tector, guardian, or regent, for a limited time: but the very necessity of such extraordinary provision is sufficient to demonstrate the truth of that maxim of the common law, that in the king is no minority; and therefore he hath no legal guardian. (b) (7)

*III. A third attribute of the king's majesty in his perpetuity. The law ascribes to him, in his political capacity, an absolute immortality. [*249] The king never dies. Henry, Edward, or George, may die; but the king survives them all. For immediately upon the decease of the reigning prince in his natural capacity, his kingship or imperial dignity, by act of law, without any interregnum or interval, is vested at once in his heir, who is, eo instanti, king to all intents and purposes. And so tender is the law of supposing even a possibility of his death, that his natural dissolution is generally called his demise; demissio regis, vel corona: an expression which signifies merely a transer of property; for, as is observed in Plowden, (c) when we say the demise of the crown, we mean only that, in consequence of the disunion of the king's natural body from his body politic, the kingdom is transferred or demised to his successor; and so 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 house of Lancaster, this temporary transfer of his dignity was denominated his demise; and all process was held to be discontinued, as upon a natural death of the king. (d)

*We are next to consider those branches of the royal prerogative, which invest thus our sovereign lord, thus all-perfect and immortal in [*250] his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. This is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government; and to unite those several 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 sole, magistrate of the nation, all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the Roman state, all the powers of the ancient magistracy of the commonwealth were concentrated in the new emperor: so that, as Gravina (e) expresses it, "in ejus unius persona veteris reipublicæ vis atque majestas per cumulatas magistratuum potestates exprimebatur."

After what has been premised in this chapter, I shall not (I trust) be considered 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 absolute; that (b) The methods of appointing this guardian or regent have been so various, and the duration of his power so uncertain, that from hence alone it may be collected that his office is unknown to the common law; and therefore (as Sir Edward Coke says, 4 Inst. 58,) the surest way is to have him made by authority of the great council in parliament. The earl of Pembroke, by his own authority, assumed, 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 seventeen, confirmed the great charter at eighteen, and took upon him the administration of the government at twenty. A guardian and council of regency were named for Edward III, by the parliament, which deposed his father; the young king being then fifteen, and not assuming the government till three years after. When Richard II succeeded 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 assist him. Henry V, on his death-bed, named a regent and a guardian for his infant son. Henry VI, then nine months old; but the parliament altered his disposition, and appointed a protector and conncil, with a special limited authority. Both these princes remained in a state of pupilage till the age of twenty-three. Edward V, at the age of thirteen. was recommended by his father to the care of the duke of Gloucester, who was declared protector by the privy council. The statutes 25 Hen. VIII, c. 12, and 28 Hen. VIII, c. 7, provided,that the successor,if a male, and under eighteen, or if a female and under sixteen, should be till such age in the government of his or her natural mother, (if approved by the king,) and such other counsellors as his majesty should by will or otherwise appoint; and he accordingly appointed his sixteen executors to have the government of his son Edward VI, and the kingdom, which executors elected the earl of Hertford protector. The statute 24 Geo.II, c. 24, in case the crown should descend to any of the children of Frederick, late prince of Wales, under the age of eighteen, appointed the princess dowager; and that of 5 Geo. III, c. 27, in case of a like descent to any of his present majesty's children, empowers the king to name either the queen, the princess dowager, or any descendant of King George II, residing in this kingdom, to be guardian and regent, till the successor attains such age, assisted by a council of regency; the powers of them all being expressly defined and set down in the several acts. (c) Plowd. 177, 234.

(d) M. 49 Hen. VI. pl. 1-8

(e) Orig. 1, § 103.

(7) An interesting account of the proceedings in reference to a regency during the reign of Geo. III will be found in May's Const. Hist. c. 3.

is, so far absolute that there is no legal authority that can either delay or resist him. He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences, he pleases; unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring, that thus far the prerogative shall go, and no farther. For otherwise the power of the crown would indeed be but a name and a shadow, insufficient for the ends of government, if where its jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: I say in the ordinary course of law; for I do not *now speak of those extraordinary recources to first prin[*251] ciples, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression. And yet the want of attending to this obvious distinction has occasioned these doctrines, of absolute power in the prince and of national resistance by the people, to be much misunderstood and perverted, by the advocates for slavery on the one hand, and the demagogues of faction on the other. The former, observing the absolute sovereignty and transcendent dominion of the crown laid down (as it certainly is) most strongly and emphatically in our law books, as well as our homilies, have denied that any case can be excepted from so general and positive a rule; forgetting how impossible it is, in any practical system of laws, to point out beforehand those eccentrical remedies, which the sudden emergence of national distress may dictate, and which that alone can justify. On the other hand, over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or some times factiously) gone over to the other extreme; and because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to resist even private oppression. A doctrine productive of anarchy, and, in consequence, equally fatal to civil liberty, as tyranny itself. For civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society; society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power; and obedience is an empty name, if every individual has a right to decide how far he himself shall obey.

In the exertion, therefore, of those prerogatives which the law has given him, the king is irresistible and absolute, according to the forms of the constitution. And yet, if the consequence of that exertion be manifestly to the grievance or dishonor of the kingdom, the parliament will call his advisers *to a just [*252] and severe account. For prerogative consisting (as Mr. Locke (f) has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent; if that discretionary power be abused to the public. detriment, such prerogative is exerted in an unconstitutional manner. Thus the king may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet, when such treaties have been judged pernicious, impeachments have pursued those ministers, by whose agency or advice they were concluded.

The prerogatives of the crown (in the sense under which we are now considering them) respect either this nation's intercourse with foreign nations, or its own domestic government and civil polity.

With regard to foreign concerns, the king is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. In the king, therefore, as in a centre, all the rays of his people are united, and formed by that union, a consistency, splendor and power, that make him feared and respected by foreign potentates; (f) On Gov. 2, § 166.

who would scruple to enter into any engagement that must afterwards be revised and ratified by a popular assembly. 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 so far is this point carried by our law that it hath been held, (g) that should all the subjects of England make war with a king in league with the king of England, without the royal assent, such war is no breach of the league. And, by the statute 2 Hen. V, c. 6, any subject committing acts of hostility upon any nation in league with the king was declared to be guilty of high treason; and, although that act was repealed by the statute 20 Hen. VI, c. 11, so far as *relates to the

making this offence high treason, yet still it remains a very great offence [*253]

against the law of nations, and punishable by our laws, either capitally or otherwise, according to the circumstances of the case.

I. The king therefore, considered as the representative-of his people, has the sole power of sending ambassadors to foreign states, and receiving ambassadors at home. This may lead us into a short digression, by way of inquiry, how far the municipal laws of England intermeddle with or protect the rights of these messengers from one potentate to another, whom we call ambassadors.

The rights, the powers, the duties, and the privileges of ambassadors are determined by the law of nature and nations, and not by any municipal constitutions. For, as they represent the persons of their respective masters, who owe no subjection to any laws but those of their own country, their actions are not subject to the control of the private law of that state wherein they are appointed to reside. He that is subject to the coercion of laws is necessarily dependent on that power by whom those laws were made: but an ambassador ought to be independent of every power except that by which he is sent, and of consequence ought not to be subject to the mere municipal laws of that nation wherein he is to exercise his functions. If he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master; (h) who is bound either to do justice upon him, or avow himself the accomplice of his crimes. (i) But there is great dispute among the writers on the laws of nations, whether this exemption of ambassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are mala prohibita, as coining, and not to those that are mala in se, as murder. (k) Our law seems to have formerly taken in the restriction, as well as the general exemption. *For it has [*254] been held, both by our common lawyers and civilians (7) that an ambassador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of reason and nature, he shall lose his privilege; (m) and that therefore, if an ambassador conspires the death of the king in whose land he is, he may be condemned and executed for treason; but if he commits any other species of treason it is otherwise, and he must be sent to his own kingdom. (2) And these positions seem to be built upon good appearance of reason. For, since, as we have formerly shewn, all municipal laws act in subordination. to the primary law of nature, and, where they annex a punishment to natural crimes, are only declaratory of, and auxiliary to, that law; therefore to this natural universal rule of justice, ambassadors, as well as other men, are subject in all countries; and of consequence, it is reasonable that, wherever they transgress it, they shall be liable to make atonement. (0) But, however these principles might formerly obtain, the general practice of this country, as well as the rest of Europe, seems now to pursue the sentiments of the learned Grotius, that the security of ambassadors is of more importance than the punishment of a particular crime. (p) And therefore few, if any, examples have

(g) 4 Inst. 152.

(h) As was done with Count Gyllenberg the Swedish minister to Great Britain, A. D. 1717.

(1) Sp. L. 26, 21.

(k) Van Leeuwen in Ff. 50, 7, 17. Barbeyrac's Puff. 1, 8, c. 9, §9, and 17. Van Bynkershoek de foro legator, c. 17, 18, 19.

(4) 1 Roll. Rep. 175. 3 Bulstr. 17. (m) 4 Inst. 153.

(n) 1 Roll. Rep. 185. (0) Forster's Reports, 188.

(p) Securitas legatorum utilitati quæ ex poena est præponderat. (De jure b. § p. 18, 4. 4.)

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happened within a century past, where an ambassador has been punished for any offence, however atrocious in its nature. (8)

In respect to civil suits, all the foreign jurists agree that neither an ambassador, or any of his train or comites can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. Yet Sir Edward Coke maintains that, if an ambassador make a contract which is good jure gentium, he shall answer for it here. (q) But the truth is, so few cases (if any) had arisen, wherein the privilege was either claimed or disputed, even with regard to civil suits, that our law books are (in general) quite silent upon it previous to the reign of Queen Anne; when an ambassador from Peter [*255] the Great, czar of Muscovy, was actually arrested and taken out of his coach in London, (r) for a debt of fifty pounds which he had there contracted. Instead of applying to be discharged upon his privilege, he gave bail to the action, and the next day complained to the queen. The persons who were concerned in the arrest were examined before the privy council (of which the Lord Chief Justice Holt was at the same time sworn a member,) (s) and seventeen were committed to prison; (t) most of whom were prosecuted by information in the court of queen's bench, at the suit of the attorney general, (u) and at their trial before the lord chief justice were convicted of the facts by the jury, (v) reserving the question of law, how far those facts were criminal, to be afterwards argued before the judges; which question was never determined. (9) In

(q) 4 Inst. 153.
(8) 25 July, 1708.
(u) 23 Oct. 1708.

(r) 21 July, 1708. Boyer's Annals of Queen Anne.
Boyer's Annals of Queen Anne.
Ibid.
(v) 14 Feb. 1708. Ibid.

(t) 25, 29 July, 1708. Ibid.

(8) [In the year 1654, during the protectorate of Cromwell, Don Pataleon Sa, the brother of the Portuguese ambassador, who had been joined with him in the same commission, was tried, convicted, and executed for an atrocious murder. Lord Hale, 1 P. C. 99 approves of the proceeding; and Mr. J. Foster, p. 188, though a modern writer of law, lays it down, that "for murder and other offences of great enormity, which are against the light of nature and the fundamental laws of all society, ambassadors are certainly liable to answer in the ordinary course of justice, as other persons offending in the like manner are;" but Mr. Hume observes upon this case, that "the laws of nations were here plainly violated." 7 vol. 237. And Vattel, with irresistible ability, contends that the universal inviolability of an ambassador is an object of much greater importance to the world than their punishment for crimes, however contrary to natural justice. "A minister," says that profound writer, "is often charged with a commission disagreeable to the prince to whom he is sent. If this prince has any power over him, and especially if his authority be sovereign, how is it to be expected that the minister can execute his master's orders with a proper freedom of mind, fidelity and firmness? It is necessary he should have no snares to fear, that he cannot be diverted from his functions by any chicanery. He must have nothing to hope, and nothing to fear from the sovereign to whom he is sent. Therefore, in order to the success of his ministry, he must be independent of the sovereign's authority, and of the jurisdiction of the country, both civil and criminal:" B. 4, c. 7, § 92, where this subject is discussed in a most luminous manner. The Romans in the infancy of their state acknowledged the expediency of the independence of ambassadors; for when they had received ambassadors from the Tarquin princes whom they had dethroned, and had afterwards detected those ambassadors in secretly committing acts which might have been considered as treason against their state, they sent them back unpunished; upon which Livy observes, et quanquam visi sunt commississe, ut hostium loco essent, jus tamen gentium valuit. Lib. 2, c. 4. When Bomilcar, qui Romam fide publica venerat, was prosecuted as an accomplice in the assassination of Massiva, Sallust declares, fit reus magis ex æquo bonoque quam ex jure gentium. Bell, Jug. c. 35.]

When a public minister is guilty of an offence against the existence and safety of the state where he resides, if the danger is urgent, his person and papers may be seized, and he may be sent out of the country. Wheat. Int. law, pt. 3, c. 1, § 15; Halleck Int. Law, 211. See an account of the arrest of Count Gyllenberg, the Swedish minister, in 1717, in Mahon's Hist. of England, vol. 1, c. 8.

(9) [In 3 Burr. 1480, Lord Mansfield declares, that "the statute of Queen Anne was not occasioned by any doubt whether the law of nations, particularly the part relative to public ministers, was not part of the law of England, and the infraction criminal, nor intended to vary an iota of it." And he proceeds to say, that Lord Talbot, Lord Hardwicke, and Lord Holt, were clearly of the same opinion. But the infraction of the law of nations can only be a misdemeanor, punishable at the discretion of the court by fine, imprisonment and pillory; and therefore, Lord Mansfield says, the persons convicted were never brought up to receive judgment, for "no punishment would have been thought by the czar an adequate reparation. Such a sentence as the court would have given, he would have thought a fresh insult."]

the mean time the czar resented this affront very highly, and demanded that the sheriff of Middlesex and all others concerned in the arrest should be punished with instant death. (w) But the queen (to the amazement of that despotic court) directed her secretary to inform him, "that she could inflict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land; and therefore was persuaded that he would not insist upon impossibilities." (x) To satisfy, however, the clamours of the foreign ministers (who made it a common cause,) as well as to appease the wrath of Peter, a bill was brought into parliament, (y) and afterwards passed into a law, (2) to prevent and punish such outrageous insolence for the future. And with a copy of this act, elegantly engrossed and illuminated, accompanied by a letter from the queen, an ambassador extraordinary (a) was commissioned to appear at Moscow, (b) who declared that though her majesty could not inflict such a punishment as was required, *because of the defect in that particular of the former established con[*256] stitutions of her kingdom, yet with the unanimous consent of the parliament she had caused a new act to be passed, to serve as a law for the future." This humiliating step was accepted as a full satisfaction by the czar; and the offenders, at his request, were discharged from all farther prosecution. (10)

This statute (c) recites the arrest which had been made, "in contempt of the protection granted by her majesty, contrary to the law of nations, and in prejudice of the rights and privileges which ambassadors and other public ministers have at all times been thereby possessed of, and ought to be kept sacred and inviolable:" wherefore it enacts, that for the future all process whereby the person of any ambassador, or of his domestic or domestic servant, may be arrested, or his goods distrained or seized, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process, shall be deemed violators of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment as the lord chancellor and the two chiefjustices, or any two of them, shall think fit. (11.) But it is expressly provided, that no trader, within the description of the bankrupt laws, who shall be in the service of any ambassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an ambassador's servant, unless his name be registered with the secretary of state, and by him transmitted to the sheriffs of London and Middlesex. Exceptions that are strictly conformable to the rights

(w) 17 Sept. 1708. Ibid.
(y) Com. Journ. 23 Dec. 1708.
(b) 8 Jan. 1709. Boyer, ibid.

(x) 11 Jan. 1708. Ibid.
(z) 21 Apr. 1709.
(c)7 Ann. c. 12.

Mod. Un. Hist. xxxv; 454
Boyer. ibid.

(a) Mr. Whitworth.

(10) A secretary of legation is privileged against any civil or criminal prosecution in the courts of the nation to which his superior is accredited. Ex parte Cabrera, 1 Wash. C. C. 232. But, if a privileged person commits an assault upon another, the latter is justified in employing the necessary force for self-defence. United States v. Liddle, 2 Wash. C. Č. 205.

(11) By the act of congress of April 30, 1790, 1 Stat. at Large, 117, any writ or process, sued forth, or prosecuted, by any person or persons, in any of the courts of the United States or of any particular state, for the arrest or imprisonment of any ambassador or other public minister, or any domestic servant thereof, or against his goods and chattels, is made utterly null and void, and persons concerned in suing out or prosecuting the same are deemed violators of the laws of nations and disturbers of the public repose, and made liable to imprisonment not exceeding three years, and to fine in the discretion of the court. But no citizen or inhabitant of the United States who shall have contracted debts previons to having entered the service of an ambassador or public minister, which debts remain unpaid, can have any benefit from the act; nor is any one liable to punishment under the act for having prosecuted the servant of an ambassador or other public minister, unless the name of such servant is registered in the office of the secretary of state, and by him transmitted to the office of the marshal of the district in which the minister resides.

The same act punishes assaults on ambassadors and other public ministers by imprisonment not exceeding three years, and fine in the discretion of the court.

The public ministers of other nations may bring suits as plaintiffs in the courts of the country to which they are accredited, and in the United States the federal courts have jurisdiction of such suits. Const. of U. S., art. 3, § 2.