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Lorsque le document est trop grand pour Stre reproduit en un seul cliche, il est film6 d partir de Tangle supdrieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la m^thode. ata elure. 3 32X 1 2 3 1 2 3 4 5 6 ^'l Dclp^>-'-»v-^-2! I Wo~y\^O^i> . (1 A SKETCH / OF THE ^xno^ixiixt H iht (iitmn IN COLONIAL LEGISLATION. BY THOMAS IIODGINS, M.A., ONE OF HER MAJESTY's COUNSEL. ( Eeprinted from Rose- Bel ford^s Canadian Monthly.) Oc^f. (BOO 3^^, (Is.-, ■ r (/ HUNTER, ROSE & COMPANY 1880. ¥ * '•'^W!-'W?^!«*#''!?«!«ai . J4' ii^iitSSS aS ./ 4 \ THE PREROGATIVE OP THE CROWN IN COLONIAL LEGISLATION. THERE is no Act of Parlia- ment,' says Sir Edward Coke, * but must have the consent of the Lords and Commons, and the Royal Assent of the King. Whatsoever passeth in Parliament by this three- fold consent hath the force of an Act of Parliament.'^ • The King has the prerogative of giving his assent, as it is called, to such Bills as his subjects, legally convened, present to him, — .that is, of giving them the force and sanc- tion of a law.'^ ' The Sovereign is a constituent part of the supreme legis- lative power, and, as such, has the prerogative of rejecting such provi- sions in Parliament as he judges pro- per.'* 'It is, however, only for the purpose of pi'Otecting the Royal ex- ecutive authority that the constitution has assigned to the King a share in legislation ; this purpose is suflBciently ensured by placing in the Crown the negative power of rejecting suggested laws. The Royal legislative right is not of a deliberative kind.'* The legislative form of Acts of Parlia- ment would imply that the Sovereign is the sole legislator, subject to the assent of the two Houses of Parliament : ' Be it enacted by the Queen's most Excel- lent Majesty, by and with the advice and consent ' of the Lords and Com- mons ; but this form, as other forms in our constitutional system, means that the Sovereign represents the State itself. The power of the Sovereign 4th InBt. 24. Bacon Abr. Prerogative, 48!f. 1 Blacketone, 261. Chitty on the Frerogfttive, 3. in name, is the public authority of the nation. All the supreme powers of the state, legislative, executive and ju- dicial, are by the constitution, vested in him ; but, in the exercise of all his powers, he is advised, directed and con- trolled by other state functionaries. He is named as the sole legislator;* but he can neither enact nor alter any law, but by and with the advice and consent of his subjects legally con- vened in Parliament. He is supreme in the administration of the executive functions of the nation, and in his name all treaties are made ; but he can per- form no act of executive power, nor exercise the Royal prerogatives, nor make a treaty, without the advice and assistance of others, who must assume the entire responsibility of his every act. He is the sole proprietor and universal occupant of all the land in the empire, but he * cannot touch a blade of grass nor take an ear of corn' without the authority of law. He is supreme in the administration of jus- tice, and in his official capacity is said to be present in all his courts ; but though he should be peraonally pre- sent and sit on the high bench of one- of his courts," he Id not deliver an opinion nor detei^ine any cause or (5) In the Statute Quia emptores, the King alone speaketh : Dominiisltex inParliumento, &c. , conceatU. (6) In the Court of Kind's Bench, the Kings of this realm have ait on the high Bench, and the Judges of that Court on the lower bench at his feet ; but judicature only belong 9th to the Judges of that Court,and in his presence they answer all motions. — 4 Inst. 73. s'?*^" THE PREROGATIVE OF THE CROWN motion, but by the mouth of his judges.^ What are called the Royal Prero- gatives of the Sovereign, are those in- herent executive powers and privileges with which he is invested as represent- ing the highest public authority of the state, and which may be exercised withiA limited and defined constitu- tional usages by and with the advice which the law and the constitution has assigned to the Chief Executive Magistrate of the Empire. These pre- rogatives, therefore, as part of the executive powers of the State, are the official, not personal, powers of the (1) Sir Edward Coke thus rebuked Jamea I. for asserting a prerogative right to judge whatever cause he pleased in his own person, free from all risk of prohibitions or appeals : Coke, C. J. (all the other judges assenting) —By the law of England, the King, in his own person, cannot adjudge any case, either criminal or betwixt party and party. The form of giving judgment is idco conaiderattim est per curiam ; so the Court gives the judg- ment. So in the King's Bench the King may sit, but the Court gives the judgment. Ergo, the King cannot take any cause out of any of his courts and give judgment on it himself. From a roll of Parliament in the Tower of London, 17 Rich. II., it appears that a con- troversy of land between the parties having, been heard by the King, and sentence having been given, it was reversed for this — that the matter belongeth to the Common Law. King James.— My lords, T always thought, and by my soul I have often heard the boast, •that your English law was founded upon rea- son 1 If that be so, why have not I, and others, reason, as well as you, the judges ? Coke, C. J.— True it is, please your Ma- jesty, that God has endowed your Majesty with excellent science, as well as great gifts of nature ; but your Majesty will allow me to say, with all reverence, that you are not learned in the laws of this your lealm of Eng- land ; and I crave leave to remind your Ma- jesty that causes which concern tne life, or inheritance, or goods, r fortunes of your sub- jects, are not to be ('icided by natural rea- son, but by the rea^ jn and judgment of the law, which law is an art which requires long «tuay and experience before a man can attain to a cognizance of it- The law is the golden met-wand to try the causes of your Majesty's subjects, and it is by the law that your Ma- jesty is protected in safety and peace. King James (in a great rage).— Then, am I to be under the law— which it is treason to Affirm? Coke, C. J.— Thus wrote Bracton : ' Rex non debet esse sub homine, sed «m6 Deo et Lege.' — Lord Campbell's Lires of the Chief Justices T. 1, p. 231 ; 12 Coke, 63. Crowh. They are derived from, and are part of, the grant of sovereignty from the people to the Crown, and are to be exerted for the advantage and good of the people, and ' not for their prejudice, otherwise they ought not to be allowed by the law.'' They form part of, and are, generally speak- ing, as ancient as the law itself, and the statute De Preroyativa Regis, is merely declaratory of the common law.^ The Prerogatives of the Crown ex- tend to the colonies as an essential part of the constitutional system of government to which the people in the colonies, as subjects of the Crown, are entitled. The Prerogative in the colonies, unless where it is abridged by grants, Ac, is that power which, by the common law of Eng- land, the Sovereign could rightfully exercise in England.* But in the colonies which have different and local laws for their internal govern- ment, the minor prerogatives and in- terests of the Crown must be regulat- ed and governed by the peculiar and established law of the place. Though if such law be silent on the subject, it would appear that the prerogative, as established by the English common law, prevails in every respect, subject, perhaps, to exceptions which the dif- ference between the constitution of the United Kingdom and that of the dependent dominions may necessarily create. By this principle, many of the difficulties which frequently arise as to the Sovereign's foreign or co- (2) The exercise of the Royal Prerogative by the Crown, has been held to be ultra vires in the case of Letters Patent under the Great Seal : Long v. Bishop of Cape- town, 1 Moore's P. C. N. S. 411 ; in the case of an Order of the Queen in Council, Attor- ney-Oenei'ol v. Bishop of Manchester, L. R. 3 Eq. 450, and in the case of a Treaty with a Foreign Power, The Parlement Beige, L. R. 4 P. D. 129. (3) Chitty, 4. This statute was repealed in part in 1863. See 1 Rev. Stat. (Imperial) 131. The Imperial Acts. 6 & 7 Vic. c. 94, and 15 & 16 Vic. c. 39, relate to the Preroga- tive in the^Colonies. (4) Chalmers' Opiniens, 240. IN COLONIAL LEQISLATION. o lonial prerogative may be readily solved.' In colonies acquired by conquest or cession, the Sovereign, in addition to the ordinary prerogatives, possesses a prerogative power of legislation, which may be exercised with or without the assistance of Parliament. But the Sovereign may preclude himself from this exercise of his prerogative legis- lative authority, by promising to vest it in a Governor and legislative assembly, and thereafter — even during the interval between the Royal Charter and the meeting of suchassembly, — the Sovereign cannot impose a tax oa the inhabitants,'- nor exercise his preroga- ive power of legislation within the colony.'* The authority of the Sovereign in each of the colonies is represented and executed by a Governor to whom are assigned such prerogatives as are es- sential for the government of the colony. The Governors of colonies are, in general, invested with royal authority. They may call, prorogue and dissolve the colonial assemblies, and exercise other kingly functions ; still they are but the servants or re- presentatives of the Sovereign.* A colonial assembly cannot be leg- ally convened without the Sovereign's writ of summons.^ The Governor has no exclusive authority in this depart- ment of his office ; the writ of sum- monsfor an assembly issues in the Sove- reign's name, tested only by the Gover- nor." ' While the Province (Maryland) was in the hands of the Crown, who was caput, principium et finis of the General Assembly 1 the King, or his deputy, the Governor? Not the Gover- nor ; upon no principle can he be con- sidered caput vel principium, for the (1) Chitty, 26. (2) A conquered country may be taxed by •the authority of the Crown alone. —Chalmers' Opinions, 231. (3) Per Lord Mansfield, C. J., in Campbell V. Hall, 1 Cowper 204. See also Attomey- General r. Steuiart, 2 Merivale, 158. ^4) Chitty, 34. (5) Chalmers' Opinions, 327. (%) Ibid. 323. assembly was commenced and was held by the King's writ of summons, attested only by the Governor. Nor upon any principle can he be consider- ed Jinis of the General Assembly, for upon the death or removal of a Gover- nor, the assembly did not, in law, cease and determine, but was kept alive by the King's writ and subsist- ed. Only the King then could have been caput, principium et finis ; upon his demise a dissolution followed. '^ The Prerogative of the Crown, in assenting to Acts of a Provincial Leg- islature, may be legally communicated to the Governor of a colony.* The extent of the -^ixercise of the royal prerogative in the American colonies, prior to the Revolution, will furnish some precedents by which the law of the prerogative in the coloniea may be determined. The Amei'ican colonies were divided into three classes. Eight — Maine, New Hamp- shire, Massachusetts, New Yoi*k, New Jersey, Geoi-gia, and the Carolinas — were called Provincial Governments, and derived their govei'nmental func- tions directly from the Crown, by Royal Charters. In these the Crown appointed the Governors. Three — Pennsylvania, Delaware and Mary- land — were called Proprietary Gov- ernments, and derived their govern- mental functions through the grant made by Royal Charters to the pi'O- prietors of those Colonies. In these the proprietors appointed the Governors, who appear to have exercised^ sub si- lentio, their powers as if appointed by the Crown.* Two — Connecticut and Rhode Island — were called Charter Governments, and enjoyed, by Royal Charter, the democratic privilege of electing their Governorsand assemblies by the votes of the freeholders. But by the statute 7 k 8 William III. c. 22, it was required that all Governors appointed in Charter and Proprietary (7) Chalmers' Opinions, 326. (8) Ibid. 310. (9) Stokes' British Colonies, 23-4. » 6 THE PREROGATIVE OF THE CROWN Gr ernmentfl, before entering upon the duties of their offices, should be approved of by the Crown.' ITie Governors thus appointed or elcct- «d, exercised the power to call, prorogue and dissolve the colonial assemblies. ' The prerogative in relation to their General Assemblies is at least as ex- tensive as ever it was in England. In respect to our Parliament, and this }»rerogative of the Crown, whatever the extent of it may be, every Gov- ernor, by his commission, is empow- ered to exercise in his particular Pro- vince.'- They, as the representatives or deputies of the Sovereign, and with the concurrence of the colonial assem- blies, made laws suited to the emer- gencies of the colonies, but ' not re- pugnant or contrary to the laws of the realm of England.'' They, with the advice of the councils,* established courts, appointed judges, magistrates, and officers ; panloned offenders ; re- mitted fines and forfeitures ; levied military forces for defence, and exe- cuted martial law in time of invasion, war, or rebellion.'' And in the Pro- prietary Governments, they exercised within their respective colonies all the usual prerogatives which in provin- cial governments belonged to the Crown. '^ • The form of enacting laws in the various colonies was not uniform. In some the Royal name was not used, and the enactment was declared to be (1) ' This statute \vii«, if at all, ill observefl, and seems to havf inoclnced no essential change in the coloTiialinilicy." Story on the Constitution, s. 161. (2) Chalmers' 0|iini(.ns, 2.m (3) 7 & 8 William III. c. '.'l', s. !), enacted that all laws, by-laws, u-ages or customs in force in any of the Phuitatious repugnant to the laws of England, then or thereafter to be made in the Kingdom, • so far as such laws shall relate to and niiMition the said Planta- tions,' are illegal, null, and void to all intents and purposes whatsoever. .See also Imperial Acts 26 4; 27 Vic. c. 84, and 28 & 29 Vic. c. 6;}. (4) The Councils, in some colonies, had le- gislative as well as executive powers. (5) Stokes, 155 ; Story, b. 159. (6) Stokes, 22 ; Story, b. 160. made by the Governor, with the con- sent of the Council and Assembly.^ In Maryland (a proprietary government) the form wit i : 'Be it enacted by the King's most Excellent Majesty, by and with the consent,' etc." In Penn- sylvania (another proprietary govern- ment) the form was ' Be it enacted by the Honourable Lieutenant Gov- ernor, and the Honourables Thomas Penu and Richard Penn, Esquires, Proprietors, by and with the advice and consent of the representatives of the freemen of the Province in general assembly assembled.'" Several of the Royal Charters and instructionsprovid- ed that all laws passed in the several colonial assemblies, and assented to by the (Governors, should remain in force until the pleasure of the King should be known ; and each Governor was required to send to the King for approval, all laws so assented to, im- mediately after the passing thereof.' The laws so sent then received the express assent or disallowance of the Crown by an order of the King in Council.-' But in the present Parlia- mentary Colonial Constitutions this course has been considerably vari- ed, generally leaving the Governor power to give the Crown's as- sent, thereby superseding the neces- sity of an Order in Council, except for the purpose of disallowing.'' So long as the prerogative of disallow- ance was not exercised, the Act con- tinued in force under the assent given by the Governor, on behalf of the (7) Chalmers' Opinions, 310. In Jamaica, the general form seems to have been ; ' May it please your most excellent Majesty that it may be enacted. Be it therefore enacted by the Governor, Council, and Assembly of this your Majesty's Island of Jamaica.' See fur- ther, Watson's Powers of Canadian Parlia- ment, 138. (8) Chalmers' Opinions, 302, (9) Pennsylv.tnia Archives, 1756-60, p. 121. (1) Story, s. 171, Maryland, Connecticut, and Rhoda Island were not required to trans- mit their laws for the approval of the Crown. (2) Chalmers' Opinions, 340. (3) Mills' Colonial Constitutions, 33, r. IN COLONIAL LEGISLATION. Crown. But it was at one time a re- ceived maxim that the Crown could at any time, however remote, exercise the prerogative of disallowing any Colonial Act which had not been con- firmed by an Order in Council. ' This, however, may now be numbered among those constitutional powers of the Crown which have been dormant for a long series of years, and wliich would not be called into action, except on some extreme and urgent occa- sion,' ' and then only in cases where the Imperial Parliament had not placed a limitation upon this exercise of the prerogative. This supervision of the Crown over the legislation of the colonies, appears to have been claimed and exercised by virtue of the pre- rogative, and by virtue of the depen- dency of the colony on the Empire, in order that the laws appointed or per- mitted in the colony might not be extensively changed without the as- sent of the central authority of the State. '^ The colonies (says Governor Pownall) had therefore legislatures peculiar to their own separate communities, sub- ordinate to England, in that they could make no laws contrary to the laws of the mother country ; but in all other niatters and things, uncon- trolled and complete legialatures, in conjunction with the King or his de- puty as part thereof. Where the King participated in this sovereignty over these foreign dominions, with the Lords and Commons, the colonies be- came in fact the dominions of the realm. ^ ' These colonial legislatures, with the restrictions necessarily aris- ing from their dependency on Great Britain, were sovereign within the limits of their respective territories.'* (1) Howard's Colonial Laws. 26. (2) This is substantially the judicial opin- ion affirming the right of appeal from Colon- ial Courts to the Sovereign in Council. — Vaughan's Reports, 290, 402. (3) Pownall's Administration of the Colo- nies, 139. (4) Story, s. 171. Whatever constitutional usage may be deduced from these references to the extent and exercise of the Prerogatives of the Crown in the Ame- rica n colonies, it would appear that, although the power to appoint the Governors of these colonies was exer- cised by the Crown, the Proprietors, and the people, yet as the two latter derived their power primarily from the Crown, their appointments seem to have created no constitutional diffi- culty in vesting in their appointees, as Governors, the right to exercise the Crown's prerogative, so far as the same was requisite for the legislative func- tion of their government. It seems to have been conceded even in days when Personal Rule was a marked feature in Imperial affairs, that, as the prerogative was vested in the Crown for the bene- fit of the people,'' and for the exigen- cies of good government in the colo- nial domain of the Empire, that pre- rogative could be lawfully exercised by the Governor whether communi- cated to him by direct or indirect grant, or by necessary implication of law, and especially where, as a prin- ciple of constitutional law, the assent of the Crown was a pre-requisite to the making of colonial, as it was to the making of Imperial, laws; and thus the prerogative right to give or withhold that assent must have vested in theGovernor acting for and as repre- senting the Crown within the colony.* The territory now forming the Pro- vinces of Ontario and Quebec was placed under Provincial Governments from the first; and, although no I'epre- sentative assembly was established for (5) The recognized modem doctrine is, tha all prerogative rights are trusts for the bene- fit of the people. — Mr. Mowat's Memorandum Sess. Papers (Can.) 1877, No. 89. p. 95. (6) A legal and confirmed Act of Assembly has the same operation and force in the colo- nies that an Act of Parliament has in Great Britain. — Chitty, 37. The legislative bodies in the dependencies of the Crown have $tib modo the same powers of le^lation as their prototype in England, subject, however, to the final negative of the Sovereign. — 1 Broom'* Commentaries, 122. 8 THE PREROGATIVE OF THE CROWN the former Province of Quebec, the prerogative in respect to legislation within that territory was main- tained in the Quebec Act of 1774, which provided that every ordinance of the Governor and Legislative Council, within six months of the passing thereof, should be transmitted to Eng- land and * laid before His Majesty for his royal approbation, and if His Majesty shall think fit to disallow thereof, the same shall cease and be void' (a 14). In the Constitutional Act of 1791, 31 George III. c. 31, it was provided that in Upper Can- ada and Lower Canada, the laws should be enacted by His Majesty, by and with the advice and consent of the Legislative Council and Assembly in each Province ; and that all laws passed by such Council and Assembly, and assented to by His Majesty, or in His Majesty's name by the Governor or Lieutenant Governor of each Pro- vince, should be valid and binding (s, 2) ; and the Governor was empowered ' to summon and call together an As- sembly for each Province ' (s. 13), and to do other acts 'in His Majesty's name.' By the Union Act of 1840, so much of the former Act of 1791 as provided for constituting a Legislative Council and Assembly, and for the making of laws, within each Province, was repealed, and it was enacted that within the united Provinces Her Majesty should have power, by and with the advice and consent of the Legislative Council and Assembly, to make laws for the peace, welfare and good government of the Province of Canada, such laws not being repugnant to that Act, or to such partsof the Con- stitutional Act of 1 7 9 1 , as were not then repealed. The Governor was empower- ed, ' in Her Majesty's name,' to sum- mon and call together the Legislative Assembly, and to assent to, or with- hold assent from, or reserve, Bills passed by the Coimcil and Assembly. The legislation in the former Pro- vinces of Upper and Lower Canada, and Canada (now the Provinces of On- tario and Quebec), was enacted in the name of the Sovereign, by and with the advice and consent of the Council and Assembly ; and by 18 Vic. c. 88 (C. S. C. c. 5), it was enacted and declared that the form * Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows,' should thereafter be used in all Legislative Acts. In the Provinces of Nova Scotia, New Brunswick, Prince Ed- ward Island and British Columbia, prior to Confederation, the Royal name was not used in their Legislative Acts, but their legislation, neverthe- less, afiected the Crown's Prerogative in these Provinces. The British North America Act established two separate and inde- pendent governments, with enumer- ated, and therefore limited, parlia- mentaiy or legislative powers. These dual legislative sovereignties take the place of, and exercise the func- tions and powers formerly vested in, what was practically one govern- ment. Each of the separate govern- ments derives its legislative powers from the same instrument, and each, in a measure, is dealt with as if it re- lated to a separate territorial govern- ment -^ and the Act, neither expressly nor impliedly, confers upon either government a legislative jurisdiction over the other. The separate power to legislate on certain classes of sub- jects is declared to be 'exclusive.' ' Where the power to legislate is granted to be exercised exclusively by one body, the subject so exclusively assigned is as completely taken from the others as if they had been ex- pressly forbidden to act on it. ' - ' Where two legislative bodies exist, each hav- (1) The Federal Government and the States, although both exist within the same territo- rial limits, are separate and distinct sove- reignties, acting separately and independently of each other, within their refjpective spheres. —Collector v. Day, 11 Wallivce, U. S. 113. (2) Per Ritchie, C. J., Regina v. Chandler^ lHanney(N.B.), 557. / IN COLONIAL LEOISLATION. 9 ing distinct and exclusive legislative powers, there must be care exercised by each to avoid encroachments by either body upon the exclusive powers of the other.'' *As an abstract pro- position it may be affirmed that if the Dominion Legislature were to enact that some of the matters vested in the Parliament — for instance " Bills of Exchange and Promissory Notes " — should be litigated only in a particular local court, and not in any other court whatever, such an enactment would be unconstitutional, because it would be an encroachment on the exclusive powers of the Provincial Legislature.'* ' A confirmed Act of a legislature, lawfully constituted, whether in a settled or conquered colony, has, as to matters within its competence, and the limits of its jurisdiction, the operation and force of sovereign legislation — though subject to be controlled by the Imperial Parliament.'^ ' But in cases of concurrent authority, where the laws of the State are in direct and manifest collision on the same subject, those of the Union, being the supreme law of the land, are of paramount au- thority, and the State Laws so far, and so far only, as such incompatibility exists, must necessarily yield,'* In the creation of these dual gov- ernments, the statutory powers or prerogatives of the Crown were neces- sarily divided ; some were assigned to the Dominion, and some to the Pro- vincial, Governments, to the extent necessary for the complete and efficient exercise of the ' exclusive ' authority of each. It was not politically necessary, ex- cept for a harmless rhetorical purpose, to enact in the British North America Act that ' the Executive Government {V Per Harrison, 0. J., Regina v. Laio- re. -e, 4 Q.B. Ont. 174. (2) Per Wilson, C. J., Crombie v. Jackson, 34 Q. B., Ont. 575. (3) Per Willes, J., Phillips v. Eyre, L. R. 6 Q. B., 20. (4) Per Marshall, C. .J., Oilhont v. Ogden, 9 Wheaton, U. S. 130. and authority of and over Canada is hereby declared to continue, and be vested, in the Queen.' Nor was it necessary, except as giving a key to what were to be the Governor- General's functions and jurisdiction in Pro- vincial Legislation, to declare that 'the provisions of this Act, referring to the Governor-General, extend and apply to the Governor-General for the time be- ing, carrying on the Government of Canada on behalf and in the name of the Queen.' By constitutional usage, all Governors of colonies carry on their governments 'on behalf, and in the name, of ' the Sovereign, as repre- senting the chief executive autho- rity of the State. In Canada, the Governor -General's assent to Bills, his appointment of Lieutenant-Gover- nors, Privy Councillors, Judges and other functionaries, and his other acts of Government, within his juris- diction, are * on behalf, and in the name, of the Queen,' by and with the advice which the law and the constitution has assigned to him.'' It will, doubtless, be conceded that thp Colonial Prerogatives of the Crown, may be vested by statute or Royal Commission, in a Governor-Gen- eral or in a Lieutenant - Governor ; some of such prerogatives eo? necessitate, (8) ' The distinction drawn in the statute be- tween an act of the Governor, and an act of the Governor in Council, is a technical one, and arose from the fact, that in Canada, for a long period before confederation, certain acts of administration were required by law to be done under the sanction of an Order in Council, while others did not require that for- mality. In both cases, however, since respon- sible government has been conceded, such acts have alwaj's been performed under the advice of a responsible ministry. '--Sir J. A. Macdonald'a Memorandum, H. of C. (Imp.), 1878-9, p. 109. His Excellencjr's Ministers (whose recommendation is essential to action) are responsible, not merely for the advice given, but also for the action taken. The Canadian Parliament has the right to call them to account, not merely for what is pro- posed, but for what is done, — in a word, what IS done is practically their doing.— Mr. Blake's Memorandum, Sess. Papers, (Can. ) 1877. No. 89 p. 452. See also Todd's Parlia- mentary Government in the Colonies, p. 79t 341, 414. sma 10 THE PREROGATIVE OF THE CROWN may be held to belong to him by virtue of his office, as in the case of the Govern- ors appointed by proprietors, or elected by the people, before referred to.^ But, without discussing this last point, enough may be found in the Bri- tish North America Act to elucidate the extent of the Prerogative of the Crown in the local legislation of the Provinces. It has been shown that the ( er- nors and Lieutenant-Governors ot the old American colonies exercised the Crown's prerogative of calling together the Legislative A ssemblies in the Sov- ereign's name. In the former Provin- cial Governments of Canada, the Lieut.- GovernoiTS of Upper and Lower Can- ada, and of Nova Scotia and New Brunswick, and the Governor of Can- ada, were specially authorized ' in the Queen's name,' to summon the Legisla- tive Assembly of these Provinces ; and by section 82 of the British North America Act, this power is expressly conferred upon the Lieutenant-Gover- nors of Ontario and Quebec, and by fair inference, from sections 88 and 129, upon the Lieutenant-Governors of Nova Scotia and New Brunswick. The Imperial Colonial Regulations also provide that the Governor of a colony ' has the power of issuing, in the Queen's name, writs of summons and election to call together the represen- tative assemblies and councils where they exist, and for the election of their membei's ; and also that of assembling, proroguing and dissolving legislative bodies.' The legislature, so summoned in the Queen's name, has exclusive legislative authority to make laws in certain classes of subjects defined by section 92 of the British North America Act, and which laws by the unrepealed clauses of the Constitutional Act of 1791, are to be 'assented to by Her (1) ITie Lonis Commiasioners for Trade and Plantations communicated with the Gov- eraors of these colonies ; and to the Lieu- tenant-C}overnor of Pennsylvania, if not to others, royal instructions were given. — Penn- sylvania Archives, 1740, p. 616. Majesty,' or to 'be made by Her Ma- jesty by and with the advice and con- sent ' of the local legislature. These laws, which, by the Act of 1791, require the assent of the Crown, are the laws relating to ' the time and place of holding elections ' (s. 25), re- pealing or varying laws then exist- ing, or in so far as the same should thereafter be repealed or varied by temporary laws (sees. 33 and 50), altering the constitution of the Courts of Appeal of Upper and Lower Canada (sec. 34), varying or rei)ealing the provisions of the Act respecting the Clergy Reserves (sec. 41), altering the law then established, with respect to the nature and conse- quences of the tenure of lands in free and common soccage (sec. 4. "5). The Union Act of 1840, also provided that 'Her Majesty shall have power, by and with the advice and consent of the Legislative Council and Assembly, to make laws for the peace, welfare and good government of the Province of Canada, such laws not being repug- nant to this Act, or to such parts of the said Act [of 1791], pasied in the thirty- first year of his said Iatt> Majesty, asare not hereby repealed . . . and that all such laws, being passed by the said Leg- islative Council and Assembly, and as- sented to by Her Majesty, or assented to in Her Majesty's name, by the Governor of the Province of Canada, shall be valid and binding to all intents and purposes.' Of the classes of sub- jects, specially mentioned in this Act, which are now within the legislative authority of the Provincial Legisla- tui-ea, are, the establishment of new and other electoral divisions, and al- teration of the system of representa- tion (s. 26), laws relatingto or affecting Her Majesty's Prerogative touching the granting of waste lands of the Crown within the Province (sec. 42, amended by 17 & 18 Vic. c. 118,s. 6), the consti- tution of the Courts of Appeal, of the Court of Chancery for Upper Can- ada, and the place of holding the C/Ourt of Queen's Bench of Upper Canada ly COLONIAL LEGISLATION. (sec. 43), the revenue and the charges thereon (s.s. 50-57). And it was provided that the words ' Act of the Legislature of the Province of Cana- ada,' in the Act should mean • Act of Her Majesty, Her Heirs or Successors, enacted by Her Majesty, or by the Governor, on behalf of Her Majesty, with the advice and consent of the Leg- islative Council and Assembly of the Pi'ovinco of Caimda.* These Imperial Acts were ' laws in force in Canada ' prior to the passing of the British North America Act, and are therefore, by the 129th section, con- tinued in Ontario and Quebec, as if the Union had not Ijeen made ; and be- ing Imperial statutes are not suViject to be repealed, abolished or altered, by the Parliament of Canada or by the Legislature of the Province. The same section continued in force in Ontario and Quebec, the Provincial statute to which Her Majesty was an enacting party, under the Union Act of 1840, which declared that the laws should be enacted in the name of Her Majesty ; and it also continued all the laws so enacted in the name of Her Majesty relating to the classes of subjects within the legislative authority of the Provinces, subject nevertheless to be repealed, abolished or altered, by the Legislature of the Province, according to the authority of that Legislature under the Act. The powers, authorities and func- tions which, under these Acts, were, at the union, vested in or exercisable by the former Lieutenant-Governors of Upper and Lower Canada, and the Governor of Canada, are, by the G.^tli section, so far as the same are capable of being exercised after the union, in relation to the governments of Ontario and Quebec respectively, vested in, and shall or may be exercised by the Lieutenant-Governora of Ontario and Quebec respectively, with the advice and consent of the Executive Council of these Provinces.' (1) The following is the 65th section of the B. * . A. Act : - * All powers, authorities, Without considering whether the Governors of the former colonies of America had established a constitu- tional usage respecting the preroga- tives of the Crown," either with or without Royal Instructions, it would appear that, by the express pro- visions of the B. N. A. Act, the Lieutenant-Governors of Ontai^'o and Quebec are invested with the power to exercise such prerogatives of the Crown as were, by former Imperial and Canadian statutes, possessed and exercisable by the Governors and Lieutenant-Governoi'S of the Provinces which now comprise Ontario and Que- bec ; and that to the extent to which these statutory prerogatives were vest- ed, these Lieutenant-Governors re- present the Crown within their res- pective Provinces, in a higher and more real sense than the judges re- present the Crown in the administra- tion of justice — styled as they are, in legal proceedings and statutes, 'Her and functions which under Acts of the Parlia- ment of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Can- ada, Lower Canada, or Canada, were or are before or at the union vested in or exercised by the respective Governors or Lieutenant- Governors of those Provinces, with the ad- vice, or with the advice and consent of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Gov- ernors (u- Lii-'utenitnt-Governors individually, shall, as far as the same are capable of being exercised after the union, in relation to the Government of Ontario and Quebec respec- tively, be vested in and shall or may be exer- cised by the Lieutenant-Governors of Ontario and Quebec resi)ectively, with the advice, or with the advice and consent of, or in conjunc- tion with the respective Executive Councils, or any members tliereof, or by the Lieu- tenant-Governor individually, as the case re- quires, subject nevertiieless (except with re- spect to such as exist under Acts of Parlia- ment of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland,) to be abolished or altered by the re- spective Legislatures of Ontario and Quebec.' (2) Usage is, according to the British sys- tem, as obligatory as express enactment, where there is no express enactment to gov- ern. Many constitutional rules have no other foundation than precedents. — Mr. Mowat's Memorandum, Sess. Papers (Ont.) 1874, No. 19, p. 3. ens 12 THE PREROGATIVE OF THE CROWN Majesty's Judges ;' the * Queen's Jus- tices,' or 'Judges of Her Majesty's Courts.'^ In defining the legislative autho- rity of the Parliament of Canada, the Act in effect prescribes that the legislative form of enactment shall be the Queen, by and with the advice and consent of the Senate and House of Commons ; and it was pi'oper so to prescribe, for the Legislatures which preceded it, had no uniformity in their enacting forms. But in the Provinces each Legislature was left to the form of enacting laws which the prior constitutions had either prescribed or allowed. '■' The provisions of s. 54 of the B. N. A. Act, as made applicable by s. 90 to the Legislature, read as follows : It shall not be lawful for the Legisla- tive Assembly to adopt or pass any vote, resolution, address, or bill for (1) It is evident, therefore, that in a modi- fied, but most real sense, the Lieuteuant- Govemora of the Canadian Provinces are representatives of the (3rowr>. — Todd's Parlia- mentary Government in the Colonies, 402. (2) A distinction is said to exist between the terms ' Parliament ' and ' Ijegislature,' in the British North America Act, by which some undefined s'.iperiority in power or privilege belongs to the former over the latter. But the Crown is the tame in both, and appoints the Upper House in each ; and the House of Commons of the one, and the Legislative Assembly of the other, are called into existence by the samj iu- Htrument ; and tl)ey represent, for separate powers of legislation, the same authority — the people. And by the judgment of the Highest Court of Appeal, binding on the colonies, it hae been decided that colonial legislative bodies have not the inherent Parliamentary powers and privileges of the Imperial Parlia- ment ; and that, in the absence of express grant, the /ejjrt ronsuctudo Parliamenti, which is inherent in the two Houses of the Imperial Parliament, does not belong to colonial legis- latures—nor even the power to puni>