Extracts from:
William Blackstone, Commentaries upon the Laws of
[Pleafe do not be furprized at the fpelling of thefe documents, which were fcanned into a webpage by the diligent fcholars of YALE from an early printing. For a version in contemporary spelling, converted by one of our diligent band, click here.– HS.]
Book I. Of the Rights of Persons.
The rights of perfons that are commanded to be obferved by the municipal law are of two forts ; firft, fuch as are due from every citizen, which are ufually called civil duties ; and, fecondly, fuch as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprized in this latter divifion ; for, as all focial duties are of a relative nature, at the fame time that they are due from one man, or fet of men, they muft alfo be due to another. But I apprehend it will be more clear and eafy, to confider many of them as duties required from, rather than as rights belonging to, particular perfons. Thus, for inftance, allegiance is ufually, and therefore as the duty of the magiftrate ; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magiftrate, and protection the right of the people.
PERSONS alfo are divided by the law into
either natural perfons, or artificial. Natural perfons are fuch as the God of
nature formed us : artificial are fuch
as created and devifed by human laws for the purpofes of fociety and
government ; which are called corporations or bodies politic.
Chapter 3. Of the King, and his Title.
[Definition of the king’s powers]
THE fupreme
executive power of thefe kingdoms is vefted by our laws in a fingle perfon, the king or queen : for it
matters not to which fex the crown defends ; but the perfon entitled to it, whether male or female, is
immediately invefted with all the enfigns,
rights, and prerogatives of fovereign power…
… [H]owever
the crown may be limited or transferred, it ftill
retains it's defcendible quality, and becomes
hereditary in the wearer of it: and hence in our laws the king is faid never to die, in his political capacity; though, in
common with other men, he is fubject to mortality in
his natural: becaufe immediately upon the natural
death of Henry, William, or Edward, the king furvives
in his fucceffor; and the right of the crown vefts, eo inftanti
[at that instant], upon his heir; either the haeres natus [born heir], if the courfe
of defcent remains unimpeached,
or the haeres factus [the
person made heir], if the inheritance be under any particular fettlement. So that there can be no interregnum; but as fir
Matthew Hale obferves, the right of fovereignty is fully invefted in
the fucceffor by the very defcent
of the crown. And therefore, however acquired, it becomes in him abfolutely hereditary, unlefs by
the rules of the limitation it is otherwife ordered
and determined.
[The law of inheritance as attached to the crown]
THE executive power of the Englifh nation being vefted in a fingle perfon, by the general confent of the people, the evidence of which general confent is long and immemorial ufage, it became neceffary to the freedom and peace of the ftate, that a rule fhould be laid down, uniform, univerfal, and permanent ; in order to mark out with precifion, who is that fingle perfon, to whom are committed (in fubfervience to the law of the land) the care and protection of the community ; and to whom, in return, the duty and allegiance of every individual are due. It is of the higheft importance to the public tranquillity, and to the confciences of private men, that this rule fhould be clear and indifputable : and our conftitution has not left us in the dark upon this material occafion. It will therefore be the endeavour of this chapter to trace out the conftitutional doctrine of the royal fucceffion, with that freedom and regard to truth, yet mixed with that reverence and refpect, which the principles of liberty and the dignity of the fubject require.
… [A]s to the particular mode of
inheritance, it in general correfponds with the feodal path of defcents, chalked
out by the common law in the fucceffion to landed eftates ;
yet with one or two material exceptions. Like them, the crown will defcend lineally to the iffue of
the reigning monarch ; as it did from king John to Richard II, through a
regular pedigree of fix lineal defcents. As in them,
the preference of males to females, and the right of
primogeniture among the males, are ftrictly
adhered to.
[Tracing the history of the inheritance of the English throne]
KING Egbert about the year 800,
found himfelf in poffeffion
of the throne of the weft Saxons, by a long and undifturbed
defcent from his anceftors
of above three hundred years. How his anceftors
acquired their title, whether by force, by fraud, by contract, or by election,
it matters not much to enquire; and is indeed a point of fuch
high antiquity, as muft render all enquiries at beft but plaufible gueffes. His right muft be fuppofed indifputably good, becaufe we know no better. The other kingdoms of the heptarchy he acquired, fome by confent, but moft by a voluntary fubmiffion. And it is an eftablifhed
maxim in civil polity, and the law of nations, that when one country is united to another in fuch a manner, as
that one keeps it's government and ftates, and the
other lofes them; the latter entirely affimilates or is melted down in the former, and muft adopt it's laws and cuftomsc. And in purfuance of this maxim there hath ever been, fince the union of the heptarchy
in king Egbert, a general acquiefcence
under the hereditary monarchy of the weft Saxons, through all the
FROM Egbert
to the death of Edmund Ironfide, a period of above
two hundred years, the crown defcended regularly,
through a fucceffion of fifteen princes, without any
deviation or interruption…
[Many intervening reigns, with the Norman Conquest, changes of dynasty, etc.]
… [O]n the death of Arthur and his fifter Eleanor without iffue, a clear and indifputable title vefted in Henry III the fon of John: and from him to Richard the fecond, a fucceffion of fix generations, the crown defcended in the true hereditary line. Under one of which race of princesk, we find it declared in parliament, “that the law of the crown of England is, and always hath been, 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 elfewhere, ought to bear the inheritance after the death of their anceftors. Which law, our fovereign lord the king, the prelates, earls, and barons, and other great men, together with all the commons, in parliament affembled, do approve and affirm for ever.”
UPON Richard the fecond's refignation of the crown, he having no children, the right refulted to the iffue of his grandfather Edward III. That king had many children, befides his eldeft, Edward the black prince of Wales, the father or Richard II: but to avoid confufion I fhall only mention three; William his fecond fon, who died without iffue; Lionel duke of Clarence, his third fon; and John of Gant duke of Lancafter, his fourth. By the rules of fucceffion therefore the pofterity of Lionel duke of Clarence were entitled to the throne, upon the refignation of king Richard; and had accordingly been declared by the king, many years before, the prefumptive heirs of the crown; which declaration was alfo confirmed in parliamentl. But Henry duke of Lancafter, the fon of John of Gant, having then a large army in the kingdom, the pretence of raifing which was to recover his patrimony from the king, and to redrefs the grievances of the fubject, it was impoffible for any other title to be afferted with any fafety; and he became king under the title of Henry IV. But, as fir Matthew Hale remarks, though the people unjuftly affifted Henry IV in his ufurpation of the crown, yet he was not admitted thereto, until he had declared that he claimed, not as a conqueror, (which he very much inclined to do) but as a fucceffor, defcended by right line of the blood royal; as appears from the rolls of parliament in thofe times. And in order to this he fet up a fhew of two titled: the one upon the pretence of being the firft of the blood royal in the intire male line, whereas the duke of Clarence left only one daughter Philippa; from which female branch, by a marriage with Edmond Mortimer earl of March, the houfe of York defcended: the other, by reviving an exploded rumour, firft propagated by John of Gant, that Edmond earl of Lancafter (to whom Henry's mother was heirefs) was in reality the elder brother of king Edward I; though his parents, on account of his perfonal deformity, had impofed him on the world for the younger: and therefore Henry would be intitled to the crown, either as fucceffor to Richard II, in cafe the intire male line was allowed a preference to the female; or, even prior to that unfortunate prince, if the crown could defcend through a female, while an intire male line was exifting.
HOWEVER, as in Edward the third's time we find the parliament approving and affirming the right of the crown, as before ftated, fo in the reign of Henry IV they actually exerted their right of new-fettling the fucceffion to the crown. And this was done by the ftatute 7 Hen. IV. c. 2. whereby it is enacted, that the inheritance of the crown and realms of England and France, and all other the king's dominions, fhall be fet and remain in the perfon of our fovereign lord the king, and in the heirs of his body iffuing;” and prince Henry is declared heir apparent to the crown, to hold to him and the heirs of his body iffuing, with remainder to lord Thomas, lord John, and lord Humphry, the king's fons, and the heirs of their bodies refpectively. Which is indeed nothing more than the law would have done before, provided Henry the fourth had been a rightful king. It however ferves to fhew that it was then generally underftood, that the king and parliament had a right to new-model and regulate the fucceffion to the crown. And we may obferve, with what caution and delicacy the parliament then avoided declaring any fentiment of Henry's original title.
[…]
Sources and full text available from: http://www.yale.edu/lawweb/avalon/blackstone/blacksto.htm
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