THE KING ABROAD

Waipa Post, Volume XXIV, Issue 1641, 14 May 1925, Page 6

THE KING ABROAD

WHAT IT MEANS.

The law of our Constitution makes no provision for the absence of the King from his kingdom ainy more than for his illness, Infancy, or incapacity, declares J. H. Morgan, Professor of Constitutional Law at the University of London, in the Daily Mail. We have always been 'content—it is our national habit—to make provision for each contingency as it arises. There was, indeed, a time when the law not only did not contemplate the King's absence, but actually forbade it. Thus the Act of Settlement, which enacted that "no person who shall hereafter come to the possession of this Crown shall go out of the dominions of England, Scotland, or Ireland without the consent of Parliament"— a clause which was repealed thirteen years later. The origin of this tra|nsiejnt prohibition was a national prejudice, induced no doubt by the contrary policy of William 111. in favour of "splendid isolation" and a dislike of the fraternising of Sovereigns, which, in the language of the day, "boded no good to their subjects." The Hanoverian connection, however, created quite a new situation, and nearly all the precedents are to be found during the reigns of the Hanoverian Kings, with the exceptior of George 111., who, during the whole sixty . years of his reign, never set foot outside his kingdom. It was Queen Victoria who renewed the practice of Continental holidays, thereby giving rise to a great exercise of legal wits in a Lords' debate.

LEGAL PROBLEM. The legal problem presented by the Sovereign's absence resolves itself into one issue: the means of giving formal expression to the royal will. I have recently read somewhere that everything has been "simplified" by the substitution of a stereotyped signature which can be affixed to documents of State like a rubber stamp. It would be almost as true to say the exact contrary.

For one. statute, like the Officers' Commission Act of 1862, which enables the Sovereign to sign by proxy, there are half a dozen which require him to sign in person. Statute after statute has been passed—the Exchequer and Audit Act is a case in point —requiring that the royal "signmanual" shall be necessary to set the machinery of government in motion: •Now tbe royal sign-manual is only i n elegant phrase for the King's own handwriting, and, where a statute requires it, nothing short of another statute could dispense with it. Few people, indeed, outside court circles, can have any conception of bow often the Kind's own signature is required by the law. Even that potent instrument the Great Seal itself,

which the Lord Chancellor is popularly supposed to keep under his pillow, cannot be set in motion in many cases without the initial authority of a warrant under the King's own hand. Some duties, such as the giving of the Royal Assent to Bills and the opening of Parliament, the King can and does delegate by commission—an Act of Henry VIII. made express provision for it. But the commission has to be given, and there are, as has been remarked, many matters in which the King cannot give it, for the simple reason that other statutes have required that in other matters his personal signature is necessary, and even the King cannot sign a document which would dispense with the necessity of his signing any documents at all. PRECEDENT OF 1911.

,Yet this is just what his Majesty did in 1911, acting presumably on 'legal advice. On the occasion of his visit to India he nominated four "Counsellors of State" to do all things

expedient, subject to the provision that in all matters reserved for his instructions, matters which included the dissolution of Parliament and the creation of Peers "any instructions transmitted by Us by telegram shall have the same effect as if they were given in writing by Us under our own sign manual." It may seem a strong thing to say, but I believe that his Majesty was, legally speaking, wrongly advised, and that that commission, in so far as it purported to dispense with the sign-manual in cases where statutes require it, was ultra vires. And I am not alone in that opinion.

No such "Counsellors of State"— they were formerly' called "Lords Justices" —had been appointed for nearly a hundred years; in fact, not since 1821, and Lord Lyndhurst, on the occasion of the Queen's visit to Germany in 1845, defended the omission to appoint any on the ground that their duties were, and, he appeared to think, could only be, nominal. He took it for granted that the Queen would continue, in view of the comparative ease of communication and the attendance of a Secretary of State, to discharge her duties abroad, as indeed she did, and the only legal doubts that were ever stirred, during her frequent absences were whether she could do, as a matter of law, outside the kingdom that which she could , do within it.

Lawyers have answered that question in the affirmative, but it does not arise in the present case, because his Majesty wiir be cruising in his Royal yacht, and a British ship is, legally speaking, British territory. What does arise is how he is to be relieved of his duties or, to speak more correctly, of his functions, and, in my opinion, that cannot be done without a statute. ' It may seem a paradox that an Act of Parliament should be necessary to give the King a holiday, but if a holiday is to mean a complete rest I can see no other way. Nor is the use of the sign-manual the only difficulty. The King's function is by no means confined to "implementing", instruments of government. He is as indispensable to his Ministers as they are to him; if it is '".eir duty to advise him, it is equally their privilege to take counsel of him, and they are far more indebted to him in this respect than the public ever know. Hence the "right of access." Hence the reservation in the commission of 1911 about telegraphic "instructions." His Majesty was, as a matter of fact, in daily telegraphic communication with his Ministers the whole time he was in India. Nothing short of a Regency Act could relieve the King of these onerous responsibilities. The King is the only person in his dominions who can never rest.