However, in what form foever it be conceived, this is most indifputably a fundamental and original exprefs contract; though doubtless the duty of protection is impliedly as much incumbent on the fovereign before coronation as after: in the fame manner as allegiance to the king becomes the duty of the fubject 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 confidered in it's proper place. At prefent we are only to observe, that in the king's part of this original contract are expreffed 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. And, with respect to the latter of these three branches, we may farther remark, that by the act of union, 5 Ann. c. 8. two preceding ftatutes are recited and confirmed; the one of the parliament of Scotland, the other of the parliament of England: which enact; the former, that every king at his acceffion fhall take and fubfcribe an oath, to preferve the proteftant religion and prefbyterian church government in Scotland; the latter, that at his coronation he fhall take and fubfcribe a fimilar oath, to preferve the fettlement of the church of England within England, Ireland, Wales, and Berwick, and the territories thereunto belonging. CHAPTER THE SEVENTH. OF THE KING's PREROGATIVE. IT T was obferved in a former chapter 2, that one of the principal bulwarks of civil liberty, or (in other words) of the British conftitution, was the limitation of the king's prerogative by bounds so certain and notorious, that it is impoffible he should ever exceed them, without the confent 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 exprefsly, fubfifts between the prince and the subject. It will now be our business to confider this prerogative minutely; to demonflrate it's neceflity in general; and to mark out in the most important inftances it's particular extent and reftrictions: from which confiderations this conclufion will evidently follow, that the powers, which are vested in the crown by the laws of England, are neceffary for the support of fociety; and do not intrench any farther on our natural liberties, than is expedient for the maintenance of our civil. THERE cannot be a stronger proof of that genuine freedom, which is the boaft of this age and country, than the power of difcuffing and examining, with decency and refpe&t, the limits of the king's prerogative. A topic, that in fome. former ages was thought too delicate and facred to be profaned by the pen of a fubject. It was ranked among the arcana imperii: and, like the mysteries of the bona dea, was a chap. I. page 141. not BOOK I. not suffered to be pried into by any but such as were initiated in it's fervice: becaufe perhaps the exertion of the one, like the folemnities of the other, would not bear the inspection of a rational and fober inquiry. The glorious queen Elizabeth herself made no fcruple to direct her parliaments to abstain from difcourfing of matters of state; and it was the conftant language of this favourite princess and her ministers, that even that auguft affembly "ought not to deal, to judge, "or to meddle with her majefty's prerogative royal "." And her fucceffor, king James the firft, who had imbibed high notions of the divinity of regal fway, more than once laid it down in his fpeeches, that, as it is atheism and "blasphemy in a creature to dispute what the deity may do, "fo it is prefumption and fedition in a subject to dispute "what a king may do in the height of his power: goed "christians, he adds, will be content with God's will, re"vealed in his word; and good fubjects will reft in the king's will, revealed in his law d." BUT, whatever might be the fentiments of fome of our princes, this was never the language of our antient conftitution and laws. The limitation of the regal authority was a first and effential principle in all the Gothic fyftems 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 fentiments of Bracton and Fortescue, at the distance of two centuries from each other. And fir Henry Finch, under Charles the firft, after the lapse of two centuries more, though he lays down the law of prerogative in very ftrong 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 ." Nihil enim aliud poteft rex, nifi id folum quod b Dewes. 479. • Ibid. 645. с d King James's works. 557. 531. de de jure poteft. And here it may be fome fatisfaction 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 eivilian would rather have expreffed 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 effe fub lege, quia "lex facit regem :" the imperial law will tell us, that, “in "omnibus, imperatoris excipitur fortuna; cui ipfas leges Deus fubjecit." We shall not long hefitate to which of them to give the preference, as moft conducive to thofe ends for which focieties were framed, and are kept together; efpecially as the Roman lawyers themfelves feem to be fenfible of the unreasonableness of their own conftitution. "Decet "tamen principem," fays Paulus, " fervare leges, quibus ipfé "folutus eft." This is at once laying down the principle of defpotic power, and at the fame time acknowleging it's abfurdity. By the word prerogative we usually understand that special pre-eminence, which the king hath, over and above all other perfons, and out of the ordinary course of the common law, in right of his regal dignity. It fignifies, in it's etymology, (from prae and rogo) fomething that is required or demanded before, or in preference to, all others. And hence it follows, that it must be in it's nature fingular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradiftinction to others, and not to those which he enjoys in common with any of his fubjects: 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 lays it down as a maxim, that the prerogative is that law in cafe of the king, which is law in no cafe of the subject. PREROGATIVES are either direct or incidental. The direct are fuch pofitive fubftantial parts of the royal character and f Bracton. 1. 3. tr. 1. 6. 9. 8 Nov. 105. §. 2. VOL. I. h Ff. 32. 1. 23. i Finch. L. 85. authority, authority, as are rooted in and spring from the king's political perfon, confidered merely by itself, without reference to any other extrinfic circumftance; as, the right of fending embaffadors, of creating peers, and of making war or peace. But fuch 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: fuch 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 fubjects. These, and an infinite number of other instances, will better be understood, when we come regularly to confider the rules themselves, to which these incidental prerogatives are exceptions. And therefore we will at prefent only dwell upon the king's fubftantive or direct prerogatives. THESE fubftantive 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 neceffary, to secure reverence to his person, obedience to his commands, and an affluent supply for the ordinary expences of government; without all of which it is impoffible to maintain the executive power in due independence and vigour. Yet, in every branch of this large and extenfive dominion, our free conftitution has interpofed fuch seasonable checks and restrictions, as may curb it from trampling on thofe liberties, which it was meant to fecure and establish. The enormous weight of prerogative, if left to itself, (as in arbitrary governments it is) spreads havoc and destruction among all the inferior movements: but, when balanced and regulated (as with us) by it's proper counterpoife, timely and judiciously applied, it's operations are then equable and certain, it invigorates the whole machine, and enables every part to answer the end of it's conftruction. IN the prefent chapter we shall only confider the two first of these divifions, which relate to the king's political characler II |