established, the rest that was then done followed almost of course.
For, if the throne be at any time vacant (which may happen by other
means besides that of abdication; as if all the bloodroyal should
fail, without any successor appointed by parliament;) if, I say, a
vacancy by any means whatsoever should happen, the right of disposing
of this vacancy seems naturally to result to the lords and commons,
the trustees and representatives of the nation. For there are no other
hands in which it can so properly be intrusted; and there is a
necessity of it's being intrusted somewhere, else the whole frame of
government must be dissolved and perish. The lords and commons having
therefore determined this main fundamental article, that there was a
vacancy of the throne, they proceeded to fill up that vacancy in such
manner as they judged the most proper. And this was done by their
declaration of 12 February 1688[b], in the following manner: "that
William and Mary, prince and princess of Orange, be, and be declared
king and queen, to hold the crown and royal dignity during their
lives, and the life of the survivor of them; and that the sole and
full exercise of the regal power be only in, and executed by, the said
prince of Orange, in the names of the said prince and princess, during
their joint lives; and after their deceases the said crown and royal
dignity to be to the heirs of the body of the said princess; and for
default of such issue to the princess Anne of Denmark and the heirs of
her body; and for default of such issue to the heirs of the body of
the said prince of Orange."
[Footnote b: Com. Journ. 12 Feb. 1688.]
PERHAPS, upon the principles before established, the convention might
(if they pleased) have vested the regal dignity in a family intirely
new, and strangers to the royal blood: but they were too well
acquainted with the benefits of hereditary succession, and the
influence which it has by custom over the minds of the people, to
depart any farther from the antient line than temporary necessity and
self-preservation required. They therefore settled the crown, first on
king William and queen Mary, king James's eldest daughter, for their
_joint_ lives; then on the survivor of them; and then on the issue of
queen Mary: upon failure of such issue, it was limited to the princess
Anne, king James's second daughter, and her issue; and lastly, on
failure of that, to the issue of king William, who was the grandson of
Charles the first, and nephew as well as son in law of king James the
second, being the son of Mary his only sister. This settlement
included all the protestant posterity of king Charles I, except such
other issue as king James might at any time have, which was totally
omitted through fear of a popish succession. And this order of
succession took effect accordingly.
THESE three princes therefore, king William, queen Mary, and queen
Anne, did not take the crown by hereditary right or _descent_, but by
way of donation or _purchase_, as the lawyers call it; by which they
mean any method of acquiring an estate otherwise than by descent. The
new settlement did not merely consist in excluding king James, and the
person pretended to be prince of Wales, and then suffering the crown
to descend in the old hereditary chanel: for the usual course of
descent was in some instances broken through; and yet the convention
still kept it in their eye, and paid a great, though not total, regard
to it. Let us see how the succession would have stood, if no
abdication had happened, and king James had left no other issue than
his two daughters queen Mary and queen Anne. It would have stood thus:
queen Mary and her issue; queen Anne and her issue; king William and
his issue. But we may remember, that queen Mary was only nominally
queen, jointly with her husband king William, who alone had the regal
power; and king William was absolutely preferred to queen Anne, though
his issue was postponed to hers. Clearly therefore these princes were
successively in possession of the crown by a title different from the
usual course of descent.
IT was towards the end of king William's reign, when all hopes of any
surviving issue from any of these princes died with the duke of
Glocester, that the king and parliament thought it necessary again to
exert their power of limiting and appointing the succession, in order
to prevent another vacancy of the throne; which must have ensued upon
their deaths, as no farther provision was made at the revolution, than
for the issue of king William, queen Mary, and queen Anne. The
parliament had previously by the statute of 1 W. & M. st. 2. c. 2.
enacted, that every person who should be reconciled to, or hold
communion with, the see of Rome, should profess the popish religion,
or should marry a papist, should be excluded and for ever incapable to
inherit, possess, or enjoy, the crown; and that in such case the
people should be absolved from their allegiance, and the crown should
descend to such persons, being protestants, as would have inherited
the same, in case the person so reconciled, holding communion,
professing, or marrying, were naturally dead. To act therefore
consistently with themselves, and at the same time pay as much regard
to the old hereditary line as their former resolutions would admit,
they turned their eyes on the princess Sophia, electress and duchess
dowager of Hanover, the most accomplished princess of her age[c]. For,
upon the impending extinction of the protestant posterity of Charles
the first, the old law of regal descent directed them to recur to the
descendants of James the first; and the princess Sophia, being the
daughter of Elizabeth queen of Bohemia, who was the youngest daughter
of James the first, was the nearest of the antient blood royal, who
was not incapacitated by professing the popish religion. On her
therefore, and the heirs of her body, being protestants, the remainder
of the crown, expectant on the death of king William and queen Anne
without issue, was settled by statute 12 & 13 W. III. c. 2. And at the
same time it was enacted, that whosoever should hereafter come to the
possession of the crown, should join in the communion of the church of
England as by law established.
[Footnote c: Sandford, in his genealogical history, published _A.D._
1677, speaking (page 535) of the princesses Elizabeth, Louisa, and
Sophia, daughters of the queen of Bohemia, says, the first was reputed
the most learned, the second the greatest artist, and the last one of
the most accomplished ladies in Europe.]
THIS is the last limitation of the crown that has been made by
parliament: and these several actual limitations, from the time of
Henry IV to the present, do clearly prove the power of the king and
parliament to new-model or alter the succession. And indeed it is now
again made highly penal to dispute it: for by the statute 6 Ann. c. 7.
it is enacted, that if any person maliciously, advisedly, and
directly, shall maintain by writing or printing, that the kings of
this realm with the authority of parliament are not able to make laws
to bind the crown and the descent thereof, he shall be guilty of high
treason; or if he maintains the same by only preaching, teaching, or
advised speaking, he shall incur the penalties of a praemunire.
THE princess Sophia dying before queen Anne, the inheritance thus
limited descended on her son and heir king George the first; and,
having on the death of the queen taken effect in his person, from him
it descended to his late majesty king George the second; and from him
to his grandson and heir, our present gracious sovereign, king George
the third.
HENCE it is easy to collect, that the title to the crown is at present
hereditary, though not quite so absolutely hereditary as formerly; and
the common stock or ancestor, from whom the descent must be derived,
is also different. Formerly the common stock was king Egbert; then
William the conqueror; afterwards in James the first's time the two
common stocks united, and so continued till the vacancy of the throne
in 1688: now it is the princess Sophia, in whom the inheritance was
vested by the new king and parliament. Formerly the descent was
absolute, and the crown went to the next heir without any restriction:
but now, upon the new settlement, the inheritance is conditional,
being limited to such heirs only, of the body of the princess Sophia,
as are protestant members of the church of England, and are married to
none but protestants.
AND in this due medium consists, I apprehend, the true constitutional
notion of the right of succession to the imperial crown of these
kingdoms. The extremes, between which it steers, are each of them
equally destructive of those ends for which societies were formed and
are kept on foot. Where the magistrate, upon every succession, is
elected by the people, and may by the express provision of the laws be
deposed (if not punished) by his subjects, this may sound like the
perfection of liberty, and look well enough when delineated on paper;
but in practice will be ever productive of tumult, contention, and
anarchy. And, on the other hand, divine indefeasible hereditary right,
when coupled with the doctrine of unlimited passive obedience, is
surely of all constitutions the most thoroughly slavish and dreadful.
But when such an hereditary right, as our laws have created and vested
in the royal stock, is closely interwoven with those liberties, which,
we have seen in a former chapter, are equally the inheritance of the
subject; this union will form a constitution, in theory the most
beautiful of any, in practice the most approved, and, I trust, in
duration the most permanent. It was the duty of an expounder of our
laws to lay this constitution before the student in it's true and
genuine light: it is the duty of every good Englishman to understand,
to revere, to defend it.
CHAPTER THE FOURTH.
OF THE KING'S ROYAL FAMILY.
THE first and most considerable branch of the king's royal family,
regarded by the laws of England, is the queen.
THE queen of England is either queen _regent_, queen _consort_, or
queen _dowager_. The queen _regent_, _regnant_, or _sovereign_, is she
who holds the crown in her own right; as the first (and perhaps the
second) queen Mary, queen Elizabeth, and queen Anne; and such a one
has the same powers, prerogatives, rights, dignities, and duties, as
if she had been a king. This was observed in the entrance of the last
chapter, and is expressly declared by statute 1 Mar. I. st. 3. c. 1.
But the queen _consort_ is the wife of the reigning king; and she by
virtue of her marriage is participant of divers prerogatives above
other women[a].
[Footnote a: Finch. L. 86.]
AND, first, she is a public person, exempt and distinct from the king;
and not, like other married women, so closely connected as to have
lost all legal or separate existence so long as the marriage
continues. For the queen is of ability to purchase lands, and to
convey them, to make leases, to grant copyholds, and do other acts of
ownership, without the concurrence of her lord; which no other married
woman can do[b]: a privilege as old as the Saxon aera[c]. She is also
capable of taking a grant from the king, which no other wife is from
her husband; and in this particular she agrees with the _augusta_, or
_piissima regina conjux divi imperatoris_ of the Roman laws; who,
according to Justinian[d], was equally capable of making a grant to,
and receiving one from, the emperor. The queen of England hath
separate courts and officers distinct from the king's, not only in
matters of ceremony, but even of law; and her attorney and solicitor
general are intitled to a place within the bar of his majesty's
courts, together with the king's counsel[e]. She may also sue and be
sued alone, without joining her husband. She may also have a separate
property in goods as well as lands, and has a right to dispose of them
by will. In short, she is in all legal proceedings looked upon as a
feme sole, and not as a feme covert; as a single, not as a married
woman[f]. For which the reason given by Sir Edward Coke is this:
because the wisdom of the common law would not have the king (whose
continual care and study is for the public, and _circa ardua regni_)
to be troubled and disquieted on account of his wife's domestic
affairs; and therefore it vests in the queen a power of transacting
her own concerns, without the intervention of the king, as if she was
an unmarried woman.
[Footnote b: 4 Rep. 23.]
[Footnote c: Seld. _Jan. Angl._ 1. 42.]
[Footnote d: _Cod._ 5. 16. 26.]
[Footnote e: Selden tit. hon. 1. 6. 7.]
[Footnote f: Finch. L. 86. Co. Litt. 133.]
THE queen hath also many exemptions, and minute prerogatives. For
instance: she pays no toll[g]; nor is she liable to any amercement in
any court[h]. But in general, unless where the law has expressly
declared her exempted, she is upon the same footing with other
subjects; being to all intents and purposes the king's subject, and
not his equal: in like manner as, in the imperial law, "_augusta
legibus soluta non est_[i]."
[Footnote g: Co. Litt. 133.]
[Footnote h: Finch. L. 185.]
[Footnote i: _Ff._ 1. 3. 31.]
THE queen hath also some pecuniary advantages, which form her a
distinct revenue: as, in the first place, she is intitled to an
antient perquisite called queen-gold or _aurum reginae_; which is a
royal revenue, belonging to every queen consort during her marriage
with the king, and due from every person who hath made a voluntary
offering or fine to the king, amounting to ten marks or upwards, for
and in consideration of any privileges, grants, licences, pardons, or
other matter of royal favour conferred upon him by the king: and it is
due in the proportion of one tenth part more, over and above the
intire offering or fine made to the king; and becomes an actual debt
of record to the queen's majesty by the mere recording the fine[k].
As, if an hundred marks of silver be given to the king for liberty to
take in mortmain, or to have a fair, market, park, chase, or free
warren; there the queen is intitled to ten marks in silver, or (what
was formerly an equivalent denomination) to one mark in gold, by the
name of queen-gold, or _aurum reginae_[l]. But no such payment is due
for any aids or subsidies granted to the king in parliament or
convocation; nor for fines imposed by courts on offenders, against
their will; nor for voluntary presents to the king, without any
consideration moving from him to the subject; nor for any sale or
contract whereby the present revenues or possessions of the crown are
granted away or diminished[m].
[Footnote k: Pryn. _Aur. Reg._ 2.]
[Footnote l: 12 Rep. 21. 4 Inst. 358.]
[Footnote m: _Ibid._ Pryn. 6. Madox. hist. exch. 242.]
THE revenue of our antient queens, before and soon after the conquest,
seems to have consisted in certain reservations or rents out of the
demesne lands of the crown, which were expressly appropriated to her
majesty, distinct from the king. It is frequent in domesday-book,
after specifying the rent due to the crown, to add likewise the
quantity of gold or other renders reserved to the queen[n]. These were
frequently appropriated to particular purposes; to buy wool for her
majesty's use[o], to purchase oyl for her lamps[p], or to furnish her
attire from head to foot[q], which was frequently very costly, as one
single robe in the fifth year of Henry II stood the city of London in
upwards of fourscore pounds[r]. A practice somewhat similar to that of
the eastern countries, where whole cities and provinces were
specifically assigned to purchase particular parts of the queen's
apparel[s]. And, for a farther addition to her income, this duty of
queen-gold is supposed to have been originally granted; those matters
of grace and favour, out of which it arose, being frequently obtained
from the crown by the powerful intercession of the queen. There are
traces of it's payment, though obscure ones, in the book of domesday
and in the great pipe-roll of Henry the first[t]. In the reign of
Henry the second the manner of collecting it appears to have been well
understood, and it forms a distinct head in the antient dialogue of
the exchequer[u] written in the time of that prince, and usually
attributed to Gervase of Tilbury. From that time downwards it was
regularly claimed and enjoyed by all the queen consorts of England
till the death of Henry VIII; though after the accession of the Tudor
family the collecting of it seems to have been much neglected: and,
there being no queen consort afterwards till the accession of James I,
a period of near sixty years, it's very nature and quantity became
then a matter of doubt: and, being referred by the king to his then
chief justices and chief baron, their report of it was so very
unfavorable[w], that queen Anne (though she claimed it) yet never
thought proper to exact it. In 1635, 11 Car. I, a time fertile of
expedients for raising money upon dormant precedents in our old
records (of which ship-money was a fatal instance) the king, at the
petition of his queen Henrietta Maria, issued out his writ for levying
it; but afterwards purchased it of his consort at the price of ten
thousand pounds; finding it, perhaps, too trifling and troublesome to
levy. And when afterwards, at the restoration, by the abolition of the
military tenures, and the fines that were consequent upon them, the
little that legally remained of this revenue was reduced to almost
nothing at all, in vain did Mr Prynne, by a treatise which does honour
to his abilities as a painful and judicious antiquarian, endeavour to
excite queen Catherine to revive this antiquated claim.
[Footnote n: _Bedefordscire. Maner. Lestone redd. per annum xxii lib.
&c: ad opus reginae ii uncias auri.----Herefordscire. In Lene, &c,
consuetud. ut praepositus manerii veniente domina sua (regina) in
maner. praesentaret ei xviii oras denar. ut esset ipsa laeto animo._
Pryn. Append. to _Aur. Reg._ 2, 3.]
[Footnote o: _causa coadunandi lanam reginae._ Domesd. _ibid._]
[Footnote p: _Civitas Lundon. Pro oleo ad lampad. reginae._ _Mag. rot.
pip. temp. Hen. II. ibid._]
[Footnote q: _Vicecomes Berkescire, xvi l. pro cappa reginae._ (_Mag.
rot. pip. 19--22 Hen. II. ibid._) _Civitas Lund. cordubanario reginae
xx s._ _Mag. Rot. 2 Hen. II._ Madox hist. exch. 419.]
[Footnote r: _Pro roba ad opus reginae, quater xx l. & vi s. & viii
d._ _Mag. Rot. 5 Hen. II. ibid._ 250.]
[Footnote s: _Solere aiunt barbaros reges Persarum ac
Syrorum--uxoribus civitates attribuere, hoc modo; haec civitas mulieri
redimiculum praebeat, haec in collum, haec in crines, &c._ _Cic. in
Verrem._ _lib._ 3. _c._ 33.]
[Footnote t: See Madox _Disceptat. epistolar._ 74. Pryn. _Aur. Regin._
Append. 5.]
[Footnote u: _lib._ 2. _c._ 26.]
[Footnote w: Mr Prynne, with some appearance of reason, insinuates,
that their researches were very superficial. _Aur. Reg._ 125.]
ANOTHER antient perquisite belonging to the queen consort, mentioned
by all our old writers[x], and, therefore only, worthy notice, is
this: that on the taking of a whale on the coasts, which is a royal
fish, it shall be divided between the king and queen; the head only
being the king's property, and the tail of it the queen's. "_De
sturgione observetur, quod rex illum habebit integrum: de balena vero
sufficit, si rex habeat caput, et regina caudam._" The reason of this
whimsical division, as assigned by our antient records[y], was, to
furnish the queen's wardrobe with whalebone.
[Footnote x: Bracton, _l._ 3. _c._ 3. Britton, _c._ 17. Fleta, _l._ 1.
_c._ 45 & 46.]
[Footnote y: Pryn. _Aur. Reg._ 127.]
BUT farther: though the queen is in all respects a subject, yet, in
point of the security of her life and person, she is put on the same
footing with the king. It is equally treason (by the statute 25 Edw.
III.) to compass or imagine the death of our lady the king's
companion, as of the king himself: and to violate, or defile, the
queen consort, amounts to the same high crime; as well in the person
committing the fact, as in the queen herself, if consenting. A law of
Henry the eighth[z] made it treason also for any woman, who was not a
virgin, to marry the king without informing him thereof. But this law
was soon after repealed; it trespassing too strongly, as well on
natural justice, as female modesty. If however the queen be accused
of any species of treason, she shall (whether consort or dowager) be
tried by the house of peers, as queen Ann Boleyn was in 28 Hen. VIII.
[Footnote z: Stat. 33 Hen. VIII. c. 21.]
THE husband of a queen regnant, as prince George of Denmark was to
queen Anne, is her subject; and may be guilty of high treason against
her: but, in the instance of conjugal fidelity, he is not subjected to
the same penal restrictions. For which the reason seems to be, that,
if a queen consort is unfaithful to the royal bed, this may debase or
bastardize the heirs to the crown; but no such danger can be
consequent on the infidelity of the husband to a queen regnant.
A QUEEN _dowager_ is the widow of the king, and as such enjoys most of
the privileges belonging to her as queen consort. But it is not high
treason to conspire her death; or to violate her chastity, for the
same reason as was before alleged, because the succession to the crown
is not thereby endangered. Yet still, _pro dignitate regali_, no man
can marry a queen dowager without special licence from the king, on
pain of forfeiting his lands and goods. This sir Edward Coke[a] tells
us was enacted in parliament in 6 Hen. IV, though the statute be not
in print. But she, though an alien born, shall still be intitled to
dower after the king's demise, which no other alien is[b]. A queen
dowager, when married again to a subject, doth not lose her regal
dignity, as peeresses dowager do their peerage when they marry
commoners. For Katherine, queen dowager of Henry V, though she married
a private gentleman, Owen ap Meredith ap Theodore, commonly called
Owen Tudor; yet, by the name of Katherine queen of England, maintained
an action against the bishop of Carlisle. And so the queen of Navarre
marrying with Edmond, brother to king Edward the first, maintained an
action of dower by the name of queen of Navarre[c].
[Footnote a: 2 Inst. 18.]
[Footnote b: Co. Litt. 31 _b._]
[Footnote c: 2 Inst. 50.]
THE prince of Wales, or heir apparent to the crown, and also his royal
consort, and the princess royal, or eldest daughter of the king, are
likewise peculiarly regarded by the laws. For, by statute 25 Edw. III,
to compass or conspire the death of the former, or to violate the
chastity of either of the latter, are as much high treason, as to
conspire the death of the king, or violate the chastity of the queen.
And this upon the same reason, as was before given; because the prince
of Wales is next in succession to the crown, and to violate his wife
might taint the blood royal with bastardy: and the eldest daughter of
the king is also alone inheritable to the crown, in failure of issue
male, and therefore more respected by the laws than any of her younger
sisters; insomuch that upon this, united with other (feodal)
principles, while our military tenures were in force, the king might
levy an aid for marrying his eldest daughter, and her only. The heir
apparent to the crown is usually made prince of Wales and earl of
Chester, by special creation, and investiture; but, being the king's
eldest son, he is by inheritance duke of Cornwall, without any new
creation[d].
[Footnote d: 8 Rep. 1. Seld. titl. of hon. 2. 5.]