LITARY State. We are now only to consider the prerogative of enlisting and governing them: which indeed was disputed and claimed, contrary to all reason and precedent, by the long parliament of King Chas. I. 3 but, upon the restoration of his son, was solemnly declared by the statute 13 Charles II. c. 6. to be in the king alone: for that the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty, and his royal predecessors, kings and queens of England; and that both or either house of parliament cannot, nor ought to, pretend to the same.
This statute, it is obvious to observe, extends not only to fleets and armies, but also to forts and other places of strength within the realm; the sole prerogative, as well of erecting, as manning and governing of which, belongs to the king in his capacity of general of the kingdom; and all lands were formerly subject to a tax, for building of castles wherever the king thought proper. This was one of the three things, from contributing to the performance of which no lands were exempted, and therefore called by the Anglo-Saxons the trinita necessitas; scilicet pontis reparatio, arcis constructio, et expeditio contra hostem. And this they were called upon to do so often, that, as Sir Edward Coke from M. Paris assures us, there was 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 Newburgh remarks in the reign of King Stephen, erat in Anglia quodammodo tot reges, vel potius tyranni, quot domini castellorum; but it was felt by none more sensibly than by two succeeding princes, King John and King Henry III. And therefore, the greatest part of them being demolished in the barons wars, the kings of after times have been very cautious of suffering them to be rebuilt in a fortified manner: and Sir Edward Coke lays it down, that no subject can build a castle, or house of strength imbastled, or other fortress defensible, without the license of the king; for the danger which might ensue, if every man at his pleasure might do it.
It is partly upon the same, and partly upon a fiscal foundation, to secure his marine revenue, that the king has the prerogative of appointing ports and havens, or such places only, for persons and merchandise to pass into and out of the realm, as he in his wisdom sees proper. By the feudal law, all navigable rivers and havens were computed among the regalia, and were subject to the sovereign of the state. And in England it hath always been held, that the king is lord of the whole shore, and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm; and therefore, so early as the reign of King John, we find ships seized by the king's officers for putting in at a place that was not a legal port. These legal ports were undoubtedly at first assigned by the crown; since to each of them a court of portmote is incident, the jurisdiction of which must flow from the royal authority: the great ports of the sea are also referred to, as well known and established, by statute 4 Hen. IV. 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.
But though the king had a power of granting the franchise of havens and ports, yet he had not the power of resumption, or of narrowing and confining their limits when once established; but any person had a right to load or discharge his merchandise in any part of the haven: whereby the revenue of the custom was much impaired and diminished, by fraudulent landings in obscure and private corners. This occasioned the statutes of 1 Eliz. c. 11. and 13 and 14 Car. II. c. 11. § 14. which enable the crown by commission, to ascertain the limits of all ports, and to assign proper wharfs and quays in each port, for the exclusive landing and loading of merchandise.
The erection of beacons, light houses, and sea-marks, is also a branch of the royal prerogative: whereof the first was anciently used in order to alarm the country in case of the approach of an enemy; and all of them are signaly useful in guiding and preserving vessels at sea by night as well as by day. See BEACON.
3. Another capacity in which the king is considered in domestic affairs, is as the fountain of justice and general conservator of the peace of the kingdom. See the article fountain of Justice.
4. The king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from that wherein he is styled the fountain of justice; for here he is really the parent of them. See the articles Fountain of Justice and Fountain of Honour.
5. Another light, in which the laws of England consider the king with regard to domestic concerns, is as the arbiter of commerce. By commerce, we at present mean domestic commerce only; for the king's prerogative with regard to which, see Regulation of Weights and Measures, MONEY, &c.
6. The king is, lastly, considered by the laws of England as the head and supreme governor of the national church.
To enter into the reasons upon which this prerogative is founded is matter rather of divinity than of law. We shall therefore only observe, that by statute 26 Hen. VIII. c. 1. (reciting that the king's majesty justly and rightfully is and ought to be the supreme head of the church of England; and so had been recognised by the clergy of that kingdom in their convocation) it is enacted, that the king shall be reputed the only supreme head on earth of the church of England; and shall have, annexed to the imperial crown of this realm, as well the title and style thereof, as all jurisdictions, authorities, and commodities, to the said dignity of supreme head of the church appertaining. And another statute to the same purpose was made, 1 Eliz. c. 1.
In virtue of this authority the king convenes, prorogues, restrains, regulates, and dissolves, all ecclesiastical synods or convocations. This was an inherent prerogative of the crown long before the time of Henry VIII. as appears by the statute 8 Hen. VI. c. 1. and the many authors, both lawyers and historians, vouched by Sir Edward Coke. So that the statute 25 Hen. VIII. c. 19. which restrains the convocation from making or putting in execution any canons repugnant to the king's prerogative, or the laws, customs, and statutes of the realm, was merely declaratory of the old common law: that part of it only being new, which makes the king's royal assent
assent actually necessary to the validity of every canon. The convocation or ecclesiastical synod, in England, differs considerably in its constitution from the synods of other Christian kingdoms: these consisting wholly of bishops; whereas in England the convocation is the miniature of a parliament, wherein the archbishop presides with regal state; the upper house of bishops represents the house of lords; and the lower house, composed of representatives of the several dioceses at large, and of each particular chapter therein, resembles the house of commons with its knights of the shire and burgesses. This constitution is said to be owing to the policy of Edward I. who thereby at one and the same time let in the inferior clergy to the privileges of forming ecclesiastical canons (which before they had not), and also introduced a method of taxing ecclesiastical benefices, by consent of convocation.
From this prerogative also, of being the head of the church, arises the king's right of nomination to vacant bishoprics, and certain other ecclesiastical preferments.
As head of the church, the king is likewise the de-nier resort in all ecclesiastical causes; an appeal lying ultimately to him in chancery from the sentence of every ecclesiastical judge: which right was restored to the crown by statute 25 Hen. VIII. c. 9.
III. The king's fiscal prerogatives, or such as regard his revenue. See the article REVENUE.