was often inflicted without any infraction of statute law, still less of the common law of the reign; that the wickedness of men in high places was, in a great measure, engendered and encouraged by badness of law; and that the king, the Ministers of State, Judges, and Juries, however viciously inclined, could never have accomplished the mischiefs they perpetrated, but through the imperfections of the Constitution. Were the Constitution of the reign of Charles II. to be restored, a phenomenon would soon be witnessed similar to that of the era of recurring events sung of by the ancient poets, when there might recur another Cabal, another Pension-Treaty of Dover, other Chief Justices Scroggs and Jeffreys, other State-murders under pretexts of Popish, Rye-house and Meal-Tub or analogous Plots. It is deserving of notice that the alleged theoretical perfection of the Constitution in the reign of Charles II. is not deemed by Blackstone incompatible with the existence of some "invidious, nay, dangerous branches of the prerogative which have since been lopped off or more clearly defined;" and that, with regard to his appeal to the catastrophe of the reign of James II., it not seem reasonable to ascribe the successful resistance of the nation which achieved that triumph to the public law established in the reign of Charles II., seeing that no chapter on the expulsion of bad kings, and changing the line of royal succession, has ever been found in the Book of the Constitution. may The Constitutional Law in force in the reign of Charles II., will, in the succeeding chapters, be treated of under the following heads: (1) The Sovereign. (2) The Parliament. (3) The Established Church. (4) Liberty of Conscience. (5) Liberty of the Person. (6) Liberty of Property. (7) Liberty of the Press. (8) Procedure in prosecutions for State Offences. CHAPTER II. THE SOVEREIGN. IN N the conferences held by the Deputies of Parliament with Cromwell for the purpose of inducing him to accept the title of King, it was an argument urged by the Deputies, that the limits of the authority of a King were familiar to the community, whereas those of a Protector could not be made household knowledge by any new charter. It may appear, however, that the royal prerogative in England before the Revolution has resembled the chameleon in its changes of aspect; and that what was familiar prerogative in the reign of Charles II. would appear extravagant in that of Queen Victoria. It is to be inquired whether according to the law as it stood in the reign of Charles II., the prerogative of the Sovereign had attained the acme of perfection. It is proposed to consider the subject of Constitutional Law as regards the Royal Prerogative, under the following heads: (1) The maxim that "the King can do no wrong." (2) The Dispensing and Suspending Powers. (3) The State Offences of High Treason and Sedition. (4) Proclamations. (5) State Oaths. (1) The King can do no wrong. The moral paradox that the "King can do no wrong," is a formula for expressing an important constitutional doctrine, that no mismanagement in government is imputable personally to the Sovereign, whilst, nevertheless, no wrong can be done to the people, without a remedy. Whence it follows, as a corollary, that all acts of State must be performed by responsible Ministers. The rule that the king can do no wrong has been wisely contrived for the purpose of avoiding civil confusion, by interposing a state-conductor to avert the lightning of popular frenzy or justice from the Sovereign's worthy or unworthy head. This constitutional maxim had not attained its full vigour in the reign of Charles II. Thus the Earl of Danby was accused of having negotiated for a pension to be settled by Louis XIV. on King Charles, as the price of services detrimental to the liberties and religion of the people of England. This negotiation was evidenced by a letter that the Earl had written to the British Ambassador at Paris, in the following terms; it was dated, London, March 25, 1678. "In case the conditions of peace shall be accepted, the king expects to have six millions of livres a year, for three years, from the time that this agreement shall be signed betwixt his Majesty and the King of France; because it will, probably, be two or three years before the Parliament will be in humour to give him any supplies, after the making of any peace with France; and the ambassador here has always agreed to that sum, but not for so long time. If you find the peace will not be accepted, you are not to mention the money at all; and all possible care must be taken to have this whole negotiation as private as is possible, for fear of giving offence at home; where, for the most part, we hear in ten days after of any thing that is communicated to the French ministers."-" This letter is writ by my order. C. R." The House of Commons proceeded constitutionally to impeach the Earl of Danby. The impeachment was preferred in the year 1678; but although the Commons, during the remainder of the reign of Charles II. never relaxed in the prosecution of it, and the King did not die till 1685, Danby was never brought to trial. The imperfection of the Constitution furnished Charles with means of screening his minister, whereby the people were taught to regard himself as a wrongdoer without a scape-goat. Thus, in the reign of Charles II., the Sovereign might, without an indisputable violation of the then existing Constitution, have boasted concerning his Prime Minister what Andrew Marvell inserted among his "Royal Resolutions: " And I will assert him to such a degree, That all his foul treasons, though daring and high, In a similar spirit, when Lord Guilford, after his impeachment had been voted by the House of Commons for preparing a Proclamation against Petitions for a Parliament, and when he was presiding with very dejected looks in the House of Lords, the King (as his brother relates) came and clapped himself down close by him on the woolsack, and said, "My Lord, be of good comfort, I will never forsake my friends as my father did.” The following instances of the assumption of irresponsible power by Charles II., indicate, further, that the maxim of "the King doing no wrong" was not only slighted by the Sovereign, but was also not duly appreciated, still less vigorously enforced by the nation. We have an example of Charles II. personally transacting the official business of a Lord High Admiral. Evelyn, in his Diary, under the date of the 12th of May 1684, writes, "I returned to London when I found the Commissioners of the Admiralty abolished, and the office of Admiral restored to the Duke, as to the disposing and ordering all sea-business. But his Majesty signed all petitions, papers, warrants, and commissions, that the Duke, not acting as Admiral by Commission or office, might not incur the penalty of the late Act against Papists and Dissenters holding offices, and refusing the test, Every one was glad of this change." In one instance the Legislature itself appears to have ignored the maxim that the "King can do no wrong;" for by the Act of the 13th and 14th Charles II., c. 33, for licensing and restricting the Press, the King is authorized under his Sign Manual to grant warrants for the searching after and seizing unlicensed or seditious books, and for the arrest of offenders. If we could suppose the Liberty of the Press to be by an Act of this day trampled upon by a licenser, yet, according to the present principles and practice of the Constitution, the Sign Manual would be directed to be countersigned by a Secretary of State. The abuses of the Great Seal in the reign of Charles II., indicate that where the King did wrong there was no adequate practical redress against his Ministers. With respect, indeed, to the sealing of Charles's second Declaration of Indulgence, Lord Keeper Bridgman for a time refused to affix the Great Seal to it; but he was afterwards induced to comply. It is not correct, as Burnet represents, that the Seal was transferred to Lord Shaftesbury in order that it might be affixed to the Declaration: this is shewn by Lord Campbell from dates in which his Lordship is borne out. But Bridgman was abruptly removed from the Chancellorship before the next Session of Parliament, apparently on account of his scruples upon this and some other occasions, one of which Burnet represents to have been his refusal to seal a commission for martial law. His less scrupulous successor, Lord Shaftesbury, A daring pilot in extremity, Pleas'd with the danger, when the waves went high commenced his administration by issuing writs of his own authority for the election of new members to fill up all the vacancies that had occurred in the House of Commons during a protracted recess; he likewise maintained that, as the writs issued under the Great Seal, it was for the Chancellor, and not for the House of Commons, to decide on the validity of the elections. With regard to pardons under the Great Seal. The pardon of Blood was almost as flagrant a violation of Justice as (to use |