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England, as they existed on the day and year last aforesaid, except so far as the said laws and rules have been since repealed, altered, varied, modified, or affected by any Act of the Imperial parliament still having the force of law in Ontario; or by any Act of the late province of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and effectual for the same purposes in Ontario, excepting so far as the same have, since the day last aforesaid, been repealed, altered, varied, modified, or affected in the manner mentioned in section 1 of this Act."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criminal law of England, as it stood on the 17th day of September, in the year 1792, and as the same has since been repealed, altered, varied, modified, or affected by any Act of the parliament of the United Kingdom, having the force of law in the province of Ontario, or by any Act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 prerogatives in certain cases. And, in truth, this lack of a 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

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 o 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 "Cod 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.

jer zan f te qtation is not much to be won be this was that the authorities on this AW106 my statements of law with hymns of → sertions of attributes almost divine to the for the "me "eing of the Crown of England, that at task to isentangle the thread of legal prin itty den.. Can, v Atty. Genl. (Ont.), 19 O. A. R. 31. affirming Lenoir v. Ritchie. 3 S. C. R. 573 The question about Plattent of Queens Counsel is now standing for argument rt of Appeal for Ontario.

**pie that in some former ages was ranked among the arcana nike the mysteries of the bona dea, was not suffered to be Any but such as were initiated in its service, because, per retion of the one, like the solemnities of the others, would not tion of a rational and sober enquiry." Blackstone.

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 departments 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., p. 245,

et seq.