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itself could give no right, was voluntarily ratified by the popular voice ;? and after the ceremony of his coronation had been performed, an Act of his first Parliament? made him, what he had not up to that time been, a legitimate sovereign.
James I. was the twenty-third occupant of the English Doctrine of throne since the death of Williain the Conqueror. Of that
hereditary number, twelve had succeeded to the throne not being legal right. heirs of the Conqueror, according to the doctrine of primogenitary succession, and three more, althoughi legal primogenitary heirs, had not succeeded in the regular course of descent.Eduard II. and Richard II. had been solemnly deposed by Parliament, and on the latter occasion the throne itself was declared to be vacant. The line of succession had on several occasions been altcrcd, as we have scen, by the authority of Parliament. Yet in the teeth of these facts, the lawyers and divines of the Stewart period laboured to establish the doctrine of an indefeasible hereditary right to the crown. But even the ultra-royalist and reactionary House of Commons under Charles II. attempted to assert the right of Parliament to alter the succession by twice passing, in 1679 and 16So, the Bill for the exclusion of the Duke of York from the throne. At length in 1688, all Revolution
it might suit the schools of divinity, was in diametrical opposition to our statutes.'-Hallam, Const. Hist. i. 294.
1 What renders it absurd to call him (James) 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.'-Hallam, Const. Hist. i. 28S.
? 1 Jac. I. c. I.
3 The twelve not primogenitary heirs of the Conqueror were : William II., Henry I., Stephen, Jolin, Henry III., Henry IV., Henry V., Henry VI., Richard III., Henry VII., Mary, Elizabeth. The three who although primo. genitary heirs did not succeed in the regular course of descent were : Henry II., Ellward III., Edward Il. To these latter we ought to add James himself: for since Mary and Elizabeth had both been declared illegitimate by Act of Parliament, and since in any case one of them must have been so, the hereditary right of James, as well as that of his mother Mary Queen of Scots, had,
the view of the upholvers of indefeasible primogenitary succession, been ostponed to a mere parliamentary title.
+ Ut constabat de praemissis, et eorum occasione, regnum Angliae, cum pertinentiis suis, vacare.'— Walsingham, ii. 237.
doubts as to the power of Parliament to regulate the succession as it should think fit, were finally set at rest by the 'glorious Revolution' which overturned the Stewart dynasty, and once morc sct an elective king upon the throne. Both houses of the Convention Parliament concurred in a
resolution ‘That King James II. having endeavoured to subDeposition vert the constitution of the kingdom, by breaking the original of James II.
contract between king and people, and having by the advice of jesuits and other wicked persons, violated the fundamental laws, and withdrawn himself out of the kingdom, has abdicatil the government, and that the throne is thereby vacant.'? In the Declaration of Rights, the final resolution
to which both Ilouses came on the 13th of February, it was Election of determined. That William and Mary, Prince and Princess William of Orange.
of Orange, be, and be declared, King and Qucen of England, France, and Ireland, and the dominions thereunto belonging, to hold the crown and dignity of the said kingdoms and dominions to them the said Prince and Princess, during their lives and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said Prince of Orange, in the names of the said Prince and Princess during their joint lives; and after their decease the said crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said Princess ; for default of such issue, to the Princess Anne of Denmark, and the heirs of her body; and for default of such issue, the heirs of the body of the said Prince of Orange.' 3
1 The original contract' between king and people which is here solemnly asserted, is as utterly devoid of historic foundation as the opposite principle of 'divine right,' but, in the words of the late Dr. Whewell, it may be a convenient form for the expression of moral truths.'—See Naine, Ancient Law, p. 347
: Commons' Journals ; Parl. Hist.
3 This declaration was afterwards embodied and confirmed in the Bill of Rights (1 Will. and Mar. sess. 2, c. 2) with the surther important restriction that all persons who shall prosess the Popish religion or marry a Papist, shall be excluded and for ever incapable to inherit
, possess or enjoy the crown and government of this realm ; and in all such cases the people shall be absolved from their allegiance, and the crown shall descend to the next Protestant heir. (Infra, ch. xv.) Hallam (Const. I list. iii. 99) thus suis up the changes esfected by the Convention Parliament : It 'pronounced, under the slight dis
Queen Mary died in 1694 without issue, and William, in Act of accordance with the Act for settling the succession to the
Settlement crown, became sole ruler. On the death, in 1700, of the young duke of Gloucester, son of the Princess Anne of Denmark, the manifest probability that the entail established would come to an end at the decease of the King and the Princess Anne, rendered it again necessary that Parliament should exercise its power of settling the succession. Its frecdom of choicc was unlimited. The Resolution of the Convention Parliament which declared the throne of James II. to be 'vacant,' abrogated by implication the hereditary right to the succession previously existing in the descendants of Henry VII. But the wisdom was obvious of deviating no further than the welfare of the nation absolutely demanded from the old hereditary line. Passing over therefore the children of James II. ; the Duchess of Savoy, daughter of Henrietta, Duchess of Orleans; and the elder children of Elizabeth, wife of the Elector Palatine ; Parliament selected the Elcctress Sophia of Hanover, the nearest heir who professed the Protestant faith, as the root of a new royal line. By the Act of Settlement, all prior claims of inheritance, save the existing entail in favour of the issue of the Princess Anne and of King William being set aside and annulled, the crown was settled on the ‘Princess Sophia, Electress and Duchess Dowager of Hanover, 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.'?
guise of a word unusual in the language of English law, that the actual sove. reign had forfeited his right to the nation's allegiance. It swept away by the same vote the reversion of his posterity and of those who could claim the inheritance of the crown. It declared that, during an interval of nearly two months, there was no King of England ; the monarchy lying, as it were, in abeyance from the 23rd of December to the 13th of February. It bestowed the crown on William, jointly with his wife, indeed, but so that her participation in the sovereignty should be only in name. It postponed the succession of the princess Anne during his life. Lastly, it made no provision for any future devolution of the crown in failure of issue from those to whom it was thus limited, leaving that to the wisdom of future parliaments.'
12 and 13 Will. III. c. 2, infra, ch. svi. * A provision settling the reversion to the crown on the electress Sophia
Taking a brief retrospect of the ground travelled over in this chapter, and summing up the results of the detailed investigation in which we have been engaged, the facts as to the succession to the Crown may be broadly stated as follows:
In its origin the Kingship of the English was distinctly clective, but with a restriction of choice, in all ordinary cases, to the members of one royal house. At the Norman Conquest a new royal stock was substituted for the ancient line of Cerdic, but the elective character of the Kingship continued unaltered. In form the election was, indeed, presently modified by the prevailing feudalism, and the vote of the litenagemöt was then represented by the proffered homage and fealty of the magnates of the Realm. But in addition to clection, the ccclesiastical ceremony of coronation was throughout essential to the acquisition of the regal status, and in the coronation service the form of election was again gone through, nominally, this time, by the whole people. The accession of Edward I. marks the earliest important innovation. He was the first King who reigned before his coronation. The doctrine of hereditary right, which gradually arose as the personal idea of Kingship was superseded by the territorial idea, had now largely obscured the elective character of the Kingship, and its true nature as an office or trust as distinguished from a mere descendible property. But this obscuration was never total. The hereditary right of the heir was not a right to succeed as to an estate, but a right to be elected King. Its nature was well expressed by the representatives of the Three Estates wlien they declared to Richard III. in 1483 that they had 'chosen him into their King to whom they knew it appertained of inheritance so to be chosen.' The difference, though apparently a slight one in its practical effect, in reality is of considerable importance as marking the persistence of the elective and fiduciary character of the Kingship.
had been inserted, by the House of Lords, in the Bill of Rights, but the Com. mons rejected it without a division. Parl. Hist. v. 339.
Edward I. had been recognized as King four days after the death of his father. The accession of Edward II. on the day following his father's decease marks a further advance in the hereditary doctrine: an advance, however, which was more than neutralized by the revival, against his person, of the right of the National Assembly to depose the King. By thc unopposed succession of Richard II. to the exclusion of his uncles, the right of representative primogeniturc was for the first time asserted in the devolution of thc Crown. But as in the case of Edward II., so in the casc of Richard, no sooner had the doctrine of strict hercditary descent progressed another step, than it was met by the reassertion of the right of Parliament to depose the sovereign, and by the negation of any indcfeasible right of primogeniture, through the election of Henry of Lancaster.
It was by the House of York, who were themselves the real'usurpers' of the throne, that the doctrine of indefeasible hereditary right was first propounded in its full force and significance. The Crown seems to have been by them actually regarded as a private estate for their own personal benefit. Yet even Edward IV. sought and obtained a Parliamentary confirmation of his title : and when, a quarter of a century later, the Crown was settled by Parliament on Henry VII. and his issue, to the exclusion of the whole House of York, the Kingship was replaced on its elective basis.
The elective right of Parliament, however, was now exercised not periodically on the death of each sovereignhereditary succession having been the normal rule from the accession of Edward II. at the latest-but whenever it became necessary to elect a new royal stock, as in the case of Henry IV.and of Henry VII. By the marriage of Henry VII. with Elizabeth of York, what may be termed the ‘legitimate' claims of that house were transmitted to all her descendants; yet the right of Parliament to alter the succession was never more signally asserted than in the Act which conferred upon King Henry VIII. unlimited power to nominate his successor. James I., coming to the throne