or the first in military command, within the kingdom. The great end of
society is to protect the weakness of individuals by the united
strength of the community: and the principal use of government is to
direct that united strength in the best and most effectual manner, to
answer the end proposed. Monarchical government is allowed to be the
fittest of any for this purpose: it follows therefore, from the very
end of it's institution, that in a monarchy the military power must be
trusted in the hands of the prince.
IN this capacity therefore, of general of the kingdom, the king has
the sole power of raising and regulating fleets and armies. Of the
manner in which they are raised and regulated I shall speak more, when
I come to consider the military state. We are now only to consider the
prerogative of enlisting and of governing them: which indeed was
disputed and claimed, contrary to all reason and precedent, by the
long parliament of king Charles I; but, upon the restoration of his
son, was solemnly declared by the statute 13 Car. II. c. 6. to be in
the king alone: for that the sole supreme government and command of
the militia within all his majesty's realms and dominions, and of all
forces by sea and land, and of all forts and places of strength, ever
was and is the undoubted right of his majesty, and his royal
predecessors, kings and queens of England; and that both or either
house of parliament cannot, nor ought to, pretend to the same.
THIS statute, it is obvious to observe, extends not only to fleets and
armies, but also to forts, and other places of strength, within the
realm; the sole prerogative as well of erecting, as manning and
governing of which, belongs to the king in his capacity of general of
the kingdom[o]: and all lands were formerly subject to a tax, for
building of castles wherever the king thought proper. This was one of
the three things, from contributing to the performance of which no
lands were exempted; and therefore called by our Saxon ancestors the
_trinoda necessitas: sc. pontis reparatio, arcis constructio, et
expeditio contra hostem_[p]. And this they were called upon to do so
often, that, as sir Edward Coke from M. Paris assures us[q], there
were in the time of Henry II 1115 castles subsisting in England. The
inconvenience of which, when granted out to private subjects, the
lordly barons of those times, was severely felt by the whole kingdom;
for, as William of Newbury remarks in the reign of king Stephen,
"_erant in Anglia quodammodo tot reges vel potius tyranni, quot domini
castellorum_:" but it was felt by none more sensibly than by two
succeeding princes, king John and king Henry III. And therefore, the
greatest part of them being demolished in the barons' wars, the kings
of after times have been very cautious of suffering them to be rebuilt
in a fortified manner: and sir Edward Coke lays it down[r], that no
subject can build a castle, or house of strength imbatteled, or other
fortress defensible, without the licence of the king; for the danger
which might ensue, if every man at his pleasure might do it.
[Footnote o: 2 Inst. 30.]
[Footnote p: Cowel's interpr. _tit. castellorum operatio_. Seld. _Jan.
Angl._ 1. 42.]
[Footnote q: 2 Inst. 31.]
[Footnote r: 1 Inst. 5.]
TO this branch of the prerogative may be referred the power vested in
his majesty, by statutes 12 Car. II. c. 4. and 29 Geo. II. c. 16. of
prohibiting the exportation of arms or ammunition out of this kingdom,
under severe penalties: and likewise the right which the king has,
whenever he sees proper, of confining his subjects to stay within the
realm, or of recalling them when beyond the seas. By the common
law[s], every man may go out of the realm for whatever cause he
pleaseth, without obtaining the king's leave; provided he is under no
injunction of staying at home: (which liberty was expressly declared
in king John's great charter, though left out in that of Henry III)
but, because that every man ought of right to defend the king and his
realm, therefore the king at his pleasure may command him by his writ
that he go not beyond the seas, or out of the realm without licence;
and if he do the contrary, he shall be punished for disobeying the
king's command. Some persons there antiently were, that, by reason of
their stations, were under a perpetual prohibition of going abroad
without licence obtained; among which were reckoned all peers, on
account of their being counsellors of the crown; all knights, who were
bound to defend the kingdom from invasions; all ecclesiastics, who
were expressly confined by cap. 4. of the constitutions of Clarendon,
on account of their attachment in the times of popery to the see of
Rome; all archers and other artificers, lest they should instruct
foreigners to rival us in their several trades and manufactures. This
was law in the times of Britton[t], who wrote in the reign of Edward
I: and sir Edward Coke[u] gives us many instances to this effect in
the time of Edward III. In the succeeding reign the affair of
travelling wore a very different aspect: an act of parliament being
made[w], forbidding all persons whatever to go abroad without licence;
_except_ only the lords and other great men of the realm; and true and
notable merchants; and the king's soldiers. But this act was repealed
by the statute 4 Jac. I. c. 1. And at present every body has, or at
least assumes, the liberty of going abroad when he pleases. Yet
undoubtedly if the king, by writ of _ne exeat regnum_, under his great
seal or privy seal, thinks proper to prohibit him from so doing; or if
the king sends a writ to any man, when abroad, commanding his return;
and in either case the subject disobeys; it is a high contempt of the
king's prerogative, for which the offender's lands shall be seised
till he return; and then he is liable to fine and imprisonment[x].
[Footnote s: F.N.B. 85.]
[Footnote t: c. 123.]
[Footnote u: 3 Inst. 175.]
[Footnote w: 5 Ric. II. c. 2.]
[Footnote x: 1 Hawk. P.C. 22.]
III. ANOTHER capacity, in which the king is considered in domestic
affairs, is as the fountain of justice and general conservator of the
peace of the kingdom. By the fountain of justice the law does not mean
the _author_ or _original_, but only the _distributor_. Justice is not
derived from the king, as from his _free gift_; but he is the steward
of the public, to dispense it to whom it is _due_[y]. He is not the
spring, but the reservoir; from whence right and equity are conducted,
by a thousand chanels, to every individual. The original power of
judicature, by the fundamental principles of society, is lodged in the
society at large: but as it would be impracticable to render complete
justice to every individual, by the people in their collective
capacity, therefore every nation has committed that power to certain
select magistrates, who with more ease and expedition can hear and
determine complaints; and in England this authority has immemorially
been exercised by the king or his substitutes. He therefore has alone
the right of erecting courts of judicature: for, though the
constitution of the kingdom hath entrusted him with the whole
executive power of the laws, it is impossible, as well as improper,
that he should personally carry into execution this great and
extensive trust: it is consequently necessary, that courts should be
erected, to assist him in executing this power; and equally necessary,
that, if erected, they should be erected by his authority. And hence
it is, that all jurisdictions of courts are either mediately or
immediately derived from the crown, their proceedings run generally in
the king's name, they pass under his seal, and are executed by his
officers.
[Footnote y: _Ad hoc autem creatus est et electus, ut justitiam faciat
universis._ Bract. _l._ 3. _tr._ 1. _c._ 9.]
IT is probable, and almost certain, that in very early times, before
our constitution arrived at it's full perfection, our kings in person
often heard and determined causes between party and party. But at
present, by the long and uniform usage of many ages, our kings have
delegated their whole judicial power to the judges of their several
courts; which are the grand depositary of the fundamental laws of the
kingdom, and have gained a known and stated jurisdiction, regulated by
certain and established rules, which the crown itself cannot now alter
but by act of parliament[z]. And, in order to maintain both the
dignity and independence of the judges in the superior courts, it is
enacted by the statute 13 W. III. c. 2. that their commissions shall
be made (not, as formerly, _durante bene placito_, but) _quamdiu bene
se gesserint_, and their salaries ascertained and established; but
that it may be lawful to remove them on the address of both houses of
parliament. And now, by the noble improvements of that law in the
statute of 1 Geo. III. c. 23. enacted at the earnest recommendation of
the king himself from the throne, the judges are continued in their
offices during their good behaviour, notwithstanding any demise of the
crown (which was formerly held[a] immediately to vacate their seats)
and their full salaries are absolutely secured to them during the
continuance of their commissions: his majesty having been pleased to
declare, that "he looked upon the independence and uprightness of the
judges, as essential to the impartial administration of justice; as
one of the best securities of the rights and liberties of his
subjects; and as most conducive to the honour of the crown[b]."
[Footnote z: 2 Hawk. P.C. 2.]
[Footnote a: Ld Raym. 747.]
[Footnote b: Com. Journ. 3 Mar. 1761.]
IN criminal proceedings, or prosecutions for offences, it would still
be a higher absurdity, if the king personally sate in judgment;
because in regard to these he appears in another capacity, that of
_prosecutor_. All offences are either against the king's peace, or his
crown and dignity; and are so laid in every indictment. For, though in
their consequences they generally seem (except in the case of treason
and a very few others) to be rather offences against the kingdom than
the king; yet, as the public, which is an invisible body, has
delegated all it's power and rights, with regard to the execution of
the laws, to one visible magistrate, all affronts to that power, and
breaches of those rights, are immediately offences against him, to
whom they are so delegated by the public. He is therefore the proper
person to prosecute for all public offences and breaches of the peace,
being the person injured in the eye of the law. And this notion was
carried so far in the old Gothic constitution, (wherein the king was
bound by his coronation oath to conserve the peace) that in case of
any forcible injury offered to the person of a fellow subject, the
offender was accused of a kind of perjury, in having violated the
king's coronation oath; _dicebatur fregisse juramentum regis
juratum_[c]. And hence also arises another branch of the prerogative,
that of _pardoning_ offences; for it is reasonable that he only who is
injured should have the power of forgiving. And therefore, in
parliamentary impeachments, the king has no prerogative of pardoning:
because there the commons of Great Britain are in their own names the
prosecutors, and not the crown; the offence being for the most part
avowedly taken to be done against the public. Of prosecutions and
pardons I shall treat more at large hereafter; and only mention them
here, in this cursory manner, to shew the constitutional grounds of
this power of the crown, and how regularly connected all the links are
in this vast chain of prerogative.
[Footnote c: Stiernh. _de jure Goth._ _l._ 3. _c._ 3. A notion
somewhat similar to this may be found in the mirrour. c. 1. Sec. 5.]
IN this distinct and separate existence of the judicial power, in a
peculiar body of men, nominated indeed, but not removeable at
pleasure, by the crown, consists one main preservative of the public
liberty; which cannot subsist long in any state, unless the
administration of common justice be in some degree separated both from
the legislative and also from the executive power. Were it joined with
the legislative, the life, liberty, and property, of the subject would
be in the hands of arbitrary judges, whose decisions would be then
regulated only by their own opinions, and not by any fundamental
principles of law; which, though legislators may depart from, yet
judges are bound to observe. Were it joined with the executive, this
union might soon be an over-ballance for the legislative. For which
reason, by the statute of 16 Car. I. c. 10. which abolished the court
of star chamber, effectual care is taken to remove all judicial power
out of the hands of the king's privy council; who, as then was evident
from recent instances, might soon be inclined to pronounce that for
law, which was most agreeable to the prince or his officers. Nothing
therefore is more to be avoided, in a free constitution, than uniting
the provinces of a judge and a minister of state. And indeed, that the
absolute power, claimed and exercised in a neighbouring nation, is
more tolerable than that of the eastern empires, is in great measure
owing to their having vested the judicial power in their parliaments,
a body separate and distinct from both the legislative and executive:
and, if ever that nation recovers it's former liberty, it will owe it
to the efforts of those assemblies. In Turkey, where every thing is
centered in the sultan or his ministers, despotic power is in it's
meridian, and wears a more dreadful aspect.
A CONSEQUENCE of this prerogative is the legal _ubiquity_ of the king.
His majesty, in the eye of the law, is always present in all his
courts, though he cannot personally distribute justice[d]. His judges
are the mirror by which the king's image is reflected. It is the regal
office, and not the royal person, that is always present in court,
always ready to undertake prosecutions, or pronounce judgment, for the
benefit and protection of the subject. And from this ubiquity it
follows, that the king can never be nonsuit[e]; for a nonsuit is the
desertion of the suit or action by the non-appearance of the plaintiff
in court. For the same reason also, in the forms of legal proceedings,
the king is not said to appear _by his attorney_, as other men do; for
he always appears in contemplation of law in his own proper person[f].
[Footnote d: Fortesc. c. 8. 2 Inst. 186.]
[Footnote e: Co. Litt. 139.]
[Footnote f: Finch. L. 81.]
FROM the same original, of the king's being the fountain of justice,
we may also deduce the prerogative of issuing proclamations, which is
vested in the king alone. These proclamations have then a binding
force, when (as Sir Edward Coke observes[g]) they are grounded upon
and enforce the laws of the realm. For, though the making of laws is
entirely the work of a distinct part, the legislative branch, of the
sovereign power, yet the manner, time, and circumstances of putting
those laws in execution must frequently be left to the discretion of
the executive magistrate. And therefore his constitutions or edicts,
concerning these points, which we call proclamations, are binding upon
the subject, where they do not either contradict the old laws, or tend
to establish new ones; but only enforce the execution of such laws as
are already in being, in such manner as the king shall judge
necessary. Thus the established law is, that the king may prohibit any
of his subjects from leaving the realm: a proclamation therefore
forbidding this in general for three weeks, by laying an embargo upon
all shipping in time of war[h], will be equally binding as an act of
parliament, because founded upon a prior law. A proclamation for
disarming papists is also binding, being only in execution of what the
legislature has first ordained: but a proclamation for allowing arms
to papists, or for disarming any protestant subjects, will not bind;
because the first would be to assume a dispensing power, the latter a
legislative one; to the vesting of either of which in any single
person the laws of England are absolutely strangers. Indeed by the
statute 31 Hen. VIII. c. 8. it was enacted, that the king's
proclamations should have the force of acts of parliament: a statute,
which was calculated to introduce the most despotic tyranny; and which
must have proved fatal to the liberties of this kingdom, had it not
been luckily repealed in the minority of his successor, about five
years after[i].
[Footnote g: 3 Inst. 162.]
[Footnote h: 4 Mod. 177, 179.]
[Footnote i: Stat. 1 Edw. VI. c. 12.]
IV. THE king is likewise the fountain of honour, of office, and of
privilege: and this in a different sense from that wherein he is
stiled the fountain of justice; for here he is really the parent of
them. It is impossible that government can be maintained without a
due subordination of rank; that the people may know and distinguish
such as are set over them, in order to yield them their due respect
and obedience; and also that the officers themselves, being encouraged
by emulation and the hopes of superiority, may the better discharge
their functions: and the law supposes, that no one can be so good a
judge of their several merits and services, as the king himself who
employs them. It has therefore intrusted with him the sole power of
conferring dignities and honours, in confidence that he will bestow
them upon none, but such as deserve them. And therefore all degrees of
nobility, of knighthood, and other titles, are received by immediate
grant from the crown: either expressed in writing, by writs or letters
patent, as in the creations of peers and baronets; or by corporeal
investiture, as in the creation of a simple knight.
FROM the same principle also arises the prerogative of erecting and
disposing of offices: for honours and offices are in their nature
convertible and synonymous. All offices under the crown carry in the
eye of the law an honour along with them; because they imply a
superiority of parts and abilities, being supposed to be always filled
with those that are most able to execute them. And, on the other hand,
all honours in their original had duties or offices annexed to them:
an earl, _comes_, was the conservator or governor of a county; and a
knight, _miles_, was bound to attend the king in his wars. For the
same reason therefore that honours are in the disposal of the king,
offices ought to be so likewise; and as the king may create new
titles, so may he create new offices: but with this restriction, that
he cannot create new offices with new fees annexed to them, nor annex
new fees to old offices; for this would be a tax upon the subject,
which cannot be imposed but by act of parliament[k]. Wherefore, in 13
Hen. IV, a new office being created by the king's letters patent for
measuring cloths, with a new fee for the same, the letters patent
were, on account of the new fee, revoked and declared void in
parliament.
[Footnote k: 2 Inst. 533.]
UPON the same, or a like reason, the king has also the prerogative of
conferring privileges upon private persons. Such as granting place or
precedence to any of his subjects, as shall seem good to his royal
wisdom[l]: or such as converting aliens, or persons born out of the
king's dominions, into denizens; whereby some very considerable
privileges of natural-born subjects are conferred upon them. Such also
is the prerogative of erecting corporations; whereby a number of
private persons are united and knit together, and enjoy many
liberties, powers, and immunities in their politic capacity, which
they were utterly incapable of in their natural. Of aliens, denizens,
natural-born, and naturalized subjects, I shall speak more largely in
a subsequent chapter; as also of corporations at the close of this
book of our commentaries. I now only mention them incidentally, in
order to remark the king's prerogative of making them; which is
grounded upon this foundation, that the king, having the sole
administration of the government in his hands, is the best and the
only judge, in what capacities, with what privileges, and under what
distinctions, his people are the best qualified to serve, and to act
under him. A principle, which was carried so far by the imperial law,
that it was determined to be the crime of sacrilege, even to doubt
whether the prince had appointed proper officers in the state[m].
[Footnote l: 4 Inst. 361.]
[Footnote m: _Disputare de principali judicio non oportet: sacrilegii
enim instar est, dubitare an is dignus sit; quem elegerit imperator._
_C._ 9. 29. 3.]
V. ANOTHER light in which the laws of England consider the king with
regard to domestic concerns, is as the arbiter of commerce. By
commerce, I at present mean domestic commerce only. It would lead me
into too large a field, if I were to attempt, to enter upon the nature
of foreign trade, it's privileges, regulations, and restrictions; and
would be also quite beside the purpose of these commentaries, which
are confined to the laws of England. Whereas no municipal laws can be
sufficient to order and determine the very extensive and complicated
affairs of traffic and merchandize; neither can they have a proper
authority for this purpose. For as these are transactions carried on
between the subjects of independent states, the municipal laws of one
will not be regarded by the other. For which reason the affairs of
commerce are regulated by a law of their own, called the law merchant
or _lex mercatoria_, which all nations agree in and take notice of.
And in particular the law of England does in many cases refer itself
to it, and leaves the causes of merchants to be tried by their own
peculiar customs; and that often even in matters relating to inland
trade, as for instance with regard to the drawing, the acceptance, and
the transfer, of bills of exchange[n].
[Footnote n: Co. Litt. 172. Ld Raym. 181. 1542.]
WITH us in England, the king's prerogative, so far as it relates to
mere domestic commerce, will fall principally under the following
articles:
FIRST, the establishment of public marts, or places of buying and
selling, such as markets and fairs, with the tolls thereunto
belonging. These can only be set up by virtue of the king's grant, or
by long and immemorial usage and prescription, which presupposes such
a grant[o]. The limitation of these public resorts, to such time and
such place as may be most convenient for the neighbourhood, forms a
part of oeconomics, or domestic polity; which, considering the kingdom
as a large family, and the king as the master of it, he clearly has a
right to dispose and order as he pleases.
[Footnote o: 2 Inst. 220.]