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act of law, without any interregnum or interval, is vested at once in his heir, who is eo instante king to all intents and purposes.1 Of this perpetuity of the regal office, without suspension or abeyance even for a moment, a curious illustration and application was given in the House of Lords in the proceedings on the regency act, 1 Wm. IV. c. ii. It was held by lord chancellor Lyndhurst, with the assent of the late earl of Eldon, that in the event of the king's death leaving his widow with child, the crown would nevertheless descend upon the heiress presumptive, but subject to be divested by the birth of a child of the deceased king, who would immediately become king or queen. It follows, that by the decease of king William, and the birth and subsequent death of a posthumous child of that king, her majesty would have become queen, then descended to the station of a subject, and then become queen again. It does not, however, appear clear, on principles of reason or policy, why the doctrine of the civil law, which gives the same rights to children in the womb as to children actually born, should not be applicable to such a case.2 A child unborn is not more incapable of exercising the regal or any other functions than an infant just born, or of very tender age, or a person insane. In all such cases, the regal office must equally be administered by some other person. But cases may easily occur where the rights of the posthumous child could not be maintained against an
1 Thus a coronation is not necessary to complete the title to the crown. But Sir M. Foster holds, that coronation is not a mere royal ceremony, but a solemn engagement between the king and the people. Foster, Disc, on High Treason; Crown Law, p. 189.
* Qui in utero ett,perinde ac ti in rebut humanis ettet custoditur, quotiens de commodit iptiut partut quterttur. L. 7. ff. de Stat . Hom.; and see L. 2. ff. de Excusat. L. 9. § 1. ff. ad Leg. Falc .
heir presumptive in actual possession of the crown without a civil war; whereas those rights would be preserved, and the danger of a disputed succession prevented, by the creation of a regency on the king's widow declaring herself with child, which could not continue above the usual period of gestation.
The law of England, however, is in this particular grounded on the feudal law, which requires that there should be a tenant to the land, not only in rerum natura, but actually born, and therefore prefers the heir presumptive to the unborn heir apparent. It has been settled by our courts of justice, that the child, before its birth, cannot be seised in real property. It vests in the presumptive heir; he possesses the property, and enjoys it, without keeping an account, as entirely as the heir apparent would, if he were born. Besides, it was argued by the lord chancellor Lyndhurst, that in the king's name justice is administered, and all acts of government are performed; and that therefore it was not possible to suspend the descent of the crown on the heiress presumptive, even during the ordinary period of gestation. His lordship further urged, that the crown is entitled to real property, and that such real property must, on the decease of the king, vest in her royal highness the princess Victoria, and not in the supposed infant in ventre sa mere. He said, that it was extraordinary that our history afforded no precedent to be followed; but mentioned two cases of this nature which had occurred in the history of France. On the death of Louis X., the presumptive heir to the throne was appointed regent, and continued so until the birth of the posthumous child. The child was a male, and therefore entitled to succeed to the throne; but it lived only eight days. At the death of Charles the Fair, his widow was seven months gone with child. The presuraptive heir to the throne was again made regent. The child proved to be a female, and consequently could Dot succeed to the throne by the law of France. The regent thereupon succeeded. It is, however, to be observed, that the authority of the civil law in France, even in the payis coutumier, was very great; and this accounts foi the course followed in these important instances. But, as the lord chancellor informed the house, the descent of the crown is governed in England by the same rules which regulate the descent of real property, with two exceptions: the first of which is, that the half-blood is no bar to the succession; and the second is, that, in case of two or more daughters, the eldest succeeds alone.1 He admitted, on the authority of Hargrave (Brief Deductions), that the law on this point was unsettled; but concluded that it ought to be decided by analogy to the law of descent of real property.
His lordship suggested, that if a regency were to be created during the period of gestation, the regent should administer the government in the name of the presumptive heir, liable to have his authority divested on the birth of the posthumous heir apparent; because thus the principle, that the crown is never vacant, would not be violated: whereas a contrary method of appointment would be the creation of a parliamentary sovereign, under the name and style of regent. But, on the other hand, there seems to be an incongruity in appointing a regent to act in the name of a sovereign who is fully capable of acting in person. Besides, there does not appear to be any solid reason why the regent should not administer the government on the behalf of the unborn child. There would be no greater
I With respect to the half-blood, the law of descent of real property is now altered by 3 and 4 W. IV. ch. cvi.; and the half-blood succeed next to the whole blood.
absurdity in this, than in a regent governing in the name and by the authority of an infant in arms, or of a person non compos. The law, in all these cases, is grounded on a fiction established for paramount reasons of public good; and that fiction is as applicable to the case of an unborn child, as to other cases of the absolute incapacity of the sovereign. If the right to the crown vests in the unborn child, the regency should, upon principle, be on its behalf; and if it does not so vest, there is no occasion to appoint a regent during the interval, except for the purpose of preventing an usurpation on the part of the heir presumptive. But this last object might equally be attained by limiting the regal power of the heir presumptive during the period of gestation; and we may fairly question whether there would be any thing at variance with monarchical principles in imposing extraordinary restraints on the royal prerogative, while it remains in the hands of a sovereign whose title is defeasible, or subject to be divested on the occurrence of a given event.
It is true, that if eventually no posthumous child were born, the heir presumptive would have been delayed in and deprived of his right to the throne, during the period of gestation. But it may be doubted whether any great weight is due to the possibility of such a delay of right during a fraction of a year.
The constitutional law on this subject is, however, now fixed by the precedent of the stat. 1 Wm. IV. c. xi.; and it has only been discussed here, because no constitutional writer in this country has yet examined that great and important question in all its bearings.
So tender is the law (says our illustrious commentator) of supposing even a possibility of the king's death, that his natural dissolution is generally called his demise—demissio regis vel corona: an expression which signifies merely a transfer of property; for, as it is observed in Plowden,1 when we say the demise of the crown, we mean only that, in consequence of the disunion of the king's natural body from his body politic, the kingdom is transferred or demised to his successor; and so the royal dignity remains perpetual. Thus, too, when Edward IV., in the tenth year of his reign, was driven from his throne for a few months by the house of Lancaster, this temporary transfer of his dignity was denominated his demise; and all process was held to be discontinued, as upon a natural death of the king.2