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royal prerogative

royal prerogative is a term which has changed its meaning considerably. In modern times it mainly refers to a reserve or discretionary power entrusted to the monarch, though it is far from clear what that power is. In the medieval period the term was used largely to describe feudal rights. There was no implication of reserve power since the medieval monarch had massive immediate power, making all important appointments, granting honours, estates, and charters, issuing proclamations, dispensing justice, and declaring war and peace, limited mainly by custom and prudence. In the later medieval and early modern period, the meaning began to change again to signify powers peculiarly close to the monarch—honours, foreign policy, marriage, and succession. The most lofty assertions of royal prerogative came from Richard II and James I—perhaps when the monarchy was under pressure and as a defensive reaction. Too many definitions of prerogative are theoretical rather than factual. James I wrote that ‘it is presumption and sedition in a subject to dispute what a king may do’—a case of whistling in the dark; while Blackstone's observation in his Commentaries (1765) that ‘the king has the sole prerogative of making war and peace’, while nominally correct, was fundamentally misleading.

Many of the constitutional conflicts in the reigns of John, Henry III, and Edward II turned on aspects of the prerogative—e.g. the king's right to tallage. Even more basic royal powers were under fire in the 1370s when the Commons began to impeach royal ministers and in 1395 when they asserted their right to approve taxation. But the great struggle over the prerogative was decided largely in the 17th cent. At the end of her reign Elizabeth ran into criticism for granting monopolies by prerogative and promised redress while reasserting her right: James I was obliged to give way completely on that issue, the statute of Monopolies of 1624 declaring that they were ‘altogether contrary to the laws of this realm’. The House of Commons recorded mournfully in its Apology of 1604 that ‘the prerogatives of princes may easily and do daily grow … the privileges of the subject being once lost are not recovered but with much disquiet’. Eighty years of disquiet reversed that situation. First Parliament attempted to safeguard its own position since, as long as the monarch could dismiss and summon it at will, its power was precarious: an Act of 1641 demanded triennial parliaments and, though it was modified after the Restoration, it was made effective in 1694. purveyancing—the right of the crown to buy at its own prices—for centuries a bone of contention, was formally abolished in 1660, along with benevolences, forced loans, and the surviving feudal dues. habeas corpus in 1679 protected subjects from imprisonment without trial. More prerogatives were removed by the Bill of Rights after the revolution of 1688—the power to suspend laws, and the power to dispense with laws in individual cases ‘as it hath been assumed and exercised of late’. Two other measures help to bolt the door—the prohibition of a standing army in peacetime without the consent of Parliament; and the strengthening of the independence of the judges by appointing them on good behaviour (not at will), a practice adopted by William III and confirmed by the Act of Settlement of 1701.

After 1688 the monarchy retained formidable powers, but over the next 150 years most of its prerogatives either fell into abeyance or were appropriated by the prime minister. The right to veto legislation was not exercised after 1708 and is presumably defunct. The power to call a general election is now exercised on the advice of the prime minister. Choice of ministers remained a tug-of-war throughout the 18th and early 19th cents. but is now a matter for the prime minister. Except for some special orders, honours are now given on the advice of the prime minister: the crown lost an important prerogative when William IV agreed in 1832 to create peers to carry the Great Reform Bill if necessary. It is not easy to know what prerogatives are left to the monarch in the early 21st cent. In a crisis, he or she retains a certain power of initiative: George V begged the warring politicians in 1910 and again in 1914 to negotiate but the results were not encouraging. Though the monarch retains some reserve power in the choice of prime minister, he or she acts carefully on advice, and changes to the method of selecting the party leaders have greatly reduced the area of uncertainty. As Churchill once declared, ‘the prerogatives of the crown have become the privileges of the people’.

J. A. Cannon

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