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 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 [*293] of the crown extends not to do any injury; it was created for the benefit of the people, and therefore cannot be exerted to their prejudice(d).

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 franchise or privilege to a subject contrary to reason, or in any wise prejudicial to the commonwealth, or to 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. 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) these little inadvertencies, which, if charged on the will of the prince, might lessen him in the eyes of his subjects.

may remon

strate.

Yet still, notwithstanding this personal perfection which the law attributes to the sovereign, the constitution has allowed a latitude of supposing the conBut parliament trary, in respect to both houses of parliament: each of which, in its turn, has exerted the right of remonstrating and complaining to the sovereign 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 [*294] addresses as personally proceeding from the prince, yet *among them

selves (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(e), 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(ƒ), 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."

In further pursuance of this principle, the law also determines that in the sovereign can be no negligence, or laches, and therefore no delay will bar his

(d) Plowd. 487.

(e) Com. Journ. 18 Nov. 1685.

(ƒ) Com. Journ. 4 Dec. 1717.

Sovereign.

right. Nullum tempus occurrit regi has (with certain exceptions(g)) been the standing maxim: for the law intends that the king is always busied for No laches can be the public good, and therefore has not leisure to assert his right imputed to the within the times limited to subjects(h).(80) 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 (i). 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(k) *informs us, it was agreed that the assumption of the [ *295] 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(). By a statute indeed, 28 Hen. 8, c. 17, power was given to future kings to rescind and revoke all acts of parliament made while they were under the age of twenty-four: but this was repealed by the statute 1 Edw. 6, c. 11, so far as related to that prince; and both statutes are declared to be determined by 24 Geo. 2, c. 24. It has also been usually thought prudent when the heir apparent has been very young, to appoint a protector, guardian, or regent, for a limited time: but the very necessity of such extraordinary provision is sufficient to demonstrate the truth of the maxim of the common law, that in the king is no minority: he has therefore no legal guardian(m).

(g) of which the more important will be noticed as opportunity offers in the course of these Commentaries. See also Broom's Leg. Max. 4th ed. pp. 66-69.

(h) Finch. L. 82; Co. Litt. 90. (i) Finch. L. 82.

(k) Hist. Henry VII. (ed. 1825), iii. p. 119. (b) Co. Litt. 43; 2 Inst. pref. 3. (m) The methods of appointing this guardian or regent have been so various, and the duration of his power so uncertain, that from hence alone it may be collected that his office is unknown to the common law; and therefore (as sir Edward Coke says, 4 Inst. 58) the surest way is to have him made by authority of the great council in parliament. The earl of Pembroke, by his own authority, assumed in very troublesome times the regency of Henry III., who was then only nine years old; but was declared of full age by the pope at seventeen, confirmed the great charter at eighteen, and took upon him the ad

ministration of the government at twenty. A guardian and council of regency were named for Edward III. by the parliament, which deposed his father; the young king being then fifteen, and not assuming the government till three years after. When Richard II. succeeded at the age of eleven, the duke of Lancaster took upon him the management of the kingdom, till the parliament met, which appointed a nominal council to assist him. Henry V. on his death-bed named a regent and a guardian for his infant son Henry VI., then nine months old; but the parliament altered his disposition, and appointed a protector and council, with a special limited authority. Both these last-named princes remained in a state of pupilage till the age of twenty-three. Edward V. at the age of thirteen was recommended by his father to the care of the duke of Gloucester; who was declared protector by the privy council. The statutes 25 Hen. 8, c. 12, and 28 Hen. 8, c. 7,

(80) In the United States the principle is settled that the government is not bound by the statute of limitations unless it is expressly so provided in the statute. Lindsey v. Miller, 6 Pet. 666; People v. Gilbert, 18 Johns. 228; Kemp v. Commonwealth, 1 Hen. &. M. 85; Har din v. Taylor, 4 T. B. Monr. 516; Johnston v. Irvin, 3 S. & R. 291; United States v. White, 2 Hill, 59; People v. Arnold, 4 N. Y. (4 Comst.) 508.

But where the government takes the claim by assignment from an individual, it will be taken subject to such defenses as would be available against any other assignee. United States v. Buford, 3 Pet. 12, 30; United States v. White, 2 Hill, 59. The statute will run. against municipal corporations of an inferior character. Pella v. Scholte, 24 Iowa, 288; Cincinnati v. First Presb. Church, 8 Ohio (Ham.), 298; Armstrong v. Dalton, 4 Dev. 566; Cincinnati v. Evans, 5 Ohio St. 594.

VOL. I.-25

[ *296]

*III. A third attribute of regal majesty is perpetuity. The law ascribes to the sovereign, in his political capacity, an absolute immortality. Rex nunquam moritur, "The king never dies." Henry, (III.) Perpetuity. Edward, or George may die; but the king survives them all. For immediately upon the decease of the reigning prince in his natural capacity, his kingship or imperial dignity by act of law, without any interregnum or interval, is vested at once in his heir; who is, eo instante, king to all intents and purposes. And so tender is the law of supposing even a possibility of his *death, that his natural dissolution is generally called his "demise;" [*297] demissio regis, vel corona; an expression which signifies merely a transfer of property; for, as observed in Plowden(n), when we say the demise. of the crown, we mean only that, in consequence of the disunion of the king's natural body from his body politic, the kingdom is transferred or demised to his successor; and so the royal dignity remains perpetual. Thus, too, when Edward IV., in the tenth year of his reign, was driven from his throne for a few months by the house of Lancaster, this temporary transfer of his dignity was denominated his "demise;" and all process was held to be discontinued, as upon a natural death of the king(0).(81)

Secondly, we are to consider those branches of the royal prerogative, which invest our sovereign, thus all-perfect and immortal in his monarchical capacity,

provided that the successor, if a male and under eighteen, or if a female and under sixteen, should be till such age in the government of his or her natural mother (if approved by the king), and such other counsellors as his majesty should by will or otherwise appoint: and he accordingly appointed his sixteen executors to have the government of his son Edward VI., and the kingdom, which executors elected the earl of Hertford protector. The statute 24 Geo. 2, c. 24, in case the crown should descend to any of the children of Frederick late prince of Wales under the age of eighteen, appointed the princess dowager-and the statute 5 Geo. 3, c. 27, in case of a like descent to any of George III.'s children, empowered him to name either the queen, the princess dowager, or any descendant of king George II. residing in this kingdom-to be guardian and regent till the successor attained such age of eighteen years, assisted by a council of regency; the powers of them all being expressly defined and set down in the several acts. Further, on the alienation

of mind of George III., his son, the prince of
Wales (afterwards George IV.), was declared
regent by statute 51 Geo. 3, c. 1, but with
certain restrictions, which in the following
year were removed by 52 Geo. 3, c. 8. (See
the debates on these statutes, Parl. Deb.
vols. 18, 20, and on the Regency Bill of 1789,
Parl. Hist. vol. 27.) By the 1 Will. 4, c. 2,
the late Duchess of Kent was appointed the
guardian of her daughter (her present Ma-
jesty), until she attained the age of eighteen
years; and it was also declared that the
duchess should be the regent during the
queen's minority; but her Majesty having
attained the age of eighteen before the death
of William IV., no regency took place. (See
also 1 & 2 Vict. c. 24.) Lastly, by 3 & 4 Vict.
c. 52, his late royal highness prince Albert
was appointed guardian of any issue of
queen Victoria becoming king or queen of
these realms, and regent so long as such
king or queen should remain under the age
of eighteen years.

(n) Com. 177, 234.
(0) M. 49 Hen. 6, pl. 1-8.

(81) "In case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president, and the congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected." U. S. Const., art. 2, § 1.

"In case of removal, death, resignation or inability, both of the president and vice-president of the United States, the president of the senate pro tempore, and in case there shall be no president of the senate, then the speaker of the house of representatives, for the time being, shall act as president of the United States until the disability be removed, or a president shall be elected." Act of Congress, March 1, 1792, 1 Stat. at Large, 239, ch. 8, § 9.

The royal au thority and power.

with a number of authorities and powers; in the exercise whereof consists the executive part of government. This is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength, and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government; and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. The Sovereign of England is therefore not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him: in like manner, as upon the great revolution of the Roman state, all the powers of the ancient magistracy of the commonwealth were concentrated in the new emperor: so that, as Gravina(p) expresses it, "in ejus unius persond veteris reipublicæ vis atque majestas per cumulatas magistratuum potestates exprimebatur."

[* 298]

*After what has been premised in this chapter, I shall not (I trust) be considered as an advocate for arbitrary power, when I lay it down In the exercise as a principle, that, in the exercise of lawful prerogative, the sovof lawful preereign is and ought to be absolute; that is, so far absolute, that rogative, the Sovereign is there is no legal authority which can either delay or resist him. absolute. He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences he pleases, may in short discharge any functions vested exclusively in him as sovereign; unless where the constitution has expressly, or by evident consequence, laid down some exception or boundary declaring, that thus far the prerogative shall go, and no farther. For otherwise the power of the crown would indeed be but a name and a shadow, insufficient for the ends of government, if, where its jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: I say, in the ordinary course of law; for I do not now speak of those extraordinary recourses to first principles, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression. And yet the want of attending to so obvious a distinction has occasioned these doctrines, of absolute power in the prince and of national resistance by the people, to be much misunderstood and perverted, by the advocates for slavery on the one hand, and the demagogues of faction on the other. The former observing the absolute sovereignty and transcendent dominion of the crown laid down (as it certainly is) most strongly and emphatically in some of our law books, as well as in our homilies, have denied that any case can be excepted from so general and positive a rule, forgetting how impossible it is, in any practical system of laws, to point out beforehand those eccentrical remedies, which the sudden emergence of national distress may dictate, and which that alone can justify. On the other hand, over-zealous *republicans, feeling [* 299] the absurdity of unlimited passive obedience, have fancifully (or sometimes factiously) gone over to the other extreme: and, because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to resist even private oppression. A doctrine produc

(p) Orig. 1, s. 103.

tive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itself. For civil liberty, rightly understood, can exist only where the rights of individuals are protected by the united force of society: society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power: and obedience is an empty name, if every individual has a right to decide how far he himself shall obey.

In the exercise therefore of those prerogatives, which the law has given him, the sovereign is irresistible and absolute, according to the forms of the constitution. And yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call his advisers to a just and severe account. For prerogative consisting (as Mr. Locke(g) has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent; if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner. Thus the sovereign may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet when such treaties have been judged pernicious, impeachments have pursued those ministers, by whose agency or advice they were concluded.

The royal power in foreign affairs.

The prerogatives of the crown (in the sense under which we are now consid[* 300] ering them) respect either this nation's *intercourse with foreign nations, or its own domestic government and civil polity. With regard to foreign concerns, the sovereign is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another authority and community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. In the sovereign therefore, as in a centre, all the rays of his people are united, and form by that union a consistency, splendour, and power, making him feared and respected by foreign potentates; who might scruple to enter into an engagement which must afterwards need to be revised and ratified by a popular assembly. What is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the sovereign's concurrence, is the act only of private men. And so far is this point carried by our law, that it has been held(r), that should all the subjects of England make war with a king in league with the king of England, without the royal assent, such war is no breach of the league. Also, by the statute 2 Hen. 5, c. 6, a subject committing acts of hostility upon any nation in league with the king was declared to be guilty of high treason: and though that act was repealed by statute 20 Hen. 6, c. 11, so far as relates to the making this offence high treason, yet still it remains a very great offence against the law of nations, and punishable by our laws.

I. The sovereign, therefore, considered as the representative of his people, has the sole power of sending ambassadors to foreign states, and receiving ambassadors at home(s). This may lead us into a short digression, by way of inquiry, how far the municipal

(I.) In sending

and receiving [301]

ambassadors.

(4) On Gov. pt. 2, s. 166. (r) 4 Inst. 152.

In connection with the proposition stated in the text, see the statute 11 & 12 Vict. c.

108, entitled" An act for enabling her Majesty to establish and maintain diplomatic relations with the sovereign of the Roman states."