.P 230
The RIGHTS of PERSONS.
BOOK I.
CHAPTER THE SEVENTH.
OF THE KING'S PREROGATIVE.
IT was obferved in a former chapter a, that one of the principal bulwarks of civil liberty, or (in other words) of the Britifh conftitution, was the limitation of the king's prerogative by bounds fo certain and notorious, that it is impoffible he fhould ever exceed them, without the confent of the people, on the one hand; or without, on the other, a violation of that original contract, which in all ftates impliedly, and in ours moft expreffly, fubfifts between the prince and the fubject. It will now be our bufinefs to confider this prerogative minutely; to demonftrate it's neceffity in general; and to mark out in the moft important inftances it's particular extent and reftrictions: from which confiderations this conclufion will evidently follow, that the powers which are vefted in the crown by the laws of England, are neceffary for the fupport of fociety; and do not intrench any farther on our natural liberties, than is expedient for the maintenance of our civil.
THERE cannot be a ftronger proof of that genuine freedom, which is the boaft of this age and country, than the power of difcuffing and examining, with decency and refpect, the limits of the king's prerogative. A topic, that in fome former ages was thought too delicate and facred to be profaned by the pen of a fubject. It was ranked among the arcane imperii; and, like the
.{FS}
a chap. 1. page 137.
.{FE}
myfteries
.P 231
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
myfteries of the bona dea, was not fuffered to be pried into by any but fuch as were initiated in it's fervice; becaufe perhaps the exertion of the one, like the folemnities of the other, would not bear the infpexion of rational and fober enquiry. The glorious queen Elizabeth herfelf made no fcruple to direct her parliaments to abftain from difcourfing of matters of ftateb; and it was the conftant language of this favorite princefs and her minifters, that even that auguft affembly “ought not to deal, to judge, or to meddle, with her majefty's prerogative royal c.” And her fucceffor, king James the firft, who had imbided high notions of the divinity of regal fway, more than once laid it down in his fpeeches, that “as it is atheifm and blafphemy in a creature to difpute what the deity may do, fo it is prefumption and fedition in a fubject to difpute what a king may do in the height of his power: good chriftians, he adds, will be content with God's will, revealed in his word; and good fubjects will reft in the king's will, revealed in his law d.”
BUT, whatever might be the fentiments of fome of our princes, this was never the language of our antient conftitution and laws. The limitation of the regal authority was a firft and effential principle in all the Gothic fyftems of government eftablifhed in Europe; though gradually driven out and overborne, by violence and chicane, in moft of the kingdoms on the continent. We have feen, in the preceding chapter, the fentiments of Barcton and Fortefcue, at the diftance of two centuries from each other. And fir Henry Finch, under Charles the firft, after the lapfe of two centuries more, though he lays down the law of prerogative in very ftrong and emphatical terms, yet qualifies it with a general reftriction, in regard to the liberties of the people. “The king hath a prerogative in all things, that are not injurious to the fubject; for in them all it muft be remembered, that the king's prerogative ftretcheth not to the doing of any wrong e,” Nihil
.{FS}
b Dewes. 479.
c Ibid. 645.
d King James's works. 557, 531.
e Finch. L. 84, 85.
.{FE}
enim
.P 232
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
enim aliud poteft rex, nifi id folum quod de jure poteftf. And here it may be fome fatisfaction 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 expreffed it) the authority of the prince over the laws. It is a maxim of the Englifh law, as we have feen from Bracton, that “rex debet effe fub lege, quia lex facit regem:” the imperial law will tell us, that “in omnibus, imperatoris excipitur fortuna: cui ipfas leges Deus fubjecitg.” We fhall not long hefitate to which of them to give the preference, as moft conducive to thofe ends for which focieties were framed, and are kept together; efpecially as the Roman lawyers themfelves feem to be fenfible of the unreafonablenefs of their own conftitution. “Decet tamen principem,” fays Paulus, “fervare leges, quibus ipfe folutus efth.” This is at once laying down the principle of defpotic power, and at the fame time acknowleging it's abfurdity.
BY the word prerogative we ufually underftand that fpecial pre-eminence, which the king hath, over and above all other perfons, and out of the ordinary courfe of the common law, in right of his regal dignity. It fignifies, in it's etymology, (from prae and rogo) fomething that is required or demanded before, or in preference to, all others. And hence it follows, that it muft be in it's nature fingular and eccentrical; that it can only be applied to thofe rights and capacities which the king enjoys alone, in contradiftinction to others, and not to thofe which he enjoys in common with any of his fubjects: for if once any one prerogative of the crown could be held in common with the fubject, it would ceafe to be prerogative any longer. And therefore Finchi lays it down as a maxim, that the prerogative it that law in cafe of the king, which is law in no cafe of the fubject.
PREROGATIVES are either direct or incidental. The direct are fuch pofitive fubftantial parts of the royal character and au-
.{FS}
f Bract. l. 3. tr. 1. c. 9.
g Nov. 105 §. 2.
h Ff. 32. 1. 23.
i Finch. L. 85.
.{FE}
thority,
.P 233
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
thority, as are rooted in and fpring from the king's political perfon, confidered merely by itfelf, without reference to any other extrinfic circumftance; as, the right of fending embaffadors, of creating peers, and of making war or peace. But fuch prerogatives as are incidental bear always a relation to fomething elfe, diftinct from the king's perfon; and are indeed only exceptions, in favour of the crown, to thofe general rules that are eftablifhed for the reft of the community: fuch as, that no cofts fhall be recovered againft the king; that the king can never be a joint-tenant; and that his debt fhall be preferred before a debt to any of his fubjects. Thefe, and an infinite number of other inftances, will better be underftood, when we come regularly to confider the rules themfelves, to which thefe incidental prerogatives are exceptions. And therefore we will at prefent only dwell upon the king's fubftantive or direct prerogatives.
THESE fubftantive or direct prerogatives may again be divided into three kings: being fuch as regard, firft, the king's royal character; fecondly, his royal authority; and, laftly, his royal income. Thefe are neceffary, to fecure reverence to his perfon, obedience to his commands, and an affluent fupply for the ordinary expenfes of government; without all of which it is impoffible to maintain the executive power in due independence and vigour. Yet, in every branch of this large and extenfive dominion, our free conftitution has interpofed fuch feafonable checks and reftrictions, as may curb it from trampling on thofe liberties, which it was meant to fecure and eftablifh. The enormous weight of prerogative (if left to iftelf, as in arbitrary government it is) fpreads havoc and deftruction among all the inferior movements: but, when balanced and bridled (as with us) by it's proper counterpoife, timely and judicioufly applied, it's operations are then equable and regular, it invigorates the whole machine, and enables every part to anfwer the end of it's conftruction.
IN the prefent chapter we fhall only confider the two firft of thefe divifions, which relate to the king's political character and
F f
authority
.P 234
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
authority; or, in other words, his dignity and regal power; to which laft the name of prerogative is frequently narrowed and confined. The other divifion, which forms the royal revenue, will require a diftinct examination; according to the know diftribution of the feodal writers, who diftinguifh the royal prerogatives into the majora and minora regalia, in the latter of which claffes the righths of the revenue are ranked. For, to ufe their own words, “majora regalia imperii preeminentiam fpectant; minora vero ad commodum pecuniarium immediate attinent; et haec proprie fifcalia funt, et ad jus fifci pertinentk.”
FIRST, then, of the royal dignity. Under every monarchical eftalkifhmnt, it is neceffary to diftinguifh the prince from his fubjects, not only by the outward pomp and decorations of majefty, but alfo by afcribing to him certain qualities, as inherent in his royal capacity, diftinct from and fuperior to thofe of any other individual in the nation. For, though a philofophical mind will confider the royal perfon merly as one man appointed by mutual confent to prefide over many others, and will pay him that reverence and duty which the principles of fociety demand, yet the mafs of manking will be apt to grown infolent and refractory, if taught to confider their prince as a man of no greter perfection than themfelves. The law therefore afcribes to the king, in his high political character, not only large powers and emoluments which form his prerogative and revenue, but likewife certain attributes of a great and tranfcendent nature; by which the people are led to confider him in the light of a fuperior being, and to pay him that awful refpect, which may enable him with greater eafe to carry on the bufinefs of government. This is that I underftand by the royal dignity, the feveral branches of which we will now proceed to examine.
I. AND, firft, the law afcribes to the king the attribute of fovereignty, or pre-eminence. “Rex eft vicarious,” fays Bracton, “et minifter Dei in terra: amnis quidem fub eo eft, et ipfe fub nullo,
.{FS}
k Peregrix. de jure fifc. l. 1. c. 1. num. 9.
l l. 1. c. 8.
.{FE}
“nifi
.P 235
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
“nifi tantum fub Deo.” He is faid to have imperial dignity, and in charters before the conqueft is frequently ftiled bafileus and imperator, the titles refpectively affumed by the emperors of the eaft and weftm. His realm is declared to be an empire, and his crown imperial, by many acts of parliament, particularly the ftatutes 24 Hen. VIII. c. 12. and 25 Hen. VIII. c. 28; which at the fame time declare the king to be the fupreme head of the realm in matters both civil and ecclefiaftical, and of confequence inferior to no man upon earth, dependent no on man, accountable to no man. Formerly there prevailed a ridiculous notion, propagated by the German and Italian civilians, than 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 fome degree fubordinate and fubject to the emperor of Germany or Rome. The meaning therefore of the legiflature, when it ufes thefe terms of empire and imperial, and applies them to the realm of England, is only to affert that our king is equally fovereign and independent within thefe his dominions, as any emperor is in his empire; and owes no king of fubjection to any other potentate upon earth. Hence it is, that no fuit or action can be brought againft the king, even in civil matters, becaufe no court can have jurifdiction over him. For all jurifidiction implies fuperiority of power: authority to try would be vain and idle, without an authority to redrefs; and the fentence of a court would be contemptible, unlefs that court had power to command the execution of it; but who, fays Finchn, fhall command the king? Hency it is likewife, that by law the perfon of the king is facred, even though the meafures purfued in his reign be completely tyrannical and arbitrary: for no jurifdiction had this power, as was formerly claimed by the pope, the independence of the kingdom would be no more: and, it fuch a power were vefted in any domeftic tribunal, there would foon be an end of the conftitution, by deftroying the free a-
.{FS}
m Seld. tit. of hon. 1. 2.
n Finch. L. 83.
.{FE}
F f 2
gency
.P 236
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
gency of one of the conftituent parts of the fovereign legiflative power.
ARE then, it may be afked, the fubject of England totally deftitute of remedy, in cafe the crown fhould invade their rights, either by private injuries, or public oppreffions? To this we may anfwer, that the law has provided a remedy in both cafes.
AND, firft, as to private injuries; if any perfon has, in point of property, a juft demand upon the king, he muft petition him in his court of chancery, where his chancellor will adminifter right as a matter of grace, though not upon compulfiono. And this is entirely confonant to what is laid down by the writers on natural law. “A fubject, fays Puffendorfp, fo long as he continues a fubject, hath no way to oblige his prince to gave him his due, when he refufes it; though no wife prince will ever refufe to ftand to a lawful contract. And, if the prince gives the fubject leave to enter an action againft him, upon fuch contract, in his own courts, the action itfelf proceeds rather upon natural equity, then upon the municipal laws.” For the end of fuch action is not to compel the prince to obferve the contract, but to perfuade him. And, as to perfonal wrongs; it is well obferved by Mr Lockeq, “the harm which the foveregn can do in his own perfon not being likely to pahhen often, nor to extend itfelf far; nor being able by his fingle ftrength to fubverth the laws, nor opprefs the body of the people, (fhould any prince have fo much weaknefs and ill nature as to endeavour to do it) --- the inconvenience therefore of fome particular mifchiefs, that may happen fometimes, when a heady prince comes to the throne, are well recompenfed by the peace of the public and fecurity of the government, in the perfon of the chief magiftrate being thus fet out of the reach of danger.”
.{FS}
o Finch. L. 255.
p Law on N. and N. 1. 8. c. 10.
q on Gov. p. 2. §. 205.
.{FE}
NEXT,
.P 237
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
NEXT, as to cafes of ordinary public oppreffion, where the vitals of the conftitution are not attacked, the law hath alfo affigned a remedy. For, as a king cannot mifufe his power, without the advice of evil counfellors, and the affiftance of wicked minifters, thefe men may be examined and punifhed. The conftitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man fhall dare to affift the crown in contradiction to the laws of the land. But it is at the fame time a maxim in thofe laws, that the king himfelf can do no wrong; fince it would be a great weaknefs and abfurdity in any fyftem of pofitive law, to define any poffible wrong, without any poffible redrefs.
FOR, as to fuch public oppreffions as tend to diffolve the conftitution, and fubvert the fundamentals of government, they are cafes which the law will not, out of decency, fuppofe; being incapable of diftrufting thofe, whom it has invefted with any part of the fupreme power; fince fuch diftruft would render the excercife of that power precarious and impracticable. For, wherever the law expreffes it's diftruft of abufe of power, it always vefts of fuperior coercive authority in fome other hand to correct it; the very notion of which deftroys the idea of fovereignty. If therefore (for example) the two houfes 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 the king, or each other, or if the king had a right to animadvert on either of the houfes, that branch of the legiflature, fo fubject to animadverfion, would inftantly ceafe to be part of the fupreme power; the ballance of the conftitution would be overturned; and that branch or branches, in which this jurifdiction refided, would be completely fovereign. The fuppofition of law therefore is, that neither the king nor either houfe of parliament (collectively taken) is capable of doing any wrong; fince in fuch cafes the law feels itfelf incapable of furnifhing any adequate remedy. For which reafon all oppreffions, which may happen to fpring from any branch of the fovereign power, muft neceffarily be out of the
reach
.P 238
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
reach of any ftated rule, or exprefs legal provifion: but, if ever they unfortunately happen, the prudence of the times muft provide new remedies upon new emergencies.
INDEED, it is found by experience, that whenever the unconftitutional oppreffions, even of the fovereign power, advance with gigantic ftrides and threaten defolation to a ftate, manking will not be reafoned out of the feelings of humanity; nor will facrifice their liberty by a fcrupulous adherence to thofe political maxims, which were originally eftablifhed to preferve it. And therefore, though the pofitive laws are filent, experience will furnifh us with a very remarkable cafe, wherein nature and reafon prevailed. When king James the fecond invaded the fundamental conftitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new fettlement of the crown. And fo far as this precedent leads, and no farther, we may now be allowed to lay down the law of redrefs againft public oppreffion. If therefore any future prince fhould endeavour to fubvert the conftitution by breaking the original contract between king and people, fhould violate the fundamental laws, and fhould withdraw himfelf out of the kingdom; we are now authorized to declare that this conjunction of circumftance would amount to an abdication, and the throne would be thereby vacant. But it is not for us to fay, that any one, or two, of thefe ingredients would amount to fuch a fituation; for other circumftances which a fertile imagination may furnifh, fince both law and hiftory are filent, it becomes us to be filent too; leaving to future generations, whenever neceffity and the fafety of the whole fhall require it, the exertion of thofe inherent (though latent) powers of fociety, which no climate, no time, no conftitution, no contract, can ever deftroy or diminifh.
II. BESIDES the attribute of fovereignty, the law alfo afcribes to the king, in his political capacity, abfolute perfection. The king can do no wrong. Which antient and fundamental
maxim
.P 239
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
maxim is not to be underftood, as if every thing tranfacted by the government was of courfe juft and lawful, but means only two things. Firft, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the king, nor is he anfwerable for it perfonally to his people: for this doctrine would totally deftroy that conftitutional independence of the crown, which is neceffary for the balance of power, in our free and active, and therefore compounded, conftitution. And, fecondly, it means that the prerogative of the crown extends not to do any injury: it is created for the benefit of the people, and therefore cannot be exerted to their prejudicer.
THE king, moreover, is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing: in him is no folly or weaknefs. And therefore, if the crown fhould be induced to grant any franchife or privilege to a fubject contrary to reafon, or in any wife prejudicial to the commowealth, or a private perfon, the law will not fuppofe the king to have meant either an unwife or an injurious action, but declares that the king was deceived in his grant; and thereupon fuch grant is rendered void, merely upon the foundation of fraud and deception, either by or upon thofe agents, whom the crown has thought proper to employ. For the law will not caft an imputation on that magiftrate whom it entrufts with the executive power, as if he was capable of intentionally difregarding his truft: but attributes to mere impofition (to which the moft perfect of fublunary beings muft ftill continue liable) thofe little inadvertencies, which, if charged on the will of the prince, might leffen him in the eyes of his fubjects.
YET ftill, notwithftanding this perfonal perfection, which the law attributes to the fovereign, the conftitution has allowed a latitude of fuppofing the contrary, in refpect to both houfes of parliament; each of which, in it's turn, hath exerted the right of remonftrating and complaining to the king even of thofe acts of
.{FS}
r Plowd. 487.
.{FE}
royalty
.P 240
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
royalty, which are moft properly and perfonally his own; fuch as meffages figned by himfelf, and fpeeches delivered from the throne. And yet, fuch is the reverence which is paid to the royal perfon, that though the two houfes have an undoubted right to confider thefe acts of ftate in any light whatever, and accordingly treat them in their addreffes as perfonally proceeding from the prince, yet, among themfelves, (to preferve the more perfect decency, and for the greater freedom of debate) they ufually fuppofe them to flow from the advice of the adminiftration. But the privilege of canvaffing thus freely the perfonal acts of the fovereign (either directly, or even through the medium of his reputed advifers) belongs to no individual, but is confined to thofe auguft affemblies; and there too the objections muft be propofed with the utmoft refpect and deference. One member was fent to the towers, for fuggefting that his majefty's anfwer to the addrefs of the commons contained “high words, to fright the members out of their duty;” and another t, for faying that a part of the king's fpeech “feemed rather to be calculated for the meridian of Germany than Great Britain.”
IN farther purfuance of this principle, the law alfo determines that in the king can be no negligence, or laches, and therefore no delay will bar his right. Nullum tempus occurrit regi is the ftanding maxim upon all occafions: for the law intents that the king is always bufied for the public good, and therefore has not leifure to affert his right within the times limited to fubjectsu. In the king alfo can be no ftain or corruption of blood: for if the heir to the crown were attainted of treafon or felony, and afterwards the crown fhould defcend to him, this would purge the attainder ipfo factow. And therefore when Henry VII, who as earl of Richmond ftood attainted, came to the crown, it was not thought neceffary to pafs an act of parliament to reverfe this attainder; becaufe, as lord Bacon in his hiftory of that prince informs us, it was agreed that the affumption of the crown had at once purged all attain-
.{FS}
s Com. Journ. 18 Nov. 1685.
t Com. Journ. 4 Dec. 1717.
u Finch. L. 82. Co. Litt. 90 b.
w Finch. L. 82.
.{FE}
ders.
.P 241
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
ders. Neither can the king in judgment of law, as king, ever be a minor or under age; and therefore his royal grants and affents to acts of parliament are good, tough he has not in his natural capacity attained the legal age of twenty onex. By a ftatute indeed, 28 Hen. VIII. c. 17. power was given to future kings to refcind and revoke all acts of parliament that fhould be made while they were under the age of twenty four: but this was repealed by the ftatute 1 Edw. VI. C. 11. fo far as related to that prince; and both ftatutes are declared to be determined by 24 Geo. II. c. 24. It hath alfo been ufually thought prudent, when the heir apparent has been very young, to appoint a protector, guardian, or regent, for a limited time: but the very neceffity of fuch extraordinary provifion is fufficient to demonftrate the truth of that maxim of the common law, that in the king is no minority; and therefore he hath no legal guardian y.
.{FS}
x Co. Litt. 43.
y The methods of appointing this guardian or regent have been fo various, and the duration of his power fo uncertain, that from thence alone it may be collected that his office is unknown to the common law; and therefore (as fir Edward Coke fays, 4 Inft. 58.) the fureft way is to have him made by authority of the great council in parliament. The earl of Pembroke by his own authority affumed, in very troublefome times, the regency of Henry III, who was then only nine years old; but was declared of full age by the pope at feventeen, confirmed the great charter at eighteen, and took upon him the adminiftration of the government at twenty. A guardian and council of regency were named for Edward III, by the parliament which depofed his father; the young king being them fifteen, and not affuming the government till three years after. When Richard II fucceeded at the age of eleven, the duke of Lancafter took upon him the management of the kingdom, till the parliament met, which appointed a nominal council to affift him. Henry V on his death-bed named a regent and a guardian for his infant fon Henry VI, then nine months old: but the parliament altered his difpofition, and appointed a protector and council, with a fpecial limited authority. Both thefe princes remained in a ftate of pupilage till the age of twenty three. Edward V, at the age of thirteen, was recommended by his fatherto the care of the duke of Glocefter; who was declared protector by the privy council. The ftatutes 25 Hen. VIII. c. 12. and 28 Hen. VIII. c. 7. provided, that the fucceffor, if a male and under eighteen, or if a female and under fixteen, fhould be till fuch age in the governance of his or her natural mother, (if approved by the king) and fuch other counfellors as his majefty fhould by will or otherwife appoint: and he accordingly appointed his fixteen executors to have the government of is fon, Edward VI, and the kingdom; which executors elected the earl of Hertford protector. The ftatute 24 Geo. II. c. 24. in cafe the crown fhould defcend to any of the children of Frederick late prince of Wales under the age of eighteen, appoints the princefs dowager; –– and that of 5 Geo. III. c. 27.
.{FE}
G
gin
.P 242
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
III. A THIRD attribute of the king's majefty is hif perpetuity. The law afcribes to him, in his political capacity, an abfolute immortality. The king never dies. Henry, Edward, or George may die; but the king furvives them all. For immediately upon the deceafe of the reigning prince in his natural capacity, his kingfhip or imperial dignity, by act of law, without any interregnum or interval, is vefted at once in his heir; who, is, eo inftanti, king to all intents and purpofes. And fo tender is the law of fuppofing even a poffibility of his death, that his natural diffolution is generally called his demife; dimiffio regis, vel coronae: an expreffion which fignifies merely a transfer of property; for, as is obferved in Plowdenz, when we fay the demife of the crown, we mean only that in confequence of the difunion of the king's body natural from his body politic, the kingdom is transferred or demifed to his fucceffor; and fo 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 houfe of Lancafter, this temporary transfer of his dignity was denominated his demife; and all procefs was held to be difcontinued, as upon a natural death of the kinga.
WE are next to confider thofe branches of the royal prerogative, which inveft this our fovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof confifts the executive part of government. This is wifely placed in a fingle hand by the Britifh conftitution, for the fake of unanimity, ftrength and difpatch. Were it placed in many hands, it would be fubject to may wills: many wills, if difunited and drawing different ways, create weaknefs in a government: and to unite thofe feveral wills, and
.{FS}
in cafe of a like defcent to any of his prefent majefty's children, empowers the king to name either the queen, the princefs dowager, or any defcendant of king George II refiding in this kingdom; –– to be guardian and regent, till the fucceffor attains fuch age, affifted by a council of regency: the powers of them all being exprefsly defined and fet down in the feveral acts.
z Plowd. 177. 234.
a M. 49 Hen. VI. pl. 1–8.
.{FE}
reduce
.P 243
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
reduce them to one, is a work of more time and delay than the exigencies of ftate will afford. The king of England is therefore not only the chief, but properly the fole, magiftrate of the nation; all others acting by commiffion from, and in due fubordination to him: in like manner as, upon the great revolution in the Roman ftate, all the powers of the antient magiftracy of the commonwealth were concentred in the new emperor; fo that, as Gravinab expreffes it, “in ejus unius perfona veteris reipublicac vis atque majeftas per cumulates magiftratuum poteftates exprimebatur.”
AFTER what has been premifed in this chapter, I fhall not (I truft) be confidered 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 abfolute; that is, fo far abfolute, that there is no legal authority that can either delay or refift him. He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences he pleafes: unlefs where the conftitution hath expreffly, or by evident confequence, laid down fome exception or boundary; declaring, that thus far the prerogative fhall go and no farther. For otherwife the power of the crown would indeed be but a name and a fhadow, infufficient for the ends of government, if, where it's jurifdiction is clearly eftablifhed and allowed, any man or body of men were permitted to difobey it, in the ordinary courfe of law: I fay, in the ordinary courfe of law; for I do not now fpeak of thofe extraordinary recourfes to firft principles, which are neceffary when the contracts or fociety are in danger of diffolution, and the law proves too weak a defence againft the violence of fraud or oppreffion. And yet the want of attending to this obvious diftinction has occafioned thefe doctrines, of abfolute power in the price and of national refiftance by the people, to be much mifunderftood and perverted by the advocates for flavery on the one hand, and the demagogues of faction on the other. The former, obferving the abfolute fovereignty and tranfcendent dominion of the crown laid down (as it certainly is) moft
.{FS}
b Orig. 1. §. 105.
.{FE}
G g 2
ftrongly
.P 244
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
ftrongly and emphatically in our lawbooks, as well as our homilies, have denied that any cafe can be excepted from fo general and pofitive a rule; forgetting how impoffible it is, in any practical fyftem of laws, to pint out beforehand thofe eccentrical remedies, which the fudden emergence of national diftrefs may dictate, and which that alone can juftify. On the other hand, over-zealous republicans, feeling the abfurdity of unlimited paffive obedience, have fancifully (or fometimes factioufly) gone over to the other extreme: and, becaufe refiftance is juftifiable to the perfon of the prince when the being of the ftate is endangered, and the public voice proclaims fuch refiftance neceffary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to refift even private oppreffion. A doctrine productive of anarchy, and (in confequence) equally that to civil liberty as tyranny itfelf. For civil liberty, rightly underftood, confifts in protecting the rights of individuals by the united force of fociety: fociety cannot be maintained, and of courfe can exert no protection, without obedience to fome fovereign power: and obedience is an empty name, it every individual has a right to decide how far he himfelf fhall obey.
IN the exertion therefore of thofe prerogatives, which the law has given him, the king is irrefiftible and abfolute, according to the forms of the conftitution. And yet, if the confequence of that exertion be manifeftly to the grievance or difhonour of the kingdom, the parliament will call his advifers to a juft and fevere account. For prerogative confifting (as Mr Lockec has well defined it) in the difcretionary power of acting for the public good, where the pofitive laws are filent, if that difcretionary power be abufed to the public detriment, fuch prerogative is exerted in an unconftitutional manner. Thus the king may make a treaty with a foreign ftate, which fhall irrevocably bind the nation; and yet, when fuch treaties have been judged pernicious, impeachments have purfued thofe minifters, by whofe agency or advice they were concluded.
.{FS}
c on Gov. 2. §. 166.
.{FE}
THE
.P 245
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
THE prerogatives of the crown (in the fenfe under which we are now confidering them) refpect either this nation's intercourfe with foreign nations, or it's own domeftic government and civil polity.
WITH regard to foreign concerns, the king is the delegate or reprefentative of his people. It is impoffible that the individuals of a ftate, in their collective capacity, can tranfact the affairs of that ftate with another community equally numerous as themfelves. Unanimity muft be wanting to their meafures, and ftrength to the execution of their counfels. In the king therefore, as in a center, all the rays of his people are united, and form by that union a confiftency, fplendor, and power, that make him feared and refpected by rforeign potentates; who would fcruple to enter into any engagements, that muft afterwards be revifed and ratified by a popular affembly. 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 fo far is this point carried by our law, that it hath been held d, that fhould all the fubjects of England make war with a king in league with the king of England, without the royal affent, fuch war is no breach of the league. And, by the ftatute 2 Hen. V. c. 6. any fubject committing acts of hoftility upon any nation in league with the king, was declared to be guilty of high treafon: and, though that act was repealed by the ftatute 20 Hen. VI. c. 11. fo far as relates to the making this offence high treafon, yet ftill it remains a very great offence againft the law of nations, and punifhable by our laws, either capitally or otherwife, according to the circumftances of the cafe.
I. THE king therefore, confidered as the reprefentative of his people, has the fole power of fending embaffadors to foreign ftates, and receiving embaffadors at home. This may lead us into a fhort enquiry, how far the municipal laws of England inter-
.{FS}
d 4 Inft. 152.
.{FE}
meddle
.P 246
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
meddle with or protect the rights of thefe meffengers from one potentate to another, whom we call embaffadors.
THE rights, the powers, the duties, and the privileges of embaffadors are determined by the law of nature and nations, and not by any municipal conftitutions. For, as they reprefent the perfons of their refpective mafters, who owe no fubjection to any laws but thofe of their own country, their actions are not fubject to the control of the private law of that ftate, wherein they are appointed to refide. He that is fubject to the coercion of laws is neceffarily dependent on that power by whom thofe laws were made: but an embaffador ought to be independent of every power, except that by which he is fent; and of confequence ought not to be fubject to the mere municipal laws of that nation, wherein he is to exercife his functions. If he gruffly offends, or makes an ill ufe of his character, he may be fent home and accufed before his maftere; who is bound either to do juftice upon him, or avow himfelf the accomplice of his crimesf. But there is great difpute among the writers on the laws of nations, whether this exemption of embaffadors extends to all crimes, as well nature as pofitive; or whether it only extends to fuch as are mala prohibita, as coining, and not to thofe that are mala in fe, as murderg. Our law feems to have formerly taken in the reftriction, as well as the general exemption. For it has been held, both by our common lawyers and civiliansh, that an embaffador is privileged by the law of nature and nations; and yet, if he commits any offence againft the law of reafon and nature, he fhall lofe his privilegei: and that therefore, if an embaffador confpires the death of the king in whofe land he is, he may be condemned and executed for treafon; but if he commits any other fpecies of treafon, it is otherwife, and he muft be fent to his own kingdomk. And thefe po-
.{FS}
e As was done with count Gyllenberg the Swedifh minifter to Great Britain, A. D. 1716.
f Sp. L. 26. 21.
g Van Leeuwen in Ff. 50. 7. 17. Barbeyrac's Puff. 1. 8. c. 9. & 17. Van Bynkerfhoek de foro legator. c. 17, 18, 19.
h 1 Roll. Rep. 175. 3 Bulftr. 27.
i 4 Inft. 153.
k 1 Roll. Rep. 185.
.{FE}
fitions
.P 247
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
fitions feem to be built upon good appearance of reafon. For fince, as we have formerly fhewn, all municipal laws act in fubordination to the primary law of nature, and, where thy annex a punifhment to natural crimes, are only declaratory of and auxiliary to that law; therefore to this natural, univerfal rule of juftice embaffadors, as well as other men, are fubject in all countries; and of confequence it is reafonable that wherever they tranfgrefs it, there they fhall be liable to make atonementl. But, however thefe principles might formerly obtain, the general practice of Europe feems now to have adopted the fentiments of the learned Grotius, that the fecurity of embaffadors is of more importance than the punifhment of a particular crime m. And therefore few, if any, examples have happened within a century paft, where an embaffador has been punifhed for any offence, however atrocious in it's nature.
IN refpect to civil fuits, all the foreign jurifts agree, that neither an embaffador, nor any of his train or comites, can be profecuted for any debt or contract in the courts of the kingdom wherein he is fent to refide. Yet fir Edward Coke maintains, that, if an embaffador make a contract which is good jure gentium, he fhall anfwer for it heren. And the truth is, we find no traces in our lawbooks of allowing any privilege to embaffadors or their domeftics, even in civil fuits, previous to the reign of queen Anne; when an embaffador from Peter the great, czar of Mufcovy, was actually arrefted and taken out of his coach in London,in 1708, for debts which he had there contracted. This the czar refented very highly, and demanded (we are told) that the officers who made the arreft fhould be punifhed with death. But the queen (to the amazement of that defpotic court) directed her minifter to inform him, “that the law of England had not yet protected embaffadors from the payment for their lawful debts; that therefore the arreft was no offence by the laws; and that
.{FS}
l Fofter's reports. 188.
m Securitas legatorum utilitatl quae ex poema eft prasponderat. de jur. b. & p. 2. 18. 4. 4.
n 4 Inft, 153.
.{FE}
“fhe
.P 248
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
“fhe could inflict no punifhment upon any, the meaneft, of her fubjects, unlefs warranted by the law of the land o.” To fatisfy however the clamours of the foreign minifters (who made it a common caufe) as well as to appeafe the wrath of Peter p, a new ftatute was enacted by parliament q, reciting the arreft which had been made, “in contempt of the protection granted by her majefty, contrary to the law of nations, and in prejudice of the rights and privileges, which embaffadors and other public minifters have at all times been thereby poffeffed of, and ought to be kept facred and inviolable:” wherefore it enacts, that for the future all procefs whereby the perfon of any embaffador, or of his domeftic or domeftic fervent, may be arrefted, or his goods diftreined or feifed, fhall be utterly null and void; and the perfons profecuting, foliciting, or executing fuch procefs fhall be deemed violaters of the law of nations, and difturbers of the public repofe; and fhall fuffer fuch penalties and corporal punifhment as the lord chancellor and the two chief juftices, or any two of them, fhall think fit. But it is expreffly provided, that no trader, within the defcription of the bankrupt laws, who fhall be in the fervice of any embaffador, fhall be privileged or protected by this act; nor fhall any one be punifhed for arrefting an embaffador's fervent, unlefs his name be regiftred with the fecretary of ftate, and by him tranfmitted to the fheriffs of London and Middlefex. Exceptions, that are ftrictly conformable to the rights of embaffadors r, as obferved in the moft civilized countries. And, in confequence of this ftatute, thus enforcing the law of nations, thefe privileges are now ufually allowed in the court of common law s.
.{FS}
o Mod. Un. Hift. xxxv. 454.
p A copy of the act made upon this occafion, very elegantly engroffed and illuminated, was fent him to Mofcow as a prefent.
q 7 Ann. c. 12.
r Saete quaefitum eft an comitum numero et jure habendi funt, qui legatum comitantur, non ut inftructior fiat legatio, fed unice ut lucro fuo confuland, inftitores forte et mercatores. Et. Quamois bos faepe defenderint et comitum loco hobere voluerint legati, apparet tamen fatis eo non pertinere, qui in legati legationifve officio non funt. Quum autem ea res nonnunquam turbas dederit, optimo exemplo in quibufdam aulis olim receptum fuit, ut legatus tenerctur exhibere nomenclaturam comitum fuorum. Van Bynkerfh. c. 15. propc finem.
s Fitzg. 200. Stra. 797.
.{FE}
II. IT
.P 249
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
II. IT is alfo the king's prerogative to make treaties, leagues, and alliances with foreign ftates and princes. For it is by the law of nations effential to the goodnefs of a league, that it be made by the fovereign power t; and then it is binding upon the whole community: and in England the fovereign power, quoad hoc, is vefted in the perfon of the king. Whatever contracts therefore he engages in, no other power in the kingdom can legally delay, refift, or annul. And yet, left this plenitude of authority fhould be abufed to the detriment of the public, the conftitution (as was hinted before) hath here interpofed a check, by the means of parliamentary impeachment, for the punifhment of fuch minifters as advife or conclude any treaty, which fhall afterwards be judged to derogate from the honour and intereft of the nation.
III. UPON the fame principle the king has alfo the fole 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 fubfifted in every individual, is given up by all private perfons that enter into fociety, and is vefted in the fovereign 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 fovereign. It would indeed be extremely improper, that any number of fubjects fhould have the power of binding the fupreme magiftrate, and putting him againft his will in a ftate of war. Whatever hoftilities therefore may be committed by private citizens, the ftate ought not to be affected thereby; unlefs that fhould juftify 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 w; hoftes hi funt qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones out pracdones funt. And the reafon which is given by Grotius x, why ac-
.{FS}
t Puff. L. of N. b. 8. c. 9. §. 6.
u Puff. l. 8. c. 6. §. 8. and Barbeyr. in loc.
w Ff. 50. 16. 118.
x de jur. b. & p. l. 3. c. 3. §. 11.
.{FE}
H h
cording
.P 250
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
cording to the law of nations a denunciation of war ought always to precede the actual commencement of hoftilities, is not fo much that the enemy may be put upon his guard, (which is matter rather of magnanimity that right) but that it may be certainly clear that the war is not undertaken by private perfons, but by the will of the whole community; whofe right of willing is in this cafe transferred to the fupreme magiftrate by the fundamental laws of fociety. So that, in order to make a war completely effectual, it is neceffary 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 higheft to the loweft, are bound by it. And, wherever the right refides of beginning a national war, there alfo muft refide the right of ending it, or the power of making peace. And the fame check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general fufficient to reftrain the minifters of the crown from a wanton or injurious exertion of this great prerogative.
IV. BUT, as the delay of making war may fometimes be detrimental to individuals who have fuffered by depredations from foreign potentaties, our laws have in fome refpect armed the fubject with powers to impel the prerogative; by directing the minifters of the crown to iffue letters of marque and reprifal 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 ftate of hoftilities, and generally ending in a formal denunciation of war. Thefe letters are grantable by the law of nations y, whenever the fubject of one ftate are oppreffed and injured by thofe of another; and juftice is denied by that ftate to which the oppreffor belongs. In this cafe letters or marque and reprifal (words in themfelves fynonimous and fignifying a taking in return) may be obtained, in order to feife the bodies or goods of the fubjects of the offending ftate, until fatis-
.{FS}
y Grot. de jur. b. & p. l. 3. c. 2. §. 4 & 5.
.{FE}
faction
.P 251
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
faction be made, wherever they happen to be found. Indeed this cuftom of reprifals feems dictated by nature herefelf; and accordingly we find in the moft antient times very notable inftances of it z. But here the neceffity is obvious of calling in the fovereign power, to determine when reprifals may be made; elfe every private fufferer would be a judge in his own caufe. And, in purfuance of this principle, it is with us declared by the ftatute 4 Hen. V. c. 7. that, it any fubjects of the realm are oppreffed in time of truce by any foreigners, the king will grant marque in due form, to all that feel themfelves grieved. Which form is thus directed to be obferved: the fufferer muft firft apply to the lord privy-feal, and he fhall make out letters of requeft under the privy feal; and, if, after fuch requeft of fatisfaction made, the party required do not within convenient time make due fatisfaction or reftitution to the party grieved, the lord chancellor fhall make him out letters of marque under the great feal; and by virtue of thefe he may attack and feife the property of the aggreffor nation, without hazard of being condemned as a robber or pirate.
V. UPON exactly the fame reafon ftands the prerogative of granting fafe-conducts, without which by the law of nations no member of one fociety has a right to intrude into another. And therefore Puffendorf very juftly refolves a, that it is left in the power of all ftates, to take fuch meafures about the admiffions of ftrangers, as they think convenient; thofe being ever excepted who are driven on the coafts by neceffity, or by any caufe that deferves pity or compaffion. Great tendernefs is fhewn by our laws, not only to foreigners in diftrefs (as will appear when we come to fpeak of fhipwrecks) but with regard alfo to the admiffions of ftrangers who come fpontaneoufly. For fo long as their
.{FS}
z See the account given by Neftor, in the eleventh book of the Iliad, of the reprifals made by himfelf on the Epeian nation; from whom he took a multitude of cattle, as a fatisfaction for a prize won at the Elian games by his father Neleus, and for debts due to many private fubjects of the Pylian kingdom: our of which booty the king took three hundred head of cattle for his own demand, and the reft were equitably divided among the other creditors.
a Law of N. and N. b. 3. c. 3. §. 9.
.{FE}
H h 2
nation
.P 252
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
nation continues at peace with ours, and they themfelves behave peaceably, they are under the king's protection; though liable to be fent home whenever the king fees occafion. But no fubject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himfelf upon the high feas, or fend his goods and merchandize from one place to another, without danger of being feized by our fubject, unlefs he had letters of fafe-conduct; which by divers antient ftatutesb muft be granted under the king's great feal and inrolled in chancery, or elfe are of no effect: the king being fuppofed the beft judge of fuch emergencies, as may deferve exception from the general law of arms.
INDEED the law of England, as a commercial country, pays a very particular regard to foreign merchants in innumerable inftances. One I cannot omit to mention: that by magna cartac it is provided, that all merchants (unlefs publickly prohibited beforehand) fhall have fafe conduct to depart from, to come into, to tarry in, and to go through England, for the exercife of merchandize, without any unreafonable impofts, except in time of war: and, if a war breaks out between us and their country, they fhall be attached (if in England) without harm of body or goods, till the king or his chief jufticiary be informed how our merchants are treated in the land with which we are at war; and, if ours be fecure in that land, they fhall be fecure in ours. This feems to have been a common rule of equity among all the northern nations; for we learn from Stiernhookd, that it was a maxim among the Goths and Swedes, “quam legem exteri nobis pofuere, eandem illis ponemus.” But it is fomewhat extraordinary, that it fould have found a place in magna carta, a mere interior treaty between the king and his natural-born fubjects; which occafions the learned Montefquieu to remark with a degree of admiration, “that the Englifh have made the protection of foreign merchants one of the articles of their national libertye.” But
.{FS}
b 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 30 Hen. VI. c. 1.
c c. 30.
d de jure Suton. l. 2. c. 4.
e Sp. L. 20. 13.
.{FE}
indeed
.P 253
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
indeed it well juftifies another obfervation which he has made f, “that the Englifh know better than any other people upon earth, how to value at the fame time thefe three great advantages, religion, liberty, and commerce.” Very different from the genius of the Roman people; who in their manners, their conftitution, and even in their laws, treated commerce as a difhonorable employment, and prohibited the exercife thereof to perfons of birth, or rank, or fortune g: and equally different from the bigotry of the canonifts, who looked on trade as inconfiftent with chriftianityh, and determined at the council of Melfi, under pope Urban II, A. D. 1090, that it was impoffible with a fafe confcience to exercife any traffic, or follow the profeffion of the law i.
THESE are the principal prerogatives of the king, refpecting this nation's intercourfe with foreign nations; in all of which he is confidered as the delegate or reprefentative of his people. But in domeftic affairs he is confidered in a great variety of characters, and from thence there arifes an abundant number of other prerogatives.
I. FIRST, he is a conftituent part of the fupreme legiflative power; and, as fuch, has the prerogative of rejecting fuch provifions in parliament, is he judges improper to be paffed. The expediency of which conftitution has before been evinced at large k. I shall only farther remark, that the king is not bound by any act of parliament, unlefs he be named therein by fpecial and particular words. The moft general words that can be devifed (“any perfon or perfons, bodies politic, or corporate, &c.”) affect not him in the leaft, if they may tend to reftrain or diminifh any of his rights or intereftsl. For it would be of moft mifchievous confequence to the public, if the ftrength of the executive power
.{FS}
f Sp. L. 20. 6.
g Nobiliores natalibus, et honorum luce confpicuos, et patrimonio ditiores, perniciofum urbibus mercimonium exercere prohibemus. C. 4. 63. 3.
h Homo mercator vix aut nunquam poteft Deo placere: et ideo nullus Chriftianus debet effe mercator; aut fi voluerit effe, projiciatur de ecclefia Dei. Decxet. 1. 88. 11.
i Falfa fit peonitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quae fine peccatis agi ulla ratione non praevalet. Act. Concil. Apud Baron. c. 16.
k ch. 2. pag. 149.
l 11 Rep. 74 b.
.{FE}
were
.P 254
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
were liable to be curtailed without it's own exprefs confent, by conftructions and implications of the fubject. Yet where an act of parliament is expreffly made for the prefervation of public rights and the fuppreffion of public wrongs, and does not interfere with the eftablifhed rights or the crown, it is faid to be binding as well upon the king as upon the fubject m: and, likewife, the king may take the benefit on any particular act, though he be not efpecially named n.
II. THE king is confidered, in the next place, as the generaliffimo, or the firft in military command, within the kingdom. The great end of fociety is to protect the weaknefs of individuals by the united ftrength of the community: and the principal ufe of government is to direct that united ftrength in the beft and moft effectual manner, to anfwer the end propofed. Monarchical government is allowed to be the fitteft of any for this purpofe: it follows therefore, from the very end of it's inftitution, that in a monarchy the military power muft be trufted in the hands of the prince.
IN this capacity therefore, of general of the kingdom, the king has the fole power of raifing and regulating fteets and armies. Of the manner in which they are raifed and regulated I fhall fpeak more, when I come to confider the military ftate. We are now only to confider the prerogative of enlifting and of governing them: which indeed was difputed and claimed, contrary to all reafon and precedent, by the long parliament of king Charles I; but, upon the reftoration of his fon, was folemnly declared by the ftatute 13 Car. II. c. 6. to be in the king alone: for that the fole fupreme government and command of the militia within all his majefty's realms and dominions, and of all forces by fea and land, and of all forts and places of ftrength, ever was and is the undoubted right of his majefty, and his royal predeceffors, kings and queens of England; and that both or either houfe of parliament cannot, nor ought to, pretend to the fame.
.{FS}
m 11 Rep. 71.
n 7 Rep. 32.
.{FE}
THIS
.P 255
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
THIS ftatute, it is obvious to obferve, extends not only to fteets and armies, but alfo to forts, and other places of ftrenght, within the realm; the fole prerogative as well of erecting, as manning and governing of which, belongs to the king is his capacity of general of the kingdom o: and all lands were formerly fubject to a tax, for building of caftles 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 anceftors the trinoda neceffitas: fc. Pontis reparatio, arcis conftruction, et expeditio contra hoftemp. And this they were called upon to do fo often, tha, as fir Edward Coke from M. Paris affures usq, there were in the time of Henry II 1115 caftles fubfifting in England. The inconvenience of which, when granted out to private fubjects, the lordly barons of thofe times, was feverely felt by the whole kingdom; for, as William of Newbury remarks in the reign of king Stephen, “crant in Anglia quodammodo tot reges vel potius tryanni, quot domini caftellorum:” but it was felt by none more fenfibly than by two fucceeding princes, king John and king Henry III. And therefore, the greateft part of them being demolifhed in the barons' wars, the kings of after times have been very cautious of fuffering them to be rebuilt in a fortified manner: and fir Edward Coke lays it down r, that no fubject can build a caftle, or houfe of ftrength imbatteled, or other fortrefs defenfible, without the licence of the king; for the danger which might enfue, if every man at his pleafure might do it.
To this branch of the prerogative may be referred the power vefted in his majefty, by ftatutes 12 Car. II. c. 4. and 29 Geo. II. c. 16. of prohibiting the exportation of arms of ammunition out of this kingdom, under fevere penalties: and likewife the right which the king has, whenever he fees proper, of confining his
.{FS}
o 2 Inft. 30.
p Cowel's interpr. tit. caftellorum operatio. Seld. Fan. Angl. 1. 42.
q 2 Inft. 31.
r 1 Inft. 5.
.{FE}
fubjects
.P 256
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
fubjects to ftay within the realm, or of recalling them when beyond the feas. By the common laws, every man may go out of the realm for whatever caufe he pleafeth, without obtaining the king's leave; provided he is under no injunction of ftaying at home: (which liberty was ecpreffly declared in king John's great charter, though left out in that of Henry III) but, becaufe that every man ought of right to defend the king and his realm, therefore the king at his pleafure may command him by his writ that he go not beyond the feas, or out of the realm without licence; and if he do the contrary, he fhall be punifhed for difobeying the king's command. Some perfons were antiently were, that, by reafon of their ftations, were under a perpetual prohibition of going abroad without licence obtained; among which were reckoned all peers, on account of their being counfellors of the crown; all knights, who were bound to defend the kingdom from invafions; all ecclefiaftics, who were expreffly confined by cap. 4. of the conftitutions of Clarendon, on account of their attachment in the times of popery to the fee of Rome; all archers and other artificers, left they fhould inftruct foreigners to rival us in their feveral trades and manufactures. This was law in the times of Brittont, who wrote in the reign of Edward I: and fir Edward Cokeu gives us many inftances to this effect in the time of Edward III. In the fucceeding reign the affair of traveling were a very different afpect: as act of parliament being made w, forbidding all perfons 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 foldiers. But this act was repealed by the ftatute 4 Jac. I. c. 1. And at prefent every body has, or at leaft affumes, the liberty of going abroad when he pleafes. Yet undoubtedly if the king, by writ of ne exeat regnum, under his great feal or privy feal, thinks proper to prohibit him from fo doing; or if the king fends a writ to any man, when abroad, commanding his return; and in either cafe the fubject difobeys; it is a high contempt of the king's prero-
.{FS}
s F. N. B. 85.
t c. 123.
u 3 Inft. 175.
w 5 Ric. II. c. 2.
.{FE}
gative
.P 257
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
gative, for which the offender's lands fhall be feifed till he return; and then he is liable to fine and imprifonment x.
III. ANOTHER capacity, in which the king is confidered in domeftic affairs, is as the fountain of juftice and general confervator of the peace of the kingdom. By the fountain of uftice the law does not mean the author or original, but only the diftributor. Juftice is not derived from the king, as from his free gift; but he is the fteward of the public, of difpenfe it to whom it is duey. He is not the fpring, but the refervoir; from whence right and equity are conducted, by a thoufand chanels, to every individual. The original power of judicature, by the fundamental principles of fociety, is lodged in the fociety at large: but as it would be impracticable to render complete juftice to every individual, by the people in their colleftive capacity, therefore every nation has committed that power to certain felect magiftrates, who with more cafe and expedition can hear and determine complaints; and in England this authority has immemorially been exercifed by the king of his fubftitutes. He therefore has alone the right of erecting courts of judicature: for, though the conftitution of the kingdom hath entrufted him with the whole executive power of the laws, it is impoffible, as well as improper, that he fhould perfonally carry into execution this great and extenfive truft: it is confequently neceffary, that courts fhould be erected, to affift him in executing this power; and equally neceffary, that, if erected, they fhould be erected by his authority. And hence it is, that all jurifdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king's name, they pafs under his feal, and are executed by his officers.
IT is probable, and almoft certain, that in very early times, before our conftitution arrived at it's full perfection, our kings in perfon often heard and determined caufes between and party
.{FS}
x 1 Hawk. P. C. 22.
y Ad hoc autem creatus eft et electus, uf juftitiam faciat univerfis. Bract. l. 3. tr. 1. c. 9.
.{FE}
I i
But
.P 258
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
But at prefent, by the long and uniform ufage of many ages, our kings have delegated their whole judicial power to the judges of their feveral courts; which are the grand depofitary of the fundamental laws of the kingdom, and have gained a known and ftated jurifdiction, regulated by certain and eftablifhed rules, which the crown itfelf cannot now alter but by act of parliament z. And, in order to maintain both the dignity and independence of the judges in the fuperior courts, it is enacted by the ftatute 13 W. III. c. 2. that their commiffions fhall be made (not, as formerly, durante bene placito, but) quamdiu bene fe gefferint, and their falaries afcertained and eftablifhed; but that it may be lawful to remove them on the addrefs of both houfes of parliament. And now, by the noble improvements of that law in the ftatute of 1 Geo. III. c. 23. enacted at the earneft recommendation of the king himfelf from the throne, the judges are continued in their offices during their good behaviour, notwithftanding any demife of the crown (which was formerly held a immediately to vacate their feats) and their full falaries are abfolutely fecured to them during the continuance of their commiffions: his majefty having been pleafed to declare, that “he looked upon the independence and uprightnefs of the judges, as effential to the impartial adminiftration of juftice; as one of the beft fecurities of the rights and liberties of his fubjects; and as moft conducive to the honour of the crown b.”
IN criminal proceedings, or profecutions for offences, it would ftill be a higher abfurdity, if the king perfonally fate in judgment; becaufe in regard to thefe he appears in another capacity, that of profecutor. All offences are either againft the king's peace, or his crown and dignity; and are fo laid in every indictment. For, though in their confequences they generally feem (except in the cafe of treafon and a very few others) to be rather offences againft the kingdom than the king; yet, as the public, which is an invifible body, has delegated all it's power and rights, with re-
.{FS}
z 2 Hawk. P. C. 2.
a Ld Raym. 747.
b Com. Journ. 3 Mar. 1761.
.{FE}
gard
.P 259
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
gard to the execution of the laws, to one vifible magiftrate, all affronts to that power, and breaches of thofe rights, are immediately offences againft him, to whom they are fo delegated by the public. He is therefore the proper perfon to profecute for all public offences and breaches of the peace, being the perfon injured in the eye of the law. And this notion was carried for far in the old Gothic conftitution, (wherein the king was bound by his coronation oath to conferve the peace that in cafe of any forcible injury offered to the perfon of a fellow fubject, the offender was accufed of a kind of perjury, in having violated the king's coronation oath; diccbatur fregiffe juramentum regis juratumc. And hence alfo arifes another branch of the prerogative, that of pardoning offences; for it is reafonable that he only who is injured fhould have the power of forgiving. And therefore, in parliamentary impeachments, the king has no prerogative of pardoning: becaufe there the commons of Great Britain are in their own names the profecutors, and not the crown; the offence being for the moft part avowedly taken to the done againft the public. Of profecutions and pardons I fhall treat more at large hereafter; and only mention them here, in this curfory manner, to fhew the conftitutional grounds of this power of the crown, and how regularly connected all the links are in this vaft chain of prerogative.
IN this diftinct and feparate exiftence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleafure, by the crown, confifts one main prefervative of the public liberty; which cannot fubfit long in any ftate, unlefs the adminiftration of common juftice be in fome degree feparated both from the legiflative and alfo from the executive power. Were it joined with the legiflative, the life, liberty, and property, of the fubject would be in the hands of arbitrary judges, whofe decifions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legiflators may depart from, yet judges are bound to obferve. Were
.{FS}
c Stiernh. de jure Goth. l. 3. c. 3. A notion fomewhat fimilar to this may be found in the mirrour. c. 1. §. 5.
.{FE}
I i 2
it
.P 260
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
it joined with the executive, this union might foon be an overbalance for the legiflative. For which reafon, by the ftatute of 16 Car. I. c. 10. which abolifhed the court of ftar 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 inftances, might foon be inclined to pronounce that for law, which was moft agreeable to the prince or his officers. Nothing therefore is more to be avoided, in a free conftitution, than uniting the provinces of a judge and minifter of ftate. And indeed, that the abfolute power, claimed and exercifed n a neighbouring nation, is more tolerable than that of the eaftern empires, is in great meafure owing to their having vefted the judicial power in their parliaments, a body feparate and diftinct from both the legiflative and executive: and, if ever that nation recovers it's former liberty, it will owe it to the efforts of thofe affemblies. In Turkey, where every thing is centered in the fultan or his minifters, defpotic power is in it's meridian, and wears a more dreadful afpect.
ACONSEQUENCE of this prerogative is the legal ubiqui y of the king. His majefty, in the eye of the law, is always prefent in all his courts, though he cannot perfonally diftribute jufticed. His judges are the mirror by which the king's image is reflected. It is the regal office, and not the royal perfon, that is always prefent in court, always ready to undertake profecutions, or pronounce judgment, for the benefit and protection of the fubject. And from this ubiquity it follows, that the king can never be monfuite; for a nonfuit is the defertion of the fuit or action by the non-appearance of the plaintiff in court. For the fame reafon alfo, in the forms of legal proceedings, the king is not faid to appear by his attorney, as other men do; for he always appears in contemplation of law in his own proper perfonf.
FROM the fame original, of the king's being the fountain of juftice, we may alfo deduce the prerogative of iffuing proclama
.{FS}
d Fortefc. c. 8. 2 Inft. 186.
e Co. Litt. 139.
f Finch. L. 81.
.{FE}
tions,
.P 261
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
tions, which is vefted in the king alone. Thefe proclamations have then a binding force, when (as fir Edward Coke obfervesg) they are grounded upon and enforce the laws of the realm. For, though the making of laws is entirely the work of a diftinct part, the legiflative branch, of the fovereign power, yet the manner, time, and circumftances of putting thofe laws in execution muft frequently be left to the difcretion of the executive magiftrate. And therefore his conftitutions or edicts, concerming thefe points, which we call proclamations, are binding upon the fubject, where they do not either contradict the old laws, or tend to eftablifh new ones; but only enforce the execution of fuch laws as are already in being, in fuch manner as the king fhall judge neceffary. Thus the eftablifhed law is, that the king may prohibit any of his fubjects from leaving the realm: a proclamation therefore forbidding this in general for three weeks, by laying an embargo upon all fhipping in time of warh, will be equally binding as an act of parliament, becaufe founded upon a prior law. A proclamation for difarming papifts is alfo binding, being only in execution of what the legiflature has firft ordained: but a proclamation for allowing arms to papifts, or for difarming any proteftant fubject, will not bind; becaufe the firft would be to affume a difpenfing power, the latter a legiflative one; to the vefting of either of which in any fingle perfon the laws of England are abfolutely ftrangers. Indeed by the ftatute 31 Hen. VIII. c. 8. it was enacted, that the king's proclamations fhould have the force of acts of parliament: a ftatute, which was calculated to introduce the moft defpotice tyranny; and which muft have proved fatal to the liberties of this kingdom, had it not been luckily repealed in the minority of his fucceffor, about five years after.
IV. THE king is likewife the fountain of honour, of office, and of privilege: and this in a different fenfe from that wherein he is ftiled the fountain of juftice; for here he is really the parent of them. It is impoffible that government can be maintained
.{FS}
g 3 Inft. 162.
h 4 Mod. 177, 179.
i Stat. 1 Edw. VI. c. 12.
.{FE}
without
.P 262
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
without a due fubordnation of rank; that the people may know and diftinguifh fuch as are fet over them, in order to yield them their due refpect and obedience; and alfo that the officers themfelves, being encouraged by emulation and the hopes of fuperiority, may the better difcharge their functions: and the law fuppofes, that no one can be fo good a judge of their feveral merits and fervices, as the king himfelf who employs them. It has therefore intrufted with him the fole power of conferring dignities and honours, in confidence that he will beftow them upon none, but fuch as deferve them. And therefore all degrees of nobility, of knighthood, and other titles, are received by immediate grant from the crown: either expreffed in writing, by writs or letters patent, as in the creations of peers and baronets; or by corporeal inveftiture, as in the creation of a fimple knight.
FROM the fame principle alfo arifes the prerogative of erecting and difpofing of offices: for honours and offices are in their nature convertible and fynonymous. All offices under the crown carry in the eye of the law an honour along with them; becaufe they imply a fuperiority of parts and abilities, being fuppofed to be always filled with fhofe that are moft 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 confervator or governor of a county; and a knight, miles, was bound to attend the king in his wars. For the fame reafon therefore that honours are in the difpofal of the king, offices ought to be fo likewife; and as the king may create new titles, fo may he create new offices: but with this reftriction, 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 fubject, which cannot be impofed but by act of parliament k. Wherefore, in 13 Hen. IV, a new office being created by the king's letters patent for meafuring cloths, with a new fee for the fame, the letters patent were, on account of the new fee, revoked and declared void in parliament.
.{FS}
k 2 Inft. 533.
.{FE}
UPON
.P 263
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
UPON the fame, or a like reafon, the king has alfo the prerogative of conferring privileges upon private perfons. Such as granting place or precedence to any of his fubjects, as fhall feem good to his royal wifdoml: or fuch as converting aliens, or perfons born out of the king's dominions, into denizens; whereby fome very confiderable privileges of natural-born fubjects are conferred upon them. Such alfo is the prerogative of erecting corporations; whereby a number of private perfons 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 fubjects, I fhall fpeak more largely in a fubfequent chapter; as alfo of corporations at the clofe 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 fole adminiftration of the government in his hands, in the beft and the only judge, in what capacities, with what qualified to ferve, and to act under what diftinctions, his people are the beft qualified to ferve, and to act under him. A principle, which was carried fo far by the imperial law, that it was determined to be the crime of facrilege, even to doubt whether the prince and appointed proper officers in the ftatem.
V. ANOTHER light in which the laws of England confider the king with regard to domeftic concerns, is as the arbiter of commerce. By commerce, I at prefent mean domeftic 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 reftrictions; and would be alfo quite befide the purpofe of thefe commentaries, which are confined to the laws of England. Whereas no municipal laws can be fufficient to order and determine the very extenfive and complicated affairs of traffic and merchandize; neither can they have a proper authority for
.{FS}
l 4 Inft. 361.
m Difputare de principali judicio non opotet : facrilegii enim inftar eft, dubitare an is dignus fit, quem elegerit imperator. C. 9. 29. 3.
.{FE}
this
.P 264
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
this purpofe. For as thefe are tranfactions carried on between the fubjects of independent ftates, the municipal las of one will not be regarded by the other. For which reafon 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 cafes refer itfelf to it, and leaves the caufes of merchants to be tried by their own peculiar cuftoms; and that often even in matters relating to inland trade, as for inftance with regard to the drawing, the acceptance, and the transfer, of bills of exchangen.
WITH us in England, the king's prerogative, for far as it relates to mere domeftic commerce, will fall principally under the following articles:
FIRST, the eftablifhment of public marts, or places of buying and felling, fuch as markets and fairs, with the tolls thereunto belonging. Thefe can only be fet up by virtue of the king's grant, or by long and immemorial ufage and prefcription, which prefuppofes fuch a granto. The limitation of thefe public reforts, to fuch time and fuch place as may be moft convenient for the neighbourhood, forms a part of oeconomics, or domeftic polity; which, confidering the kingdom as a large family, and the king as the mafter of it, he clearly has a right to difpofed and order as he pleafes.
SECONDLY, the regulation of weights and meafures. Thefe for the advantage of the public, ought to be univerfally the fame duce all things to the fame or an equivalent value. But, as weight and meafure are things in their nature arbitrary and uncertain, it is therefore expedient that they be reduced to fome fixed rule or ftandard: which ftandard it is impoffible 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
.{FS}
n Co. Litt. 172. Ld Raym. 181. 1542.
o 2 Inft. 220.
.{FE}
is
.P 265
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
is therefore neceffary to have recourfe to fome vifible, palpable, material ftandard; by forming a comparifon with which, all weights and meafures may be reduced to one uniform fize: and the prerogative of fixing this ftandard, our antient law vefted in the crown; as in Normandy it belonged to the dukep. This ftandard was originally kept at Winchefter: and we find in the laws of king Edgarp, near a century before the conqueft, an injunction that the one meafure, which was kept at Winchefter, fhould be obferved throughout the realm. Moft nations have regulated the ftandard of meafures of length by comparifon with the parts of the human body; as the palm, the hand, the fpan, the foot, the cubit, the ell (ulna, or arm) the pace, and the fathom. But, as thefe are of different dimenfions in men of different proportions, our antient hiftoriansr inform us, that a new ftandard of longitudinal meafure was afcertained by king Henry the firft; who commanded that the ulna or antient ell, which anfwers to the modern year, fhould be made of the exact length of his own arm. And, one ftandard of meafures of length being gained, all others are eafily derived from thence; thofe of greater length by multiplying, thofe of lefs by fubdividing, that original ftandard. Thus, by the ftatute called compofitio ulnarum et perticarum, five years and an half make a perch; and the yard is fubdivided into three feet, and each foot into twelve inches; which inches will be each of the length of three gains of barley. Superficial meafures are derived by fquaring thofe of length ; and meafures of capacity by cubing them. The ftandard of weights was originally taken from corns of wheat, whence the loweft denomination of weights we have is ftill called a grain; thirty two of which are directed, by the ftatute called compofitio menfurarum, to compofe a penny weight, whereof twenty make an ounce, twelve ounces a pound, and fo upwards. And upon thefe principles the firft ftandards were made; which, being originally fo fixed by the crown, their fubfequent regulations have been generally made by the king in parliament. Thus, under king
.{FS}
p Gr. Couftum. C. 16.
q cap. 8.
r William of Malmfb. in vita hen. I. Spelm. Hen. I. ap. Wilkins. 299.
.{FE}
K k
Richard I,
.P 266
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
Richard I, in his parliament holden at Weftminfter, A. D. 1197, it was ordained that there fhall be only one weight and one meafure throughout the kingdom, and that the cuftody of the affife or ftandard of weights and meafures fhall be committed to certain perfons in every city and borough s; from whence the antient office of the king's aulnager feems to have been derived, whofe duty it was, for a certain fee, to meafure all cloths made for fale, till the office was abolifhed by the ftatute II & 12 W. III. c. 20. In king John's time this ordinance of king Richard was frequently difpenfed with for moneyt; which occafioned a provifion to be made for inforcing it, in the great charters of king John and his fonu. Thefe original ftandards were called pondus regisw, and menfura domini regisx; and are directed by a variety of fubfequent ftatutes to be kept in the exchequer, and all weights and meafures to be made conformable theretoy. But, as fir Edward Coke obfervesz, though this hath fo often by authority of parliament been enacted, yet it could never be effected; for forcible is cuftom with the multitude, when it hath gotten an head.
THIRDLY, as money is the medium of commerce, it is the king's prerogative, as the arbiter of domeftic commerce, to give it authority or make it current. Money is an univerfal medium, or common ftandard, by comparifon with which the value of all merchandize may be afcertained: or it is a fign, which reprefents the refpective values of all commodities. Metals are well calculated for this fign, becaufe they are durable and are capable of many fubdivifions: and a precious metal is ftill better calculated for this purpofe, becaufe it is the moft portable. A metal is alfo the moft proper for a common meafure, becaufe it can eafily be reduced to the fame ftandard in all nations; and every particular nation fixed on it it's own impreffion, that the weight and
.{FS}
s Hoved. Matth. Paris.
t Hoved. A. d. 1201.
u 9 Hen. III. c. 25.
w Plac. 35 Edw. I. apud Cowel's Interpr. tit. pondus regis.
x Flet. 2. 12.
y 14 Edw. III. ft. 1. c. 12. 25 Edw. III. ft. 5. c. 10. 16 Rip. II. c. 3. 8 Hen. VI. c. 5. 11 Hen. VI. c. 8. 21 Hen. VII. c. 4. 33 Car. II. c. 8.
z 2 Inft. 41.
.{FE}
ftandard
.P 267
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
ftandard (wherein confifts the intrinfic value) may both be known by infpection only.
AS the quantity of precious metals increafes, that is, the more of them there is extracted from the mine, this univeral medium or common fign will fink in value, and grow lefs precious. Above a thoufand millions of bullion are calculated to have been imported into Europe from America within lefs than three centuries; and the quantity is daily increafing. The confequence is, that more money muft be given now for the fame commodity than was given an hundred years ago. And, if any accident was to diminifh the quantity of gold and filver, their value would proportionably rife. A horfe, that was formerly worth ten pounds, is now perhaps worth twenty; and, by any failure of current fpecie, the price may be reduced to what it was. Yet is the horfe in reality neither dearer nor cheaper at one time than another: for, if the metal which conftitutes the coin was formerly twice as fcarce as at prefent, the commodity was then as dear at half the price, as now it is at the whole.
THE coining of money is in all ftates the act of the fovereign power; for the reafon juft mentioned, that it's value may be known on infpection. And with refpect to coinage in general, there are three things to be confidered therein; the materials, the impreffion, and the denomination.
WITH regard to the materials, fir Edward Coke lays it down a, that the money of England muft either be of gold or filver; and none other was ever iffued by the royal authority till 1672, when copper farthings and half-pence were coined by king Charles the fecond, and ordered by proclamation to be current in all payments, under the value of fix-pence, and not otherwife. But this copper coin is not upon the fame footing with the other in many refpects, particularly with regard to the offence of counterfeiting it.
.{FS}
a 2 Inft. 577.
.{FE}
K k 2
As
.P 268
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
As to the impreffion, the ftamping thereof is the unqueftionable prerogative of the crown: for, though divers bifhops and monafteries had formerly the privilege of coining money, yet, as fir Matthew Hale obfervesb, this was ufually done by fpecial grant from the king, or by prefcription which fuppofes one; and therefore was derived from, and not in derogation of, the royal prerogative. Befides that they had only the profit of the coinage, and not the power of inftituting either the impreffion or denomination; but had ufually the ftamp fent them from the exchequer.
THE denomination, or the value for which the coin is to pafs current, is likewife in the breaft of the king; and, if any unufual pieces are coined, that value muft be afcertained by proclamation. In order to fix the value, the weight, and the finenefs of the metal are to be taken into confideration together. When a given weight of gold or filver is of a given finenefs, it is then of the true ftandard, and called fterling metal; a name for which there are various reafons given c, but none of them entirely fatiffactory. And of this fterling metal all the coin of the kingdom muft be made by the ftatute 25 Edw. III. c. 13. So that the king's prerogative feemeth not to extend to the debafing or inhancing the value of the coin, below or above the fterling value d: though fir Matthew Hale appears to be of another opinion. The king may alfo, by his proclamation, legitimate foreign coin, and make it current here: declaring at what value it fhall be taken in paymentsf. But this, I apprehend, ought to be by comparifon with the ftandard of our own coin; otherwife the confent of parliament will be neceffary. There is at prefent no fuch legitimated money; Portugal coin being only current by private confent, fo that any one who pleafes may refufe to take it in payment. The king may alfo at any time decry, or cry down, any coin of the kingdom, and make it no longer current g.
.{FS}
b 1 Hift. P. C. 191.
c Spelm. Gloff. 203.
d 2 Inft. 277.
e 1 H. P. C. 194.
f Ibid. 197.
g Ibid.
.{FE}
VI. THE
.P 269
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
VI. THE king is, laftly, confidered by the laws of England as the head and fupreme governor of the national church.
TO enter into the reafons upon which this prerogative is founded is matter rather of divinity than of law. I shall therefore only obferve that by ftatute 26 Hen. VIII. c. 1. (reciting that the king's majefty juftly and rightfully is and ought to be the fupreme head of the church of England; and fo had been recognized by the clergy of this kingdom in their convocation) it is enacted, that the king fhall be reputed the only fupreme head in earth of the church of England, and fhall have, annexed to the imperial crown of this realm, as well the titles and ftile thereof, as all jurifdictions, authorities, and commodities, to the faid dignity of fupreme head of the church appertaining. And another ftatute to the fame purport was made, 1 Eliz. c. 1.
IN virtue of this authority the king convenes, prorogues, reftrains, regulates, and diffolves all ecclefiaftical fynods or convocations. This was an inherent prerogative of the crown, long before the time of Henry VIII, as appears by the ftatute 8 Hen. VI. c. 1. and the many authors, both lawyers and hiftorians, vouched by fir Edward Coke h. So that the ftatute 25 Hen. VIII. c. 19. which reftrains the convocation from making or putting in execution any canons repugnant to the king's prerogative, or the laws, cuftoms, and ftatutes of the realm, was merely declaratory of the old common law: that part of it only being new, which makes the king's royal affent actually neceffary to the validity of every canon. The convocation or ecclefiaftical fynod, in England, differs confiderably in it's conftitution from the fynods of other chriftian kingdoms: thofe confifting wholly of bifhops; whereas with us the convocation is the miniature of a parliament, wherein the archbifhop prefides with regal ftate; the upper houfe of bifhops reprefents the houfe of lords; and the lower houfe, compofed of reprefentative of the feveral diocefes at large, and of each parti-
.{FS}
h 4 Inft. 322, 323.
.{FE}
cular
.P 270
The RIGHTS of PERSONS.
BOOK I.
Ch. 7.
cular chapter therein, refembles the houfe of commons with it's knights of the fhire and burgeffesi. This conftitution is faid to be owing to the policy of Edward I; who thereby at one and the fame time let in the inferior clergy to the privilege of forming ecclefiaftical canons, (which before they had not) and alfo introduced a method of taxing ecclefiaftical benefices, by confent of convocation k.
FROM this prerogative alfo of being the head of the church arifes the king's right of nomination to vacant bifhopricks, and certain other ecclefiaftical preferments; which will better be confidered when we come to treat of the clergy. I fhall only here obferve, that this is now done in confequence of the ftatute 25 Hen. VIII. c. 20.
AS head of the church, the king is likewife the dernier refort in all ecclefiaftical caufes; an appeal lying ultimately to him in chancery from the fentence of every ecclefiaftical judge: which right was reftored to the crown y ftatute 25 Hen. VIII. c. 19. as will more fully be fhewn hereafter.
.{FS}
i In the diet of Sweden, where the ecclefiaftics form one of the branches of the legiflature, the chamber of the clergy refembles the convocation of England. It is compofed of the bifhops and fuperintendants; and alfo of deputies, one of which is chofen by every ten parifhes or rural deanry. Mod. Un. Hift. xxxiii. 18.
k Gilb. hift. of exch. c. 4.
.{FE}