it. I do not believe that the dictum of the learned justice is the law of England upon this point. It was not a regular judicial decision; and if it had been, we must remember that judicial decision is, in the English system, no absolute determiner of the royal prerogative. The commentator Forsyth has reviewed exhaustively the opinions of the English jurists and statesmen upon this subject, and has declared, as his conclusion, that the Crown has the power to establish martial law in case of strict necessity.1 None of I regard this class of powers as constitutional. them was conferred by act of Parliament. There is a statute of Parliament which declares these powers to belong solely and exclusively to the Crown; 2 but this statute cannot be said to have conferred them. It simply proclaimed the assumption of these powers by the Long Parliament to be a usurpation of the constitutional powers of the Crown. They were held by the Crown when the Crown was the state, i.e. when the Crown was sovereign, and they have neither been withdrawn by the state, under its later forms of organization, nor surrendered by the Crown. They are, therefore, safeguarded by the absolute veto power of the Crown, which may be and should be exercised against any attempts to impair them proceeding from any other source than the state itself. 4. The Powers of the Crown in Civil Administration. The Crown has the sole and exclusive power of appointing all the officials of the government. It has also, except in the case of the judicial officers and a few others, the power of removal. It has even the power to create new offices and to determine the amount of remuneration which shall be attached to them.4 The only limitations which the spirit of the constitution 1 Forsyth, Cases and Opinions on Constitutional Law, p. 188 ff. 2 13 Charles II, c. 6. 8 Todd, Parliamentary Government in England, vol. I, pp. 609 & 630. places upon the exercise of these powers are, that no tax may be imposed thereby, nor any office created which is inconsistent with the constitution.2 One other limitation has been set up by Chitty in his work on the prerogative, viz; that the consent of Parliament is necessary to legalize any change made by the Crown in the usual form of granting ancient offices.3 I confess I cannot quite see the reason for this. The Parliament has not, so far as I can find, enacted any such limitation. The Crown is still, according to all the authorities and the universal practice, the general source of office. If the power of the Crown is not limited in this respect by statute or custom I am unable to comprehend upon what principle of law or of political science Chitty's limitation is based. The limitation, furthermore, that the Crown shall not create any office inconsistent with the constitution or prejudicial to the subject is difficult to construe. Who shall determine when this inconsistency or prejudice arises? Is not this a question for the Crown itself until the state speaks? If so the limitation is, until then, a mere selflimitation, and this dictum of the learned commentator is only the expression of his opinion as to what the Crown ought or ought not to do. By virtue of the fact that the Crown is the source of all office, it is likewise the source of all honor and dignity.* Honor and office, if not identical, are naturally and historically very closely connected. Whenever we find honors and dignities not connected with existing offices they represent offices that have ceased to exist. The Crown has, therefore, the sole and exclusive power to create peers, grant all degrees of nobility, knighthood, etc.5 With these powers of conferring office and honor, the commentators usually connect 1 Todd, Parliamentary Government in England, vol. i, p. 610. 4 Bowyer, Constitutional Law of England, p. 174. Ibid.; Gneist, Das englische Verwaltungsrecht, S. 654. that of granting corporate franchises of a private character. This latter power has been greatly limited by the Parliamentary statutes forbidding the creation of monopolies by the Crown.1 All of these powers, in the extent in which they at present exist, are what I term constitutional powers, and, as such, are safeguarded by the royal veto. The Crown has the power to establish and regulate public markets, fairs, the system of weights, measures, and the coinage. This power, however, has been limited by several statutes. In fact, nearly the whole subject of weights and measures is now regulated by statute.3 This power of the Crown is now reduced substantially to the regulation of public markets, and the coining of money out of material and according to the standard prescribed by Parliament.1 What remains of this power, however, is what I term a constitutional power. It was not conferred by statute. It is therefore safeguarded by the veto power of the Crown. 5. The Powers of the Crown over the Established Church. The Crown has the power to appoint the bishops, archbishops, and other principal dignitaries of the Established Church. It has the power to convene, prorogue and dissolve convocation, i.e. the ecclesiastical Parliament of the realm, and to license, restrain and veto its proceedings. has finally the power to license the assembly and proceedings of diocesan synods. It These functions are all statutory.8 They were introduced among the royal powers at the time of the Reformation. 1 21 James I, c. 3. It 2 Bowyer, Constitutional Law of England, p. 176 ff.; Gneist, Das englische Verwaltungsrecht, S. 654. 8 5 George IV, c. 74; 4 & 5 William IV, c. 49. 4 Bowyer, Constitutional Law of England, p. 177. 5 Todd, Parliamentary Government in England, vol. i, p. 501 ff. 6 Ibid. p. 504. 8 7 Ibid. p. 505. 24 Henry VIII, c. 12; 25 Henry VIII, c. 19 & 20; 26 Henry VIII, c. I. is true that the power of appointing to the great church offices was vested in the Crown by the Statute of Provisors, in the twenty-fifth year of the reign of Edward III,1 but the matter was so doubtful in the sixteenth century that it was thought best to settle it by a new enactment. I consider then that the royal supremacy over the church is not of a constitutional character, and should not be regarded as belonging to that part of the royal powers which is safeguarded by the veto power. 6. The Judicial Powers of the Crown. The Crown has power to hear and decide all cases and controversies appealed to it from the colonial, ecclesiastical, and admiralty courts, and from the Lord Chancellor's court of lunacy and idiocy. By the statute 16 Charles I, chapter 10, the general judicial power of the Crown was withdrawn through the dissolution of the Court of Star Chamber and the Court of Requests; and by the statute 3 and 4 William IV, chapter 42, all that is left of the judicial power of the Crown is vested in a committee of the Privy Council, called the judicial committee. The judicial power of the Crown, in its present form and extent, is therefore statutory, and not, according to my view of the constitution, protected by the absolute veto. The commentators all speak of the Crown as the source of justice and peace generally; but that only means, at present, that justice is administered in the name of the Crown, and by officials who receive their appointments from the Crown. It does not mean that the Crown has any power to pronounce judgments, either immediately or through officials subject to the royal instructions, except in the cases above specifically mentioned. Lastly, the Crown has the power to pardon criminal offences; i.e. to excuse a person from a penalty imposed in a criminal proceeding, or to commute the penalty, and also to 1 Bowyer, Constitutional Law of England, p. 182. remit fines and forfeitures in so far as their remission does not impair the vested rights of third persons.1 The power of the Crown to pardon runs even against the Parliament itself when acting as a court of impeachment.2 III. The Organs through which the Crown makes use of its Powers. The commentators usually say that the Crown legislates through the Parliament and administers through the Council. It seems to me that the conditions which once justified this statement are now too remote, too purely a matter of history, to sustain the proposition that the English legislation is, at present, enacted by the Crown through the Parliament. It would be about as true to existing relations to say that the President of the United States legislates through the Congress. I do not, therefore, refer to the Parliament as an organ through which the Crown exercises its powers. I refer wholly to the Council. What now is the Council, through which every act of the Crown must be done in order to be clothed with legal validity? Nominally, it is, next to the Crown itself, the oldest institution of the English constitution, viz; the Privy Council. Really, it is only that part of the Privy Council which is known in common parlance as the Cabinet. What then is the Cabinet? It requires some boldness to undertake a definition or a description of this body after so learned a man as Professor Dicey has said, "that while the Cabinet is a word of every-day use, no lawyer can say what a cabinet is." Bagehot, however, is not so modest as Professor Dicey. He has undertaken to define the Cabinet. He calls it, first, "a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation"; and, again, 1 Blackstone, Commentaries on the Laws of England, Bk. I, p. 269. 2 Anson, Law and Custom of the Constitution, Part I, p. 305. |