Page:Encyclopædia Britannica, Ninth Edition, v. 19.djvu/697

Rh PREROGATIVE 673 cases 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 judi cial 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.y., 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 lias 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 &quot;Nullum terapus occurrit regi. &quot; 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 &quot;majesty,&quot; 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 1 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, hind 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 1 The word &quot; sovereign &quot; 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. 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 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 Viet. 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 Viet. 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, &quot; 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.&quot; 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 Viet. 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 parcns patrise 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. &quot; By the fountain of justice,&quot; as has been well said by Blackstone, &quot; 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 &quot; (Stephen s Comm., vol. ii. bk. iv. pt. i. ch. vi. ). The king was bound to the observance of justice by the well-known words of Magna Carta, &quot;Nulli ven- demus, nulli negabimus aut differemus, rectum aut justiciam.&quot; 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 Eight. Nor can he add to the juris diction of courts ; thus he cannot give a spiritual court temporal XIX. 85