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it seems that even during the existence of a charter the King may take it away, and grant fresh powers to another, in cases of positive necessity, and upon an extraordinary exigency, happening through the default or neglect of a proprietor of a colony, or of those appointed by him, or their inability to protect or defend the inhabitants in times of war or imminent danger; but in such case previous civil rights remain, and must be respected (a). In this case also, and in others where a charter to a colony is forfeited, an inquisition and scire facia* to repeal should regularly be adopted (b).

If the King lose a territory acquired by conquest, and reconquer it, the former rights of the inhabitants, under charters granted by the Crown, revive and are restored, jure postliminii; a conquest by an enemy merely operating as a suspension, not as an extinguishment, of the rights of former owners (e).

In the case of Penn v. Lord Baltimore (d), it was ingeniously contended, that a colonial province being a proprietary government and feudal seigniory held of the Crown, which has the sovereign dominion, the parties holding under charters from the King have no power to vary or settle the boundaries by their own act; for such agreement to settle boundaries and to convey in consequence, amounts to an alienation, which these lords proprietors cannot do; and that, even supposing they might alien entirely, they cannot alien a parcel, as that is dismembering. But Lord Chancellor Hardwicke held otherwise, and considered that the subordinate proprietors mighty lonaJide, and without fraud, legally agree how they would hold their rights and Settle boundaries between themselves; and that they, holding in fee, might even alien the lands to natural-born subjects without the royal licence, unless expressly restrained. His Lordship held, however, that the proprietors could not dismember their provinces, so as to alter the nature of the thing granted, and thereby bind the Crown of whom they held; for the tenure and services would still remain on the whole, and the Crown might demand the whole services ofeither. In this great case it was also laid down, that, though the exclusive and original jurisdiction over questions relative to boundaries between provinces and the dominion, &c. therein,

(a) 1 Chalm. 31. 29. 188, 9. (e) Ibid. 108.

,(4) Ibid, and 108. (d) 1 Vez. sen. +44.

is is in the King in council (a), still Chancery may hold cognizance of such question, (the Crown having the option of being a party, and its right being reserved, if brought before it») on an agreement or articles between the proprietors executed in England, to convey, kc, in pursuance of the boundary to be established, and the Court accordingly decreed a specific performance; the agreement between the parties having given the Court a jurisdiction it would not otherwise have possessed.

CHAP. IV.

Of the Prerogative qf the King as it more immediately relates to independent states and foreign matters.

[section I.—In general.

One of the chief excellencies of the constitution consists in the harmony with which it combines all that strength and dispatch In the executive department of the state, which might be expected only from a despotic government; with every liberty" and right of interference on the part of the subject which is not inconsistent with the public welfare.

That such strength and dispatch are politically necessary throughout the whole machine of government, and more especially in that part of it which relates to foreign transactions, cannot be doubted: and experience has shewn that the rapidity and secrecy which are generally necessary to the due execution of public measures, will never be found in large assemblies of the people.

Wavering with doubts, and distracted by the jealousies and the animosities of party, such assemblies would be discussing the propriety of the step after the opportunity and occasion for its adoption had transpired. It is only by assigning the exclusive power of managing and executing state measures to one individual, that they can be effectually and properly transacted.

When the rights in question are concentrated in one department of the state, and the power of the realm is wielded

(a) Ante.

by

by one hand, the execution of public measures will inspire the people with confidence, and strike into the enemies of the country that awe, that dread of its activity and power, which it is the constant endeavour of good policy to create. , Fox these reasons the constitution has made the King the delegate or representative of the people, with regard to foreign affairs, and has invested his Majesty with the supreme exclusive power pf managing them (a).

i- : ..: -. SECT. II.

That the King sends Ambassadors, §c. abroad.

The constitution has vested in the King the sole power of„ sending ambassadors, consuls (b), and other ministers abroad, and receiving ambassadors from foreign states (c). These need not be appointed by letters patent or by any other particular instrument, though they universally receive on their appointments some document evidencing their right to fill the situation assigned to them; and a consul is generally, if not always,appointed by a commission directed to him from the King,

SECT. III. -.Vtin,(

Of Letters of Marque and Reprisal's.

The laws of nature and of nations (d), vest in every power a right to make reprisals, and adopt a system of fair retaliation, for the aggressions of another community. Where a nation manifests a general spirit of hostility towards another, by a series of unauthorized attacks, and satisfaction is denied and explanations are evaded, though it be the King's duty as protector of the rights and honour of his dominions, to enable his subjects to retaliate on their oppressors, yet his Majesty being the only constitutional judge of the policy and expedi- i

•" .": r . :. i

{a) 1 BI11. Com. 252. (rf) Grotius de jure b. et p. lib. 3.

(A) See Ch,tty on Commerce. cb. 8. tect. 4 Md 5.

<0 1 Bla. Com. &J3.

ency

ency of commencing hostilities, his subjects cannot legally' adopt the lex talionis without the royal authority (tf). As obs served by Sir Wm. Blackstone (b), the necessity^* obvious bP calling in the sovereign power to determine when reprisals' may be made; else every private sufferer would be a judge in his own cause. The law has therefore wisely ranged the right' to grant letters of marque and reprisals, either during war or peace, among the jura regalia, and has vested it solely in the King (c): so that by the law of the admiralty, the property in a ship taken from the aggressors, without letters of marque and reprisals, vests in the King as a droit to the Crown, not in the suffering or other subject who captured it (d). And it has been decided that a subject of the King cannot take goods belonging to the subjects of a prince in amity with the King by virtue of letters of marque, granted by any other sovereign or state(e). r ; ,,;,.

It must be remembered that the power which his Majesty, grants to his subjects by the letters of marque and reprisals, should be restrained in its operation to the subjects of the' . offending state; and it has therefore been determined that a clause in a charter which empowers the seizing the goods of every person is illegal and void if). The effect of the grant is to authorize the seizure of the bodies and goods of the subjects of the offending state, which may be detained till satisfaction be made, but no longer (g).

The statute 4 Hen. 5. c. 7. declares that "if any subjects of the realm are oppressed in the time of truce by any foreigners, the King will grant marque in due form to all that feel themselves grieved," which form is thus directed to be observed: the sufferer must first apply to the Lord Privy Seal, and he shall make out letters of request under the privy seal; and if after

(a) Hal. P. C. 162. 1 Vern.52. Re- a vessel cruizing under letters of marque

cital 4 Hen. 5. c. 7. against one state, as for instance, against

(i) 1 Comm. 259. France, is at liberty, on obtaining no

(c) Ibid. Molloy, 30, b. 1. c. 2. tice of hostilities commenced against

s. 10. 2 Rol. Ab. 175. Chitty's Law of another, as Spain, to capture a Spanish

Nat. 73. vessel, with as full advantage to herself

(d) Vin. Abr. Prerog. N. A. pl. 22. as if the prize had been French. 5

Carth. 399. 2 Wooddn. V. L. 433. Kob. R. 360. 10 Vez. 155. (g) Grotius, b. 3. c. 2. 1 Bla. Com.

(<•) 2 Vern. 592. 258. Vattel. b. 2. e. 19. 2 Wooddn.

(/) See Shower, 137. In the case 434 to 440.. • Fa . of the Sacra ftmitia it was decide J that ,•:,•--

such

such request of satisfaction made, the party required do not within convenient time make due satisfaction or restitution to the party grieved, the Lord Chancellor shall make him-out letters of marque under the great seal, and by virtue of these he may attack and seize the property of the aggressor nation, without hazard of being condemned as a robber or pirate.

This statute, it will be observed, relates only to injuries during peace, and to the grant of letters of marque and reprisals to the subject who is actually injured by the foreigners. It is said, that the mode of obtaining letters of marque pointed out in the statute has been long disused (a). By various statutes, enacted during every war, the Lord High Admiral, or the Commissioners of the Admiralty, are empowered to grant commissions, or, as they are also called, letters of marque and reprisals, to the owners of ships, enabling them to attack and take the property of his Majesty's enemies; which statutes contain also various provisions as to the prizes captured (6). These statutes do not, it should seem, affect the royal prerogative in question in the slightest degree.

Letters of marque and reprisals granted by the Crown are liberally construed, but may be vacated in three ways—1st, by express revocation (c), but this is only allowable in the case of letters granted during war; when granted in time of peace and unsatisfied, it is otherwise (d); though, 2dly, even in such case, the cessation of hostilities will defeat the rights granted (e). —3rdly, These letters may be vacated by the misconduct of the grantees, as by cruelty, &c. (J").

In cases of recapture, no letter of marque from the King is required to give to the receptor the benefit of the same salvage to which he would have been entitled if he had been provided with letters of marque (g).

The King, however, has the right of releasing any prize previously to its condemnation. This, said Lord Ellenborough, in the case of Sterling v. Vaughan (h), is an implied exception in the grant of prize by the Crown.

(a) 1 Bla. Com. 259. Christian's cd. (d) Ibid.

Bote 8. (t) Ibid. 2 Wooddn. V. L. 440. 1

(A) See 29 Geo. 2. c. 34. 19 Geo. 3. Vein. 54.

c. 67. 43 Geo. 3, c. 160. 45 Geo. 3. (/) 5 Rob. Rep. 9.

c. 72. WoUoy, cb. 358. (/.) 2 Ibid. 224.

(r) Mollojr, lib. 1. c. 2. i. 8. Chitty, (A) tl East, 619.

L. of Nat. 74, 5. "... „

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