Tuesday, April 29, 2008

Blackstone ss20

"Section 20. Part 1 of Chapter 3 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 3, Part 1"

Chapter the third.

Of the KING, and his TITLE.

The supreme executive power of these kingdoms is vested
by our laws in a single person, the king or queen: for it
matters not to which sex the crown descends; but the person
entitled to it, whether male or female, is immediately invested
with all the ensigns, rights, and prerogatives of sovereign power;
as is declared by statute 1 Mar. st. 3. c. 1.

In discoursing of the royal rights and authority, I shall consider
the king under six distinct views: 1. With regard to
his title. 2. His royal family. 3. His councils. 4. His duties.
5. His prerogative. 6. His revenue. And, first, with regard
to his title.

The executive power of the English nation being vested in a
single person, by the general consent of the people, the evidence
of which general consent is long and immemorial usage, it became
necessary to the freedom and peace of the state, that a rule
should be laid down, uniform, universal, and permanent; in order
to mark out with precision, who is that single person, to whom
are committed (in subservience to the law of the land) the care
and protection of the community; and to whom, in return, the
duty and allegiance of every individual are due. It is of the
highest importance to the public tranquillity, and to the consciences of private men, that this rule should be clear and indisputable:
and our constitution has not left us in the dark upon
this material occasion. It will therefore be the endeavour of this
chapter to trace out the constitutional doctrine of the royal succession,
with that freedom and regard to truth, yet mixed with
that reverence and respect, which the principles of liberty and
the dignity of the subject require.

The grand fundamental maxim upon which the jus coronae,
or right of succession to the throne of these kingdoms, depends,
I take to be this: "that the crown is, by common law and
constitutional custom, hereditary; and this in a manner peculiar
to itself: but that the right of inheritance may from time
to time be changed or limited by act of parliament; under
which limitations the crown still continues hereditary." And
this proposition it will be the business of this chapter to prove,
in all it's branches: first, that the crown is hereditary; secondly,
that it is hereditary in a manner peculiar to itself; thirdly, that
this inheritance is subject to limitation by parliament; lastly,
that when it is so limited, it is hereditary in the new proprietor.

1. First, it is in general hereditary, or descendible to the
next heir, on the death or demise of the last proprietor. All regal
governments must be either hereditary or elective: and, as 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, it must of consequence
be hereditary. Yet while I assert an hereditary, I by no means
intend a jure divino, title to the throne. Such a title may be allowed
to have subsisted under the theocratic establishments of the
children of Israel in Palestine: but it never yet subsisted in any
other country; save only so far as kingdoms, like other human
fabrics, are subject to the general and ordinary dispensations of
providence. Nor indeed have a jure divino and an hereditary right
any necessary connexion with each other; as some have very
weakly imagined. The titles of David and Jehu were equally
jure divino, as those of either Solomon or Ahab; and yet David
slew the sons of his predecessor, and Jehu his predecessor himself.
And when our kings have the same warrant as they had,
whether it be to sit upon the throne of their fathers, or to destroy
the house of the preceding sovereign, they will then, and
not before, possess the crown of England by a right like theirs,
immediately derived from heaven. The hereditary right, which
the laws of England acknowlege, owes it's origin to the founders
of our constitution, and to them only. It has no relation to,
nor depends upon, the civil laws of the Jews, the Greeks, the
Romans, or any other nation upon earth: the municipal laws of
one society having no connexion with, or influence upon, the fundamental
polity of another. The founders of our English monarchy
might perhaps, if they had thought proper, have made
it an elective monarchy: but they rather chose, and upon good
reason, to establish originally a succession by inheritance. This
has been acquiesced in by general consent; and ripened by degrees
into common law: the very same title that every private
man has to his own estate. Lands are not naturally descendible
any more than thrones: but the law has thought proper, for the
benefit and peace of the public, to establish hereditary succession
in one as well as the other.

It must be owned, an elective monarchy seems to be the most
obvious, and best suited of any to the rational principles of government,
and the freedom of human nature: and accordingly we
find from history that, in the infancy and first rudiments of almost
every state, the leader, chief magistrate, or prince, hath usually been
elective. And, if the individuals who compose that state could
always continue true to first principles, uninfluenced by passion
or prejudice, unassailed by corruption, and unawed by violence,
elective succession were as much to be desired in a kingdom, as
in other inferior communities. The best, the wisest, and the
bravest man would then be sure of receiving that crown, which
his endowments have merited; and the sense of an unbiassed
majority would be dutifully acquiesced in by the few who were
of different opinions. But history and observation will inform us,
that elections of every kind (in the present state of human nature)
are too frequently brought about by influence, partiality,
and artifice: and, even where the case is otherwise, these practices
will be often suspected, and as constantly charged upon the
successful, by a splenetic disappointed minority. This is an evil,
to which all societies are liable; as well those of a private and
domestic kind, as the great community of the public, which regulates
and includes the rest. But in the former there is this advantage;
that such suspicions, if false, proceed no farther than
jealousies and murmurs, which time will effectually suppress;
and, if true, the injustice may be remedied by legal means, by
an appeal to those tribunals to which every member of society
has (by becoming such) virtually engaged to submit. Whereas,
in the great and independent society, which every nation composes,
there is no superior to resort to but the law of nature; no
method to redress the infringements of that law, but the actual
exertion of private force. As therefore between two nations,
complaining of mutual injuries, the quarrel can only be decided
by the law of arms; so in one and the same nation, when the
fundamental principles of their common union are supposed to be
invaded, and more especially when the appointment of their chief
magistrate is alleged to be unduly made, the only tribunal to
which the complainants can appeal is that of the God of battels[**battles ?],
the only process by which the appeal can be carried on is that of
a civil and intestine war. An hereditary succession to the crown
is therefore now established, in this and most other countries, in
order to prevent that periodical bloodshed and misery, which the
history of antient imperial Rome, and the more modern experience
of Poland and Germany, may shew us are the consequences
of elective kingdoms.

2. But, secondly, as to the particular mode of inheritance,
it in general corresponds with the feodal path of descents, chalked
out by the common law in the succession to landed estates; yet
with one or two material exceptions. Like them, the crown will
descend lineally to the issue of the reigning monarch; as it did
from king John to Richard II, through a regular pedigree of six
lineal descents. As in them, the preference of males to females,
and the right of primogeniture 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
them, on failure of the male line, it descends to the issue female;
according to the antient British custom remarked by Tacitus[a],
"solent foeminarum ductu bellare, et sexum in imperiis non discernere."
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 crown 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 derived from the conqueror, who was then the
only regal stock. But herein there is no objection (as in the case
of common descents) to the succession of a brother, an uncle, or
other collateral relation, of the half blood; that is, where the
relationship proceeds not from the same couple of ancestors (which
constitutes a kinsman of the whole blood) but from a single ancestor
only; as when two persons are derived from the same father,
and not from the same mother, or vice versa: provided only,
that the one ancestor, from whom both are descended, be he from
whose veins the blood royal is communicated to each. Thus
Mary I inherited to Edward VI, and Elizabeth inherited to Mary;
all born of the same father, king Henry VIII, but all by different
mothers. The reason of which diversity, between royal and common
descents, will be better understood hereafter, when we examine
the nature of inheritances in general.

3. The doctrine of hereditary right does by no means imply
an indefeasible right to the throne. No man will, I think, assert
this, that has considered our laws, constitution, and history, without
prejudice, and with any degree of attention. It is unquestionably
in the breast of the supreme legislative authority of this
kingdom, the king and both houses of parliament, to defeat this
hereditary right; and, by particular entails, 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 broke through; or, that there may be a successor, without
being 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
ideot[**typo for idiot?], or otherwise incapable of reigning: how miserable would
the condition of the nation be, 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 any
thing 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. But, fourthly; however the crown maybe limited or
transferred, it still retains it's[**sic][**P2: issue cleared] 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 in his natural: because
immediately upon the natural death of Henry, William, or Edward,
the king survives in his successor; and the right of the
crown vests, eo instanti, upon his heir; either the haeres natus, if
the course of descent remains unimpeached, or the haeres factus,
if the inheritance be under any particular settlement. So that
there can be no interregnum; but as sir Matthew Hale[b] observes,[**; ?]
the right of sovereignty is fully invested in the successor by the
very descent of the crown. And therefore, however acquired, it
becomes in him absolutely hereditary, unless by the rules of the
limitation it is otherwise ordered and determined. In the same
manner as landed estates, to continue our former comparison, are
by the law hereditary, or descendible to the heirs of the owner;
but still there exists a power, by which the property of those
lands may be transferred to another person. If this transfer be
made simply and absolutely, the lands will be hereditary in the
new owner, and descend to his heirs at law: but if the transfer
be clogged with any limitations, conditions, or entails, the lands
must descend in that chanel, so limited and prescribed, and no other.

In these four points consists, as I take it, 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 antient 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. And in the pursuit of this enquiry we shall find, that
from the days of Egbert, the first sole monarch of this kingdom,
even to the present, the four cardinal maxims above mentioned
have ever been held the constitutional canons of succession. It is
true, this 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 has always
at last returned back into the old hereditary chanel, 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 shew of a
title by descent, in order to amuse the people, while they gained
the possession of the kingdom. And, when possession was once
gained, they considered it as the purchase or acquisition of a new
estate of inheritance, and transmitted or endeavoured to transmit
it to their own posterity, by a kind of hereditary right of usurpation.

King Egbert about the year 800, found himself in possession
of the throne of the west Saxons, by a long and undisturbed 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 enquire; and is
indeed a point of such high antiquity, as must render all enquiries
at best but plausible guesses. His right must be supposed indisputably
good, because we know no better. The other kingdoms
of the heptarchy he acquired, some by consent, 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 it's government
and states, and the other loses them; the latter entirely assimilates
or is melted down in the former, and must adopt it's laws
and customs[c]. And in pursuance of this maxim there hath ever
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 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, seised the whole of
it, Edmund's sons being driven into foreign countries. Here the
succession was suspended by actual force, and a new family introduced
upon the throne: in whom however this new acquired
throne continued hereditary for three reigns; when, upon the
death of Hardiknute, the antient 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,
sirnamed (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, sirnamed Atheling, (which signifies in the Saxon language
the first of the blood royal) who was the son of Edward the outlaw,
and grandson of Edmund Ironside; or, as Matthew Paris[d]
well expresses the sense of our old constitution, "Edmundus autem
latusferreum, rex naturalis de stirpe regum, genuit Edwardum;
et Edwardus genuit Edgarum, cui de jure debebatur regnum

"End of Section 20"