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.
Dr HV Evatt in his office at the United Nations, New York, 1949.
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.
Although variously a high court judge,
attorney-general, foreign minister, opposition leader and Chief Justice of NSW,
all Dr Evatt asked for on his gravestone was President
of the United Nations, noting his service as president of the general
assembly (1948-1949).
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.
