ments which do not possess representative assemblies; and the legis lative acts of most of the other dependencies of the crown are therein approved or disallowed.

In admiralty causes, which arise out of the jurisdiction of this kingdom, and in matters of lunacy or idiocy, which are a special flower of the prerogative, an appeal lies to the sovereign in council; and from all the dominions of the crown, excepting Great Britain and Ireland, an appellate jurisdiction (in the last resort) is vested in the same tribunal. This judicial authority is vested in the judicial committee of the privy council, who hear the allegations and proofs, and make their report to the sovereign, by whom the judgment is finally given.

The power of the privy council is to inquire into all offences against the government, and to commit the offenders for trial. But their jurisdiction herein is only to inquire, and not to punish: and persons committed by them are entitled to their habeas corpus as much as if committed by an ordinary justice of the peace.

The dissolution of the privy council depends upon the royal pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. By the common law also it was dissolved ipso facto by the demise of the sovereign; but to prevent the inconvenience of having no council in being at the accession of a new prince, the privy council is enabled by statute to continue for six months after the demise of the crown, unless sooner determined by the successor.

CHAPTER VI.

OF THE SOVEREIGN'S DUTY.

To govern according to law; to execute judgment in mercy; and to maintain the established religion.

I PROCEED next to the duties incumbent on the sovereign by our constitution; the most important of which is to govern his people according to law. "The king," says Bracton, who wrote under Henry III., "ought not to be subject to man, but to God, and to the "law; for the law maketh the king. Let the king therefore render "to the law, what the law has vested in him with regard to others; “dominion and power: for he is not truly king, where will and "pleasure rules, and not the law." And again, "the king also hath "a superior, namely, God, and also the law, by which he was made a

"king." For "the laws of England (12 & 13 Will. III,, c. 2) are "the birthright of the people thereof; and all the kings and queens "who shall ascend the throne of this realm ought to administer the 'government of the same according to the said laws."

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The terms of what is sometimes called the original contract between king and people, are contained in the coronation oath, administered by one of the prelates, to every king or queen who succeeds to the crown of these realms, in the following terms:

"Will you solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same? The king or queen shall say: I solemnly promise so to do. Archbishop or bishop: Will you to your power cause law and justice, in mercy, to be executed in all your judgments? King or queen: I will. Archbishop or bishop: Will you to the utmost of your power maintain the laws of God, the true profession of the gospel, and the Protestant reformed religion established by the law? And will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them? King or queen: All this I promise to do. After this, the king or queen, laying his or her hand upon the Holy Gospels, shall say: The things which I have here before promised I will perform and keep: So help me God: and then shall kiss the book."

This is the form of the coronation oath, as it is now prescribed by our laws. But in what form soever it be conceived, this is most indisputably 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 sovereign 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 all. This reciprocal duty of the subject will be considered in its proper place. At present we are only to observe, that in the sovereign'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.

CHAPTER VII.

OF THE ROYAL PREROGATIVE.

Sovereignty-Cannot be sued-Perfection, the king can do no wrong-Perpetuity, the king never dies-Prerogative to send and receive ambassadors -To make peace and war-As generalissimo-As the fountain of justice— And of honour-And as head of the church.

ONE of the principal bulwarks of civil liberty, is the limitation of the sovereign'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 the original contract, which 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 further on our natural liberties, than is expedient for the maintenance of our civil.

By the word prerogative, then, we usually understand that special pre-eminence which the crown has, over and above all other persons, and out of the ordinary course of the common law, in right of the regal dignity. It signifies, in its etymology, something that is required or demanded before, or in preference to, all others, And hence it follows, that it can only be applied to those rights and capacities which the sovereign enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects.

Prerogatives are either direct or incidental. The direct are such positive parts of the royal authority, as spring from the sovereign's political person; as, the right of sending ambassadors, of creating peers, and of making war or peace. But such prerogatives as are incidental always bear a relation to something else, distinct from the person of the sovereign, 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 the sovereign can never be a joint-tenant; and that his debt shall be preferred before a debt to any of his subjects. These will better be understood when we come to consider the rules themselves to which they are exceptions. And therefore we will at present only dwell upon the sovereign's direct prerogatives.

These direct prerogatives may again be divided into three kinds : being such as regard, first, the royal character; secondly, the royal authority; and, lastly, the royal income. In the present chapter we shall only consider the two first of these divisions, which relate to the sovereign's political character and authority; or, in other words, his dignity and regal power; to which last the name of prerogative is frequently narrowed and confined. The other division, which forms the royal revenue, will require a distinct examination.

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. The law therefore ascribes to the king, in his high political character, certain attributes of a great and transcendant nature, by which the people are led to pay him that respect which may enable him with greater ease to carry on the business of government.

1. And, first, the law ascribes to the king the attribute of sovereignty or pre-eminence. He is said to have imperial dignity; and in charters before the Conquest is frequently styled basileus and imperator, the titles respectively assumed by the emperors of the East and West. His realm is said to be an empire, and his crown imperial. Hence it is, that no suit or action can be brought against the sovereign, even in civil matters, because no court can have jurisdiction over him. Who, says Finch, shall command the king? Hence it is, likewise, that the person of the sovereign 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 punish

ment.

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 crown, he must petition him in one of his courts of law, where his judges will administer right as a matter of grace, though not upon compulsion. 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 Locke, “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

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"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 the constitution are not attacked, the law has also assigned a remedy. For, as a sovereign 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.

2. Besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute perfection. The king can do no wrong. Which maxim is not to be understood as if everything transacted by the government was of course just and lawful, but means only two things. First, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the sovereign, nor is he answerable for it personally to his people. And, secondly, it means that the prerogative of the crown extends not to do any injury; it is created for the benefit of the people, and therefore cannot be exerted to their prejudice.

The sovereign, 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 induced to grant any privilege to a subject contrary to reason, or prejudicial to the commonwealth, or a private person, the law will not suppose the sovereign to have meant either an unwise or an injurious action, but declares that he 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.

In further pursuance of this principle, the law also determine. that on the part of the sovereign, there can be no negligence, of laches, and therefore no delay will bar his right. Nullum tempus occurrit regi has been the standing maxim upon all occasions: for the law intends that the king is always busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects. In the king also can be no stain or corruption of blood; for if the heir to the crown were attainted of treason or felony, and afterwards the crown should descend to him, this would