HENRY the eighth, the issue of this 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 25 Hen. VIII. c. 12. which recites the
mischiefs, which have and may ensue by disputed titles, because no
perfect and substantial provision hath been made by law concerning the
succession; and then enacts, that the crown shall be entailed to his
majesty, and the sons or heirs males of his body; and in default of
such sons to the lady Elizabeth (who is declared to be the 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 hath
been accustomed and ought 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 for ever. This single statute is an ample proof of all the four
positions we at first set out with.
BUT, upon the king's divorce from Ann Boleyn, this statute was, with
regard to the settlement of the crown, repealed by statute 28 Hen.
VIII. c. 7. 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 35 Hen. VIII. c. 1. 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 1
Mar. p. 2. c. 1. queen Mary's hereditary right to the throne is
acknowleged and recognized in these words: "the crown of these realms
is most lawfully, justly, and rightly _descended_ and come to the
queen's highness 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 statute which settles the preliminaries of
that match[t], the hereditary right to the crown is thus asserted and
declared: "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." Which determination of the parliament, that the
succession _shall_ continue in the usual course, seems tacitly to
imply a power of new-modelling and altering it, in case the
legislature had thought proper.
[Footnote t: 1 Mar. p. 2. c. 2.]
ON queen Elizabeth's accession, her right is recognized in still
stronger terms than her sister's; the parliament acknowleging[u],
"that the queen's highness is, and in very deed and of most mere right
ought to be, by the laws of God, and the laws and statutes of this
realm, our most lawful and rightful sovereign liege lady and queen;
and that her highness is rightly, lineally, 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."
And in the same reign, by statute 13 Eliz. c. 1. we find the right of
parliament to direct the succession of the crown asserted in the most
explicit words. "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,
with 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, shall during the life of the queen be guilty of high
treason; and after her decease shall be guilty of a misdemesnor, and
forfeit his goods and chattels."
[Footnote u: Stat. 1 Eliz. c. 3.]
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
the sixth of Scotland, and of England the first, was the lineal
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 lineal 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 formerly observed,
Margaret the sister of Edgar Atheling, the daughter of Edward the
outlaw, and granddaughter of king Edmund Ironside, was the person in
whom the hereditary right 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 the first was the direct lineal heir, and therefore
united in his person every possible claim by hereditary right to the
English, as well as 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
could deduce an hereditary title for more than eight hundred years,
should easily be taught by the flatterers of the times to believe
there was something divine in this right, and that the finger of
providence was visible in it's 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 1
Jac. I. c. 1. did "recognize and acknowlege, that immediately upon the
dissolution and decease of Elizabeth late queen of England, the
imperial crown thereof did by inherent birthright, and lawful and
undoubted succession, descend and come to his most excellent majesty,
as being lineally, justly, and lawfully, next and sole heir of the
blood royal of this realm." Not a word here of any right immediately
derived from heaven: which, if it existed any where, must be sought
for among the _aborigines_ of the island, the antient Britons; among
whose princes indeed some have gone to search it for him[w].
[Footnote w: Elizabeth of York, the mother of queen Margaret of
Scotland, was heiress of the house of Mortimer. And Mr Carte observes,
that the house of Mortimer, in virtue of it's descent from Gladys only
sister to Lewellin ap Jorweth the great, had the true right to the
principality of Wales. iii. 705.]
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 the
first 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. The confusion, instability, and madness, which
followed the fatal catastrophe of that pious and unfortunate prince,
will be a standing argument in favour 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 both houses[x],
they declared, "that, according to their duty and allegiance, they did
heartily, joyfully, and unanimously acknowlege and proclaim, that
immediately upon the decease 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 the second, as being lineally, justly, and lawfully,
next heir of the blood royal of this realm: and thereunto they most
humbly and faithfully did submit and oblige themselves, their heirs
and posterity for ever."
[Footnote x: Com. Journ. 8 May, 1660.]
THUS I think it clearly appears, from the highest authority this
nation is acquainted with, that the crown of England hath 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 raised such a ferment in the latter end of the reign of king
Charles the second. It is well known, that the purport 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 it 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: 1. That the crown was universally acknowleged to be
hereditary; and the inheritance indefeasible unless by parliament:
else it had been needless to prefer such a bill. 2. That the
parliament had a power to have defeated the inheritance: else such a
bill had been ineffectual. The commons acknowleged the hereditary
right then subsisting; and the lords did not dispute the power, but
merely the propriety, of an exclusion. However, as the bill took no
effect, king James the second 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 in 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
defeazance 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[y] came to this
resolution; "that king James the second, having endeavoured 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." 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 heptarchy in king Egbert almost nine
hundred. The facts themselves thus appealed to, the king's endeavours
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 all 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 solemnly determined, in a full parliamentary convention
representing the whole society. The reasons upon which they decided
may be found at large in the parliamentary 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
enquiry farther, than 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 distracted the state, but at length are all
happily extinguished. I therefore rather chuse to consider this great
political measure, upon the solid footing of authority, than to reason
in it's favour from it's 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 inexpedient. Whereas, our
ancestors having most indisputably a competent jurisdiction to decide
this great and important question, and having in fact decided it, it
is 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.
[Footnote y: Com. Journ. 7 Feb. 1688.]
BUT, while we rest this fundamental transaction, in point of
authority, upon grounds the least liable to cavil, we are bound both
in justice and gratitude to add, that it was conducted with a temper
and moderation which naturally arose from it's equity; that, however
it might in some respects go beyond the letter of our antient laws,
(the reason of which will more fully appear hereafter[z]) it was
agreeable to the spirit of our constitution, and the rights of human
nature; and that though in other points (owing to the peculiar
circumstances of things and persons) it was not altogether so perfect
as might have been wished, yet from thence a new aera commenced, in
which the bounds of prerogative and liberty have been better defined,
the principles of government more thoroughly examined and understood,
and the rights of the subject more explicitly guarded by legal
provisions, than in any other period of the English history. In
particular, it is worthy observation that the convention, in this
their judgment, avoided with great wisdom the wild extremes into 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[a]: which would have reduced the society almost
to a state of nature; would have levelled all distinctions of honour,
rank, offices, and property; would have annihilated the sovereign
power, and in consequence have repealed all positive laws; and would
have left the people at liberty to have erected a new system of state
upon a new foundation of polity. They therefore very prudently voted
it to amount to no more than an abdication of the government, and a
consequent vacancy of the throne; whereby the government was allowed
to subsist, though the executive magistrate was gone, and the kingly
office to remain, though king James was no longer king. And thus the
constitution was kept intire; which upon every sound principle of
government must otherwise have fallen to pieces, had so principal and
constituent a part as the royal authority been abolished, or even
suspended.
[Footnote z: See chapter 7.]
[Footnote a: on Gov. p. 2. c. 19.]
THIS single postulatum, the vacancy of the throne, being once
established, the rest that was then done followed almost of course.
For, if the throne be at any time vacant (which may happen by other
means besides that of abdication; as if all the bloodroyal should
fail, without any successor appointed by parliament;) if, I say, a
vacancy by any means whatsoever should happen, the right of disposing
of this vacancy seems naturally to result to the lords and commons,
the trustees and representatives of the nation. For there are no other
hands in which it can so properly be intrusted; and there is a
necessity of it's being intrusted somewhere, else the whole frame of
government must be dissolved and perish. The lords and commons having
therefore determined this main fundamental article, that there was a
vacancy of the throne, they proceeded to fill up that vacancy in such
manner as they judged the most proper. And this was done by their
declaration of 12 February 1688[b], in the following manner: "that
William and Mary, prince and princess of Orange, be, and be declared
king and queen, to hold the crown and royal dignity during their
lives, and the life of the survivor of them; and that the sole and
full exercise of the regal power be only in, and executed by, the said
prince of Orange, in the names of the said prince and princess, during
their joint lives; and after their deceases the said crown and royal
dignity to be to the heirs of the body of the said princess; and for
default of such issue to the princess Anne of Denmark and the heirs of
her body; and for default of such issue to the heirs of the body of
the said prince of Orange."
[Footnote b: Com. Journ. 12 Feb. 1688.]
PERHAPS, upon the principles before established, the convention might
(if they pleased) have vested the regal dignity in a family intirely
new, and strangers to the royal blood: but they were too well
acquainted with the benefits of hereditary succession, and the
influence which it has by custom over the minds of the people, to
depart any farther from the antient line than temporary necessity and
self-preservation required. They therefore settled the crown, first on
king William and queen Mary, king James's eldest daughter, for their
_joint_ lives; then on the survivor of them; and then on the issue of
queen Mary: upon failure of such issue, it was limited to the princess
Anne, king James's second daughter, and her issue; and lastly, on
failure of that, to the issue of king William, who was the grandson of
Charles the first, and nephew as well as son in law of king James the
second, being the son of Mary his only sister. This settlement
included all the protestant posterity of king Charles I, except such
other issue as king James might at any time have, which was totally
omitted through fear of a popish succession. And this order of
succession took effect accordingly.
THESE three princes therefore, king William, queen Mary, and queen
Anne, did not take the crown by hereditary right or _descent_, but by
way of donation or _purchase_, as the lawyers call it; by which they
mean any method of acquiring an estate otherwise than by descent. The
new settlement did not merely consist in excluding king James, and the
person pretended to be prince of Wales, and then suffering the crown
to descend in the old hereditary chanel: for the usual course of
descent was in some instances broken through; and yet the convention
still kept it in their eye, and paid a great, though not total, regard
to it. Let us see how the succession would have stood, if no
abdication had happened, and king James had left no other issue than
his two daughters queen Mary and queen Anne. It would have stood thus:
queen Mary and her issue; queen Anne and her issue; king William and
his issue. But we may remember, that queen Mary was only nominally
queen, jointly with her husband king William, who alone had the regal
power; and king William was absolutely preferred to queen Anne, though
his issue was postponed to hers. Clearly therefore these princes were
successively in possession of the crown by a title different from the
usual course of descent.
IT was towards the end of king William's reign, when all hopes of any
surviving issue from any of these princes died with the duke of
Glocester, that the king and parliament thought it necessary again to
exert their power of limiting and appointing the succession, in order
to prevent another vacancy of the throne; which must have ensued upon
their deaths, as no farther provision was made at the revolution, than
for the issue of king William, queen Mary, and queen Anne. The
parliament had previously by the statute of 1 W. & M. st. 2. c. 2.
enacted, that every person who should be reconciled to, or hold
communion with, the see of Rome, should profess the popish religion,
or should marry a papist, should be excluded and for ever incapable to
inherit, possess, or enjoy, the crown; and that in such case the
people should be absolved from their allegiance, and the crown should
descend to such persons, being protestants, as would have inherited
the same, in case the person so reconciled, holding communion,
professing, or marrying, were naturally dead. To act therefore
consistently with themselves, and at the same time pay as much regard
to the old hereditary line as their former resolutions would admit,
they turned their eyes on the princess Sophia, electress and duchess
dowager of Hanover, the most accomplished princess of her age[c]. For,
upon the impending extinction of the protestant posterity of Charles
the first, the old law of regal descent directed them to recur to the
descendants of James the first; and the princess Sophia, being the
daughter of Elizabeth queen of Bohemia, who was the youngest daughter
of James the first, was the nearest of the antient blood royal, who
was not incapacitated by professing the popish religion. On her
therefore, and the heirs of her body, being protestants, the remainder
of the crown, expectant on the death of king William and queen Anne
without issue, was settled by statute 12 & 13 W. III. c. 2. And at the
same time it was enacted, that whosoever should hereafter come to the
possession of the crown, should join in the communion of the church of
England as by law established.
[Footnote c: Sandford, in his genealogical history, published _A.D._
1677, speaking (page 535) of the princesses Elizabeth, Louisa, and
Sophia, daughters of the queen of Bohemia, says, the first was reputed
the most learned, the second the greatest artist, and the last one of
the most accomplished ladies in Europe.]
THIS is the last limitation of the crown that has been made by
parliament: and these several actual limitations, from the time of
Henry IV to the present, do clearly prove the power of the king and
parliament to new-model or alter the succession. And indeed it is now
again made highly penal to dispute it: for by the statute 6 Ann. c. 7.
it is enacted, that if any person maliciously, advisedly, and
directly, shall maintain by writing or printing, that the kings of
this realm with the authority of parliament are not able to make laws
to bind the crown and the descent thereof, he shall be guilty of high
treason; or if he maintains the same by only preaching, teaching, or
advised speaking, he shall incur the penalties of a praemunire.
THE princess Sophia dying before queen Anne, the inheritance thus
limited descended on her son and heir king George the first; and,
having on the death of the queen taken effect in his person, from him
it descended to his late majesty king George the second; and from him
to his grandson and heir, our present gracious sovereign, king George
the third.
HENCE it is easy to collect, that the title to the crown is at present
hereditary, though not quite so absolutely hereditary as formerly; and
the common stock or ancestor, from whom the descent must be derived,
is also different. Formerly the common stock was king Egbert; then
William the conqueror; afterwards in James the first's time the two
common stocks united, and so continued till the vacancy of the throne
in 1688: now it is the princess Sophia, in whom the inheritance was
vested by the new king and parliament. Formerly the descent was
absolute, and the crown went to the next heir without any restriction:
but now, upon the new settlement, the inheritance is conditional,
being limited to such heirs only, of the body of the princess Sophia,
as are protestant members of the church of England, and are married to
none but protestants.
AND in this due medium consists, I apprehend, the true constitutional
notion of the right of succession to the imperial crown of these
kingdoms. The extremes, between which it steers, are each of them
equally destructive of those ends for which societies were formed and
are kept on foot. Where the magistrate, upon every succession, is
elected by the people, and may by the express provision of the laws be
deposed (if not punished) by his subjects, this may sound like the
perfection of liberty, and look well enough when delineated on paper;
but in practice will be ever productive of tumult, contention, and
anarchy. And, on the other hand, divine indefeasible hereditary right,
when coupled with the doctrine of unlimited passive obedience, is
surely of all constitutions the most thoroughly slavish and dreadful.
But when such an hereditary right, as our laws have created and vested
in the royal stock, is closely interwoven with those liberties, which,
we have seen in a former chapter, are equally the inheritance of the
subject; this union will form a constitution, in theory the most
beautiful of any, in practice the most approved, and, I trust, in
duration the most permanent. It was the duty of an expounder of our
laws to lay this constitution before the student in it's true and
genuine light: it is the duty of every good Englishman to understand,
to revere, to defend it.
CHAPTER THE FOURTH.
OF THE KING'S ROYAL FAMILY.
THE first and most considerable branch of the king's royal family,
regarded by the laws of England, is the queen.
THE queen of England is either queen _regent_, queen _consort_, or
queen _dowager_. The queen _regent_, _regnant_, or _sovereign_, is she
who holds the crown in her own right; as the first (and perhaps the
second) queen Mary, queen Elizabeth, and queen Anne; and such a one
has the same powers, prerogatives, rights, dignities, and duties, as
if she had been a king. This was observed in the entrance of the last
chapter, and is expressly declared by statute 1 Mar. I. st. 3. c. 1.
But the queen _consort_ is the wife of the reigning king; and she by
virtue of her marriage is participant of divers prerogatives above
other women[a].
[Footnote a: Finch. L. 86.]
AND, first, she is a public person, exempt and distinct from the king;
and not, like other married women, so closely connected as to have
lost all legal or separate existence so long as the marriage
continues. For the queen is of ability to purchase lands, and to
convey them, to make leases, to grant copyholds, and do other acts of
ownership, without the concurrence of her lord; which no other married
woman can do[b]: a privilege as old as the Saxon aera[c]. She is also
capable of taking a grant from the king, which no other wife is from
her husband; and in this particular she agrees with the _augusta_, or
_piissima regina conjux divi imperatoris_ of the Roman laws; who,
according to Justinian[d], was equally capable of making a grant to,
and receiving one from, the emperor. The queen of England hath
separate courts and officers distinct from the king's, not only in
matters of ceremony, but even of law; and her attorney and solicitor
general are intitled to a place within the bar of his majesty's
courts, together with the king's counsel[e]. She may also sue and be
sued alone, without joining her husband. She may also have a separate
property in goods as well as lands, and has a right to dispose of them
by will. In short, she is in all legal proceedings looked upon as a
feme sole, and not as a feme covert; as a single, not as a married
woman[f]. For which the reason given by Sir Edward Coke is this:
because the wisdom of the common law would not have the king (whose
continual care and study is for the public, and _circa ardua regni_)
to be troubled and disquieted on account of his wife's domestic
affairs; and therefore it vests in the queen a power of transacting
her own concerns, without the intervention of the king, as if she was
an unmarried woman.
[Footnote b: 4 Rep. 23.]
[Footnote c: Seld. _Jan. Angl._ 1. 42.]
[Footnote d: _Cod._ 5. 16. 26.]
[Footnote e: Selden tit. hon. 1. 6. 7.]
[Footnote f: Finch. L. 86. Co. Litt. 133.]
THE queen hath also many exemptions, and minute prerogatives. For
instance: she pays no toll[g]; nor is she liable to any amercement in
any court[h]. But in general, unless where the law has expressly
declared her exempted, she is upon the same footing with other
subjects; being to all intents and purposes the king's subject, and
not his equal: in like manner as, in the imperial law, "_augusta
legibus soluta non est_[i]."
[Footnote g: Co. Litt. 133.]
[Footnote h: Finch. L. 185.]
[Footnote i: _Ff._ 1. 3. 31.]
THE queen hath also some pecuniary advantages, which form her a
distinct revenue: as, in the first place, she is intitled to an
antient perquisite called queen-gold or _aurum reginae_; which is a
royal revenue, belonging to every queen consort during her marriage
with the king, and due from every person who hath made a voluntary
offering or fine to the king, amounting to ten marks or upwards, for
and in consideration of any privileges, grants, licences, pardons, or
other matter of royal favour conferred upon him by the king: and it is
due in the proportion of one tenth part more, over and above the
intire offering or fine made to the king; and becomes an actual debt
of record to the queen's majesty by the mere recording the fine[k].
As, if an hundred marks of silver be given to the king for liberty to
take in mortmain, or to have a fair, market, park, chase, or free
warren; there the queen is intitled to ten marks in silver, or (what
was formerly an equivalent denomination) to one mark in gold, by the
name of queen-gold, or _aurum reginae_[l]. But no such payment is due
for any aids or subsidies granted to the king in parliament or
convocation; nor for fines imposed by courts on offenders, against
their will; nor for voluntary presents to the king, without any
consideration moving from him to the subject; nor for any sale or
contract whereby the present revenues or possessions of the crown are
granted away or diminished[m].
[Footnote k: Pryn. _Aur. Reg._ 2.]
[Footnote l: 12 Rep. 21. 4 Inst. 358.]
[Footnote m: _Ibid._ Pryn. 6. Madox. hist. exch. 242.]
THE revenue of our antient queens, before and soon after the conquest,
seems to have consisted in certain reservations or rents out of the
demesne lands of the crown, which were expressly appropriated to her
majesty, distinct from the king. It is frequent in domesday-book,
after specifying the rent due to the crown, to add likewise the
quantity of gold or other renders reserved to the queen[n]. These were
frequently appropriated to particular purposes; to buy wool for her
majesty's use[o], to purchase oyl for her lamps[p], or to furnish her
attire from head to foot[q], which was frequently very costly, as one
single robe in the fifth year of Henry II stood the city of London in
upwards of fourscore pounds[r]. A practice somewhat similar to that of
the eastern countries, where whole cities and provinces were
specifically assigned to purchase particular parts of the queen's
apparel[s]. And, for a farther addition to her income, this duty of
queen-gold is supposed to have been originally granted; those matters
of grace and favour, out of which it arose, being frequently obtained
from the crown by the powerful intercession of the queen. There are
traces of it's payment, though obscure ones, in the book of domesday
and in the great pipe-roll of Henry the first[t]. In the reign of
Henry the second the manner of collecting it appears to have been well
understood, and it forms a distinct head in the antient dialogue of
the exchequer[u] written in the time of that prince, and usually
attributed to Gervase of Tilbury. From that time downwards it was
regularly claimed and enjoyed by all the queen consorts of England
till the death of Henry VIII; though after the accession of the Tudor
family the collecting of it seems to have been much neglected: and,
there being no queen consort afterwards till the accession of James I,
a period of near sixty years, it's very nature and quantity became
then a matter of doubt: and, being referred by the king to his then
chief justices and chief baron, their report of it was so very
unfavorable[w], that queen Anne (though she claimed it) yet never
thought proper to exact it. In 1635, 11 Car. I, a time fertile of
expedients for raising money upon dormant precedents in our old
records (of which ship-money was a fatal instance) the king, at the
petition of his queen Henrietta Maria, issued out his writ for levying
it; but afterwards purchased it of his consort at the price of ten
thousand pounds; finding it, perhaps, too trifling and troublesome to
levy. And when afterwards, at the restoration, by the abolition of the
military tenures, and the fines that were consequent upon them, the
little that legally remained of this revenue was reduced to almost
nothing at all, in vain did Mr Prynne, by a treatise which does honour
to his abilities as a painful and judicious antiquarian, endeavour to
excite queen Catherine to revive this antiquated claim.
[Footnote n: _Bedefordscire. Maner. Lestone redd. per annum xxii lib.
& c: ad opus reginae ii uncias auri.----Herefordscire. In Lene, &c,
consuetud. ut praepositus manerii veniente domina sua (regina) in
maner. praesentaret ei xviii oras denar. ut esset ipsa laeto animo._
Pryn. Append. to _Aur. Reg._ 2, 3.]
[Footnote o: _causa coadunandi lanam reginae._ Domesd. _ibid._]
[Footnote p: _Civitas Lundon. Pro oleo ad lampad. reginae._ _Mag. rot.
pip. temp. Hen. II. ibid._]
[Footnote q: _Vicecomes Berkescire, xvi l. pro cappa reginae._ (_Mag.
rot. pip. 19--22 Hen. II. ibid._) _Civitas Lund. cordubanario reginae
xx s._ _Mag. Rot. 2 Hen. II._ Madox hist. exch. 419.]
[Footnote r: _Pro roba ad opus reginae, quater xx l. & vi s. & viii
d._ _Mag. Rot. 5 Hen. II. ibid._ 250.]
[Footnote s: _Solere aiunt barbaros reges Persarum ac
Syrorum--uxoribus civitates attribuere, hoc modo; haec civitas mulieri
redimiculum praebeat, haec in collum, haec in crines, &c._ _Cic. in
Verrem._ _lib._ 3. _c._ 33.]
[Footnote t: See Madox _Disceptat. epistolar._ 74. Pryn. _Aur. Regin._
Append. 5.]
[Footnote u: _lib._ 2. _c._ 26.]
[Footnote w: Mr Prynne, with some appearance of reason, insinuates,
that their researches were very superficial. _Aur. Reg._ 125.]
ANOTHER antient perquisite belonging to the queen consort, mentioned
by all our old writers[x], and, therefore only, worthy notice, is
this: that on the taking of a whale on the coasts, which is a royal
fish, it shall be divided between the king and queen; the head only
being the king's property, and the tail of it the queen's. "_De
sturgione observetur, quod rex illum habebit integrum: de balena vero
sufficit, si rex habeat caput, et regina caudam._" The reason of this
whimsical division, as assigned by our antient records[y], was, to
furnish the queen's wardrobe with whalebone.
[Footnote x: Bracton, _l._ 3. _c._ 3. Britton, _c._ 17. Fleta, _l._ 1.
_c._ 45 & 46.]
[Footnote y: Pryn. _Aur. Reg._ 127.]
BUT farther: though the queen is in all respects a subject, yet, in
point of the security of her life and person, she is put on the same
footing with the king. It is equally treason (by the statute 25 Edw.
III.) to compass or imagine the death of our lady the king's
companion, as of the king himself: and to violate, or defile, the
queen consort, amounts to the same high crime; as well in the person
committing the fact, as in the queen herself, if consenting. A law of
Henry the eighth[z] made it treason also for any woman, who was not a
virgin, to marry the king without informing him thereof. But this law
was soon after repealed; it trespassing too strongly, as well on
natural justice, as female modesty. If however the queen be accused
of any species of treason, she shall (whether consort or dowager) be
tried by the house of peers, as queen Ann Boleyn was in 28 Hen. VIII.
[Footnote z: Stat. 33 Hen. VIII. c. 21.]
THE husband of a queen regnant, as prince George of Denmark was to
queen Anne, is her subject; and may be guilty of high treason against
her: but, in the instance of conjugal fidelity, he is not subjected to
the same penal restrictions. For which the reason seems to be, that,
if a queen consort is unfaithful to the royal bed, this may debase or
bastardize the heirs to the crown; but no such danger can be
consequent on the infidelity of the husband to a queen regnant.
A QUEEN _dowager_ is the widow of the king, and as such enjoys most of
the privileges belonging to her as queen consort. But it is not high
treason to conspire her death; or to violate her chastity, for the
same reason as was before alleged, because the succession to the crown
is not thereby endangered. Yet still, _pro dignitate regali_, no man
can marry a queen dowager without special licence from the king, on
pain of forfeiting his lands and goods. This sir Edward Coke[a] tells
us was enacted in parliament in 6 Hen. IV, though the statute be not
in print. But she, though an alien born, shall still be intitled to
dower after the king's demise, which no other alien is[b]. A queen
dowager, when married again to a subject, doth not lose her regal
dignity, as peeresses dowager do their peerage when they marry
commoners. For Katherine, queen dowager of Henry V, though she married
a private gentleman, Owen ap Meredith ap Theodore, commonly called
Owen Tudor; yet, by the name of Katherine queen of England, maintained
an action against the bishop of Carlisle. And so the queen of Navarre
marrying with Edmond, brother to king Edward the first, maintained an
action of dower by the name of queen of Navarre[c].
[Footnote a: 2 Inst. 18.]
[Footnote b: Co. Litt. 31 _b._]
[Footnote c: 2 Inst. 50.]
THE prince of Wales, or heir apparent to the crown, and also his royal
consort, and the princess royal, or eldest daughter of the king, are
likewise peculiarly regarded by the laws. For, by statute 25 Edw. III,
to compass or conspire the death of the former, or to violate the
chastity of either of the latter, are as much high treason, as to
conspire the death of the king, or violate the chastity of the queen.
And this upon the same reason, as was before given; because the prince
of Wales is next in succession to the crown, and to violate his wife
might taint the blood royal with bastardy: and the eldest daughter of
the king is also alone inheritable to the crown, in failure of issue
male, and therefore more respected by the laws than any of her younger
sisters; insomuch that upon this, united with other (feodal)
principles, while our military tenures were in force, the king might
levy an aid for marrying his eldest daughter, and her only. The heir
apparent to the crown is usually made prince of Wales and earl of
Chester, by special creation, and investiture; but, being the king's
eldest son, he is by inheritance duke of Cornwall, without any new
creation[d].
[Footnote d: 8 Rep. 1. Seld. titl. of hon. 2. 5.]
THE younger sons and daughters of the king, who are not in the
immediate line of succession, are little farther regarded by the laws,
than to give them precedence before all peers and public officers as
well ecclesiastical as temporal. This is done by the statute 31 Hen.
VIII. c. 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
Coke[e] explains to signify grandson or _nepos_) or 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 the 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[f]. And this may suffice for
the notice, taken by law, of his majesty's royal family.
[Footnote e: 4 Inst. 362.]
[Footnote f: Fortesc. Al. 401-440.]
CHAPTER THE FIFTH.
OF THE COUNCILS BELONGING TO THE KING.
THE third point of view, in which we are to consider the king, is with
regard to his councils. For, in order to assist him in the discharge
of his duties, the maintenance of his dignity, and the exertion of his
prerogative, the law hath assigned him a diversity of councils to
advise with.
1. THE first of these is the high court of parliament, whereof we have
already treated at large.
2. SECONDLY, the peers of the realm are by their birth hereditary
counsellors of the crown, and may be called together by the king to
impart their advice in all matters of importance to the realm, either
in time of parliament, or, which hath been their principal use, when
there is no parliament in being[a]. Accordingly Bracton[b], speaking
of the nobility of his time, says they might properly be called
"_consules, a consulendo; reges enim tales sibi associant ad
consulendum_." And in our law books[c] it is laid down, that peers are
created for two reasons; 1. _Ad consulendum_, 2. _Ad defendendum
regem_: for which reasons the law gives them certain great and high
privileges; such as freedom from arrests, &c, even when no parliament
is sitting: because the law intends, that they are always assisting
the king with their counsel for the commonwealth; or keeping the realm
in safety by their prowess and valour.
[Footnote a: Co. Litt. 110.]
[Footnote b: _l._ 1. _c._ 8.]
[Footnote c: 7 Rep. 34. 9 Rep. 49. 12 Rep. 96.]
INSTANCES of conventions of the peers, to advise the king, have been
in former times very frequent; though now fallen into disuse, by
reason of the more regular meetings of parliament. Sir Edward Coke[d]
gives us an extract of a record, 5 Hen. IV, concerning an exchange of
lands between the king and the earl of Northumberland, wherein the
value of each was agreed to be settled by advice of parliament (if any
should be called before the feast of St Lucia) or otherwise by advice
of the grand council (of peers) which the king promises to assemble
before the said feast, in case no parliament shall be called. Many
other instances of this kind of meeting are to be found under our
antient kings: though the formal method of convoking them had been so
long left off, that when king Charles I in 1640 issued out writs under
the great seal to call a great council of all the peers of England to
meet and attend his majesty at York, previous to the meeting of the
long parliament, the earl of Clarendon[e] mentions it as a new
invention, not before heard of; that is, as he explains himself, so
old, that it had not been practiced in some hundreds of years. But,
though there had not so long before been an instance, nor has there
been any since, of assembling them in so solemn a manner, yet, in
cases of emergency, our princes have at several times thought proper
to call for and consult as many of the nobility as could easily be got
together: as was particularly the case with king James the second,
after the landing of the prince of Orange; and with the prince of
Orange himself, before he called that convention parliament, which
afterwards called him to the throne.
[Footnote d: 1 Inst. 110.]
[Footnote e: Hist. b. 2.]
BESIDES this general meeting, it is usually looked upon to be the
right of each particular peer of the realm, to demand an audience of
the king, and to lay before him, with decency and respect, such
matters as he shall judge of importance to the public weal. And
therefore, in the reign of Edward II, it was made an article of
impeachment in parliament against the two Hugh Spencers, father and
son, for which they were banished the kingdom, "that they by their
evil covin would not suffer the great men of the realm, the king's
good counsellors, to speak with the king, or to come near him; but
only in the presence and hearing of the said Hugh the father and Hugh
the son, or one of them, and at their will, and according to such
things as pleased them[f]."
[Footnote f: 4 Inst. 53.]
3. A THIRD council belonging the king, are, according to sir Edward
Coke[g], his judges of the courts of law, for law matters. And this
appears frequently in our statutes, particularly 14 Ed. III. c. 5. and
in other books of law. So that when the king's council is mentioned
generally, it must be defined, particularized, and understood,
_secundum subjectam materiam_; and, if the subject be of a legal
nature, then by the king's council is understood his council for
matters of law; namely, his judges. Therefore when by statute 16 Ric.
II. c. 5. it was made a high offence to import into this kingdom any
papal bulles, or other processes from Rome; and it was enacted, that
the offenders should be attached by their bodies, and brought before
the king and his _council_ to answer for such offence; here, by the
expression of king's _council_, were understood the king's judges of his courts of justice, the subject matter being legal: this being the general way of interpreting the word, _council_[h]. |
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