Extracts from:
William Blackstone, Commentaries upon the Laws of
[Copy corrected to modern spelling by our classmate,
Alex3005. Thanks, Alex! – HS.]
The rights of persons that are commanded to be observed by
the municipal law are of two sorts ; first, such
as are due from every citizen, which are usually called civil duties ; and,
secondly, such as belong to him, which is the more popular acceptation of
rights or jura. Both may indeed be comprised in this latter division
; for, as all social duties are of a relative nature, at the same time
that they are due from one man, or set of men, they must also be due to another.
But I apprehend it will be more clear and easy, to
consider many of them as duties required from, rather than as rights belonging
to, particular persons. Thus, for instance, allegiance is usually, and therefore
as the duty of the magistrate ; and yet they are,
reciprocally, the rights as well as duties of each other. Allegiance is the
right of the magistrate, and protection the right of the people.
PERSONS also are divided by the
law into either natural persons, or artificial. Natural persons are such as the
God of nature formed us : artificial are such as
created and devised by human laws for the purposes of society and government ;
which are called corporations or bodies politic.
Chapter
3. Of the King, and his Title.
[Definition of the king’s powers]
THE supreme executive power of these
kingdoms is vested by our laws in a single person, the king or queen : for it matters not to which sex the crown descends
; but the person entitled to it, whether male or female, is immediately invested
with all the ensigns, rights, and prerogatives of sovereign power…
… [H]owever the crown may be limited
or transferred, it still retains its descendible quality, and becomes hereditary
in the wearer of it: and hence in our laws the king is said never to die,
in his political capacity; though, in common with other men, he is subject
to mortality in his natural: because immediately upon the natural death of
Henry, William, or Edward, the king survives in his successor; and the right
of the crown vests, eo instanti [at that instant], upon his heir; either the
haeres natus [born heir], is the course of descent remains unimpeached, or
the haeres sactus [the person made heir], is the inheritance be under any
particular settlement. So that there can be no interregnum; but as sir Matthew Hale observes, the right of sovereignty is fully
invested in the successor by the very descent of the crown. And therefore,
however acquired, it becomes in him absolutely hereditary, unless by the rules
of the limitation it is otherwise ordered and determined.
[The law of inheritance as attached to the crown]
THE executive power of the English nation being vested in a
single person, by the general consent of the people, the evidence of which
general consent is long and immemorial usage, it became necessary to the
freedom and peace of the state, that a rule should be laid down, uniform,
universal, and permanent ; in order to mark out with precision, who is that
single person, to whom are committed (in subservience 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 highest importance to the
public tranquillity, and to the consciences of private men, that this rule
should be clear and indisputable : and our
constitution has not lest us in the dark upon this material occasion. It will
therefore be the endeavour of this chapter to trace out the constitutional
doctrine of the royal succession, with that freedom and regard to truth, yet
mixed with that reverence and respect, which the principles of liberty and the
dignity of the subject require.
… [A]s to the particular mode of
inheritance, it in general corresponds with the feodal path of descents,
chalked out by the common law in the succession to landed estates
; yet with one or two material exceptions. Like them, the crown will
descend lineally to the issue of the reigning monarch ;
as it did from king John to Richard II, through a regular pedigree of six
lineal descents. As in them, the preference of males to
females, and the right of primogeniture among the males, are strictly
adhered to.
[Tracing the history of the inheritance of the English
throne]
KING Egbert about the year 800, sound himself in possession
of the throne of the west Saxons, by a long and undisturbed descent from his
ancestors of above three hundred years. How his ancestors 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 such high antiquity, as must render all
enquiries at best but plausible guesses. His right must be supposed
indisputably good, because we know no better. The
other kingdoms of the heptarchy he acquired, some by consent, but most by a
voluntary submission. And it is an established maxim in civil polity, and the
law of nations, that when one country is united to
another in such a manner, as that one keeps it's
government and states, and the other loses them; the latter entirely
assimilates or is melted down in the former, and must adopt it's laws and
customsc. And in pursuance of this maxim there hath ever been,
since the union of the heptarchy in king Egbert, a
general acquiescence under the hereditary monarchy of the west Saxons, through
all the
FROM Egbert to the death of Edmund
Ironside, a period of above two hundred years, the crown descended regularly,
through a succession 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 sister Eleanor without
issue, a clear and indisputable title vested in Henry III the son of John: and
from him to Richard the second, a succession of six generations, the crown
descended 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 elsewhere, ought
to bear the inheritance aster the death of their ancestors. Which law, our
sovereign lord the king, the prelates, earls, and barons, and other great men,
together with all the commons, in parliament assembled, do
approve and affirm for ever.”
UPON Richard the second's resignation of the crown, he having
no children, the right resulted to the issue of his grandfather Edward III.
That king had many children, besides his eldest, Edward the black prince of Wales, the father or Richard II: but to avoid
confusion I shall only mention three; William his second son, who died without
issue; Lionel duke of Clarence, his third son; and John of Gant duke of
HOWEVER, as in Edward the third's time we find the
parliament approving and assirming the right of the crown, as before stated, so
in the reign of Henry IV they actually exerted their right of new-settling the
succession to the crown. And this was done by the statute 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, shall be set and remain in the
person of our sovereign lord the king, and in the heirs of his body issuing;”
and prince Henry is declared heir apparent to the crown, to hold to him and the
heirs of his body issuing, with remainder to lord Thomas, lord John, and lord
Humphry, the king's sons, and the heirs of their bodies respectively. Which is indeed nothing more than the law would have done before,
provided Henry the fourth had been a rightful king. It however serves to
few that it was then generally understood, that the king and parliament had a
right to new-model and regulate the succession to the crown. And we may
observe, with what caution and delicacy the parliament then avoided declaring
any sentiment of Henry's original title.
[…]