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Scotland, the other of the parliament of England: which enact; the former, that every king at his accession shall take and subscribe an oath, to preserve the protestant religion and presbyterian church government in Scotland; the latter, that at his coronation he shall take and subscribe a similar oath, to preserve the settlement of the church of England within England, Ireland, Wales, and Berwick, and the territories thereunto belonging.
CHAPTER THE SEVENTH.
OF THE KING'S PREROGATIVE.
It was observed in a former chapter ?, that one of the principal bulwarks of civil liberty, or (in other words) of the British constitution, was the limitation of the king's prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the people, on the one hand; or without, on the other, a violation of that original contract, which in all states impliedly, and in ours most expressly, subsists between the prince and the subject. It will now be our business to consider this prerogative minutely; to demonstrate its necessity in general ; and to mark out in the most important instances its particular extent and restrictions: from which considerations this conclusion will evidently follow that the powers, which are vested in the crown by the laws of England, are necessary for the support of society; and do not intrench any farther on our natural liberties, than is expedient for the maintenance of our civil.
THERE cannot be a stronger proof of that genuine freedom, which is the boast of this age and country, than the power of discussing and examining, with decency and respect, the limits of the king's prerogative. A topic, that in some former
ages was thought too delicate and sacred to be profaned by the pen of a subject. It was ranked among the arcana imperii : and, like the mysteries of the bona dea, was not suffered to be pried into by any but such as were initiated in its service : because perhaps the exertion of the one, like the solemnities 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 state b; and it was the constant language of this favorite princess and her ministers, that even that august assembly “ought not to deal, “ to judge, or to meddle with her majesty's prerogative " royal c.” And her successor, king James the first, who had imbibed high notions of the divinity of regal sway, 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 presumption and sedition in a subject to dispute “what a king may do in the height of his power: good
a Chap. 1. page 141.
christians, he adds, will be content with God's will, “ revealed in his word; and good subjects will rest in the “ king's will, revealed in his lawd.”
But, whatever might be the sentiments of some of our princes, this was never the language of our ancient constitution and laws. The limitation of the regal authority was a first and essential 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 Fortescue, at the distance of two centuries from each other. And sir Henry Finch, under Charles the first, after the lapse of two centuries 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 inju“ rious to the subject; for in them all it must be remem“ bered, that the king's prerogative stretcheth not to the “ doing of any wronge.” Nihil enim aliud potest rex, nisi id b D'ewes. 470.
d King James's works, 557, 531. e Ibich 645.
e Finch. L. 84, 85,
solum quod de jure potestf. And here it may be some satisfaction 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 expressed 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 esse “ sub lege, quia lex facit regem:" the imperial law will tell us, that, “ in omnibus, imperatoris excipitur fortuna ; cui “ ipsas leges Deus subjecit 8." We shall not long hesitate to which of them to give the preference, as most conducive to those ends for which societies were framed, and are kept together; especially as the Roman lawyers themselves seem to be sensible of the unreasonableness of their own constitution. “ Decet tamen principem,” says Paulus,“ servare leges, “ quibus ipse solutus esth.” This is at once laying down the principle of despotic power, and at the same time acknowledging its 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 signifies, in its etymo: logy, (from prae and rogo) something that is required or demanded before, or in preference to, all others. And hence it follows, that it must be in its nature singular 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 direc: are such positive substantial parts of the royal character and
f Bracton. I. 3. tr. 1. c. 9.
b FT. 3. 1, 23,
authority, as are rooted in and spring from the king's political 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 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 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 expenses of government; without all of which it is impossible to maintain the executive power in due independence and vigor. Yet, in every branch of this large and extensive dominion, our free constitution has interposed such seasonable 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 its proper counterpoise, timely and judiciously applied, its operations are then equable and certain, it invigorates the whole machine, and enables every part to answer the end of its construction.
In the present chapter we shall only consider the two first of these divisions, which relate to the king's political cha.