The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface By the American Editor.
• A Memoir of Sir William Blackstone,
• Introduction. of the Study, Nature, and Extent of the Laws of England.
• Section I.: On the Study of the Law. †
• Section II.: Of the Nature of Laws In General.
• Section III.: Of the Laws of England.
• Section IV.: Of the Countries Subject to the Laws of England.
• Commentaries On the Laws of England.
• Book the First. of the Rights of Persons.
• Chapter I.: Of the Absolute Rights of Individuals.
• Chapter II.: Of the Parliament.
• Chapter III.: Of the King, and His Title.
• Chapter IV.: Of the King’s Royal Family.
• Chapter V.: Of the Councils Belonging to the King.
• Chapter VI.: Of the King’s Duties.
• Chapter VII.: Of the King’s Prerogative.
• Chapter VIII.: Of the King’s Revenue.
• Chapter IX.: Of Subordinate Magistrates.
• Chapter X.: Of the People, Whether Aliens, Denizens, Or Natives.
• Chapter XI.: Of the Clergy.
• Chapter XII.: Of the Civil State.
• Chapter XIII.: Of the Military and Maritime States.
• Chapter XIV.: Of Master and Servant.
• Chapter XV.: Of Husband and Wife.
• Chapter XVI.: Of Parent and Child.
• Chapter XVII.: Of Guardian and Ward.
• Chapter XVIII.: Of Corporations.
• Book the Second. of the Rights of Things.
• Chapter I.: Of Property, In General.
• Chapter II.: Of Real Property; And, First, of Corporeal Hereditaments
• Chapter III.: Of Incorporeal Hereditaments.
• Chapter IV.: Of the Feodal System.
• Chapter V.: Of the Ancient English Tenures
• Chapter VI.: Of the Modern English Tenures.
• Chapter VII.: Of Freehold Estates of Inheritance.
• Chapter VIII.: Of Freeholds, Not of Inheritance.
• Chapter IX.: Of Estates Less Than Freehold.
• Chapter X.: Of Estates Upon Condition.
• Chapter XI.: Estates In Possession, Remainder, and Reversion.
• Chapter XII.: Of Estates In Severalty, Joint-tenancy, Coparcenary, and Common.
• Chapter XIII.: Of the Title to Things Real, In General.
• Chapter XIV.: Of Title By Descent.
• Chapter XV.: Of Title By Purchase and I. By Escheat.
• Chapter XVI.: II. Of Title By Occupancy.
• Chapter XVII.: III. Of Title By Prescription.
• Chapter XVIII.: IV. Of Title By Forfeiture.
• Chapter XIX.: V. Of Title By Alienation.
• Chapter XX.: Of Alienation By Deed.
• Chapter XXI.: Of Alienation By Matter of Record.
• Chapter XXII.: Of Alienation By Special Custom.
• Chapter XXIII.: Of Alienation By Devise.
• Chapter XXIV.: Of Things Personal.
• Chapter XXV.: Of Property In Things Personal.
• Chapter XXVI.: Of Title to Things Personal By Occupancy.
• Chapter XXVII.: Of Title By Prerogative and Forfeiture.
• Chapter XXVIII.: Of Title By Custom.
• Chapter XXIX.: Of Title By Succession, Marriage, and Judgment.
• Chapter XXX.: Of Title By Gift, Grant, and Contract.
• Chapter XXXI.: Of Title By Bankruptcy.
• Chapter XXXII.: Of Title By Testament, and Administration.
• Appendix.
• No. I.: Vetus Carta Feoffamenti.
• No. II.: Modern Conveyance By Lease and Release.
• No. III.: An Obligation, Or Bond, With Condition For the Payment of Money.
• No. IV.: A Fine of Lands Sur Cognizance De Droit, Come Ceo, &c.
• No. V.: A Common Recovery of Lands With * Double Voucher.

CHAPTER III.

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. 1.1

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 *[*191of 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 coronæ, or right of succession to the throne of these kingdoms, depends, I take to be this: “that the crown is, by common law and constitutional custom, hereditary; 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 its 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 connection with each other; as some have very weakly imagined. The titles of David and Jehu were **192]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 acknowledge, owes its 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 connection 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 the 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 **193]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 further than jealousies and murmurs, which time will effectually suppress; and, if true, the injustice may be remedied by legal means, by an appeal to the 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 battles, 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 ancient imperial Rome, and the more modern experience of Poland and Germany, may show 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 estates, the crown will descend lineally to the issue of the reigning monarch; as it did from king John to Richard II., through *[*194a regular pedigree of six lineal generations. As in common descents, 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 lands or tenements, the crown, on failure of the male line, descends to the issue female; according to the ancient British custom remarked by Tacitus;(a) “solent fœminarum 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 *[*195mother, or vice versa; provided only, that the one ancestor, from whom both are descended, be that from whose veins the blood royal is communicated to each. Thus Mary I. inherited to Edward VI., and Elizabeth inherited to Mary; all children 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.

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 of hereditary right, generally subsisting in the royal person; so the word, “successors,” distinctly taken, must imply that this inheritance may sometimes be broken 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 idiot, 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 nowhere be so properly lodged as in the two houses of parliament, by and with the **196]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 may be limited or transferred, it still retains its descendible quality, and becomes hereditary in the wearer of it. And hence in our law the king is said never to die, in his political capacity; though, in common with other men, he is subject to mortality in his natural: because immediately upon the natural death of Henry, William, or Edward, the king survives in his successor. For the right of the crown vests, eo instanti, upon his heir; either the hæres natus, if the course of descent remains unimpeached, or the hæres factus, if the inheritance be under any particular settlement. So that there can be no interregnum;2 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 heir-at-law: but if the transfer be clogged with any limitations, conditions, or entails, the lands must descend in that channel, so limited and prescribed, and no other.

In these four points consists, as I take it, the constitutional notion of hereditary right to the throne: which will be still further elucidated, and made clear beyond all dispute, from a short historical view of the successions to the crown of England, the doctrines of our ancient 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 *[*197title to the throne. And in the pursuit of this inquiry 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, the 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 generally at last returned back into the old hereditary channel, 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 show 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 inquire; and is indeed a point of such high antiquity, as must render all inquiries 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 its government and states, and the other loses them; the latter entirely assimilates with or is melted down in the former, and must adopt its laws and customs.(c) And in pursuance of this maxim there hath ever been, since the union of the heptarchy in king Egbert, a *[*198general acquiescence under the hereditary monarchy of the West Saxons, through all the united kingdoms.

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 the sons of king Ethelwolf succeeded to each other in the kingdom, without regard to the children of the elder branches, according to the rule of succession prescribed by their father and confirmed by the wittena-gemote, in the heat of the Danish invasions; and also 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.3

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, seized 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 ancient 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.4 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 illustrious, or of royal blood,) who was the son of Edward the Outlaw, and grandson of Edmund **199]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.”

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.

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 its inherent properties; the first and principal of which was its 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 **200]dernier resort of kings) a strong and undisputed title to the inheritable crown of England.

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 perhaps might proceed upon a notion, which prevailed for some time in the law of descents, (though never adopted as the rule of public successions,)(g) 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, excepting his elder brother Theobald, who was earl of Blois, and therefore seems to have waived, as he certainly never insisted on, so troublesome and precarious a claim. 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 therefore he rather chose to rely on a title by election,(h) while the empress Maud did not fail to assert her hereditary right by the sword: which dispute was attended with various success, and ended at last in the compromise made at Wallingford, 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 (next after his mother Matilda) the undoubted heir of William the Conqueror; but he had also another connection in blood, which endeared *[*201him still further 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, seized the throne, claiming, as appears from his charters, the crown by hereditary right;(i) that is to say, he was next of kin to the deceased king, being his surviving brother: whereas Arthur was removed one degree further, being his brother’s son, though by right of representation he stood in the place of his father Geoffrey. And however flimsy 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 partisans 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,(k) 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.(l) However, on the death of Arthur *[*202and 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(m) 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 forever.”

Upon Richard the Second’s resignation of the crown, he having no children, he 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 Gaunt, 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.(n) But Henry, duke of Lancaster, the son of John of Gaunt, 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,(o) 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,(p) 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 show of two titles: **203]the one upon the pretence of being the first of the blood royal in the entire 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 Gaunt, 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 entitled to the crown, either as successor to Richard II. in case the entire 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 entire male line was existing.

However, as in Edward the Third’s time we find the parliament approving and affirming the law 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(q) 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 the 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 show 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 also 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,(r) that at the time of **204]passing this act the right of the crown was in the descent from Philippa, daughter and heir of Lionel duke of Clarence.

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 honours 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 styled, “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 Angliæ”

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 show 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 Gaunt, whose title was now exploded, the claim (such as it was) was through John earl of Somerset, a bastard son, hegotten by John of *[*205Gaunt 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.”(s)5

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,(t) in Elizabeth, eldest daughter of Edward IV.; and his possession was established by parliament, holden 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 acknowledging 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(u) 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.

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 *[*206statute 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 male 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 forever. 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 Anne 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. st. 2, c. 1, queen Mary’s **207]hereditary right to the throne is acknowledged and recognised 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,(x) 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.

On queen Elizabeth’s accession, her right is recognised in still stronger terms than her sister’s; the parliament acknowledging(y) “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, **208]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.”

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., centred all the claims of different competitors, from the conquest downwards, he being indisputably the lineal heir of the Conqueror.6 And, what is still more remarkable, in his person also centred the right of the Saxon monarchs, which had been suspended from the conquest till his accession. For, as formerly observed, Margaret, the sister of Edgar Atheling, the daughter of Edward the Outlaw, and grand-daughter 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 his right, and that the finger of Providence was visible in its *[*209preservation. 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 “recognise and acknowledge, that immediately upon the dissolution and decease of Elizabeth, late queen of England, the imperial crown thereof did by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent majesty, as being lineally, justly, and lawfully next and sole heir of the blood royal of this realm.” Not a word here of any right immediately derived from Heaven; which, if it existed anywhere, must be sought for among the aborigines of the island, the ancient Britons, among whose princes, indeed, some have gone to search it for him.(z)

But, wild and absurd as the doctrine of divine right most undoubtedly is, it is still more astonishing, that when so many hereditary rights had centred 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,(a) they declared “that, according to their duty and allegiance, they did heartily, joyfully, and unanimously acknowledge and proclaim, that immediately upon the *[*210decease 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 forever.”

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 acknowledged to be hereditary; and the inheritance indefeasible unless by parliament: else it had been needless to prefer such a bill. 2. That the parliament had a power to have defeated the inheritance: else such a bill had been ineffectual. The commons acknowledged the hereditary right then subsisting; and the lords did not dispute the power, but merely the propriety, of an exclusion. However, as the bill took no effect, king James the Second succeeded to the throne of his ancestors; and might have enjoyed it during the remainder of his life but for his own infatuated conduct, which, with other concurring circumstances, brought on the revolution in 1688.

**211]The true ground and principle upon which that memorable event proceeded was an entirely new case in politics, which had never before happened in our history,—the abdication of the reigning monarch, and the vacancy of the throne thereupon. It was not a defeasance of the right of succession, and a new limitation of the crown, by the king and both houses of parliament: it was the act of the nation alone, upon a conviction that there was no king in being. For, in a full assembly of the lords and commons, met in a convention upon the supposition of this vacancy, both houses(b) came to this resolution:—“That king James the Second, having 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 endeavour to subvert the constitution by breaking the original contract, his violation of the fundamental laws, and his withdrawing himself out of the kingdom, were evident and notorious; and the consequences drawn from these facts, (namely, that they amounted to an abdication of the government; which abdication did not affect only the person of the king himself, but also all his heirs, and rendered the throne absolutely and completely vacant,) it belonged to our ancestors to determine.7 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 *[*212reasons upon which they decided may be found at large in the parliamentary proceedings of the times; and may be matter of distructive amusement for us to contemplate, as a speculative point of history. But care must be taken not to carry this inquiry further than merely for instruction or amusement.8 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 choose to consider this great political measure upon the solid footing of authority, than to reason in its favour from its justice, moderation, and expedience: because that might imply a right of dissenting or revolting from it, in case we should think it to have been unjust, oppressive, or inexpedient. Whereas, our ancestors having most indisputably a competent jurisdiction to decide this great and important question, and having in fact decided it, it is now become our duty at this distance of time to acquiesce in their determination; being born under that establishment which was built upon this foundation, and obliged by every tie, religious as well as civil, to maintain it.9

But, while we rest this fundamental transaction, in point of authority, upon grounds the least liable to cavil, we are bound both in justice and gratitude to add, that it was conducted with a temper and moderation which naturally arose from its equity; that, however it might in some respects go beyond the letter of our ancient laws, (the reason of which will more fully appear hereafter,)(c) it was agreeable to the spirit of our constitution, and the rights of human nature; and that though in other points, owing to the peculiar circumstances of things and persons, it was not altogether so perfect as might have been wished, yet from thence a new era 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 **213]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:(d) 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.(e) And thus the constitution was kept entire; which upon every sound principle of government must otherwise have fallen to pieces, had so principal and constituent a part as the royal authority been abolished, or even suspended.

This single postulatum, the vacancy of the throne, being once established, the rest that was then done followed almost of course. For, if the throne be at any time vacant, (which may happen by other means besides that of abdication; as if all the blood royal should fail, without any successor appointed by parliament;) if, I say, a vacancy by any means whatsoever should happen, the right of disposing of this vacancy seems naturally to result to the lords and commons, the trustees and representatives of the nation.10 For there are no other hands in which it can so properly be intrusted; and there is a necessity of its being intrusted somewhere, else the whole frame of government must be dissolved and perish. The lords and commons having therefore determined this main fundamental article, that there was a vacancy of the throne, they proceeded to fill up that vacancy in such manner as they **214]judged the most proper. And this was done by their declaration of 12 February, 1688,(f) 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.”

Perhaps, upon the principles before established, the convention might (if they pleased) have vested the regal dignity in a family entirely new, and strangers to the royal blood: but they were too well acquainted with the benefits of hereditary succession, and the influence which it has by custom over the minds of the people, to depart any farther from the ancient line than temporary necessity and self-preservation required. They therefore settled the crown, first on king William and queen Mary, king James’s eldest daughter, for their joint lives: then on the survivor of them; and then on the issue of queen Mary: upon failure of such issue, it was limited to the princess Anne, king James’s second daughter, and her issue; and lastly, on failure of that, to the issue of king William, who was the grandson of Charles the First, and nephew as well as son-in-law of king James the Second, being the son of Mary his eldest sister. This settlement included all the protestant posterity of king Charles I., except such other issue as king James might at any time have, which was totally omitted through fear of a popish succession. And this order of succession took effect accordingly.

These three princes, therefore, king William, queen Mary, and queen Anne, did not take the crown by hereditary right or descent, but by way of donation or purchase, as the *[*215lawyers 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 channel: for the usual course of descent was in some instances broken through; and yet the convention still kept it in their eye, and paid a great, though not total, regard to it. Let us see how the succession would have stood, if no abdication had happened, and king James had left no other issue than his two daughters, queen Mary and queen Anne. It would have stood thus: queen Mary and her issue; queen Anne and her issue; king William and his issue. But we may remember, that queen Mary was only nominally queen, jointly with her husband, king William, who alone had the regal power; and king William was personally preferred to queen Anne, though his issue was postponed to hers. Clearly therefore these princes were successively in possession of the crown by a title different from the usual course of descents.

It was towards the end of king William’s reign, when all hopes of any surviving issue from any of these princes died with the duke of Gloucester, that the king and parliament thought it necessary again to exert their power of limiting and appointing the succession, in order to prevent another vacancy of the throne; which must have ensued upon their deaths, as no further provision was made at the revolution than for the issue of queen Mary, queen Anne, and king William. The parliament had previously, by the statute of 1 W. and M. st. 2, c. 2, enacted, that every person who should be reconciled to, or hold communion with, the see of Rome, should profess the popish religion, or should marry a papist, should be excluded, and be forever incapable to inherit, possess, or enjoy the crown: and that in such case the people should be absolved from their allegiance, and the crown should descend to such persons, being protestants, as would have inherited the same, in case the person, so reconciled, holding communion, professing, or marrying, were naturally dead. To act therefore consistently with themselves, and at the same *[*216time 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.(g) For, upon the impending extinction of the protestant posterity of Charles the First, the old law of legal descent directed them to recur to the descendants of James the First; and the princess Sophia, being the youngest daughter of Elizabeth queen of Bohemia, who was the daughter of James the First, was the nearest of the ancient blood royal who was not incapacitated by 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.

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 Anne, c. 7, it is enacted, that if any person maliciously, advisedly, and directly, shall maintain, by writing or printing, that the kings of this realm with the authority of parliament are not able to make laws to bind the crown and the descent thereof, he shall be guilty of high treason; or if he maintains the same by only preaching, teaching, or advised speaking, he shall incur the penalties of a præmunire.

The princess Sophia dying before queen Anne, the inheritance thus limited descended on her son and heir king George the First; and, having on the death of the queen taken effect in his person, from him it descended to his late majesty king George the Second; and from him to his grandson and heir, our present gracious sovereign, king George the Third.11

**217]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 its true and genuine light: it is the duty of every good Englishman to understand, to revere, to defend it.

[1 ] “The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and—together with the Vice-President (chosen for the same term)—be elected as follows:—

“Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State may be entitled in Congress; but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

“The electors shall meet in their respective States and vote by ballot for President and Vice-President,—one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots, the person voted for as Vice-President; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify and transmit, sealed, to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed. And if no person shall have such majority, then, from the persons having the highest numbers, not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President; but in choosing the President the votes shall be taken by States, the representation from each State having one vote. A quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice; and, if the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be a majority of the whole number of electors appointed; and, if no person have a majority, then, from the two highest members on the list, the Senate shall choose the Vice-President. A quorum for the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

“Congress may determine the time of choosing the electors, and the day on which they shall give their votes,—which day shall be the same throughout the United States.

“No person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years and been fourteen years a resident within the United States.

“In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President; and Congress may by law provide for the case of removal, death, resignation, or inability both of the President and Vice-President, declaring what officer shall then act as President; and such officer shall act accordingly until the disability be removed or a President shall be elected.

“The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive, within that period, any other emolument from the United States or any of them.

“Before he enter on the execution of his office, he shall take the following oath or affirmation:—

“ ‘I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.’

“The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He may require the opinion, in writing, of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

“He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint, ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law. But Congress may, by law, vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments.

“The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

“He shall from time to time give to Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient. He may on extraordinary occasions convene both houses or either of them; and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. He shall receive ambassadors and other public ministers. He shall take care that the laws shall be faithfully executed, and shall commission all the officers of the United States.

“The President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours.” Const. U. S. art. 2.

By the act of Congress Jan. 23, 1845, (5 Story’s Laws, 3033,) it is provided that the electors of President and Vice-President shall be appointed in each State on the Tuesday next after the first Monday in the month of November of the year in which they are to be appointed. Provided that each State may by law provide for the filling of any vacancy or vacancies, which may occur in its college of electors when such college meets to give its electoral vote. And provided also, when any State shall have held an election for the purpose of choosing electors, and shall fail to make a choice on the day aforesaid, then the electors may be appointed on a subsequent day, in such manner as the State shall by law provide.

By the act of Congress March 1, 1792, (1 Story’s Laws, 220,) it is provided that the electors shall meet and give their votes on the first Wednesday in December following their appointment, at such place in each State as shall be directed by the legislature thereof. On the second Wednesday in February succeeding every meeting of the electors, the certificates, or so many of them as shall have been received, shall be opened, and the persons, who shall fill the offices of President and Vice-President, ascertained and declared, agreeably to the constitution.

By the same act of March 1, 1792, it is provided that in case of a removal, death, resignation, or inability both of the President and Vice-President of the United States, the President of the Senate pro tempore, and, in case there shall be no President of the Senate, then the speaker of the House of Representatives for the time being, shall act as President of the United States until the disability be removed or a President shall be elected.

It also enacts that, whenever the offices of President and Vice-President shall both become vacant, the Secretary of State shall forthwith cause a notification thereof to be made to the executive of every State, and shall also cause the same to be published in at least one of the newspapers printed in each State, specifying that electors of the President of the United States shall be appointed or chosen in the several States within thirty-four days preceding the first Wednesday in December (on the Tuesday next after the first Monday in the month of November. Act of 1845) then next ensuing. Provided there shall be the space of two months between the date of such notification and the said first Wednesday in December; but if there shall not be the space of two months between the date of such notification and the first Wednesday in December, and if the term for which the President and Vice-President last in office were elected shall not expire on the third day of March next ensuing, then the Secretary of State shall specify in the notification that the electors shall be appointed or chosen within thirty-four days preceding the first Wednesday in December (on the Tuesday next after the first Monday of November. Act of 1845) in the year next ensuing, within [at] which time the electors shall accordingly be appointed or chosen, and the electors shall meet and give their votes on the said first Wednesday in December, and the proceedings and duties of the said electors and others shall be pursuant to the directions prescribed in this act.

It also provides that the only evidence of a refusal to accept, or of a resignation of, the office of President or Vice-President, shall be an instrument in writing, declaring the same, and subscribed by the person refusing to accept, or resigning, as the case may be, and delivered into the office of the Secretary of State.

And that the term of four years for which a President and Vice-President shall be elected shall in all cases commence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given.—Sharswood.

[(a) ]In vit. Agricolæ.

[2 ] Hence the statutes passed in the first year after the restoration of Car. II. are always called the acts in the twelfth year of his reign; and all the other legal proceedings of that reign are reckoned from the year 1648, and not from 1660.—Christian.

[(b) ] 1 Hist. P. C. 61.

[(c) ] Puff. L. of N. and N. b. 8, c. 12, 6.

[3 ] But Edmund the son of Edward the elder, was put aside to make way for Athelstan, his bastard brother; and Edmund, his brother, succeeded him.—Chitty.

[4 ] It has been remarked that Edmund Ironside being illegitimate, Edward the Confessor the legitimate son of Ethelred the Unready, was the true heir to the crown, at least in preference to Edmund or any child of his.—Coleridge.

[(d) ]ad 1066.

[(e) ] William of Malmsb. l. 3.

[(f) ] Hale, Hist. C. L. c. 5. Seld. Review of Tithes, c. 8.

[(g) ] See Lord Lyttleton’s Life of Henry II. vol. i. p. 467.

[(h) ] “Ego Stephanus Dei gratia assensu cleri et populi in regem Anglorum electus, &c.” (Cart.ad 1136. Ric. de Hagustald. 314. Hearne ad Guil. Neubr. 711.)

[(i) ] “—Regni Angliæ; quod nobis jure competit hæreditario.” Spelm. Hist. R. Joh. apud Wilkins, 354.

[(k) ] Glanv. l. 7, c. 3.

[(l) ] Mod. Un. Hist. xxx. 512.

[(m) ] Stat. 25 Edw. III. st. 2.

[(n) ] Standford’s Geneal. Hist. 246.

[(o) ] Hist. C. L. c. 5.

[(p) ] Seld. tit. hon. 1, 3.

[(q) ]Soit mys et demoerge.

[(r) ] 4 Inst. 37, 205.

[(s) ] 4 Inst. 36.

[5 ] It must be remarked that Blackstone’s assertion, on the authority of Coke, (4 Inst. 37,) that in the act of legitimation there was an express reservation excluding the right of succession to the throne, has been discovered to be unfounded. In the original rolls of parliament, the exception of the right of succession to the throne is not contained: but it was introduced by interlineation on the patent-roll subsequently to the grant of legitimation, and was included in the confirmation by Henry IV. It is clear the operative grant was the statute of Richard II.; and as that statute legitimated John of Gaunt’s children for all purposes, without exception, they were thereby made capable of inheriting the crown. Sir N. Nicholas’s Observ. on the State of Historical Literature, p. 176. Bowyer’s Const. Law, 105.—Sharswood.

[(t) ] Ibid. 37.

[(u) ] Ibid. 37.

[(x) ] 1 Mar. st. 2, c. 2.

[(y) ] Stat. 1 Eliz. c. 3.

[6 ] This position is correct only on the assumption that the will of Henry VIII., whereby he (by virtue of the statute 28 Hen. VIII. c. 7) entailed the crown on the descendants of his youngest sister, Mary, duchess of Suffolk, before those of Margaret, queen of Scots, is not authentic and valid; for there were descendants of Mary living at the decease of queen Elizabeth. Bowyer’s Const. Law, 108. Hallam, vol. i. p. 395.—Sharswood.

[(z) ] Elizabeth of York, the mother of queen Margaret of Scotland, was heiress of the house of Mortimer. And Mr. Carte observes, that the house of Mortimer, in virtue of its descent from Gladys, only sister to Llewellin ap Jorwerth the Great, had the true right to the principality of Wales. Hist. Eng. iii. 705.

[(a) ] Com. Jour. 8 May, 1660.

[(b) ] Com. Jour. 7 Feb. 1688.

[7 ] The convention in Scotland drew the same conclusion, viz., the vacancy of the throne, from premises and in language much more bold and intelligible. The mystery of the declaration of the English convention betrays that timidity which it was intended to conceal:—“The estates of the kingdom of Scotland find and declare, that king James Seventh, being a professed papist, did assume the royal power, and acted as a king without ever taking the oath required by law; and had, by the advice of evil and wicked counsellors, invaded the fundamental constitution of this kingdom, and altered it from a legal and limited monarchy to an arbitrary despotic power; and had governed the same to the subversion of the protestant religion and violation of the laws and liberties of the nation, inverting all the ends of government, whereby he had forefaulted the crown, and the throne was become vacant.” Tyndal, 71 Fol. Com. of Rapin.—Christian.

[8 ] What amusement may be found in viewing the ruins of a great political machine thus broken up, disjointed, and scattered, may be matter of taste; but of the deep and awful instruction to be derived by both king and people from such view there cannot exist a reasonable doubt. The commentator rightly mentions “powers originally delegated by society,” and recognises “the voice of that society” as the only tribunal competent to decide upon a question arising between society at large and the delegate; and it is somewhat remarkable, therefore, that he did not finish these memorable and honest sentences in the same manly breath. It was in the rugged school for political instruction, just and wise in the main, the long parliament, temp. Cha. I., that many of the men who assisted in finally driving this weak though conscientious sovereign from his throne, became deeply imbued with the principles of legal resistance, and with the duty of applying them whenever circumstances should appear to justify their application.—Chitty.

[9 ] This is not the only instance in which the learned commentator’s abstract love of liberty, coupled with his reverence for the constitution as it is established, has involved him in a political fallacy. By what process of reasoning it can be demonstrated that it is our duty to acquiesce in the demonstrations of our ancestors, though they were bound by no such obligation with regard to theirs, is not easily to be conceived. Yet such is by plain and natural inference a proposition of our author. The principle that a people have the right to choose and to regulate their own form of government, if true in 1688, does not become false, by the lapse of time, in 1825; and, reasoning a priori, it may be more safely exercised now than at any antecedent period, because the science of government is better understood. The respect and attachment due to the institutions of a free state like ours, so far from being compromised, are included and avowed in this sentiment. And the learned commentator might have better urged the improbability of the nation again having occasion to exercise this power over the constitution, than have enforced the obligation to maintain the constitution because we are born under it.—Chitty.

[(c) ] See chap. 7.

[(d) ] On Govt. p. 2, c. 19.

[(e) ] Law of forfeit, 118, 119.

[10 ] The preamble to the bill of rights expressly declares “that the lords spiritual and temporal, and commons, assembled at Westminster, lawfully, fully, and freely represent all the estates of the people of this realm.” The lords are not less the trustees and guardians of their country than the members of the house of commons. It was justly said, when the royal prerogatives were suspended during his majesty’s illness, “that the two houses of parliament were the organs by which the people expressed their will.”—Christian.

[(f) ] Com. Jour. 12 Feb. 1688.

[(g) ] Sandford, in his genealogical history, published ad 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.

[11 ] From him again it descended to his eldest son, king George IV., who, dying without issue, was succeeded by William IV., the third son of George III.,—the second son, Frederick Augustus, duke of York, having previously died without issue. On the death of William IV. without legitimate issue, the inheritance descended to the only child of Edward, duke of Kent, the fourth son of George III., who is the present queen Victoria. KERR.