not fuffered to be pried into by any but fuch as were initiated in it's fervice: becaufe perhaps the exertion of the one, like the folemnities of the other, would not bear the infpection of a rational and fober inquiry. The glorious queen Elizabeth herself made no fcruple to direct her parliaments to abftain from difcourfing of matters of fate; and it was the conftant language of this favourite princefs and her minifters, 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 "blafphemy in a creature to dispute what the deity may do, "fo it is prefumption and fedition in a fubject to difpute "what a king may do in the height of his power: goed "chriftians, 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 4" BUT, whatever might be the fentiments of fome of our princes, this was never the language of our antient conftitu tion and laws. The limitation of the regal authority was a firft 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 feen, in the preceding chapter, the fentiments of Bracton and Fortefeuc, at the diftance of two centuries from each other. And fir Henry Finch, under Charles the firft, after the lapfe of two centuries more, though he lays down the law of pierogative 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 fubject; for in them all it must be remembered; "that the king's prerogative ftretcheth not to the doing of any wrong." Nihil enim aliud poteft rex, nifi id folum quod b Dewes. 479. • Ibid. 645. 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 civilian would rather have expreffed it) the authority of the prince over the laws. It is a maxim of the English law, as we have feen 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 "Subjecit &." We fhall not long hesitate 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 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 usually 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 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 fubject, it would ceafe 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. c. 9. 8 Nov. 105. §. 2. VOL. I. h Ff. 32. - 23. i Finch. L. 35. 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 fomething elfe, diftinct 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 joint-tenant; and that his debt fhall be preferred before a debt to any of his fubjects. Thefe, and an infinite number of other inftances, will better be understood, when we come regularly to confider the rules themfelves, to which thefe 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 fuch as regard, first, the king's royal character; fecondly, his royal authority; and, lastly, his royal income. These are neceflary, to fecure reverence to his perfon, obedience to his commands, and an affluent fupply for the ordinary expences of government; without all of which it is impoflible 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 feasonable checks and reftrictions, as may curb it from trampling on thofe liberties, which it was meant to secure and establish. The enormous weight of prerogative, if left to itself, (as in arbitrary governments it is) fpreads havoc and deftruction 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 anfwer the end of it's conftruction. IN the prefent chapter we fhall only confider the two firft of thefe divifions, which relate to the king's political cha II racter racter 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 divifion, which forms the royal revenue, will require a diftinct 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 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 fifcalia funt, "et ad jus fifci pertinent." FIRST, then, of the royal dignity. Under every monarchical establishment, it is neceffary to diftinguish the prince from his fubjects, not only by the outward pomp and decorations of majesty, but alfo by afcribing to him certain qualities, as inherent in his royal capacity, distinct from and fuperior to those of any other individual in the nation. For, though a philofophical mind will confider the royal person merely as one man appointed by mutual confent to prefide over many others, and will pay him that reverence and duty which the principles of fociety demand, yet the mass of mankind will be apt to grow infolent and refractory, if taught to confider their prince as a man of no greater perfection than themselves. The law therefore afcribes 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 bufinefs 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 Sovereignty, or pre-eminence. "Rex eft vicarius," fays Bracton', "et minister Dei in terra: omnis quidem fub eo eft, et ipfe k Peregrin. de jure fifc. 1, 1. c. 1. num. 9. Q2 1 l. 1. c. 8. "Sub “fub nullo, 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 m. 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 fubordinate 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 these 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 ju rifdiction implies fuperiority of power: authority to try would be vain and idle, without an authority to redress; and the fentence of a court would be contemptible, unless that court had power to command the execution of it: but who, fays Finch P, fhall command the king? Hence it is likewise, that by law the perfon of the king is facred, even though the meafures 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 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 vested in any domeftic |