James II. unless by parliament: else it had been needless to prefer such a bill. 2. That the parliament had a power to have defeated the inheritance; else such a bill had been ineffectual. The commons acknowledged the hereditary right then subsisting; and the lords did not dispute the power, but merely the propriety of an exclusion. However, as the bill took no effect, king James II. succeeded to the throne of his ancestors: and might have enjoyed it during the remainder of his life, but for his own infatuated conduct, which, (with other concurrent circumstances), brought on the Revolution in 1688. That memorable event ensued upon the abdication of the reigning monarch, and a vacancy of the throne thereby occasioned. There had not been a defeasance of the right of succession, and a new limitation of the crown, by the king and both houses of parliament; it was the act of the nation alone, upon a conviction that there was no king in being. For in a full assembly of the lords and commons, met in a convention upon the supposition of this vacancy, both houses(h) resolved:- that king James II., by the advice of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom, and, having abdicated the government, that the throne is thereby vacant(i). Thus ended at once, *by this sudden and unexpected vacancy of the throne, the old line of succession; [ *248] Revolution of 1688. which from the Conquest had lasted above six hundred years, and from the union of the heptarchy in king Egbert almost nine hundred. The facts themselves thus appealed to, the king's endeavour to subvert the constitution by breaking the original contract, his violation of the fundamental laws, and his withdrawing himself out of the kingdom, were evident and notorious; and the consequences drawn from these facts (namely, that they amounted to an abdication of the government; which abdication did affect not only the person of the king himself, but also all his heirs, and rendered the throne absolutely and completely vacant) it belonged to our ancestors to determine. For whenever a question arises between society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of society itself; there is not upon earth any other tribunal to resort to. And that these consequences were fairly deduced from these facts, our ancestors solemnly determined, in a full parliamentary convention representing the whole society. The reasons upon which they decided may be found at large in the parliamentary proceedings of the time(k); *and may be contemplated with interest by the philosophical historian, with interest however due to [ *249] the magnitude of the event thus consummated rather than to its value as a precedent. For should a political crisis equally imminent recur, posterity regardless of the text of precedents will act. (h) Com. Journ. 12 Feb. 1688. (i) The convention in Scotland drew the same conclusion-"The estates of the kingdom of Scotland find and declare, that king James the Seventh being a professed papist, did assume the royal power and acted as a king, without ever taking the oath required by law; and had, by the advice of evil and wicked counsellors, invaded the fundamental constitution of this kingdom and altered it from a legal and limited monarchy to an arbitrary despotic power, and had governed the same to the subversion of the protestant religion and violation of the laws and liberties of the nation, inverting all the ends of government, whereby he had forefaulted the crown, and the throne became vacant." Tyndall, 71; Fol. Cont. of Rapin. (k) Major-General Stanhope, at the impeachment of Dr. Sachevereli (15 St. Tr. 129), after citing the maxim, "wherever there is a right there is a remedy," proceds to apply it thus: addressing the Lords, he says, "That your lordships have rights nobody will presume to deny; that the commons have rights nobody will deny; that every subject of But, without overvaluing this fundamental transaction, as a precedent, we are bound both in justice and gratitude to note that it was conducted with a temper and moderation which naturally arose from its equity; that, however it might in some respects go beyond the letter of our ancient laws (the reason of which will more fully appear hereafter(1)), it was agreeable to the spirit of our constitution, and the rights of human nature; and that though in other points (owing to the peculiar circumstances of things and persons) it was not altogether so perfect as might have been wished, yet from thence a new era commenced, in which the bounds of prerogative and liberty have been better defined, the principles of government more thoroughly examined and understood, and the rights of the subject more explicitly guarded by legal provisions, than in any other period of English history. In particular it is worthy of observation that the convention, in this their judgment, avoided with great wisdom the wild extremes into which the visionary theories of some zealous republicans would have led them. They held that the misconduct of king James amounted to an "endeavour" to subvert the constitution; and not to an actual subversion, or total dissolution, of the government, according to the principles of Mr. Locke(m): which would have reduced society almost to a state of nature; would have levelled, all distinctions of honour, rank, offices and *property; [* 250] would have annihilated the sovereign power, and in consequence have repealed or jeopardized the efficacy of all positive laws; and would have left the people at liberty to have erected a new system of state upon a new foundation of polity. They therefore very prudently voted it to amount to no more than an abdication of the government, and a consequent vacancy of the throne; whereby the government was allowed to subsist, though the executive magistrate was gone, and the kingly office to remain, though king James was no longer king(n). And thus the constitution was kept entire; which upon every sound principle of government must otherwise have fallen to pieces, had so principal and constituent a part of it as the royal authority been abolished, or suspended. This single postulate, the vacancy of the throne, being once established, the rest that was then done followed almost of course. For, if the throne be at any time vacant (which may happen by other means besides that of abdication; as if all the blood royal should fail, without any successor appointed by parliament); if, I say, a vacancy by any means whatsoever should happen, the right of disposing of this vacancy seems naturally to result to the lords and commons, the trustees and representatives of the nation. For there are no other hands in which it can so properly be intrusted; and there is a necessity for its being intrusted somewhere, else the whole frame of government must be dissolved and perish. The lords and commons having therefore determined this main fundamental article, that there was a vacancy of the throne, proceeded to fill up that vacancy in such a manner as they judged the most proper. And this was done Britain has rights nobody will deny. Now to say that when a prince shall invade all these rights at once,-to say that the whole collective body of the nation has no way to vindicate those rights, is so inconsistent, so contrary to reason, that it is to be wondered it could ever enter into the mind of man.” And the same speaker, citing Fortescue (de Laud. L. Ang. cc. 10-13) and Hooker (Ecc. Pol.), affirms that "the constitution of Eng- (m) On Gov. pt. 2, c. 19. by their declaration of 12 February, 1688(0), in the following manner: "that William and Mary, prince and princess of Orange, be, and be declared king and queen "*of England, to hold the crown and royal dig William and Mary. and nity during their lives, and the life of the survivor of [*251] "that the sole and full exercise of the regal power be only in, and them; executed by, the said prince of Orange, in the names of the said prince and princess, during their joint lives: and after their deceases the said crown and royal dignity"..."to be to the heirs of the body of the said princess; and for default of such issue to the princess Anne of Denmark, and the heirs of her body; and for default of such issue to the heirs of the body of the said prince of Orange." Doubtless, upon the principles before established, the convention might (if they pleased) have vested the regal dignity in a family entirely new, and strangers to the royal blood; but they were too well acquainted with the benefits of hereditary succession, and the influence which it has by custom over the minds of the people, to depart any farther from the ancient line than temporary necessity and self-preservation required. They therefore settled the crown, first on king William and queen Mary, king James's eldest daughter, for their joint lives: then on the survivor of them; and then on the issue of queen Mary : upon failure of such issue, it was limited to the princess Anne, king James's second daughter, and her issue; and lastly, on failure of that, to the issue of king William, who was the grandson of Charles I., and nephew as well as sonin-law of king James II., being the son of Mary his eldest sister. This settlement included all the protestant posterity of king Charles I. except such other issue as king James might at any time have, which was totally omitted, through fear of a popish succession. And this order of succession took effect accordingly. These three princes therefore, king William, queen Mary, and queen Anne, did not take the crown by hereditary right or descent, but by way of donation or purchase, as the lawyers call it; by which they mean any method of acquiring an estate otherwise than by descent. *The new settlement did not [ *252] merely consist in excluding king James, and the person pretended to be prince of Wales, and then suffering the crown to descend in the old hereditary channel: for the usual course of descent was in some instances broken through; and yet the convention still kept it in their eye, and paid a great, though not total, regard to it. Let us see how the succession would have stood, if no abdication had happened, and king James had left no other issue than his two daughters queen Mary and queen Anne. It would have stood thus: queen Mary and her issue: queen Anne and her issue: king William and his issue. 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 personally preferred to queen Anne, though his issue was postponed to hers. Clearly therefore these princes were successively in possession 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 surviving issue from any of these princes died with the duke of Gloucester, that the king and parliament thought it necessary again to exert their power of limiting and appointing the succession, in order to prevent another vacancy (0) Com. Journ. 12 Feb. 1688. VOL. I.-22 of the throne; which must have ensued upon their deaths, as no further provision was made at the Revolution, than for the issue of queen Mary, queen Anne, and king William. The parliament had previously by the statute 1 Will. & M. st. 2, c. 2, enacted, that every person who should be reconciled to, or hold communion with, the see of Rome, should profess the popish religion, or should marry a papist, should be excluded and be for ever incapable to inherit, possess, or enjoy the crown: and that in such case the people should be absolved from their allegiance, and the crown should descend to such persons, being protestants, as would have inherited the same, in case the person so *reconciled, [*253] holding communion, professing, or marrying, were naturally dead. To act therefore consistently with themselves, and at the same time pay as much regard to the old hereditary line as their former resolutions would admit, they turned their eyes on the princess Sophia, electress and duchess dowager of Hanover, the most accomplished princess of her age(p). For, upon the impending extinction of the protestant posterity of Charles I., the old law of regal descent directed them to recur to the descendants of James I.; and the princess Sophia, being the youngest daughter of Elizabeth, queen of Bohemia, who was the daughter of James I., was the nearest of the ancient 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 Will. 3, 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. Anne. 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 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, [* 254] teaching, or advised speaking, he shall incur the penalties of a præmunire(q). The princess Sophia dying before queen Anne, the inheritance thus limited descended on her son and heir king George I., and, having on the death of the George I. quen taken effect in his person, from him it descended to king George II.; and from him to his grandson and heir, king George III. From George III. the inheritance descended to his eldest son king George IV., who dying without issue, was succeeded by king William IV., the third son of king George III.; whose second son Frederick Augustus duke of York had previously died without issue. On the death of king William IV., the inheritance descended to the only child of Edward duke of Kent, the fourth son of king George III., our present gracious sovereign queen Victoria. (p) Sandford, in his genealogical history, published A. D. 1677, speaking (page 535) of the princesses Elizabeth, Louisa, and Sophia, daughters of the queen of Bohemia, says the first was reputed the most learned, the sec- 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 derived, is also different. Formerly the common stock was king Egbert; then William the Conqueror; afterwards in James I.'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 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 the due medium which has thus been historically traced between a right of election vested in the people and an hereditary right vested irrevocably in the sovereign *consists, I apprehend, the true constitutional notion if the right of succession to the imperial crown of these kingdoms. [*255] of The extremes between which it steers, are 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 its true and genuine light: it is the duty of every good Englishman to understand, to revere, to defend it. *CHAPTER IV. THE ROYAL FAMILY. [*256] We shall in this chapter speak of the members of the royal family in the order which seems natural and proper. Queen regent. 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, queen Anne, and our present most gracious sovereign queen Victoria; and such a one has the same powers, prerogatives, rights, dignities, and duties, as if she had been a king. This was observed at the commencement of the last chapter, and is expressly declared by statute 1 Mar. 1, 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). Queen consort. (a) Finch. L. 86. |