IV.
to individuals who have suffered by depredations from foreign
potentates, our laws have in some respect armed the subject
with powers to impel the prerogative; by directing the ministers
of the crown to issue letters of marque and reprisal upon due
demand: the prerogative of granting which is nearly related to,
and plainly derived from, that other of making war; this being
indeed only an incomplete state of hostilities, and generally ending
in a formal denunciation of war. These letters are grantable
by the law of nations[y], whenever the subjects of one state are
oppressed and injured by those of another; and justice is denied
by that state to which the oppressor belongs. In this case letters
of marque and reprisal (words in themselves synonimous and signifying
a taking in return) may be obtained, in order to seise the
bodies or goods of the subjects of the offending state, until satisfaction be made, wherever they happen to be found. Indeed this
custom of reprisals seems dictated by nature herself; and accordingly
we find in the most antient times very notable instances of
it[z]. But here the necessity is obvious of calling in the sovereign
power, to determine when reprisals may be made; else every
private sufferer would be a judge in his own cause. And, in pursuance
of this principle, it is with us declared by the statute
4 Hen. V. c. 7. that, if any subjects of the realm are oppressed in
time of truce by any foreigners, the king will grant marque in
due form, to all that feel themselves grieved. Which form is
thus directed to be observed: the sufferer must first apply to the
lord privy-seal, and he shall make out letters of request under the
privy seal; and, if, after such request of satisfaction made, the
party required do not within convenient time make due satisfaction
or restitution to the party grieved, the lord chancellor shall
make him out letters of marque under the great seal; and by
virtue of these he may attack and seise the property of the aggressor
nation, without hazard of being condemned as a robber
or pirate.
V.
granting safe-conducts, without which by the law of nations no
member of one society has a right to intrude into another. And
therefore Puffendorf very justly resolves[a], that it is left in the
power of all states, to take such measures about the admission of
strangers, as they think convenient; those being ever excepted
who are driven on the coasts by necessity, or by any cause that
deserves pity or compassion. Great tenderness is shewn by our
laws, not only to foreigners in distress (as will appear when we
come to speak of shipwrecks) but with regard also to the admission
of strangers who come spontaneously. For so long as their
nation continues at peace with ours, and they themselves behave
peaceably, they are under the king's protection; though liable to
be sent home whenever the king sees occasion. But no subject of
a nation at war with us can, by the law of nations, come into
the realm, nor can travel himself upon the high seas, or send his
goods and merchandize from one place to another, without danger
of being seized by our subjects, unless he has letters of safe-conduct;
which by divers antient statutes[b] must be granted under
the king's great seal and inrolled in chancery, or else are of no
effect: the king being supposed the best judge of such emergencies,
as may deserve exception from the general law of arms.
a very particular regard to foreign merchants in innumerable instances.
One I cannot omit to mention: that by magna carta[c] it
is provided, that all merchants (unless publickly prohibited beforehand)
shall have safe conduct to depart from, to come into, to
tarry in, and to go through England, for the exercise of merchandize,
without any unreasonable imposts, except in time of
war: and, if a war breaks out between us and their country,
they shall be attached (if in England) without harm of body or
goods, till the king or his chief justiciary be informed how our
merchants are treated in the land with which we are at war; and,
if ours be secure in that land, they shall be secure in ours. This
seems to have been a common rule of equity among all the northern
nations; for we learn from Stiernhook[d], that it was a
maxim among the Goths and Swedes, "quam legem exteri nobis
posuere, eandem illis ponemus." But it is somewhat extraordinary,
that it should have found a place in magna carta, a mere interior
treaty between the king and his natural-born subjects; which occasions
the learned Montesquieu to remark with a degree of admiration,
"that the English have made the protection of foreign
merchants one of the articles of their national liberty[e]." But
indeed it well justifies another observation which he has made[f],
"that the English know better than any other people upon earth,
how to value at the same time these three great advantages, religion,
liberty, and commerce." Very different from the genius
of the Roman people; who in their manners, their constitution,
and even in their laws, treated commerce as a dishonorable employment,
and prohibited the exercise thereof to persons of birth,
or rank, or fortune[g]: and equally different from the bigotry of
the canonists, who looked on trade as inconsistent with christianity[h],
and determined at the council of Melfi, under pope Urban
II, A. D. 1090, that it was impossible with a safe conscience
to exercise any traffic, or follow the profession of the law[i].
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.
power; and, as such, has the prerogative of rejecting such provisions
in parliament, as he judges improper to be passed. The
expediency of which constitution has before been evinced at large[k].
I shall only farther remark, that the king is not bound by any
act of parliament, unless he be named therein by special and particular
words. The most general words that can be devised ("any
person or persons, bodies politic, or corporate, &c.") affect not
him in the least, if they may tend to restrain or diminish any of
his rights or interests[l]. For it would be of most mischievous consequence
to the public, if the strength of the executive power
were liable to be curtailed without it's own express consent, by
constructions and implications of the subject. Yet where an act
of parliament is expressly made for the preservation of public rights
and the suppression of public wrongs, and does not interfere with
the established rights of the crown, it is said to be binding as
well upon the king as upon the subject[m]: and, likewise, the king
may take the benefit of any particular act, though he be not especially
named[n].
II.
or the first in military command, within the kingdom.
The great end of society is to protect the weakness of individuals
by the united strength of the community: and the principal use
of government is to direct that united strength in the best and
most effectual manner, to answer the end proposed. Monarchical
government is allowed to be the fittest of any for this purpose:
it follows therefore, from the very end of it's institution, that in
a monarchy the military power must be trusted in the hands of
the prince.
king has the sole power of raising and regulating fleets and armies.
Of the manner in which they are raised and regulated I shall
speak more, when I come to consider the military state. We are
now only to consider the prerogative of enlisting and of governing
them: which indeed was disputed and claimed, contrary to
all reason and precedent, by the long parliament of king Charles I;
but, upon the restoration of his son, was solemnly declared by
the statute 13 Car. II. c. 6. to be in the king alone: for that the
sole supreme government and command of the militia within all
his majesty's realms and dominions, and of all forces by sea and
land, and of all forts and places of strength, ever was and is the
undoubted right of his majesty, and his royal predecessors, kings
and queens of England; and that both or either house of parliament
cannot, nor ought to, pretend to the same.
fleets and armies, but also to forts, and other places of strength,
within the realm; the sole prerogative as well of erecting, as
manning and governing of which, belongs to the king in his capacity
of general of the kingdom[o]: and all lands were formerly
subject to a tax, for building of castles wherever the king thought
proper. This was one of the three things, from contributing to
the performance of which no lands were exempted; and therefore
called by our Saxon ancestors the trinoda necessitas: sc. pontis
reparatio, arcis constructio, et expeditio contra hostem[p]. And this
they were called upon to do so often, that, as sir Edward Coke
from M. Paris assures us[q], there were in the time of Henry II
1115 castles subsisting in England. The inconvenience of which,
when granted out to private subjects, the lordly barons of those
times, was severely felt by the whole kingdom; for, as William
of Newbury remarks in the reign of king Stephen, "erant in
Anglia quodammodo tot reges vel potius tyranni, quot domini castellorum:"
but it was felt by none more sensibly than by two
succeeding princes, king John and king Henry III. And therefore,
the greatest part of them being demolished in the barons'
wars, the kings of after times have been very cautious of suffering
them to be rebuilt in a fortified manner: and sir Edward Coke
lays it down[r], that no subject can build a castle, or house of
strength imbatteled, or other fortress defensible, without the licence
of the king; for the danger which might ensue, if every
man at his pleasure might do it.
vested in his majesty, by statutes 12 Car. II. c. 4. and 29 Geo. II.
c. 16. of prohibiting the exportation of arms or ammunition out
of this kingdom, under severe penalties: and likewise the right
which the king has, whenever he sees proper, of confining his
subjects to stay within the realm, or of recalling them when beyond
the seas. By the common law[s], every man may go out of
the realm for whatever cause he pleaseth, without obtaining the
king's leave; provided he is under no injunction of staying at
home: (which liberty was expressly declared in king John's great
charter, though left out in that of Henry III) but, because that
every man ought of right to defend the king and his realm,
therefore the king at his pleasure may command him by his writ
that he go not beyond the seas, or out of the realm without licence;
and if he do the contrary, he shall be punished for disobeying
the king's command. Some persons there antiently were,
that, by reason of their stations, were under a perpetual prohibition
of going abroad without licence obtained; among which were
reckoned all peers, on account of their being counsellors of the
crown; all knights, who were bound to defend the kingdom
from invasions; all ecclesiastics, who were expressly confined by
cap. 4. of the constitutions of Clarendon, on account of their
attachment in the times of popery to the see of Rome; all archers
and other artificers, lest they should instruct foreigners to
rival us in their several trades and manufactures. This was law in
the times of Britton[t], who wrote in the reign of Edward I: and
sir Edward Coke[u] gives us many instances to this effect in the
time of Edward III. In the succeeding reign the affair of travelling
wore a very different aspect: an act of parliament being
made[w], forbidding all persons whatever to go abroad without licence;
except only the lords and other great men of the realm;
and true and notable merchants; and the king's soldiers. But
this act was repealed by the statute 4 Jac. I. c. 1. And at present
every body has, or at least assumes, the liberty of going abroad
when he pleases. Yet undoubtedly if the king, by writ of ne
exeat regnum, under his great seal or privy seal, thinks proper to
prohibit him from so doing; or if the king sends a writ to any
man, when abroad, commanding his return; and in either case
the subject disobeys; it is a high contempt of the king's prerogative, for which the offender's lands shall be seised till he return;
and then he is liable to fine and imprisonment[x].
III.
domestic affairs, is as the fountain of justice and general conservator
of the peace of the kingdom. By the fountain of justice
the law does not mean the author or original, but only the distributor.
Justice is not derived from the king, as from his free gift;
but he is the steward of the public, to dispense it to whom it is
due[y]. He is not the spring, but the reservoir; from whence right
and equity are conducted, by a thousand chanels, to every individual.
The original power of judicature, by the fundamental principles
of society, is lodged in the society at large: but as it would
be impracticable to render complete justice to every individual,
by the people in their collective capacity, therefore every nation
has committed that power to certain select magistrates, who with
more ease and expedition can hear and determine complaints; and
in England this authority has immemorially been exercised by the
king or his substitutes. He therefore has alone the right of erecting
courts of judicature: for, though the constitution of the
kingdom hath entrusted him with the whole executive power of
the laws, it is impossible, as well as improper, that he should
personally carry into execution this great and extensive trust: it
is consequently necessary, that courts should be erected, to assist
him in executing this power; and equally necessary, that, if erected,
they should be erected by his authority. And hence it is,
that all jurisdictions of courts are either mediately or immediately
derived from the crown, their proceedings run generally in the
king's name, they pass under his seal, and are executed by his
officers.
before our constitution arrived at it's full perfection, our kings in
person often heard and determined causes between party and party.
But at present, by the long and uniform usage of many ages, our
kings have delegated their whole judicial power to the judges of
their several courts; which are the grand depositary of the fundamental
laws of the kingdom, and have gained a known and
stated jurisdiction, regulated by certain and established rules,
which the crown itself cannot now alter but by act of parliament[z].
And, in order to maintain both the dignity and independence
of the judges in the superior courts, it is enacted by the
statute 13 W. III. c. 2. that their commissions shall be made (not,
as formerly, durante bene placito, but) quamdiu bene se gesserint,
and their salaries ascertained and established; but that it may be
lawful to remove them on the address of both houses of parliament.
And now, by the noble improvements of that law in the
statute of 1 Geo. III. c. 23. enacted at the earnest recommendation
of the king himself from the throne, the judges are continued in
their offices during their good behaviour, notwithstanding any
demise of the crown (which was formerly held[a] immediately to
vacate their seats) and their full salaries are absolutely secured to
them during the continuance of their commissions: his majesty
having been pleased to declare, that "he looked upon the independence
and uprightness of the judges, as essential to the impartial
administration of justice; as one of the best securities of
the rights and liberties of his subjects; and as most conducive
to the honour of the crown[b]."
still be a higher absurdity, if the king personally sate in judgment;
because in regard to these he appears in another capacity,
that of prosecutor. All offences are either against the king's peace,
or his crown and dignity; and are so laid in every indictment.
For, though in their consequences they generally seem (except in
the case of treason and a very few others) to be rather offences
against the kingdom than the king; yet, as the public, which is
an invisible body, has delegated all it's power and rights, with regard to the execution of the laws, to one visible magistrate, all
affronts to that power, and breaches of those rights, are immediately
offences against him, to whom they are so delegated by
the public. He is therefore the proper person to prosecute for
all public offences and breaches of the peace, being the person
injured in the eye of the law. And this notion was carried so far
in the old Gothic constitution, (wherein the king was bound by
his coronation oath to conserve the peace) that in case of any forcible
injury offered to the person of a fellow subject, the offender
was accused of a kind of perjury, in having violated the king's
coronation oath; dicebatur fregisse juramentum regis juratum[c]. And
hence also arises another branch of the prerogative, that of pardoning
offences; for it is reasonable that he only who is injured
should have the power of forgiving. And therefore, in parliamentary
impeachments, the king has no prerogative of pardoning:
because there the commons of Great Britain are in their own
names the prosecutors, and not the crown; the offence being for
the most part avowedly taken to be done against the public. Of
prosecutions and pardons I shall treat more at large hereafter; and
only mention them here, in this cursory manner, to shew the
constitutional grounds of this power of the crown, and how regularly
connected all the links are in this vast chain of prerogative.
in a peculiar body of men, nominated indeed, but not removeable
at pleasure, by the crown, consists one main preservative of the
public liberty; which cannot subsist long in any state, unless the
administration of common justice be in some degree separated
both from the legislative and also from the executive power. Were
it joined with the legislative, the life, liberty, and property, of
the subject would be in the hands of arbitrary judges, whose decisions
would be then regulated only by their own opinions, and
not by any fundamental principles of law; which, though legislators
may depart from, yet judges are bound to observe. Were
it joined with the executive, this union might soon be an over-*ballance
for the legislative. For which reason, by the statute of
16 Car. I. c. 10. which abolished the court of star chamber, effectual
care is taken to remove all judicial power out of the hands
of the king's privy council; who, as then was evident from recent
instances, might soon be inclined to pronounce that for law,
which was most agreeable to the prince or his officers. Nothing
therefore is more to be avoided, in a free constitution, than uniting
the provinces of a judge and a minister of state. And indeed,
that the absolute power, claimed and exercised in a neighbouring
nation, is more tolerable than that of the eastern empires, is
in great measure owing to their having vested the judicial power
in their parliaments, a body separate and distinct from both the
legislative and executive: and, if ever that nation recovers it's
former liberty, it will owe it to the efforts of those assemblies.
In Turkey, where every thing is centered in the sultan or his
ministers, despotic power is in it's meridian, and wears a more
dreadful aspect.
the king. His majesty, in the eye of the law, is always present
in all his courts, though he cannot personally distribute justice[d].
His judges are the mirror by which the king's image is reflected.
It is the regal office, and not the royal person, that is always
present in court, always ready to undertake prosecutions, or pronounce
judgment, for the benefit and protection of the subject.
And from this ubiquity it follows, that the king can never be
nonsuit[e]; for a nonsuit is the desertion of the suit or action by
the non-appearance of the plaintiff in court. For the same reason
also, in the forms of legal proceedings, the king is not said to
appear by his attorney, as other men do; for he always appears in
contemplation of law in his own proper person[f].
justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. These proclamations
have then a binding force, when (as Sir Edward Coke observes[g])
they are grounded upon and enforce the laws of the realm. For,
though the making of laws is entirely the work of a distinct part,
the legislative branch, of the sovereign power, yet the manner,
time, and circumstances of putting those laws in execution must
frequently be left to the discretion of the executive magistrate.
And therefore his constitutions or edicts, concerning these points,
which we call proclamations, are binding upon the subject, where
they do not either contradict the old laws, or tend to establish
new ones; but only enforce the execution of such laws as are
already in being, in such manner as the king shall judge necessary.
Thus the established law is, that the king may prohibit any
of his subjects from leaving the realm: a proclamation therefore
forbidding this in general for three weeks, by laying an embargo
upon all shipping in time of war[h], will be equally binding as an
act of parliament, because founded upon a prior law. A proclamation
for disarming papists is also binding, being only in execution
of what the legislature has first ordained: but a proclamation
for allowing arms to papists, or for disarming any protestant
subjects, will not bind; because the first would be to assume a dispensing
power, the latter a legislative one; to the vesting of either
of which in any single person the laws of England are absolutely
strangers. Indeed by the statute 31 Hen. VIII. c. 8. it
was enacted, that the king's proclamations should have the force
of acts of parliament: a statute, which was calculated to introduce
the most despotic tyranny; and which must have proved fatal
to the liberties of this kingdom, had it not been luckily repealed
in the minority of his successor, about five years after[i].
"End of Section 28"
