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Fortescue to his royal pupil's question; “ Why some kings of England were not pleased with the laws of England; but were industrious to introduce the civil laws as a part of the conftitution, to the prejudice of the common law ?"
** “ You would cease to wonder, my prince, if you would please seriously to consider the nature and occasion of the attempt. I have already given you to understand, that there is a very noted fentence, a favourite maxim or rule in the civil law, that which pleases the prince has the effeEt of a law. The laws of England admit of no such maxim, or any thing like it. A king of England does Why some of
our former not bear such a sway over his subjects, as a kings withed to
be absolute. king merely, but in a mixt political capacity; he is obliged by his coronation oath to the observance of the laws, which some of our kings have not been able to digest, because thereby they are deprived of that free exer cise of dominion over their subjects in that full extensive manner, as those kings have, who prefide and govern by an absolute regal power; who in pursuance of the laws of their respective kingdoms, in particular, the civil law; and of the aforesaid maxim, govern their sub
* Fort. de Laud. Leg. Ang. c. xxxiv.
jects, change laws, enact new ones, infiet punishments, and impose taxes, at their mere will and pleasure, and determine suits at law in such manner, when, and as they think fit; for which reason your ancestors. endeavoured to shake off this political frame of government, in order to exercise the same absolute regal dominion too over their subjects, or rather to be at their full swing to act as they list.”
It was well observed by the late judge · Blakiston, who was neither a violent whig nor à republican writer, * " that one of the principal bulwarks of civil liberty, or in other words of the British constitution, was the limitation of the king's prerogative by bounds fo certain and notorious, that it is impoffible he should ever exceed them without the consent of the people on the one hand, or on the other, without a violation of that original contract, which in all states impliedly, and in ours expressly, subsists between the prince and the subject.” He further asserts in a very manly manner the right, ... which in my circumstances I call a duty, to investigate and discuss the prerogatives of the crown.
« There cannot be a stronger proof of that Right and duty · to discuss the
genuine freedom, which is the boast of this royal.
* Blak.Com. b. i. c. 7,
. · age and country, than the power of discussing
and examining with decency and respect the limits of the king's prerogative, a topic, that in some former ages was thought too delicate and sacred to be profaned by the pen of a subject; it was ranked among the arcana imperii, and like the mysteries of the bona dea, was not suffered to be pried into by any, but such as were initiated in its service; because perhaps the exertion of the one, like the solemnities of the other, would not bear the inspection of a rational and sober enquiry. The glorious Queen Elizabeth herself made The free discus
fion of the pre. no scruple to direct her parliaments to abstain rogative discou.
raged by several from discoursing on matters of state; and it was the constant language of this favourite princess and her ministers, that even that august assembly ought not to deal, to judge, or to meddle with her majesty's prerogative royal; and her successor King James the First, who had imbibed high notions of the divinity of regal fway, more than once laid it down in his speeches, that as it is atheism and blasphemy in a creature to dispute what the Deity may do, so it is presumption and -sedition in a subject to dispute what a king *may do in the height of his power: good christians, he adds, will be content with God's will revealed in his word; and good
of our monarchs.
subjects will rest in the king's will revealed
in his law." Prerogatives ef. The constitution has annexed these powers fectually vested in the crown. and prerogatives to the king, as to the exe
cutive power or first branch of the legislature, for the establishment, maintenance, and prefervation of its own dignity, energy, and vigor; and when it intrusted the king with them, it vefted them in him so effectually, that it became almost impossible for any power upon earth to divest them out of him. Therefore do we see no change nor alteration made in the royal prerogative, in which the king was not freely consenting, or where he had not voluntarily given up or abandoned his right of consent. Yet great and apparently unlimited, or uncontroulable, as these prerogatives may appear at first fight, the wisdom of our admirable constitution has fully secured the subjects of England against any possible invasion of their rights by the crown, either by private injury or
public oppression. Subjects re *“ And first, as to private injuries; if any dress against the erown in pri person has, in point of property, a juft devate injuries.
mand upon the king, he must petition him in his court of chancery, where his chan
* Blak, Com. b. 1. c. 7.
cellor cellor will adminifter him right, as a matter of grace, though not upon compulsion.” In such cases, the subject obtains his remedy by the process of monftrans de droit, or by petition of right; *“ in either of which the fame justice is done to him, as in any other legal or equitable process whatsoever."
† “ Next, as to cases of ordinary public oppression, where the vitals of the constitution are not attacked, the law hath alfo assigned a remedy. For, as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. The constitution has therefore Security of the provided, by means of indictments and par- public wrongs. liamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. But it is at the same time a maxim in those laws, that the king himself can do no wrong, since it would be a great weakness and absurdity in any fyftem of positive law, to define any possible wrong, without any possible redress."
I" For as to such public oppressions, as tend to dissolve the constitution, and subvert