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judgment, similarly expressed in the saying "the king can do no wrong." The element in the prerogative which bulks largest is undoubtedly that which Anson mentions first, i.e., the power which the king carried over, in the teeth of the popularization of the governmental system, from days when the royal authority was not hedged about as it has been since the seventeenth century. It is further to be observed that many powers of the crown as they exist to-day represent original prerogative modified by parliamentary enactment; so that in many instances it becomes difficult to determine whether a given power exists by virtue of a statute, by which it is absolutely defined, or by virtue of an anterior prerogative, which may be capable of being stretched or interpreted more or less arbitrarily. No principle of the working constitution is more solidly established than that the prerogative of the crown may be defined, restricted, or extended by act of Parliament.

From what has been said it follows that the powers of the crown are in constant flux: they are always, and at the same time, being diminished and increased. Historically, they have been reduced in three principal ways. The first is great contractual agreements between king and people, best illustrated by Magna Carta and the Petition of Right. The second is prohibitive legislation, of such character as that which put an end to suspending or dispensing with laws, debasing the coinage, purveyance, preemption, and many other prerogatives. The third is simple disuse, illustrated by the lapse, since the Tudor period, of the power of the crown to add to the membership of the House of Commons by arbitrary enfranchisement of boroughs. On the other hand, the crown's powers have been steadily augmented both by custom and by legislation, particularly, in recent centuries, the latter. When, for example, Parliament adds an air service to the army, establishes a system of old age pensions, or authorizes a new tax, it imposes fresh duties of administration upon the crown and thereby perceptibly enlarges the volume of its power; or the grant may look to the exercise of legislative rather than executive functions, by means of the device of "statutory orders," to be presently explained. It is mainly on account of the enormous expansion of the functions and activities of government in the nineteenth and twentieth centuries, entailing steady accessions of power, that Lowell is able to conclude his discussion of this subject with the following striking words: "All told, the executive authority of the crown 1 Law and Custom of the Constitution, II, Pt. i, 3–5.

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.... Since the accession of the House of Hanover the new powers conferred upon the crown by statute have probably more than made up for the loss to the prerogative of powers which have either been restricted by the same process or become obsolete by disuse. By far the greater part of the prerogative, as it existed at that time, has remained legally vested in the crown, and can be exercised to-day." 1

Powers of the Crown Classified. The powers of the crown to-day fall into two principal groups, according as they are executive or legislative. Nothing less than a chapter would serve to enumerate and explain the executive powers in all of their ramifications. It must serve, however, to say that the most important of them are: (1) appointment, directly or indirectly, of all national public officers, except some of the officials of the parliamentary chambers and a few unimportant hereditary dignitaries; (2) removal, upon occasion, of all appointed officers except judges, members of the Council of India, and the Comptroller and Auditor General; (3) execution of all laws and supervision of the executive machinery of the state throughout all of its branches; (4) expenditure of public money in accordance with appropriations voted by Parliament; (5) granting, in so far as not prohibited by statute, of charters of incorporation; (6) creating of all peers and conferring of all titles and honors; (7) coining money; (8) summoning of Convocation and, by reason of the king's headship of the Established Church, virtual appointment of the archbishops, bishops, and most of the deans and canons; (9) supreme command of the army and navy; (10) representing the nation in all of its dealings with foreign powers, including the appointment of all diplomatic and consular agents and the negotiation of treaties; 2 and (11) supervision or

1 Government of England, I, 26.

There is no question of the power of the crown to negotiate treaties; their ratification and execution is a different matter. Prior to the Great War, Parliament had little to do, directly, with treaty-making. It might refuse to vote supplies, or it might pass resolutions condemning the Government's policy. But unless, as in the case of the Anglo-German convention of 1890 ceding Heligoland and the Anglo-French convention of 1904 relating to Morocco and Egypt, a treaty contained an express provision for its submission to Parliament, ratification was usually by the Government, i.e., the ministry, itself, not by the two houses. Even

control over local government, education, public health, pauperism, housing, and a wide variety of other social and industrial

matters.

A second general group of powers pertains to legislation. Technically, all legislative authority is vested in "the king in Parliament," which means the king acting in collaboration with the two houses. Parliament transacts business only during the pleasure of the crown. The crown summons and prorogues the houses, and it can at any time dissolve the House of Commons. No parliamentary act, furthermore, is valid without the crown's assent.

It is, none the less, on the legislative, rather than the executive, side that the greatest losses of the crown have been suffered. There was a time, before the rise of Parliament, when the crown possessed practically unlimited law-making power. As Parliament gradually gathered strength, the legislative self-sufficiency of the crown was undermined. For a long time after the general principle of parliamentary control over legislation was established, the crown clung to the right of issuing proclamations and ordinances with the force of law. But after the Tudor period, even this prerogative had to be given up. Nowadays the crown has, apart from Parliament, no inherent legislative power whatever, save in the crown colonies.1 It cannot independently suspend or dispense with laws; it cannot alter them in the slightest particular; it is practically obliged to approve and accept every law passed by Parliament; and it cannot itself make law. It is true that great numbers of ordinances" orders in council" - continue to be promulgated. But these involve no infraction of the general rule. Orders in council are of two kinds. The first is orders which are in the nature of administrative rules or instructions, pretreaties involving (as did the treaty of Paris in 1783) cessions of territory were hanIdled in this manner. It is therefore noteworthy that the treaty with Germany drawn up at Paris in 1919 was laid before Parliament in its entirety, and that only after being explained, debated, and voted upon there was the king's signature attached and ratification notified to the world. There is a strong presumption that Parliament's control over treaty-making has thus been permanently augmented. Cf. p. 80 below.

2

1H. Jenkyns, British Rule and Jurisdiction Beyond the Seas (Oxford, 1902), 4-6, 95.

The power to withhold assent from a measure passed by Parliament has not been exercised since 1707, when Queen Anne vetoed a bill for settling the militia in Scotland. Under the cabinet system of government there is no need of a formal veto power, and it is a debatable question whether this prerogative may not be regarded as having been extinguished by disuse. But see Lowell, Government of England, I, 26, and “Auditor Tantum," "The Veto of the Crown," in Fortn. Rev., Sept., 1913.

scribing in detail the methods by which the government's business shall be carried on. A good example is afforded by the inland revenue regulations, or the rules governing examinations for the civil service. These orders, being mere administrative regulations and not laws, can be, and are, promulgated by the crown independently. The second kind of orders comprises such as have the character of true law. These, also, are promulgated by the crown, to be entirely accurate, by the crown in council - but only by virtue of authority expressly conferred by Parliament. Accordingly, they are known as statutory orders." Some of these orders take effect at once and are later reported to Parliament merely as a matter of form; others are suspended for a period to allow Parliament an opportunity to disallow them if it chooses. In any event, they partake of the character of legislation - "a species of subordinate legislation," Lowell terms them. But the point is that in issuing them the crown acts entirely by delegated, not inherent, authority.

CHAPTER VI

THE MINISTERS AND THE ADMINISTRATIVE SYSTEM

Composition of the Ministry. It has been made clear that the vast and growing powers of the crown are no longer wielded by the sovereign in person. Rather, they are exercised by ministers whom he does not choose (except in form) and over whose acts he has no positive control. The ministry therefore becomes the actual working executive, or at all events the directing and controlling part of the executive; and as such it includes the heads of all principal departments, some or all of the members of various boards, a considerable group of undersecretaries (assistant secretaries, we should call them in the United States), certain party "whips," a few officers of the royal household, and some dignitaries who really have little or no administrative work to perform. Nominally they are selected and appointed by the king; but actually they owe their positions to the chief, or "prime," minister, whose highly important functions will be described presently. The thing that chiefly distinguishes a minister from any other member of the executive service is his direct responsibility to Parliament; and the ministry may be defined as the group of higher executive officials who are obligated by rigorous custom to resign office if Parliament (strictly speaking, the House of Commons) deliberately withholds approval of their policy. The ministers may therefore be said to have a political character not possessed by the mass of the executive and administrative officers, who belong rather to the permanent civil service and are not affected in their tenure by the ups and downs of party politics. The number of ministers in the years immediately preceding the Great War fluctuated around sixty. Approximately one third of them formed the inner circle known as the cabinet, whose importance is such that it will be dealt with at length in a succeeding chapter. During the war period many new ministries were created, and although

1 The term "under-secretary" has, however, been introduced in this country. An Under-Secretary of State was provided for by act of Congress in 1919.

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