Sophia, being the youngest daughter of Elizabeth queen of Bohemia, who was the 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. 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 prœmunire. 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. [217] 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 de rived, 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 I 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. NOTE OF THE AMERICAN EDITOR TO CHAPTER III. (12) Henry VII.'s right, which indeed was none at all, page 205. The title of Henry VII. by descent from Edward III., and his relation to Richard III., whom he overthrew and succeeded, is more explicitly stated by Blackstone himself. (Post, book 2, page 207.) (12 a) Hereditary monarchy, page 425. Instead of commenting on the manifest exaggeration of the hereditary element in the succession to the English crown as stated by Blackstone in this chapter, I would refer the student to the excellent little work of Professor E. A. Freeman, of Oxford, on the Growth of the English Constitution, ch. i. pp. 24-40. (Lond. 1872.) Professor Freeman has perhaps given the elective element more than its due weight in such a problem: but for that very reason his work is well adapted to reading in connection with this chapter, and the student will thus have both sides of the question presented v advocates of the highest merit. 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 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: 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 she agrees with the Augusta, or piissima regina conjux divi imperatoris of the Roman laws; who, according to Justinian, was equally [219] capable of making a grant to, and receiving one from, the emperor. The queen of England a Finch. L. 86. b 4 Rep. 23. c Seld. Jan. Angl. 1. 42. petitioned to be eased of the expense, then usual, of maintaining their members: four shillings a day being allowed for a knight of the shire, and two shilling for a citizen or burgess: which was the rate of wages established in the reign of Edward III.P Hence the members for boroughs now bear above a quadruple proportion to those for counties, and the number of parliament men is increased since Fortescue's time, in the reign of Henry the sixth, from 300 to upwards of 500, exclusive of those of Scotland. The universities were in general not empowered to send burgesses to parliament; though once, in 28 Edw. I. when a parliament was summoned to consider of the king's right to Scotiand, there were issued writs, which required the university of Oxford to send up four or five, and that of Cambridge two or three, of their most discreet and learned lawyers for that purpose. But it was king James the first, who indulged them with the permanent privilege to send constantly two of their own body; to serve for those students who, though useful mcmbers of the community, were neither concerned in the landed nor the trading interest; and to protect in the legislature the rights of the republic of letters. The right of election in boroughs is various, depending entirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes; though now by statute [175] 2 Geo. II. c. 24. the right of voting for the future shall be allowed according to the last determination of the house of commons concerning it. And by statute 3 Geo. III. c. 15. no freeman of any city or borough (other than such as claim by birth, marriage, or servitude) shall be entitled to vote therein, unless he hath been admitted to his freedom twelve calender months before. 2. Next, as to the qualifications of persons to be p 4 Inst. 16. q Prynne parl. writs. I. 345. 4 Previously, "Our second point is." |