Concerned about possible backsliding toward Catholicism under Mary, Edward VI attempted to bypass this succession by promulgating a ‘Devise for the Succession’, backed by letters patent, which purported to displace Mary and Elizabeth from the succession. It instead enfranchise the heirs of his cousin Lady Frances Brandon, the daughter of Henry VIII’s younger sister. The effect of this devise, if valid, would see Lady Frances’s first daughter Lady Jane Grey inherit the crown. Incidentally, Grey was married to the son of the regent, the Duke of Northumberland.
In the event, upon Edward VI’s death in July 1553, Princess Mary was able to gather sufficient support, and was sufficiently popular, to overthrow Lady Jane Grey’s administration following a 9 day reign.
In a recent, and I might add excellent, episode on the subject, the History of England podcast asserted that the Devise was a valid legal instrument and that Edward VI was entitled to dispose of the crown by letters patent. While this might be an entirely academic debate given the intervening years and the fact Grey was quickly overthrown, the question of the legitimacy of the devise is one that touches on the character of English government and the English constitution in the early modern period. Was England in effect an absolute monarchy, ruled by a caesar whose word was law? Or was it a constitutional monarchy whose sovereigns were bound by the rule of law, as set out in statute, custom and precedent?
In the first instance, one must look to the relevant statute, the 1543 act. It read, in part;
“in case it shall happen the king’s majesty and the said excellent prince his yet only son Prince Edward and heir apparent, to decease without heir of either of their bodies lawfully begotten (as God defend) so that there be no such heir … then 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; and for default of such issue the said imperial crown and other the premises shall be to the Lady Elizabeth, the king’s second daughter, and to the heirs of the body of the said Lady Elizabeth 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; anything in the said act made in the said twenty-eighth year of our said sovereign lord to the contrary of this act notwithstanding”
The legal effect of this act was fourfold;
- (1) Mary and Lady were reinstated into the line of succession, in default of any heirs of Edward VI, or of Henry with Katherine Parr
- (2) Henry VIII was entitled to place conditions on their inheritance of the crown through the promulgation of letters patent to that effect
- (3) Henry VIII was entitled to place conditions on their inheritance of the crown in his last will and testament
- (4) The provisions of the Succession Act 1536, which displaced Mary and Elizabeth from the succession, were disapplied to the extent they conflicted with the 1543 act
The earlier Succession Act 1536, which displaced Elizabeth from the succession (Mary having been removed by the Succession Act 1534), conferred on Henry the power to dispose of the crown by letters patent or by his last will. This was not a power inherent in the king’s prerogative, as the transmission of the crown would ordinarily pass by automatic operation of succession law according to the rule of male-preference primogeniture (elder sons would inherit in preference to younger sons, sons would inherit in preference to daughters, if there were only daughters, they would inherit in preference to male relations of the collateral line, i.e. in preference to male uncles, cousins, etc).
Furthermore, the disposition of the crown had been controlled by acts of parliament long before the 1530s. It was broadly accepted that acts of parliament were necessary to ratify depositions of kings (as occurred to Richard II, Henry VI, Edward V and Richard III). In the aftermath of Bosworth, when asked why he had fought for Richard III, the Earl of Surrey had responded, “He was my crowned king, and if parliament had set the crown upon a stock, I would have fought for that stock”.
It is a principle of English law that where a statute conflicts with an executive instrument, the statute prevails. This has, in fact, been a principle of English law since the 1400s. There are cases that came before the King’s Bench in that period demonstrating this principle of law. Sir John Fortescue, Chief Justice of the King’s Bench in the 1440s and 1450s enunciated this principle in his works on constitutional law. Fortescue wrote a book called De Laudibus Legum Angliae, or In Praise of the Laws of England, in which he set out his views on the English constitution. Fortescue posited that unlike an absolute monarchy such as France, which he called a dominium regale, or a republican regime like ancient Rome, which he called a dominium politicum, England was a dominium politicum et regale. It was, in effect, a constitutional monarch. He commented that the king cannot make laws or levy taxes without the consent of parliament, and that judges were obliged by oath to follow the law even in the face of a direct order by the king not to do so.
“We ought to do as reason and conscience counsel us. It is not honourable for us nor this court, nor for any other court to vary in our judgments, as to give judgment in a matter in one term, and to give a different judgment in another term”.
Additionally, the fact that parliament (and the Commons as the indispensable component) had the sole authority to levy taxes was, by the 1530s, a long-since accepted constitutional principle. England of the late-medieval and early modern period was not an absolute monarchy, no matter how much the despotic Tudors would have wished it so.
The superiority of statute law in the legal hierarchy of construction can be seen in the fact that the Statute of Proclamations 1539, which conferred on the king’s proclamations the effectiveness of statutes, (although it also provided that such a proclamation could not be used to change the common law, or punish or deprive a person of their goods without due process) had to be enacted at all. That statute was repealed in 1547. This principle was further underlined in the Case of Proclamations in 1610, when all the justices of England confirmed the principle that the king, “cannot change any part of the common law, nor create any offence, by his proclamation, which was not an offence before, without parliament,” and, “The king has no prerogative but that which the law of the land allows him”.
The Succession Act 1536, which gave the king the power to dispose of the crown by will or letters patent, was modified by the Succession Act 1543 which not only provided that Mary and Elizabeth were reinstated into the succession, but that any provision of the prior act which was inconsistent with the 1543 act was disapplied. That means that any provision in letters patent, proclamation or will issued pursuant to that act that sought to displace Mary and Elizabeth from the succession would be disapplied.
Furthermore, it is clear from the wording that the intent of parliament was to confer this power to dispose of the crown on Henry VIII particularly, not on the crown for all time.
In the History of England podcast, David Crowther argued for the legality of the devise on two bases; first, that the king had the inherent power to dispose of the crown by executive instrument, and second, that according to the ordinary principles of common law Mary and Elizabeth were bastards and thus ineligible to inherit. I believe I have, above, made a reasonable argument above as to why the king did not have such a power, and why even if he did, it was disapplied where it conflicted with the clear provision of statute law.
With regard to the second argument, this is in fact the sole argument advanced by Edward VI in his letters patent. Edward VI didn’t merely promulgate the devise, but letters patent were also issued setting out the reasoning for displacing his sisters, which served to give the change the force of an executive instrument. The letters patent, accepting parliament had enacted that Mary and Elizabeth were to be in the succession, advance as their only argument against them that the divorces of their mothers had been valid and they were bastards and therefore ineligible. The letters patent did not cite that the power to change the succession inhered in the king’s prerogative, or that it arose under the 1536 act. It says as follows;
“And for asmuch as the lymytacion of the imperiall crowne of this realme, being lymmited by authorite of parleament as is afforesaid to the said ladie Mary and ladie Elizabeth, beinge illegitimate and not lawfully begotten, forasmuch as the mariage had betweene our said late father and the lady Katherine … was clearly and lawfully undone … and likewise the mariage had betweene our said late father … was also clearely and lawefully undone … whereby as well the said lady Marye as also the said ladie Elizabeth to all intents and purposes are and be clearly disabled to aske, claime, or challenge the said imperiall crowne”
The essence of this argument is that according to the ordinary course of the common law, Mary and Elizabeth would not be able to inherit property. This argument is invalid on several bases. First, we have clear statutory authority for Mary and Elizabeth’s succession. The only body capable of altering the common law was parliament, and they did so in placing Mary and Elizabeth in the succession. Second, the ineligibility of bastards to inherit was according to the automatic operation of law. Prior to Wills Act 1540, the only way to leave land to your children other than according to male-preference primogeniture was to convey it to trustees first, who would then hold it to their use or otherwise convey it directly to them. Failing this, the land would automatically pass upon the death of the individual. The Wills Act 1540 created a significant change in the law whereby a person could devise land to any person using their will, in any proportion they chose. If they wanted to give half to their son and half to their daughter, that was their prerogative. If they wanted to leave everything to their bastard child, that was also their prerogative.
Finally, one might argue that applying the procedures of inheritance for ordinary people to the inheritance of the crown is logically dubious, and I would agree. The transmission of the crown is a matter of high state policy, and thus appealing to the ordinary provisions and procedures of common law inheritance (which had, since 1540, been disapplied anyway), as Edward VI did, is sketchy to say the least. So even if the common law had been as Edward VI’s letters patent asserted, the fact was that parliament had legislated differently. Indeed, there was precedent for such a thing. Edward VI’s grandfather Henry VII had no legitimate royal blood; his descent from Edward III came through the illegitimate Beaufort line.
“if any of the heires of the king … or any person or persons to whom the crown and dignity of this realm is limited and appointed by act of parliament made in the 35th year of the reign of King Henry VIII… do at any time hereafter usurp the one of them upon the other in the crown of this realm, or demand challenge or claim the same otherwise or in any other form or degree of descent or succession or in any other course form degree or condition but only in such manner and form as is declared in the said statute … that then all and singular offenders their aidders, comforters, abettors, procurors and counsellors therein shall be deemed and ajudged high traitor and shall suffer and incur the pains of death losses and forfeitures as is aforesaid in cases of high treason”
This was passed at the first parliament of Edward VI. It seems to me that the legal position couldn’t be clearer; the Succession Act 1543 was binding in its own right and through the provision in the 1547 act making its usurpation a crime. Any person in the succession who sought to change the succession as laid out in that act, and any person who aided and abetted such conduct, was guilty of high treason. While Edward VI himself couldn’t be guilty of high treason, Lady Jane Grey and every person who aided and abetted in seeking to displace Mary and Elizabeth (excepting Chief Justice Montagu, who was careful to procure a preemptive pardon from Edward VI well-knowing the devise was unlawful), were guilty under the terms of the 1547 act.
Based on the clear terms of the Succession Act 1543 placing Mary and Elizabeth back into the line of succession, the terms of that act disapplying any contrary provisions in the previous statute and any legal instruments arising under the 1536 act that purported to change the succession, given the terms of the Treason Act 1547 and widely-accepted common law principles of statute law overriding executive instruments where in conflict, it seems quite straightforward to say that the devise and the letters patent issued to displace the princesses from the succession were not lawful.
The superbly narrated, and at times hysterically funny, History of England podcast can be accessed at this website: https://thehistoryofengland.co.uk/ (this is last, at least, Mr Justice Tyrwhitt has a darn good point of course. Ed.)