Grotius j, why according 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 than 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; whose 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 highest to the lowest, are bound by it. And wherever the right refides of beginning a national war, there also must 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 restrain 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 potentates, our laws have in fome refpects armed the subject 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 state of hoftilities, and generally ending in a formal denunciation of war. Thefe letters are grantable by the law of nations*, whenever the fubjects of one state are oppreffed and injured by thofe of another; and juftice is denied by that ftate to which the oppreffor belongs. In this cafe letters of marque and reprifal (words ufed as fynonimous; and fignifying, the latter a taking in return, the former the paffing the frontiers in order to fuch taking) may be obtained, in order to feife the bodies or goods of the fubjects of the offending state, until fatisfaction be made, wherever they happen to be found. And indeed this cuftom of reprisals feems dictated by nature herfelf; for which reason we find in the most antient times very notable instances of it. But here the neceffity is obvious of calling in the fovereign power, to determine when reprisals may be made; elfe every private sufferer would be a judge in his own cause. In putfuance of which principle, it is with us declared by the ftatute 4 Hen. V. c. 7. that, if 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 sufferer must first apply to the lord privy-feal, and he shall make out letters of request under the privy-seal; and, if, after such request of fatisfaction made, the party required do not within convenient time make due fatisfaction or restitution to the party grieved, the lord chancellor fhall make him out letters of marque under the great feal; and by virtue of these he may attack and seise 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 ", that it is left in the power of all ftates, to take fuch meafures about the admission of strangers, as they think convenient; those being ever excepted who are driven on the coafts by neceflity, or by any cause that deferves pity or compaffion. Great tenderness 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 admiffion of strangers who come fpontaneoufly. For fo long as their nation continues at peace with ours, and they themselves behave peaceably, they are under m See the account given by Neftor, in the eleventh book of the Iliad, of the reprifals made by himself 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 Pylan kingdom; out of which booty the king took three hundred head of cattle for his own de mand, and the reft were equitably di vided among the other creditors. R 3 n Law of N. and N. b. 3. c. 3. §. 9. the the king's protection; though liable to be fent home whenever the king fees occafion. But no subject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon the high feas, or fend his goods and merchandize from one place to another, without danger of being feifed by our fubjects, unless he has letters of fafeconduct; which by divers antient statutes must be granted under the king's great feal and inrolled in chancery, or else are of no effect: the king being fuppofed the best judge of fuch emergencies, as may deserve exception from the general law of arms. But paffports under the king's fignmanual, or licences from his embaffadors abroad, are now more ufually obtained, and are allowed to be of equal validity. INDEED the law of England, as a commercial country, pays a very particular regard to foreign merchants in innume rable inftances. One I cannot omit to mention that by magna carta it is provided, that all merchants (unless publicly prohibited before-hand) fhall have fafe-conduct to depart from, to come into, to tarry in, and to go through England, for the exercise of merchandize, without any unreafonable impofts, except in time of war: and, if a war breaks out between us and their country, they shall be attached (if in England) without harm of body or goods, till the king or his chief justiciary 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 Stiernhook, that it was a maxim among the Goths and Swedes, "quam legem exteri nobis pofuere, eandem illis ponemus." But it is fomewhat extraor dinary, that it should 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 English have made 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 20 Hen. VI. c. 1. P c. 30. 9 de jure Sueon. 1. 3. c. 4. "the "the protection of foreign merchants one of the articles of "their national liberty." But indeed it well juftifies another observation which he has made, "that the English know "better than any other people upon earth, how to value at "the fame time thefe three great advantages, religion, li«berty, 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 dishonorable employment, and prohibited the exercise thereof to perfons of birth, or rank, or fortune: and equally different from the bigotry of the canonifts, who looked on trade as inconfiftént with chriftianity", and determined at the council of Melfi, under pope Urban II, A. D. 1090, that it was impoffible with a fafe confcience to exercise any traffic, or follow the profeffion of the law ". THESE are the principal prerogatives of the king refpecting this nation's intercourse with foreign nations; in all of which he is confidered as the delegate or representative 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 legislative power; and, as fuch, has the prerogative of rejecting fuch provisions in parliament, as he judges improper to be paffed. The expediency of which conftitution has before been evinced at large. I fhall only farther remark, that the king is not bound by any act of parliament, unless he be named therein by special and particular words. The most general words that can be devised (" any person or persons, bodies "politic, or corporate, &c.") affect not him in the least, if r Sp. L. 20. 13. s Ibid. 20. 6. Nobiliores natalibus, et bonorum luce corfpicuos, et patrimonio ditiores, perniciofum urbibus mercimonium exercere probibemus. C. 4. 63. 3. u Homo mercator vix aut nunquam poteft Deo placere ; et ideo nullus chriftianus debet effe mercator; aut fi voluerit effe, projiciatur de ecclefia Dei. Decret. 1. 88. 11. w Falfa fit poenitentia [lairi] cum penitus ab officio curiali vel negotiali non recedit, quae fine peccatis agi ulla ratione non praevalet. A&.Concil. apud Baron, c.16. x ch. 2. pag. 154. R 4 they they may tend to reftrain or diminish any of his rights or interefts. For it would be of moft mifchievous confequence to the public, if the ftrength of the executive power 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 exprefsly made for the preservation of public rights and the fuppreffion of public wrongs, and does not interfere with the established rights of the crown, it is faid to be binding as well upon the king as upon the subject 2; and, likewife, the king may take the benefit of any particular act, though he be not efpecially named 2. II. THE king is confidered, in the next place, as the ge◄ neraliffimo, or the firft in military command, within the kingdom. The great end of fociety is to protect the weaknefs of individuals by the united strength of the community: and the principal ufe of government is to direct that united strength in the best and most effectual manner, to answer the end propofed Monarchical government is allowed to be the fittest of any for this purpofe: it follows therefore, from the very end of it's institution, that in a monarchy the military power must be trusted in the hands of the prince, In this capacity therefore, of general of the kingdom, the king has the fole power of raifing and regulating fleets and armies. Of the manner in which they are raised and regulated I fhall fpeak more, when I come to confider the military state. We are now only to confider the prerogative of enlifting and of governing them: which indeed was disputed and claimed, contrary to all reason and precedent, by the long parliament of king Charles I; but, upon the restoration of his 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 majesty'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 un y 11 Rep. 74. 2 Ibid. 71. a 7 Rep. 32. doubted |