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THE OFFICE OF THE CROWN

Published online by Cambridge University Press:  21 May 2018

J.G. Allen
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Abstract

A troubling veil of mystery still shrouds the central institution of the British Constitution – the Crown. In this paper, I examine the modern utility of five historical doctrines: the doctrine of the “King's two bodies”; the doctrine that the Crown is a “corporation sole”; the doctrine that the King can “do no wrong”; the doctrine that (high) public offices are “emanations” of the Crown; and the doctrine that the Crown is “one and indivisible”. Using some insights from social ontology, the history of office in the Western legal tradition, and the sociology of role and status, I argue that the first four of these doctrines can be refashioned into a conception of the Crown as an office. An office is an enduring institutional entity to which individuals bear a relationship from time to time, but which is separate from any individual incumbent and is to be considered in legal analysis as a separate acting subject. Using the logic of office, official personality and official action, I distinguish between the Queen, the Crown, Her Majesty's Government and the Commonwealth and argue that together they provide a serviceable model of the modern British Constitution. The final doctrine, however, must be abandoned – the Crown is plural and divisible and this must be taken into account when using the Crown to reason about the UK's relationship to other constitutional orders.

Keywords

Crownofficeexecutive governmentstate theoryCommonwealthBritish Empire
Type
Articles
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The Cambridge Law Journal , Volume 77 , Issue 2 , July 2018 , pp. 298 - 320
Copyright
Copyright © Cambridge Law Journal and Contributors 2018 

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Footnotes

*

Alexander von Humboldt Post-Doctoral Fellow, Humboldt Universität zu Berlin Centre for British Studies; Adjunct Research Fellow, University of Tasmania Faculty of Law. This paper is based on my doctoral dissertation, for which I was supported as a Poynton Scholar by the Cambridge Australia Trust and as a Burke Scholar (in 2013) by the University of Tasmania. I would like to thank a number of people, with the usual disclaimer as to responsibility for error, for helping me in various ways, at various times and in various capacities: my supervisor T.R.S. Allan, Will Bateman, Edward Cavanagh, Daniel Clarry, Gino Dal Pont, David Dyzenhaus, Paul Finn, Evan Fox-Decent, Mark Elliott, Denis Galligan, Brendan Gogarty, Andrew Gold, Andrew Halpin, Harshan Kumarasingham, Tony Lawson and the members of the Cambridge Social Ontology Group, Ewan Smith and the Oxford Public Law Discussion Group, Lionel Smith and Michael Stokes.

References

1 Smith, D.E., The Invisible Crown: The First Principle of Canadian Government (Toronto 2013), ixGoogle Scholar; see also Wade, H.W.R., “The Crown, Ministers and Officials: Legal Status and Liability” in Sunkin, M. and Payne, S. (eds.), The Nature of the Crown (Oxford 1999), 23Google Scholar.

2 Saunders, C., “The Concept of the Crown” (2015) 38 M.U.L.R. 873, at 875Google Scholar.

3 Town Investments v Department for the Environment [1978] A.C. 359.

4 Ibid., at p. 376.

5 Ibid., at p. 381.

6 Sir William Wade notes that Lord Diplock's simple equation of the Crown with the Government cannot be right solely by reason of the Crown's historical immunities. Further, as noted by Peter Rowe, simply substituting “Crown” with “Government” is insufficient to explain the position of the armed forces: see Wade, “The Crown” and P. Rowe, “The Crown and Accountability for the Armed Forces”, in Sunkin and Payne, The Nature of the Crown, pp. 27 and 267, respectively.

7 See generally McLean, J., Searching for the State in British Legal Thought (Cambridge 2012)CrossRefGoogle Scholar.

8 See Cohn, M., “Medieval Chains, Invisible Inks: On Non-Statutory Powers of the Executive” (2005) 25 O.J.L.S. 97CrossRefGoogle Scholar.

9 M. v Home Office [1994] 1 A.C. 377.

10 Ibid., at pp. 406–07.

11 See Wade, “The Crown”, p. 24.

12 Case No. EA/2010/0101 (First Tier Tribunal, 21 December 2010).

13 The Duchy of Lancaster Case (1561) 1 Plow. 212Google Scholar.

14 See Kantorowicz, E., The King's Two Bodies (Princeton 1997)Google Scholar.

15 See Hardy, W. (trans.), The Charters of the Duchy of Lancaster (London 1845), 137Google Scholar.

16 The Duchy of Lancaster Case (1561) 1 Plow. 212, 213Google Scholar.

17 The case concerned the capacities of the Duke of Lancaster – not the King (or Queen) at all. The question boils down to one of rules of attribution and capacity. There is nothing illogical in saying that the acts of a certain person suffering from defects of capacity such as minority, intoxication or insanity will still be attributed to the Duke of Lancaster as a legal actor. However, it is difficult to justify why the rules of capacity governing this institution should derogate from the general rule; for this reason, the judges invoked the mystery of the “two bodies” and then proceeded to conflate those bodies.

18 Case No. EA/2010/0101 (First Tier Tribunal, 21 December 2010), paras. [30]–[43]. This ruling is also dubious. The First Tier Tribunal held that the Duchy was not a “government department”, despite its Chancellor traditionally being ex officio a member of Cabinet appointed by the prime minister; nor a “publicly owned company”, despite it being a chartered corporation kept for the maintenance of the current head of state; nor a “body that carries out functions of public administration”, despite it administering bona vacantia within the Duchy and holding palatine courts.

19 Maitland, F.W., “The Crown as Corporation” in Runciman, D. and Ryan, M. (eds.), State, Trust, and Corporation (Cambridge 2003), 35CrossRefGoogle Scholar.

20 Maitland, F.W., The Constitutional History of England (Cambridge 1908), 418Google Scholar.

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22 See McLean, Searching for the State, p. 4; see generally Bentham, J., A Fragment on Government, ed. Harrison, W. (Oxford 1948)Google Scholar.

23 See Kantorowicz, The King's Two Bodies, p. 12; Willion v Berkley (3 Elizabeth) 1 Plowden 235a, 238; Calvin's Case (1608) 77 E.R. 377.

24 See Rubin, E., Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton 2005), 15Google Scholar.

25 That is, a Weberian ideal-type bureaucracy: see generally Parsons, T. (ed.), Max Weber: The Theory of Social and Economic Organisation (London 1947)Google Scholar.

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27 See d'Entrèves, A. Passerin, The Notion of the State (Oxford 1961), 19Google Scholar.

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30 Town Investments Ltd. [1978] A.C. 359, 381.

31 Ibid., at pp. 397–8.

32 Brown, W.J., “The Personality of the Corporation and the Personality of the State” (1905) 21 L.Q.R. 365, 369Google Scholar.

33 Fortes, M., “Ritual and Office in Tribal Society” in Gluckman, M. (ed.), Essays on the Ritual of Social Relations (Manchester 1962), 57Google Scholar.

34 Hart, H.L.A., The Concept of Law, revised ed. (Oxford 1982), 68Google Scholar.

35 “[F]or the King, though as a father of children, and a master of domestic servants command many things which bind those children and those servants yet he commands the people in general never but by a precedent law, and as a politic, not a natural person”: Hobbes, T., Behemoth or the Long Parliament, ed. Tönnies, F. (London 1969), 51Google Scholar.

36 Chrimes, S.B., English Constitutional Ideas in the Fifteenth Century (Cambridge 1936), 352Google Scholar.

37 Brozek explains that many of the permutations were occasioned by the need to reconcile early Christianity's belief in a divine Father, Son and Holy Spirit with the monotheistic self-conception it had appropriated from Judaism. See Brozek, B., “The Troublesome ‘Person’” in Kurki, V.A.J. and Pietrzykowski, T. (eds.), Legal Personhood: Animals, Artificial Intelligence and the Unborn (Berlin 2017), ch. 1Google Scholar.

38 Ibid., at p. 4.

39 See Getzler, J., “Personality and Capacity: Lessons from Legal History” in Bonyhady, T. (ed.), Finn's Law (Annandale, NSW 2016), 160, 163Google Scholar; Koessler, M., “The Person in Imagination or Persona Ficta of the Corporation” (1949) 9 La.L.Rev. 435Google Scholar.

40 See Millet, H. and Moraw, P., “Clerics in the State” in Reinhard, W. (ed.), Power Elites and State Building (Oxford 1996), 179Google Scholar; Lee, D., “Private Law Models for Public Law Concepts: The Roman Law Theory of Dominium in the Monarchomach Doctrine of Popular Sovereignty” (2008) 70 Rev.Pol. 370CrossRefGoogle Scholar.

41 See Maitland, “The Crown as Corporation”, p. 33, and also the chapters “The Corporation Sole” and “Moral Personality and Legal Personality’; Maitland, F.W., “Translator's Introduction” in von Gierke, O., Political Theories of the Middle Age, trans. Maitland, F.W. (Cambridge 1911), xiGoogle Scholar.

42 Maitland thought that the idea of a corporation sole was an oxymoron and preferred to see the Crown as a corporation aggregate embracing the Government and the whole political community. Maitland, however, was perhaps too influenced by the German organic theory of corporations – on the nominalistic view I have presented, there is nothing incoherent about a corporation of one.

43 O'Hara, J.B., “The Modern Corporation Sole” (1989) 93 Dick.L.Rev. 23, at 25Google Scholar.

44 Pollock, F., Principles of Contract at Law and in Equity, 6th ed. (London 1881), 107Google Scholar.

45 Getzler, “Personality and Capacity”, pp. 169–70.

46 D.O.F. Heaton, ‘The Power of Government to Make Contracts’, MPhil thesis, University of Oxford, 2015, 112.

47 “The office] begins to exist when one has the institution of a permanent officium of which the ambassador, provided with a general mandate, is the titulary during his assignment; and when the existence of such an officium is not diminished if it should be temporarily deprived of a titulary, such as when a vacancy creates the necessity of nominating a successor”: Selmi, P. in Queller, D.E. (ed.), The Office of Ambassador in the Middle Ages (Princeton 1961), 76Google Scholar.

48 The Queen is ex officio Duchess of Lancaster – should Elizabeth II cease to be Queen, she would cease to be Duchess, too.

49 For the ability to act in a corporate capacity, the official “has to forego something of his own liberty of action”: Brown, “The Personality of the Corporation”, p. 369. For e.g. a company director is unable to undertake certain actions in his own right because of the status, namely he is either prohibited from doing so or is deemed to act qua director when attempting to take advantage, say, of a corporate opportunity in his own right. See also Charles Duke of Brunswick v the King of Hanover (1844) 6 Beav. 2 725, stating that the King of Hanover acted separately qua King of Hanover and qua subject of the Queen of the UK.

50 Fortes, “Ritual and Office”, pp. 60–61, citing Pollock, F. and Maitland, F.W., History of the Laws of England Before Edward I, Volume I (Cambridge 1923), 495, 502–03Google Scholar.

51 In this I emulate the method of F.W. Maitland, as explained by Joshua Getzler – attempting to master inherited legal concepts by studying their genealogy, to gain some hermeneutic or internal knowledge of archaic legal concepts, and to refashion the institutions, doctrines, and principles we have received to “fit” with the rest of our contemporary legal universe. See Getzler, “Personality and Capacity”, p. 154.

52 See Loughlin, M., Foundations of Public Law (Oxford 2010), 26CrossRefGoogle Scholar; Finn, P.D., Fiduciary Obligations (Sydney 1977), 8Google Scholar.

53 Fortes, “Ritual and Office”, pp. 58–59; see also Schnepel, B., “Corporations, Personhood, and Ritual in Tribal Society: Three Interconnected Topics in the Anthropology of Meyer Fortes” (1990) 21 Journal of the Anthropological Society of Oxford 1, at 8Google Scholar.

54 See Blackstone, W., Commentaries on the Laws of England (London 1825), Book II:3, 36Google Scholar.

55 See M. Loughlin, “The State, the Crown, and the Law” in Sunkin and Payne, The Nature of the Crown, p. 44.

56 This entailed restrictions on the performance of official functions by deputy, prohibitions on buying and selling offices and using them for political bribes, abolition of the inheritance of offices in reversion, removal of the “banking” function (whereby officials were entitled to draw on official receipts and retain interest), and replacement of fee income by salaries. See Chester, N., The English Administrative System 1780–1870 (Oxford 1981), 122Google Scholar, 131.

57 Ibid., at pp. 12–24; see also Finn, P.D., Government and Law in Colonial Australia (Oxford 1987), 15–25Google Scholar.

58 See Selway, B., “Of Kings and Officers – the Judicial Development of Public Law” (2005) 33 Fed.L.Rev. 1, at 27Google Scholar.

59 See R. Watt, “The Crown and Its Employees” in Sunkin and Payne, The Nature of the Crown, pp. 310, 313–14.

60 See e.g. P.D. Finn, Fiduciary Obligations, p. 8.

61 Mechem, F.R., A Treatise on the Law of Public Offices and Officers (Chicago 1890), I, §4, 5Google Scholar.

62 See also Lee, D., “‘Office Is a Thing Borrowed’: Jean Bodin on Offices and Seigneurial Government” (2013) 41 Pol.Theory 409, at 419–20CrossRefGoogle Scholar.

63 See e.g. Essert, C., “The Office of Ownership” (2013) 63 U.T.L.J. 418CrossRefGoogle Scholar, describing the flip-side of the medallion.

64 See e.g. Watt, “The Crown”, p. 293; Freedland, M., “Contracting the Employment of Civil Servants – a Transparent Exercise” [1995] P.L. 224, at 230Google Scholar.

65 See e.g. Henly v The Mayor of Lyme (1828) 130 E.R. 995, 1001, per Best C.J.; Finn, P.D., “The Forgotten ‘Trust’: The People and the State” in Cope, M. (ed.), Equity Issues and Trends (Annandale, NSW 1995)Google Scholar; Finn, P.D., “A Sovereign People, a Public Trust” in Finn, P.D. (ed.), Essays on Law and Government, vol. 1 (Sydney 1995)Google Scholar.

66 See Condren, C., Argument and Authority in Early Modern England (Cambridge 2006), 6, 25ffCrossRefGoogle Scholar.

67 Blackstone, Commentaries on the Laws of England, Book Reviews II:3, p. 20.

68 See Searle, J., The Construction of Social Reality (New York 1995), 96Google Scholar; Fletcher, G., “Law” in Smith, B. (ed.), John Searle (Cambridge 2003), 86Google Scholar.

69 See Platner, S.B., A Topographical Dictionary of Ancient Rome, ed. Ashby, T. (Oxford 1929)Google Scholar, “pomerium”. Plutarch explains in Vitae Parallellae that Remus struck Romulus dead when the latter leapt across the trench, which Remus was digging where his city's wall was to run. Detlef von Daniels observes that, by leaping across the wall, Romulus treated it as a mere wall as not as a sign of a norm, and that this provoked Remus's deadly retaliation: von Daniels, D., “Sources and Normativity of International Law: A Post-foundational Perspective” in d'Aspremont, J. and Besson, S. (eds.), The Oxford Handbook of the Sources of International Law (Oxford 2017), ch. 35Google Scholar.

70 See Shapiro, S., Legality (Cambridge, MA 2011), 75Google Scholar.

71 In this potted summary I have discussed only John Searle's account, neglecting others such as Tony Lawson's, and I have omitted various complications and disagreements among social ontologists, for reasons of brevity.

72 Sir Edward Coke held in Calvin's Case (1609) 7(5) Co. Rep. 1a, 10, that coronation was only a solemnisation of the royal descent but not part of the “<Title>”. This principle, concerning the content of the Searleian “C term”, was based on a case concerning whether plotters against James I could have committed treason before the coronation had occurred. It I hold generally, or else we would do away with all need for formality. On the other hand, the requirement for a monarch (or other official) to swear an oath of office would appear to be more substantive.

73 We can use this scheme to model the way that offices iterate, as well. We have said that X (Elizabeth) counts as Y (Queen) in the context C, and that the Queen is ex officio the Duke of Lancaster. So we can say that Y1 (Queen) serves as X2 in the status function declaration that creates Y2 (Duke of Lancaster).

74 R. (Vijayatunga) v Judicial Committee of the Privy Council [1988] Q.B. 322.

75 See Selway, “Of Kings and Officers”, pp. 22, 31, 50. For example, Viscount Canterbury v Attorney General (1843) 41 E.R. 648 held that the Crown could not be liable in tort for the wrongful acts of its officers (on the basis of the then-applicable rules of vicarious liability – see Hogg, P.W. and Monahan, P.J., Liability of the Crown, 3rd ed. (Toronto 2000), 6Google Scholar); however, the case treated the monarch not as an abstraction personifying the whole of government but as a person with special powers and immunities. Tobin v The Queen (1864) 143 All E.R. 1148, on the other hand, held that “that which the sovereign does by command to his servants, cannot be a wrong in the sovereign, because, if the command is unlawful, it is in law no command, and the servant is responsible for the unlawful act, the same as if there had been no command”. Perhaps most egregiously, Feather v The Queen (1865) 122 All E.R. 1191 held that “the maxim that the King can do no wrong applies to personal as well as to political wrongs; and not only to wrongs done personally by the Sovereign, if such a thing can be supposed to be possible, but to injuries done by a subject by the authority of the Sovereign”. See Getzler, “Personality and Capacity”, p. 172.

76 See e.g. Gilbert v Corporation of Trinity House (1886) 17 Q.B. 795; International Railway Company v Niagara Parks Commission [1941] A.C. 328; Farnell v Bowman (1887) 12 A.C. 643.

77 See Loughlin, “The State”, p. 72.

78 M. v Home Office [1994] 1 A.C. 377, 409.

79 See Harper v Secretary of State for the Home Department (The Times, 18 December 1954) (Sir Raymond Evershed M.R.), cited in Merricks v Heathcote-Amory [1955] Ch 567, 574.

80 Getzler, “Personality and Capacity”, p. 172.

81 See Selway, “Of Kings and Officers”, p. 6; Braddick, M.J., State Formation in Early Modern England c 1550–1700 (Cambridge 2000), 11, 45CrossRefGoogle Scholar.

82 See Maitland, The Constitutional History of England, pp. 39–54.

83 Lord Morris suggested that ministers, etc., be seen as corporations sole in Town Investments Ltd. [1978] A.C. 359, 395. In Kinloch v Secretary of State for India in Council (1882) 7 A.C. 619 the Secretary of State was called expressly “a body corporate, or something in the nature of a body corporate”, and “not the individual who now happens to fill that office [but] the officer bearing that description” for the purposes of contracting, suing and being sued – but, oddly, not for the purposes of holding property. A fascinating exploration of this question from the late Austrian monarchy, not yet available in English, is E. Bernatzik, Kritische Studien über den Begriff der juristischen Person und über die juristische Persönlichkeit der Behörden insbesondere (Berlin 1996 [1890]) (translation: Critical Studies on the Concept of the Juristic Person and on the Juristic Personality of Public Authorities in Particular).

84 Meridian Global Funds Management Asia Ltd. v Securities Commission [1995] 3 All E.R. 918 (J.C.P.C.).

85 In fact, the notion that corporations are “private” entities is a modern one, anachronistic to most of the historical cases in which the jurisprudence of corporations law evolved.

86 Meridian Global Funds Management Asia Ltd. [1995] 2 A.C. 500, 506–07 (J.C.P.C.).

87 Ibid., p. 512.

88 In the colonial Australian legislation, Finn explains that the question of personal versus official liability of government officials turned, mirroring the private law of vicarious liability, on whether the tortious act was authorised by (superior officers within) the Government, done on the Government's behalf, and subject to the Government's control: see Finn, Law and Government in Colonial Australia, pp. 141, 152. Again, these are the right questions to ask, but they all assume definitions of Crown and Government and a concept of office.

89 See Wade, “The Crown”, p. 28.

90 See Finn, Law and Government in Colonial Australia, pp. 141–55.

91 Maitland, “The Crown as Corporation”, p. 142.

92 Finn, Law and Government in Colonial Australia, pp. 145, 148.

93 Ibid., at p. 153.

94 See e.g. Williams v Commonwealth (2012) 248 C.L.R. 156; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 318 A.L.R. 1 on the legal personality of the Crown in Australia.

95 Wade, “The Crown”, p. 24. The situation, Sir William argued, is even more dire in Scotland where McDonald v Secretary of State for Scotland 1994 S.C. 234 interpreted the act as prohibiting certain injunctive relief against Crown officers. On the Scots position see also A. Tomkins, “Crown Privileges” in Sunkin and Payne, The Nature of the Crown, p. 174.

96 See Maitland, “The Crown as Corporation”, p. 38.

97 See Loughlin, “The State”.

98 See Anderson, B., Imagined Communities (Brooklyn 1983)Google Scholar.

99 See M. Kelly, “Common Law Constitutionalism – a Different View”, Australian Society of Legal Philosophy Conference, Auckland, 23–25 June 2006.

100 R. (Barclay) v Secretary of State for Justice (No. 1) [2014] U.K.S.C. 54.

101 See Clarry, D.C., “Institutional Judicial Independence and the Privy Council” (2014) 3 C.J.I.C.L. 46Google Scholar.

102 They are vestiges of the Duchy of Normandy; William Duke of Normandy became William King of England in 1066.

103 R. (Barclay) [2014] U.K.S.C. 54, at [6], [34], [36]; see J.G. Allen, “Jurisdiction and Devolution Issues” [2014–2015] UK Supreme Court Yearbook 320, at 326.

104 Hogg, P., Constitutional Law of Canada, 5th ed. (Toronto 2011), §10.1Google Scholar.

105 Smith, L., “Scottish Trusts in the Common Law” (2013) 17 Edin.L.R. 283Google Scholar; see Maitland, “The Crown as Corporation”, p. 43. However, on the long quasi-colonial twilight of the Australian states, see Twomey, A., The Chameleon Crown: The Queen and Her Australian Governors (Annandale, NSW 2006), 271Google Scholar.

106 Re Silver Brothers; A-G Quebec v A-G Canada [1932] A.C. 514.

107 Wewaykum Indian Band v Canada [2002] 4 S.C.R. 245, at [96], per Binnie J.

108 Maitland, “The Crown as Corporation”, pp. 43, 46.

109 Ibid.

110 R. (Quark Fishing Ltd.) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 A.C. 529, comprising Lord Bingham, Lord Hoffmann and Lord Hope, Lord Nicholls and Lady Hale in the minority.

111 R. (Bancoult) v Foreign Secretary (No. 2) [2009] 1 A.C. 453, 458.

112 [2008] Q.B. 365.

113 J. Finnis, Common Law Constraints: Whose Common Good Counts?, Oxford Faculty of Law Legal Studies Research Paper Series Working Paper 10/2008, March 2008, paras. [15], [17], available at <http://papers.ssrn.com/Abstract=1100628> on 10 January 2013. Finnis cites the Fourth Edition of Halsbury's Laws of England.

114 Ibid., at para. [19].

115 It places the unlucky inhabitants in the position of “virtual representation” – they are deemed to be part of a far-off political community, and have nominal representation in its democratic institutions, but they have no effective voice. Such fictions have presided over the most important fissures between the UK and its erstwhile colonies. See Reid, J.P., “Another Origin of Judicial Review: The Constitutional Crisis of 1776 and the Need for a Dernier Judge” (1989) 64 N.Y.U.L.Rev. 963Google Scholar.

116 See Chester, The English Administrative System 1780–1870, p. 11.

117 See Daintith, T.C., “The Techniques of Government” in Jowell, J. and Oliver, D. (eds.), The Changing Constitution, 3rd ed. (Oxford 1994), ch. 8Google Scholar; see e.g. Williams (2012) 248 C.L.R. 156.

118 I have in mind particularly R. (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.