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 farther. For otherwise the power of the crown would indeed
be but a name and a shadow, insufficient for the ends of government,
if, where it's 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
now 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 for 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 lawbooks, 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 him, 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 to a just and severe account.
For prerogative consisting (as Mr Locke[c] 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.
[Footnote c: on Gov. 2. Sec. 166.]
THE prerogatives of the crown (in the sense under which we are now
considering them) respect either this nation's intercourse with
foreign nations, or it's own domestic government and civil polity.
WITH regard to foreign concerns, the king is the delegate or
representative of his people. It is impossible that the individuals of
a state, in their collective capacity, can transact the affairs of
that state with another community equally numerous as themselves.
Unanimity must be wanting to their measures, and strength to the
execution of their counsels. In the king therefore, as in a center,
all the rays of his people are united, and form by that union a
consistency, splendor, and power, that make him feared and respected
by foreign potentates; who would scruple to enter into any
engagements, that must afterwards be revised and ratified by a popular
assembly. What is done by the royal authority, with regard to foreign
powers, is the act of the whole nation: what is done without the
king's concurrence is the act only of private men. And so far is this
point carried by our law, that it hath been held[d], that should all
the subjects of England make war with a king in league with the king
of England, without the royal assent, such war is no breach of the
league. And, by the statute 2 Hen. V. c. 6. any subject committing
acts of hostility upon any nation in league with the king, was
declared to be guilty of high treason: and, though that act was
repealed by the statute 20 Hen. VI. c. 11. so far as relates to the
making this offence high treason, yet still it remains a very great
offence against the law of nations, and punishable by our laws, either
capitally or otherwise, according to the circumstances of the case.
[Footnote d: 4 Inst. 152.]
I. THE king therefore, considered as the representative of his people,
has the sole power of sending embassadors to foreign states, and
receiving embassadors at home. This may lead us into a short enquiry,
how far the municipal laws of England intermeddle with or protect the
rights of these messengers from one potentate to another, whom we call
embassadors.
THE rights, the powers, the duties, and the privileges of embassadors
are determined by the law of nature and nations, and not by any
municipal constitutions. For, as they represent the persons of their
respective masters, who owe no subjection to any laws but those of
their own country, their actions are not subject to the control of the
private law of that state, wherein they are appointed to reside. He
that is subject to the coercion of laws is necessarily dependent on
that power by whom those laws were made: but an embassador ought to be
independent of every power, except that by which he is sent; and of
consequence ought not to be subject to the mere municipal laws of that
nation, wherein he is to exercise his functions. If he grossly
offends, or makes an ill use of his character, he may be sent home and
accused before his master[e]; who is bound either to do justice upon
him, or avow himself the accomplice of his crimes[f]. But there is
great dispute among the writers on the laws of nations, whether this
exemption of embassadors extends to all crimes, as well natural as
positive; or whether it only extends to such as are _mala prohibita_,
as coining, and not to those that are _mala in se_, as murder[g]. Our
law seems to have formerly taken in the restriction, as well as the
general exemption. For it has been held, both by our common lawyers
and civilians[h], that an embassador is privileged by the law of
nature and nations; and yet, if he commits any offence against the law
of reason and nature, he shall lose his privilege[i]: and that
therefore, if an embassador conspires the death of the king in whose
land he is, he may be condemned and executed for treason; but if he
commits any other species of treason, it is otherwise, and he must be
sent to his own kingdom[k]. And these positions seem to be built upon
good appearance of reason. For since, as we have formerly shewn, all
municipal laws act in subordination to the primary law of nature, and,
where they annex a punishment to natural crimes, are only declaratory
of and auxiliary to that law; therefore to this natural, universal
rule of justice embassadors, as well as other men, are subject in all
countries; and of consequence it is reasonable that wherever they
transgress it, there they shall be liable to make atonement[l]. But,
however these principles might formerly obtain, the general practice
of Europe seems now to have adopted the sentiments of the learned
Grotius, that the security of embassadors is of more importance than
the punishment of a particular crime[m]. And therefore few, if any,
examples have happened within a century past, where an embassador has
been punished for any offence, however atrocious in it's nature.
[Footnote e: As was done with count Gyllenberg the Swedish minister to
Great Britain, _A.D._ 1716.]
[Footnote f: Sp. L. 26. 21.]
[Footnote g: Van Leeuwen _in Ff._ 50. 7. 17. Barbeyrac's Puff. l. 8.
c. 9. Sec. 9. & 17. Van Bynkershoek _de foro legator._ c. 17, 18, 19.]
[Footnote h: 1 Roll. Rep. 175. 3 Bulstr. 27.]
[Footnote i: 4 Inst. 153.]
[Footnote k: 1 Roll. Rep. 185.]
[Footnote l: Foster's reports. 188.]
[Footnote m: _Securitas legatorum utilitati quae ex poena est
praeponderat._ _de jur. b. & p._ 2. 18. 4. 4.]
IN respect to civil suits, all the foreign jurists agree, that neither
an embassador, nor any of his train or _comites_, can be prosecuted
for any debt or contract in the courts of that kingdom wherein he is
sent to reside. Yet sir Edward Coke maintains, that, if an embassador
make a contract which is good _jure gentium_, he shall answer for it
here[n]. And the truth is, we find no traces in our lawbooks of
allowing any privilege to embassadors or their domestics, even in
civil suits, previous to the reign of queen Anne; when an embassador
from Peter the great, czar of Muscovy, was actually arrested and taken
out of his coach in London, in 1708, for debts which he had there
contracted. This the czar resented very highly, and demanded (we are
told) that the officers who made the arrest should be punished with
death. But the queen (to the amazement of that despotic court)
directed her minister to inform him, "that the law of England had not
yet protected embassadors from the payment of their lawful debts; that
therefore the arrest was no offence by the laws; and that she could
inflict no punishment upon any, the meanest, of her subjects, unless
warranted by the law of the land[o]." To satisfy however the clamours
of the foreign ministers (who made it a common cause) as well as to
appease the wrath of Peter[p], a new statute was enacted by
parliament[q], reciting the arrest which had been made, "in contempt
of the protection granted by her majesty, contrary to the law of
nations, and in prejudice of the rights and privileges, which
embassadors and other public ministers have at all times been thereby
possessed of, and ought to be kept sacred and inviolable:" wherefore
it enacts, that for the future all process whereby the person of any
embassador, or of his domestic or domestic servant, may be arrested,
or his goods distreined or seised, shall be utterly null and void; and
the persons prosecuting, soliciting, or executing such process shall
be deemed violaters of the law of nations, and disturbers of the
public repose; and shall suffer such penalties and corporal punishment
as the lord chancellor and the two chief justices, or any two of them,
shall think fit. But it is expressly provided, that no trader, within
the description of the bankrupt laws, who shall be in the service of
any embassador, shall be privileged or protected by this act; nor
shall any one be punished for arresting an embassador's servant,
unless his name be registred with the secretary of state, and by him
transmitted to the sheriffs of London and Middlesex. Exceptions, that
are strictly conformable to the rights of embassadors[r], as observed
in the most civilized countries. And, in consequence of this statute,
thus enforcing the law of nations, these privileges are now usually
allowed in the courts of common law[s].
[Footnote n: 4 Inst. 153.]
[Footnote o: Mod. Un. Hist. xxxv. 454.]
[Footnote p: A copy of the act made upon this occasion, very elegantly
engrossed and illuminated, was sent him to Moscow as a present.]
[Footnote q: 7 Ann. c. 12.]
[Footnote r: _Saepe quaesitum est an comitum numero et jure habendi
sunt, qui legatum comitantur, non ut instructior fiat legatio, sed
unice ut lucro suo consulant, institores forte et mercatores. Et,
quamvis hos saepe defenderint et comitum loco habere voluerint legati,
apparet tamen satis eo non pertinere, qui in legati legationisve
officio non sunt. Quum autem ea res nonnunquam turbas dederit, optimo
exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur
exhibere nomenclaturam comitum suorum._ Van Bynkersh. _c._ 15. _prope
finem_.]
[Footnote s: Fitzg. 200. Stra. 797.]
II. IT is also the king's prerogative to make treaties, leagues, and
alliances with foreign states and princes. For it is by the law of
nations essential to the goodness of a league, that it be made by the
sovereign power[t]; and then it is binding upon the whole community:
and in England the sovereign power, _quoad hoc_, is vested in the
person of the king. Whatever contracts therefore he engages in, no
other power in the kingdom can legally delay, resist, or annul. And
yet, lest this plenitude of authority should be abused to the
detriment of the public, the constitution (as was hinted before) hath
here interposed a check, by the means of parliamentary impeachment,
for the punishment of such ministers as advise or conclude any treaty,
which shall afterwards be judged to derogate from the honour and
interest of the nation.
[Footnote t: Puff. L. of N. b. 8. c. 9. Sec. 6.]
III. UPON the same principle the king has also the sole prerogative of
making war and peace. For it is held by all the writers on the law of
nature and nations, that the right of making war, which by nature
subsisted in every individual, is given up by all private persons that
enter into society, and is vested in the sovereign power[u]: and this
right is given up not only by individuals, but even by the intire body
of people, that are under the dominion of a sovereign. It would indeed
be extremely improper, that any number of subjects should have the
power of binding the supreme magistrate, and putting him against his
will in a state of war. Whatever hostilities therefore may be
committed by private citizens, the state ought not to be affected
thereby; unless that should justify their proceedings, and thereby
become partner in the guilt. Such unauthorized voluntiers in violence
are not ranked among open enemies, but are treated like pirates and
robbers: according to that rule of the civil law[w]; _hostes hi sunt
qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones
aut praedones sunt_. And the reason which is given by Grotius[x], why
according to the law of nations a denunciation of war ought always to
precede the actual commencement of hostilities, is not so much that
the enemy may be put upon his guard, (which is matter rather of
magnanimity than right) but that it may be certainly clear that the
war is not undertaken by private persons, but by the will of the whole
community; whose right of willing is in this case transferred to the
supreme magistrate by the fundamental laws of society. So that, in
order to make a war completely effectual, it is necessary with us in
England that it be publicly declared and duly proclaimed by the king's
authority; and, then, all parts of both the contending nations, from
the highest to the lowest, are bound by it. And, wherever the right
resides of beginning a national war, there also must reside the right
of ending it, or the power of making peace. And the same check of
parliamentary impeachment, for improper or inglorious conduct, in
beginning, conducting, or concluding a national war, is in general
sufficient to restrain the ministers of the crown from a wanton or
injurious exertion of this great prerogative.
[Footnote u: Puff. l. 8. c. 6. Sec. 8. and Barbeyr. _in loc._]
[Footnote w: _Ff._ 50. 16. 118.]
[Footnote x: _de jur. b. & p._ _l._ 3. _c._ 3. Sec. 11.]
IV. BUT, as the delay of making war may sometimes be detrimental to
individuals who have suffered by depredations from foreign potentates,
our laws have in some respect armed the subject with powers to impel
the prerogative; by directing the ministers of the crown to issue
letters of marque and reprisal upon due demand: the prerogative of
granting which is nearly related to, and plainly derived from, that
other of making war; this being indeed only an incomplete state of
hostilities, and generally ending in a formal denunciation of war.
These letters are grantable by the law of nations[y], whenever the
subjects of one state are oppressed and injured by those of another;
and justice is denied by that state to which the oppressor belongs. In
this case letters of marque and reprisal (words in themselves
synonimous and signifying a taking in return) may be obtained, in
order to seise the bodies or goods of the subjects of the offending
state, until satisfaction be made, wherever they happen to be found.
Indeed this custom of reprisals seems dictated by nature herself; and
accordingly we find in the most antient times very notable instances
of it[z]. But here the necessity is obvious of calling in the
sovereign power, to determine when reprisals may be made; else every
private sufferer would be a judge in his own cause. And, in pursuance
of this principle, it is with us declared by the statute 4 Hen. V. c.
7. that, if any subjects of the realm are oppressed in time of truce
by any foreigners, the king will grant marque in due form, to all that
feel themselves grieved. Which form is thus directed to be observed:
the sufferer must first apply to the lord privy-seal, and he shall
make out letters of request under the privy seal; and, if, after such
request of satisfaction made, the party required do not within
convenient time make due satisfaction or restitution to the party
grieved, the lord chancellor shall make him out letters of marque
under the great seal; and by virtue of these he may attack and seise
the property of the aggressor nation, without hazard of being
condemned as a robber or pirate.
[Footnote y: Grot. _de jur. b. & p._ _l._ 3. _c._ 2. Sec. 4 & 5.]
[Footnote z: See the account given by Nestor, in the eleventh book of
the Iliad, of the reprisals made by himself on the Epeian nation; from
whom he took a multitude of cattle, as a satisfaction for a prize won
at the Elian games by his father Neleus, and for debts due to many
private subjects of the Pylian kingdom: out of which booty the king
took three hundred head of cattle for his own demand, and the rest
were equitably divided among the other creditors.]
V. UPON exactly the same reason stands the prerogative of granting
safe-conducts, without which by the law of nations no member of one
society has a right to intrude into another. And therefore Puffendorf
very justly resolves[a], that it is left in the power of all states,
to take such measures about the admission of strangers, as they think
convenient; those being ever excepted who are driven on the coasts by
necessity, or by any cause that deserves pity or compassion. Great
tenderness is shewn by our laws, not only to foreigners in distress
(as will appear when we come to speak of shipwrecks) but with regard
also to the admission of strangers who come spontaneously. For so long
as their nation continues at peace with ours, and they themselves
behave peaceably, they are under the king's protection; though liable
to be sent home whenever the king sees occasion. But no subject of a
nation at war with us can, by the law of nations, come into the realm,
nor can travel himself upon the high seas, or send his goods and
merchandize from one place to another, without danger of being seized
by our subjects, unless he has letters of safe-conduct; which by
divers antient statutes[b] must be granted under the king's great seal
and inrolled in chancery, or else are of no effect: the king being
supposed the best judge of such emergencies, as may deserve exception
from the general law of arms.
[Footnote a: Law of N. and N. b. 3. c. 3. Sec. 9.]
[Footnote b: 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 20 Hen. VI. c. 1.]
INDEED the law of England, as a commercial country, pays a very
particular regard to foreign merchants in innumerable instances. One I
cannot omit to mention: that by _magna carta_[c] it is provided, that
all merchants (unless publickly prohibited beforehand) shall have safe
conduct to depart from, to come into, to tarry in, and to go through
England, for the exercise of merchandize, without any unreasonable
imposts, except in time of war: and, if a war breaks out between us
and their country, they shall be attached (if in England) without harm
of body or goods, till the king or his chief justiciary be informed
how our merchants are treated in the land with which we are at war;
and, if ours be secure in that land, they shall be secure in ours.
This seems to have been a common rule of equity among all the northern
nations; for we learn from Stiernhook[d], that it was a maxim among
the Goths and Swedes, "_quam legem exteri nobis posuere, eandem illis
ponemus_." But it is somewhat extraordinary, that it should have found
a place in _magna carta_, a mere interior treaty between the king and
his natural-born subjects; which occasions the learned Montesquieu to
remark with a degree of admiration, "that the English have made the
protection of _foreign_ merchants one of the articles of their
_national_ liberty[e]." But indeed it well justifies another
observation which he has made[f], "that the English know better than
any other people upon earth, how to value at the same time these three
great advantages, religion, liberty, and commerce." Very different
from the genius of the Roman people; who in their manners, their
constitution, and even in their laws, treated commerce as a
dishonorable employment, and prohibited the exercise thereof to
persons of birth, or rank, or fortune[g]: and equally different from
the bigotry of the canonists, who looked on trade as inconsistent with
christianity[h], and determined at the council of Melfi, under pope
Urban II, _A.D._ 1090, that it was impossible with a safe conscience
to exercise any traffic, or follow the profession of the law[i].
[Footnote c: _c._ 30.]
[Footnote d: _de jure Sueon._ _l._ 3. _c._ 4.]
[Footnote e: Sp. L. 20. 13.]
[Footnote f: Sp. L. 20. 6.]
[Footnote g: _Nobiliores natalibus, et honorum luce conspicuos, et
patrimonio ditiores, perniciosum urbibus mercimonium exercere
prohibemus._ _C._ 4 63. 3.]
[Footnote h: _Homo mercator vix aut nunquam potest Deo placere: et
ideo nullus Christianus debet esse mercator; aut si voluerit esse,
projiciatur de ecclesia Dei._ _Decret._ 1. 88. 11.]
[Footnote i: _Falsa fit poenitentia [laici] cum penitus ab officio
curiali vel negotiali non recedit, quae sine peccatis agi ulla ratione
non praevalet._ _Act. Concil. apud Baron._ _c._ 16.]
THESE are the principal prerogatives of the king, respecting this
nation's intercourse with foreign nations; in all of which he is
considered as the delegate or representative of his people. But in
domestic affairs he is considered in a great variety of characters,
and from thence there arises an abundant number of other prerogatives.
I. FIRST, he is a constituent part of the supreme legislative power;
and, as such, has the prerogative of rejecting such provisions in
parliament, as he judges improper to be passed. The expediency of
which constitution has before been evinced at large[k]. I shall only
farther remark, that the king is not bound by any act of parliament,
unless he be named therein by special and particular words. The most
general words that can be devised ("any person or persons, bodies
politic, or corporate, _&c._") affect not him in the least, if they
may tend to restrain or diminish any of his rights or interests[l].
For it would be of most mischievous consequence to the public, if the
strength of the executive power were liable to be curtailed without
it's own express consent, by constructions and implications of the
subject. Yet where an act of parliament is expressly made for the
preservation of public rights and the suppression of public wrongs,
and does not interfere with the established rights of the crown, it is
said to be binding as well upon the king as upon the subject[m]: and,
likewise, the king may take the benefit of any particular act, though
he be not especially named[n].
[Footnote k: ch. 2. pag. 149.]
[Footnote l: 11 Rep. 74 _b._]
[Footnote m: 11 Rep. 71.]
[Footnote n: 7 Rep. 32.]