“La lei de la Corone Dengleterre est, et ad este touz jours tiele, que les enfantz des Rois Dengleterre, queu part qils soient neez en Engleterre ou aillors, sont ables et deivent porter heritage, apres la mort lour auncestors.”
The object of the statute is something quite different from what any one would think from Blackstone’s way of quoting it. The emphatic words are those which are put in italics. The object of the statute is to make the King’s children and others born of English parents beyond sea capable of inheriting in England. As far as the succession to the Crown is concerned, its effect is simply to put a child of the King born out of the realm on a level with his brother born in the realm; that is, in the view of our older Law, to give both alike the preference due to an Ætheling.
[(34)] It is as well to explain this, because most people seem to think that a man becomes a Bishop by virtue of receiving a private letter from the First Lord of the Treasury. We constantly see a man spoken of as Bishop of such a see, and his works advertised as such, before a single ecclesiastical or legal step has been taken to make him so.
[(35)] See Norman Conquest, iii. 44, 623.
[(36)] The succession of a grandson, which first took place in England in the case of Richard the Second, marks a distinct stage in the growth of the doctrine of hereditary right. It involves the doctrine of representation, which is a very subtle and technical one, and is not nearly so obvious or so likely to occur in an early state of society as the doctrine of nearness of kin. No opposition was made to the accession of Richard the Second, but there seems to have been a strong notion in men’s minds that John of Gaunt sought to displace his nephew. In earlier times, as the eldest and most eminent of the surviving sons of Edward the Third, John would probably have been elected without any thought of the claims of young Richard.
[(37)] In Yorkist official language the three Lancastrian Kings were usurpers, and Duke Richard was de jure, though not de facto, King. Henry the Sixth is, in the Act of 1461, “Henry Usurpour, late called Kyng Henry the sixt.” The claim of the House of York was through an intricate female descent from Lionel Duke of Clarence, a son of Edward the Third older than John of Gaunt. A claim so purely technical had never been set forth before; but we may be quite sure that it would not have been thought to have much weight, if Duke Richard had not been, by another branch, descended from Edward the Third in the male line, and if he had not moreover been the ablest and most popular nobleman in the country.
[(38)] A prospective election before the vacancy of course hindered any interregnum. In this case the formula “Le Roi est mort; vive le Roi,” was perfectly true. The new King was already chosen and crowned, and he had nothing to do but to go on reigning singly instead of in partnership with his father, just as William went on reigning alone after the death of Mary. In Germany this took place whenever a King of the Romans was chosen in the lifetime of the reigning Emperor. In France, under the early Kings of the Parisian dynasty, the practice was specially common, and the fact that there seldom or never was an interregnum doubtless helped much to make the French Crown become, as it did, the most strictly hereditary crown in Christendom. In England, the only distinct case of a coronation of a son during the lifetime of his father was that of Henry, the son of Henry the Second, known as the younger King, and sometimes as Henry the Third. In earlier times we get something like it in the settlement of the Crown by Æthelwulf, with the consent of his Witan (see Old-English History, 105, 106), but it does not seem clear whether there was in this case any actual coronation during the father’s lifetime. If there was not, this would be the case most like that of Duke Richard. The compromise placed the Duke in the same position as if he had been Prince of Wales, or rather in a better position, for it might be held to shut out the need of even a formal election on the King’s death.
[(39)] See note 59 on Chapter II.
[(40)] See Norman Conquest, iii. 623.
[(41)] See Hallam’s Constitutional History, i. 8. It is to be noticed that the settlement enacts that “the inheritance of the Crown, &c., should remain in Henry the Seventh and the heirs of his body for ever, and in none other.” This would seem to bar a great number of contingent claims in various descendants of earlier Kings. As it happens, this Act has been literally carried out, for every later Sovereign of England has been a descendant of the body of Henry the Seventh.