doubted right of his majesty, and his royal predeceffors, kings and queens of England; and that both or either house of parliament cannot, nor ought to, pretend to the fame. THIS ftatute, it is obvious to obferve, extends not only to fleets and armies, but also to forts, and other places of ftrength, within the realm; the fole 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 neceffitas: fc. pontis reparatio, arcis conAtructio, et expeditio contra hoftem. And this they were called upon to do fo often, that, as fir Edward Coke from M. Paris affures us, there were in the time of Henry II. 1115 castles fubfifting in England. The inconveniencies of which, when granted out to private fubjects, the lordly barons of those times, were feverely 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 caftellorum" but it was felt by none more fenfibly than by two fucceeding 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 fuffering them to be rebuilt in a fortified manner: and fir Edward Coke lays it down, that no fubject can build a castle, or house of strength imbattled, or other fortrefs defenfible, without the licence of the king; for the danger which might enfue, if every man at his pleasure might do it. It is partly upon the fame, and partly upon a fifcal foundation, to fecure his marine revenue, that the king has the b 2 Inft. 30. < Cowel's Interpr. tit. caftellorum operatio. Seld. Jan. Angl. 1. 42. de Inft. 31. prerogative prerogative of appointing ports and havens, or fuch places only, for perfons and merchandize to pafs 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 fubject to the fovereign of the state. And in England it hath always been holden, that the king is lord of the whole fhore, and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm and therefore, fo early as the reign of king John, we find fhips feised by the king's officers for putting in at a place that was not a legal port. These legal ports were undoubtedly at firft affigned by the crown; fince to each of them a court of portmote is incident, the jurifdiction of which muft flow from the royal authority: the great ports of the fea are also referred to, as well known and established, by ftatute 4 Hen. IV. c. 20. which prohibits the landing elsewhere under pain of confifcation: and the statute 1 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 franchife of havens and ports, yet he had not the power of refumption, or of narrowing and confining their limits when once established; but any perfon had a right to load or difcharge his merchandize in any part of the haven: whereby the revenue of the cuftoms was much impaired and diminished, by fraudulent landings in obfcure and private corners. This occafioned the ftatutes of 1 Eliz. c. 11. and 13 & 14 Car. II. c. 11. §. 14. which enable the crown by commiffion to afcertain the limits of all ports, and to affign proper wharfs and quays in each port, for the exclufive landing and loading of merchandize. THE erection of beacons, light-houfes, and fea-marks, is also a branch of the royal prerogative: whereof the first was antiently used in order to alarm the country, in cafe of the approach of an enemy; and all of them are fignally useful in guiding and preserving vessels at fea by night as well as by day. For this purpose the king hath the exclufive power, by commiffion under his great feal', to caufe them to be erected in fit and convenient places", as well upon the lands of the subject as upon the demefnes of the crown: which power is usually vefted 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 fea-marks wherever they shall think them neceffary; and if the owner of the land or any other perfon fhall destroy them, or fhall take down any steeple, tree, or other known fea-mark, he fhall forfeit 100/, or in cafe of inability to pay it, fhall 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 likewife the right which the king has, whenever he sees proper, of confining his fubjects to stay within the realm, or of recalling them when beyond the feas. 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 exprefsly 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 feas, or out of the realm, without licence; and, if he do the contrary, he shall be punished for disobeying the king's command. Some perfons there antiently were, that, by reafon 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 Inst. 204. 4 Inft. 148. m Rot. Clauf. 1 Ric. II. m. 42 Pryn. on 4 Inft. 136. n Sid. 158. 4 Init. 149. the the crown; all knights, who were bound to defend the kingdom from invafions; all ecclefiaftics, who were exprefsly confined by the fourth chapter of the conftitutions of Clarendon, on account of their attachment in the times of popery to the fee of Rome; all archers and other artificers, left they fhould instruct foreigners to rival us in their several trades and manufactures. This was law in the times of Britton P, who wrote in the reign of Edward I: and fir Edward Coke gives us many inftances to this effect in the time of Edward III. In the fucceeding reign the affair of travelling wore a very different afpect: an act of parliament being made', forbidding all perfons 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 foldiers. But this act was repealed by the ftatute 4 Jac. I. c. 1. And at present every body has, or at least affumes, 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 fo doing; or if the king fends a writ to any man, when abroad, commanding his return; and in either cafe the fubject difobeys; it is a high contempt of the king's prerogative, for which the offender's lands fhall be feifed till he return; and then he is liable to fine and imprisonment. III. ANOTHER capacity, in which the king is confidered in domeftic affairs, is as the fountain of juftice and general confervator of the peace of the kingdom. By the fountain of justice the law does not mean the author or original, but only the diflributor. Juftice 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 fpring, but the refervoir; from whence right and equity are conducted, by a thoufand channels, to every individual. The original power of judicature, by the fundamental principles of fociety, is lodged in the fociety at large: but as it would be impracticable to render complete juftice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain felect magiftrates, who with more ease and expedition can hear and determine complaints; and in England this authority has immemorially been exercifed by the king or his fubftitutes. He therefore has alone the right of erecting courts of judicature: for, though the conftitution of the kingdom hath intrufted him with the whole executive power of the laws, it is impoffible, as well as improper, that he should perfonally carry into execution this great and extenfive truft: it is confequently neceffary, that courts fhould be erected, to affift him in executing this power; and equally neceflary, that, if erected, they should be erected by his authority. And hence it is, that all jurifdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king's name, they pass under his feal, and are executed by his officers. It is probable, and almost certain, that in very early times, before our conftitution arrived at it's full perfection, our kings in perfon often heard and determined caufes between party and party. But at prefent, by the long and uniform ufage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depofitaries of the fundamental laws of the kingdom, and have gained a known and stated jurifdiction, 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 ftatute 13 W. III. c. 2. that their commiffions fhall be made (not, as formerly, durante bene placito, but) quamdiu bene fe gefferint, and their falaries afcertained and established; but that it may be lawful to remove them on the addrefs of both houfes of parliament. And now, by the noble improvements of that law in the ftatute of 1 Geo. III. c. 23. enacted at the earneft recommendation of u 2 Hawk. P. C. 2. the |