Friday, May 9, 2008

Blackstone ss21

"Section 21. Part 2 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 2"

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[e], "absque
generali senatus et populi conventu et edicto
;" which also very
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 Atheling'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 by William of Normandy was, like
that of Canute before, a forcible transfer of the crown of England
into a new family: but, the crown being so transferred, all
the inherent properties of the crown were with it transferred also.
For, the victory obtained at Hastings not being[f] a victory over the
nation collectively, but only over the person of Harold, the only
right that the conqueror could pretend to acquire thereby, was
the right to possess the crown of England, not to alter the nature
of the government. And therefore, as the English laws still remained in force, he must necessarily take the crown subject to
those laws, and with all it's inherent properties; the first and
principal of which was it's descendibility. Here then we must
drop our race of Saxon kings, at least for a while, and derive
our descents from William the conqueror as from a new stock,
who acquired by right of war (such as it is, yet still the dernier
of kings) a strong and undisputed title to the inheritable
crown of England.

Accordingly it descended from him to his sons William II
and Henry I. Robert, it must be owned, his eldest son,
was kept out of possession by the arts and violence of his brethren;
who proceeded upon a notion, which prevailed for some time in
the law of descents, that when the eldest son was already provided
for (as Robert was constituted duke of Normandy by his father's
will) in such a case the next brother was entitled to enjoy
the rest of their father's inheritance. But, as he died without
issue, Henry at last had a good title to the throne, whatever he
might have at first.

Stephen of Blois, who succeeded him, was indeed the
grandson of the conqueror, by Adelicia his daughter, and claimed
the throne by a feeble kind of hereditary right; not as being the
nearest of the male line, but as the nearest male of the blood
royal. The real right was in the empress Matilda or Maud, the
daughter of Henry I; the rule of succession being (where women
are admitted at all) that the daughter of a son shall be preferred
to the son of a daughter. So that Stephen was little better
than a mere usurper; and the empress Maud did not fail to
assert her right by the sword: which dispute was attended with
various success, and ended at last in a compromise, that Stephen
should keep the crown, but that Henry the son of Maud should
succeed him; as he afterwards accordingly did.

Henry, the second of that name, was the undoubted heir
of William the conqueror; but he had also another connexion in
blood, which endeared him still farther to the English. He was
lineally descended from Edmund Ironside, the last of the Saxon
race of hereditary kings. For Edward the outlaw, the son of
Edmund Ironside, had (besides Edgar Atheling, who died without
issue) a daughter Margaret, who was married to Malcolm
king of Scotland; and in her the Saxon hereditary right resided.
By Malcolm she had several children, and among the rest Matilda
the wife of Henry I, who by him had the empress Maud, the
mother of Henry II. Upon which account the Saxon line is in
our histories frequently said to have been restored in his person:
though in reality that right subsisted in the sons of Malcolm by
queen Margaret; king Henry's best title being as heir to the

From Henry II the crown descended to his eldest son Richard
I, who dying childless, the right vested in his nephew
Arthur, the son of Geoffrey his next brother; but John, the
youngest son of king Henry, seised the throne; claiming, as appears
from his charters, the crown by hereditary right[g]: that is
to say, he was next of kin to the deceased king, being his surviving
brother; whereas Arthur was removed one degree farther,
being his brother's son, though by right of representation he stood
in the place of his father Geoffrey. And however flimzey this
title, and those of William Rufus and Stephen of Blois, may
appear at this distance to us, after the law of descents hath now
been settled for so many centuries, they were sufficient to puzzle
the understandings of our brave, but unlettered, ancestors. Nor
indeed can we wonder at the number of partizans, who espoused
the pretensions of king John in particular; since even in the reign
of his father, king Henry II, it was a point undetermined[h],
whether, even in common inheritances, the child of an elder
brother should succeed to the land in right of representation, or
the younger surviving brother in right of proximity of blood. Nor
is it to this day decided in the collateral succession to the fiefs of
the empire, whether the order of the stocks, or the proximity of
degree shall take place[i]. However, on the death of Arthur and
his sister Eleanor without issue, a clear and indisputable title vested
in Henry III the son of John: and from him to Richard the second,
a succession of six generations, the crown descended in the
true hereditary line. Under one of which race of princes[k], we find
it declared in parliament, "that the law of the crown of England
is, and always hath been, that the children of the king
of England, whether born in England, or elsewhere, ought to
bear the inheritance after the death of their ancestors. Which
law, our sovereign lord the king, the prelates, earls, and barons,
and other great men, together with all the commons, in
parliament assembled, do approve and affirm for ever."

Upon Richard the second's resignation of the crown, he
having no children, the right resulted to the issue of his grandfather
Edward III. That king had many children, besides his
eldest, Edward the black prince of Wales, the father of Richard
II: but to avoid confusion I shall only mention three;
William his second son, who died without issue; Lionel duke of
Clarence, his third son; and John of Gant duke of Lancaster,
his fourth. By the rules of succession therefore the posterity of
Lionel duke of Clarence were entitled to the throne, upon the
resignation of king Richard; and had accordingly been declared
by the king, many years before, the presumptive heirs of the
crown; which declaration was also confirmed in parliament[l].
But Henry duke of Lancaster, the son of John of Gant, having
then a large army in the kingdom, the pretence of raising which
was to recover his patrimony from the king, and to redress the
grievances of the subject, it was impossible for any other title to
be asserted with any safety; and he became king under the title
of Henry IV. But, as sir Matthew Hale remarks[m], though the
people unjustly assisted Henry IV in his usurpation of the crown,
yet he was not admitted thereto, until he had declared that he
claimed, not as a conqueror, (which he very much inclined to
do[n]) but as a successor, descended by right line of the blood royal;
as appears from the rolls of parliament in those times. And in
order to this he set up a shew of two titles: the one upon the
pretence of being the first of the blood royal in the intire male
line, whereas the duke of Clarence left only one daughter Philippa;
from which female branch, by a marriage with Edmond
Mortimer earl of March, the house of York descended: the
other, by reviving an exploded rumour, first propagated by John
of Gant, that Edmond earl of Lancaster (to whom Henry's mother
was heiress) was in reality the elder brother of king Edward
I; though his parents, on account of his personal deformity,
had imposed him on the world for the younger: and therefore
Henry would be intitled to the crown, either as successor to
Richard II, in case the intire male line was allowed a preference
to the female; or, even prior to that unfortunate prince, if the
crown could descend through a female, while an intire male line
was existing.

However, as in Edward the third's time we find the parliament
approving and affirming the right of the crown, as before
stated, so in the reign of Henry IV they actually exerted
their right of new-settling the succession to the crown. And this
was done by the statute 7 Hen. IV. c. 2. whereby it is enacted,
"that the inheritance of the crown and realms of England and
France, and all other the king's dominions, shall be set and
[o] in the person of our sovereign lord the king, and in the
heirs of his body issuing;" and prince Henry is declared heir
apparent to the crown, to hold to him and the heirs of his body
issuing, with remainder to lord Thomas, lord John, and lord
Humphry, the king's sons, and the heirs of their bodies respectively.
Which is indeed nothing more than the law would have
done before, provided Henry the fourth had been a rightful king.
It however serves to shew that it was then generally understood,
that the king and parliament had a right to new-model and regulate the succession to the crown. And we may observe, with
what caution and delicacy the parliament then avoided declaring
any sentiment of Henry's original title. However sir Edward
Coke more than once expressly declares[p], that at the time of
passing this act the right of the crown was in the descent from
Philippa, daughter and heir of Lionel duke of Clarence.

Nevertheless the crown descended regularly from
Henry IV to his son and grandson Henry V and VI; in the latter
of whose reigns the house of York asserted their dormant title;
and, after imbruing the kingdom in blood and confusion for seven
years together, at last established it in the person of Edward IV.
At his accession to the throne, after a breach of the succession
that continued for three descents, and above threescore years, the
distinction of a king de jure, and a king de facto began to be first
taken; in order to indemnify such as had submitted to the late
establishment, and to provide for the peace of the kingdom by
confirming all honors conferred, and all acts done, by those who
were now called the usurpers, not tending to the disherison of the
rightful heir. In statute 1 Edw. IV. c. 1. the three Henrys are
stiled, "late kings of England successively in dede, and not of
ryght." And, in all the charters which I have met with of king
Edward, wherever he has occasion to speak of any of the line of
Lancaster, he calls them "nuper de facto, et non de jure, reges

Edward IV left two sons and a daughter; the eldest of
which sons, king Edward V, enjoyed the regal dignity for a very
short time, and was then deposed by Richard his unnatural uncle;
who immediately usurped the royal dignity, having previously insinuated
to the populace a suspicion of bastardy in the children
of Edward IV, to make a shew of some hereditary title: after
which he is generally believed to have murdered his two nephews;
upon whose death the right of the crown devolved to their sister

The tyrannical reign of king Richard III gave occasion to
Henry earl of Richmond to assert his title to the crown. A title
the most remote and unaccountable that was ever set up, and
which nothing could have given success to, but the universal detestation
of the then usurper Richard. For, besides that he claimed
under a descent from John of Gant, whose title was now exploded,
the claim (such as it was) was through John earl of Somerset, a
bastard son, begotten by John of Gant upon Catherine Swinford.
It is true, that, by an act of parliament 20 Ric. II, this son was,
with others, legitimated and made inheritable to all lands, offices,
and dignities, as if he had been born in wedlock: but still, with
an express reservation of the crown, "excepta dignitate regali[q]."

Notwithstanding all this, immediately after the battle
of Bosworth field, he assumed the regal dignity; the right of the
crown then being, as sir Edward Coke expressly declares[r], in
Elizabeth, eldest daughter of Edward IV: and his possession was
established by parliament, held the first year of his reign. In the
act for which purpose, the parliament seems to have copied the
caution of their predecessors in the reign of Henry IV; and therefore
(as lord Bacon the historian of this reign observes) carefully
avoided any recognition of Henry VII's right, which indeed was
none at all; and the king would not have it by way of new law
or ordinance, whereby a right might seem to be created and conferred
upon him; and therefore a middle way was rather chosen,
by way (as the noble historian expresses it) of establishment, and
that under covert and indifferent words, "that the inheritance of
the crown should rest, remain, and abide in king Henry VII and
the heirs of his body:" thereby providing for the future, and
at the same time acknowleging his present possession; but not
determining either way, whether that possession was de jure or de
merely. However he soon after married Elizabeth of York,
the undoubted heiress of the conqueror, and thereby gained (as
sir Edward Coke[s] declares) by much his best title to the crown.
Whereupon the act made in his favour was so much disregarded,
that it never was printed in our statute books.

Henry the eighth, the issue of this marriage, succeeded to
the crown by clear indisputable hereditary right, and transmitted
it to his three children in successive order. But in his reign we
at several times find the parliament busy in regulating the succession
to the kingdom. And, first, by statute 25 Hen. VIII. c. 12.
which recites the mischiefs, which have and may ensue by disputed
titles, because no perfect and substantial provision hath been
made by law concerning the succession; and then enacts, that
the crown shall be entailed to his majesty, and the sons or heirs
males of his body; and in default of such sons to the lady Elizabeth
(who is declared to be the king's eldest issue female, in exclusion
of the lady Mary, on account of her supposed illegitimacy
by the divorce of her mother queen Catherine) and to the
lady Elizabeth's heirs of her body; and so on from issue female
to issue female, and the heirs of their bodies, by course of inheritance
according to their ages, as the crown of England hath been
accustomed and ought to go
, in case where there be heirs female of
the same: and in default of issue female, then to the king's right
heirs for ever. This single statute is an ample proof of all the
four positions we at first set out with.

But, upon the king's divorce from Ann Boleyn, this statute
was, with regard to the settlement of the crown, repealed by statute
28 Hen. VIII. c. 7. wherein the lady Elizabeth is also, as well
as the lady Mary, bastardized, and the crown settled on the king's
children by queen Jane Seymour, and his future wives; and, in
defect of such children, then with this remarkable remainder, to
such persons as the king by letters patent, or last will and testament,
should limit and appoint the same. A vast power; but,
notwithstanding, as it was regularly vested in him by the supreme
legislative authority, it was therefore indisputably valid. But this
power was never carried into execution; for by statute 35 Hen. VIII.
c. 1. the king's two daughters are legitimated again, and the
crown is limited to prince Edward by name, after that to the
lady Mary, and then to the lady Elizabeth, and the heirs of their
respective bodies; which succession took effect accordingly, being
indeed no other than the usual course of the law, with regard to
the descent of the crown.

But lest there should remain any doubt in the minds of the
people, through this jumble of acts for limiting the succession,
by statute 1 Mar. p. 2. c. 1. queen Mary's hereditary right to the
throne is acknowleged and recognized in these words: "the
crown of these realms is most lawfully, justly, and rightly descended
and come to the queen's highness that now is, being the
very, true, and undoubted heir and inheritrix thereof." And
again, upon the queen's marriage with Philip of Spain, in the
statute which settles the preliminaries of that match[t], the hereditary
right to the crown is thus asserted and declared: "as
touching the right of the queen's inheritance in the realm and
dominions of England, the children, whether male or female,
shall succeed in them, according to the known laws, statutes,
and customs of the same." Which determination of the parliament,
that the succession shall continue in the usual course,
seems tacitly to imply a power of new-modelling and altering it,
in case the legislature had thought proper.

On queen Elizabeth's accession, her right is recognized in still
stronger terms than her sister's; the parliament acknowleging[u],
"that the queen's highness is, and in very deed and of most mere
right ought to be, by the laws of God, and the laws and statutes
of this realm, our most lawful and rightful sovereign liege
lady and queen; and that her highness is rightly, lineally, and
lawfully descended and come of the blood royal of this realm
of England; in and to whose princely person, and to the heirs
of her body lawfully to be begotten, after her, the imperial
crown and dignity of this realm doth belong." And in the
same reign, by statute 13 Eliz. c. 1. we find the right of parliament to direct the succession of the crown asserted in the most
explicit words. "If any person shall hold, affirm, or maintain
that the common laws of this realm, not altered by parliament,
ought not to direct the right of the crown of England; or that
the queen's majesty, with and by the authority of parliament,
is not able to make laws and statutes of sufficient force and validity,
to limit and bind the crown of this realm, and the descent,
limitation, inheritance, and government thereof;--such
person, so holding, affirming, or maintaining, shall during the
life of the queen be guilty of high treason; and after her decease
shall be guilty of a misdemesnor, and forfeit his goods and

"End of Section 21"