IT is a self-evident principle, that an illegal mandate or instructions from the president, can give no sanction to the conduct of a subordinate officer. On the contrary, the president would be liable to the action of a person injured in the same manner that a private individual would be. The law makes no distinction of persons, and the maxim that the king can do no wrong, so much admired in England, exists by no analogy in a republican government.
It may not be improper to consider why such a rule is admitted in monarchies, and why it cannot take place in a well constituted republic. In every monarchy, a quality termed prerogative, is attached to the monarch. It is defined by the learned commentator on the laws of England, "that special preeminence which the king hath over and above all other persons, and out of the ordinary course of law."1 It cannot be shared with the people, for then it would cease to be prerogative: "it is that law in case of the king, which is law in no case of the subject." One of these prerogatives is, that no personal redress can be had from the king. He may actually, (it would seem,) commit any outrage on any of his subjects; he would be liable neither to a prosecution nor a civil action. "He is considered as a superior being, and entitled to that awful respect which may enable him with greater ease to carry on the business of the government." 2 These doctrines, grating as they are to republicans, are palliated by the further remark, that prerogative is given for the "benefit of the subject, in the confidence that it will only be exerted to the advantage of the realm and that to subject him to civil or criminal proceedings, would be to subvert the whole order of that species of government." The theory is not unjust, and the remark of Locke, the great champion of a tempered system of popular rights, must be acknowledged to be cogent "as to personal wrongs, the harm which the sovereign can do, in his own person, not being likely to happen often, nor to extend itself far; the inconvenience of some particular mischiefs, that may happen sometimes, when a heady prince comes to the throne, are well recompensed by the peace of the public, and the security of the government, in the person of the chief magistrate being thus sent out of the reach of danger." But the principle which thus shields and protects the monarch; the sovereignty resident in himself, creates the distinction between him and the elected, though supreme, magistrate of a republic, where the sovereignty resides in the people. All its officers, whether high or low, are but agents, to whom a temporary power is imparted, and on whom no immunity is conferred. An exemption from the power of the law, even in a small particular, except upon special occasions, would break in upon this important principle, and the freedom of the people, the great and sacred object of republican government, would be put in jeopardy. The exception adverted to, is that already noticed, of members of the legislature going to, attending at, or returning from a session of congress but even this exception is qualified; the commission of treason, felony, or the slightest breach of the peace, would convince the member, that his public function in nowise protected him from the administration of justice; but no other officer of government is entitled to the same immunity in any respect.
1. 1 Blackst. 239.
2. 1 Blackst. 240.
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