[tinued in their offices during good behaviour, notwithstanding any demise of the crown (which was formerly held (a) to vacate their seats); and their full salaries (b) are absolutely secured to them during the continuance of their commissions.] It deserves particular remark that, [in this distinct and separate existence of the judicial power in a peculiar body of men, nominated, indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot consist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principle of law. Were it joined with the executive, this union might soon be an over-balance for the legislative. For which reason, by statute 16 Car. I. c. 10, which abolished the Court of Star Chamber, effectual care is taken to remove all judicial power] in ordinary cases [out of the hands of the king's privy council (c); who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers.]

3. [The right of petitioning the sovereign, or either house of parliament, for the redress of grievances.

In Russia, we are told (d), that the Czar Peter established a law, that no subject might petition the throne till he had first petitioned two different ministers of state. In case he obtained justice from neither, he might then present a third petition to the prince; but upon pain of death if found to be in the wrong. The consequence of which was, that no one dared to offer such third petition :

and grievances seldom falling under the notice of the [sovereign, he had little opportunity to redress them. The restrictions (for some there are) which are laid upon petitioning in England, are of a nature extremely different; and while they promote the spirit of peace, they are no check upon that of liberty. Care only must be taken, lest, under the pretence of petitioning, the subject be guilty of any riot or tumult; as happened in the opening of the memorable parliament in 1640. And to prevent this, it is provided by the statute 13 Car. II. st. 1, c. 5, that no petition to the king, or either house of parliament, for any alteration in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace, or the major part of the grand jury, in the country; and in London by the lord mayor, aldermen, and common council; nor shall any petition be presented by more than ten persons at a time. But notwithstanding these regulations, it is declared by the Bill of Rights, 1 W. & M. st. 2, c. 2, that the subject hath a right to petition; and that all commitments and prosecutions for such petitioning are illegal (e).]

We will now proceed to consider the proper nature of that prerogative, against the excesses of which the law has so carefully guarded.

Prerogatives, (for by this plural use of the word, we commonly express the different branches of that prerogative of which a definition was given at the outset of the chapter),--are [either direct] or by way of exception. Those by way of exception, are such as exempt the crown from some general rules established for the rest of the

(e) At the trial of Lord George Gordon (Doug. 571), Lord Mansfield and the court declared that the former of these statutes was not affected by the latter. The provisions of the former are now, however, disregarded in practice. At a season of great public excitement, restrictions were laid in our own times by 60 Geo. 3 &

1 Geo. 4, c. 6, on the right of meeting to deliberate on public questions. But those restrictions are now expired. See however 57 Geo.3, c. 19, s. 23, containing provisions against the meeting together of more than fifty persons, for the purpose of petitioning, &c. during the time when parliament is sitting.

community-as in the case of the maxims, [that no costs shall be recovered against the crown (f); that the sovereign 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 prerogatives of this kind are exceptions. And therefore we will at present only dwell upon the sovereign's substantive or direct prerogatives.

The substantive or direct prerogatives may again be divided into three kinds: being such as regard, first, the royal character; secondly, the royal authority; and, lastly, the royal income. These are necessary, to secure reverence to the sovereign's 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. In the present chapter we shall only consider the two first of these divisions, which relate to the sovereign's political character and authority. 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 pecuniarum immediate attinent; et hæc proprie fiscalia sunt, et ad jus fisci pertinent (g)."

I. First, then, as to the political character of the king or queen regnant.

1. It comprises the attribute of sovereignty or preeminence. ["Rex est vicarius," says Bracton (h), “et mi

(f) See, however, 16 & 17 Vict. c. 107, s. 263, allowing the subject his costs from the crown in proceedings under the acts relating to the

customs.

(g) Peregrin. de Jure Fisc. l. 1, c. 1, num. 9.

(h) L. i. c. 8.

[nister Dei, in terrâ: omnis quidem sub eo est, et ipse sub nullo, nisi tantum sub Deo."

The sovereign 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 (i). His realm is declared to be an empire, and his crown imperial, by many acts of parliament, particularly the statutes 24 Henry VIII. c. 12, and 25 Henry VIII. c. 28 (j), 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 useth these terms of empire and imperial, and applies them to the realm and crown of England, is only to assert that our sovereign is equally supreme and independent within these his dominions, as any emperor is in his empire (k); and owes no kind of subjection. to any other potentate upon earth.]

With the sovereignty or pre-eminence to which we have referred is connected the exemption from certain disabilities. Thus in the sovereign, [there 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 (1). And therefore when Henry the seventh, who, as Earl of Richmond, stood attainted, came to the crown, it was not thought necessary to pass

(i) Seld. Tit. of Hon. 1, 2.

(j) See also 24 Geo. 2, c. 24; 5 Geo. 3, c. 27.

(k) "Rex allegavit, quod ipse omnes

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

(1) Finch, L. 82.

[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 sovereign, in judgment of law, as sovereign, 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 (m). By a statute, indeed, 28 Henry 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 twentyfour; but this was repealed by the statute 1 Edward 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 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 (n):]

(m) Co. Litt. 43; 2 Inst. proëm. 3. (n) The methods of appointing this guardian or regent have been so various, and the duration of his power so uncertain, that from hence 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 the third; 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

the third by the parliament which deposed his father; the young king being then fifteen, and not assuming the government till three years after. When Richard the second 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 the fifth on his death bed named a regent and a guardian for his infant son Henry the sixth, 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 pupilage till the age of twenty-three. Edward the fifth, at the age of thirteen, was recommended by his father to