in their name had been assembled in form of Parliament,' and 'how that the Court of Parliament is of such authority, and the people of this land of such nature and disposition, as experience teacheth that manifestation and declaration of any truth or right made by the Three Estates of this Realm assembled in Parliament, and by authority of the same, maketh before all other things most faith and certainty,' proceeded to declare Richard 'very and undoubted King of this realm of England, as well by right of consanguinity and inheritance as by lawful election, consecration, and coronation;' and entailed the crown on the heirs of his Parliament body, particularly his son Edward, Prince of Wales, who on his issue. was thereby declared heir apparent.' The crown entailed by Henry VII. The crown is entailed by Parliament on him and his issue. Henry Tudor, who in default of a legitimate heir of the house of Lancaster, was recognized, without any legal hereditary claim, as the head of the Lancastrian party, obtained the crown partly by the victory at Bosworth (22 August, 1485), but mainly by the general acquiescence of the nation. His best and only legal title was the Act of Parliament by which it was ordained and enacted by the assent of the Lords and at the request of the Commons that the inheritance of the crowns of England and France, and all dominions appertaining to them, should remain in Henry VII. and the heirs of his body for ever, and in none other.' 'Words,' remarks Hallam, 'studiously ambiguous, which, while they avoid the assertion of an hereditary right that the public voice repelled, were meant to create a parliamentary title, before which the pretensions of lineal descent were to give way.'3 Henry VII. was, in fact, made by Parliament the stock of a new dynasty, to the exclusion of the whole house of York; but the hereditary claims of that house were happily merged in the parliamentary title of the Tudors by the subsequent marriage of the King with the daughter of Edward IV. 1 Rot. Parl. vi. 240-242. 4 The words of the Act settling the crown upon Henry VII. have been substantially carried out, every subsequent sovereign of England having been a descendant-although not, since the Revolution, heir of his body. In the reign of Henry VIII. the succession to the crown Parliamenwas repeatedly altered by legislative enactment. tary settlements of the VIII. c. 22. (1) By the Royal Succession Act of 25 Henry VIII., succession in the reign of c. 22, passed on the occasion of the King's marriage with Henry VIII. Anne Boleyn, the crown was entailed on the King's issue 35 Henry male, 'and for default of such sons of your body begotten, that then the imperial crown shall be to the issue female between your majesty and your most dear and entirely beloved wife Queen Anne begotten, that is to say, first, to the eldest issue female, which is the Lady Elizabeth, now Princess . . . and so from issue female to issue female, and to the heirs of their bodies, one after another, by course of inheritance, according to their ages, as the crown of England hath been accustomed and ought to go, in cases when there be heirs female to the same.' VIII. c. 7. (2) Subsequently to the King's marriage with Lady Jane 28 Henry Seymour, Parliament, in the plenitude of its sovereign authority, passed an Act1 by which, after declaring the King's marriage with Queen Katherine void, and his marriage with Anne Boleyn likewise void, and the issue of both marriages illegitimate; the crown was entailed on the sons of the King and Queen Jane successively and the heirs of their bodies, with remainder to the King's sons by any future wife in like manner, and on failure of such issue, to the daughters of the King and Queen successively and their issue. And after reciting, that if the King should die without lawful issue, no provision having been made in his lifetime touching the succession, the realm in that case would be destitute of a lawful governor, or else percase incumbered with such a person that would covet to aspire to the same, whom the subjects of this realm shall not find in their hearts to love, dread, and obediently serve as their sovereign lord,' the Act proceeds to bestow upon 128 Hen. VIII. c. 7. 2 This seemeth to be pointed at James V. of Scotland, who was at this time the next in succession upon the failure of the king's issue; not barely as being descended from the union of the two roses, but under the parliamentary entail in favour of Henry VII. and the heirs of his body made before that union took place. .. Notwithstanding the near relation the house of Stuart The king ment to limit the suc will. the King the extraordinary power, in default of lawful issue empowered of his body, to limit the crown, by letters patent, or by his by Parlia last will made in writing and signed with his hand, to such cession by person or persons in possession or remainder, and after such letters patent order or condition, as he should judge expedient. Not even or by his last a preference for persons of royal descent was reserved, but it was declared that the persons so to be appointed should enjoy the crown 'as if they had been lawful heirs to the same, or as if the crown had been given and limited to them plainly and particularly by special names and sufficient terms, by full and immediate authority of the High Court of Parliament.'1 35 Henry VIII. c. I. (3) By a later Act, after reciting the previous statute, Henry's two daughters, Mary and Elizabeth, were put into the entail next after the lawful issue male or female of the King and Prince Edward, but subject to such conditions as the King should, by letters patent or his last will appoint. In the event of their failing to perform the conditions, or dying without issue, the King was again empowered to limit the succession as by the last Act. The second Succession Act had declared Mary and Elizabeth to be illegitimate. The third, upon a supposition of their illegitimacy, now postponed them even to all the lawful issue female of the King: but yet, in default of lawful issue of the King and Prince Edward, it limited the crown to the illegitimate daughters of the King and their issue in preference to all the other descendants of Henry VII. 3 stood in to the crown of England, Scotland was, during all King Henry's reign, the same detested enemy it had been for ages past: and a national prejudice operated in both kingdoms as strongly as ever.'-Sir M. Foster, Crown Law, 406. 6 These alternatives, as if they had been lawful heirs,' or 'as if the crown had been given by Parliament,' indicate the two principles upon which the succession has rested since the crown ceased to be purely elective. Sir Michael Foster (Cr. Law, 408) enunciates them thus: That, no Act of the legis lature intervening, the crown and royal dignity ought to descend from ancestor to heir in a certain established course of descent; but that this course of descent is subject to the controul of the legislature.' Where the deposition of a reigning sovereign is necessary-as in James II.'s case-the Legislature' must be taken as synonymous with the Estates of the Realm.' 2 35 Hen. VIII. c. 1, strongly enforced by 1 Edw. VI. c. 12. The legitimacy of each of the daughters of Henry VIII. was liable to crown. In exercise of the power given to him by these Acts Henry VIII. of Parliament, Henry VIII. devised the crown, in re-devises the mainder, on failure of issue of his three children, to the heirs of the body of his younger sister, Mary, Duchess of Suffolk, thus postponing the descendants of his elder sister. Margaret, Queen of Scots. on the acces Edward VI., Mary, and Elizabeth, succeeded each other on the throne in strict accordance with, and by virtue of, the parliamentary entail. On the accession of Queen Mary Act passed an Act was passed (1 Mary, sess. 2, c. 1.) repealing, as far sion of as concerned herself, all the Acts which stood in the way of Queen Mary. her legitimacy, and declaring the marriage of her father and mother valid, the sentence of divorce a nullity, and that she was the legitimate issue of the King. Elizabeth's On the first notice of Mary's death, Elizabeth was pro- Queen claimed, by order of the House of Lords then sitting, true title. and lawful heir to the crown according to the act of succession of the 35th year of Henry VIII Whatever other title the Queen might be presumed to have, her parliamentary title was clearly the one on which she relied. Discarding the precedent set by her sister, she suffered all altercation about the marriage of her father and mother, and the subsequent divorce, to sink into oblivion. The Act passed on her Act passed accession, though vaguely asserting in general terms her accession. descent from the blood royal, and that she was as fully entitled as her father or brother had been (which was perfectly true, since each reigned by a good parliamentary title), declared in guarded and limited terms that she was dispute, and it is impossible, on any theory, to support the legitimacy of both. Their illegitimacy was however taken out of the ordinary category by the fact that the mother of each was acknowledged as a lawful wife at the time of the daughter's birth. The full and immediate authority of the legislature in the matter of the succession must have been presupposed as a matter past all dispute; otherwise a delegation of that authority would have been no better than an idle, vain and ineffectual parade, an insult upon common sense and an affront to the king himself.'-Sir Michael Foster, Crown Law, 410. On the validity of the execution of Henry VIII.'s will, see Hallam, Const. Hist. i. 34, 288, 294, and Lingard, Hist. Eng. vi. 213. 3 Sir M. Foster, Crown Law, 409. on her It is made treason, by a statute of power of Queen and Parliament to limit the as fully entitled as her sister was at any time since the statute of the 35th year of King Henry VIII. the So completely established, in the time of Elizabeth, was of Parliament to alter the line of succession, that power Elizabeth, to it was expressly enacted by statute 'That if any person, deny the during the Queen's life, shall affirm or maintain that the common law of the realm, not altered by Parliament, ought not to direct the right of the crown of England, or that the Queen, with the authority of Parliament, is not able to make laws of sufficient force to limit and bind the crown, and the descent, limitation, inheritance and government thereof, shall be judged a traitor, and shall suffer and forfeit as in cases of high treason."2 succession. James 1. On the death of Elizabeth, the Council of the late Queen proclaimed as her successor James, King of Scots, the heir of Margaret, elder sister of Henry VIII. As the claim of the House of Suffolk under the will of Henry VIII. and the Acts of Parliament authorizing him to dispose of the crown, was legally indisputable, the first King of the house of Stewart was in the eye of the law a usurper. But the proclamation of the Council, which in 1 1 Eliz. c. 3. This declaration so guarded and limited seemeth strongly to imply, either that in the judgment of Parliament Queen Mary had no title antecedently to that act (35 Hen. VIII.), or that Elizabeth, having no other, it was thought but decent to put the sisters upon an equal footing, as former Parliaments had done.'-Sir M. Foster, Crown Law, 412. 13 I3 Eliz. c. i. The penalty for every person so affirming or maintaining after the decease of the Queen, was forfeiture of goods and chattels only. This clause as to the power of Parliament in the matter of the succession was, in substance and with almost identical words, revived and re-enacted by the 4th of Anne, c. 8, and the 6th of Anne, c. 7. Another section of the Act of Elizabeth enacted that whoever during the life of the Queen should by writing or printing declare before the same be so established and affirmed by Act of Par liament that any person in particular except the issue of her Majesty, was or ought to be right heir or successor to the Queen, should for the first offence suffer imprisonment for a year and forfeit half his goods, and for the second incur the penalties of præmunire. Neither the claims of the House of Suffolk nor of the House of Stewart were affected by this section. It merely shows, remarks Sir Michael Foster, that the eventual right of any individual, though grounded on common or statute law, was judged a question too big for ordinary discussion and proper only for the discussion of the legislature.' There is much reason to believe that the consciousness of this defect in his parliamentary title put James on magnifying, still more than from his natural temper he was prone to do, the inherent rights of primogenitary succession as something indefeasible by the legislature; a doctrine which, however |