The Crown, the Sovereign, and Elizabeth II

My twitter friend Kimberlee asked if I could outline how I understand the difference between the Crown, the Sovereign, and the monarch as a natural person.

Here’s my take. I welcome constructive comments.

The Crown is the repository of sovereign authority. As such, it serves as our concept of the Canadian state. It also serves as the ultimate source of executive authority, legislative authority, and judicial authority in Canada. While a few commentators have argued that the Crown simply means ‘the Government’, this is too simplistic. The government conducts its affairs as a servant of the Crown as the executive power; accordingly, it is wrong to conflate the government and the Crown. Similarly, Parliament is, formally speaking, a body assembled by the Crown to pass legislation and fund the government. This is also why the Crown is part of Parliament: to give its assent to bills that have passed the House of Commons and the Senate. The courts, meanwhile, exist to uphold the law. Yet, in a formal sense, judges do so as agents of the Crown. Although the notion is medieval, the judiciary maintains the laws of the realm, understood as Crown as the body politic (in today’s parlance, the state.)

While all this may seem downright strange, it’s important to recognize that placing sovereign authority in the Crown is no more abstract than placing it in “the people.” The difference lies in how sovereign authority flows. The Crown’s authority flows down, while the authority of “the people” flows up. That’s the fundamental difference between a constitutional monarchy and a republic. Although both can be liberal democracies, their constitutional structures diverge in terms of whether sovereign authority is top-down or bottom-up.

So, who or what is the Queen? The Sovereign (ie Queen or King) is a legal person that possesses the Crown’s authorities and makes the Crown manifest. Rather than being forced to refer to the Crown as an abstract concept in law, we have the advantage of being able to talk about this fictional legal personality. This legal person, in fact, is treated as synonymous with the Crown; the Sovereign and Crown are a single corporate entity. When we say that the Crown is doing this or that, we mean that the Sovereign is doing it as this legal person. We see this in any number of areas. When people sign certain contracts with the government, they are technically signing an agreement with a legal person, the Sovereign. When military officers get their commissions, they receive them from the Sovereign as a legal person and are in a personal legal relationship with the Sovereign. When the Governor General gives royal assent to a new law, s/he is doing so in the name of the Sovereign as the legal person that is simultaneously the state and source of legislative authority.

It’s equally important to note that this legal person is perpetual and never dies. This is why references to the Queen or Her Majesty in law and the constitution still empower or bind the Crown if we have a King and a His Majesty. Legally speaking, it’s still the same, timeless legal person.

This legal person also helps us understand why oaths are sworn to the Queen. In swearing these oaths, individuals are saying that they recognize the sovereign authority of the Crown as the state, as well as the legitimacy of the executive, parliamentary statutes, and the courts. Because this legal person is the Crown, it also explains why we have the concept of sovereign immunity. As the source of legislative and judicial authority the legal person of the Sovereign is immune to certain types of prosecution. This simply means that the sovereign authority, and source of law itself, cannot go against its own laws. But that does not mean that the agents of the Crown, those who acts in the Sovereign’s name, cannot be found to have violated the law or be prosecuted.

Key executive powers known as prerogatives formally belong to this legal person, too. The power to issue passports, ratify treaties, engage in diplomacy, deploy the military, and make appointments resides in the Sovereign. In Canada, the Sovereign has delegated all these powers to the Governor General. In line with the conventions of responsible government and the particularities of statute, the Governor General exercises these powers on the advice of ministers, or ministers themselves have had these authorities delegated to them in law.

The essential point to note here is that the Sovereign and the Crown are treated as a single corporate entity and legal person. As the sovereign authority and the state, all executive, legislative, and judicial affairs are done in the name of the Sovereign/Crown. In formal terms, the Sovereign reigns over us as a legal person, but because the Crown is the state, that simply means that we are under the authority of Canada.

Where does Elizabeth II fit in all this? The woman we call Queen Elizabeth II is the physical representation of the legal personality known as the Queen of Canada. She personifies the Sovereign/Crown of Canada. Indeed, she personifies and represents a number of legally distinct and independent legal personalities, such as the Queen of the United Kingdom and Queen of Australia. When we say that Canada and the United Kingdom have the same Queen, then, what we really mean is that the same natural person, Elizabeth II, personifies and represents two entirely independent and distinct legally personalities.

What else do we know about Elizabeth II as a natural person? We know that she was a Girl Guide when she was a tween, and she a mechanic during the Second World War, prior to become the monarch of various realms in 1952. She owns Balmoral Castle as a natural person, having inherited it from her father as a natural person. She currently owns two corgis and the horse that she owns, Estimate, won the Royal Ascot this year.

Because she personifies and represents legal personalities that are synonymous with the state, however, she is also a natural person like no other. She enjoys the powers and privileges of the legal personalities she personifies. For instance, she does not need a passport to travel because her distinct legal personalities are the authority that grants passports. Similarly, she is not a citizen of any of the states she personifies because she represents the legal personality that grants citizenship.

What would I like Kimberlee and others to take away from all this? Mainly that we should be precise about what and who we are talking about when making reference to the Queen. In a Canadian context, when people talk about “the Queen” they can be referring to Elizabeth II as a natural person or to the Sovereign/Crown of Canada as a corporate entity and legal personality. The former is doubtlessly a British woman, while the latter is purely Canadian in law and the foundation of Canada as a sovereign state.

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7 Comments

  1. Interesting piece. So, is the concept of the fictional legal person who never dies related to the continuity in office of those whom s/he appoints?

    For example, were Elizabeth II to pass away during his tenure (I hope not), would Governor-General David Johnston remain the legitimate appointee of the Sovereign without having to be re-appointed by Charles?

  2. Well stated, but I would suggest that some may find a deeper understanding from at least a quick review of history. I’ll be a little glib in my review, but I hope the message is not lost.

    The concept of the King having all authority is many centuries old, and back in the day it was the King who decided how much tax to collect, and how to spend it. It was the King who decided changes to the Law, and who was the ultimate adjudicator of legal disputes. Sometimes this worked out okay, but it also led to rebellions and the likes of Robin Hood.

    It started to change when a number of barons from across England rose up against King John and forced him to take their advice on taxation and laws: they forced him to sign on to Magna Carta at Runnymede, which effectively bound the King to the will of the Barons.

    The effect was not immediate, but it has been profound: while the King retained all authority, he became completely bound by the advice which arose through the House of Lords (still cloaked in red to remind us of their stature) and the House of Commons (cloaked in green to remind us of the fields at Runnymede). Today, the only reserve powers exercised by the Queen not on the advice of her Ministers is in the awarding of certain Queen’s Honours. On the exercise of other powers of the State, such as taxation, even the Ministers are bound; they must abide by the express will of Parliament, and for taxes must abide specifically by the will of the elected House of Commons.

    A King or a Queen is a human and may die, and their son or daughter become King or Queen in time. As they ascend the throne, they become Sovereign over their various dominions (which include Canada). The Crown is the abstracted estate and authority over which and through which they rule. The Ministry are the named advisors who can command the support of the House of Commons, or regain such support within a reasonable time, through an election if necessary. The House of Commons are the elected representatives of the people, through whom all authority to act must ultimately flow, since Runnymede. The Senate is an upper body which helps the House in the crafting of laws and advising Ministers (and in turn, the Crown).

    Just as the King used to be the sole ultimate authority, all the Government does is done today in the name of the Crown. Laws are enacted by the Crown (on the advice of her Ministers). Criminals are prosecuted by the Crown. Lands are held by the Crown, and business may be carried out by the Crown. It may not require the Queen’s daily involvement, but it is work carried out in the name of the Queen, by her authority as Sovereign.

  3. Reblogged this on Onlyjustwords and commented:
    A Twitter acquaintance from the University of Ottawa has published this article on the subject of our Crown’s legal ties here in Canada:

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