therefore these princes were successively in possession of the crown by a title different from the usual course of descent.

clusion.

st. 2, c 2.

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 queen Mary, queen Anne, and king William. The parliament had previously by the statute of 1 W. & M. st. 2, c. 2, enacted, that every person who should Act of exbe reconciled to, or hold communion with, the see of Rome, 1 W. & M. 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. 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 youngest daughter of Elizabeth queen of Bohemia, who was the [217] daughter of James the first, was the nearest of the ancient blood royal, who was not incapacitated by professing the popish religion. On her therefore, and the heirs of her 12&13 w.III. body, being protestants, the remainder of the crown, ex- the crown in pectant on the death of king William and queen Anne ants of the

Sanford 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

c. 2, limits

the descend

princess

reputed the most learned, the second Sophia, the greatest artist, and the last one

of the most accomplished ladies in
Europe.

Who suc

ceeded to

in the persons of

without issue, was settled by statute 12 & 13 Wm. III. c. 2. And at the same time it was enacted, that whosoever should hereafter come to the possession of the crown should join in the communion of the church of England as by law established.

This is the last limitation of the crown that has been made by parliament and these several actual limitations, from the time of Henry IV. to the present, do clearly prove the power of the king and parliament to new-model or alter the succession. And indeed it is now again made highly penal to dispute it for by the statute 6 Ann. c. 7. it is enacted, that if any person maliciously, advisedly, and directly, shall maintain by writing or printing, that the kings of this realm with the authority of parliament are not able to make laws to bind the crown and the descent thereof, he shall be guilty of high treason; or if he maintains the same by only preaching, teaching, or advised speaking, he shall incur the penalties of a præmunire.

The princess Sophia dying before queen Anne, the inhethe throne ritance 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 and her pre- majesty king George the second; from him to his grandson

George I. II.
III. IV.

William IV.

sent ma

jesty.

The com

mon stock is

and heir, king George the third; and from him to his sons George the fourth, and William the Fourth, who dying without issue, the inheritance descended to the grand-daughter of George the third, our present gracious sovereign.

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. Fornow in the merly 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 in the princess Sophia, in whom [218] the inheritance was vested by the new king and parliament.

princess So

phia.

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.

constituti

succession.

And in this due medium consists, I apprehend, the true The true constitutional notion of the right of succession to the onal right of 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 its true and genuine light: it is the duty of every good Englishman to understand, to revere, to defend it.

o o

CHAPTER THE FOURTH.

OF THE KING'S ROYAL FAMILY

[ 219 ]

THE first and most considerable branch of the king's The queen royal family, regarded by the laws of England, is the

is either regent, con

ager.

queen.

The queen of England is either queen regent, queen consort, or dow- sort, 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, queen Anne, and our present gracious sovereign; 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

[ 220 ]

The queen consort.

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, to convey them, or devise them, b to make leases, to grant copyholds, and do other acts of ownership, without the concurrence and during the lifetime of her lord; which no other married woman can do a privilege as old as the Saxon æra. She is also

a Finch. L. 86.

39 & 40 Geo. III. c. 88. s. 9.

4 Rep. 23.

Seld. Jan. Angl. 1. 42.

capable of taking a grant directly from the king, which no
other wife is from her husband; although she may do this
indirectly through the medium of the Statute of Uses: and
in this particular she agrees with the Augusta, or piissima
regina conjux divi imperatoris of the Roman laws: who,
according to Justinian,f 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 entitled to a place
within the bar of his majesty's courts, together with the
king's counsel. She may likewise sue and be sued alone,
without joining her husband. She may also have a sepa-
rate property in goods as well as lands, and has a right to
dispose of them by will. In short, she is in all legal pro-
ceedings looked upon as a feme sole, and not as a feme
covert; as a single, not as a married woman. 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.

tives.

exemp

The queen hath also many exemptions, and minute pre- Her exem rogatives. For instance: she pays no toll; nor is she preroga. liable to any amercement in any court. But in general, [ 221 ] 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."k

ary advan

The queen hath also some pecuniary advantages, which Her pecuniform her a distinct revenue: as, in the first place, she is en- tages. titled to an ancient perquisite called queen-gold, or aurum