Report No. 69

III. Sovereignty

6.7. Exercise of functions under authority of sovereignty.-

As regards the first criterion (exercise of judicial functions under authority derived from the sovereign), it may be mentioned that the administration of justice is a primary function of sovereignty. In England, it is accepted that the administration is one of the prerogatives of the Crown, though it is a prerogative which has long been exercisable only through duly appointed courts and judges1.

In earlier times, the King himself might sit in court, and he was presumed to be present in the King's Bench, though the judgment was given by the court. Henry IV, and even Edward IV, occasionally sat in court; by the end of the fourteenth century, however, the opinion prevailed2that though the King might be present with his Judges, he could not himself give judgment3.

Earlier, Henry II rendered justice in his own presence4. But the court which was held before him had no regular staff, no regular records, no regular procedure, and when he left the country, the court went overseas with him. The Kings of England had not been Englishmen since 1066, and would not be Englishmen for many generations to come. They were Frenchmen, French in language, French in culture, French in interests, and though naturally they praised their power in England, they left their hearts in France. Thus, Henry II spent 13 years in England and 21 years in Normandy; Richard I spent only eight months of his ten years as King in England.

The novel problem of how the king was to govern England and Normandy, when absent from one or the other, was solved by creating a Justiciar in both the kingdoms and the duchy, who held the most exalted office that man could conceive of as existing under the king. So this court began to sit in bane at Westminster; it became a sedentary court, and the single central court of law, through the accident of the king's absences. King John had, however, after the deprivation of Normandy, to stay at home, and he reversed the process, keeping the court coram rege with him and allowing the 'bench' at Westminster to wither away.

1. Hood Phillips First Book of English Law, (1955), p. 16.

2. Hood Phillips First Book of English Law, (1955), p. 1.

3. See case of Prohibitions, infra.

4. Professor G.O. Sayles History of Court of King's Bench, Address to Salden Society, 19 March, 1959, (1959) 227 Law Times 229.

6.8. Chief Justice Coke relates that he "greatly offended" James I, when that monarch wished to revive the earlier practice, by saying1: "The King in his own person cannot adjudge any case, cause but this ought to be determined and adjudged in some court of Justice, according to the law and custom of England Thus it was that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an art which requires long study and experience, before that a man can attain to the cognizance of it."

1. Prohibitions del Roy, (1607) 12 Co Rep 63.

6.9. Halsbury's view.-

According to Halsbury1, "Originally, the term "court" meant, among other meanings, the Sovereign's palace; it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the Sovereign2." All "Tribunals, however, are not courts, in the sense in which the term is here employed, namely to denote such tribunals as exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of voluntary submission to their jurisdiction. Thus, arbitrators, committees of clubs, and the like, although they may be tribunals exercising judicial functions, are not 'courts' in this sense of that term."

1. Halsbury's, 3rd Edn., Vol. 9, p. 342.

2. Emphasis supplied.

6.10. Utilising one of the points made in the discussion in Halsbury1, we may say that since all tribunals are not courts, it becomes desirable to indicate, in each statute, or by case law, how far a particular tribunal is or is not to be regarded as 'court' for the purposes of the particular statute.

1. Para. 6.9, supra.

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