Page images

doubted right of his majesty, and his royal predecessors, kings and queens of England; and that both or either house of parliament cannot, nor ought to, pretend to the same.

This statute, it is obvious to observe, extends not only to fleets and armies, but also to forts, and other places of strength, within the realm ; the sole prerogative as well of erecting, as manning and governing of which, belongs to the king in his capacity of general of the kingdom !: and all lands were formerly subject to a tax, for building of castles 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 ancestors the trinoda necessitas : sc. pontis reparatio, arcis conAructio, et expeditio contra hostem. And this they were called upon to do so often, that, as sir Edward Coke from M. Pașis assures us“, there were in the time of Henry II. 1115 castles sublisting in England. The inconveniencies of which, when granted out to private subjects, the lordly barons of those times, were severely felt by the whole kingdom ; for, as William of Newburgh remarks in the reign of king Stephen, erant in Anglia quodammodo tot reges vel potius tyranni, quot domini castellorum :" but it was felt by none more sensibly than by two succeeding princes, king John and king Henry III. And therefore, the greatest part of them being demolished in the barons' wars, the kings of after-times have been very cautious of suffering them to be rebuilt in a fortified manner: and fir Edward Coke lays it down“, that no subject can build a castle, or house of strength imbattled, or other fortress defensible, without the licence of the king; for the danger which might ensue, if every man at his pleasure might do it.

It is partly upon the same, and partly upon a fiscal foundation, to secure his marine revenue, that the king has the

0 2 Inft. 30.

c Cowel's Interpr. tit. caftellorum opee ratie. Seld. Jan. Anglo 1. 42.

de Inst. 31.
e 1 Inft. 5.

prerogative prerogative of appointing ports and havens, or such places only, for persons and merchandize to pass into and out of the realm, as he in his wisdom fees proper. By the feodal law all navigable rivers and havens were computed among the regalia', and were subject to the sovereign of the state. And in England it hath always been holden, that the king is lord of the whole shores, and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm h: and therefore, so early as the reign of king John, we find ships feised by the king's officers for putting in at a place that was not a legal port i. These legal ports were undoubtedly at first assigned by the crown; fince to each of them a court of portmote is incident", the jurisdiction of which must flow from the royal authority : the great ports of the sea are also referred to, as well known and established, by statute 4 Hen. IV. c. 20. which prohibits the landing elsewhere under pain of confiscation : and the statute i Eliz. c. 11. recites, that the franchise of lading and discharging had been frequently granted by the crown.

But though the king had a power of granting the franchise of havens and ports, yet he had not the power of resumption, or of narrowing and confining their limits when once established; but any person had a right to load or discharge his merchandize in any part of the haven: whereby the revenue of the customs was much impaired and diminished, by fraudulent landings in obscure and private corners. This occasioned the statutes of i Eliz. c. 11. and 13 & 14 Car. II. c. 11. §. 14. which enable the crown by commission to ascertain the limits of all ports, and to assign proper wharfs and quays in each port, for the exclusive landing and loading of merchandize.

The erection of beacons, light-houses, and sea-marks, is also a branch of the royal prerogative : whereof the first was

f 2 Feud. . 56. Crag. 1, 15. 15.
& F. N. B. 113
h Day. g. 56.

i Madox. hist. exch. 530. * 4 Inft. 148.


antiently used in order to alarm the country, in case of the approach of an enemy; and all of them are signally useful in guiding and preserving vessels at sea by night as well as by day. For this purpose the king hath the exclusive power, by commission under his great seal', to cause them to be erected in fit and convenient places m, 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". And by statute 8 Eliz. C. 13. the corporation of the trinity-house are impowered to set up any beacons or sea-marks wherever they shall think them necessary; and if the owner of the land or any other person shall destroy them, or shall take down any steeple, tree, or other known sea-mark, he shall forfeit 1001, or in case of inability to pay it, shall be ipfo facto outlawed.

To this branch of the prerogative may also be referred the power vested in his majesty, by statutes 12 Car. II. C. 4. and 29 Geo. II. c. 16. of prohibiting the exportation of arms or ammunition out of this kingdom, under severe penalties : and likewise the right which the king 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, every man may go out of the realm for whatever cause he pleaseth, without obtaining the king's leave ; provided he is under no injunction of staying at home : (which liberty was expressly declared in king John's great charter, though left out in that of Henry III) but, because that every man ought of right to defend the king and his realm, therefore the king at his pleasure may command him by his writ 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 king's command. Some persons there antiently were, that, by reason of their stations, were under a perpetual prohibition of going abroad without licence obtained; among which were reckoned all peers, on account of their being counsellors of 13 Inft. 204. 4 Inft. 148,

n Sid. 158. 4 Init. 149. m Rot, Clauf. 1 Ric. II. m. 42 Pryn. o F. N. B. 85. on 4 Inft. 136.


the crown; all knights, who 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, left they should instruct foreigners to rival us in their several trades and manufactures. This was law in the times of Britton !, who wrote in the reign of Edward I: and fir Edward Coke 9 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', 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. I. c. 1. And at present every body has, or at least assumes, the liberty of going abroad when he pleases. Yet undoubtedly if the king, by writ of ne exeat regnum, under his great feal or privy feal, thinks proper to prohibit him from so doing; or if the king sends a writ to any man, when abroad, commanding his return; and in either case the subject disobeys; it is a high contempt of the king's prerogative, for which the offender's lands fhall be feised till he retạrn; and then he is liable to fine and imprisonments.

III. ANOTHIER 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! He is not the spring, but the referyoir; from whence right and equity are conducted, by a thousand channels, to every individual. The original power of judicature, by the fundamental principles of society, is

P c. 123.
9 3 Inft. 175.
I 5 Ric. II. c. 2.'

Hawk. P. C. 22.

* Ad hoc autem creatus est et eleffus, ut jupitiam fatiat univerfis. Bract. l. 3• 10. I. c. 9.


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 erected, 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 it's 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, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament". And, in order to maintain both the dignity and independence of the judges in the fuperior courts, it is enacted by the statute 13 W. III. c. 2. that their commissions shall be made (not, as formerly, durante bene placito, but) quamdiu bene fe gefferint, and their salaries alcertained 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

u'2 Hawk. P. C. 2.


« PreviousContinue »