enim aliud poteſt rex, niſi id ſolum quod de jure poteſt[1]. And here it may be ſome ſatisſaction to remark, how widely the civil law differs from our own, with regard to the authority of the laws over the prince, or (as a civilian would rather have expreſſed it) the authority of the prince over the laws. It is a maxim of the Engliſh law, as we have ſeen from Bracton, that “rex debet eſſe ſub lege, quid lex facit regem:” the imperial law will tell us, that “in omnibus, imperatoris excipitur fortuna; cui ipſas leges Deus ſubjecit[2].” We ſhall not long heſitate to which of them to give the preference, as moſt conducive to thoſe ends for which ſocieties were framed, and are kept together; eſpecially as the Roman lawyers themſelves ſeem to be ſenſible of the unreaſonableneſs of their own conſtitution. “Decet tamen principem,” ſays Paulus, “ſervare leges, quibus ipſe ſolutus eſt[3].” This is at once laying down the principle of deſpotic power, and at the ſame time acknowleging it's abſurdity.
By the word prerogative we uſually underſtand that ſpecial pre-eminence, which the king hath, over and above all other perſons, and out of the ordinary courſe of the common law, in right of his regal dignity. It ſignifies, in it’s etymology, (from prae and rogo) ſomething that is required or demanded before, or in preference to, all others. And hence it follows, that it muſt be in it’s nature ſingular and eccentrical; that it can only be applied to thoſe rights and capacities which the king enjoys alone, in contradiſtinction to others, and not to thoſe which he enjoys in common with any of his ſubjects: for if once any one prerogative of the crown could be held in common with the ſubject, it would ceaſe to be prerogative any longer. And therefore Finch[4] lays it down as a maxim, that the prerogative is that law in caſe of the king, which is law in no caſe of the ſubject.
Prerogatives are either direct or incidental. The direct are ſuch poſitive ſubſtantial parts of the royal character and au-
