PREROGATIVE, in English law, means the powers, privi leges and immunities peculiar to the King. In the early Middle Ages the word occurs as an adjective meaning "exceptional," as in the sentence "The King is prerogative." A distinction has to be made at the outset between prerogatives peculiar to the King in his "natural" capacity and confined to him, such as the rule that he is personally exempt from all juris diction, criminal or civil, and cannot be sued for debt, and prerogatives which belong to his "politic" capacity and as such extend to the whole Government carried on in his name_ such as the immunity of "the Crown" from being sued by ordinary civil process. (See PETITION OF RIGHT.) English law has, however, never clearly distinguished between the two capacities; indeed Coke declared it "a damned and damnable opinion" to attempt such a distinction. The whole history of "constructive treason" is a witness to this dualism, as when the judge held that "every rebellion intendeth as its natural consequence the death of the King." In other words, a subject indicted for attempting to compel the King to change his counsellors was not allowed to plead that his "overt acts" were not directed against the life of the King but merely against his Government. The result was that the King was completely identified with the State and even to-day our constitutional law knows no such term as "The State." The State is the King. All writs run in his name. All indictable offences are offences "against the peace of our Lord the King, his Crown and dignity." All "public" property is legally vested in the King—"his" are the ships of war, the Government build ings; the courts of justice and all other governmental agencies.
All statutory powers conferred upon the Government are de clared to be conferred on "His Majesty in Council." All money voted by Parliament is voted to "the King," even though it be appropriated by statute to public services from which the King is powerless to divert it. This identification of the State with the King is nothing but a survival of mediaeval times when the King was, indeed, "every inch a King," when he governed largely by his own will, did justice in person and chose his own servants.
a royal palace and a Post Office are equally exempt from the pay ment of rates, for it is one of the "prerogatives" that "the King" is not bound, in the absence of express words, by a taxing statute. We see the same identification of the "natural" King and the "politic" King in the rule that the King's Government can never, in any circumstances, be sued for wrongful, i.e., tortious, acts. The immunity of the latter is based, historically, on the rule that the "King can do no wrong" which did not mean originally, e.g., in the time of Bracton, the perfectibility of the King but the simple feudal fact that the King could not be tried or sued in his own courts any more than any other feudal lord in the court of that lord's jurisdiction.
As the King was, and is, the "Government," the rule found a new application in the principle that no governmental acts or defaults could be the subject of legal proceedings. Had this appli cation been carried to its logical conclusion, it would have resulted in the immunity of all the King's officers from being sued for their wrongful acts. But English law was, and is, too practical a science to be logical and a consequence so disastrous to the rights of the subject was avoided by the evolution of the principle, laid down by the judges, that no servant of the Crown could be allowed to plead the command of the King, even where such a command had actually been issued, as a defence for an unlawful act, for to admit such a plea would, they held, be to impute wrong to the King. This theory reaches its triumphant climax in the dictum of Blackstone that the. King not only can "do" no wrong but cannot even "think a wrong." The failure of the law to make any distinction between the natural and political capacity of the King led to some desperate fictions, of which the supreme example is the legal maxim that "the King never dies." This fiction, in the absence of such a distinction, was necessary because otherwise the death of the King would have dissolved the State in the interregnum between the decease of one King and the coronation of his successor. Indeed, this was actually the situation before the invention of the fiction.