CHAPTER THE THIRD.

OF THE KING, AND

HIS TITLE.

TH

HE fupreme executive power of these kingdoms is vefted by our laws in a fingle perfon, the king or queen for it matters not to which sex the crown descends; but the perfon intitled to it, whether male or female, is immediately invested with all the enfigns, rights, and prerogatives of fovereign power; as is declared by ftatute 1 Mar. ft. 3. c. I.

IN difcourfing of the royal rights and authority, I shall confider the king under fix diftinct views: 1. With regard to his title. 2. His royal family. 3. His councils. 4. His duties. 5. His prerogative. 6. His revenue. And first, with regard to his title.

THE executive power of the English nation being vefted in a fingle perfon, by the general confent of the people, the evidence of which general confent is long and immemorial ufage, it became neceffary to the freedom and peace of the ftate, that a rule fhould be laid down, uniform, univerfal, and permanent; in order to mark out with precision, who is that fingle perfon, to whom are committed (in subfervience to the law of the land) the care and protection of the community; and to whom, in return, the duty and allegiance of every individual are due. It is of the highest importance to the public tranquillity, and to the consciences

of

of private men, that this rule should 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 constitutional doctrine of the royal fucceffion, with that freedom and regard to truth, yet mixed with that reverence and refpect, which the principles of liberty and the dignity of the subject require.

THE grand fundamental maxim upon which the jus coronce, or right of fucceffion to the throne of these kingdoms, depends, I take to be this: "that the crown is, by common "law and constitutional custom, hereditary; and this in a "manner peculiar 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 con"tinues hereditary." And this propofition it will be the business of this chapter to prove, in all it's branches; first, that the crown is hereditary; fecondly, that it is hereditary in a manner peculiar to itfelf; 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 laft 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 muft 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 neceflary connexion with each other; as fome have very weakly imagined. The titles of David and Jehu were

equally

equally jure divino, as thofe of either Solomon or Ahab; and yet David flew the fons of his predeceffor, and Jehu his predeceffor himself. And when our kings have the fame warrant as they had, whether it be to fit upon the throne of their fathers, or to destroy the house 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 conftitution, 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 earth: 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 fucceffion 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 establish hereditary fucceffion in the one as well as the other.

IT must be owned, an elective monarchy feems to be the most obvious, and best suited of any to the rational principles of government, and the freedom of human nature; and accordingly we find from history that, in the infancy and first rudiments of almoft every ftate, the leader, chief magiftrate, or prince, hath ufually been elective. And, if the individuals who compofe that ftate could always continue true to first principles, uninfluenced by passion or prejudice, unaffailed by corruption, and unawed by violence, elective fucceffion were as much to be desired in a kingdom, as in other inferior communities. The best, the wifeft, and the bravest man would then be fure of receiving that crown, which his endowments have merited; and the sense of an unbiassed majority would be dutifully acquiefced in by the few who were

of different opinions. But history and observation will inform us, that elections of every kind (in the prefent ftate 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 fuccefsful, by a splenetic disappointed minority. This is an evil to which all focieties are liable; as well thofe of a private and domeftic 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 jealousies and murmurs, which time will effectually fupprefs; and, if true, the injustice may be remedied by legal means, by an appeal to those tribunals to which every member of fociety 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 redrefs 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 procefs 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 descents, chalked out by the common law in the fucceffion to landed eftates; yet with one or two material exceptions, Like eftates, the crown will defcend lineally to the iffue of the reignVOL. I.

N

ing

ing monarch; as it did from king John to Richard II, through a regular pedigree of fix lineal generations. As in common defcents, the preference of males to females, and the right of primogeniture among the males, are ftrictly adhered to. Thus Edward V fucceeded to the crown, in preference to Richard his younger brother and Elizabeth his elder fifter. Like lands or tenements, the crown, on failure of the male line, defcends to the iffue female; according to the antient British cuftom remarked by Tacitus"; "folent foeminarum " ductu bellare, et fexum in imperiis non difcernere." 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 inheritances, 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 refpect 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 representation prevails in the defcent of the crown, as it docs in other inheritances; whereby the lineal defcendants of any perfon deceafed ftand in the fame place as their ancestor, 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 ftock 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 ftock. 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

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