mon law, under certain statutory limitations. These limita tions belong, logically, under the head of personal qualifications of the successor. This is the statement of Blackstone.1 It does not, however, completely answer the question as to the source of the law of succession within the family. We may ask who made this immemorial custom and caused it to be received as law. I think the reply must be that the royal family itself did this, that the law of succession within the family is what is called upon the continent house-law. The custom was created before the legislature and judiciary became the exclusive law-making powers, during the period when general acquiescence in the acts of the royal house made law. I think Blackstone himself indicates this view, though he does not expressly declare it.2 seems to me to entertain the same idea. have been the source of the law, it is now certainly subject. to modification and change by acts of Parliament, though these acts, for the reasons above stated, must be regarded as having the character of constitutional law. Bishop Stubbs The existing law of succession is lineal, primogenial descent, with preference of males over females among brothers and sisters of the whole or half blood (provided in the latter case they derive their relationship from the wearer of the crown), and with full right of representation. Lineal descent means descent from parent to child, as against collateral succession, from brother to brother, etc. Counting only from the last wearer of the crown, lineal descent as here intended may not be absolute, since there may be no lineal descendants of that person. In such a case the crown would, by the present law, pass laterally. It might even ascend in order to pass laterally; e.g. an uncle would succeed his nephew, in case the latter had neither children, brothers or sisters. Counting 1 Blackstone, Commentaries on the Laws of England, Bk. 1, c. 3, p. 191. 2 Ibid. Bk. 1, c. 3, pp. 197, 198. 3 Stubbs, Constitutional History of England, vol. 1, p. 340 ff. from the last wearer of the crown then, the lineal descent may be only preferential. On the other hand, counting from the first member of the family who wore the crown, the rule of lineal descent is absolute. Succession cannot be derived through an ancestor of the first wearer of the crown. For example, the grandsons of the first wearer of the crown may succeed one another, though they be sons of different fathers ; but the nephews or grand-nephews cannot succeed at all, nor can title be derived through them. The throne becomes vacant when there are no longer lineal descendants of its first occupant. The term primogenial defines itself. It means, of course, the eldest among those of equal degree. The limitations upon the principle of primogeniture in the English law of royal succession are that the male members of the same parentage are all preferred before the female, even though the latter be earlier born than the former, and that among children of the half-blood those not of the blood of the wearer of the crown are not regarded at all in determining the precedence of birth. Lastly, the phrase "full right of representation" signifies that upon the death, renunciation or incapacity of the next heir to the crown, the right will pass to his or her own heir of the body in preference to any other heir of the momentary occupant of the throne. For example, if the first son of the King or Queen should die before the King or Queen, leaving only a daughter or daughters, that daughter or the first born. of those daughters would be the next heir to the crown in preference to any son of the reigning King or Queen. A fortiori, the rule would be the same if the Crown Prince should die leaving a son, or if the other children of the reigning King or Queen were daughters, etc. Of course, only the children born in lawful wedlock can be considered in the succession to the crown. The law of marriage applicable in the case of members of the royal family is the general law of England, made more stringent by an act of Parliament termed the Royal Marriage Act. This act provides that no lineal descendant of George II, except the issue of princesses married to foreigners, shall, under twenty-five years of age, contract a marriage without the consent of the wearer of the crown given under the great seal; and that no such descendant above twenty-five years of age shall marry without having given twelve months' notice to the Privy Council, nor against the disapprobation of both houses of Parliament expressed within this period.1 Marriages entered into by members of the royal family contrary to these provisions are illegal, and the issue is excluded from the succession to the crown. III. The Personal Qualifications of the King or Queen. These qualifications relate to age, to mental sanity, and to religion. The general principle of the constitution is that the crown passes to the legal successor immediately upon the death of the predecessor, without any process or ceremony of transference or coronation, and even without the knowledge of the successor. The ancient French rule, "le mort saisit le vif," is the rule of the English law upon this subject.2 The purpose of this rule is, of course, the avoidance of interregnum, and its reason is the necessarily uninterrupted flow of hereditary descent. Nevertheless, we gather from the more recent regency acts that the successor cannot personally exercise the royal powers until the eighteenth year of age shall have been completed, and that the royal powers will be put in regency in case of the pronounced insanity of the King or Queen regnant. In regard to the religious qualifications, the statutes of Parliament are direct and peremptory. They provide that no papist nor any one married to a 1 12 George III, c. 2. 2 Blackstone, Commentaries upon the Laws of England, Bk. 1, c. 3, p. 196. 8 I William IV, c. 2; 3 and 4 Victoria, c. 52. papist can inherit, possess or enjoy the crown;1 and that the wearer of the crown shall join in the communion of the Church of England as by law established.2 Whether the marriage of the King or Queen to a papist after accession to the throne would disqualify from further exercise of the royal powers and work abdication or place the royal powers in regency, is not clearly declared in these statutes; but it is to be inferred that it would be tantamount to abdication, and that the crown would pass in the same manner as if the King or Queen regnant had died. Whether the conversion of the Queen Consort or Prince Consort would effect the same result is more doubtful, but I think this is fairly to be concluded from a free interpretation of the spirit of these statutes. IV. The Regency. There are no general principles of the common law or of statute law regulating this subject. Lord Coke even held that, legally, the wearer of the crown could never be regarded as a minor;3 i.e. that the principal occasion for the creation of a regency could not, from the standpoint of the English law, have any existence. The regencies in English history have all been specially created as exceptional interruptions of the general sequence of constitutional events. They have been, for the most part, established by special acts of Parliament. It seems to me, however, that so long as there is no general statute upon the subject, the general principle of the constitution would give the King or Queen regnant the power to constitute a regency by an order in Council. The Crown, as will be shown below, may do anything which the Parliament has not by statute forbidden it to do, or which the Parliament has not itself covered by legislation, or which the Parliament has not, by statute, authorized some other body to do. This power of the Crown is usually 2 12 and 13 William III, c. 2. 3 Coke upon Littleton, 43 a; Coke, 4 Institutes, 58. 11 William and Mary, St. 2, c. 2. called sovereignty, but I call it the residuary power of gov ernment. This residuary power may be permanently narrowed by ordinary statute, if the Crown permits, or by constitutional act, if the Crown resists. Inasmuch as neither of these things has as yet happened in respect to the question of regency, I do not see why it is not now a constitutional power of the Crown to create a regency without parliamentary approval. It is not at all probable that the Crown would undertake to do so. It is not likely that the Crown would resist a regency act originating in Parliament. I am inquiring, however, what the Crown may constitutionally do, not what the Crown may find it politic to do. I have deferred to this point the consideration of one question that may arise regarding the succession, because of its natural connection with the subject of the regency, viz; the question of the succession in the case of the death of the King, without living issue or with only female issue, leaving a pregnant widow. It seems to me that the only scientific solution of this question is to place the Crown in regency until the birth of the child. So far, however, as we may be said to have any precedent in the English law governing these cases, the feudal law governing the descent of estates is slavishly imitated, and the crown devolves immediately upon the next heir already born, subject to divestment upon the birth of a better claimant.1 This is certainly not a very safe procedure. The willingness to step down and out, after having attained the elevation of royalty, is not always to be counted upon. The hair-splitting distinction of the feudal law between the rights of the infant in ventre sa mere and of the infant one second after birth, should give way, in public law at least, to measures for the avoidance of plain practical dangers to the state. The Roman law does not make this distinction at all, and no one can say that the Roman law is less logical than the English. 11 William IV, c. 2. |