Wikipedia

The Crown

This article is about the term referring to the state in some nations. For the television series, seeThe Crown(TV series).For other uses, seeCrown (disambiguation).

The Crownbroadly represents thestatein all its aspects within thejurisprudenceof theCommonwealth realmsand their subdivisions (such as theCrown Dependencies,overseas territories,provinces,orstates).[1]The term can be used to refer to the office of the monarch or the monarchy as institutions; to therule of law;or to the functions ofexecutive(the Crown-in-council),legislative(the Crown-in-parliament), andjudicial(the Crown on the bench) governance and thecivil service.[2]

A symbolic representation of the Crown, present on the symbols of many institutions in Commonwealth realms

The concept of the Crown as acorporation soledeveloped first in theKingdom of Englandas a separation of the physical crown and property of the kingdom from the person and personal property of the monarch. It spread through English and laterBritish colonisationand is now rooted in the legal lexicon of all 15 Commonwealth realms, their various dependencies, and states infree associationwith them. It is not to be confused with any physicalcrown,such as those of theBritish regalia.[3]

The term is also found in various expressions such asCrown land,which some countries refer to aspublic landorstate land;as well as in some offices, such asminister of the Crown,Crown attorney,andCrown prosecutor.

Definition

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The image ofSt Edward's Crownis included in thecoat of arms of New Zealand,and located atop theescutcheon,to symbolize theNew Zealand Crownas the institution from which all state authority flows.

The termthe Crowndoes not have a single definition. Legal scholars Maurice Sunkin and Sebastian Payne opined, "the nature of the Crown has been taken for granted, in part because it is fundamental and, in part, because many academics have no idea what the termthe Crownamounts to ".[4]Nicholas Browne-Wilkinsontheorised that the Crown is "an amorphous, abstract concept" and, thus, "impossible to define",[5]whileWilliam Wadestated the Crown "means simply the Queen".[6]

Warren J. Newman described the Crown is "a useful and convenient means of conveying, in a word, the compendious formal, executive and administrative powers and apparatus attendant upon the modern constitutional and monarchical state."[7]

Lord Simon of Glaisdalestated:[8]

The crown as an object is a piece of jewelled headgear under guard at theTower of London.But it symbolizes the powers of government which were formerly wielded by the wearer of the crown... The term "the Crown" is therefore used in constitutional law to denote the collection of such of those powers as remain extant (theroyal prerogative), together with such other powers as have been expressly conferred by statute on "the Crown".

Lord Diplocksuggested the Crown means "the government [and] all of the ministers and parliamentary secretaries under whose direction the administrative work of the government is carried out by the civil servants employed in the various government departments."[5]This interpretation was supported by section 8 of thePensions (Colonial Service) Act 1887(50 & 51 Vict.c. 13), which set the terms "permanent civil service of the state", "permanent civil service of Her Majesty" and "permanent civil service of the Crown" as having the same meaning.[9]

The Crown was first defined as an 'imperial' crown during the reign ofHenry VIIIin theEcclesiastical Appeals Act 1532which declared that 'this realm of England is an empire... governed by one Supreme Head and King having the dignity and royal estate of the imperial Crown of the same'.[10]InWilliam Blackstone's 1765Commentaries on the Laws of England,he explained that "the meaning therefore of the legislature, when it uses these terms ofempireandimperial,and applies them to the realm and crown of England, is only to assert that our king is equally sovereign and independent within these his dominions, as any emperor is in his empire; and owes no kind of subjection to any other potentate on earth. "[11]

Concept

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Rideau HallinOttawa,Ontario; the seat of theGovernor General of Canadaand a property of the Crown in Right of Canada
Balmoral CastleinAberdeenshire,Scotland, a privately owned property of Charles III and not property of the Crown

The concept of the Crown took form under thefeudal system.[12]Though not used this way in all countries that had this system, in England, all rights and privileges were ultimately bestowed by the ruler. Land, for instance, was granted by the Crown to lords in exchange for feudal services and they, in turn, granted the land to lesser lords. One exception to this was commonsocage:owners of land held as socage held it subject only to the crown. When such lands become ownerless, they are said toescheat;i.e. return to direct ownership of the Crown (Crown land).Bona vacantiais theroyal prerogativeby which unowned property, primarily unclaimed inheritances, becomes the property of the Crown.[a][13]

As such, the physical crown and the property belonging to successive monarchs in perpetuity came to be separated from the person of the monarch and his or her private property. After several centuries of the monarch personally exercising supreme legislative, executive, and judicial power, these functions decreased as parliaments, ministries, and courts grew through the 13th century.[14]The termthe Crownthen developed into a means by which to differentiate the monarch's official functions from his personal choices and actions.[15]Even within mediaeval England, there was thedoctrine of capacitiesseparating the person of the king from his actions in the capacity of monarch.[16]

When thekingdom of Englandmerged with those ofScotlandand Ireland,the concept extended into the legal lexicons of the United Kingdom and its dependencies and overseas territories and, eventually, all of the independentCommonwealth realms.There are, thus, now many distinct crowns, as a legal concept, "worn by" —or many different offices of monarch occupied by—one person assovereign(supreme monarch) of each country.[17]However,the Crowncan also mean the pan-national institution shared by all 15 Commonwealth realms.[15]

KingCharles III(wearing theImperial State Crown), the living embodiment of the state/crown in each of theCommonwealth realms

In each Commonwealth realm, the termthe Crown,at its broadest, now means thegovernmentor the polity known asthe state,while the sovereign in all realms is the livingembodimentof the state,[18]or symbolicpersonificationof the Crown.[b][32]The body of the reigning sovereign thus holds two distinct personas in constant coexistence, an ancient theory of the "King's two bodies" —the body natural (subject to infirmity and death) and the body politic (which never dies).[17]The Crown and the sovereign are "conceptually divisible but legally indivisible [...] The office cannot exist without the office-holder".[c][34]

The termsthe state,the Crown,[35]the Crown in Right of [jurisdiction],His Majesty the King in Right of [jurisdiction],[36]and similar, are all synonymous and the monarch'slegal personalityis sometimes referred to simply as the relevant jurisdiction's name.[25][37](In countries using systems of government derived from Romancivil law,the state is the equivalent concept.[38]) However, the termsthe sovereignormonarchandthe Crown,though related, have different meanings:The Crownincludes both the monarch and the government. The institution and powers of the Crown are formally vested in the king, but,conventionally,its functions are exercised in the sovereign's name byministers of the Crown[d]drawn from andresponsible tothe elected chamber ofparliament.[39]

Still, the king or queen is the employer of all government officials and staff (including theviceroys,judges, members of the armed forces, police officers, and parliamentarians),[e]the guardian of foster children (Crown wards), as well as the owner of all state lands (Crown land), buildings and equipment (Crown property),[41]state-owned companies (Crown corporations orCrown entities),[42]and the copyright for government publications (Crown copyright).[43]This is all in his or her position as sovereign, not as an individual; all such property is held by the Crown in perpetuity and cannot be sold by the sovereign without the properadvice and consentof his or her relevant ministers.

The mace of theParliament of Queensland,symbolising theQueensland Crown-in-Parliament

The Crown also represents the legal embodiment of executive,legislative,andjudicialgovernance. While the Crown's legal personality is usually regarded as acorporation sole,[44]it can, at least for some purposes, be described as acorporation aggregateheaded by the monarch.[45][46]Frederic William Maitlandargued the Crown is a corporation aggregate embracing the government and the "whole political community".[47]J.G. Allen preferred to view the Crown as a corporation sole; one office occupied by a single person, enduring "through generations of incumbents and, historically, lends coherence to a network of other institutions of a similar nature."[48]Canadian academic Philippe Lagassé found the crown "acts in various capacities, as such: crown-in-council (executive); crown-in-parliament (legislative); crown-in-court (judicial). It is also an artificial person and office as a corporation sole. At its most basic," the Crown "is, in the UK and other Commonwealth realms, what in most other countries is" the state "."[49]

Divisibility of the Crown

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Further information:Commonwealth realm § The Crown in the Commonwealth realms
Further information:Monarchy in the Canadian provinces

Historically, the Crown was considered to be indivisible.[50]Two judgments—Ex parte Indian Association of Alberta(EWCA,1982) andEx parte Quark(House of Lords,2005)—challenged that view. Today, it is considered separate in every country, province, state, or territory, regardless of its degree of independence, that has the shared monarch as part of the respective country's government; though, limitations on the power of the monarchin right ofeach territory vary according to relevant laws, thus making the difference between full sovereignty, semi-sovereignty, dependency, etc. The Lords of Appeal wrote, "the Queen is as much the Queen of New South Wales and Mauritius and other territories acknowledging her as head of state as she is of England and Wales, Scotland, Northern Ireland, or the United Kingdom."[51]

The Crown in each of the Commonwealth realms is a similar, but separate, legal concept. To distinguish the institution's role in one jurisdiction from its place in another, Commonwealth law employs the expressionthe Crownin Rightof [place];for example, the Crown in Right of the United Kingdom,[56]the Crown in Right of Canada, the Crown in Right of the Commonwealth of Australia, etc. Because both Canada and Australia are federations, there are also crowns in right of eachCanadian province[57]and eachAustralian state.When referring to the Crown in multiple jurisdictions, wording is typically akin to "the Crown in right of [place], and all its other capacities".[58]

The powers of a realm's crown are exercised either by the monarch, personally, or by his or her representative on theadviceof the appropriate localministers,legislature, or judges, none of which may advise the Crown in any other realm.

Elizabeth II,Queen of Canada,with herCabinetinRideau Hall,1 July 1967
Elizabeth II,Queen of New Zealand,with herCabinet,1981
Governor-GeneralBill Hayden,representing Elizabeth II,Queen of Australia,withCabinetoutsideGovernment House,25 March 1994
Elizabeth II,Queen of the United Kingdom,with herCabinetat10 Downing Street,18 December 2012
QueenElizabeth IIin her various capacities as sovereign of different countries, demonstrating the divisibility of the crown

New Zealand

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In New Zealand, the termthe Crown(Māori:te Karauna[59]) is used to mostly mean the authority of government; its meaning changes in different contexts.[60][61]In the context of people considering theclaims and settlements related to the Treaty of Waitangi,professor of historyAlan Warddefines the Crown as "the people of New Zealand—includingMāorithemselves—acted through elected parliament and government. "[62]

Crown Dependencies

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In theBailiwick of Guernsey,legislation refers tothe Crown in Right of the Bailiwick of Guernsey[63]orthe Crown in Right of the Bailiwick[64]and the law officers of the Crown of Guernsey submitted that, "the Crown in this context ordinarily means the Crown in right of therépubliqueof the Bailiwick of Guernsey "[65]and that this comprises "the collective governmental and civic institutions, established by and under the authority of the monarch, for the governance of these islands, including the states of Guernsey and legislatures in the other islands, the royal court and other courts, the lieutenant governor, parish authorities, and the Crown acting in and through the Privy Council".[66]

Theflag of Jersey,displaying thebadge of Jerseysurmounted by aPlantagenetcrown

In theBailiwick of Jersey,statements by thelaw officers of the Crowndefine the Crown's operation in that jurisdiction asthe Crown in Right of Jersey,[67]with all Crown land in the Bailiwick of Jersey belonging to the Crown in Right of Jersey and not to theCrown Estateof the United Kingdom.[68]The Succession to the Crown (Jersey) Law 2013 defined the Crown, for the purposes of implementing thePerth Agreementin Jersey law, as theCrown in Right of the Bailiwick of Jersey.[69]

Legislation in theIsle of Manalso defines the Crown in Right of the Isle of Man as being separate from the Crown in Right of the United Kingdom.[70]

British Overseas Territories

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Following theLords' decisioninEx parte Quark,2005, it is held that the King, in exercising his authority overBritish Overseas Territories,does not act on the advice of theCabinet of the United Kingdom,but, in his role as king of each territory, with the exception of fulfilling the UK's international responsibilities for its territories. To comply with the court's decision, the territorial governors now act on the advice of each territory's executive and the UK government can no longer disallow legislation passed by territorial legislatures.[71]

In the courts

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Incriminal proceedings,the state is the prosecuting party; the case is usually designated (incase citation) asR v [defendant],[72]whereRcan stand for eitherrex(if the current monarch is male) orregina(if the monarch is female), and thevstands forversus.For example, a criminal case against Smith might be referred to asR v Smithand verbally read as "the Crown and Smith".

Thecoat of arms of the sovereign of the United Kingdomon theWestminster Magistrates' Courtbuilding inLondon,England

The Crown is, in general,immune to prosecution and civil lawsuits.So,Ris rarely (albeit sometimes[f]) seen on the right hand side of the 'v' in the first instance. To pursue a case against alleged unlawful activity by the government, a case injudicial reviewis brought by the Crown against aminister of the Crownon the application of aclaimant.The titles of these cases now follow the pattern ofR (on the application of [X]) v [Y],notated asR ([X]) v [Y],for short. Thus,R (Miller) v Secretary of State for Exiting the European UnionisR (on the application of Miller and other) v Secretary of State for Exiting the European Union,where "Miller" isGina Miller,a citizen. Until the end of the 20th century, such case titles used the patternR v Secretary of State for Exiting the European Union,ex parteMiller.Either form may be abbreviatedR (Miller) v Secretary of State for Exiting the European Union.

InScotland,criminal prosecutions are undertaken by thelord advocate(or the relevantprocurator fiscal) in the name of the Crown. Accordingly, the abbreviationHMAis used in theHigh Court of JusticiaryforHis/Her Majesty's Advocate,in place ofrexorregina;as in,HMA v Al Megrahi and Fahima.

Most jurisdictions inAustraliauseRorThe King(orThe Queen) in criminal cases. If the Crown is the respondent to an appeal, the wordsThe Kingwill be spelled out, instead of using the abbreviationR(i.e. the case name at trial would beR v Smith;if the defendant appeals against the Crown, the case name would beSmith v The King). InWestern AustraliaandTasmania,prosecutions will be brought in the name of the respective state instead of the Crown (e.g.The State of Western Australia v Smith).Victoriantrials in the original jurisdiction will be brought in the name of thedirector of public prosecutions.TheCommonwealth director of public prosecutionsmay choose which name to bring the proceeding in. Judges usually refer to the prosecuting party as simply "the prosecution" in the text of judgments. In civil cases where the Crown is a party, it is a customary to list the body politic (e.g.State of QueenslandorCommonwealth of Australia) or the appropriate government minister as the party, instead. When a case is announced in court, the clerk or bailiff may refer to the Crown orally asour sovereign lord the king(orour sovereign lady the queen).

In reporting on court proceedings inNew Zealand,news reports will refer to the prosecuting lawyer (often called a Crown prosecutor, as in Canada and the United Kingdom) as representing the Crown; usages such as, "for the Crown, Joe Bloggs argued", being common.

The Crown can also be a plaintiff or defendant in civil actions to which the government of the Commonwealth realm in question is a party. Suchcrown proceedingsare often subject to specific rules and limitations, such as the enforcement of judgments against the Crown.Qui tamlawsuits on behalf of the Crown were once common, but have been unusual since theCommon Informers Act 1951ended the practice of allowing such suits by common informers.

Crown forces

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The term "Crown forces" has been used byIrish republicansandnationalists,including members ofparamilitarygroups, to refer to Britishsecurity forceswhich operate inIreland.The term was used by various iterations of theIrish Republican Army(IRA) during conflicts such asIrish War of Independenceandthe Troubles.As noted by Irish republicanDanny Morrison,"[t]he term 'security forces' suggestslegitimacy,which is why republicans prefer terms like 'the Brits' or 'the Crown Forces', which undermines their authority. "[g][74]Due to the Irish War of Independence, "the phrase 'Crown Forces' came to represent something abhorrent in the Republican narrative".[75]

Symbolism

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The Crown is represented by the image of a crown inheraldryand other imagery such ascap badges,uniforms, government logos and elsewhere. The heraldic crown is chosen by the reigning monarch. From 1661 to the reign ofQueen Victoria,an image ofSt Edward's Crownwas used.[76]The early part of Victoria's reign depicted the Imperial State Crowncreated for her coronation,while aTudor Crownbegan to be used from the 1860s.[76]In 1901, the Tudor Crown design was standardised and continued in use until the reign ofElizabeth IIin 1952 when a heraldic St Edward's Crown was restored.[76][77]In 2022,Charles IIIopted for a modified Tudor Crown design.[78][79]

St Edward's Crown
1901 pattern Tudor Crown
2022 pattern Tudor Crown

Crown copyrightappliesin perpetuityto depictions of theRoyal Armsand any of its constituent parts under theroyal prerogative,andThe National Archivesrestricts rights to reproduce them.[80][81]Although Crown Copyright usually expires 50 years after publication, Section 171(b) of theCopyright, Designs and Patents Act 1988made an exception for 'any right or privilege of the Crown' not written in an act of parliament, thus preserving the rights of the Crown under the unwritten royal prerogative.[82]

In addition, use of images of the crowns for commercial purposes is specifically restricted in the UK (and in countries which are party to theParis Convention) under sections 4 and 99 of theTrade Marks Act 1994,and their use is governed by theLord Chamberlain's Office.[83][84][85]It is also an offence under Section 12 of theTrade Descriptions Act 1968to give a false indication that any goods or services are supplied to the monarch or any member of the royal family.[86][85]

See also

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Notes

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  1. ^Jurisdictions in which this prerogative does not apply includeCornwall,where unowned property becomes the property of theduke of Cornwall,andLancashire,where it becomes the property of theduke of Lancaster.
  2. ^In the Canadian context, the monarch has been described byEugene Forseyas the "symbolic embodiment of the people—not a particular group or interest or party, but the people; the whole people";[19]his daughter, Helen Forsey, said of his opinion on the Crown, "for him, the essence of the monarchy was its impartial representation of the common interests of the citizenry as a whole, as opposed to those of any particular government."[19]TheDepartment of Canadian Heritagesaid the Crown serves as the "personal symbol of allegiance, unity, and authority for all Canadians,"[20][21]a concept akin to that expressed byKing Louis XIV:"L'État, c'est moi",or," I am the state ".[22]Robertson Daviesstated in 1994, "the Crown is the consecrated spirit of Canada",[23]and past Ontario chairman of theMonarchist League of CanadaGary Toffoli opined, "the Queen is the legal embodiment of the state at both the national and the provincial levels [...] She is our sovereign and it is the role of the Queen, recognized by the constitutional law of Canada, to embody the state."[24]
  3. ^As Peter Boyce put it, "the Crown as a concept cannot be disentangled from the person of the monarch, but standard reference to the Crown extends well beyond the Queen's person."[33]
  4. ^Executiveswho are themselves servants of the Crown.[39]
  5. ^TheSupreme Courtfound in the 1980 caseAttorney General of Quebec v. Labrecquethatcivil servantsin Canada are not contracted by an abstraction calledthe state,but, rather, they are employed by the monarch, who "enjoys a general capacity to contract in accordance with the rule of ordinary law."[40]
  6. ^For exceptions in the United Kingdom, seeCrown Proceedings Act 1947
  7. ^InDanny Morrison's words, "[t]he term 'security forces' suggestslegitimacy,which is why republicans prefer terms like 'the Brits' or 'the Crown Forces', which undermines their authority. "[73]

References

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  7. ^Newman, Warren J. (2017), Lagassé, Philippe; MacDonald, Nicholas A. (eds.),"The Crown in the 21st Century"(PDF),Review of Constitutional Studies,Some Observations on the Queen, the Crown, the Constitution, and the Courts,22(1), Edmonton: Centre for Constitutional Studies: 56,archived(PDF)from the original on 16 August 2022,retrieved5 June2023
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Further reading

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