But this word, which properly signifies power or will, is sometimes applied by law writers to the thing over which that power or will is exercised. Thus, the king's revenue is sometimes called the king's fiscal prerogatives; moreover, the sources of that revenue are, by an elliptical expression, sometimes called prerogatives. Thus, the rents and profits of the demesne lands of the crown, and even the lands themselves, have been classed as prerogatives of the crown. So of forfeited lands, mines of gold and silver, treasure-trove, waifs, estrays, &c. But these are things and not powers; they may belong to the king by virtue of his prerogatives, and be held by him as the property of the crown by virtue of his sovereignty, as well as by any other right of property, but they are themselves neither prerogatives nor sovereignties. It is necessary to bear in mind the distinction between the right of property, or property itself, and the origin or source of that right.'

by means of a 'petition of right' in the Court of Chancery, as a matter of favour, not of right.

It is an important axiom that the King can do no wrong,' for if he could, there would be no means of redress. But his Ministers and Councillors who have wrongly advised him, or assisted him in derogation of the law of the land, are punishable by indictment and impeachment. However, unconstitutional tyranny or oppression invariably furnish their own remedy, as was proved in the case of James II. Moreover, both Houses of Parliament have a right to remonstrate with the King, even concerning those acts which are personally his own. This right belongs to no individual member, but to the whole House collectively; and members have been sent to the Tower of London for want of respect in this regard. See Com. Journ., November 18, 1685; ibid., December 4, 1717.

In the middle ages, there was frequently more than one law governing the population of a State. The Church had its own law, the State another, merchants their own customs, &c. The idea prevailed that the King was above all law, or had a law of his own. Thus Fleta, book ii. chap. ii., paraphrased by Bacon in his argument for the Post-Nati, records, If a King of England travel or pass through foreign territories, yet the allegiance of his subjects followeth him-as appeareth in that notable case which is reported in Fleta, where one of the train of Edward I., as he passed through France from the Holy Land, embezzled some silver plate at Paris, and jurisdiction was demanded of this crime by the French King's counsel-at-law ratione soli, and demanded likewise by the officers of King Edward ratione personæ ; and after much solemnity, contestation and interpleading it was ruled and determined for King Edward, and the party tried and judged before the Knight-Marshal of the King's house, and hanged after the English law, and execution in St. Germain's meadows.' 'Tandem consideratum fuit quod rex Angliæ illâ regia prerogativâ et hospitii sui privilegio uteretur et gauderet.' This prerogative was, doubtless, the origin of the doctrine of the exterritoriality of ambassadors and of ships of war. See post, cc. vii. and x.

1

Rutherforth, Institutes, b. ii. ch. iii. § 10; Blackstone, Commentaries, vol. i. pp. 239 et seq.

$ 3. The word majestas was used by the Romans to express the supreme dignity of the commonwealth, and hence majestas, as employed by the civilians, is a legal term signifying the sovereign dignity of the State; and the different powers of the State, or parts of sovereign power, are called by them jura majestatis. They very properly distinguish between things, and rights to things, the former being called corpora, and the latter jura. Upon the breaking up of the Roman empire,' says Gamboa, 'the princes and cities, which declared themselves independent, appropriated to themselves those parts in which nature, most rich and liberal, yields extraordinary products. These portions, or reserved rights, were called regalias.' The same writer, in other places, applies the term regalia both to rights to things, and to the things themselves,-to jura and corpora. So of the feudal and English law writers. They sometimes apply this term to things, as the crown, and sceptre, and royal and church lands, and sometimes to the dignity, power and pecuniary rights of the king. When applied to the power and dignity of the king, they are called majora regalia, and when applied to his fiscal rights, they are called minora regalia. The former, says Erskine, are not alienable without the consent of parliament, while the latter may be communicated to his subjects by the sovereign himself, at his pleasure. The term regalia, therefore, differs from sovereignty, or jura majestatis, as being applicable both to things and to rights to things-corpora and jura—and, also, as not being inherent to or inseparable from the sovereign power, for regalia may be alienated, either with or without the consent of parliament. It may be applied to the rights and prerogatives, not only of the king, but also of the church, the treasury, the courts, and parliament, and also to property of the State, of the church, &c. And when applied to property, it may include both that which necessarily appertains to the crown, and that which is alienable, or which may be passed to individual subjects.'

1 Gamboa, Commentarios, cap. ii. §§ 4, 16, 21, 24; Dou, Derecho Publico General, lib. i. tit. ix. cap. v.; Erskine, Institutes, pp. 323 et seq. ; Merlin, Rép. de Jurisprudence, verb. 'droits régaliens.'

Vattel says, Droit des Gens, lib. i. ch. x. § 108, that it is an encroachment on the prerogative of a State for another State to counterfeit its coin, or to protect false-coiners who dare to do so. See also 24 and 25 Vict., c. 99, § 18, against counterfeiting foreign coin in England.

§ 4. By the term property, we understand the ownership of a thing, or the exclusive right of possessing, enjoying and disposing of it. Things owned by individuals, or corporate bodies, are termed private property, and those owned by the State are called public property, or the property of the State. The property of a State is therefore very different from its sovereignty, or the prerogatives of its ruler. In speaking of real property, whether of individuals or of States, the term domain is frequently used. 'A distinction,' says Bouvier, 'has been made between property and domain. The former is said to be that quality which is conceived to be in the thing itself, as it is considered as belonging to such or such person exclusively of all others. By the latter is understood that right which the owner has of disposing of the thing. Hence, domain and property are said to be correlative terms; the one is the active right to dispose, the other a passive quality, which follows the thing and places it at the disposition of the owner. But this distinction is too subtle for practical use.' The term domain, as applied to the property of a State, is divided by Proudhon into two classes: 'The public domain, which applies to that kind of property which the government holds as a mere trustee for the use of the public, such as public highways, navigable rivers, salt springs, &c., and which are not, as of course, alienable; and the domain of the State, which applies only to things in which the State has the same absolute property as an individual would have in like cases.' Although these particular terms are not in general use with us, we nevertheless distinguish between the terms 'public lands' and lands which have been purchased or reserved for any particular use of the government, or of one of its departments, for laws relating to 'public lands' do not apply to

1

2 Feud., t. 56; Crag., t. xv. 15. In England also it is for the King to assign all legal ports, which are the gates of the realm. In the reign of King John a ship was seized for putting in at a place which was not a legal port. Maddox, Hist. Exch., § 30. A court of Port-Mote is incident to every legal port, 4 Inst., 148. See also 4 Hen. IV., c. 20; 1 Eliz., c. 11; 13 and 14 Car. II., c. 11; 46 Geo. III., c. 153; 39 and 40 Vict., c. 36.

Further, in England, the King has the right of erecting all lighthouses, beacons, and seamarks. Rob. Claus., 1 Ric. II., m. 42; Sid., 158; 4 Inst., 149. The 8 Eliz., c. 13, empowered the corporation of the Trinity House to erect beacons, &c., and this statute has been since held to extend to lighthouses. See 17 and 18 Vict., c. 104, § 389; McCulloch, Com. Dic., titt. Lighthouse, Trinity House.

lands so purchased or reserved. Ortolan distinguishes between the property which the State holds by virtue of its interior laws, and that which it holds by virtue of its international rights under the law of nations. The right of the State to the former is said to be absolute, as against everybody, while its right to the latter may be absolute only as against other States, and merely paramount when considered with respect to its own members and their rights of property in the same things. The former, Ortolan calls the private or public domain of the State (domaine privé, ou domaine public de l'état '), and the latter he calls international domain, or property between States ('domaine international, ou propriété d'état à état').1 5. The term dominium, as used by the civilians, when applied to property, has several significations. Erskine says: 'The interest which the superior retains to himself in all feudal grants is called dominium directum, because it is the highest and most eminent right, and that which the vassal acquires goes under the name of dominium utile, as being subordinate to the other.' The full and absolute ownership, dominium plenum, includes both the directum and the utile. The term dominium eminens is not, properly speaking, property, but a right of the State over the property of individuals. It is defined in Cooper's Justinian, 'the right of the public, in cases of emergency, to seize upon the property of individuals, and convert it to the public use.' Bowyer says, the jus eminensis that right which the entire body has over the members and whatever belongs to them, and which, being for the common good, is superior to the private rights of individuals belonging to their private interests. This jus eminens is called by writers on public law dominium eminens, when it regards property. It is the right of the State, or the sovereign power, over property within it, when necessity or the public good requires. This is the true foundation of the right of taxation.' Again, he says the right called dominium eminens 'is a part of the sovereign authority, and one of the jura majestatis.' Vattel defines dominium eminens, or eminent domain

1 Proudhon et Dumay, Domaine Public, tome i. chs. xiv. xx. ; Ortolan, Domaine International, §§ 13 et seq.; Rutherforth, Institutes, vol. ii. ch. ix. § 6; American Jurist, No. 37, p. 121; Bouvier, Law Dictionary, verb. 'domaine;' Crittenden, Opinions U. S. Attys. Genl. vol. v. p. 578; Cushing, Opinions U. S. Attys. Genl. vol. vi. p. 670; Wilcox v. Jackson, 13 Peters R.. 513.

to be, 'the right which belongs to the society or the sovereign, of disposing, in case of necessity and for the public safety, of all the wealth contained in the State.' But this definition is obviously defective and incorrect. Chancellor Walworth says: All separate interests of individuals in property are held of the government,' and 'notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people in their sovereign capacity, and they have a right to resume the possession of the property in the manner directed by the constitution and laws of the State, whenever the public interest requires it. This right of resumption may be exercised not only where the safety, but also where the interest, or even the expediency of the State is concerned; as where the land of the individual is wanted for a road, canal, or other public improvement.'

It is seen, from these definitions, that the term eminent domain is applied to one of the jura majestatis; it is that highest right over property which is in the government, and is never granted to the individual, and, therefore, is essentially different from what is ordinarily understood by the word property. The term eminent domain, properly speaking, is not applicable to the property of the State, but only to the property of individuals, for the right of the State to dispose of its property results from its right of ownership, and not from the right of eminent domain, which latter right remains in the State after it has transferred the ownership of its property. It is a right which, from its very nature, is inseparable from the sovereignty, and is necessarily transferred with the sovereignty.'

1 Erskine, Institutes, pp. 231, 312; Cooper, Justinian, p. 442; Bowyer, Universal Public Law, pp. 227, 372; Vattel, Droit des Gens, liv. i. ch. xx. § 244; Domat, Des Lois Civiles, lib. i. tit. ii. § 13; Sedgewick, Stat. and Con. Law, pp. 500 et seq.; Beekman v. S. S. R. R. Co. 3 Paige R. p. 73; Varrick v. Smith, 5 Paige R. p. 159; Pollard's Lessee v. Hagan, 3 Howard Rep. p. 223; Bello, Derecho Internacional, pt. i. cap. iv. §1; Riquelme, Derecho Publico Int., lib. i. tit. i. cap. ii.; Burlamaqui, Droit de la Nat. et des Gens, tome iv. pt. ii. ch. v.; Gilmer v. Lime Point, Cal. Rep. April term, 1861; American Law Reporter, vol. xix. pp. 254 et seq. In 1870 Her Majesty Queen Victoria, by order in Council, and in accordance with the wishes of Parliament, surrendered the ancient prerogative of government of the Army. By this step the General Commander-in-Chief becomes a subordinate of the Minister of War.