Tuesday, July 8, 2008

The Crown..dead or alive???

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Throughout the Commonwealth realms The Crown is an abstract metonymic concept which represents the legal authority for the existence of any government. It evolved naturally as a separation of the literal crown and property of the nation-state from the person and personal property of the monarch.

Similar concepts of "The Crown" also operate in other constitutional monarchies, in which (like the United Kingdom) the monarch is Head of State, but the actual governing of the nation is conducted according to the wishes of a democratically elected national legislature. The Holy Crown of Hungary is an example that similar concepts (although in symbolic rather than legal contexts) can survive even in a republic.

* 1 Description
* 2 United Kingdom
o 2.1 Crown dependencies
* 3 Other Commonwealth realms
* 4 Crown Servants
* 5 Origins
* 6 Exercise of the Rights of the Crown
* 7 In the courts
* 8 Powers of the Crown
* 9 See also

[edit] Description

The Crown itself is a corporation sole that represents the legal embodiment of the Executive Government. The real crowns (such as Britain's Crown Jewels and the Honours of Scotland) are the property of the Crown, not of the incumbent personally.

Like any corporation, the Crown is an artificial person (in this case, coextensive with a natural person) which can own property and has certain rights as provided by law to business entities. In the case of Commonwealth realms, the rights and powers of the Crown vary from state to state, because each national or state Crown is a separate corporation sole.

The Crown, as presented in the person of the Sovereign who holds the corporation sole, is the legal authority for the existence and operations of the government in each Commonwealth realm (including Australian states and Canadian provinces).

Most operations of the Crown are directed by Ministers of each of the democratically elected national parliaments (including Canadian provincial and Australian state parliaments).

Exceptions include ceremonial operations carried out by the sovereign personally, and the so-called Reserve Powers of the Crown, the parameters of which are established by the constitution of each Commonwealth realm, such as the granting of Royal Assent by the Crown in Parliament to legislative acts, and the formal invitation to form a government. In general, they are exercised by the Monarch directly or by a vice-regal representative (such as a Governor-General, Governor, or Lieutenant-Governor), to ensure that the elected government follows the rules of the national constitution.

For example the Canadian Prime Minister Mackenzie King was displeased with the results of a general election, including the loss of his own seat, he immediately asked Governor-General Byng to call a new election which the Governor-General refused to do; for further details, see King-Byng Affair.

[edit] United Kingdom

In the United Kingdom, as an example, The Crown in Right of the United Kingdom is an entity that represents all rulership in the UK, but is separate from the person currently wearing it. For instance, the Queen owns some of her castles herself, such as Sandringham House and Balmoral Castle, and if she abdicated she would keep them. Others, including Windsor Castle, Buckingham Palace, and Holyrood Palace, belong to the Crown, and would pass on to the next monarch, whoever that would be.

[edit] Crown dependencies

The Crown dependencies are held in Right of the United Kingdom, and the Queen's British ministers have the right to advise her on actions in the dependencies, not their insular ministers.

Although the dependencies are not part of the United Kingdom, the Parliament at Westminster has a competency and ability to legislate directly for them, although by convention does not often do so without the consent of their insular legislatures.

[edit] Other Commonwealth realms

The Crown in each of the Commonwealth realms is a similar but separate legal concept.

Both Canada and Australia are federations: therefore, besides the Crown in Right of Canada and the Crown in Right of the Commonwealth of Australia, there are Crowns in Right of each Canadian province and each Australian state. For example, there is the Crown in Right of the Province of British Columbia. The rights which the Crown possesses in right of a Canadian province are exercised by the province's lieutenant-governor (e.g., the Lieutenant-Governor of British Columbia), not the Governor-General of Canada, and such rights are exercised under the advice of the provincial ministers (not the federal ministers). The situation in Australia is analogous with governors and state ministers instead of the Canadian equivalents.

[edit] Crown Servants

Many government workers in the United Kingdom are Crown Servants. The Crown takes responsibility for upholding the Queen's peace, and traditionally prison warders and police officers were directly employed by the Crown, and not by the Prison Service or Police Authorities. In a related way, there is the Crown Prosecution Service in the criminal courts whose lawyers are called Crown Prosecutors. Those working within the intelligence services such as MI5 and MI6 are also Crown Servants. Crown Servants may not sit as Members of Parliament and this is used as a way of allowing MPs to retire before their time—they are awarded a sinecure job as a Crown Servant and thus disbarred as an MP (see resignation from the British House of Commons). The Crown is also the source of all justice in the UK, which meant that it was immune from prosecution until the Crown Proceedings Act 1947 opened the Crown to ordinary court claims in contract and tort as for any other person.

[edit] Origins

The concept of the Crown took form under the feudal system, evolving from and synthesising oriental and barbarian concepts of kingship. Under the feudal system, in England and (separately) Scotland, all rights and privileges were ultimately granted by the ruler (though this was not the case in all countries that had this system). All land 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 common socage—owners of land held as socage held it subject only to the Crown. The Crown as ultimate owner of all property also owns any property which has become bona vacantia.

[edit] Exercise of the Rights of the Crown

In Commonwealth law, the expression "Crown in Right of ..." is often used: e.g., the Crown in Right of the United Kingdom, the Crown in Right of Canada, the Crown in Right of the Commonwealth of Australia, the Crown in Right of the State of New South Wales, etc.

In practice, the powers of the Crown outside the United Kingdom are rarely exercised by the Monarch directly, but rather by a local vice-regal representative such as a Governor-General, Governor, or Lieutenant Governor, on the advice of the ministers of the appropriate local (federal/national, state or provincial) government. In those few cases where the Monarch exercises powers directly, she again generally does so on the advice of the ministers of that government.

[edit] In the courts

In criminal proceedings, the prosecuting party is the Crown; generally speaking, this is indicated by having Rex (for a male monarch) or Regina (for a female one) v. the defendant as the standard for naming criminal trials; in Australia particularly, on official transcripts of criminal trials the heading page reads "(name of defendant) v. The Queen". Rex and Regina are typically abbreviated R , for example a criminal case against Smith might be R v Smith, read "Crown and Smith".

This practice of using the seat of sovereignty as the injured party is analogous with criminal cases in the United States, where the format is ["the people" or "the State"] v. [the defendant] (e.g. People of the State of New York v. LaValle or State ex rel TLO) per popular sovereignty.

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. Such Crown proceedings are often subject to specific rules and limitations, for example about the way judgments against the Crown can be enforced.
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[edit] Powers of the Crown

The powers which belong to each Crown in right of a particular realm can only be exercised on the advice of the ministers of the realm. So, for example, the rights which the Crown possesses in right of the United Kingdom can only be exercised under the advice of British ministers, and the rights which the Crown possesses in right of Canada can only be exercised under the advice of Canadian ministers. The British prime minister cannot advise Her Majesty in exercise of her rights in regard to Canada, nor can the Canadian prime minister advise her in exercise of her rights in regard to the United Kingdom. This applies also to various governments of a federation, so the ministers of the Commonwealth of Australia may not advise the Her Majesty in exercise of her rights in regard to the state of Victoria, for instance, in the appointment of a state Governor.

The monarch, or her appointed representative, has the legal right to refuse the advice of ministers, and act instead in accordance with her personal views. However, these "reserve powers" are almost never used, outside of times of constitutional crisis.

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