Prerogative

A mediaeval chronicler records that on the death of one of the earlier Kings "every man did what was right in his own eyes." The King was dead, his "peace" died with him and, for the time being, offences ceased to be "crimes" for the legal essence of a crime, as we have seen, is an offence "against the King's peace." Here is the mystical doctrine, so mystically expressed by Allen when he says "When the King dies his politic body escapes from his natural body and by a sort of legal metempsychosis enters into the natural body of his successor but whilst he is alive the two bodies are indissolubly united and consolidated into one." But the conquest of this fiction was not complete. Right down to 1867 the death of the King operated to dissolve Parliament; the King was, and is, a constitutional element in Parliament and the summons of a Parliament was regarded as an act so personal to him that when he died his Parliament died with him. It was reserved for the Demise of the Crown Act of 1867 to provide that the death of the King should not involve a dissolution. On the other hand the death of the King still operates to dissolve the whole Privy Council from the date of his death until his successor re-appoints the members.

Modern Kingly Prerogative.

The prerogative powers of the King, i.e., powers original and inherent in the Kingship, as distinct from powers conferred on him by statute, have all of them one feature in common which is that they can no longer be exercised by the King in person but only on the advice of Min isters or, what amounts to the same thing, in particular forms and by the use of particular instruments. Long before "respon sible government" made its appearance in England and at a time when the Commons even repudiated responsibility for the gov ernment of the country, Parliament, guided by a sound instinct, insisted that the royal prerogative in certain matters could only be exercised by the use of certain seals, notably the Great Seal and the Privy Seal, which were in the custody of certain great officers of State. There are innumerable mediaeval statutes to this effect. For the use or misuse of these seals their custodians could be brought to book by impeachment (q.v.) in Parliament. As early as the i6th century the judges held in Mildmay's Case that the King's order to issue "treasure" could only be executed by a warrant under the Great or Privy Seal—a principle now embodied in the Exchequer and Audit Act of i866 which requires that the sign-manual, i.e., the King's personal signature, must always be countersigned by two Lords of the Treasury before money can issue out of the national exchequer. In the same

way the common law courts themselves laid down the rule, at the beginning of the 17th century, that, even in the Court of King's Bench, held coram rege and in which mediaeval Kings had presided in person, the King could no longer administer justice in person—"the King cannot speak by word of mouth but only by record." There still remained, it is true, the residuary jurisdiction of the King in Council which could be, and was, exercised by him in person, but with the abolition of the Star Chamber in 1641 this jurisdiction disappeared. By the same statute the King's personal command, i.e., a warrant issued under his hand, was no longer, of itself, to be a decisive answer to an application for a writ of Habeas Corpus by a person arrested under such a warrant. (See WARRANT and HABEAS CORPUS.) So long as it was in the power of the King to remove the judges for decisions adverse to the exercise of his personal will or to dismiss ministers who refused to carry out his wishes, he could, of course, bend them to exercise his prerogatives according to his pleasure, even when their exercise was subject to the formal rules described above. Parliament, however, gradually stopped up every earth in this respect. It refused to accept the King's com mand as a defence to the impeachment of one of his ministers, as in Danby's Case (1679), while by the Act of Settlement (sec tion 3) it enacted that the King's prerogative of pardon under the Great Seal should not be pleadable to an impeachment. So long, however, as the King was not dependent on supplies for the ordinary expenses of the Government he could neglect to sum mon a Parliament for as many years as he pleased and im peachment was thereby made impossible. What was really de cisive in securing the exercise of the King's prerogative by min isters in accordance with popular will was not so much the develop ment of Cabinet Government as the transfer, principally as the result of Burke's reforms, of all governmental expenses from being a charge on the hereditary revenues of the Crown, or the Civil list, to the annual Estimates. In strict law the King can still appoint and dismiss ministers as he pleases, nor is he under any statutory obligation to summon Parliament. But if he did the one and omitted the other, he and his ministers would be without money to carry on the Government. Taxes might still be imposed, for much of our taxation is voted under permanent Acts, but none of the proceeds could be expended. Only the annual Appropria tion Act can authorize the expenditure of the public money.