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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 regnant, queen consort, or queen dowager. The queen regent, regnant, or sovereign, is she who holds the crown in her own right ; 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.
And, first, she is a public person, exempt and distinct from the king ; and is 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 has 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. She is also capable of taking a grant from the king, which no other wife is from her husband. The queen of England has separate courts and officers distinct from the king, 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. 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, in all legal proceedings she is looked upon as a femme sole, and not as a married woman.
The queen has also many exceptions and minute prerogatives. For instance, she pays no toll, nor is she liable to any amercement in any court. But in general, uniess when 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. She has also some pecuniary advantages which form her a distinct revenue.
But although the queen consort is in all respects a subject, yet in point of security of her life and person, she is put on the same footing with the king. It is equally treason to compass or imagine the death 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. If, however, the queen be accused of any species of treason, she shall (whether consort or dowager) be tried by the peers of parliament. (25 Edward III.)
The husband of a queen regnant, as prince George of Denmark was to queen Anne, is hier subject, and may be guilty of high treason against her:
but in the instance of conjugal infidelity, be is not subject to the same penal retributions.
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 violate her chastity, for the same reason as was before alleged. Yet still, pro dignitate reguli, no man can marry a queen dowager without special license from the king, on pain of forfeiting her land and goods. But she, though an alien born, shall still be entitled to dower after the king's demise, which no other alien is.
A queen dowager, when married again to a subject, doth not lose her regal dignity, as dowager peeresses do their peerage when they marry commoners.
Catharine, queen dowager of Henry V. married Owen Tudor, a private gentleman; and yet maintained an action against the bishop of Carlisle, by the name of Catharine, queen of England.
The prince of Wales, or heir apparent to the crown, and also bis royal consort, and the princess royal, or the king's eldest daughter, are likewise peculiarly regarded by the laws. For by statute 25 Edward. 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 to violate the chastity of the queen. The heir apparent to the crown is usually made prince of Wales and earl of Chester, by special creation and investiture; but being the king's eldest son, he is by inheritance duke of Cornwall, without any new creation.
The rest of the royal family may be considered in two different lights, according to the different senses in which the term royal family is used. The larger sense, includes all those who are by any possibility inheritable to the crown, which since the revolution and act of settlement, means the protestant issue of the princess Sophia. The more confined sense includes only those, who are within a certain degree of propinquity to the reigning prince, and to whom therefore the law pays an extraordinary regard and respect : but after that degree is past, they fall into the rank of ordinary subjects, and are seldom considered any farther, unless called to the succession upon failure of the nearer line.
And now by statute 12 Geo. .III. no descendant of the body of Geo. II. (other than the issue of princesses married into foreign families) is capable of contracting matrimony without the king's previous consent signified under the great seal; and any marriage contracted without such consent is void. Provided, that such of the said descendants, as are above the age of twenty-five, may, after a twelvemonth's notice given to the king's privy council, contract and solemnize marriage without the consent of the crown ; unless both houses of parliament shall, before the expiration of the said year, expressly declare their disapprobation of such intended marriage.
The royal family is subject to pay taxes, unless they are expressly ex
empted, which in every tax bill is always done. But the peculiar privileges of the royal family are greatly counterbalanced by the legal restraints laid upon their marriages.
The queen was anciently entitled to certain perquisites, called the queen's gold, to purchase oil, as it was quaintly said, and attire for her person. Another of the queen's perquisites was formerly the right to the half of any whale found on the coast, which was for that reason called a royal fish. The head belonged to the king and the tail to the queen; and the reason assigned by old writers for this whimsical division was “to furnish the queen's wardrobe.” But of late years these rights have not been exacted.*
OF THE KING.
upon which the
THE supreme executive power
of these kingdoms is vested by our laws in a single person, the king or queen : for it matters not to which sex the crown descends; but the person entitled to it, whether male or female, is immediately invested with all the ensigns, rights, and prerogatives of sovereign power.
“ The grand fundamental maxim,” says Blackstone, jus coronæ, or right of succession to the throne of these kingdoms depends, I take to be this : that the crown is by common law and constitutional custom, hereditary, but that the right of inheritance may from time to time be changed or limited by act of parliament ; under which limitations the crown still continues hereditary.'”
1. First, it is hereditary, or descendible to the next heir, on the death or demise of the last proprietor.
2. But, secondly, as to the particular mode of inheritance, it in general corresponds with the feudal path of descents, chalked out by the common law in the succession to landed estates ; yet with some material exceptions. Like estates ; the crown will descend lineally to the issue of the reigning monarch, as it did from king John to Richard II., through a regular pedigree of six lineal generations, and from George II. to his grandson George III. As in common descents, the preference of males to females, and the rights of primogeniture among the males, are strictly adhered to. Like lands or tenements, the crown, on failure of the male line, descends to the issue female. But, among the females, the crown descends by right of primogeniture to the eldest daughter only and her issue, and not as in
* Blackstone's Commentaries.
common inheritances, to all the daughters at once ; the evident necessity of a sole succession to the throne having occasioned the royal law of descents to depart from the common law in this respect; and therefore queen Mary, on the death of her brother, succeeded to the crown alone, and not in partnership with her sister Elizabeth. Lastly, on the failure of lineal descendants, the crown descends to the next collateral relations of the last king ; provided they are lineally descended from the blood royal, that is, from the royal stock which originally acquired the crown.
3. It is unquestionably in the breast of the king, with the advice of both houses of parliament, to change the succession ; and by particular entails, limitations, and provisions, to exclude the immediate heir, and vest the inheritance in any one else.
4. But however the crown may be limited or transferred, it still retains its descendible quality, and becomes hereditary in the wearer of it.
And hence in our law the king is said never to die, in his political capacity ; though in common with other men, he is subject to mortality in his natural body ; because immediately on the natural death of Henry, George, or William, the king survives in his successor. For the right of the crown vests eo instante, upon his heir ; either the hæres natus, if the course of descent remains unimpeached, or the hæres factus, if the inheritance be under any particular settlement. So that there can be no interregnum; but, as Sir Matthew Hale observes, the right of sovereignty is fully invested in the successor by the descent of the crown. And therefore it becomes in him absolutely hereditary, unless it is otherwise ordered and determined by the rules of the limitation.
Beyond all controversy the English government has been monarchica) from the remotest period of its existence. That the royal office has always been hereditary and not elective, has never been denied but by the regicides who murdered king Charles I. These violent and infatuated men asserted the inalienable right of the people to elect their supreme governor ; and soon afterwards, with great inconsistency, the crown was offered to Cromwell, by a house of commons, convened by the sole authority of the usurper. Indeed the title of Cromwell himself to the supreme power, rested merely upon the instrument of government, which was drawn up by a counsel, consisting only of his general officers. What share the people had in proposing to make him a king, may be seen in the histories of that time.
In 1656 Cromwell summoned a parliament, when, not trusting to the good will of the people, lie used every art to influence the elections, which he had new-modelled, in order to fill the house with those who would be devoted to him ; but after all his precautions, he found the majority would not be favourable to his pretensions : he therefore placed a guard at the door, and no one was perinitted to enter the house of commons who did
not produce a warrant from his council. This packed parliament voted a renunciation of all title in Charles Stuart or any of his family; and at length, on the motion of alderman Pack, one of the members for London, passed a bill for investing the usurper with the dignity of King.–So much then for the choice of the people.
The hereditary right to the crown, acknowledged by the laws of England, has obtained the general consent and an established usage ; and consequently the king has the same title to the crown, that a private gentleman has to his hereditary estate. The experience of all ages has convinced every considerate man, that popular elections are unavoidably attended with great inconvenience ; and that undue influence, ambition, power, and artifice, will almost always prevail over virtue and integrity. And the fact is, as we learn from history, that the election of the ancient imperial governors was universally accompanied with bloodshed and murder. The election of the kings of Poland in former days, invariably raised the bitter waters of discontent and sedition to an alarming height, from which they subsided only in proportion to the fall of the fountain from which they flowed, deluging that unhappy country with the blood of its slaughtered people. But what Englishman who has witnessed the scenes of riot and confusion, which are exhibited at the election of representatives in parliament, will not rejoice that the succession to the crown is marked out with constitutional precision ; that a rule is laid down, which is uniform, universal, and permanent, and that thereby the peace and freedom of the state are preserved ?
The doctrine of representation likewise prevails in the descent of the crown, as in other inheritances; thus Richard II. succeeded his grandfather Edward III. in right of his father the Black Prince, who died whilst prince of Wales, and George III. took the crown on the demise of his grandfather George II. in right of his father Frederick prince of Wales, and each to the exclusion of their uncles.
As already mentioned, the king with the advice of his parliament, has the power to defeat the hereditary right, and entail the succession in any particular line. And the reason of this is very obvious, in order to avoid the inconvenience and distress that the whole nation must experience, were an idiot or lunatic necessarily to inherit the throne ; and on the other hand, to avert the miseries that must accrue to the reigning monarch at all times, were any such authority expressly confided to the people, who are liable to be influenced by caprice, and hurried on by the most ungovernable passions. Hence it is plain, that the English constitution disclaims all such political theories, as any right inherent in the people, either to choose or set aside their king. This is clear from the bill of rights, called the “Declaration of Right,” in which the lords and commons consider it 6
as a marvellous providence and merciful goodness of God to this