The concept of the Crown as a corporation sole developed first in the Kingdom of England as a separation of the physical crown and property of the kingdom from the person and personal property of the monarch. It spread through English and later British colonisation and is now rooted in the legal lexicon of all 15 Commonwealth realms, their various dependencies, and states in free association with them. It is not to be confused with any physical crown, such as those of the British regalia.[3]
The term the Crown does not have a single definition. Legal scholars Maurice Sunkin and Sebastian Payne opined, "the nature of the Crown has been taken for granted, in part because it is fundamental and, in part, because many academics have no idea what the term the Crown amounts to".[4]Nicholas Browne-Wilkinson theorised that the Crown is "an amorphous, abstract concept" and, thus, "impossible to define",[5] while William Wade stated the Crown "means simply the Queen".[6]
Warren J. Newman described the Crown is "a useful and convenient means of conveying, in a word, the compendious formal, executive and administrative powers and apparatus attendant upon the modern constitutional and monarchical state."[7]
The crown as an object is a piece of jewelled headgear under guard at the Tower of London. But it symbolizes the powers of government which were formerly wielded by the wearer of the crown... The term "the Crown" is therefore used in constitutional law to denote the collection of such of those powers as remain extant (the royal prerogative), together with such other powers as have been expressly conferred by statute on "the Crown".
Lord Diplock suggested the Crown means "the government [and] all of the ministers and parliamentary secretaries under whose direction the administrative work of the government is carried out by the civil servants employed in the various government departments."[5] This interpretation was supported by section 8 of the Pensions (Colonial Service) Act 1887 (50 & 51 Vict. c. 13), which set the terms "permanent civil service of the state", "permanent civil service of Her Majesty" and "permanent civil service of the Crown" as having the same meaning.[9]
The Crown was first defined as an 'imperial' crown during the reign of Henry VIII in the Ecclesiastical Appeals Act 1532 which declared that 'this realm of England is an empire... governed by one Supreme Head and King having the dignity and royal estate of the imperial Crown of the same'.[10] In William Blackstone's 1765 Commentaries on the Laws of England, he explained that "the meaning therefore of the legislature, when it uses these terms of empire and imperial, and applies them to the realm and crown of England, is only to assert that our king is equally sovereign and independent within these his dominions, as any emperor is in his empire; and owes no kind of subjection to any other potentate on earth."[11]
Balmoral Castle in Aberdeenshire, Scotland, a privately owned property of Charles III and not property of the Crown
The concept of the Crown took form under the feudal system.[12] Though not used this way in all countries that had this system, in England, all rights and privileges were ultimately bestowed by the ruler. Land, for instance, 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. When such lands become ownerless, they are said to escheat; i.e. return to direct ownership of the Crown (Crown land). Bona vacantia is the royal prerogative by which unowned property, primarily unclaimed inheritances, becomes the property of the Crown.[a][13]
As such, the physical crown and the property belonging to successive monarchs in perpetuity came to be separated from the person of the monarch and his or her private property. After several centuries of the monarch personally exercising supreme legislative, executive, and judicial power, these functions decreased as parliaments, ministries, and courts grew through the 13th century.[14] The term the Crown then developed into a means by which to differentiate the monarch's official functions from his personal choices and actions.[15] Even within mediaeval England, there was the doctrine of capacities separating the person of the king from his actions in the capacity of monarch.[16]
When the kingdom of England merged with those of Scotland and
Ireland, the concept extended into the legal lexicons of the United
Kingdom and its dependencies and overseas territories and, eventually, all of the independent Commonwealth realms. There are, thus, now many distinct crowns, as a legal concept, "worn by"—or many different offices of monarch occupied by—one person as sovereign (supreme monarch) of each country.[17] However, the Crown can also mean the pan-national institution shared by all 15 Commonwealth realms.[15]
In each Commonwealth realm, the term the Crown, at its broadest, now means the government or the polity known as the state, while the sovereign in all realms is the living embodiment of the state,[18] or symbolic personification of the Crown.[b][32] The body of the reigning sovereign thus holds two distinct personas in constant coexistence, an ancient theory of the "King's two bodies"—the body natural (subject to infirmity and death) and the body politic (which never dies).[17] The Crown and the sovereign are "conceptually divisible but legally indivisible [...] The office cannot exist without the office-holder".[c][34]
The terms the state, the Crown,[35]the Crown in Right of [jurisdiction], His Majesty the King in Right of [jurisdiction],[36] and similar, are all synonymous and the monarch's legal personality is sometimes referred to simply as the relevant jurisdiction's name.[25][37] (In countries using systems of government derived from Roman civil law, the state is the equivalent concept.[38]) However, the terms the sovereign or monarch and the Crown, though related, have different meanings: The Crown includes both the monarch and the government. The institution and powers of the Crown are formally vested in the king, but, conventionally, its functions are exercised in the sovereign's name by ministers of the Crown[d] drawn from and responsible to the elected chamber of parliament.[39]
Still, the king or queen is the employer of all government officials and staff (including the viceroys, judges, members of the armed forces, police officers, and parliamentarians),[e] the guardian of foster children (Crown wards), as well as the owner of all state lands (Crown land), buildings and equipment (Crown property),[41] state-owned companies (Crown corporations or Crown entities),[42] and the copyright for government publications (Crown copyright).[43] This is all in his or her position as sovereign, not as an individual; all such property is held by the Crown in perpetuity and cannot be sold by the sovereign without the proper advice and consent of his or her relevant ministers.
The mace of the Parliament of Queensland, symbolising the authority of parliament as derived from the Crown.[44]
The Crown also represents the legal embodiment of executive, legislative, and judicial governance. While the Crown's legal personality is usually regarded as a corporation sole,[45] it can, at least for some purposes, be described as a corporation aggregate headed by the monarch.[46][47]Frederic William Maitland argued the Crown is a corporation aggregate embracing the government and the "whole political community".[48] J.G. Allen preferred to view the Crown as a corporation sole; one office occupied by a single person, enduring "through generations of incumbents and, historically, lends coherence to a network of other institutions of a similar nature."[49] Canadian academic Philippe Lagassé found the crown "acts in various capacities, as such: crown-in-council (executive); crown-in-parliament (legislative); crown-in-court (judicial). It is also an artificial person and office as a corporation sole. At its most basic, "the Crown" is, in the UK and other Commonwealth realms, what in most other countries is "the state"."[50]
Historically, the Crown was considered to be indivisible.[51] Two judgments—Ex parte Indian Association of Alberta (EWCA, 1982) and Ex parte Quark (House of Lords, 2005)—challenged that view. Today, it is considered separate in every country, province, state, or territory, regardless of its degree of independence, that has the shared monarch as part of the respective country's government; though, limitations on the power of the monarch in right of each territory vary according to relevant laws, thus making the difference between full sovereignty, semi-sovereignty, dependency, etc. The Lords of Appeal wrote, "the Queen is as much the Queen of New South Wales and Mauritius and other territories acknowledging her as head of state as she is of England and Wales, Scotland, Northern Ireland, or the United Kingdom."[52]
The Crown in each of the Commonwealth realms is a similar, but separate, legal concept. To distinguish the institution's role in one jurisdiction from its place in another, Commonwealth law employs the expression the Crown in Right of [place]; for example, the Crown in Right of the United Kingdom,[57] the Crown in Right of Canada, the Crown in Right of the Commonwealth of Australia, etc. Because both Canada and Australia are federations, there are also crowns in right of each Canadian province[58] and each Australian state. When referring to the Crown in multiple jurisdictions, wording is typically akin to "the Crown in right of [place], and all its other capacities".[59]
The powers of a realm's crown are exercised either by the monarch, personally, or by his or her representative on the advice of the appropriate local ministers, legislature, or judges, none of which may advise the Crown in any other realm.
Queen Elizabeth II in her various capacities as sovereign of different countries, demonstrating the divisibility of the crown
New Zealand
In New Zealand, the term the Crown is used to mostly mean the authority of government; its meaning changes in different contexts.[60][61] In the context of people considering the claims and settlements related to the Treaty of Waitangi, professor of history Alan Ward defines the Crown as "the people of New Zealand—including Māori themselves—acted through elected parliament and government."[62]
Crown Dependencies
In the Bailiwick of Guernsey, legislation refers to the Crown in Right of the Bailiwick of Guernsey[63] or the Crown in Right of the Bailiwick[64] and the law officers of the Crown of Guernsey submitted that, "the Crown in this context ordinarily means the Crown in right of the république of the Bailiwick of Guernsey"[65] and that this comprises "the collective governmental and civic institutions, established by and under the authority of the monarch, for the governance of these islands, including the states of Guernsey and legislatures in the other islands, the royal court and other courts, the lieutenant governor, parish authorities, and the Crown acting in and through the Privy Council".[66]
Legislation in the Isle of Man also defines the Crown in Right of the Isle of Man as being separate from the Crown in Right of the United Kingdom.[70]
British Overseas Territories
Following the Lords' decision in Ex parte Quark, 2005, it is held that the King, in exercising his authority over British Overseas Territories, does not act on the advice of the Cabinet of the United Kingdom, but, in his role as king of each territory, with the exception of fulfilling the UK's international responsibilities for its territories. To comply with the court's decision, the territorial governors now act on the advice of each territory's executive and the UK government can no longer disallow legislation passed by territorial legislatures.[71]
In criminal proceedings, the state is the prosecuting party; the case is usually designated (in case citation) as R v [defendant],[72] where R can stand for either rex (if the current monarch is male) or regina (if the monarch is female), and the v stands for versus. For example, a criminal case against Smith might be referred to as R v Smith and verbally read as "the Crown and Smith".
The Crown is, in general, immune to prosecution and civil lawsuits. So, R is rarely (albeit sometimes[f]) seen on the right hand side of the 'v' in the first instance. To pursue a case against alleged unlawful activity by the government, a case in judicial review is brought by the Crown against a minister of the Crown on the application of a claimant. The titles of these cases now follow the pattern of R (on the application of [X]) v [Y], notated as R ([X]) v [Y], for short. Thus, R (Miller) v Secretary of State for Exiting the European Union is R (on the application of Miller and other) v Secretary of State for Exiting the European Union, where "Miller" is Gina Miller, a citizen. Until the end of the 20th century, such case titles used the pattern R v Secretary of State for Exiting the European Union, ex parte Miller. Either form may be abbreviated R (Miller) v Secretary of State for Exiting the European Union.
Most jurisdictions in Australia use R or The King (or The Queen) in criminal cases. If the Crown is the respondent to an appeal, the words The King will be spelled out, instead of using the abbreviation R (i.e. the case name at trial would be R v Smith; if the defendant appeals against the Crown, the case name would be Smith v The King). In Western Australia and Tasmania, prosecutions will be brought in the name of the respective state instead of the Crown (e.g. The State of Western Australia v Smith). Victorian trials in the original jurisdiction will be brought in the name of the director of public prosecutions. The Commonwealth director of public prosecutions may choose which name to bring the proceeding in. Judges usually refer to the prosecuting party as simply "the prosecution" in the text of judgments. In civil cases where the Crown is a party, it is a customary to list the body politic (e.g. State of Queensland or Commonwealth of Australia) or the appropriate government minister as the party, instead. When a case is announced in court, the clerk or bailiff may refer to the Crown orally as our sovereign lord the king (or our sovereign lady the queen).
In reporting on court proceedings in New Zealand, news reports will refer to the prosecuting lawyer (often called a Crown prosecutor, as in Canada and the United Kingdom) as representing the Crown; usages such as, "for the Crown, Joe Bloggs argued", being common.
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, such as the enforcement of judgments against the Crown. Qui tam lawsuits on behalf of the Crown were once common, but have been unusual since the Common Informers Act 1951 ended the practice of allowing such suits by common informers.
Crown forces
The term "Crown forces" has been used by Irish republicans and nationalists, including members of paramilitary groups, to refer to British security forces which operate in Ireland. The term was used by various iterations of the Irish Republican Army (IRA) during conflicts such as Irish War of Independence and the Troubles. As noted by Irish republican Danny Morrison, "[t]he term 'security forces' suggests legitimacy, which is why republicans prefer terms like 'the Brits' or 'the Crown Forces', which undermines their authority."[g][74] Due to the Irish War of Independence, "the phrase 'Crown Forces' came to represent something abhorrent in the Republican narrative".[75]
Symbolism
The Crown is represented by the image of a crown in heraldry and other imagery such as cap badges, uniforms, government logos and elsewhere. The heraldic crown is chosen by the reigning monarch. From 1661 to the reign of Queen Victoria, an image of St Edward's Crown was used.[76] The early part of Victoria's reign depicted the Imperial State Crown created for her coronation, while a Tudor Crown began to be used from the 1860s.[76] In 1901, the Tudor Crown design was standardised and continued in use until the reign of Elizabeth II in 1952 when a heraldic St Edward's Crown was restored.[76][77] In 2022, Charles III opted for a modified Tudor Crown design.[78][79]
St Edward's Crown
1901 pattern Tudor Crown
2022 pattern Tudor Crown
Crown copyright applies in perpetuity to depictions of the Royal Arms and any of its constituent parts under the royal prerogative, and The National Archives restricts rights to reproduce them.[80][81] Although Crown Copyright usually expires 50 years after publication, Section 171(b) of the Copyright, Designs and Patents Act 1988 made an exception for 'any right or privilege of the Crown' not written in an act of parliament, thus preserving the rights of the Crown under the unwritten royal prerogative.[82]
In addition, use of images of the crowns for commercial purposes is specifically restricted in the UK (and in countries which are party to the Paris Convention) under sections 4 and 99 of the Trade Marks Act 1994, and their use is governed by the Lord Chamberlain's Office.[83][84][85] It is also an offence under Section 12 of the Trade Descriptions Act 1968 to give a false indication that any goods or services are supplied to the monarch or any member of the royal family.[86][85]
^Jurisdictions in which this prerogative does not apply include Cornwall, where unowned property becomes the property of the duke of Cornwall, and Lancashire, where it becomes the property of the duke of Lancaster.
^In the Canadian context, the monarch has been described by Eugene Forsey as the "symbolic embodiment of the people—not a particular group or interest or party, but the people; the whole people";[19] his daughter, Helen Forsey, said of his opinion on the Crown, "for him, the essence of the monarchy was its impartial representation of the common interests of the citizenry as a whole, as opposed to those of any particular government."[19] The Department of Canadian Heritage said the Crown serves as the "personal symbol of allegiance, unity, and authority for all Canadians,"[20][21] a concept akin to that expressed by King Louis XIV: "L'État, c'est moi", or, "I am the state".[22]Robertson Davies stated in 1994, "the Crown is the consecrated spirit of Canada",[23] and past Ontario chairman of the Monarchist League of Canada Gary Toffoli opined, "the Queen is the legal embodiment of the state at both the national and the provincial levels [...] She is our sovereign and it is the role of the Queen, recognized by the constitutional law of Canada, to embody the state."[24]
^As Peter Boyce put it, "the Crown as a concept cannot be disentangled from the person of the monarch, but standard reference to the Crown extends well beyond the Queen's person."[33]
^The Supreme Court found in the 1980 case Attorney General of Quebec v. Labrecque that civil servants in Canada are not contracted by an abstraction called the state, but, rather, they are employed by the monarch, who "enjoys a general capacity to contract in accordance with the rule of ordinary law."[40]
^In Danny Morrison's words, "[t]he term 'security forces' suggests legitimacy, which is why republicans prefer terms like 'the Brits' or 'the Crown Forces', which undermines their authority."[73]
^Wade, William, "The Crown, Ministers, and Officials: Legal Status and Liability", in Sunkin, M.; Payne, S. (eds.), The Nature of the Crown, p. 24
^Newman, Warren J. (2017), Lagassé, Philippe; MacDonald, Nicholas A. (eds.), "The Crown in the 21st Century"(PDF), Review of Constitutional Studies, Some Observations on the Queen, the Crown, the Constitution, and the Courts, 22 (1), Edmonton: Centre for Constitutional Studies: 56, archived(PDF) from the original on 16 August 2022, retrieved 5 June 2023
^Town Investments Ltd v Department of the Environment[1977] UKHL 2 at para. 16, [1978] AC 359.
^Johnston, W. Dawson; Johnston, Jean Browne, eds. (1896). English Historical Reprints. Michigan: Sheehan & Co. p. 32. Archived from the original on 1 July 2024. Retrieved 23 July 2024.
^Torrance, David (11 January 2023), The Crown and the Constitution(PDF), House of Commons Library, p. 8, archived(PDF) from the original on 2 March 2023, retrieved 1 March 2023
^Elizabeth II (2005), "46.1.b", Interpretation Act, Ottawa: Queen's Printer for Canada (published 1 April 2005), archived from the original on 5 July 2009, retrieved 7 August 2009
^ abForsey, Helen (1 October 2010). "As David Johnson Enters Rideau Hall..."The Monitor. Ottawa: Canadian Centre for Policy Alternatives. Archived from the original on 23 January 2020. Retrieved 23 January 2011.
^Boyce, Peter John (2008a), The Queen's Other Realms: The Crown and Its Legacy in Australia, Canada and New Zealand, Sydney: Federation Press, p. 81, ISBN978-1-86287-700-9
^Elizabeth II (9 October 2012), "83.1", Financial Administration Act, Queen's Printer for Canada, archived from the original on 2 August 2012, retrieved 6 December 2012
^"Crown Entities Act 2004". New Zealand Legislation. Parliamentary Counsel Office. 25 February 2024. Archived from the original on 5 September 2024. Retrieved 24 February 2024.
^Canada(PDF) (Map). Queen's Printer for Canada. 2006. Archived from the original(PDF) on 26 March 2009. Retrieved 16 May 2009.
^George V (9 April 1925), "s. 180", Law of Property Act 1925, London: King's Printer, archived from the original on 9 August 2020, retrieved 11 September 2015
^Lagassé, Philippe (2 November 2021), The State, The Crown, and Parliament, lecture given at Carleton University, Ottawa{{citation}}: CS1 maint: location missing publisher (link)
^Saunders, Cheryl (2015). "The Concept of the Crown". Melbourne University Law Review. 38: 883.
^Lauterpacht, E.; Greenwood, C. J. (1992). International Law Reports. Vol. 87. Cambridge: Cambridge University Press. pp. 286, 713. ISBN978-0-949009-99-9. Archived from the original on 5 September 2024. Retrieved 29 October 2015.
^Royal Institute of International Affairs (1983). The British Year Book of International Law. Vol. 53. British Institute of International Affairs. Oxford: H. Frowde. pp. 253, 257, 258. Archived from the original on 5 September 2024. Retrieved 29 October 2015.
^The Australian law journal. Vol. 52. North Ryde: Law Book Co. of Australasia Ltd. 1978. pp. 58, 203, 207. 3910867. Archived from the original on 5 September 2024. Retrieved 29 October 2015.
^Ministry of Natural Resources (24 January 2006), Disposition of Public Land to Other Governments and Agencies(PDF), Toronto: Queen's Printer for Ontario, p. 2, at 3.2.B, archived(PDF) from the original on 18 May 2015, retrieved 25 April 2010, When public land is required by the federal government or one of its departments, or any provincial ministry, the land itself is not transferred. What is transferred is the responsibility to manage the lands on behalf of Her Majesty the Queen (HMQ). This is accomplished by an Order-in-Council or a Minister's Order that transfers management of land either from HMQ in right of Ontario to HMQ in right of Canada as represented by a department or to HMQ in right of Ontario as represented by another ministry. The Crown does not transfer ownership to itself.
^Hawes-Bilger, Cordula (2007). War Zone Language: Linguistic Aspects of the Conflict in Northern Ireland. Francke. p. 148. ISBN978-3-7720-8200-9.; O'Neill, Conor (2004). "Terrorism, insurgency and the military response from South Armagh to Falluja". The RUSI Journal. 149 (5): 22–25. doi:10.1080/03071840408523120. ISSN0307-1847. S2CID152582870.; Tomaney, John (2000). "End of the Empire State? New Labour and Devolution in the United Kingdom". International Journal of Urban and Regional Research. 24 (3): 675–688. doi:10.1111/1468-2427.00271. ISSN0309-1317.
^Ferriter, Diarmaid (1 November 2012). Ambiguous Republic: Ireland in the 1970s. Profile Books. p. 247. ISBN978-1-84765-856-2. Archived from the original on 5 September 2024. Retrieved 21 August 2015. Because of the events of the War of Independence, the phrase 'Crown Forces' came to represent something abhorrent in the Republican narrative.
^"Symbols of State Guidance"(PDF). The Public Safety Foundation (UK). July 2023. Archived(PDF) from the original on 11 October 2023. Retrieved 19 July 2024.
^"Frequently asked questions". The National Archives. Archived from the original on 16 July 2024. Retrieved 3 August 2024. The Royal Arms and its constituent parts are protected by perpetual Crown copyright, and may only be re-used by His Majesty the King, members of the Royal Family, government departments and official holders of the Royal Warrant.
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