« EdellinenJatka »
framed in doubtful words and expreffions, with relation to antient laws and conftitutions at this time unknown". 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 defcent of the crown, before he has taken the oath of allegiance, or whether he ever takes it at all. This reciprocal duty of the fubject will be confidered in it's proper place. At prefent we are only to obferve, 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 eftablished religion. And with refpect 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 preserve the protestant religion and prefbyterian church government in Scotland; the latter, that at his coronation he fhall take and subscribe a similar oath, to preserve the fettlement of the church of England within England, Ireland, Wales, and Eer wick, and the territories thereunto belonging.
h In the old folio abridgment of the ftatutes, printed by Lettou and Machlinia in the reign of Edward IV, (penes me) there is preferved a copy of the old coronation oath; which, as the book is extremely fcarce, I will here tranfcribe. Ce e le ferement que le roy jarre a foun coronement: que il griera et meintenera lez droitez et lez franchifez de feynt efghfe grauntez aunciement dez arsitez rys chriftiens dEngletere, et quil gardera toutez fez terrez honoures et digniices dreiturclx et franks del coron du roialme dEngletere en tout maner dentierte fanz null maner damenusement, et lez droitez difpergez dilapidez ou perduz de la corone a foun potuir reappeller en launcien
efate, et quil gardera le peas de feynt efglife et alciergie et al people de bon accorde, et quil face faire en toutez fez jugementez owel et droit juice one difcretion, et mifericorde, et quil grountera a tenure lez leyes et cuflumez du roialme, et a fun par lez face garder et affermer que
gentez du people avont faitez et eflicz, st les malveys leyz et cuflumes de tout cuftera, et ferme peas et establie al people de foun roialme en ceo garde efgardera a foun pair: come Dica luy aide. (Tit. facramentum regis. fol. m.ij.) Prynne has alfo given us a copy of the coronation-oaths of Richard II, (Signal Loyalty. II. 246.) Edward VI, (ibid. 151.) James I, and Charles I. (ibid. 269 )
CHAPTER THE SEVENTH.
OF THE KING'S PREROGATIVE,
T was observed in a former chapter', 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 fo certain and notorious, that it is impoffible 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 ftates impliedly, and in ours most expressly, fubfifts between the prince and the fubject. It will now be our business to confider this prerogative minutely; to demonstrate it's neceffity in general; and to mark out in the most important instances 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 fupport 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 ftronger proof of that genuine freedom, which is the boaft of this age and country, than the power of difcuffing and examining, with decency and refpect, the limits of the king's prerogative. A topic, that in some 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
a chap. 1. page 1.
mysteries of the bona dea, was not suffered to be pried into by any but fuch as were initiated in it's service: because perhaps the exertion of the one, like the folemnities of the other, would not bear the inspection of a rational and fober enquiry. The glorious queen Elizabeth herself made no fcruple to direct her parliaments to abftain from difcourfing of matters of ftate"; and it was the conftant language of this favorite princefs and her ministers, that even that auguft affembly "ought not to deal, to judge, or to meddle, with "her majesty'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 blafphemy in a creature to dispute what the deity 66 may do, fo it is prefumption and fedition in a fubject to dispute "what a king may do in the height of his power: good chrif❝tians, he adds, will be content with God's will, revealed in his "word; and good fubjects will reft in the king's will, revealed "in his law."
BUT, whatever might be the sentiments of fome of our princes, this was never the language of our antient conftitution and laws. The limitation of the regal authority was a firft and effential principle in all the Gothic fyftems of government established in Europe; tho' gradually driven out and overborne, by violence and chicane, in most of the kingdoms on the continent. We have feen, in the preceding chapter, the fentiments of Bracton and Fortefcue, at the diftance of two centuries from each other. And fir Henry Finch, under Charles the first, after the lapfe of two centuries more, though he lays down the law of prerogative in very ftrong and emphatical terms, yet qualifies it with a general reftriction, in regard to the liberties of the people. "The king "hath a prerogative in all things, that are not injurious to the <6 subject; for in them all it must be remembered, that the king's "prerogative ftretcheth not to the doing of any wrong." Nihil
b Dewes. 479. c Ibid. 645.
d King James's works. 557. 531.
e Finch. L. 84, 85..
enim aliud poteft rex, nifi id folum quod 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 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 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 hesitate to which of them to give the preference, as moft conducive to those ends for which focieties were framed, and are kept together; especially as the Roman lawyers themselves feem to be fenfible of the unreasonableness of their own conftitution. "Decet tamen principem," fays Paulus, "fervare leges, quibus ipfe 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 ufually understand that special pre-eminence, which the king hath, over and above all other perfons, and out of the ordinary courfe 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 thofe 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 fubjects; for if once any one prerogative of the crown could be held in common with the subject, it would ceafe to be prerogative any longer. And therefore Finch' lays it down as a maxim, that the prerogative is that law in case of the king, which is law in no cafe of the fubject.
PREROGATIVES are either direct or incidental. The direct are fuch positive substantial parts of the royal character and au
f Bracton. 1. 3. tr. 1. c. 9. g Nov. 105. §. a.
h Ft. 32. 1. 23.
i Finch. L. 85.
thority, as are rooted in and spring from the king's political perfon, confidered merely by itself, without reference to any other extrinsic circumstance; as, the right of fending embassadors, of creating peers, and of making war or peace. But fuch prerogatives as are incidental bear always a relation to fomething else, distinct from the king's perfon; and are indeed only exceptions, in favour of the crown, to those general rules that are established for the reft of the community: fuch as, that no cofts fhall be recovered against the king; that the king can never be a jointtenant; and that his debt shall be preferred before a debt to any of his fubjects. These, and an infinite number of other inftances, 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 present only dwell upon the king's fubftantive or direct prerogatives.
THESE fubftantive or direct prerogatives may again be divided into three kinds: being fuch as regard, firft, the king's royal character; fecondly, his royal authority; and, laftly, his royal in come. These are neceffary, to fecure reverence to his person, obedience to his commands, and an affluent fupply for the ordinary expenfes 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 reftrictions, 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 government it is) spreads havoc and deftruction among all the inferior movements: but, when ballanced and bridled (as with us) by it's proper counterpoife, 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 conftruction.
In the prefent chapter we shall only confider the two first of thefe divifions, which relate to the king's political character and