Here then is a notable instance of the way in which the latest legislation of England has fallen back upon the principles of the earliest. Here is a point on which the eleventh century and the nineteenth are of one mind, and on which the fanciful scruples of the fourteenth and the seventeenth centuries are no longer listened to. Let us take another instance. In the old Teutonic Constitution, just as in the old Roman Constitution, large tracts of land were the property of the State, the ager publicus of Rome, the folkland of England. As the royal power grew, as the King came to be more and more looked on as the impersonation of the nation, the land of the people came to be more and more looked on as the land of the King, and the folkland of our Old-English charters gradually changed into the Terra Regis of Domesday[(25)]. Like other changes of the kind, the Norman Conquest only strengthened and brought to its full effect a tendency which was already at work; but there can be no doubt that, down to the Norman Conquest, the King at least went through the form of consulting his Witan, before he alienated the land of the people to become the possession of an individual—in Old-English phrase, before he turned folkland into bookland[(26)]. After the Norman Conquest we hear no more of the land of the people; it has become the land of the King, to be dealt with according to the King’s personal pleasure. From the days of the first William to those of the Third, the land which had once been the land of the people was dealt with without any reference to the will of the people. Under a conscientious King it might be applied to the real service of the State, or bestowed as the reward of really faithful servants of the State. Under an unconscientious King it might be squandered broadcast among his minions or his mistresses[(27)]. Now this wrong too is redressed. A custom as strong as law now requires that, at the beginning of each fresh reign, the Sovereign shall, not by an act of bounty but by an act of justice, give back to the nation the land which the nation lost so long ago. The royal demesnes are now handed over to be dealt with like the other revenues of the State, to be disposed of by Parliament for the public service[(28)]. That is to say, the people have won back their own; the usurpation of the days of foreign rule has been swept away. We have in this case too gone back to the sound principles of our forefathers; the Terra Regis of the Norman has once more become the folkland of the days of our earliest freedom.
I will quote another case, a case in which the return from the fantasies of lawyers to the common sense of antiquity has been distinctly to the profit, if not of the abstraction called the Crown, yet certainly to that of its personal holder. As long as the folkland remained the land of the people, as long as our monarchy retained its ancient elective character, the King, like any other man, could inherit, purchase, bequeath, or otherwise dispose of, the lands which were his own private property as much as the lands of other men were theirs. We have the wills of several of our early Kings which show that a King was in this respect as free as any other man[(29)]. But as the lawyers’ figment of hereditary right took root, as the other lawyers’ figment also took root by which the lands of the people were held to be at the personal disposal of the King, a third figment grew up, by which it was held that the person and the office of the King were so inseparably fused into one that any private estates which the King held before his accession to the throne became ipso facto part and parcel of the royal demesne. As long as the Crown remained an elective office, the injustice of such a rule would have made itself plain; it would have been at once seen to be as unreasonable as if it had been held that the private estates of a Bishop should merge in the estates of his see. As long as there was no certainty that the children or other heirs of the reigning King would ever succeed to his Crown, it would have been the height of injustice to deprive them in this way of their natural inheritance. The election of a King would have carried with it the confiscation of his private estate. But when the Crown was held to be hereditary, when the folkland was held to be Terra Regis, this hardship was no longer felt. The eldest son was provided for by his right of succession to the Crown, and the power of disposing of the Crown lands at pleasure gave the King the means of providing for his younger children. Still the doctrine was none the less unreasonable; it was a doctrine founded on no ground either of natural justice or of ancient law; it was a mere inference which had gradually grown up out of mere arbitrary theories about the King’s powers and prerogatives. And, as the old state of things gradually came back again, as men began to feel that the demesnes of the Crown were not the private possession of the reigning King, but were the true possession of the people—that is, as the Terra Regis again came back to its old state of folkland—it was felt to be unreasonable to shut out the Sovereign from a natural right which belonged to every one of his subjects. The land which, to put it in the mildest form, the King held in trust for the common service of the nation was now again employed to its proper use. It was therefore reasonable that a restriction which belonged to a past state of things should be swept away, and that Sovereigns who had given up an usurped power which they ought never to have held should be restored to the enjoyment of a natural right which ought never to have been taken from them. As our present Sovereign in so many other respects holds the place of Ælfred rather than the place of the Richards and Henries of later times, so she again holds the right which Ælfred held, of acquiring and disposing of private property like any other member of the nation[(30)].
These examples are, I hope, enough to make out my case. In each of them modern legislation has swept away the arbitrary inferences of lawyers, and has gone back to those simpler principles which the untutored wisdom of our forefathers never thought of calling in question. I could easily make the list much longer. Every act which has restrained the arbitrary prerogative of the Crown, every act which has secured or increased either the powers of Parliament or the liberty of the subject, has been a return, sometimes to the letter, at all times to the spirit, of our earliest Law. But I would enlarge on one point only, the most important point of all, and a point in which we may at first sight seem, not to have come nearer, but to have gone away further from the principles of early times. I mean with regard to the succession to the Crown. The Crown was of old, as I have already said, elective. No man had a right to become King till he had been called to the kingly office by the choice of the Assembly of the nation. No man actually was King till he had been admitted to the kingly office by the consecration of the Church. The doctrines that the King never dies, that the throne never can be vacant, that there can be no interregnum, that the reign of the next heir begins the moment the reign of his predecessor is ended, are all figments of later times. No signs of such doctrines can be found at any time earlier than the accession of Edward the First[(31)]. The strong preference which in early times belonged to members of the kingly house, above all to the born son of a crowned King[(32)], gradually grew, under the influences which the Norman Conquest finally confirmed, into the doctrine of absolute hereditary right. That doctrine grew along with the general growth of the royal power; it grew as men gradually came to look on kingship as a possession held by a single man for his own profit, rather than as an office bestowed by the people for the common good of the realm. It might seem that, in this respect at least, we have not gone forward, but that we rather have gone back. For nothing is more certain than that the Crown is more strictly and undoubtedly hereditary now than it was in the days of Normans, Angevins, or Tudors. But a little thought will show that in this case also, we have not gone back but have gone forward. That is to say, we have gone forward by going back, by going back, in this case, not to the letter, but assuredly to the spirit of earlier times. The Crown is now more undoubtedly hereditary than it was in the fifteenth or sixteenth century; but this is because it is now hereditary by Law, because its powers are distinctly defined by Law. The will of the people, the source of all Law and of all power, has been exercised, not in the old form of personally choosing a King at every vacancy of the Crown, but by an equally lawful exercise of the national will, which has thought good to entail the Crown on a particular family.
It was in the reign of our last elective King that the Crown first became legally hereditary. The doctrine may seem a startling one, but it is one to which an unbiassed study of our history will undoubtedly lead us. Few things are more amusing than the treatment which our early history has met with at the hands of purely legal writers. There is something almost pitiable in the haltings and stumblings of such a writer as Blackstone, unable to conceive that his lawyer’s figment of hereditary right was anything short of eternal, and yet coming at every moment across events which showed that in early times all such figments were utterly unknown[(33)]. In early times the King was not only elected, but he went through a twofold election. I have already said that the religious character with which most nations have thought good to clothe their Kings took in England, as in most other Christian lands, the form of an ecclesiastical consecration to the kingly office. That form we still retain; but in modern times it has become a mere form, a pageant impressive no doubt and instructive, but still a mere pageant, which gives the crowned King no powers which he did not equally hold while still uncrowned. The death of the former King at once puts his successor in possession of every kingly right and power; his coronation in no way adds to his legal authority, however much it may add to his personal responsibility towards God and his people. But this was not so of old time. The choice of the national Assembly gave the King so chosen the sole right to become King, but it did not make him King. The King-elect was like a Bishop-elect. The recommendation of the Crown, the election of the Chapter, and the confirmation of the Archbishop, give a certain man the sole right to a certain see, but it is only the purely religious rite of consecration which makes him actually Bishop of it[(34)]. So it was of old with a King. The choice of the Witan made him King-elect, but it was only the ecclesiastical crowning and anointing which made him King. And this ecclesiastical ceremony involved a further election. Chosen already to the civil office by the Nation in its civil character, he was again chosen by the Church—that is, by the Nation in its religious character, by the Clergy and People assembled in the church where the crowning rite was to be done[(35)]. This second ecclesiastical election must always have been a mere form, as the choice of the nation was already made before the ecclesiastical ceremony began. But the ecclesiastical election survived the civil one. The state of things which lawyers dream of from the beginning is a law of strict hereditary succession, broken in upon by occasional interruptions. These interruptions, which, in the eye of history, are simply exercises of an ancient right, are, in the eyes of lawyers, only revolutions or usurpations. But this state of things, a state in which a fixed rule was sometimes broken, which Blackstone dreams of in the tenth and eleventh centuries, really did exist from the thirteenth century onwards. From the accession of Edward the First, the first King who reigned before his coronation, hereditary succession became the rule in practice. The son, or even the grandson, of the late King[(36)] was commonly acknowledged as a matter of course, without anything which could fairly be called an election. But the right of Parliament to settle the succession was constantly exercised, and ever and anon we come across signs which show that the ancient notion of an election of a still more popular kind had not wholly passed away out of men’s minds. Two Kings were formally deposed, and on the deposition of the second the Crown passed, as it might have done in ancient times, to a branch of the royal house which was not the next in lineal succession. Three Kings of the House of Lancaster reigned by a good parliamentary title, and the doctrine of indefeasible hereditary right, the doctrine that there was some virtue in a particular line of succession which the power of Parliament itself could not set aside, was first brought forward as the formal justification of the claims of the House of York[(37)]. Those claims in truth could not be formally justified on any showing but that of the most slavish doctrine of divine right, but it was not on any such doctrine as that that the cause of the House of York really rested. The elaborate list of grandmothers and great-grandmothers which was brought forward to show that Henry the Fifth was an usurper would never have been heard of if the government of Henry the Sixth had not become utterly unpopular, while Richard Duke of York was the best beloved man of his time. Richard accepted a parliamentary compromise, which of course implied the right of Parliament to decide the question. Henry was to keep the Crown for life, and Richard was to displace Henry’s son as heir-apparent. That is to say, according to a custom common in Germany, though rare in England, Richard was chosen to fill a vacancy in the throne which had not yet taken place[(38)]. Duke Richard fell at Wakefield; in the Yorkist reading of the Law the Crown was presently forfeited by Henry, and Edward, the heir of York, had his claim acknowledged by a show of popular election which carries us back to far earlier times. The claim of Richard the Third, whatever we make of it on other grounds, was acknowledged in the like sort by what had at least the semblance of a popular Assembly[(39)]. In short, though the hereditary principle had now taken firm root, though the disputes between the pretenders to the Crown were mainly disputes as to the right of succession, yet the remembrance of the days when the Crown had been truly the gift of the people had not wholly passed away.
The last King who could bring even the shadow of a claim to have been chosen by the voice of the people beneath the canopy of heaven was no other than Richard the Third. The last King who could bring a better claim to have been chosen by the same voice beneath the vault of the West Minster was no other than Henry the Eighth. Down to his time the old ecclesiastical form of choosing the King remained in the coronation-service, and it was not wholly out of character that Henry should issue a congé d’élire for his own election. The device for Henry’s coronation survives in his own handwriting, and, while it contains a strong assertion of his hereditary right, it also contains a distinct provision for his election by the people in ancient form[(40)]. The claim of Henry was perfectly good, for a Parliament of his father’s reign had declared that the Crown should abide in Henry the Seventh and the heirs of his body[(41)]. But it was in his case that the hereditary and parliamentary claim was confirmed by the ancient rite of ecclesiastical election for the last time in our history. His successor was not thus distinctly chosen. This was perhaps, among other reasons, because in his case the form was specially needless. For the right of Edward the Sixth to succeed his father was beyond all dispute. By an exercise of parliamentary power, which we may well deem strange, but which was none the less lawful, Henry had been entrusted with the power of bequeathing and entailing the Crown as he thought good. That power he exercised on behalf of his own children in order, and, failing them and their issue, on the issue of his younger sister[(42)]. Edward, Mary, Elizabeth, therefore all reigned lawfully by virtue of their father’s will. A moment’s thought will show that Mary and Elizabeth could not both reign lawfully according to any doctrine of hereditary succession. On no theory, Catholic or Protestant, could both be the legitimate daughters of Henry. Parliament indeed had declared both to be illegitimate; on any theory one or the other must have been so[(43)]. But each reigned by a perfectly lawful title, under the provisions of the Act which empowered their father to settle the succession according to his pleasure. While Elizabeth reigned, almost divine as she might be deemed to be in her own person, it was at least not held that there was any divine right in any other person to succeed her. The doctrine which came into vogue under her successors was in her day looked upon as treasonable[(44)]. Elizabeth knew where her strength lay, and the Stewarts knew where their strength, such as it was, lay also. In the eye of the Law the first Stewart was an usurper; he occupied the Crown in the teeth of an Act of Parliament still in force, though he presently procured a fresh Act to salve over his usurpation[(45)]. There can be no doubt that, on the death of Elizabeth, the lawful right to the Crown lay in the house of Suffolk, the descendants of Henry’s younger sister Mary. But the circumstances of the time were unfavourable to their claims; by a tacit agreement, politically convenient, but quite in the teeth of the existing Law, the Crown silently passed to the King of Scots, the descendant of Henry’s elder sister Margaret. She had not been named in Henry’s entail; her descendants therefore, lineal heirs of William and Cerdic as they were, had no legal claim to the Crown beyond what was given them by the Act of Parliament which was passed after James was already in possession. They were therefore driven, like the Yorkists at an earlier time, to patch up the theory of the divine right of hereditary succession, in order to justify an occupation of the throne which had nothing to justify it in English Law[(46)].
On one memorable day a Stewart King was reminded that an English King received his right to reign from the will of the English people. Whatever else we may say of the nature or the acts of the tribunal before which Charles the First was arraigned, it did but assert the ancient Law of England when it told how “Charles Stewart was admitted King of England, and therein trusted with a limited power, to govern by and according to the laws of the land and not otherwise.” It did but assert a principle which had been acted on on fitting occasions for nine hundred years, when it told its prisoner that “all his predecessors and he were responsible to the Commons of England.” Forgetful of the fate of Sigeberht and Æthelred, of Edward and of Richard, Charles ventured to ask for precedents, and told his judges that “the Kingdom of England was hereditary and not successive” [(47)]. After a season, the intruding dynasty passed away, on that great day when the English people exercised for the last time its ancient right of deposing and electing Kings. The Convention of which we have so often spoken, that great Assembly, irregular in the eyes of lawyers, but in truth all the more lawful because no King’s writ had summoned it, cast all fantasies and subtleties to the winds by declaring that the throne was vacant. A true Assembly of the nation once more put forth its greatest power, and chose William of Orange, as, six hundred years before, another Assembly of the nation had chosen Harold the son of Godwine. The cycle had come round, and the English people had won back again the rights which their fathers had brought with them from their old home beyond the sea. Nor was it without fitness that their choice went back to those kindred lands, and that a new William crossed the sea to undo, after so many ages, the wrongs which England had suffered from his namesake. And now, under the rule of an elective King, England could at last afford to make her Crown strictly and permanently hereditary. The Act of Settlement, as we all know, entailed the Crown on the Electress Sophia and her heirs[(48)]. Therefore no Kings have ever reigned by a better right than those who, by virtue of that Act, have been called to reign by the direct operation of the Law. They are in truth Kings—Cyningas in the most ancient sense—whose power flows directly from the will of the nation. In the existing state of our institutions, the hereditary character of our modern kingship is no falling away from ancient principles; it in truth allows us to make a fuller application of them in another shape. In an early state of things no form of government is so natural as that which we find established among our forefathers. A feeling which was not wholly sentimental demanded that the King should, under all ordinary circumstances, be the descendant of former Kings. But a sense that some personal qualification was needed in a ruler required that the electors should have the right of freely choosing within the royal house. In days when Kings governed as well as reigned, such a choice, made with some regard to the personal qualities of the King chosen, was the best means for securing freedom and good government. Under the rule of a conventional constitution, when Kings reign but do not govern, when it is openly professed in the House of Commons that it is to that House that the powers of government have passed[(49)], the objects which were once best secured by making kingship elective are now best secured by making kingship hereditary. It is as the Spartan King said: by lessening the powers of the Crown, its possession has become more lasting[(50)]. A political system like ours would be inconsistent with an elective kingship. An elective King could not be trusted simply to reign; he would assuredly govern, or try to govern. We need not suppose that he would attempt any breaches of the written Law. But those powers which the written Law attaches to the Crown he would assuredly try to exercise according to his own personal views of what was right and expedient. And he would assuredly be justified in so doing. For the personal choice of a certain man to be King would in all reason be held to imply that he was personally fit for the work of government. He would be a President or Prime Minister chosen for life, one whom there would be no means of removing from office except by the most extreme and most unusual exercise of the powers of Parliament. There are states of society in which an elective Monarchy is a better kind of government than either a Commonwealth or an hereditary Monarchy. But, under the present circumstances of the civilized states of Europe and America, the choice lies between the hereditary Monarchy and the Commonwealth. The circumstances of our history have made us an hereditary Monarchy, just as the circumstances of the history of Switzerland have made that country a Federal Commonwealth. And no reasonable person will seek to disturb an institution which, like other English institutions, has grown up because it was wanted[(51)]. Our unwritten Constitution, which gives us an hereditary Sovereign, but which requires his government to be carried on by Ministers who are practically chosen by the House of Commons, does in effect attain the same objects which were sought to be attained by the elective kingship of our forefathers. Our system gives the State a personal chief, a personal embodiment of the national being, which draws to itself those feelings of personal homage and personal duty which a large class of mankind find it hard to look upon as due to the more abstract ideas of Law and Commonwealth. And, when the duties of constitutional royalty are discharged as our own experience tells us that they may be discharged, the feeling awakened is more than a mere sentiment; it is a rational feeling of genuine personal respect. But widely as the hereditary kingship of our latest times differs in outward form from the hereditary kingship of our earliest times, the two have points of likeness which are not shared by kingship in the form which it took in the ages between the two. In our earliest and in our latest system, the King exists for the sake of the people; in the intermediate times it sometimes seemed that the people existed for the sake of the King. In our earliest and in our latest system, the King is clothed with an office, the duties of which are to be discharged for the common good of all. In the intermediate times it sometimes seemed as if the King had been made master of a possession which was to be enjoyed for his personal pleasure and profit. In the intermediate times we constantly hear of the rights and powers of the Crown as something distinct from, and almost hostile to, the common rights of the people. In our earliest and in our latest times, the rights of the Crown and the rights of the people are the same, for it is allowed that the powers of the Crown are to be exercised for the welfare of the people by the advice and consent of the people or their representatives. Without indulging in any Utopian dreams, without picturing to ourselves the England of a thousand years back as an earthly paradise, the voice of sober history does assuredly teach us that those distant times have really much in common with our own, much in which we are really nearer to them than to times which, in a mere reckoning of years, are far less distant from us. Thus it is that the cycle has come round, that the days of foreign rule have been wiped out, and that England is England once again. Our present Sovereign reigns by as good a right as Ælfred or Harold, for she reigns by the same right by which they reigned, by the will of the people, embodied in the Act of Parliament which made the crown of Ælfred and Harold hereditary in her ancestress. And, reigning by the same right by which they reigned, she reigns also for the same ends, for the common good of the nation of which the Law has made her the head. And we can wish nothing better for her kingdom than that the Crown which she so lawfully holds, which she has so worthily worn among two generations of her people, she may, like Nestor of old, continue to wear amid the well-deserved affection of a third[(52)].