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
In short, though
the hereditary principle had now taken firm root, though the disputes
between the pretenders to the Crown were mainly disputes as to the
right of succession, yet the remembrance of the days when the Crown
had been truly the gift of the people had not wholly passed away.
The last King who could bring even the shadow of a claim to have
been chosen by the voice of the people beneath the canopy of heaven
was no other than Richard the Third. The last King who could bring
a better claim to have been chosen by the same voice beneath the
vault of the West Minster was no other than Henry the Eighth. Down to
his time the old ecclesiastical form of choosing the King remained
in the coronation-service, and it was not wholly out of character
that Henry should issue a _congé d’élire_ for his own election. The
device for Henry’s coronation survives in his own handwriting, and,
while it contains a strong assertion of his hereditary right, it also
contains a distinct provision for his election by the people in ancient
form(40). The claim of Henry was perfectly good, for a Parliament of
his father’s reign had declared that the Crown should abide in Henry
the Seventh and the heirs of his body(41). But it was in his case that
the hereditary and parliamentary claim was confirmed by the ancient
rite of ecclesiastical election for the last time in our history. His
successor was not thus distinctly chosen. This was perhaps, among
other reasons, because in his case the form was specially needless.
For the right of Edward the Sixth to succeed his father was beyond
all dispute. By an exercise of parliamentary power, which we may well
deem strange, but which was none the less lawful, Henry had been
entrusted with the power of bequeathing and entailing the Crown as he
thought good. That power he exercised on behalf of his own children in
order, and, failing them and their issue, on the issue of his younger
sister(42). Edward, Mary, Elizabeth, therefore all reigned lawfully by
virtue of their father’s will. A moment’s thought will show that Mary
and Elizabeth could not both reign lawfully according to any doctrine
of hereditary succession. On no theory, Catholic or Protestant, could
both be the legitimate daughters of Henry. Parliament indeed had
declared both to be illegitimate; on any theory one or the other must
have been so(43). But each reigned by a perfectly lawful title, under
the provisions of the Act which empowered their father to settle the
succession according to his pleasure. While Elizabeth reigned, almost
divine as she might be deemed to be in her own person, it was at
least not held that there was any divine right in any other person to
succeed her. The doctrine which came into vogue under her successors
was in her day looked upon as treasonable(44). Elizabeth knew where
her strength lay, and the Stewarts knew where their strength, such
as it was, lay also. In the eye of the Law the first Stewart was an
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