The Government of England (Vol. I)Lowell, A. Lawrence (Abbott Lawrence)
History
The Government of England (Vol. I)
Lowell, A. Lawrence (Abbott Lawrence)
Great Britain -- Politics and government
The authority of the English monarch may be considered from different
points of view, which must be taken up in succession; the first question
being what power is legally vested in the Crown; the second how much of
that power can practically be exercised at all; the third how far the
power of the Crown actually is, or may be, used in accordance with the
personal wishes of the King, and how far its exercise is really directed
by his ministers; the fourth, how far their action is in turn controlled
by Parliament. The first two questions, which form the subject of this
chapter, cannot always be treated separately, for it is sometimes
impossible to be sure whether a power that cannot practically be
exercised is or is not legally vested in the Crown. An attempt to make
use of any doubtful power would probably be resisted, and the legality
of the act could be discussed in Parliament or determined by the law
courts; but it is very rare at the present day that any such attempt is
made. There are powers that have been disputed, or fallen into disuse,
and that no government would ever think of reviving; and thus the
question of law never having been settled, the legal right of the Crown
to make use of them must remain uncertain.
[Sidenote: The Prerogative.]
The authority of the Crown may be traced to two different sources. One
of them is statutory, and comprises the various powers conferred upon
the Crown by Acts of Parliament. The other source gives rise to what is
more properly called the prerogative. This has been described by
Professor Dicey[18:1] as the original discretionary authority left at
any moment in the hands of the King; in other words, what remains of the
ancient customary or Common Law powers inherent in the Crown. The
distinction is one not always perfectly easy to draw, for many parts of
the prerogative have been regulated and modified by statute, and in such
cases it is not always clear whether the authority now exercised is
derived from statute or from the prerogative. Nevertheless the
distinction is often important, because where the powers have been
conferred by Parliament the Crown acts by virtue of a delegated
authority which lies wholly within the four corners of the statute, and
exists only so far as it is expressly contained therein; while the
prerogative not being circumscribed by any document is more indefinite,
and capable of expanding or contracting with the progress of the suns.
[Sidenote: Legislative Power.]
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