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tribunal, there would soon be an end of the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative power.

ARE then, it may be asked, the subjects of England totally deftitute of remedy, in case the crown should invade their rights, either by private injuries, or public oppressions ? To this we may answer, that the law has provided a remedy in both cases.

AND, first, as to private injuries: if any person has, in point of property, a just demand upon the king, he mult petition him in his court of chancery, where his chancellor will administer 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, says Puf“ fendorf', so long as he continues a subject, hath no way “ to oblige his prince to give him his due, when he refuses it; " though no wise prince will ever refuse to stand to a lawful os contract. And, if the prince gives the subject leave to “ enter an action against him, upon such contract, in his own « courts, the action itself proceeds rather upon natural equity, “ than upon the municipal laws.” For the end of such action is not to compel the prince to observe the contract, but to perfucde him. And, as to personal wrongs; it is well observed by Mr Locke', “ the harm which the sovereign can do in “ his own person not being likely to happen often, nor to “ extend itself far; nor being able by his single strength to “ subvert the laws, nor oppress the body of the people, “ (should any prince have so much weakness and ill-nature « as to endeavour to do it)--the inconveniency therefore of “ some particular mischiefs, that may happen sometimes, « when a heady prince comes to the throne, are well recom“ pensed by the peace of the public and security of the “ government, in the person of the chief magistrate being “ thus set out of the reach of danger.”

4 Finch. L. 255. See b. III. c. 17. ? Law of N. and N. b. 8. c. 10.

son Gov. p. 2. 5. 205.

Next, as to cases of ordinary public oppression, where the vitals of the constitution are not attacked, the law hath also assigned a remedy. For as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished.

The constitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to allist the crown in contradiction to the laws of the land. But it is at the same time a maxim in those laws, that the king himself can do no wrong: since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress.

For, as to such public oppressions as tend to diffolve the constitution, and subvert the fundamentals of government, they are cases, which the law will not, out of decency, fuppose: being incapable of distrusting those, whom it has invested with any part of the supreme power; since such distrust would render the exercise of that power precarious and impracticable'. For, wherever the law expresses it's distrust of abuse of power, it always veits a superior coercive authority in some other hand to correct it; the very notion of which destroys the idea of sovereignty.” If therefore (for example) the two houses 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 animadversion, would instantly cease to be part of the supreme power; the balance of the constitution would be overturned; and that branch or branches, in which this jurisdiclion resided, would be completely fovereign. The supposition of law therefore is, that neither the king nor either house of parliament (collectively taken) is capable of doing any wrong; since in such cases the law feels itself incapable of furnishing any adequate

! See these points more fully discussed the very learned author has thrown many in the confideraria: of the law of forfei- new and important lights on the texture iari, 3d edit. plg. 109 -126. wherein of our happy consticution.


remedy. For which reason all oppressions, which may happen to spring from any branch of the fovereign power, must necessarily be out of the reach of any stated rule, or express legal provision: 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 unconstitutional oppressions, even of the fovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity ; nor will facrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it. And therefore, though the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature and reason prevailed. When king James the second invaded the fundamental constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. And so far as this precedent leads, and no farther, we may now be allowed to lay down the law of redress against public oppression. If therefore any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should 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 abdi. cation, and the throne would be thereby vacant. But it is not for us to say that any one, or two, of these ingredients would amount to such a situation; for there our precedent would fail us. In these therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are filent, it becomes us to be filent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish.

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II. Besides the attribute of sovereignty, the law allo ascribes to the king, in his political capacity, absolute pers fection. The king can do no wrong. Which antient and fundamental maxim is not to be understood, as if every thing transacted by the government was of course just and lawful, but means only two things. First, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the king, nor is he answerable for it personally to his people : for this doctrine would totally destroy that constitutional independence of the crown, which is neces{ary for the balance of power in our free and active, and therefore compounded, constitution. And, secondly, it means that the prerogative of the crown extends not to do any injury; it is created for the benefit of the people, and therefore cannot be exerted to their prejudice 4,

The king, moreover, is not only incapable of doing virong, but even of thinking wrong; he can never mcan to do an improper thing : in him is no folly or weakness. And therefore if the crown should be induced to grant any franchile or privilege to a subject contrary to reason, or in any wife prejudicial to the commonwealth, or a private person, the law will not suppose the king to have meant either an unwise or an injurious action, but declares that the king was deceived in his grant; and thereupon such grant is rendered void, merely upon the foundation of fraud and deception, either by or upon those agents, whom the crown has thought proper to employ. For the law will not cast an imputation on that magistrate whom it intruss with the executive power, as if he was capable of intentionally difregarding his truft: but attributes to mere imposition (to which the most perfect of fublunary beings must still continue liable) those little inadvertencies, which, if charged on the will of the prince, might lesen him in the eyes of his subjects.

u Slowd 43


Yet still, notwithstanding this personal perfection, which the law attributes to the sovereign, the constitution has allowed a latitude of supposing the contrary, in respect to both houses of parliament; each of which, in it's turn, hath exerted the right of remonstrating and complaining to the king even of those acts of royalty, which are most properly and personally his own; such as messages signed by himself, and speeches delivered from the throne. And yet, such is the reverence which is paid to the royal person, that though the two houses have an undoubted right to consider these acts of state in any light whatever, and accordingly treat them in their addresles as personally proceeding from the prince, yet among themselves, (to preserve the more perfect decency, and for the greater freedom of debate) they usually suppose them to flow from the advice of the administration, But the privilege of canvassing thus freely the personal acts of the sovereign (either directly, or even through the medium of his reputed advisers) belongs to no individual, but is confined to those august assemblies : and there too the objections must be proposed with the utmost respect and deference, One member was sent to the tower W, for suggesting that his majesty's answer to the address of the commons contained “high words to fright the members out of their duty;" and another *, for saying that a part of the king's speech s seemed rather to be calculated for the meridian of Ger“ many than Great Britain, and that the king was a stran“ger to our language and constitution.”

In farther pursuance of this principle, the law also deter. mines that in the king can be no negligence, or laches, and therefore no delay will bar his right. Nullum tempus occurrit regi has been the standing maxim upon alloccafions: for the law intends that the king is always busied for the public good, and therefore has not leisure to affert his right within the times limited to subjects y. In the king also can be no stain or corrup

y Finch. L. 82, Co, Litt. coe

w Com. Journ. 18 Nov. 1685, . Ibid. 4 Dec. 1717.

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