Prerogative (pronounced pri-rog-uh-tiv)
(1) An exclusive right, privilege, etc, exercised by virtue of rank, office, or the like; having a hereditary or official right or privilege.
(2) A right, privilege, etc, limited to a specific person or to persons of a particular category.
(3) A power, immunity, or the like restricted to a sovereign government or its representative.
(4) Characterized by lawless state actions (refers to the prerogative state)
(5) Precedence (obsolete except in the legal sense of the hierarchy of rights).
(6) A property, attribute or ability which gives one a superiority or advantage over others; an inherent (though not necessarily unique) advantage or privilege; a talent.
(7) In constitutional law, a right or power exclusive to a head of state (often derived from the original powers of a monarch) or their nominee exercising delegated authority, especially the powers to appoint or dismiss executive governments.
1350-1400: From the Anglo-Norman noun prerogatif, from the Old French prerogative, from the Latin praerogātīva (previous verdict; claim, privilege), noun use of the feminine singular of praerogātīvus (having first vote; privileged), in Anglo-Latin as prerogativa from late thirteenth century. The origin lay in a statute in the civil law of Ancient Roman which granted precedence to the tribus, centuria (an assembly of one-hundred voters who, by lot, voted first in the Roman comita). The law guaranteed them a praerogātīvus (chosen to vote first) derived from praerogere (ask before others). The construct of praerogere was prae (before) + rogare (to ask, ask a favor), apparently a figurative use of a primitive Indo-European verb meaning literally "to stretch out (the hand)" from the root reg- (move in a straight line). In Middle English, the meaning "an innate faculty or property which especially distinguishes someone or something" was added. The alternative spelling prærogative is long obsolete. Prerogative is a noun & adjective, prerogatived is an adjective and prerogatively is an adverb; the noun plural is prerogatives.
In English law, a court classified as “a prerogative court” was one through which the discretionary powers, privileges, and legal immunities reserved to the sovereign could be exercised. The best known of these courts was the Court of Exchequer, the Court of Chancery and the Court of the Star Chamber (the latter one of those institutions formed to rectify injustice but which was later the source of much; the Court of the Star Chamber may be used as a case-study explaining the phrase: “the road to hell is paved with good intentions”). In time, clashes between the prerogative courts and common law courts became something of a proxy-theatre in the contest between the king and parliament. The way that worked out was that the ancient (essentially personal) prerogative rights of the monarch weren’t abolished but rather exercised by parliament or institutions (including courts) to which the powers were delegated. Whether any prerogative power remains in the hands of the sovereign to be used in “extraordinary and reprehensible circumstances” remains a matter of debate. There were also ecclesiastical prerogative courts under the authority of the archbishops of Canterbury and York but they existed only to handle probate matters in cases where estates beyond a certain defined value were spread between the two dioceses but they also handled many wills of those who died in colonial or other overseas service. As part of the great reforms of the late nineteenth century undertaken in the Judicature Acts (1873-1899) the jurisdiction of the ecclesiastical prerogative moved to the common law courts, being finally vested in the Family Division of the High Court of Justice.
In English law, the still sometimes invoked prerogative writ (the best known of which were habeas corpus (from the Latin habeas corpus ad subjiciendum (usually translated as “bring up the body (ie the prisoner))), a demand a prisoner being held by an organ of the state be brought before a court to determine whether there was lawful authority for the detention) and mandamus (from the Latin mandāmus (we command)), an order issued by a higher court to compel or to direct a lower court or a government officer correctly to perform mandatory duties) was a class of six orders available to the crown for the purpose of directing the action of an organ of government (including courts, officials or statutory bodies). The name was derived from the authority these exercised being traceable ultimately to the discretionary prerogative & extraordinary power of the monarch and the principle remains in use in many common law jurisdictions which evolved from the old British Empire, notably those of the Raj of colonial India.
The woman's prerogative
For a man incautiously
to use the phrase “a woman's prerogative”, the risk would be “cancellation”
(or worse) although it’s probably still acceptable if there’s a layer of irony. The phrase is a clipping of the full: “it’s a woman’s
prerogative to change her mind”, the implication being women have
the right to change their minds or make decisions based on their own
preferences and need provide no explanation or justification. Wise men (and the pussy-whipped) accept this
without demur. It is of course a reflection
of a cultural stereotype and seems to have come into use in the mid-nineteenth
century, an era in which gender roles were more rigidly defined and women were thought
to be more capricious or whimsical in their actions. However, in law, the “woman's prerogative” was once enforceable, granting them rights not
available to men, a most unusual development in Western jurisprudence.
Well into the twentieth century, it was legal orthodoxy in common law jurisdictions for an offer of marriage to be enforceable under the rules of contract law. While courts didn’t go as far as ordering “specific performance” of the contract (ie forcing an unwilling party to marry someone), they would award damages on the basis of a “breach of promise”, provided it could be adduced that three of the four essential elements of a contract existed: (1) offer, (2) certainty of terms and (3) acceptance. The fourth component: (4) consideration (ie payment), wasn’t mentioned because it was assumed to be implicit in the nature of the exchange; a kind of “deferred payment” as it were. It was one of those rarities in common law where things operated wholly in favor of women in that they could sue a man who changed his mind while they were free to break-off an engagement without fear of legal consequences though there could be social and familial disapprobation. Throughout the English-speaking world, the breach of promise tort in marriage matters has almost wholly been abolished, remaining on the books in the a handful of US states (not all of which lie south of the Mason-Dixon Line) but even where it exists it’s now a rare action and one likely to succeed only in exceptional circumstances or where a particularly fragrant plaintiff manages to charm a particularly sympathetic judge.
The royal prerogative and the reserve
powers of the crown
The royal prerogative is the body of customary authority, privilege, and immunity and the means by which (some of) the executive powers of government are exercised in the governance of the state. These powers are recognized in common law (and in some civil law) jurisdictions are held to vest wholly in the sovereign alone, even if exercised through either appointees (of which governors, governors-general & viceroys are the best-known) constitutional government. In the narrowest sense of technical theory, the recognition of the personal powers of a sovereign exists in most common law systems where the concept is relevant but has long since mostly been reduced to legal fiction and in most constitutional monarchies, almost all individual prerogatives have been abolished by parliaments. Some republican heads of state also possess similar powers but they tend to be constitutionally defined and subject to checks and balances. A notable exception to this is a US president’s un-trammeled right to grant pardons to those convicted of offences under federal law and that’s interesting because it’s the only power in the US Constitution not subject to a check or balance. A US president thus personally continues to exercise a prerogative in a way a British monarch (or their appointees as governors & governors-general), from whom the power is derived, no longer can.
In Britain, prerogative powers were originally exercised by the monarch (at least in theory and the role of the Church needs also to be noted) acting alone but after the Magna Carta (1215, from the Medieval Latin Magna Carta Libertatum (Great Charter of Freedoms) which divided power among the ruling class, there had to be sought the consent of others and this ultimately became parliamentary consent granted to an executive (exercising powers derived from the absolute authority of the monarch) responsible to the parliament. This took centuries to evolve and eventually meant, in practical terms, the king got the money he needed for his wars and other ventures in exchange for the parliament getting his signature to pass the laws they wanted.
Watched by the courtiers Lord Mulgrave & Lord Morpeth, Lord Melbourne serves King William IV a blackbird pie (1836), lithograph with watercolour by John Doyle (1797-1868), Welcome Collection, London. The text is a re-arranged selection of lines from the eighteenth century English nursery rhyme “Sing a Song of Sixpence” and reads: “Sing a song of six pence a bag full of rye, four and twenty black birds baked in a pie, when the pie was opened, the birds began to sing, was not this a pretty dish to set before a king.” The blackbirds sing “Justice for Scotland!” and “No tithes!”, controversial issues of the age. Nineteenth century cartoonists were sometimes more harsh in their treatment of politicians and royalty.
In Australia, the royal prerogative is limited (but not defined) by the constitution and those powers which vest a monarch’s authority in a governor-general don’t alter the nature of the prerogative, only its detail; the prerogative is exercised by the governor-general but only on the advice of “their” ministers. The most obvious exception to this is the reserve power of the monarch (and there are those who doubt whether this still exists in the UK) to dismiss a government enjoying the confidence of the lower house of parliament. In the UK, it’s not been done since William IV (1765–1837; King of the United Kingdom 1830-1837) dismissed Lord Melbourne (1779–1848; Prime Minister of Great Britain 1834 & 1835–1841) in 1834 (some dispute that, saying it was more of a gentleman’s agreement and the last termination was actually that of Lord North (1732–1792; Prime Minister of Great Britain 1770-1782) by George III (1738–1820) King of Great Britain 1760-1820) in 1782) but Australia has seen two twentieth-century sackings; that in 1932 of NSW premier Jack Lang (1876–1975; Premier of New South Wales 1925-1927 & 1930-1932) by Governor Sir Philip Game (1876–1961; Governor of NSW 1930-1935) and, in 1975, when governor-general Sir John Kerr (1914–1991; Governor-General of Australia 1974-1977) sundered Gough Whitlam’s (1916–2014; Prime Minister of Australia 1972-1975) commission.
The 1975 business provoked much academic discussion of the reserve powers but the most lucid read remains Dr HV Evatt’s (1894–1965; ALP leader 1951-1960) book from decades earlier: The King and His Dominion Governors (1936). Evatt’s volume was published a hundred odd-years after William IV sacked Melbourne and is useful because in that century there had been more than a few disputes about reserve powers. Evatt’s central point was that the powers exist but proper rules by which they may be exercised are by no means clear. The legal power is vested in the governor as the representative of the monarch and when it may properly be used depends on usage and convention. It seems therefore scarcely possible to say confidently of any case when the Crown has intervened that its intervention was or was not correct for the only standard of correctness in each episode is its consistency with episodes of a similar character, none of which in themselves lay down any principle in law. Further, Evatt notes, in looking to precedent, support for almost any view can be found in the authorities. Lofty theoretical purity is also not helpful. The view the sovereign automatically acts in all matters in accordance with the advice of his ministers rests entirely upon assertion and, Evatt observed, the reserve powers are still, on occasion, properly exercisable and that the Sovereign or his representative may have to exercise a real discretion. Given that, it really might be impossible that the prerogative could be codified in a document which envisages all possible political or other circumstances. Evatt nevertheless argued the principles which should guide a sovereign should be defined and made clear by statute.
Nor is practical political reality all that much help, however satisfactory an outcome may prove. What the exercise of the reserve powers, both in 1932 and 1975, did was enable impasses described, however erroneously as constitutional crises to be resolved by an election, rather than other means. The result of an election however does not conclude the matter for the correctness of the sovereign's action is not measured by his success as a prophet, any post-facto endorsement by the electorate having not even an indirect bearing on the abstract question of constitutionality.
Evatt’s core argument therefore was reserve powers should be subject to the normal and natural process of analysis, definition and reduction to the rules of positive law, which, by 1936, had in some places been done. Evatt considered section 33 (10) of the Western Nigerian constitution which codified things thus: The Governor shall not remove the Premier from office unless it appears to him that the Premier no longer commands the support or a majority of the members of the House of Assembly. Other sections went on to detail the mechanisms of the exercise of the power, thereby attempting to do exactly what Evatt suggests. However, the Nigerian example cited by Evatt did not prove a solution because the exercise of the power under the constitution became in 1962 a matter of dispute and the case proceeded though the courts, finally ending up before the Privy Council as Adegbenro v. Akintola (1963 AC 614), an indication even the most explicit codification can remain something imperfect.
