proper places within the same to be legal quays for the lading and unlading of goods, and by other sections(o) of the act the commissioners of the treasury and customs are empowered to appoint warehousing ports and sufferance wharves. Also by the 28 & 29 Vict. c. 125(p) (an Act for the regulation of dockyard ports), "It shall be lawful for her Majesty in council, from time to time, by order in council to define the limits of a dockyard port" for the purposes of the act. Some further statutory provisions bearing upon the subject before us can have but the briefest notice. By 46 Geo. 3, c. 153, as amended by 25 & 26 Vict. c. 69, ss. 15, 16, no pier, quay, wharf, jetty, or embankment, shall, under a penalty, be erected in or near to any public harbour, so far as the tide flows up the same, without giving one month's notice to the Board of Trade; saving, however, the rights and privileges of the city of London, and of the lord mayor as conservator of the Thames and Medway. And by "The General Pier and Harbour Act, 1861," (which was passed to "facilitate the formation, management, and maintenance of piers and harbours in Great Britain,") persons desirous of obtaining authority to construct any works under it must (s. 3) make application by memorial to the Board of Trade to grant provisional orders for constructing such works, which orders (s. 16) are afterwards to be confirmed by parliament (g). *The erection of beacons, light-houses, and sea-marks, is also a light-houses, branch of the royal prerogative: whereof the first was anciently used [* 317] erect beacons, in order to alarm the country, in case of the approach of an and sea-marks; enemy, and all are signally useful in guiding and preserving vessels at sea by night as well as by day. For this purpose the sovereign may, by commission under his great seal(), cause them to be erected in fit and convenient places(s), as well upon the lands of the subject as upon the demesnes of the crown, which power is usually vested by letters patent in the office of lord high admiral(t). By statute 8 Eliz. c. 13(u), the corporation of the Trinity-house were empowered to set up any beacons or sea-marks wherever they should think them necessary. And, in this same body, by s. 389 of "The Merchant Shipping Act, 1854 "(x), the general superintendence and management of all light-houses, buoys, and beacons in England, Wales, and the Channel Islands is, with certain reservations, likewise vested. To the branches of the royal prerogative latterly enumerated-which respectively concern the building and maintaining of fortresses, the appointing of ports and havens, the erecting of beacons and light-houses-reference is often made in the older cases. The ports are there denominated "the king's gates," harbours for merchants, "for whose better security the king is compelled to provide fortresses "(y). The erecting of beacons and landmarks was vested in the sovereign for the benefit of commerce, of which he was the supreme arbiter(z). In modern times, however, (as shown in the preceding (0) Ss. 10, 13. (p) S. 3. (9) The reader is also referred to the following statutes: 10 & 11 Vict. c. 27 ("An Act for Consolidating in one Act certain provisions usually contained in Acts authorising the making and improving of Harbours, Docks, and Piers"); 24 & 25 Vict. c. 45 (“ The General Pier and Harbour Act, 1861"), as to which see 25 & 26 Vict. cc. 19, 69; 24 & 25 Vict. c. 47 (amended by 29 & 30 Vict. c. 30); 28 & 29 Vict. c. 100 (" An Act to transfer from the Admiralty to the Board of Trade powers and duties relative to certain harbours "); 25 & 26 Vict. c. 69. (r) 3 Inst. 204; 4 Inst. 148. (8) Rot. Claus. 1 Ric. II. m. 42; Pryn. on 4 Inst. 136. (t) Sid. 158; 4 Inst. 149. (u) See, also, 52 Geo. 3, c. 115. (y) See Bates's Case & The Case of Shipmoney; Broom's Constit. L.. pp. 249, 253, 300 325, 337. (z) Post. pages,) the general superintendence of the matters specified has been assumed by parliament. [* 318] prohibit the exportation of arms and *To the branch of prerogative which has latterly been noticed may also be referred the power vested in the crown, by statute 16 and 17 Vict. c. 107, whereof, by s. 45, "the importation of arms, ammunition, gunpowder, or any other goods may be prohibited by ammunition; proclamation or order in council ;" and by s. 150, the exportation or carriage coastwise of military and naval stores and provisions may in like manner be prohibited. and prevent subjects from leaving or re the kingdom. To the same branch of the prerogative may likewise be referred the right which the sovereign 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 (a), every man may go out of the maining out of realm for whatever cause he pleases, without obtaining the sovereign's leave; provided he is under no injunction of staying at home (which liberty was expressly declared in king John's great charter(b), though left out in that of Henry III.); but, because every man ought of right to defend the sovereign and his realm, therefore the sovereign at his pleasure may, by writ, command him 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 royal mandate. Some persons there anciently were, who were under a perpetual prohibition of going abroad without licence obtained; sc. all peers, on account of their being counsellors of the crown; all knights, who were bound to defend the kingdom from invasion; and all ecclesiastics, who were expressly restrained by the fourth chapter of the constitutions of Clarendon, on account of their attachment in the times of popery to the see of Rome. This was law in the time of Britton(c), who wrote in the reign of Edward I. and sir Edward Coke(d) gives us many instances to the same 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(e), [* 319] 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. 1, c. 1. And at present everybody has, or at least assumes, the liberty of going abroad when he pleases. There is indeed a writ of ne exeat regno issuing out of chancery, and founded upon that which in former times emanated directly from the crown, the office of which is to prevent the subterfuge from justice of a debtor, and to compel the giving of security for the debt(f); and it is laid down by competent authority that if the sovereign sends a writ to any man, when abroad, commanding his return, and the subject disobeys, that is a high contempt and punishable accordingly (g). This especial exercise of the prerogative(h), however, has long been disused, and is not likely to be re-asserted.(87) (87) The writ of ne exeat has been very generally in use in the United States in civil suits and proceedings in equity. It is issued in equity suits commenced in the courts of the III. The sovereign is considered in relation to domestic affairs as the fountain of justice and general conservator of the peace of the kingdom. By the fountain of justice the law does not mean its author or origin, (III.) Is the fountain of justice. but only its distributor. Justice is not derived from the sovereign, as from his free gift; but he is the steward of the public, to dispense it to whom it is due(i). He is not the spring, but the reservoir; whence right and equity are conducted, by a thousand channels, to individual members of the community. As it would be impracticable for complete justice to be rendered to every individual, by the people in their collective capacity, therefore every nation has committed the power of dispensing justice to certain select magistrates, who with more ease and expedition can hear and *determine [* 320] complaints; and in England this authority has immemorially been exercised, according to the theory of our constitution, by the sovereign or his substitutes. He has the right of erecting courts of judicature: for, though the constitution of the kingdom has intrusted him with the whole executive power of the laws, it is impossible, as it would be 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(k), or by the supreme authority of parliament. Hence it is, that the jurisdiction. of courts is either mediately or immediately derived from the crown, their proceedings run generally in the sovereign's name, pass under his seal, and are executed by his officers. It is possible, that in very early times, before our constitution arrived at its full perfection, our kings in person sometimes heard and determined causes In this capacity between party and party(). But at present, by the long and appoints the judges; uniform usage of ages, our sovereigns have delegated their whole judicial power to the judges of their several courts; who are the grand depositaries 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 (m). Moreover, in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute 13 Will. 3, c. 2, that their commissions shall be (i) Ad hoc autem creatus est et electus, ut justitiam faciat universis. Bract. 1. 3, tr. 1, c. 9. United States. (k)See Com. Dig. Prerogative, D. 28. Act March 2, 1793, § 5; 1 Stat. at Large, 334, and is granted by a supreme court judge or a circuit court judge of that court. Ib. But the district court judges have no power to issue the writ. Gernon v. Bocaline, 2 Wash. C. C. 130. It is a writ in common use in the several state courts. Williams v. Williams, 2 Green's Ch. 130; Cox v. Scott, 5 Har. & J. 384; Johnson v. Clendenin, 5 Gill. & J. 463; Rhodes v. Cousins, 6 Rand. 188; Edwards v. Massey, 1 Hawks, 359; Ancrum v. Dawson, 1 McMullan, Ch. 405; Lucas v. Hickman, 2 Stew. 111; Crocker v. Dunkin, 6 Blackf. 535; Fisher v. Stone, 3 Scam. 68; Dean v. Smith, 23 Wis. 483; Gresham v. Peterson, 25 Ark. 377; Orme v. McPherson, 36 Ga. 571; Rice v. Hale, 5 Cush. 238; Lyon v. Lyon, 21 Conn. 199, note a; Smith v. Koontz, 4 Hay. 189. The object of the writ is to prevent the defendant from leaving the jurisdiction of the court, and to secure bail in an equitable suit, and to render such defendant amenable to the decree of the court. Ib. See 2 Wait's Pract. 272 to 284. The practice in each of the several states must be sought in its statutes, decisions and rules of practice. VOL. I.-27 is the public prosecutor in criminal matters; 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 by the statute 1 Geo. 3, c. 23, the judges are continued in their offices during their good behaviour, *notwithstanding any demise of the crown (which was for[321] merly held(n) immediately to vacate their seats), and their full salaries are absolutely secured to them during the continuance of their commissions. (SS) In criminal proceedings, or prosecutions for offences, it would be a still higher absurdity, if the sovereign personally sat in judgment; because in regard to these he appears in another capacity, that of prosecutor. All offences are either against the king's peace, or against his crown and dignity and are so laid in an indictment. For though in their consequences they generally seem (except in the case of treason, and a few other cases) to be rather offences against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. The sovereign therefore is the proper person to prosecute for 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(o). can pardon offences; Closely connected with the above branch of the prerogative is that of pardoning offences; it is reasonable that he only who is injured should have the power of forgiving; and to the head of the executive, more fitly than to any other power in the state, has been accorded the privilege of dispensing grace and mercy. Of prosecutions and pardons shall treat more at large hereafter; and only mention them here, in this cursory manner, to show the constitutional grounds of this power of the crown, and how regularly connected all the links are in this vast chain of prerogative. [* 322] In the distinct and separate existence of judicial functions in a peculiar body (n) 2 Lord Raym. 747. (0) Stiernh. de jure Goth. 1. 3, c. 3. A notion somewhat similar to this may be found in the Mirror, c. 1, § 5. And see Rot. Parl. 25 Edw. 3. (88) "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may from time to time establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." U. S. Const., art. 3, § 1. The judges are appointed by the president, by and with the advice and consent of the senate. U. S. Const., art. 2, § 2. By act of congress, April 10, 1869, ch. 20, § 5, it is provided "That any judge of any court of the United States, who, having held his commission as such at least ten years, shall, after having attained to the age of seventy years, resign his office, shall thereafter, during the residue of his natural life, receive the same salary which was by law payable to him at the time of his resignation." 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 as well from the legislative as from the executive power. Were such functions joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions might be regulated only by their own opinions, not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative. For which reason, by the statute 16 Car. 1, 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 is more to be avoided, in a free constitution, than uniting the province of a judge with that of a minister of state. present in court; A consequence of the prerogative latterly adverted to is the legal ubiquity of the sovereign, who, in the eye of the law, is always present in all his courts, in law is always though he cannot personally distribute justice (p). His judges are the mirror by which his own image is reflected. It is the regal office, not the royal person, that is always present *in court, [ *323] always ready to undertake prosecutions, or to pronounce judgment, for the benefit and protection of the subject. And from this ubiquity it technically follows, that the sovereign cannot be nonsuit(q); for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in court(r). For the same reason also, in the forms of legal proceedings, the Sovereign is not said to appear by his attorney, as other men do; for in contemplation of law he is always present in court(s). for enforcing laws. From the same origin- the sovereign being the fountain of justice-we may also deduce the prerogative of issuing proclamations, which is vested in and can issue him alone. These proclamations have then a binding force, proclamations when (as sir Edward Coke observes(t)) 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 sovereign. 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(u), will be equally binding as an act of parliament, because founded upon a prior law. But a proclamation to lay an embargo in time of (p) Fortesc. c. 8; 2 Inst. 186. (q) Co. Lit. 139. (r) The attorney-general may however enter a non cult prosequi, which has the effect of a nonsuit. (Co. Lit. 139). (8) Finch. L. 81. |