racter 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 prae-eminentiam spectant; minora vero ad commo"dum pecuniarium immediate attinent; et haec proprie fisca"lia sunt, et ad jus fisci pertinent k.”

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 shall 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, "et minister Dei in terra: omnis quidem sub eo est, et ipse

k Peregrin, de jure fisc, l. 1. c. 1. num. 9.

I l. 1. c. 8.

"sub nullo, nisi tantum sub Deo (1)." 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 westm. 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 and crown 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 FinchP, shall command the king? Hence it is likewise, that by law the person of the king is sacred, even though the mea

m Seld. tit. of hon. I. 2.

n See also 24 Geo. II. e. 24. 5 Geo. III. c. 27.

o Rex allegavit, quod ipse omnes liber

tates haberet in regno suo, quas imperator vendicabat in imperio. (M. Paris, A. D. 1095.)

p Finch. L. 83.

(1) What Bracton adds in the same chapter ought never to be forgotten: Ipse autem rex non debet esse sub homine, sed sub Deo et sub lege, quia lex facit regem. Attribuat igitur rex legi, quod lex attribuit ei, videlicet dominationem et potestatem, non est enim rex, ubi dominatur voluntas et non lex.

sures 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 [243] 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. 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. And this is entirely consonant to what is laid down by the writers on natural law. "A subject,” says Puffendorf, "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,

q Finch. L. 255. See b. III. c. 17.

r Law of N. and N. b. 8. c. 10.

Nothing was ever better conceived and expressed respecting the prerogatives of a king, and the just exercise of them, than the advice bequeathed in his last will by the unfortunate Louis XVI. to his son, if he had succeeded to the throne of France; viz. "to recollect, that he "cannot promote the welfare of the people, but by reigning according "to the laws; but to consider, at the same time, that a king cannot "make the laws respected, nor do the good he meditates, but in propor. "tion as he has the necessary authority; and that where this is want"ing, he is obstructed in his measures, he is incapable of inspiring " respect, and is, consequently, more detrimental than useful."

"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. Lockes, "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 recom"pensed by the peace of the public and security of the 65 government, in the person of the chief magistrate being "thus set out of the reach of danger."

NEXT, as to cases of ordinary public oppression, [244] 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, wherever the law expresses its distrust of abuse of power, it always vests a superior coercive autho

s On Gov. p. 2. sec. 205.

t See these points more fully discussed in the considerations of the law of forfeiture, 3d

edit. pag. 109-126. wherein the very learned author has thrown many new and important lights on the texture of our happy constitution.

rity 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 balance 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 [245] 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

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