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 Willliam 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 præmunire.

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, 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

(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.

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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. (11)

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.

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, 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. 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)

And first, she is a public person, exempt and distinct from the king: and not, like other married women, so closely connected as to have lost all legal or For the queen is of separate existence so long as the marriage continues.

(a) Finch, L. 86.

(11) By the constitution of the United States the president, who is the federal executive, is chosen by electors, who are themselves chosen by the people of the several states to perform that duty. Each state appoints in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in congress: Const. art. 2, 1; and those electors meet in the respective states and vote by ballot for president and vice-president, one of the persons voted for, at least, not being an inhabitant of the same state with themselves; the result of which voting is transmitted to the seat of government, and canvassed in joint convention of the two houses of congress. If no one person have a majority of all the votes cast for president, the house of representatives proceeds immediately to choose a president by ballot, from the persons, not exceeding three, having the highest number of votes; but in this election they vote by states, the representation of each state being entitled to one vote, and a majority of all the states being necessary to a choice. If no person has a majority of all the votes cast for vice-president, the senate, from the two highest numbers on the list, chooses a vice-president; a majority vote of a quorum of two-thirds of all the senators being requisite to an election. Const. 12th amendment. No person is eligible to either of these offices except a natural born citizen, or one who was a citizen at the time of the adoption of the constitution, and who has attained the age of thirty-five years. Const. art. 2, § 1.

In case of the removal of the president from office or of his death, resignation or inability to discharge the powers and duties of his office, the same devolve on the vice-president. Const. art. 2, 1. And in case of vacancy in the office of vice-president, then such powers and duties devolve upon the president pro tem. of the senate, or, if there be no such officer, then upon the speaker of the house of representatives for the time being. 1 Stat. at Large, 239. And if the house of representatives shall not choose a president when the right devolves upon them, by the fourth day of March next following, the vice-president becomes acting president, as in the case of the death or other constitutional disability of the president. Const. 12th amendment. The president and vice-president, like all other civil officers. are subject to be removed from office, on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Const. art. 2, § 4.

By the constitution, as originally adopted, the electors chosen in the states cast their votes for two persons, without designating which was their choice for president and which for vicepresident, and the persons having the highest number, if a majority of all, became president, and the one having the next highest number, if a majority, became vice-president; but, when party lines came to be distinctly drawn, so that the candidates of one party, in the absence of intrigue or bad faith, were likely always to receive the same number of votes, the purpose of this scheme of election was wholly defeated, and the constitution, after the exciting election of Mr. Jefferson by the house of representatives over Mr. Burr, who had been candidate before the people for the second position only, was changed as above shown.

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 era. (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 laws; who, according to Justinian, (d) was equally *capable of making a grant to, and receiv

ing one from, the emperor. The queen of England hath separate courts [*219] 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. She may also have a separate property in goods, as well as lands, and has a right to dispose of them by will. 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. (f) 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.

The queen hath also many exemptions and minute prerogatives. For instance: she pays no toll; (g) nor is she liable to 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 form her a distinet revenue: as in the first place, she is entitled to an ancient perquisite called queen-gold, aurum regine, which is a royal revenue, belonging to every queen consort during her marriage with the king, and due from every person who hath made a voluntary offering or fine to the king, amounting to ten marks or upwards, for and in consideration of any privileges, grants, licences, pardons, or *other matter of royal favour conferred upon him by the king: and it is due in the proportion of one tenth part more, over and above the entire [*220] offering or fine made to the king; and becomes an actual debt of record to the queen's majesty by the mere recording of the fine. (k) (1) As, if an hundred marks of silver be given to the king for liberty to take in mortmain, or to have a fair, market, park, chase, or free-warren: there the queen is entitled to ten marks in silver, or (what was formerly an equivalent denomination) to one mark in gold, by the name of queen-gold, or aurum reginæ. (1) But no such payment is due for any aids or subsidies granted to the king in parliament or convocation; nor for fines imposed by courts on offenders, against their will; nor for voluntary presents to the king, without any consideration moving from him to the subject; nor for any sale or contract whereby the present revenues or possessions of the crown are granted away or diminished. (m)

The original revenue of our ancient queens, before and soon after the conquest, seems to have consisted in certain reservations or rents out of the demesne lands of the crown, which were expressly appropriated to her majesty, distinct from the king. It is frequent, in domesday book, after specifying the rent

(b) 4 Rep. 23.

(c) Seld. Jan. Angl. 1, 42. The instance meant, loc. citat, is where Ethelswith, wife to Burghred, king of the ercians, granted a patent to Cuthwals. (d) Cod. 5, 16, 26. (e) Seld. tit. hon. I, 6. 7. (f) Finch. L. 88. Co. Litt. 133. (g) Co. Litt. 133. (h) Finch. L. 185. (i) Ff. l. 3, 31. (k) Pryn. Aur. reg. 2. (7) 12 Rep. 21. 4 Inst. 358. (m) Ibid. Pryn. 6. Madox, Hist. Exch. 242.

(1) [Lord Littleton enters at some length into this subject of fines to the king as one considerable source of the royal revenue in the early periods of our Anglo-Norman history, and cites from Madox a vast number of instances, some indeed ludicrous, but all scandalous and tyrannical, in which fines were paid. Henry II, book 2.]

due to the crown, to add likewise the quantity of gold or other renders reserved to the queen. (n) These were frequently appropriated to particular purposes; to buy wool for her majesty's use, (o) to purchase oil for her lamps, (p) or to furnish her attire from head to foot, (q) which was frequently very costly, as one single robe, in the fifth year of Henry II, *stood the city of London in [*221 ] upwards of fourscore pounds. (r) A practice somewhat similar to that of the eastern countries, where whole cities and provinces were specifically assigned to purchase particular parts of the queen's apparel. (s) And, for a further addition to her income, this duty of queen-gold is supposed to have been originally granted; those matters of grace and favour, out of which it arose, being frequently obtained from the crown by the powerful intercession of the queen. There are traces of its payment, though obscure ones, in the book of domesday, and in the great pipe-roll of Henry the First. (t) In the reign of Henry the Second the manner of collecting it appears to have been well understood, and forms a distinct head in the ancient dialogue of the exchequer, (u) written in the time of that prince, and usually attributed to Gervase of Tilbury. From that time downwards it was regularly claimed and enjoyed by all the queen consorts of England till the death of Henry VIII; though, after the accession of the Tudor family, the collecting of it seems to have been much neglected: and there being no queen consort afterwards till the accession of James I, a period of near sixty years, its very nature and quantity became then a matter of doubt; and, being referred by the king to the chief justices and chief baron, their report of it was so very unfavorable, (v) that his consort Queen Anne (though she claimed it) yet never thought proper to exact it. In 1635, 11 Car. I, a time fertile of expedients for raising money upon dormant precedents in our old records (of which ship-money was a fatal instance,) the king, at the petition of his queen, Henrietta Maria, issued out his writ (w) for levying it; but afterwards purchased it of his consort at the price of ten thousand pounds; finding it, perhaps, too trifling and troublesome to levy. And when afterwards, at the restoration, by the abolition of the military tenures, and the fines that [*222] were consequent upon them, the little that legally remained of this revenue was reduced to almost nothing at all, in vain did Mr. Prynne, by a treatise which does honour to his abilities as a painful and judicious antiquary, endeavour to excite Queen Catharine to revive this antiquated claim.

Another ancient perquisite belonging to the queen consort, mentioned by all our old writers, (x) and, therefore only, worthy notice, is this: that, on the taking of a whale on the coast, which is a royal fish, it shall be divided between the king and queen; the head only being the king's property, and the tail of it the queen's. "De sturgoine observetur, quod rex illum habebit integrum: de balena vero sufficit, si rex habeat caput, et regina caudam." The reason of this whimsical division, assigned by our ancient records, (y) was, to furnish the queen's wardrobe with whalebone. (2)

But farther, though the queen is in all respects a subject, yet, in point of the security of her life and person, she is put on the same footing with the king. It is equally treason (by the statute 25 Edw. III,) to compass or imagine the death

(n) Bedefordscire Maner. Lestone redd. per annum xxii lib. fc.; ad opus reginæ ii ucias auri.-Herefordscire. In Lene, &c., consuetud. ut præpositus manerii veniente domina sua (regina) in maner, præsentaret ei xviii oras denar, ut esset ipsa lato animo. Pryn. Append. to Aur. Reg. 2, 3.

(0) Causa coadunandi lanam reginæ. Domesd. ibid.

(p) Civitas Lundon. Pro oleo ad lampad. reginæ. (Mag. rot. pip. temp. Hen. II, ibid.)

(q) Vicecomes Berkescire. xvi 1. pro cappa reginæ. (Mag. rot. pip. 19.-22 Hen. II, ibid.) Civitas Lund cordubanario reginæ xx 8. (Mag. rot. 2 Hen. II. Madox. Hist. Exch. 419.)

(r) Pro roba ad opus reginæ, quater xx l. et vi s viii d. (Mag. rot. 5 Hen. II, ibid. 250)

(8) Solere aiunt barbaros reges Persiarum ac Syrorum-uxoribus civitates attribuere, hoc modo; hæc civitas mulieri redimiculum præbeat, hæc in collum, hæc in crines, &c. (Cic. in Verrem. lib. 3. cap. 33.)

(t) See Madox, Disceptat. Epistolar. 74. Pryn. Aur. Reg. Append. 5. (u) Lib. 2, c. 26.

(v) Mr. Prynne, with some appearance of reason, insinuates that their researches were very superficial. (Aur. Reg. 125.)

(w) 19 Rym. Fæd. 721.

(y) Pryn. Aur. Reg. 127.

(x) Bracton, 1. 3, c. 3. Britton, c 17. Flet. 1. 1, c. 45 et 46.

(2) [The reason is more whimsical than the division, for the whalebone lies entirely in the head.]

of our lady the king's companion, as of the king himself: and to violate, or defile the queen consort, amounts to the same high crime; as well in the person committing the fact, as in the queen herself, if consenting. A law of Henry the Eighth (2) made it treason also for any woman, who was not a virgin, to marry the king without informing him thereof: but this law was soon after repealed, (3) it trespassing too strongly as well on natural justice as female modesty. If, however, the queen be accused of any species of treason, she shall, (whether consort or dowager) be tried by the peers of parliament, as Queen Ann Boleyn was in 28 Hen. VIII.

The husband of a queen regnant, as Prince George of Denmark was to Queen Anne, is her subject: and may be guilty of high treason against her: but, in the instance of conjugal infidelity, he is not subjected to the same penal *restrictions, for which the reason seems to be that, if a queen consort

is unfaithful to the royal bed, this may debase or bastardize the heirs to [*223] the crown; but no such danger can be consequent on the infidelity of the husband to a queen regnant.

A queen dowager is the widow of the king, and, as such, enjoys most of the privileges belonging to her as queen consort. But it is not high treason to conspire her death, or to violate her chastity, for the same reason as was before alleged, because the succession to the crown is not thereby endangered. Yet still, pro dignitate regali, no man can marry a queen dowager without special licence from the king, on pain of forfeiting his lands and goods. This, Sir Edward Coke (a) tells us, was enacted in parliament in 6 Hen. VI, though the statute be not in print. But she, though an alien born, shall still be entitled to dower after the king's demise, which no other alien is. (b) A queen dowager, when married again to a subject, doth not lose her regal dignity, as peeresses dowager do their peerage when they marry commoners. For Catherine, queen dowager of Henry V, though she married a private gentleman, Owen ap Meredith ap Theodore, commonly called Owen Tudor, yet, by the name of Catherine, queen of England, maintained an action against the bishop of Carlisle. (4) And so, the queen dowager of Navarre, marrying with Edmond earl of Lancaster, brother to King Edward the First, maintained an action of dower (after the death of her second husband) by the name of queen of Navarre. (c)

The prince of Wales, or heir-apparent to the crown, and also his royal consort, and the princess royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. For, by statute 25 Edw. III, to compass or conspire the death of the former, or to violate the chastity of either of the latter, are as much high treason as to conspire the death of the king, or violate the chastity of the queen. And this upon the same reason as was before given: because the prince of Wales is next in succession to the crown, and to violate his wife might taint the blood royal with bastardy: and the eldest daughter of the king is also alone inheritable to the *crown, on failure of issue male, and therefore more [*224] respected by the laws than any of her younger sisters, insomuch that upon this, united with other (feudal) principles, while our military tenures were in force, the king might levy an aid for marrying his eldest daughter, and her only. The heir-apparent to the crown is usually made prince of Wales, (5) and

(z) Stat. 33 Hen. VIII, c. 21. (a) 2 Inst. 18. See Riley's Plac. Parl. 672. (b) Co. Litt. 31. b. (c) 2 Inst. 50.

(3) [This was a clause in the act, which attainted Queen Catharine Howard, and her accomplices, for her incontinence; but it was not repealed till the 1 Edw. VI, c. 12, which abrogated all treasons created since the memorable statute in the 25 Edw. III.]

(4) [The foregoing proposition is not really illustrated by the case of Catherine, inasmuch as her marriage with Tudor was carefully concealed, and not discovered till after her burial, when it produced great public excitement and uproar, as she left four children. It is needless to remind the reader that Tudor proved the ancestor of a new dynasty of British sovereigns.]

(5) [This creation has not been confined to the heir apparent, for both Queen Mary and Queen Elizabeth were created by their father, Henry VIII, princesses of Wales, each of them at the time (the latter after the illegitimation of Mary) being heir presumptive to the crown. Hume, 113.

4

Edward II was the first prince of Wales. When his father had subdued the kingdom of