mon stock. the vacancy of the throne in 1688: now it is the Princess Present comSophia, in whom the inheritance was vested 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 settlement, the inheritance is conditional; being limited to such heirs only, of the body of the Princess Sophia (42), as are protestant members of the church of England, and are married to none but protestants (43). true notion of consists. evils. And in this due medium consists, I apprehend, the true In what due constitutional notion of the right of succession to the im- medium the perial crown of these kingdoms. The extremes, between the right of which it steers, are each of them equally destructive of succession those ends for which societies were formed and are kept on foot. Where the magistrate, upon every succession, is Election proelected by the people, and may by the express provision of ductive of what 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 (44). And, on the other hand, divine indefeasible hereditary Divine right right, when coupled with the doctrine of unlimited passive the most slavish obedience, is surely of all constitutions the most tho- constitutions; roughly slavish and dreadful. But when such an heredi- but the union of hereditary tary right, as our laws have created and vested in the right with royal stock, is closely interwoven with those liberties, ties, as in our (42) See pages 215, 216, ante. (43) Either the crown is hereditary, or it is not. If hereditary, the son at least of King James the second, to take the latest instance, could not have been set aside. He had not contravened in any degree the presumed constitution; if it were not hereditary, then the acts of virtual and actual exclusion, of settlement, and of limitation, passed subsequently to the abdication by his father, become reconcileable at once to history, reason, and public (44) America, as yet, offers an ex- and dreadful of laws and liber. tion, forms the best constitu tion. own constitu- 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 (45). (45) No man reasoning justly upon any disputed question, rejects the facts upon which such question arose; and to attempt to rekindle the embers of controversy upon points long ago settled, so far as they might admit of settlement, is absurd, because it is useless. To affirm therefore or deny what a political constitution already in practice is, appears to be among some of the least useful exercises of literary inge. nuity. And, but that in the preceding pages of the text particular views have been taken, inferences drawn, and deductions made from alleged premises, presumed to be applicable to such views, and well to ground the infe. rences and deductions made, I certainly should have hesitated before venturing doubt or observation as to how far the premises warranted several inferences made by the commentator therefrom. But, having thus far adverted to the subject treated in the text, it yet is open to be observed, that whether the king's title to the erown be one of compact or of assump tion, of election by public voice or of taking by conquest or force, cannot at present be a question wisely or usefully agitated. Time has consecrated what of good there is in the present order of things, and it is much; but it should never be forgotten, that while it consecrates the good, it should not be permitted to hallow the bad elements of government. The wise and good subject will ever be vigilant to separate the grain from the chaff; it is only the fool and the speculatist, who, in pretending anxiety to destroy the chaff, is reckless about the preservation of the grain. The good of the British executive government is greatly preeminent; the evil is partial and accidental: the casual defect of the day not, I hope, rooted or irremediable. The press is the great engine of amelioration it may sometimes be exuberant even of good, just as heat may consume and destroy, but it is not less the heat that vivifies and preserves the world. 218 CHAPTER IV. 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. whether re The queen of England is either queen regent, queen of the queen, consort, or queen dowager. The queen regent, regnant, gent, consort, or sovereign, is she who holds the crown in her own or dowager. 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, (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). (a) Finch. L. 86. (1) Mary being the first queen that had sat upon the English throne, this statute was passed, as it declares, for "the extinguishment of the doubt and folly of malicious and ignorant per- Queen exempt and distinct in what re spects. And, first, she is a public person, exempt and distinct from the king, 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 (b): a privilege as old as the Saxon æra (c). 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 [219] laws; who according to Justinian (d), was equally *capable of making a grant to, and receiving one from, the emperor (2). The queen of England hath separate courts and offices 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 (e). She may likewise sue and be sued alone, without joining her husband (3). She may also have a separate property in goods, as well as lands, and has a right to dispose of them by will (4). In short, she is in all legal proceedings looked upon as a feme sole, and not as a feme covert; as a single, not as a married woman (ƒ). 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 (5). prerogatives. The queen hath also many exemptions and minute pre- Queen's exrogatives. For instance: she pays no toll (g); nor is she emptions and liable to any amercement in any court (h). But in general, 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" (i). The queen hath also some pecuniary advantages, which Pecuniary adform her a distinct revenue: as, in the first place, she is vantages. entitled to an ancient perquisite called queen-gold, or aurum regina, which is a royal revenue, belonging to every What? (f) Finch, L. 86. Co. Litt. 133. (4) Which, if she omit to do, or otherwise dispose of them in her lifetime, both her real and personal estate go to the king after her death. 60 Litt. 3, 31, 133. Finch 86. 1 Roll. Abr. 912. (5) When it is remembered what part women were called upon to take in matters that concerned the community, to command and lead in war, and to govern singly, either in war or in peace, it will be difficult to conceive (i) Ff.i. 3, 31.-"The empress is not absolved from the observance of the laws." that anciently a queen regnant could Aurum reginæ. |
