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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 ancient magistracy of the commonwealth were concentred in the new emperor: so that, as Gravinae expresses it, "in ejus unius persona veteris reipublicae vis atque "majestas per cumulatas magistratuum potestates exprimebatur."

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 its 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 extra[251] ordinary 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 e Orig. 1. sec. 103.

down (as it certainly is) most strongly and emphatically in our law-books, 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, overzealous 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 dishonor of the kingdom, the parliament will call

his advisers to a just and severe account. For pre- [252] rogative consisting (as Mr. Lockef 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 perni

í on Gov. 2. sec. 166.

cious, impeachments have pursued those ministers, by whose agency or advice they were concluded.

THE prerogatives of the crown (in the sense under which we are now considering them), respect either this nation's intercourse with foreign nations, or its own domestic government and civil polity.

WITH regard to foreign concerns, the king 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 counsels. In the king therefore, as in a centre, all the rays of his people are united, and form by that union a consistency, splendor, and power, that make him feared and respected by foreign potentates; who would 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 king's concurrence is the act only of private men. And so far is this point carried by our law, that it hath been held 8, 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. 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. [253] 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.

I. THE king, therefore, considered as the representative of his people, has the sole power of sending embassadors to g 4 Inst. 152.

foreign states, and receiving embassadors at home. This may lead us into a short digression, by way of inquiry, how far the municipal laws of England intermeddle with or protect the rights of these messengers from one potentate to another, whom we call embassadors.

THE rights, the powers, the duties, and the privileges of embassadors are détermined by the law of nature and nations, and not by any municipal constitutions. For, as they represent the persons of their respective masters, who owe no subjection to any laws but those of their own country, their actions are not subject to the control of the private law of that state wherein they are appointed to reside. He that is subject to the coercion of laws is necessarily dependent on that power by whom those laws were made: but an embassador ought to be independent of every power, except that by which he is sent; and of consequence ought not to be subject to the mere municipal laws of that nation wherein he is to exercise his functions. If he grossly offends, or makes an ill use of his character, he may be sent home and accused before his masterh; who is bound either to do justice upon him, or avow himself the accomplice of his crimes. But there is great dispute among the writers on the laws of nations, whether this exemption of embassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are mala prohibita, as coining, and not to those that are mala in se, as murder. Our law seems to have formerly taken in the restriction, as well as the general exemption. For it has been held, both by our common lawyers and civilians, that an embassador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of reason and nature, he shall loose his privilegem; and that therefore, if an embassador conspires the death of the king in whose land

[254]

h As was done with count Gyllenberg the Swedish minister to Great Britain. A. D. 1716.

i Sp. L. 26. 21.

k Van Leeuwen in Ff. 50, 7. 17. Bay

beyrac's Puff. 1. 8. c. 9. sec. 9. and 17. Van
Bynkershoek de foro legator. c. 17, 18, 19.
1 Roll. Rep. 175. 3 Bulstr. 27.
m 4 Iust, 153.

he is, he may be condemned and executed for treason; but if he commits any other species of treason, it is otherwise, and he must be sent to his own kingdom". And these positions seem to be built upon good appearance of reason. For since, as we have formerly shewn, all municipal laws act in subordination to the primary law of nature, and, where they annex a punishment to natural crimes, are only declaratory of and auxiliary to that law; therefore to this natural universal rule of justice embassadors, as well as other men, are subject in all countries; and of consequence it is reasonable that, wherever they transgress it, there they shall be liable to make atonement. But, however these principles might formerly obtain, the general practice of this country, as well as of the rest of Europe, seems now to pursue the sentiments of the learned Grotius, that the security of embassadors is of more importance than the punishment of a particular crimer. And therefore few, if any, examples have happened within a century past, where an embassador has been punished for any offence, however atrocious in its nature (4).

n 1 Roll. Rep. 185.

o Foster's reports. 188.

P Securitas legatorum utilitati quae ex poena est praeponderat. (de jure b. and p. 18. 4. 4.)

(4) In the year 1654, during the protectorate of Cromwell, Don Pataleon Sa, the brother of the Portuguese embassador, who had been joined with him in the same commission, was tried, convicted, and executed, for an atrocious murder. Lord Hale, 1 P. C. 99. approves of the proceeding; and Mr. J. Foster (p. 188.), though a modern writer of law, lays it down that, "for murder and other offences of great enormity "which are against the light of nature and the fundamental laws of all "society, embassadors are certainly liable to answer in the ordinary "course of justice, as other persons offending in the like manner are :" but Mr. Hume observes upon this case, that "the laws of nations were "here plainly violated." 7 Vol. 237. And Vattel with irresistible ability contends, that the universal inviolability of an embassador is an object of much greater importance to the world than their punishment for crimes however contrary to natural justice. "A minister," says that profound writer, "is often charged with a commission dis

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