.P 183
The RIGHTS OF PERSONS.
BOOK I.
Ch. 3.
CHAPTER THE THIRD.
OF THE KING, AND HIS TITLE.
THE fupreme executive power of thefe kingdoms is vefted by our laws in a fingle perfon, the king or queen : for it matters not to which fex the crown defends ; but the perfon entitled to it, whether male or female, is immediately invefted with all the enfigns, rights, and prerogatives of fovereign power ; as is declared by ftatute 1 Mar. ft. 3. c. 1.
IN difcourfing of the royal rights and authority, I fhall confider the king under fix diftinct views : 1. With regard to his title. 2. His royal family. 3. His councils. 4. His duties, 5. His prerogative. 6. His revenue. And, firft, with regard to his title.
THE executive power of the Englifh nation being vefted in a fingle perfon, by the general confent of the people, the evidence of which general confent is long and immemorial ufage, it became neceffary to the freedom and peace of the ftate, that a rule fhould be laid down, uniform, univerfal, and permanent ; in order to mark out with precifion, who is that fingle perfon, to whom are committed (in fubfervience 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 higheft importance to the public tranquillity, and to the con-
fciences
.P 184
The RIGHTS OF PERSONS.
BOOK I.
Ch. 3.
fciences of private men, that this rule fhould be clear and indifputable : and our conftitution has not left us in the dark upon this material occafion. It will therefore be the endeavour of this chapter to trace out the conftitutional doctrine of the royal fucceffion, with that freedom and regard to truth, yet mixed with that reverence and refpect, which the principles of liberty and the dignity of the fubject require.
THE grand fundamental maxim upon which the jus coronae, or right of fucceffion to the throne of thefe kingdoms, depends, I take to be this : “that the crown is, by common law and “conftitutional cuftom, hereditary ; and this in a manner pecu- “liar to itfelf : but that the right of inheritance may from time “to time be changed or limited by act of parliament ; under “which limitations the crown ftill continues hereditary.” And this propofition it will be the bufinefs of this chapter to prove, in all it's branches : firft, that the crown is hereditary ; fecondly, that it is hereditary in a manner peculiar to itfelf ; thirdly, that this inheritance is fubject to limitation by parliament ; laftly, that when it is fo limited, it is hereditary in the new proprietor.
1. FIRST, it is in general hereditary, or defcendible to the next heir, on the death or demife of the laft proprietor. All regal governments muft be either hereditary or elective : and, as I believe there is no inftance wherein the crown of England has ever been afferted to be elective, except by the regicides at the infamous and unparalleled trial of king Charles I, it muft of confequence be hereditary. Yet while I affert an hereditary, It by on means intend a fure divino, title to the throne. Such a title may be allowed to have fubfifted under the theocratic eftablifhments of the children of Ifrael in Paleftine : but is never yet fubfifted in any other country ; fave only fo far as kingdoms, like other human fabrics, are fubject to the general and ordinary difpenfations of providence. Nor indeed have a jure divino and an hereditary right any neceffary connexion with each other ; as fome have every weakly imagined. The titles of David and Jehu were equally
jure
.P 185
The RIGHTS OF PERSONS.
BOOK I.
Ch. 3.
jure divino, as thofe of either Solomon or Ahab; and yet David flew the fons of his predeceffor, and Jehu his predeceffor himfelf. And when our kings have the fame warrant as the had, whether it be to fit upon the throne of their fathers, or to deftroy the houfe of the preceding fovereign, they will then, and not before, poffefs the crown of England by a right like theirs, immediately derived from heaven. The hereditary right, which the laws of England acknowlege, owes it's origin to the founders of our conftitution, 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 one fociety having no connexion with, or influence upon, the fundamental polity of another. The founders of our Englifh monarchy might perhaps, if they had though proper, have made it an elective monarchy but they rather chofe, and upon good reafon, to eftablifh originally a fucceffion by inheritance. This. has been acquiefced in by general confent ; and ripened by degrees into common law : the very fame title that every private man has to his own eftate. Lands are not naturally defcendible any more than thrones : but the law has thought proper, for the benefit and peace of the public, to eftablifh hereditary fucceffion in one as well as the other.
IT muft be owned, an elective monarchy feems to be the moft obvious, and beft fuited of any to the rational principles of government, and the freedom of human nature : and accordingly we find from hiftory that, in the infancy and firft rudiments of almoft every ftate, the leader, chief magiftrate, or prince, hath ufually been elective. And, if the individuals who compofe that ftate could always continue true to firft principles, uninfluenced by paffion or prejudice, unaffailed by corruption, and unawed by violence, elective fucceffion were as much to be defired in a kingdom, as in other inferior communities. The beft, the wifeft, and the braveft man would then be fure of receiving that crown, which his endowments have merited ; and the fenfe of an unbiaffed majority would be dutifully acquiefced in by the few who where
Z
of
.P 186
The RIGHTS OF PERSONS.
BOOK I.
Ch. 3.
of different opinions. But hiftory and obfervation will inform us, that elections of every kind (in the prefent ftate of human nature) are too frequently brought about by influence, partiality, and artifice : and, even where the café is otherwife, thefe practices will be often fufpected, and as conftantly charged upon the fuccefsful, by a fplenetic difappointed minority. This is an evil, to which all focieties are liable ; as well thofe of a private and domeftic kind, as the great community of the public, which regulates and includes the reft. But in the former there is this advantage ; that fuch fufpicions, if falfe, proceed no farther than jealoufies and murmurs, which time will effectually fupprefs ; and, if true, the injuftice may be remedied by legal means, by an appeal to thofe tribunals to which every member of fociety has (by becoming fuch) virtually engaged to fubmit. Whereas, in the great and independent fociety, which every nation compofes, there is no fuperior to refort to but the law of nature ; no method to redrefs 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 ; fo in one and the fame nation, when the fundamental principles of their common union are fuppofed to be invaded, and more efpecially when the appointment of their chief magiftrate is alleged to be unduly made, the only tribunal to which the complainants can appeal is that of the God of battles, the only procefs by which the appeal can be carried on is that of a civil and inteftine war. An hereditary fucceffion to the crown is therefore now eftablifhed, in this and moft other countries, in order to prevent that periodical bloodfhed and mifery, which the hiftory of antient imperial Rome, and the more modern experience of Poland and Germany, may fhew us are the confequences of elective kingdoms.
2. BUT, fecondly, as to the particular mode of inheritance, it in general correfponds with the feodal path of defcents, chalked out by the common law in the fucceffion to landed eftates ; yet with one or two material exceptions. Like them, the crown will
defcend
.P 187
The RIGHTS OF PERSONS.
BOOK I.
Ch. 3.
defcend lineally to the iffue of the reigning monarch ; as it did from king John to Richard II, through a regular pedigree of fix lineal defcents. As in them, the preference of males to females, and the right of primogeniture among the males, are ftrictly adhered to. Thus Edward V fucceeded to the crown, in preference to Richard his younger brother and Elizabeth his elder fifter. Like them, on failure of the male line, it defcends to the iffue female ;' according to the antient Britifh cuftom remarked by Tacitus a, “folent foeminarum ductu bellare, et fexum in imperiis non difcer- “nere.” Thus Mary I fucceeded to Edward VI; and the line of Margaret queen of Scots, the daughter of Henry VII, fucceeded on failure of the line of Henry VIII, his fon. But, among the females, the crown defcends by right of primogeniture to the eldeft daughter only and her iffue ; and not, as in common inheritances, to all the daughters at once ; the evident neceffity of a fole fucceffion to the throne having occafioned the royal law of defcents to depart from the common law in this refpect : and therefore queen Mary on the death of her brother fucceeded to the crown alone, and not in partnerfhip with her fifter Elizabeth. Again : the doctrine of reprefentation prevails in the defcent of the crown, as it does in other inheritances ; whereby the lineal defcendants of any perfon deceafed ftand in the fame place as their anceftor, if living, would have done. Thus Richard II. fucceeded his grandfather Edward III, in right of his father the black prince ; to the exclufion of all his uncles, his grandfather's younger children. Laftly, on failure of lineal defcendants, the crown goes to the next collateral relations of the late king ; provided they are lineally defcended from the blood royal, that is, from that royal ftock which originally acquired the crown. Thus Henry I fucceeded to William II, John to Richard I, and James I to Elizabeth ; being all derived from the conqueror, who was then the only regal ftock. But herein there is no objection (as in the café of common defcents) to the fucceffion of a brother, an uncle, or other collateral relation, of the half blood ; that is, where the relationfhip proceeds not from the fame couple of anceftors (which
.{FS}
a in vit. Agricolae.
.{FE}
Z 2
conftitutes
.P 188
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
conftitutes a kinfman of the whole blood) but from a fingle anceftor only; as when two perfons are derived from the fame father, and not from the fame mother, or vice verfa: provided only, that the one anceftor, from whom both are defcended, be he from whofe veins the blood royal is communicated to each. Thus Mary I inherited to Edward VI, and Elizabeth inherited to Mary; all born of the fame father, king Henry VIII, but all by different mother. The reafon of which diverfity, between royal and common defcents, will be better underftood hereafter, when we examine the nature of inheritances in general.
3. THE doctrine of hereditary right does by no means imply an indefeafible right to the throne. No man will, I think, affert this, that has confidered our laws, conftitution, and hiftory, without prejudice, and with any degree of attention. It is unqueftionably in the breaft of the fupreme legiflative authority of this kingdom, the king and both houfes of parliament, to defeat his hereditary right; and, by particular entails, limitations, and provifions, to exclude the immediate heir, and veft the inheritance in any one elfe. This is ftrictly confonant to our laws and conftitution; as may be gathered from the expreffion fo frequently ufed in our ftatute book, of “the king's majefty, his heirs, and fucceffors.” In which we may obferve, that as the work, “heirs,” neceffarily implies an inheritance or hereditary right, generally fubfifting in the royal perfon; fo the word, “fucceffors,” diftinctly taken, muft imply that this inheritance may fometimes be broke through; or, that there may be a fucceffor, without being the heir, of the king. And this is fo extremely reafonable, that without fuch a power, lodged fomewhere, our polity would be very defective. For, let us barely fuppofe fo melancholy a cafe, as that the heir apparent fhould be a lunatic, an ideot, or otherwife incapable of reigning: how miferable would the condition of the nation be, if he were alfo incapable of being fet afide! --- It is therefore neceffary that this power fhould be lodged fomewhere: and yet the inheritance, and regal dignity, would be very precarious indeed, if this power were expreffly and avow-
edly
.P 189
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
edly lodged in the hands of the fubject only, to be exerted whenever prejudice, caprice, or difcontent fhould happen to take the lead. Confequently it can no where be fo properly lodged as in the two houfes of parliament, by and with the confent of the reigning king; who, it is not to be fuppofed, will agree to any thing improperly prejudicial to the rights of his own defcendants. And therefore in the king, lords, and commons, in parliament affembled, our laws have expreffly lodged it.
4. BUT, fourthly; however the crown may be limited or transferred, it ftill retains it's defcendible quality, and becomes hereditary in the wearer of it: and hence in our laws the king is faid never to die, in his political capacity; though, in common with other men, he is fubject to mortality in his natural: becaufe immediately upon the natural death of Henry, William, or Edward, the king furvives in his fucceffor; and the right of the crown vefts, eo inftanti, upon his heir; either the haeres natus, if the courfe of defcent remains unimpeached, or the haeres facius, if the inheritance be under any particular fettlement. So that there can be no interregnum; but as fir Matthew Haleb obferves, the right of fovereignty is fully invefted in the fucceffor by the very defcent of the crown. And therefore, however acquired, it becomes in him abfolutely hereditary, unlefs by the rules of the limitation it is otherwife ordered and determined. In the fame manner as landed eftates, to continue our former comparifon, are by the law hereditary, or defcendible to the heirs of the owner; but ftill there exifts a power, by which the property of thofe lands may be transferred to another perfon. If this transfer be made fimply and abfolutely, and lands will be hereditary in the new owner, and defcend to his heirs at law: but if the transfer be clogged with any limitations, conditions, or entails, the lands muft defcend in that chanel, fo limited and prefcribed, and no other.
IN thefe four points confifts, as I take it, the conftitutional notion of hereditary right to the throne: which will be ftill far-
.{FS}
b 1 Hift. P. C. 61.
.{FE}
ther
.P 190
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
there elucidated, and made clear beyond all difpute, from a fhort hiftorical view of the fucceffions to the crown of England, the doctrines of our antient lawyers, and the feveral acts of parliament that have from time to time been made, to create, to declare, to confirm, to limit, or to bar, the hereditary title to the throne. And in the purfuit of this enquiry we fhall find, that from the days of Egbert, the firft fole monarch of this kingdom, even to the prefent, the four cardinal maxims above mentioned have ever been held the conftitutional canons of fucceffion. It is true, this fucceffion, through fraud, or force, or fometimes through neceffity, when in hoftile times the crown defcended on a minor or the like, has been very frequently fufpended; but has always at laft returned back into the old hereditary chanel, though fometimes a very confiderable period has intervened. And, even in thofe inftances where the fucceffion has been violated, the crown has ever been looked upon as hereditary in the wearer of it. Of which the ufurpers themfelves were fo fenfible, that they for the moft part endeavoured to vamp up fome feeble fhew of a title by defcent, in order to amufe the people, while they gained the poffeffion of the kingdom. And, when poffeffion was once gained, they confidered it as the purchafe or acquifition of a new eftate of inheritance, and tranfmitted or endeavoured to tranfmit it to their own pofterity, by a king of hereditary right of ufurpation.
KING Egbert about the year 800, found himfelf in poffeffion of the throne of the weft Saxons, by a long and undifturbed defcent from his anceftors of above three hundred years. How his anceftors acquired their title, whether by force, by fraud, by contract, or by election, it matters not much to enquire; and is indeed a point of fuch high antiquity, as muft render all enquiries at beft but plaufible gueffes. His right muft be fuppofed indifputably good, becaufe we know no better. The other kingdoms of the heptarchy he acquired, fome by confent, but moft by a voluntary fubmiffion. And it is an eftablifhed maxim in civil polity, and the law of nations, that when one country is united
to
.P 191
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
to another in fuch a manner, as that one keeps it's government and ftates, and the other lofes them; the latter entirely affimilates or is melted down in the former, and muft adopt it's laws and cuftomsc. And in purfuance of this maxim there hath ever been, fince the union of the heptarchy in king Egbert, a general acquiefcence under the hereditary monarchy of the weft Saxons, through all the united kingdoms.
FROM Egbert to the death of Edmund Ironfide, a period of above two hundred years, the crown defcended regularly, through a fucceffion of fifteen princes, without any deviation or interruption; fave only that king Edred, the uncle of Edwy, mounted the throne for about nine years, in the right of his nephew a minor, the times being very troublefome and dangerous. But this was with a view to preferve, and not to deftroy, and fucceffion; and accordingly Edwy fucceeded him.
KING Edmund Ironfide was obliged, by the hoftile irruption of the Danes, at firft to divide his kingdom with Canute, king of Denmark; and Canute, after his death, feifed the whole of it, Edmund's fons being driven into foreign countries. Here the fucceffion was fufpended 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 Hardiknute, the antient Saxon line was reftored in the perfon of Edward the confeffor.
HE was not indeed the true heir to the crown, being the younger brother of king Edmund Ironfide, who has a fon Edward, firnamed (from his exile) the outlaw, ftill living. But this fon was then in Hungary; and, the Englifh having juft fhaken off the Danifh yoke, it was neceffary that fomebody on the fpot fhould mount the throne; and the confeffor was the next of the royal line then in England. On his deceafe without iffue, Harold II ufurped the throne, and almoft at the fame inftant came on the
.{FS}
c Puff. L. of N. and N. b. 8. c. 12. §. 6.
.{FE}
Norman
.P 192
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
Norman invafion: the right to the crown being all the time in Edgar, firnamed Atheling, (which fignifies in the Saxon language the firft of the blood royal) who was the fon of Edward the outlaw, and grandfon of Edmund Ironfide; or, as Matthew Parisd well expreffes the fenfe of our old conftitution, “Edmundus autem latusferreum, rex naturalis de ftirpe regum, genuit Edwardum; et Edwardus genuit Edgarum, cui de jure debebatur regnum Anglorum.”
WILLIAM the Norman claimed the crown by virtue of a pretended grant from king Edward the confeffor; a grant which, if real, was in itfelf utterly invalid: becaufe it was made, as Harold well obferved in his reply to William's demande, “abfque generali fenatus et populi conventu et edicto;” which alfo very plainly implies, that it then was generally underftood that the king, with confent of the general council, might difpofe of the crown and change the line of fucceffion. William's title however was altogether as good as Harold's, he being a mere private fubject, and an utter ftranger to the royal blood. Edgar Atheling's undoubted right was overwhelmed by the violence of the times; though frequently afferted by the Englifh nobility after the conqueft, till fuch time as he died without iffue: but all their attempts proved unfuccefsful, and only ferved the more firmly to eftablifh the crown in the family which had newly acquired it.
THIS conqueft 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 fo transferred, all the inherent properties of the crown were with it transferred alfo. For, the victory obtained at Haftings not beingf a victory over the nation collectively, but only over the perfon of Harold, the only right that the conqueror could pretend to acquire thereby, was the right to poffefs the crown of England, not to alter the nature of the government. And therefore, as the Englifh laws ftill re-
.{FS}
d A. D. 1066.
e William of Malmfb. l. 3.
f Hale, Hift. C. L. c. 5. Seld. review of tithes, c. 8.
.{FE}
mained
.P 193
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
mained in force, he muft neceffarily take the crown fubject to thofe laws, and with all it's inherent properties; the firft and principal of which was it's defcendibility. Here then we muft drop our race of Saxon kings, at leaft for a while, and derive our defcents from William the conqueror as from a new ftock, who acquired by right of war (fuch as it is, yet ftill the dernier refort of kings) a ftrong and undifputed title to the inheritable crown of England.
ACCORDINGLY it defcended from him to his fons William II and Henry I. Robert, it muft be owned, his eldeft fon, was kept out of poffeffion by the arts and violence of his brethren; who proceeded upon a notion, which prevailed for fome time in the law of defcents, that when the eldeft fon was already provided for (as Robert was conftituted duke of Normandy by his father's will) in fuch a cafe the next brother was entitled to enjoy the reft of their father's inheritance. But, as he died without iffue, Henry at laft had a good title to the throne, whatever he might have at firft.
STEPHEN of Blois, who fucceeded him, was indeed the grandfon of the conqueror, by Adelicia his daughter, and claimed the throne by a feeble kind of hereditary right; not as being the neareft of the male line, but as the neareft male of the blood royal. The real right was in the emprefs Matilda or Maud, the daughter of Henry I; the rule of fucceffion being (where women are admitted at all) that the daughter of a fon fhall be preferred to the fon of a daughter. So that Stephen was little better than a mere ufurper; and the emprefs Maud did not fail to affert her right by the fword: which difpute was attended with various fuccefs, and ended at laft in a compromife, that Stephen fhould keep the crown, but that Henry the fon of Maud fhould fucceed him; as he afterwards accordingly did.
HENRY, the fecond of that name, was the undoubted heir of William the conqueror; but he had alfo another connexion in
A a
blood,
.P 194
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
blood, which endeared him ftill farther to Englifh. He was lineally defcended from Edmund Ironfide, the laft of the Saxon race of hereditary kings. For Edward the outlaw, the fon of Edmund Ironfide, had (befides Edgar Atheling, who died without iffue) a daughter Margaret, who was married to Malcolm king of Scotland; and in her the Saxon hereditary right refided. By Malcolm fhe had feveral children, and among the reft Matilda the wife of Henry I, who by him had the emprefs Maud, the mother of Henry II. Upon which account the Saxon line is in our hiftories frequently faid to have been reftored in his perfon: though in reality that right fubfifted in the fons of Malcolm by queen Margaret; king Henry's beft title being as heir to the conqueror.
FROM Henry II the crown defcended to his eldeft fon Richard I, who dying childlefs, the right vefted in his nephew Arthur, the fon of Geoffrey his next brother; but John, the youngeft fon of king Henry, feifed the throne; claiming, as appers from his charters, the crown by hereditary rightg: that is to fay, he was next of kin to the deceafed king, being his furviving brother; whereas Arthur was removed one degree farther, being his brother's fon, though by right of reprefentation he ftood in the place of his father Geoffrey. And however flimzey this title, and thofe of William Rufus and Stephen of Blois, may appear at this diftance to us, after the law of defcents hath now been fettled for fo many centuries, they were fufficient to puzzle the underftandings of our brave, but unlettered, anceftors. Nor indeed can we wonder at the number of partizans, who efpoufed the pretenfions of king John in particular; fince even in the reign of his father, king Henry II, it was a point undeterminedh, whether, even in common inheritances, the child of an elder brother fhould fucceed to the land in right of reprefentation, or the younger furviving brother in right of proximity of blood. Nor is it to this day decided in the collateral fucceffion to the fiefs of
.{FS}
g “Regni Angliae; quod nobis jure competit baereditarie.” Spelm. Hift. R. Foh. apud Wilkins. 354.
h Glanv. l. 7. c. 3.
.{FE}
the
.P 195
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
the empire, whether the order of the ftocks, or the proximity of degree fhall take placei. However, on the death of Arthur and his fifter Eleanor without iffue, a clear and indifputable title vefted in Henry III the fon of John: and from him to Richard the fecond, a fucceffion of fix generations, the crown defcended in the true hereditary line. Under one of which race of princesk, we find it declared in parliament, “that the law of the crown of England is, and always hath been, that the law of the crown of England is, and always hath been, that the children of the king of England, whether born in England, or elfewhere, ought to bear the inheritance after the death of their anceftors. Which law, our fovereign lord the king, the prelates, earls, and barons, and other great men, together with all the commons, in parliament affembled, do approve and affirm for ever.”
UPON Richard the fecond's refignation of the crown, he having no children, the right refulted to the iffue of his grandfather Edward III. That king had many children, befides his eldeft, Edward the black prince of Wales, the father or Richard II: but to avoid confufion I fhall only mention three; William his fecond fon, who died without iffue; Lionel duke of Clarence, his third fon; and John of Gant duke of Lancafter, his fourth. By the rules of fucceffion therefore the pofterity of Lionel duke of Clarence were entitled to the throne, upon the refignation of king Richard; and had accordingly been declared by the king, many years before, the prefumptive heirs of the crown; which declaration was alfo confirmed in parliamentl. But Henry duke of Lancafter, the fon of John of Gant, having then a large army in the kingdom, the pretence of raifing which was to recover his patrimony from the king, and to redrefs the grievances of the fubject, it was impoffible for any other title to be afferted with any fafety; and he became king under the title of Henry IV. But, as fir Matthew Hale remarksm, though the people unjuftly affifted Henry IV in his ufurpation of the crown, yet he was not admitted thereto, until he had declared that he
.{FS}
I Mod. Un. Hift. xxx. 512.
k Stat. 25. Edw. III. ft. 2.
l Sandford's geneal. hift. 246.
m Hift. C. L. c. 5.
.{FE}
A a
2claimed,
.P 196
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
claimed, not as a conqueror, (which he very much inclined to don) but as a fucceffor, defcended by right line of the blood royal; as appears from the rolls of parliament in thofe times. And in order to this he fet up a fhew of two titled: the one upon the pretence of being the firft of the blood royal in the intire male line, whereas the duke of Clarence left only one daughter Philippa; from which female branch, by a marriage with Edmond Mortimer earl of March, the houfe of York defcended: the other, by reviving an exploded rumour, firft propagated by John of Gant, that Edmond earl of Lancafter (to whom Henry's mother was heirefs) was in reality the elder brother of king Edward I; though his parents, on account of his perfonal deformity, had impofed him on the world for the younger: and therefore Henry would be intitled to the crown, either as fucceffor to Richard II, in cafe the intire male line was allowed a preference to the female; or, even prior to that unfortunate prince, if the crown could defcend through a female, while an intire male line was exifting.
HOWEVER, as in Edward the third's time we find the parliament approving and affirming the right of the crown, as before ftated, fo in the reign of Henry IV they actually exerted their right of new-fettling the fucceffion to the crown. And this was done by the ftatute 7 Hen. IV. c. 2. whereby it is enacted, that the inheritance of the crown and realms of England and France, and all other the king's dominions, fhall be fet and remaino in the perfon of our fovereign lord the king, and in the heirs of his body iffuing;” and prince Henry is declared heir apparent to the crown, to hold to him and the heirs of his body iffuing, with remainder to lord Thomas, lord John, and lord Humphry, the king's fons, and the heirs of their bodies refpectively. Which is indeed nothing more than the law would have done before, provided Henry the fourth had been a rightful king. It however ferves to fhew that it was then generally underftood, that the king and parliament had a right to new-model and re-
.{FS}
n Seld. tit. hon. 1. 3.
o foit mys demoerge.
.{FE}
gulate
.P 197
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
gulate the fucceffion to the crown. And we may obferve, with what caution and delicacy the parliament then avoided declaring any fentiment of Henry's original title. However fir Edward Coke more than once expreffly declaresp, that at the time of paffing this act the right of the crown was in the defcent from Philippa, daughter and heir of Lionel duke of Clarence.
NEVERTHELESS the crown defcended regularly from Henry IV to his fon and grandfon Henry V and VI; in the latter of whofe reigns the houfe of York afferted their dormant title; and, after imbruing the kingdom in blood and confufion for feven years together, at laft eftablifhed it in the perfon of Edward IV. At his acceffion to the throne, after a breach of the fucceffion that continued for three defcents, and above threefcore years, the diftinction of a king de jure, and a king de facto began to be firft taken; in order to indemnify fuch as had fubmitted to the late eftablifhment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by thofe who were now called the ufurpers, not tending to the difherifon of the rightful heir. In ftatute 1 Edw. IV. c. 1. the three Henrys are ftiled, “late kings of England fucceffively in dede, and not of ryght.” And, in all the charters which I have met with of king Edward, wherever he has occafion to fpeak of any of the line of Lancafter, he calls them “nuper de facto, et non de jure, reges Angliae.”
EDWARD IV left two fons and a daughter; the eldeft of which fons, king Edward V, enjoyed the regal dignity for a very fhort time, and was then depofed by Richard his unnatural uncle; who immediately ufurped the royal dignity, having previoufly infinuated to the populace a fufpicion of baftardy in the children of Edward IV, to make a fhew of fome hereditary title: after which he is generally believed to have murdered his two nephews; upon whofe death the right of the crown devolved to their fifter Elizabeth.
.{FS}
p 4 Inft. 37, 205.
.{FE}
THE
.P 198
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
THE tyrannical reign of king Richard III gave occafion to Henry earl of Richmond to affert his title to the crown. A title the moft remote and unaccountable that was ever fet up, and which nothing could have given fuccefs to, but the univerfal deteftation of the then ufurper Richard. For, befides that he claimed under a defcent from John of Gant, whofe title was now exploded, the claim (fuch at it was) was through John earl of Somerfet, a baftard fon, begotten by John of Gant upon Catherine Swinford. It is true, that, by an act of parliament 20 Ric. II, this fon was, with others, legitimated and made inheritable to all lands, offices, and dignities, as if he had been born in wedlock: but ftill, with an exprefs refervation fo the crown, “excepta dignitate regaliq.”
NOTHWITHSTANDING all this, immediately after the battle of Bofworth field, he affumed the regal dignity; the right of the crown then being, as fir Edward Coke expreffly declaresr, in Elizabeth, eldeft daughter of Edward IV: and his poffeffion was eftablifhed by parliament, held the firft year of his reign. In the act for which purpofe, the parliament feems to have copied the caution of their predeceffors in the reign of Henry IV; and therefore (as lord Bacon the hiftorian of this reign obferves) carefully avoided any recognition of Henry VII's right, which indeed was none at all; and the king would not have it by way of new law or ordinance, whereby a right might feem to be created and conferred upon him; and therefore a middle way was rather chofen, by way (as the noble hiftorian expreffes it) of eftablifhment, and that under covert and indifferent words, “that the inheritance of the crown fhould reft, remain, and abide in king Henry VII and the heirs of his body:” thereby providing for the future, and at the fame time acknowleging his prefent poffeffion; but not determining either way, whether that poffeffion was de jure or de facto merely. However he foon after married Elizabeth of York, the undoubted heirefs of the conqueror, and thereby gained (as fir Edward Cokes declares) by much his beft title to the crown.
.{FS}
q 4 Inft. 36.
r 4 Inft. 37.
s Ibid.
.{FE}
Where-
.P 199
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
Whereupon the act made in his favour was fo much difregarded, that it never was printed in our ftatute books.
HENRY the eighth, the iffue of this marriage, fucceeded to the crown by clear indifputable hereditary right, and tranfmitted it to his three children in fucceffive order. But in his reign we at feveral times find the parliament bufy in regulating the fucceffion to the kingdom. And, firft, by ftatute 25 Hen. VIII. c. 12. which recites the mifchiefs, which have and may enfue by difputed titles, becaufe no perfect and fubftantial provifion hath been made by law concerning the fucceffion; and then enacts, that the crown fhall be entailed to his majefty, and the fons or heirs males of his body; and in default of fuch fons to the lady Elizabeth (who is declared to be the king's eldeft iffue female, in exclufion of the lady Mary, on account of her fuppofed illegitimacy by the divorce of her mother queen Catherine) and to the lady Elizabeth's heirs of her body; and fo on from iffue female to iffue female, and the heirs of their bodies, by courfe of inheritance according to their ages, as the crown of England hath been accuftomed and ought to go, in cafe where there be heirs female of the fame: and in default of iffue female, then to the king's right heirs for ever. This fingle ftatute is an ample proof of all the four pofitions we at firft fet out with.
BUT, upon the king's divorce from Ann Boleyn, this ftatute was, with regard to the fettlement of the crown, repealed by ftatute 28 Hen. VIII. c. 7. wherein the lady Elizabeth is alfo, as well as the lady Mary, baftardized, and the crown fettled on the king's children by queen Jane Seymour, and his future wives; and, in defect of fuch children, then with this remarkable remainder, to fuch perfons as the king by letters patent, or laft will and teftament, fhould limit and appoint the fame. A vaft power; but, notwithftanding, as it was regularly vefted in him by the fupreme legiflative authority, it was therefore indifputably valid. But this power was never carried into execution; for by ftatute 35 Hen. VIII. c. 1. the king's two daughters are legitimated again, and the
crown
.P 200
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
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 refpective bodies; which fucceffion took effect accordingly, being indeed no other than the ufual courfe of the law, with regard to the defcent of the crown.
BUT left there fhould remain any doubt in the minds of the people, through this jumble of acts for limiting the fucceffion, by ftatute 1 Mar. p. 2. c. 1. queen Mary's hereditary right to the throne is acknowleged and recognized in thefe words: “the crown of thefe realms is moft lawfully, juftly, and rightly defcended and come to the queen's highnefs that now is, being the very, true, and undoubted heir and inheritrix thereof.” And again, upon the queen's marriage with Philip of Spain, in the ftatute which fettles the preliminaries of that matcht, the hereditary right to the crown is thus afferted and declared: “as touching the right of the queen's inheritance in the realm and dominions of England, the children, whether male or female, fhall fucceed in them, according to the known laws, ftatutes, and cuftoms of the fame.” Which determination of the parliament, that the fucceffion fhall continue in the ufual courfe, feems tacitly to imply a power of new-modelling and altering it, in cafe the legiflature had thought proper.
ON queen Elizabeth's acceffion, her right is recognized in ftill ftronger terms than her fifter's; the parliament acknowlegingu, that the queen's highnefs is, and in very deed and of moft mere right ought to be, by the laws of God, and the laws and ftatutes of this realm, our moft lawful and rightful fovereign liege lady and queen; and that her highnefs is rightly, lineally, and lawfully defcended and come of the blood royal of this realm of England; in and to whofe princely perfon, and to the heirs of the body lawfully to be begotten, after her, the imperial crown and dignity of this realm doth belong.” And in the fame reign, by ftatute 13 Eliz. c. 1. we fine the right of parlia-
.{FS}
t 1 Mar. p. 2. c. 2.
u Stat. 1 Eliz. c. 3.
.{FE}
ment
.P 201
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
ment to direct the fucceffion of the crown afferted in the moft explicit words. “If any perfon fhall 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 majefty, with and by the authority of parliament, is not able to make laws and ftatutes of fufficient force and validity, to limit and bind the crown of this realm, and the defcent, limitation, inheritance, and government thereof; --- fuch perfon, fo holding, affirming, or maintaining, fhall during the life of the queen be guilty of high treafon; and after her deceafe fhall be guilty of a mifdemefnor, and forfeit his goods and chattels.”
ON the death of queen Elizabeth, without iffue, the line of Henry VIII became extinct. It therefore became neceffary to recur to the other iffue of Henry VII, by Elizabeth of York his queen: whofe eldeft daughter Margaret having married James IV king of Scotland, king James the fixth of Scotland, and of England the firft, was the lineal defcendant from that alliance. So that is his perfon, as clearly as in Henry VIII, centered all the claims of different competitors from the conqueft downwards, he being indifputably the lineal heir of the conqueror. And, what is ftill more remarkable, in his perfon alfo centered the right of the Saxon monarchs, which had been fufpended from the conqueft till his acceffion. For, as was formerly obferved, Margaret the fifter of Edgar Atheling, the daughter of Edward the outlaw, and granddaughter of king Edmund Ironfide, was the perfon in whom the hereditary right of the Saxon kings, fuppofing it not abolifhed by the conqueft, refided. She married Malcolm king of Scotland; and Henry II, by a defcent from Matilda their daughter, is generally called the reftorer of the Saxon line. But it muft be remembered, that Malcolm by his Saxon queen had fons 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 the firft was the direct lineal heir, and therefore united in his perfon every poffible
B b
claim
.P 202
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
claim by hereditary right to the Englifh, as well as Scottifh throne, being the heir both of Egbert and William the conqueror.
AND it is no wonder that a prince of more learning that wifdom, who could deduce an hereditary title for more than eight hundred years, fhould eafily be taught by the ftatterers of the times to believe there was fomething divine in this right, and that the finger of providence was vifible in it's prefervation. Whereas, though a wife inftitution, it was clearly a human inftitution; and the right inherent in him no natural, but a pofitive right. And in this and no other light was it taken by the Englifh parliament; who by ftatute 1 Jac. I. c. 1. did “recognize and acknowlege, that immediately upon the diffolution and deceafe of Elizabeth late queen of England, the imperial crown thereof did by inherent birthright, and lawful and undoubted fucceffion, defcend and come to his moft excellent majefty, as being lineally, juftly, and lawfully, next and fole heir of the blood royal of this realm.” Not a word here of any right immediately derived from heaven: which, if it exifted any where, muft be fought for among the aborigines of the ifland, the antient Britons; among whofe princes indeed fome have gone to fearch it for himw.
BUT, wild and abfurd as the doctrine of divine right moft undoubtedly is, it is ftill more aftonifhing, that when fo many human hereditary rights had centered in this king, his fon and heir king Charles the firft fhould be told by thofe infamous judges, who pronounced his unparalleled fentence, that he was an elective prince; elected by his people, and therefore accountable to them, in his own proper perfon, for his conduct. The confufion, inftability, and madnefs, which followed the fatal cataftrophe of that pious and unfortunate prince, will be a ftanding argument in
.{FS}
w Elizabeth of York, the mother of queen Margaret of Scotland, was heirefs of the houfe of Mortimer. And Mr Carte obferves, that the houfe of Mortimer, in virtue of it's defcent from Gladys only fifter of Lewellin ap Jorweth the great, had the true right to the principality of Wales, iii, 705.
.{FE}
favour
.P 203
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
favour of hereditary monarchy to all future ages; as they proved at laft to the then deluded people: who, in order to recover that peace and happinefs which for twenty years together they had loft, in a folemn parliamentary convention of the ftates reftored the right heir of the crown. And in the proclamation for that purpofe, which was drawn up and attended by both houfesx, they declared, “that, according to their duty and allegiance, they did heartily, joyfully, and unanimoufly acknowlege and proclaim, that immediately upon the deceafe of our late fovereign lord king Charles, the imperial crown of thefe realms did by inherent birthright and lawful and undoubted fucceffion defcend and come to his moft excellent majefty Charles the fecond, as being lineally, juftly, and lawfully, next heir of the blood royal of this realm: and thereunto they moft humbly and faithfully did fubmit and oblige themfelves, their heirs and pofterity for ever.”
THUS I think it clearly appears, from the higheft authority this nation is acquainted with, that the crown of England hath been ever an hereditary crown; though fubject to limitations by parliament. The remainder of this chapter will confift principally of thofe inftances, wherein the parliament has afferted or exercifed this right of altering and limiting the fucceffion; a right which, we have feen, was before exercifed and afferted in the reigns of Henry IV, Henry VII, Henry VIII, queen Mary, and queen Elizabeth.
THE firft inftance, in point of time, is the famous bill of exclufion, which raifed fuch a ferment in the latter end of the reign of king Charles the fecond. It is well know, that the purport of this bill was to have fet afide the king's brother and prefumptive heir, the duke of York, from the fucceffion, on the fcore of his being a papift; that it paffed the houfe of commons, but was rejected by the lords; the king having alfo declared beforehand, that he never would be brought to confent to it. And from this tranfaction we may collect two things: 1. That the crown was
.{FS}
x Com. Journ. 8 May, 1660.
.{FE}
B b
2univer-
.P 204
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
univerfally acknowleged to be hereditary; and the inheritance indefeafible unlefs by parliament: elfe it has been needlefs to prefer fuch a bill. 2. That the parliament had a power to have defeated the inheritance: elfe fuch a bill had been ineffectual. The common acknowleged the hereditary right then fubfifting; and the lords did not difpute the power, but merely the propriety, of an exclufion. However, as the bill took no effect, king James the fecond fucceeded to the throne of his anceftors; and might have enjoyed it during the remainder of his life, but for his own infatuated conduct, which (with other concurring circumftances) brought on the revolution in 1688.
THE true ground and principle, upon which that memorable event proceeded, was an entirely new cafe in politics, which had never before happened in our hiftory; the abdication of the reigning monarch, and the vacancy of the throne thereupon. It was not a defeazance of the right of fucceffion, and a new limitation of the crown, by the king and both houfes of parliament: it was the act of the nation alone, upon an apprehenfion that there was no king in being. For in a full affembly of the lords and commons, met in convention upon this apprehended vacancy, both houfesy came to this refolution; “that king James the fecond, having endeavoured to fubvert the conftitution of the kingdom, by breaking the original contract between king and people; and, by the advice of jefuits and other wicked perfons, having violated the fundamental laws; and having withdrawn himfelf out of this kingdom; has abdicated the government, and that the throne is thereby vacant.” Thus ended at once, by this fudden and unexpected vacancy of the throne, the old line of fucceffion; which from the conqueft had lafted above fix hundred years, and from the union of the heptarchy in king Egbert almoft nine hundred. The facts themfelves thus appealed to, the king's endeavours to fubvert the conftitution by breaking the original contract, his violation of the fundamental laws, and his withdrawing himfelf out of the kingdom, were evident and notorious: and the
.{FS}
y Com. Journ. 7 Feb. 1688.
.{FE}
con-
.P 205
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
confequences drawn from thefe facts (namely, that they amounted to an abdication of the government; which abdication did not affect only the perfon of the king himfelf, but alfo all his heirs, and rendered the throne abfolutely and completely vacant) it belonged to our anceftors to determine. For, whenever a queftion arifes between the fociety at large and any magiftrate vefted with powers originally delegated by that fociety, it muft be decided by the voice of the fociety itfelf: there is not upon earth any other tribunal to refort to. And that thefe confequences were fairly deduced from thefe facts, our anceftors have folemnly determined, in a full parliamentary convention reprefenting the whole fociety. The reafons upon which they decided may be found at large in the parliamentary proceedings of the times; and may be matter of inftructive amufement for us to contemplate, as a fpeculative point of hiftory. But care muft be taken not to carry this enquiry farther, than merely for for inftruction or amufement. The idea, that the confciences of pofterity were concerned in the rectitude of their anceftors' decifions, gave birth to thofe dangerous political herefies, which fo long diftracted the ftate, but at length are all happily extinguifhed. I therefore rather caufe to confider this great political meafure, upon the folid footing of authority, than to reafon in it's favour from it's juftice, moderation, and expedience: becaufe that might imply a right of diffenting or revolting from it, in cafe we fhould think it unjuft, oppreffive, or inexpedient. Whereas, our anceftors having moft indifputably a competent jurifdiction to decide this great and important queftion, and having in fact decided it, it is now become our duty at this diftance of time to acquiefce in their determination; being born under that eftablifhment which was built upon this foundation, and obliged by every tie, religious as well as civil, to maintain it.
BUT, while we reft this fundamental tranfaction, in point of authority, upon grounds the leaft liable to cavil, we are bound both in juftice and gratitude to add, that it was conducted with a temper and moderation which naturally arofe from it's equity;
that,
.P 206
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
that, however it might in fome refpects go beyond the letter of our antient laws, (the reafon of which will more fully appear hereafterz) it was agreeable to the fpirit of our conftitution, and the rights of human nature; and that though in other points (owing to the peculiar circumftances of things and perfons) it was not altogether fo perfect as might have been withed, yet from thence a new aera commenced, in which the bounds of prerogative and liberty have been better defined, the principles of government more thoroughly examined and underftood, and the rights of the fubject more explicity guarded by legal provifions, than in any other period of the Englifh hiftory. In particular, it is worthy obfervation that the convention, in this their judgment, avoided with great wifdom the wild extremes into which the vifionary theories of fome zealous republicans would have led them. They held that this mifconduct of king James amounted to an endeavour to fubvert the conftitution, and not to an actual fubverfion, or total diffolution of the government, according to the principles of Mr Lockea: which would have reduced the fociety almoft to a ftate of nature; would have leveled all diftinctions of honour, rank, offices, and property; would have annihilated the fovereign power, and in confequence have repealed all pofitive laws; and would have left the people at liberty to have erected a new fyftem of ftate 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 confequent vacancy of the throne; whereby the government was allowed to fubfift, though the executive magiftrate was gone, and the kingly office to remain, though king James was no longer kung. And thus the conftitution was kept intire; which upon every found principle of government muft otherwife have fallen to pieces, had fo principal and conftituent a part as the royal authority been abolifhed, or even fufpended.
THIS fingle poftulatum, the vacancy of the throne, being once eftablifhed, the reft that was then done followed almoft of
.{FS}
z See chapter 7.
a on Gov. p. 2. c. 19.
.{FE}
courfe.
.P 207
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
courfe. For, if the throne be at any time vacant (which may happen by other means befides that of abdication; as if all the bloodroyal fhould faid, without any fucceffor appointed by parliament;) if, I fay, a vacancy by any means whatfoever fhould happen, the right of difpofing of this vacancy feems naturally to refult to the lords and commons, the truftees and reprefentatives of the nation. For there are no other hands in which it can fo properly be intrufted; and there is a neceffity of it's being intrufted fomewhere, elfe the whole frame of government muft be diffolved and perifh. 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 fuch manner as they judged the moft proper. And this was done by their declaration of 12 February 1688b, in the following manner: “that William and Mary, prince and princefs of Orange, be, and be declared king and queen, to hold the crown and royal dignity during their lives, and the life of the furvivor of them; and that the fole and full exercife of the regal power be only in, and executed by, the faid prince of Orange, in the names of the faid prince and princefs, during their joint lives; and after their deceafes the faid crown and royal dignity to be to the heirs of the body of the faid princefs; and for default of fuch iffue to the princefs Anne of Denmark and the heirs of her body; and for default of fuch iffue to the heirs of the body of the faid prince of Orange.”
PERHAPS, upon the principles before eftablifhed, the convention might (if they pleafed) have vefted the regal dignity in a family intirely new, and ftrangers to the royal blood: but they were too well acquainted with the benefits of hereditary fucceffion, and the influence which it has by cuftom over the minds of the people, to depart any farther from the antient line than temporary neceffity and felf-prefervation required. They therefore fettled the crown, firft on king William and queen Mary, king James's eldeft daughter, for their joint lives; then on the furvivor of them; and then
.{FS}
b Com. Journ. 12 Feb. 1688.
.{FE}
on
.P 208
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
on the iffue of queen Mary: upon failure of fuch iffue, it was limited to princefs
Anne, king James's fecond daughter, and her iffue; and laftly, on failure of that, to the iffue of king William, who was the grandfon of Charles the firft, and nephew as well as fon in law of king James the fecond, being the fon of Mary his only fifter. This fettlement included all the proteftant pofterity of king Charles I, except fuch other iffue as king James might at any time have, which was totally omitted through fear of a popifh fucceffion. And this order of fucceffion took effect accordingly.
THESE three princes therefore, king William, queen Mary, and queen Anne, did not take the crown by the crown by hereditary right or defcent, but by way of donation or purchafe, as the lawyers call it; by which they mean any method of acquiring an eftate otherwife than by defcent. The new fettlement did not merely confift in excluding king James, and the perfon pretended to be prince of Wales, and then fuffering the crown to defcend in the old hereditary chanel: for the ufual courfe of defcent was in fome inftances broken through; and yet the convention ftill kept it in their eye, and paid a great, though not total, regard to it. Let us fee how the fucceffion would have ftood, if no abdication had happened, and king James had left no other iffue than his two daughters queen Mary and queen Anne. It would have ftood thus: queen Mary and her iffue; queen Anne and her iffue; king William and his iffue. But we may remember, that queen Mary was only nominally queen, jointly with her hufband king William, who alone had the regal power; and king William was abfolutely preferred to queen Anne, though his iffue was poftponed to hers. Clearly therefore thefe princes were fucceffively in poffeffion of the crown by a title different from the ufual courfe of defcent.
IT was towards the end of king William's reign, when all hopes of any furviving iffue from any of thefe princes died with the duke of Glocefter, that the king and parliament thought it neceffary again to exert their power of limiting and appointing
the
.P 209
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
the fucceffion, in order to prevent another vacancy of the throne; which muft have enfued upon their deaths, as no farther provifion was made at the revolution, than for the iffue of king William, queen Mary, and queen Anne. The parliament had previoufly by the ftatute of 1 W. & M. ft. 2. c. 2. enacted, that every perfon who fhould be reconciled to, or hold communion with, the fee of Rome, fhould profefs the popifh religion, or fhould marry a papift, fhould be excluded and for ever incapable to inherit, poffefs, or enjoy, the crown; and that in fuch cafe the people fhould be abfolved from their allegiance, and the crown fhould defcend to fuch perfons, being proteftants, as would have inherited the fame, in cafe the perfon fo reconciled, holding communion, profeffing, or marrying, were naturally dead. To act therefore conffiftently with themfelves, and at the fame time pay as much regard to the old hereditary line as their former refolutions would admit, they turned their eyes on the princefs Sophia, electrefs and duchefs dowager of Hanover, the moft accomplifhed princes of her agec. For, upon the impending extinction of the proteftant pofterity of Charles the firft, the old law of regal defcent directed them to recur to the defcendants of James the firft; and the princefs Sophia, being the daughter of Elizabeth queen of Bohemia, who was the youngeft daughter of James the firft, was the neareft of the antient blood royal, who was not incapacitated by profeffing the popifh religion. On her therefore, and the heirs of her body, being proteftants, the remainder of the crown, expectant on the death of king William and queen Anne withoug iffue, and fettled by ftatute 12 & 13 W. III. c. 2. And at the fame time it was enacted, that whofoever fhould hereafter come to the poffeffion of the crown, fhould join in the communion of the church of England as by law eftablifhed.
.{FS}
c Sandford, in his genealogical hiftory, publifhed A. D. 1677, fpeaking (page 535) of the princeffes Elizabeth, Louifa, and Sophia, daughters of the queen of Bohemia, fays, the firft was reputed the moft learned, the fecond the greateft arrift, and the laft one of the moft accomplifhed ladies in Europe.
.{FE}
C c
THIS
.P 210
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
THIS is the laft limitation of the crown that has been made by parliament: and thefe feveral actual limitations, from the time of Henry IV to the prefent, do clearly prove the power of the king and parliament to new-model or alter the fucceffion. And indeed it is now again made highly penal to difpute it: for by the ftatute 6 Ann. c. 7. it is enacted, that if any perfon malicioufly, advifedly, and directly, fhall 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 defcent thereof, he fhall be guilty of high treafon; or if he maintains the fame by only preaching, teaching, or advifed fpeaking, he fhall incur the penalties of a praemunire.
THE princefs Sophia dying before queen Anne, the inheritance thus limited defcended on her fon and heir king George the firft; and, having on the death of the queen taken effect in his perfon, from him it defcended to his late majefty king George the fecond; and from him to his grandfon and heir, our prefent gracious fovereign, king George the third.
HENCE it is eafy to collect, that the title to the crown is at prefent hereditary, though not quite fo abfolutely hereditary as formerly; and the common ftock or anceftor, from whom the defcent muft be derived, is alfo different. Formerly the common ftock was king Egbert; then William the conqueror; afterwards in James the firft's time the two common ftocks united, and fo continued till the vacancy of the throne in 1688: now it is the princefs Sophia, in whom the inheritance was vefted by the new king and parliament. Formerly the defcent was abfolute, and the crown went to the next heir without any reftriction: but now upon the new fettlement, the inheritance is conditional, being limited to fuch heirs only, of the body of the princefs Sophia, a are proteftant members of the church of England, and are married to none but proteftants.
AND
.P 211
The RIGHTS OF PERSONS
BOOK I.
Ch. 3.
AND in this s, I apprehend, the true conftitutional notion of the right of fucceffion to the imperial crown of thefe kingdoms. The extremes, between which it fteers, are each of them equally deftructive of thofe ends for which focieties were formed and are kept on foot. Where the magiftrate, upon every fucceffion, is elected by the people, and may by the exprefs provifion of the laws be depofed (if not punifhed) by his fubjects, this may found like the perfection of liberty, and look well enough when delineated on paper; but in practice will be ever productive of tumult, contention, and anarchy. And, on the other hand, divine indefeafible hereditary right, when coupled with the doctrine of unlimited paffive obedience, is furely of all conftitutions the moft thoroughly flavifh and dreadful. But when fuch an hereditary right, as our laws have created and vefted in the royal ftock, is clofely interwoven with thofe liberties, which, we have feen in a former chapter, are equally the inheritance of the jubject; this union will form a conftitution, in theory the moft beautiful of any, in practice the moft approved, and, I truft, in duration the moft permanent. It was the duty of an expounder of our laws to lay this conftitution before the ftudent in it's true and genuine light: it is the duty of every good Englifhman to underftand, to revere, to defend it.
C c 2