bulwarks of civil liberty, or (in other words) of the British
constitution, was the limitation of the king's prerogative by
bounds so certain and notorious, that it is impossible he should
ever exceed them, without the consent of the people, on the one
hand; or without, on the other, a violation of that original contract,
which in all states impliedly, and in ours most expressly,
subsists between the prince and the subject. It will now be our
business to consider this prerogative minutely; to demonstrate it's[**sic]
necessity in general; and to mark out in the most important instances
it's[**sic] particular extent and restrictions: from which considerations
this conclusion will evidently follow, that the powers which
are vested in the crown by the laws of England, are necessary for
the support of society; and do not intrench any farther on our natural
liberties, than is expedient for the maintenance of our civil.
which is the boast of this age and country, than the power of
discussing and examining, with decency and respect, the limits of
the king's prerogative. A topic, that in some former ages was
thought too delicate and sacred to be profaned by the pen of a
subject. It was ranked among the arcana imperii; and, like the
mysteries of the bona dea, was not suffered to be pried into by any
but such as were initiated in it's[**sic] service: because perhaps the exertion
of the one, like the solemnities of the other, would not bear
the inspexion of a rational and sober enquiry. The glorious queen
Elizabeth herself made no scruple to direct her parliaments to abstain
from discoursing of matters of state[b]; and it was the constant
language of this favorite princess and her ministers, that even that
august assembly "ought not to deal, to judge, or to meddle, with
her majesty's prerogative royal[c]." And her successor, king James
the first, who had imbibed high notions of the divinity of regal
sway, more than once laid it down in his speeches, that "as it is
atheism and blasphemy in a creature to dispute what the deity
may do, so it is presumption and sedition in a subject to dispute
what a king may do in the height of his power: good christians,[** "]
he adds, [** "]will be content with God's will, revealed in his
word; and good subjects will rest in the king's will, revealed
in his law[d]."
this was never the language of our antient constitution and
laws. The limitation of the regal authority was a first and essential
principle in all the Gothic systems of government established
in Europe; though gradually driven out and overborne, by violence
and chicane, in most of the kingdoms on the continent. We have
seen, in the preceding chapter, the sentiments of Bracton and Fortescue,
at the distance of two centuries from each other. And sir
Henry Finch, under Charles the first, after the lapse of two centuries
more, though he lays down the law of prerogative in very
strong and emphatical terms, yet qualifies it with a general restriction,
in regard to the liberties of the people. "The king
hath a prerogative in all things, that are not injurious to the
subject; for in them all it must be remembered, that the king's
prerogative stretcheth not to the doing of any wrong[e]." Nihil
enim aliud potest rex, nisi id solum quod de jure potest[f]. And here
it may be some satisfaction to remark, how widely the civil law
differs from our own, with regard to the authority of the laws
over the prince, or (as a civilian would rather have expressed it)
the authority of the prince over the laws. It is a maxim of the
English law, as we have seen from Bracton, that "rex debet esse
sub lege, quia lex facit regem:" the imperial law will tell us,
that "in omnibus, imperatoris excipitur fortuna; cui ipsas leges Deus
subjecit[g]." We shall not long hesitate to which of them to give
the preference, as most conducive to those ends for which societies
were framed, and are kept together; especially as the Roman
lawyers themselves seem to be sensible of the unreasonableness of
their own constitution. "Decet tamen principem," says Paulus,
"servare leges, quibus ipse solutus est[h]." This is at once laying
down the principle of despotic power, and at the same time acknowleging
it's absurdity.
pre-eminence, which the king hath, over and above all other
persons, and out of the ordinary course of the common law, in
right of his regal dignity. It signifies, in it's etymology, (from
prae and rogo) something that is required or demanded before, or
in preference to, all others. And hence it follows, that it must be
in it's nature singular and eccentrical; that it can only be applied
to those rights and capacities which the king enjoys alone, in
contradistinction to others, and not to those which he enjoys in
common with any of his subjects: for if once any one prerogative
of the crown could be held in common with the subject, it
would cease to be prerogative any longer. And therefore Finch[i]
lays it down as a maxim, that the prerogative is that law in case
of the king, which is law in no case of the subject.
are such positive substantial parts of the royal character and authority, as are rooted in and spring from the king's political person,
considered merely by itself, without reference to any other
extrinsic circumstance; as, the right of sending embassadors, of
creating peers, and of making war or peace. But such prerogatives
as are incidental bear always a relation to something else,
distinct from the king's person; and are indeed only exceptions,
in favour of the crown, to those general rules that are established
for the rest of the community: such as, that no costs shall be
recovered against the king; that the king can never be a joint-tenant;
and that his debt shall be preferred before a debt to any
of his subjects. These, and an infinite number of other instances,
will better be understood, when we come regularly to consider
the rules themselves, to which these incidental prerogatives
are exceptions. And therefore we will at present only dwell upon
the king's substantive or direct prerogatives.
into three kinds: being such as regard, first, the king's royal
character; secondly, his royal authority; and, lastly, his royal income.
These are necessary, to secure reverence to his person, obedience
to his commands, and an affluent supply for the ordinary
expenses of government; without all of which it is impossible to
maintain the executive power in due independence and vigour.
Yet, in every branch of this large and extensive dominion, our
free constitution has interposed such seasonable[**reasonable?] checks and restrictions,
as may curb it from trampling on those liberties, which it
was meant to secure and establish. The enormous weight of prerogative
(if left to itself, as in arbitrary government it is) spreads
havoc and destruction among all the inferior movements: but,
when balanced and bridled (as with us) by it's proper counterpoise,
timely and judiciously applied, it's operations are then
equable and regular, it invigorates the whole machine, and enables
every part to answer the end of it's construction.
these divisions, which relate to the king's political character and
authority; or, in other words, his dignity and regal power; to
which last the name of prerogative is frequently narrowed and
confined. The other division, which forms the royal revenue,
will require a distinct examination; according to the known distribution
of the feodal writers, who distinguish the royal prerogatives
into the majora and minora regalia, in the latter of which
classes the rights of the revenue are ranked. For, to use their own
words, "majora regalia imperii praeeminentiam spectant; minora
vero ad commodum pecuniarium immediate attinent; et haec proprie
fiscalia sunt, et ad jus fisci pertinent[k]."
establishment, it is necessary to distinguish the prince from his
subjects, not only by the outward pomp and decorations of majesty,
but also by ascribing to him certain qualities, as inherent in
his royal capacity, distinct from and superior to those of any other
individual in the nation. For, though a philosophical mind will
consider the royal person merely as one man appointed by mutual
consent to preside over many others, and will pay him that reverence
and duty which the principles of society demand, yet the
mass of mankind will be apt to grow insolent and refractory, if
taught to consider their prince as a man of no greater perfection
than themselves. The law therefore ascribes to the king, in his
high political character, not only large powers and emoluments
which form his prerogative and revenue, but likewise certain attributes
of a great and transcendent nature; by which the people
are led to consider him in the light of a superior being, and to
pay him that awful respect, which may enable him with greater
ease to carry on the business of government. This is what I
understand by the royal dignity, the several branches of which we
will now proceed to examine.
sovereignty, or pre-eminence. "Rex est vicarius," says Bracton[** l],
"et minister Dei in terra: omnis quidem sub eo est, et ipse sub nullo,
"nisi tantum sub Deo." He is said to have imperial dignity, and
in charters before the conquest is frequently stiled basileus and imperator,
the titles respectively assumed by the emperors of the
east and west[m]. His realm is declared to be an empire, and his
crown imperial, by many acts of parliament, particularly the statutes
24 Hen. VIII. c. 12. and 25 Hen. VIII. c. 28; which at the
same time declare the king to be the supreme head of the realm
in matters both civil and ecclesiastical, and of consequence inferior
to no man upon earth, dependent on no man, accountable to no
man. Formerly there prevailed a ridiculous notion, propagated
by the German and Italian civilians, that an emperor could do
many things which a king could not, (as the creation of notaries
and the like) and that all kings were in some degree subordinate
and subject to the emperor of Germany or Rome. The meaning
therefore of the legislature, when it uses these terms of empire
and imperial, and applies them to the realm of England, is only
to assert that our king is equally sovereign and independent within
these his dominions, as any emperor is in his empire; and
owes no kind of subjection to any other potentate upon earth.
Hence it is, that no suit or action can be brought against the king,
even in civil matters, because no court can have jurisdiction over
him. For all jurisdiction implies superiority of power: authority
to try would be vain and idle, without an authority to redress;
and the sentence of a court would be contemptible, unless that
court had power to command the execution of it: but who, says
Finch[n], shall command the king? Hence it is likewise, that by
law the person of the king is sacred, even though the measures
pursued in his reign be completely tyrannical and arbitrary: for
no jurisdiction upon earth has power to try him in a criminal
way; much less to condemn him to punishment. If any foreign
jurisdiction had this power, as was formerly claimed by the pope,
the independence of the kingdom would be no more: and, if
such a power were vested in any domestic tribunal, there would
soon be an end of the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative
power.
destitute of remedy, in case the crown should invade their rights,
either by private injuries, or public oppressions? To this we may
answer, that the law has provided a remedy in both cases.
of property, a just demand upon the king, he must petition him
in his court of chancery, where his chancellor will administer
right as a matter of grace, though not upon compulsion[o]. And
this is entirely consonant to what is laid down by the writers on
natural law. "A subject, says Puffendorf[p], so long as he continues
a subject, hath no way to oblige his prince to give him his
due, when he refuses it; though no wise prince will ever refuse
to stand to a lawful contract. And, if the prince gives the subject
leave to enter an action against him, upon such contract,
in his own courts, the action itself proceeds rather upon natural
equity, than upon the municipal laws." For the end of such action
is not to compel the prince to observe the contract, but to
persuade him. And, as to personal wrongs; it is well observed
by Mr Locke[q], "the harm which the sovereign can do in his
own person not being likely to happen often, nor to extend itself
far; nor being able by his single strength to subvert the
laws, nor oppress the body of the people, (should any prince
have so much weakness and ill nature as to endeavour to do it)--the
inconveniency therefore of some particular mischiefs, that
may happen sometimes, when a heady prince comes to the
throne, are well recompensed by the peace of the public and
security of the government, in the person of the chief magistrate
being thus set out of the reach of danger."
vitals of the constitution are not attacked, the law hath also assigned
a remedy. For, as a king cannot misuse his power, without the
advice of evil counsellors, and the assistance of wicked ministers,
these men may be examined and punished. The constitution has
therefore provided, by means of indictments, and parliamentary
impeachments, that no man shall dare to assist the crown in contradiction
to the laws of the land. But it is at the same time a
maxim in those laws, that the king himself can do no wrong;
since it would be a great weakness and absurdity in any system of
positive law, to define any possible wrong, without any possible
redress.
constitution, and subvert the fundamentals of government, they
are cases which the law will not, out of decency, suppose; being
incapable of distrusting those, whom it has invested with any part
of the supreme power; since such distrust would render the exercise
of that power precarious and impracticable. For, where*-ever
the law expresses it's [** sic] distrust of abuse of power, it always
vests a superior coercive authority in some other hand to correct
it; the very notion of which destroys the idea of sovereignty. If
therefore (for example) the two houses of parliament, or either
of them, had avowedly a right to animadvert on the king, or
each other, or if the king had a right to animadvert on either of
the houses, that branch of the legislature, so subject to animadversion,
would instantly cease to be part of the supreme power;
the ballance of the constitution would be overturned; and that
branch or branches, in which this jurisdiction resided, would be
completely sovereign. The supposition of law therefore is, that
neither the king nor either house of parliament (collectively taken)
is capable of doing any wrong; since in such cases the law
feels itself incapable of furnishing any adequate remedy. For
which reason all oppressions, which may happen to spring from
any branch of the sovereign power, must necessarily be out of the
reach of any stated rule, or express legal provision: but, if ever
they unfortunately happen, the prudence of the times must provide
new remedies upon new emergencies.
oppressions, even of the sovereign power, advance
with gigantic strides and threaten desolation to a state, mankind
will not be reasoned out of the feelings of humanity; nor will
sacrifice their liberty by a scrupulous adherence to those political
maxims, which were originally established to preserve it. And
therefore, though the positive laws are silent, experience will furnish
us with a very remarkable case, wherein nature and reason
prevailed. When king James the second invaded the fundamental
constitution of the realm, the convention declared an abdication,
whereby the throne was rendered vacant, which induced a new
settlement of the crown. And so far as this precedent leads, and
no farther, we may now be allowed to lay down the law of redress
against public oppression. If therefore any future prince should
endeavour to subvert the constitution by breaking the original
contract between king and people, should violate the fundamental
laws, and should withdraw himself out of the kingdom; we are
now authorized to declare that this conjunction of circumstances
would amount to an abdication, and the throne would be thereby
vacant. But it is not for us to say, that any one, or two, of these
ingredients would amount to such a situation; for there our precedent
would fail us. In these therefore, or other circumstances,
which a fertile imagination may furnish, since both law and history
are silent, it becomes us to be silent too; leaving to future
generations, whenever necessity and the safety of the whole shall
require it, the exertion of those inherent (though latent) powers
of society, which no climate, no time, no constitution, no contract,
can ever destroy or diminish.
"End of Section 26"
