592

CHAPTER II.

ADMINISTRATIVE PREROGATIVES OF THE CROWN.

PREROGATIVE is defined by Coke to extend "to all powers, preheminencies, and privileges which the law giveth to the Crown;" and he observes that it has been variously called by ancient authors, libertas or privilegium regis, droit le roy, jus regium, and jus regium coronæ (a). Writers on the constitution have frequently used the word 'prerogative' in a restricted sense, confining it to those political powers of the Crown which are not conferred by statute; and in this sense the word will be here employed.

The powers of the Crown exercised with respect to the legislature and judicature, have been considered in the two preceding books. The administrative prerogatives of the Crown which we have here to consider, may be distributed under the following heads :-(1) the Queen's Peace; (2) the Public Defence; (3) Foreign Affairs; (4) Revenue; (5) Trade; (6) Franchises.

1. The Queen's Peace.-The Sovereign is, by prerogative, the principal conservator of the peace of the kingdom, and may give authority to any others to see the peace kept (b). It is in virtue of this prerogative, and that by which the Sovereign is "fountain of justice," that the country is subject to general and local jurisdictions, each having officers competent to execute their judicial processes (a) Co. Litt. 90 b. (b) 1 Blackstone, 349.

and judgments. We have already adverted to the origin of the system of police; the Anglo-Saxon division of the country into counties, or shires, and of counties into hundreds, having their county courts and hundred courts (a) respectively. The system of the Anglo-Saxon laws was, to make the county or hundred answerable for crimes committed in them, and to impose the duty of apprehending criminals on all the King's subjects(b). This system was, in a great measure, retained after the Conquest. The sheriff, though he lost (as we have seen) a great part of his judicial power, retained his ministerial power, with authority to enforce it by the posse comitatus, which is defined to include all people of the county above fifteen years old and under the degree of a Peer (c). A great change, however, was made in the sheriff's office. He ceased to be elected by the people, and was appointed by the Crown (d). The object of this change was probably to bring the police of the country under the control of the central authority; but that, notwithstanding the change, the sheriffs frequently neglected the execution of legal processes, or wilfully abused their (a) See ante, p. 301.

(b) Referring to the military police of the Anglo-Saxons, Sir F. Palgrave says that watch and ward on the King's highway was performed by four men from every hide in the hundred, under the command of a wardreeve, who was personally liable for any act of negligence. (Rise of English Commonwealth,' p. 200.)

By the Statute of Winchester, 13 Edw. I. stat. 2, counties and hundreds are made answerable for robberies and felonies committed in them.

(c) Upon resistance to the execution of process, the sheriff was authorized by the Statute of Westminster the Second, 13 Edw. I. st. 1, c. 39, to go personally to do execution, taking with him the power of the county (assumpto secum posse comitatus).

Besides the county jurisdictions of the sheriffs, there were certain franchises or liberties granted by the Crown, in which the grantees' bailiffs had the same power as the sheriffs' bailiffs in counties. Some of these exclusive jurisdictions still exist. The Statute of Westminster the Second, c. 29, gave the sheriff power to execute writs in a franchise upon default of its bailiff to do so. 3 Edw. I. c. 35, prohibits bailiffs of liberties from attaching persons not subject to their jurisdictions.

(d) The ancient election of the sheriffs was restored to the people in 28 Edw. I., but the popular election of sheriffs was subsequently abolished by statute, 12 Ric. II. (2 Coke's Institute, 175.)

powers, is manifest from the numerous statutes passed to correct such abuses.

Besides the more general divisions of the country for the preservation of the King's peace, there were, from time to time, special jurisdictions existing by grant from the Crown or by prescription, which had peace officers of their own, and were in some cases exempt from processes in the King's name. In these peculiar jurisdictions, offences were said to be committed, not against the King's peace, but against the peace of him in whose court the offence was tried, as in counties palatine, courts leet, and courts of corporations (contra pacem domini, contra pacem vicecomitis, etc.)(a). But in the time of Henry VIII., as we have seen, these jura regalia were restricted by statute. The old jurisdictions were preserved, but indictments for crimes committed in them, and all processes thereon, were required to be made. thenceforth in the King's name.

In modern times, the authority and appointment of officers for the maintenance of the peace are almost entirely regulated by statutes, as will be more fully seen under the head of Municipal Government.

2. War and Public Defence.-The Sovereign has the sole power of raising and regulating fleets and armies. The manner in which they are raised and regulated has been already partly discussed, and will be further considered hercafter. The prerogative itself, like other prerogatives of the Crown, has been the occasion of contests with Parliament. Before and long after the Norman Conquest, the lords and landed proprietors in England, as in other states of Europe, were attended by armed vassals and retainers. Every freeman was, by the general law of the land, liable to serve as a soldier at the call of the State, but the vassal was bound to devote himself to the personal defence of his lord in all military expeditions(b). Parliament, at a very (a) 1 Blackstone, 118.

early period of the constitution, found it necessary to impose restrictions on the military retinue of powerful subjects. The statute 7 Edw. I. st. 1, A.D. 1279, enacts that in all Parliaments and other assemblies, every man shall come without force and arms; and the statute recognizes the prerogative of the Crown to forbid arms and all force against the peace of the Crown (a). Again, by 2 Edw. III. c. 3, no man, great or small, except the King's attendants and officers, or at peaccable feats of arms, shall go or ride armed by night or day, on pain of forfeiture of their armour, and imprisonment.

The military organization which was established in the time of Edward I. for the purpose of keeping the peace, was founded on the Anglo-Saxon law, improved by the Statute of Winchester, 13 Edw. I. (referred to in a previous page of this chapter), by which every country and hundred was made responsible for felonies committed within them. Sir Francis Palgrave has remarked that this military organization became in process of time converted into a mere police establishment; and the constable, the mailed leader of the militia of the hundred in the reign of Edward I., became a rustic peace-officer before the sixteenth century (b).

In 13 Car. I., A.D. 1637, in the great case of ship-money, before all the judges in the Exchequer Chamber, it was agreed to be indisputably a breach of the Royal prerogative to raise troops and naval forces for the public defence.

(a) "The prelates, earls, and barons, and the commonalty of our realm, there assembled on advice on this business, have said that it belongeth to us, and we ought, by our royal seigniory, to forbid straitly arms and all force against our peace at all times that we please." (7 Edw. I. st. 1.)

From Glanville it appears that in the reign of Henry II. the vassals or tenants of a lord were bound to assist him in his private wars. The law in respect of such service appears to have continued the same in the time of Bracton; but the practice was going into disuse, and in less than half a century was adjudged illegal. There are few memorials of private war on an extensive scale in England after the Conquest, except in times of turbulence and civil commotion. (Allen on the Royal Prerogative, ed. 18-19, pp. 121, 122.) (b) Rise and Progress of Eng. Com. 201.

all the elaborate arguments of counsel and judges respecting the military powers of the Crown, it was not suggested that Parliament had any control over the forces, except the power of granting or withholding supplies (a); but a few years after, A.D. 1642, when the King had been induced to commit the charge of restoring peace in Ireland to the Parliament, the two Houses availed themselves of that circumstance to pass a bill declaring that the power over the militia, and also the command of all forts, castles, and garrisons, should be vested in commissioners in whom they could confide. The King refusing his assent to this bill, the Parliament mustered the militia, and thus commenced the war against Charles I. Upon the Restoration, it was declared by statute 13 Car. II. c. 6, that "the sole supreme government, command, and disposition of the militia, and of all forces by sea and land, and of all forts and places of strength, is, and by the law of England ever was, the undoubted right of his Majesty and his royal predecessors, kings and queens of England; and both or either of the Houses of Parliament cannot nor ought to pretend to the same." And this right of the Crown has never since been disputed.

Closely connected with this right is the sole prerogative of the Crown of making peace and war. This, like all the other great prerogatives of the Crown, is exercised by the advice and upon the responsibility of the officers of State, and subject to the check of Parliamentary censure or impeachment, for the improper commencement, conduct, or conclusion of a war.

The important prerogative of the Crown of declaring war, appears to have been derived from the feudal system. Under the Saxon constitution, this power resided, not in the Sovereign, but in the great council of the nation, the Wittenagemote, and was regarded as inseparable from the allodial condition of its members (b). We find also numerous instances, after the establishment of the Norman constitution,

(a) 3 State Trials, 827.

(b) Millar's View of the English Government,' vol. ii. p. 91.