tablished, Richard II. of repre maxim that which results the correlative idea that the king's peace can the king never dies never be suspended.1 When Richard II. as the heir of his finally es grandfather succeeded to the crown to the exclusion of his accession of uncles by virtue of the doctrine of representation, that doctrine, under the already settled as one of the rules regulating the descent of doctrine. feudal estates,2 was for the first time applied to the succession sentation, of the crown of England. (3) While the new feudal rule of representative primogeniture was thus becoming a part of the law of the land, the dual right of election by church and state became a mere ceremony, and then the ceremony itself bemony, came obsolete. As such the ecclesiastical election by clergy ecclesiasti- and people survived down to the accession of Henry VIII., in cal election the programme of whose coronation, prepared by the king him elections become a mere cere of Henry VIII., estates re asserts self, traces of the ancient system still lingered in the declarations that Henry, the "rightfull and undoubted enheritour by the lawes of God and man," was "electe, chosen, and required by all the three estates of this lande to take upon hym the said coronne and royall dignitie."3 (4) While the ancient forms under which the witan had immemorially regulated the succession of the crown were thus passing away, the reorganized assembly of national assembly was careful to reassert the substance of the right in a manner so emphatic as to put its existence beyond right to reg- all question. The right of deposition which had been exercised by the witan before the Conquest was never asserted by the less authoritative feudal councils that gathered around the Norman and early Angevin kings during the two centuries which followed that event. Not until after those feudal councils had been transformed into an assembly of estates, did the representatives of the nation dare to revive that highest of all rights which the witan had occasionally exercised from the earliest times. To Edward I. belongs the honor of having transformed the feudal councils into an assembly of estates, and within thirty years after the meeting of such assembly at ulate suc cession, 1 Vol. i. p. 405. 2 See Reeves' Hist. Eng. Law, vol. i. p. 77. 8 The people were asked: "Woll ye serve at this tyme, and geve your wills and assents to the same consecration, enunction, and coronacion? Whereunto the people shall say with a grete voyce, Ye, Ye, Ye; So be it; Kyng Henry, Kyng Henry.”—Marskell, Monumenta Ritualia, etc., vol. iii. p. 73; Freeman, Norm. Conq., vol. iii. p. 622. This form, devised by Henry VIII. to be used "at every coronation," was not observed at that of Edward VI. See the new order for that occasion printed in Burnet, vol. ii. (Collectanea) cxcv. of Edward 3 tary title IV.'s. asser- · Westminster, the limit of its sovereign power was reached in the deposition of his son Edward II.,1 an event which was fol- deposition lowed after an interval of seventy-two years by the deposition II. and of Richard II.2 If upon the deposition of Richard the new Richard II., feudal rule of representative primogeniture had prevailed, the crown would have passed at once to Edward Mortimer, the ancestor of the house of York. But the parliament saw fit to ignore that rule, and to elect another member of the royal house whom it deemed more competent to govern. The long parliamenrule of the house of Lancaster by virtue of the parliamentary of the Lantitle thus acquired gave all possible emphasis to the right of casters, parliament not only to depose the king but to elect his successor. While Edward IV. did all that he could to assert Edward the contrary doctrine of indefeasible hereditary right, upon the tion of inassumption that he really succeeded to Richard II., and that defeasible right, the Lancastrian kings were mere usurpers, mere kings de facto non de jure, he finally sought a parliamentary recognition of his title; and a like recognition became the only real basis of the right of the house of Tudor. The three memorable acts 5 parliamenby which parliament as many times regulated the succession ments in during the reign of Henry VIII., often in open defiance of the reign of rules of hereditary right, removed any doubt that might have viIII. remained as to the fact that the crown cannot "descend from ancestor to heir in a certain established course of descent," when there is an "act of the legislature intervening." Under either theory the right of Edward was perfect. He was not only Henry's lawful male heir, but his right to the succession had been expressly recognized not only by the act of 28 Hen. Statutes VIII. c. 7, but also by the subsequent act of 35 Hen. VIII. c. Edward's 1, which, after affirming his right, put in the entail, next after right. the lawful issue, male or female, of the king and Prince Edward, first Mary and then Elizabeth, subject to such conditions as the king by letters patent or his last will might appoint. 1 See vol. i. pp. 504, 505. 2 Ibid., p. 513. Ibid., p. 536. The succession was four times regulated by parliament during the reign of Henry IV. For the history of these acts- specially as to the act of 1406 establishing Salic succession - see Bailey, The Succession to the Crown, pp. 32-36. 4 Vol. i. p. 577. See also Bailey, p. 59. 5 25 Hen. VIII. c. 22; 28 Hen. VIII. c. 7; 35 Hen. VIII. c. 1. See above, pp. 73, 84. For a detailed history of the acts, see Sir Michael Foster's Crown Law, p. 406 et seq. 6 That was Henry's third and last succession act. As to the first, see above, p. 73; as to the second, p. 84. Henry recognizing Henry's final disposition by will; Under the power thus given to the king to make further dispositions by will he simply supplemented the arrangement which parliament had made by the provision that, on the failure of issue of his three children, the crown should pass to the heirs of his younger sister Mary, duchess of Suffolk, to the detriment of the descendants of his elder sister Margaret of Scotland. Having thus arranged every detail touching the he named. succession, Henry next named the sixteen executors who were sixteen ex- to constitute the council of regency during the minority, a council of council whose members were drawn in such equal proportions from the ranks of conservatives and reformers as to warrant the hope that the influence of the one would stand as a check upon that of the other. How ineffectual such an arrangement was to prove in practice was quickly demonstrated the moment that the long truce, which only the king's irresistible personal died Janu- force had made possible, was broken by his death, which occurred on the 28th of January, 1547. ecutors as a regency; ary 28, 1547. 1 Fœdera, vol. xv. pp. 114-117. As to the vexed questions involved in the alterations of the will and in its valid execution, see Lingard, vol. v. p. 212 et seq., and notes; Hallam, Const. Hist., vol. i. p. 289 et seq.; Blount, Reform. of the Church of Eng., vol. ii. p. 6; Bailey, Succession to Eng. Crown, pp. 156-164. CHAPTER III. EDWARD VI. AND THE ENGLISH REFORMATION. regencies III. to I. THE Council of regency constituted by the last will of History of Henry VIII. was not so much the creation of that instrument from Henry as of the act of parliament under whose authority the will was Edward drawn. While the assembly of estates was settling the prin- VI.: ciple that the new feudal theory of hereditary right was subject to its omnipotent power to suspend that rule of succession at will, it was also careful to assert its power to provide for the administration of the royal office during the absence of an adult king, or for a regency in the event of infancy or mental incapacity. During the Norman reigns, as heretofore pointed Adminis out, the royal authority, during the temporary absence of the royal auking from the realm, devolved officially upon the justiciar as thority viceroy, or, as he was afterwards called, "secundus a rege." 1 absence, After the justiciar ceased to be viceroy and became the mere incapacity head of a law court, it became the rule to vest the royal authority during the king's absence in such a council (custodes regni) as was appointed by Henry III. in the year prior to his death, and which governed until the return of Edward I., nearly two years after that event.3 tration of during infancy, or of the king; gency after stituted at sion of The first regency, properly so called, which occurred after first rethe Conquest, grew out of the accession of Henry III. just the Conafter the completion of his tenth year. How at that time the quest conroyal authority was vested in the earl-marshal, the elected the accesrepresentative of the baronage, who carried on the government Henry III. under the title of rector regis et regni, has been explained already. Such action upon the part of the baronage was made necessary by the fact that the common law neither con 1 See vol. i. p. 244. 2 Vol. i. p. 398. Seventh Rept. of Dep. Keeper of the Public Records, App. II. p. 259; Stubbs, Const. Hist., vol. ii. pp. 103, 104. See also vol. i. of this work, p. 405. After the death of Mary in 1695, a like ar rangement was made for carrying on regency at the Edward III.; templated nor provided for a minority, a circumstance which no doubt arose out of the fact that under the ancient elective system the king was supposed to be adult and personally competent to govern.1 After the deposition of Edward II.2 and the election of his accession of son, then in his fourteenth year, parliament was a second time called upon to constitute a regency, a duty which it discharged by the appointment of a standing council of four bishops, four earls, and six barons, who, under the lead of the earl of Lancaster, the king's cousin, were to advise in all matters of government.3 proceed ings at the Richard II., the first under the doctrine of repre sentation; Although Richard II. at the time of his accession was only accession of eleven years old, no personal regent was appointed. The day after his grandfather's death, the first king to succeed under to succeed the new doctrine of representation took the great seal from the hands of its keeper and passed it over to his uncle the duke of Lancaster, who, four days later, passed it to the bishop of St. David's, who, by virtue of its possession, under the subtile legal theory then in vogue, was able to legalize all acts of government. The lords then limited this arrangement by the appointment of a council of twelve, without whose concurrence nothing was to be carried into effect, and whose constitution was from time to time modified by parliament, which is said to have itself acted as "a great council of regency" during the earlier years of Richard's reign.1 Regencies during the reign of We have seen already how parliament, at the accession of Henry VI., dealt with the fourth minority since the Conquest Henry VI.; by ignoring the directions of the dead king, and by setting up in their stead an arrangement of its own under which the duke of Bedford (and in his absence the duke of Gloucester) became protector and defender of the realm with the aid of a council of sixteen, afterwards constituted to aid him in carrying on the government. The prolonged absence of Bedford on the |