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.
THESE substantive or direct prerogatives may again be divided 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 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.
IN the present chapter we shall only consider the two first of 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]."
[Footnote k: _Peregrin. de jure fisc._ _l._ 1. _c._ i. _num._ 9.]
FIRST, then, of the royal dignity. Under every monarchical
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.
I. AND, first, the law ascribes to the king the attribute of
_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.
[Footnote l: _l._ 1. _c._ 8.]
[Footnote m: Seld. tit. of hon. 1. 2.]
[Footnote n: Finch. L. 83.]
ARE then, it may be asked, the subjects of England totally 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.
AND, first, as to private injuries; if any person has, in point 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."
[Footnote o: Finch. L. 255.]
[Footnote p: Law of N. and N. l. 8. c. 10.]
[Footnote q: on Gov. p. 2. Sec. 205.]
NEXT, as to cases of ordinary public oppression, where the 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.
FOR, as to such public oppressions as tend to dissolve the
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, whereever [Transcriber's
Note: wherever] the law expresses it's 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.
INDEED, it is found by experience, that whenever the unconstitutional
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.
II. BESIDES the attribute of sovereignty, the law also ascribes 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].
[Footnote r: Plowd. 487.]
THE king, moreover, is not only incapable of _doing_ wrong, 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.
YET still, notwithstanding this personal perfection, which the 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 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."
[Footnote s: Com. Journ. 18 Nov. 1685.]
[Footnote t: Com. Journ. 4 Dec. 1717.]
IN farther pursuance of this principle, the law also determines 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].
[Footnote u: Finch. L. 82. Co. Litt. 90 _b._]
[Footnote w: Finch. L. 82.]
[Footnote x: Co. Litt. 43.]
[Footnote y: The methods of appointing this guardian or regent have
been so various, and the duration of his power so uncertain, that from
thence alone it may be collected that his office is unknown to the
common law; and therefore (as sir Edward Coke says, 4 Inst. 58.) the
surest way is to have him made by authority of the great council in
parliament. The earl of Pembroke by his own authority assumed, in very
troublesome times, the regency of Henry III, who was then only nine
years old; but was declared of full age by the pope at seventeen,
confirmed the great charter at eighteen, and took upon him the
administration of the government at twenty. A guardian and council of
regency were named for Edward III, by the parliament which deposed his
father; the young king being then fifteen, and not assuming the
government till three years after. When Richard II succeeded at the
age of eleven, the duke of Lancaster took upon him the management of
the kingdom, till the parliament met, which appointed a nominal
council to assist him. Henry V on his death-bed named a regent and a
guardian for his infant son Henry VI, then nine months old: but the
parliament altered his disposition, and appointed a protector and
council, with a special limited authority. Both these princes remained
in a state of pupillage till the age of twenty three. Edward V, at the
age of thirteen, was recommended by his father to the care of the duke
of Glocester; who was declared protector by the privy council. The
statutes 25 Hen. VIII. c. 12. and 28 Hen. VIII. c. 7. provided, that
the successor, if a male and under eighteen, or if a female and under
sixteen, should be till such age in the governance of his or her
natural mother, (if approved by the king) and such other counsellors
as his majesty should by will or otherwise appoint: and he accordingly
appointed his sixteen executors to have the government of his son,
Edward VI, and the kingdom; which executors elected the earl of
Hertford protector. The statute 24 Geo. II. c. 24. in case the crown
should descend to any of the children of Frederick late prince of
Wales under the age of eighteen, appoints the princess dowager;--and
that of 5 Geo. III. c. 27. in case of a like descent to any of his
present majesty's children, empowers the king to name either the
queen, the princess dowager, or any descendant of king George II
residing in this kingdom;--to be guardian and regent, till the
successor attains such age, assisted by a council of regency: the
powers of them all being expressly defined and set down in the several
acts.]
III. A THIRD attribute of the king's majesty is his _perpetuity_. 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].
[Footnote z: Plowd. 177. 234.]
[Footnote a: M. 49 Hen. VI. pl. 1-8.]
WE are next to consider those branches of the royal prerogative, 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_."
[Footnote b: _Orig._ 1. Sec. 105.]