CHAPTER III. THE PREROGATIVE OF THE SOVEREIGN. Meaning of Prerogative.-Special Prerogative.-Irresponsibility of the Sovereign.Perfectibility of the Sovereign.-The Sovereign never a Minor.-Immortality of the Sovereign. The Sovereign Owner of all Land.-War and Peace.-Chief Magistrate.-Ambassadors.-Treaties.-Letters of Marque.-Authority over Strangers. Legislative power of the Sovereign.-Acts of Parliament only bind him conditionally.-Generalissimo.-Harbours.-Lighthouses.-The wearing of Arms.-Prohibition to quit the Kingdom.-The Sovereign the Supreme Judge. -The King the general State Prosecutor. Right of Pardon.-Proclamations. -Granting of Privileges.-Markets.-Coining.-Head of the Church.-No coownership with the King.-High Treason and Forfeiture. "By the word prerogative we usually understand that special preeminence which the king has over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity."* The prerogative is absolute, so far as it is not limited by the law; hence, so far as the law has not imposed restrictions, the king may do what to him seems good-having no superior beyond the law. An improper use of the prerogative does not invalidate any act of the sovereign, but renders his advisers responsible. Following out the enumeration of the prerogatives given by Blackstone, vol. i. c. 7, 237-281, we find— 1. The sovereign cannot be sued before the courts, either criminally or civilly.† To carry out any civil claim against the sovereign, application must be made by petition of right to the Court of Chancery. The Lord Chancellor then issues his decree; but such right is only formally accorded as an act of grace, for the Chancellor is not bound to accord, in the name of the king, any right to the petitioner. By the Act 23 & 24 Vict. c. 34, the law * Bl. i. 239. The Prussian code regards the kingly dignity as an office merely, and not as a purely personal attribute, the "Chief of the State" being the hereditary head functionary of the commonwealth. In his private capacity, accordingly, he can be sued civilly in the courts, as a matter of course.-§ Einleitung der A. L. R.; § 18, Th. ii., Tit. 13. How far the king is bound in his private capacity to undertake municipal charges and offices is doubtful. George II. was nominated churchwarden of St. relating to petitions of right was amended, the procedure therein 2. The king is perfect, "the king can do no wrong;" such perfection is withal inherent in the parliament also, whereof the sovereign forms a part. The sovereign is not responsible for his acts. (See Chap. I. of this book.) He cannot even meditate wrong; in the event, therefore, of his allowing any wrong to be done, he is held, in such case, to have been deceived. The parliament can, accordingly, appeal from the king ill-advised, to the king better-advised; convenience requiring that all his acts shall be regarded as issuing simply from his advisers. 3. The king is never a minor. A child would, in the event of an act of parliament not having previously provided, have by law the full right to govern. A general regency law does not exist in England, and cannot exist, inasmuch as it would be antagonistic to the conception of the perfectibility of the sovereign, who is never deemed impotent or incapable of governing. If a sovereign who is a minor give his assent to a bill, it becomes a binding law in its fullest form. Henry VI. was crowned when not quite eight years of age. The coronation is, as we have seen, the solemn compact established between the king and his people ; therefore, a king who is considered incapable of reigning, cannot be crowned. Martin's; he observed, "I ought to congratulate myself that they have not chosen me as constable." The parishioners threatened to bring an action to compel him to assume the functions. He accepted the office, and got himself represented by deputy.-Archenholz, Brit. Ann. v. *Proceedings of the Privy Council, iii. 3. 4. "The king never dies;" hence an interregnum is not possible. The death of a sovereign is, accordingly, never styled "death," but always demise (demissio regis vel corona) which merely indicates a transfer of estate. When, therefore, the "demise of the crown" is spoken of, it signifies that the crown has been transferred to the successor. So far Blackstone. But the acts of the privy council at the beginning of the reign of Henry VI., show the fallacy of the usually received opinion, that formerly, as at present, the accession of each monarch was dated from the day on which his predecessor died; for the last day of August is there mentioned as the day of Henry V.'s demise; and the accession of Henry VI. is dated from the day following.* 5. The king, by a fiction of law, is the sole owner of all landed property in England. All the soil is regarded as being granted out in fee by him. To him belongs all the state property; and all the revenues of state are, in contemplation of law, his revenues. 6. The sovereign alone represents the nation abroad. He alone has the right to declare war and conclude peace. Whatever is done by individual subjects against foreign powers, is the act of private men only. By 2 Hen. V. cap. 6, it was high treason to commit acts of hostility upon any nation in league with the king, without a declaration of war on the part of the king. Since 20 Hen. VI. cap. 11, such offence is no longer punishable as treason, but only as piracy and robbery.† The king can, however, dispense with the Foreign Enlistment Act, which forbids service in the army of foreign powers. This was the case in the reign of Henry VI., where license was granted to certain of the king's subjects to enter the service of the king of Denmark.‡ 7. The king is the chief magistrate of the nation. All other magistrates only act by reason of his "commission." 8. The king alone has authority to send ambassadors to foreign states, and to receive ambassadors at home. * Proceedings of the Privy Council, Preface, ii. In the case of enlistments for Garibaldi, the Queen's Bench refused to interfere by way of indictment, and determined that no precedent could be found to meet the case where, on the ground of a violation of the "Foreign Enlistment Act," proceedings by way of indictment could be taken. The fact may be all very well, but proceedings by way of indictment can only be restrained by virtue of special statutes. Proceedings and Ordinances, iii., Preface xlviii. 9. He alone can conclude treaties and alliances. 10. Letters of marque can only be granted by him conformably with 4 Hen. V. cap. 7. They are grantable according to the law of nations, whenever the subjects of one state are oppressed by those of another. According to later practice, the Lord High Admiral, or the Lords Commissioners of the Admiralty, grant commissions to the owners of private vessels, or "letters of marque." The shipowners must, however, give security to the Admiralty that they will not injure the vessels of friendly powers. At the Paris Conference, in 1856, the ministers of England disclaimed the right of granting letters of marque, and, in like manner, the right of search. Only a temporary disclaimer can, however, have been intended, inasmuch as by any mere convention with a foreign power, the prerogative which pertains to the king of England, in accordance with the law of the land, whereby the right to grant letters of marque is inherent in the sovereign, cannot be put in abeyance. 11. The king can expel all foreigners from the kingdom. This right has been strictly regulated by special acts relating to aliens, the last being 11, 12 Vict. cap. 20 (1848); foreigners who behave loyally while residing in the country are placed under the special protection of the sovereign. 12. The king grants, in event of war, safe-conducts to the subjects of the hostile power. 13. The power of initiating measures pertains to the king in the case of general pardon bills; bills for the restitution of honour and blood originate in the Lords, and money-bills must first be introduced in the Commons.* No act of parliament becomes law without the assent of the sovereign, but since the reign of William III., no sovereign has refused assent to a bill approved by both houses of parliament. To the Regency Bill of 1811 assent was presumed, the royal consent being granted by virtue of a commission entrusted with the great seal, under authority of parliament. When George IV. became unable to write, 11 George IV. cap. 22, enacted that the king might nominate persons who, by means of a stamp impressed with a "The true principle of all free government, which England has consecrated, is that no proposition can be made in the name of the king, because the deep reverence on the part of the legis lature for the chief of the executive power might impart a dangerous bias to their deliberations."-Barnave in the National Assembly, 17 Aug., 1790. fac-simile, and always to be affixed in presence of the king, might render his signature valid. 14. The king may claim the advantage of every act of parliament, even when not named therein. An act in which his rights are affected, must, to have binding force on him, expressly mention him, and the king, by accepting the bill, undertakes the obligation imposed. 15. The king is generalissimo of the army of Great Britain. He alone has the power to raise and regulate fleets and armies, and establish fortifications. Since the siege of Dettingen by George II., no English king has led the forces in the field. A contrary practice would not accord with modern parliamentary usage.* 16. The king grants ports and havens. The number of havens was formerly limited; originally there were only five, "The Cinque Ports;" constituting a kind of naval barony, or intermediate authority between that of the knight and the earl. The privilege of having a haven, once granted, is never withdrawn. The limits of the havens, wharves, and quays, are determined by the Treasury. 17. The king alone can erect lighthouses and beacons, and since 6 & 7 Will. IV. cap. 97, sink buoys and sea-marks; a right previously possessed by the Trinity House. 18. The king can forbid the wearing of arms. 19. By a writ of "Ne exeat Regno," under the great seal, he can forbid any one of his subjects, under penalty, to leave the realm. Such writs are only employed in the courts of equity, to prevent the flight of suspected debtors. The court of bankruptcy and the county court can only issue "orders of arrest." 20. The king is the highest judge in the realm. All jurisdiction proceeds from him, he is regarded as being present in all the courts, which is termed "ubiquity of the king." The judges only act on the ground of a "royal commission.” 21. The king alone prosecutes criminals before the courts. Private persons prosecuting criminally are regarded as representing him as the chief magistrate. The king being, further, chief conservator of the peace, is likewise chief state prosecutor. If the king appear as a suitor, he can never be nonsuited, because a non * Stahl, Rechts philosophie, ii. 2 Abt. p. 349. + Pauli, iv. 680. |