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of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of his commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner.
A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to remain in his own country, so long as he pleases, and not to be driven from it, unless by the sentence of the law. The king, indeed, by his royal prerogative, may issue out his writ, ne exeat regnum, and prohibit any of his subjects from going into foreign parts without license. The law in this respect is so benignly and liberally construed for the subject's benefit, that, though within the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon public service, excepting soldiers and sailors, the nature of whose employment necessarily implies an exception; he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambassador. For this might, in reality, be no more than an honourable exile.
III. The third absolute right, inherent in every Englishman, is that of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without control or diminution, save only by the laws of the land. The great Charter, already detailed, has declared, that no freeman shall be disseised nor divested of his freehold, nor of his liberties, nor free customs, but by the judgment of his peers, or by the law of the land.
So great respect does the law of the land pay to private property, that it will not authorise the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through a private person's grounds, although it might perhaps be extensively beneficial to the public, yet the law permits no man, or set of men, to do this without the owner of the land's consent. In this and similar cases, the legislature alone can, and, indeed, frequently does, interpose and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full indemnification and equivalent for the injury thereby sustained. And even this is an exertion of power, in which the legislature indulges with caution, and which nothing but the legislature can perform.
In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights he declared, ascertained, and protected by the dead letter of the laws, (for the law is a dead letter till it is pronounced by the lips of a judge lawfully appointed to administer it,) if the Constitution had provided no other method to secure their actual enjoyment. It has,
therefore, established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights of personal security, personal liberty, and personal property.
1. The constitution, powers, and privileges of parliament, of which we have already treated at large in a preceding article.
2. The limitation of the king's prerogative, by bounds of his own concession, so certain and notorious, that it is impossible he should either mistake or legally exceed them.
3. A third subordinate right of every Englishman is, that of applying to the Courts of Justice for redress of injuries. Since, in England, the law is the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein.
4. If any uncommon injury, or infringement of the rights before mentioned, should happen, which the ordinary course of law is too defective to reach, there still remains another subordinate right, appertaining to every individual-the right of petitioning the king, or either house of Parliament, for the redress of grievances. Care only must be taken lest, under the pretence of petitioning, the subject be guilty of any riot, or tumult, as happened in the memorable parliament in 1640; and, to prevent this, it is provided by the statute 13th Car. II., that no petition. to the king or either house of Parliament, for any alteration in the church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace, or the major part of the grand jury, in the country; and in London, by the lord mayor, alderman, and common council; nor shall any petition be presented by more than ten persons at a time. But, under these regulations, it is declared by the statute 1st W. and M., that the subject hath a right to petition, and that all commitments and prosecutions for such petitioning are illegal.*
5. The fifth and last auxiliary right of the subject is, that of having arms for a man's defence, suitable to his condition and degree, and such as are allowed by law. Which is also declared by the same statute, 1st W. and M., and, indeed, it is a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of societies and laws are found insufficient to restrain the violence of oppression.
In these several articles consists British rights or liberties, liberties more generally talked of than thoroughly understood, and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness, on the one hand, or a pusillanimous indifference on the other.†
* See Bill of Rights.
+ Blackstone's Commentaries.
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 regnant, queen consort, or queen dowager. The queen regent, regnant, or sovereign, is she who holds the crown in her own right; 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.
And, first, she is a public person, exempt and distinct from the king; and is 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 has 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. She is also capable of taking a grant from the king, which no other wife is from her husband, The queen of England has separate courts and officers distinct from the king, 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 separate property in goods, as well as lands, and has a right to dispose of them by will. In short, in all legal proceedings she is looked upon as a femme sole, and not as a married woman.
The queen has also many exceptions and minute prerogatives. For instance, she pays no toll, nor is she liable to any amercement in any court. But in general, uniess when 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. She has also some pecuniary advantages which form her a distinct revenue.
But although the queen consort is in all respects a subject, yet in point of security of her life and person, she is put on the same footing with the king. It is equally treason 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. If, however, the queen be accused of any species of treason, she shall (whether consort or dowager) be tried by the peers of parliament. (25 Edward III.)
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 infidelity, he is not subject to the same penal retributions.
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 violate her chastity, for the same reason as was before alleged. Yet still, pro dignitate regali, no man can marry a queen dowager without special license from the king, on pain of forfeiting her land and goods. But she, though an alien born, shall still be entitled to dower after the king's demise, which no other alien is. A queen dow1 ager, when married again to a subject, doth not lose her regal dignity, as dowager peeresses do their peerage when they marry commoners. Catharine, queen dowager of Henry V. married Owen Tudor, a private gentleman; and yet maintained an action against the bishop of Carlisle, by the name of Catharine, queen of England.
The prince of Wales, or heir apparent to the crown, and also his royal consort, and the princess royal, or the king's eldest daughter, are likewise peculiarly regarded by the laws. For by statute 25 Edward. 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 to violate the chastity of the queen. The heir apparent to the crown is usually made prince of Wales and earl of Chester, by special creation and investiture; but being the king's eldest son, he is by inheritance duke of Cornwall, without any new creation.
The rest of the royal family may be considered in two different lights, according to the different senses in which the term royal family is used. The larger sense, includes all those who are by any possibility inheritable to the crown, which since the revolution and act of settlement, means the protestant issue of the princess Sophia. The more confined sense includes only those, who are within a certain degree of propinquity to the reigning prince, and to whom therefore the law pays an extraordinary regard and respect but after that degree is past, they fall into the rank of ordinary subjects, and are seldom considered any farther, unless called to the suc cession upon failure of the nearer line.
And now by statute 12 Geo. .III. no descendant of the body of Geo. II. (other than the issue of princesses married into foreign families) is capable of contracting matrimony without the king's previous consent signified under the great seal; and any marriage contracted without such consent is void. Provided, that such of the said descendants, as are above the age of twenty-five, may, after a twelvemonth's notice given to the king's privy council, contract and solemnize marriage without the consent of the crown; unless both houses of parliament shall, before the expiration of the said year, expressly declare their disapprobation of such intended marriage.
The royal family is subject to pay taxes, unless they are expressly ex
empted, which in every tax bill is always done. But the peculiar privileges of the royal family are greatly counterbalanced by the legal restraints laid upon their marriages.
The queen was anciently entitled to certain perquisites, called the queen's gold, to purchase oil, as it was quaintly said, and attire for her person. Another of the queen's perquisites was formerly the right to the half of any whale found on the coast, which was for that reason called a royal fish. The head belonged to the king and the tail to the queen; and the reason assigned by old writers for this whimsical division was "to furnish the queen's wardrobe." But of late years these rights have not been exacted.*
OF THE KING.
THE supreme executive power of these kingdoms is vested by our laws in a single person, the king or queen for it matters not to which sex the crown descends; but the person entitled to it, whether male or female, is immediately invested with all the ensigns, rights, and prerogatives of sovereign power.
"The grand fundamental maxim," says Blackstone, "upon which the jus corona, or right of succession to the throne of these kingdoms depends, I take to be this: that the crown is by common law and constitutional custom, hereditary, but that the right of inheritance may from time to time be changed or limited by act of parliament; under which limitations the crown still continues hereditary.''
1. First, it is hereditary, or descendible to the next heir, on the death or demise of the last proprietor.
2. But, secondly, as to the particular mode of inheritance, it in general corresponds with the feudal path of descents, chalked out by the common law in the succession to landed estates; yet with some material exceptions. Like estates; the crown will descend lineally to the issue of the reigning monarch, as it did from king John to Richard II., through a regular pedigree of six lineal generations, and from George II. to his grandson George III. As in common descents, the preference of males to females, and the rights of primogeniture among the males, are strictly adhered to. Like lands or tenements, the crown, on failure of the male line, descends to the issue female. But, among the females, the crown descends by right of primogeniture to the eldest daughter only and her issue, and not as in