4. BUT the principal council belonging to the king is his privy
council, which is generally called, by way of eminence, _the council_.
And this, according to sir Edward Coke's description of it[i], is a
noble, honorable, and reverend assembly, of the king and such as he
wills to be of his privy council, in the king's court or palace. The
king's will is the sole constituent of a privy counsellor; and this
also regulates their number, which of antient time was twelve or
thereabouts. Afterwards it increased to so large a number, that it was
found inconvenient for secresy and dispatch; and therefore king
Charles the second in 1679 limited it to thirty: whereof fifteen were
to be the principal officers of state, and those to be counsellors,
_virtute officii_; and the other fifteen were composed of ten lords
and five commoners of the king's choosing[k]. But since that time the
number has been much augmented, and now continues indefinite. At the
same time also, the antient office of lord president of the council
was revived in the person of Anthony earl of Shaftsbury; an officer,
that by the statute of 31 Hen. VIII. c. 10. has precedence next after
the lord chancellor and lord treasurer.
[Footnote i: 4 Inst. 53.]
[Footnote k: Temple's Mem. part 3.]
PRIVY counsellors are _made_ by the king's nomination, without either
patent or grant; and, on taking the necessary oaths, they become
immediately privy counsellors during the life of the king that chooses
them, but subject to removal at his discretion.
THE _duty_ of a privy counsellor appears from the oath of office[l],
which consists of seven articles: 1. To advise the king according to
the best of his cunning and discretion. 2. To advise for the king's
honour and good of the public, without partiality through affection,
love, meed, doubt, or dread. 3. To keep the king's counsel secret. 4.
To avoid corruption. 5. To help and strengthen the execution of what
shall be there resolved. 6. To withstand all persons who would attempt
the contrary. And, lastly, in general, 7. To observe, keep, and do all
that a good and true counsellor ought to do to his sovereign lord.
[Footnote l: 4 Inst. 54.]
THE _power_ of the privy council is to enquire into all offences
against the government, and to commit the offenders into custody, in
order to take their trial in some of the courts of law. But their
jurisdiction is only to enquire, and not to punish: and the persons
committed by them are entitled to their _habeas corpus_ by statute 16
Car. I. c. 10. as much as if committed by an ordinary justice of the
peace. And, by the same statute, the court of starchamber, and the
court of requests, both of which consisted of privy counsellors, were
dissolved; and it was declared illegal for them to take cognizance of
any matter of property, belonging to the subjects of this kingdom.
But, in plantation or admiralty causes, which arise out of the
jurisdiction of this kingdom, and in matters of lunacy and ideocy
(being a special flower of the prerogative) with regard to these,
although they may eventually involve questions of extensive property,
the privy council continues to have cognizance, being the court of
appeal in such causes: or, rather, the appeal lies to the king's
majesty himself, assisted by his privy council.
AS to the _qualifications_ of members to sit this board: any natural
born subject of England is capable of being a member of the privy
council; taking the proper oaths for security of the government, and
the test for security of the church. But, in order to prevent any
persons under foreign attachments from insinuating themselves into
this important trust, as happened in the reign of king William in many
instances, it is enacted by the act of settlement[m], that no person
born out of the dominions of the crown of England, unless born of
English parents, even though naturalized by parliament, shall be
capable of being of the privy council.
[Footnote m: Stat. 12. & 13 W. III. c. 2.]
THE _privileges_ of privy counsellors, as such, consist principally in
the security which the law has given them against attempts and
conspiracies to destroy their lives. For, by statute 3 Hen. VII. c.
14. if any of the king's servants of his houshold, conspire or imagine
to take away the life of a privy counsellor, it is felony, though
nothing be done upon it. And the reason of making this statute, sir
Edward Coke[n] tells us, was because such servants have greater and
readier means, either by night or by day, to destroy such as be of
great authority, and near about the king: and such a conspiracy was,
just before this parliament, made by some of king Henry the seventh's
houshold servants, and great mischief was like to have ensued
thereupon. This extends only to the king's menial servants. But the
statute 9 Ann. c. 16. goes farther, and enacts, that _any persons_
that shall unlawfully attempt to kill, or shall unlawfully assault,
and strike, or wound, any privy counsellor in the execution of his
office, shall be felons, and suffer death as such. This statute was
made upon the daring attempt of the sieur Guiscard, who stabbed Mr
Harley, afterwards earl of Oxford, with a penknife, when under
examination for high crimes in a committee of the privy council.
[Footnote n: 3 Inst. 38.]
THE _dissolution_ of the privy council depends upon the king's
pleasure; and he may, whenever he thinks proper, discharge any
particular member, or the whole of it, and appoint another. By the
common law also it was dissolved _ipso facto_ by the king's demise; as
deriving all it's authority from him. But now, to prevent the
inconveniences of having no council in being at the accession of a new
prince, it is enacted by statute 6 Ann. c. 7. that the privy council
shall continue for six months after the demise of the crown, unless
sooner determined by the successor.
CHAPTER THE SIXTH.
OF THE KING'S DUTIES.
I PROCEED next to the duties, incumbent on the king by our
constitution; in consideration of which duties his dignity and
prerogative are established by the laws of the land: it being a maxim
in the law, that protection and subjection are reciprocal[a]. And
these reciprocal duties are what, I apprehend, were meant by the
convention in 1688, when they declared that king James had broken the
_original contract_ between king and people. But however, as the terms
of that original contract were in some measure disputed, being alleged
to exist principally in theory, and to be only deducible by reason and
the rules of natural law; in which deduction different understandings
might very considerably differ; it was, after the revolution, judged
proper to declare these duties expressly; and to reduce that contract
to a plain certainty. So that, whatever doubts might be formerly
raised by weak and scrupulous minds about the existence of such an
original contract, they must now entirely cease; especially with
regard to every prince, who has reigned since the year 1688.
[Footnote a: 7 Rep. 5.]
THE principal duty of the king is, to govern his people according to
law. _Nec regibus infinita aut libera potestas_, was the constitution
of our German ancestors on the continent[b]. And this is not only
consonant to the principles of nature, of liberty, of reason, and of
society, but has always been esteemed an express part of the common
law of England, even when prerogative was at the highest. "The king,"
saith Bracton[c], who wrote under Henry III, "ought not to be subject
to man, but to God, and to the law; for the law maketh the king. Let
the king therefore render to the law, what the law has invested in him
with regard to others; dominion, and power: for he is not truly king,
where will and pleasure rules, and not the law." And again[d]; "the
king also hath a superior, namely God, and also the law, by which he
was made a king." Thus Bracton: and Fortescue also[e], having first
well distinguished between a monarchy absolutely and despotically
regal, which is introduced by conquest and violence, and a political
or civil monarchy, which arises from mutual consent; (of which last
species he asserts the government of England to be) immediately lays
it down as a principle, that "the king of England must rule his people
according to the decrees of the laws thereof: insomuch that he is
bound by an oath at his coronation to the observance and keeping of
his own laws." But, to obviate all doubts and difficulties concerning
this matter, it is expressly declared by statute 12 & 13 W. III. c. 2.
that "the laws of England are the birthright of the people thereof;
and all the kings and queens who shall ascend the throne of this realm
ought to administer the government of the same according to the said
laws; and all their officers and ministers ought to serve them
respectively according to the same: and therefore all the laws and
statutes of this realm, for securing the established religion, and the
rights and liberties of the people thereof, and all other laws and
statutes of the same now in force, are by his majesty, by and with the
advice and consent of the lords spiritual and temporal and commons,
and by authority of the same, ratified and confirmed accordingly."
[Footnote b: _Tac. de M.G._ _c._ 7.]
[Footnote c: _l._ 1. _c._ 8.]
[Footnote d: _l._ 2. _c._ 16. §. 3.]
[Footnote e: _c._ 9. & 34.]
AND, as to the terms of the original contract between king and people,
these I apprehend to be now couched in the coronation oath, which by
the statute 1 W. & M. st. 1. c. 6. is to be administred to every king
and queen, who shall succeed to the imperial crown of these realms, by
one of the archbishops or bishops of the realm, in the presence of all
the people; who on their parts do reciprocally take the oath of
allegiance to the crown. This coronation oath is conceived in the
following terms:
"_The archbishop or bishop shall say_, Will you solemnly promise and
swear to govern the people of this kingdom of England, and the
dominions thereto belonging, according to the statutes in parliament
agreed on, and the laws and customs of the same?--_The king or queen
shall say_, I solemnly promise so to do.
"_Archbishop or bishop._ Will you to your power cause law and justice,
in mercy, to be executed in all your judgments?--_King or queen._ I
will.
"_Archbishop or bishop._ Will you to the utmost of your power maintain
the laws of God, the true profession of the gospel, and the protestant
reformed religion established by the law? And will you preserve unto
the bishops and clergy of this realm, and to the churches committed to
their charge, all such rights and privileges as by law do or shall
appertain unto them, or any of them?--_King or queen._ All this I
promise to do.
"_After this the king or queen, laying his or her hand upon the holy
gospels, shall say_, The things which I have here before promised I
will perform and keep: so help me God. _And then shall kiss the
book._"
THIS is the form of the coronation oath, as it is now prescribed by
our laws: the principal articles of which appear to be at least as
antient as the mirror of justices[f], and even as the time of
Bracton[g]: but the wording of it was changed at the revolution,
because (as the statute alleges) the oath itself had been framed in
doubtful words and expressions, with relation to antient laws and
constitutions at this time unknown[h]. However, in what form soever it
be conceived, this is most indisputably a fundamental and original
express contract; though doubtless the duty of protection is impliedly
as much incumbent on the sovereign before coronation as after: in the
same manner as allegiance to the king becomes the duty of the subject
immediately on the descent of the crown, before he has taken the oath
of allegiance, or whether he ever takes it at all. This reciprocal
duty of the subject will be considered in it's proper place. At
present we are only to observe, that in the king's part of this
original contract are expressed all the duties that a monarch can owe
to his people; viz. to govern according to law: to execute judgment in
mercy: and to maintain the established religion.
[Footnote f: _cap._ 1. §. 2.]
[Footnote g: _l._ 3. _tr._ 1. _c._ 9.]
[Footnote h: In the old folio abridgment of the statutes, printed by
Lettou and Machlinia in the reign of Edward IV, (_penes me_) there is
preserved a copy of the old coronation oath; which, as the book is
extremely scarce, I will here transcribe. _Ceo est le serement que le
roy jurre a soun coronement: que il gardera et meintenera lez droitez
et lez franchisez de seynt esglise grauntez auncienment dez droitez
roys christiens dEngletere, et quil gardera toutez sez terrez honoures
et dignitees droiturelx et franks del coron du roialme dEngletere en
tout maner dentierte sanz null maner damenusement, et lez droitez
dispergez dilapidez ou perduz de la corone a soun poiair reappeller en
launcien estate, et quil gardera le peas de seynt esglise et al
clergie et al people de bon accorde, et quil face faire en toutez sez
jugementez owel et droit justice oue discrecion et misericorde, et
quil grauntera a tenure lez leyes et custumez du roialme, et a soun
poiair lez face garder et affermer que lez gentez du people avont
faitez et esliez, et les malveys leyz et custumes de tout oustera, et
ferme peas et establie al people de soun roialme en ceo garde
esgardera a soun poiair: come Dieu luy aide._ _Tit. sacramentum regis.
fol. m. ij._]
CHAPTER THE SEVENTH.
OF THE KING'S PREROGATIVE.
IT was observed in a former chapter[a], that one of the principal
bulwarks of civil liberty, or (in other words) of the British
constitution, was the limitation of the king's prerogative by bounds
so certain and notorious, that it is impossible he should ever exceed
them, without the consent of the people, on the one hand; or without,
on the other, a violation of that original contract, which in all
states impliedly, and in ours most expressly, subsists between the
prince and the subject. It will now be our business to consider this
prerogative minutely; to demonstrate it's necessity in general; and to
mark out in the most important instances it's particular extent and
restrictions: from which considerations this conclusion will evidently
follow, that the powers which are vested in the crown by the laws of
England, are necessary for the support of society; and do not intrench
any farther on our _natural_ liberties, than is expedient for the
maintenance of our _civil_.
[Footnote a: chap. 1. page 137.]
THERE cannot be a stronger proof of that genuine freedom, which is the
boast of this age and country, than the power of discussing and
examining, with decency and respect, the limits of the king's
prerogative. A topic, that in some former ages was thought too
delicate and sacred to be profaned by the pen of a subject. It was
ranked among the _arcana imperii_; and, like the mysteries of the
_bona dea_, was not suffered to be pried into by any but such as were
initiated in it's service: because perhaps the exertion of the one,
like the solemnities of the other, would not bear the inspexion of a
rational and sober enquiry. 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 favorite
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 the first, 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]."
[Footnote b: Dewes. 479.]
[Footnote c: _Ibid._ 645.]
[Footnote d: King James's works. 557, 531.]
BUT, whatever might be the sentiments of some of our princes, this was
never the language of our antient 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. We have seen, in the preceding
chapter, the sentiments of Bracton and Fortescue, at the distance of
two centuries from each other. And sir Henry Finch, under Charles the
first, 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 wrong[e]."
_Nihil enim aliud potest rex, nisi id solum quod de jure potest_[f].
And here it may be some satisfaction to 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_[g]." 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_[h]." This is at once laying down the
principle of despotic power, and at the same time acknowleging it's
absurdity.
[Footnote e: Finch. L. 84, 85.]
[Footnote f: Bract. _l._ 3. _tr._ 1. _c._ 9.]
[Footnote g: _Nov._ 105. §. 2.]
[Footnote h: _Ff._ 32. 1. 23.]
BY the word prerogative we usually understand that special
pre-eminence, which the king hath, over and above all other persons,
and out of the ordinary course of the common law, in right of his
regal dignity. It signifies, in it's etymology, (from _prae_ and
_rogo_) something that is required or demanded before, or in
preference to, all others. And hence it follows, that it must be in
it's 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 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[i] 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.
[Footnote i: Finch. L. 85.]
PREROGATIVES are either _direct_ or _incidental_. The _direct_ are
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. §. 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. §. 105.]
AFTER what has been premised in this chapter, I shall not (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.
IN the exertion therefore of those prerogatives, which the law 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. |
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