taught by the flatterers of the times to believe there was something divine in this right, and that the finger of Providence was visible in its *preservation. Whereas, though a wise institution, it was clearly a human insti- [*209] tution; and the right inherent in him no natural, but a positive right. (7) And in this, and no other, light was it taken by the English parliament, who by statute 1 Jac. I, c. 1, did "recognize and acknowledge, that immediately upon the dissolution and decease of Elizabeth, late queen of England, the imperial crown thereof did by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent majesty, as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm." Not a word here of any right immediately derived from heaven; which, if it existed any where, must be sought for among the aborigines of the island, the ancient Britons, among whose princes, indeed, some have gone to search it for him. (z)

But, wild and absurd as the doctrine of divine right most undoubtedly is, it is still more astonishing, that when so many human hereditary rights had centered in this king, his son and heir King Charles the First should be told by those infamous judges, who pronounced his unparalleled sentence, that he was an elective prince; elected by his people, and therefore accountable to them in his own proper person, for his conduct. The confusion, instability, and madness, which followed the fatal catastrophe of that pious and unfortunate prince, will be a standing argument in favor of hereditary monarchy to all future ages; as they proved at last to the then deluded people: who, in order to recover that peace and happiness which for twenty years together they had lost, in a solemn parliamentary convention of the estates, restored the right heir of the crown. And in the proclamation for that purpose, which was drawn up and attended by both houses, (a) they declared, "that according to their duty and allegiance they did heartily, joyfully, and unanimously acknowledge and proclaim, that immediately upon the decease of our late sovereign lord King Charles, the imperial crown of these realms did by inherent birthright and law. [*210] ful and undoubted succession descend and come to his most excellent majesty Charles the Second, as being lineally, justly, and lawfully, next heir of the blood royal of this realm: and thereunto they most humbly and faithfully did submit and oblige themselves, their heirs, and posterity for ever."

Thus I think it clearly appears, from the highest authority this nation is acquainted with, that the crown of England hath ever been an hereditary crown, though subject to limitations by parliament. (8) The remainder of this chapter will consist principally of those instances wherein the parliament has asserted or exercised this right of altering and limiting the succession; a right which, we have seen, was. before exercised and asserted in the reigns of Henry IV, Henry VII, Henry VIII, Queen Mary, and Queen Elizabeth.

The first instance, in point of time, is the famous bill of exclusion, which raised such a ferment in the latter end of the reign of King Charles the Second. It is well known that the purport of this bill was to have set aside the king's brother and presumptive heir, the Duke of York, from the succession, on the score of his being a papist; that it passed the house of commons, but was rejected by the lords; the king having also declared beforehand, that he never

(z) Elizabeth of York, the mother of Queen Margaret of Scotland, was heiress of the house of Mortimer And Mr. Carte observes, that the house of Mortimer, in virtue of its descent from Gladys, only sister to Llewellin ap Jorworth the great, had the true right to the principality of Wales. Hist. Eng. iii, 705. (a) Com. Journ. 8 May, 1660.

(7) [It is difficult to say in what light it was considered in that parliament which, in the preamble to the statute, declares with nauseous pedantry, that, " upon the knees of their hearts, they agnize their constant faith, obedience and loyalty to his majesty and his royal progeny."]

() [The foregoing and subsequently related facts are evidence of the power of a legislature, and it is not easy to extract from them that any settled course of descent fundamentally regulated or controlled that power; and it is finally seen that a legislature, viz.: a convention, not a parliament, recalled King Charles II; it will as soon also be seen that another convention thought it expedient to elect, in the dry meaning of the word elect, another king and queen to replace the pertinacious, but conscientious, brother of King Charles II.]

would be brought to consent to it. And from this transaction we may collect two things: 1. That the crown was universally acknowledged to be hereditary; and the inheritance indefeasible 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 the Second 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 concurring circumstances, brought on the revolution in 1688. [*211] *The true ground and principle upon which that memorable event proceeded was an entirely new case in politics, which had never before happened in our history, the abdication of the reigning monarch, and the vacancy of the throne thereupon. It was not 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 (b) came to this resolution: "That King James the Second, having endeavored to subvert the constitution of the kingdom, by breaking the original contract between king and people; and, by the advice of jesuits and other wicked persons, having violated the fundamental laws; and having withdrawn himself out of this kingdom; has abdicated the government, and that the throne is thereby vacant." Thus ended at once, by this sudden and unexpected vacancy of the throne, the old line of succession; 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 not affect 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 the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the 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 have solemnly determined, in a full parliamentary convention representing the whole society. The *reasons upon which they decided may be found at [*212] large in the parliamentary proceedings of the times; and may be matter of instructive amusement for us to contemplate, as a speculative point of history. But care must be taken not to carry this inquiry further than merely for instruction or amusement. The idea, that the consciences of posterity were concerned in the rectitude of their ancestors' decisions, gave birth to those dangerous political heresies, which so long distracted the state, but at length are happily extinguished. I therefore rather choose to consider this great political measure upon the solid footing of authority, than to reason in its favor from its justice, moderation, and expediency: because that might imply a right of dissenting or revolting from it, in case we should think it to have been unjust, oppressive, or inexpedient. Whereas, our ancestors having most indisputably a competent jurisdiction to decide this great and important question, and having in fact decided it, it is now become our duty at this distance of time to acquiesce in their determination; being born under that establishment which was built upon this foundation, and obliged by every tie, religious as well as civil, to maintain it. (9)

(b) Com. Journ. 7 Feb. 1688.

(9) [This is not the only instance in which the learned commentator's abstract love of liberty, coupled with his reverence for the constitution, as it is established, has involved him

Ex

But, while we rest this fundamental transaction, in point of authority, upon grounds the least liable to cavil, we are bound both in justice and gratitude to add, 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,) (c) 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 æra 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 the English history. In particular it is worthy observation that the convention, in this their judgment, avoided with great wisdom the wild extremes into [*213] which the visionary theories of some zealous republicans would have led them. They held that this 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: (d) which would have reduced the society almost to a state of nature; would have levelled all who

distinctions of honour, rank, offices, and property: would have annihilated the would n

sovereign power, and in consequence have repealed 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. (e) 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 as the royal authority been abolished, or even suspended. (10)

This single postulatum, 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 of 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, they proceeded to fill up that vacancy in such manner as they *judged the most proper. And this was done by their declaration of 12 February, 1688, (f) in the [*214]

(c) See Chap. 7.

(e) Law of forfeit. 118, 119.

d) On Gov. p. 2, c. 19.
(f) Com. Journ. 12 Feb. 1688.

in a political fallacy. By what process of reasoning it can be demonstrated, that it is our duty to acquiesce in the demonstrations of our ancestors, though they were bound by no such obligation with regard to theirs, is not easily to be conceived. Yet such is by plain and natural inference a proposition of our author. The principle that a people have the right to choose and to regulate their own form of government, if true in 1688, does not become false, by the lapse of time; and reasoning a priori, it may be more safely exercised now than at any antecedent period, because the science of government is better understood. The respect and attachment due to the institutions of a free state, like ours, so far from being compromised, are included and avowed in this sentiment. And the learned commentator might have better urged the improbability of the nation again having occasion to exercise this power over the constitution, than have enforced the ' obligation to maintain the constitution because we are born under it.]

(10) [The unusual combination of favorable circumstances which attended this revolution, and the temper and moderation of its conductors, are well commented upon by Mr. Hallam. Const. Hist. c. 14 See also Professor Smyth's Lect. on Hist., No. 20.] 137

VOL. I.-18.

following manner: "that William and Mary, prince and princess of Orange, be, and be declared king and queen, to hold the crown and royal dignity during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and 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."

Perhaps, 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 the First, and nephew as well as sonin-law of King James the Second, 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

[*215] of acquiring an estate otherwise than by descent. The new settlement

did not merely consist in excluding King James, and the person pretended to be the 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 descents.

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 of the throne; which must have ensued upon their deaths, as no farther 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 of 1 W. and 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 forever 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, holding communion, professing, or marrying, were naturally dead. To act therefore consistently with themselves, and at the same *time pay as much regard [ *216 ] 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. (g) For, upon the impending extinction of the protestant posterity of Charles the First, the old law of legal descent directed them to recur to the descendants of James the First; and the Princess Sophia, being the youngest daughter of Elizabeth queen of Bohemia, who was the daughter of James the First, was the nearest of the ancient blood royal, who was not incapacitated by professng 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 and 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 pramunire.

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.

*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 [*217] 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 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 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 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, wher 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

(g) Sandford, in his genealogical history, published A. D. 1677, speaking of the princesses Elizabeth, Louisa, and Sophia, daughters of the queen of Bohemia, says, the first was reputed the most learned, the second the greatest artist, and the last one of the most accomplished ladies in Europe.