This is the form of the coronation oath, as is now prescribed by our laws; the principal articles of which appear to be at least as ancient as the mirror of justices, (f) and even as the time of Bracton: (g) but the wording of it was changed at the revolution, because (as the statute alleges) the oath itself *had been framed in doubtful words and expressions, with relation to [*236] ancient laws and constitutions at this time unknown. (h) However, in what form soever it be conceived, this is most undisputably a fundamental and original express contract, though doubtless the duty of protection is impliedly as much incumbent on the sovereign before coronation as after: in the same manner as allegiance to the king becomes the duty of the subject immediately on the descent of the crown, before he has taken the oath of allegiance, or whether he ever takes it at all. This reciprocal duty of the subject will be considered in its proper place. At present we are only to observe, that in the king's part of this original contract are expressed all the duties that a monarch can owe to his people, viz: to govern according to law; to execute judgment in mercy; and to maintain the established religion. And, with respect to the latter of these three branches, we may further remark, that by the act of union, 5 Ann. c. 8, two preceding statutes are recited and confirmed; the one of the parliament of 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 VII.

OF THE KING'S PREROGATIVE.

It was observed in a former chapter, (a) 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. (1)

(f) Cap. 1, § 2.

(g) L. 3 tr. 1, c. 9.

(h) In the old folio abridgment of the statutes printed by Lettou and Machlinia in the reign of Edward IV, (penes me,) there is preserved a copy of the old coronation oath; which, as the book is extremely scarce, I will here transcribe: Ceo est le serement que le roy jurre a soun coronement: que il gardera et meintenera lez droitez et lez franchises de seynt esglise grauntes aunciement dez droitez roys Christiens d'Engletere, et quil gardera toutez sez terrez honoures et dignitees droiturelx et franks del coron du roialme d'Engletere en touť maner dentierte sanz null maner damenusement, et lez droitez disperges dilapidez ou perduz de la corone a soun poiair reappeller en launsien estate, el quil gardera le peas de seynt esglise et al clergie et al people de bon accorde, et quil face faire en toutez sez jugmentez owel et droit justice oue discrecion et miskricorde, et quil grauntera a tenure lez leyes et custumez du roialm, et a soun poiair lez face garder et affirmer que lez gentez du people avont faitez, et esliez, et lez malveys leyz et custumes de tout oustera, et ferme peas et establie al people de soun roilme en ceo garde esgardera a soun poiair come Dieu luy aide. (Tit. sacramentum regis. fol. m. i. j) Prynne has also given us a copy of the coronation oaths of Richard II. (Signal Loyalty, ii. 246 ;) Edward VI. (ibid. 251;) James I. and Charles I. (ibid. 269.) (a) Chap. 1, page 141.

(1) [The splendor, rights, and powers of the crown, were attached to it for the benefit of the people, and not for the private gratification of the sovereign. They are therefore to be

one,

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 [*238] 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 favourite 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 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 law." (d)

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 injurious to the subject; for in them all it must be remembered, that the king's prerogative stretcheth not to the doing of any wrong." (e) Nihil enim aliud potest rex, nisi id solum quod *de jure potest. (f) And here it may be some satisfaction to remark, how widely the civil *239] [ 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." (g) 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 est." (h) 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 etymology (from præ 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 prerog-.

(b) Dewes, 479. (c) Ibid. 645. (f) Bracton, l. 3, tr. 1, c. 9.

guarded on account of the public; they are not to be extended further than the laws and constitution of the country have allowed them; but within these bounds they are entitled to every protection. Lord Kenyon, 4 T. R. 410; and see also Lord Hardwicke's observations in 3 Atk. 171.]

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ative of the crown could be be prerogative any longer. that the prerogative is that the subject. Prerogatives are either direct or incidental. The direct are such positive

held in common with the subject, it would cease to And therefore Finch (i) lays it down as a maxim, law in case of the king, which is law in no case of

[*240] substantial parts of the royal character and *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 favour 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 reasonable 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 judicially 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 character and authority; or, in other [*241] words, his dignity and regal power; to which last the name of pre

rogative is frequently narrowed and confined. The other division, which forms. the royal revenue, will require a distinct examination; according to the known distribution of feudal writers, who distinguish the royal prerogatives into the majora and minora regalia, in the latter of which classes the rights of the revenue are ranked. For to use their own words, "majora regalia imperii præeminentiam spectant; minora vero ab commodum pecuniarium immediate attinent; et hæc proprie fiscalia sunt, et ad jus fisci pertinent." (k)

First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects, not only by the outward pomp and decorations of majesty, but also by ascribing to him certain qualities, as inherent in his royal capacity, distinct from and superior to those of any other individual in the nation, For though a philosophical mind will consider the royal person merely as one man appointed by mutual consent to preside over many others, and will pay him that reverence and duty which the principles of society demand; yet the mass of mankind will be apt to grow insolent and refractory, if taught to consider their prince as a man of no greater perfection than themselves. The law therefore ascribes to the king, in his high political character, not only large powers and emoluments, which form his prerogative and revenue, but likewise certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater

ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine. I. And, first, the law ascribes to the king the attribute of sovereignty, or preeminence. "Rex_est vicarius," says Bracton, (1) "et minister Dei in terra: omnis quidem sub eo est, et ipse sub nullo, nisi tantum sub Deo." He is said to have imperial dignity; and in charters before the con[*242] quest is frequently styled basileus and imperator, the titles respectively assumed by the emperors of the east and west. (m) His realm is declared to be an empire, and his crown imperial, by many acts of parliament, particularly the statutes 24 Hen. VIII, c. 12, and 25 Hen. VIII, c. 28; (n) which at the same time declare the king to be the supreme head of the realm in matters both civil and ecclesiastical, and of consequence inferior to no man upon earth, dependent on no man, accountable to no man. Formerly there prevailed a ridiculous notion, propagated by the German and Italian civilians, that an emperor could do many things which a king could not, (as the creation of notaries and the like,) and that all kings were in some degree subordinate and subject to the emperor of Germany or Rome. The meaning, therefore, of the legislature, when it uses these terms of empire and imperial, and applies them to the realm and crown of England, is only to assert that our king is equally sovereign and independent within these his dominions, as any emperor is in his empire; (0) and owes no kind of subjection to any other potentate upon earth. Hence it is, 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 an 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, (p) shall command the king? Hence it is likewise, that by law the person of the king is sacred, even though the measures pursued in his reign be completely tyrannical and arbitrary: for no jurisdiction upon earth has power to try him in a criminal way; much less to condemn him to punishment. If any foreign jurisdiction had this power, as was formerly claimed by the pope, the independence of the kingdom would be no more; and, if such a power were vested in any domestic *tribunal, there would soon be an end of the constitution, by destroying the free agency of one of the constituent parts [*243] of the sovereign legislative power.

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 oppression? 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. (g) (2) And this is entirely consonant to what is laid down by the writers on natural law. "A subject," says Puffendorf, (r) "so long as he con

(1) L. 1. c. 8.

(m) Seld. Tit. of Hon. I. 2.

(n) See also 24 Geo. II. c. 24. 5 Geo. III. c. 27. (o) Rex allegavit, quod ipse omnes libertates haberet in regno suo, quas imperator vindicabat in imperio. (M. Paris, A. D. 1095. (p) Finch, L. 83. (q) Finch, L. 255. See b. III. c. 17. (r) Law of N. and N. b. 8, c. 10.

(2) A government is not liable to be sued in its own courts except by its own consent. U. S. v. Peters, 5 Cranch, 139; Osborn v. Bk. of U. S. 9 Wheat. 738; 9 How. 386. But in the American states, generally, provision is made by law for such suits, except where some state board of auditors or other like tribunal is created for the hearing and adjustment of claims against the public. And the federal government has created a court of claims for the express purpose of trying rights asserted by individuals against the nation.

An agent of the government, known to be acting in that capacity, and not expressly making himself liable by personal contract, is not answerable for articles furnished on his order, but the seller must look to the government. Macheath v. Haldimand, 1 T. R., 172; Jones v. Le Tombe, 3 Dall. 384; Gill v. Brown, 12 Johns. 385; Randall v. Van Vechten, 19 Johns. 63; Brown v. Austin, 1 Mass. 208; Adams v. Whittlesey, 3 Conn. 560; Ghent v. Adams, 2 Kelly, 214; Parks v. Ross, 11 How. 362.

tinues a subject, hath no way to oblige his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws." For the end of such action is not to compel the prince to observe the contract, but to persuade him And, as to personal wrongs; it is well observed by Mr. Locke, (s) "the harm which the sovereign can do in his own person not being likely to happen often, nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the body of the people, (should any prince have so much weakness and ill-nature as to endeavour to do it)-the inconveniency therefore of some particular mischiefs, that may happen sometimes, when a heady prince comes to the throne, are well recompensed by the peace of the public and security of the government, in the person of the chief magistrate, being thus set out of the reach of danger."

*Next, as to cases of ordinary public oppression, where the vitals of [*244] the constitution are not attacked, the law hath also assigned a remedy. For as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. The constitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. But it is at the same time a maxim in those laws, that the king himself can do no wrong: since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress.

For, as to such public oppressions as tend to dissolve the constitution, and subvert the fundamentals of government, they are cases, which the law will not, out of decency, suppose: being incapable of distrusting those whom it has invested with any part of the supreme power; since such distrust would render the exercise of that power precarious and impracticable. (t) For, wherever 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. If therefore, for example, the two houses of parliament, or either of them, had avowedly a right to animadvert on the king, or each other, or if the king had a right to animadvert on either of the houses, that branch of the legislature, so subject to animadversion, would instantly cease to be a part of the supreme power; the balance of the constitution would be overturned; and that branch or branches, in which this jurisdiction resided, would be completely sovereign. The supposition of law therefore is, that neither the king nor either house of parliament, collectively taken, is capable of doing any wrong; since in such cases the law feels itself incapable of furnishing [*245] any adequate *remedy. For which reason all oppressions which may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any stated rule or express legal provision; but, if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies.

Indeed, it is found by experience, that whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides, and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it. And therefore, though the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature and reason prevailed. When King James the Second invaded the fundamental constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced

(s) On Gov. p. 2, § 205.

(t) See these points more fully discussed in the Considerations of the Law of Forfeiture, 3d edit. page 109 -126, wherein the very learned author has thrown many new and important lights on the texture of our happy constitution.