As with the King's ministers, so with "his" judges. In virtue of the Act of Settlement the King can no longer dismiss judges at his pleasure; they are removable only on an address by both Houses of Parliament. Even their appoint ment, although technically the act of the King, is the act of a minister, namely the Lord Chancellor who issues, in each case, a "patent" of appointment.
The prerogatives are thus no longer an instrument of arbitrary government. They have, constitutionally speaking, passed into the hands of the Cabinet. Hence Dicey's epigram that "the pre rogatives of the Crown have become the principles - of the people." Like all epigrams, this statement is, however, more pointed than true. Cabinets may be as arbitrary as Kings, and Prime Ministers as arbitrary as Cabinets. The prerogative of dis solution, for example, now operates, in virtue of the modern con vention that the King is constitutionally bound to grant a dis solution to a Prime Minister, even when he has been defeated in the House of Commons, to make the former the master of the latter. So too a Government, faced by a hostile House of Lords, can in certain cases avail itself of the prerogative where it cannot be sure of getting its way by statute. Furthermore the preroga tive interposes a shield between a Government department and a subject whose rights it has invaded. (See PETITION OF RIGHT.) Pre-Cabinet Government. —Bef ore the development of Cabinet Government, in other words while the exercise of the prerogative was exclusively in the hands of the King himself, or of ministers subservient to him, the efforts of Parliament were directed to depriving, subjugating or abolishing the prerogative. The chief example is afforded by statutes such as the Petition of Right, the Bill of Rights and the Act for the Abolition of the Star Chamber, statutes abolishing respectively the prerogative of the King in taxation to supply his needs, in raising and keeping a standing army to enforce his will, and in exercising a jurisdic tion to punish his opponents. Here Parliament went further than the courts were prepared to go. The courts did, indeed, in the famous "Case of Proclamations" lay down the important prin ciple that "the King hath no prerogative except that which the law allows him," But the law itself, i.e., the common law, was dis posed, as in Bate's Case, 2 State Trials 371 (16o6), and in the Ship Money Case, 3 State Trials 1090 (1638), to recognize an arbitrary power in the King by distinguishing an "absolute" pre rogative in cases of emergency, of which the King must be the sole judge, and from the exercise of which no King, not even by statute, would contract himself out—at any rate so as to bind his successors. The answer to this doctrine was the pertinent challenge of Mr. Hakewill in the Commons debates, "Who then
shall decide what is an emergency?". It was the Revolution of 1689 that really decided the issue by settling that the King has no power above and beyond the law and that the real sovereign is not the King but the King in Parliament.
The chief prerogative powers may be summarised as follows: (I) In foreign relations the King has the exclusive power of making war and of declaring peace. The power is usually ex ercised by a Proclamation and an Order in Council and as such, it is binding on the courts who cannot go behind it but must accord it the same "judicial notice" as an Act of Parliament, Esposito v. Bowden 7 E. and B. 765. In practice, of course, the power is never exercised except with the approval of Parliament. The treaty-making power may be regarded as an exercise of the same prerogative. The King can make what treaties he pleases, provided they do not impose a tax on the subject or derogate from common law rights. Whether he can, by the negotiation of such a treaty, cede British territory is more doubtful and has been much disputed; no King, in other words no English ministry, has ventured to exercise such a prerogative since 1894 without seek ing the consent of Parliament in the form of a statute and it may be regarded as now settled usage that, as in the case of the Treaty of Versailles, the Crown will always, in the case of a Treaty of Peace involving cession or annexation, seek statutory powers, ex magna cautela, to do all such things as may be necessary to carry such a treaty into effect. The Crown has, however, often, as in the case of certain African Protectorates, annexed "foreign" ter ritories by mere prerogative in the form of an Order in Council. Furthermore it rests with the Crown, and the Crown alone, to "recognize" the foreign Governments as de jure Governments: a recent case in point is the recognition of the Bolshevik Repub lic (see Luther v. Sagor [1921] 3 K.B. 533). Such recognition is binding on the courts and, by a logical sequence, so is a decla ration by the Crown that a particular person is entitled to the status of a foreign sovereign and as such is immune from the jurisdiction of the courts—cf. Mighell v. Sultan of Johore (188o) L.R.• 5 -P.D. 197. So too with the status of an ambassador and the diplomatic immunity of himself and his "suite"—it has now been held that the courts cannot, in the presence of a Foreign Office certificate, even traverse that certificate in order to decide whether the person, in favour of whom diplomatic immunity from their jurisdiction is claimed, is, as a matter of fact, a member of the embassy or not—Mussman v. Engelke (1928) A.C.