§ 19. “Referring to the Queen.”

REFERENCES to the QUEEN.—The direct references to the Queen in the Act and Constitution (elsewhere than in the enacting words) are as follows:—

Preamble (admission of other possessions of the Queen). Clause 3 (Queen may proclaim Commonwealth, &c.). Clause 5 (Queen's ships of war). Section 1 (Queen in Federal Parliament). Section 2 (Governor-General appointed by the Queen). Section 34 (subject of the Queen). Section 44 (Queen's Ministers for Commonwealth or State— officers or members of Queen's navy or army). Sections 57–60 (Queen's assent to Bills). Section 61 (Executive power vested in Queen). Section 64 (Queen's Ministers of State). Section 66 (salaries of Ministers). Sections 73–4 (Appeals to Queen-in-Council). Section 117 (subject of the Queen). Section 122 (territories). Section 126 (Deputy Governor-General). Section 128 (Queen's assent to constitutional amendments). Schedule (oath of allegiance).

Besides references to “the Queen,” there are references to “the Crown” (e.g., in the Preamble and sec. 44)—a term which in English law is usually used as an impersonal or abstract description of the occupant of the throne—commonly called the sovereign— whether King or Queen. Sometimes it is used in a wider and more popular sense as representing the majesty and sovereignty of the nation (see note on “Sovereignty,” § 21).

CROWN NOT BOUND UNLESS NAMED.—It is a recognized canon in the construction of Statute law that in any case where the Crown would be ousted of an existing prerogative, it is not bound, affected, or reached unless named therein either expressly or by necessary implication. It is presumed that the legislature does not intend to deprive the Crown of any right of property unless it expresses that intention in explicit terms or makes the inference irresistible. (Maxwell on Statutes, p. 186; Broom's Legal Maxims [6th ed.], p. 68.) In conformity with this principle it has been held that the compulsory clauses of Acts authorizing land to be taken for railway purposes would not apply to a Crown property, because they were not made so applicable in express terms or by necessary inference; that, it being a prerogative of the Crown not to pay tolls or rates or other burthens on property, the Poor Act of 43 Elizabeth, authorizing the imposition of poor rates on every inhabitant or occupier of property in the parish, did not apply to the Crown or to its direct or immediate servants whose occupation is for the purposes of the Crown; re Cuckfield Board, 24 L.J. Ch. 583; Mersey Docks v. Cameron, 11 H.L. Cas. 443. Numerous Acts of Parliament have at various times abolished the writ of certiorari, but they have been held not to apply to the Crown, which still had its remedy by the prerogative writ. Where a local Act imposed wharfage dues, for the repairs and maintenance of a harbour, on certain articles, including stones, and, without expressly binding the Crown to make such payments, exempted it from liability in respect of coals imported for the use of the royal packets and from a toll over a bridge, the court refused to infer from the exemptions an intention to charge the Crown in respect of any other goods. (Weymouth v. Nugent, 34 L.J., M.C. 81.)

The rights of the Crown are not barred by any Statute of Limitations, unless it is expressly named therein; and this rule extends to cases where the right of the Crown is merely nominal. (Reg. v. Bayley, 4 Ir. Eq. R. 142.) Quœre, whether, when an Act of Parliament transfers jurisdiction from one court to another, or grants an extension of the jurisdiction of an existing court, it is necessary, in order to make the Act binding on the Crown, that the Crown should be named therein. (London Corporation v. Att.-Gen., 1 H.L. Cas. 440; Dig. of Eng., Case Law v., p. 7–8.)

The Crown not being bound by the Statutes of Bankruptcy, the protection of a bankrupt from an extent is limited to actual attendance upon the commissioners, upon the common-law privilege of a witness or party, not extending through the intervals of adjournment by the statute. (Ex parte Temple, 2 Ves. and B. 391; Craufurd v. Att.-

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Gen., 7 Price, 2.) The Bankruptcy Act, 1883, sec. 150, enacting that, save as therein provided, the provisions of that Act relating to the priorities of debts, the effect of a composition or scheme of arrangement, and the effect of a discharge, shall bind the Crown, does not by virtue of the Judicature Act, 1875, s. 10, operate as an incorporation, in the Companies Act, 1862, of a similar provision so as. in a winding-up, to bar the Crown of its prerogative of priority of payment over all creditors. (Re Oriental Bank Corporation, 28 Ch. D. 643; Dig. of Eng. Case Law v., p. 8.)

The Crown, though not bound by 3 and 4 Will. 4, c. 55, s. 31, and 3 and 4 Vic., c. 105, s. 20, which give to creditors by judgment or recognizance a right to have a receiver appointed on petition, may take advantage of the Acts, but is not bound by the restrictions imposed on that right by 12 and 13 Vic., c. 95, s. 10. (Reg. v. Cruise, 2 Ir. Ch. R. 65.) The Statute of Frauds does not bind the Crown, but takes place only between party and party, for the king is not named. Lord Hardwicke, however, doubted this doctrine. (Addington v. Cann, 3 Atk. 154.) Crown property, as well as property devoted to or made subservient to the Queen's government, is exempt from poor rates, but property held upon trust to create or to improve docks and harbours in seaport towns, though having a public character, and though devoted to public purposes, is nevertheless subject to be rated to the relief of the poor. (Clyde Navigation Trustees v. Adamson, 4 Macq. H.L. 931; Dig. of Eng. Case Law v., p. 8.)

The Crown is bound by the two codes of Lower Canada; in the liquidation of a bank it can claim no priority of payment over the other creditors except what is allowed by these codes. (Exchange Bank of Canada v. Regina, 11 App. Cas. 157).

The Victorian Crown Liability and Remedies Act, 1865 28 Vic. No. 241), does not affect the prerogatives of the Crown when suing in England. (Re Oriental Bank Co-operation, 28 Ch. D. 643.)

It was to prevent the operation of this maxim—that the Crown is not bound by a statute unless named therein—that the Convention inserted the words “This Act shall bind the Crown.” Compare the phrase “This Act shall be binding on the Crown” (Imperial) Interpretation Act, 1889 (52 and 53 Vic. c. 63, sec. 30). This was objected to by the Imperial Crown Law officers as possibly affecting not only the prerogative right of the Queen-in-Council to hear appeals, but also a wide range of other prerogatives; and the words were consequently omitted (see Historical Note).

Notwithstanding the omission of these words, there are many provisions of the Constitution which affect the Crown by express reference or by necessary implication. Not only the words “the Queen,” “the Crown,” “the Governor-General,” but also the words “the Commonwealth,” and “a State,” occurring frequently throughout the Constitution, are references to the Crown which may affect the prerogative to a considerable extent. It is therefore advisable to discuss the nature of the prerogative, and the chief ways in which it may be affected by the Constitution.

PREROGATIVES.—These are the residuary fractions and remnants of the sovereign power which, unimpaired by legislation and revolution, remain vested in the Crown. They are the products and survivals of the Common Law and are not the creatures of statutes. Statute law tends gradually to invade and diminish the domain of prerogative. Among the examples of prerogatives the following may be enumerated:—

  • (1.) The exercise of the ordinary Executive authority by the Crown, through Ministers of State; subject to certain legal and customary restraints such as the control of the House of Commons by virtue of its power to refuse supplies.
  • (2.) Dissolution and Prorogation of Parliament.
  • (3.) The administration of Justice in the name of the Crown, through judges and counsel appointed by the Crown.
  • (4.) The pardon of offenders.
  • (5.) Command of the Army and Navy.
  • (6.) Foreign affairs; peace and war.
  • (7.) Accrediting and receiving Ambassadors.
  • (8.) Entering into treaties with foreign nations.
  • (9.) Recognition of foreign States.
  • (10.) Appropriating prizes of war.

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  • (11.) Sharing legislation; right to veto.
  • (12.) Allegiance; right of the Crown to the allegiance and service of its subjects.
  • (13.) Ecclesiastical authority with respect to the Church of England.
  • (14.) Control over titles, honours, precedence, franchises, &c., coining money, superintendence over infants, lunatics, and idiots.
  • (15.) Special remedies against the subject, such as intrusion, quo warranto, distress, escheat, extent.
  • (16.) Lordship of the soil.

A number of these prerogatives have become obsolete through desuetude, although they have never been swept away by Act of Parliament. Others of them have been cut down and reduced to matters of form, or denuded of most of their former vigour and activity.

PREROGATIVES LIMITED By The CONSTITUTION.—In the course of these Notes attention will be drawn to clauses and sections which apparently contract the prerogatives of the Crown; foremost amongst them may be here generally indicated four of special importance:—

  • (1.) Section 1 of the Constitution, providing that the legislative power shall be vested in a Federal Parliament consisting of the Queen, the Senate, and the House of Representatives.
  • (2.) Section 59, restricting the period within which the Queen may disallow laws assented to by the Governor-General.
  • (3.) Section 62, creating an Executive Council to advise the Governor-General as the Queen's Representative.
  • (4.) Section 74, limiting the right of appeal to the Queen in Council.

PREROGATIVES CONFIRMED BY THE CONSTITUTION.—Certain well-known and long-established powers of the Crown instead of being negatived are confirmed by the Constitution, such as:—

  • (1.) Section 5.—The Governor-General may convene, prorogue, and dissolve the Federal Parliament.
  • (2.) Section 62.—The Governor-General may choose and summon members of the Executive Council to advise him.
  • (3.) Section 64.—The Governor-General may appoint officers to administer such Departments of State as the Governor-General in Council may establish.
  • (4.) Section 68.—The Governor-General shall be the Commander-in-Chief of the naval and military forces of the Commonwealth.

No doubt most or the whole of these and other powers vested in the Governor-General will, in accordance with what have been elsewhere referred to as the “Understandings and Conventions of the Constitutions,” § 18, be exercised by the Queen's Representative in a Constitutional manner, that is, on the advice of responsible Ministers. (See § 271, “Executive Government.”)