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The King's Prerogative*

Published online by Cambridge University Press:  16 January 2009

Viscount Caldecote
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Extract

I may, I hope not inappropriately, begin by recalling a story told by our Chairman's distinguished predecessor, Sir William Anson, about Mr. Gladstone. While he was out of office, in 1890 Mr. Gladstone accepted an invitation to visit All Souls. The invitation included a request that he would give some kind of an address to the members of the Union Society, which had been the scene of his triumphs as an undergraduate sixty years ago. He agreed to do so and in a discussion with his host, the Warden of All Souls, as to a choice of subject Mr. Gladstone said that the subject did not very much matter provided it was one of general interest. He was thereupon persuaded to choose his own topic, and in due course he gave an eloquent address to a large undergraduate audience on ‘The Connexion of Homer with recent Assyriological Discovery’.

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Articles
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The Cambridge Law Journal , Volume 7 , Issue 3 , November 1941 , pp. 310 - 323
Copyright
Copyright © Cambridge Law Journal and Contributors 1941

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References

1 (1637) 3 St. Tr., at col. 1235.

2 Hist, of Eng. Law, VI, 84.

3 Hist, of England, I, 343.

4 Hist, of England, I, 343.

5 (1637) 11 St. Tr. 825.

6 (1627) 3 St. Tr. 1.

7 Trevelyan, G. M., Hist, of Eng. 255.Google Scholar

8 3 St. Tr., at col. 1230—1231, where the passages from Fortescue are cited.

9 Rushworth, Historical Collections, &c, I, 562

10 No study of the Prerogative could be complete without acquaintance with this book on this subject. Allen was a strange creature. When he was over thirty he met Lord Holland for the rest of whose life the two lived together. Allen himself was one of group of persons so delighted at the fall of the Bastille that they celebrated the event with a dinner in Edinburgh. ‘Bliss was it in that day to be alive.’ He was brought up as a doctor, but bis real interests lay in other directions. His treatise (or, rather, pamphlet) is the work of a genius. Maitland (Collected Papers, III, 248) thought that the mistake of this memorable work consisted in the suggestion that even in very old days the Folk could be and was clearly conceived of as a ‘person’, a single ‘subject’ of ownership and other rights. Allen had said that among the ancient Germans the territory possessed by the tribe was considered as the property of the community: it was folcland, whereas land that bad been severed from it by an act of government might belong to the King or the Church or a subject. But when the King was thought of as the representative of the State, the folcland or public land came to be called and considered his. Hence the origin of the Crown lands, the disposal of which to the King's favourites was a gross abuse. Maitland coupled Allen with Selden and Stubbs as a good roadmaker.

11 Collected Papers, III, 210, 218.

12 Ibid. 243.

13 1 Comm. 249.

14 (1609) 7 Rep. 1, 106.

15 Bacon, Abridgement, tit. Prerogative (A).

16 Collected Papers, III, 253.

17 Hist, of Eng. Law, VI, 10.

18 (1627) 3 St. Tr. 1.

19 (1637) 3 St. Tr. at col. 948.

20 (1627) 3 St. Tr. at col. 45.

21 Hist, of Bng. Law, VI, 40.

22 Prothero, Select Statutes, 289.

23 3 St. Tr. at col. 1231.

24 Trevelyan, G. M., Hist, of Eng. 547.Google Scholar

25 Letters from George III to Lord Bute (1756—1766).

26 1 Comm. 239.

27 Law of the Constitution (9th ed. 1939) 429.

28 (1879) 4 P. D. 129.

29 Ibid. 154.