Friday, May 9, 2008

Blackstone ss22

"Section 22. Part 3 of Chapter 3 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 3, Part 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].

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."

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 railed 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[**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 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.

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.

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."

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

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.

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.

"End of Section 22"