himself upon the high seas, or send his goods and merchandize from one place to another without danger of being seized by our subjects, unless he has letters of safe-conduct; which, by divers ancient statutes, (o) must be granted under the king's great seal and enrolled in chancery, or else are of no effect: the king being supposed the best judge of such emergencies as may deserve exception from the general law of arms. But passports under the king's sign-manual, or licenses from his ambassadors abroad, are now more usually obtained, and are allowed to be of equal validity. (16)

Indeed the law of England, as a commercial country, pays a very particular regard to foreign merchants in innumerable instances. One I cannot omit to mention that by magna carta (p) it is provided, that all merchants (unless publicly prohibited before hand) shall have safe-conduct to depart from, to come into, to tarry in, and to go through England for the exercise of merchandize, without any unreasonable imposts, 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 secure in that land, they shall be secure in ours. This seems to have been a common rule of equity among all the northern nations; for we learn from Stiernhook, (q) that it was a maxim among the Goths and Swedes, "quam legem exteri nobis posuere, eandem illis ponemus." But it is somewhat extraordinary, that it should have found a place in magna carta, a mere interior treaty between the king and his natural-born subjects: which occasions the learned Montesquieu to remark with a degree of admiration, "that the English have made *the protection of foreign merchants one of the articles of their national liberty." (r) But indeed it well justifies another observation which he [*261 ] has made (s)" that the English know better than any other people upon earth, how to value at the same time these three great advantages, religion, liberty and commerce." Very different from the genius of the Roman people; who, in their manners, their constitution, and even in their laws, treated commerce as a dishonourable employment, and prohibited the exercise thereof to persons of birth, or rank, or fortune; (t) and equally different from the bigotry of the canonists, who looked on trade as inconsistent with Christianity, (u) and determined at the council of Melfi, under Pope Urban II, A. D. 1090, that it was impossible, with a safe conscience, to exercise any traffic, or follow the profession of the law. (w)

These are the principal prerogatives of the king respecting this nation's intercourse with foreign nations; in all of which he is considered as the delegate or represenative of his people. But in domestic affairs he is considered in a great variety of characters, and from thence there arises an abundant number of other prerogatives.

I. First, he is a constituent part of the supreme legislative power; and, as such, has the prerogative of rejecting such provisions in parliament as he judges improper to be passed. The expediency of which constitution has before been evinced at large. (x) I shall only farther remark, that the king is not bound by

(r) Sp. L. 20, 13.

(s) Ibid. 20, 6.

(o) 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 20 Hen. VI. c. 1. (p) C. 30. (q) De jure Sueon. l. 3. c. 4. (i) Nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercere prohibemus. C. 4. 63. 3.

(u) Homo mercator vix aut nunquam potest Deo placere: et ideo nullus Christianus debet esse mercator ; aut si voluerit esse, projiciatur de ecclesia Dei. Decret. 1. 88. 11.

(w) Falsa fit pœnitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quæ sine peccatis agi ulla ratione non prævalet. Act. Concil. apud Baron, c. 16.

(x) Ch. 2, page 154.

(16) The acts imposing restraints upon aliens have been very much modified and liberalized since these Commentaries were written, and an alien who is guilty of no breach of the municipal law, is not likely to be disturbed in Great Britain.

In the United States the president is empowered, in case of war with any foreign nation, to impose restraints upon the citizens or residents of such nation who may be within the United States, and to remove them from the country in his discretion. 1 Stat. at Large, 577.

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 they [*262] may tend to restrain or diminish any of his rights or interests. (y) For it would be of most mischievous consequence to the public if the strength of the executive power were liable to be curtailed without its own express consent, by constructions and implications of the subject. Yet, where an act of parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown, it is said to be binding as well upon the king as upon the subject: (z) and, likewise, the king may take the benefit of any particular act, though he be not especially named. (a)

II. The king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community; and the principal use of government is to direct that united strength in the best and most effectual manner to answer the end proposed. Monarchical government is allowed to be the fittest of any for this purpose: it follows therefore, from the very end of its 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 sole power of raising and regulating fleets and armies. Of the manner in which they are raised and regulated I shall speak more when I come to consider the military state. We are now only to consider the prerogative of enlisting 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 son, was solemnly declared by the statute, 13 Car. II, c. 6. to be in the king alone: for that the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is [ *263] the *undoubted 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: (b) 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 constructio, et expeditio contra hostem. (c) And this they were called upon to do so often, that, as Sir Edward Coke from M. Paris assures us, (d) there were, in the time of Henry II, 1115 castles subsisting in England. The inconveniences 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 baron's wars, the kings of after-times have been very cautions of suffering them to be rebuilt in a fortified manner: and Sir Edward Coke lays it down, (e) that no subject can build a castle, or house of strength embattled, or other fortress defensible, without the license 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

(y) 11 Rep. 74.
(z) Ibid. 71.
(a) 7 Rep. 32.
(b) 2 Inst. 30.
(c) Cowel's Interpr. tit. castellorum operatio. Seld. Jan. Angl. 1, 42.

(d) 2 Inst. 31.

(e) 1 Inst. 5.

his marine revenue, that the king has the *prerogative of appointing [264] ports and havens, or such places only, for persons and merchandize to [*264] pass into and out of the realm, as he in his wisdom sees proper. By the feudal law all navigable rivers and havens were computed among the regalia, (f) 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 shore, (g) 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 seized 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; since to each of them a court of portmote is incident, (j) 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 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 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 1 Eliz. c. 11, and 13 and 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. (17)

The erection of beacons, light-houses and sea-marks is also a branch of the royal prerogative; whereof the first was *anciently used in order

to alarm the country, in case of the approach of an enemy; and all of [*265] 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, (k) to cause them to be erected in fit and convenient places, (7) 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. (m) 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 1007, or in case of inability to pay it, shall be ipso 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, (n) 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 license; and, if he do the contrary, he shall be punished for disobeying the king's command. Some persons there anciently were, that, by reason of their stations, were under a perpetual prohibition of going abroad without license obtained; among which were reckoned all peers

(f) 2 Feud. t. 56; Crag. 1, 15, 15.
(i) Madox, Hist. Exch. 530.
(1) Rot. Claus. 1 Rio. II. m. 42.

(g) F. N. B. 113.
(j) 4 Inst. 148.
Pryn. on 4 Inst. 136.

(h) Dav. 9. 56.
(k) 3 Inst. 204. 4 Inst. 148.
(m) Sid. 158. 4 Inst. 149.

(n) F. N. B. 85.

(17) The power to regulate commerce is vested, by the constitution of the United States, in ngress; and incidental to this is the power to declare what ports shall be ports of entry, and to erect and maintain beacons, light houses, etc. See Const. art. 1, § 8.

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on account of their being counsellors of *the crown; all knights, who [*266] 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, lest they should instruct foreigners to rival us in their several trades and manufactures. This was law in the times of Britton, (0) who wrote in the reign of Edward I: and Sir Edward Coke (p) 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, (q) forbidding all persons whatever to go abroad without license; 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 everybody has, or at least assumes, the liberty of going abroad when he pleases. Yet, undoubtedly, if the king, by writ of ne exeat regnum, (18) under his great seal or privy seal, thinks proper to prohibit him from so doing; or if the king sends a writ to any man, when abroad, commanding his return; (19) and, in either case, 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. (r)

III. Another 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. (s) He is not the spring, but the reservoir, 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 lodged in the society at [*267] 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 eretced, 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 its 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, (q) 5 Ric. II. c. 2.

(0) C. 123.
(p) 3 Inst. 175.
(r) 1 Hawk. P. C. 22.
(8) Ad hoc autem creatus, est et electus ut justitiam faciat universis. Bract. 1. 3, tr. 1, c. 9.

(18) [At first this writ was employed to hinder the clergy from going to Rome; it was afterward extended to laymen machinating and concerting measures against the state; and has at length been applied to prevent a subterfuge from the justice of the nation, though in matters of private concernment. It is now issuable from the court of chancery, in order to get bail for any certain, equitable and money debt, due to a person within the jurisdiction and entitled to sue the debtor for such demand, and it is granted upon affidavit of the debtor's intention to go abroad. See 2 Maddock's Ch. Pr. 279, and Beames on Ne Exeat Regno.] (19) [The exercise of this prerogative has been long disused, and it is probable that it will never be resumed. For the ancient learning upon it, see 3 Inst. c. 84.]

regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament. (t) And in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute 13 Wm. III, c. 2, that their commissions shall be made (not, as formerly, durante bene placito, but) quamdiu bene se gesserint, and their salaries ascertained 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 *the king himself from the throne, the judges are continued in their

offices during their good behavior, notwithstanding any demise of the [*268] crown, (which was formerly held (w) immediately to vacate their seats) (20) and their full salaries are absolutely secured to them during the continuance of their commissions; his majesty having been pleased to declare, that " he looked upon the independence and uprightness of the judges as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honor of the crown."(x)

In criminal proceedings, or prosecutions for offences, it would be a still higher absurdity if the king personally sate in judgment; because, in regard to these, 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. For though in their consequences they generally seem (except in the case of treason, and a very few others,) to be rather offences against the kingdom than the king, yet as the public, which is an invisible body, has delegated all its power and rights, with regard to the execution of the laws to one visible magistrate; all affronts to that power, and breaches of those rights are immediately offences against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law. And this notion was carried so far in the old Gothic constitution, (wherein the king was bound by his coronation oath to conserve the peace,) that in case of any 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, dicebatur fregisse jura mentum regis juratum. (y) And hence also arises another *branch of [ *269] the prerogative, that of pardoning offences; for it is reasonable that he only who is injured should have the power of forgiving. (21) Of prosecutions and pardons I shall treat more at large hereafter: and only mention them here,

(w) Lord Raym. 747.

(x) Com. Journ. 3 Mar. 1761.

(t) 2 Hawk. P. C. 2. (y) Stiernh. de jure Goth. 1. 3, c. 3. A notion somewhat similar to this may be found in the Mirror, c. 1, 5. And so also, when the Chief Justice Thorpe was condemned to be hanged for bribery, he was said sacramentum domini regis fregisse. Rot. Parl. 25 Edw. III.

(20) [All their commissions became vacant upon the demise of the crown, till they were continued for six months longer by 1 Ann. Stat. 1, c. 8.]

The judges of the courts of the United States hold their offices during good behavior, and receive for their services a compensation which cannot be diminished during their continuance in office. Const. art. 3, §1. They are appointed by the president and confirmed by the senate. Const. art. 2, § 2. They may be removed from office by the process of impeachment, like other civil officers, and, by an act of congress passed in 1869, they may retire after ten years service, without diminution of salary, at the age of 70 years. The territorial judicial officers hold only during pleasure.

(21) ["This high prerogative is inseparably incident to the crown, and the king is intrusted with it upon special 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 make so perfect as to suit every particular case." Co. Lit. 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 v. 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.]