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nizes no limitations. While from time to time parliament has withdrawn certain prerogative rights from the Crown : has, in regard to others, required the concurrence of some other person or body of persons in order to their legal exercise; and in many ways has fettered their exercise by conditions as to time, place and manner of exercise; such action has always had the consent of the Crown, no matter how unwillingly, or under what stress of circumstances, given: and this supreme prerogative—for prerogative it may be called—of giving or withholding such consent, no power short of revolution can ever take away (j). This is the aspect of the question which is pre-eminently apparent in the law books, and it is the utter inadequacy of this oneside-of-the-story mode of treatment which makes this branch of the law so unintelligible to the ordinary student. He is haunted by the idea that what he is reading is largely mere antiquarianism; and yet, the statements made are statements of legal principles which he cannot gainsay. The points of importance to a proper understanding of this branch of jurisprudence, are so slurred over, that it is only by patient spelling out of what appear to be treated as minor subdivisions that we can reach a satisfactory solution of the problem. As a matter of history, parliament, perhaps we should say the House of Commons—has always found means to secure the consent of the Crown to the enactment of laws on which its heart was bent; and, leaving aside for a moment the legal necessity for such consent, let us work out the other legal principles to which we have alluded.

Back of legal memory, stands the common law of England. The law makes the King ” (k); the attributes and powers which attach to his office, as executive head of the

(j) See notes to sec. 2 of the B. N. A. Act, post, for a reference to the method adopted to get over this difficulty, in the case of the Bill of Rights—1 Wm. & Mary, st. 2, c 2.

(k) Bracton, L. 1, c. 8; Hale, Hist. of the Common Law ; Broom, Const. Law, 248.


nation, are part of that common law; are defined and limited by that law, and are in aid of the executive (1). Over against, or at least distinct from the King, stands Parliament. It is the creation of that same law (nu), and to parliament alone does that common law entrust the power to alter the law of the land, whether common or statutory, upon any and every conceivable subject matter. Parliament, therefore, can alter the ler prerogativa (n); and it needs no very extensive knowledge of English history to appreciate that the House of Commons never relinquishes what it gains of control over the executive. The history of English legislation is the history of curtailment of prerogatives, and particularly of those prerogatives in the exercise of which any large amount of discretion was open to the Crown, as to time, place and manner of exercise.

At this stage, some attempt should perhaps be made to classify the “prerogatives of the Crown' ” as they are enumerated in the works of such writers as Hale, Blackstone, and Chitty. One large principle of division appears in the classification of prerogatives into attributes, and prerogatives proper. The attributes of sovereignty, (or pre-eminence), perfection, and perpetuity, find expression in the sayings :-" The King is properly the sole executive magistrate” (v);—“ The King can do no wrong”; and“ The King never dies.” With these legal principles, and their position in English jurisprudence, we need not now concern ourselves, as they are passive.

(1) Broom, 316.
(m) Steph. Comm. (5th ed.) vol. II. p. 335.

(1) So far, indeed, does the power of parliament over the executive extend, that it can not only deal by legislation, with the lex prerogativa, but it can “make laws and statutes of sufficient force and validity to limit and bind the Crown and the descent, limitation, inheritance, and government, thereof," at least the statute, 6 Anne, c. 7, adjudges traitors, all who affirm the contrary.

(0) Chitty, p. 4.

The prerogatives proper represented, according to the common law, powers of action in connection with every department of executive government, administrative and judicial. Even those prerogative powers in connection with the assembling, proroguing and dissolving of parliament were in aid of the executive (p). CHITTY divides these prerogatives proper—the line of division is not very exact-into:

1. Prerogatives in reference to foreign states and affairs, such as the sending of ambassadors, the making of treaties, making war and peace, and the various acts of executive government necessary in connection with these various matters (9).

2. Prerogatives arising from the recognized position of the Crown as Head of the Church, with which we in Canada need not perhaps trouble ourselves (r).

3. Prerogatives in connection with the assembling, proroguing, and dissolving of parliament (s).

4. Prerogatives annexed to the position of the Crown as the fountain of justice (t); such as the creation of courts, the appointment of judges and officers in connection therewith ; the pardoning of offenders, and the issuing of proclamations.

5. Those prerogatives, which flow from the position of the Crown as the fountain of honour, such as the bestowing of titles, franchises, etc. (u).

6. The superintendency of commerce (v).

(p) See ante, p. 131.

(9) Chitty, 39.—These are all matters which, for obvious reasons, are still treated as matters of “Imperial” concern, and over which therefore colonial legislatures have no legislative power. See Chap. IX. post.

(~) Chitty, 50.-See in re Lord Bishop of Natal, 3 Moo. P. C. (N. S.) 115; Forsyth, 35, et seq.

(8) Chitty, 67.-See Chap. VIII. and notes to secs. 38 and 50, B. N. A. Act, post. (t) Chitty, 75.

(11) Ib. 107.

(v) 16. 162.

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7. The prerogatives in connection with the collection of the revenue (w).

Sergeant STEPHEN in his new Commentaries on the Laws of England (founded on Blackstone), adopts a somewhat different division. According to his arrangement, prerogatives are either direct, or by way of exception. Of the latter he says (r):

“Those by way of exception are such as exempt the Crown from some general rules established for the rest of the community—as in the case of the maxims that no costs shall be recovered against the Crown; that the Sovereign can never be a joint-tenant; and that his debt shall be preferred before a debt. to any of his subjects” (y).

Direct prerogatives he divides into three classes, according as they regard, (1) the royal character; (2) the royal authority; and (3) the royal income (2). Of these divisions, the prerogatives by way of exception, and those regarding the royal authority and the royal income, correspond with Chitty's division treating of “prerogatives proper

So far as the government of the United Kingdom is concerned, we may, for reasons about to be stated, abandon any further discussion in detail of these prerogatives. It requires nothing more than a cursory glance at the last edition of Stephen's Commentaries to make clear that parliament has so taken control of these prerogatives; has so fettered their exercise by conditions as to the manner, time, and circumstances of putting them into execution; has, indeed, in such a vast majority of cases, indicated the par


(w) Ib. 199.
(1) Steph. Comm. p. 494, vol. II. (5th ed.).

(y) See Exchange Bank v. Reg., 11 App. Cas. 157, in which it was held that no such prerogative right exists in Quebec; Reg. v. Bank of Nova Scotia, 11 S. C. R. 1, and Maritime Bank v. Reg., 17 S. C. R. 657 (contrary holding as to Nova Scotia and New Brunswick). This last case has just been affirmed by the Privy Council. See note (y) p. 144 post.

(z) See Chap. II. ante p. 35, et seq.

ticular official by whom they are to be exercised, that, although exercised in the Sovereign's name—all discretion in connection with them has vanished. They have very largely ceased to be “common law” prerogatives, and are now statutory powers. But, before entering upon a consideration of the position of the colonies generally, and of Canada in particular, in reference to "prerogative ” we must again emphasize the legal principle (a) that the lex prerogativa was part of the law of England, which parliament was able to alter and mould in such way as, in the opinion of parliament, would best conduce to the interests of the people, or—to put the same idea into different languagethe law-making power in England has always been, and still is, supreme over the law-executing power, their sphere of activity being one and the same. We desire, too, to draw attention to the fact that this control by parliament over the executive, exists by law, and apart altogether from those conventions of the constitution, the observance of which secures harmony and co-operation between the two departments of government, and that this control by parliament is, in truth, the necessary result of the “ rule of law."

Upon the acquisition of a colony, what is the position of its inhabitants in reference to this lex prerogativu ? This broad question finds very scant consideration in the text writers on this branch of law. The two following quotations exhaust all that Chitty has to say on the subject :

“Though allegiance be due from everyone within the territories subject to the British Crown, it is far from being a necessary inference that all the prerogatives which are vested in His Majesty by the English laws are, therefore, exercisable over individuals within those parts of His Majesty's dominions in which the English laws do not, as such, prevail. Doubtless. those fundamental rights and principles on which the King's authority rests, and which are necessary to maintain it, extenl even to such of His Majesty's dominions as are governed by their

(a) See Steph. Comm. (5th ed.) 332, et seq.

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