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If your book order is heavy or oversized, we may contact you to let you know extra shipping is required. Shipping charges as per standard Abebooks matrix. List this Seller's Books. In recent years there has been some speculation regarding the possibility of changes to the laws governing succession to the Crown. The succession laws are not merely rules invented to amuse constitutional lawyers. They are rules which are in certain respects central to the constitution, and are important aspects of New Zealand independence. This article will explore three issues. First, it will examine the existing New Zealand succession law.
Secondly, it will discuss the ways and means by which this law can be changed. Thirdly, it will discuss in what circumstances the succession ought to be changed. The Constitution Act is the only piece of legislation enacted by the New Zealand Parliament which makes any direct reference to the succession law.
A germane example of this may be seen in the modern legislation governing regencies. Since the absence, illness or incapacity of the Sovereign has been dealt with in the United Kingdom by the Regency Acts and UK. It is highly doubtful if the Regency Acts and originally extended to New Zealand despite their subject matter and the failure of New Zealand to adopt the Statute of Westminster until However, by the Constitution Act it is provided that:.
If British statutes enacted after are ineffective to regulate mere regencies, the effectiveness of any British Act of Parliament to alter the succession to the Crown of New Zealand itself must be doubted. What, if any, have been the consequences for the law of succession to the Crown which have occurred as a consequence of the development of the notion of a divisible Crown, and the evolution of dominion status?
Although the modern notion of a separate sovereignty would see the Crown as potentially divisible in actuality as well as in law, there has not been a division of the sovereignty of the Crown of England since Saxon times, although a separation could arguably have occurred in It is commonly said that the title to the Crown was governed at common law  by the feudal rules of hereditary descent formerly applicable to land.
- UK Constitution and Government/Print version.
- Alexander der Große und Aristoteles (German Edition).
- Bibliography - Donald E. Wilkes, Jr. Collection - LibGuides at University of Georgia School of Law.
- File:Henry Hallam, The Constitutional History of England (, Volume I).pdf - Wikimedia Commons.
- The British State and its Historiography?
In the legal history of those Western societies which have passed through the era known as feudalism, succession to property and succession to thrones are intimately connected. The analogy with land descent is, however, not strictly correct, it is submitted, since the only feature which the title to the Crown had in common with this was primogeniture, and this had been the developing rule in the pre-feudal Saxon dynasty.
This caused some dismay in France, though not in England, where the rule had never prevailed.
File:Henry Hallam, The Constitutional History of England (1862, Volume I).pdf
The analogy with land presupposed that this developed before the title to the Crown had been settled. In fact the laws developed side by side in the two centuries after the Conquest. As society become more settled in the century after the Conquest, primogeniture came to be the usual form of inheritance. But the Crown did not pass without formal election until Edward II. For practical reasons primogeniture was the most convenient means of conveying the Crown. By the accession of Richard II, however, influenced by this misleading analogy, the then developed rule of representative primogeniture was applied to the Crown.
It is submitted that, although the law of succession at common law is based on that applicable to real property, it is distinct from it, and has only adopted those principles of descent appropriate to the Crown.
- Britain 1486-1688.
- Henry Hallam?
- Unscathed: A Contemporary Romance With A Deadly Twist.
The principal authority for the existence of the rules is to be found in the course of descent in the past. It is also seen in the fact that, where the rules have been broken, or where any doubt as to the validity of the title has existed, it has usually been found necessary to fortify the title by statute.
In the absence of statutory limitations, therefore, the Crown would descend lineally to the issue of the reigning Sovereign, males being preferred to females, and subject to the right of primogeniture amongst both males and females of equal degree, whilst children would represent their ancestors per stirpes ad infinitum.
Today, descent is by primogeniture, the heir succeeding immediately. The first formulation of the doctrine of the demise of the Crown dates from some time between 25 and 29 September This doctrine was held to invalidate the parliamentary writs that had been issued by the authority of the former king. Succession was now direct and automatic. It followed that there was no room for parliamentary intervention. But the common law right of inheritance was always liable to be defeated by parliamentary grant, or by the election of the Witan or Commune Concilium.
The Crown now descends according to the statutory limitations, but retains its hereditary and descendible qualities as at common law, subject to the statutory provisions.
This came to the fore under James II, and the solution settled the supremacy of the statutory title. The question as to whether the king could vacate the Throne by his misconduct, as James was held to have done, is not one which can be examined here. So far as the succession was concerned, the immediate solution was a return to the ancient device of election by the magnates, or, as it now was, by Parliament, ex post facto.
From this point forth we have two competing views of the title to the Crown: by inheritance, and by grant of Parliament. A king relying in fact on one would invoke the other to reinforce his title.
Britain - EuroDocs
For several centuries more there remained conflict between title by parliamentary choice and title by inheritance. The old form of election gave way to parliamentary title, but several kings claimed hereditary title despite statutory bars, James I among them. Dunham and Wood have argued that two centuries of depositions led to the formulation of a new theory of parliamentary monarchy, based on the principle that any aberrant settlement of the succession had to be justified by the consent of the estates of the realm.
The Tudor dynasty could appeal neither to the theory of hereditary right which had been the basis of the Yorkist claim nor the statute law on which a Lancastrian claim might have been maintained. Henry relied on possession.
The new king obtained from Parliament a power to dispose of the Crown by will, and devised it, failing issue of Edward, Mary or Elizabeth, to the grandchildren of his younger sister. This is of necessity the case since the statute of ,  making Mary and Elizabeth illegitimate, was not repealed. This is the title on which Mary and Elizabeth relied.
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The king bequeathed the Throne to the Suffolk line, descendants of his younger sister Mary, by Will in The succession of Mary was unprecedented. In Mary was declared illegitimate by Act of Parliament,  but was reinstated in , after Prince Edward. When Elizabeth died, she was succeeded by James I, the descendant of the elder daughter of Henry VII, and not by a representative of the younger daughter as the statute of required. James also had to step warily lest he himself contravene the Act of Association Although James I was not seriously opposed as successor,  it was necessary to reinforce his title by statute, since it contravened an earlier Act.
In two of the three Parliaments in , bills intended to exclude James Duke of York from the succession were introduced and debated in the House of Commons. In a similar measure was introduced, received three readings in the Commons, but was defeated in the House of Lords. The Exclusion Crisis lasted from November till March Anti-Exclusionists argued for an heritable Crown, but saw in it features of a life tenancy that made it impossible for the king to affect the disposition of the estate after his death. While denying that there was a fundamental law of succession, they maintained that there was a fundamental right of self-defence against a king who was opposed to the liberty of the Protestant Church.
A elective monarchy would have led to an arbitrary and uncertain succession. What was a heresy in late Tudor times came to be orthodoxy in the next century. In the s Peter Wentworth proposed that Parliament, as the High Court of Parliament, be charged to sort through the potential complex of hereditary claims, to choose whoever had the best right, but not to elect the heir. The right of Parliament to vary and limit the descent of the Crown, in cases of misgovernment amounting to a breach of the original contract between the Crown and the people, cannot be said to be admitted as a definite constitutional principle.
They requested the Prince to take over the civil and military administration and the disposal of the public revenue, and likewise to summon a Convention Parliament. A Convention Parliament was accordingly summoned by the Prince of Orange by letters directed to the Lords Spiritual and Temporal, being Protestants, and to the coroners, clerks of the peace, and others. This Convention Parliament met on 22 January old style. On 28 January the Commons so convened recorded that:.
Related Constitutional History of England Vol 1 of 3: Henry VII to George II
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