been the theory of the Constitution down to the time of Earl Harold, in whose person the theory was practically exemplified; and what, if we except the denial of any preference to members of the royal house, had actually been the ordinary practice both before and since the Conquest.1 In the preamble of a charter issued by John shortly after his accession he was careful to unite both his titles: Rex jure haereditario, et mediante tam cleri et populi consensu et favore?

A.D. 1216.

There was every probability that a justly incensed nation Henry III. would have compelled the House of Anjou to yield the throne of England to a new dynasty, when the death of John on the 19th of October, 1216, removed the chief cause of offence, and gave his family one more chance before it was too late. The young Henry was hastily crowned at Gloucester on the 28th of October, by the legate Gualo;3 but he owed his kingdom to the energy and statesmanship of the Regent Pembroke, who, by timely concessions, secured, with much difficulty, the adhesion of the majority of the nation. Arthur of Brittany had left a sister Eleanor known as the Damsel of Brittany' who survived till 1241, but she seems never to have been regarded as having a claim to the succession.5

1 Matthew Paris supposes that the archbishop, warned of John's utter faithlessness and foreseeing the troubles of his reign, wished to impress upon him and upon the people that as an elected king he must do his duty under pain of forfeiture. But the speech of Hubert was probably in itself nothing more than a declaration of John's fitness to be elected, the recollection of which would naturally recur to those who heard it when they found out how unfit he was to reign. The enunciation however of the elective character of the royal dignity is of importance, whether it be due to the archbishop or the historian.' -Stubbs, Const. Hist. i. 515.

2 Rymer, i. 76.

3 Ann. Waverl. p. 286. At the coronation only Gualo the Legate, the bishops of Winchester, Worcester, Coventry, and Bath, and the earls of Chester, Pembroke, Ferrers, Wm. Brewer and Savary de Maulac were present: Reliqui omnes comites et barones sequebantur Ludowicum. Nec multo post Gualo legatus concilium celebravit apud Bristollas in festivitate Sancti Martini, in quo coegit undecim episcopos Angliae et Walliae qui praesentes erant, et alios praelatos inferioris ordinis, sed et comites et barones ac milites qui convenerant, Henrico regi fidelitatem jurare.—Ibid.

• Supra, p. 141.

5 Both Glanvill and Bracton were inclined to favour the claim of the nephew as against the uncle in the succession to private inheritances. But so long as Eleanor lived the ‘casus regis' seems to have been regarded as an obstacle in

Edward I.

Down to Henry III. inclusive the reign of each king is A.D. 1272. dated from his coronation only. The interregnum between the death of the old and the coronation of the new King was always made as short as possible, in consequence of the serious inconvenience resulting from the doctrine that the king's peace was interrupted during a vacancy of the throne. But when the coronation was delayed, as happened in the cases of Henry II., Richard I., and John, who had each been absent in France at the death of his predecessor, the regal title was never assumed until the process of election and coronation had been gone through. Until then they were only entitled 'Dux Normanniae,' or, as Richard I. was styled in the proclamation issued by his mother—and also in a charter granted by him before his coronation, 'Dominus Angliae.'3 Edward I. was the first King who reigned before his coronation. His father, Henry III. died on the 16th Nov., 1272, whilst Edward was absent in Palestine. Four days afterwards, when Henry was buried in Westminster Abbey, the Earl of Gloucester, with the prelates and barons, swore allegiance to Edward as King. His hereditary claim perfected by the fealty of the baronagethe old election in a feudal guise-appears to have been now regarded as conferring the name of King previous to coronation. But the idea of election, and the necessity for consent to a king's accession were still preserved. During the four days which elapsed between the death of Henry

the way of a judicial decision for the nephew. In treating of the writ of entry, Bracton, f. 327 b., says expressly, et cum de propinquitate constiterit quamdiu casus regis duraverit nunquam ad judicium proceditur.-Twiss's Bracton, i.

xlv.

1 Nicolas, Chronol. of Hist. 272.

2 Supra, p. 200.

3 Archæologia, xxvii. 109.

Antequam corpus regis Henrici traditum esset sepulturae, Gilebertus comes Gloverniae . . . proprie voluntate ductus, tactis sacrosanctis corporale praestitit juramentum, quod pacem regni pro viribus suis custodiret, et fidelitatem domino Edwardo tanquam domino suo per omnia observaret. Similiter dictus archiepiscopus Eboracensis, et etiam Herefordiae et Warrenae comites, et multi alii qui tunc praesentes erant ibidem. Ann. Winton. p. 112. Magnates regni nominarunt Edwardum filium suum in regem.

Annal. Dunst.

p. 254. Recognoverunt paternique successorem honoris ordinaverunt. Rishanger, p. 75. Nominare' and 'ordinare' imply much more than passive acquiescence in the succession of an heir.

and the recognition of Edward as King, the throne was legally vacant. The new King's reign was dated not from the death of his father, but from the day on which the oath of fealty was taken:1 and in the order for the proclamation of the King's peace, issued in his name three days later by the royal council, Edward asserts the crown of England to have devolved upon him successione haereditaria ac procerum regni voluntate et fidelitate nobis praestita. Shortly afterwards the oath of fealty was renewed in a great assembly held at Westminster after the feast of St. Hilary, 1273, and attended not only by all the prelates and other magnates of the kingdom, but by four representatives from each county and each city.3

In the proclamation issued on the accession of Edward Edward II. A.D. 1307. II. he was declared to be already King of England by descent of heritage ('ja roi d'Engleterre par descente de heritage'), the words referring to the consent of the magnates of the realm being omitted. From henceforth the old civil election dropped out, and hereditary succession Hereditary became the established rule, subject, however, in cases of established:

1 Duffus Hardy, Introduction to Close Rolls; Nicolas, Chronology of History, p. 291-2; Allen, Royal Prerogative (ed. 1849), p. 46.

6

2 Rymer, i. 497. For the first time,' says Bishop Stubbs (Const. Hist. ii. 103) of Edward I.'s accession, 'the reign of the new King began, both in law and in fact, from the death of his predecessor.' With all deference, however, to so eminent a historian, it is evident that although the hereditary claim of Edward was admitted without opposition, yet in law, and in fact, there was actually no King for the space of four days. Indeed, the Bishop had just before told us that his reign began on the day of his father's funeral.' The fact that the regnal years of Edward were dated only from the day of his recognition as King by the baronage marks the persistence of the elective idea, and the difference still recognised between the Kingship and a private inheritance. It is important not to antedate the steps in the development of the hereditary doctrine. As Edward I. was the first King who reigned before coronation, so Edward II. was the first whose reign is dated from the day following the death of his predecessor. The theory embodied in the legal maxim 'the King never dies,' is of still later growth. It may be said to have been practically accepted from the accession of the House of York: yet even Henry VIII.'s reign commenced on the day after the death of his father (Nicolas, Chron. of Hist.). From the accession of Edward VI. there has been no interregnum, however short, except only where the line of succession has been broken.

3 Ann. Winton. p. 113.

4 Rymer, ii. 1. Walsingham (i. 119) says, Successit

haereditario quam unanimi assensu procerum et magnatum.

[For a recently printed contribution to the history of Edward II., see Chronicon Adæ de Úsk, edited for the Royal Society of Literature, from a MS. in Brit. Mus., by E. M. Thompson, now Keeper of the MSS.--ED.]

succession

But subject

to the para

mount right

of Parlia ment to settle the succession.

necessity, to the paramount power of Parliament, not only to depose an individual Sovereign, but also, for good reason, to set aside the direct line of descent and establish a new royal stock. The ecclesiastical form of election by the clergy and people survived the civil form, and was maintained, in the coronation service, down to the accession of Henry VIII.; since whose time a mere recognition by the people is all that takes place. The right of the National Assembly-whether acting as a technically constituted Parliament, or as a Convention of the Estates of the Realm-to regulate and vary the succession to the Crown, has been constantly claimed and exercised whenever the safety and welfare of the Kingdom have imperatively required it. The depositions by the Witan of Sigebert in 755, of Ethelred the Unready in 1017, and of Harthacnut in 1037, have already been referred to in a previous chapter. Since the Norman Conquest there had hitherto been no actual case of formal deposition: but we have seen the Barons under King John renouncing their allegiance and electing Louis, son of the King of France, to be their King; and the misgovernment of Henry III. caused a change in the succession to be again mooted amongst the Deposition baronage. In 1327, however, Edward II. was formally de

of Edward

II.
A.D. 1327.

1 'Hereditary succession in monarchical states is nothing more than an expedient in government founded in wisdom, and tending to publick utility: and consequently whenever the safety of the whole requireth it, this expedient, like all rules of merely positive institution, must be subject to the controul of the supreme power in every state. . . . Title by descent was always esteemed by the legislature a wise expedient in government; but in cases of necessity, it was never thought to confer an indefeasible right; because that would have been to defeat the end for the sake of the means.'-Sir Michael Foster, (one of the judges of the King's Bench), Discourses on Crown Law, p. 405 (ed. 1792).

2 The form for the coronation of Henry VIII., drawn up by that King himself, has been preserved. Hereditary right and elective right are set forth in equally strong terms. Prince Henry is described as 'rightfull and undoubted enheritour by the lawes of God and man,' but also as electe, chosen and required by all the three estates of this lande to take uppon hym the said coronne and royall dignitie.' The assent of the people is asked thus: "Woll ye serve at this tyme, and geve your wills and assents to the same consecration, enunction and coronacion? Whereunto the people shall say with a grete voyce, Ye, Ye, Ye; So be it; Kyng Henry, Kyng Henry.'-Maskell, Mon. Ritual. iii. 73; Freeman, Norm. Conq. iii. 622.

3 Supra, p. 33.

▲ Supra, p. 140.

posed by the Parliament which assembled at Westminster on the 7th January, 1327, after a bill of six articles, drawn up by Stratford, bishop of Winchester, had been exhibited against him. These articles set forth as the reasons for his deposition, that he was devoid of the ability to govern, had suffered himself to be led in all things by evil councillors, had neglected the business of the state, lost the Crown of Scotland, broken his coronation oath, ruined his kingdom and people, and that there appeared no hope of his amendment. The Parliament therefore resolved that the Lord Edward, the King's eldest son, should immediately take upon him the government of the kingdom and be crowned King. As an additional precaution, the Queen's advisers determined to procure a formal resignation from Edward II. On the 20th of January a deputation of prelates, earls, barons, abbots, and two judges, waited on the King, then a prisoner in Kenilworth Castle, and, after notifying to him the resolution of Parliament, obtained his consent to the election of his son. Then Sir William Trussell, in the name of the rest, and as procurator for the whole Parliament, renounced the homage and fealty which the members had severally made to the King, and declared that they should thereafter account him as a private person without any manner of royal dignity. The ceremony ended by Sir Thomas Blount, the steward of the Household, breaking his staff of office, as a sign that his master had ceased to reign as completely as if he were dead.1

In the proclamation of his peace issued on the 24th of Edward III. January, the twofold title of Edward III., derived from the A.D. 1327. common counsel and consent of the Estates of the realm

and the resignation of his father, are carefully set forth. On the 29th of January he was crowned at Westminster.

The deposition of Richard II., in 1399, was preceded, as House of

Lancaster.

1 T. de la Moor, pp. 600, 601; Knyghton, c. 2549; and see Lingard, iii. 345, and Stubbs, Const. Hist. ii. 362. The Parliament Roll, which was produced in Parliament in the 10th year of Richard II. (infra, p. 290) is not now

extant.

2 Rymer, ii. 683, 684.