peace upon *all vessels laden with wheat (although in a time of pub

[*324] lic scarcity) being contrary to law, and particularly to statute 22 Car.

2, c. 13, the advisers of such a proclamation, and all persons acting under it, found it necessary to be indemnified by a special act of parliament, 7 Geo. 3, c. 7. It was indeed enacted by the statute 31 Hen. 8, c. 8, that the king's proclamations should have the force of acts of parliament(x); a statute, which was calculated to introduce the most despotic tyranny; and which might have proved fatal to the liberties of this kingdom, had it not been luckily repealed(y), in the minority of his successor, about five years after it had been passed.

IV. The sovereign is likewise the fountain of honour, of office, and of privilege and this in a different sense from that wherein he is styled the foun(IV.) Is the tain of justice. A due subordination of rank is essential for the fountain of maintenance of government; the people must know and distinhonour, office, and privilege. guish such as are set over them, in order to yield them a due respect and obedience; the officials themselves, if encouraged by emulation and the hopes of preferment will the better discharge their functions, and the law supposes that no one can be so good a judge of their several merits and services, as the sovereign who employs them. It has therefore entrusted him with the sole power of conferring dignities and honours, in confidence that he will bestow them upon none but such as deserve them. And therefore all degrees of nobility, of knighthood, and other titles, are received by immediate grant from the crown: either expressed in writing, by writ or letters patent, or by corporeal investiture.(89)

bestow honours and offices,

From the same principle also arises the prerogative of *erecting [*325] and disposing of offices: for honours and offices are in their nature In this capacity convertible and synonymous. All offices under the crown carry can erect and in the eye of the law honour along with them; because they imply superiority of parts and abilities, being supposed to be always filled by those who are most able to execute them. And, on the other hand, all honours had originally 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. For the same reason, therefore, that honours are at the disposal of the sovereign, offices ought to be so likewise; and as the sovereign may create new titles, so may he create new offices: but with this restriction, that he cannot create new offices, with new fees annexed to them, nor annex new fees to old offices; for this would be a tax upon the subject, which cannot be imposed but by act of parliament (z). Wherefore, in 13 Hen. IV., a new office being created by the king's letters patent for measuring cloths, with a new fee for the same, the letters patent were, on account of the new fee, revoked and declared void in parliament (a).

(x) But with a proviso, that such proclamations should not be prejudicial to any person's inheritance, offices, liberties, goods, and chattels, or infringe the established laws.

(y) Stat. 1 Edw. 6, c. 12.
(2) 2 Inst. 533.
(a) Ibid.

(89) "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." U. S. Const., art. 1, § 9.

States are also prohibited from granting any titles of nobility. Ib., § 10.

Upon the same, or a like reason, the sovereign has also the prerogative of conferring privileges upon private persons; such as granting place or precedence

grant precedence, make denizens, and erect corporations.

to any subject(b), though this particular branch of the prerogative has been to some extent restrained by statute(c).

It is within the power of the sovereign also to convert aliens, or persons born out of the dominions of the crown into denizens; whereby some very considerable privileges of *natural-born subjects are [ *326] conferred upon them.(90) Such also is the prerogative of erecting corporations; whereby a number of private persons are united and knit together and enjoy many liberties, powers, and immunities in their political capacity, which they were utterly incapable of in their natural. (91) Of aliens, denizens, natural-born, and naturalized subjects, I shall speak more largely in a subsequent chapter(d); as also of corporations at the close of this Book of our Commentaries(e). I now only mention them incidentally, in order to remark the royal

(b) 4 Inst. 361. This prerogative her present majesty was pleased to exercise, by ordaining that his late royal highness prince Albert, should, except where otherwise provided by Act of Parliament, have place, preeminence, and precedence next to her majesty.

*

(Gaz. March 5, 1840; see also Parl. Deb. li. pp. 575, 923, 1079.)

(c) 31 Hen. 8, c. 10; 39 & 40 Geo. 3, c. 67, art. 4.

(d) Post, chap. x.
(e) Post, chap. xvii.

To establish an uniform rule of natural

(90) The congress shall have power ization." U. S. Const., art. 1 § 8. Congress by act of 14 April, 1802, § 1; 2 Stat. at Large, 153, provides that aliens may, upon certain conditions, be admitted to citizenship, by the supreme, superior, district or circuit courts of some one of the states, or of the territorial districts of the United States, or a circuit or district court of the United States. And every court of record in any indi vidual state, having common-law jurisdiction, and a seal and clerk or prothonotary, is considered a district court within the meaning of the act. Ib., § 2. Minor children of naturalized persons become citizens. Ib., § 3. By act of congress 17 July, 1862, § 11; 12 Stat. at Large, 597, a liens of the age of twenty-one years and upward who enlist in the armies of the United States, either of the regular or volunteer forces, and who have been honorably discharged, are admitted without previous declaration of intention, etc., and need not prove more than one year's residence.

As to the authority under which the state courts act in naturalization cases, see Ramsden's Case, 13 How. Pr. 429; Morgan v. Dudley, 18 B. Monr. 693, 714; Rump v. Commonwealth, 30 Penn. St. 475; People v. Sweetman, 3 Park. Cr. 358; People v. Pease, 30 Barb. 588, 603; S. C., 27 N. Y. (13 Smith) 45; Stephens' petition, 4 Gray (Mass.), 559; Chirac v. Chirac, 2 Wheat. (U.S.) 259, 269; Matter of Conner, 39 Cal. 98.

The United States courts have jurisdiction of offenses against the naturalization laws. Act of July 14, 1870; 16 Stat. at Large, 255, § 4.

(91) The constitution of the United States does not in express terms confer upon congress the power to create corporations. But the incidental power, as auxiliary to other powers expressly given, in the creation of corporations, was sustained when the constitutionality of the old United States bank was questioned. McCullough v. Maryland, 4 Wheat. 316.

By the act of June 3, 1864, 13 Stat. at Large, 99, congress provided for a system of national banks; and these corporations are numerous, and exist in every part of the country. The legislatures of the several states also provide for the creation and organization of corporations. And it may be said generally that the power to create and organize corporations in this country is conferred by the state legislatures or by congress, and that neither the president, nor the governors of the several states have any power in this respect, except that of signing such laws as the state legislatures or congress may enact. This power to create corporations is conferred upon the legislatures by the constitutions of many if not all the states. And it is a rule of very extensive application, that corporations shall be organized under the provisions of general laws, instead of special enactments.

prerogative of making them; which is grounded upon this foundation, that the sovereign having the sole administration of the government in his hands, is the supreme and only judge, in what capacities, with what privileges, and under what distinctions, his people are best qualified to serve, and to act under him. A principle, which was carried so far by the imperial law, that it was held sacrilegious even to doubt whether the prince had appointed proper officers in the state(f).

(V.) Is the arbiter of commerce.

V. Another light, in which the laws of England have considered the sovereign with regard to domestic concerns, is as the arbiter of commerce. By commerce, I at present mean domestic commerce only. It would lead me into too large a field, if I were to attempt to enter upon the nature of foreign trade, its privileges, regulations and restrictions; and would also be quite beside the purpose of these Commentaries, which are confined to the laws of England: whereas no municipal laws can be sufficient to order and determine the very extensive and complicated affairs of traffic and merchandize; neither can they have a proper authority for this purpose. For, as these are transactions carried on between subjects of independent states, the municipal [ *327] laws of one country will not be *exclusively regarded by another, although a certain deference will be paid to them in virtue of the comity of nations. And hence the affairs of commerce are in part regulated by a law of their own, called the law merchant or lex mercatoria, the leading principles of which all nations agree in and take notice of. And in particular it is held to be part of the law of, England, which in deciding the causes of merchants will take notice of the rules which obtain in other commercial countries; and that often even in matters relating to domestic trade, as for instance with regard to the usance of a bill of exchange.

With us in England, the royal prerogative, so far as it relates to mere domestic commerce, will fall principally under the following heads:

First, the establishment of public marts, or places of buying and selling; such as markets and fairs, with the tolls thereunto belonging. These were

In this capacity may establish public markets

and fairs;

originally set up by virtue of a grant from the crown, or have become established by long and immemorial usage and prescription, which presupposes such a grant(g). The limitation of these public resorts, to such time and such place as might be most convenient for the neighbourhood, forming a part of domestic polity, was under the disposition of the sovereign; and is sometimes regulated by parliament (h).

and measures;

Secondly, the regulation of weights and measures. These, for the advantage of the public, ought to be uniform throughout the kingdom, and being the regulate weights general criterions of value, should be reduced to some rule or standard: which, however, it is impossible to fix by any written law or oral proclamation; for no man can, by words only, give another an adequate idea of a foot rule, or of a pound weight. It is therefore necessary to have recourse to some visible, palpable, material standard; by forming a comparison with which, all weights and measures may be reduced to one uniform size: and

(f) Disputare de principali judicio non oportet; sacrilegii enim instar est, dubitare an is dignus sit, quem elegerit imperator. Cod. 9, 29, 3.

(g) 2 Inst. 220.

(h) See 31 & 32 Vict. c. 106.

[*328]

the prerogative of fixing this standard our ancient law vested in the crown, as in Normandy it belonged to the duke(i). This standard was originally kept at Winchester: and we find in the laws of king Edgar(j), near a century before the Conquest, an injunction that the one measure, which was kept at Winchester, should be observed throughout the realm. Most nations have regulated the standard of measures of length by comparison with the parts of the human body; as the palm, the hand, the span, the foot, the cubit, the ell, (ulna, or arm), the pace, and the fathom. But as these are of different. dimensions in men of different proportions, or ancient historians(k) inform us, that a new standard of longitudinal measure was ascertained by king Henry, I., who commanded that the ulna or ancient ell, which answers to the modern yard, should be made of the exact length of his own arm. And, one standard of measures of length being gained, all others were thence easily derivable ; those of greater length by multiplying, those of less by subdividing, that original standard. Thus, by the statute called compositio ulnarum et perticarum(1), five yards and a half make a perch; and the yard is subdivided into three feet, and each foot into twelve inches: an inch being of the length of three grains of barley. Superficial measures were derived by squaring those of length; and measures of capacity by cubing them. The standard of weights was originally taken from corns of wheat, whence the lowest denomination of weights was called a grain; twenty-two of which are directed, by the statute called compositio mensurarum(m), to compose a pennyweight, of pennyweights, twenty make an ounce, twelve ounces a pound, and so upwards. And upon these principles the first standards were made; which, being originally so fixed by the [ *329] crown, were subsequently regulated by the sovereign in parliament. Thus, under king Richard I., in his parliament held at Westminster, A. D. 1197, it was ordained that there should be only one weight and one measure throughout the kingdom, and that the custody of the assize or standard of weights and measures should be committed to certain persons in every city and borough(n); and hence the ancient office of the king's aulnager seems to have been derived, whose duty it was, for a certain fee, to measure all cloth made for sale, till the aulage duties were abolished by the statute 11 & 12 Will. 3, c. 20. In king John's time this ordinance of king Richard was frequently dispensed with for money(), which occasioned a provision to be made for enforcing it, in the great charters of king John and his son (p). These original standards were called pondus regis(q), and mensuri domini regis(r); and were directed by various subsequent statutes to be kept in the exchequer, and all weights and measures to be made conformable thereto(s). But, as sir Edward Coke observes (t), though this had often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude. (92)

(92) In the United States, congress has the power to fix the standard of weights and measures. U. S. Const., art. 1, § 8.

In 1836 congress provided, by resolution No. 7, "That the secretary of the treasury be

The regulation of weights and measures has, indeed, from Magna Carta downwards, frequently occupied the attention of parliament, and cannot now be referred simply to the prerogative. The objects aimed at by the legislature having been to establish an uniformity of weights and measures throughout the kingdom(u); and *to establish on scientific principles the proper standards(v).

[*330]

Accordingly the construction of contracts of sale is to be governed by these standards, unless where an express agreement has been made to the contrary; and in such case the proportion of the local or special measure to the standard must be specified therein, otherwise it is null and void. However, by the 5 & 6 Will. 4, c. 63, weights and measures properly verified and stamped, are declared legal although not similar in shape to those required (w), but all local and customary measures, and also heaped measures are abolished(x). Further, by the 27 & 28 Vict. c. 117, it is enacted (s. 2), that "no contract or dealing shall be deemed to be invalid or open to objection on the ground that the weights or measures expressed or referred to in such contract or dealing, are weights or measures of the metric system, or on the ground that decimal subdivisions of legal weights and measures, whether metric or otherwise, are used in such contract or dealing;" *and in the schedule to the act the equivalents of [*331] the weights and measures in force throughout the country are set forth in terms of the metric system.

and give cur

Thirdly, since money is the medium of trade, it is a prerogative of the sovereign, as arbiter of domestic commerce, to give it authority, or make it current. Money is a common standard, by comparison with which the rency to coin. value of all merchandise may be ascertained: it is a sign, which represents the respective values or prices of commodities. Metals are well calculated for this sign, because they are durable, and are capable of subdivision; and gold, silver, and copper are especially calculated for this purpose, because they are very portable and comparatively scarce. A metal moreover is prima

(u) All articles sold by weight must be sold by averdupois weight, except gold, silver, platina, diamonds, or other precious stones, which may be sold by troy weight; drugs may be sold by apothecaries' weight, if sold by retail. 5 & 6 Will. 4, c. 63, s. 10. Coals are to be sold by weight. Id. s. 9. The 22 & 23 Vict. c. 66 regulates the measures used in the sale of gas.

(v) By stats. 5 Geo. 4, c. 74; 6 Geo. 4, c. 12; 5 & 6 Will. 4, c. 63, amended by 22 & 23 Vict. c. 56, the imperial standard yard, pound, gallon, and bushel, were fixed and rendered uniform throughout the kingdom. The 18 & 19 Vict. c. 72, ss. 2 & 3, establishes the restored standard yard and standard pound averdupois, the originals of which had been destroyed in the fire at the houses of parliament.

By 29 & 30 Vict. c. 82, s. 1, the imperial standards of length and weight, and all secondary standards of weights and measures were committed to the custody of the Board of Trade; and by s. 13 of the same statute the custody of the standard trial pieces of gold and silver used for determining the justness of the gold and silver coins of the realm issued from the royal mint, was consigned to the commissioners of the Treasury. The weights used in sales of bullion are regulated by stat. 16 & 17 Vict. c. 29. (2) Sect. 4.

(x) Sects. 6, 7. The former of these sections applies only to sales by measure of capacity, not to sales by weight estimated in pounds. Hughes v. Humphreys, 3 E. & B. 954.

and he hereby is directed to cause a complete set of all the weights and measures adopted as standards, and now either made or in progress of manufacture for the use of the several custom-houses, and for other purposes, to be delivered to the governor of each state in the Union, or such person as he may appoint, for the use of the states respectively, to the end that an uniform standard of weights and measures may be established throughout the United States." 5 Stat. at Large, 133.