authority: or, in other words, his dignity and regal power; tó which laft the name of prerogative is frequently narrowed and confined. The other divifion, which forms the royal revenue, will require a distinct examination; according to the known diftribution of the feodal writers, who diftinguish the royal prerogatives into the majora and minora regalia, in the latter of which claffes the rights of the revenue are ranked. For, to use their own words, “majora regalia imperii prae-eminentiam fpectant; minora "vero ad commodum pecuniarium immediate attinent; et haec proprie fijcalia funt, et ad jus fifci pertinent." the FIRST, then, of the royal dignity. Under every monarchical establishment, it is neceflary to diftinguish the prince from his fubjects, not only by the outward pomp and decorations of majefty, but alfo by afcribing to him certain qualitics, as inherent in his royal capacity, diftinct from and fuperior to those of any other individual in the nation. For, though a philofophical mind will confider the royal perfon merely as one man appointed by mutual confent to preside over many others, and will pay him that reverence and duty which the principles of fociety demand, yct mass of mankind will be apt to grow infolent 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 tranfcendent nature; by which the people are led to confider him in the light of a fuperior being, and to pay him that awful refpect, which may enable him with greater eafe to carry on the business of government. This is what I understand by the royal dignity, the feveral branches of which we will now proceed to examine. I. AND, first, the law afcribes to the king the attribute of fovereignty, or pre-eminence. "Rex eft vicarius," fays Bracton ', "et minifter Dei in terra: omnis quidem fub eo eft, et itfe fub ruilo, G g 66 mifi 66 nifi tantum fub Deo." He is faid to have imperial dignity; and in charters before the conqueft is frequently ftiled bafileus and imperator, the titles refpectively affumed by the emperors of the eaft and weft". His realm is declared to be an empire, and his crown imperial, by many acts of parliament, particularly the ftatutes 24 Hen. VIII. c. 12. and 25 Hen. VIII. c. 28"; which at the fame time declare the king to be the fupreme head of the realm in matters both civil and ecclefiaftical, and of confequence 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 fome degree subordinate and fubject 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 affert that our king is equally fovereign and independent within thefe his dominions, as any emperor is in his empire; and owes no kind of fubjection to any other potentate upon earth. Hence it is, that no fuit or action can be brought against the king, even in civil matters, because no court can have jurifdiction over him. For all jurifdiction implies fuperiority 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, fays Finch ", fhall command the king? Hence it is likewise, that by law the person of the king is facred, even though the measures purfued in his reign be completely tyrannical and arbitrary: for no jurifdiction upon earth has power to try him in a criminal way; much lefs to condemn him to punishment. If any foreign jurifdiction had this power, as was formerly claimed by the pope, the independence of the kingdom would be no more: and, if fuch a power were vefted in any domeftic tribunal, m Seld. tit. of hon. I 2. n See allo 24 Geo. II. c. 24. 5 Geo. III. C. 27. Rex all gavit, quod ipfe omnes libertates tribunal, there would foon be an end of the conftitution, by deftroying the free agency of one of the conftituent parts of the fovereign legislative power. ARE then, it may be asked, the fubjects of England totally deftitute of remedy, in cafe the crown should invade their rights, either by private injuries, or public oppreffions? To this we may anfwer, that the law has provided a remedy in both cafes. AND, firft, as to private injuries; if any perfon has, in point of property, a juft demand upon the king, he muft petition him. in his court of chancery, where his chancellor will adminifter right as a matter of grace, though not upon compulfion. And this is entirely confonant to what is laid down by the writers on natural law." A subject, fays Puffendorf, fo long as he continues a subject, hath no way to oblige his prince to give him his "due when he refufes it; though no wife prince will ever refuse "to ftand to a lawful contract. And, if the prince gives the fub 66 ject leave to enter an action against him, upon such contract, "in his own courts, the action itself proceeds rather upon natu"ral equity, than upon the municipal laws." For the end of fuch action is not to compel the prince to obferve the contract, but to perfuade him. And, as to perfonal wrongs; it is well obferved by Mr Locke'," the harm which the fovereign can do in his "own perfon not being likely to happen often, nor to extend it"felf far; nor being able by his fingle ftrength to fubvert the "laws, nor opprefs the body of the people, (fhould any prince "have fo much weakness and ill nature as to endeavour to do it) the inconveniency therefore of fome particular mischiefs, "that may happen fometimes, when a heady prince comes to "the throne, are well recompenfed by the peace of the public " and fecurity of the government, in the perfon of the chief magiftrate being thus fet out of the reach of danger." 66 9 Finch. L. 155. Gg 2 NEXT s on Gov. p. 2. §. 205. Law of N. and N. b. 8. c. 10. NEXT, as to cafes of ordinary public oppreflion, where the vitals of the constitution are not attacked, the law hath alfo af figned a remedy. For, as a king cannot mifufe his power, without the advice of evil counsellors, and the affiftance of wicked minifters, these men may be examined and punished. The conftitution has therefore provided, by means of indictments, and parliamentary inpeachments, that no man fhall dare to affift the crown in contradiction to the laws of the land. But it is at the same tinic a maxim in those laws, that the king himself can do no wrong: fince it would be a great weakness and abfurdity in any fyftem of positive law, to define any poffible wrong, without any poffible redress. FOR, as to fuch public oppreffions as tend to diffolve the conflitution, and fubvert the fundamentals of government, they are cafes which the law will not, out of decency, fuppofe: being incapable of diftrufting thofe, whom it has invested with any part of the fupreme power; fince fuch diftruft would render the exercife of that power precarious and impracticable'. For, whereever the law expreffes it's diftruft of abufe of power, it always vefts a fuperior coercive authority in fome other hand to correct it; the very notion of which destroys the idea of fovercignty. If therefore (for example) the two houfes 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 animadverfion, would inftantly ceafe to be part of the fupreme power; the ballance of the conftitution would be overturned; and that branch or branches, in which this jurisdiction refided, would be completely fovereign. The fuppofition of law therefore is, that neither the king nor either houfe of parliament (collectively taken) is capable of doing any wrong; fince in fuch cafes the law feels See thefe points more fully difcuffed in learned author has thrown many new and De confiderations on the law of forfeiture, 3d important lights on the texture of our happy edit. pag. 159-126. wherein the very conftitution. feels itself incapable of furnishing any adequate remedy. For which reafon all oppreffions, which may happen to fpring from any branch of the fovereign power, muft neceffarily be out of the reach of any stated rule or exprefs legal provifion: 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 unconftitutional oppreffions, even of the fovereign power, advance with gigantic ftrides and threaten defolation to a ftate, mankind will not be reasoned out of the feelings of humanity; nor will facrifice their liberty by a fcrupulous adherence to those political maxims, which were originally established to preferve it. And therefore, though the positive laws are filent, experience will furnish us with a very remarkable cafe, wherein nature and reason prevailed. When king James the fecond invaded the fundamental conftitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new fettlement of the crown. And fo far as this precedent leads, and no farther, we may now be allowed to lay down the law of redrefs against public oppreffion. If therefore any future prince should endeavour to fubvert the conftitution by breaking the original contract between king and people, fhould violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant. But it is not for us to fay, that any one, or two, of these ingredients would amount to fuch a fituation for there our precedent would fail us. In these therefore, or other circumstances, which a fertile imagination may furnish, fince both law and hif tory are filent, it becomes us to be filent too; leaving to future generations, whenever neceffity and the fafety of the whole fhall require it, the exertion of those inherent (though latent) powers of fociety, which no climate, no time, no conftitution, no contract, can ever destroy or diminish. II. BESIDES |