But, while we rest this fundamental transaction, in point of authority, upon grounds the least liable to cavil, we are bound both in justice and gratitude to add, that it was conducted with a temper and moderation which naturally arose from its equity; that, however it might in some respects go beyond the letter of our ancient laws, (the reason of which will more fully appear hereafter,) (c) it was agreeable to the spirit of our constitution, and the rights of human nature; and that though in other points, owing to the peculiar circumstances of things and persons, it was not altogether so perfect as might have been wished, yet from thence a new æra commenced, in which the bounds of prerogative and liberty have been better defined, the principles of government more thoroughly examined and understood, and the rights of the subject more explicitly guarded by legal provisions, than in any other period of the English history. In particular it is worthy observation that the convention, in this their judgment, avoided with great wisdom the wild extremes into [*213] which the visionary theories of some zealous republicans would have led them. They held that this misconduct of King James amounted to an endeavour to subvert the constitution; and not to an actual subversion, or total dissolution, of the government, according to the principles of Mr. Locke: (d) which would have reduced the society almost to a state of nature; would have levelled all distinctions of honour, rank, offices, and property: would have annihilated the sovereign power, and in consequence have repealed all positive laws; and would have left the people at liberty to have erected a new system of state upon a new foundation of polity. They therefore very prudently voted it to amount to no more than an abdication of the government, and a consequent vacancy of the throne; whereby the government was allowed to subsist, though the executive magistrate was gone, and the kingly office to remain, though King James was no longer king. (e) And thus the constitution was kept entire; which upon every sound principle of government must otherwise have fallen to pieces, had so principal and constituent a part as the royal authority been abolished, or even suspended. (10)

This single postulatum, the vacancy of the throne, being once 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 blood royal 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 its 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, (f) in the [*214]

(c) See Chap. 7.

(e) Law of forfeit, 118, 119.

d) On Gov. p. 2, c. 19.
(f) Com. Journ. 12 Feb. 1688.

in a political fallacy. By what process of reasoning it can be demonstrated, that it is our duty to acquiesce in the demonstrations of our ancestors, though they were bound by no such obligation with regard to theirs, is not easily to be conceived. Yet such is by plain and natural inference a proposition of our author. The principle that a people have the right to choose and to regulate their own form of government, if true in 1688, does not become false, by the lapse of time; and reasoning a priori, it may be more safely exercised now than at any antecedent period, because the science of government is better understood. The respect and attachment due to the institutions of a free state, like ours, so far from being compromised, are included and avowed in this sentiment. And the learned commentator might have better urged the improbability of the nation again having occasion to exercise this power over the constitution, than have enforced the obligation to maintain the constitution because we are born under it.]

(10) [The unusual combination of favorable circumstances which attended this revolution, and the temper and moderation of its conductors, are well commented upon by Mr. Hallam. Const. Hist. c. 14. See also Professor Smyth's Lect. on Hist., No. 20.] 137

VOL. I.-18.

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."

Perhaps, upon the principles before established, the convention might (if they pleased) have vested the regal dignity in a family entirely 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 ancient 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 sonin-law of King James the Second, being the son of Mary, his eldest 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

[*215] 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 the prince of Wales, and then suffering the crown to descend in the old hereditary channel: 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 personally 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 descents.

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 Gloucester, 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 Queen Mary, Queen Anne, and King William. The parliament had previously, by the statute of 1 W. and 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 be forever 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

[*216]

turned their eyes on the Princess Sophia, electress and duchess dowager of Hanover, the most accomplished princess of her age. (g) For, upon the impending extinction of the protestant posterity of Charles the First, the old law of legal descent directed them to recur to the descendants of James the First; and the Princess Sophia, being the youngest daughter of Elizabeth queen of Bohemia, who was the daughter of James the First, was the nearest of the ancient blood royal, who was not incapacitated by professng 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 Willliam and Queen Anne without issue, was settled by statute 12 and 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.

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 pramunire.

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 [*217 ]

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 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, divíne, 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

(g) Sandford, in his genealogical history, published A. D. 1677, speaking 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.

duration the most permanent. It was the duty of an expounder of our laws to lay this constitution before the student in its true and genuine light: it is the duty of every good Englishman to understand, to revere, to defend it. (11)

CHAPTER IV.

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)

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

(a) Finch, L. 86.

(11) By the constitution of the United States the president, who is the federal executive, is chosen by electors, who are themselves chosen by the people of the several states to perform that duty. Each state appoints in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in congress: Const. art. 2, § 1; and those electors meet in the respective states and vote by ballot for president and vice-president, one of the persons voted for, at least, not being an inhabitant of the same state with themselves; the result of which voting is transmitted to the seat of government, and canvassed in joint convention of the two houses of congress. If no one person have a majority of all the votes cast for president, the house of representatives proceeds immediately to choose a president by ballot, from the persons, not exceeding three, having the highest number of votes; but in this election they vote by states, the representation of each state being entitled to one vote, and a majority of all the states being necessary to a choice. If no person has a majority of all the votes cast for vice-president, the senate, from the two highest numbers on the list, chooses a vice-president; a majority vote of a quorum of two-thirds of all the senators being requisite to an election. Const. 12th amendment. No person is eligible to either of these offices except a natural born citizen, or one who was a citizen at the time of the adoption of the constitution, and who has attained the age of thirty-five years. Const. art. 2, § 1.

In case of the removal of the president from office or of his death, resignation or inability to discharge the powers and duties of his office, the same devolve on the vice-president. Const. art. 2, § 1. And in case of vacancy in the office of vice-president, then such powers and duties devolve upon the president pro tem. of the senate, or, if there be no such officer, then upon the speaker of the house of representatives for the time being. 1 Stat. at Large, 239. And if the house of representatives shall not choose a president when the right devolves upon them, by the fourth day of March next following, the vice-president becomes acting president, as in the case of the death or other constitutional disability of the president. Const. 12th amendment. The president and vice-president, like all other civil officers. are subject to be removed from office, on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Const. art. 2, § 4.

By the constitution, as originally adopted, the electors chosen in the states cast their votes for two persons, without designating which was their choice for president and which for vicepresident, and the persons having the highest number, if a majority of all, became president, and the one having the next highest number, if a majority, became vice-president; but, when party lines came to be distinctly drawn, so that the candidates of one party, in the absence of intrigue or bad faith, were likely always to receive the same number of votes, the purpose of this scheme of election was wholly defeated, and the constitution, after the exciting election of Mr. Jefferson by the house of representatives over Mr. Burr, who had been candidate before the people for the second position only, was changed as above shown.

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 era. (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 receiv[*219 ] ing one from, the emperor. The queen of England hath separate courts and offices distinct from the king's, not only in matters of ceremony, but even of law; and her attorney and solicitor general are entitled to a place within the bar of his majesty's courts, together with the king's counsel. (e) She may likewise 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.

The queen hath also many exemptions and minute prerogatives. For instance: she pays no toll; (g) nor is she liable to 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)

The queen hath also some pecuniary advantages, which form her a distinct revenue: as in the first place, she is entitled to an ancient perquisite called queen-gold, aurum regine, 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 entire [*220] offering or fine made to the king; and becomes an actual debt of record to the queen's majesty by the mere recording of the fine. (k) (1) 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 entitled 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 reginæ. (1) 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)

The original revenue of our ancient 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

(b) 4 Rep. 23.

(c) Seld. Jan. Angl, 1, 42. The instance meant, loc. citat, is where Ethelswith, wife to Burghred, king of the Mercians, granted a patent to Cuthwals. (d) Cod. 5, 16, 26. (e) Seld. tit. hon. I, 6, 7. (f) Finch. L. 86. Co. Litt. 133. (g) Co. Litt. 133. (h) Finch. L. 185. (i) Ff. l. 3, 31. (k) Pryn. Aur, reg, 2. (7) 12 Rep. 21. 4 Inst. 358. (m) Ibid. Pryn. 6. Madox, Hist. Exch. 242.

(1) [Lord Littleton enters at some length into this subject of fines to the king as one considerable source of the royal revenue in the early periods of our Anglo-Norman history, and cites from Madox a vast number of instances, some indeed ludicrous, but all scandalous and tyrannical, in which fines were paid. Henry II, book 2,]