Preparation

tive.

them in water mixed with a few drops of oil of tartar per deliquium.

Dr Christ. Jac. Trew prefers the rectified spirit of Preroga- grain for preserving anatomical preparations to spirit of wine, or to compositions of alcohol, amber, camphor, &c. because these soon change into a brown colour, whereas the spirit from malt preserves its limpid apWhen any part is to be preserved wet, wash pearance. it with water till it is no more tinctured. The water is next to be washed away with spirits, and then the preparation is to be put among spirits in a glass, the mouth of which is to be closely covered with a glass head, over which a wet bladder and leaf-tin are to be tied. Com. Lit. Norimb. 1731, semest. 1. specim. 9. See also Pole's Anatomical Instructor, and American Transactions, vol. ii. p. 366.

PREPENSED, in Law, denotes fore-thought. In which sense we say prepensed malice, &c. If, when a man is slain upon a sudden quarrel, there were malice prepensed formerly between them, it makes it murder; and, as it is called in some statutes, prepensed murther.

PREPOSITION, in Grammar, one of the parts of speech, being an indeclinable particle which yet serves to govern the nouns that follow it; such as per, pro, propter and through, for, with, &c.

F. Buffier allows it to be only a modificative of a part of speech, serving to circumstantiate a noun.

PREPUCE, in Anatomy, the foreskin, being a prolongation of the cutis of the penis, covering the glans. See PENIS, ANATOMY Index.

PREROGATIVE, an exclusive or peculiar privi

lege.

Royal PREROGATIVE, 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 pra 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 prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer. And therefore Finch 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, and spring from, the king's political person, considered merely by itself, without reference to any other extrinsic circumstance; as, the right of sending ambassadors, 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 anly 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.

come.

tive.

These substantive or direct prerogatives may again Prerogabe divided into three kinds being such as regard, first, the king's royal character or dignity; secondly, his royal authority or power; and, lastly, his royal inThese are necessary, to secure reverence to his person, obedience to his commands, and an affluent supply for the ordinary expences of government; with out all of which it is impossible to maintain the executive power in due independence and vigour. Yet, in every branch of this large and extensive dominion, our free constitution has interposed such seasonable 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 havock and destruction among all the inferior movements: but, when balanced and bridled (as with us) by its proper counterpoise, timely and judiciously applied, its operations are then equable and regular; it invigorates the whole machine, and enables every part to answer the end of its construction.

I. 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 (says Sir William Blackstone) 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 we understand by the royal dignity; the several branches of which we shall now proceed to enumerate.

1. And, first, the law ascribes to the king the attribute of sovereignty, or pre-eminency. See SOVEREIGN

TY.

2. "The law also (according to Sir William Blackstone) ascribes to the king, in his political capacity, absolute perfection. The king can do no wrong.' Which ancient and fundamental maxim (says he) 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

tive.

tive.

sider the royal person merely as one man appointed Preroga by mutual consent to preside over 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; and therefore the law ascribes to the king, in his high political character, 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 case to carry on the business of government.' So that, in order to govern with greater ease (which by the bye is mere assertion without any proof), it is necessary to deceive the mass of mankind, by making them believe not only what a philosophical mind cannot believe, but what it is impossible for any mind to believe; and therefore, in the investigation of this subject, according to Sir William, neither nature, reason, nor common sense, can have any concern.

Preroga prejudice." The king, moreover, (he observes), 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 anywise 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 entrusts 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."

But this doctrine has been exposed as ridiculous and absurd, by Lord Abingdon, in his Dedication to the collective Body of the People of England. "Let us see (says he) how these maxims and their comments agree with the constitution, with nature, with reason, with common sense, with experience, with fact, with precedent, and with Sir William Blackstone himself; and whether by the application of these rules of evidence thereto, it will not be found, that (from the want of attention to that important line of distinction which the constitution has drawn between the king of England and the crown of England) what was attributed to the monarchy has not been given to the monarch, what meant for the kingship conveyed to the king, what designed for the thing transferred to the person, what intended for theory applied to practice; and so in consequence, that whilst the premises (of the perfection of the monarchy) be true, the conclusion (that the king can do no wrong) be not false.

"And, first, in reference to the constitution: to which if this matter be applied (meaning what it expresses, and if it do not it is unworthy of notice), it is subversive of a principle in the constitution, upon which the preservation of the constitution depends; I mean the principle of resistance; a principle which, whilst no man will now venture to gainsay, Sir William Blackstone himself admits, is justifiable to the person of the prince; when the being of the state is endangered, and the public voice proclaims such resistance necessary;' and thus, by such admission, both disproves the maxim, and oversets his own comment thereupon; for to say that the king can do no wrong,' and that he is incapable even of thinking wrong,' and then to admit that resistance to his person is justifiable,' are such jarring contradictions in themselves, that, until reconciled, the necessity of argument is suspended.

"With respect then, in the next place, to the agreement of this maxim, and its comment, with nature, with reason, and with common sense, I should have thought myself sufficiently justified in appealing to every man's own reflection for decision, if I had not been made to understand that nature, reason, and common sense, had had nothing to do with either. Sir William Black-stone says, 'That though a philosophical mind will con

2

"It remains to examine in how much this maxim and its comment agree with experience, with fact, with precedent, and with Sir William Blackstone himself. And here it is matter of most curious speculation, to observe a maxim laid down, and which is intendod for a rule of government, not only without a single case in support of it, but with a string of cases, that may be carried back to Egbert the first monarch of England, in direct opposition to the doctrine. Who is the man, that, reading the past history of this country, will show us any king that has done no wrong? Who is the reader that will not find that all the wrongs and injuries which the free constitution of this country has hitherto suffered, have been solely derived from the arbitrary measures of our kings? And yet the mass of mankind are to look upon the king as a superior being; and the maxim, that the king can do no wrong,' is to remain as an article of belief. But, without pushing this inquiry any farther, let us see what encouragement Sir William Blackstone himself has given for our credulity. Af ter stating the maxim, and presenting us with a most lively picture, of our sovereign lord thus all perfect and immortal,' what does he make this all-perfection and immortality in the end to come to? His words are these: For when King Charles's deluded brother attempted to enslave the nation,' (no wrong this, to be sure), he found it was beyond his power: the people both could, and did, resist him; and in consequence of such resistance, obliged him to quit his enterprise and his throne together *."

6

Comment

vol. iv.

The sum of all is this: That the crown of England and the king of England are distinguishable, and not p. 433synonymous terms: that allegiance is due to the crown, and through the crown to the king: that the attributes of the crown are sovereignty, perfection, and perpetuity; but that it does not therefore follow that the king can do no wrong. It is indeed to be admitted, that in high respect for the crown, high respect is also due to the wearer of that crown; that is, to the king: but the crown is to be preferred to the king, for the first veneration is due to the constitution. It is likewise to be supposed that the king will do no wrong and as, to prevent this, a privy council is appointed by the constitution to assist the king in the execution of the government; so if any wrong be done, these men, as Montesquieu

rity; and therefore he hath no legal guardian. See RE- Preroga

Preroga. Montesquieu expresses it, may be examined and punished (A).'

tive.

Blackst.

"But if any future king shall think to screen these evil counsellors from the just vengeance of the people, by becoming his own minister; and in so doing, shall take for his sanction the attribute of perfection, shall trust to the deception of his being a superior being, and cloak himself under the maxim that the king can do no wrong; I say, in such a case, let the appeal already made to the constitution, to nature, to reason, to common sense, to experience, to fact, to precedent, and to Sir William Blackstone himself, suffice; and preclude the necessity of any further remarks from me (B)."

To proceed now to other particulars: The law determines, that in the king can be no negligence or LACHES ; and therefore no delay will bar his right. Nullum tempus occurrit regi, is the standing maxim upon all occasions for the law intends that the king is albusied for the public good, and therefore has not ways leisure to assert his right within the times limited to subjects. In the king also can be no stain or corruption Comment. 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. 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 21. 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 24: 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 protector, guardian, or regent, for a limited time but the very necessity of such extraordinary provision is sufficient to demonstrate the truth of that maxim of common law, that in the king is no mino

GENT.

3. A third attribute of the king's majesty is his perpetuity. The law ascribes to him, in his political capacity, an absolute immortality. The king never dies. Henry, 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 co instanti, 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; dimissio regis vel corona: an expression which signifies merely a transfer of property; for, as is observed in Plowden, when we say the demise of the crown, we mean only, that, in consequence of the disunion of the king's body-natural 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 bis dignity was denominated his demise; and all process was held to be discontinued, as upon a natural death of the king.

II. We are next to consider those branches of the royal prerogative which invest this our sovereign lord with a number of authorities and powers; in the exertion 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 despatch. 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 king 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 in the Roman state, all the powers of the ancient magistracy of the commonwealth were concentered in the new emperor; so that, as Gravina expresses it, in ejus unius persona veteris rei publicæ vis atque majestas per cumulatas magistratuum potestates exprimebatur.

VOL. XVII. Part I.

PP

In

tive

Prerogative.

Blackst.

impeachments have pursued those ministers by whose Preroga agency or advice they were concluded.

In the exertion of lawful prerogative the king is held to be absolute; that is, so far absolute, that there is no legal authority that can either delay or resist him. He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences, he pleases: unless where the constitution hath 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, Comment. any man or body of men were permitted to disobey it, in the ordinary course of law: we do not now speak of those extraordinary recourses to the 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 this obvious 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 our law-books as well as 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 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 productive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itself. For civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of soeiety 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 exertion, therefore, of those prerogatives which the law has given him, the king 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 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 king may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet, when such treaties have been judged pernicious,

The prerogatives of the crown (in the sense under which we are now considering them) respect either this nation's intercourse with foreign nations, or its own domestic government and civil polity.

With regard to foreign concerns, the king 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 community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. In the king, therefore, as in a centre, all the rays of his people are united, and form by that union a consistency, splendour, and power, that make him feared and respected by foreign potentates; who would scruple to enter into any engagement, that must afterwards 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 king's concurrence, is the act only of private men. And so far is this point carried by our law, that it hath been held, 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. And, by the statute 2 Hen. V. c. 6. any 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 the statute 20 Hen. VI. c. II. 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, either capitally or otherwise, according to the circumstances of the

case.

1. The king, therefore, considered as the representative of his people, has the sole power of sending ambassadors to foreign states, and receiving ambassadors at home.

2. It is also the king's prerogative to make treaties, leagues, and alliances, with foreign states and princes. For it is, by the law of nations, essential to the goodness of a league, that it be made by the sovereign power; and then it is binding upon the whole community: and in Britain the sovereign power, quoad hoc, is vested in the person of the king. Whatever contracts, therefore, he engages in, no other power in the kingdom can legally delay, resist, or annul. And yet, lest this plenitude of authority should be abused to the detriment of the public, the constitution (as was hinted before) bath here interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as from criminal motives advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation.

3. Upon the same principle the king has also the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power: and this right is given up, not only by individuals, but even by the entire body of people that are under the dominion of a sovereign. It would indeed be extremely improper,

tive.

tive.

tive.

are driven on the coasts by necessity, or by any cause Preroga-that deserves pity or compassion. Great tenderness is shown by our laws, not only to foreigners in distress (see WRICK), but with regard also to the admission of strangers who come spontaneously: for so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the king's protection; though liable to be sent home whenever the king sees occasion. But no subject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon the high seas, or send his goods and merchandise from one place to another, without danger of being seized by our subjects, unless he has letters of safe-conduct; which, by divers ancient statutes, must be granted under the king's great seal anđ inrolled in chancery, or else they are of no effect; the king being supposed the best judge of such emergencies, as may deserve exception from the general law of arms. But passports under the king's sign manual, or licenses from his ambassadors abroad, are now more usually obs tained, and are allowed to be of equal validity.

Preroga improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. Whatever hostilities, therefore, may be committed by private citizens, the state ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt. And the reason which is given by Grotius, why, according to the law of nations, a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be put upon his guard (which is matter rather of magnanimity than right), but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. So that, in order to make a war completely effectual, it is necessary with us in Britain that it be publicly declared and duly proclaimed by the king's authority; and then, all parts of both the contending nations, from the highest to the lowest, are bound by it. And whereever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. And the same check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the crown from a wanton or injurious exertion of this great prerogative.

4. But, as the delay of making war may sometimes be detrimental to individuals who have suffered by depredations from foreign potentates, our laws have in some respects armed the subject with powers to impel the prerogative; by directing the ministers of the crown to issue letters of marque and reprisal upon due demand: the prerogative of granting which is nearly related to, and plainly derived from, that other of making war; this being indeed only an incomplete state of hostilities, and generally ending in a formal denunciation of war. These letters are grantable, by the law of nations, whenever the subjects of one state are oppressed and injured by those of another, and justice is denied by that state to which the oppressor belongs. In this case, letters of marque and reprisal (words in themselves synonymous, and signifying a taking in return) may be obtained, in order to seize the bodies or goods of the subjects of the offending state, until satisfaction be made, wherever they bappen to be found. And indeed this custom of reprisals seems dictated by nature herself; for which reason we find in the most ancient times very notable instances of it. But here the necessity is obvious of calling in the sovereign power, to determine when reprisals may be made; else every private sufferer would be a judge in his own cause. In pursuance of which principle, it is with us declared by the statute 4 Hen. V. c. 7. that if any subjects of the realm are oppressed in time of truce by any foreigners, the king will grant marque in due form to all that feel themselves grieved. See MARQUE. 5. Upon exactly the same reason stands the prerogative of granting safe-conducts; without which, by the law of nations, no member of one society has a right to intrude into another. And therefore Puffendorf very justly resolves, that it is left in the power of all states to take such measures about the admission of strangers as they think convenient; those being ever excepted who

These are the principal prerogatives of the king respecting this nation's intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people. But in domestic affairs, he is considered in a great variety of characters, and from thence there arises an abundant number of other prerogatives.

1. He is a constituent part of the supreme legislative power; and, as such, has the prerogative of rejecting such provisions in parliament as he judges improper to be passed. The expediency of which constitution has before been evinced at large under the article PARLIAMENT. We shall only farther remark, that the king is not bound by any act of parliament, unless he be named therein by special and particular words. The most general words that can be devised (any person or persons, bodies politic, or corporate, &c.) affect not him in the least, if they may tend to restrain or diminish any of his rights or interests. For it would be of most mischievous consequence to the public, if the strength of the executive power were liable to be curtailed, without its own express consent, by constructions and implications of the subject. Yet, where an act of parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown, it is said to be binding as well upon the king as upon the subject: and, likewise, the king may take the benefit of any particular act, though he be not especially named.

2. The king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community; and the principal use of government is to direct that united strength in the best and most effectual manner, to answer the end proposed. Monarchical government is allowed to be the fittest of for this purany pose it follows therefore, from the very end of its institution, that in a monarchy the military power must be trusted in the hands of the prince.

In this capacity, therefore, of general of the kingdom, the king has the sole power of raising and regulating fleets and armies. The manner in which they are raised and regulated is explained under the article Mi

Ppa

BITARY