thinks proper to prohibit him from fo doing; or if the king fends a writ to any man, when abroad, commanding his return (11), and in either cafe the fubject disobeys; it is a high contempt of the king's prerogative, for which the offender's lands fhall be feifed till he return; and then he is liable to fine and imprisonment *.

III. ANOTHER capacity, in which the king is confidered in domestic affairs, is as the fountain of juftice and general confervator of the peace of the kingdom. By the fountain of juftice the law does not mean the author or original, but only the diftributor. Juftice is not derived from the king, as from his free gift; but he is the fteward of the public, to dispense it to whom it is due. He is not the spring, but the refervoir; from whence right and equity are conducted, by a thoufand channels, to every individual. The original power of judicature, by the fundamental principles of fociety, is lodged in the fociety at large: but as it would be impracti- [267] cable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain felect magiftrates, who with more eafe and expedition can hear and determine complaints;

$ 1 Hawk. P. C. 22.

Ad bec autem creatus eft et electus, ut

juftitiam faciat univerfis. Bra&t. 1. 3.

tr. I. c. 9.

The ufe and object of this writ of ne exeat regno in chancery at prefent is exactly the fame as an arreft at law in the commencement of an action, viz. to prevent the party from withdrawing his perfon and property beyond the jurifdiction of the court, before a judgment could be obtained and carried into execution; fo where there is a fuit in equity for a demand, for which the defendant cannot be arrested in an action at law, upon an affidavit made that there is reafon to apprehend that he will leave the kingdom before the conclufion of the fuit, the chancellor by this writ will stop him, and will commit him to prifon, unless he produces fufficient fureties that he will abide the event of the fuit. See z Com. Dig. 312.

(11) The exercife of this prerogative has been long difufed, and it is probable that it will never be refumed. For the ancient learning upon it, fee 3 Init. c. 84. against fugitives.

and

and in England this authority has immemorially been exercifed by the king or his fubflitutes. He therefore has alone the right of erecting courts of judicature: for, though the conftitution of the kingdom hath intrusted him with the whole executive power of the laws, it is impoffible, as well as improper, that he should perfonally carry into execution this great and extenfive truft: it is confequently neceffary, that courts fhould be erected, to affift him in executing this power; and equally neceflary, that, if erected, they should be erected by his authority. And hence it is, that all jurif dictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king's name, they pass under his feal, and are executed by his officers.

IT is probable, and almoft certain, that in very early times, before our conftitution arrived at it's full perfection, our kings in perfon often heard and determined caufes between party and party (12). But at prefent, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their feveral courts; which are the grand depofitaries of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament ". And, in order to maintain. both the dignity and independence of the judges in the superior courts, it is enacted by the statute 13 W. III. c. 2. that their commiffions fhall be made (not, as formerly, durante bene placito, but) quamdiu bene fe gefferint, and their falaries afcertained and established; but that it may be lawful to remove them on the addrefs of both houses of parliament. And now, by the noble improvements of that law in the statute of 1 Geo. III. c. 23. enacted at the earnest recommendation of [268] the king himself from the throne, the judges are continued in their offices during their good behaviour, notwithstanding

u 2 Hawk. P. C. 2.

(12) See 3 vol. 41.

any

W

any demife of the crown, (which was formerly held immediately to vacate their feats,) (13) and their full falaries are abfolutely fecured to them during the continuance of their com missions; his majesty having been pleased to declare, that " he looked upon the independence and uprightness of the judges, as effential to the impartial administration of jus ❝tice; as one of the best fecurities of the rights and liberties "of his fubjects; and as moft conducive to the honour of "the crown *."

IN criminal proceedings, or profecutions for offences, it would still be a higher absurdity, if the king perfonally fate in judgment; because in regard to these he appears in another capacity, that of prosecutor. All offences are either against the king's peace, or his crown and dignity: and are so laid in every indictment. For though in their confequences they generally seem (except in the cafe of ticafon and a very few others) to be rather offences against the kingdom than the king; yet, as the public, which is an invifible body, has delegated all it's power and rights, with regard to the exccution of the laws, to one vifible magiftrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the x Com. Journ. 3 Mar. 1761.

w Lord Raym. 747.

(13) All their commiffions became vacant upon the demise of the crown, till they were continued for fix months longer by 1 Ann. ftat. I. c. 8. When his majesty was pleased to make the memorable declaration in the text, he introduced it by obferving; "Upon granting new commiffions to the judges, the present state " of their offices fell naturally under confideration. In confequence of the late act, paffed in the reign of my late glorious predeceffor William the third, for fettling the fucceffion to the "crown in my family, their commisions have been made during "their good behaviour; but notwithstanding that wife provifion, "their offices have determined upon the demise of the crown, or at the expiration of fix months afterwards in every inftance of that nature which has happened."

public.

public. He is therefore the proper perfon to profecute for all public offences and breaches of the peace, being the perfon injured in the eye of the law. And this notion was carried fo far in the old Gothic conftitution, (wherein the king was bound by his coronation oath to conferve the peace) that in cafe of any forcible injury offered to the person of a fellow fubject, the offender was accufed of a kind of perjury, in having violated the king's coronation oath; dicebatur fregiffe juramentum regis juratum. And hence alfo arifes another [269] branch of the prerogative, that of pardoning offences; for it is reasonable that he only who is injured fhould have the power of forgiving. Of profecutions and pardons I fhall treat more at large hereafter; and only mention them here, in this curfory manner, to fhew the conftitutional grounds of this power of the crown, and how regularly connected all the links are in this vaft chain of prerogative.

In this diftinct and feparate exiftence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the crown, confifts one main prefervative of the public liberty; which cannot subsist long in any fate, unless the adminiftration of common justice be in fome degree feparated both from the legislative and alfo from the executive power. Were it joined with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whofe decifions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legiflators may depart from, yet judges are bound to obferve. Were it joined with the executive, this union might feon be an over-ballance for the legiflative. For which reason, by the statute of 16 Car. I. c. 10. which abolished the court of star-chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council; who, as then was evident

y Stiernh. de jure Goth. 1. 3. c. 3. A was condemned to be hanged for bribery, notion fomewhat fimilar to this may be he was faid facramentum demini regis fre found in the mirror. c. 1. §5 And gif. Rot. Parl. 25 Edw. III. fo alfo, when the chief juftice Thorpe

from

from recent inftances, might foon be inclined to pronounce, that for law, which was most agreeable to the prince or his officers. Nothing therefore is more to be avoided, in a free conftitution, than uniting the provinces of a judge and a minifter of state. And indeed, that the abfolute power, claimed and exercifed in a neighbouring nation, is more tolerable than that of the eastern empires, is in great measure owing to their having vefted the judicial power in their parliaments, a body separate and distinct from both the legislative and executive : and, if ever that nation recovers it's former liberty, it will owe it to the efforts of thofe affemblies. In Turkey, where every thing is centered in the fultan or his minifters, defpotic power is in it's meridian, and wears a more dreadful [270] afpect.

A CONSEQUENCE of this prerogative is the legal ubiquity of the king. His majefty, in the eye of the law, is always prefent in all his courts, though he cannot perfonally diftribute juftice. His judges are the mirror by which the king's image is reflected. It is the regal office, and not the royal perfon, that is always prefent in court, always ready to undertake profecutions, or pronounce judgment, for the benefit and protection of the fubject. And from this ubiquity it follows, that the king can never be nonfuit; for a nonfuit is the defertion of the fuit or action by the non-appearance of the plaintiff in court (14). For the fame reafon alfo, in the forms of legal proceedings, the king is not faid to appear by his attorney, as other men do; for in contemplation of law he is always prefent in court.

FROM the fame original, of the king's being the fountain of justice, we may alfo deduce the prerogative of iffuing proclamations, which is vefted in the king alone. Thefe proclamations have then a binding force, when (as fir Edward

z Fortefc. c. 8. 2 Inft. 186.

a Co. Litt. 139.

b Finch. L. SI.

(14) But the attorney-general may enter a non vult profequi, which has the effect of a nonfuit. Co. Litt. 139.