Download PDF The Right to be King: The Succession to the Crown of England, 1603–1714

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To do so now might be to raise questions about the proper balance of the constitution, questions which Parliament might prefer unasked. While he acknowledged that any change would have to receive the support of all countries of which The Queen is Sovereign, it is inappropriate that Lord Wilson, who had special responsibility for revision of the British Constitution, should propose such a fundamental change for purely party political reasons. While his colleagues in the Scottish and Welsh Offices were busy dismembering the United Kingdom, in the name of devolution, doubtless he felt that he had to make his own mark on the constitution.

The British Government should not let its own desire for change be the reason for such a fundamental move. The Crown has evolved gradually, and there has been enough disruption already in the last decade. Any proposal for change is risky, and there is no evidence of a need or desire for any change in the succession law.

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The present rules are a compromise, the result of centuries of evolution. It is half-way between the extremes of the strict rule of primogeniture of the so-called Salic law, and the modernist eldest child rule, as adopted recently in Norway and the Netherlands. Any move to change the law would be seen as defensive, an attempt to counter criticism. Yet criticism has never focused upon the fundamental nature of the Crown. Any change would be controversial. No good grounds for change have been advanced, aside from claims of sexual inequality. Such a proposal should be discussed in private first, not announced by the British Government almost as a fait accompli.

The succession law in New Zealand is that of the United Kingdom prior to , subject to potential statutory alteration by the New Zealand Parliament. In the past, Parliament has legislated for the succession for reasons of expediency. With the exception of settlement and exclusion provisions of the Act of Settlement, the succession remains strictly hereditary. Although the continued exclusion of Catholics, as the basis of the three-hundred-year-old Revolutionary Settlement, may be unjustified in the New Zealand environment, any change in this country would be dependent upon events in the United Kingdom.

Were New Zealand to amend unilaterally the Act of Settlement, it is unlikely that any division of the Crown would occur, but it would emphasise the separateness of the Crown. The problem with altering the Act of Settlement is that the Act was a deliberate and conscious rebalancing of the constitution, one which also brought us the sovereignty of Parliament. Tampering with one aspect might encourage calls for the other to be reconsidered also.

Suggestions have also been made that the eldest child of the Sovereign, irrespective of sex, should succeed. Although not synonyms, they are commonly used as equivalents. It was designed to maintain imperial consistency. It excluded the operation of the rule in relation to property held by the Sovereign in a private capacity.

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Its provisions however were unnecessarily elaborate for a general principle. But the Constitution Act goes further. If death has no effect in law then the Sovereign in a private as well as a public capacity is immortal in New Zealand. They are also not merely ancillary or residual rights. The royal prerogative is of course a branch of the common law, because it is the decisions of the courts which determine its existence and extent Case of proclamations [] EWHC J22 ; 12 Co Rep 74; 77 ER KB.

This is particularly so given the importance of the law of succession. The authors of the Report believed that membership of the Privy Council was best left uncertain, and that the other matters were not relevant. Yet the practice has been for subjects of Her Majesty overseas to be appointed to British offices as if this were proper.

The principal authority for the existence of the rule is to be found in the course of descent in the past, and in the fact that, where the rule has been broken, or where any doubt as to the validity of the title has existed, it has usually been found necessary to fortify the title by statute. This is stated by Blackstone to be of necessity he gave no other authority. This was most irreconcilable, or perhaps most explicable, in Muslim countries, because of the minute fractional division of estates.

Natural selection, the triumph of the strong over the weak, prevailed as a means of settling the succession within the ruling family Maine, Sir Henry Sumner, Early Law and Custom Logically, the Crown was an estate in fee, because at common law only an estate in fee was heritable. But inherited land was freely alienable; the Crown never was, though the attempt by Edward VI to devise the Crown may be taken to have implied this.

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It is said also that the maxim possessio fratris haeredem facit sorerem possession of an estate by a brother such as would entitle his sister [of the whole blood] to succeed him as heir [to the exclusion of a half-brother] does not apply to the descent of the Crown, and that, therefore, in the absence of lineal issue, the brother of the half-blood may succeed to the sister of the whole blood see Coke, supra note 21, at 15b.

If the peerage is a barony by writ, there will, of course, be no words of limitation. In English law, letters patent purporting to create a peerage without including words of limitation will be held to be bad. While the Status of Children Act does not expressly exclude the Crown, since it is not expressed as binding the Crown, this interpretation may freely be arrived at.

He was also an alien, and thereby debarred by common law from possessing land in the kingdom Nenner, Howard, The Right to be King- The Succession to the Crown of England, 3. Heredity, election, nomination, conquest and prescription could each have been pleaded, but reliance on too many grounds showed the weakness of the title. However, it is unclear whether this conditional legitimation was effective. Though there are a number of instances which suggest that illegitimacy was not a bar to succession to the Saxon Throne, since the Conquest all monarchs had been legitimate.

Henry VII did not claim the Throne by inheritance, neither did Elizabeth though hers was a legitimate birth subsequently invalidated. Elizabeth remained illegitimate in canon law, and therefore in the eyes of her Catholic subjects, as well as under 28 Hen VIII c 7 Eng although her title to the Throne was also confirmed, by 1 Eliz c 3 Eng.

Henry may have wanted to protect the rights to succession of any future female children born after Mary and Elizabeth. Whilst men looked back at the reign of Elizabeth with some satisfaction, they were by no means conducive to the idea of a female Sovereign as a regular occurrence. Even earlier, in , Thomas More had told Richard Rich that an Act of Parliament was competent to make Rich, or any other man, king Nenner, supra note 36, at The descendants of Eleanor, cadet branch of the Suffolk line, remained however Levine, Mortimer, Early Elizabethan Succession Question, 1, If the claims of the Scottish line were allowed, the next heir was Mary Queen of Scots.

The Pope might, in any case, grant a dispensation from the canon law which would allow inheritance in accordance with Church law. This would of course present a problem if Church and national laws were to conflict. The actual attempt to convey the Crown by act of nomination was thought to be even less satisfactory than a claim by conquest.

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  • Only God could make an heir, and nearness of blood was a matter not of choice but of divine intervention. It was only with the Statute of Wills 32 Hen VIII c 1 Eng that the right freely to dispose of property was accorded ordinary people; it is hardly surprising that there should be even stronger opposition to giving a similar freedom to kings. He was, in any case, practically the only reasonable choice. It is not clear however to what extent this indicated a desire on his part to revive the Commonwealth. He was however executed for his trouble. Sovereignty became an issue because, in countering the assertions of a fundamental law of succession, the Exclusionists were pressed to contend for the even more basic right of self-protection.

    Sidney argued in Discourses concerning Government that, unless the succession could be grounded in the consent of Parliament, there was no hope of political stability. Charles had persecuted individuals using the Court of the Star Chamber, a secret court that could impose any penalty, even torture, except for death. Charles had also imprisoned individuals without a trial and denied them the right to the writ of habeas corpus.

    The Petition of Right, however, was not successful; in , Charles dissolved Parliament. He ruled alone for the next eleven years, which is sometimes referred to as the eleven years of tyranny or personal rule. Since Parliamentary approval was required to impose taxes, Charles had grave difficulty in keeping the government functional. Charles imposed several taxes himself; these were widely seen as unlawful. During these eleven years, Charles began instituting religious reforms in Scotland, moving it towards the English model.

    He attempted to impose the Anglican Prayer Book on Scottish churches, leading to riots and violence.

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    In , the General Assembly of the Church of Scotland abolished the office of bishop and established Presbyterianism an ecclesiastic system without clerical officers such as bishops and archbishops. Charles sent his armies to Scotland, but was quickly forced to end the conflict, known as the First Bishops' War, because of a lack of funding. Charles granted Scotland certain parliamentary and ecclesiastic freedoms in In , Charles finally called a Parliament to authorise additional taxation.

    Since the Parliament was dissolved within weeks of its summoning, it was known as the Short Parliament.

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    Charles then sent a new military expedition to Scotland to fight the Second Bishops' War. Again, the Royal forces were defeated. Charles then summoned Parliament again, this Parliament becoming known as the Long Parliament , in order to raise funds for making reparations to the Scots. Tension between Charles and Parliament increased dramatically. Charles agreed to abolish the hated Star Chamber, but he refused to give up control of the army.

    In , Charles entered the House of Commons with armed guards in order to arrest his Parliamentary enemies. They had already fled, however, and Parliament took the breach of their premises very seriously. Since Charles, no English monarch has sought to set foot in the House of Commons. The unsafe monarch moved the Royal court to Oxford. Royal forces controlled north and west England, while Parliament controlled south and east England. A Civil War broke out, but was indecisive until , when Parliamentary forces clearly gained the upper hand.

    In , Charles was forced to escape to Scotland, but the Scottish army delivered him to Parliament in Charles was then imprisoned. Charles negotiated with the Scottish army, declaring that if it restored him to power, he would implement the Scottish Presbyterian ecclesiastic model in England. In , the Scots invaded England, but were defeated.

    The House of Commons began to pass laws without the consent of either the Sovereign or the House of Lords, but many MPs still wished to come to terms with the king.

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    Members of the army, however, felt that Charles had gone too far by sideing with the Scots against England and were determined to have him brought to trial. In December an army regiment, Colonel Pride's, used force to bar entry into the House of Commons, only allowing MPs who would support the army to remain. Charles, an ardent believer in the Divine Right of Kings, refused to accept the jurisdiction of any court over him. Therefore, he was by default considered guilty of high treason and was executed on January 30, At first, Oliver Cromwell ruled along with the republican Parliament, the state being known as the Commonwealth of England.

    After Charles' execution, however, Parliament became disunited.

    Civil War and Revolution

    In , he suspended Parliament, and as Charles had done earlier, began several years of rule as a dictator. Later, Parliament was recalled, and in offered to make Cromwell the King. Since he faced opposition from his own senior military officers, Cromwell declined. Instead, he was made a Lord Protector , even being installed on the former King's throne. He was a King in all but name.