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PREROGATIVE
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PREROGATIVE , in See also:law, an exclusive See also:privilege of the See also:Crown. The word, originally an See also:adjective, is derived from the centuria praerogativa, or See also:century which voted first on a proposed law (rogatio) in the See also:Roman See also:comitia centuriata. In See also:English law, See also:Blackstone says, " by the word prerogative we are to understand the See also:character and See also:power which the See also:sovereign hath over and above all other persons, in right of his See also:regal dignity; and which, though See also:part of the See also:common law of the See also:country, is out of its See also:ordinary course. This is expressed in its very name, for it signifies, in its See also:etymology, something that is required or demanded before, or in preference to, all others " (See also:Stephen's See also:Comm. vol. ii. bk. iv. pt. i. ch. vi.). The prerogative is sometimes called See also:jura See also:regalia or regalia, the regalia bells! either majora, the regal dignity and power, or minora, the See also:revenue of the Crown.
The theory of English law as to the prerogative of the See also: (2) The right to dispense with the See also:obligation of statutes, by the insertion in a See also: The prerogative may be exercised in See also:person or by delegation. The prerogative of conferring honours is generally (though not necessarily) exercised by the king in person, as in the See also:case of investment with See also:knighthood and military or See also:civil decorations. The delegation of the prerogative often takes See also:place by See also:commission, issued with or without a See also: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 i There is no difference in the prerogative as exercised by a king or a See also: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 See also:Mary secs. 3, c. 1.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 See also: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 See also:direct and such as are by way of exception; or perhaps better, with See also:Chief See also:Baron Comyns, into those affecting See also:external relations and those affecting See also:internal relations. Under the first class would fall the power of making See also:war and concluding See also:peace. As incidents to this power the king has the right of sending and receiving ambassadors, of concluding See also:treaties, and of granting passports, safe-conducts, letters of marque and See also:reprisals. These rights may be limited by See also:international agreement ; thus the See also:Declaration of See also: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 See also:personal, See also:political, judicial, ecclesiastical and fiscal. Personal.—In See also:order that there may always be an existing See also:head of the See also:state the king is regarded as a See also:corporation. He cannot See also:die; there can only be a See also:demise of the Crown—that is, a See also:transfer of the royal authority to a different person. On the same principle the king cannot be under See also:age, though in cases where the king has been of See also:tender years a See also:protector or See also:regent has usually been appointed for administrative purposes. The king is personally irresponsible for See also:crime or See also:tort, it being an See also:ancient common law See also: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 See also:mistake of his advisers. A curious consequence of this irresponsibility is that the king is apparently the only person in the See also:realm who cannot under Any circumstances See also:arrest a suspected felon, for no See also:action for false imprisonment would See also:lie against him, and in the event of the arrest of an See also:innocent person there would be a wrong without a remedy. He cannot be guilty of See also:laches, or See also: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 See also:lapse of time will in See also:England (though it is otherwise in See also:Scotland) See also:bar the right of the Crown to prosecute. The king is exempt from See also:taxation on the ground that, as the revenue of the realm is his prerogative, it is useless for him to tax himself. But lands See also:purchased by the privy See also: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-See also:rate, as he is not mentioned in the Poor Law Acts. His person cannot be arrested or his goods distrained or taken in See also:execution. The privilege of exemption from taxation applies to his palaces and to the public buildings of the state. No See also:kind of judicial See also:process can be executed in a See also:palace as long as it continues to be a royal See also:residence. The privilege does not attach to palaces which the king has ceased to use as a dwelling, such as See also:Hampton Court. The king has also several personal privileges of See also:minor importance, such as the See also:title of ' See also:majesty," the right to a royal salute, to the use of the royal See also:standard and of See also:special liveries, &c. Political.—The king is the supreme executive and co-See also:ordinate legislative authority. As such authority he has the attribute of sovereignty2 or pre-See also:eminence, and the right to the See also:allegiance of his subjects. All See also:land is mediately or immediately held of him. Land See also:derelict suddenly by the See also:sea, land newly discovered by subjects and islands arising in the sea are his. As See also: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 See also: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 See also: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 See also:laws of the realm. They cannot alter the common law or create a new offence. The king is the See also:fountain of See also: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 See also:peerage. He also confers all other titles of honour, whether hereditary or not, and grants See also:precedence and armorial See also:bearings. The great See also: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 2 The word " sovereign " is frequently applied to the king in legal See also:works. It should be See also:borne in mind at the same time that the king is not a sovereign in the strict sense in which the See also:term is used by See also:Austin. of parliament. The king, as head of the state, is in supreme command of the See also:army and See also:navy for the See also: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 See also:seamen in case of See also:necessity, and to prohibit the importation of munitions of war (39 & 40 Vict. C. 36, s. 43), also the right to the See also:soil of the See also:foreshore and of estuaries of See also:rivers, and the jurisdiction over territorial See also:waters. Other rights which fall under the political See also:branch of the prerogative may be called the commercial rights, including the coining of See also:money, the regulating of weights and See also:measures, the establishing of markets and fairs, and the erecting of beacons, lighthouses and sea-marks. As parens patriae he is ex officio See also: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 See also:majority of the See also:House of See also:Commons belongs. Thus the jurisdiction over infants, &c., is exercised in England by the See also:lord See also:chancellor, and over beacons, &c , by the Trinity House, under the See also:general superintendence of the See also:Board of See also:Trade. Judicial.—The king is the fountain of justice, and the supreme See also:conservator of the peace of the realm. As supreme See also:judge the king has the See also:appointment of all judicial officers (other than those in certain See also:local courts), who act as his deputies. He may constitute legal courts for the See also: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 See also: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 See also:present in court. Actions in the king's See also:bench were until See also:modern times said to be See also:coram rege ipso, and the king could not be non-suited, for a non-suit implied the non-See also:appearance of the See also:plaintiff in court. The king enforces See also:judgment by means of the See also: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 See also:coin-See also:mission of a crime, the king has, as the offended party, the power of remission. The king cannot be sued by ordinary action. He may See also:sue by ordinary action, but he has the See also: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 See also:collusion is alleged between the See also:decree nisi and the decree See also:absolute in See also:divorce. Crown debts have priority in administration and See also:bankruptcy.
Ecclesiastical.—The king is recognized as " supreme See also:governor " of the See also: 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 See also:Norman and See also:Plantagenet See also:kings was derived from crown lands and feudal dues. At the present See also:day the rents of crown lands See also:form a very small part of the revenue, and the feudal dues do not exist except in the pecuniarily unimportant cases of See also:escheat, royal See also:fish, wrecks, treasure trove, waifs and strays, &c. Of the revenue a comparatively small part (the civil See also:list) is paid to the king in person, the See also:rest (the. consolidated fund) is applied to public purposes. Prerogative Process.—This is the name given to certain methods of See also:procedure which the Crown alone has the right of using; such are See also:inquest of office (an inquiry by See also: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 See also:information (by which proceedings are commenced in the name of the See also: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 See also:Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England; See also:Chitty, The Prerogative of the Crown; Staunforde, Exposition of the King's Prerogative; omyns, See also:Digest, See also:art. " Praerogative "; See also:Broom, Constitutional Law; and the works of W. See also:Bagehot, S. See also:Low, A. V. See also:Dicey and See also:Sir W. See also:Anson, on the Constitution. Additional information and CommentsThere are no comments yet for this article.
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