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[to for state purposes. It is now used only to prevent one of the parties to an action from withdrawing his person or property from the jurisdiction of the court by going abroad, unless he shall first give security for the satisfaction of such claim as the other party shall-establish (e). But possibly, even at the present day, disobedience to a writ of ne exeat regno would be a high contempt of the royal prerogative : and it is said, that, in such case, the offender's lands shall be seized till he return, and that he is then liable to fine and imprisonment (j').
(8) Another capacity in which the king is considered in domestic affairs, is as the fountain of justice, and general conservator of the peace of the kingdom (g); but, by the fountain of justice, the law does not mean that the king is the author or original, but only the distributor, and as it were the steward of the public, to. dispense justice to whom it is due.] The power of judicature has been usually committed to certain select magistrates ; and in England, these magistrates are considered as in some sense the substitutes of the Crown, the king himself still remaining, according to the prerogative now under consideration, the fountain of that justice which they administer. Hence it is, that the jurisdiction of all courts is now either mediately or immediately derived from the Crown, the magistrates or judges who preside therein are all appointed by the authority of the Crown, and the proceedings run generally in the king's name, pass under his seal, and are executed by his officers. [Indeed, it is probable, that in very early times, the king in person often heard and determined causes between party and party ; but at present, and by consequence of the long and uniform usage of many ages, our monarchs
(e) Ex parte Brunker (1734), 3 P. Wms. 312; Dick v. Suinton (1813), 1 V. & B. 371; Goodman v. Sayers (1821), 5 Madd. 471 ; Sobey v. Sobey (1873), L. R. 15 Eq.
200; Drorer v. Beyer (1879), 13 Ch. D. 242.
(f) i Hawk. P. C. 22
(9) Bac. Ab. Prerog. D. ; Com. Dig. Prerog. 1. 28.
[have delegated their whole judicial power to the judges of their several courts (1), and (as Sir Edward Coke declared in 1607) may no longer interfere with the regular conduct of business therein.
In regard to criminal proceedings, it would, indeed, be absurd if the king personally intervened, because, in regard to these, he is the prosecutor, all offences being considered as having been committed either against the king's peace or against his crown and dignity ; and it was formerly necessary in every indictment so to describe them. For though, in their consequences, they generally seem to be rather offences against the kingdom than against the king, yet since the public has delegated all its powers and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to those powers and breaches of those rights are immediately offences against that magistrate. And this notion was carried so far in the old Gothic constitution (wherein the king 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 king's coronation oath (). Hence arises also another branch of the prerogative, that of pardoning offences ; for it is reasonable that he only who is injured should have the power of forgiving. Of prosecutions and pardons, however, more will be said hereafter ; they are mentioned here, 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. The remission of penalties for criminal offences is also a branch of this prerogative of the sovereign (k).
A consequence of the particular prerogative now under
(h) 2 Hawk. P. C. 1.
(i) Stiern., de Jure Sueon. 1. 3, ch. 3.
(2) The Remission of Penalties
Acts, 1859 and 1875 ; Todd v.
[consideration is the legal ubiquity of the king. His majesty, in the eye of the law, is always present in all his courts, though he cannot personally distribute justice therein (1). From this ubiquity, it follows that the king can never be nonsuited (m); though the attorney-general may enter a non vult prosequi, which has much the same effect. For the same reason also, in the forms of legal proceedings, the king is never said to appear by attorney, as other men may do ; for, in contemplation of the law, he is always present in court (n).
From the same original, of the king's being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in him alone. These royal proclamations have a binding force, but only when they are grounded upon and enforce the laws of the realm (o). For though the making of laws is entirely the work of the legislative branch of the supreme power, yet the manner, time, and circumstances of putting those laws in execution, must frequently be left to the discretion of the executive magistrate. And therefore it is that royal proclamations are binding upon the subject, where, neither contradicting the old laws, nor tending to establish new ones, they enforce only the execution of such laws as are already in being. For example, the established law is, that the king may prohibit any of his subjects from leaving the realm ; a proclamation, therefore, forbidding this in general, for three weeks, by laying an embargo upon all shipping in time of war, has been held equally binding as an Act of Parliament (p). But a proclamation laying an embargo, in time of peace, upon all vessels laden with wheat, contrary to the 22 & 23 Car. II. (1671), c. 13, would be an illegal proclamation (1). It was, however, once enacted hy the Statute of Proclamations (1539), that the king's
(?) Fortesc. ch. 8 ; 2 Inst. 186. (p) 4 Mod. 177, 179. (m) Co. Litt. 139 b.
(9) 7 Geo. 3 (1767), c. 7. This (n) Finch, L. 81.
Act, as also the Act of Charles, is (0) 3 Inst. 162. Case of Procla- now repealed. mations (1610), 12 Rep. 74.
[proclamations made with the assent of his council should have the force of Acts of Parliament-a statute which, as being calculated to introduce the most despotic tyranny, was repealed almost as soon as made, i.e., about eight years afterwards (r).]
(9) The king is also, as parens patriæ, invested with a kind of guardianship over various classes of persons who from their legal disability stand in need of protection (s). And this branch of the prerogative extends to infants, who have been sufficiently noticed already (t), and also to idiots and lunatics. These we will now consider.
[An idiot (or natural fool) is one that hath had no understanding from his nativity, and therefore is by law presumed never likely to attain any ; but none is to be held such who hath any glimmering of reason (u). The custody of an idiot and of his lands was formerly vested in the lord of the fee (2); but, by common consent, it was afterwards given to the king as the general conservator of his people (y). The prerogative in this matter is declared by the De Prærogativů Regis in the reign of Edward II. (1324), which, in affirmance of the common law (2), directs that the king shall have ward of the lands of natural fools, taking the profits without waste or destruction, and finding them necessaries; and that after the death of such idiots he shall render the estate to the heirs, in order to prevent such idiots from alienating their lands, and their heirs from being disinherited. This statute extends to the goods and chattels also (a), but not to the copyhold lands (b), of idiots.
By the old common law, there was a writ de idiota inquirendo, to inquire whether a man were an idiot or
(r) 1 Edw. 6 (1547), c. 12.
(8) De Janerille v. De Mannerille (1804), 10 Ves. 52.
(1) Vide sup. bk. ii. pt. iii. ch. iv. (u) F. N. B. 233;
Bal! v. Mannin (1829), 3 Bligh (s.s.) 1.
(2:) Fleta, lib. I. ch. 11, s. 10.
(a) Bererley's Case (1604), 4 Rep. 126 a ; F. N. B. ubi sup.
(l) Bac. Ab. Idiot: C.
[not (C); which question was tried by a jury of twelve
And if they found him purus idiota, the profits of his lands and the custody of his person belonged to the king, who might have granted them to any subject he pleased (d); but no grievance of this kind ever now occurs, for that part of the prerogative which relates to idiots has been long merged in the part of the prerogative which relates to lunatics, to the consideration of which we will now proceed (e).
A lunatic is a person who hath had understanding, but by disease, grief, or other accident, hath lost the use of his reason (1), or has become non compos, that is, of mind so unsound as to be incapable of conducting himself or his attairs. And the term non compos is the more legal, the term lunatic being in its derivation applicable only to one that hath lucid intervals, though now used technically, as well as popularly, in the more extended sense, of a person affected by any species of insanity supervening since his birth. To all lunatics, as well as to idiots, the king is guardian ; but, in the case of lunatics, the law always imagines that the lunacy may determine, and therefore only constitutes the Crown a trustee to protect the property, accounting to the lunatic for the profits received, if he recover, or, after his decease, to his representatives. And, by the De Prærogatirå Regis of Edward II., it is declared, that the king shall provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them for their use when they come to their right mind ; and further, that the king shall take nothing to his own use, but that the residue, on the death of the lunatic dying in his lunacy, shall go to his or her executors or administrators. ]
(c) F. N. B. 232. (d) 4 Inst. 203.
(e) Under s. 341 of the Lunacy Act, 1890, “lunatic” (where not
inconsistent with the context) includes “idiot."
“Idiota a casu et infirmitate.” - Mem. Scacc. 20 Edw. 1 (in May. nard, Year Book of Edward 2), 20.