Front Page Titles (by Subject) CHAPTER VII.: OF THE KING'S PREROGATIVE. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER VII.: OF THE KING’S PREROGATIVE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF THE KING’S PREROGATIVE.
It was observed in a former chapter(a) that one of the principal bulwarks of civil liberty, or (in other words) of the British constitution, was the limitation of the king’s prerogative by bounds so certain and notorious that it is impossible he should ever exceed them, without the consent of the people on the one hand; or without, on the other, a violation of that original contract which, in all states impliedly, and in ours most expressly, subsists between the prince and the subject. It will now be our business to consider this prerogative minutely; to demonstrate its necessity in general; and to mark out in the most important instances its particular extent and restrictions: from which considerations this conclusion will evidently follow, that the powers which are vested in the crown by the laws of England, are necessary for the support of society; and do not intrench any further on our natural liberties, than is expedient for the maintenance of our civil.1
There cannot be a stronger proof of that genuine freedom, which is the boast of this age and country, than the power of discussing and examining, with decency and respect, the limits of the king’s prerogative; a topic, that in some former ages was thought too delicate and sacred to be profaned by the pen of a subject. It was ranked among the arcana imperii: and, like the mysteries of the bona dea, was *[*238not suffered to be pried into by any but such as were initiated in its service: because perhaps the exertion of the one, like the solemnities of the other, would not bear the inspection of a rational and sober inquiry. The glorious queen Elizabeth herself made no scruple to direct her parliaments to abstain from discoursing of matters of state;(b) and it was the constant language of this favourite princess and her ministers, that even that august assembly “ought not to deal, to judge, or to meddle with her majesty’s prerogative royal.”(c) And her successor, king James the First, who had imbibed high notions of the divinity of regal sway, more than once laid it down in his speeches, that, “as it is atheism and blasphemy in a creature to dispute what the Deity may do, so it is presumption and sedition in a subject to dispute what a king may do in the height of his power: good Christians, he adds, will be content with God’s will, revealed in his word; and good subjects will rest in the king’s will, revealed in his law.”(d)
But, whatever might be the sentiments of some of our princes, this was never the language of our ancient constitution and laws. The limitation of the regal authority was a first and essential principle in all the Gothic systems of government established in Europe; though gradually driven out and overborne, by violence and chicane, in most of the kingdoms on the continent. We have seen, in the preceding chapter, the sentiments of Bracton and Fortescue, at the distance of two centuries from each other. And Sir Henry Finch, under Charles the First, after the lapse of two centuries more, though he lays down the law of prerogative in very strong and emphatical terms, yet qualifies it with a general restriction, in regard to the liberties of the people. “The king hath a prerogative in all things, that are not injurious to the subject; for in them all it must be remembered, that the king’s prerogative stretcheth not to the doing of any wrong.”(e)Nihil enim aliud potest rex, nisi id solum quod **239]de jure potest.(f) And here it may be some satisfaction 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, quia lex facit regem:” the imperial law will tell us, that, “in omnibus, imperatoris excipitur fortuna; cui ipsas leges Deus subjecit.”(g) 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.”(h) This is at once laying down the principle of despotic power, and at the same time acknowledging its 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 its etymology, (from præ and rogo,) something that is required or demanded before, or in preference to, all others. And hence it follows, that it must be in its 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(i) 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 **240]authority, as are rooted in and spring from the king’s political person, considered merely by itself, without reference to any other extrinsic circumstance; as, the right of sending ambassadors, of creating peers, and of making war or peace. But such prerogatives as are incidental bear always a relation to something else, distinct from the king’s person; and are indeed only exceptions, in favour of the crown, to those general rules that are established for the rest of the community; such as, that no costs shall be recovered against the king; that the king can never be a joint-tenant; and that his debt shall be preferred before a debt to any of his subjects. These, and an infinite number of other instances, will better be understood, when we come regularly to consider the rules themselves, to which these incidental prerogatives are exceptions. And therefore we will at present only dwell upon the king’s substantive or direct prerogatives.
These substantive or direct prerogatives may again be divided into three kinds: being such as regard, first, the king’s royal character; secondly, his royal authority; and, lastly, his royal income. These are necessary, to secure reverence to his person, obedience to his commands, and an affluent supply for the ordinary expenses of government; without all of which it is impossible to maintain the executive power in due independence and vigour. Yet, in every branch of this large and extensive dominion, our free constitution has interposed such seasonable checks and restrictions, as may curb it from trampling on those liberties which it was meant to secure and establish. The enormous weight of prerogative, if left to itself, (as in arbitrary governments it is,) spreads havoc and destruction among all the inferior movements: but, when balanced and regulated (as with us) by its proper counterpoise, timely and judiciously applied, its operations are then equable and certain, it invigorates the whole machine, and enables every part to answer the end of its construction.
In the present chapter we shall only consider the two first of these divisions, which relate to the king’s political *[*241character and authority; or, in other words, his dignity and regal power; to which last the name of prerogative is frequently narrowed and confined. The other division, which forms the royal revenue, will require a distinct examination; according to the known distribution of the feodal writers, who distinguish the royal prerogatives into the majora and minora regalia, in the latter of which classes the rights of the revenue are ranked. For to use their own words, “majora regalia imperii præ-eminentiam spectant; minora vero ab commodum pecuniarum immediate attinent; et hæc proprie fiscalia sunt, et ad jus fisci pertinent.”(k)
First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects, not only by the outward pomp and decorations of majesty, but also by ascribing to him certain qualities, as inherent in his royal capacity, distinct from and superior to those of any other individual in the nation. For though a philosophical mind will consider the royal person merely as one man appointed by mutual consent to presido over many others, and will pay him that reverence and duty which the principles of society demand; yet the mass of mankind will be apt to grow insolent and refractory, if taught to consider their prince as a man of no greater perfection than themselves. The law therefore ascribes to the king, in his high political character, not only large powers and emoluments, which form his prerogative and revenue, but likewise certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine.
I. And, first, the law ascribes to the king the attribute of sovereignty, or pre-eminence. “Rex est vicarius,” says Bracton,(l) “et minister Dei in terra: omnis quidem sub eo est, et ipse *[*242sub nullo, nisi tantum sub Deo.”2 He is said to have imperial dignity; and in charters before the conquest is frequently styled basileus and imperator, the titles respectively assumed by the emperors of the east and west.(m) His realm is declared to be an empire, and his crown imperial, by many acts of parliament, particularly the statutes 24 Hen. VIII. c. 12, and 25 Hen. VIII. c. 28;(n) which at the same time declare the king to be the supreme head of the realm in matters both civil and ecclesiastical, and of consequence inferior to no man upon earth, dependent on no man, accountable to no man. Formerly there prevailed a ridiculous notion, propagated by the German and Italian civilians, that an emperor could do many things which a king could not, (as the creation of notaries and the like,) and that all kings were in some degree subordinate and subject to the emperor of Germany or Rome. The meaning therefore of the legislature, when it uses these terms of empire and imperial, and applies them to the realm and crown of England, is only to assert that our king is equally sovereign and independent within these his dominions, as any emperor is in his empire;(o) and owes no kind of subjection to any other potentate upon earth. Hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. For all jurisdiction implies superiority of power: authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it: but who, says Finch,(p) shall command the king? Hence it is likewise, that by law the person of the king is sacred, even though the measures pursued in his reign be completely tyrannical and arbitrary: for no jurisdiction upon earth has power to try him in a criminal way; much less to condemn him to punishment. If any foreign jurisdiction had this power, as was formerly claimed by the pope, the independence of the kingdom would be no more; and, if such a power were vested in any domestic **243]tribunal, there would soon be an end of the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative power.3
Are then, it may be asked, the subjects of England totally destitute of remedy, in case the crown should invade their rights, either by private injuries, or public oppressions? To this we may answer, that the law has provided a remedy in both cases.
And, first, as to private injuries: if any person has, in point of property, a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion.(q)4 And this is entirely consonant to what is laid down by the writers on natural law. “A subject,” says Puffendorf,(r) “so long as he continues a subject, hath no way to oblige his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity than upon the municipal laws.” For the end of such action is not to compel the prince to observe the contract, but to persuade him. And, as to personal wrongs, it is well observed by Mr. Locke,(s) “the harm which the sovereign can do in his own person not being likely to happen often, nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the body of the people, (should any prince have so much weakness and ill nature as to endeavour to do it,) the inconveniency therefore 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 security of the government, in the person of the chief magistrate being thus set out of the reach of danger.”
*[*244Next, as to cases of ordinary public oppression, where the vitals of the constitution are not attacked, the law hath also assigned a remedy. For, as the king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. The constitution has therefore provided, by means of indictments and parliamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. But it is at the same time a maxim in those laws, that the king himself can do no wrong: since it would be a great weakness and absurdity in any system of positive law to define any possible wrong, without any possible redress.
For, as to such public oppressions as tend to dissolve the constitution and subvert the fundamentals of government, they are cases which the law will not, out of decency, suppose; being incapable of distrusting those whom it has invested with any part of the supreme power; since such distrust would render the exercise of that power precarious and impracticable.(t) For, wherever the law expresses its distrust of abuse of power, it always vests a superior coercive authority in some other hand to correct it; the very notion of which destroys the idea of sovereignty. If therefore, for example, the two houses of parliament, or either of them, had avowedly a right to animadvert on the king, or each other, or if the king had a right to animadvert on either of the houses, that branch of the legislature, so subject to animadversion, would cease to be part of the supreme power; the balance of the constitution would be overturned, and that branch or branches, in which this jurisdiction resided, would be completely sovereign. The supposition of law therefore is, that neither the king nor either house of parliament, collectively taken, is capable of doing any wrong: since in such cases the law feels itself incapable of furnishing any adequate *[*245remedy. For which reason all oppression which may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any stated rule, or express legal provision; but if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies.
Indeed, it is found by experience, that whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides, and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims which were originally established to preserve it. And therefore, though the positive laws are silent, experience will furnish us with a very remarkable case wherein nature and reason prevailed. When king James the Second invaded the fundamental constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. And so far as the precedent leads, and no further, we may now be allowed to lay down the law of redress against public oppression. If, therefore, any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant. But it is not for us to say that any one, or two, of these ingredients would amount to such a situation; for there our precedent would fail us. In these, therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent, though latent, powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish.
*[*246II. Besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute perfection. The king can do no wrong: which ancient and fundamental maxim is not to be understood, as if every thing transacted by the government was of course just and lawful, but means only two things. First, that whatever is exceptionable in the conduct of public affairs, is not to be imputed to the king, nor is he answerable for it personally to his people; for this doctrine would totally destroy that constitutional independence of the crown, which is necessary for the balance of power in our free and active, and therefore compounded, constitution. And, secondly, it means that the prerogative of the crown extends not to any injury: it is created for the benefit of the people, and therefore cannot be exerted to their prejudice.(u)5
The king, moreover, is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness. And, therefore, if the crown should be induced to grant any franchise or privilege to a subject contrary to reason, or in any wise prejudicial to the commonwealth, or a private person, the law will not suppose the king to have meant either an unwise or an injurious action, but declares that the king was deceived in his grant; and thereupon such grant is rendered void, merely upon the foundation of fraud and deception, either by or upon those agents whom the crown has thought proper to employ. For the law will not cast an imputation on that magistrate whom it intrusts with the executive power, as if he was capable of intentionally disregarding his trust; but attributes to mere imposition (to which the most perfect of sublunary beings must still continue liable) those little inadvertencies, which, if charged on the will of the prince, might lessen him in the eyes of his subjects.
**247]Yet still, notwithstanding this personal perfection, which the law attributes to the sovereign, the sovereign, the constitution has allowed a latitude of supposing the contrary, in respect to both houses of parliament, each of which, in its turn, hath exerted the right of remonstrating and complaining to the king even of those acts of royalty, which are most properly and personally his own; such as messages signed by himself, and speeches delivered from the throne. And yet, such is the reverence which is paid to the royal person, that though the two houses have an undoubted right to consider these acts of state in any light whatever, and accordingly treat them in their addresses as personally proceeding from the prince, yet among themselves, (to preserve the more perfect decency, and for the greater freedom of debate,) they usually suppose them to flow from the advice of the administration. But the privilege of canvassing thus freely the personal acts of the sovereign (either directly or even through the medium of his reputed advisers) belongs to no individual, but is consigned to those august assemblies; and there too the objections must be proposed with the utmost respect and deference. One member was sent to the tower(v) for suggesting that his majesty’s answer to the address of the commons contained “high words to fright the members out of their duty;” and another,(w) for saying that a part of the king’s speech “seemed rather to be calculated for the meridian of Germany than Great Britain, and that the king was a stranger to our language and constitution.”
In further pursuance of this principle, the law also determines that in the king can be no negligence, or laches, and therefore no delay will bar his right. Nullum tempus occurrit regi has been the standing maxim upon all occasions; for the law intends that the king is always busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects.(y)6 In the king also can be no stain or corruption of *[*248blood; for, if the heir to the crown were attained of treason or felony, and afterwards the crown should descend to him, this would purge the attainder ipso facto.(z) And therefore when Henry VII., who, as earl of Richmond, stood attained, came to the crown, it was not thought necessary to pass an act of parliament to reverse this attainder; because, as lord Bacon, in his history of that prince, informs us, it was agreed that the assumption of the crown had at once purged all attainders. Neither can the king in judgment of law, as king, ever be a minor or under age; and therefore his royal grants and assents to acts of parliament are good, though he has not in his natural capacity attained the legal age of twenty-one.(a) By a statute, indeed, 28 Hen. VIII. c. 17, power was given to future kings to rescind and revoke all acts of parliament that should be made while they were under the age of twenty-four; but this was repealed by the statute 1 Edw. VI. c. 11, so far as related to that prince; and both statutes are declared to be determined by 24 Geo. II. c. 24. It hath also been usually thought prudent, when the heir-apparent hath been very young, to appoint a protector, guardian, or regent, for a limited time: but the very necessity of such extraordinary provision is sufficient to demonstrate the truth of that maxim of the common law, that in the king is no minority; and therefore he hath no legal guardian.(b)7
**249]III. A third attribute of the king’s majesty is his perpetuity. The law ascribes to him in his political capacity an absolute immortality. The king never dies. Henry, Edward, or George may die; but the king survives them all. For immediately upon the decease of the reigning prince in his natural capacity, his kingship or imperial dignity, by act of law, without any interregnum or interval, is vested at once in his heir, who is, eo instanti, king to all intents and purposes. And so tender is the law of supposing even a possibility of his death that his natural dissolution is generally called his demise; demissio regis, vel coronæ: an expression which signifies merely a transfer of property; for, as is observed in Plowden,(c) when we say the demise of the crown, we mean only that, in consequence of the disunion of the king’s natural body from his body politic, the kingdom is transferred or demised to his successor; and so the royal dignity remains perpetual. Thus, too, when Edward the Fourth, in the tenth year of his reign, was driven from his throne for a few months by the house of Lancaster, this temporary transfer of his dignity was denominated his demise; and all process was held to be discontinued, as upon a natural death of the king.(d)8
**250]We are next to consider those branches of the royal prerogative, which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers, in the exertion whereof consists the executive part of government. This is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength, and despatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government; and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. The king of England is therefore not only the chief, but properly the sole, magistrate of the nation, all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the Roman state, all the powers of the ancient magistracy of the commonwealth were concentrated in the new emperor: so that, as Gravina(e) expresses it, “in ejus unius versona veteris reipublicæ vis atque majestas per cumulatas magistratuum potestates exprimebatur.”
After what has been premised in this chapter, I shall not (I trust) be considered as an advocate for arbitrary power, when I lay it down as a principle, that in the exertion of lawful prerogative the king is and ought to be absolute; that is, so far absolute that there is no legal authority that can either delay or resist him. He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences, he pleases; unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring that thus far the prerogative shall go, and no further. For otherwise the power of the crown would indeed be but a name and a shadow, insufficient for the ends of government, if, where its jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: I say in the ordinary course of law; for I do not *[*251now speak of those extraordinary recourses to first principles, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression. And yet the want of attending to this obvious distinction has occasioned these doctrines, of absolute power in the prince and of national resistance by the people, to be much misunderstood and perverted, by the advocates of slavery on the one hand, and the demagogues of faction on the other. The former, observing the absolute sovereignty and transcendent dominion of the crown laid down (as it certainly is) most strongly and emphatically in our law-books, as well as our homilies, have denied that any case can be excepted from so general and positive a rule; forgetting how impossible it is, in any practical system of laws, to point out beforehand those eccentrical remedies, which the sudden emergence of national distress may dictate, and which that alone can justify. On the other hand, over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or sometimes factiously) gone over to the other extreme; and because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to resist even private oppression. A doctrine productive of anarchy, and, in consequence, equally fatal to civil liberty, as tyranny itself. For civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society; society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power; and obedience is an empty name, if every individual has a right to decide how far he himself shall obey.
In the exertion, therefore, of those prerogatives which the law has given, the king is irresistible and absolute, according to the forms of the constitution And yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call his advisers *[*252to a just and severe account. For prerogative consisting (as Mr. Locke(f) has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent; if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner. Thus the king may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet, when such treaties have been judged pernicious, impeachments have pursued those ministers, by whose agency or advice they were concluded.
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 its 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 centre, all the rays of his people are united, and form by that union a consistency, splendour, and power, that make him feared and respected by foreign potentates; who would scruple to enter into any engagement 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,(g) 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 **253]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.
I. The king therefore, considered as the representative of his people, has the sole power of sending ambassadors to foreign states, and receiving ambassadors at home. This may lead us into a short digression, by way of inquiry, how far the municipal laws of England intermeddle with or protect the rights of these messengers from one potentate to another, whom we call ambassadors.
The rights, the powers, the duties, and the privileges of ambassadors 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 ambassador 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;(h) who is bound either to do justice upon him, or avow himself the accomplice of his crimes.(i) But there is great dispute among the writers on the laws of nations, whether this exemption of ambassadors 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.(k) Our law seems to have formerly taken in the restriction, as well as the general exemption. **254]For it has been held, both by our common lawyers and civilians,(l) that an ambassador 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;(m) and that therefore, if an ambassador 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.(n) And these positions seem to be built upon good appearance of reason. For since, as we have formerly shown, 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, ambassadors, 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.(o) But, however these principles might formerly obtain, the general practice of this country, as well as of the rest of Europe, seems now to pursue the sentiments of the learned Grotius, that the security of ambassadors is of more importance than the punishment of a particular crime.(p) And therefore few, if any, examples have happened within a century past, where an ambassador has been punished for any offence, however atrocious in its nature.9
In respect to civil suits, all the foreign jurists agree that neither an ambassador, or 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 ambassador make a contract which is good jure gentium, he shall answer for it here.(q) But the truth is, so few cases (if any) had arisen, wherein the privilege was either claimed or disputed, even with regard to civil suits, that our law-books are (in general) quite silent upon it previous to the *[*255reign of queen Anne; when an ambassador from Peter the Great, czar of Muscovy, was actually arrested and taken out of his coach in London,(r) for a debt of fifty pounds which he had there contracted. Instead of applying to be discharged upon his privilege, he gave bail to the action, and the next day complained to the queen. The persons who were concerned in the arrest were examined before the privy council, (of which the Lord Chief Justice Holt was at the same time sworn a member,)(s) and seventeen were committed to prison;(t) most of whom were prosecuted by information in the court of Queen’s Bench, at the suit of the attorney general,(u) and at their trial before the lord chief justice were convicted of the facts by the jury,(v) reserving the question of law, how far those facts were criminal, to be afterwards argued before the judges; which question was never determined.10 In the mean time the czar resented this affront very highly, and demanded that the sheriff of Middlesex and all others concerned in the arrest should be punished with instant death.(w) But the queen (to the amazement of that despotic court) directed her secretary to inform him, “that she could inflict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land; and therefore was persuaded that he would not insist upon impossibilities.”(x) To satisfy, however, the clamours of the foreign ministers, (who made it a common cause,) as well as to appease the wrath of Peter, a bill was brought into parliament,(y) and afterwards passed into a law,(z) to prevent and punish such outrageous insolence for the future. And with a copy of this act, elegantly engrossed and illuminated, accompanied by a letter from the queen, an ambassador extraordinary(a) was commissioned to appear at Moscow,(b) who declared “that though her majesty could not inflict such a punishment as was required, **256]because of the defect in that particular of the former established constitutions of her kingdom, yet, with the unanimous consent of the parliament, she had caused a new act to be passed, to serve as a law for the future.” This humiliating step was accepted as a full satisfaction by the czar; and the offenders, at his request, were discharged from all further prosecution.
This statute(c) recites 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 ambassadors 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 ambassador, or of his domestic or domestic servant, may be arrested, or his goods distrained or seised, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process, shall be deemed violators 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 ambassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an ambassador’s servant, unless his name be registered 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 ambassadors,(d) as observed in the most civilized countries. And in consequence of this statute, thus declaring and enforcing the law of nations, these privileges are **257]now held to be part of the law of the land, and are constantly allowed in the courts of common law.(e)11
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;(f) 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 from criminal motives advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation.
III. Upon the same principle, the king has also the sole prerogative of making war and peace.12 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:(g) and this right is given up, not only by individuals, but even by the entire 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 volunteers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law,(h)hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: cæteri latrones aut *[*258prædones sunt. And the reason which is given by Grotius(i) 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.
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 respects 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 declaration of war. These letters are grantable by the law of nations,(k) 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 used as synonymous, and signifying, the latter, a taking in return; the former, the passing the frontiers in order to such taking)(l) may be obtained, in order to seize the bodies or goods of the subjects of the offending state, until satisfaction *[*259be made, wherever they happen to be found. And indeed this custom of reprisals seems dictated by nature herself; for which reason we find in the most ancient times very notable instances of it.(m) 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. In pursuance of which principle, it is with us declared, by the statute 4 Hen. V. c. 7, that, if any subjects of the realm are oppressed in the 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 be 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 seize the property of the aggressor nation without hazard of being condemned as a robber or pirate.13
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.14 And therefore Puffendorf very justly resolves(n) 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 coast by necessity, or by any cause that deserves pity or compassion. Great tenderness is shown 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 *[*260the 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 or merchandise from one place to another, without danger of being seized by our subjects, unless he has letters of safe-conduct; which, by divers ancient statutes,(o) must be granted under the king’s great seal and enrolled 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. But passports under the king’s sign-manual, or licenses from his ambassadors abroad, are now more usually obtained, and are allowed to be of equal validity.15
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(p) it is provided, that all merchants (unless publicly prohibited beforehand) shall have safe-conduct to depart from, to come into, to tarry in, and to go through, England, for the exercise of merchandise, 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,(q) 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 **261]the protection of foreign merchants one of the articles of their national liberty.”(r) But indeed it well justifies another observation which he has made,(s) “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 dishonourable employment, and prohibited the exercise thereof to persons of birth, or rank, or fortune:(t) and equally different from the bigotry of the canonists, who looked on trade as inconsistent with Christianity,(u) and determined at the council of Melfi, under pope Urban II., ad 1090, that it was impossible with a safe conscience to exercise any traffic, or follow the profession of the law.(w)
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.(x) I shall only further 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 **262]they may tend to restrain or diminish any of his rights or interests.(y) For it would be of most mischievous consequence to the public, if the strength of the executive power were liable to be curtailed without its 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:(z) and, likewise, the king may take the benefit of any particular act, though he be not named.(a)
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 its 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 *[*263undoubted right of his majesty, and his royal predecessors, kings and queons of England; and that both or either house of parliament cannot, nor ought to, pretend to the same.16
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:(b) 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 réparatio, arcis constructio, et expeditio contra hostem.(c) And this they were called upon to do so often, that, as Sir Edward Coke from M. Paris assures us,(d) there were, in the time of Hen. II., 1115 castles subsisting in England. The inconveniences 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 Newburgh 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,(e) that no subject can build a castle, or house of strength embattled, or other fortress defensible, without the license of the king; for the danger which might ensue, if every man at his pleasure might do it.
It is partly upon the same, and partly upon a fiscal foundation, to secure his marine revenue, that the king has the *[*264prerogative of appointing ports and havens, or such places only, for persons and merchandise to pass into and out of the realm, as he in his wisdom sees proper. By the feodal law all navigable rivers and havens were computed among the regalia,(f) and were subject to the sovereign of the state. And in England it hath always been holden, that the king is lord of the whole shore,(g) and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm;(h) and therefore, so early as the reign of king John, we find ships seized by the king’s officers for putting in at a place that was not a legal port.(i) These legal ports were undoubtedly at first assigned by the crown; since to each of them a court of portmote is incident,(j) the jurisdiction of which must flow from the royal authority: the great ports of the sea are also referred to, as well known and established, by statute 4 Hen. IV. c. 20, which prohibits the landing elsewhere under pain of confiscation: and the statute 1 Eliz. c. 11 recites, that the franchise of lading and discharging had been frequently granted by the crown.
But though the king had a power of granting the franchise of havens and ports, yet he had not the power of resumption, or of narrowing and confining their limits when once established; but any person had a right to load or discharge his merchandise in any part of the haven: whereby the revenue of the customs was much impaired and diminished, by fraudulent landings in obscure and private corners. This occasioned the statutes of 1 Eliz. c. 11, and 13 & 14 Car. II. c. 11, § 14, which enable the crown by commission to ascertain the limits of all ports, and to assign proper wharfs and quays in each port, for the exclusive landing and loading of merchandise.
The erection of beacons, light-houses, and sea-marks, is also a branch of the royal prerogative: whereof the first was **265]anciently used in order to alarm the country, in case of the approach of an enemy; and all of them are signally useful in guiding and preserving vessels at sea by night as well as by day. For this purpose the king hath the exclusive power, by commission under his great seal,(k) to cause them to be erected in fit and convenient places,(l) as well upon the lands of the subject as upon the demesnes of the crown: which power is usually vested by letters patent in the office of lord high admiral.(m) And by statute 8 Eliz. c. 13, the corporation of the trinity-house are empowered to set up any beacons or sea-marks wherever they shall think them necessary; and if the owner of the land or any other person shall destroy them, or shall take down any steeple, tree, or other known sea-mark, he shall forfeit 100l., or in case of inability to pay it, shall be ipso facto outlawed.
To this branch of the prerogative may also 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,(n) 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 license; and, if he do the contrary, he shall be punished for disobeying the king’s command. Some persons there anciently were, that, by reason of their stations, were under a perpetual prohibition of going abroad without license obtained; among which were reckoned all peers, on account of their being counsellors of **266]the crown; all knights, who were bound to defend the kingdom from invasions; all ecclesiastics, who were expressly confined by the fourth chapter 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,(o) who wrote in the reign of Edward I.: and Sir Edward Coke(p) 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,(q) forbidding all persons whatever to go abroad without license; 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 everybody 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 seized till he return; and then he is liable to fine and imprisonment.(r)17
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.(s) He is not the spring, but the reservoir, from whence right and equity are conducted by a thousand channels to every individual. The original power of judicature, by the fundamental principles of society, is *[*267lodged 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 intrusted 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.
It is probable, and almost certain, that in very early times, before our constitution arrived at its 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 depositories of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain established rules, which the crown itself cannot now alter but by act of parliament.(t) 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,(u) 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 **268]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(w) immediately to vacate their seats,)18 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.”(x)19
In criminal proceedings, or prosecutions for offences, it would still be a higher absurdity if the king personally sat 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 its 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.(y) And hence also arises another *[*269branch of the prerogative, that of pardoning offences; for it is reasonable that he only who is injured should have the power of forgiving.20 Of prosecutions and pardons I shall treat more at large hereafter, and only mention them here in this cursory manner to show the constitutional grounds of this power of the crown, and how regularly connected all the links are in the vast chain of prerogative.
In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable 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 overbalance for the legislative. For which reason, by the statute of 16 Car. I. c. 10, which abolished the court of Starchamber, 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 its former liberty, it will owe it to the efforts of those assemblies. In Turkey, where every thing is centred in the sultan or his ministers, **270]despotic power is in its 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.(z) 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;(a) for a nonsuit is the desertion of a suit or action by the non-appearance of the plaintiff in court.21 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 in contemplation of law he is always present in court.(b)
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)(c) 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 **271]an embargo upon all shipping in time of war,(d) will be equally binding as an act of parliament, because founded upon a prior law. But a proclamation to lay an embargo in time of peace upon all vessels laden with wheat (though in the time of public scarcity) being contrary to law, and particularly to statute 22 Car. II. c. 13, the advisers of such a proclamation, and all persons acting under it, found it necessary to be indemnified by a special act of parliament, 7 Geo. III. c. 7. 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.(e)22
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 styled 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 him with 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 *[*272nobility and 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.(f) 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.23
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,24 as shall seem good to his royal wisdom:(g) 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 *[*273capacity, 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.25 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.(h)
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, its 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 merchandise; neither can they have a proper authority for this purpose. For, as these are transactions carried on between 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 it is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries; and that often even in matters relating to domestic trade, as, for instance, with regard to the drawing, the acceptance, and the transfer of inland bills of exchange.(i)26
**274]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.(k) The limitation of these public resorts to such time and such place as may be most convenient for the neighbourhood, forms a part of economics, 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.
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 ancient law vested in the crown, as in Normandy it belonged to the duke.(l) This standard was originally kept at Winchester, and we find in the laws of king Edgar,(m) near a century before the conquest, an injunction that one measure, which was kept at Winchester, should be observed throughout the realm. Most nations have regulated the standard of measures of length by *[*275comparison 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 dimension in men of different proportions, our ancient historians(n) inform us, that a new standard of longitudinal measure was ascertained by king Henry the First, who commanded that the ulna, or ancient 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 a 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 pennyweight, 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, ad 1197, it was ordained that there should be only one weight and one measure throughout the kingdom, and that the custody of the assize, or standard of weights and measures, should be committed to certain persons in every city and borough;(o) from whence the ancient 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 *[*276frequently dispensed with for money,(p) which occasioned a provision to be made for enforcing it, in the great charters of king John and his son.(q) These original standards were called pondus regis,(r) and mensura domini regis;(s) 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.(t) But, as Sir Edward Coke observes,(u) though this hath so often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude.27
Thirdly, as money is the medium of commerce, it is the king’s prerogative, as the arbiter of domestic commerce, to give it authority or make it current. Money is an universal medium, or common standard, by comparison with which the value of all merchandise may be ascertained: or it is a sign which represents the respective values of all commodities. Metals are well calculated for this sign, because they are durable and are capable of many subdivisions; and a precious metal is still better calculated for this purpose, because it is the most portable. A metal is also the most proper for a common measure, because it can easily be reduced to the same standard in all nations: and every particular nation fixes on it its own impression, that the weight and standard (wherein consists the intrinsic value) may both be known by inspection only.
As the quantity of precious metals increases, that is, the more of them there is extracted from the mine, this universal medium, or common sign, will sink in value, and grow less precious. Above a thousand millions of bullion are calculated to have been imported into Europe from America within less than three centuries; and the quantity is daily increasing. **277]The consequence is, that more money must be given now for the same commodity than was given a hundred years ago. And, if any accident were to diminish the quantity of gold and silver, their value would proportionably rise. A horse, that was formerly worth ten pounds, is now perhaps worth twenty; and, by any failure of current specie, the price may be reduced to what it was. Yet is the horse, in reality, neither dearer nor cheaper at one time than another: for, if the metal which constitutes the coin was formerly twice as scarce as at present, the commodity was then as dear at half the price as now it is at the whole.28
The coining of money is in all states the act of the sovereign power, for the reason just mentioned, that its value may be known on inspection. And with respect to coinage in general, there are three things to be considered therein; the materials, the impression, and the denomination.
With regard to the materials, Sir Edward Coke lays it down,(v) that the money of England must either be of gold or silver; and none other was ever issued by the royal authority till 1672, when copper farthings and half-pence were coined by king Charles the Second, and ordered by proclamation to be current in all payments under the value of sixpence, and not otherwise. But this copper coin is not upon the same footing with the other in many respects, particularly with regard to the offence of counterfeiting it. And, as to the silver coin, it is enacted by statute 14 Geo. III. c. 42, that no tender of payment in silver money, exceeding twenty-five pounds at one time, shall be a sufficient tender in law for more than its value by weight, at the rate of 5s. 2d. an ounce.29
As to the impression, the stamping thereof is the unquestionable prerogative of the crown: for, though divers bishops and monasteries had formerly the privilege of coining money, yet, as Sir Matthew Hale observes,(w) this was usually done by special grant from the king, or by prescription, which supposes one; and therefore was derived from, and not in derogation of, the royal prerogative. Besides that, they had only the profit of the coinage, and not the power of *[*278instituting either the impression or denomination; but had usually the stamp sent them from the exchequer.
The denomination, or the value for which the coin is to pass current, is likewise in the breast of the king; and, if any unusual pieces are coined, that value must be ascertained by proclamation. In order to fix the value, the weight and the fineness of the metal are to be taken into consideration together. When a given weight of gold or silver is of a given fineness, it is then of the true standard,(x) and called esterling or sterling metal; a name for which there are various reasons given,(y) but none of them entirely satisfactory.30 And of this sterling or esterling metal all the coin of the kingdom must be made, by the statute 25 Edw. III. c. 13. So that the king’s prerogative seemeth not to extend to the debasing or enhancing the value of the coin, below or above the sterling value,(z) though Sir Matthew Hale(a) appears to be of another opinion.31 The king may also, by his proclamation, legitimate foreign coin, and make it current here; declaring at what value it shall be taken in payments.(b) But this, I apprehend, ought to be by comparison with the standard of our own coin; otherwise the consent of parliament will be necessary. There is at present no such legitimated money; Portugal coin being only current by private consent, so that any one who pleases may refuse to take it in payment. The king may also at any time decry, or cry down, any coin of the kingdom, and make it no longer current.(c)32
VI. The king is, lastly, considered by the laws of England as the head and supreme governor of the national church.
To enter into the reasons upon which this prerogative is founded is matter rather of divinity than of law. I shall therefore only observe that, by statute 26 Hen. VIII. c. 1, (reciting that the king’s majesty justly and rightfully is and ought **279]to be the supreme head of the church of England; and so had been recognised by the clergy of this kingdom in their convocation,) it is enacted, that the king shall be reputed the only supreme head in earth of the church of England, and shall have, annexed to the imperial crown of this realm, as well the title and style thereof, as all jurisdictions, authorities, and commodities, to the said dignity of the supreme head of the church appertaining. And another statute to the same purport was made, 1 Eliz. c. 1.
In virtue of this authority the king convenes, prorogues, restrains; regulates, and dissolves all ecclesiastical synods or convocations. This was an inherent prerogative of the crown long before the time of Henry VIII., as appears by the statute 8 Hen. VI. c. 1, and the many authors, both lawyers and historians, vouched by Sir Edward Coke.(d) So that the statute 25 Hen. VIII. c. 19, which restrains the convocation from making or putting in execution any canons repugnant to the king’s prerogative, or the laws, customs, and statutes of the realm, was merely declaratory of the old common law:(e) that part of it only being new which makes the king’s royal assent actually necessary to the validity of every canon. The convocation, or ecclesiastical synod, in England, differs considerably in its constitution from the synods of other Christian kingdoms: those consisting wholly of bishops: whereas with us the convocation is the miniature of parliament, wherein the archbishop presides with regal state; the upper house of bishops represents the house of lords; and the lower house, composed of representatives of the several dioceses at large, and of each particular chapter therein, resembles the house of commons, with its knights of the shire and burgesses.(f)33 This constitution is said to be owing to the policy of Edward I., who thereby, at one and the same time, let in the inferior clergy to the privileges of forming *[*280ecclesiastical canons, (which before they had not,) and also introduced a method of taxing ecclesiastical benefices, by consent of convocation.(g)34
From this prerogative also, of being the head of the church, arises the king’s right of nomination to vacant bishoprics, and certain other ecclesiastical preferments; which will more properly be considered when we come to treat of the clergy. I shall only here observe, that this is now done in consequence of the statute 25 Hen. VIII. c. 20.
As head of the church, the king is likewise the dernier resort in all ecclesiastical causes: an appeal lying ultimately to him in chancery from the sentence of every ecclesiastical judge: which right was restored to the crown by statute 25 Hen. VIII. c. 19, as will more fully be shown hereafter.35
[(a) ] Chap. i. page 141.
[1 ] The splendour, rights, and powers of the crown were attached to it for the benefit of the people, and not for the private gratification of the sovereign. They are therefore to be guarded on account of the public; they are not to be extended further than the laws and constitution of the country have allowed them; but within these bounds they are entitled to every protection, per lord Kenyon. Rooke vs. Daysell, 4 Term Rep. 410, and 3 Atk. 171.
The theory of our government is sketched with admirable spirit and correctness by the attorney-general, in his address to the jury upon Hardy’s trial:—“The power of the state, by which I mean the power of making laws and enforcing the execution of them when made, is vested in the king: enacting laws in the one case,—that is, in his legislative character, by and with the advice and consent of the lords spiritual and temporal and of the commons in parliament assembled, according to the law and constitutional custom of England; in the other case, executing the laws when made in subservience to the laws so made, and with the advice which the law and the constitution hath assigned to him in almost every instance in which it hath called upon him to act for the benefit of the subject.” Hardy’s Trial, by Gurney, page 32. Again, in a subsequent passage, after having stated the royal duties, he goes on thus:—“To that king upon whom these duties attach, the laws and constitution, for the better execution of them, have assigned various counsellors and responsible advisers; it has clothed him, under various constitutional checks and restrictions, with various attributes and prerogatives, as necessary for the support and maintenance of the civil liberties of the people; it ascribes to him sovereignty, imperial dignity, and perfection; and because the rule and government, as established in this kingdom, cannot exist for a moment without a person filling that office, and able to execute all the duties from time to time which I have now stated, it ascribes to him also that he never ceases to exist. In foreign affairs, the delegate and representative of his people, he makes war and peace, leagues and treaties. In domestic concerns, he has prerogatives; as a constituent part of the supreme legislature, the prerogative of raising fleets and armies. He is the fountain of justice, bound to administer it to his people, because it is due to them; the great conservator of public peace, bound to maintain and vindicate it; everywhere present, that these duties may nowhere fail of being discharged; the fountain of honour, office, and privilege; the arbiter of domestic commerce; the head of the national church.” Id. 35. And, in the conclusion of this brilliant sketch, he closes the whole with these emphatical words:—“Gentlemen, I hope I shall not be thought to misspend your time in stating thus much, because it appears to me that the fact that such is the character, that such are the duties, that such are the attributes and prerogatives, of the king in this country, (all existing for the protection, security, and happiness of the people in an established form of government,) accounts for the just anxiety, bordering upon jealousy, with which the law watches over his person,—accounts for the fact, that in every indictment, the compassing or imagining his destruction or deposition, seems to be considered as necessarily coexisting with an intention to subvert the rule and government established in the country. It is a purpose to destroy and depose him, in whom the supreme power, rule, and government, under constitutional checks and limitations, is vested, and by whom, with consent and advice in some cases and with advice in all cases, the exercise of this constitutional power is to be carried on.” Id. 36.
In modern times, in practice, the exercise of many branches of the king’s prerogative is from time to time delegated by statute to the privy council, as the granting licenses, &c.; and acts are passed regulating foreign and domestic concerns, weights, measures, &c.—Chitty.
[(b) ] Dewes, 479.
[(c) ] Ibid. 645.
[(d) ] King James’s Works, 557, 531.
[(e) ] Finch, L. 84, 85.
[(f) ] Bracton, l. 3, tr. 1, c. 9.
[(g) ]Nov. 103[Editor: Illegible character] 2.
[(h) ]Ff. 32, 1, 23.
[(i) ] Finch, L. 85.
[(k) ]Peregrin, de jure fisc. l. 1, c. 1, num. 9.
[(l) ]L. 1, c. 8.
[2 ] What Bracton adds in the same chapter ought never to be forgotten:—Ipse autem rex non debet esse sub homine, sed sub Deo et sub lege, quia lex facit regem. Attribuat igitur rex legi, quod lex attribuit ei, videlicet dominationem et potestatem, non est enim rex, ubi dominatur voluntas et non lex.
Nothing was ever better conceived and expressed respecting the prerogatives of a king, and the just exercise of them, than the advice bequeathed in his last will by the unfortunate Louis XVI. to his son, if he had succeeded to the throne of France,—viz., “to recollect that he cannot promote the welfare of the people but by reigning according to the laws; but to consider, at the same time, that a king cannot make the laws respected, nor do the good he meditates, but in proportion as he has the necessary authority; and that, where this is wanting, he is obstructed in his measures, he is incapable of inspiring respect, and is consequently more detrimental than useful.”—Christian.
[(m) ] Seld. tit. of hon. i. 2.
[(n) ] See also 24 Geo. II. c. 24. 5 Geo. III. c. 27.
[(o) ]Rex allegavit, quod ipse omnes libertates haberet in regno suo, quas imperator vindicabat in imperio. (M. Paris, ad 1095.)
[(p) ] Finch, L. 83.
[3 ] The constitution of the United States not only supposes a President may be fallible, but also criminal. It prescribes the mode in which he shall be tried upon an impeachment, (art. 1, s. 3;) and expressly declares that he shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanours. Art. 11.—Sharswood.
[(q) ] Finch, L. 255. See b. iii. c. 17.
[4 ] It is well settled that an individual cannot maintain an action against the State, unless in pursuance of some special law authorizing it. 3 Richardson, 372. 1 Texas, 764. No direct suit can be maintained against the United States without the authority of an act of Congress; nor can any direct judgment be awarded against them for costs. 6 Wheaton. 411. 8 Peters, 444. 3 Hall’s Law Jour. 128. 2 Wash. C. C. Rep. 161. Opinions of the Attorney-General, vol. ii. 967. But if an action be brought by the United States to recover money in the hands of a party, he may, by way of defence, set up any legal or equitable claim he has against the United States, and need not, in such case, be turned round to an application to Congress. Act of Congress, March 3, 1797. 6 Wheaton, 135. 9 Wheaton, 651. 7 Peters, 16. 8 Peters, 163, 436. 9 Peters, 319. 10 Peters, 125. 15 Peters. 377.—Sharswood.
[(r) ] Law of N. and N. b. viii. c. 10.
[(s) ] On Govt. p. 2, 205.
[(t) ] See these points more fully discussed in the Considerations of the Law of For ferture, 3d edit. pages 109-126, wherein the very learned author has thrown many new and important lights on the texture of our happy constitution.
[(u) ] Plowd. 487.
[5 ] Or perhaps it means that, although the king is subject to the passions and infirmities of other men, the constitution has prescribed no mode by which he can be made personally amenable for any wrong which he may actually commit. The law will therefore presume no wrong where it has provided no remedy.
The inviolability of the king is essentially necessary to the free exercise of those high prerogatives, which are vested in him, not for his own private splendour and gratification, as the vulgar and ignorant are too apt to imagine, but for the security and preservation of the real happiness and liberty of his subjects.—Christian.
[(v) ] Com. Jour. 18 Nov. 1685.
[(w) ] Ibid. 4 Dec. 1717.
[(y) ] Finch, L. 82. Co. Litt. 90.
[6 ] This rule is now subject to various exceptions, both at common law and by statute. See Thomas’s Co. Litt. vol. i. 74, note 16. After fifty-five years’ possession a grant from the crown may be presumed, unless a statute has prohibited such a grant. Goodtitle vs. Baldwin, East, 488.—Chitty.
In civil actions relating to landed property, by the 9 Geo. III. c. 16, the king, like a subject, is limited to sixty years. See 3 Book, 307. This maxim applies also to criminal prosecutions which are brought in the name of the king; and, therefore, by the common law there is no limitation in treasons, felonies, or misdemesnors. 2 Campb. 227. 7 East, 199. By the 7 W. III. c. 7, an indictment for treason, except for an attempt to assassinate the king, must be found within three years after the commission of the treasonable act. 4 Book, 351. But where the legislature has fixed no limit, nullum tempus occurrit regi holds true. Thus a man may be convicted of murder at any distance of time within his life after the commission of the crime. This maxim remains still in force in Ireland. 1 Ld. Mountm. 365.—Christian.
This maxim is held applicable as well to the United States as to the several States. Nullum tempus occurrit reipublicæ. A statute of limitation bars not the rights of the public. Johnston vs. Irwin, 3 S. & R. 291. Kemp vs. Commonwealth, 1 Hen. & Mun. 85. Lindsay vs. Miller, 6 Peters, 666. People vs. Gilbert, 18 Johns. 227. It runs, however, against municipal corporations. Nothing less than sovereignty exempts the party from the statute. Cincinnati vs. First Presb. Church, 8 Hammond, 298. From long uninterrupted possession grants will be presumed. Crooker vs. Pendleton, 10 Shep. 339. Barclay vs. Howell, 6 Peters, 498. Hanes vs. Peck., Mart. & Yerg. 228. Jarbor vs. McAtee, 7 B Monroe, 279. I conceive, however, that this is true only when it arises in a controversy between private persons, and not in a direct claim by government for land or property in the possession of a private person. No presumption of payment from lapse of time runs against the government. United States vs. Williams, 4 McLean, 567.
It is a general rule in the interpretation of legislative acts not to construe them to embrace the sovereign power of government, unless expressly named or intended by necessary implication. The State vs. Milburn, 9 Gill, 105.—Sharswood.
[(z) ] Finch. L. 82.
[(a) ] Co. Litt. 43. 2 Inst. proem. 3.
[(b) ] The methods of appointing this guardian or regent have been so various, and the duration of his power so uncertain, that from hence alone it may be collected that his office is unknown to the common law; and, therefore, (as Sir Edward Coke says, 4 Inst. 58,) the surest way is to have him made by authority of the great council in parliament. The earl of Pembroke, by his own authority, assumed in very troublesome times the regency of Hen. III., who was then only nine years old; but was declared of full age by the pope at seventeen, confirmed the great charter at eighteen, and took upon him the administration of the government at twenty. A guardian and council of regency were named for Edward III., by the parliament, which deposed his father, the young king being then fifteen, and not assuming the government till three years after. When Richard II. succeeded at the age of eleven, the duke of Lancaster took upon him the management of the kingdom till the parliament met, which appointed a nominal council to assist him. Hen. V., on his death-bed, named a regent and a guardian for his infant son Hen. VI., then nine months old; but the parliament altered his disposition, and appointed a protector and council, with a special limited authority. Both these princes remained in a state of pupilage till the age of twenty-three. Edward V., at the age of thirteen, was recommended by his father to the care of the duke of Gloucester, who was declared protector by the privy council. The statutes 25 Hen. VIII. c. 12, and 28 Hen. VIII. c. 7, provided that the successor, if a male and under eighteen, or if a female and under sixteen, should be till such age in the government of his or her natural mother, (if approved by the king,) and such other counsellors as his majesty should by will or otherwise appoint; and he accordingly appointed his sixteen executors to have the government of his son Edw. VI. and the kingdom, which executors elected the earl of Hertford protector. The statute 24 Geo II. c. 24, in case the crown should descend to any of the children of Frederick, late prince of Wales, under the age of eighteen, appointed the princess dowager; and that of 5 Geo. III. c. 27, in case of a like descent to any of his present majesty’s children, empowers the king to name either the queen, the princess dowager, or any descendant of king Geo. II., residing in the kingdom, to be guardian and regent till the successor attains such age, assisted by a council of regency, the powers of them all being expressly defined and set down in the several acts.
[7 ] A late occasion demanded a regency. Mental aberration incapacitated his late majesty from fulfilling the executive functions. On the part of his present majesty, then prince of Wales, the right to assume the regency, independently of the authority of the two houses, was vehemently urged and insisted upon by the whigs. They were met by the tories, who asserted the right of the two houses to interfere; and, most justly prevailing, the prince was about to become regent, invested with powers short of royal, but the king’s then recovery ended the question at this time. A second more recent occasion unhappily presented itself, and, under limitations framed by the two houses, his present majesty became regent, and so continued until the demise of the crown.—Chitty.
[(c) ] Plowd. 177, 234.
[(d) ] M. 49 Hen. VI. pl. 1-8.
[8 ] The constitution of the United States and the law made in pursuance thereof have, it is presumed, made effectual provision for the uninterrupted continuation of the executive office in the United States, without recurring to this maxim of the British government. “In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President; and the Congress may by law provide for the case of removal, death, resignation, or inability both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly until the disability be removed or a President shall be elected.” Const. U. S. art. 11, s. 6. “In case of removal, death, resignation, or inability both of the President and Vice-President of the United States, the President of the Senate pro tempore, and, in case there shall be no President of the Senate, then the speaker of the House of Representatives for the time-being, shall act as President of the United States until the disability be removed or a President shall be elected.” Act of Congress, March 1, 1792, s. 9. When the Vice-President succeeds, he continues to act as President during the whole of the term for which he was elected. When, however, it is one of the other persons named, provision is made that an election shall be held at the proper time in the same year, provided that two months shall intervene between the notice and election; if not, then the year next ensuing. Act of Congress, March 1, 1792, s. 10.—Sharswood.
[(e) ] Orig. 1, 103.
[(f) ] On Govt. 2, 166.
[(g) ] 4 Inst. 152.
[(h) ] As was done with Count Gyllenberg, the Swedish minister to Great Britain, ad 1716.
[(i) ] Sp. L. 26, 21.
[(k) ] 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.
[(l) ] 1 Roll. Rep. 175. 3 Bulstr. 27.
[(m) ] 4 Inst. 153.
[(n) ] 1 Roll. Rep. 185.
[(o) ] Forster’s Reports, 188.
[(p) ]Securitas legatorum utilitati quæ ex pœna est præponderat. De jure, b. & p. 18, 4, 4.
[9 ] In the year 1654, during the protectorate of Cromwell, Don Pataleon Sa, the brother of the Portuguese ambassador, who had been joined with him in the same commission, was tried, convicted, and executed for an atrocious murder. Lord Hale, 1 P. C. 99, approves of the proceeding; and Mr. J. Foster, p. 188, though a modern writer of law, lays it down, that “for murder and other offences of great enormity, which are against the light of nature and the fundamental laws of all society, ambassadors are certainly liable to answer in the ordinary course of justice, as other persons offending in the like manner are;” but Mr. Hume observes upon this case, that “the laws of nations were here plainly violated.” Vol. vii. p. 237. And Vattel, with irresistible ability, contends that the universal inviolability of an ambassador is an object of much greater importance to the world than their punishment for crimes, however contrary to natural justice. “A minister,” says that profound writer, “is often charged with a commission disagreeable to the prince to whom he is sent. If this prince has any power over him, and especially if his authority be sovereign, how is it to be expected that the minister can execute his master’s orders with a proper freedom of mind, fidelity, and firmness? It is necessary he should have no snares to fear, that he cannot be diverted from his functions by any chicanery. He must have nothing to hope and nothing to fear from the sovereign to whom he is sent. Therefore, in order to the success of his ministry, he must be independent of the sovereign’s authority, and of the jurisdiction of the country, both civil and criminal.” B. 4, c. 7, 92, where this subject is discussed in a most luminous manner. The Romans, in the infancy of their state, acknowledged the expediency of the independence of ambassadors; for when they had received ambassadors from the Tarquin princes, whom they had dethroned, and had afterwards detected those ambassadors in secretly committing acts which might have been considered as treason against their state, they sent them back unpunished; upon which Livy observes, et quanquam visi sunt commississe, ut hostium loco essent, jus tamen gentium valuit. Lib. 2, c. 4. When Bomilcar, qui Romam fide publicâ venerat, was prosecuted as an accomplice in the assassination of Massiva, Sallust declares, fit reus magis ex æquo bonoque quam ex jure gentium. Bell. Jug. c. 35.—Christian.
It is said that the true ground of the judgment against Don Pataleon Sa was that he failed to prove his connection with the embassy.—Stewart.
[(q) ] 4 Inst. 153.
[(r) ] 21 July, 1708. Boyer’s Annals of Queen Anne.
[(s) ] 25 July, 1708. Boyer’s Annals of Queen Anne.
[(t) ] 25, 29 July, 1708. Ibid.
[(u) ] 23 Oct. 1708. Ibid.
[(v) ] 14 Feb. 1708. Ibid.
[10 ] In 3 Burr. 1480, Lord Mansfield declares that “the statute of queen Anne was not occasioned by any doubt whether the law of nations, particularly the part relative to public ministers, was not part of the law of England, and the infraction criminal, nor intended to vary an iota of it.” And he proceeds to say, that lord Talbot, lord Hardwicke, and lord Holt, were clearly of the same opinion. But the infraction of the law of nations can only be a misdemeanour, punishable at the discretion of the court by fine, imprisonment, and pillory; and therefore lord Mansfield says the persons convicted were never brought up to receive judgment, for “no punishment would have been thought by the czar an adequate reparation. Such a sentence as the court would have given, he would have thought a fresh insult.”—Christian.
[(w) ] 17 Sept. 1708. Ibid.
[(x) ] 11 Jan. 1708. Ibid. Mod. Un. Hist. xxxv. 454.
[(y) ] Com. Jour. 23 Dec. 1708.
[(z) ] 21 Apr. 1709. Boyer, ibid.
[(a) ] Mr. Whitworth.
[(b) ] 8 Jan. 1709. Boyer, ibid.
[(c) ] 7 Anne, c. 12.
[(d) ]Sæpe qæsitum 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 sæpe 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 nomenclatoram comitum suorum. Van Bynkersh. c. 15, prope finem.
[(e) ] Fitzg. 200. Stra. 797.
[11 ] And the exceptions are said to be agreeable to, and taken from, the law of nations. Lockwood vs. Coysgarne, 3 Burr. 1676, cited in Mr. Christian’s note.
A person claiming the benefit of the 7 Anne, c. 12, as domestic servant to a public minister, must be really and bona fide his servant at the time of the arrest and must clearly show by affidavit the general nature of his service, and the actual performance of it, and that he was not a trader or object of the bankrupt laws. 2 Stra. 797. 2 Ld. Raym. 1524, Fitzg. 200, S. C. 1 Wils. 20, 78. 1 Bla. Rep. 471, S. C. 3 Burr. 1676, 1731. 3 Wils. 33, and 3 Campb. 47.
For, by the law of nations, a public minister cannot protect a person who is not bona fide his servant. It is the law that gives the protection; and though the process of the law shall not take a bona fide servant out of the service of a public minister, yet on the other hand a public minister shall not take a person who is not bona fide his servant out of the custody of the law, or screen him from the payment of his just debts. 4 Burr. 2016, 17.
This privilege, however, has been long settled to extend to the servants of a public minister, being natives of the country where he resides, as well as to his foreign servants, (3 Burr. 1676,) and not only to servants lying in the house, for many houses are not large enough to contain and lodge all the servants of some public ministers, but also to real and actual servants lying out of his house. 2 Str. 797. 3 Wils. 35. 1 Bar & Cres. 5623. Nor is it necessary to entitle them to the privilege that their names should have been registered in the secretary of state’s office, and transmitted to the sheriff’s office, (4 Burr. 2017. 3 Term Rep. 79,) though, unless they have been so registered and transmitted, the sheriff or his officers cannot be proceeded against for arresting them. See statute, 5. 1 Wils. 20, and a modern order. And it is not to be expected that every particular act of service should be specified. It is enough if an actual bona fide service be proved, and if such a service be sufficiently made out by affidavit the court will not, upon bare suspicion, suppose it to have been merely colourable and collusive. 3 Burr. 1481. Where the servant of an ambassador did not reside in his master’s house, but rented and lived in another, part of which he let in lodgings, it was held that his goods in that house, not being necessary for the convenience of the ambassador, were liable to be distrained for poor-rates. Novello vs. Toogood, 1 Bar. & Cres. 554. This act does not extend to consuls, who are therefore liable to arrest. Viveart vs. Becker, 3 Maule & Sel. 284. See 1 Chitty’s Com. L. 69, 70.—Chitty.
In the case of Viveart vs. Becker, 3 M. & S. 284, this statute was brought under the consideration of the court of King’s Bench on behalf of a resident merchant of London who had been appointed consul to the duke of Sleswick Holstein Oldenburgh. Lord Ellenborough delivered a luminous judgment in the name of the court, and, on the principle that the statute was only declaratory of the common law and the law of nations, determined that a consul was not a public minister, and therefore not within its protection.
With regard to the exceptions in the statute, the foreign ministers resident in England when it passed remonstrated against them as unpractised in foreign courts. 6 Parl. Hist. 793. The passage, however, cited by the author from Van Bynkershoek seems an answer to such an assertion; and lord Mansfield says expressly that there is not an exception in the act but what is agreeable to and taken from the law of nations. 3 Burr. 1676.—Coleridge.
By the act of Congress, April 30, 1790, (1 Story, 88,) it is provided that if any writ or process shall, at any time hereafter, be sued forth or prosecuted, by any person or persons, in any of the courts of the United States, or in any of the courts of a particular State, or by any judge or justice therein respectively, whereby the person of any ambassador or other public minister of any foreign prince or state, authorized and received as such by the President of the United States, or any domestic or domestic servant of any such ambassador or other public minister, may be arrested or imprisoned, or his or their goods or chattels be distrained, seized, or attached, such writ or process shall be deemed and adjudged to be utterly null and void to all intents, constructions, and purposes whatever. That in case any person or persons shall sue forth or prosecute any such writ or process, such person or persons, and all attorneys or solicitors prosecuting or soliciting in such case, and all officers executing any such writ or process, being thereof convicted, shall be deemed violators of the laws of nations and disturbers of the public repose, and imprisoned not exceeding three years, and fined at the discretion of the court. Provided, nevertheless, that no citizen or inhabitant of the United States who shall have contracted debts prior to his entering into the service of any ambassador or other public minister, which debts shall be still due and unpaid, shall have, take, or receive any benefit of this act; nor shall any person be proceeded against by virtue of this act for having arrested or sued any other domestic servant of any ambassador or other public minister, unless the name of such servant be first registered in the office of the Secretary of State, and by such secretary transmitted to the marshal of the district in which Congress shall reside, who shall upon receipt thereof affix the same in some public place in his office, whereto all persons may resort and take copies without fee or reward.
It is observable that, while both the English and American statutes prohibit process of arrest of the person or attachment of the goods, neither of them forbids that of summons, so familiar to both codes. It is unnecessary to suppose that this material omission was unintentional. “It may be,” remarks Mr. C. J. Ingersoll, (4 American Law Mag. 307,) “that the summons was deemed a harmless measure against persons not resident, according to legal fiction, when proceeded against; against whom therefore judgment would be of no avail there, and no more available as the foundation of fresh suits against them elsewhere. As the commencement of an action to lead to any profitable results, summons is incompatible with privilege.” It is agreed, however, on all hands that the privilege does not rest on the statute, but on the law of nations, the statute only adding certain penalties to secure its observance. A minister is therefore as much privileged from the service of a summons as any other writ. It is laid down, however, by many eminent writers that the exemption from the jurisdiction of the local tribunals and authorities does not apply to the contentious jurisdiction, which may be conferred on those tribunals by the minister voluntarily making himself a party to a suit at law. Hence perhaps it was that, in the constitution and laws of the United States, jurisdiction is conferred on the federal courts in all suits brought by ambassadors or other public ministers, and also in such suits and proceedings against ambassadors or other public ministers as a court of law can have or exercise consistently with the law of nations. Const. U. S. art. III. s. 2. Act of Sept. 24, 1789. (1 Story, 58.)
The exemption extends to the goods and chattels of a public minister, but not to real property possessed by an ambassador in his private capacity; nor does it extend to stock in trade. According to Bynkershoek, if on petition a sovereign will not compel his ambassador to satisfy his creditors, their remedy is by suit in the courts of his own country, or by action in rem where he possesses property not privileged and the law allows that form of proceeding. The act of Congress, however, expressly prohibits attachment of goods and chattels, without drawing any distinction between such as are or are not privileged; and as to debts due the minister and real property, though not within the statute so far as penalty is concerned, it is difficult to avoid the conclusion that they are within the intent and spirit so far as illegality is concerned.
In 1844 a controversy arose between Prussia and the United States in regard to the right of a landlord to seize the goods of a public minister for the rent of a house which he had leased. The act of Congress of 1790 expressly prohibits such distress. As regards foreign ministers in this country, therefore, as long as this law exists there would be no question. But of course that act is in that respect merely expressive of the sense of its framers, and, though it could be decidedly urged against us, cannot be pleaded in our favour as evidence of what is the law of nations. The proprietor of the house in which the United States minister at Berlin resided claimed the right, under an article of the Prussian code, of detaining the goods of the minister found on the premises at the expiration of his lease, in order to secure the payment of damages alleged to be due on account of injuries done to the house during the contract. The Prussian government contended that the general exemption under international law of the personal property of foreign ministers from the local jurisdiction did not extend to this case, where the right of detention was created by the contract itself and by the legal effect given to it by the local law. Of course the principle of this decision includes the case of distress for rent. The controversy in question was terminated as between the parties by the proprietor of the house restoring the effects which had been detained, on the payment of a reasonable compensation for the injury done to the premises. The correspondence terminated, however, without either party yielding its opinions; so that it still remains an open question. The whole negotiation has been ably reviewed by a distinguished French jurist, (M. Fœlix,) who maintains the American side of the question. Wheaton’s International Law, p. 287. Revue du Droit Français et Étranger, tome ii. p. 31.
It is provided by the act of Congress, April 30, 1790, (1 Story’s Laws, 89,) that if any person shall assault, strike, wound, imprison, or in any other manner infract the law of nations, by offering violence to the person of an ambassador or other public minister, such person so offending, on conviction, shall be imprisoned not exceeding three years, and fined at the discretion of the court.—Sharswood.
[(f) ] Puff. L. of N. b. 8, c. 9, 6.
[12 ] The Congress of the United States have power “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” (Const. U. S. art. 1, s. 8.) The President has power, “by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur.” (Ibid. art. 2, s. 1.) “This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.” Ibid. art. 6, s. 2.—Sharswood.
[(g) ] Puff. b. 8, c. 6, 8, and Barbeyr. in loc.
[(h) ]Ff. 50, 16, 118.
[(i) ]De jure, b. & p. l. 3, c. 3, 11.
[(k) ] Ibid. l. 3, c. 2, 4, 5.
[(l) ] Dufresne, tit. Marca.
[(m) ] 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 Pylean kingdom; out of which booty the king took three hundred head of cattle for his own demand, and the rest were equally divided among the other creditors.
[13 ] The statute of Hen. V. is confined to the time of a truce wherein there is no express mention that all marques and reprisals shall cease. This manner of granting letters of marque I conceive has long been disused, and, according to the statute of Hen. V., could only be granted to persons actually aggrieved. But if, during a war, a subject without any commission from the king should take an enemy’s ship, the prize would not be the property of the captor, but would be one of the droits of admiralty, and would belong to the king, or his grantee the admiral. Carth. 399. 2 Woodd. 433. Therefore, to encourage merchants and others to fit out privateers or armed ships in time of war, by various acts of parliament, the lord high admiral, or the commissioners of the admiralty, are empowered to grant commissions to the owners of such ships; and the prizes captured shall be divided according to a contract entered into between the owners and the captain and crew of the privateer. But the owners, before the commission is granted, shall give security to the admiralty to make compensation for any violation of treaties between those powers with whom the nation is at peace. And, by the 24 Geo. III. c. 47, they shall also give security that such armed ship shall not be employed in smuggling. These commissions in the statutes, and upon all occasions, are now called letters of marque. 29 Geo. II. c. 34. 19 Geo. III. c. 67. Molloy, c. 3, s. 8. Or sometimes the lords of the admiralty have this authority by a proclamation from the king in council, as was the case in Dec. 1780, to empower them to grant letters of marque to seize the ships of the Dutch.—Christian.
If, during war, a subject without a commission from the crown should take an enemy’s ship, the prize would belong, not to the captor, but to the sovereign, or to the admiral as his grantee. In order therefore to encourage the fitting out of armed ships in time of war, the lord high admiral, or the commissioners of the admiralty, are authorized by several statutes to grant commissions to private persons fitting out such ships, which are thence called privateers. The prizes captured by such vessels are divided according to the contract entered into between the owners and the master and crew of the privateer; but the crown has still the prerogative of releasing any prize captured by such ships at any time previously to condemnation. Letters of marque, as these commissions are called, are valid only during the war, and may be vacated either by express revocation, or by the misconduct of the parties, as, for example, by their cruelty.
The conference which met at Paris in 1856, after the war with Russia, closed its labours by recommending to the established governments of the world the entire abolition of the system of privateering, and that in time of war neutral flags and neutral goods should be inviolable. The conference was of opinion that the abolition of privateering and the acknowledgment of neutral rights were alike desirable and necessary for improving our system of war and bringing it into harmony with the ideas and principles of modern civilization. This proclaimed opinion of several of the great powers of Europe may therefore lead, ere long, to treaties by which the prerogative of the crown in issuing letters of marque will become merely matter of history.—Kerr.
The government of the United States did not respond favourably to this proposal of the conference of Paris. The Secretary of State, William L. Marcy, proposed, however, what would still more bring the system of war into harmony with the ideas and principles of modern civilization, and at the same time be more just to states not possessing a powerful public marine,—the entire immunity of private property on the ocean from capture. Such has long been the established law of war in regard to property on land; and there exists no reason why it should not be extended to maritime warfare.—Sharswood.
[14 ] By the act of Congress April 30, 1790, s. 27, (1 Story’s Laws, 88,) it is enacted that if any person shall violate any safe-conduct or passport duly obtained and issued under the authority of the United States, such person so offending, on conviction, shall be imprisoned not exceeding three years, and fined at the discretion of the court.—Sharswood.
[(n) ] Law of N. and N. b. 3, c. 3, 9.
[(o) ] 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 20 Hen. VI. c. 1.
[15 ] By the act of Congress July 6, 1798, (1 Story’s Laws, 521,) it is enacted that in case of war between the United States and any foreign nation, and in case of actual or threatened invasion, all native citizens, denizens, or subjects of the hostile nation aged fourteen years and upwards, not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. And the President is authorized by proclamation to direct the conduct to be observed on the part of the United States towards such aliens; the manner and degree of the restraint to which they shall be subject, and in what cases, and upon what security, their residence shall be permitted; and to provide for the removal of those who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom; and to establish any other regulations which shall be found necessary in the premises and for the public safety. It provides, however, that such aliens not being chargeable with actual hostility shall be allowed the full time to remove stipulated in any existing treaty with the nation to which they belong, (see act of July 6, 1812, 2 Story’s Laws, 1275,) or, when no such treaty exists, the President may ascertain and declare such reasonable time as may be consistent with the public safety and according to the dictates of humanity and national hospitality. All courts, State or Federal, are authorized to carry the provisions of this law into effect.—Sharswood.
[(p) ] C. 30.
[(q) ]De jure Sueon. l. 3, c. 4.
[(r) ] Sp. L. 20, 13.
[(s) ] Ibid. 20, 6.
[(t) ]Nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercise prohibemus. C. 4, 63, 3.
[(u) ]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.
[(w) ]Falsa fit pænitentia [laici] cum penit[Editor: Illegible character] ab officio curiallvel negotiali non recedit, quæ sine peccatis ag ulla ratione non prævalet. Act. Concil. apud Baron. c. 16.
[(x) ] Ch. 2, page 154.
[(y) ] 11 Rep. 74.
[(z) ] Ibid. 71.
[(a) ] 7 Rep. 32.
[16 ] “The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States.” Const. U. S. art. 2, s. 2.—Sharswood.
[(b) ] 2 Inst. 30.
[(c) ] Cowel’s Interpr. tit. castellorum operatia. Seld. Jan. Angl. 1, 42.
[(d) ] 2 Inst. 31.
[(e) ] 1 Inst. 5.
[(f) ] 2 Feud. t. 56. Crag. 1, 15, 15.
[(g) ] F. N. B. 113.
[(h) ] Dav. 9, 56.
[(i) ] Madox, Hist. Exch. 530.
[(j) ] 4 Inst. 148.
[(k) ] 3 Inst. 204. 4 Inst. 148.
[(l) ]Rot. Claus. 1 Ric. II. m. 42. Pryn. on 4 Inst. 136.
[(m) ] Sid. 158. 4 Inst. 149.
[(n) ] F. N. B. 85.
[(o) ] C. 123.
[(p) ] 3 Inst. 175.
[(q) ] 5 Ric. II. c. 2.
[(r) ] 1 Hawk. P. C. 22.
[17 ] It is said in Lord Bacon’s Ordinances, No. 89, that “towards the latter end of the reign of king James the First this writ was thought proper to be granted, not only in respect of attempts prejudicial to the king and state, (in which case the lord chancellor granted it on application from any of the principal secretaries, without showing cause, or upon such information as his lordship should think of weight,) but also in the case of interlopers in trade, great bankrupts, in whose estates many subjects might be interested, in duels, and in other cases that did concern multitudes of the king’s subjects.”
But in the year 1734, lord chancellor Talbot declared that “in his experience he never knew this writ of ne exeat regnum granted or taken out without a bill first filed. It is true it was originally a state writ, but for some time, though not very long, it has been made use of in aid of the subjects for the helping of them to justice; but it ought not to be made use of where the demand is entirely at law, for there the plaintiff has bail; and he ought not to have double bail, both in law and equity.” 3 P. Wms. 312.
The use and object of this writ of ne exeat regno in chancery at present is exactly the same as an arrest at law in the commencement of an action,—viz., to prevent the party from withdrawing his person and property beyond the jurisdiction of the court before a judgment could be obtained and carried into execution; so where there is a suit of equity for a demand, for which the defendant cannot be arrested in an action at law, upon the affidavit made that there is reason to apprehend that he will leave the kingdom before the conclusion of the suit, the chancellor by this writ will stop him, and will commit him to prison, unless he produces sufficient sureties that he will abide the event of the suit. See 2 Com. Dig. 312. The affidavit must state sufficient proof of the intention of the party to go abroad, and the plaintiff must swear that the defendant is indebted to him a certain sum, which sum is marked upon the writ, and for which security must be found. 3 Bro. 370. And if the sum is paid into court, the writ will be discharged. 1 Ves. Jun. 96.—Christian.
This writ of ne exeat has in modern times been applied as a civil remedy in chancery, to prevent debtors escaping from their creditors. It amounts, in ordinary civil cases, to nothing more than process to hold to bail or compel a party to give security to abide the decree. In this country, the writ of ne exeat is not in use except in chancery, for civil purposes, between party and party. No citizen can be sent abroad, or under the existing law of the land prevented from going abroad, except in those cases in which he may be detained by civil process or upon a criminal charge. The constitutions of several of the United States have declared that all people have a natural right to emigrate from the State, and have prohibited the interruption of that right. 2 Kent’s Com. 34.—Sharswcod.
[(s) ]Ad hoc autem creatus est et clectus, ut justiliam faciat universis. Bract. 1. 3, tr. 1, c. 9.
[(t) ] 2 Hawk. P. C. 2.
[(u) ] During pleasure; as long as they shall conduct them selves properly.
[(w) ] Lord Raym. 747.
[18 ] All their commissions became vacant upon the demise of the crown, till they were continued for six months longer by 1 Anne, stat. 1, c. 8. When his majesty was pleased to make the memorable declaration in the text, he introduced it by observing, “Upon granting new commissions to the judges, the present state of their offices fell naturally under consideration. In consequence of the late act, passed in the reign of my late glorious predecessor William the Third, for settling the succession to the crown in my family, their commissions have been made during their good behaviour; but, notwithstanding that wise provision, their offices have determined upon the demise of the crown, or at the expiration of six months afterwards, in every instance of that nature which has happened.”—Christian.
[(x) ] Com. Jour. 3 Mar. 1761.
[19 ] The learned commentator considerably exaggerates the “noble improvement” in the law effected by 1 Geo. III. c. 23. “The independence of the judges,” says Mr. Hallam, “we owe to the act of settlement, not, as ignorance and adulation have perpetually asserted, to George III.” Const. Hist. iii. 262.—Hargrave.
But though the act of settlement rendered the judges independent of the king, they remained dependent upon the successor, in case of the demise of the crown, for reappointment. It ought not therefore to be doubted that the statute Geo. III. accomplished a valuable object.
“The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall at stated times receive for their services a compensation, which hall not be diminished during their continuance in office.” Const. U. S. art. 3, s. 1. “The judges are appointed by the President, by and with the advice and consent of the Senate.” Ibid. art. 2, s. 2.
Judge Story has remarked that the salaries of judicial officers may from time to time be altered as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. 3 Story on the Const. 493. It was evidently his opinion that when the salary of a judge had been increased after his appointment the legislature might again reduce it. Chancellor Kent evidently sides with this view, and cites The Federalist, No. 79. 1 Kent’s Com. 295. The contrary, however, has been solemnly adjudged by the Supreme Court of Pennsylvania in the case of Commonwealth vs. Mann, 5 Watts & Serg. 403. Such an act is within the letter of the constitution. and within its spirit, if we must allow that the great object of the provision was to secure the independence of the judges.—Sharswood.
[(y) ] Stiernh. de jure Goth. l. 3, c. 3. A notion somewhat similar to this may be found in the Mirror, c. 1, 5. And so also, when the Chief Justice Thorpe was condemned to be hanged for bribery, he was said sacramentum domini regis fregisse. Rot. Parl. 25 Edw. III.
[20 ] “This high prerogative is inseparably incident to the crown, and the king is intrusted with it upon especial confidence that he will spare those only whose case, could it have been foreseen, the law itself may be presumed willing to have excepted out of its general rules, which the wisdom of man cannot possibly make so perfect as to suit every particular case.” Co. Litt. 114, b. Hal. P. C. 104. 3 Inst. 233. Show, 284. The power of the crown to pardon a forfeiture and to grant restitution can only be exercised where things remain in statu quo, but not so as to affect legal rights vested in third persons. Rex vs. Amery, 2 Term Rep. 569. This is a personal trust and prerogative in the king for a fountain of bounty and grace to his subjects as he observes them deserving or useful to the public, which he can neither by grant or otherwise extinguish. Per Holt, C. J. Ld. Raym. 214. As he cannot but have the administration of public revenge, so he cannot but have a power to remit it by his pardon when he judges proper. Idem. De Lolme in his treatise on the English constitution says that “the reason the king is deemed to be directly concerned in all public offences, and therefore that prosecutions for them are to be carried on in his name, arises from the circumstance of the king’s being considered the universal proprietor of the kingdom.” Bk. 1, c. 5. This principle reduces the people in theory from that state of freedom and independence which they practically enjoy, to the degraded level of a Turkish despotism, where in truth the monarch acts as though he were proprietor of the kingdom, and indulges in the capricious enjoyment of his assumed property, whether it be the products of his subjects’ industry, the natural privileges of man, or even life itself, with as little remorse as the gambler stakes his hundreds upon the hazard of the die. But this is not the true principle, for the king cannot in this country dispose of a single rood of land, or suspend the liberty of any one of his lieges for an hour, without due process of law. It is in his character of representative of the public that offences are indicted at his suit, and not as the avenger of injuries committed against himself that criminal proceedings are said to be at his suit.—Chitty.
“The President shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” Const. U.S. art. 2, s. 2.—Sharswood.
[(z) ] Fortesc. c. 8. 2 Inst. 186.
[(a) ] Co. Litt. 139.
[21 ] But the attorney-general may enter a non vult prosequi, which has the effect of a nonsuit. Co. Litt. 139.—Christian.
[(b) ] Finch, 1, 81.
[(c) ] 3 Inst. 162.
[(d) ] 4 Mod. 177, 179.
[(e) ] Stat. 1 Edw. VI. c. 12.
[22 ] Proclamations, and, what are often equivalent to them, orders of the privy council, in respect of subjects of revenue, sometimes issue upon public grounds; but as these are always examinable in parliament, their abuse for any continued period can hardly occur; yet, being the assumption of a dispensing power, vigilance on their promulgation cannot be too strict.—Chitty.
[(f) ] 2 Inst. 533.
[23 ] No title of nobility can be granted by any State or by the United States; and no person holding any office of profit or trust under them shall, without consent of Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state. Const. U. S. art. 1, s. 9, 10. In case any alien, applying to be admitted to citizenship, shall have borne any hereditary title or been of any of the orders of nobility in the kingdom or state from which he came, he shall at the time of his admission make an express renunciation of his title or order of nobility in the court where his application is made, which shall be recorded in the said court. Act of Congress 14 April, 1802, s. 1.
The power of appointment to office under the United States is vested in general in the President, by and with the advice and consent of the Senate; the right of nomination being in the President. But Congress may by law vest the appointment of such inferior officers as they may think proper in the President alone, in the courts of law, or in the heads of department. Const. U. S. art. 2, s. 2.—Sharswood.
[24 ] The king by the common law could have created a duke, earl, &c., and could have given him precedence before all others of the same rank, a prerogative not unfrequently exercised in ancient times; but it was restrained by the 31 Hen. VIII. c. 10, which settles the place or precedence of all the nobility and great officers of state. This statute does not extend to Ireland, where the king still retains his prerogative without any restriction.—Christian.
[(g) ] 4 Inst. 361.
[25 ] The power to establish a uniform rule of naturalization is vested in Congress. Const. U. S. art. 2, s. 8. The prevailing opinion is that this power is exclusive, in other words, that when Congress have exercised it the States are precluded from doing the same thing. 1 Kent’s Com. 424. There is no express power in Congress to erect corporations. A proposition to delegate to them such a power was rejected in the federal convention. Whether Congress can grant a charter as an incident to the powers granted, and a means of carrying them into execution, is a much-vexed question, upon which the constitutionality of a federal bank depends.—Sharswood.
[(h) ]Disputare de principali judicio non oportet; sacrilegii enim instar est, dubitare an is dignus sit, quem elegerit imperator. C. 9, 29, 3.
[(i) ] Co. Litt. 172. Ld. Raym. 181. 1542.
[26 ] “Congress have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” Const. U. S. art. 1, s. 8. Whether this is or is not a power exclusive of the several States, is a question which does not yet appear to be fully settled. The Passenger cases, 7 Howard, S. C. Rep. 283.—Sharswood.
[(k) ] 2 Inst. 220.
[(l) ]Gr. Coustum. c. 16.
[(m) ] Cap. 8.
[(n) ] Will. Malmsb. in vita Hen. I. Spelm. Hen. I. apud Wilkins, 299.
[(o) ] Hoved. Matth. Paris.
[(p) ] Hoved. ad 1201.
[(q) ] 9 Hen. III. c. 25.
[(r) ]Plac. 35 Edw. I. apud Cowel’s Interpr. tit. pondus regis. “The king’s weight; measure of our lord the king.”
[(s) ]Flet. 2, 12.
[(t) ] 14 Edw. III. st. 1, c. 12. 25 Edw. III. st. 5, c. 10. 16 Ric. II. c. 3. 8 Hen. VI. c. 5. 11 Hen. VI. c. 8. 11 Hen. VII. c. 4. 22 Car. II. c. 8.
[(u) ] 2 Inst. 41.
[27 ] The regulation of weights and measures cannot with propriety be referred to the king’s prerogative; for from magna charta to the present time there are above twenty acts of parliament to fix and establish the standard and uniformity of weights and measures. Two important cases upon this subject have lately been determined by the court of king’s bench: one was, that although there had been a custom in a town to sell butter by eighteen ounces to the pound, yet the jury of the court-leet were not justified in seizing the butter of a person who sold pounds less than that, but more than sixteen ounces each, the statutable weight. 3 T. R. 271. In the other it was determined that no practice or usage could countervail the statutes 22 Car. II. c. 8, and 22 & 23 Car. II. c. 12, which enact, that if any person shall either sell or buy grain or salt by any other measure than the Winchester bushel, he shall forfeit forty shillings, and also the value of the grain or salt so sold or bought; one half to the poor, the other to the informer. The King and Major, 4 T. R. 750. 5 T. R. 353.—Christian.
The power to fix the standard of weights and measures is in Congress. Const. U. S. art. 1, s. 8. This power has not as yet been exercised except in regard to the custom-houses of the United States, and by distributing a complete set of all the weights and measures adopted as standards for the use of the several custom-houses, to be delivered to the governor of each State in the Union or such person as he may appoint, for the use of the States respectively, to the end that a uniform standard of weights and measures may be established throughout the United States. Resolution of Congress, June 14, 1836. 4 Story’s Laws, 2519.—Sharswood.
[28 ] In considering the prices of articles in ancient times, regard must always be had to the weight of the shilling, or the quantity of silver which it contained at different periods. From the conquest till the 20th year of Edw. III. a pound sterling was actually a pound troy-weight of silver, which was divided into twenty shillings; so if ten pounds at that time were the price of a horse, the same quantity of silver was paid for it as is now given, if its price is thirty pounds.
This therefore is one great cause of the apparent difference in the prices of commodities in ancient and modern times. About the year 1347, Edward III. coined twenty-two shillings out of a pound; and five years afterwards he coined twenty-five shillings out of the same quantity. Henry V., in the beginning of his reign, divided the pound into thirty shillings, and then of consequence the shilling was double the weight of a shilling at present. Henry VII. increased the number to forty, which was the standard number till the beginning of the reign of Elizabeth. She then coined a pound sterling of silver into sixty-two shillings. And now by 56 Geo. III. c. 68, the pound troy of standard silver, eleven ounces two pennyweights fine, &c., may be coined into sixty-six shillings. See “Money,” in the Index to Hume’s Hist. Dr. Adam Smith, at the end of his first volume, has given tables specifying the average prices of wheat for five hundred and fifty years back, and has reduced for each year the money of that time into the money of the present day. But in his calculation he has called the pound since Elizabeth’s time sixty shillings. Taking it at that rate, we may easily find the equivalent in modern money of any sum in ancient time, if we know the number of shillings which weighed a pound, by this simple rule: As the number of shillings in a pound at that time is to sixty, so is any sum at that time to its equivalent at present; as for instance, in the time of Henry V., as thirty shillings are to sixty shillings now, so ten pounds then were equal to twenty pounds of present money. The increase in the quantity of the precious metals does not necessarily increase the price of articles of commerce; for if the quantities of these articles are augmented in the same proportion as the quantity of money, it is clear there will be the same use, demand, or price for money as before, and no effect will be produced in the price of commodities.
If gold and silver could have been kept in the country, the immense increase of paper currency, or substitution of paper for coin, would have diminished its value, and have increased the prices of labour and commodities far beyond the effect that has been produced by the discovery of the mines in America. The effect they have produced is general, and extended to the whole world: but the increase of our paper has only a tendency to lessen the value of money at home, which never can take place to any great degree, as it will naturally seek a better market, or be carried where more will be given for it; and by the substitution of a cheaper medium of commerce, the difference in value is added to the capital or to the real strength of the nation. Gold and silver form an insignificant part of the real wealth of a commercial country. The whole quantity of specie in the country has been estimated at about twenty millions only,—much less than what is raised in one year for the support of Government.—Christian.
[(v) ] 2 Inst. 577.
[29 ] This was a clause in a temporary act, which was continued till 1783, since which time I do not find that it has been revived.—Christian.
[(w) ] 1 Hist. P. C. 191.
[(x) ] This standard hath been frequently varied in former times, but hath for many years past been thus invariably settled. The pound troy of gold, consisting of twenty-two carats (or twenty-forth parts) fine and two of alloy, is divided into forty-four guineas and a half of the present value of 21s. each. And the pound troy of silver, consisting of eleven ounces and two pennyweights pure and eighteen pennyweights alloy, is divided into sixty-two shillings. See Folkes on English Coins.
[(y) ] Spelm. Gloss. 203. Dufresne, iii. 165. The most plausible opinion seems to be that adopted by those two etymologists, that the name was derived from the Esterlingi, or Easterlings, as those Saxons were anciently called who inhabited that district of Germany now occupied by the Hanse Towns and their appendages, the earliest traders in modern Europe.
[30 ] Dr. Adam Smith, in his inestimable work, the “Inquiry into the Nature and Causes of the Wealth of Nations,” vol. i. p. 39, tells us that “the English pound sterling in the time of Edward I. contained a pound Tower weight of silver of a known fineness. The Tower pound seems to have been something more than the Roman pound and something less than the Troyes pound. This last was not introduced into the mint of England till the 18th of Hen. VIII. The French livre contained in the time of Charlemagne a pound Troyes weight of silver of a known fineness. The fair of Troyes, in Champaign, was at that time frequented by all the nations of Europe, and the weights and measures of so famous a market were generally known and esteemed.”—Christian.
[(z) ] 2 Inst. 577.
[(a) ] 1 Hal. P. C. 194.
[31 ] Lord Hale refers to the case of mixed money in Davies’s Reports, 48, in support of his opinion. A person in Ireland had borrowed £100 of sterling money, and had given a bond to repay it on a certain future day. In the mean time, queen Elizabeth, for the purpose of paying her armies and creditors in Ireland, had coined mixed or base money, and by her proclamation had ordered it to pass current, and had cried down the former coin. The debtor, on the appointed day, tendered £100 in this base coin; and it was determined, upon great consideration, that it was a legal tender, and that the lender was obliged to receive it. Natural equity would have given a different decision.
This act of queen Elizabeth does but ill correspond with the flattering inscription upon her tomb:—Religio reformata, pax fundata, moneta ad suum valorem reducta, &c. 2 Inst. 578.—Christian.
[(b) ] Ibid. 197.
[(c) ] 1 Hal. P. C. 197.
[32 ] Congress have power “to coin money, regulate the value thereof and of foreign coin, and to provide for the punishment of counterfeiting the securities and current coin of the United States.” Const. U. S. art. 1, s. 8.—Sharswood.
[(d) ] 4 Inst. 322, 323.
[(e) ] 12 Rep. 72.
[(f) ] In the diet of Sweden, where the ecclesiastics form one of the branches of the legislature, the chamber of the clergy resembles the convocation of England. It is composed of the bishops and superintendents, and also of deputies, one of which is chosen, by every ten parishes or rural deanery. Mod. Un. Hist. xxxiii. 18.
[33 ] And by stat. 8 Hen. VI. c. 1, the clergy in attendance upon the convocation are privileged from arrest. If not at the period specified, as head of the church, (presuming the pope, temp. Edw. I., to have arrogated that elevated dignity,) yet, as king of England, we find a remarkable exercise of power delegated by him to the bishops:—“And the kynge hath grantyd to all bysshoppys that twyse in a yere they may curse all men doying against these artycles.” The grete Abregement of the Statutys of Englond untyll the xxij. yere of Kyng Henry the VIII. 257. This clause is in effect found in the statute, or rather charter, Statutum de tallagio non concedendo. 34 Edw. I. c. vi.—Chitty.
[(g) ] Gilb. Hist. of Exch. c. 4.
[34 ] From the learned commentator’s text, the student would perhaps be apt to suppose that there is only one convocation at a time. But the king, before the meeting of every new parliament, directs his writ to each archbishop to summon a convocation in his peculiar province.
Godolphin says that the convocation of the province of York constantly corresponds, debates, and concludes the same matters with the provincial synod of Canterbury. God. 99. But they are certainly distinct and independent of each other; and, when they used to tax the clergy, the different convocations sometimes granted different subsidies. In the 22 Hen. VIII. the convocation of Canterbury had granted the king one hundred thousand pounds, in consideration of which an act of parliament was passed, granting a free pardon to the clergy for all spiritual offences, but with a proviso that it should not extend to the province of York, unless its convocation would grant a subsidy in proportion, or unless its clergy would bind themselves individually to contribute as bountfully. This statute is cited at large in Gib. Cod. 77.
All deans and archdeacons are members of the convocation of their province. Each chapter sends one proctor or representative, and the parochial clergy in each diocese in Canterbury two proctors; but, on account of the small number of dioceses in the province of York, each archdeaconry elects two proctors. In York, the convocation consists only of one house; but in Canterbury there are two houses, of which the twenty-two bishops form the upper house; and, before the Reformation, abbots, priors, and other mitred prelates sat with the bishops. The lower house of convocation in the province of Canterbury consists of twenty-two deans, fifty-three archdeacons, twenty-four proctors for the chapters, and forty-four proctors for the parochial clergy. By 8 Hen. VI. c. 1, the clergy in their attendance upon the convocation have the same privilege in freedom from arrest as the members of the house of commons in their attendance upon parliament. Burn. Conv. 1 Bac. Abr. 610.—Christian.
[35 ] By that statute it is declared, that for the future no appeals from the ecclesiastical courts of this realm should be made to the pope, but that an appeal from the archbishop’s courts should lie to the king in chancery; upon which the king, as in appeals from the admiral’s court, should by a commission appoint certain judges or delegates finally to determine such appeals. 3 Book, 66.—Christian.
“No religious test shall ever be required as a qualification to any office or public trust under the United States.” Const. U. S. art. 6, s. 3. “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Ibid. Amendments, art. 1.—Sharswood.