 Section 19. Part 5 of Chapter 2 of the Commentaries on the Laws of England, Book 1. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Graham Redman. Commentaries on the Laws of England by William Blackstone, Book 1. Chapter 2, Part 5. I proceed now, sixthly, to the method of making laws, which is much the same in both houses, and I shall touch it very briefly, beginning in the House of Commons. But first I must premise that for dispatch of business, each House of Parliament has its speaker. The speaker of the House of Lords is the Lord Chancellor or Keeper of the King's Great Seal, whose office it is to preside there and manage the formality of business. The speaker of the House of Commons is chosen by the House, but must be approved by the King, and herein the usage of the two houses differs that the speaker of the House of Commons cannot give his opinion or argue any question in the House, but the speaker of the House of Lords may. In each House the act of the majority binds the whole, and this majority is declared by votes openly and publicly given, not as at Venice and many other senatorial assemblies privately or by ballot. This latter method may be serviceable to prevent intrigues and unconstitutional combinations, but is impossible to be practised with us, at least in the House of Commons, where every member's conduct is subject to the future censure of his constituents and therefore should be openly submitted to their inspection. To bring a bill into the House, if the relief sought by it is of a private nature, it is first necessary to prefer a petition which must be presented by a member, and usually sets forth the grievance desired to be remedied. This petition, when founded on facts that may be in their nature disputed, is referred to a committee of members who examine the matter alleged and accordingly reported to the House, and then, or otherwise upon the mere petition, leave is given to bring in the bill. In public matters the bill is brought in upon motion made to the House without any petition at all. Today all bills were drawn in the form of petitions which were entered upon the Parliament rolls, with the King's answer thereunto subjoined, not in any settled form of words, but as the circumstances of the case required, and at the end of each Parliament the judges drew them into the form of a statute which was entered on the statute rolls. In the reign of Henry V, to prevent mistakes and abuses, the statutes were drawn up by the judges before the end of the Parliament, and in the reign of Henry VI, bills in the form of acts according to the modern custom were first introduced. The persons directed to bring in the bill presented in a competent time to the House drawn out on paper with a multitude of blanks or void spaces where anything occurs that is dubious or necessary to be settled by the Parliament itself. Such especially as the precise date of times, the nature and quantity of penalties, or of any sums of money to be raised, being indeed only the skeleton of the bill. In the House of Lords, if the bill begins there, it is, when of a private nature, perused by two of the judges who settle all points of legal propriety. This is read a first time, and at a convenient distance a second time, and after each reading the speaker opens to the House the substance of the bill and puts the question whether it shall proceed any farther. The introduction of the bill may be originally opposed, as the bill itself may at either of the readings, and if the opposition succeeds the bill must be dropped for that sessions, as it must also if opposed with success in any of the subsequent stages. After the second reading it is committed, that is, referred to a committee, which is either selected by the House in matters of small importance, or else upon a bill of consequence the House resolves itself into a committee of the whole House. A committee of the whole House is composed of every member, and to form it the speaker quits the chair, another member being appointed Chairman, and may sit and debate as a private member. In these committees the bill is debated clause by clause, amendments made, the blanks filled up, and sometimes the bill entirely new-modeled. After it has gone through the committee the Chairman reports it to the House with such amendments as the committee have made, and then the House reconsider the whole bill again and the question is repeatedly put upon every clause and amendment. When the House have agreed or disagreed to the amendments of the committee, and sometimes added new amendments of their own, the bill is then ordered to be engrossed or written in a strong gross hand on one or more long rolls of parchment sewed together. When this is finished it is read a third time, and amendments are sometimes then made to it, and if a new clause be added it is done by tacking a separate piece of parchment on the bill which is called a rider. The speaker then again opens the contents and holding it up in his hands puts the question whether the bill shall pass. If this is agreed to one of the members is directed to carry it to the Lords and desire their concurrence, who attended by several more carries it to the Bar of the House of Peers and there delivers it to their speaker who comes down from his wool sack to receive it. It there passes through the same forms as in the other house except in grossing which is already done, and if rejected no more notice is taken but it passes sub silencio to prevent unbecoming altercations. But if it is agreed to the Lords send a message by two Masters in Chansary or sometimes two of the judges that they have agreed to the same, and the bill remains with the Lords if they have made no amendment to it. But if any amendments are made such amendments are sent down with the bill to receive the concurrence of the Commons. If the Commons disagree to the amendments a conference usually follows between members deputed from each house, who for the most part settle and adjust the difference. But if both houses remain inflexible the bill is dropped. If the Commons agree to the amendments the bill is sent back to the Lords by one of the members with a message to acquaint them therewith. The same forms are observed mutates mutandies when the bill begins in the House of Lords, and when both houses have done with the bill it always is deposited in the House of Peers to wait the Royal Ascent. This may be given two ways. One in person. When the King comes to the House of Peers in his crown and royal robes and sending for the Commons to the bar the titles of all the bills that have passed both houses are read, and the King's answer is declared by the Clerk of the Parliament in Norman French, a badge it must be owned, now the only one remaining, of conquest, and which one could wish to see fall into total oblivion, unless it be reserved as a solemn memento to remind us that our liberties are mortal, having once been destroyed by a foreign force. If the King consents to a public bill the Clerk usually declares, Leroy, levote, the King wills it so to be. If to a private bill, swat fate comule est desiré, be it as it is desired. If the King refuses his Ascent, it is in the gentle language of Leroy Savisera, the King will advise upon it. Two, by Statute 33 Henry VIII, Chapter 21, the King may give his Ascent by letters patent under his great seal, signed with his hand, and notified in his absence to both houses assembled together in the High House. If when the bill has received the Royal Ascent in either of these ways, it is then, and not before, a Statute or Act of Parliament. This Statute or Act is placed among the records of the Kingdom, there needing no formal promulgation to give it the force of a law, as was necessary by the Civil Law with regard to the Emperor's Edicts, because every man in England is, in judgment of law, party to the making of an Act of Parliament, being present there at by his representatives. However, a copy thereof is usually printed at the King's press for the information of the whole land, and formally, before the invention of printing, it was used to be published by the sheriff of every county, the King's writ being sent to him at the end of every session, together with a transcript of all the Acts made at that session, commanding him, at Statute or Illa, at Omni's Articulus in A's Stem Contentos, in Singuli's Locis, Abbe Expedare Viderit, Publisie Proclamerae et Firmita Tenerae et Observerae Fassiat. And the usage was to proclaim them at his county court, and there to keep them, that whoever would might read or take copies thereof, which custom continued till the reign of Henry VII. An Act of Parliament, thus made, is the exercise of the highest authority that this kingdom acknowledges upon earth. It hath power to bind every subject in the land and the dominions thereunto belonging, may even the King himself, if particularly named therein, and it cannot be altered, amended, dispensed with, suspended or repealed, but in the same forms and by the same authority of parliament, for it is a maxim in law that it requires the same strength to dissolve as to create an obligation. It is true it was formally held that the King might in many cases dispense with penal statutes, but now by Statute I William and Mary, Statute II, Chapter II, it is declared that the suspending or dispensing with laws by regal authority without consent of parliament is illegal. There remains only in the seventh and last place to add a word or two concerning the manner in which parliaments may be adjourned, prorogued or dissolved. An adjournment is no more than a continuance of the session from one day to another as the word itself signifies, and this is done by the authority of each house separately every day, and sometimes for a fortnight or a month together as at Christmas or Easter or upon other particular occasions. But the adjournment of one house is no adjournment of the other. It has also been usual when His Majesty has signified His pleasure that both or either of the houses should adjourn themselves to a certain day to obey the King's pleasure so signified and to adjourn accordingly. Otherwise, besides the indecorum of a refusal, a prorogation would assuredly follow, which would often be very inconvenient to both public and private business, for prorogation puts an end to the session, and then such bills, as are only begun and not perfected, must be resumed de novo, if at all, in a subsequent session, whereas after an adjournment all things continue in the same state as at the time of the adjournment made, and may be preceded on without any fresh commencement. A prorogation is the continuance of the parliament from one session to another, as an adjournment is a continuation of the session from day to day. This is done by the Royal Authority, expressed either by the Lord Chancellor in His Majesty's presence, or by commission from the Crown, or frequently by proclamation. Both houses are necessarily prorogued at the same time, it not being a prorogation of the House of Lords or Commons, but of the Parliament. The session is never understood to be at an end, until a prorogation, though unless some act be passed or some judgment given in Parliament, it is in truth no session at all. And formerly the usage was for the King to give the royal assent to all such bills as he approved, at the end of every session, and then to prorogue the Parliament. Though sometimes only for a day or two, after which all business then depending in the houses was to be begun again. Which custom obtained so strongly that it once became a question whether giving the royal assent to a single bill did not of course put an end to the session. And though it was then resolved in the negative, yet the notion was so deeply rooted that the Statute 1 Charles I, Chapter 7, was passed to declare that the King's assent to that and some other acts should not put an end to the session. And even so late as the restoration of Charles II, we find a proviso tact to the first bill then enacted that his Majesty's assent there too should not determine the session of Parliament. But it now seems to be allowed that a prorogation must be expressly made in order to determine the session. And if at the time of an actual rebellion or imminent danger of invasion the Parliament shall be separated by adjournment or prorogation, the King is empowered to call them together by proclamation with fourteen days' notice of the time appointed for their reassembling. A dissolution is the civil death of the Parliament, and this may be affected three ways. One, by the King's will expressed either in person or by representation, for as the King has the sole right of convening the Parliament so also it is a branch of the royal prerogative that he may, whenever he pleases, prorogue the Parliament for a time or put a final period to its existence. If nothing had a right to prorogue or dissolve a Parliament but itself it might happen to become perpetual, and this would be extremely dangerous if at any time it should attempt to encroach upon the executive power, as was fatally experienced by the unfortunate King Charles I, who, having unadvisedly passed an act to continue the Parliament then in being till such time as it should please to dissolve itself, at last fell a sacrifice to that inordinate power which he himself had consented to give them. It is therefore extremely necessary that the Crown should be empowered to regulate the duration of these assemblies under the limitations which the English Constitution has prescribed, so that on the one hand they may frequently and regularly come together for the dispatch of business and redress of grievances, and may not on the other, even with the consent of the Crown, be continued to an inconvenient or unconstitutional length. Two, a Parliament may be dissolved by the demise of the Crown. This dissolution formally happened immediately upon the death of the reigning sovereign, for he, being considered in law as the head of the Parliament, Caput, Principium, Edfinis, that failing the whole body was held to be extinct, but the calling of a new Parliament immediately on the inauguration of the successor being found inconvenient, and dangers being apprehended from having no Parliament in being in case of a disputed succession, it was enacted by the Statutes 7 and 8, William III, Chapter 15, and 6 and Chapter 7, that the Parliament in being shall continue for six months after the death of any King or Queen, unless sooner prorogued or dissolved by the successor, that if the Parliament be at the time of the King's death separated by adjournment or prorogation, it shall notwithstanding assemble immediately, and that if no Parliament is then in being, the members of the last Parliament shall assemble and be again a Parliament. Three, lastly a Parliament may be dissolved or expire by length of time, for if either the legislative body were perpetual or might last for the life of the Prince who convened them as formally, and were so to be supplied by occasionally filling the vacancies with new representatives, in these cases, if it were once corrupted, the evil would be past all remedy, but when different bodies succeed each other, if the people seek cause to disapprove of the present, they may rectify its faults in the next. A legislative assembly also, which is sure to be separated again, whereby its members will themselves become private men and subject to the full extent of the laws which they have enacted for others, will think themselves bound, in interest as well as duty, to make only such laws as are good. The utmost extent of time that the same Parliament was allowed to sit by the Statute 6, William and Mary, Chapter 2, was three years. After the expiration of which, reckoning from the return of the first summons, the Parliament was to have no longer continuance. But by the Statute 1, George I, Statute 2, Chapter 38, in order professedly to prevent the great and continued expenses of frequent elections and the violent heats and animosities consequent thereupon, and for the peace and security of the Government then just recovering from the late rebellion, this term was prolonged to seven years. And what alone is an instance of the vast authority of Parliament, the very same House that was chosen for three years enacted its own continuance for seven, so that, as our Constitution now stands, the Parliament must expire, or die a natural death, at the end of every seventh year, if not sooner dissolved by the royal prerogative. End of Section 19, Recording by Graham Redmond. William Blackston, Book 1, Chapter 3, Part 1. Chapter III. Of the King and His Title. The supreme executive power of these kingdoms is vested by our laws in a single person, the king or queen, for it matters not to which sex the crown descends but the person entitled to it, whether male or female, is immediately invested with all the insigns, rights, and prerogative of sovereign power, and is declared by Statute 1, Mary. Statute 3, Chapter 1. In discoursing the royal rights and authority, I shall consider the king under six distinctive views. One, with regard to his title. Two, his royal family. Three, his councils. Four, his duties. Five, his prerogative. Six, his revenue. And first, with regard to his title. The executive power of the English nation being vested in a single person, by general consent of the people, the evidence of which general consent is long and immemorial usage, it became necessary to the freedom and peace of the state that a role should be laid down, uniform, universal, and permanent. In order to mark out with precision, who is that single person, to whom are committed, in subversion to the law of the land, the care and protection of the community, and to whom in return the duty and allegiance of every individual are due? It is of the highest importance to the public tranquillity and to the consciences of private men that this role should be clear and indisputable, and our constitution has not left us in the dark upon this material occasion. It will therefore be the endeavour of this chapter to trace out the constitutional doctrine of the royal succession, with that freedom and regard to truth, yet mixed with that reverence and respect, which the principles of liberty and the dignity of the subject require. The grand fundamental maxim upon which the use coronet, or rights of succession to the throne of these kingdoms, depends, I take this to be, that the crown is, by common law and constitutional custom, hereditary, and this in a manner peculiar to itself, but that the rights of inheritance may, from time to time, be changed or limited by act of parliament, under which limitations the crown still continues hereditary, and this proposition it will be the business of this chapter to prove in all its branches, first, that the crown is hereditary, secondly, that it is hereditary in a manner peculiar to itself, thirdly, that this inheritance is subject to limitation by parliament, lastly, that when it is so limited, it is hereditary in the new proprietor, one, first, it is in general hereditary, or descendable to the next heir, on the debts or demise of the last proprietor, all regal governments must be either hereditary or elective, and as I believe there is no instance wherein the crown of England has ever been asserted to be elective, except by the regicides at the infamous and unparalleled trial of King Charles I, it must, of consequence, be hereditary. Yet, while I assert an hereditary, I by no means intend a yure divino, title to the throne. Such a title may be allowed to have subsisted under the theocratic establishments of the children of Israel in Palestine, but it never yet subsisted in any other country, save only so far as kingdoms, like other human fabrics, are subject to the general and ordinary dispensations of providence, nor indeed have a yure divino and an hereditary write any necessary connection with each other, as some have very weakly imagined. The titles of David and Jehu were equally yure divino, as those of either Solomon or Ahab, and yet David slew the sons of his predecessor, and Jehu his predecessor himself, and when our kings have the same warrant as they had, whether it be to sit upon the throne of their fathers, or to destroy the house of the preceding sovereign, they will then, and not before, possess the crown of England by a rite, like theirs, immediately derived from heaven. The hereditary rite, which the laws of England acknowledge, owes its origin to the founders of our constitution, and to them only. It has no relation to, nor depends upon, the civil laws of the Jews, the Greeks, the Romans, or any other nation upon earth. The municipal laws of our society having no connection with, or influence upon, the fundamental policy of another. The founders of our English monarchy might perhaps, if they had thought proper, have made it an elective monarchy, but they rather chose, and upon good reason, to establish originally a succession by inheritance. This has been acquiesced in by general consent, and ripened by degrees into common law, the very same title that every private man has to his own estate. Lands are not naturally descendable any more than thrones, but the law has thought proper, for the benefit and peace of the public, to establish hereditary succession in one as well as the other. It must be owned, and elective monarchy seems to be the most obvious, and best suited of any, to the rational principles of government, and the freedom of human nature, and accordingly we find it from history that, in the infancy and first rudiment of almost every state, the leader, chief magistrate, or prince, has usually been elective, and if the individuals who compose that state could always continue true to first principles, uninfluenced by passion or prejudice, unassailed by corruption, and on odds by violence, elective succession were as much to be desired in a kingdom as in other inferior communities. The best, the wisest, and the bravest man would then be sure of receiving that crown, which his endowments have merited, and the sense of an unbiased majority would be dutifully acquiesced in by the few who were of different opinions. But history and observation will inform us that elections of every kind, in the present state of human nature, are too frequently brought about by influence, partiality, and artifice. And even where the case is otherwise, these practices will be often suspected, and as constantly charged upon the successful, by a splenetic, disappointed minority. This is an evil to which all societies are liable, as well those of a private and domestic kind, as the great community of the public, which regulates and includes the rest. But in the former, there is this advantage, that such suspicions, if false, proceed no further than jealousies and murmurs, which time will effectually suppress. And if true, the injustice may be remedied by legal means, by an appeal to those tribunals to which every member of society has, by becoming such, virtually engaged to submit. Whereas, in the great and independent society, which every nation composes, there is no superior to resort to, but the law of nature, no method to redress the infringements of that law, but the actual exertion of private force. As therefore, between two nations, complaining of mutual injuries, the quarrel can only be decided by the law of arms. So, in one and the same nation, when the fundamental principles of their common union are supposed to be invaded, and more especially, when the appointment of their chief magistrate is alleged to be unduly made, the only tribunal to which the complaints can appeal is that of the God of battles, the only process by which the appeal can be carried on is that of a civil and intestine war. An irredatory succession to the crown is therefore now established in this and most other countries, in order to prevent that periodical bloodshed and misery, which the history of ancient imperial Rome, and the more modern experience of Poland and Germany, may show us other consequences of elective kingdoms. Two, but secondly, as to the particular mode of inheritance, it in general corresponds with the feudal path of dissence, chalked out by the common law in the succession to landed estates. Yet, with one or two material exceptions, like them, the crown will descend linearly to the issue of the reigning monarch, as it did from King John to Richard II through a regular pedigree of six linear dissents. As in them, the preference of males to females and the right of primogeniture among the males are strictly adhered to. Thus Edward V succeeded to the crown, in preference to Richard his younger brother and Elizabeth's, his elder sister. Like them, on failure of the male line, a dissence to the issue of female, according to the ancient British custom, remarked by Tassages, solent feminarum ductu belare et sexum in imperis non discernere. Thus, Mary I succeeded to Edward the sixth, and the line of Margaret, Queen of Scots, the daughter of Henry VII, succeeded on failure of the line of Henry VIII, his son. But, among the females, the crown descends by right of primogeniture to the eldest daughter only, and her issue, and not as in common inheritances to all the daughters at once. The evident necessity of the sole succession to the throne having occasioned the royal law of dissents to depart from the common law in disrespect, and therefore Queen Mary, on the death of her brother, succeeded to the crown alone, and not in partnership with her sister Elizabeth. Again, the doctrine of representation prevails in the dissent of the crown, as it does in other inheritances, whereby the linear descendants of any person deceased stand in the same place as their ancestor if living would have done. Thus Richard II succeeded his grandfather Edward III, in right of his father the black prince, to the exclusion of all his uncles, his grandfather's younger children. Lastly, on failure of linear descendants, the crown goes to the next collateral relations of the late king, provided they are linearly descended from the blood royal. That is, from that royal stock which originally acquired the crown. Thus Henry I succeeded to William II, John to Richard I, and James I to Elizabeth, being all derived from the conqueror, who was then the only regal stock. But herein there is no objection, as in the case of common descendants, to the succession of a brother, an uncle, or other collateral relation of the half blood. That is, where the relationship proceeds not from the same couple of ancestors, which constitutes a kinsman of the whole blood, but from a single ancestor only, as when two persons are derived from the same father, and not from the same mother, or vice versa, provided only that the one ancestor, from whom both are descended, be he from whose veins the blood royal is communicated to each. Thus Mary I inherited to Edward VI, and Elizabeth inherited to Mary, all born of the same father, King Henry VIII, but all by different mothers, the reason of which diversity between royal and common descents will be better understood hereafter, when we examine the nature of the inheritances in general. III. The doctrine of hereditary right does not by means imply an indefensible right to the throne. No man will, I think, assert this, that has considered our laws, constitution, and history, without prejudice, and with any degree of attention. It is unquestionably in the breast of the supreme legislative authority of this kingdom, the king and both houses of parliament, to defeat this hereditary right, and by particular intales, limitations and provisions, to exclude the immediate heir, and vest the inheritance in any one else. This is strictly consonant to our laws and constitution, as may be gathered from the expression so frequently used in our statute book of, quote, the king's majesty, his heirs, and successors, end quote, in which we may observe that as the word heirs necessarily implies an inheritance or hereditary right, generally subsisting in the royal person, so the word successors, distinctly taken, must imply that this inheritance may sometimes be broke through or that there may be a successor without being the heir of the king. And this is so extremely reasonable, that without such a power, lodged somewhere, our policy would be very defective. For let us barely suppose so melancholy a case, as that the heir apparent should be a lunatic, an idiot, or otherwise incapable of reigning. How miserable would the condition of the nation be, if he were also incapable of being set aside? It is therefore necessary that this power should be lodged somewhere, and yet the inheritance and regal dignity would be very precarious indeed, if this power were expressly and avowedly lodged in the hands of the subject only, to be exerted whenever prejudice, caprice, or discontent should happen to take the lead. Consequently, it can nowhere be so properly lodged as in the two houses of parliament, by and with the consent of the reigning king, who, it is not to be supposed, will agree to anything improperly prejudicial to the rights of his own descendants. And therefore, in the king, lords, and commons, in parliament assembled, our laws have expressly lodged it. For, but forcibly, however the crown may be limited or transferred, it still remains, it still retains its descendable quality, and becomes hereditary in the wearer of it. And hence, in our law, the king is sent never to die, in his political capacity. Though, in common with other men, he is subject to mortality in his natural, because immediately upon the natural death of Henry, William, or Edward, the king survives in his successor, and the right of the crown vests, Eo instanti, upon his heir, either the hardest natus, if the course of descent remains unimpeached, or the havest factus, if the inheritance be under any particular settlement. So that there can be no inderenium, but as Sir Matthew Hale observes, the right of sovereignty is fully invested in the successor by the very descent of the crown, and therefore, however acquired, it becomes in him absolutely hereditary. Unless by the rules of the limitation it is otherwise ordered and determined, in the same manner as landed the states, to continue our former comparison, are by the law hereditary or descendable to the heirs of the owner, but still there exists a power by which the property of those lands may be transferred to another person. If this transfer be made simply and absolutely, the lands will be hereditary in the new owner, and descend to his heirs at law. But if the transfer be clogged with any limitations, conditions, or entails, the lands must descend in that channel, so limited and prescribed, and no other. In these four points consists, as I take it, the constitutional notion of hereditary right to the throne, which will be still further elucidated, and made clear beyond all dispute, from a short historical view of the successions to the crown of England, the doctrines of our ancient lawyers, and the several acts of parliament that have formed time to time been made, to create, to declare, to confirm, to limit, or to bar their hereditary title to the throne. And in the pursuit of this inquiry we shall find that from the days of Egbert, the first-sold monarch of this kingdom, even to the present, the four cardinal maxims above mentioned have ever been held the constitutional canons of succession. It is true this succession, through fraud or force, or sometimes through necessity, when in hostile times the crown descended on a minor or the like, has been very frequently suspended, but has always at last returned back into the old hereditary channel, though sometimes a very considerable period has intervened. And even in those instances, where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it, of which the user-pers themselves were so sensible that they for the most part endeavored to vamp up some feeble show of a title by descent, in order to amuse the people, while they gained the possession of the kingdom. And when possession was once gained, they considered it as the purchase or acquisition of a new estate of inheritance, and transmitted or endeavored to transmit it to their own posterity by a kind of hereditary right of user-patient. King Egbert, about the year 800, found himself in possession of the throne of the West Saxons by a long and undisturbed descent from his ancestors of above three hundred years. How his ancestors acquired their title, whether by force, by fraud, by contract, or by election? It matters not much to inquire, and is indeed a point of such high antiquity as must render all inquiries at best but plausible guesses. His right must be supposed indisputably good, because we know no better. The other kingdoms of the heptarchy he acquired, some by consent, but most by a voluntary submission. And it is an established maxim in the history and civil policy, and the law of nations, that when one country is united to another in such a manner, as that one keeps its government and states, and the other loses them, the latter entirely assimilate, or is melted down in the former, and must adopt its laws and customs. And in pursuance of this maxim, there hath ever been, since the union of the heptarchy in King Egbert, a general acquiescence under the hereditary monarchy of the West Saxons through all the United Kingdoms. From Egbert to the death of Edmont Ironside, a period of above two hundred years, the crown descended regularly through a succession of fifteen princes without any deviation or interruption, save only that King Edward, the uncle of Edwy, mounted the throne for about nine years, in the right of his nephew a minor, the times being very troublesome and dangerous. But this was with a view to preserve and not to destroy the succession, and accordingly Edwy succeeded him. During Edmont Ironside was obliged by the hostile eruption of the Danes, at first to divide his kingdom with Canute, King of Denmark, and Canute after his death seized the whole of it, Edmont's sons being driven into foreign countries. Here the succession was suspended by actual force, and a new family introduced upon the throne, in whom, however, this new acquired throne continued hereditary for three reigns. When, upon the death of Hardenute, the ancient Saxon line was restored in the person of Edward the Confessor. He was not indeed the true heir to the crown, being the younger brother of King Edmont Ironside, who had a son Edward, surname from his exile, the outlaw, still living. But this son was then in Hungary, and the English having just shaken up the Danish yoke, it was necessary that somebody on the spot should mount the throne, and the Confessor was the next of the royal line then in England. On his disease without issue, Harold II usurped the throne, and almost at the same instant came on the Norman invasion, the right to the crown being all the time in Edgar, named Asling, which signifies in the Saxon language the first of the blood royal, who was the son of Edward the outlaw and grandson of Edmont Ironside, or as Matthew Parris well expresses the sense of our old constitution, quote, Edmundus autum latus fereum rex naturalis destil fereum genuit edwardum et edwardus genuit edcarum cuide jure debibatur regnum anglorum, end quote, end of section 20, section 21, part 2 of chapter 3 of the Commentaries on the Laws of England, book 1. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit librivox.org. Recording by J. C. Guan. Commentaries on the Laws of England by William Blackston. Book 1. Chapter 3. Part 2. William the Norman claimed to crown by virtue of a pertinent grant from King Edward to confessor, a grant which, if real, was in itself utterly invalid, because it was made, as Harold well observed in his reply, to William's demand. Absque generale senatus et populi conventu et indicto, which also very plainly implies that it then was generally understood that the king, with consent of the general counsel, might dispose of the crown and change the line of succession. William's title, however, was altogether as good as Harold's, he being a mere private subject, and an utter stranger to the royal blood. Edgar Asseling's undoubted right was overwhelmed by the violence of the times, though frequently asserted by the English nobility after the conquest, till such time as he died without issue. But all their attempts proved unsuccessful, and only served the more firmly to establish the crown in the family which had newly acquired it. This conquest then, by William of Normandy, was, like that of Canute before, a forcible transfer of the crown of England into a new family. But the crown being so transferred, all the inherent properties of the crown were with it transferred also, for the victory obtained at Hastings not being a victory over the nation collectively, but only over the person of Harold, the only right that the conqueror could pretend to acquire thereby was the right to possess the crown of England, not to alter the nature of the government. And therefore, as the English law still remained in force, he must necessarily take the crown subject to those laws, and with all its inherent properties, the first and principle of which was its descendability. Here then we must drop our race of Saxon kings, at least for a while, and derive our descents from William the Conqueror, as from a new stock, who acquired by right of war, such as it is, yet still the Dane resort of kings, a strong and undisputed title to the inheritable crown of England. Accordingly, it descended from him who his sons William II and Henry I. Robert, it must be owned, his eldest son, was kept out of possession by the arts and violence of his brethren, who proceeded upon an ocean which prevailed for some time in the law of descents that when the eldest son was already provided for, as Robert was constituted Duke of Normandy by his father's will, in such a case the next brother was entitled to enjoy the rest of their father's inheritance. But as he died without issue, Henry at last had a good title to the throne, whatever he might have at first. Stephen of Blois, who succeeded him, was indeed the grandson of the Conqueror, by Adelisa his daughter, and claimed the throne by a feeble kind of hereditary right, not as being the nearest of the male line, but as the nearest male of the blood royal. The real right was in the Empress Matilda or Maude, the daughter of Henry I, the role of succession being, where women are admitted at all, that the daughter of a son shall be preferred to the son of a daughter. So that Stephen was little better than a mere usurper, and the Empress Maude did not fail to assert her rights by the sword, which dispute was attended with very success, and ended at last in a compromise that Stephen should keep the crown, but that Henry the son of Maude should succeed him, as he afterwards accordingly did. Henry, the second of that name, was the undoubted heir of William the Conqueror, but he had also another connection in blood, which endeared him still further to the English. He was linearly descended from Edmund Ironside, the last of the Saxon race of hereditary kings. For Edward the Outlaw, the son of Edmund Ironside, had, besides Edgar Atherling, who died without issue, a daughter Margaret, who was married to Malcolm, King of Scotland, and in her the Saxon hereditary rights resided. By Malcolm she had several children, and among the rest Matilda the wife of Henry I, who by him had the Empress Maude, the mother of Henry II. Upon which account the Saxon line is in our history, frequently said to have been restored in his person, though in reality that rights subsided in the sons of Malcolm, by Queen Margaret, King Henry's best title being as heir to the Conqueror. From Henry II the crown descended to his eldest son, Richard I, who, dying childless, the rights vested in his nephew Arthur, the son of Geoffrey, his next brother, but John, the youngest son of King Henry, seized the throne, claiming, as appears from his charters, the crown by hereditary right, that is to say, he was next of kin to the deceased king, being his surviving brother, whereas Arthur was removed one degree further, being his brother's son, though by right of representation he stood in the place of his father Geoffrey. And however flimsy this title, and those of William Rufus and Stephen of Blaw, may appear at this distance to us, after the law of the sense has now been settled for so many centuries, they were sufficient to puzzle the understandings of our brave but unlettered ancestors. Nor indeed can we wonder at the number of partisans who espoused the pretensions of King John in particular, since even in the reign of his father, King Henry II, it was a point on determined, whether, even in common inheritances, the child of an elder brother should succeed to the land in right of representation, or the younger surviving brother in right of proximity of blood. Nor is it to this day decided in the collateral successions to the fields of the empire, whether the order of the stocks, or the proximity of degree, shall take place. However, on the death of Arthur and his sister Eleanor, without issue, a clear and indisputable title vested in Henry III, the son of John, and from him to Richard II, a succession of six generations, the crown descended in the true hereditary line, under one of which race of princes we find it declared in parliament that the law of the crown of England is, and always has been, that the children of the king of England, whether born in England or elsewhere, ought to bear the inheritance after the death of their ancestors. Which law, our Sarmony Lord, the king, the prelates earls, and barons, and other great men, together with all the commons in parliament assembled, do approve and affirm for ever. Upon Richard II's resignation of the crown, he having no children, the right resulted to the issue of his grandfather, Edward III. That king had many children, besides his eldest, Edward the Black Prince of Wales, the father of Richard II. But, to avoid confusion, I shall only mention three. William, his second son, who died without issue, Lionel, Duke of Clarence, his third son, and John of Gant, Duke of Lancaster, his fourth. By the rules of succession, therefore, the posterity of Lionel, Duke of Clarence, were entitled to the throne upon the resignation of King Richard, and had accordingly been declared by the king, many years before, the presumptive ears of the crown. Which declaration was also confirmed in parliament? But, Henry, Duke of Lancaster, the son of John of Gant, having then a large army in the kingdom, the pretense of raising which was to recover his patrimony from the king, and to redress the grievances of the subject, it was impossible for any other title to be asserted with any safety. And he became king under the title of Henry IV. But, as Sir Matthew Hale remarks, though the people unjustly assisted Henry IV in his other patient of the crown, yet he was not admitted there too, until he had declared that he claimed not as a conqueror, which he very much inclined to do, but as a successor descended by right line of blood royal, as appears from the trolls of parliament in those times. And in order to this he set up a shoe of two titles, the one upon the pretense of being the first of the blood royal in the entire male line, whereas the Duke of Clarence left only one daughter, Philippia, from which female branch, by marriage with Edmund Mortimer, Earl of March, the house of York, descended. The other, by reviving an exploited rumor, first propagated by John of Gant, that envents Earl of Lancaster, to whom Henry's mother was heiress, was in reality the elder brother of King Edward I. Though his parents, on account of his personal deformity, had imposed him on the world for the younger, and therefore Henry would be entitled to the crown, either as a successor to Richard II, in case the entire male line was allowed a preference to the female, or even prior to that unfortunate prince, if the crown could descend through a female, while an entire male line was existing. However, as in Edward III's time we find a parliament approving and affirming the right of the crown, as before stated, so in the reign of Henry IV they actually exerted their right of new settling the succession to the crown. And this was done by the Statute VII, Henry IV, Chapter II, whereby it is enacted that the inheritance of the crown and realms of England and France, and all other, the king's dominions, shall be set and remain in the person of our sovereign Lord the King, and in the heirs of his body issuing. And Prince Henry is declared heir apparent to the crown, to hold to him and the heirs of his body issuing, with remains to Lord Thomas, Lord John, and Lord Humphrey, the king's sons, and the heirs of their bodies respectively, which is indeed nothing more than the law would have done before, provided Henry IV had been a rightful king. It however serves to show that it was then generally understood that the king and parliament had a right to new model and regulate the succession to the crown. And we may observe with what caution and delicacy the parliament then avoided declaring any sentiment of Henry's original title. However, Sir Edward Cook, more than once expressly declares, at that time of passing this act, the right of the crown was in the descent, from Philippa, daughter and heir of Lionel, Duke of Clarence. Nevertheless, the crown descended regularly from Henry IV to his son and grandson, Henry V and VI. In the latter of whose reigns, the House of York asserted their dormant title, and, after enbrewing the kingdom in blood and confusion for seven years together, at last established it in the person of Edward IV. At his accession to the throne, after a breach of the succession that continued for three descents, and above three scores years, the distinction of a king the yure in a king de facto began to be first taken, in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by those who were now called the usurpers, not tending to the disherusion of the rightful heir. In Statute I, Edward IV, Chapter I, the three Henrys are styled, quote, late kings of England, successively indeed, and not of right, end, quote, and in all the charters which I have met with, of King Edward, whenever he has occasion to speak of any of the line of Lancaster, he calls them, quote, nuper de facto, its non de yure, regis anglie, end, quote. Edward IV left two sons and a daughter, the eldest of which sons, King Edward IV, enjoyed a regal dignity for a very short time, and was then disposed by Richard, his unnatural uncle, who immediately usurped the royal dignity, having previously insinuated to the populace a suspicion of bastardy in the children of Edward IV, to make issue of some hereditary title, after which he is generally believed to have murdered his two nephews, upon whose death the right of the crown devolved to their sister Elizabeth. The tyrannical reign of King Richard III gave occasion to Henry Earl of Richmond to assert his title to the crown, a title the most remote and unaccountable that was ever set up, and which nothing could have given success to, but the universal detestation of the then usurper Richard. IV, besides that, he claimed under a dissent from John of Ghent, whose title was now exploded. The claim, such as it was, was through John Earl of Somerset, a bastard son, becutten by John of Ghent upon Catherine Swinford. It is true that by an act of parliament, XX Richard II, this son was, with others, legitimated and made inheritable to all lands, offices, and dignities, as if he had been born in wedlock, but still with an express reservation of the crown, quote, except a dignitate regali, end quote. Nosswithstanding all this, immediately after the battle of Bosworth Field, he assumed the regal dignity. The rights of the crown then being, as Sir Edward Cook expressly declares, in Elizabeth, eldest daughter of Edward IV, and his possession was established by parliament, held the first year of his reign. In the act for which purpose the parliament seems to have copied the caution of their predecessors in the reign of Henry IV, and therefore, as Lord Beacon, the historian of this reign, observed, carefully avoided any recognition of Henry VII's rights, which indeed was none at all, and the king would not have it by way of new law or ordinance, whereby a right might seem to be created unconferred upon him, and therefore a middle way was rather chosen by way, as the noble historian expresses it, of establishment, and that under covered and indifferent words, quote, that the inheritance of the crown should rest, remain, and abide in King Henry VII, and the heirs of his body, end quote, thereby providing for the future, and at the same time acknowledging his present possession, but not determining either way whether that possession was the yure or de facto merely. However, he soon after married Elizabeth of York, the undoubted heirs of the conqueror, and thereby gained, as Sir Edward Cook declares, by much his best title to the crown, whereupon the act made in his favor was so much disregarded that it never was printed in our statute books. Henry VIII, the issue of the marriage, succeeded to the crown by clear indisputable hereditary right, and transmitted it to his three children in successive order. But in his reign we at several times find the parliament busy in regulating the succession to the kingdom, and first by statute XXV, Henry VIII, CHAPTER XII, which recites the mischiefs, which have and may ensue by disputed titles, because no perfect and substantial provision has been made by law concerning his succession, and then index that the crown shall be entailed to his majesty and the sons or heirs mails of his body, and in default of such sons to the Lady Elizabeth, who is declared to be King's eldest issue female, in exclusion of the Lady Mary on account of her supposed illegitimacy by the divorce of her mother Queen Catherine, and to the Lady Elizabeth's heirs of her body, and so on from issue female to issue female, and the heirs of their bodies by course of inheritance according to their ages, as the crown of England has been accustomed and all to go in case where there be heirs female of the same, and in default of issue female, then to the King's right heirs forever. This single statute is an ample proof of all the four positions we had first set out with. But, upon the King's divorce from Anne Boleyn, this statute was, with regard to the settlements of the crown, repealed by statute XXVIII, Henry VIII, CHAPTER VII, wherein the Lady Elizabeth is also, as well as the Lady Mary, bastardized, and the crown settled on the King's children by Queen Jane Seymour, and his future wives, and, in defect of such children, then with this remarkable remainder, to such persons as the King by letters patent, or last will and testament, should limit and appoint the same. A vast power, but notwithstanding, as it was regularly vested in him by the supreme legislative authority, it was therefore indisputably valid. But this power was never carried into execution. For, by statute XXXV, Henry VIII, CHAPTER I, the King's two daughters are legitimated again, and the crown is limited to Prince Edward by name, after that to the Lady Mary, and then to the Lady Elizabeth, and the heirs of their respective bodies, which succession took effect accordingly, being indeed no other than the usual course of the law, with regard to the descent of the crown. But lest there should remain any doubt in the minds of the people, through this jumble of acts, for limiting the succession, by statute I, Mary, Part II, CHAPTER I, Queen Mary's hereditary right to the throne is acknowledged and recognized in these words, quote, the crown of these realms is most lawfully, justly, and rightly descended, and come to the Queen's hide-ness that now is, being the very true and undoubted heir and inheritorics thereof, end quote. And again, upon the Queen's marriage with Philip of Spain, in the statute which settles the preliminaries of that match, the hereditary right to the crown is thus asserted and declared, quote, as touching the right of the Queen's inheritance in the realm and dominions of England, the children, whether male or female, shall succeed in them according to the known laws, statutes, and customs of the same, end quote. Which determination of the parliament that the succession shall continue in the usual course seems tacitly to imply a power of new modeling and altering it, in case the legislature has thought proper. On Queen Elizabeth's accession, her right is recognized in so stronger terms than her sisters, the parliament acknowledging, quote, that the Queen's hide-ness is, and in very deed, and of most mere right ought to be, by laws of God and the laws of statutes of this realm, our most lawful and rightful servant leads lady and queen, and that her hide-ness is rightly, linearly, and lawfully descended, and come of the blood-royal of this realm of England, in and to whose princely person, and to the heirs of her body, lawfully to be begotten, after her, the imperial crown and dignity of this realm doth belong, end quote. And in the same reign, by statute thirteen, Elizabeth chapter one, we find the right of parliament to direct the succession of the crown asserted in the most explicit words, quote, if any person shall hold, affirm, or maintain that the common laws of this realm, not altered by parliament, ought not to direct the right of the crown of England, or that the Queen's majesty, will and by the authority of parliament, is not able to make laws and statutes of sufficient force and validity, to limit and bind the crown of this realm and the descent, limitation, inheritance, and government thereof, such person, so holding, affirming, or maintaining, shouldering the life of the Queen be guilty of high treason, and after her disease shall be guilty of misdemeanor, and forfeit his goods and chattels, end quote, end of section twenty-one, section twenty-two, part three of chapter three of the Commentaries on the Laws of England, book one. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org. Recording by J. C. Guan. Commentaries on the Laws of England by William Blackston, book one. Chapter three, part three. On the death of Queen Elizabeth, without issue, the line of Henry VIII became extinct. It, therefore, became necessary to recur to the other issue of Henry VII by Elizabeth of York, his queen, whose eldest daughter, Margaret, having married James IV, King of Scotland, King James VI of Scotland, and of England the first, was the colonial descendant from that alliance. So that in his person, as clearly as in Henry VIII, centered all the claims of different competitors from the conquest downwards, he being indisputably the linear heir of the conqueror. And, what is still more remarkable, in his person also centered the right of the Saxon monarchs, which had been suspended from the conquest till his accession. For, as was formally observed, Margaret, the sister of Edgar Atterling, the daughter of Edward the Outlaw, and granddaughter of King Edmund Ironside, was the person in whom the hereditary rights of the Saxon kings, supposing it not abolished by the conquest, resided. She married Malcolm, King of Scotland, and Henry II, by a descent from Matilda, their daughter, is generally called the restorer of the Saxon line. But it must be remembered that Malcolm, by his Saxon queen, had sons as well as daughters, and that the royal family of Scotland, from that time downwards, were the offspring of Malcolm and Margaret. Of this royal family, King James I was the direct linear heir, and therefore united in his person every possible claim by hereditary right to the English as well as the Scottish throne, being the heir both of Egbert and William the Conqueror. And it is no wonder that a prince of more learning than wisdom, who cut the Jews an hereditary title for more than eight hundred years, should easily be taught by the flatterers of the times to believe that there was something divine in his right, and that the finger of providence was visible in his preservation. Whereas, though a wise institution, it was clearly a human institution, and the right inherent in him no natural, but a positive right. And in this and no other light was it taken by the English Parliament, who by statute I, James I, Chapter I, did, quote, recognize and acknowledge that immediately upon the dissolution and the seas of Elizabeth, late queen of Scotland, the imperial crown thereof did by inherent birthright, unlawful and undoubted succession, descend and come to his most excellent majesty, as being linearly, justly, unlawfully next and sole heir of the royal blood of this realm, end quote. Not a word here of any right immediately derived from heaven, which, if it existed anywhere, must be sought for among the aborigines of the island, the ancient Britons, among whose princes indeed some have gone to search it for him. But, wild and absurd as the doctrine of divine right most undoubtedly is, it is still more astonishing that when so many human hereditary rights had centered in this king, his son and heir, King Charles I, should be told by those infamous judges, who pronounced his unparalleled sentence, that he was an elective prince, elected by his people, and therefore accountable to them, in his own proper person, for his conduct. This confusion, instability and madness, which followed the fatal catastrophe of that pious and unfortunate prince, will be a standing argument in favor of hereditary monarchy to all future ages, as they proved at last to the then deluded people, who, in order to recover that peace and happiness which for twenty years together they had lost in a solemn parliamentary convention of the states, restored the right heir of the crown, and in the proclamation for that purpose, which was drawn up and attended by those houses, they declared that, according to their duty and allegiance, they did heartily, joyfully and unanimously acknowledge and proclaim, that immediately upon the disease of our late sovereign Lord King Charles, the imperial crown of these realms did by inherent birthright and lawful and undoubted succession descend and come to his most excellent majesty, Charles II, as being linearly, justly and lawfully next heir of the blood royal of his realm, and there unto they most humbly and faithfully did submit and oblige themselves their heirs and posterity for ever. Thus I think it clearly appears, from the highest authority this nation is acquainted with, that the crown of England has been ever an hereditary crown, though subject to limitations by parliament. The remainder of this chapter will consist principally of those instances wherein the parliament has asserted or exercised this right of altering and limiting the succession. A right which, we have seen, was before exercised and asserted in the reigns of Henry IV, Henry VII, Henry VIII, Queen Mary, and Queen Elizabeth. The first instance, in point of time, is the famous Bill of Exclusion, which reeled such effermint in the latter end of the reign of King Charles II. It is well known that the purpose of this bill was to have set aside the king's brother and presumptive heir, the Duke of York, from the succession, on the score of his being a papist, that had passed the House of Commons, but was rejected by the lords, the king having also declared beforehand that he never would be brought to consent to it. And from this transaction we may collect two things. One, that the crown was universally acknowledged to be hereditary and the inheritance indefensible unless by parliament. Else, it had been needless to prefer such a bill. Two, that the parliament had the power to have defeated the inheritance. Else, such a bill had been ineffectual. The commons acknowledged their hereditary right then subsiding, and the lords did not dispute the power, but merely the propriety of an exclusion. However, as the bill took no effect, King James II succeeded to the throne of his ancestors, and might have enjoyed it during the remainder of his life, but for his own infatuated conduct, which, with other concurring circumstances, brought on the revolution of 1688. The true ground and principle upon which that memorable event proceeded was an entirely new case in politics, which had never before happened in our history. The abdication of the reigning monarch and the vacancy of the throne thereupon. It was not a defeasance of the right of succession, and a new limitation of the crown by the king and both houses of parliament. It was the act of the nation alone, upon an apprehension that there was no king in being. For in a full assembly of the lords and commons met in convention upon this apprehended vacancy, both houses came to this resolution, quote, that King James II having endeavored to subvert the constitution of the kingdom by breaking the original contract between king and people, and by the advice of jesuits and other wicked persons having violated the fundamental laws, and having withdrawn himself out of this kingdom, has abdicated the government, and that the throne is thereby vacant, end quote. Thus ended at once by this sudden and unexpected vacancy of the throne the old line of succession, which from the conquest had lasted above six hundred years, and from the union of the haptarchy in King Edberg almost nine hundred. The facts themselves thus appealed to the kings and davors to subvert the constitution by breaking the original contract. His violation of the fundamental laws, and his withdrawing himself out of the kingdom, were evident and notorious, and the consequences drawn from these facts, namely, that they amounted to an abdication of the government, which abdication did not affect only the person of the king himself, but also his heirs, and rendered the throne absolutely and completely vacant. It belonged to our ancestors to determine. For whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself. There is not upon earth any other tribunal to resort to, and that these consequences were fairly deduced from these facts our ancestors have solely determined in a full parliamentary convention representing the whole society. The reasons upon which they decided may be found at large in the parliament proceedings of the times, and may be matter of instructive amusement for us to contemplate as a speculative point of history. But care must be taken not to carry this inquiry further, that merely for instruction or amusement. The idea that the consciences of posterity were concerned in the rectitude of their ancestors' decisions gave birth to those dangerous political heresies, which so long destructed the state. But, at length, are all happily extinguished. And therefore rather choose to consider this great political measure upon the solid footing of authority than to reason in its favor from its justice, moderation, and expedience, because that might imply a right of dissenting or revolting from it, in case we should think it unjust, oppressive, or inexperienced. Whereas our ancestors having most indisputably a competent jurisdiction to decide this great and important question, and having in fact decided it, it has now become our duty at this distance of time to acquiesce in their determination, being born under that establishment which was built upon this foundation, and obliged by every tie, religious as well as civil, to maintain it. But while we rest this fundamental transaction in point of authority upon grounds in the least liable to cavill, 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. It was agreeable to the spirits 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 area 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 worth the observation that the convention, in this their judgment, avoided with great wisdom the wild extremes into 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, 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 the new foundation of policy. They therefore very prudently voted it to amount to no more than an abdication of the government and the 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, and thus the constitution was kept entire, which upon every sound principle of government must otherwise have fallen to pieces, had so principle and constituent a part of the royal authority been abolished, or even suspended. This single postulatum, the vacancy of the throne, being once established, the reign 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 royals 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 entrusted, and there is a necessity of its being entrusted 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 a manner as they judged the most proper, and this was done by their declaration of the 12th of February 1688, in the following manner, quote, 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 soul 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 diseases, the said crown and royal dignity, to be to the heirs of the body of the said princess, and for defaults of such issue to the princes 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, end quote. 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 world of 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 further from the ancient line that temporary necessity and self-preservation required. They therefore settled the crown first on the 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 princes 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 I, and nephew as well as son-in-law of king James II, being the son of Mary, his only sister. This settlement included all the protestant posterity of king Charles I, except such the other issue as king James might at any time have, which was totally omitted through fear of a pope's succession, and this order of succession took effect accordingly. These three principles therefore king William, queen Mary, and queen Anne did not take the crown by hereditary right or dissent, but by way of donation or purchase, as the lawyers call it, by which they made any method of acquiring an estate otherwise than by dissent. 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 dissent in the old hereditary channel. For the usual course of dissent 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 stowed 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 stowed 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 dissent. 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 sought 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 further 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 one William and Mary, statute two, chapter two, enacted that every person who should be reconciled to, or hold communion with, the sea of Rome, should profess the poppish religion, or should marry a papist, should be excluded, and 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 dissent to such persons, being protestant, as would have inherited the same, in case the persons so reconciled, holding communion, profession, 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 resolution would admit, they turned their eyes on the Princess Sophia, Electress and Duchess Dowager of Hanover, the most accomplished Princess of her age. For upon the impending extinction of the protestant posterity of Charles I, the old law of regal dissent directed them to recur to the descendants of James I, and the Princess Sophia, being the daughter of Elizabeth, Queen of Bohemia, who was the youngest daughter of James I, was the nearest of the ancient blood royal, who was not incapacitated by professing the poppish religion. On her, therefore, and the heirs of her body, being protestant, the remainder of the crown, expectant, on the deaths of King William and Queen Anne, without issue, was settled by statute 12 and 13, William III, chapter 2. And at the same time it was enacted that whoever should appear after 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 and chapter 7, it is enacted that if any person maliciously, advisedly, or 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, 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 premonitor. The Princess Sophia, dying before Queen Anne, the inheritance thus limited, descended on her son and heir King George I, and, having on the dance of the Queen taking effect in his person, from him it descended to his late Majesty King George II, and from him to his grandson and heir, our present gracious sovereign King George III. Hence it is easy to collect that the title to the crown is at present hereditary, though not quite so absolutely hereditary as formally, and the common stock of 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 I, time, took 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 its heirs are each of them equally destructive of those ends for which societies were formed and are kept on foot. Where the magistrates upon every succession is elected by the people, and may, by the express provisions of the laws be the post, 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, the vine indifusible 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 its true and genuine light. It is the duty, a very good Englishman, to understand, to revere, to defend it. 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 I, Mary I, Statute III, Chapter I. But the queen consort is the wife of the reigning king, and she by virtue of her marriage is participant of diverse prerogatives above other women. 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 copy holds, and do other acts of ownership without the concurrence of her lord, which no other married woman can do, a privilege as old as the Saxon area. 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 Pesima Regina Convuchs Divi Imperatoris of the Roman laws, who, according to Justinian, was equally capable of making a grant too, and receiving one from the emperor. The queen of England had separate courts and officers distinct from the kings, 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 council. 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 femme seule, and not as femme couvert, as a single, not as a married woman, for which the reason given by Sir Edward Cook is this, because the wisdom of the common law would not have the king, whose continual care and study is for the public and 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 has also many exemptions, and minute prerogatives. For instance, she pays no toll, nor is she liable to any amersement in any court. 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 the imperial law Augusta legibus solutan on est. The queen has also some pecuniary advantages, which form her a distinctive revenue, as in the first place she is entitled to an ancient prerequisite called Queen Gold, or Aorum Reginai, which is a royal revenue, belonging to every queen consort during her marriage with the king, and due from every person who has made a voluntary offering or fine to the king, amounting to ten marks or upwards, for an inconsideration of any privileges, grants, licenses, pardons, or other matter of royal favour conferred upon him by the king, and it is due in the proportion of one tenths part more, over and above the entire offering or fine made to the king, and becomes an actual depth of record to the queen's majesty but a mere recording define, as if an hundred marks of silver be given to the king for liberty to take in mortemane, 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 Aorum Reginai. 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. The revenue of our ancient queens, before and soon after the conquest, seems to have consisted in certain reservations, or rents, out of the demean 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. These were frequently appropriated to particular purposes, to buy wool for her majesty's use, to purchase oil for her lamps, or to furnish her attire from head to foot, which was frequently very costly, as one single robe in the fifth year of Henry II stood the city of London in upwards of four score pounds. A practice somewhat similar to deaths of the eastern countries, where whole cities and provinces were specifically assigned to purchase particular parts of the queen's apparel. And, for a further addition to her income, this duty of queen gold is supposed to have been originally granted, those matters of grace and favor, out of which it arose, being frequently obtained from the crown by the powerful intercession of the queen. There are traces of its payment, though obscure ones, in the book of Domesday, and in the great pipe roll of Henry I. In the reign of Henry II, the manner of collecting it appears to have been well understood, and it forms a distinct head in the ancient dialogue of the extractor, written in the time of that prince, and usually attributed to Gervais of Tilbury. From that time downward it was regularly claimed and enjoyed by all the queen concerts of England till the deaths 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 concert afterwards till the accession of James I, a period of near sixty years, its very nature and quantity became then a matter of doubt, and being referred by the queen to his then chief justices and chief barons, the report of it was so very unfavorable that Queen Anne, though she claimed it, yet never thought proper to exact it. In 1635, 11, Charles I, a time fertile of expedience 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 living it, but afterwards purchased it of his concert 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's legally remains of this revenue was reduced to almost nothing at all. In vain did Mr. Prine, via treaties which does honor to his abilities as a painful and judicious antiquarian, endeavour to excite Queen Catherine to revive this antiquated claim. Another ancient prerequisite belonging to the queen concert, mentioned by all our writers, and therefore only was he noticed is this, that on the taking of a whale on the coast, which is a royal fish, it shall be divided between the king and queen, the head only being the king's property, and the tale of it the queen's. The reason of this whimsical division, as assigned by our ancient records, was to furnish the queen's wardrobe with well-bone. By further, 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 Statue 25 Edwards III, to compass or imagine the deaths of our Lady the King's companion, as of the king himself, and to violate, or to file, the queen's concert, 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 VIII 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 unnatural justice, as female modesty. If, however, the queen be accused of any species of treason, she shall, with a consort or dowager, be tried by the House of Peers, as Queen Anne Bolin was in 28 Henry VIII. 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 concert 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 concert, 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 dignitai regali, no one can marry a queen dowager without special license from the king, or pain of forfeiting his lands and goods. This Sir Edward Cook tells us was enacted in Parliament in VI Henry IV, though the statue be not in print. But she, though an alien born, shall still be entitled to dour after the king's demise, which no other alien is. A queen dowager, when married again to subject, does not lose her regal dignity, as puruses dowager do their peerage when they marry commoners. For Catherine, queen dowager of Henry V, though she married a private gentleman, Owen App meridit Appseador, commonly called Owen Tudor, yet, by the name of Catherine Queen of England, maintained an action against the bishop of Carlyle. And so the Queen of Navarre, marrying Edmund, brother to King Edward I, maintained an action of dour by the name of Queen of Navarre. The Prince of Wales, or heir apparent to the crown, and also his royal consort, and the Prince's royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. For, by Statue XXV, Edward III, to encompass or conspire the deaths of the former, or to violate the chastity of either of the latter, are as much high treason as to conspire the deaths 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 may 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, in so much that upon this, united with other feudal principles, while our military tenues 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. The younger sons and daughters of the king, who are not in the immediate line of succession, are little further regarded by the laws than to give them precedence before all peers and public officers, as well as ecclesiastical as temporal. This is done by the Statute 31, Henry VIII, chapter 10, which enacts that no person, except the king's children, shall presume to sit, or have place at the side of the cloth of estate in the Parliament chamber, and that certain great officers therein named, shall have precedence above all dukes, except only such as shall happen to be the king's son. Brother, uncle, nephew, which Sir Edward Cook explains to signify grandson, or Nepos, or a brother's or sister's son. And in 1718, upon a question referred to all the judges by King George I, it was resolved by the opinion of ten against the other two, that the education and care of all the king's grandchildren, while minors, and care and approbation of their marriages, when grown up, did belong of right to his majesty, as king of this realm, during their father's life. And this may suffice for the notice taken by law of his Majesty's royal family. Ends of section 23.