« ПредишнаНапред »
among the males, are strictly adhered to. Thus Edward V. succeeded to the crown in preference to Richard, his younger brother, and Elizabeth, his elder 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 throne 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. 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 descended from the Conqueror, who was then the only regal stock.
3. The doctrine of hereditary right by no means implies an indefeasible right to the throne. No man will assert this that has considered our laws, constitution, and history without prejudice, and with any degree of attention. It is unquestionably in the power of the supreme legislative authority of this kingdom, the King and both Houses of Parliament, to defent this hereditary right; and, by particular 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 who is not 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 bo, 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 exerted 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 anything improperly prejudicial to the rights of his own descendants. And therefore in the King, Lords, and Commons, in Parliament assembled, our laws have expressly lodged it.
4. 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): because immediately
upon the natural death of Henry, William, or Edward, the king survives in his successor. For the right of the crown vests at that very instant in his heir : either the heir by birth, if the course of descent remains unimpeached, or the appointed heir, if the inheritance be under any particular settlement. So that there can be no interregnum.
In these four points consists the constitutional notion of hereditary right to the throne; which will be still farther elucidated, and made clear beyond all dispute, from a short historical view of the successions to the crown of England, the doctrines of our ancient lawyers, and the several Acts of Parliament that have from time to time been made, to create, to declare, to confirm, to limit, or to bar, the hereditary title to the throne. In the pursuit of this inquiry, we shall find that from the days of Egbert, the first sole monarch of this kingdom, even to the present, the maxims above-mentioned have ever been held to be the constitutional canons of succession. It is true, that the succession, through fraud, or force, or sometimes through necessity, when in hostile times the crown descended on a minor or the like, has been very frequently suspended; but it has generally at last returned back into the old hereditary channel, though sometimes a very considerable period has intervened. And even in those instances where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it: of which the usurpers themselves were so sensible, that they, for the most part, endeavoured to vamp up some feeble show of a title by descent, in order to satisfy the people, while they gained the possession of the kingdom ; and when possession was once gained, they considered it as the acquisition of a new estate of inheritance, and transmitted, or endeavoured to transmit it to their own posterity, by & kind of hereditary right of usurpation.
King Egbert, about the year 800, found himself in possession of the throne of the West Saxons, hy a long and un
disturbed descent from his ancestors of above three hundred years. How his ancestors acquired their title, whether by force, by fraud, by contract, or by election, it matters not much to inquire, and is indeed a point of such high antiquity as must render all inquiries, at best, but plausible guesses. His right must be supposed indisputably good, because we know of no better. The other kingdoms of the heptarchy he acquired, some by conquest, but most by a voluntary submission. And it is an established maxim in civil polity, and the law of nations, that when one country is united to another in such a manner as that one keeps its government and states and the other loses them, the latter entirely assimilates with, or is melted down in the former, and must adopt its laws and customs. And in pursuance of this maxim there has always been, since the union of the heptarchy in King Egbert, a general acquiescence under the hereditary monarchy of the West Saxons through all the united kingdoms.
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 that the sons of King Ethelwolf succeeded to each other in the kingdom, without regard to the children of the elder branches, according to the rule of succession prescribed by their father, and confirmed by the wittena-gemote, in the heat of the Danish invasions; and also that King Edred, the uncle of Edwy, mounted the throne for about nine years, in the right of his nephew a minor, the times being very troublesome and dangerous. But this was with a view to preserve, and not to destroy, the succession ; and accordingly Edwy succeeded him.
King Edmund Ironside was obliged, by the hostile irruption of the Danes, at first to divide his kingdom with Canute King of Denmark; and Canute, after his death, seized the whole of it, Edmund's sons being driven into foreign countries. Here the succession was suspended by actual force, and a new
on the throne ; for three rezon line w
But this son ve the Danish yof the throne,
family introduced upon the throne; in whom, however, this acquired throne continued hereditary for three reigns : when, upon the death of Hardiknute, the ancient Saxon line was restored in the person of Edward the Confessor.
He was not, indeed, the true heir to the crown, being the younger brother of King Edmund Ironside, who had a son Edward, surnamed (from his exile) the Outlaw, still living. But this son was then in Hungary; and, the English having just shaken off the Danish yoke, it was necessary that somebody on the spot should mount the throne, and the Confessor was the next of the royal line then in England. On his decease without issue, Harold II. usurped the throne, and, almost at the same instant, came on the Norman invasion : the right to the crown being all the time in Edgar, surnamed Atherling (which signifies in the Saxon language illustrious, or of royal blood), who was the son of Edward the Outlaw, and grandson of Edmund Ironside.
William the Norman claimed the crown by virtue of a pretended grant from King Edward the Confessor: a grant which, if real, was in itself utterly invalid, because it was made, as Harold well observed in his reply to William's demand, without the consent and decree of the council and people; which also plainly implies, that it then was generally understood that the king, with consent of the general council, might dispose of the crown and change the line of succession. William's title, however, was altogether as good as Harold's, he being a mere private subject, and an utter stranger to the royal blood. Edgar Atherling's undoubted right was overwhelmed by the violence of the times, though frequently asserted by the English nobility after the Conquest, till such time as he died without issue : but all their attempts proved unsuccessful, and only served the more firmly to establish the crown in the family which had newly acquired it.
This conquest, then, of William of Normandy was, like that of Canute before, a forcible transfer of the crown of England