1911 Encyclopædia Britannica/Prerogative
PREROGATIVE, in law, an exclusive privilege of the Crown. The word, originally an adjective, is derived from the centuria praerogativa, or century which voted first on a proposed law (rogatio) in the Roman comitia centuriata. In English law, Blackstone says, “ by the word prerogative we are to understand the character and power which the sovereign hath over and above all other persons, in right of his regal dignity; and which, though part of the common law of the country, is out of its ordinary course. This is expressed in its very name, for it signifies, in its etymology, something that is required or demanded before, or in preference to, all others ” (Stephen's Comm. vol. ii. bk. iv. pt. i. ch. vi.). The prerogative is sometimes called jura regalia or regalia, the regalia being either majora, the regal dignity and power, or minora, the revenue of the Crown.
The theory of English law as to the prerogative of the king seems to be not quite consistent. On the one hand, he is a perfect and irresponsible being, holding his ollice by divine right; George V., “by the Grace of God of Great Britain and Ireland King,”[1] is still the heading of every writ. On the other hand, his powers are defined and limited by law. This is laid down as early as the 13th century (Bracton, 5b). A consequence of this position is that the prerogative may be confined or extended by the supreme legislative authority, and that the courts have jurisdiction to decide whether or not any alleged right falls within the prerogative. The prerogative of the Crown, still of great extent, has been gradually limited by a long series of enactments, the most worthy of notice being Magna carta, Confirmatio cartarum, Prerogativa regis, the Petition of Right, the Habeas Corpus Act, the Bill of Rights and the Act of Settlement. The most important of the obsolete prerogatives which have been at one time claimed and exercised are the following: (1) the right to impose a tax upon the subject without the consent of parliament. (2) The right to dispense with the obligation of statutes, by the insertion in a grant of the clause non obstante statuta (see Dispensation). (3) The right of purveyance and pre-emption—that is, of buying up provisions at a valuation without the consent of the owner—and the right of impressing carriages and horses (see Purveyance). (4) The authority to erect tribunals not proceeding according to the ordinary course of justice was declared illegal by 16 Car. I. c. 10 (the act dissolving the Star Chamber, the court of the marches of Wales, and the court of the president and council of the north). (5) The revenue from first-fruits and tenths (see Annates). (6) The right of corody—that is, of sending one of the royal chaplains to be maintained by a bishop until the bishop promotes him to a benence-has become obsolete by disuse. (7) The right by forfeiture to the property of a convict upon his conviction for treason or felony was abolished by the Felony Act 1870. (8) The immunity of the Crown from payment of costs has been taken away in almost all cases. (9) The right to alienate crown lands by grant at pleasure was taken away by 1 Anne c. 8. In very few cases has the prerogative been extended by statute; the Regulation of the Forces Act was an example of such extension. By that act the jurisdiction of lords-lieutenant of counties over the auxiliary forces was revested in the Crown.
The prerogative may be exercised in person or by delegation. The prerogative of conferring honours is generally (though not necessarily) exercised by the king in person, as in the case of investment with knighthood and military or civil decorations. The delegation of the prerogative often takes place by commission, issued with or without a joint address from both houses of parliament. Parts of the prerogative-generally in the nature of profit, and so in derogation of the revenue of the Crown—may be conferred upon subjects by grant in letters patent, which will be presumed after enjoyment by the subject for a certain time. What in the king is a prerogative becomes a franchise in the subject, e.g. chases, warrens, wrecks, treasure-trove, courts-leet. The existing prerogatives may be divided, with Blackstone, into such as are direct and such as are by way of exception; or perhaps better, with Chief Baron Comyns, into those affecting external relations and those affecting internal relations. Under the first class would fall the power of making war and concluding peace. As incidents to this power the king has the right of sending and receiving ambassadors, of concluding treaties, and of granting passports, safe-conducts, letters of marque and reprisals. These rights may be limited by international agreement; thus the Declaration of Paris, 1856, abolished privateering as far as the assenting nations (of whom Great Britain was one) were concerned. The prerogatives affecting internal relations may be conveniently, if not scientifically, classified as personal, political, judicial, ecclesiastical and fiscal.
Personal.—In order that there may always be an existing head of the state the king is regarded as a corporation. He cannot die; there can only be a demise of the Crown—that is, a transfer of the royal authority to a different person. On the same principle the king cannot be under age, though in cases where the king has been of tender years a protector or regent has usually been appointed for administrative purposes. The king is personally irresponsible for crime or tort, it being an ancient common law maxim that the king can do no wrong, and that any injury suffered by a subject at the hands of the king is to be attributed to the mistake of his advisers. A curious consequence of this irresponsibility is that the king is apparently the only person in the realm who cannot under any circumstances arrest a suspected felon, for no action for false imprisonment would lie against him, and in the event of the arrest of an innocent person there would be a wrong without a remedy. He cannot be guilty of laches, or negligence. The maxim of the common law is “Nullum tempus occurrit regi.” This is still the law in criminal matters. With a very few exceptions, such as prosecutions for treason and offences against the customs, no lapse of time will in England (though it is otherwise in Scotland) bar the right of the Crown to prosecute. The king is exempt from taxation on the ground that, as the revenue of the realm is his prerogative, it is useless for him to tax himself. But lands purchased by the privy purse are liable to taxation (39 & 40 Geo. III. c. 88, s. 6). He is also exempt from tolls (which can only exist as a franchise granted by him), and from the poor-rate, as he is not mentioned in the Poor Law Acts. His person cannot be arrested or his goods dis trained or taken in execution. The privilege of exemption from taxation applies to his palaces and to the public buildings of the state. No kind of judicial process can be executed in a palace as long as it continues to be a royal residence. The privilege does not attach to palaces which the king has ceased to use as a dwelling, such as Hampton Court. The king has also several personal privileges of minor importance, such as the title of “majesty,” the right to a royal salute, to the use of the royal standard and of special liveries, &c.
Political.—The king is the supreme executive and co-ordinate legislative authority. As such authority he has the attribute of sovereignty[2] or pre-eminence, and the right to the allegiance of his subjects. All land is mediately or immediately held of him. Land derelict suddenly by the sea, land newly discovered by subjects and islands arising in the sea are his. As paramount authority in parliament he can dissolve or prorogue it at pleasure, but cannot
prolong it beyond seven years. In theory parliament only exists at his will, for it is summoned by his writ, and the vote for a member of parliament is only a franchise, not a right existing independently of his grant. He can refuse his assent to a bill passed by the houses of parliament.” This right has, however, not been exercised since 1707, when Queen Anne refused the royal assent to a Scottish Militia Bill. The king has power to issue proclamations and (with the assent of the privy council) orders in council, in some cases as part of the ancient prerogative, in others under the provisions of an act of parliament. Proclamations are only binding so far as they are founded upon and enforce the laws of the realm. They cannot alter the common law or create a new offence. The king is the fountain of honour; as such he has the valuable power of granting peerages at will, so far as he is not restrained by any act of parliament, and so far as he keeps within certain constitutional limits, e.g. he cannot insert a shifting clause in a patent of peerage. He also confers all other titles of honour, whether hereditary or not, and grants precedence and armorial bearings. The great officers of state are appointed by the king. The only restriction upon the creation of offices is that he cannot create new offices with new fees attached to them, or annex new fees to old offices, for this would be to impose a tax upon the subject without an act of parliament. The king, as head of the state, is in supreme command of the army and navy for the defence of the realm. This right, contested by the Long Parliament, was finally declared by 13 Car. II. c. 6 to be in the king alone. The right of command carries with it as an incident the right to build forts and defences, to impress seamen in case of necessity, and to prohibit the importation of munitions of war (39 & 40 Vict. c. 36, s. 43), also the right to the soil of the foreshore and of estuaries of rivers, and the jurisdiction over territorial waters. Other rights which fall under the political branch of the prerogative may be called the commercial rights, including the coining of money, the regulating of weights and measures, the establishing of markets and fairs, and the erecting of beacons lighthouses and sea-marks. As parens patriae he is ex officio guardian of infants, idiots and lunatics. It is scarcely necessary to point out that all these prerogatives (except the conferring of honours and such prerogatives as are purely personal) are exercised through responsible ministers, practically in these days members of the party to which the majority of the House of Commons belongs. Thus the jurisdiction over infants, &c., is exercised in England by the lord chancellor, and over beacons, &c., by the Trinity House, under the general superintendence of the Board of Trade.
Judicial.—The king is the fountain of justice, and the supreme conservator of the peace of the realm. As supreme judge the king has the appointment of all judicial officers (other than those in certain local courts), who act as his deputies. He may constitute legal courts for the administration of the general law of the land, but he cannot erect tribunals not proceeding according to the known and established law of the realm, such as the Star Chamber or the commissions of martial law forbidden by the Petition of Right. Nor can he add to the jurisdiction of courts; thus he cannot give a spiritual court temporal powers. The king was in theory supposed to be present in court. Actions in the king's bench were until modern times said to be coram rege ipso, and the king could not be non-suited, for a non-suit implied the non-appearance of the plaintiff in court. The king enforces judgment by means of the sheriff, who represents the executive authority. As supreme conservator of the peace, the king, through the lord-lieutenant in counties, and through the lord chancellor in cities and boroughs, appoints justices of the peace. In the same capacity he is the prosecutor of crimes. All indictments still conclude with the words "against the peace of our lord the king, his crown and dignity." As it is the king's peace that is broken by the commission of a crime, the king has, as the offended party, the power of remission. The king cannot be sued by ordinary action. He may sue by ordinary action, but he has the advantage of being able to use prerogative process (see below). He has the right of intervention in all litigation where his rights are concerned, or in the interests of public justice, as where collusion is alleged between the decree nisi and the decree absolute in divorce. Crown debts have priority in administration and bankruptcy.
Ecclesiastical.—The king is recognized as "supreme governor" of the Church by 26 Hen. VIII. c. 1, and 1 Eliz. c. 1. By this prerogative he convenes and dissolves convocation and nominates to vacant bishoprics and other ecclesiastical preferments. The dean and chapter of a cathedral cannot proceed to the election of a bishop without the king's permission to elect (see Congé d'Élire). When any benefice is vacant by the promotion of the incumbent to a bishopric other than a colonial bishopric the king has the patronage pro hac vice. The king cannot create new ecclesiastical jurisdiction in England or in colonies other than crown colonies. Where a new bishopric is created it is under the powers of an act of parliament.
Fiscal.—The theory of the constitution is that the king, being entrusted with the defence of the realm and the administration of justice, must have sufficient means given him for the purpose. The bulk of the revenue of the Norman and Plantagenet kings was derived from crown lands and feudal dues. At the present day the rents of crown lands form a very small part of the revenue, and the feudal dues do not exist except in the pecuniarily unimportant cases of escheat, royal fish, wrecks, treasure trove, waifs and strays, &c. Of the revenue a comparatively small part (the civil list) is paid to the king in person, the rest (the consolidated fund) is applied to public purposes.
Prerogative Process.—This is the name given to certain methods of procedure which the Crown alone has the right of using; such are inquest of office (an inquiry by jury concerning the right of the Crown to land or goods), extent (a mode of execution), scire facias (for the resumption of a grant), and information (by which proceedings are commenced in the name of the attorney-general for a public wrong or for injury to crown property).
Prerogative Writs.—Certain writs are called "prerogative writs," as distinguished from writs of right, because it is within the prerogative to issue or reissue them (see Writ).
Besides the authorities cited, see Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England; Chitty, The Prerogative of the Crown; Staunforde, Exposition of the King's Prerogative; Comyns, Digest, art. "Praerogative"; Broom, Constitutional Law; and the works of W. Bagehot, S. Low, A. V. Dicey and Sir W. Anson, on the Constitution.
- ↑ There is no difference in the prerogative as exercised by a king or a queen regnant, so that the word “king” in its constitutional sense includes queen. That the queen regnant has the same rights as a king was declared by 1 Mary sess. 3, c. 1.
- ↑ The word “sovereign” is frequently applied to the king in legal works. It should be borne in mind at the same time that the king is not a sovereign in the strict sense in which the term is used by Austin.