TO bring a bill into the house, if the relief sought by it is of a private nature, it is first necessary to prefer a petition; which must be presented by a member, and usually sets forth the grievance desired to be remedied. This petition (when founded on facts that may be in their nature disputed) is referred to a committee of members, who examine the matter alleged, and accordingly report it to the house; and then (or, otherwise, upon the mere petition) leave is given to bring in the bill. In public matters the bill is brought in upon motion made to the house, without any petition at all. Formerly, all bills were drawn in the form of petitions, which were entered upon the parliament rolls, with the king's answer thereunto subjoined; not in any settled form of words, but as the circumstances of the case required[n]: and at the end of each parliament the judges drew them into the form of a statute, which was entered on the statute-rolls. In the reign of Henry V, to prevent mistakes and abuses, the statutes were drawn up by the judges before the end of the parliament; and, in the reign of Henry VI, bills in the form of acts, according to the modern custom, were first introduced.
[Footnote n: See, among numberless other instances, the articuli cleri, 9 Edw. II.]
THE persons, directed to bring in the bill, present it in a competent time to the house, drawn out on paper, with a multitude of blanks, or void spaces, where any thing occurs that is dubious, or necessary to be settled by the parliament itself; (such, especially, as the precise date of times, the nature and quantity of penalties, or of any sums of money to be raised) being indeed only the sceleton of the bill. In the house of lords, if the bill begins there, it is (when of a private nature) perused by two of the judges, who settle all points of legal propriety. This is read a first time, and at a convenient distance a second time; and after each reading the speaker opens to the house the substance of the bill, and puts the question, whether it shall proceed any farther. The introduction of the bill may be originally opposed, as the bill itself may at either of the readings; and, if the opposition succeeds, the bill must be dropt for that sessions; as it must also, if opposed with success in any of the subsequent stages.
AFTER the second reading it is committed, that is, referred to a committee; which is either selected by the house in matters of small importance, or else, upon a bill of consequence, the house resolves itself into a committee of the whole house. A committee of the whole house is composed of every member; and, to form it, the speaker quits the chair, (another member being appointed chairman) and may sit and debate as a private member. In these committees the bill is debated clause by clause, amendments made, the blanks filled up, and sometimes the bill entirely new modelled. After it has gone through the committee, the chairman reports it to the house with such amendments as the committee have made; and then the house reconsider the whole bill again, and the question is repeatedly put upon every clause and amendment. When the house have agreed or disagreed to the amendments of the committee, and sometimes added new amendments of their own, the bill is then ordered to be engrossed, or written in a strong gross hand, on one or more long rolls of parchment sewed together. When this is finished, it is read a third time, and amendments are sometimes then made to it; and, if a new clause be added, it is done by tacking a separate piece of parchment on the bill, which is called a ryder. The speaker then again opens the contents; and, holding it up in his hands, puts the question, whether the bill shall pass. If this is agreed to, one of the members is directed to carry it to the lords, and desire their concurrence; who, attended by several more, carries it to the bar of the house of peers, and there delivers it to their speaker, who comes down from his woolsack to receive it.
IT there passes through the same forms as in the other house, (except engrossing, which is already done) and, if rejected, no more notice is taken, but it passes sub silentio, to prevent unbecoming altercations. But if it is agreed to, the lords send a message by two masters in chancery (or sometimes two of the judges) that they have agreed to the same: and the bill remains with the lords, if they have made no amendment to it. But if any amendments are made, such amendments are sent down with the bill to receive the concurrence of the commons. If the commons disagree to the amendments, a conference usually follows between members deputed from each house; who for the most part settle and adjust the difference: but, if both houses remain inflexible, the bill is dropped. If the commons agree to the amendments, the bill is sent back to the lords by one of the members, with a message to acquaint them therewith. The same forms are observed, mutatis mutandis, when the bill begins in the house of lords. And when both houses have done with the bill, it always is deposited in the house of peers, to wait the royal assent.
THIS may be given two ways: 1. In person; when the king comes to the house of peers, in his crown and royal robes, and sending for the commons to the bar, the titles of all the bills that have passed both houses are read; and the king's answer is declared by the clerk of the parliament in Norman-French: a badge, it must be owned, (now the only one remaining) of conquest; and which one could wish to see fall into total oblivion; unless it be reserved as a solemn memento to remind us that our liberties are mortal, having once been destroyed by a foreign force. If the king consents to a public bill, the clerk usually declares, "le roy le veut, the king wills it so to be;" if to a private bill, "soit fait come il est desire, be it as it is desired." If the king refuses his assent, it is in the gentle language of "le roy s'avisera, the king will advise upon it." 2. By statute 33 Hen. VIII. c. 21. the king may give his assent by letters patent under his great seal, signed with his hand, and notified, in his absence, to both houses assembled together in the high house. And, when the bill has received the royal assent in either of these ways, it is then, and not before, a statute or act of parliament.
THIS statute or act is placed among the records of the kingdom; there needing no formal promulgation to give it the force of a law, as was necessary by the civil law with regard to the emperors edicts: because every man in England is, in judgment of law, party to the making of an act of parliament, being present thereat by his representatives. However, a copy thereof is usually printed at the king's press, for the information of the whole land. And formerly, before the invention of printing, it was used to be published by the sheriff of every county; the king's writ being sent to him at the end of every session, together with a transcript of all the acts made at that session, commanding him "ut statuta illa, et omnes articulos in eisdem contentos, in singulis locis ubi expedire viderit, publice proclamari, et firmiter teneri et observari faciat." And the usage was to proclaim them at his county court, and there to keep them, that whoever would might read or take copies thereof; which custom continued till the reign of Henry the seventh[o].
[Footnote o: 3 Inst. 41. 4 Inst. 26.]
AN act of parliament, thus made, is the exercise of the highest authority that this kingdom acknowleges upon earth. It hath power to bind every subject in the land, and the dominions thereunto belonging; nay, even the king himself, if particularly named therein. And it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament: for it is a maxim in law, that it requires the same strength to dissolve, as to create an obligation. It is true it was formerly held, that the king might in many cases dispense with penal statutes[p]: but now by statute 1 W. & M. st. 2. c. 2. it is declared, that the suspending or dispensing with laws by regal authority, without consent of parliament, is illegal.
[Footnote p: Finch. L. 81. 234.]
VII. THERE remains only, in the seventh and last place, to add a word or two concerning the manner in which parliaments may be adjourned, prorogued, or dissolved.
AN adjournment is no more than a continuance of the session from one day to another, as the word itself signifies: and this is done by the authority of each house separately every day; and sometimes for a fortnight or a month together, as at Christmas or Easter, or upon other particular occasions. But the adjournment of one house is no adjournment of the other[q]. It hath also been usual, when his majesty hath signified his pleasure that both or either of the houses should adjourn themselves to a certain day, to obey the king's pleasure so signified, and to adjourn accordingly[r]. Otherwise, besides the indecorum of a refusal, a prorogation would assuredly follow; which would often be very inconvenient to both public and private business. For prorogation puts an end to the session; and then such bills, as are only begun and not perfected, must be resumed de novo (if at all) in a subsequent session: whereas, after an adjournment, all things continue in the same state as at the time of the adjournment made, and may be proceeded on without any fresh commencement.
[Footnote q: 4 Inst. 28.]
[Footnote r: Com. Journ. passim: e.g. 11 Jun. 1572. 5 Apr. 1604. 4 Jun. 14 Nov. 18 Dec. 1621. 11 Jul. 1625. 13 Sept. 1660. 25 Jul. 1667. 4 Aug. 1685. 24 Febr. 1691. 21 Jun. 1712. 16 Apr. 1717. 3 Feb. 1741. 10 Dec. 1745.]
A PROROGATION is the continuance of the parliament from one session to another, as an adjournment is a continuation of the session from day to day. This is done by the royal authority, expressed either by the lord chancellor in his majesty's presence, or by commission from the crown, or frequently by proclamation. Both houses are necessarily prorogued at the same time; it not being a prorogation of the house of lords, or commons, but of the parliament. The session is never understood to be at an end, until a prorogation: though, unless some act be passed or some judgment given in parliament, it is in truth no session at all[s]. And formerly the usage was, for the king to give the royal assent to all such bills as he approved, at the end of every session, and then to prorogue the parliament; though sometimes only for a day or two[t]: after which all business then depending in the houses was to be begun again. Which custom obtained so strongly, that it once became a question[u], whether giving the royal assent to a single bill did not of course put an end to the session. And, though it was then resolved in the negative, yet the notion was so deeply rooted, that the statute 1 Car. I. c. 7. was passed to declare, that the king's assent to that and some other acts should not put an end to the session; and, even so late as the restoration of Charles II, we find a proviso tacked to the first bill then enacted[w] that his majesty's assent thereto should not determine the session of parliament. But it now seems to be allowed, that a prorogation must be expressly made, in order to determine the session. And, if at the time of an actual rebellion, or imminent danger of invasion, the parliament shall be separated by adjournment or prorogation, the king is empowered[x] to call them together by proclamation, with fourteen days notice of the time appointed for their reassembling.
[Footnote s: 4 Inst. 28. Hale of parl. 38.]
[Footnote t: Com. Journ. 21 Oct. 1553.]
[Footnote u: Ibid. 21 Nov. 1554.]
[Footnote w: Stat. 12 Car. II. c. 1.]
[Footnote x: Stat. 30 Geo. II. c. 25.]
A DISSOLUTION is the civil death of the parliament; and this may be effected three ways: 1. By the king's will, expressed either in person or by representation. For, as the king has the sole right of convening the parliament, so also it is a branch of the royal prerogative, that he may (whenever he pleases) prorogue the parliament for a time, or put a final period to it's existence. If nothing had a right to prorogue or dissolve a parliament but itself, it might happen to become perpetual. And this would be extremely dangerous, if at any time it should attempt to encroach upon the executive power: as was fatally experienced by the unfortunate king Charles the first; who, having unadvisedly passed an act to continue the parliament then in being till such time as it should please to dissolve itself, at last fell a sacrifice to that inordinate power, which he himself had consented to give them. It is therefore extremely necessary that the crown should be empowered to regulate the duration of these assemblies, under the limitations which the English constitution has prescribed: so that, on the one hand, they may frequently and regularly come together, for the dispatch of business and redress of grievances; and may not, on the other, even with the consent of the crown, be continued to an inconvenient or unconstitutional length.
2. A PARLIAMENT may be dissolved by the demise of the crown. This dissolution formerly happened immediately upon the death of the reigning sovereign, for he being considered in law as the head of the parliament, (caput, principium, et finis) that failing, the whole body was held to be extinct. But, the calling a new parliament immediately on the inauguration of the successor being found inconvenient, and dangers being apprehended from having no parliament in being in case of a disputed succession, it was enacted by the statutes 7 & 8 W. III. c. 15. and 6 Ann. c. 7. that the parliament in being shall continue for six months after the death of any king or queen, unless sooner prorogued or dissolved by the successor: that, if the parliament be, at the time of the king's death, separated by adjournment or prorogation, it shall notwithstanding assemble immediately: and that, if no parliament is then in being, the members of the last parliament shall assemble, and be again a parliament.
3. LASTLY, a parliament may be dissolved or expire by length of time. For if either the legislative body were perpetual; or might last for the life of the prince who convened them, as formerly; and were so to be supplied, by occasionally filling the vacancies with new representatives; in these cases, if it were once corrupted, the evil would be past all remedy: but when different bodies succeed each other, if the people see cause to disapprove of the present, they may rectify it's faults in the next. A legislative assembly also, which is sure to be separated again, (whereby it's members will themselves become private men, and subject to the full extent of the laws which they have enacted for others) will think themselves bound, in interest as well as duty, to make only such laws as are good. The utmost extent of time that the same parliament was allowed to sit, by the statute 6 W. & M. c. 2. was three years; after the expiration of which, reckoning from the return of the first summons, the parliament was to have no longer continuance. But by the statute 1 Geo. I. st. 2. c. 38. (in order, professedly, to prevent the great and continued expenses of frequent elections, and the violent heats and animosities consequent thereupon, and for the peace and security of the government then just recovering from the late rebellion) this term was prolonged to seven years; and, what alone is an instance of the vast authority of parliament, the very same house, that was chosen for three years, enacted it's own continuance for seven. So that, as our constitution now stands, the parliament must expire, or die a natural death, at the end of every seventh year; if not sooner dissolved by the royal prerogative.
CHAPTER THE THIRD.
OF THE KING, AND HIS TITLE.
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; as is declared by statute 1 Mar. st. 3. c. 1.
IN discoursing of the royal rights and authority, I shall consider the king under six distinct 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 vested in a single person, by the general consent of the people, the evidence of which general consent is long and immemorial usage, it became necessary to the freedom and peace of the state, that a rule should be laid down, uniform, universal, and permanent; in order to mark out with precision, who is that single person, to whom are committed (in subservience 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 private men, that this rule should be clear and indisputable: and our constitution has not left us in the dark upon this material occasion. It will therefore be the endeavour of this chapter to trace out the constitutional doctrine of the royal succession, with that freedom and regard to truth, yet mixed with that reverence and respect, which the principles of liberty and the dignity of the subject require.
THE grand fundamental maxim upon which the jus coronae, 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; 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 still continues hereditary." And this proposition it will be the business of this chapter to prove, in all it's branches: first, that the crown is hereditary; secondly, that it is hereditary in a manner peculiar to itself; thirdly, that this inheritance is subject to limitation by parliament; lastly, that when it is so limited, it is hereditary in the new proprietor.
1. FIRST, it is in general hereditary, or descendible to the next heir, on the death or demise of the last proprietor. All regal governments must be either hereditary or elective: and, as I believe there is no instance wherein the crown of England has ever been asserted to be elective, except by the regicides at the infamous and unparalleled trial of king Charles I, it must of consequence be hereditary. Yet while I assert an hereditary, I by no means intend a jure divino, title to the throne. Such a title may be allowed to have subsisted under the theocratic establishments of the children of Israel in Palestine: but it never yet subsisted in any other country; save only so far as kingdoms, like other human fabrics, are subject to the general and ordinary dispensations of providence. Nor indeed have a jure divino and an hereditary right any necessary connexion with each other; as some have very weakly imagined. The titles of David and Jehu were equally jure divino, as those of either Solomon or Ahab; and yet David slew the sons of his predecessor, and Jehu his predecessor himself. And when our kings have the same warrant as they had, whether it be to sit upon the throne of their fathers, or to destroy the house of the preceding sovereign, they will then, and not before, possess 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 constitution, 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 society 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 chose, and upon good reason, to establish originally a succession by inheritance. This has been acquiesced in by general consent; and ripened by degrees into common law: the very same title that every private man has to his own estate. Lands are not naturally descendible any more than thrones: but the law has thought proper, for the benefit and peace of the public, to establish hereditary succession in one as well as the other.
IT must be owned, an elective monarchy seems 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 almost every state, the leader, chief magistrate, or prince, hath usually been elective. And, if the individuals who compose that state could always continue true to first principles, uninfluenced by passion or prejudice, unassailed by corruption, and unawed by violence, elective succession were as much to be desired in a kingdom, as in other inferior communities. The best, the wisest, and the bravest man would then be sure of receiving that crown, which his endowments have merited; and the sense of an unbiassed majority would be dutifully acquiesced in by the few who were of different opinions. But history and observation will inform us, that elections of every kind (in the present state of human nature) are too frequently brought about by influence, partiality, and artifice: and, even where the case is otherwise, these practices will be often suspected, and as constantly charged upon the successful, by a splenetic disappointed minority. This is an evil, to which all societies are liable; as well those of a private and domestic kind, as the great community of the public, which regulates and includes the rest. But in the former there is this advantage; that such suspicions, if false, proceed no farther than jealousies and murmurs, which time will effectually suppress; and, if true, the injustice may be remedied by legal means, by an appeal to those tribunals to which every member of society has (by becoming such) virtually engaged to submit. Whereas, in the great and independent society, which every nation composes, there is no superior to resort to but the law of nature; no method to redress 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; so in one and the same nation, when the fundamental principles of their common union are supposed to be invaded, and more especially when the appointment of their chief magistrate is alleged to be unduly made, the only tribunal to which the complainants can appeal is that of the God of battels, the only process by which the appeal can be carried on is that of a civil and intestine war. An hereditary succession to the crown is therefore now established, in this and most other countries, in order to prevent that periodical bloodshed and misery, which the history of antient imperial Rome, and the more modern experience of Poland and Germany, may shew us are the consequences of elective kingdoms.
2. BUT, secondly, as to the particular mode of inheritance, it in general corresponds with the feodal path of descents, chalked out by the common law in the succession to landed estates; yet with one or two material exceptions. Like them, 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 descents. As in them, the preference of males to females, and the right of primogeniture among the males, are strictly adhered to. Thus Edward V succeeded to the crown, in preference to Richard his younger brother and Elizabeth his elder sister. Like them, on failure of the male line, it descends to the issue female; according to the antient British custom remarked by Tacitus[a], "solent foeminarum ductu bellare, et sexum in imperiis non discernere." Thus Mary I succeeded to Edward VI; and the line of Margaret queen of Scots, the daughter of Henry VII, succeeded on failure of the line of Henry VIII, his son. But, among the females, the crown descends by right of primogeniture to the eldest daughter only and her issue; and not, as in 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. Again: the doctrine of representation prevails in the descent of the crown, as it does in other inheritances; whereby the lineal descendants of any person deceased stand in the same place as their ancestor, if living, would have done. Thus Richard II succeeded his grandfather Edward III, in right of his father the black prince; to the exclusion of all his uncles, his grandfather's younger children. Lastly, on failure of lineal descendants, the crown goes to the next collateral relations of the late king; provided they are lineally descended from the blood royal, that is, from that royal stock which originally acquired the crown. Thus Henry I succeeded to William II, John to Richard I, and James I to Elizabeth; being all derived from the conqueror, who was then the only regal stock. But herein there is no objection (as in the case of common descents) to the succession of a brother, an uncle, or other collateral relation, of the half blood; that is, where the relationship proceeds not from the same couple of ancestors (which constitutes a kinsman of the whole blood) but from a single ancestor only; as when two persons are derived from the same father, and not from the same mother, or vice versa: provided only, that the one ancestor, from whom both are descended, be he from whose veins the blood royal is communicated to each. Thus Mary I inherited to Edward VI, and Elizabeth inherited to Mary; all born of the same father, king Henry VIII, but all by different mothers. The reason of which diversity, between royal and common descents, will be better understood hereafter, when we examine the nature of inheritances in general.
[Footnote a: in vit. Agricolae.]
3. THE doctrine of hereditary right does by no means imply an indefeasible right to the throne. No man will, I think, assert this, that has considered our laws, constitution, and history, without prejudice, and with any degree of attention. It is unquestionably in the breast of the supreme legislative authority of this kingdom, the king and both houses of parliament, to defeat this hereditary right; and, by particular entails, limitations, and provisions, to exclude the immediate heir, and vest the inheritance in any one else. This is strictly consonant to our laws and constitution; as may be gathered from the expression so frequently used in our statute book, of "the king's majesty, his heirs, and successors." In which we may observe, that as the word, "heirs," necessarily implies an inheritance or hereditary right, generally subsisting in the royal person; so the word, "successors," distinctly taken, must imply that this inheritance may sometimes be broke through; or, that there may be a successor, without being the heir, of the king. And this is so extremely reasonable, that without such a power, lodged somewhere, our polity would be very defective. For, let us barely suppose so melancholy a case, as that the heir apparent should be a lunatic, an ideot, or otherwise incapable of reigning: how miserable would the condition of the nation be, if he were also incapable of being set aside!—It is therefore necessary that this power should be lodged somewhere: and yet the inheritance, and regal dignity, would be very precarious indeed, if this power were expressly and avowedly lodged in the hands of the subject only, to be exerted whenever prejudice, caprice, or discontent should happen to take the lead. Consequently it can no where be so properly lodged as in the two houses of parliament, by and with the consent of the reigning king; who, it is not to be supposed, will agree to any thing improperly prejudicial to the rights of his own descendants. And therefore in the king, lords, and commons, in parliament assembled, our laws have expressly lodged it.
4. BUT, fourthly; however the crown maybe limited or transferred, it still retains it's 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: because immediately upon the natural death of Henry, William, or Edward, the king survives in his successor; and the right of the crown vests, eo instanti, upon his heir; either the haeres natus, if the course of descent remains unimpeached, or the haeres factus, if the inheritance be under any particular settlement. So that there can be no interregnum; but as sir Matthew Hale[b] observes, the right of sovereignty is fully invested in the successor by the very descent of the crown. And therefore, however acquired, it becomes in him absolutely hereditary, unless by the rules of the limitation it is otherwise ordered and determined. In the same manner as landed estates, to continue our former comparison, are by the law hereditary, or descendible to the heirs of the owner; but still there exists a power, by which the property of those lands may be transferred to another person. If this transfer be made simply and absolutely, the lands will be hereditary in the new owner, and descend to his heirs at law: but if the transfer be clogged with any limitations, conditions, or entails, the lands must descend in that chanel, so limited and prescribed, and no other.
[Footnote b: 1 Hist. P.C. 61.]
IN these four points consists, as I take it, the constitutional notion of hereditary right to the throne: which will be still farther elucidated, and made clear beyond all dispute, from a short historical view of the successions to the crown of England, the doctrines of our antient lawyers, and the several acts of parliament that have from time to time been made, to create, to declare, to confirm, to limit, or to bar, the hereditary title to the throne. And in the pursuit of this enquiry we shall find, that from the days of Egbert, the first sole monarch of this kingdom, even to the present, the four cardinal maxims above mentioned have ever been held the constitutional canons of succession. It is true, this succession, through fraud, or force, or sometimes through necessity, when in hostile times the crown descended on a minor or the like, has been very frequently suspended; but has always at last returned back into the old hereditary chanel, though sometimes a very considerable period has intervened. And, even in those instances where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it. Of which the usurpers themselves were so sensible, that they for the most part endeavoured to vamp up some feeble shew of a title by descent, in order to amuse the people, while they gained the possession of the kingdom. And, when possession was once gained, they considered it as the purchase or acquisition of a new estate of inheritance, and transmitted or endeavoured to transmit it to their own posterity, by a kind of hereditary right of usurpation.
KING Egbert about the year 800, found himself in possession of the throne of the west Saxons, by a long and undisturbed descent from his ancestors of above three hundred years. How his ancestors acquired their title, whether by force, by fraud, by contract, or by election, it matters not much to enquire; and is indeed a point of such high antiquity, as must render all enquiries at best but plausible guesses. His right must be supposed indisputably good, because we know no better. The other kingdoms of the heptarchy he acquired, some by consent, but most by a voluntary submission. And it is an established maxim in civil polity, and the law of nations, that when one country is united to another in such a manner, as that one keeps it's government and states, and the other loses them; the latter entirely assimilates or is melted down in the former, and must adopt it's laws and customs[c]. And in pursuance of this maxim there hath ever been, since the union of the heptarchy in king Egbert, a general acquiescence under the hereditary monarchy of the west Saxons, through all the united kingdoms.
[Footnote c: Puff. L. of N. and N. b. 8. c. 12. Sec. 6.]
FROM Egbert to the death of Edmund Ironside, a period of above two hundred years, the crown descended regularly, through a succession of fifteen princes, without any deviation or interruption; save only that king Edred, the uncle of Edwy, mounted the throne for about nine years, in the right of his nephew a minor, the times being very troublesome and dangerous. But this was with a view to preserve, and not to destroy, the succession; and accordingly Edwy succeeded him.
KING Edmund Ironside was obliged, by the hostile irruption of the Danes, at first to divide his kingdom with Canute, king of Denmark; and Canute, after his death, seised the whole of it, Edmund's sons being driven into foreign countries. Here the succession was suspended by actual force, and a new family introduced upon the throne: in whom however this new acquired throne continued hereditary for three reigns; when, upon the death of Hardiknute, the antient Saxon line was restored in the person of Edward the confessor.
HE was not indeed the true heir to the crown, being the younger brother of king Edmund Ironside, who had a son Edward, sirnamed (from his exile) the outlaw, still living. But this son was then in Hungary; and, the English having just shaken off the Danish yoke, it was necessary that somebody on the spot should mount the throne; and the confessor was the next of the royal line then in England. On his decease without issue, Harold II usurped the throne, and almost at the same instant came on the Norman invasion: the right to the crown being all the time in Edgar, sirnamed Atheling, (which signifies in the Saxon language the first of the blood royal) who was the son of Edward the outlaw, and grandson of Edmund Ironside; or, as Matthew Paris[d] well expresses the sense of our old constitution, "Edmundus autem latusferreum, rex naturalis de stirpe regum, genuit Edwardum; et Edwardus genuit Edgarum, cui de jure debebatur regnum Anglorum."
[Footnote d: A.D. 1066.]
WILLIAM the Norman claimed the crown by virtue of a pretended grant from king Edward the confessor; a grant which, if real, was in itself utterly invalid: because it was made, as Harold well observed in his reply to William's demand[e], "absque generali senatus et populi conventu et edicto;" which also very plainly implies, that it then was generally understood that the king, with consent of the general council, might dispose of the crown and change the line of succession. William's title however was altogether as good as Harold's, he being a mere private subject, and an utter stranger to the royal blood. Edgar Atheling's undoubted right was overwhelmed by the violence of the times; though frequently asserted by the English nobility after the conquest, till such time as he died without issue: but all their attempts proved unsuccessful, and only served the more firmly to establish the crown in the family which had newly acquired it.
[Footnote e: William of Malmsb. l. 3.]
THIS conquest then by William of Normandy was, like that of Canute before, a forcible transfer of the crown of England into a new family: but, the crown being so transferred, all the inherent properties of the crown were with it transferred also. For, the victory obtained at Hastings not being[f] a victory over the nation collectively, but only over the person of Harold, the only right that the conqueror could pretend to acquire thereby, was the right to possess the crown of England, not to alter the nature of the government. And therefore, as the English laws still remained in force, he must necessarily take the crown subject to those laws, and with all it's inherent properties; the first and principal of which was it's descendibility. Here then we must drop our race of Saxon kings, at least for a while, and derive our descents from William the conqueror as from a new stock, who acquired by right of war (such as it is, yet still the dernier resort of kings) a strong and undisputed title to the inheritable crown of England.
[Footnote f: Hale, Hist. C.L. c. 5. Seld. review of tithes, c. 8.]
ACCORDINGLY it descended from him to his sons William II and Henry I. Robert, it must be owned, his eldest son, was kept out of possession by the arts and violence of his brethren; who proceeded upon a notion, which prevailed for some time in the law of descents, that when the eldest son was already provided for (as Robert was constituted duke of Normandy by his father's will) in such a case the next brother was entitled to enjoy the rest of their father's inheritance. But, as he died without issue, Henry at last had a good title to the throne, whatever he might have at first.
STEPHEN of Blois, who succeeded him, was indeed the grandson of the conqueror, by Adelicia his daughter, and claimed the throne by a feeble kind of hereditary right; not as being the nearest of the male line, but as the nearest male of the blood royal. The real right was in the empress Matilda or Maud, the daughter of Henry I; the rule of succession being (where women are admitted at all) that the daughter of a son shall be preferred to the son of a daughter. So that Stephen was little better than a mere usurper; and the empress Maud did not fail to assert her right by the sword: which dispute was attended with various success, and ended at last in a compromise, that Stephen should keep the crown, but that Henry the son of Maud should succeed him; as he afterwards accordingly did.
HENRY, the second of that name, was the undoubted heir of William the conqueror; but he had also another connexion in blood, which endeared him still farther to the English. He was lineally descended from Edmund Ironside, the last of the Saxon race of hereditary kings. For Edward the outlaw, the son of Edmund Ironside, had (besides Edgar Atheling, who died without issue) a daughter Margaret, who was married to Malcolm king of Scotland; and in her the Saxon hereditary right resided. By Malcolm she had several children, and among the rest Matilda the wife of Henry I, who by him had the empress Maud, the mother of Henry II. Upon which account the Saxon line is in our histories frequently said to have been restored in his person: though in reality that right subsisted in the sons of Malcolm by queen Margaret; king Henry's best title being as heir to the conqueror.
FROM Henry II the crown descended to his eldest son Richard I, who dying childless, the right vested in his nephew Arthur, the son of Geoffrey his next brother; but John, the youngest son of king Henry, seised the throne; claiming, as appears from his charters, the crown by hereditary right[g]: that is to say, he was next of kin to the deceased king, being his surviving brother; whereas Arthur was removed one degree farther, being his brother's son, though by right of representation he stood in the place of his father Geoffrey. And however flimzey this title, and those of William Rufus and Stephen of Blois, may appear at this distance to us, after the law of descents hath now been settled for so many centuries, they were sufficient to puzzle the understandings of our brave, but unlettered, ancestors. Nor indeed can we wonder at the number of partizans, who espoused the pretensions of king John in particular; since even in the reign of his father, king Henry II, it was a point undetermined[h], whether, even in common inheritances, the child of an elder brother should succeed to the land in right of representation, or the younger surviving brother in right of proximity of blood. Nor is it to this day decided in the collateral succession to the fiefs of the empire, whether the order of the stocks, or the proximity of degree shall take place[i]. However, on the death of Arthur and his sister Eleanor without issue, a clear and indisputable title vested in Henry III the son of John: and from him to Richard the second, a succession of six generations, the crown descended in the true hereditary line. Under one of which race of princes[k], we find it declared in parliament, "that the law of the crown of England is, and always hath been, that the children of the king of England, whether born in England, or elsewhere, ought to bear the inheritance after the death of their ancestors. Which law, our sovereign lord the king, the prelates, earls, and barons, and other great men, together with all the commons, in parliament assembled, do approve and affirm for ever."
[Footnote g: "Regni Angliae; quod nobis jure competit haereditario." Spelm. Hist. R. Joh. apud Wilkins. 354.]
[Footnote h: Glanv. l. 7. c. 3.]
[Footnote i: Mod. Un. Hist. xxx. 512.]
[Footnote k: Stat. 25 Edw. III. st. 2.]
UPON Richard the second's resignation of the crown, he having no children, the right resulted to the issue of his grandfather Edward III. That king had many children, besides his eldest, Edward the black prince of Wales, the father of Richard II: but to avoid confusion I shall only mention three; William his second son, who died without issue; Lionel duke of Clarence, his third son; and John of Gant duke of Lancaster, his fourth. By the rules of succession therefore the posterity of Lionel duke of Clarence were entitled to the throne, upon the resignation of king Richard; and had accordingly been declared by the king, many years before, the presumptive heirs of the crown; which declaration was also confirmed in parliament[l]. But Henry duke of Lancaster, the son of John of Gant, having then a large army in the kingdom, the pretence of raising which was to recover his patrimony from the king, and to redress the grievances of the subject, it was impossible for any other title to be asserted with any safety; and he became king under the title of Henry IV. But, as sir Matthew Hale remarks[m], though the people unjustly assisted Henry IV in his usurpation of the crown, yet he was not admitted thereto, until he had declared that he claimed, not as a conqueror, (which he very much inclined to do[n]) but as a successor, descended by right line of the blood royal; as appears from the rolls of parliament in those times. And in order to this he set up a shew of two titles: the one upon the pretence of being the first of the blood royal in the intire male line, whereas the duke of Clarence left only one daughter Philippa; from which female branch, by a marriage with Edmond Mortimer earl of March, the house of York descended: the other, by reviving an exploded rumour, first propagated by John of Gant, that Edmond earl of Lancaster (to whom Henry's mother was heiress) was in reality the elder brother of king Edward I; though his parents, on account of his personal deformity, had imposed him on the world for the younger: and therefore Henry would be intitled to the crown, either as successor to Richard II, in case the intire male line was allowed a preference to the female; or, even prior to that unfortunate prince, if the crown could descend through a female, while an intire male line was existing.
[Footnote l: Sandford's geneal. hist. 246.]
[Footnote m: Hist. C.L. c. 5.]
[Footnote n: Seld. tit. hon. 1. 3.]
HOWEVER, as in Edward the third's time we find the parliament approving and affirming the right of the crown, as before stated, so in the reign of Henry IV they actually exerted their right of new-settling the succession to the crown. And this was done by the statute 7 Hen. IV. c. 2. whereby it is enacted, "that the inheritance of the crown and realms of England and France, and all other the king's dominions, shall be set and remain[o] in the person of our sovereign lord the king, and in the heirs of his body issuing;" and prince Henry is declared heir apparent to the crown, to hold to him and the heirs of his body issuing, with remainder to lord Thomas, lord John, and lord Humphry, the king's sons, and the heirs of their bodies respectively. Which is indeed nothing more than the law would have done before, provided Henry the fourth had been a rightful king. It however serves to shew that it was then generally understood, that the king and parliament had a right to new-model and regulate the succession to the crown. And we may observe, with what caution and delicacy the parliament then avoided declaring any sentiment of Henry's original title. However sir Edward Coke more than once expressly declares[p], that at the time of passing this act the right of the crown was in the descent from Philippa, daughter and heir of Lionel duke of Clarence.
[Footnote o: soit mys et demoerge.]
[Footnote p: 4 Inst. 37, 205.]
NEVERTHELESS the crown descended regularly from Henry IV to his son and grandson Henry V and VI; in the latter of whose reigns the house of York asserted their dormant title; and, after imbruing the kingdom in blood and confusion for seven years together, at last established it in the person of Edward IV. At his accession to the throne, after a breach of the succession that continued for three descents, and above threescore years, the distinction of a king de jure, and a king de facto began to be first taken; in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by those who were now called the usurpers, not tending to the disherison of the rightful heir. In statute 1 Edw. IV. c. 1. the three Henrys are stiled, "late kings of England successively in dede, and not of ryght." And, in all the charters which I have met with of king Edward, wherever he has occasion to speak of any of the line of Lancaster, he calls them "nuper de facto, et non de jure, reges Angliae."
EDWARD IV left two sons and a daughter; the eldest of which sons, king Edward V, enjoyed the regal dignity for a very short time, and was then deposed by Richard his unnatural uncle; who immediately usurped the royal dignity, having previously insinuated to the populace a suspicion of bastardy in the children of Edward IV, to make a shew of some hereditary title: after which he is generally believed to have murdered his two nephews; upon whose death the right of the crown devolved to their sister Elizabeth.
THE tyrannical reign of king Richard III gave occasion to Henry earl of Richmond to assert his title to the crown. A title the most remote and unaccountable that was ever set up, and which nothing could have given success to, but the universal detestation of the then usurper Richard. For, besides that he claimed under a descent from John of Gant, whose title was now exploded, the claim (such as it was) was through John earl of Somerset, a bastard son, begotten by John of Gant upon Catherine Swinford. It is true, that, by an act of parliament 20 Ric. II, this son was, with others, legitimated and made inheritable to all lands, offices, and dignities, as if he had been born in wedlock: but still, with an express reservation of the crown, "excepta dignitate regali[q]."
[Footnote q: 4 Inst. 36.]
NOTWITHSTANDING all this, immediately after the battle of Bosworth field, he assumed the regal dignity; the right of the crown then being, as sir Edward Coke expressly declares[r], in Elizabeth, eldest daughter of Edward IV: and his possession was established by parliament, held the first year of his reign. In the act for which purpose, the parliament seems to have copied the caution of their predecessors in the reign of Henry IV; and therefore (as lord Bacon the historian of this reign observes) carefully avoided any recognition of Henry VII's right, which indeed was none at all; and the king would not have it by way of new law or ordinance, whereby a right might seem to be created and conferred upon him; and therefore a middle way was rather chosen, by way (as the noble historian expresses it) of establishment, and that under covert and indifferent words, "that the inheritance of the crown should rest, remain, and abide in king Henry VII and the heirs of his body:" thereby providing for the future, and at the same time acknowleging his present possession; but not determining either way, whether that possession was de jure or de facto merely. However he soon after married Elizabeth of York, the undoubted heiress of the conqueror, and thereby gained (as sir Edward Coke[s] declares) by much his best title to the crown. Whereupon the act made in his favour was so much disregarded, that it never was printed in our statute books.
[Footnote r: 4 Inst. 37.]
[Footnote s: Ibid.]
HENRY the eighth, the issue of this marriage, succeeded to the crown by clear indisputable hereditary right, and transmitted it to his three children in successive order. But in his reign we at several times find the parliament busy in regulating the succession to the kingdom. And, first, by statute 25 Hen. VIII. c. 12. which recites the mischiefs, which have and may ensue by disputed titles, because no perfect and substantial provision hath been made by law concerning the succession; and then enacts, that the crown shall be entailed to his majesty, and the sons or heirs males of his body; and in default of such sons to the lady Elizabeth (who is declared to be the king's eldest issue female, in exclusion of the lady Mary, on account of her supposed illegitimacy by the divorce of her mother queen Catherine) and to the lady Elizabeth's heirs of her body; and so on from issue female to issue female, and the heirs of their bodies, by course of inheritance according to their ages, as the crown of England hath been accustomed and ought to go, in case where there be heirs female of the same: and in default of issue female, then to the king's right heirs for ever. This single statute is an ample proof of all the four positions we at first set out with.
BUT, upon the king's divorce from Ann Boleyn, this statute was, with regard to the settlement of the crown, repealed by statute 28 Hen. VIII. c. 7. wherein the lady Elizabeth is also, as well as the lady Mary, bastardized, and the crown settled on the king's children by queen Jane Seymour, and his future wives; and, in defect of such children, then with this remarkable remainder, to such persons as the king by letters patent, or last will and testament, should limit and appoint the same. A vast power; but, notwithstanding, as it was regularly vested in him by the supreme legislative authority, it was therefore indisputably valid. But this power was never carried into execution; for by statute 35 Hen. VIII. c. 1. the king's two daughters are legitimated again, and the crown is limited to prince Edward by name, after that to the lady Mary, and then to the lady Elizabeth, and the heirs of their respective bodies; which succession took effect accordingly, being indeed no other than the usual course of the law, with regard to the descent of the crown.
BUT lest there should remain any doubt in the minds of the people, through this jumble of acts for limiting the succession, by statute 1 Mar. p. 2. c. 1. queen Mary's hereditary right to the throne is acknowleged and recognized in these words: "the crown of these realms is most lawfully, justly, and rightly descended and come to the queen's highness that now is, being the very, true, and undoubted heir and inheritrix thereof." And again, upon the queen's marriage with Philip of Spain, in the statute which settles the preliminaries of that match[t], the hereditary right to the crown is thus asserted and declared: "as touching the right of the queen's inheritance in the realm and dominions of England, the children, whether male or female, shall succeed in them, according to the known laws, statutes, and customs of the same." Which determination of the parliament, that the succession shall continue in the usual course, seems tacitly to imply a power of new-modelling and altering it, in case the legislature had thought proper.
[Footnote t: 1 Mar. p. 2. c. 2.]
ON queen Elizabeth's accession, her right is recognized in still stronger terms than her sister's; the parliament acknowleging[u], "that the queen's highness is, and in very deed and of most mere right ought to be, by the laws of God, and the laws and statutes of this realm, our most lawful and rightful sovereign liege lady and queen; and that her highness is rightly, lineally, and lawfully descended and come of the blood royal of this realm of England; in and to whose princely person, and to the heirs of her body lawfully to be begotten, after her, the imperial crown and dignity of this realm doth belong." And in the same reign, by statute 13 Eliz. c. 1. we find the right of parliament to direct the succession of the crown asserted in the most explicit words. "If any person shall hold, affirm, or maintain that the common laws of this realm, not altered by parliament, ought not to direct the right of the crown of England; or that the queen's majesty, with and by the authority of parliament, is not able to make laws and statutes of sufficient force and validity, to limit and bind the crown of this realm, and the descent, limitation, inheritance, and government thereof;—such person, so holding, affirming, or maintaining, shall during the life of the queen be guilty of high treason; and after her decease shall be guilty of a misdemesnor, and forfeit his goods and chattels."
[Footnote u: Stat. 1 Eliz. c. 3.]
ON the death of queen Elizabeth, without issue, the line of Henry VIII became extinct. It therefore became necessary to recur to the other issue of Henry VII, by Elizabeth of York his queen: whose eldest daughter Margaret having married James IV king of Scotland, king James the sixth of Scotland, and of England the first, was the lineal descendant from that alliance. So that in his person, as clearly as in Henry VIII, centered all the claims of different competitors from the conquest downwards, he being indisputably the lineal heir of the conqueror. And, what is still more remarkable, in his person also centered the right of the Saxon monarchs, which had been suspended from the conquest till his accession. For, as was formerly observed, Margaret the sister of Edgar Atheling, the daughter of Edward the outlaw, and granddaughter of king Edmund Ironside, was the person in whom the hereditary right of the Saxon kings, supposing it not abolished by the conquest, resided. She married Malcolm king of Scotland; and Henry II, by a descent from Matilda their daughter, is generally called the restorer of the Saxon line. But it must be remembered, that Malcolm by his Saxon queen had sons as well as daughters; and that the royal family of Scotland from that time downwards were the offspring of Malcolm and Margaret. Of this royal family king James the first was the direct lineal heir, and therefore united in his person every possible claim by hereditary right to the English, as well as Scottish throne, being the heir both of Egbert and William the conqueror.
AND it is no wonder that a prince of more learning than wisdom, who could deduce an hereditary title for more than eight hundred years, should easily be 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 it's preservation. Whereas, though a wise institution, it was clearly a human institution; and the right inherent in him no natural, but a positive right. 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 acknowlege, 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 antient Britons; among whose princes indeed some have gone to search it for him[w].
[Footnote w: 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 it's descent from Gladys only sister to Lewellin ap Jorweth the great, had the true right to the principality of Wales. iii. 705.]
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 favour 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 states restored the right heir of the crown. And in the proclamation for that purpose, which was drawn up and attended by both houses[x], they declared, "that, according to their duty and allegiance, they did heartily, joyfully, and unanimously acknowlege 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 lawful 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."
[Footnote x: Com. Journ. 8 May, 1660.]
THUS I think it clearly appears, from the highest authority this nation is acquainted with, that the crown of England hath been ever an hereditary crown; though subject to limitations by parliament. 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 would be brought to consent to it. And from this transaction we may collect two things: 1. That the crown was universally acknowleged 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 acknowleged 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.
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 defeazance 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 an apprehension that there was no king in being. For in a full assembly of the lords and commons, met in convention upon this apprehended vacancy, both houses[y] came to this resolution; "that king James the second, having endeavoured 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 endeavours 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 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 enquiry farther, 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 all happily extinguished. I therefore rather chuse to consider this great political measure, upon the solid footing of authority, than to reason in it's favour from it's justice, moderation, and expedience: because that might imply a right of dissenting or revolting from it, in case we should think it 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.
[Footnote y: Com. Journ. 7 Feb. 1688.]
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 it's equity; that, however it might in some respects go beyond the letter of our antient laws, (the reason of which will more fully appear hereafter[z]) 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 aera 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 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[a]: which would have reduced the society almost to a state of nature; would have levelled all distinctions of honour, rank, offices, and property; would have annihilated the 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. And thus the constitution was kept intire; 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.
[Footnote z: See chapter 7.]
[Footnote a: on Gov. p. 2. c. 19.]
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 bloodroyal 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 it's 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[b], in the 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."
[Footnote b: Com. Journ. 12 Feb. 1688.]
PERHAPS, upon the principles before established, the convention might (if they pleased) have vested the regal dignity in a family intirely 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 antient 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 son in law of king James the second, being the son of Mary his only 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 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 prince of Wales, and then suffering the crown to descend in the old hereditary chanel: 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 absolutely 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 descent.
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 Glocester, 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 king William, queen Mary, and queen Anne. The parliament had previously by the statute of 1 W. & 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 for ever 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 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[c]. For, upon the impending extinction of the protestant posterity of Charles the first, the old law of regal descent directed them to recur to the descendants of James the first; and the princess Sophia, being the daughter of Elizabeth queen of Bohemia, who was the youngest daughter of James the first, was the nearest of the antient blood royal, who was not incapacitated by professing 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 & 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.
[Footnote c: Sandford, in his genealogical history, published A.D. 1677, speaking (page 535) 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.]
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 praemunire.
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 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 are 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 duration the most permanent. It was the duty of an expounder of our laws to lay this constitution before the student in it's true and genuine light: it is the duty of every good Englishman to understand, to revere, to defend it.
CHAPTER THE FOURTH.
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].
[Footnote a: Finch. L. 86.]
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 separate existence so long as the marriage continues. For the queen is of 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 aera[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 receiving one from, the emperor. The queen of England hath separate courts and officers distinct from the king's, not only in matters of ceremony, but even of law; and her attorney and solicitor general are intitled to a place within the bar of his majesty's courts, together with the king's counsel[e]. She may also 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.
[Footnote b: 4 Rep. 23.]
[Footnote c: Seld. Jan. Angl. 1. 42.]
[Footnote d: Cod. 5. 16. 26.]
[Footnote e: Selden tit. hon. 1. 6. 7.]
[Footnote f: Finch. L. 86. Co. Litt. 133.]
THE queen hath also many exemptions, and minute prerogatives. For instance: she pays no toll[g]; nor is she liable to any 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]."
[Footnote g: Co. Litt. 133.]
[Footnote h: Finch. L. 185.]
[Footnote i: Ff. 1. 3. 31.]
THE queen hath also some pecuniary advantages, which form her a distinct revenue: as, in the first place, she is intitled to an antient perquisite called queen-gold or aurum reginae; 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 intire offering or fine made to the king; and becomes an actual debt of record to the queen's majesty by the mere recording the fine[k]. 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 intitled 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 reginae[l]. 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].
[Footnote k: Pryn. Aur. Reg. 2.]
[Footnote l: 12 Rep. 21. 4 Inst. 358.]
[Footnote m: Ibid. Pryn. 6. Madox. hist. exch. 242.]
THE revenue of our antient 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 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 oyl 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 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 farther 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 it's 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 it forms a distinct head in the antient 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, it's very nature and quantity became then a matter of doubt: and, being referred by the king to his then chief justices and chief baron, their report of it was so very unfavorable[w], that 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 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 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 antiquarian, endeavour to excite queen Catherine to revive this antiquated claim.
[Footnote n: Bedefordscire. Maner. Lestone redd. per annum xxii lib. &c: ad opus reginae ii uncias auri.——Herefordscire. In Lene, &c, consuetud. ut praepositus manerii veniente domina sua (regina) in maner. praesentaret ei xviii oras denar. ut esset ipsa laeto animo. Pryn. Append. to Aur. Reg. 2, 3.]
[Footnote o: causa coadunandi lanam reginae. Domesd. ibid.]
[Footnote p: Civitas Lundon. Pro oleo ad lampad. reginae. Mag. rot. pip. temp. Hen. II. ibid.]
[Footnote q: Vicecomes Berkescire, xvi l. pro cappa reginae. (Mag. rot. pip. 19—22 Hen. II. ibid.) Civitas Lund. cordubanario reginae xx s. Mag. Rot. 2 Hen. II. Madox hist. exch. 419.]
[Footnote r: Pro roba ad opus reginae, quater xx l. & vi s. & viii d. Mag. Rot. 5 Hen. II. ibid. 250.]
[Footnote s: Solere aiunt barbaros reges Persarum ac Syrorum—uxoribus civitates attribuere, hoc modo; haec civitas mulieri redimiculum praebeat, haec in collum, haec in crines, &c. Cic. in Verrem. lib. 3. c. 33.]
[Footnote t: See Madox Disceptat. epistolar. 74. Pryn. Aur. Regin. Append. 5.]
[Footnote u: lib. 2. c. 26.]
[Footnote w: Mr Prynne, with some appearance of reason, insinuates, that their researches were very superficial. Aur. Reg. 125.]
ANOTHER antient 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 coasts, 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 sturgione observetur, quod rex illum habebit integrum: de balena vero sufficit, si rex habeat caput, et regina caudam." The reason of this whimsical division, as assigned by our antient records[y], was, to furnish the queen's wardrobe with whalebone.
[Footnote x: Bracton, l. 3. c. 3. Britton, c. 17. Fleta, l. 1. c. 45 & 46.]
[Footnote y: Pryn. Aur. Reg. 127.]
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 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[z] 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; 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 house of peers, as queen Ann Boleyn was in 28 Hen. VIII.
[Footnote z: Stat. 33 Hen. VIII. c. 21.]
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 fidelity, 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 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. IV, though the statute be not in print. But she, though an alien born, shall still be intitled 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 Katherine, 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 Katherine queen of England, maintained an action against the bishop of Carlisle. And so the queen of Navarre marrying with Edmond, brother to king Edward the first, maintained an action of dower by the name of queen of Navarre[c].
[Footnote a: 2 Inst. 18.]
[Footnote b: Co. Litt. 31 b.]
[Footnote c: 2 Inst. 50.]
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, in failure of issue male, and therefore more respected by the laws than any of her younger sisters; insomuch that upon this, united with other (feodal) 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 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[d].
[Footnote d: 8 Rep. 1. Seld. titl. of hon. 2. 5.]
THE younger sons and daughters of the king, who are not in the immediate line of succession, are little farther regarded by the laws, than to give them precedence before all peers and public officers as well ecclesiastical as temporal. This is done by the statute 31 Hen. VIII. c. 10. which enacts that no person, except the king's children, shall presume to sit or have place at the side of the cloth of estate in the parliament chamber; and that certain great officers therein named shall have precedence above all dukes, except only such as shall happen to be the king's son, brother, uncle, nephew (which sir Edward Coke[e] explains to signify grandson or nepos) or brother's or sister's son. And in 1718, upon a question referred to all the judges by king George I, it was resolved by the opinion of ten against the other two, that the education and care of all the king's grandchildren while minors, and the care and approbation of their marriages, when grown up, did belong of right to his majesty as king of this realm, during their father's life[f]. And this may suffice for the notice, taken by law, of his majesty's royal family.
[Footnote e: 4 Inst. 362.]
[Footnote f: Fortesc. Al. 401-440.]
CHAPTER THE FIFTH.
OF THE COUNCILS BELONGING TO THE KING.
THE third point of view, in which we are to consider the king, is with regard to his councils. For, in order to assist him in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath assigned him a diversity of councils to advise with.
1. THE first of these is the high court of parliament, whereof we have already treated at large.
2. SECONDLY, the peers of the realm are by their birth hereditary counsellors of the crown, and may be called together by the king to impart their advice in all matters of importance to the realm, either in time of parliament, or, which hath been their principal use, when there is no parliament in being[a]. Accordingly Bracton[b], speaking of the nobility of his time, says they might properly be called "consules, a consulendo; reges enim tales sibi associant ad consulendum." And in our law books[c] it is laid down, that peers are created for two reasons; 1. Ad consulendum, 2. Ad defendendum regem: for which reasons the law gives them certain great and high privileges; such as freedom from arrests, &c, even when no parliament is sitting: because the law intends, that they are always assisting the king with their counsel for the commonwealth; or keeping the realm in safety by their prowess and valour.
[Footnote a: Co. Litt. 110.]
[Footnote b: l. 1. c. 8.]
[Footnote c: 7 Rep. 34. 9 Rep. 49. 12 Rep. 96.]
INSTANCES of conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into disuse, by reason of the more regular meetings of parliament. Sir Edward Coke[d] gives us an extract of a record, 5 Hen. IV, concerning an exchange of lands between the king and the earl of Northumberland, wherein the value of each was agreed to be settled by advice of parliament (if any should be called before the feast of St Lucia) or otherwise by advice of the grand council (of peers) which the king promises to assemble before the said feast, in case no parliament shall be called. Many other instances of this kind of meeting are to be found under our antient kings: though the formal method of convoking them had been so long left off, that when king Charles I in 1640 issued out writs under the great seal to call a great council of all the peers of England to meet and attend his majesty at York, previous to the meeting of the long parliament, the earl of Clarendon[e] mentions it as a new invention, not before heard of; that is, as he explains himself, so old, that it had not been practiced in some hundreds of years. But, though there had not so long before been an instance, nor has there been any since, of assembling them in so solemn a manner, yet, in cases of emergency, our princes have at several times thought proper to call for and consult as many of the nobility as could easily be got together: as was particularly the case with king James the second, after the landing of the prince of Orange; and with the prince of Orange himself, before he called that convention parliament, which afterwards called him to the throne.
[Footnote d: 1 Inst. 110.]
[Footnote e: Hist. b. 2.]
BESIDES this general meeting, it is usually looked upon to be the right of each particular peer of the realm, to demand an audience of the king, and to lay before him, with decency and respect, such matters as he shall judge of importance to the public weal. And therefore, in the reign of Edward II, it was made an article of impeachment in parliament against the two Hugh Spencers, father and son, for which they were banished the kingdom, "that they by their evil covin would not suffer the great men of the realm, the king's good counsellors, to speak with the king, or to come near him; but only in the presence and hearing of the said Hugh the father and Hugh the son, or one of them, and at their will, and according to such things as pleased them[f]."
[Footnote f: 4 Inst. 53.]
3. A THIRD council belonging the king, are, according to sir Edward Coke[g], his judges of the courts of law, for law matters. And this appears frequently in our statutes, particularly 14 Ed. III. c. 5. and in other books of law. So that when the king's council is mentioned generally, it must be defined, particularized, and understood, secundum subjectam materiam; and, if the subject be of a legal nature, then by the king's council is understood his council for matters of law; namely, his judges. Therefore when by statute 16 Ric. II. c. 5. it was made a high offence to import into this kingdom any papal bulles, or other processes from Rome; and it was enacted, that the offenders should be attached by their bodies, and brought before the king and his council to answer for such offence; here, by the expression of king's council, were understood the king's judges of his courts of justice, the subject matter being legal: this being the general way of interpreting the word, council[h].