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imperii, and, like the mysteries of the bona dea, was not suffered to be examined into by any but such as were initiated in its service. Elizabeth directed her ministers to abstain from discoursing about matters of state, and her successor, James I, who had imbibed high notions of the divinity of legal sway, said, that as it is atheism and blasphemy in a creature to dispute what Deity may do, so it is presumption and sedition in a subject to question what a king may do in the height of his power; “hence,” added he, “good Christians will be content with God's will, revealed in his word, and good subjects will rest in the king's will, revealed in his law.”
Ancient Doctrine. But this never was the language of our ancient constitution and laws. The limitation of the regal authority was an elementary principle in all the Gothic systems of government, established in Europe, though gradually overborne by violence and chicanery, in most of the kingdoms on the continent.
Meaning of the Term. Prerogative is that special preeminence, which the king has above all other persons, and out of the ordinary course of the common law, by right of his regal dignity. It signifies, prae and rogo, something that is required or demanded before, or in preference to all others. Hence in its nature it is singular and eccentrical, and can only be applied to those rights and capacities, which the king enjoys alone, and not to those he enjoys in common with his subjects. Prerogative is the law in the case of the king, which is law in no case of the subject.
Divisions-Direct or Incidental. The direct are such positive, substantial parts of the royal character and authority, as spring from the king's political person, without reference to any extrinsic circumstance, as the right of sending ambassadors, of creating peers, and of making war or peace. Incidental prerogatives always bear a relation to something else, distinct from the king's person, and are indeed only exceptions, in favor 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 claim for a debt shall be preferred before a claim of a subject.
Direct Prerogatives. These are divided into three kinds; being such as regard the king's royal character, 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 expenses of government, whereby the executive power is maintained in independence and vigor. Our free constitution has interposed restrictions, to prevent this prerogative from trampling on the liberties it was meant to secure.
Royal Dignity. In every monarchy, it is necessary to distinguish the prince from his subjects, not only by outward decoration, but by ascribing to him certain qualities, as inherent in his royal capacity, distinct from any other individual in the nation. He is presumed to possess certain attributes of a great and transcendent nature, by which the people are led to look upon him as a superior being.
1. His Sovereignty. He is said to have imperial dignity, and is styled basileus or imperator. His realm is termed an empire, and his crown imperial. He owes no subjection to any other earthly potentate. No suit or action, even in civil matters can be brought against the king, because no court can have jurisdiction over him. Authority to try would be in vain, without authority to redress; the sentence of a court would be contemptible, where it could not enforce execution, and who shall command the king? His person is sacred, even though his measures be tyrannical and arbitrary, for no jurisdiction can try him in a criminal manner, much less condemn him to punishment. If such a power were vested in any tribunal, domestic or foreign, there would soon be an end to the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative power.
Remedy for Tyranny. Yet the subjects of England are not without remedy, in case the crown should invade their rights, either by private injuries or public oppressions.
Remedies for Private Injuries. If any person has, in point of property, a just demand upon the king, he must petition him in a court of chancery, where the chancellor will administer right, as a matter of grace, though not upon compulsion. This is consonant with what is laid down by the writers on natural law. The end of such action is not to compel the prince to observe the contract, but to persuade him. Hence the case itself proceeds rather upon natural equity, than upon the municipal laws. And as to personal wrongs, says Locke, the harın which a hasty tempered sovereign can do in his own person, not being likely to happen often, nor to extend far, nor by his single strength being able to subvert the laws, nor oppress the body of the people, such inconveniences are well recompensed by the peace of the public, and security of the government.
Remedy for Public Oppression. The law has assigned a remedy, where the vitals of the constitution are not attacked. As the king cannot misuse his power, without the advice of evil counsellors, these men may be punished, by means of indictments and parliamentary impeachments, so that no man shall dare to assist the crown in opposition to the laws of the land. The king himself can do no wrong, is a maxim of law.
The King can do no Wrong. As to such public oppressions as tend to dissolve the constitution, the law will not suppose, as it will not distrust, those invested with any part of the supreme power, since such distrust would render the exercise of such power precarious. For wherein the law expresses its distrust of abuse of power, it always vests a superior coercive authority in some other hand to correct it, the very notion of which destroys the idea of sovereignty. The supposition of law therefore is, that neither the kiug, nor either house of parliament, collectively taken, is capable of doing any wrong, since in such cases, there would be no adequate remedy. If such wrong should ever happen, the exigencies of the times must provide new remedies.
Abdication. If therefore, any future prince should endeavor to subvert the constitution, by breaking the original contract between king and people, should violate the fundamental laws, aud should withdraw from the kingdom, this conjunction of circumstances, as in the case of James II, would amount to an abdication, and the throne would be thereby vacant.
II. His Absolute Perfection. The king can do nothing wrong. This means that whatever is exceptionable in the conduct of public affairs, is not to be imputed to the king, noris he answerable for it personally to the people. It also means, that the prerogative of the crown extends not to any injury; it is created for the good of the people, and therefore cannot be exerted to their prejudice.
Incapable of Wrong Intent. The king is not only incapable of doing wrong, but even of thinking wrong. In him there is neither folly nor weakness.
His Advisers Censured. And therefore, if the crown grant any franchise or privilege to a subject, contrary to reason, or prejudicial to the state, or to a private person, the law will not suppose the king meant injury, but declares the king was deceived in the grant, and thereupon such yrant is rendered void for deception, practiced upon him by his agents. The law will cast no imputation on him, whom it intrusts with the executive power, nor believe him capable of disregarding his trust. Both houses of parliament may, however, remonstrate against the acts, messages and speeches of royalty, censuring therefor the advisers of the administration, and treating the king with the utmost respect and deference.
No Laches Presumed. The law also determines, that in the king can be no negligence or laches, and therefore no delay will bar his right. Nullum tempus occurit regi is the maxim. Busied for the public good, he has not always leisure to assert his rights in the time limited.
No Attainder or Minority. In him there can be no corruption of blood, for if the heir to the crown were attainted of treason or felony, and afterwards the crown descended to him, this would purge the attaint ipso facto. Nor can a king, in judgment of law, as king, ever be a minor, and therefore his royal grants and asseats to acts of parliament are good, though he has not attained the age of twenty-one. When the heir apparent is very young, it has been usual to appoint a guardian or regent for a limited time, but in law, the king has no legal guardian.
III. His Perpetuity. The king never dies. Immediately upon the decease of the reigning prince, in his natural capacity, his imperial dignity, by act of law, without any inter-regnum, is vested at once in his heir, who is eo instanti, king to all interests and purposes. His natural dissolution is called a demise, not a death, an expression which merely signifies a transfer of property, and when we say the demise of the crown, we mean merely, that the kingdom is demised to his successor, and so the royal dignity becomes perpetual.
As Chief Magistrate. The executive part of the government is wisely placed in a single hand by the British constitution, for the sake of strength, unanimity and despatch. Were it placed in many hands, it would be subject to many wills, which would create weakness in the government. The king therefore is not only the chief, but the sole magistrate, all others acting by commission from, and in due subordination to him.
Powers of the King. While not advocating arbitrary power, we may lay it down as a principle, that in the exertion of lawful prerogative, the king is, and ought to be, absolute, or so far so, that there shall be no legal authority, that can either delay or resist him. He may reject bills, make treaties, coin money, create peers, pardon offences as he pleases, unless the constitution has expressly laid down some exception or boundary, declaring that his prerogative in such case had a defined limit. Otherwise the power of the crown would be but a name, insufficient for the ends of government, if where the jurisdiction is clearly established, any man was permitted to disobey it, in the ordinary course of law. Extraordinary recourse to first principles may be necessary, where the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression.
Civil Liberty. Civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society, which cannot be maintained 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. One class of people observing the absolute sovereignty of the crown, laid down most strongly in our law books, have denied, that any case can be excepted from so general and positive a rule, forgetting how impossible it is, in any practicable system of laws, to point out those eccentrical remedies, which the sudden emergency 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 gone to the other extreme, and because resistance is justifiable, when the being of the state is endangered, and the public voice justifies resistance, they have allowed to every individual the right of determining this, and of employing private force to resist even private oppression. The former are advocates of slavery, the latter demagogues of faction, with doctrines productive of anarchy.
Locke's Definition of Prerogative. “Prerogative,” says Locke, “consists in the discretionary power to act 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.”