tion of blood: for if the heir to the crown were attainted of treafon or felony, and afterwards the crown fhould defcend to him, this would purge the attainder ipfo facto". And therefore when Henry VII, who as earl of Richmond ftood attainted, came to the crown, it was not thought neceffary to pass an act of parliament to reverse this attainder; because, as lord Bacon in his hiftory of that prince informs us, it was agreed that the affumption of the crown had at once purged all attainders. Neither can the king in judgment of law, as king, ever be a minor or under age; and therefore his royal grants and affents to acts of parliament are good, though he has not in his natural capacity attained the legal age of twenty-one. By a ftatute indeed, 28 Hen. VIII. c. 17. power was given to future kings to refcind and revoke all acts of parliament that fhould be made while they were under the age of twentyfour: but this was repealed by the ftatute 1 Edw. VI. c. II. fo far as related to that prince; and both ftatutes are declared to be determined by 24 Geo. II. c. 24. It hath alfo been ufually thought prudent, when the heir apparent has been very young, to appoint a protector, guardian, or regent, for a limited time: but the very neceflity of fuch extraordinary provision is fufficient to demonftrate the truth of that maxim of the common law, that in the king is no minority; and therefore he hath no legal guardian. z Finch. L. 82. a Co. Litt. 43. 2 Inft. proëm. 3. The methods of appointing this guardian or regent have been so various, and the duration of his power fo uncertain, that from hence alone it may be collected that his office is unknown to the common law; and therefore (as fir Edward Coke fays, 4 Inft. 58.) the fureft way is to have him made by authority of the great council in parliament. The earl of Pembroke, by his own authority, affumed in very troublesome times the regency of Henry III, who was then only nine years old; but was declared of full age by the pope at feventeen, confirmed the great charter at eighteen, and took upon him the administration of the go vernment at twenty. A guardian and council of regency were named for Edward III, by the parliament, which depofed his father; the young king being then fifteen, and not affuming the government till three years after. When Richard II fucceeded at the age of eleven, the duke of Lancaster took upon him the management of the kingdom, till the parliament met, which appointed a nominal council to affift him. Henry V on his death-bed named a regent and a guardian for his infant fon Henry VI, then nine months old: but the parliament altered his difpofition, and appointed a prote&or and council, with a fpecial limited authority. Both thefe princes remained in a state of pupilage till the age of III. A THIRD attribute of the king's majefty is his perpetuity. The law ascribes to him, in his political capacity, an abfolute immortality. The king never dies. Henry, Edward, or George may die; but the king furvives them all. For immediately upon the decease of the reigning prince in his natural capacity, his kingfhip or imperial dignity, by act of law, without any interregnum or interval, is vefted at once in his heir; who is, eo inftanti, king to all intents and purposes. And fo tender is the law of fuppofing even a poflibility of his death, that his natural diffolution is generally called his demife; demiffio regis, vel coronae: an expreffion which fignifies merely a transfer of property; for, as is obferved in Plowden, when we fay the demise of the crown, we mean only that, in confequence of the difunion. of the king's natural body from his body politic, the kingdom is transferred or demifed to his fucceffor; and fo the royal dignity remains perpetual. Thus too, when Edward the fourth, in the tenth year of his reign, was driven from his throne for a few months by the houfe of Lancaster, this, temporary transfer of his dignity was denominated his demife; and all process was held to be discontinued, as upon a natural death of the king a. of twenty-three. Edward V, at the age of thirteen, was recommended by his father to the care of the duke of Glocefter; who was declared protector by the privy council. The ftatutes 25 Hen. VIII. c. 12. and 28 Hen. VIII. c. 7. provided, that the fucceffor, if a male, and under eighteen, or if a female and under fixteen, fhould be till fuch age in the government of his or her natural mother, (if approved by the king) and fuch other counsellors as his majesty should by will or otherwife appoint: and he accordingly appointed his fixteen executors to have the government of his fon Edward VI, and the kingdom, which executors elected the earl of Hertford pro tector. The ftatute 24 Geo. II. c. 24. WE Book I. WE are next to confider thofe branches of the royal prerogative, which inveft thus our fovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof confifts the executive part of government. This is wifely placed in a fingle hand by the British conftitution, for the fake of unanimity, ftrength, and dispatch. Were it placed in many hands, it would be fubject to many wills: many wills, if difunited and drawing different ways, create weakness in a government; and to unite thofe feveral wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. The king of England is therefore not only the chief, but properly the fole, magistrate of the nation; all others acting by commiflion from, and in due fubordination to him: in like manner as, upon the great revolution in the Roman ftate, all the powers of the antient magiftracy of the commonwealth were concentred in the new emperor fo that, as Gravina expreffes it," in ejus unius "perfona veteris reipublicae vis atque majeftas per cumulatas "magiftratuum poteftates exprimebatur.” : AFTER what has been premised in this chapter, I fhall not (I truft) be confidered as an advocate for arbitrary power, when I lay it down as a principle, that, in the exertion of lawful prerogative, the king is and ought to be abfolute; that is, fo far absolute, that there is no legal authority that can either delay or refift him. He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences he pleafes: unlefs where the conftitution hath exprefsly, or by evident confequence, laid down fome exception or boundary; declaring, that thus far the prerogative fhall go and no farther. For otherwife the power of the crown would indeed be but a name and a fhadow, infufficient for the ends of government, if, where it's jurifdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: I fay, in the ordinary course of law; for I do not Orig. 1. §. 103. now now speak of those extraordinary recourses to firft principles, which are neceffary when the contracts of society are in danger of diffolution, and the law proves too weak a defence against the violence of fraud or oppreffion. And yet the want of attending to this obvious diftinction has occafioned thefe doctrines, of abfolute power in the prince and of national resistance by the people, to be much misunderstood and perverted, by the advocates for flavery on the one hand, and the demagogues of faction on the other. The former, obferving the abfolute fovereignty and tranfcendent dominion of the crown laid down (as it certainly is) moft ftrongly and emphatically in our law-books, as well as our homilies, have denied that any cafe can be excepted from fo general and pofitive a rule; forgetting how impoffible it is, in any practical fyftem of laws, to point out beforehand thofe eccentrical remedies, which the fudden emergence of national distress may dictate, and which that alone can juftify. On the other hand, over-zealous republicans, feeling the abfurdity of unlimited paffive obedience, have fancifully (or fometimes factiously) gone over to the other extreme: and, because refiftance is juftifiable to the perfon of the prince when the being of the ftate is endangered, and the public voice proclaims fuch refiftance neceffary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to refift even private oppreffion. A doctrine productive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itfelf. For civil liberty, rightly understood, confifts in protecting the rights of individuals by the united force of fociety: fociety cannot be maintained, and of course can exert no protection, without obedience to fome fovereign power: and obedience is an empty name, if every individual has a right to decide how far he himfelf fhall obey. In the exertion therefore of thofe prerogatives, which the law has given him, the king is irresistible and abfolute, according to the forms of the conftitution. And yet, if the confequence of that exertion be manifeftly to the grievance or dishonour of the kingdom, the parliament will call his advisers to to a just and severe account. For prerogative confifting (as Mr Locke has well defined it) in the difcretionary power of acting for the public good, where the pofitive laws are filent; if that difcretionary power be abufed to the public detriment, fuch prerogative is exerted in an unconftitutional manner. Thus the king may make a treaty with a foreign state, which fhall irrevocably bind the nation; and yet, when fuch treaties have been judged pernicious, impeachments have pursued those minifters, by whofe agency or advice they were concluded. THE prerogatives of the crown (in the fenfe under which we are now confidering them) refpect either this nation's intercourse with foreign nations, or it's own domeftic government and civil polity. WITH regard to foreign concerns, the king is the delegate or reprefentative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that flate with another community equally numerous as themselves. Unanimity must be wanting to their measures, and ftrength to the execution of their counfels. In the king therefore, as in a center, all the rays of his people are united, and form by that union a confiftency, fplendor, and power, that make him feared and respected by foreign potentates; who would fcruple to enter into any engagement, that must afterwards be revifed and ratified by a popular affembly. What is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king's concurrence is the act only of private men. And fo far is this point carried by our law, that it hath been held, that fhould all the fubjects of England make war with a king in league with the king of England, without the royal aflent, fuch war is no breach of the league. And, by the ftatute 2 Hen. V. c. 6. any subject committing acts of hoftility upon any nation in league with the king was declared to be guilty of high treafon : and, though that act was repealed by the ftatute 20 Hen. VI. c. 11. fo far as re f on Gov. 2. §. 166. g Inft. 152. lates |