Note (33) — Chapter III

The helpless way in which Blackstone himself wrote was perhaps pardonable in the dark times in which he lived. But it is really too bad when lawyer after lawyer, in successive editions, gives again to the world the astounding rubbish which in Blackstone’s day passed for early constitutional history. In Kerr’s edition of Blackstone, published in 1857, vol. i. p. 180, I find repeated, without alteration or comment, the monstrous assertion of Blackstone: “I believe there is no instance wherein the Crown of England has ever been asserted to be elective, except by the regicides at the infamous and unparalleled trial of King Charles I.” And in Serjeant Stephen’s Commentaries [1853], which are not a mere edition of Blackstone, but “New Commentaries partly founded on Blackstone,” the same words are found in vol. ii. p. 403, only leaving out the epithet “unparalleled,” which might with truth have been allowed to stay. In another place (iv. 481-2) we read how “after the Saxon government was firmly established in this island” came “the subdivision of the kingdom into a heptarchy, consisting of seven independent kingdoms, peopled and governed by different clans and colonies.” It seems then that in 1857 there were learned gentlemen who believed in a kingdom subdivided into a heptarchy. But when, in the next page, Blackstone tells us how Ælfred set about “to new-model the constitution, to rebuild it on a plan that should endure for ages,” and goes on in the usual style to attribute everything whatever to Ælfred personally, this seems to have been too much, and the editor gives an extract from Kemble by way of correction. One wonders that, if he had read Kemble at all, he had not learned a little more from him. It is amusing again when Blackstone tells us (i. 186, Kerr), “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: save only”—all the cases where it did not descend regularly, according to Blackstone’s notions of regularity: But it is almost more amusing when Serjeant Stephen (ii. 410) throws Blackstone’s exceptions, which are at least historical facts, into a note, and gives us instead as his own exceptions, the statement, very doubtful and, if true, utterly irrelevant, that Æthelstan and Eadmund Ironside were illegitimate (see Norman Conquest, i. 669-673). We of course get the usual talk about the usurpations of Harold, Stephen, John, and Henry the Fourth, and about the rights of Eadgar and Arthur of Britanny. For the former we get a quotation from Matthew Paris, to whom it would have been more to the purpose to go for the great speech of Archbishop Hubert. The comments on the succession of John (i. 189, Kerr) are singularly amusing, but too long to quote.

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.