Page images
PDF
EPUB

[for such public oppressions or acts of tyranny as have proceeded from the personal delinquency of the monarch himself, the answer is, that there is no more remedy than in the case before supposed of a personal injury inflicted by the sovereign on an individual ; for to suppose a remedy in such a case, (that is to say, a compulsory remedy,) would be to suppose a superior coercive authority in some other hand, to correct the abuse. For all such abuses, therefore, whether they spring from the sovereign or from either house of parliament, the law is manifestly unable to make provision ; but if ever they unfortunately happen, the prudence of the times must provide new expedients upon the new emergencies.

Indeed, it is found by experience, that whenever unconstitutional oppressions, even of the sovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not sacrifice their liberty by a scrupulous adherence to political maxims, which were originally established to preserve it ; and, therefore, if any prince should endeavour to subvert the constitution by breaking the so-called “ original contract ” between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom, it would be permissible to declare, that such a conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant.

In further pursuance of the same principle, the law also determines that in the king there can be no negligence or laches ; and so the maxim, nullum tempus occurrit regi, formerly prevailed on all occasions, no delay in resorting to his remedy being held to bar the king's right (1).] From this doctrine it followed, that not only the civil claims of the Crown received no prejudice by the lapse of time, but that criminal prosecutions also might be commenced at any distance of time from the commission of the offence (m). From a general point of view, all (1) Co. Lit. 41 b, 90.

(m) R.

Thompson (1851),

V.
20 L. J. M. C. 183.

this is still law; but in modern times it has been largely qualified by statute, e.g., by the Crown Suits Act, 1769 (as amended by the Crown Suits Act, 1861), the Crown is now barred from its civil right in suits relating to landed property, by the lapse of sixty years ; and by the 32 Geo. III. (1792), c. 58 (n), it was barred in informations for usurping corporate offices or franchises, by the lapse of six years, or (in quo warranto against a municipal corporation) by the lapse of one year (o). Again, by the Treason Act, 1695, an indictment for treason, except for an attempt to assassinate the king, must be found within three years after the commission of the act of treason.

[Secondly, of the ROYAL AUTHORITY.—This is a subject which involves a great variety of prerogatives, in the exertion whereof consists the executive part of government. By the British constitution, the executive power is wisely placed in a single hand ; for if it were placed in many hands, it would be subject to many wills, and these many wills, if disunited, would create a weakness or vacillation in the government. The king is therefore not only the chief, but properly the sole, magistrate of the nation, all others acting only by commission from and in due subordination to him.

The particular prerogatives incident to the executive vested in the king are the following:

(1) The sovereign has the sole power of sending ambassadors to foreign states (p), and of receiving ambassadors at home (7). For it is evident, that with regard to foreign [affairs, the sovereign is the delegate or representative of his people ; and, it being impossible for the individuals of a state to transact the affairs of that state with another community equally numerous as themselves, therefore, in the king, as in a centre, all his people are united, and what is done by him, with regard to foreign powers, is, in effect, done by them (r).

(n) Repealed by the Statute to enter into diplomatic relations Law Revision Act, 1887.

with the sovereign of the Roman (0) Now s. 73 of the Municipal States ; but it was expressly proCorporations Act, 1882.

vided by the Act, that no person (p) As to the salaries, pensions, in holy orders of the Church of &c., of those who are in the diplo- Rome, or jesuit, or member of any matic service, see the Diplomatic other religious order, community, Salaries Act, 1869.

or society of that church, bound (9) By the 11 & 12 Vict. (1848), by monastic or religious vows, c. 108, her majesty was authorized should be received as ambassador or diplomatic agent. This statute is one of those which have been repealed by the Statute Law Revision Act, 1875, “as having by change of circumstances become unnecessary.”

It will here be convenient to consider, though somewhat concisely, the rights, powers, duties, and privileges of ambassadors, as determined by the law of nations. And first, the municipal law is inapplicable to ambassadors ; but if an ambassador grossly offends, or makes an ill use of his character, he may be sent home and accused before his master (s), who is bound either to do justice upon him, or else to avow himself the accomplice of his crimes. There is, however, some dispute among writers on international law, whether this exemption of ambassadors extends to all crimes, as well natural as positive, or whether it extends only to mala prohibita, such as coining, and not to mala in se, such as murder (t). Our law seems to have formerly allowed the exemption in the restricted sense only ; for it has been held, that though an ambassador is privileged by the law of nations, yet, by that law, if he commits any offence against the law of reason and nature, he shall lose his privilege (u). Consequently, if an ambassador conspires the death of the king in whose land he is, he may, by our law, be condemned and executed for treason, though if he commits any other species of offence, he must be sent to his own country (x); and these positions [seem to be in full accordance with reason. But the general practice of this country now is to act upon the sentiments of the learned Grotius, that the general security of ambassadors is of more importance than the punishment of some particular crime (y); and therefore, since the middle of the seventeenth century, few, if any examples have happened where an ambassador has been punished for any offence, however atrocious in its nature (:). In respect to civil suits, neither an ambassador, nor any of his train, can be proceeded against for any debt or contract in the courts of the kingdom to which he is accredited, i.e., in which he is sent to reside (a). But few, if any, cases had arisen, wherein the privilege with regard to civil suits was either claimed or disputed, previous to the reign of Queen Anne ; when an ambassador from the Czar Peter of Muscovy was actually arrested and taken out of his coach in London, for a debt of fifty pounds, which he had there contracted. Instead of applying to be discharged upon his privilege, he gave bail to the action, and the next day complained to the queen. The Czar resented this affront very highly, and demanded that the sheriff of Middlesex, and all others concerned in the arrest, should be punished with instant death (6); but Queen Anne directed her secretary to inform him, “that she could “inflict no punishment upon any the meanest of her [• subjects, unless warranted by the law of the land” (c). A bill was, however, brought into parliament, and afterwards passed into law, to prevent the like occurrences for the future (d), although the Act was, in fact, merely declaratory of the common law (@).

(r) 4 Inst. 152.

(8) As was done with Count Gyllenbourg, the Swedish minister

to Great Britain, A.D. 1716. (De Martens, Causes Célèbres, I., p.

. 97.) (t) Van Leeuwen in Dig. 50, 7, 17 ; Barbeyrac's Puff. 1, 8, ch. 9, ss. 9 and 17 ; Van Bynkershoek, De Foro Legator, cc. 17–19.

(u) 1 Roll. Rep. 175 ; 3 Bulstr. 27; 4 Inst. 153.

(1) 1 Roll. Rep. 185.

(y) Securitas legatorum, utili. tati qur ex pernâ est, preponderat."

- De Jure B. et P. I. 2, ch. 18, 8. 4.)

(z) In the year 1653 (during the protectorate of Cromwell), Don Pantaleone Sa, the brother and secretary of the Portuguese ambassador, was tried, convicted, and executed for an atrocious murder. (Phillimore, Inter. Lau, II., 211.)

secretary of legation," acting in the absence of the

ambassador as chargé d'afiaires, is protected in the same manner as the ambassador himself; and an ambassador does not lose his privilege by engaging even in mercantile transactions ( Taylor v. Best (1854), 14 C. B. 487; Att.Gen. v. Kent (1862), 1 H. & C. 30; Magdalena Steam Narigation Co. v. Martin (1859), 2 El. & El. 94, 109).

(6) Com. Journ. 17th September 1708 ; Boyer, Annals of Queen Anne.

(a) A "

The statute recites the arrest which had “ been made “ in contempt of the protection granted by her majesty, “ and in prejudice of the rights and privileges which " ambassadors and other public ministers have at all “ times by the law of nations been possessed of,” and enacts, that for the future all writs and process whereby the person of any ambassador, or of his domestic servant, may be arrested, or his goods distrained or seized, shall be utterly null and void, and that all persons prosecuting, soliciting, or executing such process, are to be deemed violators of the law of nations, and disturbers of the public repose, and are to suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or any two of them, shall think fit. trader, within the description of the bankrupt laws, who shall be in the service of the ambassador, is to be privileged or protected by the Act; and no one is to be punished for arresting the servant of an ambassador, unless the name of the servant shall have been registered with the secretary of state, and by him transmitted to the sheriffs of London and Middlesex ($). The privileges of ambassadors and others, as so declared by that Act, are thus expressly made part of the law of the land, and are allowed as such in the courts of common law (g).

(2) It is also the king's prerogative to make treaties,

But no

(c) Com. Journ. Ilth January, 1709; Boyer, Annals of Queen Anne ; Un. Mod. Hist. xxxv. 454,

(d) Diplomatic Privileges Act, 1708. (e) Viveash

Becker (1814), 3 M. & S. 284.

(f) Seacomb v. Bouclney (1743), 1 Wils. K. B. 20.

(9) Viveash v. Becker, ubi sup. Musurus Bey v. Gadban, [1894) 1 Q. B. 533 ; [1894] 2 Q. B. 352.

« EelmineJätka »