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Origin of the royal prerogative.

tion of the one, like the solemnities of the other, would not bear the inspection of a rational and sober inquiry. 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 favourite 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 I., 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). But, whatever might be the sentiments of some of our princes, this was never the language of our ancient 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(e). We have seen, in the preceding chapter, the sentiments hereon of Bracton and Fortescue, at the distance of two centuries from each other. And sir Henry Finch, under Charles I., 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 [*285] wrong "(f). Nihil enim aliud potest rex, nisi id solum quod de jure potest(g). And here we may 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 "(h). 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 "(i). This is at once laying down the principle of despotic power, and at the same time acknowledging its absurdity.

By the word "prerogative" we usually understand that special pre-eminence, which the king has, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. It sigprerogative. nifies, in its etymology (from prae and rogo) something that is required or demanded before, or in preference to, all others(k). And hence it

Etymology of

(b) D'Ewes, 479.

(c) Ibid. 645.

(d) King James's Works, 557, 531.

(e) See Allen on the Royal Prerogative, pp. 20-24.

(f) Finch. L. 84, 85.

(g) Bracton, 1. 3, tr. 1, c. 9.

(h) Nov. 105, s. 2.

(i) Dig. 32, 1, 23.

(k) So in the inductive philosophy "prerogative instances are those which, by possessing singular and eccentrical qualities, are primarily to be inquired into." (Bac. Nov. Org.) For other derivations of this word, see Thomas's edition of Co. Litt. i. 72, 90 b.

follows, that it must be in its 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

[*286] 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 (7) 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. Prerogatives are either direct or incidental. The direct are such positive substantial parts of the royal character and authority, as are rooted in and Prerogatives spring from the sovereign's political person, considered merely by are either direct, itself, without reference to any other extrinsic circumstance: as, the right of sending ambassadors, 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 sovereign'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 an action will not lie against the king; that the king can never be a joint tenant; that his debt shall be preferred before a debt owing 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 sovereign's substantive or direct prerogatives.

or incidental.

Direct prerogatives relate to the royal character, authority or income.

These substantive or direct prerogatives may again be divided into three kinds: being such as regard, first, the sovereign'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 reasonable checks *and restrictions, as may curb it from trampling on [* 287] those liberties, which it was meant to secure and establish. The enormous weight of prerogative, if left to itself (as in arbitrary governments it is), threatens every moment to spread havoc and destruction among all the inferior movements; but when balanced and regulated (as with us) by its proper counterpoise, timely and judiciously applied, its operations are equable and certain; it invigorates the whole machine, and enables every part to answer the end of its construction.

In the present chapter we shall only consider the two first of these divisions, which relate to the sovereign'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 feudal 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 præ-eminentiam spectant; minora vero ad commodum pecuniarium immediate attinent; et hæc proprie fiscalia sunt, et ad jus fisci pertinent "(m).

() Finch. L. 85.

(m) Peregrin. de jure fisc. 1. 1, c. 1, num. 9.

ter or dignity.

First, then, of the royal dignity. Under every monarchcial establishment, it is necessary to distinguish the prince from his subjects, not only by the outThe royal charac- ward 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 may be apt to grow *insolent and refractory, if taught to consider [ *288] their prince as a man of no greater perfection than themselves. The law therefore ascribes to the sovereign, 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 with special reverence, and to pay him that respect, which may enable him with greater ease to carry on the business of governmen t. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine.

(I.) Sovereignty or pre-eminence.

I. The law ascribes to the wearer of the crown the attribute of sovereignty or pre-eminence. "Rex est vicarius," says Bracton(n), "et minister Dei in terra: omnis quidem sub eo est, et ipse sub nullo, nisi tantum sub Deo "(o). He is said to have imperial dignity; and in charters before the Conquest is frequently styled basileus and imperator, the titles respectively assumed by the emperors of the east and west(p). His realm is declared to be an empire, and his crown imperial, by many acts of parliament, particularly the statutes 24 Hen. 8, c. 12, and 25 Hen. 8, c. 28(q); 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 some 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 *"empire" and [ *289] "imperial," and applies them to the realm and crown of England, is only to assert that our monarch is equally sovereign and independent within these his dominions, as any emperor is in his empire(r), and owes no kind of subjection to any other potentate upon earth (s). Hence it is, that no suit or action can be brought against the sovereign, 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 will be contemptible, unless that court has power to command the execution of it: but who, says Finch(t), 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 crim

(n) L. 1, c. 8.

(0) Ante, p. 279.

(p) Seld. Tit. of Hon. I. 2.

(9) See also 24 Geo. 2, c. 24; 5 Geo. 3, c. 27.
(r) Rex allegavit, quod ipse omnes libertates

haberet in regno suo, quas imperator vindicabat in imperio. M. Paris, A. D. 1095.

(s) Vide per Sir O. Bridgman, The Trials of the Regicides, 5 St. Tr. 990.

(t) Finch. L. 83.

inal 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. (78)

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 Remedies of the public oppressions? To this we may answer, that the law has provided remedy in both cases.

subject against the crown:

for private injuries, by petition;

And, first, as to private injuries: if any person has, in point of property or contract, a just demand upon the sovereign, such person must petition him in a superior court of law or in his court of chancery, where [ *290] right (as a matter of grace, though not upon compulsion (u)) will be done.(79) And this is entirely consonant to what is laid down by writers on natural law. "A subject," says Puffendorf(x), “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." If, however, the sovereign gives his subject leave to bring an action against him, upon such contract, in his own court, the action itself proceeds in accordance with the rules of our municipal law, and has by a recent statute(y) been very closely assimilated to an ordinary suit. Although the end of such action is in theory not to compel the prince to observe the contract, but to persuade him to do so. As to personal wrongs; it is well observed by Mr. Locke(z)-"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."

Next, in cases of ordinary public oppression, where the vitals of the constitution are not attacked, the law has 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

for public oppression by punishment of ministers.

(u) Finch. L. 255.

(x) Law of N. and N. b. 8, c. 10.

(y) 23 & 24 Vict. c. 34. See further as to

the procedure by petition of right, post, vol. iii.

(2) On Gov. pt. 2, s. 205.

(78) "The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." U. S. Const., art. 2, § 4. As to the mode of trial, and the judg ment in such cases, Ib., art. 1, § 3.

(79) A sovereign state, in its political capacity, cannot be sued in the courts of another state or nation for the purpose of enforcing any remedy against it. Manning v. State of Nicaraugua and the Accessory Transit Co., 14 How. Pr. 517; Duke of Brunswick v. King of Hanover, 2 H. L. Cas. 1; Wadsworth v. Queen of Spain; De Haber v. Queen of Portugal, 17 Q. B. 171; Cohens v. Virginia, 6 Wheat. 264, 411; United States v. Clarke, 8 Pet. 436, 444; The Treasurer v. Cleary, 3 Rich. So. Car. Law, 372, 374. As to liability of public agents, 1 Wait's Law & Pr. 232.

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. [ *291] 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(a). For wherever the law expresses its 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 sovereign, or each other, or if the sovereign had a right to animadvert on either of the houses, that branch of the legislature, so subject to animadversion, would soon cease to be part of the supreme power; the balance of the constitution would be overturned; and the branch or branches, in which this jurisdiction resided, would become completely paramount. The supposition of law therefore is, that neither the sovereign nor either house of parliament is (subject to some former observations (b)) capable of doing any wrong; since in such a case the law might feel itself incapable of furnishing any adequate and satisfactory 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 unconstitutional [ *292] 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 upon this subject, experience will furnish us with a very remarkable case pertinent to it, wherein nature and reason prevailed. When king James II. 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 irrespective of this precedent(c), if any prince should hereafter endeavour to subvert the constitution by breaking the original contract between sovereign and people, and by violating the fundamental laws, we cannot doubt that future generations, necessity, and the safety of the body politic thus requiring it, will exert 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 sovereign, in his or her political capacity, absolute perfection. "The king can do no wrong." Which ancient and fundamental maxim is

(II.) Absolute perfection.

(a) See these points more fully discussed

in the Considerations of the Law of Forfeiture, 3rd edit. pp. 109–126.

(b) Ante, pp. 192, 248, 279..

(c) Ante, p. 250.

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