Prop. 5-6 attach in all portions of the British Empire subject

In re Bateman's

Trust.

Crown in England can claim

goods of

convicted in a colony.

to the prevalence of English law, irrespective of the locality in which the debt arose and of the government in right of which it accrued."

The case of In re Bateman's Trust,1 referred to by the learned judge, certainly illustrates in a striking manner that the Crown is one and indivisible throughout the Empire. There the Crown claimed in England the goods and personal property found in England of a felon as for a forfeiture on a conviction forfeiture of for felony in the colony of New South Wales, and felon it was argued that the rights accruing to the Crown under such forfeiture were not enforceable in England. The Court (Bacon, V.C.), however, entirely rejected this contention, and determined that the rights of the Crown were not to be considered divisible according to the several governments and territorially jurisdictions, into which the Empire is apportioned, but that prerogative rights accruing to it in one But are one jurisdiction may be enforced against persons and the Empire. property anywhere throughout the Queen's dominions: per Strong, J., in The Queen v. Bank of

Its rights

are not divisible

throughout

Nova Scotia.2

And it does not seem possible, in the light of the above authorities, (to which he does not refer), to accept as accurate and satisfactory the dicta of

1L. R. 15 Eq. 355.

211 S.C.R. at pp. 20-21. In Maritime Bank v. The Queen, 17 S.C. R. at pp. 681-2, 4 Cart. at p. 421, (1889), Gwynne, J., says:— "Now, I do not at all question the authority of In re Bateman's Trust, or any like case, but I must say that, in my opinion, we make a very great mistake if we treat the Dominion of Canada, constituted as it is, as a mere colony. The aspirations of the founders of the scheme of Confederation will, I fear, prove to be a mere delusion if the constitution given to the Dominion has not elevated it to a condition much more exalted than, and different from, the condition of a colony, which is a term that, in my opinion, never should be used as designative of the Dominion of Canada."

uphold a

view.

Fournier, J., in Attorney-General of British Colum- Prop. 5-6 bia v. Attorney-General of Canada, where he Per says:-"In our system of government Her Majesty Fournier, J. as head of the Executive, whether federal or provincial, must be deemed to be present in each government, having in each the rights and prerogatives given her by the British North America Act. As chief of these different governments, she is not to be considered as present in her character as Queen of the British Empire, but only as Queen, and exercising only those rights and prerogatives to her assigned by the laws and constitution of each government. It is not true in fact to say that Seems to Her Majesty as chief of the federal Executive is the different same legal personage as Her Majesty regarded as chief of the provincial Executive, for we cannot then distinguish the different, and not seldom, conflicting attributes which the constitution confers upon her. Certainly there is nothing anomalous, much less. absurd, in saying that the Queen represented by the provincial Executive of British Columbia can treat or contract with the Queen represented by the federal Executive without its being possible for either of these governments either to lose or gain anything thereby. They will only be bound by the agreements entered into between them. The Queen represents them both within the limits of their respective powers, and in fact it is the two governments which contract together with her consent."

to it.

In the first place, we may ask, with all respect, in Objections what sense can the British North America Act be said to have given or assigned (attribués) rights and prerogatives to the Crown? Rather the Crown's rights and prerogatives would seem to have

114 S.C.R. at p. 363, 4 Cart. at p. 264, (1887).

neither gave

Crown, nor

rights from

Prop. 5-6 remained as before the Act, subject, as to some of them, to be dealt with by the Dominion parliament, B.N.A. Act and the provincial legislatures, legislating within the rights to the spheres of their respective jurisdictions as defined by took away the Act. Then, again, if as stated by Strong, J., the Crown. in the passage above cited from his judgment in the Queen v. The Bank of Nova Scotia, it is a point so settled by authority as to be beyond controversy that for the purpose of entitling itself to the benefit The Crown of its prerogative rights, the Crown is to be indivisible considered as one and indivisible throughout the the Empire. Empire, it does not seem proper to say that in fact the Queen is not the same legal personage as chief of the federal executive, and as chief of the Represented provincial executive power. And it is surely a government novelty to speak of Her Majesty representing her different governments within the Empire, instead of her governments representing her.

one and

throughout

by the

of each locality.

And as in the above case of the Queen v. The Bank of Nova Scotia the Queen in her government of Canada was held to have a prerogative right of priority of payment, so in The Provincial Government of New Brunswick v. The Liquidators of the Maritime Bank it was decided by the Supreme Court of New Brunswick that Her Majesty in her provincial government was possessed of a right of the similar prerogative right in respect of public moneys prerogative deposited in a bank by the provincial government; priority. and the judges specially referred with approval to the dicta of Strong, J., in the Queen v. The Bank of Nova Scotia above cited. And this New

Crown in

province

has

right of

1See Propositions 7, 8, and 9, and the notes thereto.

211 S.C.R. 1, 4 Cart. 391.

327 N.B. 379, (1888).

411 S.C.R. 1, 4 Cart. 391, see pp. 78-81, supra.

2

the Privy

Government

Brunswick

dators of the

Bank.

prerogatives

in colonies

Brunswick decision was afterwards affirmed by Prop. 5-6 the Supreme Court of Canada,1 and also by the Judicial Committee of the Privy Council. Their So held by lordships of the Privy Council say (at p. 441) :— Council." "The Supreme Court of Canada had previously ruled in the Queen v. The Bank of Nova Scotia, II S.C.R. I, that the Crown, as a simple contract creditor for public moneys of the Dominion Provincial deposited with a provincial bank, is entitled to of New priority over other creditors of equal degree. The . Liqui decision appears to their lordships to be in strict Maritime accordance with constitutional law. The property and revenues of the Dominion are vested in the Sovereign, subject to the disposal and appropriation of the legislature of Canada; and the prerogative of Crown's the Queen, when it has not been expressly limited as extensive by local law or statute, is as extensive in Her as in Great Majesty's colonial possessions as in Great Britain. ject to local In The Exchange Bank of Canada v. The Queen, II App. Cas. 157, the Board disposed of the appeal on that footing, although their lordships reversed the judgment of the Court below, and negatived the preference claimed by the Dominion. government, upon the ground that, by the law of the province of Quebec, the prerogative was limited to the case of a common debtor being an officer liable to account to the Crown for public moneys collected or held by him. The appellants did not impeach has not the authority of these cases, and they also conceded connection that, until the passing of the British North America Crown and Act, 1867, there was precisely the same relation provinces. between the Crown and the provinces which now subsists between the Crown and the Dominion.

120 S.C.R. 695, (1889).

2The Maritime Bank of Canada v. The Receiver-General of New Brunswick, [1892] A.C. 437.

Britain, sub

law.

B.N.A. Act

severed the

between the

the

Prop. 5-6 But they maintained that the effect of the statute has been to sever all connection between the Crown and the provinces; to make the government of the Dominion the only government of Her Majesty in North America; and to reduce the provinces to the rank of independent municipal institutions. For these propositions which contain the sum and substance of the arguments addressed to them in Or curtailed support of this appeal, their lordships have been its rights and unable to find either principle or authority. Their

privileges.

is conflict

lordships do not think it necessary to examine in minute detail the provisions of the Act of 1867, which nowhere profess to curtail in any respect the rights and privileges of the Crown, or to disturb the relations then subsisting between the Sovereign and the provinces."1

In none of these cases was it necessary for the Court to deal with any questions as to the relative rights of the Dominion and provincial governments, should both be creditors of the same debtor with

Where there assets only sufficient to pay one. But in The Probetween the vincial Government of New Brunswick v. The Liqui

Dominion

Crown

rights and dators of the Maritime Bank, before the Supreme. provincial Court of New Brunswick, counsel for the provincial

Crown rights, quære.

2

government, when asked the question by Fraser, J.: -"Suppose the British government, Dominion government, and local government, all had a deposit in the bank, which would have the preference ?" boldly replied:-"Neither. The Crown would be. entitled to recover its entire claim; and if there was not enough to pay the whole, it would be apportioned among the different governments."

1See also Propositions 7 and 9, and the notes thereto.

227 N.B. at p. 385, (1888).