Expanding Democracy-Transferring the Crown Prerogative to Parliament

In early times, the English legal system accorded to the sovereign many prerogatives (privileges). This was usually to enhance his status, to reflect his pre-eminence. Or it was to provide funds for him, to pay for matters under his control such as his courts, army and navy. Over time, many of these Crown prerogatives have become uncertain, confused and obsolete. The purpose of this article is consider a number of these prerogatives and to argue either for their abolition or their transfer to Parliament. In respect of Crown prerogatives relating to the courts it is asserted that prerogatives to: (a) establish common law courts; (b) sit as a judge; (c) withdraw any matter of State from the cognisance of a court; (d) request any judge to delay giving judgment; (e) sue in whatever court the sovereign pleases; (f) be exempt from court costs; (g) possess immunity from criminal prosecution should be abolished. Also, that the civil immunity of the sovereign should be lifted, in part. In respect of Crown prerogatives relating to the military it is asserted that prerogatives to make and declare -war and peace should pass to Parliament. And that prerogatives to: (i) impress subjects for the navy; (ii)issue letters of reprisal and marque; (iii) issue letters of safe conduct; (iv)prohibit subjects from leaving the realm; (v) order subjects to return to the realm; (vi) dig for saltpetre (for gunpowder); (vii) impose martial law; www.ccsenet.org/res Review of European Studies Vol. 6, No. 1; 2014 84 (viii)prohibit subjects from building castles (or enter the land of other subjects to erect fortifications for the defence of the realm in war time) should be abolished. Also, that any Crown prerogative to erect fortifications should be replaced by legislation, where required. In respect of Crown prerogatives relating to public functions, it is asserted that the Crown prerogative to compel a person to accept a public office should be abolished. And that any residual functions of the Crown to act as parens patriae should be transferred to Parliament. In respect of the Crown prerogative to make legislation in the form of issuing proclamations, it is asserted they should be replaced by Statutory Instruments, in order for Parliament to have control over the matter.


Introduction
Democracy is fragile.The idea that every adult has an equal right to freely express their opinion took a battering last century.It required two World Wars -and a multitude of smaller ones -to defend it.Indeed, the fact that, today, there still exist a multitude of dictatorships (or quasi-dictatorships) around the word attests to the grim reality that democracy still has a long way to go, in order to become the global norm.In the battle for democracy the role of Parliaments -as well as that of the courts -is essential.The one to ensure that laws reflect democracy and its offshoot, human rights.The other to ensure that the laws are applied equally and impartially to all citizens and that any legal privileges accorded to the few are justified.
 However, for Parliament to carry out its role in reflecting the will of the people it, alone, should have the right to pass laws and to grant legal privileges;  Further, it alone should be accountable to the people for all acts of the government.Otherwise, such acts are carried out without the affirmative sanction of the people through its primary elective institution, Parliament.
In the case of England -as well as Commonwealth countries founded on its legal system -a major impediment to deepening democracy is that many legal acts are still carried out in the name of the 'Crown' although the sovereign, in person, sanctions none of this and has only a formal role.Thus, bureaucrats -the servants of the government -execute these things in the sovereign's name.But to whom are they accountable?Not to the sovereign since she is powerless to hold them to account. 1 Nor to Parliament since it does not sanction these acts in legislation -whether primary or secondary. As a result, a multitude of Government acts and decisions which affect the general public occur, legally, by way of a 'sidewind';  Crown prerogatives comprise special privileges accorded to the sovereign and exercised in her name.
They are a remnant of history preserved only since there has been a failure -to date -to abolish the obsolete ones 2 as well as replace those still of validity with legislation.Is this a good thing?The answer is 'no' and a House of Commons report in 2004 made it clear that something should be done about it. 3rt of the problem is the paucity of legal analysis as to what prerogatives still exist, as well as their nature and extent.The results are surprising.The Crown still retains many prerogatives -both of an immediate and a residual nature -which impose burdens on the public.Burdens for which -if Parliament sought to impose them today -they would secure no democratic mandate.True, many of these are obsolete.However, others comprise major powers which only Parliament should hold. 1 Halsbury, Laws of England (4th ed, with updates), vol 8(2), para 8 'the powers of government are distributed among a number of institutions, so that the original concentration of power in the monarch no longer exists.'AW Bradley & KD Ewing, Constitutional and  Administrative Law (15th ed, 2011), p 33 'The Queen may reign, but it is the prime minister and other ministers who rule.' 2 Ibid, n 1, para 368 n 7 'Although there is no such doctrine that a prerogative may cease to exist because it is not used, many old prerogative powers, even if not actually abolished by statute, have become clumsy and antiquated and have fallen into disuse. At the outset it may be noted 'why' it is important to remove obsolete prerogatives as well as transfer the remainder to Parliament.The UK's constitutional law is incomplete and piecemeal. 4This incompleteness is reflected in many Commonwealth systems;  In the past, this may not have been too much of a problem.In modern times, with a great increase in the volume of law -and a greater emphasis on (and need for) human rights -this is most unsatisfactory and should not continue.The law should be a model of clarity; not swirling and turbulent waters.
The purpose, therefore, of this two-part article is to consider 'Crown prerogatives' and to demonstrate why a large number of them should be abolished.The remaining prerogatives which still retain validity should be transferred to Parliament, so that it is accountable for them to the general public.When analysing Crown prerogatives that still exist, the Abridgments -major 5 and minor 6 -contain material, by way of summary.Of greater use, however, are the following legal texts:  Coke, Institutes of the Laws of England (1628-41); 7  Blackstone, Commentaries on the Laws of England (1765-9); 8  Halsbury, Laws of England; 9  J Chitty Jun, A Treatise of the Law of the Prerogatives of the Crown (1820). 10ere are also a number of old 11 -and modern 12 -texts on constitutional law which are of use.These include legal histories on the constitution. 13

Meanings: Crown & Crown Prerogative (a) Concept of the 'Crown'
The concept of the 'Crown' can be misleading.It may refer to the sovereign in person.Or it may refer to various institutions of government of which she is (nominally) the head and for whose acts she is (nominally) responsible.Generally, reference to the Crown, today, tends to be to the latter. 14Halsbury notes this -as well as the fact that the 'Crown' may also refer to the servants of the same.Thus, it states: Much of the business of central government is carried on in the name of 'the Crown.' The term 'the Crown' has a number of meanings.Historically, it referred to the monarch in who were united executive, legislative and judicial functions.Thus, it may be used to refer to the person of the monarch, although this is less commonly used in modern parlance. 15More frequently 'the Crown' refers to the executive or government.The Crown in this sense is in law a corporation sole or aggregate. 16However, the term 'the Crown' may also be used to apply to an officer or servant of the Crown, or to a minister acting in an official capacity. 17 The different meanings of the Crown simply reflect the fact that -over the centuries -the power of the sovereign in person has diminished -and is diminishing 18 -while the power of the government and other institutions who 'act' in her name (though not, necessarily, with her personal knowledge or assent) has increased -and is increasing.Thus, as Lord Diplock pointed out in Town Investments (1978): to continue nowadays to speak of 'the Crown' as doing legislative or executive acts of government, which, in reality as distinct from legal fiction are decided on and done by human beings other than the Queen herself, involves risk of confusion…I believe that some of the more Athanasian-like features of the debate in your Lordships' House could have been eliminated if instead of speaking of 'the Crown' we were to speak of 'the government' -a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administration of government is carried on by the civil servants employed in the various government departments…' 19

(b) Crown Prerogatives
By the word prerogative, we usually understand that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity.It signifies in its etymology (from prae and rogo) something that is required or demanded before, or in preference to, all others.And hence it follows, that it must be in its nature singular and eccentrically: that it can only be applied to those rights and capacities which the king alone enjoys. 23 to Crown prerogatives, they have certain basic characteristics:  Being derived from -and limited by -the common law, the sovereign can claim no prerogatives except such as the common law allows; 24  They have been frequently re-formulated, limited or abolished by legislation; 25  Where legislation governs, it precludes the prerogative; 26  They are subject to appraisal by the courts who may inquire into their existence or extent.However, they may not expand them; 27  They cannot be affected -or parted with -by the Crown, except as a result of express statutory authority.Some, however, may be franchised; 28  They extend to all parts of the Commonwealth of which the Queen is sovereign unless this is provided otherwise in United Kingdom (UK) -or local -legislation. 29

Classification -Crown Prerogatives
Halsbury provides a fairly rudimentary classification of Crown prerogatives. 30This classification does not help much, given their varied nature.In order to cover their relative importance today -as well as their vitality -it is 'rex non debet esse sub homine sed sub deo et sub lege, quia lex facit legem' ('the king ought not to be subject to man, but to God, and to the law, for the law maketh the king.').See also Blackstone, n 8, vol 1, p 232 and Chitty, n 10, p 5. Also, Bill of Rights 1688 'the laws of England are the birthright of the people thereof; and all the kings and queens who shall ascend the throne of this realm, ought to administer the government of the same, according to the said laws.' 23 Blackstone, n 8, vol 1, p 232. Coke, n 7, vol 1, 90b, The king's prerogative 'extends to all powers, pre-eminences, and privileges which the law gives to the Crown' (spelling modernised).Halsbury, n 1, para 367.'The royal prerogative may be defined as being that special pre-eminence which the monarch has over and above all other persons by virtue of the common law, but out of its ordinary course, in right of her regal dignity, and includes all the special dignities, liberties, privileges, powers and royalties allowed by the common law to the Crown of England.' A-G v De Keyser's Royal Hotel [ 1920] AC 508 at p 571 per Lord Parmoor 'Royal prerogative implies a privilege in the Crown of a special and exclusive character.'See also citations in GS McBain, Abolishing Obsolete Crown Prerogatives relating to the Military (2011) Nottingham LJ, vol 20, pp 14-5.Munro, n 12, p 256 'The royal prerogative may be defined as comprising those attributes belonging to the Crown which are derived from common law, not statute, and which still survive.' Chitty, n 10, p 4 'if once any one prerogative of the Crown could be held in common with the subject, it would cease to be prerogative any longer.'See also Phillips, n 12, pp 305,310 and Bradley, n 1,  p 246. Cf.Sunkin, n 12, p 30, ch 4. 24 Halsbury, n 1, para 368.Comyns, n 6, vol 7, p   26 Halsbury, n 1, para 369 ''Where, by statute, the Crown is empowered to do what it might previously have done by virtue of its prerogative it can no longer act under the prerogative, and must act under and subject to the conditions imposed by the statute; but the statute may expressly preserve the right to act under the prerogative.Where a prerogative power has been superceded by statute, and the statutory provision is later repealed the prerogative will not revive unless it is a major governmental attribute.' Munro, n 12, p 258 'new rights or powers may be conferred by statute, but these would then be not prerogative, but statutory powers.' 27 Ibid, para 368.'The courts have jurisdiction…to inquire into the existence or extent of any alleged prerogative, it being a maxim of the common law that the king ought to be under no man, but under God and the law, because the law makes the king [see Bracton, n 22].If any prerogative is disputed, the courts must decide the question whether or not it exists in the same way as they decide any other question of law.If a prerogative is clearly established, they must take the same judicial notice of it as they take of any other rule of law.' See also paras 379-80.BBC v Johns [11965] Ch 32 at 79 per Diplock LJ 'it is 350 years and a civil war too late for the Queen's courts to broaden the prerogative.' 28Ibid, para 369 'The general rule is that prerogatives cannot be affected or parted with by the Crown, except by express statutory authority.However, prerogatives connected with the royal revenues, such as waifs, estrays and the like may be granted out in the form of franchises in certain cases.Some of the prerogatives relating to public government and the right of pardoning offences are usually delegated to the governors.'Prerogatives which cannot be delegated include the powers of making an alien or denizen, pardoning felonies etc. See Bacon, n 6, vol 5, p 579. 29 Ibid, para 370. 30Halsbury, n 1, para 371 classifies the special privileges enjoyed by the sovereign by virtue of the prerogative under 3 heads, those concerned with: (a) the special qualities of pre-eminence and dignity ascribed to the sovereign in her regal capacity; (b) the various powers easiest to analyse them into 'major' and 'minor' prerogatives.Major Crown prerogatives which are still extant comprise the following, the prerogative of the Crown to: (a) Make war -and peace; (b) Control the armed forces; (c) Issue proclamations; (d) Make, and ratify, treaties; (e) Grant peerages, honours and exercise patronage; (f) Conduct diplomacy; (g) Govern British overseas territories; (h) Interact with Parliament; (i) Appoint, and remove, ministers; (j) Appoint judges as well as other judicial matters (including the grant of pardons) (k) Grant, and revoke, passports; (l) Organise the civil service; (m) Exercise emergency powers. 31ere are, then, a host of 'minor' Crown prerogatives, a large majority of which are obsolete.These can be categorised into those which were intended to:  Raise money for the Crown by way of tax or toll; 32  Reflect the sovereign's pre-eminence 33 -including in respect of Crown grants; 34 Given that a number of minor prerogatives flow from the major ones, in this article I will juxtapose the same, where possible.The first Crown prerogative to consider -and whether it is obsolete or should be transferred to and authorities entrusted to the sovereign as the supreme executive officer in the State and exercised in fact by the ministers of the Crown; (c) the special privileges enjoyed by the sovereign in relation to rights in property which have been allowed to her for the support of the royal dignity and the increase of the royal revenues.However, this classification is too general to be of much help.Blackstone, n 8, vol 1, p 233 also had a threefold classification 'These substantive or direct prerogatives may again be divided into three kinds: being such as regard, first, the king's royal character; secondly, his royal authority; and, lastly, his royal income.'Cf.  32 The way the sovereign did this was by way of seeking to impose national taxes under a variety of names (tax, tallage, aid, benevolence, loan, forced loan, mise etc) as well as franchising tolls.The sovereign also raised money from his right to: (a) royal mines; (b) waifs; (c) estrays; (d) levy tolls; (e) wreck (also, flotsam, jetsam and ligan); (f) treasure trove (also, the right to dig for the same), (g) establish markets; (h) establish fairs; (i) establish ferries.All of these -except for (a) -have been frequently franchised.In the past the sovereign also franchised: royal forests; free chases (the right to hunt, and kill, game in a certain area), free warrens (places privileged for the keeping of beasts and fowls of warren) and free parks (enclosed chases extending over a man's own land).Parliament -is the prerogative of the Crown to establish common law courts.Also, some other minor judicial prerogatives of the sovereign in person.

Prerogative -To Establish Common Law Courts
From the Norman Conquest of 1066 -at least -the sovereign has been the fons et origo of many institutions of Government.Halsbury notes that, presently: The monarch is Head of State, and the supreme executive officer in the state; she is the titular head of the Church of England, the law, the navy, the army and the air force, and the source of justice and all titles of honour, distinctions and dignities; foreign affairs are conducted, declarations of war and peace made, and the law executed and administered, solely in her name, although the monarch acts in such matters only on the advice of her ministers. 38(italics supplied)

(a) Prerogative -Common Law Courts
As to the power of the sovereign to establish courts, Halsbury states: As the source and fountain of justice the Crown may issue such commissions to administer the law as are warranted by the common or statute law; The Crown prerogative to establish courts (along with its control of the military) is probably one of the oldest Crown prerogatives and it pre-dates the Norman Conquest.Such Anglo-Saxon courts were, of necessity, common law courts since equity had not yet developed; nor had legislation specified the same. 38Halsbury, n 1, para 14.Also, para 351 'In law the monarchy remains legally central to the powers of government.Such powers may be formally vested in the monarch (or the sovereign) or, latterly, the Crown.The monarch's personal functions in the actual administration of the executive are now restricted principally to attaching her signature to various executive documents, the nature and general policy of which have been previously determined by ministers either individually or collectively.In discharging her legal functions the monarch is bound by constitutional conventions which minimise the scope of her discretion.' 39  In Anglo-Saxon times there were -at least -courts of the shire and hundred. 43These must, both in theory and practice, have emanated as a result of the exercise of royal (Crown) power, even though there was then no jurisprudential analysis of this, as such;  There were, also, from Anglo-Saxon times many private jurisdictions or privileged areas (sokes) which were granted by the sovereign to ecclesiastics and powerful retainers.These, invariably, had the privilege of 'sac and soc', that is, a franchise to administer their own 'private' courts.These courts comprised those exercising a criminal function -courts leet44 -as well as courts which dealt with civil matters.The latter tended to be manorial courts -such as those for free tenants (court baron), 45 for villeins or bondsmen (court customary) and for tenants of the royal demesne (court of ancient demesne).
From Norman times, the royal courts of common bench, chancery and exchequer emerged -without prejudice to the existing 'common law' courts of the shire and hundred as well as court leets and manorial courts. However, with the increasing power of the Crown, royal courts began to assume greater and greater prominence while franchised courts diminished.Indeed, by the 16 th century, many of the latter were effectively obsolete;  Along with the main royal courts, grew up a plethora of small courts handling a variety of matters. 46gal analysis of the Crown prerogative also commenced.This included the prerogative to establish common law courts, but not those dispensing equity.47

(b) Establishing Courts -Present Position
Today, the principal courts comprising English court system derive from legislation.In descending order, these comprise the: (f) Magistrates' courts. 48 noted, these statutorily created courts do not exist by virtue of the Crown's prerogative to establish common law courts.Further, the Crown would not exercise this prerogative today since it can only create common law courts and -from Victorian times -all courts administer both the common law and equity.As a result, this Crown prerogative is obsolete and should be abolished: 49  It is also important today -given the need for the strict impartiality of judges and the administration of the law -that Parliament alone create any new courts, not least, to prevent overlap and competing jurisdiction;  Past attempts by the Crown, in post medieval times, to create courts ended -in some instances -in their being unsuccessful judicially as well as their being loathed.An example is the Court of Star Chamber (abolished in 1641). 50 the present English legal system there also exist various (peripheral) courts other than those stated above.Thus,  Courts leet and courts baron still exist in the English legal system.However, with limited exceptions, they no longer operate; 51  The old forest courts of the verderers of the New Forest and the Forest of Dean also exist. 52 the extent these peripheral courts comprise common law courts, they would not be affected if the Crown's prerogative to establish common law courts were abolished, since it would not be retrospective.In any case, it has been asserted in previous articles that all these peripheral courts are obsolete. 53 conclusion, the Crown prerogative to establish common law courts should be abolished. 54It does not apply to the principal English courts today, which have been established by legislation.In any case, the Crown would not establish a common law court, today, without combining it with equity.Abolition of this prerogative would effect no change in practice.However, it would clarify the law and remove an obsolete prerogative.

Prerogative -Sovereign and Her Courts (a) Judicial Capacity -Restrictions
Along with the abolition of the Crown prerogative to establish common law courts, the relationship between the sovereign and her courts should be reviewed.
 In ancient times, the sovereign may have sat as a judge in his courts and dispensed judgment. 55hrlich cites instances in the reign of Henry III (1216-72). 56However, later commentators were not so sure that the sovereign ever sat a judge, as opposed to attending court as a visitor; 57  What is clear is that the sovereign did administer justice in person on the battlefield (according to martial law). 58He also delivered judgment in a few criminal trials 'on the record.' Thus, Edward III (1327-77) condemned various persons as traitors (it seems) on the basis of his own testimony.These restrictions on the sovereign were re-inforced by the proposition enunciated in the Case of Proclamations (1611) that the Crown prerogative was circumscribed by the common law and Parliament. 67Such restrictions are so long established that -today -the sovereign would not seek to circumvent them.However, it is asserted that -as with the abolition by statute of the power of the sovereign to order an arrest -these possible Crown prerogatives should be formally abolished by legislation, to clarify the position. 68 conclusion, any prerogative of the sovereign to sit as a judge -or to withdraw any matter of State from the courts or to request any judge to delay giving judgment -should be abolished.

(b) Sovereign -Choice of Court
The sovereign -in person -retains the right to sue in whatever court she pleases.) stated 'Common pleas shall not follow our court, but shall be holden in some place certain.' Coke, n 7, vol 2, p 21 'Before this statute, common pleas might have been holden in the kings bench, and all original writs returnable in the same bench: and because the court was holden coram rege, and followed the kings court, and removable at the kings will, the returns were ubicunque fuerimus etc whereupon many discontinuances ensued, and great trouble of jurors, charges of parties, and delay of justice, for these causes this statute was made.' Also, 'The king may sue any action for any common plea in the kings bench, for the general act [i.e., chapter 11] does not extend to the king.' (spelling modernised).See also 16 Edw 4 pl 4 (1474), Seipp Index no 1474.008(seen 60, Index) (Exchequer Chamber) which records Billyng CJKB, Nedeham JKB and Yonge JKB as stating 'as the king is above all persons in dignity and honour above, so he (the king) is in law in prerogative, and the law is understood (pris) and construed favourably for him (the king); because he (the king) can sue in whatever court he pleases.'See also WS McKechnie, Magna Carta (Glasgow, James Maclehose & &  Sons, 1914), pp 261-9.
The sovereign may resort to particular forms of court procedure.Halsbury states: Special modes of redress against the subject by means of information, inquisitions or inquests of office, extents, scire facias, quo warranto and mandamus were provided by law, and still remain in relation to the monarch in her private capacity as far as they are appropriate. 72The monarch may waive these prerogative remedies and resort to the usual forms of action 73 unless they are inconsistent with the royal dignity. 74day, there is no need for the sovereign to have personal forms of court procedure, most of which are obsolete in any case.
It is asserted this prerogative enabling the sovereign to use a special procedure should be abolished.

(d) Sovereign -Costs
There is a common law rule that the sovereign (or any person acting for her) does not have to pay -or receivecosts.Halsbury notes: The common law rule that neither the monarch, nor any person suing to her use, pays or receives costs 75 now survives only in relation to proceedings affecting the monarch in her private capacity, 76 and in civil proceedings, including arbitrations, costs are in the discretion of the court. 77 is asserted this rule is also otiose; it should be abolished and the general principles of law as to costs should apply to the sovereign in respect of her personal legal business, just as it does to everyone else.
In conclusion, it is asserted that any prerogative of the sovereign to: (a) sit as a judge; (b) withdraw any matter of State from the cognisance of any court; (c) request any judge to delay giving judgment; (d) sue in whatever court she pleases; should be abolished.Also, any common law rule as to costs affecting the sovereign in a personal capacity.

Sovereign Can Do No Wrong
There has long existed a legal fiction (apophthegm) that the sovereign can do no wrong. 78When this first arose is unclear.Anson thought it was when Henry III (1216-72) reigned, when still a child, 79 and Ehrlich cites instances of sovereigns prior to Henry III being held liable in court for dissesin. 80 72 Latin and English informations, writs of extent and writs of scire facias were abolished by Crown Proceedings Act 1947, s 13, sch 1 except in relation to proceedings by or against her Majesty in her private capacity and subject to certain other exceptions which including proceedings on the Crown side of the Queen's Bench division and proceedings by the Crown otherwise than in right of HM Government in the UK, ss 23, 40(1), 2(c).Informations in the nature of quo warranto were abolished by the Administration of Justice (Miscellaneous Provisions) Act 1938, s 9 (rep).See also Crown Proceedings Act 1947, s 40(1). 73Chitty, n 10, p 244 'The modes of redress which the Crown may adopt against a subject are -1st, by the usual common law actions; 2, by Inquisition, or Inquest of Office, and under this head, we will consider extents in chief and in aid, and the writ of diem clausit extremum; 3, by scire facias, to repeal grants etc; 4, by information of intrusion or debt and in rem; 5, by quo warranto; 6, by mandamus …The general rule is, that the King may waive his prerogative remedies, and adopt such as are assigned to his subjects…The only exception seems to be in the case of actions, which suppose an eviction or disseisin, as an assize, or, it seems, an action of ejectment.The king cannot maintain such actions, they being inconsistent with his royal dignity, and contradictory to the fiction of law, that the king cannot be dispossessed of property once vested in him.' As to this exception in respect of dissesin, it is most unlikely to apply in modern times to the sovereign in person. 74Halsbury, n 1, para 391.For a description of these forms of procedure see Holdsworth, n 9, vol 10, pp 343-5. 75Blackstone, n 8, vol 1, p 233 'no costs shall be recovered against the king.' Bowyer, n 11, p 188 'no costs can be recovered against her [the Queen] in any court '.Johnson v R [1904] AC 817 at 824 per Lord Macnaghten 'their Lordships are of opinion that, in dealing with costs in cases between the Crown and a subject, this Board ought to adhere to the practice of the House of Lords, and that in future the rule should be that the Crown neither pays nor receives costs unless the case is governed by some local statute, or there are exceptional circumstances justifying a departure from the ordinary rule.' 76 Administration of Justice (Miscellaneous Provisions) Act 1933, ss 7 (costs in Crown proceedings) and 9 (sovereign in a private capacity). 77Halsbury, n 1, para 392. 78Blackstone, n 8, vol 1, p 237 'a maxim…that the king himself can do no wrong; since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress.' Bacon, n 6, vol 5, p   [1272-1307] the king of England might have been sued as a common person.'Also, Comyns, n 6, vol, p 212, Action, c 1. Cf. Staunford, n 10, p 42 (published 1607) 'I think the law was never so that a man should have any such action against the king.' (spelling modernised).Maitland, n 12, p 100 'there was no legal procedure whereby the king could either be punished or compelled to make redress.'Bacon (when Attorney-General in the time of James I (1603-25)) in argument at  It is sometimes asserted that Bracton (writing c.1240) endorsed -or propagated -this legal fiction, since he said that a writ could not be issued against the sovereign; 81  However, Bracton clearly noted that the king could do wrong.He also noted that an injured party could petition him to remedy his wrong. 82Thus, moral pressure could be brought to bear on the sovereign even if not legal pressure.
This legal fiction that the king can do no wrong is capable of mis-interpretation, as Chitty noted (in 1820): It was pretended by some that it meant that every measure of the king was lawful, a doctrine subversive of all the principles of which the constitution is compounded.It is a fundamental general rule, that the king cannot sanction any act forbidden by law. 83deed, this legal fiction is better re-stated as one that the sovereign is immune from prosecution.That is, he cannot be sued in his own courts. 84Blackstone, writing in 1765, stated: Besides the attribute of sovereignty, the law also ascribes to the King, in his political capacity, absolute perfection.The King can do no wrong.Which ancient and fundamental maxim is not to be understood, as if everything transacted by the government was of course just and lawful, but means only two things.
First, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the king, nor is he answerable for it personally to his people: for this doctrine would totally destroy that constitutional independence of the crown, which is necessary for the balance of power, in our free and active, and therefore compounded, constitution.And, secondly, it means that the prerogative of the crown extends not to do any injury: it is created for the benefit of the people, and therefore cannot be exerted to their prejudice. 85(wording divided for ease of reference) These arguments of Blackstone are not of great merit in that they do not justify -as such -why the sovereign is immune from prosecution. 86One would suggest the rationale for this legal fiction arose from an amalgam of various underlying ideas and purposes: 87 bar argued the sovereign could not be joined as a party but could be petitioned in chancery.See Brownloe v Michell (1615) 1 Rolle 288 (81 ER 498) at p 290.For this in Victorian times see Sunkin, n 12, ch 9 (legal remedies against the Crown and its officers).Allen (writing in 1849), n 11, p 93 'The king of England cannot be sued in a court of law; but if any one has demand upon him in point of property, the plaintiff has only to petition him for redress in his courts of chancery or exchequer, and on having the attorney-general's fiat, which ought to be given of course, he will have justice administered to him with as much certainty and despatch as if he had brought an action against a subject.The plaintiff indeed will be told, that he receives justice from the king as a matter of grace and not on compulsion, and he must pray for it and accept in on these terms.'See also Keith, n 13, p 57 and Chalmers & Asquith, n 12, pp 150-1. 80Ehrlich, n 56, ch 1 'The lawyers of the thirteenth century did not shrink for declaring that the king, either by himself or through his servants, had committed a wrong…This is especially worth noticing because the theory was soon to develop that the king could not be a disseisor, and this theory was connected with the modern interpretation of the maxim, 'the king can do no wrong.'' 81Bracton, n 22, vol 2, p 33 'since no writ runs against him there will [only] be opportunity for a petition, that he correct and amend his act.'See also Holdsworth, n 9, vol 2, pp 253-6 & vol 9, pp 9-10.For the petition in practice in Victorian times see Sunkin, n 12, p 236 (not available against the Crown in the case of tort).The Crown Proceedings Act 1947, s 13 and sch 1 abolished the petition of right and other archaic modes of proceeding against the Crown.See also Sunkin, n 12, pp 245 & 345 (whether a citizen could proceed against the sovereign personally despite s 40(1) is unclear).See also Halsbury, n 1, para 14. 82 Ibid, p 305 'as long as he [the sovereign] does justice he is the vicar of the eternal king, but the devil's minister when he deviates into injustice.For he is called rex not from reigning but from ruling well, since he is a king as long as he rules well.' Maitland, n 13, pp 100-3 also makes this point.The satirist Junius, writing in 1769, The Letters of Junius (London, printed for Vernor, Hood & Sharp, 1810 ed), vol 1, p xxiv observed 'that the king can do no wrong…is not the only instance, in the wisest of human institutions, where theory is at variance with practice…exemption from punishment is a singular privilege annexed to the royal character, and no way excludes the possibility of deserving it.How long, and to what extent, a king of England may be protected by the forms, when he violates the spirit, of the constitution, deserves to be considered.A mistake in this matter proved fatal to Charles [Charles I, 1625-49] and his son.' Also, p 199 'That the king can do no wrong.We separate the amiable, good-natured prince, from the folly and treachery of his servants, and the private virtues of the man from the vices of his government.' 83Chitty, n 10, p 5. Further, as Allen noted, n 11, p 35 'the real king of the constitution is a king subject to law.' See Sunkin, n 12, p 176 for three 'common understandings of this maxim, viz.(a) whatever the sovereign does it cannot be wrong; (b) sovereign has no legal power to do wrong; (c) Crown is immune from legal process, save where legislation provides otherwise.'See also p 235. 84 Ibid, 'the law provides no redress against the sovereign.'This is not strictly true since Parliament can 'remonstrate' against the sovereign.Allen, n 11, p 36 'we have this personal perfection qualified and curtailed by the undoubted right of the two houses of parliament to remonstrate against acts that are most properly and personally his own.' Petition by Parliament was also possible, such as the Petition of Right 1627.For the right of the individual to petition, see ns 79 & 81. 85Blackstone, n 8, vol 1, pp 238-9.Halsbury, n 1, para 2, n 1.Also, para 367, n 2, 'In theory the monarch has supreme sovereignty and pre-eminence and under the doctrine of perfection can do no wrong.Cf.Re M [1994] 1 AC 377 at 395 per Lord Templeman 'The judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown.' 86 Allen, n 11, p 31 'to say there can be no wrong because there is no redress for it, is as reasonable as to maintain there can be no disease for which a physician has not a cure; and to argue that the prerogative cannot be exerted to the prejudice of the subject, because it was created for his benefit, is much the same as to assert, that an army, which has been raised in defence of the liberties of a country, cannot be employed for their destruction.But whence arises the impossibility of redress for wrongs done to the king?Because, in the contemplation of law, the  The first was that the sovereign had some form of divine sanction, being chosen by God. 88This concept was overthrown by the Glorious Revolution of 1688 when Parliament elected the sovereign; 89  The second was a desire to protect the throne from being challenged, -or weakened -by legal means; 90  The third arose from the logical (and theoretical) difficulty that -since the courts were royal courts and the judges were the sovereign's appointees -how could they deliver judgment against the sovereign? 91There could be no remedy, no redress. 92As it is, the sovereign no longer appoints judges.
Today, the immunity -encapsulated in the legal fiction that the king can do no wrong in the wider sense of the 'Crown' -has gone.Although the sovereign remains personally immune from action in the courts, the Crown can be sued for wrongful acts. 93As Chrimes put it (in 1949): Legally, the king can do no wrong, but his ministers and other servants can and sometimes do.It is common-law doctrine that the king cannot be presumed to have concurred in a wrong, and therefore servants of the Crown who commit a wrong cannot plead the Crown in justification.The king cannot be sued or be held legally responsible, but ministers and civil servants can be and are. 94rther, Ministers are accountable to the courts -and to Parliament -for all actions of Government; 95 the sovereign is only immune in a private capacity. 96Thus, the powers of the Crown are subject to Parliamentary and judicial control. 97Further, by convention, the powers of the Crown in relation to the UK are exercised on the advice of relevant ministers. 98 conclusion, the legal fiction that the sovereign can do no wrong is limited today to meaning that the sovereign is not justiciable in her own courts.Whether the sovereign should retain such an immunity will now be considered.
(a) Sovereign -Criminal Immunity 99 king is sovereign and supreme.' 87 PW Hogg, Liability of the Crown (Thomson Reuters, Australia, 4th ed, 1998), p 3 asserted (as did a number of other writers) that 'the reason why the king could not be sued in the royal courts was the feudal principle that a lord could not be sued in his own court'.See also Keir & Lawson, n 12, p 70.However, as Jackson pointed out, 'the sovereign may possess an immunity which other feudal lords lacked.His rights were never merely the 'intensified rights of a feudal lord.' Whatever we mean by feudalism, kingship in England was not the product of a feudal system.' See P Jackson, Sovereign Immunity: A Feudal Principle (1975) 91 Law Quarterly Review, pp 171-2.See also Ehrlich, n 56, p 11 and Holdsworth, n 9, vol 3, pp 462-5 (no feudal lord could be sued in his own court). 88See Tanner, n 13, pp 22-4 (17th century conception of the divine right of kings).See also Holdsworth, n 9, vol 10, pp 4-6 and F Kern, Kingship and Law in the Middle Ages (Harper, 1970). 89Bill of Rights 1688, s 1. 90 See Bowyer, n 11, p 190. Also, 195.It would have been easy in medieval times for powerful magnates to destablise weak sovereigns using the authority of the law or engineering judges to help them.The idea that the sovereign must abide by the law and uphold his coronation oath was such, in part, to cause King John (1199-1216) to execute Magna Carta (in 1215) and to depose Richard II (1377-99). 91Blackstone, n 8, vol 1, p 231 'the king's prerogative stretcheth not to the doing of any wrong.'See also Finch, n 69, p 55 'who shall command the king?' Cf.Sunkin, n 12, p 60 'The belief that the Queen can do no wrong presumably emerged from a conviction that the prerogative was created for the benefit of the people.' 92 Anson, n 11, vol 2, pp 20, 30.This -one would assert -is the key meaning of the fiction -there was no legal redress against the sovereign.It was subscribed to by Maitland, n 13, p 100 'If the King breaks the law then the only remedy is a petition addressed to him that he will give redress.'Also, Holdsworth, n 9, vol 3, p 465. 93 Halsbury, n 1, para 2, n 1.Also, para 14 'Where the monarch acts with the co-operation of other persons, those persons are responsible for her acts.For since it is a maxim of the common law that the monarch can do no wrong, and therefore is incapable of authorising wrong to be done, they cannot defend themselves by pleading her orders.However, since the monarch cannot now in general act save in accordance with the advice and on the initiative of her ministers, there could be no question of pleading her orders for what they do.Accordingly, although the monarch may legally choose such ministers as she wishes, she cannot use them to circumvent the law.But she still has the right to be consulted, the right to encourage, and the right to warn.However, she also has the right to offer, on her own initiative, suggestions and advice to her ministers even when she is obliged in the last resort to accept the formal advice tendered to her.' See also Sunkin, n 12, pp 71-2. 94Chrimes, n 13, p 18. 95 Ibid. 96Phillips, n 12, p 310 'The sovereign cannot be sued or prosecuted in the courts.The significance of this immunity was greatly diminished by the Crown Proceedings Act 1947, which enables the citizen to sue governmental departments in contract or tort for the recovery of property, while leaving unimpaired the sovereign's personal immunity.'Maitland, n 13, p 100 'against [the king], the law had no coercive process.' 97 Halsbury, n 1, para 2 'It is because the powers of the monarch are subject to parliamentary and judicial control that the monarchy is said to be constitutional'.See also Bogdanor, n 12, chs 1 & 5. 98 Ibid, para 2 'The exercise of statutory powers exercised in the name of the Crown and of many prerogative powers is also subject to judicial review.' 99 Blackstone, n 8, vol 1, p 235 'no jurisdiction upon earth has power to try him [the king] in a criminal way; much less to condemn him to punishment.' Prior to the trial of Charles I (1625-49) it would have been very difficult to impose criminal liability on the sovereign,  In practice, only Parliament could do this, the judiciary being appointees of the sovereign.However, on the basis of 'might is right' the sovereign controlled the army and Parliament could not physically oppose him;  This changed in 1688 when the Bill of Rights declared that the keeping of an army was illegal unless with the consent of Parliament. 100 Also, in 1700, the Crown's appointment of judges was removed. 101 modern times, the Queen has only a formal relationship with the courts and the armed forces.Thus, it is meet to re-consider the criminal liability of the same.
 The Prince of Wales -as well as other members of the royal family -has no such criminal or civil immunity, and this has caused no problems.Also, the punishment, in modern times, of various members of the royal family for minor infractions of the criminal law (such as road traffic offences) has neither shaken the Constitution nor undermined support for the royal family;  Today, it is inconceivable that the sovereign -if she committed serious crimes such as murder, arson, fraud, accepting bribes etc -would be allowed to go 'scot free.'A failure to prosecute would, almost certainly, provoke a constitutional crisis.Not least -ever since Bracton -the prevailing jurisprudence is that the sovereign is ruled by the law. 102On such an event occurring, Parliament would likely enact legislation ending the legal fiction that the sovereign can do no wrong in the criminal sphere.
So, what should be done in modern times? It is asserted the criminal immunity of the sovereign should be lifted.At least, in respect of major crimes since it is inconceivable, if the sovereign were to commit same today, that she would be allowed to escape prosecution;  Consideration should be given to removing the criminal liability of the sovereign in toto since -in practice -it is most unlikely to create a problem. 103Also, it reflects prevailing the reality that the sovereign's role in connection with the law and the courts is now only a formal one.
In conclusion, it is asserted the sovereign's criminal immunity should be lifted.At least, in relation to major criminal offences.

(b) Sovereign -Civil Immunity
Just as the case for lifting the criminal immunity of the sovereign in modern times seems reasonable, the case for preserving civil immunity seems reasonable in order to prevent the sovereign from being troubled by spuriousor politically motivated -law suits. 104There would seem to be a good case, however, in making exceptions where the sovereign: (i) incurs personal debts; or (ii) creates a pledge, lien or mortgage over her personal property.
Analysis of this has been undertaken in a previous article.The prevailing law (which is very antiquated) appears to be as follows:  Pledge.There was (and is) nothing in law to prevent the sovereign from pawning her own property.In times past, sovereigns often pledged the Crown jewels, regarding them as items of personal property 105 (today, Crown jewels belong to the nation). 106Thus, in Anon (1465), Henry VI (1422-61 and 1470-71) pawned some of the Crown jewels for £100.Later, he obtained judgment for the return of the same, without paying the debt.More unjustly, the pawnee was fined and imprisoned -even though there was no evidence of skulduggery on his part. 107It is asserted this case would not be followed today since it is excessively harsh.Also, if the Queen pawns her own property there is no good (moral) reason why a pawnee should not be entitled to enforce the pawn against her on non-payment, as applies with every other person.In other words, it is unjust to allow the sovereign to escape from a pledge which she has voluntarily entered into;  Lien.There was (and is) nothing to prevent the sovereign from creating a lien over her property.For example, where a person works on the personal possessions of the Queen to improve them.Today, there would also seem no good reason to permit the Queen to avoid liability on the non-payment of a lien debt; 108  Debts.At common law, a creditor cannot execute payment against the sovereign for debts incurred by the same. 109e fact that the sovereign was immune from civil liability in the past, did not mean that no remedy was available.At least from the time of James I (1603-25), the sovereign could be petitioned in Chancery to pay his debts.Payment was then made as a matter of grace, not legal compulsion. 110 In conclusion, it is asserted the sovereign should be legally liable to pay her debts and to accept the enforcement of security against her -like everyone else.Lifting immunity in this area would not seem problematic since there is little likelihood, in practice, of the sovereign pledging (or mortgaging or creating liens over) her own property 111 or incurring debts which she later fails to pay, given that she is a very wealthy individual.

Prerogatives Relating to Allegiance & Parens Patriae
The basic relationship between the sovereign and subject is protection accorded by the former in return for allegiance accorded by the latter. 112This relationship is conceived of as a personal one; the sovereign is 'liege lord', the subjects 'liege subjects'. 113Halsbury notes: English law is still informed by the ancient conception of the relationship between the individual and the state as being one between the subject and the monarch.The relationship of subject and monarch was conceived of as a personal one, involving a bargain under which the monarch gave the subject protection and undertook to govern according to the laws of the land, and the subject owed the monarch legally enforceable allegiance.It did not involve the subject having any legally enforceable rights against the Crown, and the duties of protection owed by the Crown were not justiciable.With the development of the principle of legality the individual has become progressively emancipated from the control of the monarch or Crown and now has a high degree of autonomy and personal liberty.[1837-1901] -sovereigns were careful to ensure personal debts were paid (or not to incur the same).In the reign of Queen Elizabeth I (1952-) there has been no suggestion that she does not pay personal debts (albeit payment is not made in person). 111In respect of real property, the sovereign owns Sandringham (purchased in 1861) and Balmoral (purchased in 1850 by Albert, husband of Queen Victoria) as her personal property.Also, possibly, some other estates.The sovereign also owns many jewels and other items of great value.Indeed, she is reputed to be one of the richest women in the world. 112The Crown's duty towards the subject rested originally upon a semi-feudal bond, whereby the king, as liege lord, was bound to maintain and defend his people in return for service and obedience.Calvin's Case (1608) 7 Co Rep 1ª at 4b (77 ER 377) 'as the subject oweth to the king his true and faithful legeance and obedience, so the sovereign is to govern and protect his subjects.'Also 'it is truly said that protectio trahit subjectionem, et subjectio protectionem.' 113Halsbury, n 1, para 29 'As, in feudal phraseology, the king was styled 'liege lord', so his subject were termed 'liege subjects', and were bound as such to serve and obey him.Hence the duty of the subject towards the monarch is known legally as allegiance.' Allegiance may be natural, local or acquired.Local allegiance is due from all persons resident within the realm, and so long as they or their families or effects remain within the monarch's protection, they are punishable as traitors for acts of treason, whether their country is at amity with this country or not; but allegiance is not due from an alien enemy coming to invade the realm.' As Halsbury notes, the practical effect of owing allegiance is potential liability for the crime of high treason, a few sub-crimes of which still exist.
 Previous articles115 have asserted that high treason should be abolished -apart from the sub-crime of 'adhering to the enemy' which (it is asserted) should be replaced by a crime of treachery;  Reasons for abolition include the fact that, today, it is often difficult to determine whether a person owes -or does not owe -allegiance to the sovereign (e.g.British subjects who hold dual passports or who reside permanently abroad, retaining no links to this country). 116aving aside this liability to high treason -by virtue of allegiance117 -the Crown has the prerogative to compel subjects to serve as parish constables or sheriffs.Some legal commentators suggest this prerogative is even wider and the Crown can also compel those who owe allegiance to serve in any public office.However, this is more dubious.The position would appear to be as follows:

(a) Duty to Serve: Sheriff or Parish Constable
There is a duty imposed on those who owe allegiance to serve -if called on by the Crown -as a sheriff118 or parish constable.119R v Larwood (1694) concerned the refusal of the same to take upon him the office of sheriff in a corporation.The court stated: the king has a natural interest in every subject, and may compel him to serve him in any function, in which he shall judge him capable…And nobody can be exempt from the office of sheriff but by Act of Parliament, or letters patent.120 As Halsbury notes, these obligations are now 'theoretical' for good reason.121 Parish Constables.Prior to the beginnings of a professional police force in 1829, the obligation to serve as a constable was an onerous one.One which any person of ability avoided since it was usually unpaid, part time and problematic. 122Refusal to so act was (and is) held to be a crime, punishable with a fine or imprisonment for life (or a shorter term) unless some other penalty was imposed. 123Defences included proving that the person was exempt -or disqualified -from serving;124 Parish (petty) constables who were village or town constables (and 'high constables' who were constables of the hundreds) were replaced in Victorian times by professional police forces acting under a chief constable (appointed by Justices of the Peace).This resulted from the Metropolitan Police Act 1829 and the County Police Act 1839.No parish constables exist today;  Sheriffs.These were another form of law enforcement officer. 125Today, they exist only as 'high sheriffs' -an honorary position which does not involve any police duties.
In the case of a refusal to serve in these positions of parish constable and sheriff, Halsbury and Archbold cite only four cases, all of which are very antiquated.The last case appears to have been in 1832, more than 180 years ago. 126 conclusion, parish officers no longer exist and high sheriffs comprise a ceremonial position only.Therefore, there is no need for the Crown to retain a prerogative to compel subjects to so serve.

(b) Duty to Serve: Any Public Office
Some legal writers have suggested that the Crown has a prerogative to compel those owing allegiance to serve in any public office.Thus, Chitty stated in 1820: His majesty may also, on any occasion, employ, and compel his subjects to serve in such offices or functions as the public good and the nature of the constitution require.It is a general rule, that where a person is called upon to perform a public duty, he is liable to be punished if he refuses to perform it.…Thisdoctrine is not confined to the case of offices immediately under the Crown nor to officers appointed by his majesty; for persons named jurymen 127 or parish officers must serve. 128 support of this proposition, Chitty referred to the fact that:  A lawyer was bound to accept the degree of sarjeant-at law, when called on by the king's writ;  A dignity of honour could not be legally refused;  A person summoned by the sovereign to the House of Lords, was obliged to accept;  A person elected to the House of Commons, was obliged to accept.
None of these grounds now apply, sarjeants-at-law in any case no longer existing.Further, there is actually little caselaw (as opposed to dicta) which supports such a wide proposition. 129In respect of this proposition, Maitland (writing in 1908) stated: it is a very general, if somewhat antiquated, doctrine of the common law that a person is bound to serve the crown in all manner of offices.We see this chiefly applied in the case of sheriffs: a person who has sufficient land in the county to qualify him for the office (a vaguely defined amount) is bound to serve if he be appointed and can be fined if he refuses.This is, I think, but an instance of a general principle which exists, though it is seldom put in force.Could a man be punished for refusing to become Chancellor of the Exchequer or Secretary of State?It is absurd to consider such a case, but I imagine that he could. 130er 100 years after Maitland wrote, it would be absurd to conceive of a person being so punished -not least since persons can (and have) refused to so serve.Further, the Crown often granted exemptions in any case. 131Today, there seems to be an insuperable problem with the retention of such a Crown prerogative, besides its being obsolete.Legislation cannot, generally, compel a person to work -whether by injunction or otherwise. 132Thus, a Crown prerogative to compel a person to act in a public office of a contractual nature has been, effectively, superceded by a legislative prohibition.
In conclusion, any Crown prerogative to compel a person to accept a public office -or just to act as a parish constable or a sheriff -should be abolished.It is no longer required.Further, it would not seem to be enforceable in practice.

(c) Crown as Parens Patriae
As 'liege lord', the Crown asserted a prerogative to supervise the persons and estates of: (a) minors; and; (b) the mentally disordered.Also, (c) to supervise charities.As Halsbury notes, these functions have been taken over by the State or other institutions.Thus: As liege lord and protector of the subjects, the monarch enjoys the prerogative right of taking care of the persons and estates of minors and mentally disordered persons and of superintending charities, although the exercise of those powers has now been delegated by the monarch or assigned by statute to various authorities.Jurisdiction in respect of wardships of minors and the care of their estates is expressly assigned to the family division of the high court of justice, whilst local authorities have duties in respect of children in need of care and control. 133e prerogative of taking care of mentally disordered persons and their estates is no longer exercised, that function being now carried out under statute by the Court of Protection.The prerogative in matters relating to charities is exercised largely by the Lord Chancellor, and the administration of charities legislation is the function of the Charity Commissioners. 134(wording divided for ease of reference) Given this, any Crown prerogative in respect of minors, the mentally disordered and supervising charities should be abolished and these functions should be placed on a statutory basis.This will clarify -and ascribe jurisdictionto those institutions which have assumed these functions in practice.
In conclusion, the Crown prerogative to act as parens patriae should be abolished and any remaining legal jurisdiction in respect of minors, the mentally disturbed and charities should be passed -by statute -to relevant State institutions.

Crown Prerogative -Making War and Peace
It is a constitutional proposition that the sovereign alone has the prerogative to make war (both in and outside the realm) 135 as well as to make peace.This has been held -as least -from the Norman Conquest of 1066 136 and, likely, it existed even prior to this. Indeed, one would suggest this was the pre-eminent prerogative of the sovereign who was likely chosen for this martial prowess in Anglo-Saxon times -especially when England was subject to waves of Saxon and Nordic invaders after the departure of the Romans in AD 410; 137 appointment.' 133Bradley, n 1, p 253 'The courts may interfere 'for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae.' See also In re Spence (1847) 2 Ph 247 (41 ER 937).For the position in 1934, see Ridges, n 13, p 196. 134 Halsbury, n 1, para 309.For the position in 1820, when the Crown had greater control, see Chitty, n 10, pp 155-62.See also Bradley, n 1, pp 253-4.See also Holdsworth, n 9, vol 10, p 356.Also, Keith, n 13, pp 337-8, 'nothing…of personal concern is left to the monarch in spheres which once were of special interest to the medieval sovereign, mainly, of course, for the substantial revenues which might be derived from exercise of these high prerogatives.'See also DeSmith & Brazier, n 13, pp 143-4 'In so far as the prerogative of protection encompasses the superintendence of charities and the welfare of persons of unsound mind, it appears to have been almost entirely engulfed by statute.' 135 In Rustomjee v R (1876) 2 QBD 69, 73, per Coleridge CJ 'The making of peace and the making of war, as they are undoubted, so they are perhaps, the highest acts of the prerogative of the Crown.' See also Phillips, n 12, p 321.To make war against the sovereign in the realm (i.e.civil war) was (and is) high treason under the Treason Act 1351 (levying war against the sovereign).To join with foreigners and made war against the sovereign was also high treason under the Act (the crime of 'adhering to the enemy').See n 115, article (a). no subject can levy war within the realm without authority from the king, for to him it only belongeth. 141milarly, Hale, in his History of the Pleas of the Crown (written in the 1640's but first published in 1736), stated: The power of making war or peace is inter jura summi imperii, and in England is lodged singly in the king, tho it ever succeeds best when done by parliamentary advice. 142ackstone, in 1765, summarised this prerogative -together with the legal rationale -as follows: the king has...the sole prerogative of making war and peace.For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power: 143 and this right is given up not only by individuals, but even by the entire body of people, that are under the dominion of a sovereign.It would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. 144itty, in 1820, wrote: 145 As representative of his people, and executive magistrate, the king possesses...the exclusive right to make war or peace, either within or without his dominions; and the constitution leaves it to the king's discretion to grant or refuse a capitulation or truce to an enemy… 146 The king alone has a legal discretion on this subject, under any circumstances which may occur; and though a kingdom which professes to be neutral, should commit the most flagrant acts of aggression and injustice towards this country, and trample on every duty enjoined by the law of nations, still the king alone can legally declare war against it.In more modern times, under the heading 'The making of War and Peace', Halsbury -citing Blackstone -states: War can be commenced or terminated only by the authority of the Crown. 148is statement, while indubitably correct, is too bald since the making of war and peace by the Crown has encapsulated, in law, a number of other, lesser, prerogatives:  The prerogative to declare war and peace;  The sovereign being head of the armed forces;  The prerogative to enter the land of subjects to erect fortifications;  The prerogative to requisition British ships;  The prerogative to impose blockades and embargoes;  The prerogative to booty, prize and angary;  The prerogative to prohibit subjects from leaving the country -as well to recall subjects; 149  The prerogative to compulsorily enlist subjects, including impressing them for the navy. 150 the primary Crown prerogative -to make war and peace -is transferred to Parliament then it seems clear these others should also be transferred (to the extent they are still of validity) in order that they, too, are subject to Parliamentary oversight.As for the Crown prerogative to make war and peace -in early times -it would have been inconceivable to most subjects that the sovereign not have such a prerogative, for the following reasons:  No Standing Army -Obligation on Sovereign to Raise Army.There was no standing army until 1688.Therefore, it was the duty of the sovereign -ever since a system of land tenure based on military duty was instigated by William I (1066-87) -to invoke the terms of that tenure in order to assemble an army whenever there was a threat of war (whether civil or from external enemies). 151Also, if required, it was the duty of the sovereign to recruit additional troops by: (a) invoking commissions of array; (b) hiring troops (including foreign mercenaries) by indenture (i.e. by contract ); (c) impressing subjects to serve in the navy (and, more rarely, the army); 152  Sovereign led Troops.The sovereign was commander-in-chief of the army and had the duty to lead his troops into battle; 153  Feudal Bond.The likely underlying rationale to a medieval mind for the sovereign's right to make war and peace was the feudal bond of allegiance in which the sovereign provided protection (protectio trahit subjectionem, et subjectio protectionem) 154 and the subject, as a result, could be obliged to bear arms in the case of sudden invasion or formidable insurrection;155 of one or two belligerents -it would not constitute her subjects enemies to the other belligerent, if the sovereign power of the latter permitted a continuance of commerce with them.It dealt with the situation of Hanover, occupied by the French with whom England was at war.The subjects of Hanover were not held to be enemies of England.Bowyer, n 11, p 223 'this country can never be at war except by the authority of the sovereign.' 148Halsbury, n 1, para 810 citing the 14 th edition of Blackstone (published in 1803), pp 257-8.Comyns, n 6, vol 1, p 45 'the king has the sole authority to declare war or peace.'Bacon, n 6, vol 5, p 532 'The power of making war and peace…is lodged singly in the king, though, as Lord Hale says, it ever succeeds best when done by parliamentary advice.'The reference is to Hale, n 60, vol 1, p 130 'The jus gladii, both military and civil, is one of the jura maiestatis, and therefore no man can levy war within this kingdom without the king's commission.' Keith, n 13, p 341'The right to make war vests in the Crown …The power to make peace is likewise vested in the Crown, and is part of the treaty power.'Maitland, n 13, pp 423-4 'the prerogative of making war and peace.This power…belongs to the king.' See also Anson, n 11, vol 2, pp 136-7.Bacon, n 124, p 179 'The King hath power to declare and proclaim war, and to make and conclude peace and truce at his pleasure.' 149This I have placed in italics on the basis it is obsolete, see 12. See also Chitty, n 10, pp 21-5. 150Ibid.
151 See McBain, n 58, p 16. 152 Ibid.Sunkin, n 12, p 347 'Would the prerogative ever be used to impress men (or even men and women) into the royal navy?' In fact, the prerogative can only be used against men (at least, it has only been used to impress men in the past).See also Bowyer,n 11,ch 27. 153 In early times, the failure of a sovereign to lead the army provoked problems.For example, in 1297, Edward I (1272-1307) sought to raise money for war in France by way of a tallage (tax  Parliament had no Authority to raise Army.There was no one else besides the sovereign who had authority to assemble an army, 156 since the relationship of Parliament to the sovereign was -usually -a subservient one until 1688 when the sovereign was chosen by Parliament. Thus, until 1688, there was no one besides the sovereign with the authority or capacity to raise and control the armed forces.British history vividly shows that the rash making of war by sovereigns often had huge detrimental financial (and human) consequences for the country.While not challenging the prerogative directly, Parliament had some indirect means of trying to prevent sovereigns entering into foolish foreign wars: 157  Obligation of Subjects to Fight Abroad Limited.Legislation -commencing from medieval timesrestricted the capacity of the sovereign to require subjects to go to war outside the realm or to finance foreign wars. 158Although Coke summarised these limitations in a work published in 1628 in a 'clear-cut' fashion, in practice, strong kings got their way despite the legislation; 159  Professionalising the Military.Military tenure soon became substituted for one of payment in lieu (scutage or escuage).This commenced from the time of Henry II (1154-89) and the additional system of indenture seems to have lapsed after the accession of Edward IV (1461-70 and 1471-83).Thus, for armies, sovereigns relied more and more on mercenaries -often foreign ones -rather than their subjects. 160The result was that armies became more professional and costly -beyond the financial resources of the Crown.As a result, Parliament became more intimately involved in financing (by way of a supply) the costs of war;  Loss of Possessions Abroad.After the Crown lost its possessions in France, the incentive to embark on foreign wars lessened.The need for armies for foreign adventures was offset by a greater use by the sovereign of the navy -as well as the impressment of mariners, where required; 161  Stuarts -Strong Challenge to the Prerogative by Withholding Supplies.The designs of the Stuarts to assert an absolute monarchy were opposed by Parliament.As part of this, Parliament thwarted the attempt of James I (1603-25) to successfully undertake foreign engagements, by refusing adequate financial supplies. 162While this did not deny the sovereign's undoubted prerogative to make war (or assist allies) it could severely hinder it -especially when James I was impoverished.The same happened in the case of Charles I (1625-49); 163  Increasing Control by Parliament.Although, in 1660, it was accepted in legislation that Charles II (1660-85) was commander of the army, 164 his relationship with Parliament was often strained since 156 For any individual to seek to assemble an army ran a real risk of being accused of high treason.See n 115, article (a). 157 A large amount of British history pre-1745, concerns civil wars not foreign ones.In the former, the right of the sovereign to defend himself was invariably upheld by Parliament and those who were opposed him were held to have committed treason.In the case where the sovereign was wholly inadequate, Parliament usually avoided making war.Instead, in the case of kings such as Richard II (1377-99) and Edward II (1307-27) it recognised the legitimacy of their successors.The failure of Parliament to support later challenges -such as those of Monmouth in 1685 and the Jacobite rebellions of 1715 and 1745 -was fatal to any long term success of the same. 158Coke, n 7, vol 2, p 528 summarised this legislation as 'No man shall be charged to arm himself, or to find men of arms, or any hoblers [a soldier who rode a 'hobby' or light horse] or archers…if it be not by common consent, and grant in parliament'.(spelling modernised).Also, 'No man shall be compelled to go the king's war out of his shire, but where necessity of sudden coming of strange enemies into the realm…No man shall be charged to give any wages either to the preparers or conveyors of soldiers, or to the soldiers to go into Scotland, Gascony, or elsewhere; but that men of arms, hoblers and archers, chosen to go into the king's service out of England, shall be at the king's wages from the day they depart out of the counties where they were chosen, till they return.'   Tanner,n 13,pp 54,56,59. 164 The Preamble to the Militia Act 1661 ( 13Car st 1 c 6, rep) stated: 'The sole supreme government command and disposition of the militia they considered he might use it against them. 165The increasing of the size of this army by the catholic James II (1685-8) 166 precipitated -in considerable part -the Glorious Revolution of 1688 which fundamentally altered the situation.
Thus, from 1688, Britain had a standing army, financed by Parliament.This was a fundamental change to the situation existing in the past.The Bill of Rights 1688 also severely curtailed the Crown prerogative's to make war -in practice -since it stated: The raising and keeping a standing army within this kingdom in time of peace unless it is with the consent of Parliament is against law. 167rther, from 1688, the control -and operation -of the military in England began to be placed on a strictly professional footing:  Legislation, progressively, covered the field of military (martial) law; 168  Sovereigns no longer went into battle after 1743; 169  Major Victorian reforms to the civil service and the military meant that sovereigns no longer interfered in military appointments.Offices and commissions were allocated on a professional basis, to the exclusion of patronage.
Today, the legal, and practical, justification for the Crown having a prerogative to make war and peace are wholly different to past ages.In particular, war cannot only be made by the Crown if money is allocated by Parliament.As Bradley notes: The Crown may declare war, but Parliament alone may vote the supplies which enable war to be waged. 170rther, the sovereign herself is no longer involved -even personally -in the making of war and peace.Anson,  in 1935, stated:   The king, acting on the advice of his ministers, makes war and peace. 171day, this statement records only the formal position since the reality is that the Government -with oversight and allocation of funds (supplies) by Parliament -makes war and peace and the role of the sovereign is a formal one only.
In conclusion, the Crown has the prerogative to make war and peace.However, it cannot do so, in practice, without funds being provided by Parliament.
and of all forces by sea and land and of all forts and places of strength is and by the laws of England ever was the undoubted right of his majesty and his royal predecessors Kings and Queens of England.Still it takes no act of parliament to make a war, even a war of aggression, and practically a ministry has a great deal of power as regards foreign affairs, and might even force a reluctant nation into a war from which it would be impossible to withdraw.'

Transferring the Crown Prerogative to Make War and Peace to Parliament
It is asserted there are compelling reasons to transfer the Crown's prerogative to make war and peace to Parliament. Democracy.The making of war and peace in the UK, manifestly, has a dramatic on effect on every person living there.It is appropriate, therefore, that a decision to make war and peace, should only be taken after very great consideration and not just by the sovereign alone 172 or by a few Government officials and bureaucrats purporting to act on behalf of the sovereign.Democracy is predicated on the freedom of individuals to express their opinions.Nowhere is this more important than where violence and 'legalised' killing (war) is to be permitted by the State;  Executive Act.Making war and peace is, today, an executive act -not a personal one.It is that of the Government (the State) acting on behalf of the people, not one of a sovereign acting pursuant to advice.Thus, Parliament should determine the matter rather than the Queen or those purporting to act on her behalf;  Sovereign's Role is Formal.The role of the sovereign in respect of military matters is now purely formal.She is no longer the head of a system of military tenure or required to furnish troops.Nor is she required (or has the ability) to command the armed forces or lead troops into battle.Further, the sovereign no longer issues orders to the military, nor sits in Parliament or in the British Cabinet, 173 in order for her military commands to be carried into effect.Also, the Crown -in the wider sense of the administrative apparatus of government (including the Ministry of Defence) -is not subject to the control and will of the sovereign, but to the British Cabinet which -itself -is subject to Parliament.Thus, the ability of the sovereign to declare war and peace -while it still exists formally -no longer does so as a political, or administrative, reality.
As it is, since World War II (1939-45), the British government has generally avoided any official making (or declaring) of war and peace, in order to circumvent other legal difficulties. 174However, this does not make the Crown's prerogative to make 'war and peace' obsolete since it could still be declared by the Crown in the future.
It is asserted that this Crown prerogative should be wholly transferred to Parliament who alone should exercise this right. 175What would be the problems with this?The making of peace is considered first, since the position is less complex.

(a) Peace
Writing in 1935, Anson pointed out that -in modern times -making peace inevitably involved the execution of a peace treaty or other agreement. 176He also argued that Parliament should be involved given that:  Peace may impose a pecuniary burden on the public; 177  There might be a cession of territory. 178In the past, the English courts had doubts as to the extent of the Crown prerogative to unilaterally cede territory. 179Anson regarded it as settled in his time that cession 172 In practice, this would simply not happen today since the sovereign is directed in all her political acts by her government, viz. the political party in power.If the sovereign sought to make war and peace unilaterally, this would, doubtless, provoke a constitutional crisis and the downfall of the monarchy. 173The last sovereign to preside in Cabinet was George III [1760-1820] in 1781. 174Bradley, n 1, p 260 'In modern times, however, it has not been the practice to make a formal declaration of war before commencing military activity, as in the case of the invasion of Iraq in 2003.'At p 353 'No war has been formally declared since 1939…The Suez canal, the Falkland Islands, and the Gulf all received British armed forces on ministerial orders under the prerogative power to deploy those forces as the Crown thinks fit.' See also Crown Proceedings Act 1947, s 11. 175 That is, legislation should make it clear that the Crown's prerogative to make war and peace is abolished and that Parliament shall make (and declare) war and peace. 176Anson, n 11, vol 2, p 137 'The prerogative of the Crown in making peace is so much involved in questions as to the prerogative in making treaties that the two must be dealt with together.Parliament has only indirect means of bringing war to a close, but it is hard to conceive of a peace concluded simply by a cessation of hostilities and mutual assurances of amity.Some engagement must be entered into, liabilities incurred, territory acquired or ceded.' 177 Ibid 'It would seem to follow from the general principles of our constitution that a treaty which lays a pecuniary burden on the people or which alters the law of the land needs Parliamentary sanction.If it were not so, the king, in virtue of this prerogative, might indirectly tax or legislate without consent of Parliament.' 178 Ibid, 'The cession of territory is a matter 'in regard to which the practice of consulting Parliament has varied widely from time to time: but the tendency has been undoubtedly in the direction of obtaining the sanction of Parliament more regularly, and not merely by an address required Parliamentary approval -not least since it would likely change the nationality of subjects as well as the position on public debt. 180ereas the involvement of Parliament in the past in any peace negotiations entered into by the Crown in which territory was ceded, varied, today, one would assert that Parliament would most certainly be -and should beinvolved. 181For example, if any British Overseas Territory were to be ceded, such matters should be by way of legislation. 182us, it is asserted legislation should now provide how peace should be made, in order to clarify the issue and to abolish the Crown's prerogative on this 183 (the same applies in respect of the Crown's prerogative to make treaties in general).

(b) War -Parliament Unable to Function
If the Crown's prerogative to make war was abolished -and the right to make war was transferred to Parliament -the only problematic issue would seem to relate to Parliament's being unable to assemble, due to an emergency, in order to declare war.For example, suppose the Houses of Parliament were destroyed in a lightning strike by a foreign (or internal) aggressor and it was not otherwise able to assemble as quickly as required? Civil Contingencies Act 2004.Provision is made for this in the Civil Contingencies Act 2004.It deals with national emergencies and defines the same to include war that threatens 'serious damage' to the security of the UK. 184In such a situation -and where matters are urgent -the Act provides that her majesty in Council may make emergency regulations. 185However, in the case of an attack on Parliament there would not likely be time.The Act provides for an alternative in such an emergency.A 'senior Minister' of the Crown may make regulations.A senior minister comprises: (i) the prime minister; or (ii) any of her majesty's principal secretaries of state; or (iii) the commissioners of her majesty's treasury; 186  Regulations passed under the Act.Regulations may, inter alia, enable the Defence Council to authorise the deployment of her majesty's armed forces as well as make provision for facilitating the same. 187hen such regulations are made a senior minister of the Crown (see above) shall -as soon as reasonably practicable -lay the regulations before Parliament.The same shall lapse within 7 days of the date of laying unless Parliament passes a resolution approving them. 188 No Provision for Sovereign to Act.It may be noted that this Act does not make any provision for the Queen to act in person. 189Nor for any proclamation by the same to be issued.
Thus, if the Crown prerogative to make war was abolished and making war was restricted to Parliament -and it was unable to meet immediately to make war -the Civil Contingencies Act would empower the executive to act. 190There would be no lacuna.

(c) Limited Military Engagements
At present, there is a 'grey area'.The modern tendency is for the Crown (in fact, the Government) not to declare war as such191 but, rather, to engage in more limited military engagements -including those of a peace keeping nature. 192For example, the invasion of Iraq was the subject of a Parliamentary debate and there was no declaration of war as such. 193Bradley noted: Although the invasion of Iraq in 2003 was the subject of a 'remarkable and extraordinary' debate and vote in Parliament, concern about the scope of the 'war powers' prerogative has led to demands for greater democratic control of its exercise. 194But it is unlikely that any government would agree to a formal requirement of parliamentary approval for military action, as has been proposed by a former Cabinet minister in a prominent private member's bill introduced in 2005. 195 a later House of Commons report, the general opinion of witnesses before the Committee issuing the report, was that the power of going to war was the most significant of the prerogative powers and that any military action overseas should require Parliamentary approval. 196 Draft Bill to Cover Armed Conflict.A suggested draft Bill presented to the Committee issuing the report provided that the armed forces should only take part in 'armed conflict' 197 if their participation was approved by a resolution of each House of Parliament; 198  No Need for Resolution.The above would only not apply in the case of action taken by the armed forces 'in their immediate and personal self-defence.' 199In such a case, resolutions were required to be obtained: (a) before those armed forces participated in armed conflict; or (b) if the government was of opinion that such participation was necessary as a matter of urgency before resolutions could be obtained, within 7 days from the beginning of participation. 200 is asserted this 'grey area' should be dealt with in legislation.Thus, the approval of Parliament should be required both in the case of war and in the case of any other military engagement abroad.

(d) Conclusion
One would assert today that, because:  the Civil Contingencies Act 2004 covers emergencies, including war;  Parliament's involvement is required to vote supplies for any war;  the Crown -in the form of the sovereign in person -is no longer involved in war and peace, the making of war and peace should now be placed on a statutory footing. War and peace should only be made by Parliament, save where the Civil Contingencies Act 2004 otherwise applies. 201If not, confusion will likely prevail.The same should apply in the case of any other military engagements abroad;  It is asserted that a transfer of the Crown prerogative to make war and peace to Parliament is essential in modern times in order to ensure that the democratic process is not undermined.Also, that a matter which affects the general public to a great degree (as well as public funds) is properly debated before being determined on. 202 conclusion, the Crown prerogative to make war and peace should be transferred to Parliament.In the case of peace, this is unlikely to be contentious.Further, it will help clarify matters.In the case of war, it is essential for the expansion of democracy.The position as to the declaration of war and peace is now considered.

Crown Prerogative -To Declare War and Peace
A subsidiary prerogative to the making of war and peace, is the Crown prerogative to declare war and peace.Is a declaration actually needed, however?This -and the method of declaring the same -has changed over time; in major part because of the changing nature of warfare.A distinction should also be drawn between: (a) civil war; (b) war against external enemies. Civil War.At least since 1305 until the last civil war in England and Scotland -the Jacobite rebellion of 1745 -the modus operandi of declaring war was the issue by the sovereign of a writ convoking his army (summonitio exercitus).Also, the raising of his standard (explicatio vexilli regis). 203The latter was important since anyone owing allegiance to the sovereign who then opposed the standard was guilty of high treason -levying war against the king in his realm (si home leve de guerre contre nre seignr le roi en son roialme) pursuant to the Treason Act 1351 (still extant). 204As to peace, in olden times, the sovereign proclaimed the same by means of a writ. 205This was also necessary vis-à-vis the application of martial law and its termination206 Today, civil war against the sovereign is extremely unlikely since she no longer has much power and there are no dynastic contenders to the throne. 207It is also pointless given that Parliament, since 1688, makes -and unmakes -sovereigns. 208Thus, unlike in times past, the defeat of the sovereign in battle or his capture, imprisonment, deposition etc would be of no legal effect in respect of his sovereignty unless Parliament chose to amend the Bill of Rights 1688 and the Act of Settlement 1700. 209For these -and other reasons -it has been asserted the crime of levying war should be abolished. 210Even if not so, in modern times, civil war would not be declared by the sovereign raising her standard on the battlefield (things have moved on a bit).Indeed, it is asserted that any civil war in the future in the UK would not need any formal declaration of war on the part of the Crown or Parliament (it is also not necessary for the purposes of the Treason Act 1351).As to the ending of such a civil war -as with the Jacobite rebellions of 1715 and 1745 -an Act of Parliament would almost certainly deal with the aftermath as well as any Act of Grace (in which criminal punishments for levying civil war are reduced or pardoned);211  External Enemies.Hale, writing in the 1640s, noted that the sovereign could, by proclamation, make a foreign war or peace. 212Those who owed allegiance to the sovereign and who adhered (aided) the enemies of the sovereign committed high treason. 213Hale also noted that war was of two kinds: (a) war solemnly declared (bellum solemniter denuntiatum);214 or (b) war not solemnly declared (bellum non solemniter denunciatum) 215 and that the former was the usual mode of proceeding. 216Hale also noted that: 'a state of war may be between two kingdoms without any proclamation or indication thereof or other matters of record to prove it.'217 In early times, did war need to be declared, to make it legal under English law?  Civil War.In the case of civil war -as previously noted -the raising of the standards warned those who opposed the sovereign that, from thenceforth, their 'diffidation' was treasonous'. 218No express declaration of war, as such, was required;  War against Foreign Enemy.In the case of a foreign enemy, it seems clear that -jurisprudentiallywar could exist between England and another State although no declaration of war was made.Further, for the purposes of determining whether a subject had committed high treason ('adhering to the enemy'), the fact of war simply had to be proved in any trial of the same.It did not depend on whether any declaration had been made.
As war became more professional and 'civilised' there was a tendency in England and on the continent -in the case of any foreign war -to 'declare' war in some formal manner -although it was not a legal requirement as such.A rationale for this was subsequently supplied by English text writers, assisted by continental writers.Blackstone -in 1765 -cited the text of Grotius (1583-1645) De Jure Belli ac Pacis (On the Law of War and Peace, 1625)219 in respect of the rationale for declaring war in a formal manner -and concluded: in order to make a war completely effectual, it is necessary with us in England that it be publicly declared and duly proclaimed by the king's authority; and, then, all parts of both the contending nations, from the highest to the lowest, are bound by it.And, wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. 220wever, Chitty, in 1820, came to a different conclusion.While citing Blackstone and Grotius, he stated: Notwithstanding this, it seems that no public declaration, or formal proclamation of war is, by law, absolutely necessary to render it the duty of the king's subjects to consider and treat as an enemy, any foreign power against which war has in point of fact been resolved upon and commenced by his majesty. 221t seems clear Chitty is correct in law.No declaration need be given.Also,  In the past the right to declare war and peace belonged to the sovereign in person.Today, this tends to be phrased in legal texts as being the Crown's right -reference to the 'Crown' being the same in a political -and not a personal -sense; 222  Today, it is dubious whether the sovereign could unilaterally declare war or peace (and, if she did, whether anyone would take any notice);  A declaration of war is equal to an Act of Parliament -as has been noted by the courts. 223 conclusion, a declaration of war or peace is not legally necessary under English law, although, in practice, it often occurs.

Declaring War and Peace to Pass to Parliament
In light of the statements made in 8 and 9, it is asserted that the Crown's prerogative to declare war and peace should be abolished.The same should now be exercised by Parliament alone.In respect of this, a declaration of peace is considered first, since it is simpler.

Halsbury states:
Termination of war is usually effected by a treaty of peace and announced to the nation by proclamation or Order in Council [i.e. by way of a Statutory Instrument]. 224Proclamations and Orders in Council of this nature were made after the 1939-45 war, as also after the 1914-18 war. 225 the case of any future peace treaty, it is likely the process adopted in World War II (1939-45) by the UK would be followed. This was usually via the signing of a peace treaty.However, sometimes, another form of agreement was utilised.Legislation then gave power to make an Order in Council to bring the treaty into effect; 226  Given that legislation provided for 'peace' to be brought into effect, this modern making of peace was not a direct exercise of the Crown prerogative as such.
Today, there would seem to be no good reason why Parliament -in modern times -should not have the sole capacity to declare peace.And for legislation to effect the same pursuant to a peace treaty. 227Thus, the Crown prerogative in this respect should be abolished.
In conclusion, legislation should provide for peace to be declared by means of a peace treaty or other agreement and for the same to be brought into effect by subordinate legislation (an order in council).The Crown prerogative to declare peace should be abolished.
differences prior to actual war.Also, to fix the date of rights which then subjects will acquire, such as the right to prize.He noted, p 503, that -in the treaty of Aix-la-Chapelle (in 1748), between France and Spain (on one side) and England (on the other) -it was agreed that all prizes taken prior to the declaration of war should be restored.'Vattel also noted that no declaration was needed in the case of a State which was attacked and only waged defensive war, ibid, p 503.He also indicated circumstances in which a declaration could be omitted in the case of an offensive war.Ibid, pp 503-4. 222Vincenzi, n 12, p 114 'It is…the Crown's exclusive decision whether or not to declare war.' 223 Ibid, p 114. See Esposito v Bowden (1856) 7 El & Bl 763 (119 ER 1430). 224Halsbury, n 1, para 4 'It is usual on such occasions to publish notices as to the signing and ratification of the treaty of peace in the London Gazette, and after ratification the fact that peace is established is usually announced by proclamation.In the 20th century, war was not necessarily ended by a peace treaty.Halsbury, n 1, para 810 cites an agreement with Thailand on 1 January 1946 (Cmd 8140) as an agreement not amounting to a peace treaty. 225Ibid. 226Halsbury, n 1, para 810 'Proclamations and Orders in Council of this nature were made after the 1939-45 war, as also after the 1918 war'.
In the case of World War I [1914-18] the Termination of the Present War (Definition) Act 1918 gave the power to declare the date of the termination of the war by Order in Council (which occurred).In the case of World War II [1939-45], Orders in Council and proclamations were used.

(b) Declaration of War
In modern times, the idea that the sovereign could, personally, declare war (whether under the great seal or by proclamation) is not acceptable -not least since she is not in any real control of the armed forces nor of Government.Further, the idea that bureaucrats should be able to do the same in the name of the Crown, on her behalf, is also unacceptable.Thus, war should be declared in -and by -Parliament and one would assert that the appropriate mode would be (as in the case of World War II) that it is 'declared' by the prime minister. 228A draft Bill prepared for a House of Commons committee (see 8(c)) stated: No declaration of war shall be made on behalf of the United Kingdom unless that declaration has been approved by resolution of each house of Parliament. 229e would agree with this, save that, also, the declaration and the time of commencement of war should be later evidenced in legislation (whether primary or secondary).
In conclusion, legislation should provide for the manner of declaring war and peace.The Crown prerogative to declare war and peace should be abolished.

Benefits of Abolishing Crown Prerogative Re War and Peace
If the Crown prerogative to make -as well as to declare -war and peace were abolished and matters were placed on a statutory footing, this would bring considerable benefits. It would remove a mass of old caselaw, legal texts and fragmentary legislation.It would also remove a great deal of obscurity and clarify an area of law which -it is important -should be very straightforward and intelligible;  Further, it would help remove the historical tendency of the Crown in times of war to encroach (often severely) on human liberties, when this was not required.This was often so through the failure of legislation in war time to expressly deal with matters.
In respect of the latter, Halsbury states: In time of war and in matters relating to war the Crown enjoys generally a somewhat wider latitude in the exercise of the prerogative than in time of peace, for in such matters more stringent measures than are ordinarily allowed by the common or statute law are frequently rendered necessary for the public safety or for the restoration of peace and good order.Thus, it is possible that the exercise of martial law is to some extent permissible in time of war, and various prerogatives relating to the relations between British subjects and those of foreign countries are allowed to the Crown in time of war.Presumptions in favour of the liberty and property of the subject, which are usually of great effect in interpreting statutes in time of peace, become relatively weak in time of war when the safety of the realm is in danger. 230 to this:  It is asserted that martial law should be abolished (see 12);  The latitude accorded to the Crown in wartime was -almost always -unnecessary in hindsight and counter-productive in practice.It failed to achieve its goal, but it did materially subvert fundamental principles of justice and freedom; 231  If the Crown prerogative on these matters of war and peace (including in respect of martial law) is abolished, legislation will then stipulate the precise position (if required) and it will be left to the courts -applying the usual judicial canons of construction -to determine whether any 'latitude' is appropriate having regard to the specific wording of the relevant Act.This can only be much better, legally.Further, it will result in a lesser subversion of democracy and the rule of law.
Halsbury also refers to the fact that: The counter-maxim salus populi suprema lex ('for the safety of the people is the paramount law') is applied as a corrective. 232is maxim from Roman law233 -as well as another said to have been contained in the final paragraph of the Roman Twelve Tables -Et silent leges inter arma ('and amidst the clash of arms the laws are silent') 234 was applied -as in the case of martial law -for the undertaking of acts by the Crown (Government) which were not justified in strict law but which were required (it was asserted at the time) in order to preserve the community as a whole from complete disaster or annihilation. However, in hindsight, when the law was discarded and military force allowed to prevail in a civilian context, the results were invariably counter-productive;  Indeed, globally, the great lesson of the last two centuries has been that -if the law is not allowed to prevail in all circumstances -human rights abuses on a gigantic scale, result.
In modern times, there is no need for such a wide latitude to be permitted to the Government without legislation even in war time -it being a discretion which can easily be abused and become tyrannical.After all, there is now a professional army, which is regulated by military law; and there are clear rules of military engagement.Further, in the case of civilians, they should not be conscripted (impressed) or made to serve under military law or be tried and condemned by military tribunals or be obliged to take up arms unless legislation clearly and expressly so provides.
In conclusion, the Crown prerogatives to make war and peace -as well as to declare war and peace -should be transferred to Parliament and be specified in legislation.

Obsolete Subsidiary Military Prerogatives
As well as the Crown prerogative to make war and peace, Halsbury refers to certain subordinate prerogatives of a military nature.These will be dealt with briefly, since it has been asserted in other articles that these are obsolete.
 Impressment -Navy & Army. 235Service in the king's navy prior to the establishment of the royal navy was grim with low pay, quality of life and life expectancy.As a result, in medieval times, the Crown asserted a prerogative to impress (i.e.forcibly recruit)236 mariners into the navy, for his majesty's service, since no one wanted to serve voluntarily.This continued until 1814 when impressment was abandoned and never re-assumed.A Royal Commission report in 1859 on the Manning of the Navy stated that naval impressment could no longer be successfully enforced.In any case impressment was subject to many exceptions. 237Today, impressment would not be necessary, since there is a professional royal navy (indeed, there is a surfeit of men willing to serve).Also, pay and conditions -the basis for resorting to impressment -are now good.Finally, impressing men for the navy by relying on the Crown prerogative would almost certainly be politically -and practicallyunacceptable. 238 A Crown prerogative to impress for the army is even more uncertain and controversial.
In any case, from early times, legislation was invariably resorted to.Impressment for the army ended in 1780. 239In the case of World War I (1914-18) and II (1939-45), conscription for both the army and the navy was effected pursuant to legislation. 240In conclusion, any Crown prerogative to impress for the army or the navy is unnecessary.It is asserted that it should be abolished; 241  Letters of Marque & Reprisal. 242These grants by the Crown comprised a form of State licensed privateering (as opposed to piracy).Thus, the Crown encouraged private ships owned by subjects to wage war on enemy shipping in times when the Crown had few ships. 243This system of marque and reprisal was obsolete by 1815 and the Declaration of Paris respecting Maritime Law of 16 April 1856 renounced privateering, an essential aspect of which were such letters of marque and reprisal. 244This Crown prerogative is long obsolete.It is asserted that it should be abolished;  Letters of Safe Conduct.The Crown prerogative to issue letters of safe conduct preceded modern passports and letters of safe conduct were obsolete by 1836.The purpose of letters of safe conductissued at the command of the sovereign -was, principally, to permit foreign merchants to be able to enter the realm without the risk of their merchandise being seized (especially if their country was at war with the Crown).Letters of safe conduct were also given to visiting diplomats and -more rarely -to foreign sovereigns visiting England.Today, the entry, and exit, of foreigners into the UK (including in wartime) has long been governed by legislation and by passports.Thus, letters of conduct are obsolete, as is the prerogative to issue the same; 245  Prohibit Subjects from Leaving the Realm or to Order Return.The Crown prerogative to prohibit subjects from leaving the realm was based on allegiance and, jurisprudentially, it was justified on the basis of the need to retain men -and expertise -for war and defence.However, in olden times, it was, in practice, often used to prohibit important religious leaders (or magnates) from quitting the realm; 246 as well those who might commit treason. 247It was especially resorted to in war time.From early times, this prerogative was supplemented (or effectively superceded) by legislation and, in the case of World War I (1914-8) and II (1939-45), legislation was employed instead.Today, this prerogative is not required.It is also a restriction on human rights and is, likely, not enforceable.The same applies to the Crown prerogative to order the return of a subject to the realm. 248It is asserted that both these Crown prerogatives should be abolished;  Dig for Saltpetre for Gunpowder.A Crown prerogative to dig on the land of a subject for saltpetre (to make gunpowder) is palpably obsolete today, since saltpetre is no longer used for gunpowder.Also, it was only utilised, in the main, in the period 1589-1688 when the Crown had difficulty sourcing supplies of saltpetre from abroad. 249The legal basis for asserting such a prerogative in any case is weak. 250This Crown prerogative should be abolished;  Martial Law. 251Martial law had many meanings.However, today, the concept of 'martial law' is only legally coherent when it refers to a Crown prerogative to subject civilians to military law -including their trial, and punishment, before a military tribunal.In past times, the purpose of implementing martial law was to subject civilians to harsher military punishments than otherwise prevailed at common law (including the death penalty, flogging, etc).Such punishments no longer apply today.There was a 'grey' área in respect of major riots and rebellion, which the Crown exploited.Today, riots are covered by legislation and rebellion specifically against the sovereign (or to effect changes in legislation) would be restricted to the Treason Act 1351 (and the Treason Felony Act 1848). 253Martial law was used in the colonies post 1688, to disastrous effect.However, it seems to have ended by 1865 (in Jamaica), to be re-suscitated in the Boer War (1902) and in Ireland (1916-20).In many cases where it was used in the colonies post-1688, however, it was superceded by legislation due to the uncertainty of the prerogative and excesses that derived from it.Britton wrote in the reign of Edward I (1272-1307).However, this common law prohibition requiring the licence of the sovereign to build castles is much earlier -existing at least in the time of Henry I (1100-35) since his laws provide: The following place a man in the king's mercy…construction of fortifications without permission [castellatio sine licencia]. 257rther, in the reigns of Stephen (1135-54) 258 and Henry II (1154-89), 259 many unauthorised (adulterine) castles were destroyed. 260Such a prohibition was understandable in those times.It was to protect the sovereign against powerful magnates since a fortified castle could hold out against him and be a threat to his power.Coke maintained that Magna Carta (1215) did not contain an express prohibition since castles could only be erected by the sovereign or pursuant to statute.261 Coke refers 'castles', 'houses of strength' and to 'fortresses'.It is asserted these terms are synonymous. 262He also referred to 'bulwarks' (earth ramparts);263  Historically, castles developed rapidly from the 9 th century.By the 11 th century, this type of private fortress -known as the 'motte (mound) and bailey' castle -spread over Western Europe. 264However, the development of the use of firearms was so rapid in the 15 th and 16 th centuries as to require a radical change in military architecture, such that the age of the medieval castle came to an end. 265The system of the Crown licensing castles also died out.
By the time Coke was encapsulating in writing this common law prohibition against a subject building a castle it was no longer necessary.The sovereign was not threatened by powerful magnates hiding behind the walls of their castles.When Chitty wrote (in 1820), the common law prohibition on a subject building castles and bulwarks was re-stated in more general terms, so as to cover any type of fortification.However, this really is an unwarranted extrapolation of the common law position without any statutory, or case, support.266Further, the emphasis switched from a prohibition on a subject erecting fortifications without a licence from the Crown to an emphasis on the Crown having the sole prerogative.Thus, Chitty stated: the king is solely entitled to erect, fortify, and govern forts and other places of strength, within his dominions. 267itty cited the recital to the Militia Act 1661268 -as well as some other legislation -all of which has been repealed. 269Given the repeal of such statutes, the common law position remains.No one can build a castle for military defence.It is asserted that this prohibition is obsolete today for the following reasons:  Castles (fortresses) are long obsolete militarily.Modern castles have been built (and re-constructed) without the need for permission from the Crown (albeit it might be argued these were for private residences and not for military purposes); 270  It is exceedingly unlikely that an individual, today, would seek to build a castle (fort) for a military purpose.Any such construction would require planning permission -the grant of which is improbable.Further, the cost of erecting such a castle would also be likely prohibitive;  The rationale for such a prohibition -that such a castle might threaten the military might of the sovereign -has long gone.The sovereign is no longer in command of the military, being a constitutional monarch.And such a castle would hardly threaten the Ministry of Defence and the armed forces.
In conclusion, any common law prohibition on a subject building a castle or a bulwark is otiose.The rationale for it no longer applies.Castles are obsolete militarily.In any case planning permission would be required for a castle for military purposes, which is unlikely to be granted.

(b) Subject Building Fortifications -War Time
An exception to the prohibition on a subject building a castle was confirmed in Malverer v Spinke (1537): 271 in some cases a man may justify the commission of a tort, and that is in cases where it sounds for the public good; as in time of war a man may justify making fortifications on another's land without licence…for [this is a case] of the common weal.
Similarly, in the King's Prerogative in Saltpetre (1606), 272 the judges held that: by the common law, every man may come upon my land for the defence of the realm, as appears 8 Ed 4 23; 273 And in such case on such extremity they may dig for gravel, 274 for the making of bulwarks; for this is for the public, and everyone hath benefit by it; but after the danger is over, the trenches and bulwarks ought to be removed, so that the owner shall not have prejudice in his inheritance.
The case in the reign of Edward IV (1461-70 and 1471-83) referred to is one in 1468.Here, counsel asserted there was such a custom in Kent for the defence of the sea coast. 275However, the case did not decide the issue.
In similar vein, an Act of 1512 (repealed) provided for justices of the peace to order the erection of bulwarks because of the danger of invasion of the coast of Cornwall.Thus, it was lawful: for every of the king's subjects within this realm of England by the advice and assignment of the said justices of the peace or sheriff to make all manner of bulwarks…in every man's ground of what estate or degree he be of and also to dig and to delve as well for earth stones and turves as to cut and to hew heath [heth] in any man's ground for the making of any such bulwarks …as often and as many times as need shall require, and the said earth stones turves and heath to take occupy and carry away out of the said ground to any other man's ground for the making of any such bulwarks.(spelling modernised) 276 In such a case no compensation was payable.This Act, being repealed, the common law position remains.Today, it is asserted that any right of a subject to establish fortifications on the land of another -which right is actually a franchise of a Crown prerogative to do the same -should be abolished, for the following reasons:  Job of the Armed Forces.Today, the country has armed forces.They would undertake the erection of fortifications on the land of a subject, for defence purposes.Thus, no right accorded to a subject is necessary;  Legislation Employed.In the case of the First and Second World Wars (1914-8 and 1939-45), legislation was relied on for the erection of fortifications on the land of others, for defence purposes (see (c) below) -as opposed to any Crown prerogative.Further, individuals did not avail themselves of the right to dig on the land of others, for defence purposes;  Caselaw Indeterminate.This right is not well established in caselaw since the case cited in 1468 (see above) was only was asserted to apply to the coast of Kent.Further, no decision upholding such a right in that case appears to have been reached; guerre, wartime) one will justify the entry onto another's land to make a bulwark in defence of the king and of the realm, and those things are justifiable, and lawful for the maintenance of the common good (de le comon wealth).' See also Chalmers & Asquith,n 12, The case notes, however, that the sovereign 'cannot take gravel in the inheritance of the subject, for reparation of houses.'OED, n 262 (gravel) 275 Seipp (n 60) translates the law French as 'Defendant pleaded that there was a custom in the county of Kent that when any enemies came to the seacoast, that all those of Kent could well come onto the land adjoining the same seacoast in defence and safeguarding of the country (pais), and there to make their trenches and bulwarks for the defence of the same country (pais), and that at the time of the same trespass enemies came, and defendant thus justified. Plantiff (?) replied that this was common law (so defendant should be driven to plead 'not guilty' (?).Defendant (?) rejoined that defendant could not dig in plaintiff's land unless there was such a usage (custom).' Right does not Apply to Non-Subjects.The right under the common law derives from the concept of allegiance.277 Thus, it only applies to subjects. Thee would seem to be no such right in the case of a non-subject.Nor for the erection of fortifications on the land of a non-subject;  Crown's Right re Gravel.The Crown's prerogative to dig -and take -gravel from the land of subjects (but, it seems, not non-subjects) is also unnecessary today and should be abolished.
If the right (licence from the Crown) of a subject to enter the land of another subject in order to erect fortifications thereon for the defence of the realm was abolished then -if required in the future (which is most unlikely) -such matters would be left to legislation (which would, doubtless, specify for the armed forces to undertake the same).This is appropriate.Abolition of such a right would have no, modern day, effect since individuals do not take it on themselves (and did not in two World Wars) to establish fortifications.
In conclusion, such a right should be abolished.There is no need, in modern times, for a subject to be given the right to build fortifications on another subject's land during wartime.

(c) Crown's Prerogative to Erect Fortifications
Halsbury states: In time of war the Crown may enter on the land of a subject, for example to erect fortifications or to dig for saltpetre, but in both the 1914-18 and 1939-45 wars special powers were conferred by statute and regulations to take necessary action with regard to the requisition of property, the entry on land and many other national needs, and the wide scope of those powers rendered unnecessary recourse to the royal prerogative. 278(wording divided for ease of reference) As to the digging for saltpetre for gunpowder, see 12. Caselaw for the Crown prerogative to erect fortifications is the King's Prerogative in Saltpetre (1606) 279 where the judges stated: when enemies come against the realm to the sea coast, it is lawful to come upon my land adjoining to the same coast, to make trenches or bulwarks for the defence of the realm, for every subject hath benefit by it. 280 is asserted this Crown prerogative is obsolete and that it should be abolished for the following reasons:  No need to Erect Fortifications on Subject's Land.Today, there are professional armed forces and a Ministry of Defence which possesses extensive areas of land set aside for military purposes, such that the need to erect defensive fortifications on a subject's land (especially one adjoining the coast) is not necessary;  Crown Prerogative Insufficiently Wide.The Crown prerogative is insufficiently wide.It covers only the erection of fortifications on the land of subjects -the protection of the same from foreign enemies is corollary to the allegiance owed by the subject to the Crown for the same.Thus, it would seem the prerogative cannot be exercised on land belonging to foreigners, unless it can be shown that they owe some form of 'local' allegiance; 281  Emergency Powers.The Civil Contingencies Act 2004 enables regulations to be made which make provision (which may include conferring powers in relation to property) for facilitating any deployment of Her Majesty's armed forces. 282This would seem to cover erecting fortifications on a subject's land, to be manned by military personnel;  Legislation Utilised.As in the case of the First and Second World Wars, 283 legislation to erect defensive fortifications on the land of others (whether subjects or not) is more appropriate than reliance on a Crown prerogative which is uncertain in scope.
In any case, it should be laid down in legislation and a concomitant should be the payment of compensation.
In conclusion, a common law prohibition on subjects erecting castles for defensive purposes should be abolished.It is both obsolete and unnecessary since persons do not now erect castles for military purposes.The right of subjects (or, rather, a Crown franchise accorded to subjects) to enter the land of other subjects in order to erect fortifications there for the defence of the realm in war time should also be abolished.This should be left to legislation, if ever required in future.Finally, any Crown prerogative to so erect such fortifications should be abolished, being replaced by legislation -where required.

Proclamations
The Crown is directly involved in the enactment of legislation since the body charged with the same is the Queen in Parliament (known as the 'Parliament of the United Kingdom of Great Britain and Northern Ireland') which consists of the sovereign, the House of Lords and the House of Commons.284 As Halsbury notes, in practice, the sovereign now plays only a formal role in the making of legislation since she has lost the power of refusing her assent to a bill passed by both Houses (or by the Commons alone when pursuant to the Parliament Acts 1911 and 1949). 285ether this direct involvement of the sovereign in legislation can be accurately termed a Crown prerogative is debatable. 286However, what is a Crown prerogative -is the ability of Crown to enact subordinate legislation in the form of proclamations.These are legally binding on the subject only when they do not contradict the lawsor tend to establish new ones 287 -but enforce the execution of those in being. 288Thus, Blackstone opined: proclamations, are binding upon the subject, where they do not either contradict the old laws, or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary. 289lsbury states: In general, proclamations may legally be made and issued only by the authority of the Crown, and must be passed under the Great Seal, 290 and no private person may make and issue a proclamation, unless the practice is warranted by custom, 291 or unless he is expressly authorised to do so. 292Breach of this provision is punishable by fine and imprisonment. 293n a petition of 7 July,1610 the Commons complained that proclamations had been issued creating new offences unknown to the law; imposing penalties for known offences greater than those authorised by law; and requiring accused persons to be brought before tribunals which were not legally authorised to try their offence.In his answer to the petition the king undertook to consult the judges.301 Their reply -the Case of Proclamations (1611) -in effect,302 reduced proclamations to a form of subordinate legislation which did little more than confirm the existing law; robbing it of much efficacy it formerly had. 303he result was to severely limit the power of the Crown in using proclamations.This was reflected in their subsequent, reduced, usage.

(b) Proclamations as Legislation
The last case where the Crown sought to legislate by proclamation was in 1766.To prevent famine -and Parliament not being assembled -an embargo was laid on all ships laden with wheat and flour in time of peace.This was contrary to express statutory provisions.The action of the Crown was later defended by Lord Camden, the Lord Chancellor, on the ground of necessity.304However, being unlawful, an Act of Indemnity was needed. 305The Oxford Dictionary of National Biography states in respect of this incident: As a politician the new Lord Chancellor was soon exposed to criticism that questioned his role as a champion of liberty against State power.A parliamentary ban on the export of corn on 26 August 1766, and the combination of a poor harvest and the resumption of exports provoked widespread disorder through fears of high prices and of possible starvation.The Chatham ministry, acting through the privy council and with the support of Lord Chancellor Camden, decided upon a royal proclamation of 26 September prohibiting corn exports until, after Parliament met on 11 November.But the action breached the 1689 Bill of Rights provision that forbade the Crown to suspend laws, and the matter was promptly raised in both Houses of Parliament.Camden found Chatham and himself accused of tyrannical behaviour.The plea of necessity, so contrary to Chatham's own famous legal opinion of the previous year, did not allay parliamentary resentment, especially when Camden unwisely claimed that it had been only 'a forty days tyranny', and the ministry had to pacify criticism by the humiliation of an act of indemnity.306

(c) When Proclamations Are Issued
In Tudor (1485-1603) and Stuart times (1603-88), proclamations (all now spent) were categorised by Holdsworth as covering -in the main-matters relating to: (i) the administration of government; (ii) religion; (iii) commercial and industrial regulations; necessary in order for the same to be effective (further, today, war is rarely proclaimed).As to whether any of (a)-(j) need -or should -be by way of proclamation today, see (d) below.

(d) Abolishing Prerogative to Make Proclamations
It is asserted the Crown's prerogative to make proclamations should be abolished, save in respect of summoning, and dissolving, Parliament. 324The reasons for this are as follows:  Democracy.Proclamations comprise an anomalous form of quasi-legislation since they do not have the sanction or approval of Parliament.In terms of a modern democracy, this is not appropriate;  Superceded by Statutory Instruments.Proclamations are not necessary in modern times, since their role has been superceded by Statutory Instruments (SIs), which require Parliamentary sanction.Thus, proclamations are not required -and would not now be issued -in order to 'call attention to the provisions of existing laws.' (see (c)(a) above).Further, in the case of all of (c)(b)-(j), these should be by way of SI, requiring Parliamentary approval.The only case where a proclamation should be used in modern times should be to summon or dissolve Parliament (see (c)(c) above);  Inappropriateness of the Punishment.It is dubious whether the courts would be prepared, in modern times, to fine or imprison persons (up to life imprisonment) for failing to obey a proclamation.
Further,  Private Persons making Proclamations.There is no need for private persons to make proclamations today, and it is not appropriate that private persons make legislation;325  Provisions of Existing Laws.There is no need, today, for proclamations to call attention to the provisions of existing laws (see (c)(a) above);  Make or Alter Regulations.There is no need for proclamations to make (or alter) regulations in respect of which the Crown has a discretionary authority either at common law or by statute (see (c)(b) above).Such should be dealt with by SIs -where required -which allocate discretion to specific Government departments;326  Prohibiting Subjects Leaving Realm.The Crown prerogative to prohibit subjects from leaving the realm (see (c)(h)) is, in any case, obsolete and that (it is asserted) it could not be enforced, today;327  Legislation Authorising Regulations.When the Crown is authorized by legislation to put into effect (force) statutory provisions which would otherwise remain dormant (including proclamations prohibiting the import or export of explosives, arms, ammunition etc, see (c)(f)) such proclamations do not arise by way of the Crown prerogative but pursuant to statute.So too, proclamations that might be issued in a state of emergency.328Thus, abolition of the Crown prerogative to issue proclamations will not affect any proclamations subsequently issued pursuant to legislation;  States of Emergency -Regulations.Powers relating to states of emergency are governed by the Civil Contingencies Act 2004.It covers emergencies such as war and terrorism and it permits regulations to be made without a state of emergency having to be declared or Parliament having to agree to the same.The ambit of these regulations is extensive.329Thus, in the case of emergency, SIs are preferred to proclamations;  Last Case of Punishment.When a person was last punished by imprisonment or even a fine for disobeying a proclamation is unclear.Likely, it was a long time ago. 330 conclusion, the Crown prerogative to issue proclamations should be abolished.It comprises a power to make legislation which exists without the sanction of Parliament and, as such, it is not appropriate in a modern democracy.In any case, any proclamations issued should, in the future, only be pursuant to the terms of legislation (whether primary or SI).In practice, abolition of the prerogative to issue proclamations would change little.However, it would remove an anomaly in respect of legislation not otherwise being effected without the assent of Parliament.

Conclusion
In modern times we need modern law -law which is clear, comprehensive and understandable. 331 In the case of the Crown prerogative, this area of law is often obscure and uncertain 332 as well as being based on a legal fiction that Crown prerogatives are still exercised by the Crown (or the sovereign) when, in fact, they are exercised by the Government. 333The retention of such a fiction can only have a negative impact on democracy; 334  A report of the House of Commons in 2004 asserted the case for the reform of -at least -some of the most significant Crown prerogatives was 'unanswerable'. 335This applies, a fortiori, to minor Crown prerogatives.
It is asserted that the following Crown prerogatives should be abolished: 336  Common Law Courts.The prerogative to establish common law courts; The problem generally with fictions is that they are untrue.Finch, n 69, p 47 'Feigned construction (which we call fiction in law) is when in a simultudinary manner the law construes a thing otherwise than it is in truth.' 334 Ibid, p 77 contains a quotation from John Garrett MP 'The royal prerogative is an anachronism -an example of the overweening power of government over Parliament… The royal prerogative is a chilling manifestation of the way in which our democracy is deficient, and it should be mapped by the Select Committee on Procedure as soon as possible, and then largely ended.'J Straw, Power and the Throne (D Barnett ed, London, Vintage, 1994), p 125 'The royal prerogative has no place in a modern western democracy….[The prerogative] has been used as a smoke-screen by ministers to obfusticate the use of power for which they are insufficiently accountable.'See also HC, n 3, p 8. 335 HC, n 3, p 3. At p 15 'In April 2003, Parliament First, an all-party group of members, published proposals which would see 'the majority of prerogatives…placed on a statutory footing.' 336 Sunkin, n 12, p 344 'A host of miscellaneous and relatively minor prerogatives are historical remnants, vague reminders of feudal times, and most of them have been affected in one way or another by statute.There seems little reason why these prerogatives should not be wholly replaced by statute as appropriate opportunities arise, and in some cases abolished.'Also, p 345 (formal review needed).
 Making & Declaring Peace.Any prerogative to make peace -including to declare peace.Legislation should provide for peace to be made -and declared -by means of a peace treaty (or other agreement) and that the same will take effect by way of SI, which also declares the date (and time) of peace;  Making & Declaring War.Any prerogative to make war -including to declare war.Legislation should provide for war -or any other form of military engagement -to be made (and declared) by Parliament and for the date (and time) of war to be specified in a SI.Such legislation should operate where the Civil Contingencies Act 2004 does not otherwise apply;  Subordinate Military Prerogatives.Any prerogative to: (i) impress subjects for the navy; (ii) issue letters of reprisal and marque; (iii) issue letters of safe conduct; (iv) prohibit subjects from leaving the realm; (v) order subjects to return to the realm; (vi) dig for saltpetre (for gunpowder); (vii) impose martial law;  Castles.Any prohibition on subjects building castles.Also, the right of subjects (or, rather, a Crown franchise accorded to subjects) to enter the land of other subjects to erect fortifications there for the defence of the realm in war time.Also, any Crown prerogative to so erect such fortifications.This should be replaced by legislation -where required;  Proclamations.The Crown prerogative to issue proclamations.Any future proclamations should be specifically authorised by legislation (for example, the sovereign summoning, or dissolving, Parliament) or otherwise effected in the form of SIs.
One would assert the only case where there may be contention -or serious debate -as to the transfer of the above Crown prerogatives to Parliament, or their abolition, is that in respect of war.All the others are either obsolete or they would greatly benefit from being formulated in modern legislation. 337This would deepen democracy and recognise that the role of the sovereign in person in such matters is now only a formal one.
(a) Supreme Court (also, the Judicial Committee of the Privy Council); (b) Court of Appeal (also, the Courts Martial Court of Appeal); 276 4 Hen 8 c 1 (1512) (Bulwarks, Braies, Walls, and other Fortifications shall be made by the Sea-Side in Cornwall by the Justices of the Peace Assignment).See also 2 & 3 Phil & Mar c 1 (An Act for the Re-edifying of Castles and Forts and for the enclosing of Grounds from the Borders towards and against Scotland, rep).OED, n 262 (heath) 'tract of land naturally clothed with low herbage and dwarf shrubs.'


Sovereign and her Courts.Any prerogative of the sovereign to: (a) sit as a judge; (b) withdraw any matter of State from the cognisance of any court; (c) request any judge to delay giving judgment; (d) sue in whatever court the sovereign pleases.Also, any common law rule as to costs affecting the sovereign in a personal capacity;  Immunity of the Sovereign.Criminal immunity of the sovereign should be lifted -at least, in relation to major criminal offences -and civil immunity should be lifted in respect of: (a) any mortgage; pledge or lien granted by her over her own property; (b) any personal debt incurred by her;  Obligation to accept a Public Office.Any prerogative to compel a person to accept a public office -or to act as a parish constable or a sheriff;  Parens Patriae.Any prerogative to act as parens patriae.Any residual jurisdiction in respect of minors, the mentally disturbed and charities should pass to the relevant State institutions; 330 Chitty, n 10, p 107. See also Armstead's Case (Hob 251). 331HC, n 3, p 24 'Governments should not have imprecise powers.As a matter of basic constitutional principle the user of a power should be able -and if asked should be obliged -to identify the source of that power and to describe its nature and extent…the burden should be on the government to explain officially to Parliament and the public what prerogative powers it uses and how it uses them.' (Rod Brazier, specialist adviser to the Public Administration Select Committee of the House of Commons). 332Burmah Oil Co v Lord Advocate [1965] AC 75 at p 148 per Lord Pearce 'The law and Parliament have so altered and curtailed (and in part confirmed) the various aspects of the prerogative that the whole subject is obscure and difficult.'Sunkin, n 12, p 59 'the Crown as a legal concept has been strained to the point of incoherence.' 333Sedley, n 103, p 271 'The monarch is today constitutionally barred from playing any active part in those distinct functions of State.' , para 368, 'no prerogative may be recognised that is contrary to Magna Carta or any other statute, or that interferes with the liberties of the subject.Ex p Barnsley (1744) 3 Atk 168 (26 ER 899) at 171 per Lord Hardwicke LC 'the prerogative of the Crown…cannot be altered but by Act of Parliament.' See also Case of Proclamations (1611) 12 Co Rep 75 (77 ER 1352) at p 75 and Coke, n 7, vol 2, pp 36, 54.The Crown usually prefers to act under definite statutory powers.See alsoMunro, n 12, p 257 and Phillips, n 12, p 307.
42, Prerogative A 'For the king has not any prerogative, but such as the law allows.'SeealsoCase of Proclamations (1611) 12 Co Rep 74 (77 ER 1352).25Chrimes,n13, p 19 'Any Act of Parliament can destroy, modify, or impliedly supersede any part of the royal prerogative…' Halsbury, n 1 These franchises were abolished by the Wild Creatures and Forest Laws Act 1971 -save in relation to mute swans in open water (see n 33 below).
33Because the sovereign was treated as superior to common people he was granted the right to: (a) royal fish; (b) mute swans in open waters.Both these were franchised.The sovereign was also entitled to use: (c) a great seal; and (d) execute by way of sign manual. 34z.(a)Crowngrants are construed most favourable to the Crown (including presumptions in respect of deceit and mistake); (b) certain prerogatives with respect to reserving rents -and the levying of distress -in respect of Crown grants; (c) a prerogative -in respect of Crown leases -to re-enter on default without having to make prior demand on the lessee; (d) the presumption of a Crown grant; (e) the Crown is not bound to offer an acquittance (or receipt) on the discharge of a debt; (f) the Crown is not bound by legal fictions; (g) the Crown is not bound by estoppel by deed.However, the Crown is prohibited from making certain forms of grant.35TheCrown favoured retainers by granting to them: (a) counties palatine (those of Chester, Durham and Lancaster still exist); (b) duchies (those of Lancaster and Cornwall still exist); (c) grand sarjeanties; (d) petty sarjeanties; (e) honours. 36Crown prerogatives to: (a) impress subjects for the navy; (b) issue letters of reprisal and marque; (c) issue letters of safe conduct; (d) prohibit subjects from leaving the realm; (e) order subjects to return to the realm; (f) dig for saltpetre (for gunpowder). 37Crown prerogatives to: (a) create counties corporate and confer the status of a: (i) borough; (ii) royal borough; (iii) royal county; (iv) royal town; (v) city.Also, (b) to create corporations.
Comyns, n 6, Prerogative, D 29 'The king may grant such commissions as are warranted, or allowed, by the common law, or by act of parliament.Commissions are general, as to persons, crimes etc as a general commission of oyer and terminer.[nowobsolete].Or special, when confined to particular persons, offence, or place…But the king cannot grant a commission not usual, nor allowed by act of parliament.'40Ibid,D28'Theking, by his prerogative, may make what courts for the administration of the common law, and in what places, he pleases.But the king cannot erect a court of chancery, or conscience; for the common law is the inheritance of the subject…So, the erection of a new court, with a new jurisdiction, cannot be without an act of parliament.And if it be erected, the jurisdiction ought to be expressed; for nothing omitted shall be within such jurisdiction.So the king cannot grant to a court, that it may proceed according to the civil law.Nor can, [the king] by charter or commission etc alter the common law.' Coke, n 7, vol 4, p 86 'In a premunire between John Perrot plaintiff, and TMHW and others defendants,[26 & 27 Eliz, i.e. 1584]it was resolved by Sir Christopher Wray chief justice, and the court of king's bench, that the queen[Elizabeth I, 1558-1603]could not raise a court of equity by her letters patents, and that there could be no court of equity but by act of parliament, or by prescription time out of mind of man'.See also pp 213, 242.See also Rolle, n 5, vol 2, p 164, line 25.41Bacon, n 6, vol 5, p 579, Prerogative F1 'The king cannot grant to any to hold a court of equity, because this is in derogation of the common law, and the chancery in Chester and Durham are incidents to a county palatine which had jura regalía.' [the chancery courts of Chester and Durham no longer exist, see Halsbury, n 1, para 307].See also W Forsyth, Cases and Opinions on Constitutional Law (London, Stevens & Haynes, 1869), pp 169-72 (Opinion of the Attorney General and Solicitor General in 1738 on the erection of a Court of Exchequer in the Colonies, Opinion of the Attorney General in 1749 on the king's power to erect Courts of Justice in Newfoundland, Opinion of the Attorney General in 1750 that the sovereign could not grant power to establish a Criminal Court in Newfoundland but under the Great Seal).See, in particular, pp 186-7. 42oo PCCNS 115 (16 ER 43).Heuston, n 11, p 68 'she [the Queen] may not establish courts to administer any but the common law and if she does so she may find that Parliament refuses to provide funds necessary to pay the stipends of any judges whom she may appoint.' Bradley, n 1, p 249 'The Crown can no longer by the prerogative create courts to administer any system of law other than the common law.See also Sunkin, n 12, p 345. Hale, n 10, p 183 'He [the king] cannot erect an arbitrary judicatory or court of equity' Also, p 184. See also Holdsworth, n 9, vol 10, pp 360, 414 (the Crown can erect only courts which possess a common law jurisdiction) and Amos, n 12, p 117.

Withdrawing Cases from the Court. The
case of Brownlow v Cox & Michil (1615)held that the sovereign could not withdraw matters of State from the cognizance of the courts; 64 

(c) Sovereign -Court Procedure
71At p240.Magna Carta, c 11 (1297 version, repealed in 1879 100Bill of Rights 1688 'the raising and keeping a standing army within this kingdom in time of peace unless it be with the consent of Parliament is against law.' 101 Act of Settlement 1700 (judicial tenure declared to be during good behaviour).
102See n 22.103S Sedley, The Sound of Silence: Constitutional Law without aConstitution (1994)110 LQR 270 at p 289 'it is not inexorable in a constitutional monarchy that the monarch cannot be given a parking ticket like the rest of us.' Sunkin, n 12, p 345 'in a constitutional monarchy perhaps there is no reason why the sovereign should be free to break the criminal law.' 104 If the sovereign was in and out of court she would be unable to perform her duties.105SeeGSMcBain,Modernising the Monarchy in Legal Terms -Part 4. (2012) KLJ, vol 23, 285-311.106Halsbury,n 1, vol 12(1) para 374 'The Crown may not grant away the jewels of the Crown, which are heirlooms and as such do not pass to the executor.'When the wife of Charles I (1625-49) sold various Crown jewels in Holland, Parliament held that it was 'not in the king's 114power to dispose the jewels of the Crown.' See Edward, Earl of Clarendon, The History of the Rebellion and Civil Wars in England (Oxford, Clarendon Press, 1827), vol 2, p 905.Also, pp 772 & 945-6.Ibid, p 302. Chitty, n 10, p 376 'The king's goods are also exempt from various liabilities, which affect the personality of his subjects.Even if a subject succeed in a petition against the king, his majesty's goods are not liable to be taken in execution.' 110See n 79.The Stuarts were notoriously bad at settling debts.However, one would assume that -from the time of Queen Victoria 107Anon (1456) Jenk 83 (145 ER 59).The case states 'The king had judgment to have his jewels; the defendant was fined and imprisoned…' See alsoMcBain, n 105,McBain, n 105, p 304.109 The highpoint is really a dictum of Lord Ellenborough in Morris v Burdett (1813) 2 M & S 212 (105 ER 361 (the case concerned a person made a candidate MP for Westminster without his consent).Per Lord Ellenborough at p 218, 'it should seem that in every case where a person is called upon to perform a public duty, he is liable to be punished for refusing to perform it.To instance in one particular only, a sarjeant at law is liable to punishment, for not taking upon himself that degree after being called thereto by the king's writ'.See also Coke, n 7, vol 2, p 214 (various barristers charged to become sarjeants by Parliament in 1418).Also, Viner, n 6, vol 16, p 572.
127This is no longer the case.128Chitty,n 10, pp 18-9.129TR679(99ER1317) it was held that a younger brother of the corporation of Trinity House was not exempt from serving the office of headborough (i.e. a local policemen, such no longer exist).It was also held that the Crown could grant exemptions, provided a sufficient number of persons were left to serve.132TradeUnion and Labour Relations (Consolidation) Act 1992, s 236 'No court shall, whether by way of -(a) an order for specific implement of a contract or employment, or (b) an injunction to interdict restraining a breach or threatened breach of such a contract, compel an employee to do any work or attend at any place for the doing of any work.'WORussell,On Crime (Stevens, London, 12th ed, 1964), p 372 (published in 1964) 'Indictments for this offence have not been presented for many years, and the existing precedents appear to apply only to parochial or corporate offices filled by election, except one, which relates to the refusal of a sheriff to take up his office or Further, the sovereign invariably went into battle with his troops -this physical evidence of martial sovereignty only ending with George II (1727-60) who fought at Dettingen in 1743, some 270 years ago.138Although this prerogative may not have been stated -as such -in the earliest legal texts, commencing with Glanvill's Treatise on the Laws and Customs of the Realm c. 1189 139 it was enunciated by Sir Thomas Smith, in his De Republica Anglorum, written c.1562-5 140 and Coke (in his work published in 1641) stated : 136FCT Tudsbery, Prerogative in Time ofWar (1916)Law Quarterly Review, vol 32, p 384 'The defence of the realm has by our constitution been entrusted to the Crown, and from the time of the Norman Conquest onwards the military forces in the United Kingdom have always been maintained by the Crown as the authority responsible for the defence of the kingdom.' 137 That said, early collections of Anglo-Saxon laws do not specifically advert to this.See, for example, AJ Robertson, The Laws of the Kings of England from Edmund to Henry I (Cambridge UP, 1925) and FL Attenborough, The Laws of the Earliest English Kings(New York,  Russell & Russell, 1963). 147and wholly to the King, and not to the subject, as appeareth in 19 Ed 4.4 fo 6.This is a reference to YB 19 Edw 4 pl 4 fo 6ª (1480), see Seipp Index no 1480.004(see n 60 for Index).In this case, Brooke, n 5, Denizen reports Bryan CJCP stating 'si touts d engliterre voient fayre guerre ove le roy de Denmark, & le roy ne voet a ceo assenter, ceo n est guerre.' which Chitty, n 10, p 44 translates as 'if all the people of England would make war with the king of Denmark, and our king will not consent to it, this is not war.' 142 Hale, n 60, vol 1, p 159.As to peace, Hale distinguished between temporary and permanent peace.Today such categorisation is not necessary.Ibid, pp 159-60.See also M Hale, Of Sovereign Power (reprinted in Holdsworth, n 9, vol 5, p 508 'He has the only power of making peace and declaring war.' (spelling modernised).
138The last time a sovereign led his troops into battle was George II (1727-60) in 1743 at the battle of Dettingen.He is also said to have told Sir Robert Walpole, his prime minister, in 1737, 'I will order my army as I see fit.' See Lord Hervey, Memoirs of the Reign of King GeorgeII  (ed.Sedgwick, 1931), p 771 139 Glanvill (ed GDG Hall), The Treatise on the Laws and Customs of the Realm of England(Nelson, 1965).140TSmith,DeRepublicaAnglorum,(edDewar,CUP,2009),p85'themonarch…hasabsolutely in his power the authority of war and peace, to defy what prince it shall please him, and to bid him war, and again to reconcile himself and enter into league or truce with him at his pleasure or the advice only of his privy council.' (spelling modernized).141Coke,n7,vol3,p9.He cited A Fitzherbert, New Natura Brevium (written in 1554), 113a, 'the King of right ought to keep and defend his kingdom…against enemies that it be not…wasted, and to provide remedy for the same.' See also Calvin's Case (1608) 7 Co Rep 1ª (77 ER 377) at 25b 'Wars do make aliens enemies, and bellum indicere [to make war] belong only143Blackstone quotes Samuel von Pufendorf (1632-94), Of the Law of Nature and Nations (De Jure Naturae et Gentium, 1625), f l 8 c 6 s 8.144Ibid, n 8, vol 1, p 249.He continues 'Whatever hostilities therefore may be committed by private citizens, the state ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt.'145Chitty,n10,p45.146Blackstone, n 8, vol 1, p 245 'What is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king's concurrence is the act only of private men.And so far is this point carried by our law, that it hath been held, that should all the subjects of England make war with a king in league with the king of England, without the royal assent, such war is no breach of the league'.He quoted Coke, n 7, vol 4, p 152 which referred to the statement of Bryan (see n 141).147Chitty,n 10, p 45 cited Hagedorn v Bell 1 M & S 449 (105 ER 168) which held that -although a State might be in the military possession Coke stated that such legislation was 'but declarations of the ancient law of England.' (spelling modernised).See alsoHoldsworth, n 9, vol 10, p 377 and Bowyer, n 11, pp 662-3.Finch, n 69, p 56 'He [the sovereign]may command his subjects to go out of the realm in war.' See alsoViner, n 6, vol 16, p 568.  159Although individual magnates did seek to temper the warlike ambitions of persons like Edward I (1272-1307), Edward III (1327-77) or Henry VIII (1509-47) they invariably courted royal displeasure.Coke, n 7, vol 2, p 528 admitted as much when he stated 'here may be observed, that when any ancient law or custom of parliament is broken, and the crown possessed of precedent, how difficult a thing it is to restore the subject again to his former freedom and safety.'(spellingmodernised)160Summarised in McBain, n 58, p 16.161The Crown lost Calais in 1558.However, it lost many French possessions early on.For example, King John (1199-1216) lost Normandy and Anjou to France in 1204 and Aquitaine was confiscated in 1337 (precipitating the 100 Years War, 1337-1453).162In1618, the Thirty Years' War (1618-48) broke out.In 1620, James I's protestant son-in-law, Frederick V, Elector Palatine (1596-1632) was driven from Bohemia by the catholic emperor Ferdinand II.In 16201, James called a Parliament to finance a military expedition to support his son-in-law.The Commons granted inadequate subsides to finance any serious expedition in aid of Frederick, as well as made a Protestation to the King of 18th December 1621 which James tore out of the Journals of Parliament with his own hand.See Tanner, n 13, pp 47-9.See also Keith, n 13, p 59.
163In the reign of Charles I (1625-49), in May 1625, some 10,000 soldiers were levied to be employed in the service of the Elector Palatine (see n 162).Parliament granted inadequate supplies and subsequent commissions of martial law issued by Charles led, in part, to the Petition of Right 1627.See McBain, n 58, p 29.In 1627-8, three naval expeditions were made to France, to La Rochelle, to encourage a major rebellion there, as part of the Thirty YearsWar (1618-48).They all failed, in part, because Parliament refused to grant adequate supplies.See ' See alsoMcBain, n 58, p 22.  165Although military tenure was abolished in 1660, Charles II retained a standing army of 5,000 men.SeeMcBain, n 58, p 21. Keith, n 13, p  341 'In 1624 the Commons insisted on securing effective control over the funds they provided for the war…Both Charles I and Charles II had difficulty with Parliament on war issues.' 166s II increased the size of the army to 15-20,000 men after the Monmouth rebellion of June-July 1685.E Samuel, An Historical Account of the British Army (London, W Clowes, 1816), p 168 'the military part of the feudal policy was formally abolished…at the Restoration [1660]; but the successive kings of England uninterruptedly exercised the right of commanding and legislating for the army, to the period of the Revolution[1668].' See also McBain, n 58, p 22.167Samuel, 166, p 149 'The declaration…made the parliament, in effect, a constituent power in the creation of the army; which, thenceforward, could not look to the Crown, as in foregoing seasons, as the sole author of its being.'See also McBain, n 58, p 22 and Chitty, n 10, p 8. Anson, n 12, vol 2, pt 1, pp 46-7 'The legislation of the reign of William III [1689-1702] had done two things in respect of the royal prerogative.It had defined the legal rights of the Crown, and it had taken from the Crown the means of controlling the interpretation of those rights…The first of these objects was attained when Parliament limited the king's life revenue to such sum as would barely enable him to conduct the business of government; when it legalized the standing army, and granted supplies for the national armed force every year, and for no more than a year.' Bradley, n 1, p 251 'The Bill of Rights 1689 prohibited the keeping of a standing army within the realm in time of peace without the consent of Parliament; thus the authority of Parliament is required for the maintenance of the army, the Royal Air Force and other forces serving on land.It has been pointed out that while the army and the RAF are now governed by statute 'the Royal Navy is still maintained by virtue of the prerogative'.
170Bradley, n 1, p 248.Bowyer (writing in 1841), n 11, p 215 'though the Crown has the power to declare war without the concurrence of the lords or commons, yet war cannot be carried on unless parliament will furnish the means.'171Anson,n 11, vol 2, pt 1, p 136. Cf.Maitland, n 13, pp 423-4 (writing in 1908)'the prerogative of making war and peace.This power…belongs to the king.Without the consent of parliament he can direct the invasion of a foreign country.Of course, Parliament has a certain check on this power.It might refuse to vote the necessary supplies.What is more to the purpose, it insists on knowing from the king's ministers what are the relations between the king and foreign governments, on having diplomatic correspondence laid before it, and so forth.
Thus, today, martial law could apply, in any case, only in war time and where the courts are either closed or incapable of effectively operating.252However,thissituationisnowcoveredbytheCivilContingencies Act 2004 which precludes the submission of civilians to military tribunals.Thus, the rationale -and justification -for martial law has gone and, not having applied in the UK since, at least 1688, 253 it is obsolete.It should be abolished.If martial law was ever required in the future (that is, the need to subject civilians to military law) then it should be effected by legislation;  Billet.The Crown had a prerogative to be able to billet army and naval personnel on the general public and in common inns.The Petition of Right 1627, s 8 (still extant) sought to prohibit the former.However, this prerogative is unnecessary and should be abolished since the power to billet lies with the government (Ministry of Defence) and Parliament.Provisions empowering the proper authorities of the 247 See McBain, n 23, pp 26-32.See, for example, the Constitutions of Clarendon 1166 (rep).It provided that archbishops, bishops and priests were not permitted to leave the realm without the sovereign's permission.It is likely this prohibition existed at common law prior to the Constitutions.Henry II razed three castles of the bishop of Winchester in 1155 on his quitting the realm without licence, see Roger of Wendover, Flowers of History (trans JA Giles, London, Henry G Bohn, 1849), vol 1, p 528. 248 Ibid, pp 33-5.These prerogatives can only apply to subjects.See Holdsworth, n 9, vol 6, p 54, n 10 quoting Whitelocke in 2 ST 514 in 1610 founding the prerogative to prohibit on the 'common good of the realm' See also Bowyer, n 11, pp 233-4 and Finch, n 69, pp 76-7 'For every man is bound of common right to defend the king and the realm.'Itmaybenotedthatregulationspassedunder the Civil Contingencies Act 2004 cannot, see s 22 (3) (d) 'prohibit, or enable the prohibition of, movement to or from a specified place' or (e) 'require, or enable the requirement of, movement to or from a specified place.'SeealsoDeSmith&Brazier,n13,p 136. 249 See Holdsworth, n 9, vol 6, p 305. 250 King's Prerogative in Saltpetre (1606) 12 Co Rep12 (77 ER 1294).The basis that it was for the defence of the realm could be used to assert a right of the Crown to dig on the land of a subject for whatever reason if they might be able to assert that it was required for the defence of the realm.See alsoA -G v De Keyser's Royal Hotel [1920]AC 508 at p 571 per Lord Parmoor 'The Saltpetre Case was decided in 1606, at a time when the claim to act by royal prerogative was carried to an extreme length…The saltpetre was taken under the right of purveyance, and payment was made…Purveyances were abolished in 1660 by 12 Car 2 c 4[rep].The volume of extracts from public records made for the purposes of this case by the record agent contains warrants for the searching of saltpetre, but in every case on the payment of rent or compensation.' 251e McBain, n 23.See alsoKeir & Lawson, n 12, pp 174-9, 217-50 (however, this analysis -given in 1979-does not consider the Civil Contingencies Act 2004; nor contains a full review of early law).There seems little doubt that, originally, the power of the sovereign and supreme military commander, in battle was modelled on Roman law.E Gibbon, The History of the Decline and Fall of the Roman Empire (ed W Smith, London, John Murray, 1855), p 109 'The most sacred rights of freedom, confirmed by the Porcian and Sempronian laws, were suspended by the military engagement.In his camp the general exercised an absolute power of life and death; his jurisdiction was not confirmed by any forms of trial or rules of proceeding, and the execution of the sentence was immediate and without appeal.'See also Clode, For a useful statement as to the nature of martial law by 1940, see AB Keith, The Constitution of England from Queen Victoria to George VI(Macmillan & Co, London, 1940), vol 2, pp 389-93.regularforces(or of the regular air force) to issue billeting requisitions are contained in the Army Act 1955 and the Air Force Act 1955.254Inconclusion,variousobsoleteCrownprerogatives of a military nature should be abolished, viz. to (i) impress subjects for the navy; (ii) issue letters of reprisal and marque; (iii) issue letters of safe conduct; (iv) prohibit subjects from leaving the realm; (v) order subjects to return to the realm; (vi) dig for saltpetre (for gunpowder); (vii) impose martial law.Without a permission (licence) from the sovereign no subject can build a military castle or fortress.Coke stated: no subject can build a castle or house of strength imbattled, etc. or other fortress defensible...without the licence of the king, for the danger which might ensue, if every man at his pleasure might do it.And they be called imbattlements, because they are defences against battles in assaults.255Thisprohibition is very old since Britton (c.1290) states: let it be inquired what persons have built castles or fortlets or houses of stone, crenelated and defensible; and let those who have so done be summoned to come and answer, and show if they have any license from us or our ancestors, for erecting or repairing such fortlets, and if they cannot produce any such license, let them be taken into our hand, either to be held by us or pulled down, according to our pleasure.256