CHAPTER III

THE ROYAL PREROGATIVE

REFERENCES: Todd's Parliamentary Government in England, i. 76–218; Anson's Law and Custom of the Constitution, ii. 1–56 and 303-354; Bagehot's English Constitution, 101-156; Courtney's Working Constitution of the United Kingdom, 123-135; Traill's Central Government, 1-11; TaswellLangmead's English Constitutional History, 716-741; Fonblanque's How We Are Governed, 18-25; Ewald's Crown and its Advisers, The Lecture on the Crown.

REROGATIVE,"

PRERO

says Professor Dicey, "is the discretionary authority of the executive.” Adopting this concise statement as a satisfactory working definition, it will be our purpose to determine the extent, in theory and practice, of this "discretionary authority" in so far as we may be able to do so within the limits of a brief discussion. We are sometimes inclined to think that the power of an hereditary monarch must of necessity be very extensive; as a matter of fact, however, the actual participation of the King in the government of England is comparatively slight, — almost insignificant. Neither has the power of the Crown remained the same at all times in the history of England; on the contrary, it has been a very changeable quantity. A consideration of the sources and history of the royal prerogative will not, however, constitute any considerable part of our discussion. Our present concern is with the authority of the Crown as it now exists.

The year 1688 marks an epoch in the history of the royal prerogative. In outer seeming," says John R. Green in his "Short History of the English People," ""the Revolution of 1688 had only transferred the sovereignty over England from James to William and Mary. In actual fact, it was transferring the sovereignty from the King to the House of Commons." The House of Commons at its birth in 1265 was not a very promising infant. Spartan parents might have exposed it in some mountain glen to die. Yet it was carefully nurtured by Englishmen who had faith in its possibilities, and it soon increased in strength. After a struggle between the Crown and the House lasting for centuries, the latter finally and fully triumphed in 1688, and now dominates not only the Crown but also the House of Lords. The Revolution of 1688 did not make any material change in the legal prerogative of the Crown. It did, however, divest the kingship of much power, not conferred upon it by law or by ancient custom, but as the result of the usurpations of the Tudor and Stuart kings. The Revolution was also followed by a series of happy political accidents, which aided in establishing responsible ministerial government and in eliminating the Crown, quite largely, as an active factor in the government. Many of these important changes were the result of custom and not of positive legal action. As a result the prerogative in theory is very different from the prerogative in practice. For example, according to legal theory, King Edward VII. has the undoubted right to veto any bill whatever passed by the two Houses of Parliament, but should he attempt

to do so the Parliament and the people would register a most emphatic protest and would carry their point. As a result of this somewhat anomalous condition of affairs, we must distinguish very clearly between theory and practice in connection with the royal prerogative, if we would avoid confusion. Many writers on the subject have not done so. Mr. A. C. Ewald has written a little book, admirable in many respects, entitled, "The Crown and its Advisers," in which this distinction is not clearly and fully made. The reader following it as a guide would certainly conclude that the King is a most powerful factor in the English government in a direct and personal way. This is

not true.

It is logical to speak of the theoretical prerogatives first and of the practical ones afterward. Mr. Alpheus Todd, in his excellent work entitled "Par- The Theoretiliamentary Government in England," gives cal Prerogaa concise statement of the theoretical side

tives.

of the matter as follows: "The king is, moreover, the head of the legislature, of which he forms an essential constituent part; the generalissimo, or first in command, of the naval and military forces of the state; the fountain of honour and of justice, and the dispenser of mercy, having a right to pardon all convicted criminals; the supreme governor, on earth, of the national church; and the representative of the majesty of the realm abroad, with power to declare war, to make peace, and to enter into treaty engagements with foreign countries." Taswell-Langmead, in his "Constitutional History of England," writes to the same effect when he says: "By the written Constitu

tion the King still retains the supreme Executive and co-ordinate Legislative power. He calls Parliament together, prorogues or dissolves it at pleasure, and may refuse the Royal assent to any Bills. He is the 'Fountain of Justice,' and as such dispenses Royal justice through judges appointed to preside, in his name, over the various Courts of Judicature. As supreme magistrate and conservator of the peace he nominally prosecutes criminals, and may pardon them after conviction. As supreme Military commander, he has the sole power of raising, regulating, and disbanding armies and fleets. As the 'Fountain of Honour,' he alone can create Peers (a power of the highest Constitutional importance) and confer titles, dignities, and offices of all kinds. He is the legal head and supreme governor of the National Church, and in that capacity convenes, prorogues, regulates, and dissolves all Ecclesiastical Synods or Convocations. As the representative of the majesty of the State in its relations with Foreign Powers, he has the sole power of sending and receiving Ambassadors, of contracting Treaties and alliances, and of making War and Peace."

The above quotations constitute an admirable statement of the theoretical powers of the Crown. It will be necessary, however, for us to consider in some detail each of the above powers and to contrast the theory of the matter with the actual practice. We may say at the outset that, according to legal theory, the Crown possesses important and extensive powers, but as a matter of actual practice these powers are exercised only through some responsible minister.