p. 1388. And see Amos, Fifty Years title. S. A. Assn. Votes, 1876, p. 30.
of Eng. Const, p. 215. For a list of official documents
c Secretary Hardy, Hans. D. v. wherein the full statutory style and
229, p. 399. But see Mr. Childera's title of the sovereign is customarily
objections to this, Ib. p. 410. And used, see Com. Pap. 1876, v. 60, p.
Mr. Disraeli's admission, that ' that is 625.
a point involved in much difficulty.'
260 THE SOVEREIGN.
its relations with other countries or provinces, the
sovereign is the visible representative of the state. It
is his especial prerogative to declare war and to make
peace, and also to contract alliances with foreign nations.
Perpetuity Pre-eminence, perfection, and perpetuity are acknow-
kin th i e ledged attributes of the Crown of England in its political
office. capacity. The crown is hereditary, but in the eye of
the law ' the king never dies.' The decease of a reigning
monarch is usually termed his demise ; which signifies
that, in consequence of the disunion of the king's natural
body from his body -politic, the kingdom is transferred
or demised to his successor, and so the royal dignity
remains perpetual. 4
After their accession to the throne in the natural order,
the sovereigns of England are consecrated to their high
Corona- office in the solemnity of a royal coronation at West-
minster Abbey. This rite is performed by the Arch-
bishop of Canterbury, assisted by other prelates of the
English Church, in the presence of the nobility. 6 A
formal coronation is not necessary to the perfection of
the king's title to the throne ; f but by this solemn act
the Divine sanction is imparted to the English monarchy,
and the whole fabric of our political and social order is
strengthened and confirmed : g and by the oath taken at
their coronation the sovereigns of the United Kingdom
acknowledge the supremacy of Parliament, and their
obligations to govern according to the laws and customs
of the kingdom.
The oath taken by the sovereign at his coronation is not pre-
d Broom's Leg. Max. 4th ed. pp. Life of Ld. Liverpool, v. 1, p. 44.
48, 51. Sir R. Peel's opinion, Hans. D. v.
See Stubbs, Const. Hist. v. 1, p. 192, p. 734. And Earl Derby's, Ib.
144. For the ceremonial itself, see v. 197, p. 24. For the present form
Chapters on Coronations (Lond. 1838) of the sovereign's oath see Com. Pap.
c. ix. [See also Ld. Redesdale's ob- 1867-8, v. 57, p. 17.
servations, Hans. D. v. 193, p. 1345; f Petersdorff, New Abridg. v. 6,
v. 197, p. 71.1 The opinions given p. 214.
by the law officers of the crown to * See Bagehot, Eng. Const, pp. 64,
George III . on this point, see Yonge, 69.
SUBJECT TO THE LAW. 2G1
scribed by Act of Parliament, but is regulated from time to time Corona-
by an order in council, as the altered circumstances of the nation 1 ^ on oath,
may require. This circumstance warrants the conclusion that the
coronation oath is imposed on the sovereign in his executive, and
not in his legislative capacity. 11
From the supreme dignity and pre-eminence of the Personal
crown, it naturally follows that the king is personally JSityo? 1 "
amenable to no earthly tribunal whatsoever, because all the
tribunals in the realm are presumed to derive their
authority from him, and none are empowered to exer-
cise authority or jurisdiction over him. The royal
person, moreover, is by law sacred and inviolable, and
the sovereign is personally irresponsible for all acts of
But while the power of the sovereign is supreme in His sub-
point of jurisdiction, it is neither absolute nor unlimited th^iaw*
in extent ; for it is a maxim of the common law, that
although the king is under no man, yet he is in subjec-
tion to God and the law, for the law makes the king. j
And though the monarch is not personally responsible
to any human tribunal for the exercise of the functions
of royalty, yet these functions appertain to him in his
political capacity, are regulated by law or by constitu-
tional precept, and must be discharged for the public
welfare, and not merely to gratify his personal inclina-
tions. For the king is bound to govern his people, not ac-
cording to his arbitrary will, but according to law. k l The
law,' in fact, ' is the only rule and measure of the power
of the crown, and of the obedience of the people.' 1
Succession to the crown of England has always been
h Hans. D. v. 195, p. 1067. Ib. v. manner in which the several preroga-
198, pp. 894, 906. tives of the crown are limited and
1 Broom's Leg. Max. 4th ed. p. 54 ; restrained by law, and their exercise
Bowyer, Const. Law, pp. 134-140 ; subjected to the general control of
Atkinson's Papinian, p. 33. Parliament.
J Broom's Leg. Max. p. 48. Hal- ' Robert Walpole, on the impeach-
lam, Const, v. 3, p. 90. ment of Dr. Sacheverell. State Trials,
k Broom, Const. Law, p. 63. And v. 15, p. 115.
see in De Loltne, bk. i. c. viii., the
262 THE SOVEREIGN.
Succession hereditary ; but even this right is held subject to limi-
Jj^ tation and control by the High Court of Parliament.
Formerly the crown went to the next heir ; but since
the Act of Settlement the inheritance is conditional,
being limited to heirs of the body of the Princess Sophia
of Hanover, being Protestant members of the Church of
England, and married only to Protestants.
Personal The sovereigns of England, before the Eevolution of
Slerei^ 6 1688 > ruled b J virtue of their prerogative, and with the
aid of ministers chosen by themselves. These ministers
had no necessary connection with Parliament ; although,
if peers of the realm, they were entitled to seats therein.
The monarch was the originator of his own policy, and
was not bound to take advice before he should decide
upon affairs of state. Moreover he was usually suffi-
ciently conversant with the details of administration to
be able to act independently. His ministers were only
amenable to Parliament for high crimes and misdemea-
nours, which were directly attributable to themselves."
This method of government gave rise to frequent alter-
cations and struggles between the crown and Parliament,
which sometimes could only be decided by an appeal to
the sword. Although, in the main, the people were
contented and prosperous, and the great principles of
constitutional liberty continued to advance, yet the
security for the public welfare depended too much upon
the personal character of the monarch, and his ability
to rule with foresight and beneficence. Herein consisted
the peculiar defect of government by prerogative.
When the exercise of the royal authority fell into bad
hands, or irreconcilable differences arose between the
crown and the Parliament, there was no adequate secur-
ity against misrule, and no remedy to prevent national
discontent from fermenting into open rebellion. Two
m 12 & 13 Will. III. c. 2. Mar- n Hallam, Const. Hist, pastim.
tin's Pr. Consort, v. 1, p. 57; and Park's Dogmas, p. 41.
post, v. 2.
IN HIS RELATION TO THE LAW. 203
revolutions within the space of half a century, and a
dynasty of kings sent into permanent exile for the con-
tinued infraction of popular rights, proved the necessity
for a vital change in the practice, if not in the theory,
of the constitution.
Upon the occurrence of the Ee volution of 1688, the Revoiu-
attention of the most eminent statesmen was directed J 1 ^^
to the endeavour to bring the executive and legislative
powers into more harmonious action. This was mainly
effected by a more distinct recognition than heretofore
of the doctrine of ministerial responsibility to Parliament.
But it was only by slow degrees, and as the result of
political experience painfully acquired on all sides, that
this doctrine became fully accepted.
It has always been a leading maxim of the British Meaning
constitution that ' the king can do no wrong.' He is maxim
to be accounted as responsible to God alone for the <thekin ?
* . . can do no
righteous exercise of authority over the people of his wrong.'
realm. It is not meant by this doctrine that the king is
above the laws, and that all his acts are necessarily just
and right. As an individual he is independent of, and
not amenable to, any earthly power or jurisdiction ; but
all his acts are, nevertheless, controlled by the law ;
and ' the body politic is reared upon the basis, that the
law is above the head of the state, and not the head of
the state above the law.' p The maxim that ' the king
can do no wrong,' while it sounds like a moral paradox,
is, in fact, but the form of expressing a great constitu-
tional principle, that no mismanagement in government
is imputable to the sovereign personally ; whilst, on the
other hand, it is equally true that no wrong can be done
to the people for which the constitution does not provide
a remedy. These seeming anomalies are reconciled by
See Bowyer, Const. Law, p. 136; Priests and People, 2nd series, p. 35.
Broom's Leg. Max. p. 40. And P See Smith 'sParl. Rememb. 1861,
Maurice's paper, Do Kings reign by pp. 197-200. And ante, p. 261.
the grace of God ? in Tracts for q See Amos, Eng. Const, in the
264 THE SOVEREIGN.
the fundamental doctrine that the king can perform no
act of government of himself, but that all acts of the
crown must be presumed to have been done by some
minister responsible to Parliament. This principle, now
so well understood, was not recognised in its entirety
until a comparatively recent period : for while it is a
necessary corollary from the principles of government
established by the Kevolution of 1688, we find it first
insisted upon, without exception or qualification, in the
reign of Queen Anne.
The Earl of Rochester, in the House of Lords, in 1711, protested
against the doctrine ' that the queen was to answer for everything,'
whereas, ' according to the fundamental constitution of this king-
dom, the ministers are accountable for all.' r A similar statement
was made by the Duke of Argyle, in the House of Lords, in 1739."
And in a debate in the House of Commons, on February 13, 1741,
Sir John Barnard thus expressed himself: 'The king may, it is
true, exercise some of the prerogatives of the crown without asking
the advice of any minister ; but if he does make a wrong use of any
of his prerogatives, his ministers must answer for it, if they con-
tinue to be his ministers.'*
At the same time, it has always been acknowledged, with
sterial re- J . . . &
sponsi- more or less distinctness, that the king s ministers were
re!j?- fully answerable for all acts of government that could in any
wa y be traced to their advice or co-operation. Either
by parliamentary censure, or impeachment, or by or-
dinary process of law, unworthy ministers have, from
a very early period, been called to account for complicity
in acts of misgovernment. But this mode of redress
was invariably doubtful and uncertain. In the days
when the collective responsibility of the administration
for the acts of each individual minister formed no part
of the theory of government, it was not easy to ascertain
upon whom to affix the responsibility for any particular
Reign of Charles II. pp. 11-19; Govt. of Eng. p. 135.
Cox, Eng. Govt. p. 416. Case of Parl. Hist, v. 10, p. 1138.
Vt. Canterbury v. the Atty.-Genl. * Ib. v. 11, p. 1268. And see Ib.
1 Phillips, 30G. v. 12, p. 660.
' Parl. Hist. v. 6, p. 972. Hearn,
RESPONSIBILITY OP HIS MINISTERS. 205
offence. So long as a minister of state retained the
favour of his sovereign, it was difficult, if not impossible,
to convict him of misconduct, or make him amenable for
misdeeds agreed upon in secret, and which were perhaps
commanded by the king himself ; so that opposition to
a suspected favourite commonly took the shape of in-
trigues to displace him from power, or gave rise to open
resistance to the crown itself.
As a pledge and security for the rightful exercise
p f ^ -j. -,. j -u ^ bilit y
01 every act of royal authority, it is required by the ministers
constitution that the ministers of state for the time f? r acts of
being shall be held responsible to Parliament and to the
law of the land for all public acts of the crown. This
responsibility, moreover, is not merely for affairs of
state which have been transacted by ministers in the
name and on the behalf of the crown, or by the king
himself upon the advice of ministers, but it extends to
measures that might possibly be known to have emanated
directly from the sovereign. If, then, the sovereign
command an unlawful act to be done, the offence of the
instrument is not thereby indemnified ; for though the
king is not personally subject to the coercive power of
the law, yet in many cases his commands are under its
directive power, which makes the act itself invalid if it
be unlawful, and so renders the instrument of its execu-
tion obnoxious to punishment. 11 And if the rights of
any subject should have been infringed by a wrongful
act committed by command of the sovereign, the ordi-
nary courts of justice will grant a remedy.
A king, however limited his powers may be, is in all modern
constitutions personally irresponsible. His command is no justifi-
cation of any illegal act done by another, but no constitutional
monarchy seems to supply any ordinary means of punishing an
illegal act done by the king's own hands. w
11 1 Hale, pp. 43, 44. 408-416. Hearn, Govt. of Eng. pp.
w E. A. Freeman in Nat. Rev. 1864, 99-104.
p. 0. See Cox, Eng. Const, pp. 30,
The personal command of the king is no excuse for a
wrong administration of power. Lord Danby was im-
peached for a letter which contained a postscript in the
king's own hand, declaring that it had been written by
his order. And although the king is the fountain of
justice, a commitment by his own direction has been
held to be void, because there was no minister respon-
sible for it. x In a constitutional point of view, so
universal is the operation of this rule, that there is not
a moment in the king's life, from his accession to his
demise, during which there is not some one responsible
to Parliament for his public conduct ; and ' there can
be no exercise of the crown's authority for which it
must not find some minister willing to make himself
responsible. 'y ' The king, being a body politique, cannot
command but by matter of record.' z Therefore, when-
ever the royal sign- manual is used, it is necessary that
it should be countersigned by a responsible minister, for
the purpose of rendering it constitutionally valid and
If a peer of the realm desires to avail himself of his
privilege of peerage to solicit an audience of the sove-
reign, 11 to make any representations on public affairs, it
is necessary that he should apply for an interview
through an officer of the royal household, or through
the secretary of state for the Home Department. But
x Russell, Eng. Const, p. 159. See
Broom, Const. Law, pp. 244, 240, 015.
Pollock in Fort, Rev. N.S. v. 30, p.
y See Lds. Erskine and Holland's
speeches, in Hans. D. v. 9, pp. 303,
414 ; Mr. Adam's speech, Ib. v. 10, p.
8 * * ' * ; Sir H. Nicolas, Pro. Privy
Coun. v. 0, p. 200, and Grey's Parl.
Govt. new ed. p. 320 n. The resolu-
tion of Queen Victoria to bestow the
hand of the Princess Louise upon a
British subject was not taken 'without
the advice of responsible ministers.'
Mr. Gladstone, Hans. D. v. 204, pp.
1 2 Inst. (Coke), 180. Hearn, Govt.
of Eng. p. 94.
a Park, Lectures on the Dogmas of
the Const, p. 33 ; Lewis, in Hans. D.
v. 105, p. 1480. The sovereign's sig-
nature is first appended, afterwards
that of the Secretary of State. Rep.
Com e . on Pub. Accounts, 1805, v. 10,
Ev. 2080, 2186.
b See Stubbs, Const. Hist. v. 3, p.
c Colchester Diary, v. 3, pp. 003-
014. Hans. D. v. 180, p. 340. See
Welln. Desp. 3rd S. v. 5, pp. 557-500,
604, 507, 578. Ib. v. 8, pp. 108,
COMMUNICATION OF DESPATCHES TO THE KING. 267
the exercise of this privilege -of the peerage should
be limited by prudential considerations. One of these
ought to be the utility of the course to be pursued ;
and the propriety of avoiding anything calculated to
embarrass the relations between the sovereign and his
ministers. 3 And no peer should take advantage of an
audience with the sovereign to become the medium for
presenting petitions or addresses from the people. Such
documents can only be suitably presented through a
secretary of state, or at a levee or public audience, in
the presence of the king's ministers. A secretary of
state is the constitutional channel for conveying the
royal reply to such addresses. All letters or reports on
public affairs intended for the government of Great
Britain must be addressed to the king's minister, not to powers
the sovereign personally ; that is to say, to the secretary through
of state to whose department their subject-matter would mmlstere -
probably belong. 6
When Napoleon Bonaparte was First Consul of France, he dis-
regarded this constitutional rule, and addressed a letter containing
proposals of peace between France and England to the king himself;
but it was acknowledged and answered by the foreign secretary.
If it were fitting that the sovereign should receive such a commu-
nication without the interposition of a minister, there would be
no reason why he should not deal with it on his own authority. 1 "
In 1810, a violation of this rule was made the subject of parlia- Official re-
mentary enquiry. Lord Chatham, being at the time a privy coun- ports to be
cillor and a cabinet' minister, accepted the post of commander of ^oue-h
the expedition to the Scheldt. On his return to England, he minister.
presented to the king, at a private interview, a narrative, drawn up
d See Welln. Desp. 3rd S. v. 7, p. private letter to Queen Victoria re-
424 ; v. 8, p. 1G8. lating to a political question of Euro-
e Ld. John Russell, Ib. v. 130, p. pean affairs, which he requested his
190. ambassador to deliver to her Majesty
f Canning and his Times, by Staple- at a private audience. But, by the
ton, p. 47. See also the case of the interposition of Prince Albert, this
autograph letter addressed by the unintentional irregularity was cor-
Emperors of Austria and Russia, and rected, the letter was read in the
the King of Prussia, to the Prince presence of the foreign secretary,
Regent, in 1815. Yonge, Life of and the reply discussed with and ap-
Ld. Liverpool, v. 2, pp. 226-234. proved of by him. See Bunsen's Mem.
In 1847 the King of Prussia wrote a v. 2, pp. 149-151.
268 THE SOVEKEIGN.
l>y himself, of the conduct of the expedition, in which he criminated
one of his colleagues in the ministry, and brought serious charges
against an admiral who had been employed conjointly with himself
in the expedition. He did this, unknown to any other cabinet
minister, and requested the king not to communicate the paper to
anyone, at least for a time. The document remained in the king's
possession for nearly a month, when Lord Chatham asked to have
it returned to him, in order that he might make some alterations in
it. Upon receipt of the paper, Lord Chatham expunged a para-
graph therein, and returned it to his Majesty. When the narrative
again reached his hands, the king directed that it should be for-
warded to the secretary of state, for the purpose of making it an
official paper. It was afterwards transmitted to the House of
Commons, when its peculiar history transpired, The House called
for the attendance of Lord Chatham at the bar, and questioned him
as to whether he had, on any other occasion, made such a communi-
cation to the king ; but he refused to answer, and, being a peer,
could not be compelled to do so. Whereupon, on February 23, on
motion of Mr. Whitbread, the House agreed to an address to the
king (on division, against ministers), praying for copies of all reports
or papers at any time submitted to his Majesty by Lord Chatham
relative to the expedition to the Scheldt. During the debate Lord
Chatham's conduct was strongly reprobated by Mr. Canning and
other constitutional authorities, who contended that whilst his lord-
ship, as a member of the cabinet, was equally responsible with the
rest of his colleagues for the wisdom or policy of the said expedition,
yet that in his capacity of commander he was responsible to the
king, through the secretary of state ; and that he was bound to
present his report through the regular constitutional channel
namely, the secretary of state, or the commander-in-chief of the
army. His position was compared with that of a minister at a
foreign court, who, on being appointed to office under the royal
sign-manual, is always formally instructed to conform to the orders
and correspond with the secretary of state through whom he has
received his appointment. Lord Chatham's instructions had been
similarly prepared, and there was nothing in his peculiar position of
privy councillor and cabinet minister to justify his passing by the
secretary of state, in communicating with his Majesty upon a public
matter. 11 In reply to their address, the king made known to the
House of Commons the circumstances under which he had received
Lord Chatham's communication, and stated that no other reports or
papers concerning the Scheldt expedition had been presented to him
by that nobleman. 1 On March 2, Mr. Whitbread submitted to the
Tarl. D. v. 15, p. 482. h Ib. p. 681. ' Ib. p. 602.
AND HIS MINISTERS. 269
House resolutions of censure upon Lord Chatham for his uncon-
stitutional conduct. The previous question was proposed thereupon,
on the part of the administration, and negatived. But an amend-
ment, proposed by Mr. Canning, in modified terms of censure, was
accepted by Mr. Whitbread, and agreed to by the House. It was
then moved that the resolutions be communicated to the king ;
but the opinion being generally entertained that the sense of the
House in regard to this transaction had been sufficiently expressed
by the recording of the resolutions upon the journals, and that it
would not be consistent with the dignity of the House to proceed
any further in the matter, this motion was withdrawn.J In conse-
quence of this vote of the House, Lord Chatham retired from the
ministry, and was succeeded as master-general of the Ordnance by
Lord Mulgrave. A month elapsed after the formal resignation of
Lord Chatham before his successor was appointed, during which
interval, as is customary in respect to patent offices, his lordship
continued to discharge the duties of the situation ; abstaining, how-
ever, from advising in the cabinet, and from attending upon his
Majesty with official reports, &c. Nevertheless, his continuing to
perform official duty, under the peculiar circumstances of his position,
gave rise to remarks in the House of Commons. k But the constitu-
tional law which he had infringed had been sufficiently vindicated by
his enforced retirement from office, and any further proceedings
would have been unnecessary. 1
In 1830, a Mr. Comyn was sentenced to death, in Ireland, for Wrongful
TT- k MMMi^HHM*M- , , -i I'-iiin i . exercise of
arson. King Ueorge I V . was petitioned on his behalf, and was in- Dreroea .
duced to write himself to the lord-lieutenant, signifying his tive of
pleasure that the sentence should be mitigated. Meanwhile, the merc y-
lord-lieutenant, upon advice of the law officers, had decided that
the law should take its course ; and the prime minister (the Duke of
Wellington) and home secretary (Mr. Peel) approved of this deter-
mination. Mr. Peel, indignant that the king should have exercised
the prerogative of mercy without taking the advice or opinion of
himself, or of any other responsible minister, addressed a strong
remonstrance to his Majesty ; ultimately, through the interposition
of the prime minister, the king withdrew his order, and the original
sentence was carried out. m
The constitutional channel of approach to the per- Secretary
son of the sovereign is by means of a secretary of
state, and it is through such an officer that the royal
pleasure is communicated in regard to acts of govern-
J Parl. D. v. 16, p. 12 *. pole, Life of Perceval, v. 2, p. 72.
k Ib. p. 735. m Welln. Desp. Civil S. v. 6. pp.
1 Lewis, Adminis. p. 321. Wai- 653-577.
270 THE SOVEREIGN.
inent. Whenever the sovereign is temporarily absent
from his usual places of residence, it is necessary that a
secretary of state or other responsible minister should