Imágenes de páginas
PDF
EPUB

Prop. 8-9 the prerogative of mercy is one of the highest prerogatives, and is described as inseparably incident to the Crown. But the prerogative of the Crown as the fountain of justice, with which Cushing v. the two cases of Cushing v. Dupuy and In re Louis Marois, to which his lordship refers, had to do, seems to stand on the same footing in this respect.2 They are, however, certainly not direct authorities

Dupuy.

Story on the Constitution.

Majora and

minora regalia.

Chitty.

Blackstone.

Attorney

General v.
Black.

Attorney-
General v.
Judah.

1 Bacon's Abridg., Vol. 6, sub voce, "Pardon"; Criminal Law Magazine, Vol. 6, p. 457, seq.; Chitty on the Prerogative, pp. 89, 92,

102.

2In Story on the Constitution of the United States, 5th ed., p. 133, sect. 184, as elsewhere, the distinction, taken by what the author terms "the Crown writers," is pointed out between the majora regalia, -"Such fundamental rights and principles as constituted the basis of the throne and its authority, and without which the King would cease to be Sovereign in all his dominions,"--and minor prerogatives, which it was held "might be yielded, where they were inconsistent with the laws and usages of the place, or were inapplicable to the conditions of the people." Cf. Chitty on the Prerogative, p. 25, who says :-" 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. . . But in countries which, though dependent on the British Crown, have different and local laws for their internal government, 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.' And so Blackstone (Steph., 11th ed., Vol. 2, p. 483) cites from the feudal writers the words:-Majora regalia imperii præeminentiam spectant; minora vero ad commodum pecuniarium immediate attinent; et hæc proprie fiscalia sunt, et ad jus fisci pertinent. Cf. on the above distinction per Dorion, C.J., Monk v. Ouimet, 19 L.C.J. at p. 75, (1874); Attorney-General v. Black, Stuart, 324, (1828), where Reid, C.J., says :—“ We take the principle to be that in all cases where the greater rights and prerogatives of the Crown come in question recourse must be had to the public law of the Empire, as that alone by which such rights and prerogatives can be determined. But the debt here demanded is a minor right,"-which might be thought to exclude the greater prerogatives altogether from local legislation. But AttorneyGeneral v. Judah, 7 L.N. 147, (1884), on the other hand, appears to recognize that the local legislature could, by express enactment, affect even the "6 rights or prerogatives of the Crown as attributes of sovereignty." See also the words of Strong, C.J., in the Queen v. Bank of Nova Scotia, 11 S.C.R. at p. 17, seq., 4 Cart. at p. 403, seq., quoted supra pp. 79-80, in which case, however, the Court was concerned entirely with one of the minor prerogatives, namely, the right to priority of payment; and Stokes on the Colonies, p. 243.

In re Louis

on the point in question, and, it is submitted, are Prop. 8-9 not, in fact, authorities on it at all. In the former their lordships especially say1:-" It is, in their lordships' view, unnecessary to consider what powers may be possessed by the parliament of Canada to interfere with the royal prerogative," nor do they touch the question, except as to the principle that the rights of the Crown can only be taken away by express words, which they affirm. Nor in In re Louis Marois was it necessary to determine Marois. the point, for, as Lord Chelmsford states, the Act of Lower Canada there in question as to appeals to the Privy Council, 34 Geo. III., c. 6, especially provided by section 43, that "nothing herein contained shall be construed in any manner to derogate from the rights of the Crown," etc. In both these cases, Cuvillier v. however, the prior decision of Cuvillier v. Aylwin Aylwin. is cited. That was a petition for leave to appeal to His Majesty in Council, notwithstanding the restriction imposed by the same Act of Lower Canada as was in question in In re Louis Marois; and Sir John Leach, M.R., delivering judgment, said :-" It is not necessary to hear counsel on the other side. The King has no power to deprive the subject of any of his rights; but the King, acting with the other branches of the legislature, as one of the branches of the legislature, has the power of depriving any of his subjects, in any of the countries under his dominion, of any of his rights." By reason of section 43 of the Act just referred to, it may be said that this expression of view was not necessary to the decision of their lordships in the case; but in the subsequent case of

15 App. Cas. at pp. 416-7, I Cart. at p. 259.

22 Kn. P.C. 72, (1832).

Council.

2

66

Prop. 8-9 The Queen v. Edulgee Byramjee,1 their lordships refer to Cuvillier v. Aylwin, and say of it :-" It was Queen v. held that though there was a reservation of the Byramjee. right of the Crown, yet as the Act in Canada was The Privy made in pursuance of an Act of parliament of Great Britain, the powers contained in that Act did take away the prerogative of the Crown." Thus it would seem that in their lordships' view a colonial Act assented to by the Crown through its authorized representative could interfere with and regulate the exercise of the prerogatives of the Crown as the fountain of justice, so far as the rights of those under its jurisdiction were concerned. If so, there must be a similar power as to other royal prerogatives of the same character, subject, of course, to the Crown's right of veto. And certainly it would seem that there is such power, if Gwynne, J., is correct in what he says in Lenoir v. Ritchie3 :"An Act of parliament passed by the old legislatures of the respective provinces which now constitute the federated provinces of the Dominion of Canada, Gwynne, J. under the constitutions which they had before Confederation, of which legislatures Her Majesty was an integral part, as she is of the Imperial parliament, upon being assented to by the Crown, was competent to divest Her Majesty of the right to exercise within the province any portion of her royal prerogative.'

Lenoir v.
Ritchie.

Per

[ocr errors]

15 Mo. P.C. at p. 295, (1846).

2In In re Louis Marois, 15 Mo. P.C. 189, (1862), however, their lordships observe that the Master of the Rolls in Cuvillier v. Aylwin does not appear to have directly adverted to the proviso in section 43 of the Lower Canadian Act.

33 S.C.R. at p. 632, 1 Cart. at pp. 538-9.

4That there was a time, however, when it was the opinion of eminent lawyers that colonial legislatures could not enact anything against Her Majesty's prerogatives, at all events her greater prerogatives, seems clear: Chalmer's Opinions, pp. 50, 373.

PROPOSITION 10.

over

10. The possession by the Federal Government of the veto power Provincial legislation is a special feature of the Constitution of the Dominion of Canada, which distinguishes it from the Constitution of the United States of America.

Council.

Toronto V.

This is pointed out very distinctly by the Privy The Privy Council in Bank of Toronto v. Lambe,1 where, after having decided in favour of the validity of a certain Bank of Act passed by the Quebec legislature in 1882, Lambe. whereby certain direct taxes were imposed on all banks doing business in that province, although it was suggested that the legislature might lay on taxes so heavy as to crush a bank out of existence, and so nullify the power of the Dominion parliament to erect banks, their lordships say:-"Their lordships have been invited to take a very wide range on this part of the case, and to apply to the construction of the Federation Act the principles laid down for the United States by Chief Justice Marshall. Every one would gladly accept the guidance of that great judge in a parallel case. FundaBut he was dealing with the constitution of the ference United States. Under that constitution, as their constitution lordships understand, each State may make laws United for itself, uncontrolled by the federal power, and

112 App. Cas. at p. 587, 4 Cart. at pp. 22-3, (1887).

mental dif

between the

of the

States,

In respect to vested in Congress.

the relation between

latures and

Congress,

And that of
Canada,

Prop. 10 subject only to the limits placed by law on the range of subjects within its jurisdiction. In such a constitution, Chief Justice Marshall found one of those limits at the point at which the action of the State legislature came into conflict with the power The appellant invokes that State legis principle to support the conclusion that the Federation Act must be so construed as to allow no power to the provincial legislatures under section 92, which may, by possibility, and if exercised in some extravagant way, interfere with the objects of the Dominion in exercising their powers under section 91. It is quite impossible to argue from the one case to the other. Their lordships have to construe the express words of an Act of parliament which makes an elaborate distribution of the whole field of legislative authority between two legislative the relation bodies, and at the same time provides for the provincial federated provinces a carefully balanced constitulegislatures and tion, under which no one of the parts can pass laws for itself, except under the control of the whole, acting through the Governor-General, and the question they have to answer is whether the one body or the other has power to make a given law. If they find that on the due construction of the Act a legislative power falls within section 92, it would be quite wrong of them to deny its existence, because by some possibility it may be abused, or may limit the range which otherwise would be open to the Dominion parliament.”

In respect to

between the

Parliament.

And in Angers v. The Queen Insurance Co.1 And so per Ramsay, J., thus refers to this distinction in the constitution of the two countries:-"It should be

Ramsay, J.

122 L.C.J. at pp. 309-10, 1 Cart. at pp. 134-5, (1878). And see Bryce's American Commonwealth, (two-volume edition), Vol. 1, at pp. 313-14.

« AnteriorContinuar »