It was in the reign of our last elective King that the Crown first became legally hereditary. The doctrine may seem a startling one, but it is one to which an unbiassed study of our history will undoubtedly lead us. Few things are more amusing than the treatment which our early history has met with at the hands of purely legal writers. There is something almost pitiable in the haltings and stumblings of such a writer as Blackstone, unable to conceive that his lawyer’s figment of hereditary right was anything short of eternal, and yet coming at every moment across events which showed that in early times all such figments were utterly unknown. In early times the King was not only elected, but he went through a twofold election. I have already said that the religious character with which most nations have thought good to clothe their Kings took in England, as in most other Christian lands, the form of an ecclesiastical consecration to the kingly office. That form we still retain; but in modern times it has become a mere form, a pageant impressive no doubt and instructive, but still a mere pageant, which gives the crowned King no powers which he did not equally hold while still uncrowned. The death of the former King at once puts his successor in possession of every kingly right and power; his coronation in no way adds to his legal authority, however much it may add to his personal responsibility towards God and his people. But this was not so of old time. The choice of the national Assembly gave the King so chosen the sole right to become King, but it did not make him King. The King-elect was like a Bishop-elect. The recommendation of the Crown, the election of the Chapter, and the confirmation of the Archbishop, give a certain man the sole right to a certain see, but it is only the purely religious rite of consecration which makes him actually Bishop of it. So it was of old with a King. The choice of the Witan made him King-elect, but it was only the ecclesiastical crowning and anointing which made him King. And this ecclesiastical ceremony involved a further election. Chosen already to the civil office by the Nation in its civil character, he was again chosen by the Church – that is, by the Nation in its religious character, by the Clergy and People assembled in the church where the crowning rite was to be done. This second ecclesiastical election must always have been a mere form, as the choice of the nation was already made before the ecclesiastical ceremony began. But the ecclesiastical election survived the civil one. The state of things which lawyers dream of from the beginning is a law of strict hereditary succession, broken in upon by occasional interruptions. These interruptions, which, in the eye of history, are simply exercises of an ancient right, are, in the eyes of lawyers, only revolutions or usurpations. But this state of things, a state in which a fixed rule was sometimes broken, which Blackstone dreams of in the tenth and eleventh centuries, really did exist from the thirteenth century onwards. From the accession of Edward the First, the first King who reigned before his coronation, hereditary succession became the rule in practice. The son, or even the grandson, of the late King was commonly acknowledged as a matter of course, without anything which could fairly be called an election. But the right of Parliament to settle the succession was constantly exercised, and ever and anon we come across signs which show that the ancient notion of an election of a still more popular kind had not wholly passed away out of men’s minds. Two Kings were formally deposed, and on the deposition of the second the Crown passed, as it might have done in ancient times, to a branch of the royal house which was not the next in lineal succession. Three Kings of the House of Lancaster reigned by a good parliamentary title, and the doctrine of indefeasible hereditary right, the doctrine that there was some virtue in a particular line of succession which the power of Parliament itself could not set aside, was first brought forward as the formal justification of the claims of the House of York. Those claims in truth could not be formally justified on any showing but that of the most slavish doctrine of divine right, but it was not on any such doctrine as that that the cause of the House of York really rested. The elaborate list of grandmothers and great-grandmothers which was brought forward to show that Henry the Fifth was an usurper would never have been heard of if the government of Henry the Sixth had not become utterly unpopular, while Richard Duke of York was the best beloved man of his time. Richard accepted a parliamentary compromise, which of course implied the right of Parliament to decide the question. Henry was to keep the Crown for life, and Richard was to displace Henry’s son as heir-apparent. That is to say, according to a custom common in Germany, though rare in England, Richard was chosen to fill a vacancy in the throne which had not yet taken place. Duke Richard fell at Wakefield; in the Yorkist reading of the Law the Crown was presently forfeited by Henry, and Edward, the heir of York, had his claim acknowledged by a show of popular election which carries us back to far earlier times. The claim of Richard the Third, whatever we make of it on other grounds, was acknowledged in the like sort by what had at least the semblance of a popular Assembly. In short, though the hereditary principle had now taken firm root, though the disputes between the pretenders to the Crown were mainly disputes as to the right of succession, yet the remembrance of the days when the Crown had been truly the gift of the people had not wholly passed away.
The last King who could bring even the shadow of a claim to have been chosen by the voice of the people beneath the canopy of heaven was no other than Richard the Third. The last King who could bring a better claim to have been chosen by the same voice beneath the vault of the West Minster was no other than Henry the Eighth. Down to his time the old ecclesiastical form of choosing the King remained in the coronation-service, and it was not wholly out of character that Henry should issue a congé d’élire for his own election. The device for Henry’s coronation survives in his own handwriting, and, while it contains a strong assertion of his hereditary right, it also contains a distinct provision for his election by the people in ancient form. The claim of Henry was perfectly good, for a Parliament of his father’s reign had declared that the Crown should abide in Henry the Seventh and the heirs of his body. But it was in his case that the hereditary and parliamentary claim was confirmed by the ancient rite of ecclesiastical election for the last time in our history. His successor was not thus distinctly chosen. This was perhaps, among other reasons, because in his case the form was specially needless. For the right of Edward the Sixth to succeed his father was beyond all dispute. By an exercise of parliamentary power, which we may well deem strange, but which was none the less lawful, Henry had been entrusted with the power of bequeathing and entailing the Crown as he thought good. That power he exercised on behalf of his own children in order, and, failing them and their issue, on the issue of his younger sister. Edward, Mary, Elizabeth, therefore all reigned lawfully by virtue of their father’s will. A moment’s thought will show that Mary and Elizabeth could not both reign lawfully according to any doctrine of hereditary succession. On no theory, Catholic or Protestant, could both be the legitimate daughters of Henry. Parliament indeed had declared both to be illegitimate; on any theory one or the other must have been so. But each reigned by a perfectly lawful title, under the provisions of the Act which empowered their father to settle the succession according to his pleasure. While Elizabeth reigned, almost divine as she might be deemed to be in her own person, it was at least not held that there was any divine right in any other person to succeed her. The doctrine which came into vogue under her successors was in her day looked upon as treasonable. Elizabeth knew where her strength lay, and the Stewarts knew where their strength, such as it was, lay also. In the eye of the Law the first Stewart was an usurper; he occupied the Crown in the teeth of an Act of Parliament still in force, though he presently procured a fresh Act to salve over his usurpation. There can be no doubt that, on the death of Elizabeth, the lawful right to the Crown lay in the house of Suffolk, the descendants of Henry’s younger sister Mary. But the circumstances of the time were unfavourable to their claims; by a tacit agreement, politically convenient, but quite in the teeth of the existing Law, the Crown silently passed to the King of Scots, the descendant of Henry’s elder sister Margaret. She had not been named in Henry’s entail; her descendants therefore, lineal heirs of William and Cerdic as they were, had no legal claim to the Crown beyond what was given them by the Act of Parliament which was passed after James was already in possession. They were therefore driven, like the Yorkists at an earlier time, to patch up the theory of the divine right of hereditary succession, in order to justify an occupation of the throne which had nothing to justify it in English Law.
On one memorable day a Stewart King was reminded that an English King received his right to reign from the will of the English people. Whatever else we may say of the nature or the acts of the tribunal before which Charles the First was arraigned, it did but assert the ancient Law of England when it told how “Charles Stewart was admitted King of England, and therein trusted with a limited power, to govern by and according to the laws of the land and not otherwise.” It did but assert a principle which had been acted on on fitting occasions for nine hundred years, when it told its prisoner that “all his predecessors and he were responsible to the Commons of England.” Forgetful of the fate of Sigeberht and Æthelred, of Edward and of Richard, Charles ventured to ask for precedents, and told his judges that “the Kingdom of England was hereditary and not successive” . After a season, the intruding dynasty passed away, on that great day when the English people exercised for the last time its ancient right of deposing and electing Kings. The Convention of which we have so often spoken, that great Assembly, irregular in the eyes of lawyers, but in truth all the more lawful because no King’s writ had summoned it, cast all fantasies and subtleties to the winds by declaring that the throne was vacant. A true Assembly of the nation once more put forth its greatest power, and chose William of Orange, as, six hundred years before, another Assembly of the nation had chosen Harold the son of Godwine. The cycle had come round, and the English people had won back again the rights which their fathers had brought with them from their old home beyond the sea. Nor was it without fitness that their choice went back to those kindred lands, and that a new William crossed the sea to undo, after so many ages, the wrongs which England had suffered from his namesake. And now, under the rule of an elective King, England could at last afford to make her Crown strictly and permanently hereditary. The Act of Settlement, as we all know, entailed the Crown on the Electress Sophia and her heirs. Therefore no Kings have ever reigned by a better right than those who, by virtue of that Act, have been called to reign by the direct operation of the Law. They are in truth Kings —Cyningas in the most ancient sense – whose power flows directly from the will of the nation. In the existing state of our institutions, the hereditary character of our modern kingship is no falling away from ancient principles; it in truth allows us to make a fuller application of them in another shape. In an early state of things no form of government is so natural as that which we find established among our forefathers. A feeling which was not wholly sentimental demanded that the King should, under all ordinary circumstances, be the descendant of former Kings. But a sense that some personal qualification was needed in a ruler required that the electors should have the right of freely choosing within the royal house. In days when Kings governed as well as reigned, such a choice, made with some regard to the personal qualities of the King chosen, was the best means for securing freedom and good government. Under the rule of a conventional constitution, when Kings reign but do not govern, when it is openly professed in the House of Commons that it is to that House that the powers of government have passed, the objects which were once best secured by making kingship elective are now best secured by making kingship hereditary. It is as the Spartan King said: by lessening the powers of the Crown, its possession has become more lasting. A political system like ours would be inconsistent with an elective kingship. An elective King could not be trusted simply to reign; he would assuredly govern, or try to govern. We need not suppose that he would attempt any breaches of the written Law. But those powers which the written Law attaches to the Crown he would assuredly try to exercise according to his own personal views of what was right and expedient. And he would assuredly be justified in so doing. For the personal choice of a certain man to be King would in all reason be held to imply that he was personally fit for the work of government. He would be a President or Prime Minister chosen for life, one whom there would be no means of removing from office except by the most extreme and most unusual exercise of the powers of Parliament. There are states of society in which an elective Monarchy is a better kind of government than either a Commonwealth or an hereditary Monarchy. But, under the present circumstances of the civilized states of Europe and America, the choice lies between the hereditary Monarchy and the Commonwealth. The circumstances of our history have made us an hereditary Monarchy, just as the circumstances of the history of Switzerland have made that country a Federal Commonwealth. And no reasonable person will seek to disturb an institution which, like other English institutions, has grown up because it was wanted. Our unwritten Constitution, which gives us an hereditary Sovereign, but which requires his government to be carried on by Ministers who are practically chosen by the House of Commons, does in effect attain the same objects which were sought to be attained by the elective kingship of our forefathers. Our system gives the State a personal chief, a personal embodiment of the national being, which draws to itself those feelings of personal homage and personal duty which a large class of mankind find it hard to look upon as due to the more abstract ideas of Law and Commonwealth. And, when the duties of constitutional royalty are discharged as our own experience tells us that they may be discharged, the feeling awakened is more than a mere sentiment; it is a rational feeling of genuine personal respect. But widely as the hereditary kingship of our latest times differs in outward form from the hereditary kingship of our earliest times, the two have points of likeness which are not shared by kingship in the form which it took in the ages between the two. In our earliest and in our latest system, the King exists for the sake of the people; in the intermediate times it sometimes seemed that the people existed for the sake of the King. In our earliest and in our latest system, the King is clothed with an office, the duties of which are to be discharged for the common good of all. In the intermediate times it sometimes seemed as if the King had been made master of a possession which was to be enjoyed for his personal pleasure and profit. In the intermediate times we constantly hear of the rights and powers of the Crown as something distinct from, and almost hostile to, the common rights of the people. In our earliest and in our latest times, the rights of the Crown and the rights of the people are the same, for it is allowed that the powers of the Crown are to be exercised for the welfare of the people by the advice and consent of the people or their representatives. Without indulging in any Utopian dreams, without picturing to ourselves the England of a thousand years back as an earthly paradise, the voice of sober history does assuredly teach us that those distant times have really much in common with our own, much in which we are really nearer to them than to times which, in a mere reckoning of years, are far less distant from us. Thus it is that the cycle has come round, that the days of foreign rule have been wiped out, and that England is England once again. Our present Sovereign reigns by as good a right as Ælfred or Harold, for she reigns by the same right by which they reigned, by the will of the people, embodied in the Act of Parliament which made the crown of Ælfred and Harold hereditary in her ancestress. And, reigning by the same right by which they reigned, she reigns also for the same ends, for the common good of the nation of which the Law has made her the head. And we can wish nothing better for her kingdom than that the Crown which she so lawfully holds, which she has so worthily worn among two generations of her people, she may, like Nestor of old, continue to wear amid the well-deserved affection of a third.
164. The helpless way in which Blackstone himself wrote was perhaps pardonable in the dark times in which he lived. But it is really too bad when lawyer after lawyer, in successive editions, gives again to the world the astounding rubbish which in Blackstone’s day passed for early constitutional history. In Kerr’s edition of Blackstone, published in 1857, vol. i. p. 180, I find repeated, without alteration or comment, the monstrous assertion of Blackstone: “I believe there is no instance wherein the Crown of England has ever been asserted to be elective, except by the regicides at the infamous and unparalleled trial of King Charles I.” And in Serjeant Stephen’s Commentaries [1853], which are not a mere edition of Blackstone, but “New Commentaries partly founded on Blackstone,” the same words are found in vol. ii. p. 403, only leaving out the epithet “unparalleled,” which might with truth have been allowed to stay. In another place (iv. 481-2) we read how “after the Saxon government was firmly established in this island” came “the subdivision of the kingdom into a heptarchy, consisting of seven independent kingdoms, peopled and governed by different clans and colonies.” It seems then that in 1857 there were learned gentlemen who believed in a kingdom subdivided into a heptarchy. But when, in the next page, Blackstone tells us how Ælfred set about “to new-model the constitution, to rebuild it on a plan that should endure for ages,” and goes on in the usual style to attribute everything whatever to Ælfred personally, this seems to have been too much, and the editor gives an extract from Kemble by way of correction. One wonders that, if he had read Kemble at all, he had not learned a little more from him. It is amusing again when Blackstone tells us (i. 186, Kerr), “From 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” – all the cases where it did not descend regularly, according to Blackstone’s notions of regularity: But it is almost more amusing when Serjeant Stephen (ii. 410) throws Blackstone’s exceptions, which are at least historical facts, into a note, and gives us instead as his own exceptions, the statement, very doubtful and, if true, utterly irrelevant, that Æthelstan and Eadmund Ironside were illegitimate (see Norman Conquest, i. 669-673). We of course get the usual talk about the usurpations of Harold, Stephen, John, and Henry the Fourth, and about the rights of Eadgar and Arthur of Britanny. For the former we get a quotation from Matthew Paris, to whom it would have been more to the purpose to go for the great speech of Archbishop Hubert. The comments on the succession of John (i. 189, Kerr) are singularly amusing, but too long to quote.
One point however must be mentioned. To prove the strictly hereditary nature of the succession, Blackstone (i. 189, Kerr) quotes the Statute of 25 Edward III. “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.” We are bound to suppose that these learned lawyers had read through the statute which they quoted; but it is wonderful that they did not see that it had nothing whatever to do with fixing the hereditary succession of the Crown. The original text (Revised Statutes, i. 176) runs thus: —
“La lei de la Corone Dengleterre est, et ad este touz jours tiele, que les enfantz des Rois Dengleterre, queu part qils soient neez en Engleterre ou aillors, sont ables et deivent porter heritage, apres la mort lour auncestors.”
The object of the statute is something quite different from what any one would think from Blackstone’s way of quoting it. The emphatic words are those which are put in italics. The object of the statute is to make the King’s children and others born of English parents beyond sea capable of inheriting in England. As far as the succession to the Crown is concerned, its effect is simply to put a child of the King born out of the realm on a level with his brother born in the realm; that is, in the view of our older Law, to give both alike the preference due to an Ætheling.
165. It is as well to explain this, because most people seem to think that a man becomes a Bishop by virtue of receiving a private letter from the First Lord of the Treasury. We constantly see a man spoken of as Bishop of such a see, and his works advertised as such, before a single ecclesiastical or legal step has been taken to make him so.
166. See Norman Conquest, iii. 44, 623.
167. The succession of a grandson, which first took place in England in the case of Richard the Second, marks a distinct stage in the growth of the doctrine of hereditary right. It involves the doctrine of representation, which is a very subtle and technical one, and is not nearly so obvious or so likely to occur in an early state of society as the doctrine of nearness of kin. No opposition was made to the accession of Richard the Second, but there seems to have been a strong notion in men’s minds that John of Gaunt sought to displace his nephew. In earlier times, as the eldest and most eminent of the surviving sons of Edward the Third, John would probably have been elected without any thought of the claims of young Richard.
168. In Yorkist official language the three Lancastrian Kings were usurpers, and Duke Richard was de jure, though not de facto, King. Henry the Sixth is, in the Act of 1461, “Henry Usurpour, late called Kyng Henry the sixt.” The claim of the House of York was through an intricate female descent from Lionel Duke of Clarence, a son of Edward the Third older than John of Gaunt. A claim so purely technical had never been set forth before; but we may be quite sure that it would not have been thought to have much weight, if Duke Richard had not been, by another branch, descended from Edward the Third in the male line, and if he had not moreover been the ablest and most popular nobleman in the country.
169. A prospective election before the vacancy of course hindered any interregnum. In this case the formula “Le Roi est mort; vive le Roi,” was perfectly true. The new King was already chosen and crowned, and he had nothing to do but to go on reigning singly instead of in partnership with his father, just as William went on reigning alone after the death of Mary. In Germany this took place whenever a King of the Romans was chosen in the lifetime of the reigning Emperor. In France, under the early Kings of the Parisian dynasty, the practice was specially common, and the fact that there seldom or never was an interregnum doubtless helped much to make the French Crown become, as it did, the most strictly hereditary crown in Christendom. In England, the only distinct case of a coronation of a son during the lifetime of his father was that of Henry, the son of Henry the Second, known as the younger King, and sometimes as Henry the Third. In earlier times we get something like it in the settlement of the Crown by Æthelwulf, with the consent of his Witan (see Old-English History, 105, 106), but it does not seem clear whether there was in this case any actual coronation during the father’s lifetime. If there was not, this would be the case most like that of Duke Richard. The compromise placed the Duke in the same position as if he had been Prince of Wales, or rather in a better position, for it might be held to shut out the need of even a formal election on the King’s death.
170. See note 59 on Chapter II.
171. See Norman Conquest, iii. 623.
172. See Hallam’s Constitutional History, i. 8. It is to be noticed that the settlement enacts that “the inheritance of the Crown, &c., should remain in Henry the Seventh and the heirs of his body for ever, and in none other.” This would seem to bar a great number of contingent claims in various descendants of earlier Kings. As it happens, this Act has been literally carried out, for every later Sovereign of England has been a descendant of the body of Henry the Seventh.
173. The will of Henry the Eighth is fully discussed by Hallam, i. 34, 288, 294; Lingard, vi. 213. There are two Acts of Henry’s reign bearing on the matter. In the earlier one, 28 Henry VIII. c. 7, the Crown is entailed on the King’s sons by Jane Seymour or any other wife; then on the King’s legitimate daughters, no names being mentioned; the Act then goes on to say, “your Highnes shall have full and plenar power and auctorite to geve despose appoynte assigne declare and lymytt by your letters patentes under your great seale or ells by your laste Will made in wrytynge and signed with your moste gracious hande, at your onely pleasure from tyme to tyme herafter, the imperiall Crowne of this Realme and all other the premisses thereunto belongyng, to be remayne succede and come after your decease and for lack of lawfull heires of your body to be procreated and begoten as is afore lymytted by this Acte, to such person or persones in possession and remaynder as shall please your Highnes and according to such estate and after such maner forme facion ordre and condicion as shalbe expressed declared named and lymytted in your said letters patentes or by your said laste will.” The later Act, 35 Henry VIII. c. 1, puts Henry’s two daughters, Mary and Elizabeth, into the entail, but in a very remarkable way. The Acts declaring their illegitimacy are not repealed, nor is the legitimacy of either of them in any way asserted; in fact it is rather denied when the preamble rehearses that “The king’s Majesty hath only issue of his body lawfully begotten betwixt his Highness and his said late wife Queen Jane the noble and excellent Prince Edward.” The Act then goes on to enact that, although the King had been enabled to “dispose” the Crown “to any person or persons of such estate therein as should please his Highness to limit and appoint,” yet that, in failure of heirs of the body of either the King or his son, “the said imperial Crown and all other the premises shall be to the Lady Mary the King’s Highness daughter, and to the heirs of the body of the same Lady Mary lawfully begotten, with such conditions as by his Highness shall be limited by his letters patents under his great seal, or by his Majesty’s last will in writing signed with his gracious hand.” Failing Mary and her issue, the same conditional entail is extended to Elizabeth and her issue. The power of creating a remainder after the issue of Elizabeth of course remained with Henry, and he exercised it in favour of the issue of his younger sister Mary. Mary and Elizabeth therefore really reigned, not by virtue of any royal descent, but by virtue of a particular entail by which the Crown was settled on the King’s illegitimate daughters, as it might have been settled on a perfect stranger. It was an attempt on the part of Edward the Sixth to do without parliamentary authority what his father had done by parliamentary authority which led to the momentary occupation of the throne by Lady Jane Grey. Mary, on her accession, raked up the whole story of her mother’s marriage and divorce, and the Act of the first year of her reign recognized her as inheriting by legitimate succession. The Act passed on the accession of Elizabeth, 1 Eliz. c. 3, is much vaguer. It enacts “that your majestie our sayd Sovereigne Ladye ys and in verye dede and of most meere right ought to bee by the Lawes of God and the Lawes and Statutes of this Realme our most rightfull and lawfull Sovereigne liege Ladie and Quene; and that your Highness ys rightlye lynyallye and lawfully discended and come of the bloodd royall of this Realme of Englande in and to whose princely person and theires of your bodye lawfully to bee begotten after youe without all doubte ambiguitee scruple or question the imperiall and Royall estate place crowne and dignitie of this Reallme withe all honnours stiles titles dignities Regalities Jurisdiccons and preheminences to the same nowe belonging & apperteyning arre & shalbee most fully rightfully really & entierly invested & incorporated united & annexed as rightfully & lawfully to all intentes construccons & purposes as the same were in the said late Henrye theight or in the late King Edwarde the Syxte your Highnes Brother, or in the late Quen Marye your Highnes syster at anye tyme since thacte of parliament made in the xxxvth yere of the reigne of your said most noble father king Henrye theight.”
It should be remembered that Sir Thomas More, though he refused to swear to the preamble of the oath prescribed by the Act of Supremacy, was ready to swear to the order of succession which entailed the Crown on the issue of Anne Boleyn. On his principles the issue of Anne Boleyn would be illegitimate; but he also held that Parliament could settle the Crown upon anybody, on an illegitimate child of the King or on an utter stranger; to the succession therefore he had no objection to swear.
For a parallel to the extraordinary power thus granted to Henry we have to go back to the days of Æthelwulf.
174. The position of the daughters of Henry the Eighth was of course practically affected by the fact that each was the child of a mother who was acknowledged as a lawful wife at the time of her daughter’s birth. There was manifest harshness in ranking children so born with ordinary illegitimate children; but, in strictness of Law, as Henry married Anne Boleyn while Katharine of Aragon was alive, the daughter of Katharine and the daughter of Anne could not both be legitimate. The question was, which marriage was lawful. It should also be remembered that the marriage of Anne Boleyn was declared void, and her daughter declared illegitimate, on grounds – whatever they were – which had nothing to do with the earlier question of the marriage and divorce of Katharine.
175. See Hallam, i. 129; Lingard, vi. 239, 243. The Act 13 Elizabeth, c. 1, declares it to be treason “yf any person shall in any wyse holde and affyrme or mayntayne that the Common Lawes of this Realme not altred by Parlyament, ought not to dyrecte the Ryght of the crowne of England, or that our said sovrayne Ladye Elizabeth the Quenes Majestie that nowe is, with and by the aucthoritye of the Parlyament of Englande is not able to make Lawes and Statutes of suffycyent force and valyditie to lymit and bynd the Crowne of this Realme, and the Descent Lymitacion Inheritaunce and Government thereof.” The like is the crime of “whosoever shall hereafter duryng the Lyef of our said Soveraigne Ladye, by any Booke or Worke prynted or written, dyrectly and expresly declare and affyrme at any tyme before the same be by Acte of Parlyament of this Realme established and affyrmed, that any one particular person whosover it be, is or ought to be the ryght Heire and Successor to the Queenes Majestie that nowe is (whome God longe preserve) except the same be the naturall yssue of her Majesties bodye.”
This statute may possibly be taken as setting aside the claims of the House of Suffolk; but, if so, it sets aside the claims of the House of Stewart along with them.
176. James’s right was acknowledged by his own first Parliament, just as the claims of other Kings who entered in an irregular way had been. It should be marked however that he was crowned before he was acknowledged. The Act 1 Jac. I. c. 1, declares that “immediatelie upon the Dissolution and Decease of Elizabeth late Queene of England, the Imperiall Crowne of the Realme of England, and of all the Kingdomes Dominions and Rights belonging to the same, did by inherent Birthright and lawfull undoubted Succession, descend and come to your moste excellent Majestie, as beinge lineallie justly and lawfullie next and sole Heire of the Blood Royall of this Realme as is aforesaid.” It is worth noticing that in this Act we get the following definition of Parliament; “this high Court of Parliament, where all the whole Body of the Realm and every particular member thereof, either in Person or by Representation (upon their own free elections), are by the Laws of this Realm deemed to be personally present.”
177. The fact that James the First, a King who came in with no title whatever but what was given him by an Act of Parliament passed after his coronation, was acknowledged without the faintest opposition is one of the most remarkable things in our history. Hallam (i. 294) remarks that “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 primogenitory succession, as something indefeasible by the legislature; a doctrine which, however it might suit the schools of divinity, was in diametrical opposition to our statutes.” Certainly no opposition can be more strongly marked than that between the language of James’s own Parliament and the words quoted above from 13 Eliz. c. 1. But see the remarks of Hallam a few pages before (i. 288) on the kind of tacit election by which it might be said that James reigned. “What renders it absurd to call him and his children usurpers? He had that which the flatterers of his family most affected to disdain – the will of the people; not certainly expressed in regular suffrage or declared election, but unanimously and voluntarily ratifying that which in itself could surely give no right, the determination of the late Queen’s Council to proclaim his accession to the throne.”
178. Whitelocke’s Memorials, 367. “The heads of the charge against the King were published by leave, in this form: That Charles Stuart, being admitted King of England, & therein trusted with a limited power, to govern by, & according to the Laws of the Land, & not otherwise, & by his trust being obliged, as also by his Oath, & office to use the power committed to him, for the good & benefit of the people, & for the preservation of their Rights and Privileges,” etc.
At an earlier stage [365] the President had told the King that the Court “sat here by the Authority of the Commons of England: & all your predecessours, & you are responsible to them.” The King answered “I deny that, shew me one Precedent.” The President, instead of quoting the precedents which were at least plausible, told the prisoner that he was not to interrupt the Court. Earlier still the King had objected to the authority of the Court that “he saw no Lords there which should make a Parliament, including the King, & urged that the Kingdom of England was hereditary, & not successive.” The strong point of Charles’s argument undoubtedly was the want of concurrence on the part of the Lords. Both Houses of Parliament had agreed in the proceedings against Edward the Second and Richard the Second.
It is a small point, but it is well to notice that the description of the King as Charles Stewart was perfectly accurate. Charles, the son of James, the son of Henry Stewart Lord Darnley, really had a surname, though it might not be according to Court etiquette to call him by it. The helpless French imitators in 1793 summoned their King by the name of “Louis Capet,” as if Charles had been summoned by the name of “Unready,” “Bastard,” “Lackland,” “Longshanks,” or any other nickname of an earlier King and forefather.
I believe that many people fancy that Guelph or Welf is a surname of the present, or rather late, royal family.
179. The Act 1 William and Mary (Revised Statutes, ii. 11) entailed the Crown “after their deceases,” “to the heires of the body of the said princesse & for default of such issue to the Princesse Anne of Denmarke & the heires of her body & for default of such issue to the heires of the body of the said Prince of Orange.” It was only after the death of “the most hopeful Prince William Duke of Gloucester” that the Crown was settled (12 and 13 Will. III. c. 2; Revised Statutes, ii. 94) on “the most excellent Princess Sophia Electress and Dutchess Dowager of Hannover, daughter of the most excellent Princess Elizabeth, late Queen of Bohemia, daughter of our late sovereign lord King James the First of happy memory,” “and the heirs of her body being protestants.”
180. We hardly need assurance of the fact, but if it were needed, something like an assurance to that effect was given by an official member of the House during the session of 1872. At all events we read in Sir T. E. May (ii. 83); “The increased power of the House of Commons, under an improved representation, has been patent and indisputable. Responsible to the people, it has, at the same time, wielded the people’s strength. No longer subservient to the crown, the ministers, and the peerage, it has become the predominant authority in the state.” But the following strange remark follows: “But it is characteristic of the British constitution, and a proof of its freedom from the spirit of democracy, that the more dominant the power of the House of Commons, – the greater has been its respect for the law, and the more carefully have its acts been restrained within the proper limits of its own jurisdiction.”
ὦ δημοκρατία, ταῦτα δῆτ' ἀνασχετά;
Has Mr. Grote lived and written so utterly in vain that a writer widely indeed removed from the vulgar herd of oligarchic babblers looks on “the spirit of democracy” as something inconsistent with “respect for the law”?
181. The story is told (Plutarch, Lycurgus, 7), that King Theopompos, having submitted to the lessening of the kingly power by that of the Ephors, was rebuked by his wife, because the power which he handed on to those who came after him would be less than what he had received from those who went before him. ὃν καί φασιν ὑπὸ τῆς ἑαυτοῦ γυναικὸς ὀνειδιζόμενον ὡς ἐλάττω παραδώσοντα τοῖς παισὶ τὴν βασιλείαν, ἢ παρέλαβε, μείζω μὲν οὖν, εἰπεῖν, ὅσῳ χρονιωτέραν· τῷ γὰρ ὄντι τὸ ἄγαν ἀποβαλοῦσα μετὰ τοῦ φθόνου διέφυγε τὸν κίνδυνον. Aristotle also (Pol. v. 11) tells the story to the same effect, bringing it in with the comment, ὅσῳ γὰρ ἂν ἐλαττόνων ὦσι κύριοι, πλείω χρόνον ἀναγκαῖον μένειν πᾶσαν τὴν ἀρχήν· αὐτοί τε γὰρ ἧττον γίνονται δεσποτικοὶ καὶ τοῖς ἤθεσιν ἴσοι μᾶλλον, καὶ ὑπὸ τῶν ἀρχομένων φθονοῦνται ἧττον. διὰ γὰρ τοῦτο καὶ ἡ περὶ Μολοττοὺς πολὺν χρόνον βασιλεία διέμεινεν, καὶ ἡ Λακεδαιμονίων διὰ τὸ ἐξ ἀρχῆς τε εἰς δύο μέρη διαιρεθῆναι τὴν ἀρχήν, καὶ πάλιν Θεοπόμπου μετριάσαντος τοῖς τε ἄλλοις καὶ τὴν τῶν ἐφόρων ἀρχὴν ἐπικαταστήσαντος· τῆς γὰρ δυνάμεως ἀφελὼν ηὔξησε τῷ χρόνῳ τὴν βασιλείαν, ὥστε τρόπον τινὰ ἐποίησεν οὐκ ἐλάττονα ἀλλὰ μείζονα αὐτήν. The kingdom of the Molossians, referred to in the extract from Aristotle, is one of those states of antiquity of which we should be well pleased to hear more. Like the Macedonian kingdom, it was an instance of the heroic kingship surviving into the historical ages of Greece. But the Molossian kingship seems to have been more regular and popular than that of Macedonia, and to have better deserved the name of a constitutional monarchy. The Molossian people and the Molossian King exchanged oaths not unlike those of the Landesgemeinde and the Landammann of Appenzell-Ausserrhoden, the King swearing to rule according to the laws, and the people swearing to maintain the kingdom according to the laws. In the end the kingdom changed into a Federal Republic. See History of Federal Government, i. 151.
182. It is simply frivolous in the present state of England to discuss the comparative merits of commonwealths and constitutional monarchies with any practical object. Constitutional monarchy is not only firmly fixed in the hearts of the people, but it has some distinct advantages over republican forms of government, just as republican forms of government have some advantages over it. It may be doubted whether the people have not a more real control over the Executive, when the House of Commons, or, in the last resort, the people itself in the polling-booths (as in 1868), can displace a Government at any moment, than they have in constitutions in which an Executive, however much it may have disappointed the hopes of those who chose it, cannot be removed before the end of its term of office, except on the legal proof of some definite crime. But in itself, there really seems no reason why the form of the Executive Government should not be held to be as lawful a subject for discussion as the House of Lords, the Established Church, the standing army, or anything else. It shows simple ignorance, if it does not show something worse, when the word “republican” is used as synonymous with cut-throat or pickpocket. I do not find that in republican countries this kind of language is applied to the admirers of monarchy; but the people who talk in this way are just those who have no knowledge of republics either in past history or in present times. They may very likely have climbed a Swiss mountain, but they have taken care not to ask what was the constitution of the country at its foot. They may even have learned to write Greek iambics and to discuss Greek particles; but they have learned nothing from the treasures of wisdom taught by Grecian history from Herodotus to Polybios.
I have discussed the three chief forms of executive government, the constitutional King and his Ministry, the President, and the Executive Council, in the last of my first series of Historical Essays.
183. Iliad, i. 250: —
τῷ δ' ἤδη δύο μὲν γενεαὶ μερόπων ἀνθρώπων
ἐφθίαθ', οἵ οἱ πρόσθεν ἅμα τράφεν ἠδ' ἐγένοντο
ἐν Πύλῳ ἠγαθέῃ, μετὰ δὲ τριτάτοισιν ἄνασσεν.
