CHAPTER XXIII. "THIRD PART OF KING HENRY THE SIXTH." Sec. 301. No inter-regnum, under English Law. Exe. 305. Acts of Parliament. 306. Lady Grey's suit for husband's lands. Concubine. 308. Richard the Third, an embryonic criminal. 309. 310. Richard's morbid vanity. Crime the basis of Richard's character. 311. Elizabeth's plea of "Sanctuary." Sec. 301. No inter-regnum, under English law.— "York. He rose against him, being his sovereign, And made him to resign his crown, perforce. War. Suppose, my lords, he did it unconstrain'd, Think you, 'twere prejudicial to his crown? No; for he could not so resign his crown, But that the next heir should succeed and reign." This dispute over the claims of York to the crown, is based upon the constitutional principal, in English law, that because of the interest of the public in the crown and the fact that the Government could not be destroyed, the king, as such, could not create a vacancy in the official head of the Government, but as the law put it "the king never dies." This principal, which prevented any interregnum, or vacancy in the Government, along with the rights of the direct issue from the last lawful holder, known as the law of primogeniture, is the basis of York's claim to the crown. That the claim was legally stronger than that of the house of Lancaster, is clear to those 13' Henry VI, Act I, Scene I. 22 Bl. Comm. 191. familiar with the English common law. The heir, to be entitled to take in that character, must have been the nearest male heir of the whole blood, to the person who was last actually seized. This rule has obtained from the earliest ages. It is this seisin, which makes a person the stirps, or stock, from which all future inheritance, by right, is derived by right of blood. Hence, if the heir, on whom the inheritance has been cast, by descent, dies before he has acquired this seisin, his ancestor not himself, is the person last seized and other claimants must make themselves his heirs." York, therefore, showing a direct descent from the last Plantagenet, Edward Third, made out a prima facie better title to the crown than Henry VI, as these lords decided. Sec. 302. Title by confirmation. "York. Confirm the crown to me, and to mine heirs, And thou shalt reign in quiet whilst thou liv'st. 1 Bracton, lib. 2, fol. 69a; 2 Hale's Hist. Com. Law, pp. 94, 95, 98. 2 Litt. sec. 8; Coke, Litt., 11b; 2 Bl. Comm. 209; Hale's Hist. Comm. Law, c. 11. King Henry, in his dilemma, urged that Richard II had voluntarily given up the crown to Bolingbroke, or Henry IV, and Warwick raised the question, after York claimed that it was forced upon him, whether or not the rights of hereditary monarchy would be affected by his act, even if it had been voluntary, and Exeter replied that it could not affect the rights of the next heir to the crown, regardless of whether the ancestor had voluntarily or involuntarily attempted to give the crown to another. This was as the law would view it. In recognition of this constitutional principle of English law, the young Prince, asks his father, in 3' Henry VI: "Prince. Father, you cannot disinherit me: If you be king, why should not I succeed?" (Act I, Scene I.) Plowden shows how the death of the king causes the mere disunion of the king's natural body, from his body politic, and the kingdom is demised or transferred to his successor, so the royal dignity or office remains perpetual. Plowd. 117, 234. K. Hen. I am content: Richard Plantagenet, A title by confirmation is a title derived by a conveyance or contract by which an estate that was otherwise voidable, or subject to dispute, is made firm and unavoidable.2 To make a valid confirmation the confirmor, or the one who makes the confirmation, must be advised of his rights, and the title of the confirmee is not strengthened by the confirmation to the extent of making an otherwise void title good, although one merely voidable may be cured by confirmation, as it was a maxim of the common law, qui confirmat nihil dat. However, as the title of York, to the crown, was not void, but only the subject of dispute and was, prima facie stronger, in law, than that of Henry VI, this confirmation would have been sufficient to defeat the house of Lancaster, if the crown had been the subject for such disposition by the king. Sec. 303. Disinheriting heir.— "War. Why should you sigh, my lord? K. Hen. Not for myself, lord Warwick, but my son, Disinheritance was the act, by which a person deprived his heir of an inheritance, that the heir, without such act, would have inherited. At common law, in other matters than the crown-in which the public was concerned as well as the individual holding as king-anyone could give his estate to a stranger and thus disinherit his heir apparent. The intent to disinherit an heir, however, at common law, must be clearly apparent from the language of 13' Henry VI, Act I, Scene I. 29 Coke, 142 a. Coke, Litt. 295; Toullier, De. Civ. Fr. 1. 3, t. 3, c. 6n, 476. '3'Henry VI, Act I, Scene I. the testator or last owner of property and if such intent was not clearly apparent, the heir would not be disinherited.1 Sec. 304. Estate-tail, upon condition.— "K. Hen. I here entail The crown to thee, and to thine heirs forever; To seek to put me down and reign thyself." 12 King Henry here attempts to entail the crown to York and his heirs, conditionally, such estate tail, to vest, on his death, if the condition subsequent, i. e., if the war is stopped, if he is honored as his sovereign, until his death, and he did not, by treason or hostility, seek to put him down and reign himself, during his life, but the Poet did not use the words necessary to create such an estate, for in the creation of an estate tail, words of limitation must be used, which indicate clearly what heirs are to take, the usual form of limitation being to one and the heirs of "his body. 175 In other words, the limitation by the King, lacked the very essential of an estate tail, which, instead 1 Taylor vs. Webb, supra; Gardner vs. Sheldon, Vaugh. 262; Trent vs. Hanning, 7 East, 102, 103. Queen Margaret tells the King: "Q. Mar. Thou would'st have left thy dearest heart-blood there, Rather than make that savage duke thine heir, And disinherited thine only son." (3' Henry VI, Act I, Scene I.) Thou, Clifford tells the king, in 3' Henry VI: "Cliff. being a king, bless'd with a goodly son, Didst yield consent to disinherit him, Which argued thee a most unloving father." (Act II, Scene II.) 23' Henry VI, Act I, Scene I. 3 Tiedeman, R. P. (3d ed.), Sec. 38; Coke, Litt. 224a. Tiedeman, R. P. (3d ed.), Secs. 201, 203. Tiedeman, R. P. (3d ed.), Sec. 39 and citations; 2 Bl. Comm. 112-116. of going to one's heirs generally-as here limited-go to the heirs of one's "body." If the words, "seed," "issue" or "children" had been used, in connection with the word "heirs," the estate, if executed in proper form, would have conveyed a good estate tail-if the crown had been a proper subject for such conveyance-but in the form here given, the technical common law estate tail was not created.2 the crown, You that are king, though he do wear Have caused him, by new act of parliament, Parliament is the legislative branch of the English Government, consisting of the king, house of lords and house of commons. The king is usually called a part of parliament, because of his prerogative of veto and the necessity of his approval of the "acts" of parliament, to give them effect as laws. Since the power of veto has never been exercised since queen Anne's time, however, the authority of parliament is now practically unlimited.5 1 Coke, Litt. 27; 2 Bl. Comm. 115. 22 Prest. Est. 480-485. If Lord Bacon, or Lord Coke had been using words to create an estate tail no such failure to use the necessary common law words to create such an estate would have occurred. The Poet also makes the Queen fail to note this distinction and she, likewise, in speaking of the estate tail, fails to use words equivalent to the words of limitation necessary at common law, in creating this character of estate. Queen Margaret asks the King: "Q. Mar. To entail him and his heirs unto the crown, What is it, but to make thine sepulchre, And creep into it, far before thy time?" (3' Henry VI, Act I, Scene I.) 3' Henry VI, Act II, Scene II. 1 Bl. Comm. 147, 157; 2 Stephen's Comm. 537. May, Imperial Parliament. |