9

CHAPTER II.

PREROGATIVE.

ALL the prerogatives vested in the Crown by English law are exercisable over individuals in Ceylon. But those merely local to England, and which do not fundamentally sustain the existence of the Crown, or form the pillars on which it is supported, are not, it seems, prima facie prerogatives in Ceylon. The minor prerogatives and interests of the Crown are governed by the common law of Ceylon. Though if the law is silent on the subject, the prerogative established by English law prevails in every respect; subject, perhaps, to exceptions which the difference between the constitutions of England and Ceylon create. (Chitty on Prerog. 25-6; Campbell v. Hall, ante.)*

* I have adopted this view of Mr. Chitty, believing it to be sound; but I do not agree with the wider and almost inconsistent doctrine expressed by him, page 32 of the same work. He has there cited an opinion from Chalmers, and has applied to all colonies an opinion intended only for the West Indies, which, though conquered, were treated as unoccupied countries, and whose common law is the common law of England.

Prerogative.

Direct prerogatives.

Prerogatives are either direct or incidental.

The direct are such positive substantial proofs of the Sovereign character and authority as are vested in, and spring from, the Sovereign's political person, considered by itself, without reference to other extrinsic circumstances, as the right of sending ambassadors, appointing governors, and the like. Incidental prerogatives always bear a relation to something else, distinct from the person of the Sovereign, and are, indeed, only exceptions, in favour of the Crown, to those general rules which are established for the rest of the community: such as, that the Crown's simple debt shall be preferred before the subsequent specialty debt of any subject (Ord. 14 of 1843, § 5). These, and an infinite number of other instances, will better be understood when we come regularly to consider the rules themselves, to which these incidental prerogatives are exceptions; but at present we speak only of the substantive or direct prerogatives.

Direct prerogatives exist in regard to the royal character; the royal authority; and the royal income.

The Queen can do no wrong; which means that whatever is questionable in the conduct of public affairs is not to be imputed to the Sovereign, nor is she answerable personally for it to her people: and this maxim also means that the prerogative of the Crown extends not to do any injury it is created for the benefit of the people, and therefore cannot be exerted to their prejudice.

the Crown.

From this maxim (and also because no court can have Suits against jurisdiction over the Sovereign) has arisen the English rule that no suit or action can be brought against the Sovereign, even in civil matters; yet in matters of private injury a petition of right is allowed. If any person has, in point of property, a just demand upon the Crown, he must petition the Crown in the Court of Chancery, where the Chancellor administers right as a matter of grace, though not upon compulsion. But there does not seem to be any petition of right for personal wrongs.* By Mr. Bovill's Act, petition of right is now conducted according to the form of an ordinary action.

The Ceylon government, however, having no Chancellor, a suit against the Government has been permitted, and the Queen's Advocate is the public officer who is sued on behalf of the Crown. (Ord. No. 12, 1843, § 4, vol. ii. p. 163; 16,588 D.C. Galle, Lorenz R. 12.) In such actions the Crown both takes and can be condemned in costs. (Marshall, 7,540; 24,470, D.C. Kandy, Austin, 168.) Yet, except in land cases, where the plaintiff is quieted, or put in possession, and where those disturbing that judgment would, though agents of the Crown, be deemed trespassers, this action gives little more than is given by

*This rule so far applies to Ceylon, that it is impossible to conceive almost any personal wrong, in which the actual wrong-doer would not be liable; but now that the Government have become carriers by railway, a question may arise, whether the Crown will not be liable for personal injuries by railway accidents.

Nonsuit.

Its application to Crown grants.

the Petition of Right, especially in its modern form; for no execution can issue against the Crown (Marshall, 75); or against the Queen's Advocate, who is only its public officer, to sue, or defend, on its behalf. And even if execution could issue against the Crown for costs or damage, the Crown possesses no funds available; for all its revenue, even that unappropriated, is supposed to be dedicated to public purposes, and cannot in any way be disposed of, but by a vote of the Legislative Council. In practice, the Goverment does, on the recommendation of the Queen's Advocate, pay both costs and damages, and covers the expenditure by a vote of the Legislative Council.

It is an English prerogative that the Crown can never be nonsuited; for a nonsuit is a desertion of the suit, by the non-appearance of the plaintiff in court. (Co. Litt. 139.) But as a nonsuit in Ceylon does not proceed on the same principle, but is rather a dismissal of the cause, or dissolution of the instance for want of evidence, by the court, and not at the election of the plaintiff, this prerogative may not apply to Ceylon.

The Crown not only can do no wrong, but cannot even think wrong; it can accordingly never mean to do an improper thing. Therefore, if the Crown is induced to grant any franchise or privilege to a subject contrary to reason, or in anywise prejudicial to the common wealth, or to a private person, the law will not suppose the

Sovereign to have meant either an unwise or an injurious action, but declares that he was deceived in his grant; and thereupon such grant is rendered void, merely upon the foundation of fraud and deception, either by or upon those agents whom the Crown has thought fit to employ. (Bl. Com. I. 246; Kerr, I. 240.)

On the same principle, the Crown cannot be guilty No laches imputed to the of neglect, or laches, and therefore no delay will bar a Crown. Crown right. This is the rule "nullum tempus occurrit regi." No prescription runs against the Crown as regards the general prerogatives, nor by the Ordinance of Prescription. As to the Common law, see "Prescription." (Ord. 8 of 1834, § 12; 6,418, G. S. Ratnapoora, 1 Nov. 1833; Morg. 3.)

The Monarch never dies; that is, the regal office and

the royal dignity are perpetual: and the Monarch is an absolute sovereign; that is, in the exercise of lawful prerogative, no legal authority can delay or resist the Crown. The Queen rejects what bills may come to her, and pardons what offences she pleases, except where the law has expressly, or by evident consequence, laid down some boundary or exception, declaring that thus far the prerogative shall go, and no farther.

The Sovereign perpetual and absolute.

and consuls.

The Crown has the sole power of sending ambassadors Ambassadors to foreign states, and receiving ambassadors at home. Also of accepting consuls and consular agents.

In respect to civil suits, neither an ambassador nor any of his train or comites can be prosecuted for any