ative 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 direct are such positive substantial parts of the royal character and *authority, as are rooted in [*240] 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 prerogative 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 con

stitution, 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

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

(1) L. 1. c. 8. (n) See also 24 Geo. II. c. 24. 5 Geo. III. c. 27. (0) 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 (8) 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.

a new settlement of the crown. And so far as this precedent leads, and no further, we may now be allowed to lay down the law of redress against public oppression. If, therefore, any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant. But it is not for us to say that any one, or two, of these ingredients would amount to such a situation; for there our precedent would fail us. In these, therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent, though latent, powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish.

*II. Besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute perfection. The king can do no [*246] wrong; which ancient and fundamental maxim is not to be understood, as if every thing 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 king, nor is he answerable for it personally to his people: for this doctrine would totally destroy that constitutional independence of the crown, which is necessary for the balance of power in our free and active, and therefore compounded, constitution. 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. (u) (3)

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 induced 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 an 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 intrusts 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. (4)

*Yet still, notwithstanding this personal perfection, which the law attributes to the sovereign, the constitution has allowed a latitude of [*247]

(u) Plowd. 487.

(3) Mr. Christian says that "perhaps this means that, although the king is subject to the passions and infirmities of other men, the constitution has prescribed no mode by which he can be made personally amenable for any wrong which he may actually commit. The law will therefore presume no wrong where it has provided no remedy." But the constitution has provided a remedy by impeachment of the king's advisers; and it therefore assumes that the executive authority can be guilty of wrong, though it holds not the nominal head of the government, but the persons who for the time being wield the political power, responsible therefor. See Todd, Parl. Gov. Vol. 1, p. 40. Jeremy Bentham says that our author in this chapter "in speaking of the royal authority, has given himself up to all the puerility of fiction," Principles of Legislation. In the United States the president himself may be impeached. Const. art. 2, § 4. (4) This presumption of correct motives on the part of a co-ordinate department of the government is extended to the action of the legislature, and the courts will not permit the validity of legislation to be questioned, on the ground that it was obtained by corruption in the legislative body. Baltimore v. State, 15 Md. 376; People v. Draper, 15 N. Y. 545; Johnson v. Higgins, 3 Met. Ky. 566; Sunbury and Erie R. R. Co. v. Cooper, 33 Penn. St. 278; Ex parte Newman, 9 Cal. 502.

supposing the contrary, in respect to both houses of parliament, each of which in its turn, hath exerted the right of remonstrating and complaining to the king even of those acts of royalty, which are most properly and personally his own; such as messages signed by himself, and speeches delivered from the throne. And yet, such is the reverence which is paid to the royal person, that though the two houses have an undoubted right to consider these acts of state in any light whatever, and accordingly treat them in their addresses as personally proceeding from the prince, yet among themselves, (to preserve the more perfect decency, and for the greater freedom of debate) they usually suppose them to flow from the advice of the administration. But the privilege of canvassing thus freely the personal acts of the sovereign (either directly, or even through the medium of his reputed advisers) belongs to no individual, but is confined to those august assemblies; and there too the objections must be proposed with the utmost respect and deference. One member was sent to the Tower (v) for suggesting that his majesty's answer to the address of the commons contained "high words to fright the members out of their duty;" and another, (w) for saying that a part of the king's speech "seemed rather to be calculated for the meridian of Germany than Great Britain, and that the king was a stranger to our language and constitution." (5)

In farther pursuance of this principle, the law also determines that in the king can be no negligence or laches, and therefore no delay will bar his right. Nullum tempus occurrit regi has been the standing maxim upon all occasions; (6) 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 sub

[*248] jects. (y) 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 purge the attainder ipso facto. (z) And therefore when Henry VII, who, as earl of Richmond, stood attainted, came to the crown, it was not thought necessary to pass an act of parliament to reverse this attainder; because, as Lord Bacon, in his history of that prince, informs us, it was agreed that the assumption of the crown had at once purged all attainders. Neither can the king in judgment of law, as king, ever be a minor or under age; and therefore his royal grants and assents to acts of parliament are good, though he has not in his natural capacity attained the legal age of twenty-one. (a) By a statute, indeed, 28 Hen. VIII, c. 17, power was given to future kings to rescind and revoke all acts of parliament that should be made while they were under the age of twenty-four; but this was repealed by the statute 1 Edw. VI, c. 11, so far as related to that prince; and both statutes are declared to be determined by 24 Geo. II, c. 24. It hath also been usually thought prudent, when the heir apparent has been very young, to appoint a pro

(v) Com. Journ. 18 Nov. 1685. (2) Finch, L. 82.

(w) Ibid. 4 Dec. 1717. (a) Co. Litt. 43. 2 Inst. proem. 3.

(y) Finch, L. 82; Co. Litt. 90.

(5) Of late, however, freedom to discuss the speech from the throne is practically conceded, and it is difficult to perceive why it should not be, when, in a constitutional view, it is to be regarded as the speech of the ministry.

(6) There are many exceptions to this maxim. The right to institute criminal proceedings is in many cases limited to a definite period by statute, and in the case of a claim to real property, the right of the crown is also limited by statute to the same period as that of a subject.

The maxim has been recognized in the United States, and it is held that statutes of limitations do not run against the state, nor against the United States, unless it is expressly so provided. Kemp v. Commonwealth, 1 Hen. and M. 88; People v. Gilbert, 18 Johns. 228; Hardin v. Taylor, 4 Monr. 516; Lindsay v. Miller's lessee, 6 Pet. 666; U. S. v. White, 2 Hill, 59; Johnston v. Irwin, 3 S. and R. 291; Madison Co. v. Bartlett, 1 Scam. 70; State Bank v. Brown, ibid. 106; People v. Arnold, 4 N. Y. 503. Where, however, the state is assignee of an individual, it can claim no such exemption: U. S. v. Buford, 3 Pet. 30; and inferior municipal bodies cannot claim it. Armstrong v. Dalton, 4 Dev. 566; Contra, Madison Co. v. Bartlett, 1 Scam. 70. Except where they are simply trustees for the whole public, as in the case of lands dedicated to public Alton v. Illinois Transp. Co., 12 Ill. 38.

uses.