Wednesday, 29 June 2011

Chitty on the Royal Prerogative

From A Treatise on the Law of the Prerogatives of the Crown (1820):

"As supreme executive magistrate, the King possesses, subject to the law of the land, exclusive, deliberative, and more decided, more extensive, and more discretionary rights and powers. These are wisely placed in a single hand by the British constitution, for the sake of unanimity, strength, and dispatch. Were they placed in many hands, they would be subject to many wills; many wills, if disunited, and drawing different ways, create weakness in a government; and, to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of State will afford. The King of England is therefore not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him.


The splendour, rights, and powers of the Crown were attached to it for the benefit of the people, and not for the private gratification of the sovereign; they form part of, and are, generally speaking, as antient as the law itself....

In every community, it is highly important that the greatest reverence towards their sovereign should be instilled into the minds of the governed, — unattended by respect, authority speedily diminishes; and without a due share of authority, it would be impossible for the King to enforce respect to the laws; on the observance of which depend the happiness and security of his subjects. Independently therefore, of the mere trappings and outward magnificence and title of royalty, and of the various substantial authorities and powers of the Crown, the constitution has attached to the wearer certain attributes forming his constitutional character and royal dignity

These attributes are principally sovereignty or pre-eminence, perfection, "the King can do no wrong;" and perpetuity, "the King never dies."

By the attribute sovereignty or pre-eminence, and perfection, we are not to understand that the King is above the laws, in the unconfined sense of those words, and that every thing he does is lawful; but that his Majesty, individually and personally, and in his natural capacity is independent; and is not amenable to any other earthly power or jurisdiction. The inviolability of the King is essential to the existence of his powers as supreme magistrate; and therefore his person is sacred. The law supposes it impossible that the King himself can act unlawfully or improperly. It cannot distrust him whom it has invested with the supreme power: and visits on his advisers and ministers the punishment due to the illegal measures of government. Hence the legal apophthegm that the King can do no wrong. As the law provides no redress against the sovereign, it properly attaches the blame of illicit proceedings to those only who are within the reach of punishment; for it would be absurd to suppose legal culpability which is dispunishable. The constitutional signification of the maxim was in former times misrepresented. It was pretended by some that it meant that every measure of the King was lawful, a doctrine subversive of all the principles of which the constitution is compounded. It is a fundamental general rule, that the King cannot sanction any act forbidden by law: it is in that point of view that his Majesty is under, and not above, the laws; that he is bound by them equally with his subjects....

The perpetuity of the Crown is expressed by the quaint maxim that the King never dies; by which is meant that on the death of the King, the prerogatives and politic capacities of the supreme magistrate, instantly vest, without a moment's interregnum, in his successor. Having thus considered the attributes constituting the politic character and dignity of the King, it will be proper to take a view of his principal and transcendent prerogatives as executive magistrate.

With respect to foreign states and affairs, the whole majesty and power of his dominions are placed in the hands of the King, who as representative of his subjects possesses discretionary and unlimited powers. In this capacity his Majesty has the sole right to send ambassadors and other foreign ministers and officers abroad, to dictate their instructions, and prescribe rules of conduct and negotiation. His Majesty alone can legally make treaties, leagues and alliances with foreign states; grant letters of marque and reprisals, and safe conduct; declare war or make peace. As depository of the strength of his subjects, and as manager of their wars, the King is generalissimo of all land and naval forces: his Majesty alone can levy troops, equip fleets, and build fortresses.

The King is also supreme head of the church: in which capacity he appoints the archbishops and bishops; convenes, prorogues, restrains, regulates, and dissolves all ecclesiastical synods or convocations; and is the dernier resort in all ecclesiastical causes, an appeal lying ultimately to him in chancery from the sentence of every ecclesiastical judge.

With regard to the Houses of Parliament, the right to assemble, prorogue, and dissolve them, belongs exclusively to the King as supreme executive magistrate.

As the fountain of justice, and administrator of the laws, all judicial power is supposed to be derived from the Crown; and though the King himself possesses none, yet he appoints those by whom it is exercised, and constitutes courts and offices. The pardoning offenders and issuing proclamations, are also ranked among the prerogatives of the Crown.

The King is also the fountain, parent, and distributor of honours, dignities, privileges and franchises.

The superintendency and care of commerce, on the success of which so materially depend the wealth and prosperity of this nation, are also, in various cases, allotted to the King by the constitution.

Though in the exercise of his lawful prerogatives, an unbounded discretion is, generally speaking, left to the King; and, in using such discretion, his Majesty is irresistible and absolute; yet there are certain duties pointed out, with a visible hand, for his observance: and various boundaries and restraints, on the tyrannical and oppressive use of the royal powers, are wisely interwoven into the texture of the constitution.

The duties arising from the relation of sovereign and subject are reciprocal. Protection, that is, the security and governance of his dominions according to law, is the duty of the sovereign; and allegiance and subjection, with reference to the same criterion, the constitution and laws of the country, form, in return, the duty of the governed, as will be more fully noticed hereafter. We have already partially mentioned this duty of the sovereign, and have observed that the prerogatives are vested in him for the benefit of his subjects, and that his Majesty is under, and not above, the laws. This doctrine is laid down by several writers; and is expressly ratified by the coronation oath, wherein the King swears to govern according to law, to execute judgment in mercy, and to maintain the established religion; and by the statute 12 and 13 W. 3, c. 2. which declares that "the laws of England are the birthright of the people thereof; and all the kings and queens who shall ascend the throne of this realm, ought to administer the government of the same, according to the said laws: and all their officers and ministers ought to serve them respectively according to the same: and therefore all the laws and statutes of this realm, for securing the established religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, are ratified and confirmed accordingly."

There are also various boundaries, which.the constitution has set to the royal prerogative. These consist in the actual and positive limitation of the powers of the Crown, in certain specified cases. Thus, though the King is supreme head of the church, he can neither legally alter his own, or establish any other, than the national religion; and must tolerate the dispassionate religious sentiments of others. His Majesty is invested with the exclusive right to assemble Parliament, but must assemble one at least once in three years: is the fountain of justice, but has in person no judicial power, and cannot alter the law, or influence the determinations of his judges: may pardon offenders, but cannot prejudice civil rights and remedies: has the management of martial affairs, but cannot, without the consent of Parliament, raise land forces, or keep them on foot, in time of peace.

The restraints on the undue exertion, and the misuse of even the undoubted powers of the Crown, are also of the most vital importance; and principally consist in the dependence of the Crown on the people, that is, the House of Commons, for supplies; and in the constitutional responsibility of the advisers, ministers, and officers of the sovereign. Restraints which are fully sufficient, if unpolluted by the enervating hands of an unconstitutional influence, to deaden and obviate the most strenuous attempts to subvert the constitution. Unaided by his people, who alone possess the power of taxing themselves, through the medium of their representatives the Commons House of Parliament, the King has comparatively no revenue or resources which he could convert to purposes extensively dangerous.... Without money the King can neither maintain his forces, carry on a war, perform various treaties with other potentates, or pay the salaries of his officers, who so materially add to the influence, and consequently to the power of the Crown.

The constitutional responsibility of the advisers, ministers, and officers of the Crown, not only operates as an inducement to them to act with caution, but enables the people, through their representatives the House of Commons, to expose, by an impeachment, to public view, to the eye of the world, the corrupt, the ill-advised, or impolitic measures of administration; an exposure which must tend to the destruction of ambitious projects, and which the King cannot prevent, the party impeached not being allowed to plead his Majesty's pardon in bar to the impeachment.

Should a sovereign of England again unhappily and personally persist in measures, tending to a dissolution of the principles of the constitution, though the law provide no stated remedy against him, the feelings of mankind point one out, and history furnishes instances of the result of such a conflict. In many countries tyranny has been confirmed by the struggle: in this, however melancholy and lengthened the convulsion may sometimes have been, liberty has ever eventually triumphed. And it is a proud consideration, that in 1688 the Lords and Commons, instead of pretending to a right to form another system, on Mr. Locke's theory, that the constitution was dissolved by the attempts to destroy it, declared with the profoundest wisdom, that the constitution still subsisted: and, acting on that solid principle, they adopted a remedy suited only to the necessity of the case; adhering to ancient and fundamental doctrines, so far as circumstances would admit; but at the same time restoring to their original perfection and beauty those principles which tyranny had endeavoured to sully or subvert."