David Cameron appears to have achieved what Gordon Brown could not – consensus among the 16 Commonwealth countries of whom the Queen is Head of State that the laws of succession should be changed to permit first-born female children of an heir to the throne to take precedence over male children, and to allow heirs to the throne to marry Catholics. This latter measure, albeit welcome, is hypocritical while the law continues to prevent the Sovereign from being a Catholic. The case of James II amply demonstrates that the monarch’s personal faith need not interfere in the exercise of his or her role as Supreme Governor of the Church of England.
The first aspect of the reform of the succession laws could have unforeseen consequences – a disputed succession, for instance, between the descendants of a son and daughter of an heir to the throne, similar to the succession dispute in Spain in the nineteenth century. Far more important, however, and unlikely to be recognised by politicians, is the fact that monarchy and the rules that govern it are a matter of divine, not human law. In other words, monarchy is of divine institution and thus, whilst interacting with the political life of the nation, it is not a creation of man but of God. This is apparent in the Bible, where the prophet Samuel is informed by God beforehand of his choice of Saul as the first King of Israel (I Samuel 9:16). Although the appointment of Saul as king took place by means of a combination of election and acclamation (I Samuel 19:21), Saul was, ultimately, God’s choice.
Throughout the centuries, different nations have chosen their kings in different ways and different laws have governed succession. The Kings of Poland were entirely elected while the monarchies of France and Spain were governed by the strict Salic law that did not permit any female succession at all. This can easily give rise to the impression that kingship is a human institution; who the king happens to be is an arbitrary matter, derived from longstanding tradition and a set of laws that were in force at a particular time. The king, as source of law, was essential for the welfare of the state but who he was did not ultimately matter. The conclusion of all such arguments is that monarchy may once have served a useful purpose but that in a modern state a single human person is no longer required to be the origin and guarantor of the law.
By the late Middle Ages the political consensus in Europe was that the legitimacy of kingship was intimately bound up with the defence and patronage of the Church and, therefore, a king had to be Christian. Two views then emerged; the idea that kingship was essentially grounded in Canon Law and could be conferred by the Pope, and the competing notion (foundational to the Reformation) that kingship was a matter of divine law. If legitimacy is conferred by defence of Christianity then the title is the English Kings is secure. When Alfred the Great defeated the Danes at Ethandun in 878 he was the only English King still alive, and moreover England’s principal Christian leader. Alfred’s victory, and the fact that he was the ‘last man standing’ among the Kings of the Heptarchy gave him and his heirs an undisputed right to the kingship of England as a whole. The Divine Right of the direct successors of Alfred, the House of Stuart and their heirs, stems from Alfred’s status as God’s chosen instrument to preserve Christianity in England. As the chosen one of God, the King is not merely a convenient political fiction who serves a purpose in the state, but God’s direct representative and therefore the Head of both Church and state.
An essential principal of monarchy is that there is never a time when the Sovereign is dead or his or her identity is doubtful. Kingship, like God’s eternity itself, transcends mortal life. It is crucial, therefore, that the best means be found of identifying who is a King’s legitimate successor. The Salic Law, as the War of the Spanish Succession demonstrated, has the potential to create great instability if female heirs are passed over entirely. However, the English law of succession in which male heirs are privileged but female heirs may inherit guarantees the greatest possible stability, in that it ensures as far as possible that the Crown remains in the same family. Thus the House of Tudor was able to remain on the throne until 1603, when under Salic Law it would have died with Edward VI in 1553. However, if female heirs had been allowed the same rights as males then the crown could have passed into a bewildering variety of different royal houses.
Neither the Commonwealth Conference nor Parliament has the right to re-make fundamental law concerning who is or is not the Sovereign – that is a matter for God alone.
This is what Maitland says in his “Constitutional History of England”:
“And first of the king. His title is now a statutory title if it be a title at all…. Not to go back to the Middle Ages, to the parliamentary right of the House of Lancaster, the hereditary right of the House of York, we remember that Henry VIII came more than once to parliament for an act regulating the succession to the throne, even obtained an act enabling him in default of issue to leave the crown to whom he would. In Elizabeth’s reign it was treason to affirm that the succession could not be settled by act of parliament. We have seen, however, that James, by the quiet consent of the nation, succeeded to the crown, though, if statutes on such a matter had any validity, the succession was probably illegal; probably Henry VIII, in exercise of a statutory power, had preferred the issue of his younger to those of his elder sister. There was much therefore in his own case to set James on thinking that the inheritance of the crown was divinely appointed and was not to be meddled with by act of parliament. He was succeeded by his son Charles I, and when Charles I was murdered he was immediately succeeded by his son Charles II….”
“Alfred’s victory, and the fact that he was the ‘last man standing’ among the Kings of the Heptarchy gave him and his heirs an undisputed right to the kingship of England as a whole. The Divine Right of the direct successors of Alfred, the House of Stuart and their heirs, stems from Alfred’s status as God’s chosen instrument to preserve Christianity in England. As the chosen one of God, the King is not merely a convenient political fiction who serves a purpose in the state, but God’s direct representative and therefore the Head of both Church and state.”
However, under the principle of male preference primogeniture described in the article above, the senior known representative of King Alfred the Great, and the House of Wessex itself (whose greatest scion was certainly Saint Edward the Confessor) is HRH the Infanta Alicia, Dowager Duchess of Calabria, born Princess of Bourbon-Parma. See the official website of the Royal House of Bourbon-Two Sicilies: http://www.borbone-due-sicilie.org/english/news_birthdayinfantaalicia.html and Guy Stair Sainty’s article on the webpage of the Sacred Military Constantinian Order of Saint George: http://www.constantinianorder.org/index.php?option=com_content&view=article&id=322:descent-of-the-infanta-alicia-senior-representative-of-king-david-i-of-scotland-and-senior-known-representative-of-king-edward-the-confessor-english&catid=75:bourbon-two-sicilies&Itemid=45
Ah, but this sword cuts both ways. After all the failed risings, the Hanoverians and their successors held the mandate of heaven, if we interpret that shallowly as “Last man standing”. If providence ratifies kingly custom, then parliament by now surely has a claim of its own on these grounds of constitutional law of succession. Rather than who, or in what way comes that who, wears the crown, right by divine law must simply stand as the actuation of providence unless it provides means of reification of custom and change of custom by means other than tautology of events. That is, if parliament can not change succession, by whom or what may God? If “custom”, then we must be open to the change of custom. It helps to be specific about legitimating authorities when we speak with divine voice.