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Lastly, though crimes are prosecuted in his name, he cannot refuse to lend it to any particular persons who have complaints to prefer.
The king has the privilege of coining money ; but he cannot alter the standard.
The king has the power of pardoning offenders ; but he cannot exempt them from making a compensation to the parties injured. It is even established by law, that, in a case of murder, the widow, or next heir, shall have a right to prosecute the murderer; and the king's pardon, whether it preceded the sentence passed in consequence of such prosecution, or whether it be granted after it, cannot have any effect.*
The king has the military power; but still, with respect to this, he is not absolute. It is true in regard to the seaforces, as there is in them this very great arlvantage, that they cannot be turned against the liberty of the nation : at the same time that they are the surest bulwark of the island, the king may keep them as he thinks proper; and in this respect he lies only under the general restraint of applying to parliament for obtaining the means of doing it. But in regard to land-forces, as they may become an immediate weapon in the hands of power for throwing down all the barriers of public liberty, the king cannot raise them without the consent of parliament. The guards of Charles the Second were declared anti-constitutional; and James's army was one of the causes of his being dethroned.
In these times, however, when it is become a custom with princes to keep those numerous armies, which serve as a pretext and means of oppressing the people, a state that
question, determine, or dispose of, the lands, tenements, goods, or chattels, of any of the subjects of this kingdom.” Stat. 16 Ch. I. cap. 10, § 10.
* The method of prosecution mentioned here is called an appeal : it must be sued within a year and a day after the commission of the crime.
[The right of appeal has been lately abrogated by act of parliament, 59 Geo. III. c. 46.- Ed.]
+ The seamen are now, as well as their wages, voted annually, exactly the same as the army. A new sanction was given to the above restriction in the sixth article of the Bill of Rights. “A standing army, without the consent of parliament, is against law."
THE SOVEREIGN AS HEAD OF THE ARMY.
would maintain its independence is obliged, in a great measure, to do the same. The parliament has therefore thought proper to establish a standing body of troops (amounting to about thirty thousand men), of which the king has the command.
But this army is only established for one year; at the end of that term it is (unless re-established) to be ipso facto disbanded; and as the question, which then lies before parliament, is not, whether the army shall be dissolved, but whether it shall be established anew, as if it had never existed, any one of the three branches of the legislature may, by its dissent, hinder its continuance.
Besides, the funds for the payment of these troops are to be paid by taxes that are not established for more than one year :* and it becomes likewise necessary, at the end of this term, again to establish them. In a word, this instrument of defence, which the circumstances of modern times have caused to be judged necessary, being capable, on the other hand, of being applied to the most dangerous purposes, has been joined to the state by only a slender thread, the knot of which may be slipped on the first appearance of danger. I
* The land-tax and malt-tax, both have since, as well as the sugar duties, been made perpetual, or at least until altered by parliament.- Ed.
of It is also necessary that the parliament, when it renews the act against mutiny, should authorise the different courts martial to punish military offences and desertion. It can therefore refuse the king even the necessary power of military discipline.
I To these laws, or rather conventions, between king and people, I will add the oath which the king takes at his coronation; a compact which, if it cannot have the same precision as the laws above mentioned, yet, in a manner, comprehenc's them all, and has the farther advantage of being declared with more solemnity.
The archbishop or bishop shall say, " Will you solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes of parliament agreed on, and the laws and customs of the same ?"— The king or queen shall say, “I solemnly promise so to do.”
Archbishop or bishop.-“ Will you, to your power, cause law and justice, in mercy, to be executed in all your judgments ?” — King of queen. “I will.”
Archbishop or bishop.-“Will you, to the utmost of your power, maintain the laws of God, the true profession of the gospel, and the protestant reformed religion established by the law ? and will you preserve unto the bishops and clergy of this realm, and to the churches But these laws, which limit the king's authority, would not, of themselves, have been sufficient. As they are, after all, only intellectual barriers, which the king might not at all times respect; as the check which the Commons have on his proceedings, by a refusal of subsidies, affects too much the whole state to be exerted on every particular abuse of his power; and lastly, as even this check might in some degree be eluded, either by breaking the promises which have procurred subsidies, or by applying them to uses different from those for which they were appointed; the constitution has besides supplied the Commons with the means of immediate opposition to the misconduct of government, by giving them a right to impeach the ministers.
It is true, the king himself cannot be arraigned before judges ; because if there were any that could pass sentence upon him, it would be they, and not he, who must finally possess the executive power; but, on the other hand, the king cannot act without ministers ; it is therefore those ministers,—that is, those indispensable instruments,—whom they attack.
If, for example, the public money has been employed in a manner contrary to the declared intention of those who granted it, an impeachment may be brought against those who had the management of it. If any abuse of power is committed, or in general anything done contrary to the public weal, they prosecute those who have been either the instruments or the advisers of the measure.*
But who shall be the judges to decide in such a cause ? What tribunal will flatter itself that it can give an impartial decision, when it shall see, appearing at its bar, the government itself as the accused, and the representatives of the people as the accusers ? committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them ?”—King or queen. “All this I promise to do.”
After this, the king or queen, laying his or her hand upon the holy gospels, shail say, The things which I have here before promised I will perform and keep : So help me God!”— and then shall kiss the book.
* It was upon these principles that the Commons, in the beginning of the eighteenth century, impeached the Earl of Orford, who had advised the treaty of partition, and the Lord Chancellor Somers, who bad affixed the great seal to it.
POWER OF IMPEACHMENTS.
It is before the House of Peers that the law has directed the Commons to carry their accusation; that is, before judges, whose dignity, on the one hand, renders them inde. pendent, and who, on the other, have a great honour to support in that awful function, where they have all the nation for spectators of their conduct.
When the impeachment is brought to the Lords, they commonly order the person accused to be imprisoned. On the day appointed, the deputies of the House of Commons, with the person impeached, make their appearance: the impeachment is read in his presence; counsel are allowed him, as well as time to prepare for his defence; and, at the expiration of this term, the trial goes on from day to day, with open doors, and everything is communicated in print to the public.
But whatever advantage the law grants to the person impeached for his justification, it is from the intrinsic merits of his conduct that he must draw his arguments and proofs. It would be of no service to him, in order to justify a criminal conduct, to allege the commands of the sovereign ; or, pleading guilty with respect to the measures imputed to him, to produce the royal pardon.* It is against the administration itself that the impeachment is carried on; it should therefore by no means interfere : the king can neither stop nor suspend its course, but is forced to behold, as an inactive spectator, the discovery of the share which he may himself have had in the illegal proceedings of his servants, and to hear his own sentence in the condemnation of his ministers.
* This point, in ancient times, was far from being clearly settled. In the year 1678, the Commons having impeached the Earl of Danby, he pleaded the king's pardon in bar to that impeachment : great altercations ensued, which were terminated by the dissolution of that parliament. It was afterwards enacted (Stat. 12 & 13 W. III. c. 2.), “ that no pardon under the great seal should be pleaded in bar to an impeachment by the House of Commons.”
I once asked a gentleman very learned in the laws of this country, if the king could remit the punishment of a man condemned in consequence of an impeachment of the House of Commons: he answered me, The tories will tell you the king can, and the whigs, he cannot. But it is not perhaps very material that the question should be decided : the great public ends are attained when a corrupt minister is removed with disgrace, and the whole system of his proceedings unveiled to the public eye.
An admirable expedient! which, by removing and punishing corrupt ministers, affords an immediate remedy for the evils of the state, and strongly marks out the bounds within which power ought to be confined : which takes away the scandal of guilt and authority united, and calms the people by a great and awful act of justice : an expedient, in this respect especially, so highly useful, that it is to the want of the like that Machiavel attributes the ruin of his republic.
But all these general precautions to secure the rights of the parliament, that is, those of the nation itself, against the efforts of the executive power, would be vain, if the members themselves remained personally exposed to them. Being unable openly to attack, with any safety to itself, the two legislative bodies, and by a forcible exertion of its prerogatives, to make, as it were, a general assault, the executive power might, by subdividing the same prerogatives, gain an entrance, and, sometimes by interest, and at others by fear, guide the general will, by influencing that of individuals.
But the laws which so effectually provide for the safety of the people, provide no less for that of the members, whether of the House of Peers, or that of the Commons. There are not known in England either commissaries, who are always ready to find those guilty whom the wantonness of ambition points out, or those secret imprisonments which are, in other countries, the usual expedients of government. As the forms and maxims of the courts of justice are strictly prescribed, and every individual has an invariable right to be judged according to law, he may obey without fear the dictates of public virtue. Lastly, what crowns all these precautions, is, its being a fundamental maxim, “That the freedom of speech, and debates and proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.*
The legislators, on the other hand, bave not forgotten that interest, as well as fear, may impose silence on duty.
* Bill of Rights, Art. 9. Yet, in the case of Wilkes, a great constitutional principle was grossly violated by declaring Col. Luttrell duly elected for London.-Ed.