[adherence to these 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 further, 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.]

In further pursuance of the same principle of the sovereign's incapability of doing wrong, the law also determines that in him there can be no negligence or laches. [Nullum tempus occurrit regi, was formerly therefore the standing maxim on all occasions;] and no delay in resorting to his remedy was held to bar the king's right (a). From this doctrine it followed, not only that the civil claims of the crown received no prejudice by the lapse of time, but that criminal prosecutions for felonies or misdemeanors, (which

(a) Finch, L. 82; Co. Litt. 41 b, 90.

are always instituted in the sovereign's name,) might be commenced at any distance of time from the commission of the offence (b). And all this is, in general, still law; but by statute it has been, in modern times, largely qualified; for by 9 Geo. III. c. 16, the crown is now barred from its civil right in suits relating to landed property, by the lapse of sixty years (c); and by 32 Geo. III. c. 58, is barred in informations for usurping corporate offices or franchises, by the lapse of six years d); and by 7 Will. III. c. 3, an indictment for treason, (except for an attempt to assassinate the king,) must be found within three years after the commission of the act of treason.

II. As to the royal authority or power-it is a subject which involves a great variety of prerogatives, [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] or queen regnant [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] or her; [in like manner as, upon the great revolution in the Roman state, all the powers of the antient magistracy of the commonwealth were concentrated in the new emperor; so that, as Gravina (e) expresses it, "in

(b) As to the limitation of time in prosecuting offences against the customs, see Queen v. Thompson and others, 20 L. J. (M. C.) 183.

(c) See also 21 Jac. 1, c. 14; Goodtitle v. Baldwin, 11 East, 493; Doe v. Morris, 2 Scott, 276; et post, bk. v. c. IX. tr. 1.

(d) By the Municipal Corporation Act (7 Will. 4 & 1 Vict. c. 78) applications for a quo warranto must be made under that act within one year after the election or disqualification of the officer; (sect. 23.)

(e) Orig. 1, s. 103.

[ejus unius personâ veteris reipublicæ vis atque majestas per cumulatas magistratuum potestates, exprimebatur."]

for

Accordingly the reader can be at no loss to reconcile with what has been alleged in the preceding part of this chapter, as to the freedom of the British constitution, the following principle, which that constitution no less certainly recognizes, viz., [that in the exertion of lawful prerogative, the sovereign 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 its jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law; we say in the ordinary course of law; we do not now speak of those extraordinary recourses to first principles] to which some allusion has already been made, and [which become 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 law books, 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] to the sovereign power [is justifiable 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 force to resist whatever he considers as oppression: [a doctrine productive of anarchy, and, in consequence, equally fatal to civil liberty, as tyranny itself. For civil liberty, if 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.]

In the exertion, therefore, of those prerogatives which are now under consideration, the sovereign is irresistible and absolute, according to the forms of the constitution; and as to their nature more particularly considered, they may be arranged as follows:

1. [The sovereign has the sole power of sending ambassadors to foreign states and receiving ambassadors at home (f).] This is in the nature of things incident to his royal capacity. For it is evident that [with regard to

(f) It having been doubted whether, having regard to the several statutes passed against papal encroachments, diplomatic relations could lawfully be established, maintained, and held with the sovereign of the Roman states, it was thought expedient, by 11 & 12 Vict. c. 108, expressly to authorize her Majesty to enter into such relations, provided that no person in holy orders in the church of Rome, or a jesuit, or mem

ber of any other religious order, community, or society of that church, bound by monastic or religious vows, shall be received at the court of London as ambassador or other diplomatic agent; and provided also that nothing in the act should repeal, weaken, or affect any laws then in force for upholding the supremacy of the crown in all matters civil and ecclesiastical.

[foreign concerns, the sovereign is the delegate or 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 councils. In the sovereign, therefore, as in a centre, all the rays of his people are united, and form by that union a consistency, splendour, and power, that make him feared. and respected by foreign potentates; who might scruple to enter into any engagement 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 royal concurrence is the act only of private men. And so far is this point carried by our law, that it hath been held (g), 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. st. 1, 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.]

The prerogative which we are now considering, naturally leads, though at the expense of a short digression, to the inquiry [how far the municipal laws of England intermeddle with or protect the rights of those messengers from one potentate to another, whom we call ambassadors.

The rights, the powers, the duties, and the privileges of ambassadors are determined by the law of nature and nations, and not by any municipal constitutions. For, as they

(g) 4 Inst. 152.

VOL. II.

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