to the king, in his political capacity, absolute perfection.
The king can do no wrong. Which antient and fundamental
maxim is not to be understood, as if every thing transacted by the
government was of course just and lawful, but means only two
things. First, that whatever is exceptionable in the conduct of
public affairs is not to be imputed to the king, nor is he answerable
for it personally to his people: for this doctrine would totally
destroy that constitutional independence of the crown, which
is necessary for the balance of power, in our free and active, and
therefore compounded, constitution. And, secondly, it means
that the prerogative of the crown extends not to do any injury:
it is created for the benefit of the people, and therefore cannot
be exerted to their prejudice[r].
but even of thinking wrong: he can never mean to do an improper
thing: in him is no folly or weakness. And therefore, if the
crown should be induced to grant any franchise or privilege to a
subject contrary to reason, or in any wise prejudicial to the commonwealth,
or a private person, the law will not suppose the
king to have meant either an unwise or an injurious action, but
declares that the king was deceived in his grant; and thereupon
such grant is rendered void, merely upon the foundation of fraud
and deception, either by or upon those agents, whom the crown
has thought proper to employ. For the law will not cast an imputation
on that magistrate whom it entrusts with the executive
power, as if he was capable of intentionally disregarding his
trust: but attributes to mere imposition (to which the most perfect
of sublunary beings must still continue liable) those little inadvertencies,
which, if charged on the will of the prince, might
lessen him in the eyes of his subjects.
law attributes to the sovereign, the constitution has allowed a latitude
of supposing the contrary, in respect to both houses of parliament;
each of which, in it's [** sic] turn, hath exerted the right of
remonstrating and complaining to the king even of those acts of
royalty, which are most properly and personally his own; such as
messages signed by himself, and speeches delivered from the throne.
And yet, such is the reverence which is paid to the royal person,
that though the two houses have an undoubted right to consider
these acts of state in any light whatever, and accordingly treat
them in their addresses as personally proceeding from the prince,
yet, among themselves, (to preserve the more perfect decency,
and for the greater freedom of debate) they usually suppose them
to flow from the advice of the administration. But the privilege
of canvassing thus freely the personal acts of the sovereign (either
directly, or even through the medium of his reputed advisers)
belongs to no individual, but is confined to those august assemblies:
and there too the objections must be proposed with the
utmost respect and deference. One member was sent to the tower[s],
for suggesting that his majesty's answer to the address of the
commons contained "high words, to fright the members out of
their duty;" and another[t], for saying that a part of the king's
speech "seemed rather to be calculated for the meridian of Germany
than Great Britain."
that in the king can be no negligence, or laches, and therefore no
delay will bar his right. Nullum tempus occurrit regi is the standing
maxim upon all occasions: for the law intends that the king
is always busied for the public good, and therefore has not leisure
to assert his right within the times limited to subjects[u]. In the
king also can be no stain or corruption of blood: for if the heir to
the crown were attainted of treason or felony, and afterwards the
crown should descend to him, this would purge the attainder ipso
facto[w]. And therefore when Henry VII, who as earl of Richmond
stood attainted, came to the crown, it was not thought necessary
to pass an act of parliament to reverse this attainder; because, as
lord Bacon in his history of that prince informs us, it was agreed
that the assumption of the crown had at once purged all attainders. Neither can the king in judgment of law, as king, ever
be a minor or under age; and therefore his royal grants and assents
to acts of parliament are good, though he has not in his
natural capacity attained the legal age of twenty one[x]. By a statute
indeed, 28 Hen. VIII. c. 17. power was given to future kings
to rescind and revoke all acts of parliament that should be made
while they were under the age of twenty four: but this was repealed
by the statute 1 Edw. VI. c. 11. so far as related to that
prince; and both statutes are declared to be determined by
24 Geo. II. c. 24. It hath also been usually thought prudent,
when the heir apparent has been very young, to appoint a protector,
guardian, or regent, for a limited time: but the very necessity
of such extraordinary provision is sufficient to demonstrate
the truth of that maxim of the common law, that in the king is
no minority; and therefore he hath no legal guardian[y].
III.
The law ascribes to him, in his political capacity, an
absolute immortality. The king never dies. Henry, Edward, or
George may die; but the king survives them all. For immediately
upon the decease of the reigning prince in his natural capacity,
his kingship or imperial dignity, by act of law, without
any interregnum or interval, is vested at once in his heir; who is,
eo instanti, king to all intents and purposes. And so tender is the
law of supposing even a possibility of his death, that his natural
dissolution is generally called his demise; dimissio regis, vel coronae:
an expression which signifies merely a transfer of property; for,
as is observed in Plowden[z], when we say the demise of the crown,
we mean only that in consequence of the disunion of the king's
body natural from his body politic, the kingdom is transferred or
demised to his successor; and so the royal dignity remains perpetual.
Thus too, when Edward the fourth, in the tenth year of
his reign, was driven from his throne for a few months by the
house of Lancaster, this temporary transfer of his dignity was
denominated his demise; and all process was held to be discontinued,
as upon a natural death of the king[a].
which invest this our sovereign lord, thus all-perfect and immortal
in his kingly capacity, with a number of authorities and
powers; in the exertion whereof consists the executive part of
government. This is wisely placed in a single hand by the British
constitution, for the sake of unanimity, strength and dispatch.
Were it placed in many hands, it would be subject to many wills:
many wills, if disunited and drawing different ways, create
weakness in a government: and to unite those several wills, and
reduce them to one, is a work of more time and delay than the
exigencies of state will afford. The king of England is therefore
not only the chief, but properly the sole, magistrate of the
nation; all others acting by commission from, and in due subordination
to him: in like manner as, upon the great revolution in
the Roman state, all the powers of the antient magistracy of the
commonwealth were concentred in the new emperor; so that, as
Gravina[b] expresses it, "in ejus unius persona veteris reipublicae vis
atque majestas per cumulatas magistratuum potestates exprimebatur."
(I trust) be considered as an advocate for arbitrary power, when I
lay it down as a principle, that in the exertion of lawful prerogative,
the king is and ought to be absolute; that is, so far absolute,
that there is no legal authority that can either delay or resist
him. He may reject what bills, may make what treaties, may
coin what money, may create what peers, may pardon what offences
he pleases: unless where the constitution hath expressly,
or by evident consequence, laid down some exception or boundary;
declaring, that thus far the prerogative shall go and no farther.
For otherwise the power of the crown would indeed be but a
name and a shadow, insufficient for the ends of government, if,
where it's jurisdiction is clearly established and allowed, any man
or body of men were permitted to disobey it, in the ordinary
course of law: I say, in the ordinary course of law; for I do
not now speak of those extraordinary recourses to first principles,
which are necessary when the contracts of society are in danger
of dissolution, and the law proves too weak a defence against the
violence of fraud or oppression. And yet the want of attending
to this obvious distinction has occasioned these doctrines, of absolute
power in the prince and of national resistance by the people,
to be much misunderstood and perverted by the advocates for slavery
on the one hand, and the demagogues of faction on the
other. The former, observing the absolute sovereignty and transcendent
dominion of the crown laid down (as it certainly is) most
strongly and emphatically in our lawbooks, as well as our homilies,
have denied that any case can be excepted from so general
and positive a rule; forgetting how impossible it is, in any practical
system of laws, to point out beforehand those eccentrical
remedies, which the sudden emergence of national distress may
dictate, and which that alone can justify. On the other hand,
over-zealous republicans, feeling the absurdity of unlimited passive
obedience, have fancifully (or sometimes factiously) gone over
to the other extreme: and, because resistance is justifiable to the
person of the prince when the being of the state is endangered,
and the public voice proclaims such resistance necessary, they have
therefore allowed to every individual the right of determining this
expedience, and of employing private force to resist even private
oppression. A doctrine productive of anarchy, and (in consequence)
equally fatal to civil liberty as tyranny itself. For civil liberty,
rightly understood, consists in protecting the rights of individuals
by the united force of society: society cannot be maintained, and
of course can exert no protection, without obedience to some sovereign
power: and obedience is an empty name, if every individual
has a right to decide how far he himself shall obey.
has given him, the king is irresistible and absolute, according to
the forms of the constitution. And yet, if the consequence of that
exertion be manifestly to the grievance or dishonour of the kingdom,
the parliament will call his advisers to a just and severe account.
For prerogative consisting (as Mr Locke[c] has well defined
it) in the discretionary power of acting for the public good, where
the positive laws are silent, if that discretionary power be abused
to the public detriment, such prerogative is exerted in an unconstitutional
manner. Thus the king may make a treaty with a
foreign state, which shall irrevocably bind the nation; and yet,
when such treaties have been judged pernicious, impeachments
have pursued those ministers, by whose agency or advice they
were concluded.
we are now considering them) respect either this nation's intercourse
with foreign nations, or it's [** sic..this is the third one I've seen so I will stop marking them] own domestic government
and civil polity.
representative of his people. It is impossible that the individuals
of a state, in their collective capacity, can transact the affairs of
that state with another community equally numerous as themselves.
Unanimity must be wanting to their measures, and strength
to the execution of their counsels. In the king therefore, as in a
center, all the rays of his people are united, and form by that
union a consistency, splendor, and power, that make him feared
and respected by foreign potentates; who would scruple to enter
into any engagements, that must afterwards be revised and ratified
by a popular assembly. What is done by the royal authority,
with regard to foreign powers, is the act of the whole nation:
what is done without the king's concurrence is the act only of
private men. And so far is this point carried by our law, that
it hath been held[d], that should all the subjects of England make
war with a king in league with the king of England, without the
royal assent, such war is no breach of the league. And, by the
statute 2 Hen. V. c. 6. any subject committing acts of hostility
upon any nation in league with the king, was declared to be
guilty of high treason: and, though that act was repealed by the
statute 20 Hen. VI. c. 11. so far as relates to the making this offence
high treason, yet still it remains a very great offence against
the law of nations, and punishable by our laws, either capitally
or otherwise, according to the circumstances of the case.
I.
people, has the sole power of sending embassadors to foreign
states, and receiving embassadors at home. This may lead us into
a short enquiry, how far the municipal laws of England intermeddle with or protect the rights of these messengers from one
potentate to another, whom we call embassadors.
are determined by the law of nature and nations, and
not by any municipal constitutions. For, as they represent the
persons of their respective masters, who owe no subjection to any
laws but those of their own country, their actions are not subject
to the control of the private law of that state, wherein they are
appointed to reside. He that is subject to the coercion of laws is
necessarily dependent on that power by whom those laws were
made: but an embassador ought to be independent of every power,
except that by which he is sent; and of consequence ought not to
be subject to the mere municipal laws of that nation, wherein he
is to exercise his functions. If he grossly offends, or makes an ill
use of his character, he may be sent home and accused before
his master[e]; who is bound either to do justice upon him, or avow
himself the accomplice of his crimes[f]. But there is great dispute
among the writers on the laws of nations, whether this exemption
of embassadors extends to all crimes, as well natural as
positive; or whether it only extends to such as are mala prohibita,
as coining, and not to those that are mala in se, as murder[g]. Our
law seems to have formerly taken in the restriction, as well as the
general exemption. For it has been held, both by our common
lawyers and civilians[h], that an embassador is privileged by the law
of nature and nations; and yet, if he commits any offence against
the law of reason and nature, he shall lose his privilege[i]: and
that therefore, if an embassador conspires the death of the king
in whose land he is, he may be condemned and executed for treason;
but if he commits any other species of treason, it is otherwise,
and he must be sent to his own kingdom[k]. And these positions seem to be built upon good appearance of reason. For
since, as we have formerly shewn, all municipal laws act in subordination
to the primary law of nature, and, where they annex
a punishment to natural crimes, are only declaratory of and
auxiliary to that law; therefore to this natural, universal rule
of justice embassadors, as well as other men, are subject in all
countries; and of consequence it is reasonable that wherever they
transgress it, there they shall be liable to make atonement[l]. But,
however these principles might formerly obtain, the general
practice of Europe seems now to have adopted the sentiments
of the learned Grotius, that the security of embassadors is of
more importance than the punishment of a particular crime[m].
And therefore few, if any, examples have happened within a century
past, where an embassador has been punished for any offence,
however atrocious in it's [** ] nature.
an embassador, nor any of his train or comites, can be prosecuted
for any debt or contract in the courts of that kingdom
wherein he is sent to reside. Yet sir Edward Coke maintains,
that, if an embassador make a contract which is good jure gentium,
he shall answer for it here[n]. And the truth is, we find no traces
in our lawbooks of allowing any privilege to embassadors or their
domestics, even in civil suits, previous to the reign of queen
Anne; when an embassador from Peter the great, czar of Muscovy,
was actually arrested and taken out of his coach in London,
in 1708, for debts which he had there contracted. This the czar
resented very highly, and demanded (we are told) that the officers
who made the arrest should be punished with death. But the
queen (to the amazement of that despotic court) directed her minister
to inform him, "that the law of England had not yet protected
embassadors from the payment of their lawful debts;
that therefore the arrest was no offence by the laws; and that
she could inflict no punishment upon any, the meanest, of her
subjects, unless warranted by the law of the land[o]." To satisfy
however the clamours of the foreign ministers (who made it a
common cause) as well as to appease the wrath of Peter[p], a new
statute was enacted by parliament[q], reciting the arrest which had
been made, "in contempt of the protection granted by her majesty,
contrary to the law of nations, and in prejudice of the
rights and privileges, which embassadors and other public ministers
have at all times been thereby possessed of, and ought to
be kept sacred and inviolable:" wherefore it enacts, that for
the future all process whereby the person of any embassador, or
of his domestic or domestic servant, may be arrested, or his goods
distreined or seised, shall be utterly null and void; and the persons
prosecuting, soliciting, or executing such process shall be
deemed violaters of the law of nations, and disturbers of the
public repose; and shall suffer such penalties and corporal punishment
as the lord chancellor and the two chief justices, or any
two of them, shall think fit. But it is expressly provided, that
no trader, within the description of the bankrupt laws, who shall
be in the service of any embassador, shall be privileged or protected
by this act; nor shall any one be punished for arresting an
embassador's servant, unless his name be registred with the secretary
of state, and by him transmitted to the sheriffs of London
and Middlesex. Exceptions, that are strictly conformable to the
rights of embassadors[r], as observed in the most civilized countries.
And, in consequence of this statute, thus enforcing the
law of nations, these privileges are now usually allowed in the
courts of common law[s].
II.
and alliances with foreign states and princes. For it is by the law
of nations essential to the goodness of a league, that it be made by
the sovereign power[t]; and then it is binding upon the whole
community: and in England the sovereign power, quoad hoc, is
vested in the person of the king. Whatever contracts therefore he
engages in, no other power in the kingdom can legally delay, resist,
or annul. And yet, lest this plenitude of authority should be
abused to the detriment of the public, the constitution (as was
hinted before) hath here interposed a check, by the means of parliamentary
impeachment, for the punishment of such ministers as
advise or conclude any treaty, which shall afterwards be judged
to derogate from the honour and interest of the nation.
III.
of making war and peace. For it is held by all the writers
on the law of nature and nations, that the right of making
war, which by nature subsisted in every individual, is given up
by all private persons that enter into society, and is vested in the
sovereign power[u]: and this right is given up not only by individuals,
but even by the intire body of people, that are under the
dominion of a sovereign. It would indeed be extremely improper,
that any number of subjects should have the power of binding the
supreme magistrate, and putting him against his will in a state of
war. Whatever hostilities therefore may be committed by private
citizens, the state ought not to be affected thereby; unless that
should justify their proceedings, and thereby become partner in
the guilt. Such unauthorized voluntiers in violence are not ranked
among open enemies, but are treated like pirates and robbers:
according to that rule of the civil law[w]; hostes hi sunt qui nobis,
aut quibus nos, publice bellum decrevimus: caeteri latrones aut praedones
sunt. And the reason which is given by Grotius[x], why according to the law of nations a denunciation of war ought always
to precede the actual commencement of hostilities, is not so much
that the enemy may be put upon his guard, (which is matter rather
of magnanimity than right) but that it may be certainly clear
that the war is not undertaken by private persons, but by the will
of the whole community; whose right of willing is in this case
transferred to the supreme magistrate by the fundamental laws of
society. So that, in order to make a war completely effectual, it
is necessary with us in England that it be publicly declared and
duly proclaimed by the king's authority; and, then, all parts of
both the contending nations, from the highest to the lowest, are
bound by it. And, wherever the right resides of beginning a national
war, there also must reside the right of ending it, or the
power of making peace. And the same check of parliamentary
impeachment, for improper or inglorious conduct, in beginning,
conducting, or concluding a national war, is in general sufficient
to restrain the ministers of the crown from a wanton or injurious
exertion of this great prerogative.
"End of Section 27"
