Of the royal dignity. And These substantive or direct prerogatives may again be divided into such as regard the royal character, the royal authority, and the royal income. The law ascribes to the king the attribute of sovereignty or pre-eminence. By 24 Hen. 8, c. 12 & 25 Hen. 8, c. 28, the king is declared to be supreme head of the realm in matters 5 Geo. 3, c. 27. ecclesiastical and civil. see 24 Geo. 2, c. 14. Finch, L. 83. No suit or action can be brought against him in civil matters, because no court can have jurisdiction over him. All jurisdiction implies superiority of power: authority to try and to redress, but in the case of the king, no court can have either the one or the other. For the same reason the person of the king is sacred though his measures be tyrannical; for no jurisdiction can try or condemn him. If, however, any person has in point of property, a just demand upon him, the chancellor will, upon petition, administer right as a matter of grace, Finch, L. 255. though not upon compulsion. And with regard to personal wrongs, as the king cannot misuse his power without the advice of evil counsellors, or ministers, these men may be punished by parliamentary impeachments, if they assist the crown in contradiction to the laws. Yet, the supposition of law is, that neither the king nor parliament collectively taken can do any wrong; since in such cases the law cannot furnish any remedy. In the king there can be no negligence, or laches and, therefore, no delay will bar his right, nullum tempus occurrit regi, has been a standing maxim. In the king there can be no stain or corruption of blood; for if the heir to the crown were attainted of treason or felony, and afterwards the crown should descend to him, this would purge the attainder ipso facto. Nor can the king in judgment of law as king, ever be a minor; his grants, and assents to acts of parliament are good, though he has not attained twenty-one. Finch, L. 82. Finch, L. 82. 2 Inst. proem. 3. Political perpetuity of the king. Prerogative powers. The law ascribes to the king in his political capacity an absolute perpetuity: immediately upon the decease of the reigning prince, the imperial dignity, by act of law is vested at once in his heir, who is eo instanti king. In the exertion of lawful prerogative, according to the forms of the constitution, the king is absolute, there is no legal authority that can either delay or resist him. He may reject bills, make treaties, coin money, create peers, pardon offences as he pleases: unless where the constitution has expressly, or by evident consequence, laid down some exception or boundary. But if such prerogative be exerted in an unconstitutional manner, and the consequence of that exertion be the grievance or dishonour of the kingdom, parliament may call the advisers of the crown to a just and severe account. Power to appoint ambas sadors. To make war and peace. marque. The king, as the delegate or representative of his people, has the sole power of sending and receiving ambassadors. It is also his prerogative to make treaties, leagues, and alliances To make with foreign states and princes. The king has the sole treaties. prerogative of making war and peace. In order to make war, it is necessary that it be publicly and duly proclaimed. But as the delay of making war may sometimes be detrimental to individuals who have suffered by depredations from foreign potentates, it is provided by 4 Hen. 5, c. 7, that if any subjects of the realm are oppressed in time of truce by any foreigners, letters Letters of of marque and reprisal may be granted to those aggrieved. Passports or licenses from the king's ambassadors for safe conduct abroad, are also granted on application in time of peace. The rights and privileges of ambassadors are determined by The rights of the law of nature and nations, and not by any municipal constitutions. It has been much disputed whether this exemption of ambassadors extends to all crimes as well natural as positive. With us it has been held, that if an ambassador commits any offence against the law of nature, he shall lose his privilege. The general practice however, of this 4 Inst. 153. country, as well as of the rest of Europe, seems now to pursue In ambassadors. Barbyrac's Puff. 1, 8, c. 9, 175. P. 18, 4. 4. the sentiments of Grotius, that the security of ambassadors is De jure B. and of more importance than the punishment of a particular crime. respect to civil suits, all the foreign jurists agree that neither an ambassador nor any of his train or comites can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. domestic affairs. In domestic affairs, the king has the prerogative of rejecting The king's such provisions in parliament as he judges improper to be prerogative in passed. He is not bound by any act of parliament, unless he be named therein, except where such act 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. But he may take the benefit of any act, though he be not specially named. fleets. The king is the generalissimo, or the first in military com- Power of raismand, and has the sole power of raising and regulating fleets ing armies or and armies. He has also the prerogative of appointing ports and havens, as declared by 1 Eliz. c. 11, and 13 & 14 Car. 2, c. 11, s. 14. The erection of beacons, lighthouses and sea marks, is also a branch of the royal prerogative, but which is usually vested by letters patent in the lord high admiral. By As the fountain of justice. Bract. 1, 3. The king the public prose cutor. The legal ubiquity of the king. Fortesq. c. 8. 2 Inst. 186. 8 Eliz. c. 13, a similar power is given to the corporation of the Trinity House (a). To this branch of the prerogative may also be referred the power vested in the crown by 12 Car. 2, c. 4, and 29 Geo. 2, c. 16, of prohibiting the exportation of arms or ammunition, and the right of confining the subject to stay within the realm or of recalling him when abroad. The king is the fountain of justice, and general conservator of the peace of the kingdom; not the author or original, but the distributor of justice, the steward of the public to dispense it to whom it is due. He is not the spring, but the reservoir, from whence right and equity are conducted, by a thousand channels, to every individual. He alone has the right of erecting courts of judicature, all jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run in the king's name, they pass under his seal, and are executed by his officers the judges. In criminal proceedings or prosecutions for offences the king is the public prosecutor. All offences are either against the king's peace or his crown and dignity, and are so laid in the indictment, 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 king, 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 him to whom they are so delegated; he 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 hence arises 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. A consequence of this prerogative is the legal ubiquity of the king; who, in the eye of the law, is always present in all his courts, ready to undertake prosecutions or pronounce judgment for the benefit and protection of the subject, and from this ubiquity it follows that the king can never be nonCo. Litt. 139. suit, for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in court; for the same reason (a) By 6 & 7 Wm. 4, c. 79, all lighthouses upon the coasts of England, and other places adjoining or near thereto, and the tolls payable in respect thereof, were vested in the master, wardens, and assistants of the corporation of the Trinity House, and the lighthouses upon the coasts of Scotland and Ireland were placed under their supervision. also, in the forms of legal proceedings, the king is not said to appear by his attorney as other men do, being in contem- Finch, L. 81. plation of law always present. The prerogative of issuing proclamations is vested in the Proclamations. king alone, and these are binding upon the subject, where they do not either contradict the old laws or tend to establish new ones, but only enforce the execution of such laws as 4 Mod.177,179. are already in being. The king the honour. fountain of The king is the fountain of honor, of office, and of privilege, having the sole power of conferring dignities and honors. All degrees of nobility, of knighthood, and other titles, are received by immediate grant from the crown, either expressed in writing by writs or letters patent, as in the creation of peers and baronets, or by corporal investiture, as in the creation of a simple knight. The king has also the prerogative of erecting and disposing of offices. All honors in their original had duties or offices annexed to them; an earl comes was the conservator or governor of a county, and a knight miles was bound to attend the king in his wars. The king may create new offices as well as new titles, but he cannot create new offices with new fees annexed to them, nor annex new fees to old offices. He may also grant place or precedence to any of his 2 Inst. 533. subjects, convert aliens to denizens, and erect corporations. The king is the arbiter of domestic commerce, and has the prerogative of establishing public markets and fairs, with their tolls, and of regulating weights and measures, the standard of which was originally kept at Winchester, and of coining 2 Inst. 557. money. The king is by the laws of England the head and supreme governor of the national church, and in virtue of this authority he convenes, prorogues, restrains, regulates, and dissolves all ecclesiastical synods or conventions. 4 Inst. 361. And the arbiter of domestic 2 Inst. 220. commerce. The king the head of the church. CHAPTER VIII OF THE KING'S REVENUE. THE king's fiscal prerogatives are vested in him for the sup- of the king's port of his dignity and power, being a portion which each revenue. subject contributes of his property for the security of the remainder. This revenue is either ordinary or extraordinary. Ordinary and extraordinary. The ordinary revenue. 17 Edw. 2, c. 14. F. N. B. 32. 2 Inst. 64. The king's ordinary revenue is such as has subsisted immemorially, or has been granted by parliament in exchange for the same. The custody of the temporalities of bishops, or the lay revenues arising from archbishops' and bishops' sees during vacancy, are the rights of the king, who, as head of the church, is considered the founder; but this revenue is now merely nominal, as new bishops when consecrated receive the temporalities of their sees entire and untouched. The king is also entitled to all the tithes arising from extra parochial places, but which are held under an implied trust, to distribute them for the good of the clergy in general. Another branch of revenue consists in the first fruits and tenths of all spiritual preferments in the kingdom. But by 2 Ann. c. 11, all the revenue of first fruits and tenths is vested in trustees, to form a perpetual fund for the augmentation of poor livings, 1 Geo. 1, c. 10. called queen Anne's bounty, which is regulated by subsequent statutes (a). Queen Anne's 5 Ann. c. 24. 6 Ann. c. 27. 3 Geo. 1, c. 10. Fines, &c. Royal fish. Shipwrecks. Plowd. 166. The demesne lands of the crown, which afforded a further revenue, have been almost entirely granted away to private subjects. The profits arising from the king's ordinary courts of justice consisting of fines, forfeitures upon recognizances, and amercements, form another branch of the royal revenue, but these have been almost all granted out to private persons, or appropriated to certain uses. A further branch of revenue is the right to royal fish, which are whale and sturgeon. Another is that of shipwrecks. By 3 Edw. 1, c. 4, the sheriff of the county is to keep the goods thrown on the land a year and a day, that if any man can prove a property in them, either in his own right, or by right of representation, they shall be restored to him. If no such property be proved, they shall belong to the king. If the goods are of a perishable nature, the sheriff may sell them, and the money is liable in their stead. By 27 Edw. 3, c. 13, if any ship be lost on the shore, and the goods come to land, they shall be presently delivered to the merchants, paying only a reasonable (a) By 1 & 2 Vict. c. 20, for the consolidation of the offices of first fruits, tenths, and queen Anne's bounty, certain offices attached thereto were abolished, and alterations made in the mode of collection. The bishop of Ripon was constituted governor, and it was provided, that an account of all receipts and disbursements should be annually laid before parliament. |