tenant in tail before the statute De donis conditionalibus had aliened, either before issue to bar the issue in tail, or after issue to bar as well the donor as the issue in tail, it was tortious, but no remedy was given for it till the statute De donis conditionalibus, anno 13 E. 1., was made, which act saith, Dominus Rex perpendens quod, necessarium et utile est in prædictis casibus apponere remedium, &c. statuit, quod non habeant illi quibus tenementum sic fuit datum sub conditione potestatum alienandi, &c. and the Lord Berkeley's case was, that land was given to King Henry the Seventh, and to the heirs male of his body; and the question was, whether the King, forasmuch as he was not expressly restrained by the act post prolem masculum suscitatum, might alien or not? and it was adjudged that he could not alien, but that he is restrained by the said act for three reasons, 1st, Because such alienation before the statute was wrongful, although such wrong wanted remedy; for there it is said, it would be a hard argument to grant, that the statute which restrains men from doing wrong and ill should permit the King to do it.-2d. Forasmuch as the said act is Statutum remediale, and provides a remedy for this remediless wrong, and that it was necessary and profitable to provide such remedy, it was adjudged, that it should bind the King. And to conclude this reason, it is notably said, in 24 E. 3. 41 a. that the law is reason and equity, to do right to all, and to keep men from wrong and mischief, and therefore the law will never make construction against law, equity, and right." 1 Coke R. 11. pt. 66. Edit. 1776. I In conformity with the preceding case, and many of an earlier date, a rule hath been established, that where an act of parliament is made for the public good, the advancement of religion and justice, the King shall be bound by such act, though not particularly named; but then it will be said, that the King cannot be divested of any of his prerogatives by general words in an act of parliament, but there must be plain and express words for that purpose; therefore the only two considerations are, whether the words in the section are not express and plain, and whether the King did not obviously mean to bind himself. In the Magdalen College case,3 the Judges determined that the Queen did come, by reasonable implication, under the description of a body politic, used in the 13th of Elizabeth. So here the King must come, by necessary construction, within the meaning of lawful authority, for that is the only rightful sense that can be given to the words; besides the King here is in a special manner a contracting party, and was clearly ! 5 Co. 14., 7 Co. 32., Co. Lit. 120. 2 8 Mod. 8, and Hob. 145. diminishing his prerogative in matters ecclesiastical, quoad the act, as Edward and Elizabeth had done before, though not in so extensive a manner. If this reasoning were good prior to the 13th and 14th of Charles the Second, à fortiori, does it hold good now, since the King holds his crown on certain specified conditions, and those of modern date: First, not the least essential, "that he shall not suspend laws, or the execution of laws, by regal authority, without the consent of Parliament:-Secondly, that the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal." It was because James the Second had assumed and exercised a power of dispensing with laws, and the exercise of laws, without the consent of parliament, that he, for this and other reasons stated in the act of settlement, abdicated. When it is proved that what the act required to be done is altogether discretional; then the observations with regard to the act of settlement do not apply, but till that be done, common sense seems to suggest that the present case comes under the notion of either the non-execution or the suspension of laws. An attempt has been made, in a very few pages, to prove the three propositions:-First, that it was the intention of the legislature that the Queen should be inserted in the Liturgy:-Secondly, that the words of the statute are unambiguous:-and, Thirdly, that the King is bound thereby. It would have been great presumption, when this pamphlet was first submitted to the public, to have anticipated and replied to the different arguments on the other side of the question; some of them could not have been foreseen, for they have greatly exceeded the apprehension of an ordinary understanding; for instance, when it is contended that the insertion of the Queen's name in the Liturgy since the Reformation has not been uniform, because, in the time of Philip and Mary, the Prayer was, as asserted, pro rege et principibus suis. If this were so, which no one ever heard of before, Pope Julius the Third, and his legate, were very silly persons. The Salisbury ritual, which was in use at this time, had in the supplicatory part of the Litany ut regi nostro et principibus nostris, and in the prayer after the Litany, Regem nostrum et omnem populum Catholicum. None of the rituals had a title to any of the prayers. Whether the Queen Regnant was intended by the word Rege is quite unimportant, for at this time matters ecclesiastical were more directly under the control of the Pope, than at any other epoch in the English history. It is more than probable, that 'Salisbury Ritual, 1557. British Museum, the word Rege meant to represent the Queen Regnant;1 since many writers, even in our language, have applied the word King to the feminine gender; and in more modern times, for instance, Katherine of Russia was frequently designated Rex et Imperator; therefore this illustration totally fails. Next it is said, Sophia Dorothea, who had been the wife of George the First, was not in the Liturgy; no very sensible man could have advised the King to treat a person as his wife who had long ceased to be so; the Princess. Sophia Dorothea might possibiy have been, when George the First came to this country, like the lady in Juvenal, "Sic fiunt octo mariti Quinque per autumnos." The day after the King arrived, he informed the Lord Chancellor of his divorce, which had been decreed by a court of competent jurisdiction; and every one knows, that in all the Lutheran principalities, a divorce for certain causes by the civil law was a dissolution of the marriage contract. It is lastly urged, that Prince George of Denmark, the consort of Queen Anne, was not in the Liturgy. If he had been there, it would have been a strange perversion of the statute, for he was neither King, Queen, nor Royal Progeny; so that these instances only confirm the strictness of the rule. Some say, that the 25th section is merely confirmatory of the prerogative right. If this be true, it can only arise from the words being declaratory, which would be inconsistent with the rest of the statute, and would render many words superfluous, void, and insignificant, and contrary to all the rules of construction; besides, when the framers of this act were making use of words which in their genuine and natural signification would necessarily have the effect of interfering with the prerogatives of the King, they would, consistently with their excellent judgment, have added a clause to the act, saving of the King's right; although such clause, in ordinary cases, is considered ex abundanti Cautela. A good deal seems to have been attributed to the observation, that the King's power is as absolute now as the Pope's was previously to the Reformation; it is much greater, with the exceptions comprised in from twenty to thirty acts of parliament, and, not the least important among them, the statutes of Edward, Elizabeth, and Charles the Second. How did it happen, that in the time of Edward the Sixth, when there was no Queen Mary, before her marriage with Philip, was in the rituals described by the word Rege, not Regina. Queen Consort, a provision was made in the Common Prayer: Book for one; the same was also the fact in the reign of Elizabeth, when the Prayer Book of Edward was adopted with certain additions; and King James the First, as soon as he came to the throne, inserted Queen Anne. The next notable argument is, that Queen means only Queen Regnant; certainly, with the addition this character is represented; but if Queen Regnant only was intended, who is the same as King, what becomes of the verse in the Litany, and the distinct prayer for the Queen Consort? Will any upright and reasonable man say, they were intended by the Legislature to be superfluous, void, and insignificant? And if the name of the Queen was only to be capriciously used, would not that circumstance tend to produce faction and schism in the church. The argument that those coming within the description of the word Progeny, have been in the Liturgy at one period, and out at another, seems by some to be thought very convincing. Now it is conceded in the fullest manner, that since the word is indefinite in its meaning, and therefore uncertain, the prerogative cannot be affected, as nothing short of express terms can bind the King's right, although the Legislature clearly intended that this word should to a certain extent be satisfied. How can the irregular practice with regard to the word Progeny interfere with the regular custom with respect to the Queen, which is express, plain, clear, and unambiguous. An objection is made against the claim, because it has been only recently submitted to the consideration of Parliament. But the Claimant 'asserted her right the moment her title accrued, and the delay of trial for a few months, to whomsoever the laches is attributable, is no legal bar to a fair investigation of the case. Ministers exultingly exclaim, If the law had been clear, the difficulty would have been none!--this sounds very magnanimous, and captivating;-if it pleases the ear, it is not therefore to impose on the understanding; it is too puerile to be commented upon. Every unfortunate man, whom the arm of the law reaches, says within himself, How easy would it have been to have avoided my present misery, had 1 but resisted the temptation. The not being able responsare cupidinibus is what few men possess, and those in office well know how difficult it is contemnere honores. A direction to insert is said to be the same as a power to omit; if this be so, the Litany and Prayer become surplusage, as far as the Queen Consort was concerned, who is the person expressly intended to be inserted ;--besides, if such a rule could be applied, 'The practice proves this must have been the fact; it is much to be regretted this book cannot be found; but the order in council, when James I. inserted the name of Queen Anne, might explain this matter. those acts of parliament which contain blanks to be filled up by the King, might be made altogether inoperative, by his refusing to carry the act into effect. Such an instance is not so strong as the present, in which a statute is made pro bono publico, and is to be construed in such manner, that it may as far as possible attain the end proposed. To show with what peculiar jealousy the legislature has always regarded any interference with the Common Prayer, as annexed to the statute, it is only necessary to consider the conduct of Government, when any alterations and omissions, however wise and judicious, have been suggested, even by the most learned men in this country. At different periods, from the Revolution to the year 1786, various schemes have been proposed by men of great piety and learning.-Dr. Samuel Clarke, in particular, took infinite pains on this subject; his corrections consisted chiefly of omissions, as may be seen by the manuscript in the British Museum, and divines, statesmen, and lawyers have more than once uniformly agreed, that some omissions in the articles would be most desirable; but the measure has been always abandoned, because nothing could be done without the interference of Parliament, and the Government has been wisely fearful, lest, in an endeavour to gather up the tares, they might root up the wheat also. The political expediency of omitting the Queen's name is not, in these pages, at all considered, as the question has been only legally regarded; but nothing short of imperious necessity could justify an infringement of the law. The best mode of arguing this case for the Crown, (which seems to have escaped observation,) would be to insist, that although the King might be precluded of such claims as indifferently belong to him or to a subject, as the title to an advowson, or any other hereditament; still he is not to be stript of any part of his ancient prerogative, nor of those rights which are incommunicable, and are appropriated to him as essential to his regal capacity,' which are as ancient as the Crown; and again it is an established principle at law, that where the King's right and that of a subject meet at one and the same time, the King shall be preferred, for the rule is deter dignitati. These principles are indisputable, but inapplicable to the present case, because the King divested himself of the prerogative right in this particular, not for the sake of giving any right to the Queen, but for the purpose of promoting the ends expressly stated in the preamble of the act; and he is therefore as much bound in this respect as with regard to the insertion of his own name; and the history of the country proves how little choice has had to do with the matter. 'Parker, 180. 2 Hales P. C. 75. 3 Co. Lit. 30. Hard. 24. 2 Vent. 268. |