The Growth of the English Constitution from the Earliest Times

by Edward A. Freeman

[(42)] The will of Henry the Eighth is fully discussed by Hallam, i. 34, 288, 294; Lingard, vi. 213. There are two Acts of Henry’s reign bearing on the matter. In the earlier one, 28 Henry VIII. c. 7, the Crown is entailed on the King’s sons by Jane Seymour or any other wife; then on the King’s legitimate daughters, no names being mentioned; the Act then goes on to say, “your Highnes shall have full and plenar power and auctorite to geve despose appoynte assigne declare and lymytt by your letters patentes under your great seale or ells by your laste Will made in wrytynge and signed with your moste gracious hande, at your onely pleasure from tyme to tyme herafter, the imperiall Crowne of this Realme and all other the premisses thereunto belongyng, to be remayne succede and come after your decease and for lack of lawfull heires of your body to be procreated and begoten as is afore lymytted by this Acte, to such person or persones in possession and remaynder as shall please your Highnes and according to such estate and after such maner forme facion ordre and condicion as shalbe expressed declared named and lymytted in your said letters patentes or by your said laste will.” The later Act, 35 Henry VIII. c. 1, puts Henry’s two daughters, Mary and Elizabeth, into the entail, but in a very remarkable way. The Acts declaring their illegitimacy are not repealed, nor is the legitimacy of either of them in any way asserted; in fact it is rather denied when the preamble rehearses that “The king’s Majesty hath only issue of his body lawfully begotten betwixt his Highness and his said late wife Queen Jane the noble and excellent Prince Edward.” The Act then goes on to enact that, although the King had been enabled to “dispose” the Crown “to any person or persons of such estate therein as should please his Highness to limit and appoint,” yet that, in failure of heirs of the body of either the King or his son, “the said imperial Crown and all other the premises shall be to the Lady Mary the King’s Highness daughter, and to the heirs of the body of the same Lady Mary lawfully begotten, with such conditions as by his Highness shall be limited by his letters patents under his great seal, or by his Majesty’s last will in writing signed with his gracious hand.” Failing Mary and her issue, the same conditional entail is extended to Elizabeth and her issue. The power of creating a remainder after the issue of Elizabeth of course remained with Henry, and he exercised it in favour of the issue of his younger sister Mary. Mary and Elizabeth therefore really reigned, not by virtue of any royal descent, but by virtue of a particular entail by which the Crown was settled on the King’s illegitimate daughters, as it might have been settled on a perfect stranger. It was an attempt on the part of Edward the Sixth to do without parliamentary authority what his father had done by parliamentary authority which led to the momentary occupation of the throne by Lady Jane Grey. Mary, on her accession, raked up the whole story of her mother’s marriage and divorce, and the Act of the first year of her reign recognized her as inheriting by legitimate succession. The Act passed on the accession of Elizabeth, 1 Eliz. c. 3, is much vaguer. It enacts “that your majestie our sayd Sovereigne Ladye ys and in verye dede and of most meere right ought to bee by the Lawes of God and the Lawes and Statutes of this Realme our most rightfull and lawfull Sovereigne liege Ladie and Quene; and that your Highness ys rightlye lynyallye and lawfully discended and come of the bloodd royall of this Realme of Englande in and to whose princely person and theires of your bodye lawfully to bee begotten after youe without all doubte ambiguitee scruple or question the imperiall and Royall estate place crowne and dignitie of this Reallme withe all honnours stiles titles dignities Regalities Jurisdiccons and preheminences to the same nowe belonging & apperteyning arre & shalbee most fully rightfully really & entierly invested & incorporated united & annexed as rightfully & lawfully to all intentes construccons & purposes as the same were in the said late Henrye theight or in the late King Edwarde the Syxte your Highnes Brother, or in the late Quen Marye your Highnes syster at anye tyme since thacte of parliament made in the xxxvth yere of the reigne of your said most noble father king Henrye theight.”

It should be remembered that Sir Thomas More, though he refused to swear to the preamble of the oath prescribed by the Act of Supremacy, was ready to swear to the order of succession which entailed the Crown on the issue of Anne Boleyn. On his principles the issue of Anne Boleyn would be illegitimate; but he also held that Parliament could settle the Crown upon anybody, on an illegitimate child of the King or on an utter stranger; to the succession therefore he had no objection to swear.

For a parallel to the extraordinary power thus granted to Henry we have to go back to the days of Æthelwulf.

[(43)] The position of the daughters of Henry the Eighth was of course practically affected by the fact that each was the child of a mother who was acknowledged as a lawful wife at the time of her daughter’s birth. There was manifest harshness in ranking children so born with ordinary illegitimate children; but, in strictness of Law, as Henry married Anne Boleyn while Katharine of Aragon was alive, the daughter of Katharine and the daughter of Anne could not both be legitimate. The question was, which marriage was lawful. It should also be remembered that the marriage of Anne Boleyn was declared void, and her daughter declared illegitimate, on grounds—whatever they were—which had nothing to do with the earlier question of the marriage and divorce of Katharine.

[(44)] See Hallam, i. 129; Lingard, vi. 239, 243. The Act 13 Elizabeth, c. 1, declares it to be treason “yf any person shall in any wyse holde and affyrme or mayntayne that the Common Lawes of this Realme not altred by Parlyament, ought not to dyrecte the Ryght of the crowne of England, or that our said sovrayne Ladye Elizabeth the Quenes Majestie that nowe is, with and by the aucthoritye of the Parlyament of Englande is not able to make Lawes and Statutes of suffycyent force and valyditie to lymit and bynd the Crowne of this Realme, and the Descent Lymitacion Inheritaunce and Government thereof.” The like is the crime of “whosoever shall hereafter duryng the Lyef of our said Soveraigne Ladye, by any Booke or Worke prynted or written, dyrectly and expresly declare and affyrme at any tyme before the same be by Acte of Parlyament of this Realme established and affyrmed, that any one particular person whosover it be, is or ought to be the ryght Heire and Successor to the Queenes Majestie that nowe is (whome God longe preserve) except the same be the naturall yssue of her Majesties bodye.”

This statute may possibly be taken as setting aside the claims of the House of Suffolk; but, if so, it sets aside the claims of the House of Stewart along with them.

[(45)] James’s right was acknowledged by his own first Parliament, just as the claims of other Kings who entered in an irregular way had been. It should be marked however that he was crowned before he was acknowledged. The Act 1 Jac. I. c. 1, declares that “immediatelie upon the Dissolution and Decease of Elizabeth late Queene of England, the Imperiall Crowne of the Realme of England, and of all the Kingdomes Dominions and Rights belonging to the same, did by inherent Birthright and lawfull undoubted Succession, descend and come to your moste excellent Majestie, as beinge lineallie justly and lawfullie next and sole Heire of the Blood Royall of this Realme as is aforesaid.” It is worth noticing that in this Act we get the following definition of Parliament; “this high Court of Parliament, where all the whole Body of the Realm and every particular member thereof, either in Person or by Representation (upon their own free elections), are by the Laws of this Realm deemed to be personally present.”

[(46)] The fact that James the First, a King who came in with no title whatever but what was given him by an Act of Parliament passed after his coronation, was acknowledged without the faintest opposition is one of the most remarkable things in our history. Hallam (i. 294) remarks that “there is much reason to believe that the consciousness of this defect in his parliamentary title put James on magnifying, still more than from his natural temper he was prone to do, the inherent rights of primogenitory succession, as something indefeasible by the legislature; a doctrine which, however it might suit the schools of divinity, was in diametrical opposition to our statutes.” Certainly no opposition can be more strongly marked than that between the language of James’s own Parliament and the words quoted above from 13 Eliz. c. 1. But see the remarks of Hallam a few pages before (i. 288) on the kind of tacit election by which it might be said that James reigned. “What renders it absurd to call him and his children usurpers? He had that which the flatterers of his family most affected to disdain—the will of the people; not certainly expressed in regular suffrage or declared election, but unanimously and voluntarily ratifying that which in itself could surely give no right, the determination of the late Queen’s Council to proclaim his accession to the throne.”

[(47)] Whitelocke’s Memorials, 367. “The heads of the charge against the King were published by leave, in this form: That Charles Stuart, being admitted King of England, & therein trusted with a limited power, to govern by, & according to the Laws of the Land, & not otherwise, & by his trust being obliged, as also by his Oath, & office to use the power committed to him, for the good & benefit of the people, & for the preservation of their Rights and Privileges,” etc.

At an earlier stage [365] the President had told the King that the Court “sat here by the Authority of the Commons of England: & all your predecessours, & you are responsible to them.” The King answered “I deny that, shew me one Precedent.” The President, instead of quoting the precedents which were at least plausible, told the prisoner that he was not to interrupt the Court. Earlier still the King had objected to the authority of the Court that “he saw no Lords there which should make a Parliament, including the King, & urged that the Kingdom of England was hereditary, & not successive.” The strong point of Charles’s argument undoubtedly was the want of concurrence on the part of the Lords. Both Houses of Parliament had agreed in the proceedings against Edward the Second and Richard the Second.