Gambar halaman

anciently used to alarm the country in case of the approach of an enemy, and all of them are useful in guiding vessels at sea by night, as well as by day. The king has the power to cause them to be erected in fit and convenient places, as well upon the lands of the subject, as upon the demesnes of the crown. This power is usually vested by him in letters patent to the high admiral.

Ne Exeat Regno. The king may prohibit the exportation of arms or ammunition, under severe penalties. He may also compel his subjects to remain within the realm, or recall them when beyond seas. By the common law, however, every subject may leave the realm, without obtaining the king's permission. At one time, some by reason of their stations, were under a perpetual prohibition from going abroad, without license obtained; among whom were peers, on account of their being counsellors of the crown, all knights, who were bound to defend the kingdom from invasions, all ecclesiastics, on account of their attachment at one time to the see of Rome, all artificers, lest they should instruct foreigners to rival us in their manufactures. In the reign of Edward III, an act was passed, forbidding all persons to go abroad without license, except only the lords and great men of the realm, and true and notable merchants, and also the king's soldiers. But this act was repealed under James I, and now any one can go abroad when he pleases. Yet undoubtedly if the king, by writ of ne exeat regno, under his great or privy seal, thinks proper to prohibit him from so doing, or if he send a writ to a man, when abroad, commanding his return, and 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.

3. Fountain of Justice. The king is the fountain of justice, and general conservator of the peace of the kingdom. He is not the author or original, but only the distributor of justice. He is the steward of the public, to dispense justice to whom it is due. The original power of judicature, by the fundamental principles of society, is lodged in the society at large, but as it would be impracticable for the people in their collective capacity to render justice to individuals, therefore every nation has committed that power to magistrates, who with more expedition can hear and determine complaints, and in England this power is with the king and his substitutes. He, therefore, bas alone the right of erecting courts of judicature, as he possesses the sole executive power, in which he is assisted by courts acting under his authority. Hence all jurisdictions of courts are derived from the crown; their proceedings were generally in the king's name; they pass under his seal, and are executed by his officers.

Jurisdiction of Judges. It is probable in early times, our kings often heard and determined causes between party and party. But at present, by long usage, our kings have delegated their whole judicial power to the judges of their several courts, which courts are the grand depositories of the fundamental laws of the kingdom, and have gained a known jurisdiction, regulated by certain established rules, which the crown cannot now alter, but by act of parliament.

Duration of the Judicial Office. To maintain the dignity of the judges in the superior courts, it was enacted that their commissions shall be made and their salaries established. They may be removed by action of parliament, otherwise they are continued in their offices during their good behavior, notwithstanding any demise of the crown, which formerly vacated their seats.

In Criminal Cases. In criminal proceedings, it would be an absurdity, if the king personally sat in judgment, because in regard to these matters 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. Though in their consequences they generally seem, except in the case of treason, and a few other crimes, to be rather offences against the kingdom than the king, yet as the public has delegated all its powers, with regard to the execution of its laws, to one visible magistrate, affronts to that power and breaches of those rights are offences against him to whom they are so delegated by the public. He is, therefore, the proper person to prosecute all public offences and breaches of the peace, being the person injured. Under the Gothic constitution, in cases of a 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.

Pardoning Power. Another branch of the prerogative is that of pardoning offences, for it is reasonable, that he only who

[ocr errors]

is injured shall have the power of forgiving. We shall treat of this hereafter.

Judicial Power Distinct. 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 preservation of the public liberty, which cannot exist long in any state, unless the administration of common justice be 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. Nothing is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state.

Legal Ubiquity of the King. His majesty, in the eye of the law, is always present in all of his courts, though he cannot personally distribute justice. His judges are the mirror, in 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 protection of the subject. From his ubiquity, it follows, that the king can never be non-suit, which is the desertion of a suit or action, by the non-appearance of the plaintiff in court. In the forms of legal proceedings, the king is not said to appear by his attorneys, as other men do, for in contemplation of law he is always present in court.

Proclamations. As the fountain of justice, we may deduce the prerogative of issuing proclamations, which is vested in the king alone. These proclamations have a binding force, and enforce the laws of the realm. For though the making of laws is entirely the work of 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. Therefore, his edicts or proclamations are binding upon the subject, where they neither contradict the old laws, nor tend to establish new ones, but only to enforce the execution of such laws as are already in being, as the king deems necessary.

4. Fountain of Honor, Office and Privilege. He is really the parent of them. It is impossible that government can be maintained, without a due subordination of rank, that the people shall know and distinguish those set over them, in order to yield them their due respect. Also that the officers themselves, encouraged by emulation, 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, entrusted him with the sole power of conferring dignities and honors on those who deserve them.

Offices and Honors. The king has the prerogative of erecting and disposing of offices. All honors in their original had offices and duties annexed to them. An earl, comes, was the governor of a county, and a knight, miles, was bound to attend the king in his wars. For the same reason that honors 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 taxes can only be imposed by act of parliament.

Privileges Conferred. The king has the prerogative of conferring privileges upon private persons. Such as granting precedence to any of his subjects, or converting aliens into denizens. Such also is the prerogative of erecting corporations, whereby a number of private persons are united, and enjoy many liberties, powers and immunities in their politic capacity, which they were utterly incapable of in their natural. The king, having the sole administration of the government in his hands, is the best and 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. Under the imperial law, it was the crime of sacrilege, even to doubt whether the prince had appointed proper officers in the state.

5. The Arbitrer of Commerce. By this is meant domestic commerce only. As to transactions carried on between subjects of independent states, the municipal laws of one will not be regarded by the other. For which reasons, the affairs of commerce are regulated by a law of their own, called the law merchant, lex mercatoria, which all nations acquiesce in. Even some matters relating to domestic trade come under the jurisdiction of this law merchant, as for instance, the drawing, acceptance and transfer of inland bills of exchange.

Public Marts. These are places of buying and selling, such as markets and fairs, with the tolls thereunto belonging. They can only be set up, by virtue of the king's grant or by immemorial usage and prescription, and he has a right to direct and order them as he pleases.

Weights and Measures. The regulation of these should be universally the same through the kingdom, being the general criteria, which reduce all things to the same or an equivalent value. Weight and measure being in their nature arbitrary and uncertain, it is expedient that they be reduced to some fixed rule or standard. This standard should be visible, palpable and material, by forming a comparison with which, all weights and measures may be reduced to one uniform size, and the prerogative of fixing this standard, our ancient law vested in the crown. This standard was originally kept at Winchester.

Standard of Length. Most nations have regulated their standard of measures by comparison with the parts of the human body, as the palm, the hand, the span, the foot, the cubit, the ell or arm, the pace and the fathom. But as these are of different dimensions in men of different proportions, a new standard of measure was ascertained by Henry I, who commanded that the ell, which answers to the modern yard, should be the exact length of his own arm. One standard of measure of length being gained, all others are easily derived from thence. Thus five and a half yards make a perch, and one-third of a yard is a foot. An inch was the length of three grains of barley.

Measures, Superficial and of Capacity. Superficial. measures are derived, by squaring those of length; and measures of capacity, by cubing them.

Standard of Weights. This was originally taken from grains of wheat, whence the lowest denomination is termed a grain, thirty-two of which compose a penny-weight, whereof twenty make an ounce, and twelve ounces a pound. And upon these principles, the first standards were made, being originally so fixed by the crown, and subsequently thus regulated by parliament.

Money. As money is the medium of commerce, it is the

« SebelumnyaLanjutkan »