right. Nullum tempus occurrit regi has been the standing maxim upon all occasions (7); 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 (y). In the king also can be no stain or [*248] 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and revoke all acts of parliament that should be made while they were under the age of twenty-four; but this was repealed by the statute 1 Edw.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 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 the common law, that in the king is no minority; and therefore he hath no legal guardian (b).

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

(a) Co. Litt. 43. 2 Inst. proem. 3.

(b) 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 Hen. 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 administration 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 af

(7) This rule is now subject to various exceptions, both at common law and by statute. See Thomas's Co. Lit. 1 vol. 74, note 16. After fifty-five years' possession a grant from the crown may be presumed, unless a statute has prohibited such a grant. Goodtitle v. Baldwin. East. 488.

In civil actions relating to landed property, by the 9 Geo. III. c. 16. the king like a subject is limited to sixty years. See 3 Book, 307.* This maxim applies also to criminal prosecutions, which are brought in the name of the king, and therefore by the common law

*The occasion of this statute related to Inglewood Forest, to which the crown in 1779 set up against the duke of Portland, the then proprietor, a title long unasserted. Much discussion took place at the time, and opinion,

ter. 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. Hen. 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 princes remained in a state of pupilage till the age of twentythree. 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. VIII. c. 12, and 28 Hen. VIII. c. 7, 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 apthere is no limitation in treasons, felonies, or misdemesnors. 2 Campb. 227. 7 East, 199. By the 7 W. III. c. 7. an indictment for treason, except for an attempt to assassinate the king, must be found within three years after the commission of the treasonable act. 4 Book, 351. But where the legislature has fixed no limit, nullum tempus occurrit regi holds true: thus a man may be convicted of murder at any distance of time within his life after the commission of the crime. This maxim remains still in force in Ireland. 1 Ld. Mountm. 365.

both in and out of parliament, was against the application of the maxim. I need not add that the proceeding against the duke originated in party feeling.

*III. A third attribute of the king's majesty is his perpetuity. The [249] 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, eo 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; demissio regis, vel coronae: an expression which signifies merely a transfer of property; for, as is observed in Plowden (c), 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 politie, the kingdom is transferred or demised to his successor; and so the royal dignity remains perpetual. Thus, too, when Edward the fourth, 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 (d).

*We are next to consider those branches of the royal preroga- [*250] tive, which invest thus our sovereign lord, thus all-perfect and immortal in his kingly capacity, 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 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 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 concentrated in the new emperor: so that, as Gravina (e) expresses it, "in ejus unius persona veteris reipublicae vis atque majestas per cumulatas magistratuum potestates exprimebatur."

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 as a principle, that in the exertion of lawful prerogative the king is and ought 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 point; and he accordingly appointed his sixteen executors to have the government of his son Edw. VI., and the kingdom, which executors elected the earl of Hertford protector. The statute 24 Geo. II. 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 that of 5 Geo. III. c. 27, in case of a like descent to any of his present majesty's children, empowers the king to name either the queen,

A late occasion demanded a regency. Mental aberration incapacitated his late majesty from fulfilling the executive functions. On the part of his present majesty, then prince of Wales, the right to assume the regency, independently of the authority of the two houses, was vehemently urged and insisted upon by the whigs; they were met by the tories, who asserted the right of the two houses to

the princess dowager, or any descendant of King George II. residing in this kingdom; to be guardian and regent, till the successor attains such age, assisted by a council of regency; the powers of them all being expressly defined and set down in the several acts.*

(c) Plowd. 177, 234.

(d) M. 49 Hen. VI. pl. 1-8.
(e) Orig. 1, 103.

interfere; and, most justly prevailing, the prince was about to become regent, invested with powers short of royal, but the king's then recovery ended the question at this time. A second more recent occasion unhappily presented itself, and, under li mitations framed by the two houses, his present majesty became regent, and so continued until tho demise of the crown.

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, 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 [*251] I do not *now speak of those extraordinary resources 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 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 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 exertion, therefore, of those prerogatives which the law has given, 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 [*252] his advisers *to a just and severe account. For prerogative consisting (as Mr. Locke (f) 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, impeachments have pursued those ministers, by whose agency or advice they were concluded. 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

(f) On Gov. 2, ◊ 166.

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, splendor, and power, that make him feared and respected by foreign potentates; who wonld 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 (g), 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. 11, so far as *relates to the making this offence high treason, yet [*253] 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.

I. 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. This may lead us into a short digression, by way of inquiry, how far the municipal laws of England intermeddle with or protect the rights of these messengers from one potentate to another, whom we call ambassadors.

The rights, the powers, the duties, and the privileges of ambassadors are determined by the law of nature and nations, and not by any municipal constitutions. For, as they represent the persons of their respective masters, who owe no subjection to any laws but those of their own country, their actions are not subject to the control of the private law of that state wherein they are appointed to reside. He that is subject to the coercion of laws is necessarily dependent on that power by whom those laws were made but an ambassador ought to be independent of every power except that by which he is sent, and of consequence ought not to be subject to the mere municipal laws of that nation wherein he is to exercise his functions. If he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master (h); who is bound either to do justice upon him, or avow himself the accomplice of his crimes (i). But there is great dispute among the writers on the laws of nations, whether this exemption of ambassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are mala prohibita, as coining, and not to those that are mala in se, as murder (k). Our law seems to have formerly taken in the restriction, as well as the general exemption. *For it has been held, both by our common lawyers [*254] and civilians (1), that an ambassador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of reason and nature, he shall lose his privilege (m); and that therefore, if

(g) 4 Inst. 152.

(A) As was done with Count Gyllenberg the Swedish minister to Great Britain, A. D. 1716. (1) Sp. L. 26, 21.

(k) Van Leeuwen in Ff. 50, 7, 17. Barbeyrao's VOL. I.

29

Puff. 1. 8, c. 9, 9, and 17. Van Bynkershoek de
foro legator, c. 17, 18, 19.

(1) 1 Roll. Rep. 175. 3 Bulstr. 27.
(m) 4 Inst. 153.

an ambassador conspires the death of the king in whose land he is, he may be condemned and executed for treason; but if he commits any other species of treason, it is otherwise, and he must be sent to his own kingdom (n). And these positions seem to be built upon good appearance of reason. For since, as we have formerly shewn, all municipal laws act in subordination to the primary law of nature, and, where they annex a punishment to natural crimes, are only declaratory of, and auxiliary to, that law; therefore to this natural universal rule of justice, ambassadors, as well as other men, are subject in all countries; and of consequence it is reasonable that, wherever they transgress it, there they shall be liable to make atonement (o). But, however these principles might formerly obtain, the general practice of this country, as well as of the rest of Europe, seems now to pursue the sentiments of the learned Grotius, that the security of ambassadors is of more importance than the punishment of a particular crime (p). And therefore few, if any, examples have happened within a century past, where an ambassador has been punished for any offence, however atrocious in its nature (8).

In respect to civil suits, all the foreign jurists agree that neither an ambassador, or any of his train or comites, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. Yet Sir Edward Coke maintains that, if an ambassador make a contract which is good jure gentium, he shall answer for it here (q). But the truth is, so few cases (if any) had arisen, wherein the privilege was either claimed

or disputed, even with regard to civil suits, that our law-books [*255] are (in general) quite silent upon it previous to the *reign of Queen Anne; when an ambassador from Peter the great, czar of Muscovy, was actually arrested and taken out of his coach in London (r), for a debt of fifty pounds which he had there contracted. Instead of ap

(n) 1 Roll. Rep. 185.

(0) Forster's Reports, 188.

(p) Securitas legatorum utilitati quae ex poena est praeponderat. (De jure b. & p. 18, 4, 4.)

(8) In the year 1654, during the protectorate of Cromwell, Don Pataleon Sa, the brother of the Portuguese ambassador, who had been joined with him in the same commission, was tried, convicted, and executed, for an atrocious murder. Lord Hale, 1 P. C. 99, approves of the proceeding; and Mr. J. Foster, p. 188, though a modern writer of law, lays it down, that for murder and other offences of great enormity, which are against the light of nature and the fundamental laws of all society, ambassadors are certainly liable to answer in the ordinary course of justice, as other persons offending in the like manner are;" but Mr. Hume observes upon this case, that "the laws of nations were here plainly violated," 7 vol. 237. And Vattel, with irresistible ability, contends that the universal inviolability of an ambassador is an object of much greater importance to the world than their punishment for crimes, however contrary to natural justice. "A minister," says that profound writer, "is often charged with a commission disagreeable to the prince to whom he is sent. If this prince has any power over him, and especially if his authority be sovereign, how is it to be expect ed that the minister can execute his master's

(g) 4 Inst. 153. (r) 21 July, 1708. Boyer's Annals of Queen Anne.

orders with a proper freedom of mind, fidelity, and firmness? It is necessary he should have no snares to fear, that he cannot be diverted from his functions by any chicanery. He must have nothing to hope, and nothing to fear, from the sovereign to whom he is sent. Therefore, in order to the success of his ministry, he must be independent of the sovereign's authority, and of the jurisdiction of the country both civil and criminal" B. 4. c. 7, § 92, where this subject is discussed in a most luminous manner. The Romans, in the infancy of their state, acknowledged the expediency of the independence of ambassadors; for when they had received ambassadors from the Tarquin princes, whom they had dethroned, and had afterwards detected those ambassadors in secretly committing acts which might have been considered as treason against their state, they sent them back unpunished; upon which Livy observes, et quanquam visi sunt commississe, ut hostium loco essent, jus tamen gentium valuit. Lib. 2, c. 4. When Bomilcar, qui Romam fide publica venerat, was prosecuted as an accomplice in the assassination of Massiva, Sallust declares, fit reus magis ex æquo bonoque quem ex jure gentium. Bell. Jug. c. 35.