judicial powers. The natural character of the Crown in the modern state is executive. The Crown, therefore, still possesses almost the whole of the executive power which it held when it was the state; i.e. when it was sovereign. In fact, the Parliament has expressly recognized by statute some executive powers of the Crown which the Crown had not asserted very positively or effectively when it was sovereign. The change which has been wrought in the executive powers of the Crown lies chiefly in the control exercised over them by the House of Commons through the Cabinet, which I shall consider more fully later.

It would be a comparatively easy task to enumerate the powers conferred upon the Crown by acts of Parliament. It is more difficult to set forth its residuary powers. All that we can do is to indicate, in a general way, the sphere of powers not yet withdrawn from the Crown. As I have shown above, the conception of this sphere is negative; it cannot be satisfactorily defined from a positive standpoint. It contains, however, all that we can term, in any sense intelligible to the American student, constitutional powers. The powers conferred by the Parliament in the ordinary manner of legislation are certainly statutory, since they may be withdrawn by the Parliament in the same manner. It will be said, of course, that the residuary powers of the Crown can also be withdrawn by ordinary acts of Parliament, and that therefore this test will not serve to distinguish the constitutional from the statutory powers of the Crown. To this I answer that the Crown can legally defend its residuary powers by its absolute veto. I shall be met again, however, by the reply that the Crown may legally defend in this same manner the powers conferred upon it by ordinary statute, but that practically its veto power has ceased to exist. I confess that the test is not very reliable; but I contend that while the Crown has probably lost, by disuse, its veto in the latter case, it ought not, in good political science,

to be deemed to have lost it in the former. If the Crown has no means of protecting its residuary powers-powers not conferred by any act of Parliament — against an ordinary act of the legislature or of any other part of the government, then the Crown cannot now be said to have any constitutional powers at all; and if it has no constitutional powers, it cannot be considered as having any constitutional existence. The Crown is not a person or a name merely, but an aggregate of powers.

My contention is, therefore, that the Crown still has an absolute veto power upon all attempts of any other part of the government to trench upon the domain of its residuary powers and that this veto power should be exercised by the Crown until the state, through a House of Commons elected upon the issue, shall have commanded the submission of the Crown; but that the Crown has lost, by long disuse, the veto power upon ordinary statutes not touching the royal powers, or touching only such as have been conferred by ordinary

statute.

I would say, furthermore, that any power conferred upon the Crown by a House of Commons elected upon that particular issue should be regarded as a constitu tional power of the Crown, and should be defended through the absolute veto of the Crown against any attempt of the Parliament to withdraw, limit or modify it by an ordinary

statute.

I hold, therefore, that the English constitution does afford us a legal test for distinguishing between the constitutional and the statutory powers of the Crown, and that the Crown would be sustained by sound political science in making this test practical.

Were this distinction generally accepted, I should be inclined to make it the basis of my classification of the royal powers. Since in fact, however, it is generally ignored by the commentators, I shall group the powers of the Crown under

four heads, according to the subjects which they comprehend, viz; powers in regard to international relations, powers in respect to legislation, powers of internal administration, and judicial powers. I shall, however, indicate which of these powers are, in my opinion, constitutional, and which are statutory.

1. The Control of Foreign Affairs.

The Crown has the sole and exclusive power of declaring and making war and of issuing letters of marque and reprisal, of making treaties of peace and alliance, and treaties and conventions upon all other subjects, and of appointing, sending, and receiving ambassadors, ministers and consuls, and of issuing passports and safe-conducts.1 In a sentence, the whole power of the government in reference to foreign affairs and relations is vested in the Crown. There is but a single limitation upon the royal discretion in this entire sphere, vis; the statutory provision that, in case the crown should come to any person not being a native of the kingdom, no war should be undertaken for the defense of any dominions or territories not belonging to the Crown of England without the consent of Parliament.2

I regard the prerogatives of the Crown in this sphere as being constitutional. They were not conferred by statutes of Parliament. They originated in the state, when the Crown was the state, and they have not been withdrawn by the state or surrendered by the Crown. They are, therefore, prerogatives in the defense of which the absolute veto of the Crown may be used and should be used. The Crown should yield its prerogatives in this sphere only at the demand of the state; i.e. at the demand of a House of Commons elected upon this issue.

2. The Powers of the Crown in Legislation.

The Crown has the sole and exclusive power to summon,

1 Bowyer, Constitutional Law of England, p. 157 ff.; Gneist, Das englische Verwaltungsrecht, S. 654. 2 12 and 13 William III, c. 2.

open and prorogue the Parliament, and dissolve the House of Commons before the legal expiration of the mandates of its members.1 It has the power also to initiate legislation upon any subject, and to veto absolutely all projects of legislation passed by the houses of Parliament. I have elsewhere explained all of these terms and procedures. I will only say here, as to the veto power of the Crown, that it has not been used since the year 1707.2 Is it to be regarded as extinguished by disuse? We know it to be a fundamental principle of the English constitution that the Crown can lose no rights by its own negligence. The loss of certain royal rights by the negligence of an official might be consistent with this principle, but not the loss of a prerogative which the wearer of the crown alone can exercise. We cannot then, according to the principle of English jurisprudence, regard this power as having lapsed. It exists, de jure, as truly as it ever did. Law and fact, however, seem to be in conflict upon this subject; and, to settle the question satisfactorily, we must have recourse to the reasons of political science. The dictum from this standpoint, I think, must be that where no royal prerogative established by the constitution is affected by an act of the houses of Parliament, the veto power of the Crown should be regarded as extinguished by disuse; but that where such royal prerogatives are affected, the veto power cannot be abolished save by the express declaration of the state itself. Political science neither permits the eternal reign of a fiction of law after its reason has disappeared, nor the overthrow of a sound principle by a generalization from negative precedents. 3. The Military Powers of the Crown.

navy

The Crown has sole and exclusive command over the army and - terms which of course include all branches of the armed force. This general power includes the special authority to enlist the men; to appoint, dismiss, promote and

1

Anson, Law and Custom of the Constitution, Part I, p. 47 ff. 2 Ibid. p. 255.

degrade all officers;1 to organize the forces; to issue rules and regulations for the government of the forces, wherever the Parliament shall not have covered the ground by statutes; to govern the forces, dispose of them and direct them in battle and conflict; 2 also to establish forts and strongholds and garrison the same. The commentators also place under the military functions of the Crown the power to designate, establish and control ports, wharves, lighthouses, beacons, buoys, etc. These are the ways of entrance into the country; and as the defence of the country against the entrance of foreign powers is the duty of the Crown, so the power to command the frontiers must be its right. The commentators also place under this head the powers of the Crown to prohibit the exportation of arms and ammunition, to license the importation of gunpowder, to prohibit subjects from leaving the country, and to recall them to the country. It seems to be doubted by some of England's greatest jurists if the military prerogative of the Crown contains the power to establish martial law under any circumstances in any part of the British state. Lord Chief Justice Cockburn in a charge to a grand jury took the position that it does not, but his reasoning appears to me very bad both in law and political science. No statute of Parliament has ever denied this power to the Crown or vested it in any other organ or occupied the ground itself. It must therefore be legally in the Crown, as a residuary power of government. Good political science would always accord to the executive head of the government the power to govern temporarily according to his own discretion, whenever and wherever, by reason of insurrection or invasion, the safety of the state in his opinion may demand

1 Todd, Parliamentary Government in England, vol. I, p. 530, Second Edition.

2 Ibid. vol. I, p. 520 ff; Bowyer, Constitutional Law of England, p. 167 ff.

8 Ibid., Gneist, Das englische Verwaltungsrecht, S. 654.

Bowyer, Constitutional Law of England, p. 169.

Todd, Parliamentary Government in England, vol. I, p. 548 ff.