By the antient law of nations, debts due to alien enemies might be confiscated by the state; and it seems that in this country the King is entitled to choses in action belonging to an enemy, but that there must be an inquisition to entitle the King; and if a peace be made before the inquisition, the cause of forfeiture is discharged (a). SECT. IV. Of making War and Peace. As representative of his people, and executive magistrate, the King possesses, on the principles just mentioned, the exclusive right to make war or peace, either within or out of his dominions (6); and the constitution leaves it to the King's discretion to grant or refuse a capitulation or truce to an enemy (c). This right may be exercised either partially or absolutely, so that his Majesty may institute a war against part of the subjects of a foreign power, excepting the other part, as was done by William the Third, in a war with France, in which he excepted the French Protestants (d), And it is not unusual on declaring war, to qualify it in the proclamation, by permitting the subjects of the enemy resident in this country to continue here so long as they behave peaceably; and there can be no doubt (as observed by Mr. Hargrave) (e), that such persons are to be deemed alien friends in effect. The general rule is, " ubi bellum non est pax est ;" and therefore, though no league or articles of peace subsist between this and a foreign state, such state is not to be considered or treated as inimical until the King has denounced war against it (f). The King alone has a legal discretion on this subject, under any circumstances which may occur; and though a kingdom which professes to be neutral, should commit the most flagrant acts of aggression and injustice towards this country, and trample on every duty enjoined by the law of nations, still the King alone can legally declare war against it (g). "And," says (a) Parker, 267. See per Ld. Alvanley, 3 Bos. and P. 191. Chitty, L. of Nations, 85. (b) Hal. 159. 7 Co. 25. 1 Bla. Com. 257. See per Sir Wm. Scott. I Rob. Rep. 196. (c) Cowp. 209. (d) Sec per Treby, J. Ld. Raym. 283. Brooke, Brooke, in his Abridgment (a), “if all the people of England would make war with the King of Denmark, and our King will not consent to it, this is not war; but when the peace is broken by ambassadors the league is broken." The reason which is gven by Grotius (b) why, according to the law of nations, a formal denunciation of war ought always to precede the actual commencement of hostilities, is, not so much that the enemy may be put upon his guard (which is matter rather of magnanimity than right), but that it may be clear that the war is undertaken not by private persons, but the will of the whole community, which, as we have already seen, is, in legal contemplation, transferred to and vested in the King. Blackstone (c) argues, from this reason assigned by Grotius, that in order to make a war completely effectual, it is necessary, by the law of this country, that it be publicly declared, and duly proclaimed by the King's authority, and then all parts of both the contending nations, from the highest to the lowest, are bound by it. Notwithstanding this, it seems that no public declaration, or formal proclamation of war is, by law, absolutely necessary to render it the duty of the King's subjects to consider and treat as an enemy, any foreign power against whom war has in point of fact been resolved upon and commenced by his Majesty (d). SECT. V. Of other Rights incident to the War Prerogative. As the constitution of the country has vested in the King the right to make war or peace, it has necessarily and incidentally assigned to him on the same principles the management of the war; together with various prerogatives which may enable his Majesty to carry it on with effect. Thus the King is at the head of his army and navy, is alone entitled to order their movements, to regulate their internal arrangements, and to diminish, or, during war, increase their numbers, as may (a) Tit. Denizen, pl. 20. (b) De jure b. et p. 1. 3. c. 3. s. 2. (c) 1 Vol. 258. (d) Owen, 45. Cro. El. 142. Freem. 41. Rast. Entr. 605. 4 Rob. Rep.252. Chitty, L. of Nat. 29. seem seem to his Majesty most consistent with political propriety (a). On similar grounds the King is solely entitled to erect, for tify, and govern forts and other places of strength, within his dominions (b); both which prerogatives clearly appertain to the Crown by the fundamental rules of the British constitution, and are expressly recognized as such in the recitals of: two statutes passed in the reign of Charles 2 (c). "Forasmuch as within all his Majesty's realms and dominions the sole su preme government, command, and disposition of the militia, and of all forces by sea and land, and of all forts and places of strength is, and by the laws of England ever was, the undoubt→ ed right of his Majesty and his Royal predecessors, Kings and Queens of England, and that both or either of the Houses of Parliament cannot nor ought to pretend to the same." With respect to the militia, the extent to which they may be employed, and various regulations respecting them, are specially ́ pointed out by a series of legislative provisions (d), which do not deny, but admit, the power of the Crown to command them, subject to such provisions. Under these enactments (e), the King is enabled in all cases of actual invasion, or upon imminent danger thereof, and in all cases of rebellion or insurrection, the occasion being first communicated to Parlia ment, if sitting, or if not sitting, declared in Council and notified by Proclamation, to order the militia to be embodied; and his Majesty may use them, or such proportion of them, and in such manner as his Majesty shall in his wisdom deem necessary, and when drawn out into actual service, they are liable to all the rigours of martial law. But it is expressly enacted by all the statutes on this subject that the militia shall, on no account, be sent out of Great Britain. With respect to the regular force of the kingdom, who are A totally unconnected with, and substantially different in their nature and object from the militia, the King is not by lawob restrained to any particular limits as to the services in which they may be employed against his enemies. They may of course be sent to any place, or employed to any ex (a) 1 Bla. Com. 262. (b) 2 Inst. 30. 1 Ibid. 5. (c) 13 Car. 2. st. 1. c. 6. 14 Car. 2. c. 3. (d) See 43 Geo. 3. c. 90, which re duces the preceding statutes into one, and refer to the subsequent statutes. See 1 Bla. Com. 412, Burn, J, tit.) Militia. (e) See 43 Geo. 3. c. 96. s. 111. tent, tent, which his Majesty may think fit. But the constitution has, with the wisest jealousy, ordained that a standing force is not legal in time of peace, unless by consent of Parliament (a). During peace the King has therefore no legal authority or prerogative to keep an army on foot. However, as remarked by Sir Wm. Blackstone, it has for many years past been annually judged necessary by our legislature, for the safety of the kingdom, the defence of the possessions of the Crown of Great Britain, and the preservation of the balance of power in Europe, to maintain even in time of peace a standing body of troops, under the command of the Crown; who are however ipso facto disbanded at the expiration of every year, unless continued by Parliament. And it was enacted by statute 10 Wm. 3. c. 1. that not more than twelve thousand regular forces should be kept on foot in Ireland, though paid at the charge of that kingdom; which permission is extended by statute 8 Geo. S. c. 18. to 16,235 men in time of peace. The authority and power which the annual Act grants to the King over the forces is extensive. It empowers his Majesty to constitute courts martial, who are to try military offences according to articles framed by his Majesty (b). The King's power over the Fleet in time of war, is as general as that which his Majesty possesses during that period over his armies; except in this respect that the articles of the navy › are framed by the legislature, and specify with particularity almost every possible offence and its punishment; thus in effect and in substance depriving his Majesty of a legislative power over his navy (c). As a powerful navy cannot, even during peace, be regarded with the suspicion and distrust which are laudably attached to the existence of a standing army, the King's prerogative over his navy does not by law terminate, nor is it lessened, merely by the cessation of hostilities. There is also a substantial legal distinction between the mode of raising land and sea forces. Though, as just observed, the King has a right to require the personal service of every man able to bear arms, in case of a sudden invasion or formidable insurrection; and the allegiance due from the sub (a) Bill of Rights, 1 Wm. and Mary, st. 2. c. 2. Recital in st. 55.Geo. 3. c. 108. and the annual mutiny acts, (b) See 55 Geo. 3. c. 108. s. 14, 35, &c. 1 Bla. Com. 415. (c) See 1 Bla, Com. 421. ject renders it incumbent on him to assist his sovereign on such occasions (a); yet except on such emergencies, and at ordinary times his Majesty has no legal power to force any one to enlist in his armies (b). With respect however to persons who come within the description of seamen and seafaring men, the King may even in time of peace compel them to re-enter the navy, by forcibly impressing them. This prerogative of the Crown, which has been much attacked, and is certainly a blot on English freedom, is founded on immemorial usage, recognized, admitted, and sanctioned by various Acts of Parliament (c). It is only exerciseable over individuals who have in the first instance voluntarily chosen a seafaring life, and does not extend to landsmen (d); fishermen, except in certain cases (e); harpooners, line-managers, and boatsteerers employed in the Greenland fisheries (ƒ); seamen in the British sugar colonies in the West Indies, or serving in privateers, or trading ships employed in such colonies, except in case of invasion or other emergent necessity (g); persons under eighteen years of age or of the age of fifty-five years or upwards; foreigners, whether mariners, seamen or landsmen for the first two years of their going to sea; or to apprentices not used to the sea for the three first years from the time of their binding themselves to serve at sea (h), BEN .. The right to impress in particular cases has frequently been discussed in the Courts of law. It has been holden, that a keelman or person employed in navigating rivers (i); and carpenters employed on board of ships on a coasting or other trade (k); are respectively liable to be impressed. Nor does it appear that the captain or master of a trading vessel is exempted (1). And seafaring men are not exempted, because they serve the office of headborough (m); or are freeholders (n); or because they are freemen, liverymen (o), or watermen (p), of the City of London. (a) Foster, 158. 11 Hen. 7. ch. 1. 1 Ed. 3. c. 5. 16 and 17 Car. 1. c. 28. (b) See Foster, 157, 175. (c) Ibid. 154. Cowp. 512. 1 Bla. Com. 419. 5 Term Rep. 276. (d) See Foster, 157. Cowp. 519. (f) 11 Geo. 3. c. 38. s. 19. |