on account of their being counsellors of *the crown; all knights, who [*266] were bound to defend the kingdom from invasions; all ecclesiastics, who were expressly confined by the fourth chapter of the constitutions of Clarendon, on account of their attachment in the times of popery to the see of Rome; all archers and other artificers, lest they should instruct foreigners to rival us in their several trades and manufactures. This was law in the times of Britton, (0) who wrote in the reign of Edward I: and Sir Edward Coke (p) gives us many instances to this effect in the time of Edward III. In the succeeding reign the affair of travelling wore a very different aspect; an act of parliament being made, (q) forbidding all persons whatever to go abroad without license; except only the lords and other great men of the realm; and true and notable merchants; and the king's soldiers. But this act was repealed by the statute 4 Jac. I, c. 1. And at present everybody has, or at least assumes, the liberty of going abroad when he pleases. Yet, undoubtedly, if the king, by writ of ne exeat regnum, (18) under his great seal or privy seal, thinks proper to prohibit him from so doing; or if the king sends a writ to any man, when abroad, commanding his return; (19) and, in either case, the subject disobeys; it is a high contempt of the king's prerogative, for which the offender's lands shall be seized till he return; and then he is liable to fine and imprisonment. (r) III. Another capacity, in which the king is considered in domestic affairs, is as the fountain of justice and general conservator of the peace of the kingdom. By the fountain of justice, the law does not mean the author or original, but only the distributor. Justice is not derived from the king, as from his free gift; but he is the steward of the public, to dispense it to whom it is due. (8) He is not the spring, but the reservoir, from whence right and equity are conducted, by a thousand channels, to every individual. The original power of judicature, [ *267] by the fundamental principles of society, is *lodged in the society at large: but as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more ease and expedition can hear and determine complaints; and in England this authority has immemorially been exercised by the king or his substitutes. He therefore has alone the right of erecting courts of judicature; for, though the constitution of the kingdom hath intrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary that courts should be erected, to assist him in executing this power; and equally necessary that, if eretced, they should be erected by his authority. And hence it is, that all jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king's name, they pass under his seal, and are executed by his officers. It is probable, and almost certain, that in very early times, before our constitution arrived at its full perfection, our kings in person often heard and determined causes between party and party. But at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depositaries of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, (q) 5 Ric. II. c. 2. (0) C. 123. (18) [At first this writ was employed to hinder the clergy from going to Rome; it was afterward extended to laymen machinating and concerting measures against the state; and has at length been applied to prevent a subterfuge from the justice of the nation, though in matters of private concernment. It is now issuable from the court of chancery, in order to get bail for any certain, equitable and money debt, due to a person within the jurisdiction and entitled to sue the debtor for such demand, and it is granted upon affidavit of the debtor's intention to go abroad. See 2 Maddock's Ch. Pr. 279, and Beames on Ne Exeat Regno.] (19) [The exercise of this prerogative has been long disused, and it is probable that it will never be resumed. For the ancient learning upon it, see 3 Inst. c. 84.] regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament. (t) And in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute 13 Wm. III, c. 2, that their commissions shall be made (not, as formerly, durante bene placito, but) quamdiu bene se gesserint, and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament. And now, by the noble improvements of that law, in the statute of 1 Geo. III, c. 23, enacted at the earnest recommendation of *the king himself from the throne, the judges are continued in their offices during their good behavior, notwithstanding any demise of the [*268] crown, (which was formerly held (w) immediately to vacate their seats) (20) and their full salaries are absolutely secured to them during the continuance of their commissions; his majesty having been pleased to declare, that " he looked upon the independence and uprightness of the judges as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honor of the crown."(x) In criminal proceedings, or prosecutions for offences, it would be a still higher absurdity if the king personally sate in judgment; because, in regard to these, he appears in another capacity, that of prosecutor. All offences are either against the king's peace, or his crown and dignity; and are so laid in every indictment. For though in their consequences they generally seem (except in the case of treason, and a very few others,) to be rather offences against the kingdom than the king, yet as the public, which is an invisible body, has delegated all 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. He is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law. And this notion was carried so far in the old Gothic constitution, (wherein the king was bound by his coronation oath to conserve the peace,) that in case of any forcible injury offered to the person of a fellow-subject, the offender was accused of a kind of perjury, in having violated the king's coronation oath, dicebatur fregisse jura mentum regis juratum. (y) And hence also arises another *branch of the prerogative, that of pardoning offences; for it is reasonable that he [*269 ] only who is injured should have the power of forgiving. (21) Of prosecutions and pardons I shall treat more at large hereafter: and only mention them here, (w) Lord Raym. 747. (x) Com. Journ. 3 Mar. 1761. (t) 2 Hawk. P. C. 2. (y) Stiernh. de jure Goth. 1. 3. c. 3. A notion somewhat similar to this may be found in the Mirror, c. 1, 5. And so also, when the Chief Justice Thorpe was condemned to be hanged for bribery, he was said sacramentum domini regis fregisse. Rot. Parl. 25 Edw. III. (20) [All their commissions became vacant upon the demise of the crown, till they were continued for six months longer by 1 Ann. Stat. 1, c. 8.] The judges of the courts of the United States hold their offices during good behavior, and receive for their services a compensation which cannot be diminished during their continuance in office. Const. art. 3, §1. They are appointed by the president and confirmed by the senate. Const. art. 2, § 2. They may be removed from office by the process of impeachment, like other civil officers, and, by an act of congress passed in 1869, they may retire after ten years service, without diminution of salary, at the age of 70 years. The territorial judicial officers hold only during pleasure. (21) ["This high prerogative is inseparably incident to the crown, and the king is intrusted with it upon special confidence that he will spare those only whose case, could it have been foreseen, the law itself may be presumed willing to have excepted out of its general rules, which the wisdom of man cannot make so perfect as to suit every particular case." Co. Lit. 114, b. ; Hal. P. C. 104 ; 3 Inst. 233; Show, 284. The power of the crown to pardon a forfeiture and to grant restitution can only be exercised where things remain in statu quo, but not so as to affect legal rights vested in third persons. Rex v. Amery, 2 Term Rep. 569. This is a personal trust. and prerogative in the king for a fountain of bounty and grace to his subjects, as he observes them deserving or useful to the public, which he can, neither by grant, or otherwise, extinguish : per Holt, C. J., Ld. Raym. 214. As he cannot but have the administration of public revenge, so he cannot but have a power to remit it by his pardon when he judges proper. Idem.] in this cursory manner, to shew the constitutional grounds of this power of the crown, and how regularly connected all the links are in this vast chain of prerogative. In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative. For which reason, by the statute of 16 Car. I, c. 10, which abolished the court of star chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law which was most agreeable to the prince or his officers. Nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state. And, indeed, that the absolute power claimed and exercised in a neighbouring nation is more tolerable than that of the eastern empires, is in great measure owing to their having vested the judicial power in their parliaments, a body separate and distinct from both the legislative and executive; and, if ever that nation recovers its former liberty, it will owe it to the efforts of those assemblies. In Turkey, where every thing is centered in the [*270 ] sultan or his ministers, *despotic power is in its meridian, and wears a more dreadful aspect. A consequence of this prerogative is the legal ubiquity of the king. His majesty in the eye of the law is always present in all his courts, though he cannot personally distribute justice. (z) His judges are the mirror by which the king's image is reflected. It is the regal office, and not the royal person, that is always present in court, always ready to undertake prosecutions, or pronounce judgment, for the benefit and protection of the subject. And from this ubiquity it follows, that the king can never be nonsuit; (a) for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in court. (22] For the same reason, also, in the forms of legal proceedings, the king is not said to appear by his attorney, as other men do; for in contemplation of law he is always present in court. (b) From the same original, of the king's being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. These proclamations have then a binding force, when, (as Sir Edward Coke observes,) (c) they are grounded upon and enforce the laws of the realm. For, though the making of laws is entirely the work of a distinct part, the legislative branch of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magistrate. And therefore his constitutions or edicts concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary. Thus the established law is, that the king may prohibit any of his subjects from leaving the realm: a proclamation therefore forbidding this in general for three weeks, by laying an [ *271 ] embargo upon all shipping in time of war, (d) will be equally binding (2) Fortesc. c. 8. 2 Inst. 186. (d) 4 Mod. 177, 179. (a) Co. Litt. 139. (b) Finch. 1. 81. (c) 3 Inst. 162. (22) [But the attorney-general may enter a non vult prosequi, which has the effect of a nonsuit. Co. Litt. 139.] as an act of parliament, because founded upon a prior law. But a proclamation to lay an embargo in time of peace upon all vessels laden with wheat (though in a time of a public scarcity) being contrary to law, and particularly to statute 22 Car. II, c. 13, the advisers of such a proclamation, and all persons acting under it, found it necessary to be indemnified by a special act of parliament, 7 Geo. III, c. 7. A proclamation for disarming papists is also binding, being only in execution of what the legislature has first ordained: but a proclamation for allowing arms to papists, or for disarming any protestant subjects will not bind; because the first would be to assume a dispensing power, the latter a legislative one; to the vesting of either of which in any single person the laws of England are absolutely strangers. Indeed by the statute 31 Hen. VIII, c. 8, it was enacted, that the king's proclamations should have the force of acts of parliament; a statute which was calculated to introduce the most despotic tyranny, and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed in the minority of his successor, about five years after. (e) (23) IV. The king is likewise the fountain of honour, of office, and of privilege; and this in a different sense from that wherein he is styled the fountain of justice; for here ne is really the parent of them. It is impossible that government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions; and the law supposes that no one can be so good a judge of their several merits and services, as the king himself who employs them. It has, therefore, intrusted him with the sole power of conferring dignities and honours, in confidence that he will bestow them upon none but such as deserve them. And therefore all degrees of *nobility, of knighthood, and other titles, are received by immediate grant from the crown: either expressed in [*272 ] writing by writs or letters patent, as in the creation of peers and baronets; or by corporeal investiture, as in the creation of a simple knight. (24) From the same principle also arises the prerogative of erecting and disposing of offices; for honours and offices are in their nature convertible and synonymous. All offices under the crown carry in the eye of the law an honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those that are most able to execute them. And on the other hand, all honours in their original had duties or offices annexed to them; an earl, comes, was the conservator or governor of a county; and a knight, miles, was bound to attend the king in his wars. For the same reason, therefore, that honours are in the disposal of the king, offices ought to be so likewise; and as the king may create new titles, so may he create new offices: but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices; for this would be a tax upon the subject, which cannot be imposed but by act of parliament. (f) Wherefore, in 13 Hen. IV, a new office being created by the king's letters patent for measuring cloths, with a new fee for the same, the letters patent were, on account of the new fee, revoked and declared void in parliament. Upon the same, or a like reason, the king has also the prerogative of conferring privileges upon private persons. Such as granting place or precedence to (23) [Proclamations, and what are often equivalent to them, orders of the privy council, in respect of subjects of revenue, sometimes issue upon public grounds; but as these are always examinable in parliament, their abuse for any continued period can hardly occur; yet, being the assumption of a dispensing power, vigilance on their promulgation cannot be too strict.] (24) Titles of nobility are forbidden to be granted by the United States, or by any of the individual states, and no person holding any office of trust or profit under them, can, without the consent of congress, accept of any present, emolument, office or title of any kind whatever, from any king, prince or foreign state. Const. of U. S., art. 1, §§ 9 and 10. any of his subjects, (25) as shall seem good to his royal wisdom: (g) or such as converting aliens, or persons born out of the king's dominions into denizens; (26) whereby some very considerable privileges of natural-born subjects are conferred upon them. Such also is the prerogative of erecting corporations; whereby a number of private persons are united and knit together, and enjoy [*273] many liberties, powers and immunities in their politic capacity, which they were utterly incapable of in their natural. (27) Of aliens, denizens, natural-born, and naturalized subjects, I shall speak more largely in a subsequent chapter; as also of corporations at the close of this book of our commentaries. I now only mention them incidentally, in order to remark the king's prerogative of making them; which is grounded upon this foundation, that the king, having the sole administration of the government in his hands, is the best and the only judge in what capacities, with what privileges, and under what distinctions, his people are the best qualified to serve and to act under him. A principle which was carried so far by the imperial law, that it was determined to be the crime of sacrilege, even to doubt whether the prince had appointed proper officers in the state. (h) V. Another light in which the laws of England consider the king with regard to domestic concerns, is as the arbiter of commerce. By commerce, I at present mean domestic commerce only. It would lead me into too large a field, if I were to attempt to enter upon the nature of foreign trade, its privileges, regulations, and restrictions; and would be also quite beside the purpose of these commentaries, which are confined to the laws of England; whereas no municipal laws can be sufficient to order and determine the very extensive and complicated affairs of traffic and merchandize; neither can they have a proper authority for this purpose. For, as these are transactions carried on between subjects of independent states, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the law merchant or lex mercatoria, which all nations agree in, and take notice of. And in particular it is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries; and that often, even in matters relating to domestic trade, as for instance, with regard to the drawing, the acceptance, and the transfer of inland bills of exchange. (i) *With us in England, the king's prerogative, so far as it relates to mere [*274] domestic commerce, will fall principally under the following articles: First, the establishment of public marts, or places of buying and selling, such as markets and fairs, with the tolls thereunto belonging. These can only be set up by virtue of the king's grant, or by long and immemorial usage and prescription, which presupposes such a grant. (k) The limitation of these public resorts to such time and such place as may be most convenient for the neighbourhood, forms a part of economics, or domestic polity, which, considering the kingdom as a large family, and the king as the master of it, he clearly has a right to dispose and order as he pleases. (g) 4 Inst. 361. (h) Disputare de principali judicio non oportet; sacrilegii enim instar est, dubitare an is dignus sit, quem elegerit imperator. C. 9, 29, 3. (i) Co. Litt. 172. Ld. Raym. 181, 1542. (k) 2 Inst. 220. (25) [The king by the common law could have created a duke, earl, &c., and could have given him precedence before all others of the same rank, a prerogative not unfrequently exercised in ancient times; but it was restrained by the 31 Hen. VIII, c. 10, which settles the place or precedence of all the nobility and great officers of state.] (26) This power in the United States is conferred upon congress. Const. art. 1, § 8. (27) In America, the power to create corporations is a legislative power, and is not conferred upon the general government in express terms in the constitution, but has been exercised as auxiliary to powers expressly given; as in the incorporation of the United States bank, and in the act under which the present national banks are organized. See McCulloch v. Maryland, 4 Wheat. 316. Within the District of Columbia, congress, possessing exclusive powers of legislation, may of course charter corporations. But there, as well as in the territories generally, this power is allowed to be exercised by the local legislature. In England the power to create corporations is exercised by the Legislature, and the royal prerogative is disused. |