Until recently succession to the British throne was governed by the rule of male-preference primogeniture. Under this system the monarch would be succeeded by the nearest biological heir except that males would be preferred over females so a younger male would have preference over his elder sister. Now the law of succession is to be changed to become gender neutral so that the first-born biological heir will become the successor regardless of gender. It is generally assumed that the law of primogeniture has covered the succession since time immemorial, but in fact it has only become firmly established since the Act of Settlement in 1701 and has only been regularly applied since the accession of George I. Primogeniture had been followed from time to time in previous periods but had never become firmly rooted in England or Scotland before the Act.

In the Celtic and Anglo-Saxon periods a different system of succession was often used in Britain and Ireland whereby the ablest and usually oldest member of the Royal Family was chosen by election or force to be the successor and sometimes the successor came from outside the Royal Family. This system is called tanistry and a version of it is still used in some Arab countries where brothers are preferred to sons. This system clashed with the idea of primogeniture particularly in Scotland where the primogenitural and tanist heirs fought constantly for the throne resulting in violent deaths for most Scottish kings. There primogeniture was finally imposed by force after a Norman invasion to enthrone King Edgar (d 1107) who was ironically not the primogenitural heir. That heir was his half-nephew William (d 1151/4) son of Edgar’s older half-brother Duncan II (d 1094), and his line is apparently represented now by Baron Fitzwalter. In the Anglo-Saxon kingdoms a strong king like Offa of Mercia (d 796) ensured that the succession would pass to his son, but primogeniture rarely lasted. In Wessex Egbert (d 839), who was a distant royal relation, had taken the throne in 802 and was forceful enough to enable his son Aethelwulf (d 858) to succeed him.

Another belief that has developed concerns the vital role of the Witan or Royal Council in the approval of the succession in the Anglo-Saxon period. In fact, the role of the Witan was normally just as nominal as the modern Privy Council in most cases. A strong king would pack the Witan to ensure the approval of his choice as successor or the Witan would simply rubber-stamp the accession of a new ruler who had already occupied the throne such as Aethelred II on the murder of his half-brother. There is no case in which the Witan actively opposed any new incumbent although members of it came close to deposing Eadwig (d 959), but only after his accession had been previously accepted. Indeed in some cases the decision of the Witan was irrelevant for there was yet another method of succession which has rarely been touched upon, namely, succession by conquest. Conquest was considered a valid method of succession since a successful conquest was obviously seen as a decision by God. This method of succession was to be used several times in the history of the British Crown.

The use of primogeniture in the succession to the throne of Wessex failed with the succession of the various sons of King Aethelwulf, not all of whom were childless. The youngest, Alfred the Great (d 899), was eventually installed as king in 871 instead of an infant nephew as he was the only surviving adult member of the family who was able to oppose the Danish invasion. His reign was overwhelmingly successful and he ensured the succession of his oldest son Edward (d 925) by giving him military command in his own lifetime and, of course, filling the Witan with his own family’s supporters. The primogenitural heir, his nephew Aethelwold (d 902), objected to no avail, and his rebellion was eventually crushed. The throne then passed, not altogether smoothly, to the primogenitural heirs of Edward with the slight interruption of King Edred (d 955) who ruled in place of his infant nephew but obligingly died childless so the nephew eventually inherited. The later Anglo-Saxon King Aethelred II (d 1016) was to lose his throne to the Danish King Sweyn (d 1014) who took England by conquest. A brief attempt to restore the Anglo-Saxon dynasty after Sweyn’s death in the persons of Aethelred II and his son Edmund II (d 1016) soon failed and Canute (d 1035), son of Sweyn, reconquered England. He exiled the sons of Edmund and had a successful reign. His sons quarrelled over the succession and both died childless so, more by accident than design, the Anglo-Saxon dynasty was restored in the person of Edward the Confessor (d 1066) who was not the primogenitural heir but was on the spot.

The succession to Edward the Confessor was to become the flashpoint which altered British history. In fact, the succession was clear. Edward had a great-nephew, Edgar the Atheling (Atheling is the Anglo-Saxon designation for one of royal blood), a grandson of Edmund II, who was apparently the primogenitural heir of the Anglo-Saxon dynasty from Alfred the Great, and some contemporary evidence suggests that the public regarded him as the natural successor. Edgar, unfortunately, was a foreign-born child who had no powerful backers among the elite. He faced the unscrupulous ambitions of Harold Godwinson (d 1066), the king’s brother-in-law, who dominated the political and military establishment. On Edward’s death he effectively usurped the throne buying off the northern earls with a marriage alliance to their sister. His approval by the Witan was a foregone conclusion as it was packed with his supporters. Harold faced two other external contenders for the throne. Harold Hardrada (d 1066), the Norwegian king, sought to emulate the Danish rulers by taking England by conquest. William Duke of Normandy (d 1087) also claimed the throne as it was promised to him by his cousin Edward the Confessor. Actually his relationship to Edward was on Edward’s maternal side so William had no Anglo-Saxon blood claims and Edward had no right to make a promise of the throne, if he indeed did so. Ironically William’s wife Matilda of Flanders (d 1083) did have an Anglo-Saxon blood claim as a descendant of Alfred the Great. The outcome in 1066 is well known but less known is the fact that, on hearing of the death of Harold, Edgar the Atheling was briefly proclaimed king in London before being forced to yield to William so he is the last Anglo-Saxon ruler as Edgar II, if only for a few hours or days.

During his reign William the Conqueror faced several revolts designed to place Edgar on the throne but eventually came to an agreement with Edgar who did not press his claim. As his sobriquet indicated, William essentially based his claim to the throne on conquest. William quarrelled with his eldest son Robert (d 1134) whom he deemed an unworthy successor so on his deathbed he left England to his second surviving son William Rufus (d 1100) on the grounds that primogeniture did not apply to land won by conquest. When William II died unexpectedly, his younger brother Henry seized the crown with the support of the royal court who preferred Henry I (1068–1135) who was known to them rather than Robert who was considered to be an incompetent outsider. Apart from the fact that Robert had been disinherited by his father, Henry argued that he was more worthy being born in England after his father’s accession. He strengthened his claim by marrying Edgar’s niece Edith later Matilda of Scotland (d 1118) who was not a primogenitural heiress but did have royal Anglo-Saxon blood. 

A generation later Henry I faced another succession crisis with the death of his son William the Atheling (1102–20) in a shipwreck. After some deliberation, he chose the legitimate primogenitural heir, his daughter Matilda (d 1167), rather than his illegitimate son or any of his nephews. This attempt failed as his nephew Stephen of Blois (d 1154) seized the crown with the support of some of the aristocracy and brought on a civil war. Matilda’s son Henry II (1133–89), the primogenitural heir of William the Conqueror, eventually succeeded, but the childless death of his son Richard I (1157–99) brought on another succession crisis. The primogenitural heir was his nephew Arthur Duke of Brittany (1187–1203), but the court including Queen Mother Eleanor of Aquitaine (d 1204) preferred her surviving son Count John (wrongly called Prince John in modern times as the title of prince was not used for royal sons until much later), and he may well have been nominated by Richard on his deathbed. John (1167–1216) was accepted without demur in England, and in due course he eliminated Arthur and imprisoned his sister Eleanor (1184–1241) for life so that his son Henry III (1207–72) eventually became the primogenitural heir. 

Male-preference primogeniture was then followed down to Richard II (1367–1400). It was reinforced in the reign of Edward I (1239–1307) when the king, fearful that his son might not survive, declared his eldest daughter Eleanor (1269–98) next-in-line rather than his brother Edmund Earl of Lancaster (1245–96). In Scotland primogeniture also prevailed to the death of Alexander III (1241–86) after whom the primogenitural heir John Balliol (1249–1314) was declared king. However, he was swept aside by the English and later Robert Bruce (1274–1329) whose grandfather had claimed the throne as a tanist heir. The use of primogeniture in Scotland returned with the heirs of Robert I, but the actual primogenitural heirship to the Anglo-Saxon kings and the medieval Scottish kings remained with the Balliols and the Comyns and is apparently represented today by Lord Strabolgi. 

It is clear that the childless Richard II did not feel bound by primogeniture in determining the succession. He did not recognise as his potential successor either the primogenitural heir Roger Mortimer Earl of March (1374–98), descended from the second son of Edward III (1312–77) nor indeed his cousin Henry Earl of Hereford (1366–1413), heir to his uncle John of Gaunt, Duke of Lancaster, who was the male heir of the family and was the third son of Edward III. Rather he seems to have preferred his cousin Edward, later Duke of York, descended from the fourth son. In 1399 Henry deposed Richard II and seized the throne as Henry IV. Henry was aware that succession by primogeniture had now become accepted in much of Europe so he turned to his spin-doctor for a solution. It was announced that Henry was in fact the primogenitural heir because his ancestor Edmund Earl of Lancaster had been the eldest son of Henry III but had been set aside due to physical disability This was a blatant falsehood which fooled nobody. In fact, Henry had a perfectly good claim to the throne by right of conquest which he chose not to use. The Lancastrian family was enlarged by a law legitimizing his half-brothers the Beauforts with a later rider which barred their succession to the throne.

Despite some revolts in favour of Edmund Mortimer Earl of March (1391–1425), the primogenitural heir, the Lancastrian claim endured to Henry VI (1421–71), while the primogenitural claim became vested in Richard Duke of York (1411–60) whose mother was a Mortimer. He was recognised as Henry VI’s heir, but this was set aside by the birth of Edward Prince of Wales (1454–71). Refusing to cede his position, York turned to smear tactics, asserting that Edward was a bastard. This calumny infuriated Henry VI’s Queen Margaret of Anjou (1429–82) and led to the War of the Roses which ultimately resulted in the death of Henry VI, Edward Prince of Wales, Richard Duke of York, and the accession of York’s son Edward IV (1442–83), the primogenitural heir of Edward III.

The succession of Edward IV’s son as Edward V (1470–83) should have passed smoothly, but the young king succumbed to the ambition of his unscrupulous uncle Richard Duke of Gloucester (1452–85). To reinforce his claim to the throne, Gloucester again used the technique of smear employed by his father the Duke of York. He first asserted that his brother Edward IV was illegitimate and, when this did not go down too well especially with his mother, he advanced the story that Edward IV had been betrothed or married before he married his Queen Elizabeth Woodville (d 1492) and so his children were bastards. These claims have been given more credence in modern times than they ever were at the time, and there can be no doubt that both are most probably lies. The sole source for the marriage story was Robert Stillington, Bishop of Bath and Wells (1420–91) who was not a pious cleric but a political churchman with a bastard son more in the mould of his contemporary Rodrigo Borgia. As he had a grievance against Edward IV who had imprisoned him, his word can hardly be relied upon. If the story were true, Gloucester could have applied to the Pope to legitimise his nephew as an innocent party, but, of course, it did not suit his purpose to do so. He also eliminated from the succession the children of his older brother George Duke of Clarence (1449–78) who had been executed for treason and so his children could be considered deprived of any succession rights. His right to the throne was enshrined in an act of Parliament entitled Titulus Regius in 1484.

Within a month of the succession of Richard III, a plot was discovered to restore the young king which most likely led to his death with his brother the Duke of York by order of his uncle and thereafter his niece Elizabeth of York (1466–1503) was considered by many to be the true heiress to the throne. Contrary to later claims, Richard III did not name an heir after the death of his son-neither his nephew Edward Earl of Warwick, who was technically debarred by his father’s treason or his sister’s son the Earl of Lincoln. In fact, he intended to father his own heir and had arranged a marriage with a Portuguese princess just prior to his death. He also intended to get rid of his troublesome niece Elizabeth by marrying her off to a minor Portuguese prince so Henry Tudor, who had promised to marry Elizabeth, had to act quickly to prevent it. This plan might have backfired if Richard had failed to father another heir as Elizabeth’s intended husband unexpectedly became King of Portugal and would certainly have claimed the throne in the right of his wife.

Richard III failed to engender enough support to prevent his overthrow and death at the hands of Henry Tudor (1457–1509), the Lancastrian claimant. Henry VII’s claim was based on his descent from John Beaufort (1373–1410), half-brother of Henry IV whose issue had become extinct. He conveniently ignored the fact that the Beauforts had been debarred from the succession. He also had a much stronger claim to succession by right of conquest. He pointedly did not claim that he owed the throne to his marriage to Elizabeth of York, the primogenitural heiress although that is what many of his subjects may have thought. He considered that he had appeased his new subjects by marrying her, but she was not the source of his claim to the throne. However, he did have Parliament repeal the Titulus Regius which had legalised Richard III’s usurpation and ordered all copies to be destroyed.

His son Henry VIII (1491–1547) had a much greater problem with the succession due to his own obsessions. He had a perfectly good heir in his daughter Mary (1516–58) but in his desire to have a legitimate son he pursued a divorce and marriage to Anne Boleyn (d 1536) which only gained him a second daughter Elizabeth (1533–1603). An Act of Succession in 1534 bastardised Mary and settled the succession on the children of Anne Boleyn. It is often forgotten that he divorced Anne on the eve of her execution on the grounds of a previous engagement so she was not queen when she died. A Second Act of Succession in 1536 bastardised Elizabeth as her sister Mary had so been designated and gave the king the right to nominate his successor from among his relations and thus did away with the practice of primogeniture. The consequence of this action meant that Henry’s illegitimate son Henry Fitzroy, Duke of Richmond (1519–36) now outranked his sisters. Fearful that his marriage to Jane Seymour (d 1537) might not produce an heir, it was believed that Henry intended to nominate Richmond as his successor but, if so, the plan failed due to the death of Richmond and the subsequent birth of a legitimate son. A further Act of Succession was passed in 1544 restored the legitimacy of the princesses. By his will Henry VIII clearly stated his nominations for the succession: his son Edward (1537–53) who duly succeeded, and, if he died childless, his daughters Mary and Elizabeth but then the descendants of his younger sister Mary (1496–1533), then represented firstly by Frances Brandon, Duchess of Suffolk (1517–59) and her eldest daughter Lady Jane Grey (1537–54). The descendants of his elder sister Margaret Queen of Scotland (1489–1541) were excluded from the succession.

Edward VI sought to overrule his father’s instructions by nominating his cousin Jane Grey for the throne by-passing his two sisters on the grounds that Mary was a Catholic and Elizabeth a bastard. This plan failed and cost Jane Grey her life. Mary I was tempted to by-pass Elizabeth as well but was deterred by the lack of alternatives. The primogenitural heir was Mary Queen of Scots (1542–87), a granddaughter of Margaret Tudor, but she was married to a French prince, an enemy of Mary’s Spanish husband, and excluded by Henry VIII’s will. This made Katherine Grey (1540–68), sister of the late Queen Jane, the legal heir, but, as Mary had just executed her sister and she was a suspected Protestant, she was hardly appealing. Moreover, Katherine Grey was intellectually inferior to her cousin Elizabeth and lacked her political skills so Elizabeth I duly succeeded to the throne.

It was generally assumed that Elizabeth would marry and produce heirs, but it soon became clear that this might not happen. Elizabeth was not prepared to designate a successor and the division between primogenitural and legal heirs gave her an opportunity to prevaricate. She probably intended to force Katherine Grey and her younger sister Mary (1545–78) to remain unmarried, but Katherine Grey forestalled her by secretly marrying in 1560 Edward Seymour, Earl of Hertford (1537–1621) and producing two sons. Elizabeth hit back by declaring the children bastards although this did not put an end to the line of Mary Tudor since their cousin Margaret Clifford Countess of Derby (1540–96) would then become the legal heir. Elizabeth also had a problem with the Queen of Scots who had declared herself lawful Queen of England on the grounds that Elizabeth was a bastard. It was speculated then that Elizabeth disliked all her possible heirs and was firm in not recognizing any successor who might become as annoying a problem to her as she had been to her sister Mary.

As her reign drew to its close, the question of the succession became more acute. New pretenders now came to the fore. The primogenitural heir was now James VI of Scotland (1566–1625), but he could be ruled out as he fell foul of Henry VIII’s nominations and was a foreigner as well. The first reason would also tend to relegate Arabella Stuart (1575–1615), a great-granddaughter of Margaret Tudor, as well as the fact that the country had tired of female rule. If Katherine Grey’s son Edward Seymour Lord Beauchamp (1561–1612) was considered a bastard, this left the legal heir as Anne Stanley, daughter of the Earl of Derby, later Lady Chandos and Countess of Castlehaven (1580–1647) who was never seriously considered. However, it is clear that the men of political influence in England had no intention of abiding by the letter of the law. Both Robert Devereux, Earl of Essex (1565–1601) and later Robert Cecil, who was to become Earl of Salisbury (1563–1612), opted for James VI not because he was the primogenitural heir but because he was a man and already a king with political experience. This choice was helped by the fact that Elizabeth specifically rejected the Seymour bid on her deathbed and probably preferred James although she never said so directly. Thus James I succeeded without any fuss and the act of 1536 and Henry VIII’s nominations were simply ignored. James I graciously recognised the validity of the Grey-Seymour marriage and the present day representative of this line is Lady Kinloss.

The rule of male-preference primogeniture was then followed for the Stuart dynasty although there were plots to depose or kill James in favour of his cousin Arabella Stuart or his own daughter Elizabeth and, of course, an interregnum after the Civil War. However, a problem arose in the reign of Charles II (1630–85) who had no legitimate issue. His heir was his brother the Catholic and politically incompetent James Duke of York (1633–1701), but Charles’ eldest illegitimate son the Protestant and politically incompetent James Scott, Duke of Monmouth (1649–85) claimed the throne, even alleging that he was legitimate which was clearly not the case. Even if he was illegitimate, he might have prevailed if his father had supported him, but Charles believed that a failure to follow legitimate primogeniture, now the rule in Europe, would degrade the monarchy, and fatally for the dynasty he backed his brother. When James II succeeded, Monmouth rebelled but was defeated and executed. If he had won, he could have claimed the throne by conquest and probably would have been accepted as ruler. James II did not last much longer through his own ineptitude. The birth of a son who would be a Catholic led to an invasion by William of Orange (1650–1702) and his deposition. His son was dismissed by another smear campaign alleging that he was a suppositious child smuggled into the palace.

If the son of James II could be set aside, then the heir to the throne was his daughter Mary (1662–94), conveniently married to William of Orange, and the establishment originally sought to name her as Queen. Her husband William objected that he should be king and was supported by his wife. He could have claimed the throne by conquest as the leader of the last successful invasion of England. However, a compromise was reached whereby William III, who was legally third in line to the throne, would be joint monarch with Mary II after her sister Anne (1665–1714) waived her place in the succession. As the couple were childless, Anne succeeded in due course. The Bill of Rights passed in 1689 debarred all Catholics and their spouses from the succession, and as Anne had no surviving children, the Act of Settlement was passed in 1701, nominating her cousin the Electress Sophia (1630–1714) and her issue as heirs to the throne. Thus all senior primogenitural lines were excluded on the grounds of their Catholicism. The direct legitimate line of the Stuarts became extinct with the death of Cardinal Henry Stuart of York (1725–1807) and is now represented by Franz Duke of Bavaria and will eventually pass to the Prince of Liechtenstein. With the succession of George I (1660–1727), male-preference primogeniture now became the rule and has been smoothly followed ever since.

The Succession to the Crown Act 2013 now changes the succession from male preference primogeniture to gender neutral primogeniture. The act also removes the disqualification to the succession for any member of the royal family who marries a Roman Catholic but still bars any Catholic from succeeding to the throne so, for example, Prince Michael of Kent would now not lose his place in the succession, but his children, as Protestants, have always been in line to the throne. The need for the Crown to approve a marriage of any possible heir is now limited to the first six in line. However, at the time of writing, the act has not been promulgated since all members of the Commonwealth who recognise the Crown have not yet passed similar legislation. It is not clear what will happen if they do not. Will the act be abandoned or might it be possible that an elder daughter might become sovereign of the United Kingdom while her younger brother would inherit the throne in a Commonwealth country? However, the history of the succession has shown that, while Parliament might lay down the succession, history might dispose otherwise. In these more law-abiding times, it is probable that the new succession law will be followed, but there is no absolute certainty about it.

M. L. Bierbrier

September 2014