s. 9 (e), to the commissioners of her majesty's treasury. There are also, with regard to ports or harbours, several other Acts of importance. By 19 Geo. II. c. 22, certain nuisances in harbours are restrained. By 46 Geo. III. c. 153, no pier, quay, wharf, jetty, breast or embankment shall be erected in or near to any public harbour in the United Kingdom or any river communicating therewith, so far as the tide flows up the same, without giving one month's notice to the Admiralty,-with a saving however of the privileges of the city of London. By 54 Geo. III. c. 159, the Admiralty is entrusted with the duty of regulating the mooring of vessels in all ports and harbours. And there is also an Act, 10 & 11 Vict. c. 27, consolidating the provisions usually contained in the local Acts, by which the construction and improvement of particular harbours, docks and piers are in many instances governed (ƒ). The erection of beacons, light-houses, and sea-marks, is also incident to this branch of the royal prerogative: [whereof the first were antiently used in order to alarm the country in case of the approach of an enemy; and all of them are signally useful in guiding and preserving vessels at sea by night as well as by day. For this purpose the sovereign hath power, by commission under his Great Seal (g), to cause them to be erected in fit and convenient places (h), 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 (i).] A power, however, of the same general nature is also vested, by the statute law, in certain bodies subordinate to the Crown, viz., in the Trinity House, for England and Wales and the Channel Islands; and in other authorities, for Scotland, the Isle of Man, and Ireland, respectively (h) : and as it is within their jurisdiction that the subject of beacons, lighthouses, and sea-marks more immediately lies, all further notice of it will be deferred until we arrive at a division of the work to which it is more appropriate (i). To this branch of the prerogative may also be referred the power vested in her majesty by statute 16 & 17 Vict. c. 107, of prohibiting, by proclamation or order in council, the importation of arms, ammunition, gunpowder, or other goods (j); or the exportation (or the carriage coastwise) of the articles above specified, or of military and naval stores, or provisions capable of being used as food by man (k); [and likewise the right which the sovereign 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 (1), every man may go out of the realm for whatsoever cause he pleaseth, without obtaining the sovereign'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 the third); but, because that every man ought of right to defend the sovereign and his realm, therefore the sovereign at his pleasure may command him by his writ, that he go not beyond the seas, or out of the realm, without licence; and if he do the contrary, he shall be punished for disobeying the sovereign's command. Some persons there antiently were, that, by reason of their stations, were under a perpetual prohibition of going abroad without licence obtained; among which were reckoned all peers, on account of their being councillors of the Crown; all knights, who were bound to defend the kingdom from invasions; all ecclesiastics, who were expressly confined by the fourth chapter of the constitutions (h) 17 & 18 Vict. c. 104, s. 389. (k) Ib. s. 150. [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 (m). This was said in the times of Britton, who wrote in the reign of Edward the first: and Sir Edward Coke gives us many instances to this effect in the time of Edward the third (n). In the succeeding reign the affair of travelling wore a very different aspect; an act of parliament being made (0) forbidding all persons whatever to go abroad without licence; 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 every body has, or at least assumes, the liberty of going abroad when he pleases. Yet undoubtedly if the sovereign, by writ of ne exeat regno (p), under his great seal or privy seal, thinks proper to prohibit a man from so doing, or sends a writ to any man, when abroad, commanding his return, and in either case the subject disobeys (9); it is a high contempt of the royal prerogative, for which the offender's lands shall be seized till he return; and then he is liable to fine and imprisonment (r). 8. Another capacity in which the sovereign is considered in domestic affairs, is as the fountain of justice and general conservator of the peace of the kingdom (s). By the fountain of justice the law does not mean the author or original, but only the distributor. Justice is not derived [from the sovereign, as from his free-gift; but he is the steward of the public, to dispense it to whom it is due (t). 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 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 these magistrates are considered as in some sense the substitutes of the crown, in the exercise of the authority so vested in them. For the sovereign is himself, according to the prerogative now under consideration, the fountain. of that justice which they administer, though it would be impossible as well as improper, that he should [personally carry into execution this great and extensive trust]. And hence it is, that [all jurisdictions of courts are either mediately or immediately derived from the crown]; that the magistrates or judges who preside there are appointed also by the crown, though in scarcely any instance removable at its pleasure (u); [that the proceedings run generally in the sovereign's name, pass under his seal, and are executed by his officers.] Indeed, [it is probable, and almost certain, that in very early times, before our constitution arrived at its full perfection, our sovereigns in person often heard and determined causes between party and party. But at present, by the long and uniform usage of many ages, our sovereigns 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, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament (v). (t) "Ad hoc autem creatus est et electus, ut justitiam faciat universis." -Bract. 1. 3, tr. 1, c. 9, s. 3. (u) Vide sup. p. 482. (v) 2 Hawk. P. C. 1. [In criminal proceedings, or prosecutions for offences, it would be a still higher absurdity if the sovereign personally sat 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 it was formerly necessary in every indictment so to describe them (w). [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 sovereign, 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 that magistrate; who 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 sovereign 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 sovereign's coronation oath, dicebatur fregisse juramentum regis juratum (x). And hence also arises. another branch of the prerogative, that of pardoning offences (y); for it is reasonable that he only who is injured should have the power of forgiving. Of prosecutions and pardons more will be said hereafter. They are mentioned here in this cursory manner, only to show the constitutional grounds of this power of the crown, and how regularly connected all the links are, in this vast chain of prerogative.] (w) By 14 & 15 Vict. c. 100, s. 24, no indictment is now to be held insufficient for want of the words "against the peace." (r) Stiern. de Jure Goth. 1. 3, c. 3. A notion somewhat similar to this may be found in the Mirror, c. 1, s. 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. 3. (y) As to this power, see 3 Inst. 233; Show. 284; 2 T. R. 569; Lord Raym. 214; et post, bk. vI. c. xxv. |
