Executive conduct of affairs by its own servants, by Orders in Council, for example, establishing regulations for the management of the Army, or prescribing examinations for entrance to the civil service. These are merely rules such as any private employer might make in his own business, and differ entirely in their nature from ordinances which have the force of law, and are binding quite apart from any contract of employment. Power to make ordinances which have the force of law and are binding on the whole community is, however, frequently given to the Crown' by statute, notably in matters affecting public health, education, etc., and the practice is constantly becoming more and more extensive, until at pres ent the rules made in pursuance of such powers known as "statutory orders" are published every year in a volume similar in form to that containing the statutes. Some of these orders must be submitted to Parliament, but go into effect unless within a certain time an address to the contrary is passed by one of the Houses, while others take effect at once, or after a fixed period, and are laid upon the tables of the Houses in order to give formal notice of their adoption. A fuller description of these orders must, however, be postponed to the chapters that deal with Parliament. It is only necessary here to point out that in making such orders the Crown acts by virtue of a purely delegated authority, and stands in the same position as a town council. The orders are a species of subordinate legislation, and can be enacted only in strict conformity with the statutes by which the power is granted; and being delegated, not inherent in the Crown, a power of this kind does not fall within the prerogative in its narrower and more appropriate sense. The Crown is at the head of the executive branch of the central government, and carries out the laws, so far as their execution requires the intervention of any national public authority. In fact all national executive power, 1 Or more strictly to the Crown in Council. whether regulated by statute, or forming strictly a part of the prerogative, is exercised in the name of the Crown, and by its authority, except when directly conferred by statute upon some officer of the Crown, and in this case, as we shall see, it is exercised by that officer as a servant of the Crown, and under its direction and control. Legally some of the executive powers are indeed vested in the Crown in Council that is, in the King acting with his Privy Council — but as the Council has no independent authority, and consists, for practical purposes, of the principal ministers appointed by the Crown, even these powers may be said to reside in the Crown alone. Office. All national public officers, except some of the officials of Appointthe Houses of Parliament, and a few hereditary dignitaries ments to whose duties are purely ceremonial,' are appointed directly by the Crown or by the high state officials whom it has itself appointed; and the Crown has also the right to remove them, barring a small number whose tenure is during good behaviour. Of these last by far the most important are the judges, the members of the Council of India, and the Controller and Auditor General, no one of whom has any direct part in the executive government of the kingdom." Now the right to appoint and remove involves the power to control; and, therefore, it may be said in general that the whole executive machinery of the central government of England is under the direction of the Crown. under the The Crown furthermore authorises under the sign manual Other the expenditure of public money in accordance with the Powers appropriations made by Parliament, and then expends the Preroga money. It can grant charters of incorporation, with powers not inconsistent with the law of the land, so far as the right to do so has not been limited by statute; but in consequence 1 Such as the hereditary Earl Marshal and Grand Falconer. On the power of removal from an office held during good behaviour, and on the effect of the provision that the three classes of officers mentioned above may be removed upon the address of both Houses of Parliament, see Anson, "Law and Custom of the Constitution," II., 213-15. The references to Anson are to the 3 Ed. of Vol. I. (1897); the 2 Ed. of Vol. II. (1896). tive. Executive Powers under of the various reform acts, municipal corporation acts, and local government acts, no charter conferring political power can now be created except in pursuance of statute, while even commercial companies usually require privileges which can be given only by the same authority.' The Crown grants all pardons, creates all peers, and confers all titles and honours. As head of the Established Church of England it summons Convocation with a license to transact business specified in advance. It virtually appoints the archbishops, bishops and most of the deans and canons, and has in its gift many rectorships and other livings.2 As head of the Army and Navy it raises and controls the armed forces of the nation, and makes regulations for their government, subject, of course, to the statutes and to the passage of the Annual Army Act. It represents the empire in all external relations, and in all dealings with foreign powers. It has power to declare war, make peace, and conclude treaties, save that, without the sanction of Parliament, a treaty cannot impose a charge upon the people, or change the law of the land, and it is doubtful how far without that sanction private rights can be sacrificed or territory ceded.3 Just as Parliament has often conferred legislative authority upon the Crown, so it has conferred executive Statutes. power in addition to that possessed by virtue of the prerogative. I do not refer here to the cases where a statute creates new public duties to be performed directly by the Crown and confers upon it the authority needed for the purpose. Such powers, although statutory, are exercised in the same way as those derived from the prerogative. I refer to statutes that regulate the duties or privileges of local and other bodies, and give to the Crown, not a direct authority to carry out the law, but a power of supervision and control. Statutes of this kind have become very 1 Todd, "Parl. Govt. in England," 2 Ed. (1887), Ch. xiv. 2 See the later chapter on The Church. 3 Cf. Anson, "Law and Custom,” II., 297–99; Dicey, "Law of the Constitution," 393. Heligoland was ceded to Germany by treaty in 1890, subject to the assent of Parliament, which was given by 53-54 Vic., c. 32. common during the last half century in relation to such matters as local government, public health, pauperism, housing of the working-classes, education, tramways, electric lighting and a host of other things. Even without an express grant of authority, supervisory powers have often been conferred upon the Crown by means of appropriations for local purposes which can be applied by the government at its discretion, and hence in accordance with such regulations as it chooses to prescribe. This has been true, for example, of the subsidies in aid of the local police, and of education. By such methods the local authorities, and especially the smaller ones, have been brought under the tutelage of the Crown to an extent quite unknown in the past. All told, the executive authority of the Crown is, in the eye of the law, very wide, far wider than that of the chief magistrate in many countries, and well-nigh as extensive as that now possessed by the monarch in any government not an absolute despotism; and although the Crown has no inherent legislative power except in conjunction with Parliament, it has been given by statute very large powers of subordinate legislation. "It would very much surprise people," as Bagehot remarked in his incisive way, "if they were only told how many things the Queen could do without consulting Parliament . . . Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the General Commanding-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a 'university'; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative Wide ExPowers of the Crown. tent of the Powers that have been Lost. upset all the action of civil government within the govern- Great as the prerogative is to-day, it was, in some directions, even more extensive in the past, and men are in the habit of repeating the phrases derived from that past after they have lost their meaning. This is done by writers who are not under the slightest misapprehension in regard to the actual legal authority of the Crown. It is the habit, for example, to speak of the Crown as the fountain of justice, and even an author so learned and accurate as Todd repeats Blackstone's statement that "By the fountain of justice, the law does not mean the author or original, but only the distributor. Justice is not derived from the king, as from his free gift, but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir, from whence right and equity are conducted by a thousand channels to every individual." Now apart from public prosecution by the state, which is less common in England than elsewhere, and the use of the King's name in judicial process, the only legal connection of the Crown with the distribution of justice to-day lies in the appointment of the judges; and to call it on that account the reservoir of justice is merely fanciful. There was a time when the Crown was really the fountain or reservoir of justice, when it might fairly have been said to administer justice by deputy. It created the Common Law courts, and after the growth of civilisation had produced more refined and complex ideas of justice it received petitions for the redress of wrongs not recognised before, 2 "English Constitution," 2 Ed. (Amer.), Introd., 31. 2 Todd, "Parl. Govt. in England," I., 570. |