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[leagues, and alliances with foreign states and princes (h). For by the law of nations it is essential to the goodness of a treaty that it be made by the sovereign power (i); and in England the sovereign power, quoad hoc, is vested in the person of the king. Whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist, or annul ; yet, lest this plentitude of authority should be abused to the detriment of the public, the constitution hath here interposed a check by the means of parliamentary impeachment, for the punishment of such ministers as from criminal motives advise or conclude
any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation. And the treaty, once made, requires also, in general, an Act of Parliament for its due execution (k); certainly so, if it is to affect the private rights of the subject (1).
(3) Upon the same principle the king has also the prerogative of making war and peace (m); for, by the law of nations, the right of making war, which by nature subsisted in every individual, has become vested in the sovereign power of each community (n). And it would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him, against his will, in a state of war. Whatever hostilities therefore may be committed by private citizens, the State ought not to be affected thereby, unless it should justify their proceedings; and such volunteers in violence, being and remaining unauthorized, are not ranked among enemies, but among pirates and robbers. And the reason given by Grotius, why accord[ing to the law of nations a denunciation of war ought always to precede the commencement of hostilities, is not so much that the enemy may be put upon his guard, but that it may be certainly clear, that the war is not undertaken by private persons, but by the will of the whole community (o). Accordingly, with us in England, in order to make a war completely effectual, it was formerly necessary that it should be publicly declared and duly proclaimed by the king's authority ; but the modern practice is by no means uniform. In whatever body the right resides of beginning a national war, in that body also must reside the right of ending it, or the power of making peace. But the check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the Crown from a wanton or injurious exercise of this great prerogative.
(h) Com. Dig. Prerogatire, B. 3 ; Chitty, Commercial Law, i. 38, 615.
(i) Puff. L. of N. b. 8, ch. 9,
4 P. D. 129; 5 P. D. 197, where Blackstone's statement as to the prerogative in this respect is criticised; Walker v. Baird, [1892) A. C. 491.
(m) Com. Dig. Prerogative, C. 1, 2, 3; Bac. Ab. Prerog. D. 4.
(n) Puff. b. 8, ch. 6, s. 8.
(k) Behring Sea Award Act, 1894 ; Greek Loan Act, 1898.
(1) The Parlement Belge (1879),
(4) As delay in declaring war may sometimes be detrimental to individuals who have suffered by depredations from foreign potentates, our laws have in some respects armed the subject with powers to impel the prerogative, by authorizing the issue by the Crown, upon due demand made, of letters of marque and reprisal. The prerogative of granting such letters is nearly related to, and plainly derived from, the larger prerogative of making war; and the issue of them is in general the mere precursor of a formal denunciation of war. This expedient is justifiable by the law of nations, whenever the subjects of one state are oppressed and injured by those of another, and justice is denied them by that state to which the oppressor belongs (p). In such a case, letters of marque and reprisal,—words in themselves synonymous, and signifying a taking in return, -may be obtained, in order to seize, wherever they be found, the bodies or goods of subjects of the offending state, until satisfaction be made. (0) De Jure B. et P. I. 3, ch. 3, (p) De Jure B. et P. I. 3, ch. 2,
ss. 4, 5.
[This custom of reprisal seems dictated by nature herself, the sovereign power merely intervening in order to determine when the reprisals may be made ; and by the 4 Hen. V. (1416), if any subjects of the realm are oppressed by any foreigners in the time of truce, the king may grant letters of marque in due form, to all that feel themselves grieved. And by virtue of the letters of marque, the aggrieved party may attack and seize the property of the aggressor nation, without hazard of being condemned as a robber or pirate.] But the terın “letters of marque is now used in a somewhat different sense, and as applying to the commissions from the king, or from the lords of the admiralty, as his agents, acting under divers statutes, whereby, in time of actual war, in order to encourage merchants and others to fit out privateers or armed ships, the prizes captured by the owners of such ships are made divisible between such owners, including the captains and the crews, instead of belonging to the Crown as droits of the admiralty (9). And in the Crimean war, although no “letters of marque” were issued to privateers, “general reprisals” were granted against the ships, vessels, and goods of the enemy ; in order to give the benefit of the prizes taken by her Majesty's ships to the captors of such prizes ().
(5) [Upon exactly the same reason stands the preroga--tive of granting sufe-conducts ; without which, by the law of nations, no member of one society has a right to intrude into another ($). And therefore Puffendorff very justly resolves (t), that it is left in the power of all states to take such ineasures about the admission of strangers, not being shipwrecked people, as they think convenient. By our laws, great tenderness is shown not only to foreigners in distress, but with regard also to the admission of strangers who come spontaneously ; for, so long as their
(9) Vin. Abr. Prerog. N. a. pl. teers has practically fallen into 22; Nichol
Goodall (1804), disuse. 10 Ves. 155.
(*) Com. Dig. Prerogative, B. 5. (r) Prize Act (Russia), 1854. (1) Law of. V. « N. bk. 3, ch. 3, Since the Declaration of Paris in 1856 the commissioning of priva
[own nation continues at peace with ours, they enjoy the right of residence here with other large privileges. But no subject of a nation at war with us can come into this realm, or travel himself upon the high seas, or send his goods and merchandize from one place to another, without danger of being seized by our subjects, unless he has letters of safe-conduct'; which by divers antient statutes were to be granted under the great seal and inrolled in chancery, or else they were of no effect (u). Passports under the king's sign manual, or licences from his ambassadors abroad, are, however, now more usually obtained, and are allowed to be of equal validity.
The law of England, a commercial country, has ever paid a very particular regard to foreign merchants. Thus, by Magna Carta, (cap. 41 (0)), if a war breaks out between their country and ours, they shall, if in England, be attached without harm of body or goods, till the king or his chief justiciary be informed how our merchants in their country are treated ; and if our merchants be well entreated there, theirs shall be likewise with us. This rule seems, indeed, to have been a common rule of equity among all the northern nations (.1). But it is somewhat extraordinary that it should have found a place in MagnaCarta, a mere interior treaty between the king and his naturalborn 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” (y). But indeed, it well justifies another observation which he has made, " that the English know better than any other people “ upon earth, how to value at the same time these three “ great things, religion, commerce, and liberty” (-).
(u) 15 Hen. 6 (1436), c. 3; 18 Hen. 6 (1439), c. 8; 20 Hen. 6 (1441), c. l; The Hoop (1799), 1 Rob. (C.) 196.
(v) Clause xxx in the confirmamation of 25 Edw. 1 (1297).
(c) Stiern De Jure Sueon.1.3.ch.4.
[(6) The monarch, as being a constituent part of the supreme legislative power, has (though at the present day only in theory) the prerogative of rejecting such provisions in parliament as he judges improper to be passed. The expediency of this particular prerogative has been before evinced at large (a); we shall, therefore, only mention here, that the Crown is not in general bound by Act of Parliament, unless named therein by special and particular words (V),--the most comprehensive words that can be devised not affecting the king, so as to restrain or diminish in the least any of his rights or interests (€). It would, indeed, 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. But 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 any established rights of the Crown, it is binding as well upon the ruler as upon the subject (d). Further, the king may take the benefit of any Act, though he be not specially named therein (e).
(7) The king is considered, in the next place, as the first in military command within the kingdom ; and in this capacity, he has the sole power of raising and regulating fleets and armies. This prerogative was solemnly declared, by the 13 Car. II. (1661), stat. 1, c. 6, to be in the king alone ; 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, being thereby recognised as the undoubted right of his majesty, and his royal predecessors, kings and queens of England. This statute, it will be observed, extends not only to fleets and armies, but also to forts,
(a) Vide xup. pp. 365, 366.
(c) Magdalen College Case (1616), 11 Rep. 66),; In re Henley & Co.
(1878), 9 Ch. D. 469 ; Re Oriental
(e) Case of Fine Leried by the king (1604), 7 Rep. 32.