Читать книгу The Governments of Europe - Frederic Austin Ogg - Страница 26

52. Sources: the Prerogative.—Vested in the crown is, in the last analysis, an enormous measure of authority. The sum total of powers, whether or not actually exercised by the sovereign immediately, is of two-fold origin. There are powers, in the first place, which have been defined, or conferred outright, by parliamentary enactment. Others there are, however—more numerous and more important—which rest upon the simple basis of custom or the Common Law. Those powers which belong to the statutory group are, as a rule, specific and easily ascertainable. But those which comprise the ancient customary rights of the crown, i.e., the prerogative, are not always possible of exact delimitation. The prerogative is defined by Dicey as "the residue of discretionary or arbitrary authority which at any time is legally left in the hands of the crown."[68] The elements of it are to be ascertained, not from statutes but from precedents, and the sources of it, as enumerated by Anson, are (1) the residue of the executive power which the king in the early stages of English history possessed in all of the branches of government; (2) survivals of the power once accruing to the king as the feudal chief of the country; and (3) attributes with which the crown has been invested by legal theory, e.g., the attribute of perpetuity popularly expressed in the aphorism "the king never dies," and that of perfection of judgment, similarly expressed in the saying "the king can do no wrong."[69] The most considerable element in the prerogative is that which Anson first mentions, i.e., the power which the king has carried over, in the teeth of the popularization of the governmental system, from days when the royal authority was not hedged about as since the seventeenth century it has been. It is further to be observed that no inconsiderable portion of the royal powers as they exist to-day represent original prerogative worked over and delimited 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 to be regarded as absolutely defined, or by virtue of an anterior prerogative which may be capable of being stretched or interpreted more or less arbitrarily. Nominally, the sovereign still holds by divine right. At the head of every public writ to-day stand the words "George V., by the Grace of God of Great Britain and Ireland King." But no principle of the working constitution is more clearly established than that in accordance with which the prerogatives of the crown may be defined, restricted, or extended by the supreme legislative power. Among prerogatives once claimed and exercised, but long since rendered obsolete by prohibitive legislation may be mentioned those of imposing taxes without parliamentary consent, suspending or dispensing with laws, erecting tribunals not proceeding according to the ordinary course of justice, declaring forfeit the property of convicted traitors,[70] purveyance, pre-emption, and the alienation of crown lands at pleasure.

53. Powers, Theoretical and Actual.—It is not, however, the origin of the royal power, but rather the manner of its exercise, that fixes the essential character of monarchy in Great Britain to-day. The student of this phase of the subject is confronted at the outset with a paradox which has found convenient expression in the aphorism that the king reigns but does not govern. The meaning of the aphorism is that, while the sovereign is possessed of all of the inherent dignity of royalty, it is left to him actually to exercise in but a very restricted measure the powers which are involved in the business of government. Technically, all laws are made by the crown in parliament; all judicial decisions are rendered by the crown through the courts; all laws are executed and all administrative acts are performed by the crown. But in point of fact laws are enacted by Parliament independently; verdicts are brought in by tribunals whose immunity from royal domination is thoroughly assured; and the executive functions of the state are exercised all but exclusively by the ministers and their subordinates. One who would understand what English monarchy really is must take account continually both of what the king does and may do theoretically and of what he does and may do in actual practice. The matter is complicated further by the fact that powers once possessed have been lost, that others which have never been formally relinquished have so long lain unused that the question may fairly be debated whether they still exist, and that there never has been, nor is likely ever to be, an attempt to enumerate categorically or to define comprehensively the range of powers, either theoretical or actual.

54. Executive Powers.—Disregarding for the moment the means of their actual exercise, the powers of the crown to-day may be said to fall into two principal groups. The first comprises those which are essentially executive in character; the second, those which are shared with the two houses of Parliament, being, therefore chiefly legislative. The first group is distinctly the more important. It includes: (1) the 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) the removal, upon occasion, of all appointed officers except judges, members of the Council of India, and the Comptroller and Auditor General; (3) the execution of all laws and the supervision of the executive machinery of the state throughout all its branches; (4) the expenditure of public money in accordance with appropriations voted by Parliament; (5) the pardoning of offenders against the criminal law, with some exceptions, either before or after conviction;[71] (6) the granting, in so far as not prohibited by statute, of charters of incorporation; (7) the creating of all peers and the conferring of all titles and honors; (8) the coining of all money; (9) the summoning of Convocation and, by reason of the headship of the Established Church, the virtual appointment of the archbishops, bishops, and most of the deans and canons; (10) the supreme command of the army and navy, involving the raising and control of the armed forces of the nation, subject to such conditions only as Parliament may impose; (11) the representing of the nation in all of its dealings with foreign powers, including the appointment of all diplomatic and consular agents and the negotiation and conclusion of peace; and (12) the exercise, largely under statutory authority conferred within the past half-century, of supervision or control in respect to local government, education, public health, pauperism, housing, and a wide variety of other social and industrial interests.

55. The Composition of the Executive.—The executive branch of the government, through whose agency these powers are exercised, consists of the sovereign, the ministry, and the entire hierarchy of administrative officials reaching downwards from the heads of departments and the under-secretaries at London through the several grades of clerks to the least important revenue and postal employees. There are various points of view from which the chief of the executive may be conceived of as the sovereign, the prime minister, the ministry collectively, or the king and ministry conjointly. So far as executive functions go, the sovereign, in law, is very nearly as supreme as in the days of personal and absolute monarchy. The ministers are but his advisers, the local administrative authorities his agents. The government is conducted wholly in his name. In practice, however, supreme executive acts of the kinds that have been mentioned are performed by the ministers; or, if performed by the crown immediately, will not be undertaken without the ministers' knowledge and assent. The ministers, and not the sovereign, may be held to account by parliament for every executive act performed, and it is but logical that they should control the time and tenor of such acts. It falls very generally to the prime minister to speak for and otherwise represent the ministerial group. On the whole, however, it accords best with both law and fact to consider the executive under the working constitution as consisting of the crown as represented and advised by the ministry.

56. The Crown and Legislation.—The second general group of powers lodged in the crown comprises those which relate to legislation. Technically, all legislative authority is vested in "the king in parliament," by which is meant 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 is empowered at any time to dissolve the House of Commons. No parliamentary act, furthermore, is valid without the crown's assent. It is on the legislative, rather than the executive side, none the less, that the crown has lost most heavily in actual authority. There was a time when the crown possessed inherent law-making power and through the agency of proclamations and ordinances contributed independently to the body of enforceable law. To-day the sovereign may exercise no such power, save alone in the crown colonies. It is true that ordinances with the force of law are still issued, and that their number and importance tend steadily to be increased. But in all cases these ordinances have been, and must be, authorized specifically by statute. As "statutory orders" they emanate from a delegated authority purely and bear no relation to the ancient ordinance by prerogative. The king may not even, by virtue of any inherent power, promulgate ordinances in completion of parliamentary statutes—the sort of thing which the French president, the Italian king, and virtually every continental ruler may do with full propriety. Of his own authority, furthermore, the sovereign may not alter by one jot or tittle the law of the land. There was a time when the crown claimed and exercised the right to suspend, or to dispense with, laws which had been duly enacted and put in operation. But this practice was forbidden definitely in the Bill of Rights, and no sovereign since the last Stuart has sought to revive the prerogative. Still another aspect of the ancient participation by the king in the legislative function was the influencing of the composition of the House of Commons through the right to confer upon boroughs the privilege of electing members. This right, never expressly withdrawn, is regarded now as having been forfeited by disuse. Finally, the power to withhold assent from a measure passed in Parliament has not been exercised since the days of Queen Anne,[72] and while legally it still exists, it is conceded for all practical purposes to have been extinguished.

57. Principles Governing the Actual Exercise of Powers.—After full allowances have been made, the powers of the British crown to-day comprise a sum total of striking magnitude. "All told," says Lowell, "the executive authority of the crown 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."[73]

The next fundamental thing to be observed is that the extended powers here referred to are exercised, not by the king in person, but by ministers with whose choosing the sovereign has but little to do and over whose acts he has only an incidental and extra-legal control. Underlying the entire constitutional order are two principles whose operation would seem to reduce the sovereign to a sheer nonentity. The first is that the crown shall perform no important governmental act whatsoever save through the agency of the ministers. The second is that these ministers shall be responsible absolutely to Parliament for every public act which they perform. From these principles arises the fiction that "the king can do no wrong," which means legally that the sovereign cannot be adjudged guilty of wrongdoing (and that therefore no proceedings may be instituted against him), and politically that the ministers are responsible, singly in small affairs and conjointly in more weighty ones, for everything that is done in the crown's name. "In a constitutional point of view," writes an English authority, "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."[74] In continental countries the responsibility of ministers is established very commonly by specific and written constitutional provision. In Great Britain it exists by virtue simply of a group of unwritten principles, or conventions, of the constitution; but it is there none the less real. In the conduct of public affairs the ministry must conform to the will of the majority in the House of Commons; otherwise the wheels of government would be blocked. And from this it follows that the crown is obliged to accept, with such grace as may be, the measures which the ministry, working with the parliamentary majority, formulates and for which it stands ready to shoulder responsibility. It is open to the king, of course, to dissuade the ministers from a given course of action. But if they cannot be turned back, and if they have the support of a parliamentary majority, there is nothing that the sovereign can do save acquiesce.

58. Appointment of Ministers.—In the naming of a new premier, following the retirement of a ministry, the king is legally unhampered; but here again in practice he is bound to designate the recognized leader of the dominant party, and so to pursue a course in which there is left no room for the exercise of discretion. Only when there is no clearly recognized leader, or when circumstances compel the formation of a coalition ministry, is there a real opportunity for the sovereign to choose a premier from a number of more or less available men.[75] In the appointment of the remaining ministers, and of all persons whose offices are regarded as political, the crown yields uniformly to the judgment of the premier. The King's Speech, on the opening of Parliament, is written by the ministers; all public communications of the crown pass through their hands; peers are created and honors bestowed in accord with their advice; measures are framed and executive acts are undertaken by them, sometimes without the sovereign's knowledge and occasionally even contrary to his wishes.