If they resign, a new ministry must be formed out of those persons in parliament by whose votes and influence the former ministry were compelled to retire; and they will, of course, advise the crown to assent to the measure, upon the principle of which they came into power. In such a case the sovereign is induced by the practical working of the constitutional principle, that the government must be carried on by the advice of ministers having the confidence of parliament, to give way to the advice of that great national council, and accept a measure which parliament holds to be so important for the welfare of the country. But, on the other hand, the House of Lords will generally support the free exercise of the royal prerogative by rejecting a measure disagreeable to the sovereign; and a knowledge of this may enable the ministers to defeat it in the House of Commons: a result which the constitutional influence of the crown and the lords over the lower house may assist in producing, so as to avoid a collision between the branches of the legislature. When a measure opposed by the government is not of very great consequence, nor such that a defeat on its principle is an indication that the ministers no longer possess the confidence of the House of Commons sufficiently to enable them to carry on the government, they will suffer it to go up to the House of Lords, where it may be defeated or amended; and should it eventually pass the upper house (which can hardly happen contrary to the decided wishes of the sovereign, whom their lordships are constitutionally bound, if possible, to support), the bill will in all probability receive the royal assent. If the ministry advise the crown to dissolve parliament, on their being defeated in their opposition to a bill, either that advice is rejected, and then they must resign; or it is accepted, and then a struggle ensues between the parliamentary parties. If the ministry are defeated at the elections, so as not to have the support of a majority in the new House of Commons, a change of administration must follow. Thus, in practice, the fate of a measure is almost always decided before it comes to receive the determination of the crown; so that the refusal of the royal assent is either not required, or it is not resorted to, as being contrary to the advice of parliament, by which the constitutional sovereign of this country is bound to govern. The last bill rejected by a king of England was a bill for triennial parliaments, to which king William III. refused his assent, in the year 1692.1 It will be, perhaps, observed, that the determination. of the House of Commons has both here and in other places been chiefly dwelt upon. In this instance the reason is, that the lords generally give their support to the crown to defeat any measure to which the sovereign is opposed, especially where it affects the royal prerogative. But there is also a general reason, which applies to all cases where the branches of the legislature are in collision with each other. It is this. The commons have the especial and principal management of the public purse, and are also, either actually, or at least in theory, supported by the great mass of the nation whom they represent. It follows, that in any struggle with the crown, the lords, or even both those powers, the lower house will ultimately be, in a greater or lesser degree, successful, unless that assembly has not the support and does not truly represent the opinions and principles of the really influential classes of the nation. If they have not that support, the majority in the House of Commons will be diminished at every fresh election, and their opponents will be en1 De Lolme, b. ii c. xvii. p. 400. couraged to an effectual resistance; the power of the majority will last only as long as the causes which gave it existence, and the minority will ultimately preponderate in numbers and strength. But a permanent majority in the House of Commons, built on the wishes and opinions of the solid mass of the nation, must ultimately prevail in any struggle with the other branches of the legislature. We must not omit this occasion to reflect, that, notwithstanding all the boasted theories of lawyers and statesmen respecting the balance of the constitution, the permanency of our civil polity depends in a very great measure on the discretion, good sense, and moderation of the body of citizens intrusted with the parliamentary franchise. The constitution never can be overturned but by them. They are bound, therefore, not only to proceed with the utmost discrimination in the choice of representatives, but to use moderation in pressing on both or either of the other branches of the legislature any measure, however expedient it may seem. Such forbearance may, perhaps, in some cases delay, but cannot ultimately defeat, a useful measure; while it must give time for salutary reflection and cool deliberation, and tend to promote the stability of our constitution. II. The sovereign is considered, in the next place, as the generalissimo, or the first in the military command within the kingdom. Unity of command, and that vigour and steadiness which belong to the unrestrained government of one person, are peculiarly requisite for the maintenance of military discipline. Besides, the power of the sword, as it has been called, properly belongs to that branch of the government to which are entrusted the execution of the laws, the maintenance of public tranquillity, and the power of peace and war. In this capacity, therefore, of supreme military commander of the kingdom, the queen has the sole power of raising and regulating fleets and armies. The manner in which they are raised and regulated, we shall have occasion to examine when we come to consider the military state. We are now only to consider the prerogative of enlisting and of governing them, which, indeed, was disputed and claimed, contrary to all reason and precedent, by the long parliament of king Charles I.; but, upon the restoration of his son, was solemnly declared by statute' to be in the king alone; for that the sole supreme government and command of the militia within his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was, and is, the undoubted right of his majesty, and his royal predecessors, kings and queens of England; and that both or either house of parliament cannot, nor ought to pretend to the same.2 These great and extensive powers might render the land-forces of the crown dangerous to the liberties of the nation, if the constitution had not provided a safeguard against the possibility of an abuse of the military prerogative. It is accordingly declared, by the sixth article of the Bill of Rights, that "the raising or keeping up a standing army within the kingdom in time of peace, unless it be with the consent of parliament, is against law." And the army is only established, by what is commonly called the mutiny act, for one year, at the end of which term it is ipso facto disbanded, unless the act is renewed. Thus, any one of the three branches of the legislature may, by its dissent, prevent the continuance of a standing army.3 The statute of Charles II., cited above, extends, as Blackstone observes, not only to fleets and armies, but Stat. 13 Car. II. c. vi. 2 Blackst. Com. b. i. c. vii. p. 261, 262. also to forts and other places of strength within the realm; the sole prerogative, as well of erecting as of manning and governing of which belongs to the queen, in her capacity of general of the kingdom. It would indeed be very dangerous if any man at his pleasure might erect a castle or fortification; and Sir E. Coke lays it down, that1 no subject can build a castle, or house of strength, embattled, or other fortress defensible, without the license of the king. 3 It is partly upon the same, and partly upon a fiscal foundation, to secure her maritime revenue, that the queen has the prerogative of appointing ports and havens, or such places only for persons and merchandise to pass into and out of the realm as she in her wisdom thinks proper.2 By the feodal law, derived in this respect from the civil law, all navigable rivers and havens are computed among the regalia, and subject to the sovereign of the state. And in England it hath always been holden, that the king is lord of the whole shore, and particularly is guardian of the ports and havens, which are the inlets and gates of the realm; and therefore, so early as the reign of king John, we find ships seized by the king's officers for putting in at a place which was not a legal port.4 These legal ports were undoubtedly at first assigned by the crown, since to each of them a portmote is incident, the jurisdiction of which tribunal must flow from royal authority: the great ports of the sea are also referred to as well known and established, by statute 4 Hen. IV. 1 Co. Litt. 5. 2 Blackst. Com. b. i. c. vii. p. 262, 263. 3 Lib. Feudor. 1. ii. t. lvi. Quæ sint Regalia. L. 1. ff. de Flumin. L. 2. ff. eod. tit. Voet ad Pand. lib. xliii. t. xiv. Ersk. Inst. b. i. t. i. § 2. And see Co. Litt. § 475. 4 Madox, Hist. Exch. 530. Callis on Sewers, p. 54. |