Royal Prerogative Research Articles

Bavaria: Munich

The great events which have recently taken place in France have excited the interest of this Government and Court, as much as they appear to have done all parts of Europe.There was in the beginning a great display of popular feeling in the towns of Munich and Augsburg in favour of the insurrection of the people of France against the late overstrained exercise of the Royal Prerogative in that Country, so much so that His Bavarian Majesty's attention was drawn by some of his Courtiers near his person to this sudden ebulition of political sentiment, with a view to induce him to take measures for its suppression.

Carnival in Venice or Protest in Paris? Louis XIV and the Politics of Subversion at the Paris Opéra

Abstract After Louis XTVs banishment of the Comédie-Italienne in 1697, its costumes and masks became increasingly fashionable among a public disenchanted with absolutist politics. This article reveals the manner in which the plots, characters, and subversive satire of the Comédie-Italienne inform two ballets of André Campra, Le Carnaval de Venise (1699) and Les Fêêtes vénitiennes (1710). Following the satiric strategies used by the Comédie-Italienne, Campra and his librettists employ an exotic Venetian setting as a mask for the libertine entertainments of a French public sphere. Reversing the ideology of Louis XIVs courtly fêêtes, they deconstruct his official image in three ways: through a literary web of allusion, satire, and parody; through an Italianate musical style that serves to undermine the French language of absolutism; and through the thematic celebration of a new public audience as the subversive heir to the royal prerogative of pleasure.

Against Sovereign Immunity

state sovereign immunity. These decisions provide an important occasion for a reconsideration of the entire doctrine of sovereign immunity. This article argues that sovereign immunity is an anachronistic concept, derived from longdiscredited royal prerogatives, and that it is inconsistent with basic principles of the American legal system. Sovereign immunity is justified neither by history nor, more importantly, by functional considerations. Sovereign immunity is inconsistent with fundamental constitutional requirements such as the supremacy of the Constitution and due process of law. This article concludes that sovereign immunity, for government at all levels, should be eliminated by the Supreme Court.

The Scottish Parliament and the War for the Three Kingdoms, 1639–1651

SUMMARY As warfare raged throughout the three kingdoms of the British Isles in the bloody 1640s, the Scottish Parliament played a proactive role in the articulation of both policies and structures related to warfare during this period. As a single-chamber institution of an independent kingdom, its powers were significantly enhanced by the enactment of a constitutional settlement in 1640–41 which weakened the royal prerogative of Charles I as King of Scotland. From 1640, the Estates of the Scottish Parliament consisted of the nobility, the commissioners for the shires and commissioners for the burghs. Clerical representation was abolished in 1640, in line with the Presbyterian distinction between the Church and the State as separate spheres. Parliament was under the political control of the Covenanting movement which had emerged in the late 1630s as an organized movement of opposition against the administration and policies of Charles I in Scotland. Throughout these years, issues relating to warfare were of significant importance to the Covenanting movement and its military commitments on a British basis. The movement used the institution of the Scottish Parliament to secure enactment of its demands and reforms against Charles I's administration of Scotland. The demand for ‘free’ parliaments or parliaments held without royal interference, as had happened in the 1633 Parliament, was included in the 1638 National Covenant, incorporating many of the Covenanters' demands. Covenanting Members of Parliaments also dealt with a variety of issues related to warfare and new structures, innovations and policies were devised to deal with these issues.

Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative

Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative

« It's a Mystery » : the Royal Prerogative of Mercy in England, Canada and South Africa

This essay asks the question : on what grounds were murderers reprieved in England, Canada and South Africa in the nineteenth and twentieth centuries ? It weighs up three interpretations. Radzinowicz and Hood argue that mercy decisions were made on the basis of the law. Murders committed with the two elements of deliberation and planning were punished by death. Roger Chadwick argues that execution depended on the social and moral meaning of a murder and not the legal definition of an intent to kill. And, third, Carolyn Strange argues that mercy in Canada was awarded arbitrarily. Hanging was a form of lottery. A detailed examination of judicial and administrative mercy reports in South Africa reveals that decisions were made on the basis of a legal definition of intent, but that the finding of intent was always determined by the social and moral meaning of a murder. To illustrate this point three similar domestic and intra-racial South African murders are examined in detail.

La regulació de la navegació comercial per mar en temps de guerra. L 'Ordinació de Pere III de 1356

The royal ordinances that regulated the commercial sea navigation, published in war times, both example of the commercial activity during these exceptional periods and prolongation of the organization of the war itself, were subject, both in its dictation and in its fulfillment, to a series of determining factors. These determining factors, related to the royal prerogatives but also to the rights and the necessities of the ones to whom its fulfillments will be demanded, will lead to constant modifications and adaptation amendments with political, social and economical implications. The Ordinance of 1356, up to now unpublished, and its attached documentation are a proof of that.

Parliament and defence: A summary of parliament's role in scrutinising and controlling defence policy and the armed forces

Modernisation of Parliamentary Procedures are currently being undertaken after the House of Commons established in June 1997 a Committee to ‘consider how practises and procedures of the House should be modernised and to make recommendations thereon’. In the light of these changes Tom Dodd here analyses the role of Parliament in scrutinising and controlling defence policy. He analyses the level of involvement of Parliament in controlling the Army since the English Civil War. The present procedures concerning defence issues date from the 1950s. He argues that although parliamentary powers are in theory strongest in the sphere of defence expenditure; they are weakened by the practice of approving the estimates as a whole, rather than voting on individual blocks of expenditures. The overall responsibility for defence still remains a Royal Prerogative and Parliament has only limited access to information even though the amount is increasing, mainly because of an increasingly detailed annual defence White Paper from the Government. Dodd concludes that greater openness in defence matters may not only allow Parliament to exercise its scrutiny, but may also force Government to anticipate such scrutiny.

Madrid y Roma en la segunda mitad del siglo XVIII. La lucha contra las "usurpaciones" romanas

Por medio del estudio de la correspondencia confidencial del Secretario de Estado de Nápoles, Bernardo Tanucci, con los ministros españoles Ricardo Wall y Jerónimo Grimaldi, entre 1759 y 1776, se analizan los planteamientos regalistas de los ministros de la Casa de Borbón, basados en la defensa de la jurisdicción episcopal y los ideales de la Iglesia primitiva, y opuestos a los de la Curia romana y a los de la Compañía de Jesús.

Un antijesuita en la mitra de Manila: Basilio Sancho de Santa Justa y Rufina

Basilio Sancho encontró durante su pontificado en la diócesis de Manila (1767-1787) múltiples dificultades. En los primeros años, entre 1767 y 1770, el Metropolitano se enfrentó a los Provinciales de las distintas religiones con motivo de la visita pastoral, procuró acelerar al máximo la expulsión de los jesuitas isleños, hacia los que sentía gran aversión, y se opuso abiertamente al gobernador Raón y al comisionado Basaraz, a quienes acusó de negligentes en su labor política. En el año 1770, el extrañamiento de la Compañía de Jesús en enero, la llegada a Manila en julio del nuevo gobernador Simón de Anda -al igual que don Basilio inflexible regalista-, y la caída en desgracia de Raón y Basaraz en septiembre ofrecieron un breve, pero reparador respiro, al enérgico y firme Prelado.

Las intervenciones reales en los pleitos del Real Patronato

Desde el Concilio de Trento, los monarcas españoles se consideraron protectores de la Iglesia nacional. Este sentimiento se acentuó con el advenimiento de la dinastía borbónica, en directa conexión con el auge de las posturas regalistas. En el presente artículo se analiza una de las principales manifestaciones de esa labor de protección: las intervenciones de Felipe V, Fernando VI y Carlos III en los pleitos tocantes al Real Patronato, la principal de las regalías de la Corona española.

Treasure Trove: dumb enchantment or new law?

Successive UK Governments have persisted in maintaining the archaic nonsense of Treasure Trove. This paper demonstrates the unsuitability of a medieval Royal Prerogative for protecting our archaeological heritage, and goes on to outline a more effective system. This rejects the principle of animus revertendi and concentrates on the protection of portable antiquities in its own right. It advocates a system of statutory reporting and certification, coupled with a policy of acquisition in the public interest.

The Royal Prerogative and Equality Rights: Can Medieval Classism Coexist with Section 15 of the Charter

The author considers whether the prerogative priority of the Crown in the collection of debts of equal degree is inconsistent with the guarantee of equality found in section 15 of the Canadian Charter of Rights and Freedoms "Charter." He concludes that the Crown prerogative of priority is not consistent with section 15 and that such prerogative is not a reasonable limit in a free and democratic society under section 1 of the Charter. The author first investigates the origins of the Crown prerogative in general and then the prerogative of priority in particular. The author then proceeds to apply the Charter to the prerogative of priority. The author submits that the purpose of the prerogative priority is to recognize the medieval concept of the personal pre-eminence and superiority of the Queen over her subjects and that such a purpose is inimical to the values promoted by the guarantee of equality found in section 15 of the Charter.

Royal Prerogative?

Royal Prerogative?

Royal Prerogative?

Royal Prerogative?

The King's Peace, the Royal Prerogative and Public Order: the Roots and Early Development of Binding Over Powers

One of the most useful and most-used powers that criminal courts1 have is the power to bind people over to be of good behaviour or to keep the peace. Magistrates form the view that a person (“the principal”), who might be a person of previously unblemished reputation, is likely to breach the peace or commit criminal offences. They require him to enter into a recognisance, in form a voluntary covenant or agreement, to keep the peace, or to be of good behaviour, sometimes in a set sum (say £100) for a set period. If he refuses, he can be imprisoned, regardless of the seriousness or triviality, lawfulness or unlawfulness, of the behaviour that originally brought him to court, perhaps as a witness. He may also be required to find sureties, other people who are prepared to promise that they will forfeit a sum of money (say £50 each) if their principal fails to behave. If the principal misbehaves, debts to the Crown arise of £100 from the principal and £50 from each surety. The mechanics are therefore rather similar to bail. Binding over operates today in two ways. First, it can be used after conviction for an offence as an alternative to sentence. The accused enters into a recognisance to keep the peace or be of good behaviour. If he breaches his undertaking, he can be summoned back to court to be sentenced for the original offence. Secondly, it can be used after conviction for an offence as an alternative to sentence. The accused enters into a recognisance to keep the peace or be of good behaviour. If he breaches his undertaking, he can be summoned back to court to be sentenced for the original offence. Secondly, it can be used as a preventive measure to deal with people who are before the court but have not been convicted. This latter use provides a flexible way to deal with cases arising out of disputes between neighbours and minor public order problems without the need for a full hearing. It saves time and money.

The Quality of Mercy: Exercise of the Royal Prerogative in Canada

Cette etude analyse les d6cisions de clemence, portant sur des cas de meurtriers, prises par le Cabinet Federal Canadien au cours de la pdriode 1926 a 1957. En l'absence de jusitifications formelles des decisions individuelles, une analyse statistique probit/logit des donn6es d'archives est utilisee afin de d6couvrir la logique du Cabinet. Les resultats principaux sont: (1) les decisions de clemence du Cabinet ne sont pas generees par un processus aleatoire; (2) les facteurs extra-legaux et de principe sont des facteurs pertinents; et (3) les autres facteurs incluent le sexe, l'ethnie et le statut professionnel du meurtrier de meme que l'interaction de la race de l'offenseur et de la victime. Le modele empirique est utilis6 afin de generer et de comparer les risques d'executions pour l'individu coupable d'un crime capital sous une vari6et de circonstances.

Clemency in economic and retributive models of punishment

The Royal Prerogative of Mercy is an ancient right traditionally bestowed upon sovereigns, and vested in the common law. In Canada, this right as applied to murderers was preserved in the criminal code. The code did not specify criteria under which clemency might be granted, nor were the authorities required to explain or defend its use. Prior to the last legal executions in Canada (1962), it appears that the Royal Prerogative was utilized on a case-by-case basis; between 1963 and the de jure end of capital punishment in Canada in 1976, it was used by the various governments to impose a de facto policy of abolition.’ The primary purpose of this study is to examine the historical use in Canada of the Royal Prerogative in the context of different theories of punishment. Two theories in particular invite interest: retributive theory, and the economic theory of punishment. According to John Rawls,’ retribution rests on the simple proposition that wrong-doing merits punishment. Two principal tenets are that the offender should suffer in proportion to his guilt, and that the severity of the punishment depends upon the depravity of the act. The costs imposed upon the convicted offender should approximate the direct costs of the crime. The intention of providing a deterrent is not a purpose of punishment in retributive theory per se. Thus a justification for capital punishment is provided for those who do not believe, or are not sure, that a deterrent effect exists.’ The economic theory of punishment is one part of the economic model of crime. Society is assumed to attempt to minimize the social cost of crime, which includes the direct harm of offenses, plus the indirect costs which include the expense of a protection system (police, prisons, etc.). Crime is viewed as an externality-generating activity, and, consistent with the economic theory of externalities, the state attempts to induce the offender to internalize the externality by threatening to impose a cost. Central to the model is an incentive response, i.e., the assumption that some prospective offenders might be deterred from their felonious enterprises by an appropriate increase in the perceived expected cost of punishment. The economic model, then, is essentially forward-looking, whereas the retributive model, which examines the particulars of individual crimes to determine moral culpability, is backward-looking. These two views of punishment suggest some differences in the organization of society’s legal system, as well as in its actual administration. With respect to capital punishment, an ungraded definition of murder with a centralized commutation body is particularly desirable from the economic standpoint. This gives the authorities maximum flexibility to respond to a change in some exogenous shock to the system. To be more concrete, suppose that the optimal response is perceived to be an increase in the proportion of murderers who are executed.4

Judicial Review of the Royal Prerogative in Canada

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Kings, Lords and Liberties in the March of Wales, 1066–1272

The lords of the March of Wales enjoyed a remarkable position within the dominions ruled by the kings of England in the thirteenth century. They were subjects of the king and held their lands, in Wales as in England, of him as feudal tenants; but within their Marcher lordships they claimed and exercised a measure of authority unsurpassed elsewhere within the king's dominions. The nature of that authority was not the subject of a contemporary treatise or of aquo warrantoinquiry; but that it was of the most comprehensive seems evident enough. Within his lordship the Marcher lord was governor and universal landlord; only the lands and the affairs of the church lay beyond his reach. Jurisdictionally his competence was equally wide. Contemporary lawyers characterized it curtly by referring to the March as an area in which the king's writ did not run. That was to express the point negatively and inadequately. The clerks of the royal chancery put it more clearly and positively later when they declared that a Marcher lord was to enjoy ‘all royal rights, prerogatives and customs belonging to royal lordships, and all royal courts and other jurisdictions, … an authentic seal for commissions, writs and warrants, and power of appointing justices to hold sessions in eyre and other sessions and courts’.