firmed the limitation of the number of representatives of England in the same House of Commons, before impliedly enacted by the acts for the union of England and Scotland. The power of the crown to create peers of Scotland was impliedly taken away by the act for the union of England and Scotland; but the power of the crown to create peers of Ireland was not taken away absolutely, but was limited by the acts for the union of Great Britain and Ireland. The remarkable distinctions between the terms of the two unions, with respect to peers, are the election of the sixteen peers of Scotland for the parliament only for which they are elected, their rights determining with the dissolution of that parliament, the twenty-eight Irish peers being elected for life; the permission to peers of Ireland to divest themselves of their privileges of peerage by sitting in the Commons House of Parliament; and the power reserved to the crown of creating new peers of Ireland. In other respects the relative situations of the peers of England and Scotland, after the union of the two kingdoms of England and Scotland, and of the peers of England, Scotland, Great Britain, Ireland, and the United Kingdom of Great Britain and Ireland after the last union, are precisely the same1. 1 Rep. Dig. Peer. D. V. DE LOLME. WHEN the The king, in the exercise of his ment, is no more CHAPTER V. Of the Executive Power. parliament is prorogued or dissolved, it ceases to exist; but its laws still continue to be in power of govern- force: the king remains charged with the execution of them, and is supplied with the necessary power for than a magi strate. The first prerogative of the that purpose. It is, however, to be observed, that though, in his political capacity of one of the constituent parts of the parliament (that is, with regard to the share allotted to him in the legislative authority), the king is undoubtedly sovereign, and only needs allege his will when he gives or refuses his assent to the bills presented to him; yet, in the exercise of his powers of government, he is no more than a magistrate; and the laws, whether those that existed before him, or those to which, by his assent, he has given being, must direct his conduct, and bind him equally with his subjects. I. The first prerogative of the king, in his capacity king is the admi- of supreme magistrate, has for its object the administration of justice. nistration of justice. The chie fof all courts of law. Universal proprietor of the kingdom. 1°. He is the source of all judicial power in the state; he is the chief of all the courts of law, and the judges are only his substitutes: everything is transacted in his name; the judgments must be with his seal, and are executed by his officers'. 2°. By a fiction of the law, he is looked upon as the universal proprietor of the kingdom: he is in consequence deemed directly concerned in all offences; and, for that reason, prosecutions are to be carried on in his name in the courts of law. 1 Vide Note (1.) p. 568. 2 Ibid. (2.) p. 569. 3. He can pardon offences, that is, remit the pun- DE LOLME. ishment that has been awarded in consequence of his Prerogative of prosecution'. mercy. honour. II. The second prerogative of the king is, to be the The fountain of fountain of honour, that is, the distributor of titles and dignities he creates the peers of the realm, as well as bestows the different degrees of inferior nobility. He moreover disposes of the different offices, either in the courts of law, or elsewhere. of commerce. III. The king is the superintendent of commerce; Superintendent he has the prerogative of regulating weights and measures; he alone can coin money', and can give a currency to foreign coin". of the church. IV. He is the supreme head of the church. In Supreme head this capacity he appoints the bishops, and the two archbishops'; and he alone can convene the assembly of the clergy. This assembly is formed in England, on the model of the parliament; the bishops form the upper house: deputies from the dioceses, and from the several chapters, form the lower house: the assent of the king is likewise necessary to the validity of their acts, or canons"; and the king can prorogue, or dissolve, the convocation". all sea and land forces." V. He is, in right of his crown, the generalissimo Generalissimo of of all sea or land forces whatever; he alone can levy troops, equip fleets, build fortresses, and fill all the posts in them 13. VI. He is, with regard to foreign nations, the representative and the depository of all the power and collective majesty of the nation; he sends and receives Vide Note (3.) p. 569. 4 Vide ante, 124-126, 559-565. Com. Dig. Market. 2 Chitty's 5 Co. Litt. 172. Lord Raym. 181, 1542. Com. Dig. Prerog. D. 38. 1 Chitty's Com. Law, 491. 2 Inst. 220. Com. Law, 142–161. • Vide Note (4.) p. 570. 8 Vide Note (5.) p. 570. 10 Vide Note (6.). p. 570. 71 Hale, P. C. 191. 9 Vide ante, 179-207, 215-252, 289-311, 479. 11 Vide ante, 194, 195, 362, 363. 13 Ibid. (8.) p. 571. 12 Vide Note (7) p. 570. Prerogative with treatment of foreign nations. regard to the DE LOLME. ambassadors; he contracts alliances; and has the prerogative of declaring war, and of making peace, on whatever conditions he thinks proper". The king can do no wrong. NOTES. The original the society at large. VII. In fine, what seems to carry so many powers to the height, is, its being a fundamental maxim, that THE KING CAN DO NO WRONG: which does not signify, however, that the king has not the power of doing ill, or, as it was pretended by certain persons in former times, that everything he did was lawful; but only that he is above the reach of all courts of law whatever, and that his person is sacred and inviolable". (1.) 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 reservoir; from whence right and equity are conducted, by a thousand channels, to every individual. The original power of judicature, by the fundamental prinpower of judica ciples of society, is 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. The king has alone the right of erecting courts of judicature. The king, 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. 14 Vide Note (9.) p. 571. 15 Ibid. (10.) p. 572. The king can only make courts to proceed according to the course of the common law, and he cannot erect a new court of chancery or conscience; that can only be effected by act of parliament, of which many instances have recently occurred'. By the long and uniform usages of many ages, our kings have delegated their whole judicial power to the judges of their several courts, which are the grand depositories 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'. NOTES. The judicial power of the to the judges. crown delegated The king can only make courts of justice proceed accord ing to the com mon law. 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 Advantages from principles of law; which, though legislators may depart from, the indepenyet judges are bound to observe. Were it joined to the judges. executive, this union might soon be an overbalance for the legislative. (2.) It is in the character of representative of the public, that criminal offenders are indicted at the suit of the king, and not as the avenger of injuries committed against himself. dence of the INDICTMENTS AT THE SUIT OF THE MERCY. (3.) The prerogative of mercy is inseparably incident to the PREROGAtive of 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'. 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'. 1 Hawk. P. C. 2. 2 Com. Dig. Prerog. D. 28. 1 Co. Litt. 114, B. Hale, P. C. 104. 3 Inst. 233. Show. 284. R. v. Amery, 2 T. R. 569. VOL. II. 6 |