Note (42) — Chapter III

The will of Henry the Eighth is fully discussed by Hallam, i. 34, 288, 294; Lingard, vi. 213. There are two Acts of Henry’s reign bearing on the matter. In the earlier one, 28 Henry VIII. c. 7, the Crown is entailed on the King’s sons by Jane Seymour or any other wife; then on the King’s legitimate daughters, no names being mentioned; the Act then goes on to say, “your Highnes shall have full and plenar power and auctorite to geve despose appoynte assigne declare and lymytt by your letters patentes under your great seale or ells by your laste Will made in wrytynge and signed with your moste gracious hande, at your onely pleasure from tyme to tyme herafter, the imperiall Crowne of this Realme and all other the premisses thereunto belongyng, to be remayne succede and come after your decease and for lack of lawfull heires of your body to be procreated and begoten as is afore lymytted by this Acte, to such person or persones in possession and remaynder as shall please your Highnes and according to such estate and after such maner forme facion ordre and condicion as shalbe expressed declared named and lymytted in your said letters patentes or by your said laste will.” The later Act, 35 Henry VIII. c. 1, puts Henry’s two daughters, Mary and Elizabeth, into the entail, but in a very remarkable way. The Acts declaring their illegitimacy are not repealed, nor is the legitimacy of either of them in any way asserted; in fact it is rather denied when the preamble rehearses that “The king’s Majesty hath only issue of his body lawfully begotten betwixt his Highness and his said late wife Queen Jane the noble and excellent Prince Edward.” The Act then goes on to enact that, although the King had been enabled to “dispose” the Crown “to any person or persons of such estate therein as should please his Highness to limit and appoint,” yet that, in failure of heirs of the body of either the King or his son, “the said imperial Crown and all other the premises shall be to the Lady Mary the King’s Highness daughter, and to the heirs of the body of the same Lady Mary lawfully begotten, with such conditions as by his Highness shall be limited by his letters patents under his great seal, or by his Majesty’s last will in writing signed with his gracious hand.” Failing Mary and her issue, the same conditional entail is extended to Elizabeth and her issue. The power of creating a remainder after the issue of Elizabeth of course remained with Henry, and he exercised it in favour of the issue of his younger sister Mary. Mary and Elizabeth therefore really reigned, not by virtue of any royal descent, but by virtue of a particular entail by which the Crown was settled on the King’s illegitimate daughters, as it might have been settled on a perfect stranger. It was an attempt on the part of Edward the Sixth to do without parliamentary authority what his father had done by parliamentary authority which led to the momentary occupation of the throne by Lady Jane Grey. Mary, on her accession, raked up the whole story of her mother’s marriage and divorce, and the Act of the first year of her reign recognized her as inheriting by legitimate succession. The Act passed on the accession of Elizabeth, 1 Eliz. c. 3, is much vaguer. It enacts “that your majestie our sayd Sovereigne Ladye ys and in verye dede and of most meere right ought to bee by the Lawes of God and the Lawes and Statutes of this Realme our most rightfull and lawfull Sovereigne liege Ladie and Quene; and that your Highness ys rightlye lynyallye and lawfully discended and come of the bloodd royall of this Realme of Englande in and to whose princely person and theires of your bodye lawfully to bee begotten after youe without all doubte ambiguitee scruple or question the imperiall and Royall estate place crowne and dignitie of this Reallme withe all honnours stiles titles dignities Regalities Jurisdiccons and preheminences to the same nowe belonging & apperteyning arre & shalbee most fully rightfully really & entierly invested & incorporated united & annexed as rightfully & lawfully to all intentes construccons & purposes as the same were in the said late Henrye theight or in the late King Edwarde the Syxte your Highnes Brother, or in the late Quen Marye your Highnes syster at anye tyme since thacte of parliament made in the xxxvth yere of the reigne of your said most noble father king Henrye theight.”

It should be remembered that Sir Thomas More, though he refused to swear to the preamble of the oath prescribed by the Act of Supremacy, was ready to swear to the order of succession which entailed the Crown on the issue of Anne Boleyn. On his principles the issue of Anne Boleyn would be illegitimate; but he also held that Parliament could settle the Crown upon anybody, on an illegitimate child of the King or on an utter stranger; to the succession therefore he had no objection to swear.

For a parallel to the extraordinary power thus granted to Henry we have to go back to the days of Æthelwulf.