Prerogative

The true idea of prerogative, was the power of doing good, and not, as it had sometimes been expressed, 'the divine right of doing ill.

Defined by the Supreme Court in Nathan v. Virginia, 1 U.S. 77.

In Civil Law. The privilege, preeminence, or advantage which one person has over another; thus, a person vested with an office is entitled to all -the rights, privileges, prerogatives, etc., which belong to it. —

An exclusive or peculiar privilege. The special power, privilege, immunity or advantage vested in an official person, either generally or in respect to the things of his office or in an official body, as a conrt or legislature. See Attorney General v. Blossom, 1 Wis. 317; Attorney General v. Eau Claire, 37 Wis. 443.

In English law. That special pre-eminence which the king (or queen) has over and above all other persons, in right of his (or her) regal dignity. A term used to denote those rights and capacities which the sovereign enjoys alone, in contradistinction to others. 1 Bl. Comin. 239.

— Prerogative court. In English law. A court established for the trial of ali testamentary causes, where the deceased left bono motabilia within two different dioceses; in which case the probate of wills belonged to the archbishop of the province, by way of special prerogative. And all causes relating to the wills, administrations, or legacies of such persons were originally cognizable herein, bsfore a judge appointed by the archbishop, calied the "judge of the prerogative court," from whom an appeal lay to the privy council. 3 Bl. Comm. 66; 3 Steph. Comm. 482. In New Jersey the prerogative court is the court of appeal from decrees of the orphans' courts in the several counties of the state. The court is held before the chancellor, under the title of the "ordinary." See In re Coursen's Will, 4 N. J. Eq. 413; Flanigan v. Guggenheim Smelting Co., 63 N. J. Law, 647, 44 Atl. 762; Robinson v. Fair, 128 U. S. 53, 9 Sup. Ot. 30, 32 In Ed. 415.

— Prerogative law. That part of the common law of England which is more particularly applicable to the king. Com. Dig. tit "Ley," A.

— Prerogative writs. In English law, the name is given, to certain' judicial writs issued by the courts only upon proper cause shown, never as a mere matter of right, the theory being that they involve a direct interference by the government with the liberty and property of the subject, and therefore are justified only as an exercise of the extraordinary power (prerogative) of the crown. In America, a theory has sometimes been advanced that these writs should issue only in cases publici juris and those affecting the sovereignty of the state, or its franchises or prerogatives, or the liberties of the people. But their issuance is now generally regulated by statute, and the use of the term "prerogative," in describing them, amounts only to a reference to their origin and history. These writs are the write of mandamus, procedendo, prohibition, quo warranto, habeas corpus, and certiorari. See 3 Steph. Comin. 629; Territory v. Ashenfelter, 4 N. M. 93, 12 Pac. 879; State v. Archibald, 5 N. In 359, 66 N. W. 234; Duluth Elevator Co. v. White, 11 N. D. 534, 90 N. W. 12; Attorney General v. Eau Claire, 37 Wis. 400.

The privilege of required or demanded before, In English law. That special and above all other persons, in tive court: a court established causes, where the deceased left dioceses, — in which case, the bishop of the province, by way writ: a writ issued on some it is necessary to apply by motion among which are procedendo, habeas corpics and certiorari.

3 That special preeminence which the king hath over and above all other persons, and out of the course of the common law, in right of his regal dignity. That law in case of the king which is law in no case of the subject.* According to Vattel, the " prerogatives of majesty " are all the prerogatives without which the sovereign command, or authority, could not be exerted in the manner most conducive to the public welfare. One of these prerogatives is the right of eminent domain,' Prerogative writs. Certiorari, prohibition, procedendo, mandamus, quo warranto, and habeas corpus: writs which do not issue without showing why the extraordinary power of the crown is called to the party's assistance.'' Some of the prerogative writs have been, in this country, largely shorn of their prerogative character, so far as their general use is concerned.^ In the United States, the cases proper for the issue of prerogative writs are largely defined by statutes. Before the passage of these statutes no such writ issued purely of right, but in the exercise of a sound judicial discretion, which took into consideration the general welfare of the community. See the writs named.

A privilege, a royal privilege, v. Court, 85; Writ. Pres,yr. Near. v. Cy-pres.

In a general sense, a personal privilege, power, or right of superior character. In English law, it is especially used of the distinct authority vested in the crown; the special power, pre-eminence, or privilege which the king has, over and above other persons, in right of his crown. Cowel. It is but little used of any distinctive rights known in the United general expressions, as in saying that a person vested with an office is entitled to all the rights, privileges, prerogatives, &c., which belong to it. Prerogative — from prcB and rogo, to ask or demand, before or above others — is a word of large extent, including all the rights which, by law, the king hath as chief of the kingdom, and as intrusted with the execution of the laws. Jamb. Prerogative court. The name of an ecclesiastical court in England, established for the trial of all testamentary causes where the deceased had left hnna notabilia (q. v.) within two different dioceses; in which case the probate of his will belonged to the archbishop of the province. All causes relating to wills, administrations, or legacies of such persons were originally cognizable therein before a judge appointed by the archbishop, called the judge of the prerogative court. This jurisdiction was transferred to the court of probate {q. v.), which, by the judicature acts, 1873 and 1875, is itself merged in the supreme court of judicature. In New Jersey, the prerogative court is the court of appeal from decrees of the orphans' courts in the several counties of the state. The court is held before the chancellor, under the title of the ordinary. Prerogative writ. Several of the great common-law writs, particularly mandamus, prohibition, quo warranto, habeas corpus, and certiorari, have been called prerogative writs, because, as employed in England, they involved, originally, an exercise of the extraordinary powers of the crown. They differ from other writs mainly in two points: they do not issue as of mere course, nor without some probable cause being shown why the extraordinary powers of the crown should be called in to the party's assistance. They are generally directed not to a sheriff or other public officer, but to the parties themselves, whose acts are the subject of complaint. (3 Bl. Com. 132; 3 Steph. Com. 629.) So far as the expression that mandamus or other writ is a prerogative writ, can be used in the United States with any distinct meaning other than that of mere historical reference, the sense is, that the writ does not a high judicial discretion; the court is not bound to grant it, but holds the power to do so, subject to considerations of the general public welfare. But the cases proper for issue of these writs have been so largely defined by statutes, that the doctrine of judicial discretion in using them is greatly abridged.

civil law, is time, and under the conditions rethe privilege, pre-eminence, or ad- gulated by law. For the law relating vantage which one person has over ere to prescription in that state, see another; thus a person vested with Code, art. 3420 to 3521. For the an office, is entitled to all the rights, difference between the meaning of privileges, prerogatives, &c. which the term prescription as understood belong to it. ae by the common law, and the same