In matters at sea, the lord admiral. The jurisdiction of whom, vide post. The king's extraordinary councils are of two kinds; Ecclesiastical, or, spiritual. The king's extraordinary secular councils are, the house of peers; the house of Commons; in their capacity of informing, advising, and counselling the king in matters that are, Public benefits; Public grievances. And here all the learning of parliaments properly comes in, viz. the persons of whom it consists; the members of each house; the manner of their summons; the places that send members to the house of commons; and how to be qualified; how elected; the qualifications of the electors; what the privileges of parliament the method of passing bills, &c. and how adjourned, prorogued, or dissolved. The extraordinary ecclesiastical councils are, And hither may be referred all laws and constitutions touching the convocation. SECT. IV. Concerning the prerogatives of the king. HAVING shewn you what rights belong to the king's person, we come now to those rights which concern his prerogative. And those prerogatives are of two kinds : Direct and substantive prerogatives. The direct and substantive prerogatives may be distributed under three branches, viz. Jura majestatis, vel summi imperii, i. e. The right of dominion. Potestas jurisdictionis, vel mixti imperii, i. e. The power of jurisdiction. Census Regalis, or, the royal revenues. Which I shall subdivide according to their order. SECT. V. Concerning the king's rights of dominion or power of empire. THE jura summa majestatis, or rights of the king's empire or dominion, are either, In relation to his own subjects; or, In relation to foreigners. In relation to his own subjects, they respect, Times of peace. Times of war. And first of the rights of dominion, which respect times of peace. These rights, though they are exercisable also, in times of war and insurrection, yet seeing they do more immediately respect the well-ordering of a kingdom, and preserving its peace and tranquillity, I shall here insert them. And though they are various in their kinds, and some of them seem to refer to the powers of jurisdiction, yet I shall endeavour to reduce them to these eight heads following, viz. His rights in relation to the laws. In relation to tributes and public charges. In relation to the public peace of the kingdom. In relation to public annoyances. In relation to his constituting the great officers of the kingdom. In relation to his ordering and regulating trade and com merce. In supervising, regulating, and supplying the defects of others. First, in relation to the laws of this kingdom: In the making of laws. In the relaxation of laws. As to the making of laws, his right consists in three particulars: In the making of statute laws, or acts of parliament; for though the king cannot make such laws himself without the consent of both houses of parliament, yet no law can be made to bind the subject without him. In the making of spiritual laws, or canons ecclesiastical, which, if kept within the bounds of ecclesiastical conuzance, are admitted here in this kingdom: as these laws cannot be made without the king's consent, so neither can the king ordain such laws without the clergy in convocation assembled. So that in both these kinds of laws, the king's power of making is only a qualified and co-ordinate power. But, In making and issuing of proclamations, which in some instances are to be taken for laws, as in calling parliaments, declaring war, &c. herein the king's power is more absolute, as being made by him alone; yet the king cannot by these introduce a new law, so as to alter or transfer properties, or impose new penalties or forfeitures beyond what are established by statute or common law. And as to his power in the relaxation of laws already made, it respects either, Temporal laws; which being enacted by parliament, the king cannot abrogate or annul such a law: but in some cases of penal laws, he may, in respect of persons, times, or places, sometimes DISPENSE with them (a). Here may come in all the learning touching dispensations and non obstantes. Ecclesiastical laws, wherein the king has a greater latitude of dispensation; for if such laws are not confirmed by parliament, the king may revoke and annul them AT HIS WILL and pleasure. (a) The dispensing power of the crown was abolished at the time of the Revolution. Hume's Hist. 8 v. oct. 240, 244, 245, 247, 249. Blac. Com. 1 v. oct. 142, 186, 5424 v. oct. 436, 410. 1 W. & M. s. 2. c. 2. And here all the learning of commendams, dispentiones ad plura, and all ecclesiastical defects and incapacities dispensed with by the king, fall under consideration. Secondly, in relation to tributes and public charges, wherein is considered, What charges he canNOT impose without consent of parliament; and for this, see the statute De Tallagio non Concedendo, and divers other statutes, restraining new impositions. What charges he MAY impose without consent of parliament, viz. reasonable tolls; as pavage, pontage, murage, &c. And here may be considered the lawfulness of tolls, &c. And of exemptions from them, By prescription, By charter. Thirdly, in relation to the public peace of the kingdom. By inhibitions from going, or riding armed. 2. In restoring it when broken: By suppressing affrays and tumults WITH FORCE. And herein consider by whom, where, when, and how, this By prosecuting them in the king's name; By indictment. By information. By pardoning them, as to the king's prosecution. And herein, of pardons, what may be pardoned, when, how, and by what words, &c. Fifthly, in relation to public annoyances: for the king has the great care thereof; and the prosecution and punishment of the same, as far as they are public, is by law committed to him. And this is commonly exercised about bridges, ferries, highways, &c. Though these particulars, and some of the foregoing, more regularly come in under pleas of the crown, and criminal matters, in the Second Part of this Treatise. [D] Sixthly, in relation to his constituting great officers, viz. CIVIL OFFICERS, as lord chancellor, treasurer, privy-seal, earl marshal, lord admiral, judges, &c. And here may be considered, The manner of their constitution. Their office, business, or employment. ECCLESIASTICAL OFFICERS, as archbishops, bishops, deans, archdeacons, &c. And here may come in, The manner of their constitution;-as their election, consecration, investiture, restitution of temporalties, &c. The exercise of their office; viz. how far the king may enlarge, limit, or restrain it. Seventhly, in relation to the regulation of trade and commerce. 1. His right of Coining new monies, Authenticating foreign coin. And here comes in all matters touching the variety and legality of coins; and of contracts, orders, and instructions, relating to it. 2. His designation of places of public commerce; As ports, fairs, markets. And here of such various learning as relates thereto; What is a good grant thereof, and what not, if granted to the prejudice of another; and of the writ Ad Quod Damnum. Also what is a sale in market overt, and of the effects thereof in altering properties, &c. and of forestalling, as when a market may be forestalled, and when not. 3. His right in instituting and regulating the instruments of public commerce, with respect to Weights. Undue Measures. Excessive prices, &c. Eighthly, in relation to his supervising, regulating, and supplying the neglects or defects of other magistrates; {By writs of error. Of CIVIL magistrates By writs of appeal, &c. |