forms thereof, in the several courts in Ontario, shall continue to be regulated by the rules of evidence established in England, as they existed on the day and year last aforesaid, except so far as the said laws and rules have been since repealed, altered, varied, modified, or affected by any Act of the Imperial parliament still having the force of law in Ontario; or by any Act of the late province of Upper Canada, or of the province of Canada, or of the province of Ontario, still having the force of law in Ontario, or by these revised statutes.

"2. The statutes of Jeofails, of limitations, and for the amendment of the law, excepting those of mere local expediency, which, previous to the 17th day of January, 1822, had been enacted respecting the laws of England, and then continued to be in force, shall be valid and effectual for the same purposes in Ontario, excepting so far as the same have, since the day last aforesaid, been repealed, altered, varied, modified, or affected in the manner mentioned in section 1 of this Act."

And as to the criminal law-upon R. S. C. (1886) c. 144, by section 1 of which it is enacted as follows:

"The criminal law of England, as it stood on the 17th day of September, in the year 1792, and as the same has since been repealed, altered, varied, modified, or affected by any Act of the parliament of the United Kingdom, having the force of law in the province of Ontario, or by any Act of the parliament of the late province of Upper Canada, or of the province of Canada, still having force of law, or by any Act of the parliament of Canada, shall be the criminal law of the province of Ontario."

QUEBEC.-The position of this province is so entirely unique, that reference to its legal system is of no aid in the other provinces. Its civil law (founded on the "Code Civile" of Napoleon) has since been recast into a provincial code, and no reference to English law is in order in that province in the sense we are now discussing. As to the criminal law, its recent codification obviates any further reference to it.

CHAPTER VI.

THE PREROGATIVES OF THE CROWN.

There has been no more fruitful cause of dispute and debate, in reference to the government of the British colonies, than the lack of a proper understanding of that branch of English law which relates to the "prerogatives of the Crown"; and within a comparatively recent period the same want of appreciation of the essential principles which underlie that law has given rise to notable disputes (a) between the executive authorities of the Dominion and of some of the provinces, as to which executive head-the Governor-General or Lieutenant-Governor-should exercise

the

of a

prerogatives in certain cases. And, in truth, this lack proper grasp of the situation is not much to be wondered at: and, for this reason, that the authorities on this branch of law (b) so mix statements of law with hymns of praise and ascriptions of attributes almost divine to the wearer for the time being of the Crown of England, that it is a difficult task to disentangle the thread of legal prin

(a) Atty. Genl. (Can.) v. Atty.-Genl. (Ont.), 19 O. A. R. 31, affirming 20 O. R. 222; see Lenoir v. Ritchie, 3 S. C. R. 575. The question about the appointment of Queen's Counsel is now standing for argument before the Court of Appeal for Ontario.

(b) "A topic that in some former ages was ranked among the arcana imperii; and, like the mysteries of the bona dea, was not suffered to be pried into by any but such as were initiated in its service; because, perhaps, the exertion of the one, like the solemnities of the others, would not bear the inspection of a rational and sober enquiry."-Blackstone.

CAN. CON.-9

ciple which runs through it (c). The old juristic saw, ubi jus est vagum ibi misera servitus, has no more forcible illustration than in the history of the struggles of the English people to free themselves from the despotism of government by prerogatives, unearthed by the industry of servile lawyers, and tortured into legal justification for executive oppression.

It is absolutely necessary to clear up this vagueness and to assign a definite position in English jurisprudence to that branch of it which relates to these "prerogatives."

It would be highly interesting, but altogether beyond the scope of this work, to enter upon a philosophic enquiry into the relative antiquity of the legislative and executive departinents of government-the law-making and the lawexecuting power-or even upon the more limited enquiry into their relative position, historically considered, in British jurisprudence. We can merely say, that from time immemorial there has been a clear distinction drawn by jurists between these two departments. If any theory can be said to have legal validity, it would appear that the legal theory of British jurisprudence is, that further back than any court will look there was a body of law- -a fundamental law (so to speak) of the constitution (d)—by virtue of which both King and Parliament had their legal being, and by it the relations of King to Parliament, and of .each to the government of the kingdom, were regulated. This common law of England recognizes only one executive magistrate as exercising authority without commission from any other, within or without the realm. That executive magistrate is the occupant for the time being of the British throne. All other magistrates act "by commission

(c) Hagarty, C J., speaks of the "boundless crop of venerable learning as to pardon and prerogative.”—19 O. A. R. at p. 36.

(d) "The original right of the kingdom and the very natural constitution of our state and policy," per Yelverton, arg. 2 St. Tr. 483. And see Hale's Hist. of the Common Law; Broom's Const, Law, 2nd ed.,

et seq.

p. 245,

The

from and in due subordination to him" (e). But the power and duty of this executive head is to execute the laws of the realm. He is not above those laws, but under them, being bound by them equally with the meanest of his subjects. It follows, of course, that no commission from him would carry authority to act otherwise than according to law (ƒ). In order to the due execution of the laws, this common law of England" has invested the executive head with certain attributes and powers, and these are collectively known as the "prerogatives of the Crown." power to alter the law of the land was no part of these prerogatives (g): that power rested exclusively with parliament, the lex et consuetuedo of which is equally part of the common law. Parliament consisted of the King and the three estates of the realm, Lords spiritual, Lords temporal, and Commons: and its enactments were promulgated as the Acts of the King in parliament. In theory, it would seem that defects in the law were supposed to be discovered by the executive head in the course of the administration of public affairs: whereupon, in the exercise of his prerogative right, vested in him by the common law, to summon the three estates of the realm, he would cause parliament to assemble in order that the law might (if all agreed)

(e) Chitty," On the Prerogatives of the Crown," 4.

(f) Ib. 5; Bracton, L. 1, c. 5.

(g) The power of the Crown, without parliament, to make such laws as might seem proper, for a conquered territory, was no exception in reality; its exercise was in the nature of executive action. See Clark, Colonial Law, 6, 8; Campbell v. Hall, Cowp. 204; and the valuable note (a) to Leith & Smith's Blackstone, at p. 19. "It has been said that, in case of territory acquired by Great Britain by conquest, inasmuch as the government is not absolutely monarchical, but the authority to impose laws is vested in the Sovereign conjointly with the two Houses of Parliament, the King therefore alone can exercise no prerogative right to impose such laws as he pleases, and consequently that the mode by which the British laws were introduced into Canada after the Treaty of Paris was of no effect. See the opinion of C. J. Hey, 2 L. C. Jur., appx. in Wilcox v. Wilcox, and L. C. Jur., vol. 1, 2nd part, pp. 38-48. See also the various judgments in Stuart v. Bowman, 2 L. C. R., and in appx. to 2 L. C. Jur." See also Forsyth, 12, et seq.

be altered and the defect remedied. Parliament, however once assembled, might address itself, not merely to the alteration desired, but to the alteration of the law upon other, matters and the other branches of parliament, or either of them, might bargain for the latter as the price of the former. In any case, any and every alteration in the law agreed upon by the King and the three estates was thereafter part of the law, to the execution of which the power and duty of the King was limited. As it is sometimes, but not very intelligibly, expressed, the King's authority, as executive head of the nation, is subordinate to his authority as caput et finis parliamenti (h). But while parliament may enact laws--has enacted many laws-even with reference to the prerogatives of the Crown, their extent, and the mode of exercising them, still, unless parliament goes to the full extent of law-making in any given case, it cannot weaken, in the slightest degree, the legal effect of the exercise by the Sovereign of a prerogative right attributed to him by the common law; and this legal effect is what the older writers particularly notice.

So careful, indeed-the old writers put it-is the common law in its provisions for the due execution of the laws of the land; so careful to provide a check against any legislative hindrance to their smooth and expeditious working, that the executive magistrate-the Crown-is by the common law, and for the very purpose of protecting the royal executive authority (i), a constituent branch of parliament and the consent of the Crown is absolutely essential to the validity of all Acts. This right to give or withhold consent, has been treated as itself one of the prerogatives of the Crown-the cover and protection to all the other prerogatives-and upon its exercise the law recog

(h) See Steph. Comm. Vol. II. p. 340, as to the proper meaning of this phrase.

(i) Chitty, On the Prerog. of the Crown, p. 3; see ante, p. 33, for an extract from Gov. Cornwallis' commission, disclosing this reason in frank terms.