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own local and separate laws. The King would be nominally, and not substantially, a sovereign over such of his dominions if this were not the case. But the various prerogatives and rights of the Sovereign, which are merely local to England, and do not fundamentally sustain the existence of the Crown, or form the pillars on which it is supported, are not, it seems, prima facie, extensible to the colonies, or other British dominions which possess a local jurisprudence distinct from that prevalent in, and peculiar to England. To illustrate this distinction, the attributes of the King, sovereignty, perfection, and perpetuity, which are inherent in, and constitute his Majesty's political capacity, prevail in every part of the territories subject to the English Crown, by whatever peculiar or internal laws they may be governed. The King is the head of the Church; is possessed of 4 share of legislation ; and is generalissimo throughout all his dominions ; in every part of them his Majesty is alone entitled to make war and peace; but in countries which, though dependent on the British Crown, have different and local laws for their internal governance, as, for instance, the plantations or colonies, the minor prerogatives and interests of the Crown must be regulated and governed by the peculiar and established law of the place (1). Though, if such law be silent on the subject, it would appear that the prerogative, as established by the English law, prevails in every respect; subject, perhaps, to exceptions which the differences between the constitution of this country and that of the dependent dominion may necessarily create in it.
In every question, therefore, which arises between the King and his colonies respecting the prerogative, the first consideration is the charter granted to the inhabitants (c). If that be silent on the subject, it cannot be doubted that the King's prerogatives in the colonies are precisely those prerogatives which he may exercise in the mother country. The prerogatives in the colonies, unless where it is abridged by grants, etc. (c), is that power over the subjects, considered either separately or collectively, which, by the common law of England, abstracted from Acts of parliament and grants of liberties, etc.,
(1) See Exchange Bank v. Reg., 11 App. Cas. 157, with which compare Maritime Bank v. Reg., 17 S. C. R. 657.
(c) A fortiori, where the charter is an Imperial Act of Parliament.
from the Crown to the subject, the King could rightfully exercise in England ” (d).
The statements contained in these passages, are not very definite : but bearing in mind the two methods of acquiring colonies,-by conquest (or cession) and by settlement and applying to each type the rules indicated, it may be laid down : (1) That in a conquered or ceded colony which continues to be governed by a foreign law (e), the lex prerogatira of English jurisprudence, is to be no more deemed in force there, than is any other branch of English law (f), subject as Chitty puts it, to the operation therein, of those fundamental rights and principles on which the King's authority rests and which are necessary to maintain it; (2) That in a settled colony the ler prerogativa of English law is carried with them by the settlers, just to the same extent and with the same conditions as to applicability (9), as is the case with the other branches of the common law, and the prerogative rights of the crown are capable of exercise in the execution of the law of a colony not having a legislative body, only to the extent indicated in the commissions of the executive officers who may be sent out (1).
The point of supreme importance to us is not however brought out, (except by inference) but it is a clear and undoubted rule of English law, that upon the establishment, by charter or Imperial Act, of a local legislature within a colony, that legislature is, within the sphere of its authority (be that sphere large or small), possessed of plenary powers of law-making, and may, with of course the consent
(d) Chitty, 25-32.
(1) In some instances this rule has increased the powers of the execu-
(1) See Chap. VIII, post.
of the Crown as a constituent branch of the legislature, alter and mould the lex prerogativa as to the colony, to as full an extent as the British parliament can alter and mould it as to the United Kingdom (i). Thereafter the exercise by the Crown, or any officer of the Crown of any prerogative right recognised by the law of England, would be in the colony illegal, unless it were also a prerogative right by the law of the colony; and that would, of course, depend on the will of the colonial legislature as to all matters confided to its authority. The proclamation which followed the Treaty of Paris, made provision (j) for the calling together in Canada, Grenada, and East and West Florida, of “ general assemblys,” empowered “ to make, constitute, and ordain laws. for the public peace, welfare, and good government of our said colonies and of the people and inhabitants thereof"; and Lord Mansfield held (1), that the effect of this was to prevent the Crown from thereafter exercising legislative authority within the colony. The act of legislative authority questioned in that case, was the imposition by Imperial Order in Council, of an export tax on certain commodities, which strikes one as an act of executive government rather than of legislation; but however that may be viewed, the reason give. for the decision was, that the Crown, (i.e., the executive authority of England), was irrevocably pledged “ that the subordinate (1) legislation over the island should be exercised by an Assembly, with the consent of the Governor in Council, in like manner as in the other provinces under the King,” and settlers were guaranteed a government by, and according to the laws made by such subordinate assembly. To the
(i) Chitty, p. 37.
(j) Perhaps we should say that it announced that provision had been made, in the commissions to the governors of those provinces, for, etc. See ante, p. 34.
(k) Campbell v. Hall, Cowp. 204; see Phillips v. Eyre, L. R. 6 Q. B. at p. 19.
(1) i.e., subordinate to the Imperial Parliament.
like effect is the comparatively recent decision (m) of the Judicial Committee of the Privy Council, that “after a colony or settlement has received legislative institutions, the Crown (subject to the special provision of any Act of parliament (nn), stands in the same relation to that colony or settlement as it does to the United Kingdom.” The decision in this last case was that the Crown has no power to constitute, by letters patent, a bishopric or appoint a bishop, (with ecclesiastical jurisdiction) in a colony possessed of an independent legislature. And in a still later case (0) the Judicial Committee of the Privy Council held that the Crown is bound by colonial legislation and in Quebec is entitled to no priority over other creditors because
the subject of priorities is exhaustively dealt with by them”-i. e. by the Codes passed by the parliament of (old) Canada, and continued in force in Quebec by the B. N. A. Act, s. 129,—“80 that the Crown can claim no priority ercept what is allowed by them.”
The legislatures existing in Canada, both Dominion and provincial, are statutory-i.e., they exist under the authority of the B. N. A. Act—with the exception, to a partial extent, of the legislatures of New Brunswick and Nova Scotia, whose sphere of local authority is alone statutory; and this fact, of course, makes the argument a fortiori in the case of Canada. Certainly no act of the executive in England can be upheld against the provisions of an Imperial statute. The powers of our Canadian parliaments have been again and again declared to be, within their sphere, plenary powers of legislation. It is unnecessary to labor further upon this point, for a glance through our statute books will disclose that our colonial parliaments have legislated with regard to the exercise of the vast majority of the prerogatives of the Crown down to the smallest
(m) In re Lord Bishop of Natal, 3 Moo. P. C. (N. S.) 115.
detail, and the discretionary power of the executive is reduced to a minimum, as in the United Kingdom. It may, however, be again remarked that now that executive responsibility to parliament, and through parliament to the electorate, is so thoroughly recognized, and the “ conventions" of the constitution which ensure such responsibility, so universally observed, the tendency of legislation is to increase the amount of discretion allowed to the executive officers in the various departments of the public service; but this is not a matter of prerogative (a common law right) but a statutory discretion.
A rule frequently laid down in the authorities that a statute is not to be construed to deprive the Crown of any prerogative right unless the intention so to do is expressed in explicit terms, or arises by irresistible inference (p) should, perhaps, be here adverted to. It applies to colonial legislation (9) as well as to Imperial, and the case of Exchange Bank v. Reg: (r) is a good illustration of the “irresistible inference” which arises in cases where a statute purports to be exhaustive legislation in reference to a particular subject matter: in which case the Crown is limited to the rights and privileges (if any) conferred by the statute. Applying this to the B. N. A. Act, it appears that the executive government of Canada is to be carried on by the Governor-General (*) and the executive government of the several provinces by the respective Lieutenant-Governors thereof (t), and that the Act taken as a whole “ makes an elaborate distribution of the whole field of legislative authority” (u); and it follows irresistibly that the prerogatives of the Crown, so far as they are exerciseable in Canada,
(p) Maxwell “. On the Interpretation of Statutes,” p. 161. as to appeals from the colonies to her Majesty in her Privy Council, Reg. v. Bertrand, L. R. 1 P. C. 520.
(1) See Maritime Bank v. Reg., 17 S. C. R. 657, (affirmed in P. C.see note (y) p. 144 post) and the “Interpretation Acts” of the Dominion, and the various provinces, of Canada.
(r) Ante, p. 141. (*) Sec. 10; and see notes to sec. 9. (1) Sec. 62. (u) Bank of Toronto v. Lambe, 12 App. Cae, at p. 587.