ing the crown to defcend in the old hereditary channel: for the ufual courfe of descent was in fome inftances broken through; and yet the convention still kept it in their eye, and paid a great, though not total, regard to it. Let us fee how the fucceffion would have stood, 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 stood 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 husband king William, who alone had the regal power; and king William was perfonally preferred to queen Anne, though his iffue was poftponed to hers. Clearly therefore these princes were fucceffively in poffeffion 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 furviving iffue from any of these princes died with the duke of Gloucefter, that the king and parliament thought it neceffary again to exert their power of limiting and appointing the fucceffion, in order to prevent another vacancy of the throne; which must have enfued upon their deaths, as no farther provifion was made at the revolution, than for the iffue of queen Mary, queen Anne, and king William. The parliament had previously by the ftatute of 1 W. & M. ft. 2. c. 2. enacted, that every person who should be reconciled to, or hold communion with, the fee of Rome, fhould profefs the popish religion, or should marry a papist, fhould be excluded and be for ever incapable to inherit, poffefs, or enjoy the crown; and that in such case the people should be abfolved from their allegiance, and the crown should defcend to such persons, 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 confiftently with themselves, and at the same time pay as much regard to the old hereditary line as their [216] former refolutions would admit, they turned their eyes on the princefs Sophia, electress and dutchess dowager of Hanover,

the

the most accomplished princess of her aged. For, upon the impending extinction of the proteftant pofterity of Charles the first, the old law of regal defcent directed them to recur to the descendants of James the firft; and the princess Sophia, being the youngest daughter of Elizabeth queen of Bohemia, who was the daughter of James the first, was the nearest of the ancient blood royal, who was not incapacitated by profeffing the popish 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 without iflue, was fettled by ftatute 12 and 13 W.III. c. 2. And at the fame time it was enacted, that whofoever should hereafter come to the poffeflion of the crown should join in the communion of the church of England as by law eftablished.

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 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 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 treafon; or if he maintains the fame by only preaching, teaching, or advised speaking, he shall incur the penalties of a pramunire.

THE princess Sophia dying before queen Anne, the inheritance thus limited defcended on her fon 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 fecond; and from him to his grandson and heir, our present gracious fovereign, king George the third.

d Sandford in his genealogical history, published A. D. 1677, speaking (page 535) of the princeffes Elizabeth, Louisa, and Sophia, daughters of the queen of

Bohemia, fays, the first was reputed the most learned, the fecond the greatest artist, and the last one of the most accomplished ladies in Europe.

HENCE

HENCE it is eafy 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 alfo different. Formerly the common stock was king Egbert; then William the conqueror; afterwards in James the firft's time the two common stocks united, and fo continued till the vacancy of the throne in 1688: now it is the princess Sophia, in whom the inheritance was vefted 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 fettlement, the inheritance is conditional; being limited to fuch heirs only, of the body of the princefs Sophia, as are proteftant members of the church of England, and are married to none but proteftants.

AND in this due medium confifts, I apprehend, the true constitutional notion of the right of fucceffion to the imperial crown of these kingdoms. The extremes between which it fteers, are each of them equally deftructive of those 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 express provision of the laws be depofed (if not punished) 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 indefeasible hereditary right, when coupled with the doctrine of unlimited paffive obedience, is furely of all constitutions the most thoroughly flavish and dreadful. But when fuch 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 conftitution before the ftudent 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 "HE first and most confiderable 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 confort, or queen dowager. The queen regent, regnant, or fovereign, is the who holds the crown in her own right; as the first (and perhaps the fecond) queen Mary, queen Elizabeth, and queen Anne; and such a one has the fame 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 ftatute 1 Mar. I. ft. 3. C. I. (1) But the queen confort is the wife of the reigning king; and she, by virtue of her marriage, is participant of divers prerogatives above other women. a

AND, first, she is a public person, exempt and distinct from the king; and not, like other married women, fo closely

a Finch. L.86.

(1) Mary being the firft queen that had fat upon the English throne, this ftatute was paffed, as it declares, for "the extin "guishment of the doubt and folly of malicious and ignorant perfons," ," who might be induced to think that a queen could not exercise all the prerogatives of a king.

connected

:

connected as to have loft all legal or separate existence fo long as the marriage continues. For the queen is of ability to purchafe land, and to convey them, to make leafes, to grant copyholds, and do other acts of ownership, without the concurrence of her lord; which no other married woman can do a privilege as old as the Saxon æra. She is also capable of taking a grant from the king, which no other wife is from her husband; and in this particular fhe agrees with the Augufta, or piiffima regina conjux divi imperatoris of the Roman laws; who, according to Juftinian, was equally capable of making a grant to, and receiving one from, the [ 219 ] emperor. The queen of England hath feparate courts and offices distinct from the king's, not only in matters of ceremony, but even of law; and her attorney and folicitor general are entitled to a place within the bar of his majesty's courts, together with the king's counfels. She may likewise fue and be fued 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 fhort, she is in all legal proceedings looked upon as a feme fole, and not as a feme covert; as a fingle, not as a married woman'. For which the reason given by fir Edward Coke is this: because the wisdom of the common law would not have the king (whofe continual care and study is for the public, and circa ardua regni) to be troubled and disquieted on account of his wife's domeftic affairs; and therefore it vefts in the queen a power of transacting her own concerns, without the intervention of the king, as if she was an unmarried woman.

THE queen hath alfo many exemptions, and minute. prerogatives. For instance: fhe pays no tolls; nor is she liable to any amercement in any courth. But in general, unlefs where the law has exprefsly declared her exempted, he is upon the fame footing with other subjects; being to all in

b4 Rep. 23.

e. Seld. Jan. Angl. 1. 42.

• Cod. 5.16, 26.

• Seld. tit. hon. 1. 6. 7.

f Finch. L. 86. Co. Litt. 133.

8 Co. Litt. 133.

h Finch. L. 185.

tents