1902 Encyclopedia > Prerogative

Prerogative




PREROGATIVE, in law, is an exclusive privilege of the crown. The word, originally an adjective, is derived from the centuria prxrogativa, 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; and, accordingly, Finch lays it down as a maxim that the prerogative is that law in the case of the king which is law in no case of the subject" (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 word "prerogative" is used to denote the whole privilege of the crown or any part of it; in the latter sense it may be used in the plural number.

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 office by divine right; "Victoria, by the grace of God of Great Britain and Ireland Queen," 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: " Rex non debet esse sub homine sed sub Deo et sub lege, quia lex facit regem " (Bracton, 5b),—a strik-ing contrast to the rule of Roman law, "quod prineipi placuit legis habet vigorem." A consequence of this posi-tion 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. (See ENGLAND.) Where a prerogative was abolished by statute, in some instances compensation was granted in return for the surrender, in others no compensation was given. An example of the former is the statute 12 Car. II. c. 24, by which excise duties were granted to the crown in return for the aboli-tion of military tenures and their incidents; of the latter, the statute 16 Car. I. c. 20, abolishing the prerogative of imposing compulsory knighthood or a fine in its place. The prerogative has also been limited by judicial decision and by tacit abandonment. Thus monopolies were de-clared illegal (in the respectful language of the judges the queen was held to have been deceived in her grant) in the reign of Elizabeth by The Case of Monopolies (11 Coke's Reports, 84), and the right to exclude a member from par-liament was abandoned by the same queen in 1571. The most important of the obsolete prerogatives, other than those named, 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 was the subject of contest for centuries. Sums were raised at various times under the names of talliage, scutage,hydage, subsidies, aids, benevolences, tonnage and poundage, tolls, ship-money, tenths, fifteenths, &c. (2) The right to dispense with the obligation of statutes, by the insertion in a grant of the clause non obstante statuto, was frequently asserted by the crown down to the Revolution. An end was finally put to this and the last right by the Bill of Rights. (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 were finally abolished by 12 Car. II. c. 24. (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, annexed to the crown by Henry VIII., was vested by Queen Anne in trustees for the augmentation of poor benefices, 2 and 3 Anne c. 11. This is what is usually called " Queen Anne's bounty." (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 benefice—has become obsolete by disuse. (7) The right by forfeiture to the property of a convict upon his convic-tion 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. The crown is liable to costs in revenue cases by 18 and 19 Vict. c. 90, in petitions of right by 23 and 24 Vict. c. 34. (9) The right to alienate crown lands by grant at pleasure was taken away by 1 Anne c. 8, passed in consequence of the improvident alienations of land by William III. In very few cases has the prerogative been extended by statute; 34 and 35 Vict. c. 86 is 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. An ex-ample of a commission issued on a joint address is the commission to inquire into the existence of corrupt prac-tices after an election (15 and 16 Vict. c. 57). In most roses a commission is issued by the prerogative alone with-out any address from parliament; thus the assent of the crown to a Bill may be given by commission, and rights of command may be granted by commission to officers in the army and navy. The delegation of the prerogative in judicial matters is illustrated by commissions of the peace and commissions of assize. The prerogative may still further be delegated by a delegate; thus commissions of lunacy are and commissions of bankruptcy were issued by the lord chancellor as the representative of the crown. Parts of the prerogative—generally in the nature of profit, and so in derogation of the revenue of the crown—may be con-ferred 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 fran-chise 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 pass-ports, 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, ecclesi-astical, 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 be only 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. In civil matters the crown is barred of its right in suits relating to land by the lapse of sixty years (9 Geo. III. c. 16). 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 and 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 distrained 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, with the one exception of Holyrood House, with the precincts, which still affords a sanctuary from civil process. It does not, however, protect criminals or crown debtors. 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 or pre-eminence, and the right to the allegiance of his subjects. All land is mediately or immediately held of him (see LAND). 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 emsting 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 re-fused 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 pre-rogative, 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. By 31 Hen. VIII. c. 8 it was enacted that the king's proclamations should, under certain conditions, have the force of Acts of parliament, but this Act was repealed by I Edw. VI. c. 12. The king is not in general bound by an Act of parliament unless named therein. He can, by virtue of his supreme executive authority, recall a subject from abroad, or forbid his leav-ing the realm by the writ of ne exeat regno. This writ at the pre-sent day is not used for state purposes, but merely to prevent a party to an action from going, abroad. To order aliens to leave the realm is apparently a matter not falling within the prerogative, as, where such a course is necessary, an Act of parliament is passed ; II and 12 Vict. c. 20 is an instance of such an Act passed for a temporary purpose. The right of the crown to grant letters of denization to aliens is preserved by 33 and 34 Vict. c. 14, s. 13. 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 constitu- tional limits, e.g., he cannot insert a shifting clause in a patent of peerage. He also confers all other titles of honour, whether here- ditary or not, and grants precedence and armorial bearings. The great officers of state are appointed by the king. The only restric- tion 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 com- mand 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. All supplies for the mainte- nance of the army and navy are voted annually, so that it is prac- tically impossible for the king to use his position to the detriment of the state. The army is an annual institution, the Army Act of each session (which corresponds to the Mutiny Act passed annually up to 1878) reciting the provision of the Bill of Rights, " that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law." 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 and 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. (See NAVI- GATION LAWS. ) 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. The king also has the power of con- stituting corporations. A royal grant to inhabitants makes them a corporation for the purposes of the grant. The king is presumed to be the visitor of all civil corporations. 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 con- ferring 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 Com- mons 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. " By the fountain of justice," as has been well said by Blackstone, " the law does not mean the author or original, but only the distributor. Justice is not derived from the sovereign, as from his free gift; but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir, from whence right and equity are conducted, by a thousand channels, to every individual" (Stephen's Comm., vol. ii. bk. iv. pt. i. eh. vi.). The king was bound to the observance of justice by the well-known words of Magna Carta, "Nulli ven-demus, nulli negabimus aut differemus, rectum aut justiciam." 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 ac-cording to the known and established law of the realm, such as the Star Chamber (see above) or the commissions of martial law forbidden by the Petition of Bight. Nor can he add to the juris-diction of courts ; thus he cannot give a spiritual court temporal.

In early times the kings sat in person in the curia regis. he growth of a permanent judicature seems to be due to the increase of judicial business, making it impossible for the king to hear all the suits in the curia regis in person. Appeals from the colonies, the Channel Islands, and the Isle of Man still lie to the crown in council, a jurisdiction now practically exercised by the judicial committee of the privy council. The king is still (or was until very recently) in theory present in court Actions in the Queen'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 judg-ment 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 lady the Queen, her 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 head of the church by 26 Hen. VIII. c. 1 and 1 Eliz. c. 1. By this prerogative he con-venes and dissolves convocation and nominates to vacant bishop-rics and other ecclesiastical preferments. He is also guardian of the temporalities during the vacancy of a see, but this is now merely a nominal prerogative. The dean and chapter of a cathedral can-not proceed to the election of a bishop without the king's per-mission to elect (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 hoc vice. He is the supreme court of appeal in ecclesiastical cases. This appellate jurisdiction is now vested in the judicial committee of the privy council, with the assistance of archbishops and bishops as assessors (39 and 40 Viet. c. 59, s. 14). The king cannot create new ecclesi-astical jurisdiction in England or in colonies other than crown colonies. (See BISHOP.) Where a new bishopric is created it is under the powers of an Act of parliament. It seems to be as head of the church that the king grants licences to hold in mortmain, though the right now extends to lay as well as ecclesiastical corpora-tions. The right is acknowledged by 7 and 8 Will. III. c. 37.

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, &a. 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 pro-ceedings 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. In order to induce the court to issue them a prima facie case must be made out by the applicant. Writs of right, on the other hand, are ex debito justifias, and cannot be refused. Examples of prerogative writs are certiorari, habeas corpus, mandamus, procedendo, prohibition, quo warranto.

Prerogative Courts.—This was the name given to the provincial ocourts of Canterbury and York, as far as regarded their jurisdiction over the estates of deceased persons. They had jurisdiction to .grant probate or administration where the diocesan courts could not entertain the case owing to the deceased having died possessed of goods above the value of £5 (bona notabilia) in each of two or more dioceses. The jurisdiction of the prerogative courts was transferred to the Court of Probate in 1857 by 20 and 21 Vict. c. 77, and is now vested in the Probate, Divorce, and Admiralty Division _of the High Court of Justice by the Judicature Act, 1873 (36 and 37 Vict. c. 66, s. 34).

In the State of New Jersey, United States, the court having jurisdiction over probate matters is called the Prerogative Court (Kent's Comm., vol. ii. p. 427).

Besides the authorities cited and the writers on constitutional history, the 2-eader is referred to Allen, Inquiry into the Rise and Growth of the Royal Pre-rogative in England ; Chitty, The Prerogative of the Crown ; Staunforde, Exposition of the King's Prerogative; Comyns, Digest, art. " Prerogative" ; Broom, Constitutimial Law. (J. W†.)



The above article was written by: James Williams, B.C.L.



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