or in any province thereof, must be exercised-in her Majesty's name (r)-by the officer who by the B. N. A. Act is entrusted with "the carrying on of government," and cannot be exercised by the Queen-i.e., through the Imperial authorities-except in matters over which none of our legislatures have legislative power.

We shall have occasion to refer with considerable frequency to the limitations upon colonial legislative power arising from the colonial status, and it is to be observed that the prerogatives of the Crown relating to "Foreign Affairs" (w), including some as to military matters, have not been placed within colonial legislative power, but are under the control of the Imperial parliament for the reasons (which indeed are obvious) indicated in an earlier chapter (r). But we again repeat-if happily repetition may in this instance emphasize the principle which appears to us so important that in every case the power which makes the law upon any given subject matter, must

(v) B. N. A. Act, sec. 9 and notes thereto, post.

(w) See note, ante, p. 135.

(r) And see notes to sec. 9 of the B. N. A. Act, post. The prerogatives vested in the Crown as the Fountain of Honor are looked upon as (so to speak) prerogatives at large and not connected with any particular department of executive government. The dispute as to the position of provincial Q.C.'s would seem to narrow itself down to the question, whether the appointment is one connected with the administration of justice, or simply an honorary title. If the former, then both the Dominion and Provincial executives would appear to have the powereach in relation to the courts of Dominion or Provincial creation, as the case might be. If the latter, then neither would appear to have it, any more than either could make a man a knight. If there were no "boundless crop of venerable learning" to prejudice one's judgment, and if members of the bar are really officers of the courts, it would seem reasonably clear that the prerogative is one relating to the organization of courts, as to which both governments have powers conferred upon them by the B. N. A. Act. See post, Chap. XI. In Reg. v. Amer, 42 U. C. Q. B. 391, the power to issue commissions of Oyer and Terminer seems to have been treated as a prerogative at large; but it is submitted there are none such in relation to our self-government; certainly none are conferred on the Governor-General by his commission.

according to English law be the power which controls the execution of that law in every detail. We have tried to

make this clear as to the colonies, and where those colonies have what has been termed a unitarian" form of government the rule would seem to be recognized by judicial decision, and the universal practice of the legislatures of such unitarian" colonies. A clear appreciation of the principle will make it apparent that it applies to the different governments of Canada; and that when we find the legislature of the Dominion empowered to make laws upon any given subject matter, any prerogative right capable of exercise in relation to such matter, must, and can only be exercised by the executive of the Dominion, and so of each of the Provincial governments (y). The division of the field of government between the Dominion and the provinces is therefore a division along the line of subject matters, and the whole power of government, legislative and executive, in relation to any given subject matter, rests in that government to which it is assigned for legislative purposes.

(y) See per Burfon, J.A., in Attorney-General (Can.) v. AttorneyGeneral (Ont.), 19 O. A. R. at p. 38. Since the above was written, the report of the judgment of the Judicial Committee of the Privy Council in Liquidators of Maritime Bank v. Receiver General of New Brunswick has appeared. It affirms the text. See Times Law Reports, 6 July, 1892. We shall have occasion to refer to it again.

CHAPTER VII.

EXECUTIVE CHECKS ON COLONIAL LEGISLATION.

The position of the crown as a branch of the Imperial parliament, and the reason therefor, is very clearly expressed in a work to which frequent reference was made in the last chapter (a):

"The king is, therefore, very properly a constituent part of parliament, in which capacity he possesses the means of preserving inviolate his rights and prerogatives as supreme executive magistrate, by withholding his assent at pleasure, and without stating any reason, to the enactment of provisions tending to prejudice (b). It is however only for the purpose of protecting the royal executive authority, that the constitution has assigned to the king a share in legislation; this purpose is sufficiently insured by placing in the crown, the negative power of rejecting suggested laws. The royal legislative right is not of the deliberative kind; the crown has no power to propound laws.

their

Important therefore as this prerogative of rejection is as a shield against rebellious encroachments, as a preservative of the royal executive functions, it is in other points of view of a limited and negative nature."

We have already (c) quoted from the commission to Governor Cornwallis, of Nova Scotia, the clause which so frankly states the same reason for the negative voice given

(a) Chitty, "On the Prerogatives of the Crown," p. 3.

(b) See Chap. VI.

CAN. CON.-10

(c) Ante, p. 33.

to the early governors. It must be borne in mind, however, that in those days the "literary theory" prevailed, which assigned to the legislative and executive departments of government, not only distinct but independent powers. With the growth in England and the colonies, of the principle of responsible government-through the medium of an executive responsible, through parliament, to the electorate the negative voice allowed to the governor of a colony very largely ceased to find utterance in preservation of prerogative, and came to be employed as the up-holder, rather, of the supremacy of the Imperial parliament. And so with reference to the second negative allowed by the common law to the occupant of the throne, over all acts of subordinate legislative bodies throughout the Empire (d); that second negative came to be exercised subject to the "conventions of the constitution" which limit the interference of the Home government with colonial legislation, to interference in relation to matters of Imperial concern-to securing unity of national purpose and method throughout the various parts of a world-wide Empire. In other words, the true federal idea-the reconciliation of national unity with local self-government (e)-dominates this phase of our relationship to the mother country, just as it now determines the extent to which the British parliament shall legislate, as an Imperial parliament, for the colonial portions of the Empire. This is the conventional aspect. What is the legal position?

In former chapters the paramount legislative authority of the Imperial parliament has been pointed out, and the necessity for a careful distinction between its unlimited extent, legally speaking, and its limited operation, “ conventionally" considered, insisted upon. And, just as we may have laws enacted for us by an authority entirely external, SO we may have the deliberate utterances of what we

(d) See Chitty, at p. 25-passage quoted ante, p. 138.

(e) See ante, p. 8.

may call the two colonial branches of our Canadian parliament-bills which have passed both Commons and Senate -denied legal operation as Acts of parliament, by the refusal of Her Majesty's representative to assent thereto in

her name.

By express provision of the B. N. A. Act (f), the Queen is a constituent branch of the parliament of Canada, and Her assent is necessary before a bill can become law. Her representative, the Governor-General of Canada, may refuse such assent; or he may reserve the bill for the consideration of the Queen in Council (that is to say, of the Imperial government), and upon such consideration, assent may be withheld; or, the Governor-General having assented and the bill having passed into Act of parliament, may, within two years from its receipt by the Secretary of State in England, be disallowed, and "such disallow

it

ance

being signified by the Governor-General

shall annul the Act from and after the day of such signification." Now, it matters not what may be the reasons, assigned or unassigned, for withholding the Queen's assent to a bill, or for disallowing an Act of the Canadian parliament; the effect is, that in the former case, the bill is as if it never had been; in the latter, it is

repealed by the Imperial government.

in detail,

To deal with the different phases of this subject, more we quote first, section 55 of the B. N. A. Act: "Where a bill passed by the houses of the parliament is presented to the Governor-General for the Queen's assent, he shall declare according to his discretion, but subject to the provisions of this Act and to her Majesty's instructions, either that he assents thereto in the Queen's name, or that he withholds the Queen's assent, or that he reserves the bill for the signification of the Queen's pleasure."

(ƒ) Sec. 17; and see also sec. 2. The Crown is also a constituent branch of the provincial legislative assemblies-see notes to secs. 58 and

69, post.