V. Safe conducts. judge in his own cause. In pursuance of which principle, it is with us declared by the statute 4 Hen. V. c. 7, that, if any subjects of the realm are oppressed in the time of truce by any foreigners, the king will grant marque in due form, to all that feel themselves grieved. Which form is thus directed to be observed: the sufferer must first apply to the lord privyseal, and he shall make out letters of request under the privyseal; and if, after such request of satisfaction made, the party required do not, within convenient time, make due satisfaction or restitution to the party grieved, the lord chancellor shall make him out letters of marque under the great seal; and by virtue of these he may attack and seize the property of the aggressor nation, without hazard of being condemned as a robber or pirate (19). V. Upon exactly the same reason stands the prerogative of granting safe conducts (20), without which by the law of nations no member of one society has a right to intrude into another. And therefore Puffendorf very justly resolves (n), that it is left in the power of all states to take such measures (n) Law of N. and N. b. 3, c. 3, s. 9. (19) The statute of Hen. V. is confined to the time of a truce, wherein there is no express mention that all marques and reprisals shall cease. This manner of granting letters of marque, I conceive, has long been disused, and, according to the statute of Hen. V., could only be granted to persons actually aggrieved.-But if, during a war, a subject, without any commission from the king, should take an enemy's ship, the prize would not be the property of the captor, but would be one of the droits of the admiralty, and would belong to the king, or his grantee, the admiral. (Carth. 399; 2 Woodd. 433). Therefore, to encourage merchants and others to fit out privateers, or armed ships, in time of war, by various acts of parliament, the lord high admiral, or the commissioners of the admiralty, are empowered to grant commissions to the owners of such ships; and the prizes captured shall be divided according to a contract entered into between the owners and the captain and crew of the privateer. But the owners, before the commission is granted, shall give security to the admiralty to make compensation for any violation of treaties between those powers with whom the nation is at peace. And by the 24 Geo. III. c. 47, they shall also give security that such armed ship shall not be employed in smuggling. These commissions in the statutes, and upon all occasions, are now called letters of marque. (29 Geo. II. c. 34; 19 Geo. III. c. 67; Molloy, c. 3, s. 8). Or sometimes the lords of the admiralty have this authority by a proclamation from the king in council, as was the case in Dec. 1780, to empower them to grant letters of marque to seize the ships of the Dutch.-CH. (20) See Vol. 4, p. 68. about the admission of strangers as they think convenient; those being ever excepted who are driven on the coasts by necessity, or by any cause that deserves pity or compassion. Great tenderness is shewn by our laws, not only to foreigners in distress, (as will appear when we come to speak of shipwrecks), but with regard also to the admission of strangers who come spontaneously. For, so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under *the king's protection; though liable to be sent home whenever the king sees occasion. But no subject of a nation at war with us can, by the law of nations, come into the realm, nor can 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 (o) must be granted under the king's great seal and inrolled in chancery, or else are of no effect: the king being supposed the best judge of such emergencies, as may deserve exception from the general law of arms. But passports under the king's sign-manual, or licences from his ambassadors abroad, are now more usually obtained, and are allowed to be of equal validity (21). Indeed, the law of England, as a commercial country, pays a very particular regard to foreign merchants in innumerable instances. One I cannot omit to mention: that by magna charta (p) it is provided, that all merchants (unless publicly prohibited before-hand) shall have safe-conduct to depart from, to come into, to tarry in, and to go through England, for the exercise of merchandize, without any unreasonable imposts, except in time of war: and, if a war breaks out between us (0) 15 Hen. VI. c. 3; 18 Hen. VI. c. 8; 20 Hen. VI. c. 1. (21) The alien acts which at different periods have been in force in this country, were perhaps expedient at the times when they were passed; but with the necessity, real or supposed, upon which these acts were grounded, the troublesome restrictions upon foreigners have also been allowed to cease. The alien act of the present session, (1836), while it affords all the infor- [ *260 ] and their country, they shall be attached (if in England) without harm of body or goods, till the king or his chief justiciary be informed how our merchants are treated in the land with which we are at war: and, if ours be secure in that land, they shall be secure in ours. This seems to have been a common rule of equity among all the northern nations; for we learn from Stiernhook (9), that it was a maxim among the Goths and Swedes, "quam legem exteri nobis posuere, eandem illis ponemus." But it is somewhat extraordinary, that it should have found a place in magna charta, a mere interior treaty between the king and his natural-born subjects: which occasions the learned Montesquieu to remark, with a degree of [261] admiration, "that the English have made the protection of foreign merchants one of the articles of their national liberty (r)." But indeed it well justifies another observation which he has made (s), "that the English know better than any other people upon earth, how to value at the same time these three great advantages, religion, liberty, and commerce." Very different from the genius of the Roman people; who, in their manners, their constitution, and even in their laws, treated commerce as a dishonourable employment, and prohibited the exercise thereof to persons of birth, or rank, or fortune (t) and equally different from the bigotry of the canonists, who looked on trade as inconsistent with Christianity (u), and determined at the council of Melfi, under Pope Urban II. A. D. 1090, that it was impossible with a safe conscience to exercise any traffic, or follow the profession of the law (w). These are the principal prerogatives of the king respecting this nation's intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people. But in domestic affairs he is considered in a great (q) De jure Sueon. 1. 3, c. 4. (s) Ibid. 20, 6. (t) Nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercere prohibemus. C. 4, 63, 3. (u) Homo mercator vix aut nunquam potest Deo placere: et ideo nullus Chris tianus debet esse mercator; aut si voluerit esse, projiciatur de ecclesia Dei. Decret. 1. 88. 11. (w) Falsa fit pœnitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quæ sine peccatis agi ulla ratione non prævalet. Act. Concil. apud Baron. c. 16. variety of characters, and from thence there arises an abundant number of other prerogatives. I. First, he is a constituent part of the supreme legislative power; and, as such, has the prerogative of rejecting such provisions in parliament as he judges improper to be passed. The expediency of which constitution has before been evinced at large (x). I shall only further remark, that the king is not bound by any act of parliament, unless he be named therein by special and particular words. The most general words that can be devised ("any person or persons, bodies politic or corporate, &c.") affect not him in the least, if *they may tend to restrain or diminish any of his rights or interests (y). For it would 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. Yet, 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 the established rights of the crown, it is said to be binding as well upon the king as upon the subject (z): and, likewise, the king may take the benefit of any particular act, though he be not especially named (a). II. The king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community: and the principal use of government is to direct that united strength in the best and most effectual manner to answer the end proposed. Monarchical government is allowed to be the fittest of any for this purpose: it follows, therefore, from the very end of its institution, that in a monarchy the military power must be trusted in the hands of the prince. In this capacity, therefore, of general of the kingdom, the king has the sole power of raising and regulating fleets and armies. Of the manner in which they are raised and lated I shall speak more, when I come to consider the military state (22). We are now only to consider the prerogative of regu 1. The king a con stituent part of the legislature. [ *262 ] II. The king the command within first in military the kingdom, and has the sole and regulating power of raising its fleets and armies. enlisting and of governing them: which indeed was disputed and claimed, contrary to all reason and precedent, by the long parliament of King Charles I.; but, upon the restoration of his son, was solemnly declared by the statute 13 Car. II. c. 6, to be in the king alone: for that 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 [ *263] and places of strength, ever was and is the *undoubted right of his majesty, and his royal predecessors, kings and queens of England: and that both or either house of parliament cannot, nor ought to, pretend to the same. Construction of the stat. 13 Car. II. c. 6. This statute, it is obvious to observe, extends not only to fleets and armies, but also to forts, and other places of strength, within the realm; the sole prerogative as well of erecting, as manning and governing of which, belongs to the king in his capacity of general of the kingdom (b): and all lands were formerly subject to a tax, for building of castles wherever the king thought proper. This was one of the three things, from contributing to the performance of which no lands were exempted; and therefore called by our Saxon ancestors the trinoda necessitas: sc. pontis reparatio, arcis constructio, et expeditio contra hostem (c). And this they were called upon to do so often, that, as Sir Edward Coke from M. Paris assures us (d), there were, in the time of Henry II. 1115 castles subsisting in England. The inconveniences of which, when granted out to private subjects, the lordly barons of those times, were severely felt by the whole kingdom; for, as William of Newburgh remarks in the reign of King Stephen, "erant in Anglia quodammodo tot reges vel potius tyranni, quot domini castellorum:" but it was felt by none more sensibly than by two succeeding princes, King John and King Henry III. And, therefore, the greatest part of them being demolished in the barons' wars, the kings of aftertimes have been very cautious of suffering them to be rebuilt in a fortified manner: and Sir Edward Coke lays it down (e), that no subject can build a castle, or house of strength embattled, or other fortress defensible, without the licence of the king; for the danger which might ensue, if every man at his pleasure might do it. |