THE PREROGATIVE

British Settlements. The extent of the Prerogative depends upon the territory concerned. At common law, British subjects who settle in a country without an organized government and legal system carry English law with them as their birthright; and though the Crown has a constituent power in such British settlements, it cannot make ordinary laws for them.

Some writers state that the Crown, in the exercise of the Preroga­tive, can grant only a constitution of the United Kingdom type, with an elected Lower House and a nominated Upper House or Council, but this alleged limitation does not appear to be supported by any judicial authority. Admittedly, it was usual for the Crown to set up legislatures analogous to that in Great Britain, but it was not obliged to do so. The practice was not uniform and it was more and more abandoned after the eighteenth century.

Nor is the Prerogative in settled Colonies limited to the power to establish a legislative body. The Letters Patent which I have men­tioned, constituting the Office of Governor, delegating powers to him and providing for the Executive Council and for the making and disallowance of laws, are made for settled Colonies as well as those acquired by other means.

Unauthorised Settlements. The situation at common law in British settlements which have been neither previously authorized nor sub­sequently recognized by the Crown is of considerable interest. Chitty,

in his Prerogatives of the Crown,' implies that settlers have no right to make laws unless empowered by the Crown to do so. If that is so, what is the situation in a settled Colony in an uninhabited country which has never been given a constitution by the Sovereign? In British Honduras the settlers had their legislative body which made laws for many years before a dilatory government in the United Kingdom granted them Colonial status in 1862.

British subjects in an uninhabited country remain in the allegiance and under the protection of the Sovereign, and they cannot lawfrilly set themselves up as an independent State. They acquire sovereignty, if at all, on behalf of the Crown, but this involves a conflict with the doctrine that no addition can be made to the Crown’s dominions without the Crown’s consent—unless one regards the settlers as securing sovereignty without dominion and the occupied country as being comparable with a protectorate. The settlers must carry with them English law as in force at the time of settlement, otherwise they have no law at all. If the home Government is indifferent or inactive, has the common law nothing to say? Are the settlers unable to change or amplify the law they take with them to meet their own needs? It can be asserted, not without a fair degree of confidence, that in such circumstances settlers have a common law right to establish a body to make such laws as they require and Courts to enforce them. This view is admittedly not supported by the broad general principles enunciated in works dealing with colonial constitutional law, but since the exceptional cases with which we are concerned qre not discussed, it is permissible to assume, without any reflection on the authors, that they had had no occasion to consider the problem. The alternative is a situation which the strain of common sense and natural justice running through the common law can be relied upon to avoid.

¹ (1880) 6 App. Cas. 143.

¹ R. v. Joykissen Mookerjee 1 Moo. P.C.C. N.S. 272 at p. 296.

* Cowp. 204.

extending not only to the general legislative power, but also to the constituent power, but it is very much open to question whether that was the intention of, or a reasonable deduction from, the judgment.

The action was brought by one James Campbell against William Hall, a tax collector, for the return of duty paid upon goods exported from Grenada, a Colony taken from the French by British forces. By a Proclamation of 1763 and Letters Patent of 1764, the Governor was authorized to establish a Legislature. By later Letters Patent, made before the Legislature was brought into being, the King imposed a duty upon produce shipped from the Island. The question at issue was whether these Letters Patent were valid; whether, having granted a constitution, the King still had power to make a law imposing tax. No question arose regarding the constituent power. It is important to bear in mind that, in at least one other context, the common law recognizes a distinct difference between the constituent power and the ordinary legislative power, namely, that the former is, and the latter is not, exercisable in respect of a settled Colony. It was held by the Privy Council that before the Letters Patent were made imposing the tax, the King had precluded himself from the exercise of legislative authority over the Island of Grenada.

The decision in Campbell v Hall cannot be regarded as depriving die Crown of all legislative power which is not reserved. I have already referred to the Colonies where die general legislative authority has been lost, for which Letters Patent are made dealing with the office of Governor, some of his powers, the Executive Council and, in certain respects, the Legislature. It is most unlikely that power to

make provisions of this sort has always been expressly reserved, but it has never been called in question.

Subsequent cases are not inconsistent with the view I am advancing. The judgment in re the Lord Bishop of Natal' contains the words ‘after a Colony or Settlement has received legislative institutions, the Crown... stands in the same relation to that Colony or Settlement as it does to the United Kingdom’; but this passage is obiter and it is plainly incorrect. The decision in Abeyesekera v Jayatilake¹ amounts to no more than the obvious: that if power to amend a constitution has been reserved by the Crown, it can be freely exercised; and passages in the judgment which might possibly be construed as imply­ing that Campbell n Hall affects the constituent power,³ are not only obiter but also, in my respectful submission, obscure.

In the latest case of Sammut v Strickland' the Judicial Committee closely considered the effect of Campbell v Hall. Their Lordships said they were unable to agree with the statement by the Court of Appeal in Malta ‘that it is an established constitutional principle based on Campbell v Hall that the grant of representative institutions once made, the Crown is immediately and irrevocably deprived of its right to legislate by Letters Patent or Orders in Council unless there is an express reservation of a right to that effect’. The judgment continued: ‘The true proposition is that, as a general rule, such a grant without the reservation of a power of concurrent legislation precludes the exercise of the prerogative while the legislative institutions continue to exist. Nor is it in doubt that a power of revoking the grant must be reserved or it will not exist.’ There is no apparent reason to construe the words ‘concurrent legislation’ in this extract from the judgment as including laws amending the constitution as well as ordinary laws; and the Judicial Committee, though stating that the power of revoca­tion must be reserved if it is to exist, said nothing whatever about the power to amend the constitution.

In brief, it seems that there is, to say the least, a strong case for arguing that Campbell n Hall and subsequent cases mean only: (a) that, unless there is an express reservation, the Crown does not possess a concurrent power to make ordinary laws so long as legislative institutions continue in the Colony; (£) that the grant of legislative institutions cannot be revoked unless the power of revocation is reserved; (c) that amendment of the constitution, not amounting to revocation of the grant, remains within the Prerogative rights of the ’ 3 Moo. P.C.C. N.S. 115,148. * [1932] A.C. 260. ’ Pp. 264, 266. ⁴ [1938] AC. 678.

Crown. This last proposition has the support of Chitty in his Pre­rogatives of the Crown.¹ He, however, makes an exception for constitu­tions founded on local law, and it may well be that the Sovereign’s power of amendment extends only to constitutional instruments made by the Crown.

Prerogative and Foreign Jurisdiction. For the exercise of powers and jurisdiction in Protectorates and other dependent territories outside Her Majesty’s dominions, the ample powers of the Foreign Jurisdiction Act, 1890, are always invoked, and the question discussed by Hall, in his Foreign Powers and Jurisdiction of the British Crown* whether additional or alternative powers are available under the Prerogative, may have little or no importance nowadays. Moreover, in my sub­mission the question cannot arise, because the principal Orders made under the Foreign Jurisdiction Act, 1890,—those made in reliance upon section one—are themselves Prerogative Orders. Before the passing of the first Foreign Jurisdiction Act (in 1843), jurisdiction was exercised and its only possible basis in English law was the Prerogative. As the preamble to the Act shows, it was passed to remove doubts, not as to whether it was lawful for Her Majesty to exercise jurisdiction acquired abroad, but as to how far the exercise of the powers of the Crown was controlled by, and dependent upon, the laws and customs of the Realm. For this purpose it is enacted, now in section 1 of the Act of 1890, that it shall be lawful for the Queen to exercise Her jurisdiction ‘within a foreign country in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory’. The Sovereign’s jurisdiction in ceded and conquered territory is exercised under the Prerogative. Unlike other sections of the Act, section 1 does not in terms confer authority to make Orders in Council or any other instruments. It did not create a power; it removed doubts regarding the operation of one branch of the already existing Prerogative rights of the Crown. If that is a correct appreciation of the effect of the section, then, when an instru­ment is made by virtue of section 1, it is not made simply under the Act; it is made under the Prerogative as explained by the Act.