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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 folemnities of the other, would not bear the inspection of a rational and sober inquiry. The glorious queen Elizabeth herself made no scruple to direct her parliaments to abstain from discoursing of matters of Itate b; and it was the constant language of this favourite princess and her ministers, that even that august assembly “ought not to deal, to judge, “ or to meddle with her majesty's prerogatire royala." And her successor, king James the first, who had imbibed high notions of the divinity of regal fway, 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 presuniption and fedition in a subject to dispute “ 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 fubjeéts will reit in the “ king's will, revealed in his law d.”
But, whatever might be the sentiments of some of our princes, this was nerer the language of our antient constitution and laws. The limitation of the regal authority was a first and effential 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 l'ortescuc, at the distance of two centuries from each other. And fir Henry Finch, under Charles the first, after the lapse of two celturies 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 choing of “ any wrong," Nihil enim aliud poteft rex, nisi id folum quod
Deves. 479. c Ibid. 645.
d King James's viorks. 557. 534.
de jure potest. And here it may be some 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 exprcfied 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 ipsas leges Deus “subjecit &.” We shall not long hesitate to which of them to give the preference, as most conducive to those ends for which focieties were framed, and are kept together; especially as the Roman lawyers themselves feem to be sensible of the unreasonableness of their own constitution. “ Deret * tamen principem," says Paulus, “fervare leges, quibus inle "folutus efth." This is at once laying down the principle of despotic power, and at the same time acknowleging it's absurdity.
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 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 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.
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 politi, cal person, considered merely by itself, without reference to any other extrinsic circumstance; as, the right of sending embassadors, 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 expences 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 constitution has interposed such feafonable 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 governments it is) spreads havoc and destruction among all the inferior movements: but, when balanced and regulated (as with us) by it's proper counterpoise, timely and judiciously applicd, it's operations are then equable and certain, 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 tiefe divisions, which relate to the king's political chaII
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 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 classes the rights of the revenue are ranked. For, to use their own words, “ majora regalia “imperii prae-eminentiam spectant ; minora vero ad commodum “pecuniarium immediate attinent; et haec proprie fiscalia sunt, "et ad jus fisci pertinent k.”
First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects, not only by the oụtward 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 mass 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 go- . vernment. 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 eft vicarius,” says Bracton', “et minister Dei in terra : omnis quidem fub eo eft, et ipse
k Peregrin. de jure fif. I, 1. C. 1. num. 9.
11. 1.6. 8.
“ sub nullo, nisi tantunt fub Deo.” He is said to have imperial dignity; and in charters before the conquest is frequently stiled bafileus and imperator, the titles respectively assumed by the emperors of the east and westm. 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 ecclefiaftical, and of consequence inferior to no man upos carth, 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 fubordi. nate 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 and crown of England, is only to affert 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 fuit 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 fentence of a court would be contemptible, unless that court had power to command the execution of it: but who, fays Finch P, 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 m Seld. tit. of hon. I. 2.
tates baberet in regno fuo, quas imperator See also 24 Geo. II. c. 24. 5 Geo. vendicabat in imperio. (M. Paris, A.D. III. c. 27.
1095.) • Rex allegavit, quod ipso omnes liber. P Finch. L. 83.