Commentaries on the Laws of England Part 19

THIS is the form of the coronation oath, as it is now prescribed by our laws: the princ.i.p.al 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 const.i.tutions 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 inc.u.mbent 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 damenus.e.m.e.nt, 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._ _t.i.t. 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 princ.i.p.al bulwarks of civil liberty, or (in other words) of the British const.i.tution, 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 a.s.sembly "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 G.o.d'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 const.i.tution 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 const.i.tution. "_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 circ.u.mstance; as, the right of sending emba.s.sadors, 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 const.i.tution 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 cla.s.ses 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 ma.s.s 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 t.i.tles respectively a.s.sumed 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 a.s.sert 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 const.i.tution, by destroying the free agency of one of the const.i.tuent parts of the sovereign legislative power.

[Footnote l: _l._ 1. _c._ 8.]

[Footnote m: Seld. t.i.t. of hon. 1. 2.]

[Footnote n: Finch. L. 83.]

ARE then, it may be asked, the subjects of England totally dest.i.tute 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 pet.i.tion 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 munic.i.p.al 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 const.i.tution are not attacked, the law hath also a.s.signed a remedy. For, as a king cannot misuse his power, without the advice of evil counsellors, and the a.s.sistance of wicked ministers, these men may be examined and punished. The const.i.tution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to a.s.sist 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 const.i.tution, 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 const.i.tution 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 furnis.h.i.+ng 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 unconst.i.tutional 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 const.i.tution 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 const.i.tution 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 circ.u.mstances 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 circ.u.mstances, 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 const.i.tution, 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 const.i.tutional independence of the crown, which is necessary for the balance of power, in our free and active, and therefore compounded, const.i.tution.

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 const.i.tution has allowed a lat.i.tude 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 canva.s.sing 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 a.s.semblies: 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 a.s.sert 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 pa.s.s 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 a.s.sumption 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 a.s.sents 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._]