Coke obferves) they are grounded upon and enforce the laws of the realm. For, though the making of laws is entirely the work of a distinct part, the legislative branch, of the fovereign power, yet the manner, time, and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magiftrate. And therefore his constitutions or edicts concerning these points, which we call proclamations, 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 fuch laws as are already in being, in fuch manner as the king fhall judge neceffary. Thus the established law is, that the king may prohibit any of his fubjects from leaving the realm: a proclamation therefore forbidding this in general for three weeks, by laying [271] an embargo upon all shipping in time of war, will be equally binding as an act of parliament, because founded upon a prior law. But a proclamation to lay an embargo in time of peace upon all veffels laden with wheat (though in the time of a public fcarcity) being contrary to law, and particularly to statute 22 Car. II. c. 13. the advisers of such a proclamation and all perfons acting under it, found it neceffary to be indemnified by a special act of parliament, 7 Geo. III. c. 7. A proclamation for difarming papifts is alfo binding, being only in execution of what the legislature has firft ordained: but a proclamation for allowing arms to papifts, or for disarming any proteftant fubjects, will not bind; becaufe the first would be to affume a difpenfing power, the latter a legislative one; to the vefting of either of which in any fingle perfon the laws of England are abfolutely ftrangers. Indeed by the ftatute 31 Hen. VIII. c. 8. it was enacted, that the king's proclamations fhould have the force of acts of parliament: a ftatute, which was calculated to introduce the moft defpotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed in the minority of his fucceffor, about five years after ". IV. THE king is likewife the fountain of honour, of office, and of privilege and this in a different fenfe from that wherein he is stiled the fountain of juftice; for here he is really the parent of them. It is impoffible that government can be maintained without a due fubordination of rank; that the people may know and diftinguifh fuch as are fet over them, in order to yield them their due respect and obedience; and alfo that the officers themfelves, being encouraged by emulation and the hopes of fuperiority, may the better difcharge their functions: and the law fuppofes, that no one can be fo good a judge of their feveral merits and fervices, as the king himself who employs them. It has therefore intrufted with him the fole power of conferring dignities and honours, in confidence that he will beftow them upon none, but fuch as deferve them. And therefore all degrees of nobility, of knighthood, and other titles, are received by im- [272] mediate grant from the crown: either expreffed in writing, by writs or letters patent, as in the creations of peers and baronets; or by corporeal inveftiture, as in the creation of a fimple knight. FROM the fame principle alfo arifes the prerogative of erecting and difpofing of offices: for honours and offices are in their nature convertible and synonymous. All offices under the crown carry in the eye of the law an honour along with them; because they imply a fuperiority of parts and abilities, being fuppofed to be always filled with those that are most able to execute them. And, on the other hand, all honours in their original had duties or offices annexed to them an earl, comes, was the confervator or governor of a county; and a knight, miles, was bound to attend the king in his wars. For the fame reason therefore that honours are in the disposal of the king, offices ought to be fo likewife; and as the king may create new titles, fo may he create new offices: but with this reftriction, 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 fubject, which cannot be impofed but by act of parliament. Wherefore, in 13 Hen. IV, a new office being created by the king's letters patent for meafuring cloths, with a new fee for the fame, the letters patent were, on account of the new fee, revoked and declared void in parliament. UPON the fame, or a like reafon, the king has also the prerogative of conferring privileges upon private persons. Such as granting place or precedence to any of his subjects (15), as fhall feem good to his royal wifdom; or fuch as converting aliens, or perfons born out of the king's dominions, into denizens; whereby fome very confiderable privileges of natural-born fubjects are conferred upon them. Such also is the prerogative of erecting corporations; whereby a number of private perfons are united and knit together, and enjoy many liberties, powers, and immunities in their politic ca【273pacity, which they were utterly incapable of in their natural. Of aliens, denizens, natural-born, and naturalized subjects, I fhall speak more largely in a fubfequent chapter; as alfo of corporations at the clofe of this book of our commentaries. I now only mention them incidentally, in order to remark the king's prerogative of making them; which is grounded upon this foundation, that the king, having the fole adminiftration of the government in his hands, is the best and the only judge, in what capacities, with what privileges, and under what distinctions, his people are the best qualified to serve, and to act under him. A principle, which was carried so far by the imperial law, that it was determined to be the crime of facrilege, even to doubt 8 4 Inft. 361. (15) The king by the common law could have created a duke, earl, &c. and could have given him precedence before all others of the fame rank, a prerogative not unfrequently exercised in ancient times; but it was restrained by the 31 Hen. VIII. c. 10. which fettles the place or precedence of all the nobility and great officers of state. This ftatute does not extend to Ireland, where the king still retains his prerogative without any reftriction, except the dread of the unpopularity which would now result from the exertion of it. whether whether the prince had appointed proper officers in the ftate. V. ANOTHER light, in which the laws of England confider the king with regard to domeftic concerns, is as the arbiter of commerce. By commerce, I at prefent mean domeftic commerce only. It would lead me into too large a field, if I were to attempt to enter upon the nature of foreign trade, it's privileges, regulations, and reftrictions; and would be alfo quite befide the purpose of these commentaries, which are confined to the laws of England: whereas no municipal laws can be fufficient to order and determine the very extenfive and complicated affairs of traffic and merchandize; neither can they have a proper authority for this purpofe. For, as thefe are tranfactions carried on between fubjects of independent ftates, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the law merchant or lex mercatoria, which all nations agree in and take notice of. And in particular it is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries; and that often even in matters relating to domestic trade, as for inftance with regard to the drawing, the acceptance, and the transfer, of inland bills of exchange 1. WITH us in England, the king's prerogative, fo far as it [274 ] relates to mere domeftic commerce, will fall principally under the following articles: FIRST, the establishment of public marts, or places of buying and felling, fuch as markets and fairs, with the tolls thereunto belonging. Thefe can only be fet up by virtue of the king's grant, or by long and immemorial ufage and prescription, which prefuppofes fuch a grant. The limitation of thefe public reforts, to fuch time and fuch place as may be i Co. Litt. 172. Ld. Raym. 181. 1542. h Difputare de principali judicio nen oportet; jacrilegii enim inftar eft, dubitare an is dignus fit, quem elegerit imperator. C. 9. 29. 3. Vot. I. most convenient for the neighbourhood, forms a part of oeconomies, or domestic polity; which, confidering the kingdom as a large family, and the king as the master of it, he clearly has a right to dispose and order as he pleases. SECONDLY, the regulation of weights and measures. These, for the advantage of the public, ought to be univerfally the fame throughout the kingdom; being the general criterions which reduce all things to the fame or an equivalent value. But, as weight and meafure are things in their nature arbitrary and uncertain, it is therefore expedient that they be reduced to fome fixed rule or ftandard: which standard it is impoffible 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 a pound-weight. It is therefore neceffary to have recourfe to fome vifible, palpable, material standard; by forming a comparison with which, all weights and measures may be reduced to one uniform fize: and the prerogative of fixing this standard our antient law vested in the crown, as in Normandy it belonged to the duke'. This ftandard was originally kept at Winchefter: and we find in the laws of king Edgar", near a century before the conqueft, an injunction that the one meafure, which was kept at Winchester, fhould be obferved throughout the realm. Most nations have regulated the ftandard of measures of length by [275 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 thefe are of different dimensions in men of different proportions, our antient hiftorians" inform us, that a new ftandard of longitudinal measure was ascertained by king Henry the firft; who commanded that the ulna or antient ell, which anfwers to the modern yard, fhould be made of the exact length of his own arm. And, one standard of meafures of length being gained, all others are easily derived from thence; thofe of greater length by multiplying, those of lefs by fubdividing, that ori 1 Gr. Couftum. c. 16, n Will. Malmsb. in vita Hen. I. Spelm. Hen. I. apud Wilkins. 299. |