Were Edward VI’s Letters Patent on the Succession of 1553 ‘Legal’?

Were Edward VI’s letters patent altering the succession ‘legal’? That is, did they conform to the dictates of English constitutional, statute, and common law of 1553?

To answer that question, we must first briefly recount the history of the royal succession in England and recall the mechanisms that traditionally governed the succession prior to the Tudor period. The crown changed hands twenty-one times between William the Conqueror’s death in 1087 and Edward VI’s accession in 1547. The feudal concept of primogeniture guided approximately half (eleven) of those twenty-one instances. Military conquest forced five changes of monarch during the period, relatively non-violent deposition/usurpation compelled a further three, while in one example the incumbent dictated his successor in contravention of primogeniture, and a treaty mandated another.[2] Neither statute nor common law governed in any of those twenty-one successions.

(For a more-detailed analysis of the role played by the above mechanisms in each of the twenty-one royal successions between 1087 and 1547, scroll below the Notes attached to the bottom of this main article.)

The first instance in which the law entered the equation ex ante rather than post hoc occurred in 1534 (New Style). Henry VIII, wishing to prevent any woman from wearing the English crown, turned to Parliament for a binding prohibition against his daughter Mary ever becoming queen. An ecclesiastical court had already adjudged her the illegitimate issue of a non-canonical marriage, and the common law had long prohibited persons of illegitimate birth from inheriting from their natural fathers. But Henry recognized that public sentiment was on Mary’s side, and he perhaps also realized that the common law did not have authority over the royal succession. Mary might still succeed him on a wave of popular support despite her gender. Parliament promptly obliged the king by passing the First Succession Act to provide both a statutory confirmation of Mary’s bastard status and a binding legal barrier between her and the crown.

Henry repeated his appeal to Parliament in 1536, doing so for the same reasons. He sought to bar his second living but also statutorily illegitimate daughter Elizabeth from the crown. But that Second Succession Act went a significant step further by also empowering Henry VIII to issue letters patent under the Great Seal naming his successor or to name them in his last will and testament in the event he failed to sire legitimate issue after passage of the Act.

Henry turned to Parliament on succession issues yet again in 1543/4, but instead to reinstate Mary and Elizabeth to the succession without legitimating either. That Third Succession Act also empowered Henry VIII to limit, for any reason, the rights of either Mary or Elizabeth to succeed to the crown, again by issuance of letters patent under the Great Seal or in his last will and testament.

The above raises very important questions for historians today: In turning to Parliament, did Henry concede that issues related to the royal succession fell under its scope of authority rather than his own? How could Parliament pass a law on any issue if that issue was not already within the scope of its authority? Since Henry turned to Parliament not once, not twice, but three times in a row, it could very rightly be argued that Henry did consider the succession to be within Parliament’s scope of authority and not within that of the Crown. And under that consideration, he asked Parliament in 1543/4 to transfer its authority to him individually so that he could exercise it personally, either through his last will and testament or through letters patent or both.

Approaching the question from another direction, why did Henry VIII ask Parliament to grant him authority over the royal succession unless the Crown did not yet possess it? To grant or transfer authority, Parliament must first possess that authority itself. It cannot grant that which it does not possess. The fact that Parliament did formally empower Henry personally to limit the succession implies that both Henry and Parliament understood the royal succession was and long had been under Parliament’s scope of authority, not the Crown’s. Conversely, if the king and Parliament both understood authority over the succession to originate and to remain with the Crown, Henry did not need to ask Parliament to pass any succession acts, much less three in a row. If Henry already had authority as sovereign to limit or to alter the succession, he needed only to issue letters patent expressing his wishes, without consulting Parliament.

Both the Second and the Third Succession Acts did empower Henry VIII to limit the succession by means of letters patent and/or his last will and testament. But it is not at all clear whether Parliament granted that authority for solely that one limited instance and to Henry alone as the specific incumbent then on the throne, or whether it instead transferred the authority permanently to the Crown as an institution (or ‘branch of government’). The wording of the statute is imprecise, and historians continue to debate the issue to the present today. It seems rather implausible, however, that Parliament intended to transfer permanently to the Crown all authority over the royal succession and to empower every subsequent monarch to designate their successor independently by means of letters patent and/or their last will and testament.

Lastly and in relation to all three succession acts, it is noteworthy that Parliament did implicitly assert within the text of each act its authority over the royal succession. The text states that each law was enacted “with the assent of the lords spiritual and temporal and the commons … and by the authority of the same” [emphasis added]. The wording of the Act indicates that Parliament claimed authority over all issues related to the royal succession. The Crown in the person of the sovereign could only assent to or dissent from acts passed by Parliament unless Parliament transferred to the Crown all or part of its authority over a given issue. The Crown and sovereign lack authority over the royal succession.

And that brings us back to Edward’s letters patent. If, as seems to be the case, authority over issues related to the royal succession lay with Parliament rather than the Crown, then Edward’s letters patent were devoid of legal authority. By law, letters patent can do only those things that monarchs are empowered to do of their own royal authority, and Edward did not have that authority.

That assertion is supported by the ancient coronation ritual dating back over a millennium to the pre-Conquest Anglo-Saxon kings and most recently witnessed at the coronation of King Charles III. The first element of the coronation ritual has always been and still is ‘The Recognition.’ During that element, the officiant asks the assembly whether it collectively consents to the candidate becoming their sovereign lord. In presenting the issue as a choice, the officiant allows those assembled the theoretical right to decline. The existence and repeated use of the Recognition suggests that sovereigns rule only with the consent of the people, and therefore authority over the royal succession lies not with the Crown but rather with the people and with Parliament as representative of the people.[3] The six conquests, three usurpations, and one treaty noted above are themselves examples of successions determined by the people, not by the incumbent sovereign individually or by the Crown generally. And it might be argued that even the eleven successions that peacefully followed the feudal concept of primogeniture were, in effect, governed by the people to the extent that the people offered little or no resistance to the individual successors, either directly or through Parliament (the absence of objection implies consent), and the people explicitly accepted those successors at each Recognition.

In conclusion, Edward VI did not have authority over the royal succession and was therefore legally powerless to alter that succession, whether by letters patent or by any other direct means. Parliament held the authority and continued to hold authority even in the wake of the Second and Third Succession Acts. The Crown could only assent or dissent regarding acts passed by Parliament; it could not act independent of Parliament. Edward even implicitly acknowledged the authority of Parliament when he issued summonses in May 1553 for a Parliament to convene in September to debate the question and to pass a new succession act. He turned to letters patent only when he realized that he would not live long enough for Parliament to convene, and he did so only in a desperate extra-legal and “last-ditch” effort to name his own successor in contravention of the clauses in the Third Act for the Succession nominating first Mary and then Elizabeth as rightful successors.

As a direct result, Queen Jane ruled de facto but not de jure from 6 July to 19 July 1553. Beginning at the public proclamation of her accession on 10 July 1553, the people exercised their right of consent to being ruled by any given sovereign by expressing their dissent against Queen Jane openly and en masse, eventually causing the Privy Council to abandon her and leading Jane to stand down.

J. Stephan Edwards, PhD
Palm Springs, California
30 May 2024

NOTES:

1. Ms Hannah Wilson is a lower sixth form student and is working on an A-level Extended Project Qualification (EPQ). For those living outside the UK, the lower sixth form is the UK equivalent of the 12^th grade in a US high school or secondary school. An EPQ can be  earned by writing a ‘dissertation’ or paper of 5000 words, as well as by other means. Ms Wilson has chosen to write a dissertation on the reign of Jane Grey Dudley, with emphasis on the factors that led to the collapse of the reign. I highly commend her effort and am once again astounded by the high intellectual level of secondary school students in the UK as compared to those in the US.
2. I include the setting aside of Matilda as heir to Henry I among the military conquests because of the lengthy civil war between her and Stephen of Blois.
3. The English Parliament dates as an institution to no earlier than the thirteenth century and the reign of Henry III. Prior to the thirteenth century, the people were indirectly and informally represented by their immediate superiors in the feudal social order, the nobility.

An Addendum on the History of the English Royal Succession

Prior to the Norman Conquest of 1066, no laws existed to govern the royal succession. The Anglo-Saxon kings of England were instead either elected peacefully by the Witan or seized the throne by force of arms.[1] The Witan usually elected successors from among the extended royal family, but they were not always sons of the newly deceased king. Primogeniture was not a factor. Instead, the Witan considered only the candidates with the greatest likelihood of preserving the peace and of ruling successfully. When Edmund I died in 946, for example, the Witan elected his brother Eadred as his successor despite Edmund having two young sons living at the time of his death.

Further, a series of military conquests and re-conquests of Anglo-Saxon England by the Danish between 1013 and 1066 saw the crown change hands three times by force of arms. And on one occasion during that same period, the Witan peacefully elected a younger son rather than the eldest.[2] Additionally, in 1041, an assembly of nobles elected Edward the Confessor as tanistic successor to his childless half-brother Harthacnut.[3] Lastly, when Edward the Confessor died childless in January 1066, the Witan elected Earl Harold Godwinson, whose only familial claim was as a great-nephew in the female line descended from King Cnut (d.1035).

Thus, the royal succession to the crown of a unified Anglo-Saxon England following the death of Alfred the Great in 899 witnessed kings ascending the throne as the result of a mixture of election that only coincidentally followed the concept of primogeniture, of election in which the concept of primogeniture had no relevance or bearing, and of military conquest. But no laws, either common or statute, yet existed to govern the royal succession.

In the first several centuries following the Norman Conquest, the conquering nobility introduced Continental-style feudalism into England. Primogeniture inheritance had already developed within the feudal system as landowners sought to preserve their estates intact as they passed from one generation to the next rather than seeing them repeatedly divided among two or more heirs. But even as feudal primogeniture became the dominant inheritance pattern in England, it was never a rigidly governing principle, especially in relation to the royal succession. Instead, the succession continued to follow a mixed pattern that included not only primogeniture inheritance but also seizure by military force and the tacit consent of the people. And still no laws intended to govern the English royal succession were passed between the Conquest and the Tudor period.

A series of key examples from the twelfth century aptly illustrate the various ways in which the crown passed from one monarch to the next in the post-Conquest period. In the first example, William the Conqueror died in 1087 and was succeeded in England by his second surviving son rather than by his first.[4] That second son, William II, was killed/murdered in 1100, and his next younger brother Henry became king even though their mutual older brother Robert was still living. Henry I faced considerable opposition from his older brother, however. But Henry had been born post-Conquest in 1068, whereas Robert had been born pre-Conquest in 1051. Henry therefore asserted rather tenuously that his claim was superior on the grounds that he had been born to a reigning king of England while Robert had not. That claim is unique in English royal history, but it was seemingly a useful one in that instance.

The succession following the death of Henry I in 1135 provides the second illustrative example. Henry’s only surviving legitimate issue was a daughter, Matilda. Henry anticipated the likelihood of a dispute arising in the event of female successor, and he took measures to prevent such a dispute. Matilda was ultimately supplanted by her male cousin Stephen of Blois, however, following a lengthy period of civil war. Stephen became king by right of military force and conquest.[5]

A third illustrative example is provided by the succession of 1154. When Stephen died in that year, the eldest son of his rival Matilda became king as Henry II. He succeeded not by inheritance but rather by the terms of the Treaty of Wallingford, which set aside the surviving adult children of Stephen as well as Henry II’s own mother Matilda, surviving daughter and senior heir of King Henry I.[6] The succession of 1154 was therefore governed by treaty, not by law or by feudal custom.

Following the death of Henry II in 1189 and until 1327, the crown changed hands largely in conformity to the principle of primogeniture. Brothers inherited the crown somewhat ‘automatically’ (without significant challenge) from childless brothers or eldest living sons inherited from fathers. The crown passed from childless Richard I to his younger brother John, then to John’s eldest son Henry III, to Henry’s eldest son Edward I, and finally to Edward’s eldest son Edward II.[7]

Edward II was forced to abdicate in January 1327 and was murdered in September 1327, however, and a new series of transmittals of the crown began in which those transmittals were more often by force than by primogeniture inheritance. Edward II’s eldest son did become King Edward III, but he was prematurely installed as an underage puppet king whose mother Isabella intended to rule as regent together with her lover Roger Mortimer.[8]

Isabella’s regency was short-lived, and Edward III continued to rule for a remarkable fifty years and six months, dying in 1377. His eldest son, Edward the Black Prince, had died exactly a year prior, but his own son Richard, then aged nine and a half years, survived him. Thus, for the first time in post-Conquest English history, the crown passed to the eldest grandson of the newly deceased king, from Edward III to his grandson Richard II. And while that transfer of the crown accorded with the rules of primogeniture, Richard eventually suffered the same fate as his great-grandfather Edward II by being deposed in September 1399 and dying or being murdered in January 1400.

Richard II’s heir according to primogeniture was Edmund Mortimer, 5th Earl of March.[9] But those who deposed Richard II set Edmund aside under the French Salic Law of Succession because his claim included a woman in the direct line between himself and his ancestor Edward III.[10] They instead chose Henry of Bolingbroke (Henry IV), a claimant with only males in the ancestral line back to Edward III. Henry IV therefore inherited by informal election of the nobility, not my primogeniture inheritance, conquest, or law. Henry IV was succeeded through primogeniture inheritance by his son Henry V, and he was in turn similarly succeeded by his son Henry VI.

Then things got messy. Edward IV became king by military conquest in 1461, claiming the crown as the rightful heir of Edmund Mortimer, who had been set aside in 1399. The military forces of Henry VI reclaimed the crown from Edward IV in 1470 but lost it back to Edward after the Battle of Tewkesbury and the Siege of London, both in 1471. This episode is known to history as The Wars of the Roses, but Edward’s victory in 1471 did not end the conflict.

Edward IV died from an illness in 1483, and his eldest son became Edward V through primogeniture inheritance. But young Edward’s uncle usurped his throne to become Richard III just two and a half months later, in June 1483. Two years later, in 1485, Henry Tudor seized the throne from Richard III by military conquest and became King Henry VII of England, finally ending the Wars of the Wars of the Roses after twenty-four years of conflict.

Henry’s eldest surviving son inherited through primogeniture as Henry VIII in 1509, and his son similarly inherited as Edward VI in 1547.

NOTES:

1. The Witan, or Witenagemot, was an early form of king’s council comprised of ealdormen (earls), bishops, and thegns (substantial landholders) that advised the king on matters of importance to the entire realm.
2. The Witan elected Harold Harefoot in 1035 following the death of Cnut the Great rather than his older brother Harthacnut because the latter was otherwise engaged in warfare against Norse and Swedish armies attacking Denmark. Harthacnut became King of Denmark after his and Harold’s father, Cnut the Great, King of Denmark, Norway, and England, died in November 1035. Harold became King of England, and Magnus the Good reclaimed the throne of Norway that Cnut had seized in 1030 from Magnus’s father King Olaf Haraldsson.
3. Tanistry is the practice of naming a successor to rule as co- or deputy-monarch for the remainder of a reign in the expectation that the co-monarch will become sole ruler upon his counterpart’s death. This practice would be reintroduced twice more in the post-Conquest period.
4. That first son, Robert, inherited only Normandy. The second son became William II of England as a result of his father’s specific nomination.
5. Stephen recognized that the royal succession was ungoverned and so attempted to re-introduce the practice of tanistry. He named his eldest son Eustace as co-king in April 1152, but the clergy refused to crown him. Eustace predeceased his father sixteen months later.
6. Stephen’s surviving legitimate children included son William, aged about 17 years in 1154, and daughter Marie, aged 18 years in 1154. It is noteworthy that Henry II repeated Stephen of Blois’ recourse to tanistry by naming his own eldest son Henry as co-king in 1170. That son became known as Henry the Young King thereafter and until his death in 1183, though he never held or exercised any real power.
7. This essay does not include the efforts of Prince Louis of France to claim the English crown. Louis conquered two thirds of England in June of 1216, and he ruled over those two thirds as King Louis I of England from June 1216 until he was defeated by John in September 1217.
8. Edward III was aged 14 years and  2 ½ months when he was placed on the throne in January 1327.
9. Somewhat ironically, Edmund Mortimer, 5^th Earl of March, was the seventh generation descendant of Roger Mortimer, 1^st Earl of March and lover of Isabella, mother of and regent for a young Edward III.
10. The French Salic Law of Succession dates to the sixth century and bars dynastic succession through the female line. When Richard II was deposed in 1399, England was in the midst of what became later known (incorrectly) as the Hundred Years War. That war was initiated by Edward III in 1337 to prosecute his claim to the Crown of France as the heir under the Salic Law to his uncle, Charles IV of France (d.1328). The war ended 116 years later in 1453 with a French victory, though some English kings (especially Henry VIII) continued to press the English claim to the French crown until George III of Great Britain formally relinquished it in 1802.