Page images

of a kind of perjury in having violated the king's coronation oath, dicebatur fregisse juramentum regis juratum.(y) And hence also arises another *branch of the prerogative, that of pardoning offences; for it is reason

[*269 able that he only who is injured should have the power of forgiving.20 Of prosecutions and pardons I shall treat more at large hereafter, and only mention them here in this cursory manner to show the constitutional grounds of this power of the crown, and how regularly connected all the links are in the 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 Starchamber, 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 centred in

() Stiernh. de jure Goth. 1. 3, c. 3. A notion somewhat hanged for bribery, he was gaid sacramentum donim regis similar to this may be found in the Mirror, c. 1, & 5. And fregisse. Rot. Purl. 25 Edw. III. BO also, when the Chief Justice Thorpe was condemned to be

20 “ This high prerogative is inseparably incident to the crown, and the king is intrusted with it upon especial 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 possibly make so perfect as to suit every particular case.” Co. Litt. 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 vs. 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. De Lolme in his treatise on the English constitution says that “the reason the king is deemed to be directly concerned in all public offences, and therefore that prosecutions for them are to be carried on in his name, arises from the circumstance of the king's being considered the universal proprietor of the kingdom.” Bk. 1, c. 5. This principle reduces the people in theory from that state of freedom and independence which they practically enjoy, to the degraded level of a Turkish despotism, where in truth the monarch acts as though he were proprietor of the kingdom, and indulges in the capricious enjoyment of his assumed property, whether it be the products of his subjects' industry, the natural privileges of man, or even life itself, with as little remorse as the gambler stakes his hundreds upon the hazard of the die. But this is not the true principle, for the king cannot in this country dispose of a single rood of land, or suspend the liberty of any one of his lieges for an hour, without due process of law. It is in his character of representative of the public that offences are indicted at his suit, and not as the avenger of injuries committed against himself that criminal proceedings are said to be at his suit.—CHITTY

“The President shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” Const. Ù. S. art. 2, s. 2.-SHARSWOOD.


the 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 a 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.)

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 *271]

*an embargo upon all shipping in time of war,(d) will be equally bind

ing 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 the time of public scarcity) being contrary to law, and par. ticularly 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 vinding, 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)*

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 he 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 encour

Fortesc. c. 8. 2 Inst. 186.

Co. Litt. 139. () Finch, 1, 81.

(°) 3 Inst. 162.
(4) 4 Mod. 177, 179.

Stat. 1 Edw. VI. c. 12.

21 But the attorney-general may enter a non vult prosequi, which has the effect of a nonsuit. Co. Litt. 139, CHRISTIAN.

22 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 We too strict.-CHITTY.

aged 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 and knighthood, and other titles, are

[*272 received by immediate grant from the crown: either expressed in writing, by writs or letters patent, as in the creations of peers and baronets, or by corporeal investiture, as in the creation of a simple knight.

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.3

Upon the same, or a like reason, the king has also the prerogative of confer. ring privileges upon private persons. Such as granting place or precedence to any of his subjects,24 as shall seem good to his royal wisdom:(9) or such as converting aliens, or persons born out of the king's dominions, into denizens ; 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 many liberties, powers, and immunities in their politic *capacity, which

[*273 they were utterly incapable of in their natural. 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. 25

2 Inst. 633.

()4 Inst. 361.

23 No title of nobility can be granted by any State or by the United States; and no person holding any office of profit or trust under them shall, without consent of Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state. Const. U. S. art. 1, s. 9, 10. In case any alien, applying to be admitted to citizenship, shall have borne any hereditary title or been of any of the orders of nobility in the kingdom or state from which he came, he shall at the time of his admission make an express renunciation of his title or order of nobility in the court where his application is made, which shall be recorded in the said court. Act of Congress 14 April, 1802, s. 1.

The power of appointment to office under the United States is vested in general in the President, by and with the advice and consent of the Senate; the right of nomina tion being in the President. But Congress may by law vest the appointment of such inferior officers as they may think proper in the President alone, in the courts of law, or in the heads of department. Const. U. S. art. 2, s. 2.SHARSWOOD.

24 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 set. tles the place or precedence of all the nobility and great officers of state. This statute does not extend to Ireland, where the king still retains his prerogative without any restriction.-CHRISTIAN.

25 The power to establish a uniform rule of naturalization is vested in Congress. Const. U. S. art. 2, s. 8. The prevailing opinion is that this power is exclusive, in other words, that when Congress have exercised it the States are precluded from doing the same thing. 1 Kent's Com. 424. There is no express power in Congress to erect corporations. VOL. I.-14.


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. 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 merchandise; 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 (1) 26 *274]

*With us in England, the king's prerogative, so far as it relates to

mere domestic commerce, will fall principally under the following artiFirst, 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.

Secondly, the regulation of weights and measures. These, for the advantage of the public, ought to be universally the same throughout the kingdom; being the general criterions which reduce all things to the same or an equivalent value. But, as weight and measure are things in their nature arbitrary and uncertain, it is therefore expedient that they be reduced to some fixed rule or standard; which standard it is impossible to fix by any written law or oral proclamation; for no man can, by words only, give another an adequate idea of a foot-rule, or a pound-weight. It is therefore necessary to have recourse to soine visible, palpable, material standard; 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, as in Normandy it belonged to the duke.(1) This standard was originally kept at


(*) Disputare de principali judicio non oportet ; sacrilegii enim instar est, dubitare an is dignus sit, quem elegerit inperator, C. 9, 20, 3.

Co. Litt. 172. Ld. Raym. 181. 1542.
* 2 Inst. 220.
(4) Gr. Coustum, c. 16.

A proposition to delegate to them such a power was rejected in the federal convention. Whether Congress can grant a charter as an incident to the powers granted, and a means of carrying them into execution, is a much-vexed question, upon which the constitutionality of a federal bank depends.-SHARSWOOD.

26°“ Congress have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” Const. U. S. art. 1, s. 8. Whether tbis is or is not a power exclusive of the several States, is a question which does not yet appear to ne fully settled. The Passenger cases, 7 Howard, S. C. Rep. 286.-SHARSWOOD.

Winch esto., and we find in the laws of king Edgar,(m) near . century before the conquurii, an injunction that one measure, which was kept at Winchester, should be observed throughout the realm. Most nations have regulated thó standard of measures of length by *comparison with the parts of the human body; as the palm, the hand, the span, the foot, the cubit, the

[ *275 ell, (ulna, or arm,) the pace, and the fathom. But, as these are of different dimension in men of different proportions, our ancient historians(n) inform lis, that a new standard of longitudinal measure was ascertained by king Henry the First, who commanded that the ulna, or ancient ell, which answers to the modern yard, should be made of the exact length of his own arm. And, one standard of measures of length being gained, all others are easily derived from thence; those of greater length by multiplying, those of less by subdividing, that original standard. Thus, by the statute called compositio ulnarum et perti. carum, five yards and a half make a perch; and the yard is subdivided into three feet, and each foot into twelve inches; which inches will be each of the length of three grains of barley. Superficial measures are derived by squaring those of length: and measures of capacity by cubing them. The standard of weights was originally taken from corns of wheat, whence the lowest denomination of weights we have is still called a grain; thirty-two of which are directed, by the statute called compositio mensurarum, to compose a pennyweight, whereof twenty make an ounce, twelve ounces a pound, and so upwards. And upon these principles the first standards were made; which, being originally so fixed by the crown, their subsequent regulations have been generally made by the king in parliament. Thus, under king Richard I., in his parliament holden at Westminster, A.D. 1197, it was ordained that there should be only one weight and one measure throughout the kingdom, and that the custody of the assize, or standard of weights and measures, should be committed to certain persons in every city and borough;0) from whence the ancient office of the king's aulnager seems to have been derived, whose duty it was, for a certain fee, to measure all cloths made for sale, till the office was abolished by the statute 11 & 12 W. III. c. 20. In king John's time, this ordinance of king Richard was *frequently dispensed with for money,(p)

[*276 which occasioned a provision to be made for enforcing it, in the great charters of king John and his son.(9) These original standards were called pondus regis,(r) and mensura domini regis ;(8) and are directed by a variety of subsequent statutes to be kept in the exchequer, and all weights and measures to be made conformable thereto.(t) But, as Sir Edward Coke observes,(u) though this hath so often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude.?? (-) Cap. 8.

(*) Plac. 35 Edw. I. apud Cowel's Interpr. tit. pondrus ( Will. Malmsb. in vita Hen. I. Spelm. Hen. I. apud regis. "The king's weight; measure of our lord the king." Wilkins, 299.

(6) Flet. 2, 12. (*) Hoved. Matth. Paris.

14 Edw. III. st. 1, c. 12. 25 Edw. III. st. 5, c. 16. 16

P Hoved. A.D. 1201. () 9 llen. III. c. 25.

Ric. II. c. 3. 8 Hen. VI. c. 5. 11 Hen. VI. c. 8. 11 Hen.
VII. C. 4. 22 Car. II. c. 8.

(*) 2 Inst. 41.

7. The regulation of weights and measures cannot with propriety be referred to the king's prerogative; for from magna charta to the present time there are above twenty acts of parliament to fix and establish the standard and uniformity of weights and measures. Two important cases upon this subject have lately been determined by the court of king's bench: one was, that although there had been a custom in a town to sell butter by eighteen ounces to the pound, yet the jury of the court-leet were not justified in seizing the butter of a person who sold pounds less than that, but more than sixteen ounces each, the statutable weight. 3 T. R. 271. In the other it was determined that no practice or usage could countervail the statutes 22 Car. II. c. 8, and 22 & 23 Car. II. c. 12, which enact, that if any person shall either sell or buy grain or salt by any other nieasure than the Winchester bushel, he shall forfeit forty shillings, and also the value of the grain or salt so sold or bought; one half to the poor, the other to the informer. The King and Major, 4 T. R. 750. 5 T. R. 353.-Christian.

The power to fix the standard of weights and measures is in Congress. Const. U. S. art. 1, s. 8. This power has not as yet been exercised except in regard to the customhouses of the United States, and by distributing a complete set of all the weights and

« PreviousContinue »