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 (»), 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". 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,-" so that the Crown can claim no priority except 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.

(n) i.e., of the Imperial Parliament.

(0) Exchange Bank v. Reg., 11 App. Cas. 157.

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 (q) 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 (s) and the executive government of the several provinces by the respective Lieutenant-Governors thereof (f), 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. And see, 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. (u) Bank of Toronto v. Lambe, 12 App. Cas. at p. 587.

(t) Sec. 62.

or in any province thereof, must be exercised-in her Majesty's name (")—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 (). 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 power-each 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 prejndice 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 Burton, 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 their 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. 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.