in this cursory manner, to shew the constitutional grounds of this power of the crown, and how regularly connected all the links are in this 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 star chamber, 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 centered in the sultan or his ministers, *despotic power is in its meridian, and wears a [*270] 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. (2) 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 the 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. (b)

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 *an [ *271] embargo upon all shipping in time of war, (d) will be equally binding

(2) Fortesc. c. 8. 2 Inst. 186. (d) 4 Mod. 177, 179.

(a) Co. Litt. 139.

(b) Finch. 1. 81.

(c) 3 Inst. 162.

(22) [But the attorney-general may enter a non vult prosequi, which has the effect of a nonsuit. Co. Litt. 139.]

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 a time of a public scarcity) being contrary to law, and particularly 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 binding, 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) (23) 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 encouraged 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, of knighthood, and other titles, are received by immediate grant from the crown: either expressed in [*272] writing by writs or letters patent, as in the creation of peers and baronets; or by corporeal investiture, as in the creation of a simple knight. (24)

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.

Upon the same, or a like reason, the king has also the prerogative of conferring privileges upon private persons. Such as granting place or precedence to

(23) [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 be too strict.]

(24) Titles of nobility are forbidden to be granted by the United States, or by any of the individual states, and no person holding any office of trust or profit under them, can, without the consent of congress, accept of any present, emolument, office or title of any kind whatever, from any king, prince or foreign state. Const. of U. S., art. 1, §§ 9 and 10.

any of his subjects, (25) as shall seem good to his royal wisdom: (g) or such as converting aliens, or persons born out of the king's dominions into denizens; (26) 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 [*273] many liberties, powers and immunities in their politic *capacity, which they were utterly incapable of in their natural. (27) 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. 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. A 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 merchandize; 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. (i)

*With us in England, the king's prerogative, so far as it relates to mere [*274] domestic commerce, will fall principally under the following articles: First, 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.

(g) 4 Inst. 361. (h) Disputare de principali judicio non oportet; sacrilegii enim instar est, dubitare an is dignus sit, quem elegerit imperator. C. 9, 29, 3. (i) Co. Litt. 172. Ld. Kaym. 181, 1542. (k) 2 Inst. 220.

(25) [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 settles the place or precedence of all the nobility and great officers of state.]

(26) This power in the United States is conferred upon congress. Const. art. 1, § 8.

(27) In America, the power to create corporations is a legislative power, and is not conferred upon the general government in express terms in the constitution, but has been exercised as auxiliary to powers expressly given; as in the incorporation of the United States bank, and in the act under which the present national banks are organized. See McCulloch v. Maryland, 4 Wheat. 316. Within the District of Columbia, congress, possessing exclusive powers of legislation, may of course charter corporations. But there, as well as in the territories generally, this power is allowed to be exercised by the local legislature.

In England the power to create corporations is exercised by the Legislature, and the royal prerogative is disused.

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 some 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 Winchester; and we find in the laws of King Edgar, (m) near a century before the conquest, an injunction that the one measure, which was kept at Winchester, should be observed throughout the realm. Most nations have regulated the 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 ell, (ulna, or arm,) the pace, and [*275] the fathom. But, as these are of different dimensions in men of different proportions, our ancient historians (n) inform us, 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 perticarum, 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 penny-weight, 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 and 12 Wm. III, c. 20. In King John's time, this ordinance of King Richard was *frequently dispensed with for money, (p) which occasioned a provision to be made for enforcing it, [ *276] in the great charters of King John and his son. (q) These original standards were called pondus regis, (r) and mensura domini regis; (s) and are directed by a variety of subsequent statutes to be kept in the exchequer, and all weights and measures to be made comformable 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. (28)

(r) Plac. 35 Edw. I. apud Cowel's Interpr. tit. pondus regis.

(0) Hoved. Matth. Paris. (s) Flet. 2, 12.

(t) 14 Edw. III. st. 1, c. 12. 25 Edw. III. st. 5, c. 10. 16 Ric. II. c. 3. 8 Hen. VI. c. 5. 11 Hen. VI. c. 8. 11 Hen. VII. c. 4. 22 Car. II. c. 8.

(u) 2 Inst. 41.

(28) [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

Thirdly, as money is the medium of commerce, it is the king's prerogative, as the arbiter of domestic commerce, to give it authority or make it current. Money is an universal medium, or common standard, by comparison with which the value of all merchandize may be ascertained; or it is a sign which represents the respective values of all commodities. Metals are well calculated for this sign, because they are durable and are capable of many subdivisions; and a precious metal is still better calculated for this purpose, because it is the most portable. A metal is also the most proper for a common measure, because it can easily be reduced to the same standard in all nations: and every particular nation fixes on it its own impression, that the weight and standard (wherein consists the intrinsic value) may both be known by inspection only.

As the quantity of precious metals increases, that is, the more of them there is extracted from the mine, this universal medium, or common sign, will sink in value, and grow less precious. Above a thousand millions of bullion are calculated to have been imported into Europe from America within less than three centuries; and the quantity is daily increasing. *The consequence is, [*277] that more money must be given now for the same commodity than was given an hundred years ago. And, if any accident were to diminish the quantity of gold and silver, their value would proportionably rise. A horse, that was formerly worth ten pounds, is now perhaps worth twenty; and, by any failure of current specie, the price may be reduced to what it was. Yet is the horse in reality neither dearer nor cheaper at one time than another: for, if the metal which constitutes the coin was formerly twice as scarce as at present, the commodity was then as dear at half the price as now it is at the whole. (29)

The coining of money is in all states the act of the sovereign power; for the reason just mentioned, that its value may be known on inspection. (30) And with respect to coinage in general, there are three things to be considered therein; the materials, the impression and the denomination.

parliament to fix and establish the standard and uniformity of weights and measures. A custom or usage countervailing these statutes is void in law. On these customs, see 3 T. R. 271; 4 id. 314, 150; 5 id. 353; 6 id. 338; 4 Taunt. 102.]

In the United States, the power to regulate weights and measures, is in congress. Const. art. 1, § 8.

(29) [In considering the prices of articles in ancient times, regard must always be had to the weight of the shilling, or the quantity of silver which it contained at different periods. From the conquest till the 20th year of Edward III, a pound sterling was actually a pound troy weight of silver, which was divided into twenty shillings; so if ten pounds at that time were the price of a horse, the same quantity of silver was paid for it as is now given, if its price is thirty pounds.

This, therefore, is one great cause of the apparent difference in the prices of commodities in ancient and modern times. About the year 1347, Edward III coined twenty-two shillings out of a pound; and five years afterwards he coined twenty-five shillings out of the same quantity. Henry V, in the beginning of his reign, divided the pound into thirty shillings, and then, of consequence, the shilling was double the weight of a shilling at present. Henry VII increased the number to forty, which was the standard number till the beginning of the reign of Elizabeth. She then coined a pound sterling of silver into sixty-two shillings. And now by 56 Geo. III, c. 68, the pound troy of standard silver, eleven ounces two pennyweights fine, &c., may be coined into sixty-six shillings. See money, in the index to Hume's Hist. Dr. Adam Smith, at the end of his first volume, has given tables specifying the average prices of wheat for five hundred and fifty years back, and has reduced for each year the money of that time into the money of the present day. But in his calculation he has called the pound since Elizabeth's time sixty shillings. Taking it at that rate, we may easily find the equivalent in modern money of any sum in ancient time, if we know the number of shillings which weighed a pound, by this simple rule: as the number of shillings in a pound at that time is to sixty, so is any sum at that time to its equivalent at present; as for instance, in the time of Henry V, as thirty shillings are to sixty shillings now, so ten pounds then were equal to twenty pounds of present money.]

(30) The power to coin money and to regulate the value thereof, is, by the constitution of the United States, conferred upon congress: art. 1, § 5; and the states, by the same instr ment, are forbidden to make any thing but gold and silver a legal tender in payment of debts. Art. 1, § 10. The question whether congress has the power to make any thing except the coins from these metals a legal tender, has recently become an important one, and has led to several judicial opinions which are not harmonious. The act of congress of February 25,