gestation and we may fairly question whether there would be any thing at variance with monarchical principles in imposing extraordinary restraints on the royal prerogative, while it remains in the hands of a sovereign whose title is defeasible, or subject to be divested on the occurrence of a given event.

It is true, that if eventually no posthumous child were born, the heir presumptive would have been delayed in and deprived of his right to the throne, during the period of gestation. But it may be doubted whether any great weight is due to the possibility of such a delay of right during a fraction of a year.

The constitutional law on this subject is, however, now fixed by the precedent of the stat. 1 Wm. IV. c. xi.; and it has only been discussed here, because no constitutional writer in this country has yet examined that great and important question in all its bearings.

So tender is the law (says our illustrious commentator) of supposing even a possibility of the king's death, that his natural dissolution is generally called his demise - demissio regis vel corona: an expression which signifies merely a transfer of property; for, as it 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 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.2

This will suffice concerning the royal character and dignity.

Plowd. 177. 234.

2 Blackst. Com.b. i. c. vii. p. 248, 249.

CHAPTER XII.

OF THE ROYAL AUTHORITY.

HAVING considered the Regal character, or the nature and attributes of the kingly office in this empire, we must next proceed to examine those branches of the royal prerogative which invest the sovereign with a number of authorities and powers, in the exertion whereof consists the executive and a part of the legislative branch of government. This is wisely placed in the hands of a single person by the British constitution, for the sake of unanimity, strength, and despatch. Were it placed in many hands, there would be a manifest danger of disunion and contention, or jealousies, among the persons entrusted therewith, which would produce delay, uncertainty, and weakness, most especially prejudicial to the due administration of this portion of the government, whose office it is to provide for sudden emergencies, and to enforce the law with a steady and vigorous hand.

The royal prerogative can also be more easily and conveniently kept within those bounds whereby the constitution has limited it, when vested in one person, than it could be in the hands of several magistrates.

The king of England is therefore (as Blackstone informs us) not. only the chief, but properly the sole magistrate of the nation- all others acting by commission from and in due subordination to him. They, however, are liable to prosecution in the king's name, if they are guilty of any crime or misdemeanor against the law, whereby their duties are defined and regulated; and their acts are subject (if not in accordance with the law) to be reformed, on appeal to a superior tribunal, or set aside, or even visited with punishment and damages, on complaint of the person injured. Thus, all officers and magistrates, acting under the sovereign's commission, are kept within the bounds assigned by the law to that authority of which they are the delegated administrators.

But in the exercise of lawful prerogative the sovereign is and ought to be absolute; that is, so far absolute that there is no legal authority that can either delay or resist him."

1 Archbold, Just. (edit. 1845), 32, &c., 36, &c. But see Dicas v. Brougham, 6 Carr. & Pay. 249.; 1 Mood. & Rob. 309.

2 Blackst. Com. b. i. c. vii. p. 249.

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.

Those exceptions or boundaries are preserved by the queen's courts of justice, as well as by the power of parliament. Thus, for instance, if the crown were to grant a monopoly, such a grant would, on being brought in due course of law before a competent tribunal, be annulled, and the advisers of that unconstitutional measure would be called to answer for their conduct in parliament.1

Thus, again, if the crown alone were to constitute a new office, with power to impose any burden on the subject in the shape of fees, or any other species of impost, the courts of justice would not only refuse to enforce such an illegal tax, but give relief, with damages, to any person aggrieved thereby.2

But in the exertion of those prerogatives which the law has given to him, the sovereign is irresistible and absolute, according to the forms of the constitution. "And yet," says Blackstone, "if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call the king's advisers to a just and severe account. For prerogative consisting (as 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, a 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 and advice they were concluded."

4

The prerogative of the crown (though absolute and independent, insomuch as it cannot be directly resisted by any legal power) is subject to another species of indirect restriction, in all cases where it cannot be effectually exerted without pecuniary supplies. Thus, though the crown has the power (subject to the exception contained in the act of Settlement, 12 & 13 Will. III. c. 2.) to declare war without the concurrence of the lords or commons, yet war cannot be carried on unless parliament will furnish the means.

Again, the crown can create new offices, and bestow places and employments, but parliament may refuse to furnish the salaries

1 St. 21. Jac. I. ch. 3. Comyn. Dig. Parliament, L. 36.

2 Ibid. Prerogative, D. 37.

4 De Lolme, b. i. c. vi.

3 Locke on Gov. ii. § 166.

attending on them. Thus, without touching the prerogative itself, its exercise is moderated. The effect of this check on the exercise of the royal prerogative is, that the responsible ministers of the crown usually take care not to advise the sovereign to do any act requiring to be supported by supplies, unless they believe that it will meet the approbation of parliament, especially that of the lower house, which is invested, by the constitution, with the principal control over the public purse. It is, indeed, very usual in cases of this nature (when they admit of delay) to obtain the previous sanction of parliament; and thus the influence of that assembly, as a council of advice and deliberation, is materially extended.

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 queen is the delegate or representative of her people. The transaction of affairs of state with other communities is very judiciously entrusted, by our constitution, to the executive branch of government, which is always in existence, ready for the performance of its functions, and constantly assisted by experienced advisers in the administration of that discretionary power with which it is peculiarly invested. Besides, it is one of the attributes of the sovereign to be clothed with the majesty of the whole nation. Thus, what is done by the royal authority with regard to foreign powers is the act of the whole nation; what is done. without the queen's concurrence is the act only of private men. And on this principle it has been held by our law2, 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. st. 1. c. vi., 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. xi., so far as relates to 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. These principles are in accordance with those of the civil law, and the doctrines of the highest authorities in the law of nations. But it must be observed, that a subject enlisting in the service of a foreign state, at peace with the crown of England, is not within the provisions of the acts cited above. He must, however, conform to the provisions of stat. 3 Jac. 1. c. 4., and the Foreign inlistment act, 59 Geo. III. c. 69.

I. The queen, therefore, considered as the representative of her

Blackst. Com. b. i. c. vii. p. 252.

24 Inst. 152.

people, has the sole power of sending ambassadors to foreign states, and receiving ambassadors at home.

It is seldom convenient or desirable that nations or sovereign states should treat respecting their mutual concerns by means of their supreme heads or sovereigns, and they therefore communicate and treat with each other by means of procurators or delegates, entrusted with the instructions of those sovereigns, and invested with the power of acting as their representatives. Those procurators or delegates are public ministers or ambassadors. Their essential character (whatever may be their rank or official title) is that of representatives of a sovereign state. The right of sending and receiving ambassadors belongs to every sovereign state, but it is sometimes exercised by viceroys or governors-in-chief, who in such cases act in the name and by the authority of the sovereign they represent, and whose rights they exercise. This depends entirely on the will of their master, by whom they are established. The viceroys of Naples, the governors of Milan, and the governors-general of the Netherlands, formerly enjoyed this right,2 which is exercised by the governor-general of her Majesty's dominions in India.

Though all ministers represent the sovereign by whom they are sent, some are representatives of his person and dignity, as well as his authority, in the matters for which they are sent; while others represent him only with respect to his rights and his affairs, with which they are entrusted. The former are called ambassadors, who are ministers of the first order; and the latter envoys, or ministers of the second order.3 Ambassadors and envoys sometimes have the additional title or qualification of extraordinary, which, however, is an accidental distinction relative to the subject of their mission. There is also a third class of public ministers called residents, whose rank is inferior to that of ministers of the second order. Modern usage has established (for the sake of convenience, and to avoid the nicetics of diplomatic ceremonial) a new species of public ministers, who have no particular defined character with respect to rank or precedence. They are called simply ministers, but are sometimes invested with the title of ministers plenipotentiary. That title confers upon them a rank which usage has placed on an equality with that of envoys extraordinary.

With respect to consuls, they are mere agents or commissioners, and do not enjoy the protection of the law of nations (though regard is due to their office by the state where they reside) unless they have

And see Pufendorf, Dr. des Gens, 1. viii. c. iv. § 21.

2 Vattel, Droit des Gens, 1. iv. c. v. § 55—57. 61.

3 Ibid. 1. iv. c. vi. } 70—72.