effects would be at the disposal of the Archbishop of Canterbury, as ordinary, who should direct them to be sold; but Henry 5, instead of allowing the effects to be sold, took to them, and agreed to pay their apI praised value. This is the whole that appears on the Rolls of Parliament: and thence it clearly appears, that subjects were the executors— subjects alone were interested in the effects bequeathed; and, lastly, that the successor to the Crown voluntarily took to them, and paid their appraised value. But except this recital in the Parliament Rolls 400 years ago, when the matter was, probably, neither controverted, nor even much considered, not the slightest trace is to be found, of any allusion to, much less of any exercise of, this Court's jurisdiction over the wills of departed Sovereigns.

The only will of a Sovereign deposited in the registry of this Court (for wills of Queens Consort are wills of subjects) is the will of King Henry 8; and that, as I understand, is not the original, but merely a copy; and from the appearance of this copy there is no trace of any probate of the will having ever been taken. Whether this document was deposited here for safe custody, and as a place of notoriety for such a purpose, or for what else, does not appear.

The statute of the 24th of Henry 8, c. 12, however, has been cited, as conferring upon the Court a jurisdiction in this respect. The object of that statute was to prohibit appeals to Rome; and the statute itself serves to show, that the reigning Sovereign, at the period of the Reformation at least, became the supreme head of the church-the supreme ordinary of the country. But how it tends to establish, that he became at that time personally subject to the ordinary jurisdiction of the Archbishop, whatever might have been attempted in times of papal usurpation, is certainly not very obvious.

For the last 300 years, and, indeed, from all antecedent time, there is no instance of any Sovereign taking probate in the Archbishop's Court, or of any Sovereign's will having been proved there. Yet if it be true, that by the constitution Sovereigns have always had a right to make wills (and it appears, by the Rolls of Parliament, that in the 16th year of King Richard the Second, "the Bishops, Lords, and Commons, assented in full Parliament, that the King, his heirs and successors, might lawfully make their testaments;" Vide 4 Inst. 335,) and if it is thence to be presumed that Sovereigns, in many instances, have exercised that right (in which, or to what extent in fact, need not, at present, be inquired, but some instances have been referred to, and one so late as George 1, Vide Annual Register, 1772, p. 188;) and if, yet, no instance is to be found of a probate issuing from this Court, nor of any will since the copy of that of Henry 8, being even deposited here; it does furnish pretty decisive evidence, to my judgment, that this Court, in such a case, has no jurisdiction whatever. What might be the case, if the will of a deceased Sovereign raised a question merely, and exclusively, between subject and subject, the Court is not, at present, required to decide.

But suppose no royal wills to have been made from Henry the Eighth's time to the present, but that all the intermediate Sovereigns have died intestate, still the inference, in respect to this jurisdiction, is the same. Of the effects of all other persons dying intestate, the Ordinary grants administration. Before the statutes of administration, the Ordinary granted it to whom he pleased: under the statute of 21 Hen

ry 8, c. 5, it was to the widow or next of kin: and by the statute of distribution (22 & 23 Charles 2. c. 10), that administrator became a trustee to dispose of, and distribute the property in the manner therein prescribed. Of a Sovereign who dies intestate, the successor is exclusively entitled to the personal property; but in order to have legal authority to collect and recover that property, there is no instance of any such successor coming into this Court (as all other persons must do) for letters of administration-for the authority of the Ordinary to invest him with the legal character of administrator. Nothing of the sort has ever taken place: and, indeed, it would be against all principle, and contrary to all analogy, that it should. Now the total absence of any exercise of such a jurisdiction by this Court on the death of a Sovereign in cases either of testacy or intestacy, is pretty strong evidence, to my mind, that no such a jurisdiction exists.

The testamentary Courts of the two Archbishops, in their respective provinces, are styled Prerogative Courts, from the prerogative of each Archbishop to grant probates, and administrations, where there are bona notabilia; but still these are only inferior and subordinate jurisdictions; and the style of these Courts has no connexion with the royal prerogative. Derivatively, indeed, these Courts are the King's Ecclesiastical Courts; the Sovereign being the fountain of all justice, as well as the supreme head of the church; yet, immediately, they are only the Courts of the Ecclesiastical Ordinary. The Ordinary, and not the Crown, appoints the Judges of these Courts; they are subject to the restraint and control of the King's Courts of Chancery and Common Law, in case they exceed their jurisdiction; and they are subject, in some instances, to the commands of those Courts, if they decline to exercise their jurisdiction, when by law they ought to exercise it.

That this Court should, therefore, now for the first time presume to entertain a suit for so delicate and high a purpose as that of deciding on the validity of the will of the late Sovereign, under any circumstances, and in any form, would require much consideration in point of law. But this is by no means the only, or the greatest, difficulty, which the present application has to surmount.

It is (as has been already stated), in substance, not merely a proceeding to try the validity of the will of his late Majesty, but a proceeding against the reigning Sovereign—a demand upon his Majesty, which is to be enforced, adversely, against him. That a process of the nature prayed could not issue directly against the Sovereign himself seems to be, admitted, by praying it, in form, against the King's proctor. It would be quite a novelty in constitutional law to implead the Sovereign personally. These Courts are not presumed to be the best acquainted with the rights and prerogatives of the Crown: in regard to such matters we must look diffidently and respectfully to other authorities; but there seems no principle in the constitution more distinctly laid down by common law writers than that the Sovereign cannot be personally impleaded. Mr. Justice Blackstone, in the first volume of his Commentaries, speaks of the "great and transcendant attributes" which the law ascribes to the King; and first he notices the attribute of sovereignty. "He is said," says the learned commentator, "(a) to have imperial dignity; and in charters before the Conquest is frequently styled basileus

(a) 1 Bl. Com. 242, &c.

and imperator." "His realm is declared to be an empire, and his crown imperial, by many acts of parliament, which at the same time declare the King to be the supreme head of the realm in matters both civil and ecclesiastical." "Hence it is," he adds, "that no suit or action can be brought against the King even in civil matters, because no Court can have jurisdiction over him. For all jurisdiction implies superiority of power: authority to try would be vain and idle without authority to redress; and the sentence of a Court would be contemptible, unless that Court had power to command the execution of it; but who, says Finch, (L. 83,) shall command the King?"

"Are then, it may be asked, the subjects of England totally destitute 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 must petition him in his Court of Chancery, where his Chancellor will administer right as a matter of grace, though not upon compulsion."

"Besides the attribute of sovereignty, the law also ascribes to the King, in his political capacity, absolute perfection. The King can do no wrong."

"The King, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing; in him is no folly or weakness; and, therefore, if the Crown should be inclined to grant any franchise or privilege to a subject contrary to reason, or in any wise prejudicial to the commonwealth or a private person, the law will not suppose the King to have meant either an unwise or 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 trusts with the executive power, as if he was capable of intentionally disregarding his trust, but attributes to mere imposition (to which the most perfect of sublunary beings must still continue liable) those little inadvertencies, which, if charged on the will of the Prince, might lessen him in the eyes of his subjects."

Again, speaking of the King as the foundation of justice, this author says, "A consequence of his prerogative is the legal ubiquity of the King. His Majesty, in the eye of the law, is always present in all his Courts, though he cannot personally distribute justice." "And from this ubiquity it follows, that the King can never be nonsuit; for a nonsuit is a desertion of the suit or action by the non-appearance of the plaintiff in Court. For the same reason also, in the forms of legal proceedings, the King is not said to appear by his attorney as other men do; for, in contemplation of law, he is always present in Court."

Again, in the third volume, speaking more in detail of the modes of proceeding to obtain property from the Sovereign, Mr. Justice Blackstone says, 3 Bl. Com. 256, &c. "The common law methods of obtaining possession or restitution from the Crown of either real or personal property, are, 1. By petition de droit, or petition of right, which is said to owe its original to Edward the First; 2. By monstrans de droit, manifestation or plea of right; both of which may be preferred or prosecuted either in the Chancery or Exchequer."

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This Court is not sufficiently acquainted with the proceedings of other Courts to say whether this mode of proceeding is the proper remedy, if the right here set up exists. All that this Court presumes to decide is, whether the remedy can be obtained here in the mode prayed; it is not necessary for me to decide whether any and what remedy can be obtained elsewhere.

Now to proceed by this sort of process against the King himself; to cite him personally; to put him in contempt; to do certain acts in pain of his contumacy-was too extravagant even to be attempted; and therefore the citation is prayed against the King's proctor.

But here, again, exactly the same difficulty occurs, both in principle and practice. Either the King's proctor does, or does not, represent the Sovereign. If, virtute officii, he represents his Majesty, he has the same privileges; nor can he be put in contempt, and proceeded against in pœnam. If he does not officially, quoad hoc, and so as to be binding upon, represent, the Sovereign, this process is nugatory. It may be sufficient to add, that the King, as has been said, does not appear by his attorney; and that no instance or precedent exists of making the King's proctor a defendant, so as to bind a Sovereign in a matter touching his personal rights. The present King's proctor has, by his warrant of appointment, the same, but no greater, powers given him than those exercised by his predecessors. He is a mere law agent of his Majesty to watch the interests of the Crown, and to assert them, when so directed, either by originating proceedings, or by intervening when suits have been brought by others; but it does not follow that the Court can compel him to be a defendant; can put him in contempt, and proceed in pain of his contumacy. So the King may be a voluntary plaintiff in other Courts; he is the public prosecutor; criminal suits are conducted in his name; and his attorney-general may originate other proceedings. But it clearly does not result, as we have just seen, that because he may be voluntarily plaintiff, he can be made a defendant by compulsion, in other Courts.

The case of the King's proctor appearing for the Crown, to assert its right to the property of illegitimate persons dying unmarried and intestate, which has been referred to in the argument, is the very opposite of the present. There he asserts a right on the part of the Crown; here he is to be made a defendant to resist a claim set up against it. And even, in that case, the King's proctor cannot proceed, officially, without a warrant under the sign manual, countersigned by three Lords of the Treasury; and then only on behalf of a nomince appointed in that warrant. And this, by the way, is conformable and analogous to what Lord Coke states in his 4th Institute, 335, that "when the King is made an executor of the will of another, the King doth appoint certain persons to take execution of the will upon them (against whom such as have cause of suit may bring their action), and appointeth others to take the accounts. But in no case is the King's proctor ex officio competent, much less compellable, to have suits brought against him, and to be impleaded, so as to bind the Sovereign.

The notice served on the King's proctor in cases of proceedings by creditors to obtain an administration where a person is dead, intestate, without known relations, has also been mentioned in the argument. But that is a mere notice, and not at all for the purpose of proceeding in pœnam, so as to bind, or affect the right of, the Crown. It is quite modern practice, too, very lately directed by the Court ex cautela to

guard against surprise and oversight; for, although, in law, the King's proctor is at all times present in Court, still a notice, in fact, is preferable, lest a creditor, perhaps, to a trifling amount, should, under an assertion of there being no relations, obtain possession of, possibly, a large property: and the notice which the Court expects to be given to the King's proctor, in these cases, is to preserve the rights of the crown in the event of no relations appearing; and for the benefit of those relations, if afterwards any should appear. So different, therefore, is that from the present proceeding, that it furnishes no analogy to warrant it. This is directly a demand against the Sovereign of property, in the contemplation of the law, already in possession of the Sovereign.

It has been said that the statute 39 & 40 Geo. 3. c. 88, having given, or at least regulated the Sovereign's right to dispose of his property by will, must afford the means of giving effect to his disposition. But such a general deduction is not sufficient, in point of law, to give a new jurisdiction to this Court, which it never before exercised, of proceeding against the reigning Sovereign. That could only be done by clear and express enactment. What inconsistency is there in supposing that the legislature, though it declared and regulated the Sovereign's right of testacy, chose to leave the mode of proceeding respecting his will where it stood before? Why, is it to be supposed that the legislature meant, in future, to submit the reigning successor to the authority of an ordinary jurisdiction, to which no Sovereign had ever before been subjected, and which would be a departure from, and violation of the principles of, the constitutional prerogatives of the Crown? It was said that it would be a mockery to recognize the power of one Sovereign to make a will, and yet to leave a power in his successor to defeat its operation; and so it would be, if the successor could be supposed capable of exercising any power of that sort. It would be in some degree presumptuous, and almost disrespectful, for the Court to express its full conviction of the impossibility of his Majesty, personally, entertaining the slightest disposition to exercise any such power of defeasance. The Sovereign can have no personal wish on this subject but that of doing justice. The law itself, indeed, does not permit the contrary to be even suspected. The King can do no wrong; he cannot, constitutionally, be supposed capable of injustice. If properly applied to in the forms prescribed by law and the constitution, no doubt ought to exist that real justice will be done. What the real justice of the case may be, this Court, in my judgment, has not the authority to decide; and being of that opinion, the Court holds itself bound by law to reject the present application.

HOBSON v. BLACKBURN and BLACKBURN.-p. 274.

(On the Admission of an Allegation.)

Mutual, or conjoint, wills (80 styled), irrevocable by either of the (supposed) testators, unknown to the testamentary law of this country; what effect soever may be given to such instruments in equity.-An allegation, propounding an instrument of this species, rejected; and a separate will of the same deceased, of a later date, in effect pronounced for.

MARTHA HOBSON, Susannah Hobson, and Joshua Hobson, sisters and