The Unofficial British Royal Family Pages

Sunday 27 June 2004

The Rightful Succession to the Throne of England

Who is the rightful sovereign of England? While most people accept whoever sits on the throne at the time, the question of who is the legitimate sovereign has exercised some minds for centuries. What does the law say? To what extent can the law override political reality? Let's take a short look at the history of the succession.

The Anglo-Saxon crown of the English was held by the descendents of Cerdic, first King of Wessex. However, there was little pretence that it was held on a strictly hereditary basis. Kings were chosen by the Witan, an assembly of magnates. While the Witan would normally choose the late king's eldest son, if he wasn't deemed suitable (e.g. because of his age), someone else would be selected (a brother for example).

In 1066, things changed. Harold Godwinson, Earl of Wessex had supposedly promised to support the candidacy of William, Duke of Normandy, but when the time came, he accepted the crown for himself. William took exception to this and decided to take the crown by force, which he succeeded in doing at the Battle of Hastings.

Under William the Conqueror, the Witan's power to choose the monarch lapsed. In fact the Witan itself lapsed. William decided to divide his realms between his eldest son Robert (who got the Duchy of Normandy) and his second son William (who got England). Neither the Saxon selection nor the principle of “eldest first” was applied. Having no sons of his own, William was succeeded by his younger brother, Henry I, but after Henry, the throne was contested by Henry's daughter, Matilda, and nephew, Stephen, in a bitter civil war. After years of conflict, the dispute was settled in Stephen's favour, but with Matilda's son as his heir.

That son, Henry II (1154-89) tried to secure the succession in favour of his eldest son (another Henry) by having him crowned king in his father's lifetime. The plan failed. The two men ended up in a bitter dispute, and Henry the Young King predeceased his father.

Henry II's eldest son, Richard the Lionheart, succeeded him and reigned for 10 years, spending most of the time abroad. Richard's hereditary heir was his young nephew, Arthur, Duke of Brittany, but Richard's brother John seized the throne, and may have been responsible for subsequently murdering Arthur.

For the next 200 years the throne passed from father to son (or grandson) in accordance with simple hereditary succession. However, in one case (Edward II), the heir didn’t wait for the king’s death – Edward III, aided by his mother and her lover, deposed his father and subsequently had him murdered.

Straightforward succession ended in 1399, with the deposition of Richard II (1377-99) by his cousin Henry IV (1399-1413). It wasn't clear that Henry was Richard's heir - it all depended on whether female-line succession was permissible. If it was, the succession should have gone to the heirs of Edward III's second son, Lionel, Duke of Clarence. If not, then Henry IV and his house of Lancaster were the legitimate heirs, once Richard II had been disposed of. Henry IV and his son, Henry V, held the throne successfully, but during the reign of the third Lancastrian king, Henry VI (1422-61, 1470-71) conflicts led to the assertion of the Clarence claim, now represented by the Duke of York. The Wars of the Roses ensued, with the Yorkist Edward IV deposing Henry VI in 1461, but losing the throne briefly back to Henry in 1470-71.

The House of York had its own succession problems, with the legitimacy of Edward's son, Edward V (1483) being called into question within weeks of his succession. Their uncle and Protector of the Realm, Richard Duke of Gloucester, seized the throne, despite the existence of a better claimant in his young nephew, the Earl of Warwick.

Richard lasted only two years before he was deposed by Henry Tudor, a relation to the House of Lancaster but with no realistic hereditary claim to the throne. Although he re-enforced his claim by marrying the daughter of Edward IV, Henry insisted that his right to the throne was by right of conquest.
Succession became complicated again during the reign of Henry's son, Henry VIII. Henry felt that the crown needed a male heir but his first wife, Catherine of Aragon, produced only a daughter, Mary. He had that marriage annulled, bastardizing Mary in the process. His second wife, Ann Boleyn, was no more successful in producing a male heir, leaving him with another daughter, Elizabeth, who was also declared illegitimate after Ann was tried and executed for treason. Wife number three succeeded in producing a son, but died immediately afterwards.

By the end of his reign, Henry had Parliament restore both his daughters to the succession, although neither was legitimated. He also excluded the Scottish descendents of his sister, Margaret, from the English crown. That exclusion was ignored when Henry's three children all failed to produce heirs.

The Stuart succession was straightforward, apart from losing the crown to republic for ten years, until James II and Parliament came to an impasse over the toleration of Catholics and the powers of the Crown. The powers that be, in a Convention which eventually declared itself to be a Parliament, invited James’s daughter’s husband, William of Orange, to invade the country and depose of the King. For the first time, Parliament not only enacted the King’s will in the succession, but imposed it’s own. Under the Bill of Rights 1689 and the Act of Settlement 1701, the crown was given firstly to William and his wife, Mary, then to Anne, Mary’s sister and James II’s daughter, and then, failing heirs from them, to the heirs of the body of Sophia, Electress of Hanover, granddaughter of James I. Catholics were excluded, which means that, in choosing the Protestant heirs of Sophia, quite a number of people closer in hereditary terms were ignored. That led to conflict during the 18th century as the Catholic representatives of the senior hereditary heirs of the House of Stuart tried to assert their claim. The representatives of the male-line House of Stuart – descendents of James II – died out in 1807, and no other Stuart representative has asserted a claim to the throne since; but there is still a small number of “Jacobites” who insist that hereditary succession is all and that the current Stuart heir, Franz Herzog von Bayern, is the true King of England, France, Scotland and Ireland.

Since the Glorious Revolution which deposed James II, the succession has been stable – decreed by Act of Parliament to follow Common Law, male-first inheritance, but with the exception of the Catholic exclusion. Parliament has intervened only once since 1701, in order to enact the abdication of Edward VIII in 1936.

There is one possible deviation, though, which could caste doubt on Elizabeth II’s position. Common Law “heirs of the body” – the term used in the Act of Settlement – divides property equally between daughters when there is no son, and any indivisible titles go into abeyance (i.e. cease to exist until a single heir emerges). By those rules, Elizabeth and her sister Margaret were co-heirs, and neither had exclusive right to the Crown. Since Margaret’s death, her son, Viscount Linley, is the representative of her half of the claim. The situation has never arisen before. In both previous cases of two sisters (Mary I and Elizabeth I; Mary II and Anne), their succession was determined by Act of Parliament, so the Common Law rules didn’t apply. But, pragmatic as always, the law takes second place to political needs and circumstances, and nobody ever seriously questioned or questions Elizabeth II’s right to reign.

After 300 years of stability (apart from one abdication), the succession law is now being questioned on two fronts : the exclusion of Roman Catholics and those who marry them, and the preference of males over females. To many, neither rule seems right in a 21st century multi-faith society, and it may only be a matter of time before they are changed. We shall see.

- Paul James