THE prerogatives of the crown (in the sense under which we are now
considering them) respect either this nation's intercourse with
foreign nations, or it's own domestic government and civil polity.
WITH regard to foreign concerns, the king is the delegate or
representative of his people. It is impossible that the individuals of
a state, in their collective capacity, can transact the affairs of
that state with another community equally numerous as themselves.
Unanimity must be wanting to their measures, and strength to the
execution of their counsels. In the king therefore, as in a center,
all the rays of his people are united, and form by that union a
consistency, splendor, and power, that make him feared and respected
by foreign potentates; who would scruple to enter into any
engagements, that must afterwards be revised and ratified by a popular
assembly. What is done by the royal authority, with regard to foreign
powers, is the act of the whole nation: what is done without the
king's concurrence is the act only of private men. And so far is this
point carried by our law, that it hath been held[d], that should all
the subjects of England make war with a king in league with the king
of England, without the royal assent, such war is no breach of the
league. And, by the statute 2 Hen. V. c. 6. any subject committing
acts of hostility upon any nation in league with the king, was
declared to be guilty of high treason: and, though that act was
repealed by the statute 20 Hen. VI. c. 11. so far as relates to the
making this offence high treason, yet still it remains a very great
offence against the law of nations, and punishable by our laws, either
capitally or otherwise, according to the circumstances of the case.
[Footnote d: 4 Inst. 152.]
I. THE king therefore, considered as the representative of his people,
has the sole power of sending embassadors to foreign states, and
receiving embassadors at home. This may lead us into a short enquiry,
how far the municipal laws of England intermeddle with or protect the
rights of these messengers from one potentate to another, whom we call
embassadors.
THE rights, the powers, the duties, and the privileges of embassadors
are determined by the law of nature and nations, and not by any
municipal constitutions. For, as they represent the persons of their
respective masters, who owe no subjection to any laws but those of
their own country, their actions are not subject to the control of the
private law of that state, wherein they are appointed to reside. He
that is subject to the coercion of laws is necessarily dependent on
that power by whom those laws were made: but an embassador ought to be
independent of every power, except that by which he is sent; and of
consequence ought not to be subject to the mere municipal laws of that
nation, wherein he is to exercise his functions. If he grossly
offends, or makes an ill use of his character, he may be sent home and
accused before his master[e]; who is bound either to do justice upon
him, or avow himself the accomplice of his crimes[f]. But there is
great dispute among the writers on the laws of nations, whether this
exemption of embassadors extends to all crimes, as well natural as
positive; or whether it only extends to such as are _mala prohibita_,
as coining, and not to those that are _mala in se_, as murder[g]. Our
law seems to have formerly taken in the restriction, as well as the
general exemption. For it has been held, both by our common lawyers
and civilians[h], that an embassador is privileged by the law of
nature and nations; and yet, if he commits any offence against the law
of reason and nature, he shall lose his privilege[i]: and that
therefore, if an embassador conspires the death of the king in whose
land he is, he may be condemned and executed for treason; but if he
commits any other species of treason, it is otherwise, and he must be
sent to his own kingdom[k]. And these positions seem to be built upon
good appearance of reason. For since, as we have formerly shewn, all
municipal laws act in subordination to the primary law of nature, and,
where they annex a punishment to natural crimes, are only declaratory
of and auxiliary to that law; therefore to this natural, universal
rule of justice embassadors, as well as other men, are subject in all
countries; and of consequence it is reasonable that wherever they
transgress it, there they shall be liable to make atonement[l]. But,
however these principles might formerly obtain, the general practice
of Europe seems now to have adopted the sentiments of the learned
Grotius, that the security of embassadors is of more importance than
the punishment of a particular crime[m]. And therefore few, if any,
examples have happened within a century past, where an embassador has
been punished for any offence, however atrocious in it's nature.
[Footnote e: As was done with count Gyllenberg the Swedish minister to
Great Britain, _A.D._ 1716.]
[Footnote f: Sp. L. 26. 21.]
[Footnote g: Van Leeuwen _in Ff._ 50. 7. 17. Barbeyrac's Puff. l. 8.
c. 9. §. 9. & 17. Van Bynkershoek _de foro legator._ c. 17, 18, 19.]
[Footnote h: 1 Roll. Rep. 175. 3 Bulstr. 27.]
[Footnote i: 4 Inst. 153.]
[Footnote k: 1 Roll. Rep. 185.]
[Footnote l: Foster's reports. 188.]
[Footnote m: _Securitas legatorum utilitati quae ex poena est
praeponderat._ _de jur. b. & p._ 2. 18. 4. 4.]
IN respect to civil suits, all the foreign jurists agree, that neither
an embassador, nor any of his train or _comites_, can be prosecuted
for any debt or contract in the courts of that kingdom wherein he is
sent to reside. Yet sir Edward Coke maintains, that, if an embassador
make a contract which is good _jure gentium_, he shall answer for it
here[n]. And the truth is, we find no traces in our lawbooks of
allowing any privilege to embassadors or their domestics, even in
civil suits, previous to the reign of queen Anne; when an embassador
from Peter the great, czar of Muscovy, was actually arrested and taken
out of his coach in London, in 1708, for debts which he had there
contracted. This the czar resented very highly, and demanded (we are
told) that the officers who made the arrest should be punished with
death. But the queen (to the amazement of that despotic court)
directed her minister to inform him, "that the law of England had not
yet protected embassadors from the payment of their lawful debts; that
therefore the arrest was no offence by the laws; and that she could
inflict no punishment upon any, the meanest, of her subjects, unless
warranted by the law of the land[o]." To satisfy however the clamours
of the foreign ministers (who made it a common cause) as well as to
appease the wrath of Peter[p], a new statute was enacted by
parliament[q], reciting the arrest which had been made, "in contempt
of the protection granted by her majesty, contrary to the law of
nations, and in prejudice of the rights and privileges, which
embassadors and other public ministers have at all times been thereby
possessed of, and ought to be kept sacred and inviolable:" wherefore
it enacts, that for the future all process whereby the person of any
embassador, or of his domestic or domestic servant, may be arrested,
or his goods distreined or seised, shall be utterly null and void; and
the persons prosecuting, soliciting, or executing such process shall
be deemed violaters of the law of nations, and disturbers of the
public repose; and shall suffer such penalties and corporal punishment
as the lord chancellor and the two chief justices, or any two of them,
shall think fit. But it is expressly provided, that no trader, within
the description of the bankrupt laws, who shall be in the service of
any embassador, shall be privileged or protected by this act; nor
shall any one be punished for arresting an embassador's servant,
unless his name be registred with the secretary of state, and by him
transmitted to the sheriffs of London and Middlesex. Exceptions, that
are strictly conformable to the rights of embassadors[r], as observed
in the most civilized countries. And, in consequence of this statute,
thus enforcing the law of nations, these privileges are now usually
allowed in the courts of common law[s].
[Footnote n: 4 Inst. 153.]
[Footnote o: Mod. Un. Hist. xxxv. 454.]
[Footnote p: A copy of the act made upon this occasion, very elegantly
engrossed and illuminated, was sent him to Moscow as a present.]
[Footnote q: 7 Ann. c. 12.]
[Footnote r: _Saepe quaesitum est an comitum numero et jure habendi
sunt, qui legatum comitantur, non ut instructior fiat legatio, sed
unice ut lucro suo consulant, institores forte et mercatores. Et,
quamvis hos saepe defenderint et comitum loco habere voluerint legati,
apparet tamen satis eo non pertinere, qui in legati legationisve
officio non sunt. Quum autem ea res nonnunquam turbas dederit, optimo
exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur
exhibere nomenclaturam comitum suorum._ Van Bynkersh. _c._ 15. _prope
finem_.]
[Footnote s: Fitzg. 200. Stra. 797.]
II. IT is also the king's prerogative to make treaties, leagues, and
alliances with foreign states and princes. For it is by the law of
nations essential to the goodness of a league, that it be made by the
sovereign power[t]; and then it is binding upon the whole community:
and in England the sovereign power, _quoad hoc_, is vested in the
person of the king. Whatever contracts therefore he engages in, no
other power in the kingdom can legally delay, resist, or annul. And
yet, lest this plenitude of authority should be abused to the
detriment of the public, the constitution (as was hinted before) hath
here interposed a check, by the means of parliamentary impeachment,
for the punishment of such ministers as advise or conclude any treaty,
which shall afterwards be judged to derogate from the honour and
interest of the nation.
[Footnote t: Puff. L. of N. b. 8. c. 9. §. 6.]
III. UPON the same principle the king has also the sole prerogative of
making war and peace. For it is held by all the writers on the law of
nature and nations, that the right of making war, which by nature
subsisted in every individual, is given up by all private persons that
enter into society, and is vested in the sovereign power[u]: and this
right is given up not only by individuals, but even by the intire body
of people, that are under the dominion of a sovereign. It would indeed
be extremely improper, that any number of subjects should have the
power of binding the supreme magistrate, and putting him against his
will in a state of war. Whatever hostilities therefore may be
committed by private citizens, the state ought not to be affected
thereby; unless that should justify their proceedings, and thereby
become partner in the guilt. Such unauthorized voluntiers in violence
are not ranked among open enemies, but are treated like pirates and
robbers: according to that rule of the civil law[w]; _hostes hi sunt
qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones
aut praedones sunt_. And the reason which is given by Grotius[x], why
according to the law of nations a denunciation of war ought always to
precede the actual commencement of hostilities, is not so much that
the enemy may be put upon his guard, (which is matter rather of
magnanimity than right) but that it may be certainly clear that the
war is not undertaken by private persons, but by the will of the whole
community; whose right of willing is in this case transferred to the
supreme magistrate by the fundamental laws of society. So that, in
order to make a war completely effectual, it is necessary with us in
England that it be publicly declared and duly proclaimed by the king's
authority; and, then, all parts of both the contending nations, from
the highest to the lowest, are bound by it. And, wherever the right
resides of beginning a national war, there also must reside the right
of ending it, or the power of making peace. And the same check of
parliamentary impeachment, for improper or inglorious conduct, in
beginning, conducting, or concluding a national war, is in general
sufficient to restrain the ministers of the crown from a wanton or
injurious exertion of this great prerogative.
[Footnote u: Puff. l. 8. c. 6. §. 8. and Barbeyr. _in loc._]
[Footnote w: _Ff._ 50. 16. 118.]
[Footnote x: _de jur. b. & p._ _l._ 3. _c._ 3. §. 11.]
IV. BUT, as the delay of making war may sometimes be detrimental to
individuals who have suffered by depredations from foreign potentates,
our laws have in some respect armed the subject with powers to impel
the prerogative; by directing the ministers of the crown to issue
letters of marque and reprisal upon due demand: the prerogative of
granting which is nearly related to, and plainly derived from, that
other of making war; this being indeed only an incomplete state of
hostilities, and generally ending in a formal denunciation of war.
These letters are grantable by the law of nations[y], whenever the
subjects of one state are oppressed and injured by those of another;
and justice is denied by that state to which the oppressor belongs. In
this case letters of marque and reprisal (words in themselves
synonimous and signifying a taking in return) may be obtained, in
order to seise the bodies or goods of the subjects of the offending
state, until satisfaction be made, wherever they happen to be found.
Indeed this custom of reprisals seems dictated by nature herself; and
accordingly we find in the most antient times very notable instances
of it[z]. But here the necessity is obvious of calling in the
sovereign power, to determine when reprisals may be made; else every
private sufferer would be a judge in his own cause. And, in pursuance
of this principle, it is with us declared by the statute 4 Hen. V. c.
7. that, if any subjects of the realm are oppressed in time of truce
by any foreigners, the king will grant marque in due form, to all that
feel themselves grieved. Which form is thus directed to be observed:
the sufferer must first apply to the lord privy-seal, and he shall
make out letters of request under the privy seal; and, if, after such
request of satisfaction made, the party required do not within
convenient time make due satisfaction or restitution to the party
grieved, the lord chancellor shall make him out letters of marque
under the great seal; and by virtue of these he may attack and seise
the property of the aggressor nation, without hazard of being
condemned as a robber or pirate.
[Footnote y: Grot. _de jur. b. & p._ _l._ 3. _c._ 2. §. 4 & 5.]
[Footnote z: See the account given by Nestor, in the eleventh book of
the Iliad, of the reprisals made by himself on the Epeian nation; from
whom he took a multitude of cattle, as a satisfaction for a prize won
at the Elian games by his father Neleus, and for debts due to many
private subjects of the Pylian kingdom: out of which booty the king
took three hundred head of cattle for his own demand, and the rest
were equitably divided among the other creditors.]
V. UPON exactly the same reason stands the prerogative of granting
safe-conducts, without which by the law of nations no member of one
society has a right to intrude into another. And therefore Puffendorf
very justly resolves[a], that it is left in the power of all states,
to take such measures about the admission of strangers, as they think
convenient; those being ever excepted who are driven on the coasts by
necessity, or by any cause that deserves pity or compassion. Great
tenderness is shewn by our laws, not only to foreigners in distress
(as will appear when we come to speak of shipwrecks) but with regard
also to the admission of strangers who come spontaneously. For so long
as their nation continues at peace with ours, and they themselves
behave peaceably, they are under the king's protection; though liable
to be sent home whenever the king sees occasion. But no subject of a
nation at war with us can, by the law of nations, come into the realm,
nor can travel himself upon the high seas, or send his goods and
merchandize from one place to another, without danger of being seized
by our subjects, unless he has letters of safe-conduct; which by
divers antient statutes[b] must be granted under the king's great seal
and inrolled in chancery, or else are of no effect: the king being
supposed the best judge of such emergencies, as may deserve exception
from the general law of arms.
[Footnote a: Law of N. and N. b. 3. c. 3. §. 9.]
[Footnote b: 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 20 Hen. VI. c. 1.]
INDEED the law of England, as a commercial country, pays a very
particular regard to foreign merchants in innumerable instances. One I
cannot omit to mention: that by _magna carta_[c] it is provided, that
all merchants (unless publickly prohibited beforehand) shall have safe
conduct to depart from, to come into, to tarry in, and to go through
England, for the exercise of merchandize, without any unreasonable
imposts, except in time of war: and, if a war breaks out between us
and their country, they shall be attached (if in England) without harm
of body or goods, till the king or his chief justiciary be informed
how our merchants are treated in the land with which we are at war;
and, if ours be secure in that land, they shall be secure in ours.
This seems to have been a common rule of equity among all the northern
nations; for we learn from Stiernhook[d], that it was a maxim among
the Goths and Swedes, "_quam legem exteri nobis posuere, eandem illis
ponemus_." But it is somewhat extraordinary, that it should have found
a place in _magna carta_, a mere interior treaty between the king and
his natural-born subjects; which occasions the learned Montesquieu to
remark with a degree of admiration, "that the English have made the
protection of _foreign_ merchants one of the articles of their
_national_ liberty[e]." But indeed it well justifies another
observation which he has made[f], "that the English know better than
any other people upon earth, how to value at the same time these three
great advantages, religion, liberty, and commerce." Very different
from the genius of the Roman people; who in their manners, their
constitution, and even in their laws, treated commerce as a
dishonorable employment, and prohibited the exercise thereof to
persons of birth, or rank, or fortune[g]: and equally different from
the bigotry of the canonists, who looked on trade as inconsistent with
christianity[h], and determined at the council of Melfi, under pope
Urban II, _A.D._ 1090, that it was impossible with a safe conscience
to exercise any traffic, or follow the profession of the law[i].
[Footnote c: _c._ 30.]
[Footnote d: _de jure Sueon._ _l._ 3. _c._ 4.]
[Footnote e: Sp. L. 20. 13.]
[Footnote f: Sp. L. 20. 6.]
[Footnote g: _Nobiliores natalibus, et honorum luce conspicuos, et
patrimonio ditiores, perniciosum urbibus mercimonium exercere
prohibemus._ _C._ 4 63. 3.]
[Footnote h: _Homo mercator vix aut nunquam potest Deo placere: et
ideo nullus Christianus debet esse mercator; aut si voluerit esse,
projiciatur de ecclesia Dei._ _Decret._ 1. 88. 11.]
[Footnote i: _Falsa fit poenitentia [laici] cum penitus ab officio
curiali vel negotiali non recedit, quae sine peccatis agi ulla ratione
non praevalet._ _Act. Concil. apud Baron._ _c._ 16.]
THESE are the principal prerogatives of the king, respecting this
nation's intercourse with foreign nations; in all of which he is
considered as the delegate or representative of his people. But in
domestic affairs he is considered in a great variety of characters,
and from thence there arises an abundant number of other prerogatives.
I. FIRST, he is a constituent part of the supreme legislative power;
and, as such, has the prerogative of rejecting such provisions in
parliament, as he judges improper to be passed. The expediency of
which constitution has before been evinced at large[k]. I shall only
farther remark, that the king is not bound by any act of parliament,
unless he be named therein by special and particular words. The most
general words that can be devised ("any person or persons, bodies
politic, or corporate, _&c._") affect not him in the least, if they
may tend to restrain or diminish any of his rights or interests[l].
For it would be of most mischievous consequence to the public, if the
strength of the executive power were liable to be curtailed without
it's own express consent, by constructions and implications of the
subject. Yet where an act of parliament is expressly made for the
preservation of public rights and the suppression of public wrongs,
and does not interfere with the established rights of the crown, it is
said to be binding as well upon the king as upon the subject[m]: and,
likewise, the king may take the benefit of any particular act, though
he be not especially named[n].
[Footnote k: ch. 2. pag. 149.]
[Footnote l: 11 Rep. 74 _b._]
[Footnote m: 11 Rep. 71.]
[Footnote n: 7 Rep. 32.]
II. THE king is considered, in the next place, as the generalissimo,
or the first in military command, within the kingdom. The great end of
society is to protect the weakness of individuals by the united
strength of the community: and the principal use of government is to
direct that united strength in the best and most effectual manner, to
answer the end proposed. Monarchical government is allowed to be the
fittest of any for this purpose: it follows therefore, from the very
end of it's institution, that in a monarchy the military power must be
trusted in the hands of the prince.
IN this capacity therefore, of general of the kingdom, the king has
the sole power of raising and regulating fleets and armies. Of the
manner in which they are raised and regulated I shall speak more, when
I come to consider the military state. We are now only to consider the
prerogative of enlisting and of governing them: which indeed was
disputed and claimed, contrary to all reason and precedent, by the
long parliament of king Charles I; but, upon the restoration of his
son, was solemnly declared by the statute 13 Car. II. c. 6. to be in
the king alone: for that the sole supreme government and command of
the militia within all his majesty's realms and dominions, and of all
forces by sea and land, and of all forts and places of strength, ever
was and is the undoubted right of his majesty, and his royal
predecessors, kings and queens of England; and that both or either
house of parliament cannot, nor ought to, pretend to the same.
THIS statute, it is obvious to observe, extends not only to fleets and
armies, but also to forts, and other places of strength, within the
realm; the sole prerogative as well of erecting, as manning and
governing of which, belongs to the king in his capacity of general of
the kingdom[o]: and all lands were formerly subject to a tax, for
building of castles wherever the king thought proper. This was one of
the three things, from contributing to the performance of which no
lands were exempted; and therefore called by our Saxon ancestors the
_trinoda necessitas: sc. pontis reparatio, arcis constructio, et
expeditio contra hostem_[p]. And this they were called upon to do so
often, that, as sir Edward Coke from M. Paris assures us[q], there
were in the time of Henry II 1115 castles subsisting in England. The
inconvenience of which, when granted out to private subjects, the
lordly barons of those times, was severely felt by the whole kingdom;
for, as William of Newbury remarks in the reign of king Stephen,
"_erant in Anglia quodammodo tot reges vel potius tyranni, quot domini
castellorum_:" but it was felt by none more sensibly than by two
succeeding princes, king John and king Henry III. And therefore, the
greatest part of them being demolished in the barons' wars, the kings
of after times have been very cautious of suffering them to be rebuilt
in a fortified manner: and sir Edward Coke lays it down[r], that no
subject can build a castle, or house of strength imbatteled, or other
fortress defensible, without the licence of the king; for the danger
which might ensue, if every man at his pleasure might do it.
[Footnote o: 2 Inst. 30.]
[Footnote p: Cowel's interpr. _tit. castellorum operatio_. Seld. _Jan.
Angl._ 1. 42.]
[Footnote q: 2 Inst. 31.]
[Footnote r: 1 Inst. 5.]
TO this branch of the prerogative may be referred the power vested in
his majesty, by statutes 12 Car. II. c. 4. and 29 Geo. II. c. 16. of
prohibiting the exportation of arms or ammunition out of this kingdom,
under severe penalties: and likewise the right which the king has,
whenever he sees proper, of confining his subjects to stay within the
realm, or of recalling them when beyond the seas. By the common
law[s], every man may go out of the realm for whatever cause he
pleaseth, without obtaining the king's leave; provided he is under no
injunction of staying at home: (which liberty was expressly declared
in king John's great charter, though left out in that of Henry III)
but, because that every man ought of right to defend the king and his
realm, therefore the king at his pleasure may command him by his writ
that he go not beyond the seas, or out of the realm without licence;
and if he do the contrary, he shall be punished for disobeying the
king's command. Some persons there antiently were, that, by reason of
their stations, were under a perpetual prohibition of going abroad
without licence obtained; among which were reckoned all peers, on
account of their being counsellors of the crown; all knights, who were
bound to defend the kingdom from invasions; all ecclesiastics, who
were expressly confined by cap. 4. of the constitutions of Clarendon,
on account of their attachment in the times of popery to the see of
Rome; all archers and other artificers, lest they should instruct
foreigners to rival us in their several trades and manufactures. This
was law in the times of Britton[t], who wrote in the reign of Edward
I: and sir Edward Coke[u] gives us many instances to this effect in
the time of Edward III. In the succeeding reign the affair of
travelling wore a very different aspect: an act of parliament being
made[w], forbidding all persons whatever to go abroad without licence;
_except_ only the lords and other great men of the realm; and true and
notable merchants; and the king's soldiers. But this act was repealed
by the statute 4 Jac. I. c. 1. And at present every body has, or at
least assumes, the liberty of going abroad when he pleases. Yet
undoubtedly if the king, by writ of _ne exeat regnum_, under his great
seal or privy seal, thinks proper to prohibit him from so doing; or if
the king sends a writ to any man, when abroad, commanding his return;
and in either case the subject disobeys; it is a high contempt of the
king's prerogative, for which the offender's lands shall be seised
till he return; and then he is liable to fine and imprisonment[x].
[Footnote s: F.N.B. 85.]
[Footnote t: c. 123.]
[Footnote u: 3 Inst. 175.]
[Footnote w: 5 Ric. II. c. 2.]
[Footnote x: 1 Hawk. P.C. 22.]
III. ANOTHER capacity, in which the king is considered in domestic
affairs, is as the fountain of justice and general conservator of the
peace of the kingdom. By the fountain of justice the law does not mean
the _author_ or _original_, but only the _distributor_. Justice is not
derived from the king, as from his _free gift_; but he is the steward
of the public, to dispense it to whom it is _due_[y]. He is not the
spring, but the reservoir; from whence right and equity are conducted,
by a thousand chanels, to every individual. The original power of
judicature, by the fundamental principles of society, is lodged in the
society at large: but as it would be impracticable to render complete
justice to every individual, by the people in their collective
capacity, therefore every nation has committed that power to certain
select magistrates, who with more ease and expedition can hear and
determine complaints; and in England this authority has immemorially
been exercised by the king or his substitutes. He therefore has alone
the right of erecting courts of judicature: for, though the
constitution of the kingdom hath entrusted him with the whole
executive power of the laws, it is impossible, as well as improper,
that he should personally carry into execution this great and
extensive trust: it is consequently necessary, that courts should be
erected, to assist him in executing this power; and equally necessary,
that, if erected, they should be erected by his authority. And hence
it is, that all jurisdictions of courts are either mediately or
immediately derived from the crown, their proceedings run generally in
the king's name, they pass under his seal, and are executed by his
officers.
[Footnote y: _Ad hoc autem creatus est et electus, ut justitiam faciat
universis._ Bract. _l._ 3. _tr._ 1. _c._ 9.]
IT is probable, and almost certain, that in very early times, before
our constitution arrived at it's full perfection, our kings in person
often heard and determined causes between party and party. But at
present, by the long and uniform usage of many ages, our kings have
delegated their whole judicial power to the judges of their several
courts; which are the grand depositary of the fundamental laws of the
kingdom, and have gained a known and stated jurisdiction, regulated by
certain and established rules, which the crown itself cannot now alter
but by act of parliament[z]. And, in order to maintain both the
dignity and independence of the judges in the superior courts, it is
enacted by the statute 13 W. III. c. 2. that their commissions shall
be made (not, as formerly, _durante bene placito_, but) _quamdiu bene
se gesserint_, and their salaries ascertained and established; but
that it may be lawful to remove them on the address of both houses of
parliament. And now, by the noble improvements of that law in the
statute of 1 Geo. III. c. 23. enacted at the earnest recommendation of
the king himself from the throne, the judges are continued in their
offices during their good behaviour, notwithstanding any demise of the
crown (which was formerly held[a] immediately to vacate their seats)
and their full salaries are absolutely secured to them during the
continuance of their commissions: his majesty having been pleased to
declare, that "he looked upon the independence and uprightness of the
judges, as essential to the impartial administration of justice; as
one of the best securities of the rights and liberties of his
subjects; and as most conducive to the honour of the crown[b]."
[Footnote z: 2 Hawk. P.C. 2.]
[Footnote a: Ld Raym. 747.]
[Footnote b: Com. Journ. 3 Mar. 1761.]
IN criminal proceedings, or prosecutions for offences, it would still
be a higher absurdity, if the king personally sate in judgment;
because in regard to these he appears in another capacity, that of
_prosecutor_. All offences are either against the king's peace, or his
crown and dignity; and are so laid in every indictment. For, though in
their consequences they generally seem (except in the case of treason
and a very few others) to be rather offences against the kingdom than
the king; yet, as the public, which is an invisible body, has
delegated all it's power and rights, with regard to the execution of
the laws, to one visible magistrate, all affronts to that power, and
breaches of those rights, are immediately offences against him, to
whom they are so delegated by the public. He is therefore the proper
person to prosecute for all public offences and breaches of the peace,
being the person injured in the eye of the law. And this notion was
carried so far in the old Gothic constitution, (wherein the king was
bound by his coronation oath to conserve the peace) that in case of
any forcible injury offered to the person of a fellow subject, the
offender was accused of a kind of perjury, in having violated the
king's coronation oath; _dicebatur fregisse juramentum regis
juratum_[c]. And hence also arises another branch of the prerogative,
that of _pardoning_ offences; for it is reasonable that he only who is
injured should have the power of forgiving. And therefore, in
parliamentary impeachments, the king has no prerogative of pardoning:
because there the commons of Great Britain are in their own names the
prosecutors, and not the crown; the offence being for the most part
avowedly taken to be done against the public. Of prosecutions and
pardons I shall treat more at large hereafter; and only mention them
here, in this cursory manner, to shew the constitutional grounds of
this power of the crown, and how regularly connected all the links are
in this vast chain of prerogative.
[Footnote c: Stiernh. _de jure Goth._ _l._ 3. _c._ 3. A notion
somewhat similar to this may be found in the mirrour. c. 1. §. 5.]
IN this distinct and separate existence of the judicial power, in a
peculiar body of men, nominated indeed, but not removeable at
pleasure, by the crown, consists one main preservative of the public
liberty; which cannot subsist long in any state, unless the
administration of common justice be in some degree separated both from
the legislative and also from the executive power. Were it joined with
the legislative, the life, liberty, and property, of the subject would
be in the hands of arbitrary judges, whose decisions would be then
regulated only by their own opinions, and not by any fundamental
principles of law; which, though legislators may depart from, yet
judges are bound to observe. Were it joined with the executive, this
union might soon be an over-ballance for the legislative. For which
reason, by the statute of 16 Car. I. c. 10. which abolished the court
of star chamber, effectual care is taken to remove all judicial power
out of the hands of the king's privy council; who, as then was evident
from recent instances, might soon be inclined to pronounce that for
law, which was most agreeable to the prince or his officers. Nothing
therefore is more to be avoided, in a free constitution, than uniting
the provinces of a judge and a minister of state. And indeed, that the
absolute power, claimed and exercised in a neighbouring nation, is
more tolerable than that of the eastern empires, is in great measure
owing to their having vested the judicial power in their parliaments,
a body separate and distinct from both the legislative and executive:
and, if ever that nation recovers it's former liberty, it will owe it
to the efforts of those assemblies. In Turkey, where every thing is
centered in the sultan or his ministers, despotic power is in it's
meridian, and wears a more dreadful aspect.
A CONSEQUENCE of this prerogative is the legal _ubiquity_ of the king.
His majesty, in the eye of the law, is always present in all his
courts, though he cannot personally distribute justice[d]. His judges
are the mirror by which the king's image is reflected. It is the regal
office, and not the royal person, that is always present in court,
always ready to undertake prosecutions, or pronounce judgment, for the
benefit and protection of the subject. And from this ubiquity it
follows, that the king can never be nonsuit[e]; for a nonsuit is the
desertion of the suit or action by the non-appearance of the plaintiff
in court. For the same reason also, in the forms of legal proceedings,
the king is not said to appear _by his attorney_, as other men do; for
he always appears in contemplation of law in his own proper person[f].
[Footnote d: Fortesc. c. 8. 2 Inst. 186.]
[Footnote e: Co. Litt. 139.]
[Footnote f: Finch. L. 81.]
FROM the same original, of the king's being the fountain of justice,
we may also deduce the prerogative of issuing proclamations, which is
vested in the king alone. These proclamations have then a binding
force, when (as Sir Edward Coke observes[g]) they are grounded upon
and enforce the laws of the realm. For, though the making of laws is
entirely the work of a distinct part, the legislative branch, of the
sovereign power, yet the manner, time, and circumstances of putting
those laws in execution must frequently be left to the discretion of
the executive magistrate. And therefore his constitutions or edicts,
concerning these points, which we call proclamations, are binding upon
the subject, where they do not either contradict the old laws, or tend
to establish new ones; but only enforce the execution of such laws as
are already in being, in such manner as the king shall judge
necessary. Thus the established law is, that the king may prohibit any
of his subjects from leaving the realm: a proclamation therefore
forbidding this in general for three weeks, by laying an embargo upon
all shipping in time of war[h], will be equally binding as an act of
parliament, because founded upon a prior law. A proclamation for
disarming papists is also binding, being only in execution of what the
legislature has first ordained: but a proclamation for allowing arms
to papists, or for disarming any protestant subjects, will not bind;
because the first would be to assume a dispensing power, the latter a
legislative one; to the vesting of either of which in any single
person the laws of England are absolutely strangers. Indeed by the
statute 31 Hen. VIII. c. 8. it was enacted, that the king's
proclamations should have the force of acts of parliament: a statute,
which was calculated to introduce the most despotic tyranny; and which
must have proved fatal to the liberties of this kingdom, had it not
been luckily repealed in the minority of his successor, about five
years after[i].
[Footnote g: 3 Inst. 162.]
[Footnote h: 4 Mod. 177, 179.]
[Footnote i: Stat. 1 Edw. VI. c. 12.]
IV. THE king is likewise the fountain of honour, of office, and of
privilege: and this in a different sense from that wherein he is
stiled the fountain of justice; for here he is really the parent of
them. It is impossible that government can be maintained without a
due subordination of rank; that the people may know and distinguish
such as are set over them, in order to yield them their due respect
and obedience; and also that the officers themselves, being encouraged
by emulation and the hopes of superiority, may the better discharge
their functions: and the law supposes, that no one can be so good a
judge of their several merits and services, as the king himself who
employs them. It has therefore intrusted with him the sole power of
conferring dignities and honours, in confidence that he will bestow
them upon none, but such as deserve them. And therefore all degrees of
nobility, of knighthood, and other titles, are received by immediate
grant from the crown: either expressed in writing, by writs or letters
patent, as in the creations of peers and baronets; or by corporeal
investiture, as in the creation of a simple knight.
FROM the same principle also arises the prerogative of erecting and
disposing of offices: for honours and offices are in their nature
convertible and synonymous. All offices under the crown carry in the
eye of the law an honour along with them; because they imply a
superiority of parts and abilities, being supposed to be always filled
with those that are most able to execute them. And, on the other hand,
all honours in their original had duties or offices annexed to them:
an earl, _comes_, was the conservator or governor of a county; and a
knight, _miles_, was bound to attend the king in his wars. For the
same reason therefore that honours are in the disposal of the king,
offices ought to be so likewise; and as the king may create new
titles, so may he create new offices: but with this restriction, that
he cannot create new offices with new fees annexed to them, nor annex
new fees to old offices; for this would be a tax upon the subject,
which cannot be imposed but by act of parliament[k]. Wherefore, in 13
Hen. IV, a new office being created by the king's letters patent for
measuring cloths, with a new fee for the same, the letters patent
were, on account of the new fee, revoked and declared void in
parliament.
[Footnote k: 2 Inst. 533.]
UPON the same, or a like reason, the king has also the prerogative of
conferring privileges upon private persons. Such as granting place or
precedence to any of his subjects, as shall seem good to his royal
wisdom[l]: or such as converting aliens, or persons born out of the
king's dominions, into denizens; whereby some very considerable
privileges of natural-born subjects are conferred upon them. Such also
is the prerogative of erecting corporations; whereby a number of
private persons are united and knit together, and enjoy many
liberties, powers, and immunities in their politic capacity, which
they were utterly incapable of in their natural. Of aliens, denizens,
natural-born, and naturalized subjects, I shall speak more largely in
a subsequent chapter; as also of corporations at the close of this
book of our commentaries. I now only mention them incidentally, in
order to remark the king's prerogative of making them; which is
grounded upon this foundation, that the king, having the sole
administration of the government in his hands, is the best and the
only judge, in what capacities, with what privileges, and under what
distinctions, his people are the best qualified to serve, and to act
under him. A principle, which was carried so far by the imperial law,
that it was determined to be the crime of sacrilege, even to doubt
whether the prince had appointed proper officers in the state[m].
[Footnote l: 4 Inst. 361.]
[Footnote m: _Disputare de principali judicio non oportet: sacrilegii
enim instar est, dubitare an is dignus sit; quem elegerit imperator._
_C._ 9. 29. 3.]
V. ANOTHER light in which the laws of England consider the king with
regard to domestic concerns, is as the arbiter of commerce. By
commerce, I at present mean domestic commerce only. It would lead me
into too large a field, if I were to attempt, to enter upon the nature
of foreign trade, it's privileges, regulations, and restrictions; and
would be also quite beside the purpose of these commentaries, which
are confined to the laws of England. Whereas no municipal laws can be
sufficient to order and determine the very extensive and complicated
affairs of traffic and merchandize; neither can they have a proper
authority for this purpose. For as these are transactions carried on
between the subjects of independent states, the municipal laws of one
will not be regarded by the other. For which reason the affairs of
commerce are regulated by a law of their own, called the law merchant
or _lex mercatoria_, which all nations agree in and take notice of.
And in particular the law of England does in many cases refer itself
to it, and leaves the causes of merchants to be tried by their own
peculiar customs; and that often even in matters relating to inland
trade, as for instance with regard to the drawing, the acceptance, and
the transfer, of bills of exchange[n].
[Footnote n: Co. Litt. 172. Ld Raym. 181. 1542.]
WITH us in England, the king's prerogative, so far as it relates to
mere domestic commerce, will fall principally under the following
articles:
FIRST, the establishment of public marts, or places of buying and
selling, such as markets and fairs, with the tolls thereunto
belonging. These can only be set up by virtue of the king's grant, or
by long and immemorial usage and prescription, which presupposes such
a grant[o]. The limitation of these public resorts, to such time and
such place as may be most convenient for the neighbourhood, forms a
part of oeconomics, or domestic polity; which, considering the kingdom
as a large family, and the king as the master of it, he clearly has a
right to dispose and order as he pleases.
[Footnote o: 2 Inst. 220.]
SECONDLY, the regulation of weights and measures. These, for the
advantage of the public, ought to be universally the same throughout
the kingdom; being the general criterions which reduce all things to
the same or an equivalent value. But, as weight and measure are things
in their nature arbitrary and uncertain, it is therefore expedient
that they be reduced to some fixed rule or standard: which standard it
is impossible to fix by any written law or oral proclamation; for no
man can, by words only, give another an adequate idea of a foot-rule,
or a pound-weight. It is therefore necessary to have recourse to some
visible, palpable, material standard; by forming a comparison with
which, all weights and measures may be reduced to one uniform size:
and the prerogative of fixing this standard, our antient law vested in
the crown; as in Normandy it belonged to the duke[p]. This standard
was originally kept at Winchester: and we find in the laws of king
Edgar[q], near a century before the conquest, an injunction that the
one measure, which was kept at Winchester, should be observed
throughout the realm. Most nations have regulated the standard of
measures of length by comparison with the parts of the human body; as
the palm, the hand, the span, the foot, the cubit, the ell, (_ulna_,
or arm) the pace, and the fathom. But, as these are of different
dimensions in men of different proportions, our antient historians[r]
inform us, that a new standard of longitudinal measure was ascertained
by king Henry the first; who commanded that the _ulna_ or antient ell,
which answers to the modern yard, should be made of the exact length
of his own arm. And, one standard of measures of length being gained,
all others are easily derived from thence; those of greater length by
multiplying, those of less by subdividing, that original standard.
Thus, by the statute called _compositio ulnarum et perticarum_, five
yards and an half make a perch; and the yard is subdivided into three
feet, and each foot into twelve inches; which inches will be each of
the length of three grains of barley. Superficial measures are derived
by squaring those of length; and measures of capacity by cubing them.
The standard of weights was originally taken from corns of wheat,
whence the lowest denomination of weights we have is still called a
grain; thirty two of which are directed, by the statute called
_compositio mensurarum_, to compose a penny weight, whereof twenty
make an ounce, twelve ounces a pound, and so upwards. And upon these
principles the first standards were made; which, being originally so
fixed by the crown, their subsequent regulations have been generally
made by the king in parliament. Thus, under king Richard I, in his
parliament holden at Westminster, _A.D._ 1197, it was ordained that
there shall be only one weight and one measure throughout the kingdom,
and that the custody of the assise or standard of weights and measures
shall be committed to certain persons in every city and borough[s];
from whence the antient office of the king's aulnager seems to have
been derived, whose duty it was, for a certain fee, to measure all
cloths made for sale, till the office was abolished by the statute 11
& 12 W. III. c. 20. In king John's time this ordinance of king Richard
was frequently dispensed with for money[t]; which occasioned a
provision to be made for inforcing it, in the great charters of king
John and his son[u]. These original standards were called _pondus
regis_[w], and _mensura domini regis_[x]; and are directed by a
variety of subsequent statutes to be kept in the exchequer, and all
weights and measures to be made conformable thereto[y]. But, as sir
Edward Coke observes[z], though this hath so often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude, when it hath gotten an head. |
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