county. The command of the Militia, as the local forces The Militia. were usually denominated, formed the final ground of rupture between Charles and his Parliament, the latter having passed ordinances (26 Feb. and 6 March, 1642) superseding the King's commissions of lieutenancy by the appointment of fifty-five Commissioners of Array, with power to suppress 'all insurrections, rebellions, and invasions.' This proceeding, however necessary it may have been at the time for the peace and safety of the kingdom, was clearly illegal. After the Restoration an Act of Parliament declared that the sole supreme government of the militia, and of all forces by sea and land, and of all forts and places of strength, was, and by the laws of England ever had been, the undoubted right of the kings and queens of England, and that neither House of Parliament could pretend to the same, nor lawfully levy war, offensive or defensive, against the King.1 By another Act, provision was made for calling together, arming, and arraying the militia, by the King's lieutenants of counties, and for charging the cost upon the landholders in The ancient proportion to the value of their estates. But concurrently force superwith the growth of a standing army, the local forces lan- seded by standing guished for a lengthened period, until revived and remo- army at end delled in 1757, in consequence of a panic caused by rumours of 17th cenof a French armament, as the national Militia

national

tury, until revived in 1757 as the militia.

113 Car. II., st. 1, c. 6.

2 14 Car. II., c. 3.

3 Hallam, Const. Hist. ii. 133, iii. [259]. Militiamen were to be chosen by ballot to serve for a limited number of years, but were not to be compelled to march out of their own country except in case of invasion or rebellion. In 1829, the practice was commenced and has ever since been continued, of passing an annual Act suspending the Militia ballot, the supply being fur nished by voluntary enlistment. But the same Act which temporarily suspends the law empowers the Queen in Council to at once order a ballot should necessity require it.

194

The English Kingship elective, both before

and after the Conquest.

CHAPTER VI.

THE SUCCESSION TO THE CROWN.

THE elective character of the old English kingship, but with the choice exclusively limited, under all ordinary circumstances, to the members of one royal house, has been already discussed in a previous chapter. The Norman Conquest introduced a new dynasty, and a more comprehensive idea of Royalty, combining both the national and feudal theories of sovereignty; but it effected no legal change in the nature of the succession to the crown. Election by the National Assembly was still necessary to confer an inchoate right to become King-a right subsequently perfected by the ecclesiastical ceremony of inunction and coronation. So strongly marked was the elective character of the kingly office that, even after the choice of the Nation had been once made, the form of election was again gone through by the clergy and people assembled in

1 Supra, p. 28, 34-35.

On the origin of coronation and unction see Stubbs, Const. Hist. i. 144, 145. The ancient English kings were both crowned with a helmet and anointed. The ceremony was understood as bestowing the divine ratification on the election that had preceded it, and as typifying rather than conveying the spiritual gifts for which prayer was made. That it was regarded as conveying any spiritual character, or any special ecclesiastical prerogative, there is nothing to show rather, from the facility with which crowned kings could be set aside and new ones put in their place, without any objection on the part of the bishops, the exact contrary may be inferred. That the powers that be are ordained of God, was a truth recognised as a motive to obedience, without any suspicion of the doctrine, so falsely imputed to churchmen of all ages, of the indefeasible sanctity of royalty. . . The statements of Allen (Prerogative, p. 22) on this point are very shallow and unfair. To attribute the ideas of the seventeenth century to the ages of S. Gregory, Anselm, and Becket, seems an excess of absurdity.'-Ibid. p. 146 [and n. 2].

the church at the coronation. The doctrine of the heredi- Growth of

tary descent of the crown gradually grew up, as the terri- the doctrine of hereditary torial idea of kingship superseded the personal idea, during right. the two centuries after the Conquest. As the King of the English developed into the King of England,3 the feudal lord of the land, the kingdom came to be regarded by kings and courtiers as the private possession of the Sovereign, to be enjoyed for his own personal profit; and by degrees the feudal lawyers, arguing from a false analogy, applied to the Crown the same principles of strict hereditary right which had already begun to regulate the descent of a private inheritance. But the forms of election and coronation still continued, and periodically, as the throne became vacant on the death of each Sovereign, bore witness to the fallacy of this legal theory. Edward II., who succeeded in 1307, was the first king whose reign was dated from the day following the death of his predecessor. In him, then, the principle of hereditary right appeared to have finally triumphed over the old elective system. But the true nature of the Crown as an office or trust, and the continuing right of the Nation to regulate the succession to it, were signally re-asserted not twenty years later, by the formal deposition of this unfortunate King. This per

1 See Maskell, Monumenta Ritualia Ecclesiae Anglicanae, vol. iii.; Freeman, Norm. Conq. iii. 44, 623.

2 Supra, p. 45.

3 John was the first who called himself 'Rex Angliae' on his great seal; all his predecessors had been 'Kings of the English.'

If the descendants of the Conqueror had succeeded one another by the ordinary rule of inheritance, there can be no doubt but that the forms as well as the reality of ancient liberty would have perished. Owing to the necessity, however, under which each of them lay, of making for himself a title in default of hereditary right, the ancient framework was not set aside; and perfunctory as to a great extent the forms of election and coronation were, they did not lose such real importance as they had possessed earlier, but furnished an important acknowledgment of the rights of the nation, as well as a recognition of the duties of the king. The crown, then, continues to be elective: the form of coronation is duly performed: the oath of good government is taken, and the promises of the oath are exemplified in the form of charters. . . . The recog nition of the king by the people was effected by the formal acceptance at the coronation of the person whom the national council had elected, by the acts of homage and fealty performed by the tenants-in-chief, and by the general oath of allegiance imposed upon the whole people, and taken by every freeman once at least in his life.'-Stubbs, Const. Hist. i. 338, 339.

William the

A. D. 1066.

William Rufus, A.D. 1087.

sistence of the national right to choose the Sovereign, the same in principle whether applied to the individual King or to the selected dynasty, we shall now consider somewhat more in detail.

We have seen how William the Norman found little dif

Conqueror, ficulty, immediately after the Battle of Hastings, in procuring his election by the terrified Witan. After taking the ancient oath of the English kings, constituting a compact with the nation to govern with justice and equity, he was duly crowned at Westminster by the Archbishop of Accession of York.1 On his death-bed the Conqueror bequeathed to his eldest surviving son, Robert, the patrimonial Duchy of Normandy. The Crown of England he would not attempt to bequeath, declaring that he held it not by hereditary right; he left the succession to the decision of God. He expressed, however, his ardent wish that his younger and favourite son William should succeed to the kingship of the English, in much the same way as formerly Edward the Confessor had recommended his brother-in-law Harold.3 Furnished with a recommendatory letter from his father to Archbishop Lanfranc, as the head of the Witenagemot, William Rufus at once hastened to England. Here he was obliged to make a triple promise, to rule his future subjects with justice, equity, and mercy, to protect the rights and privileges of the Church, and to conform to the Primate's counsels in all things-before Lanfranc would declare in his favour. Having secured this powerful supporter, he was elected King at a meeting of the prelates and barons, in the third week after his father's death, and immediately crowned with the usual solemnities.*

Henry I.

A. D. IIOC.

On the death of William Rufus in the New Forest, on the 2nd of August, 1100, his younger brother Henry, being close at hand, and having secured the royal treasure, was

1 Supra, p. 47.

2 Neminem Anglici regni constituo haeredem, sed aeterno Conditori Cujus sum et in Cujus manu sunt omnia illud commendo: non enim tantum decus hereditario jure possedi.-Ordericus Vital. vii. 15.

3 Order. Vital. vii. 15, 16.

4 Eadmer, Hist. Nov. lib. i. p. 13; A.-Sax. Chron. 192; Lingard, ii. 76.

hastily elected King the following day at Winchester.1 But, although the election was the hurried act of a small number of the barons, it was something more than a mere form. The claims of Henry's absent elder brother, Robert the Crusader, were advanced and discussed. They rested not merely on priority of birth, but upon the wishes of the late King, expressed in the arrangement which he had made with Duke Robert, at Caen, in 1091, that each should be heir to the other in case of his dying childless. Ultimately the arguments of the Earl of Warwick gained a decision in Henry's favour; and two days afterwards. (Aug. 5) he was crowned at Westminster by Maurice, Bishop of London, and took the ancient coronation oath of the English kings. In the Charter of Liberties, which he issued at the same time, he announces to the nation his coronation Dei misericordia et communi consilio baronum totius regni Angliae.*

3

The male line of the Conqueror became extinct on the Stephen. death of Henry I. The late King had endeavoured to A.D. 1135. secure the crown to his own offspring, first by inducing the baronage to do homage and fealty to his son William and, after the untimely death of the Atheling, by exacting, on three separate occasions, an oath from the prelates and barons to acknowledge the Empress Matilda as his successor. This was a stretch of the King's constitutional

1 William Rufus was slain on a Thursday and buried the next morning; and after he was buried, the Witan, who were then near at hand, chose his brother Henry as King, and he forthwith gave the bishopric of Winchester to William Giffard, and then went to London.' -A.-Sax. Chron. A. D. 1100. 2 A. D. II00. Occiso vero rege Willelmo. (Henricus) in regem electus est, aliquantis tamen ante controversiis inter proceres agitatis atque sopitis, annitente maxime comite Warwicensi Henrico.-Will. Malmes. Gesta Regum, v. § 393.

...

3 The exact words of the oath, agreeing with the ancient form used at the coronation of King Ethelred II. have been preserved: In Christi nomine promitto haec tria populo Christiano mihi subdito. In primis me praecepturum et opem pro viribus impensurum ut ecclesia Dei et omnis populus Christianus veram pacem nostro arbitrio in omni tempore servet ; aliud ut rapacitates et omnes iniquitates omnibus gradibus interdicam; tertium ut in omnibus judiciis aequitatem et misericordiam praecipiam, ut mihi et vobis indulgeat Suam misericordiam clemens et misericors Deus.-Maskell, Mon. Rit. iii. 5, 6: Select Chart. 95.

4 Thorpe, Ancient Laws and Institutes, 215.