Sivut kuvina
PDF
ePub

sciences of private men, that this rule fhould be clear and indifputable and our conftitution has not left us in the dark upon this material occafion. It will therefore be the endeavour of this chapter to trace out the conftitutional doctrine of the royal fucceffion, with that freedom and regard to truth, yet mixed with that reverence and respect, which the principles of liberty and the dignity of the fubject require.

THE grand fundamental maxim upon which the jus coronae. or right of fucceffion to the throne of these kingdoms, depends, I take to be this: "that the crown is, by common law and "conftitutional custom, hereditary; and this in a manner pecu"liar to itself: but that the right of inheritance may from time "to time be changed or limited by act of parliament; under " which limitations the crown ftill continues hereditary." And this propofition it will be the business of this chapter to prove, in all it's branches; firft, that the crown is hereditary; fecondly, that it is hereditary in a manner peculiar to itself; thirdly, that this inheritance is fubject to limitation by parliament; laftly that when it is fo limited, it is hereditary in the new proprietor.

1. FIRST, it is in general hereditary, or defcendible to the next heir, on the death or demife of the last proprietor. All regal governments must be either hereditary or elective: and, as I believe there is no inftance wherein the crown of England has ever been afferted to be elective, except by the regicides at the infamous and unparalleled trial of king Charles I, it must of confequence be hereditary. Yet while I affert an hereditary, I by no means intend a jure divino, title to the throne. Such a title may be allowed to have fubfifted under the theocratic establishments of the children of Ifrael in Palestine: but it never yet fubfifted in any other country; fave only fo far as kingdoms, like other human fabrics, are subject to the general and ordinary difpenfations of providence. Nor indeed have a jure divino and an hereditary right any neceffary connexion with each other; as fome have very weakly imagined. The titles of David and Jehu were equally

jure

jure divine, as thofe of either Solomon or Ahab; and yet David flew the fons of his predeceffor, and Jchu his predeceffor himfelf. And when our kings have the fame warrant as they had, whether it be to fit upon the throne of their fathers, or to deftroy the houfe of the preceding fovereign, they will then, and not before, poffefs the crown of England by a right like theirs, immediately derived from heaven. The hereditary right, which the laws of England acknowlege, owes it's origin to the founders of our constitution, and to them only. It has no relation to, nor depends upon, the civil laws of the Jews, the Greeks, the Romans, or any other nation upon carth: the municipal laws of one fociety having no connexion with, or influence upon, the fundamental polity of another. The founders of our English monarchy might perhaps, if they had thought proper, have made it an elective monarchy: but they rather chofe, and upon good reason, to establish originally a fucceflion by inheritance. This has been acquiefced in by general confent; and ripened by degrees into common law: the very fame title that every private man has to his own eftate. Lands are not naturally defcendible any more than thrones: but the law has thought proper, for the benefit and peace of the public, to cftablish hereditary fucceffion in one as well as the other.

It must be owned, an clective monarchy seems to be the moft obvious, and best fuited of any to the rational principles of govern ́ment, and the freedom of human nature: and accordingly we find from hiftory that, in the infancy and firft rudiments of almost every state, the leader, chief magiftrate, or prince, hath usually been elective. And, if the individuals who compofe that state could always continue true to first principles, uninfluenced by passion or prejudice, unaffailed by corruption, and unawed by violence, elective fucceflion were as much to be defired in a kingdom, as in other inferior communitics. The beft, the wifeft, and the bravest man would then be fure of receiving that crown, which his endowments have merited; and the fenfe of an unbiaffed majority would be dutifully acquicfeed in by the few who were

of

of different opinions. But history and observation will inform us, that elections of every kind (in the present state of human nature) are too frequently brought about by influence, partiality, and artifice: and, even where the cafe is otherwise, these practices will be often fufpected, and as conftantly charged upon the fuccessful, by a splenetic disappointed minority. This is an evil, to which all societies are liable; as well thofe of a private and domestic kind, as the great community of the public, which regulates and includes the reft. But in the former there is this advantage; that fuch fufpicions, if false, proceed no farther than jealoufies and murmurs, which time will effectually fupprefs; and, if true, the injustice may be remedied by legal means, by an appeal to thofe tribunals to which every member of society has (by becoming fuch) virtually engaged to fubmit. Whereas, in the great and independent fociety, which every nation compofes, there is no fuperior to refort to but the law of nature; no method to redress the infringements of that law, but the actual exertion of private force. As therefore between two nations, complaining of mutual injuries, the quarrel can only be decided by the law of arms; fo in one and the fame nation, when the fundamental principles of their common union are fuppofed to be invaded, and more especially when the appointment of their chief magiftrate is alleged to be unduly made, the only tribunal to which the complainants can appeal is that of the God of battles, the only process by which the appeal can be carried on is that of a civil and inteftine war. An hereditary fucceffion to the crown is therefore now established, in this and most other countries, in order to prevent that periodical bloodfhed and mifery, which the hiftory of antient imperial Rome, and the more modern experience of Poland and Germany, may fhew us are the confequences of elective kingdoms.

2. BUT, fecondly, as to the particular mode of inheritance, it in general correfponds with the feodal path of defcents, chalked out by the common law in the fucceffion to landed eftates; yet with one or two material exceptions. Like them, the crown will A a

defcend

defcend lineally to the iffue of the reigning monarch; as it did from king John to Richard II, through a regular pedigree of fix linealge nerations. As in them, the preference of males to females, and the right of primogeniture among the males, are strictly adhered to. Thus Edward V fucceeded to the crown, in preferencè to Richard his younger brother and Elizabeth his elder fifter. Like them on failure of the male line, it defcends to the iffue female; according to the antient British cuftom remarked by Tacitus ", "felent foeminarum ductu bellare, et fexum in imperiis non difcern " nere." Thus Mary I fucceeded to Edward VI; and the line of Margaret queen of Scots, the daughter of Henry VII, fucceeded on failure of the line of Henry VIII, his fon: But, among the females, the crown defcends by right of primogeniture to the eldest daughter only and her iffue; and not, as in common inhe ritances, to all the daughters at once; the evident neceffity of a fole fucceffion to the throne having occafioned the royal law of defcents to depart from the common law in this respect and therefore queen Mary on the death of her brother fucceeded to the crown alone and not in partnership with her fifter Elizabeth. Again: the doctrine of reprefentation prevails in the defcent of the crown, as it does in other inheritances; whereby the lineal defcendants of any perfon deceased fland in the fame place as their anceftor, if living, would have done. Thus Richard II fucceeded his grandfather Edward III, in right of his father the black prince, to the exclufion of all his uncles, his grandfather's younger children. Laftly, on failure of lineal defcendants, the crown goes to the next collateral relations of the late king; provided they are lineally defcended from the blood royal, that is, from that royal stock which originally acquired the crown. Thus Henry I fucceeded to William II, John to Richard I, and James I to Elizabeth; being all derived from the conqueror, who was then the only regal stock. But herein there is no objection (as in the cafe of common defcents) to the fucceffion of a brother, an uncle, or other collateral relation, of the half blood; that is, where the relationship proceeds not from the fame couple of ancestors (which

conftitutes

★ In vit. Agritolar,

conftitutes a kinfman of the whole blood) but from a single ançeftor only; as when two perfons are derived from the faine father, and not from the fame mother, or vice verfa: provided only, that the one ancestor, from whom both are defcended, be that from whofe veins the blood royal is communicated to each. Thus Mary I inherited to Edward VI, and Elizabeth inherited to Mary; all born of the fame father, king Henry VII!, but all by different mothers. The reafon of which diverfity, between royal and common defcents, will be better underfto hereafter, when we examine the nature of inheritances in general.

3. THE doctrine of hereditary right does by no means imply an indefeafible right to the throne. No will, I think, aflert this, that has confidered our laws, conftitation, and hiftory, without prejudice, and with any degree of attention. It is ungef tionably in the breast of the fupreme legislative authority of this kingdom, the king and both houfes of parliament, to defeat this hereditary right; and, by particular entails, limitations, and provisions, to exclude the immediate heir, and veft the inheritance in any one else. This is ftrialy confenant to our laws and conflitution; as may be gathered from the expreffion to frequently ufed in our flatute book, ef" the king's majefly, his heirs, and fucceffors." In which we may obferve, that as the word, heirs," neceflarily implies an inheritance or hereditary right, generally fubliiting in the reyal perion; fo the word farceffore," diftinctly taken, muft imply that this inheritance may fome dides be broke through; or, that there may be a fuccction, without being the heir, of the king. And this is fo extremaly reafon able, that without fuch a power, lodged fodewhere, car polity would be very defective. For, let us barely fuppoft fo telan choly a cafe, as that the heir apparent fhould be a lunatic, a.. idiot, or otherwife incapable of reigning: how mirable would the condition of the nation be, if he were allo incapable of being fet afide!---It is therefore neccilary that this power fhould be lodged fomewhere: and yet the inheritance, and regal dignity, would be very precarious indeed.if this power were exprefsly and 6 core edly

A&C

[ocr errors]
« EdellinenJatka »