in his own cause. In pursuance of which principle, it was declared by statute 4 Hen. 5, c. 7, that if subjects of the realm are oppressed in the time of truce by foreigners, the king will grant marque in due form, to all who feel themselves aggrieved. Which form is thus directed to be observed: the sufferer must first apply to the lord privy-seal: and he shall make out letters of request under the privy-seal: and if, after such request of satisfaction made, the party required do not within a 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. The granting of letters of marque, however, under the above statute of Henry V. was limited to persons actually aggrieved, and has long been discontinued. Letters of *marque are now issued under the provisions of various acts [* 309] of parliament or in virtue of a royal proclamation. If during war a subject without any commission from the crown effect the capture of an enemy's ship, the prize belongs not to the captor but to the sovereign(g); wherefore, with a view to encourage merchants and others to fit out armed ships in time of war, the admiralty has been empowered (h) to grant commissions to private persons, fitting out such ships called privateers, entitling them to special advantages. Under these commissions all the prizes captured are to be divided according to the contract entered into between the owners and the master and the crew of the privateer. But the owners, before such commissions are granted, are required to give security to the admiralty to make compensation for injuries committed against those powers with whom the nation is at peace(i); and are also required to give security that such ships shall not be employed in smuggling(k). Letters of marque or general reprisals thus constituted are valid only during the war, and may be vacated either by express revocation, or by the misconduct of the parties, as, for example, by their cruelty(7).

V. Upon exactly the same reason stands the prerogative of granting safeconducts, without which, by the law of nations, no member of one society has (V.) In granting a right to intrude into another. (85) And therefore, as Puffendorf resolves(m), it is left in the power of all states, to take such

passports.

(g) Per Cur. Carth. 399.

of releasing prizes captured by such ships at

(h) See statutes 29 Geo. 2, c. 34; 19 Geo. 3, any time previously to condemnation. Stir

c. 67; 24 Geo. 3, c. 47.

(i) See 2 Vern. 592.

(k) 24 Geo. 3, c. 47. The crown has the right

ling v. Vaughan, 11 East, 619.

(1) The Mariamne, 5 Robins. R. 9.
(m) Law of N. and N. b. 3, c. 3, s. 9.

(85) Congress has regulated the issuing of passports, by act of Aug. 18th, 1856, ch. 127, § 23; 11 Stat. at Large, 60, 61, as follows: "That the secretary of state shall be authorized to grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by such diplomatic or consular officers of the United States, and under such rules as the president shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify any such passport; nor shall any passport be granted or issued to, or verified for, any other persons than citizens of the United States; nor shall any charge be made for granting, issuing, or verifying any passport, except in a foreign country; and in any case the fee allowed therefor shall not exceed the sum of one dollar, nor shall any such charge be made for more than one such verification in any foreign country; and if any person acting, or claiming to act, in any office or capacity, under the United States, or any of the states of the United States, who shall not be lawfully authorized so to do, shall grant, issue, or verify any passport, or other instrument in the nature of

measures about the admission of strangers, as they think convenient; those being ever excepted who are driven on the coast by necessity, or by any cause that deserves pity *or compassion. Great tenderness is shown by our [* 310] laws, not only to foreigners in distress (as will appear when we come to speak of shipwrecks), but with regard also to the admission into the realm of strangers who come hither spontaneously. For so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the sovereign's protection; though liable to be sent home if occasion for thus exerting the prerogative should arise. But no subject of a nation at war with us can, by the law of nations, come into the realm, nor travel upon the high seas, nor 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 under divers ancient statutes(n) were granted by the king's seal and enrolled in chancery, or else were of no effect: the king being supposed the best judge of such emergencies, as may deserve exemption from the general law of arms. But passports under the sovereign's sign-manual, or licences from his ambassadors abroad, are now more usually obtained, and are allowed to be of equal validity. The residence of aliens in this country is regulated by the statute law(0).

The law of England, as a commercial country, pays a very particular regard to foreign merchants, in innumerable instances, of which one especially deserves notice. By magna carta(p) it is provided that all merchants (unless publicly prohibited beforehand) 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 and their country, they shall be attached (if in England) without

(n) 15 Hen. 6, c. 3; 18 Hen. 6, c. 8; 29 Hen. 6, c. 2.

(0) Post, chap. x.
(p) C. 30.

a passport, to or for any citizen of the United States, or to or for any person claiming to be or designated as such in such passport or verification, or if any consular officer who shall be authorized to grant, issue, or verify passports, shall knowingly and willfully grant, issue, or verify any such passport to or for any person not a citizen of the United States, the person so offending shall be deemed and be taken to be guilty of a misdemeanor, and on conviction thereof shall be imprisoned not exceeding one year, or fined in a sum not to exceed five hundred dollars, or both, and may be charged, proceeded against, tried, convicted, and dealt with therefor in the district where he may be arrested or in custody; and it shall be the duty of all persons who shall be authorized, pursuant to the provisions of this act, to grant, issue, or verify passports, to make return of the same to the secretary of state, in such manner and as often as he shall require; and such returns shall specify the names and all other particulars of the persons to whom the same shall be granted, issued, or verified, as embraced in such passport; Provided, that in any country where a legation of the United States is established, no other person than the diplomatic representatives at such place shall be permitted to grant or issue any passport, except in the absence therefrom of such representative." See 12 Stat. at Large, 754, § 23; 14 Stat. at Large, 54, ch. 102.

By resolution of congress No. 8, Feb. 3, 1870; 16 Stat. at Large, 368, it is declared "That the clerk in the department of state who may from time to time be assigned to the duty of examining applications for passports, is hereby authorized and empowered to receive and attest, but without charge to the affiant, all oaths, affidavits, or affirmations which are or may be required by law, or by the rules of the department of state, to be made before granting such passport or passports; and such oaths, affidavits, or affirmations shall be deemed to be made under the pains and penalties of perjury."

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; [*311] 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 the northern nations; for we learn from Stiernhook(g), that it was a maxim among the Goths and Swedes, quam legem exteri nobis posuere, eandem illis ponemus. But it is somewhat extraordinary that this rule should have found a place in magna carta, a mere interior treaty between the king and his natural-born 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 "(r). It well justifies indeed 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 to follow the profession of the law(x).

These are the principal prerogatives of the sovereign respecting this nation's intercourse with foreign nations; in all of which he is considered as the delegate or *representative of his people. As regards domes[ *312] tic affairs he is also considered in a great variety of mestic affairs. characters, and hence there arises an abundant number of other prerogatives.

The royal authority and power in do

stituent part of

I. The sovereign is a constituent part of the supreme legislative power; and, as such, has the prerogative of rejecting such provisions in parliament, as he (I.) The sove- judges improper to be passed. The expediency of this constitureign is a con- tion has already been evinced at large(y), and in connexion with the legislature. it I shall only further remark, that the sovereign 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(z). 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,

(q) De jure Sueon, 1. 3, c. 4. (r) Sp. L. 20, 13.

(8) Ibid, 20, 6.

(t) Nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciousum urbibus mercimonium exercere prohibemus. C. 4. 63. 3.

(u) Homo mercator vix aut nunquam potest Deo placere; et ideo nullus christianus debet

esse mercator, aut si voluerit esse, projiciatur de ecclesia Dei. Decret. 1. 88. 11.

(x) Falsa fit pænitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quæ sine peccatis agi ullâ ratione non prævalet. Act. Concil. apud Baron, c. 16.

(y) Ante, chap. ii.

(2) The Magdalen College Case, 11 Rep. 74; Broom's Leg. Max., 4th ed. pp. 73, et seq.

it is said to be binding as well upon the sovereign as upon the subject(a): and, likewise, the sovereign may take the benefit of any particular act, although not especially named therein(b).

II. The sovereign 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 tary and naval of the community: and one principal use of government is to direct that united strength in the best and most *effec

simo in mili

affairs.

tual manner, to answer the end proposed. Monarchical government [* 313] is allowed to be the fittest for this purpose: it follows therefore, from the very end of its institution, that in a monarchy the military power must be entrusted to the prince.

can raise and regulate fleets and armies;

In this capacity therefore, of general of the kingdom, the sovereign has the sole power of raising and regulating fleets and armies. Of the manner in which In this capacity they are raised and regulated, I shall speak more, when treating of the military state. We are now only to consider the prerogative of enlisting and governing our military and naval forces; this prerogative, indeed, was disputed and contrary to all precedent claimed by the long parliament of king Charles I.; but, upon the restoration of his son, was solemnly declared by statute 13 Car. 2, c. 6, to be in the king alone; for that" within all his majesty's realms and dominions the sole supreme government, command, and disposition of the militia, and of all forces by sea and land, and of all forts and places of strength, by the laws of England, ever was the undoubted right of his majesty, and his royal predecessors, kings and queens of England; and that both or either of the houses of parliament cannot, nor ought to, pretend to the same."

This statute of Charles II. obviously extends not only to fleets and armies, but also to forts and other places of strength, within the realm: the sole pre

build forts;

rogative as well of erecting, as of manning and governing, which belongs to the sovereign in his capacity of general of the kingdom(c): and all lands were formerly subject to a tax, for building of castles wherever the sovereign thought proper. This was one of the three things, from contributing to the performance of which no lands were exempted; and therefore designated by our Saxon ancestors the trinoda necessitas: sc. pontis reparatio, arcis constructio, et expeditio contra hostem (d). And for this contribution *they were called upon so often, that as sir Edward Coke citing M. [* 314] Paris assures us(e), 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 Newburg remarks in the reign of king Stephen, "erant in Anglia quodammodo tot reges vel potius tyranni, quot domini castellorm." These inconveniences were felt by none more sensibly than by two succeeding princes, king John and king Henry III., and, the greatest part of these castles being demolished in the barons' wars, the sovereigns of after times were very cautious about suffering them to be rebuilt in a fortified manner: sir

(a) 11 Rep. 71.
(b) 7 Rep. 32.
(c) 2 Inst. 30.

(d) Cowel's Interp. tit. Castellorum Operatio. Seld. Jan. Ang. 1, 42.

(e) 2 Inst. 31.

Edward Coke indeed lays it down(f), that no subject can build a castle, or house of strength, imbattled, or other fortress defensible, without the licence of the crown; by reason of the danger which would ensue, if every man at his pleasure might do it.

Measures for defence of the realm, which necessarily involve a large expenditure of the public money are now exclusively undertaken by the legislature(g). Partly upon the theory of our constitution that the sovereign is general of the kingdom, and partly upon a fiscal foundation, to secure his marine revenue, appoint ports is based the royal prerogative of appointing ports and havens, or and havens; such places only at which persons and merchandize may pass into and out of the realm, as the sovereign in his wisdom sees proper. By the feudal law all navigable *rivers and havens were computed among the [* 315] regalia(h), and were subject to the sovereign of the state. And in England it has always been held, that the sovereign is lord of the whole shore (i), and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm(k): and therefore, so early as the reign of king John, we find ships seized by the king's officers for putting in at places which were not legal ports (1). These legal ports(m) were undoubtedly at first assigned by the crown; since to each of them a court of port-mote was incident(n), the jurisdiction of which must have flowed from the royal authority: the great ports of the sea are also referred to, as well known and established, by statute 4 Hen. 4, c. 20, which prohibits the landing elsewhere under pain of confiscation; and the statute 1 Eliz. c. 11, recites, that the franchise of lading and discharging had been frequently granted by the crown.

and quays.

But though the sovereign had a power of granting the franchise of havens and ports, yet he had not the power of resumption, or of narrowing and conassign wharves fining their limits when once established; but any person had a right to load or discharge his merchandize in any part of the haven; whereby the revenue of the customs was much impaired and diminished, by fraudulent landings in obscure and private corners. This occasioned the statutes 1 Eliz. c. 11, and 13 & 14 Car. 2, c. 11, s. 14, which enabled the crown by commission to ascertain the limits of all ports, and to assign proper wharves and quays in each port, for the exclusive landing and loading of merchandize. (86)

These statutes indeed were repealed by the 6 Geo. 4, c. 105. And now by statute 16 & 17 Vict. c. 107, s. 9, the *commissioners of the treasury [* 316] are empowered by their warrant to appoint any port in the United Kingdom or Channel Islands, to declare the limits thereof, and to appoint

(f) 1 Inst. 5.

(g) See, for instance, the following recent statutes, 23 & 24 Vict. c. 112 ("An act to make better provision for acquiring lands for the defence of the realm,") explained by stat. 28 & 29 Vict. c. 65; 23 & 24 Vict. c. 109 (“An act for defraying the expenses of constructing fortifications for the protection of the royal arsenals and dockyards," &c.); in connection

with which see 25 & 26 Vict. c. 78; 27 & 28
Vict. c. 57; 27 & 28 Vict. c. 109 ("The Ad-
miralty Lands and Works Act, 1864”).
(h) 2 Feud. t. 56; Crag. 1, 15, 15.
(i) F. N. B. 113.

(k) Dav. 9, 56.

() Madox. Exch. 530.

(m) As to the cinque ports, post, vol. iii. (n) 4 Inst. 148.

(86) Congress has power to lay and collect taxes, duties, imports-to regulate commerce with foreign nations, and among the several states, and with the Indian tribes; and the powers so conferred carry with them the right to declare what ports shall be ports of entry, and to erect and maintain beacons, light-houses, etc. U. S. Const., art. 1, § 8.