« PreviousContinue »
The Right of Succession. In this due medium consists the true constitutional right of succession. The extremes, between which it steers, are each of them destructive of those ends, for which societies were formed. Where the magistrate upon every succession, is elected by the people, and may be deposed by his subjects, it looks like the perfection of liberty, when spread out 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 passive obedience, is surely, of all constitutions, the most slavish. But when such hereditary right, as our laws have vested in the royal stock, is closely interwoven with those liberties, which are the inheritance of the subject, this union will form a constitution, in theory beautiful, in practice approved, and probably in duration permanent.
CHAPTER IV. THE KING'S ROYAL FAMILY.
The Queen. She is either queen regnant, the ruling queen, who holds the crown in her own right, with the powers of a king; queen consort, the wife of the king; or queen dowager, the widow of a king.
Queen Consort. 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 separate existence while the marriage continues. She may purchase lands and convey them, and make leases, without the concurrence of her husband. She is also capable of taking a grant from him, which no other wife is privileged to accept from her husband. She has separate courts and offices, distinct from those of the king, not only in matters of ceremony, but even of law. She may likewise sue and be sued alone, without joining her husband. She may 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 treated as a feme sole, and not as a feme covert, and may transact her own concerns, without troubling and disquieting the king, whose continual care should be for the public good.
Prerogatives and Revenue. The queen has also many exemptions and minute prerogatives. She pays no toll, and is liable to no amercements, but in general, unless the law expressly exempts her, she is upon the same footing with other subjects. She also has some pecuniary advantages, which provide her with a distinct revenue. The original revenue of our ancient queens seems to have consisted in certain reservations or rents out of the demesne lands of the crown, which were expressly appropriated to them. An odd perquisite belonging to the queen consort was this, that on the taking of a whale on the coast, which is a royal fish, it was divided between the king and queen.
Personal Security. Though the queen is in all respects a subject, yet as to personal security, she is placed on the same footing as the king, and it is equally treason to compass her death. If the queen be accused of treason, she shall be tried by the peers of parliament.
Queen Regnant. The husband of a queen regnant 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. Her unfaithfulness might debase the heirs to the crown, while no such danger could result from his act.
Queen Dowager. She is the widow of a king, and enjoys most of the privileges, which belonged to her as queen consort. But it is not high treason to conspire her death, because the succession to the crown is not thereby endangered. Yet no man can marry the queen dowager, without special license from the king, on pain of forfeiting his lands and goods. But she, though an alien born, is entitled to dower after her husband's demise, which no other alien is. A queen dowager in marrying a commoner does not lose her regal dignity, as peeresses dowagers do their peerage.
Prince of Wales. He is the heir apparent to the crown. His royal consort and the princess royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. To conspire against his life is as much high treason, as to plot against the life of the king. The heir apparent 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.
1 Edward II was the first prince of Wales. His father, on subduing that country, promised the people, on condition of their submission, to give them a prince born among them, and who could speak no other language. He then appointed his own babe.
Who are Included. The term royal family is now restricted since the revolution and act of settlement, to the protestant issue of the princess Sophia. The more confined sense includes only those within a certain degree of propinquity to the reigning prince, and to whom, therefore, the law pays marked respect, but after that degree is past, they fall into the rank of ordinary subjects.
More Remote Branches. The younger sons and daughters of the king, and other branches of the royal family, who are not in the immediate line of succession, were little further regarded by the ancient law, than to give them a certain precedence before all peers and public officers. · Under the description of the king's children, his grandsons are held to be included.
Marriage of Members of the Royal Family. By statute, no descendant of George II, other than the issue of princesses, married into foreign families, may marry, except with the previous consent of the king, under the great seal, provided if such descendant has reached the age of twenty-five, he or she may after twelve months notice to the king's privy council, contract and solemnize marriage, without the consent of the crown, unless both houses of parliament shall before the end of the year, disapprove of such intended marriage. Persons taking part or being present at such prohibited marriage, shall suffer the penalty of the statute of praemunire.
CHAPTER V.—THE KING'S COUNCILS.
1. Parliament. We have already treated of the parliament in a previous chapter.
2. The Peers of the Realm. By birth, these are hereditary counsellors of the crown, and may be convened by the king to impart their advice in all matters of importance to the realm, either during the session of parliament, or during its vacation. They are privileged from arrest at all times.
3. Judges of the Courts of Law for Legal Matters.
4. The King's Privy Council. The king's will is the sole constituent of a privy counsellor, and the number of his council is indefinite. They are native born, and are made by the king's nomination, and may be removed at his discretion.
Their Duties. (1) To advise the king, according to the best of his judgment. (2) To advise for the king's honor and good of the public, without partiality through affection, love, doubt or dread. (3) To keep the king's council secret. (4) To avoid corruption. (5) To help and strengthen the execution of what shall be there resolved. (6) To oppose all persons, who shall attempt the contrary. (7) To observe keep and do all that a good and true counsellor ought to do to his lord.
Their Powers. To inquire into all offences against the government, and to commit the offenders to safe custody, in order to take their trial in some of the courts of law. But their jurisdiction herein is only to inquire and not to punish, and the persons committed by them are entitled to their habeas corpus, as much as if committed by a justice of the peace. Under Charles I, the court of star chamber and the court of requests were dissolved. In plantation or admiralty cases, which arise out of the jurisdiction of the kingdom, and in matters of lunacy or idiocy, although possibly involving questions of extensive property, the privy council continues to have cognizance, being the court of appeal in such cases, or rather the appeal lies to the king himself in council. Whenever a question arises between two provinces in America or elsewhere, the king in his council exercises original jurisdiction, upon the principles of feudal sovereignty. But from all dominions of the crown, excepting Great Britain and Ireland, an appellate jurisdiction is vested in the same tribunal, which usually exercises its judicial authority in a committee of the whole privy council, who hear the allegations and proofs, and make their report to his majesty in council, by whom the judgment is finally given.
Their Privileges. These consist principally in the security, which the law has given them against attempts on their lives. Any conspiracy by the king's servants of his household to take away the life of a privy counsellor is felony, though nothing be consummated.
Their Dissolution. This depends upon the king's pleas
He may, whenever he thinks proper, discharge any particular member, or all of them, and appoint new men. The privy council continue for six months after the demise of the crown, unless sooner determined by the successor.
CHAPTER VI.-THE KING'S DUTIES.
Defined in 1688. His dignity and prerogative are established by the laws of the land, it being a maxim in law, that protection and subjection are reciprocal. These duties are what were meant by the convention in 1688, when they declared that king James II had broken the original contract between king and people. After the revolution of that year, it was deemed advisable to declare these duties expressly, and to reduce that contract to a certainty.
Oath of Coronation. The principal duty of the king is to govern the people according to law. This is not only consonant to the principles of nature, liberty, reason and society, but has been an express part of the common law, even when prerogative was at its height. The coronation oath includes a promise by the sovereign, to govern according to the statutes of parliament, and the laws and customs of the same. In the king's part of this original contract are expressed all the duties that a monarch can owe to his people; viz. to govern according to law, to execute judgment in mercy, and to maintain the established religion.
The Established Church. By the act of union under queen Anne, the preceding statutes were confirmed, the one of the parliament of Scotland, the other of the parliament of England, that every king at his accession shall take oath, to preserve the Presbyterian church government in Scotland, and to preserve the settlement of the church of England within England, Ireland, Wales and Berwick, and the territories thereunto belonging.
CHAPTER VII. THE KING'S PREROGATIVE.
Divine Right of Kings. In former ages, the limit of the king's prerogative was deemed a topic too sacred to be prepared by the pen of a subject. It was ranked among the arcana,