The Growth of the English Constitution from the Earliest TimesFreeman, Edward A. (Edward Augustus)
History
The Growth of the English Constitution from the Earliest Times
Freeman, Edward A. (Edward Augustus)
Constitutional history -- Great Britain
One point however must be mentioned. To prove the strictly hereditary
nature of the succession, Blackstone (i. 189, Kerr) quotes the Statute
of 25 Edward III. “that the law of the Crown of England is, and always
hath been, that the children of the King of England, whether born in
England or elsewhere, ought to bear the inheritance after the death of
their ancestors.” We are bound to suppose that these learned lawyers
had read through the statute which they quoted; but it is wonderful
that they did not see that it had nothing whatever to do with fixing
the hereditary succession of the Crown. The original text (Revised
Statutes, i. 176) runs thus:—
“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.
Public-domain text, read in full here on John Shaqi.
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