereof did by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent majesty, as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm."

"But," continues our great commentator, "wild and absurd as the doctrine of divine right undoubtedly is, it is still more astonishing, that when so many human hereditary rights had centered in this king, his son and heir king Charles I. should be told, by those infamous judges who pronounced his unparalleled sentence, that he was an elective prince, elected by his people, and therefore accountable to them, in his own proper person, for his conduct. The confusion, instability, and madness, which followed the fatal catastrophe of that pious and unfortunate prince, will be a standing argument in favour of hereditary monarchy to all future ages, as they proved at last to the then deluded people, who, in order to recover

I Hallam, Const. Hist. vol. i. p. 395, &c.