ours. [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 This seems to have been a common rule of equity among all the northern nations; for we learn from Stiernhook (e), 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 Charta, 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 (f)." But indeed it well justifies another observation which he has made (g), "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 (h): and equally different from the bigotry of the canonists, who looked on trade as inconsistent with Christianity (i), and determined at the council of Melfi, under Pope Urban the second, A.D. 1090, that it was impossible with a safe conscience to exercise any traffic, or follow the profession of the law (k).] The prerogatives of the sovereign hitherto considered, (e) De Jure Sueon. l. 3, c. 4. (h) "Nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercere prohibemus."-C. 4, 63, 3. (i) "Homo mercator vix aut nun quam potest Deo placere: et ideo nullus Christianus debet esse mercator; aut si voluerit esse, projiciatur de ecclesia Dei."-Decret. 1, 88, 11. (k) “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. respect [this nation's intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people.] But in domestic affairs he is considered in a great variety of other characters, which will now lead us to the enumeration of many additional prerogatives. 6. The sovereign [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 (m). We shall only further remark, that the king is not bound by any act of parliament, unless he be named therein by special and particular words (n). 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 may tend to restrain or diminish any of his rights or interests (o). 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 sovereign as upon the subject (p): and, likewise, the sovereign may take the benefit of any particular Act, though he be not especially named (q). 7. The sovereign is considered, in the next place, as 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 pro (m) Vide sup. p. 333. (n) Bac. Ab. Prerogative, E. 5. Rep. 74. (p) Ibid. 11 Rep. 71. [posed. 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 sovereign has the sole power of raising and regulating fleets and armies. Of the manner in which they are raised and regulated we shall speak more, when we come to consider the royal forces. 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 the first; 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 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 sovereign in his capacity of general of the kingdom (r); and all lands were formerly subject to a tax, for building of castles wherever he 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 (s).” And this they were called upon to do so often, that, as Sir (r) 2 Inst. 30; Com. Dig. Prerogative, C. 4. (s) Cowel's Interpr. tit. Castellorum Operatio; Seld. Jan. Ang. 1,42. [Edward Coke from Matthew Paris assures us (t), there were, in the time of Henry the second, 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 Angliâ 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 the third. And, therefore, the greatest part of them being demolished in the barons' wars, the kings of after times have been very cautious of suffering them to be rebuilt in a fortified manner: and Sir Edward Coke lays it down (u), that no subject can build a castle, or house of strength embattled, or other fortress defensible, without the licence 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 his marine revenue, that the sovereign has the prerogative of appointing ports and havens, or such places only, for persons and merchandize to pass into and out of the realm, as he in his wisdom sees proper (x). By the feodal law all navigable rivers and havens were computed among the regalia (y), and were subject to the sovereign of the state. And in England it hath always been holden, that the sovereign is lord of the whole shore (z), and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm (a): and there (t) 2 Inst. 31. (u) 1 Inst. 5. (x) Hale de Portibus Maris. (y) 2 Feud. t. 26; Crag. 1, 15, 15. (2) F. N. B. 113; vide sup. vol. 1. p. 450. (a) Dav. 9, 56. Among these mention must be made of the cinque ports, viz. Hastings, Romney, Hythe, Dover and Sandwich. On these ports extensive privileges were conferred by our early sovereigns, particularly by William the Conqueror and King John; and two other towns, Winchelsea and Rye, were subsequently added to their number. From their position, lying more immediately exposed to attacks from the French [fore, 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 (b). These legal ports were undoubtedly at first assigned by the Crown; since to each of them a court of portmote is incident (c), 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 landing and discharging had been frequently granted by the Crown. But though the sovereign 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 abuse occasioned statutes (d) to be passed enabling the Crown to ascertain the limits of all ports, and to assign proper quays therein for the exclusive landing and loading of merchandize; aud this duty, as well as those of appointing ports and sub-ports, and declaring the limits thereof, is now confided, by 16 & 17 Vict. c. 107, coast, they were supposed to be among the most important places in the kingdom, and were placed under the especial custody of a lord warden; and before the Reform Act, they sent (including certain boroughs attached to them) no less than sixteen members to parliament. These, however, by the effect of that Act, are now reduced to eight. The cinque ports possess a peculiar maritime jurisdiction; as to which see 51 Geo. 3, c. 36; 1 & 2 Geo. 4, c. 76, ss. 1-5, 15, 16, 18; 6 Geo. 4, c. 125; 5 & 6 Will. 4, c. 76; 6 & 7 Will. 4, c. 105, ss. 10 and 11; and (d) 1 Eliz. c. 11; 13 & 14 Car. 2, c. 11. Both of these statutes were repealed by 6 Geo. 4, c. 105. |
