before the coronation. The royal duties and powers are exactly the same before this ceremony as after it.1 We must be careful not to confound the practices of elective with those of hereditary government.

The substance of the coronation oath may be stated in fewer words than those of the oath itself. It means, simply, that the King or Queen regnant must govern according to law upon all points covered by law, and with benevolence and patriotism upon all points not covered by law. The oath makes no distinction between statute and common law as to their obligatory power upon the Crown in the administration. The courts, therefore, may hold the royal officials within the boundaries of either branch of the law, in the same manner and to the same degree. Whether they have power to impose their conception of the royal duty, in that side of the administration unregulated by law, upon the royal officials, is questionable. That the Parliament, as court of impeachment, has this power, is less doubtful; and there is no doubt that the House of Commons has this power by virtue of its control of the administration through the Cabinet.

Blackstone cites and approves Locke's definition of the royal prerogative, as "the discretionary power of acting for the public good where the positive laws are silent,” and says that if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner.2 According to this view, somebody's idea of the public good is imposed upon the royal discretion, and it is made the duty of the Crown to keep within the limits of that idea. The question all-important to the prerogative is: Who, according to the constitution, formulates this idea? Blackstone indicates that it is the Parliament, as court of impeachment. It seems to me far more scientific to attribute this power to

1 Blackstone, Commentaries upon the Laws of England, Bk. 1, c. 6, p. 236. 2 Ibid. Bk. I, c. 7, p. 252.

the House of Commons in the exercise of its sovereign control over the administration through the Cabinet. The constitutional discretion of the Crown cannot logically be limited by a branch of the government: if this were possible, the discre tion would not be constitutional. It seems to me that the Crown must have the power, in the domain of its constitutional discretion, to defend and execute its own idea of the public good against every power except the state, i.e. a House of Commons elected upon the issue of the ministerial resistance to the royal will. The fact that the practice of impeaching ministers has long since fallen into desuetude is, I think, good evidence that the common feeling, if not the common consciousness, is working towards the view which I have endeavored to express.

II. There is no subject of England's constitutional law that has received less satisfactory treatment at the hands of the commentators than the powers of the Crown. They all attempt an enumeration of these powers, without distinction as to their sources; i.e. they do not separate those powers which are constitutional from those which are merely statutory. This is a capital fault. The English Crown has a double character as to powers. It is, in the first place, executive. It executes the statutes of the Parliament and the judgments of the courts. But it is more than executive. It is general residuary government. The powers of the Crown originated in the period when the Crown was the state, ie. was sovereign. When the sovereignty shifted from the Crown to the aristocracy and then to the people, the Crown remained government; but its powers gradually decreased as the sovereignty imposed upon it fresh limitations. The sovereignty has withdrawn from the Crown almost the whole legislative power, but not the whole; almost the whole judicial power, but not the whole; and has required that the Crown shall neither violate nor suspend any law in the course of administration. It will thus be seen that, in addition to its

purely executive power, the Crown is still possessed of some fragments of what was once its sovereignty. The aggregate of these fragments is what I term the general residuary powers of government; and I define this sphere, negatively, as follows: The Crown may do anything which the Parliament has not forbidden it to do, or the doing of which the Parliament has not itself assumed, or the power to do which the Parliament has not vested exclusively in some other body. The Crown has therefore the power, by orders in council, to regulate any matters not regulated by the statute or common law, provided the Parliament has not forbidden it to do so, either directly or by vesting some other body with the power. A fortiori, the Crown may ordain, in council, the measures for executing the laws, provided the Parliament shall not itself have created these measures or vested the power to do so in some other body.

So far as these regulations and ordinances of the Crown limit the sphere of free action between individuals, they are, in character, legislation.1 The power of the Crown to create them is a fragment of the legislative power, the whole of which was in the Crown when the Crown was the state.

The Crown has, furthermore, by virtue of this general residuary power of government, the power to pronounce judgments, in council, upon all controversies not subject to the jurisdiction of the ordinary courts, provided the Parliament shall not have forbidden it to do so, directly or by vesting the power to pronounce judgment in such cases in some other body. This is a fragment of the judicial power, the whole of which was in the Crown when the Crown was the state; the whole of which remained in the Crown, even after the Crown became government, until the larger part of it was withdrawn by the state.

Of course the state has encroached much less upon the executive powers of the Crown than upon its legislative and

1 1 Jellinek, Gesetz und Verordnung, S. 240.