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CHAPTER I.

THE ENGLISH KINGDOM.

The Saxon King and the Norman King.-The King subject to the Law.-Bracton, Fortescue, and Onslow, on the English Kingdom.-"The King can do no wrong." -The Kingdom "by the Grace of God," of the Stuarts.-In Disfavour under George I. and George II.-Titles of the King.-Prerogative.-George III.— The King of England not a Great Elector.-Loyal Feeling towards George IV. Towards Queen Victoria.-The Miraculous Cures of the English Kings.Oath of Allegiance.-Duties of the Subject.-The Actual King.-The Lawful King.

THE Saxon king was the chief of a free confederation, and as such bore the title of "Basileus of Britain, king of all its nations, the monarch of Albion."* The crown was hereditary only upon condition of the successor being of full age, and competent for the office. Alfred based his right to govern on his father's will, on the contract with his brother Ethelred, and the consent of the people; excluding the sons of his elder brother from succession to the throne.

William the Conqueror asserted that he had taken possession of England as rightful successor, by virtue of a pretended grant from the Saxon king, thereby expressly recognizing the public law of the Saxons, although his rule was, in fact, the merest negation of such law. The formula of the charters, and proclamations of William I., commencing "Statuimus, volumus, præcipimus," or, "Præcipio, prohibeo," indicate that the king alone exercised the right of legislation. But the absolute monarchy, de facto, but never de jure, breaks down when the strong-handed sovereigns disappear, and the barons have to choose between usurpers and pretenders.

In the conception of English jurists, dating from the Plantagenet period, the king is limited in his acts by the law and its representatives. Bracton says-"The king must be under the law, for the law maketh the king. Let him render to the law what the

* Tallam, Middle Ages, i. 108

law hath invested him with, viz., dominion and power; for there is no true king where will and pleasure rule, and not the law. The king, as God's servant, can do nothing but what comes to him through the law.* Bracton accordingly contends, as against the principle of the Byzantine law, that the prince is bound by he laws, and asserts that the king of England is not only limited by the abstract law, but also by its living representatives at the court of counts and barons, for they are, therefore, only called comites,' because they are the companions of the king, and whosoever has a companion has one who restrains him, and if the king were without check, that is, without law, one should place a check upon him."+

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In the year books, 19 Hen. VI. c. 63, it is said:-"La ley est le plus beau inhéritance que le Roy 'ad; car par la ley il même et toute ses sujets sont rulés et si la ley ne fuit, nul roi, et nul inhéritance sera." Fortescue describes to his pupil the Prince of Wales, son of Henry VI., the features of a monarchy regulated by law :

"A king of England cannot, at his pleasure, make any alterations in the laws of the land, for the nature of his government is not only regal, but political; had it been merely regal, he would have a power to make what innovations and alterations he pleased in the laws of the kingdom, impose tallages§ and other hardships upon the people, whether they would or no, without their consent, which sort of government the civil laws point out when they declare quod principi placuit, legis habet vigorem.' But it is much otherwise with the king whose government is political, because he can neither make any alteration or change in the laws of the realm without the consent of the subject, nor burthen them against their wills with strange impositions, so that a people governed by such laws as are made by their own consent and approbation, enjoy their properties securely, and without the hazard of being deprived of them either by the king or by any other. St. Thomas, in the book which he wrote to the king

* Lib. i. c. 8.

C. ii. c. 16. An old poem of 1258, in the time of the Mad Parliament runs thus: "Adquid vult libera lex reges arctari? Nec possint adultera lege maculari. Et hæc coarctatio non est servitutis Sed est ampliatio regiæ virtutis."

† Bl. i. 234.

§ Tallagium is a general word, including all subsidies, taxes, tenths, fifteenths, impositions, or other burthens or charges. Coke.

of Cyprus, 'De regimine Principum,' wishes that a kingdom could be so instituted as that the king might not be at liberty to tyrannize over his people, which only comes to pass in the present case, that is, when the sovereign power is restrained by political laws. Rejoice, therefore, my good prince, that such is the law of that kingdom to which you are to inherit, because it will afford, both to yourself and subjects the greatest security and satisfaction."*

Under the Tudors, in like manner, an absolute monarchy was not recognized by the nation. The speaker, Onslow, says in 1556" According to our common law, many privileges and dignities are secured to the governor, yet is it forbidden by the law that the king should take money or other things, and do what to him seemeth good. He must rather allow his subjects to enjoy their fortune without arbitrary oppression, whereas elsewhere princes have the liberty to take whatever pleaseth them."

On these principles alone is based the legal dictum, "the king can do no wrong; ' which does not anywise represent that the person of the king is so sacred as that he cannot do wrong in any way, but it means simply that the law has so placed the king of England that he is not in a position to do wrong. The judicious Hooker, in his Ecclesiastical Polity, written in the reign of Elizabeth, says, "Lex facit regem;" the king's grant of any favour made contrary to the law is void. "Rex nihil potest nisi quod jure potest." The true meaning of the maxim- "The king can do no wrong," is, therefore, to be taken in a prohibitive sense. It pronounces, in a very civil form, the principle that the king is so hindered by the law that it is impossible to him to do wrong. Whosoever, therefore, obeys the king in contravention of law, affording thereby occasion to violate this principle, is punishable.‡ No decisions bearing upon punishments for common criminal offences committed by any king are to be met with in the books, English jurists contending that the case of a sovereign being guilty of a common crime is to be treated as the laws of Solon treated parricide-it must be regarded as not being possible.§ The Stuarts endeavoured to introduce into England the

*Amos' Fortescue, 26, 27. +. Rem. iv. 199.

Eoage 186.

§1... 33. Lord Cote says: "It is assumed that the kg (as the source

of law) treasures up all law in the shrine of his breast (Presamitur rez habere omnia juva in scrinio pectoris sui). In like maurer all franchises proceed from the king."

Byzantine conceptions of a kingly authority which was above the law. "As it is atheism and blasphemy in a creature," says James I., "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 Christians will be contented with God's will revealed in his word, and good subjects will rest in the king's will revealed in his law."* The consequences of such theory were a twofold revolution, and the downfall of the Stuarts. As the two Pretenders claimed the throne "by the grace of God," whosoever during the reign of the first two Georges contended for the theory of a "kingdom by the grace of God," as had been the fashion under the Stuarts, incurred disfavour. Blackstone, the embodiment of the dominant legal expression of that period, says, "The kingdom which is established by God may suit the children of Israel, but it is unknown to the laws and customs of England."+ A conception of a king who, according as circumstances prompted, may merge the rights of his subjects, who are to rest satisfied with his "responsibility before God," is consequently most un-English. The kingdom "by the grace of God" is accordingly to be apprehended in the sense of Bracton's and Fortescue's meaning,-that God, as the stronghold of all law, compels the sovereign likewise to act according to the law. Under the ministry of Lord John Russell, the words, "by the grace of God," disappeared from the florin, which gave rise to much offence, and the old pious formula had to be again introduced.†

The title of the king has undergone frequent change. William I. and Henry I. styled themselves "Rex Anglorum;" Henry II. "Rex Angliæ, Dux Normanniæ." Under Henry VIII. the crown became "Imperial," the realm was styled "Empire," in order to indicate the plenitude and authority of kingly power as sundered from the supremacy of a foreign sovereign. Henry styles himself Henry VIII., by the grace of God, King of England, France, and Ireland, Defender of the Faith, and of the Church of England, and also Ireland, in earth the supreme head."

The 35 Henry VIII. c. 3 declares it high treason to deprive

King James' Works, 557, 531.

Bl. i. 211.

The Commons of "the Rump" grounded their revolutionary power and their judgment of Charies I. on "the grace of God" (Journals ii. iii., 4th Jan

uary, 1649):-"That the people are, under God, the original of all just power; that the Commons of England, in parliament assembled, being chosen by, and representing the people, have the supreme power in this nation."

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