ering how the prerogative was exercised by the king in making it.

If the writer err in this view, then the important consequence follows that the king proceeded judicially in declaring the said two acts of legislation to be null and void.

In order that the learned reader may judge for himself in this matter the order in council has been inserted in full in Appendix No. 4. It recites in extenso the report of the Committee on appeals from the plantations. Other sources of information concerning Winthrop v. Lechmere are referred to in that Appendix. The joint opinion of the Attorney general and Solicitor general, which is printed ante page 199, relates to the case.

No. 9.

Of certain appeals to the king in council from Canada since 1867.

In connection with this chapter, it is well to mention cases arising under the present constitution of Canada, which involve the question whether a colonial law be or be not constitutional. Such cases since 1867 are judicially determined in last instance by the queen in council. The present constitution of Canada is "the British North American act, "1867." It is a statute enacted by the British parliament at the wish of the colonies now composing the Dominion of Canada. It is both imperial legislation and a colonial constitution. Under it, the courts of the dominion and of the several provinces are competent to pronounce upon the constitutionality of laws enacted by the general and the provincial legislatures. In such cases the appeal in final instance is to the queen in council. In determining such appeals the queen certainly proceeds in her judicial capacity. The queen declares judicially whether the questioned legislation be constitutional or unconstitutional and valid or void accordingly.

For further information on this interesting branch of Canadian constitutional law, see Appendix No. 5 to this Essay.

CHAPTER XXI.

Conclusion of the investigation of the English law.

It has been previously remarked that the English constitution is not a written but a consuetudinary constitution and one of great antiquity. Therefore it was surmised that what was the law on a given matter at one period might not be the law at another. This surmise may now be changed into a positive assertion as to the matter in question. The foregoing investigation shows that in the process of time. the English constitution has varied upon the law of legislation. It must especially be recollected that when the Roman church was established in England, and power and jurisdiction were partitioned between pope and king, the legislative power of the state was fundamentally different from what it became after the Reformation.

It is now contended that the foregoing discussion of the relation of the judiciary to acts of parliament in England supports the truth of the following propositions:

(1). When George III. ascended the throne of Great Britain and the American colonies, it was the settled law of the British constitution, that no judicial court could decide an act of parliament to be contrary to any superior rule of binding right. Then as now all judges were bound by all statutes in all cases by the clear and clearly expressed meaning of parliament. No court could therefore then question the validity of an act of parliament upon any such ground.

(2). In England before the Reformation acts of parliament could not legislate contrary to ecclesiastical right and

liberty in any case affecting the church in things purely spiritual and in some cases affecting it in spiritual things mixed with the temporalty. In such cases the Canon law was in actual vigour in England and there was no conflict between the law of the church and the law of the land. Acts of parliament contrary to ecclesiastical right and liberty in these cases did not bind either the clergy or the laity. Neither were the king's judges bound thereby.

(3). Shortly before the revolution of 1688, an English court held a statute void because judicially ascertained and decided to be contrary to the king's prerogative. The best opinion is that this decision was error when made. If it was not then error, the law was changed by the revolution of 1688. Since that date any such decision must certainly be error.

(4). At a time subsequent to the Reformation and antecedent to the Interregnum, Lord Chief Justice Coke endeavoured to develop a doctrine by which the judiciary would have a certain competency of criticising statutes and would be competent to decide the same to be contrary to common right and reason, which statutes when so decided would not be binding upon the judges but must by them be held null. This endeavour of Coke's failed to succeed in England. It had, however, an interesting effect in America, if the case of Trevett v. Weeden be deemed from its early date to be the most influential American example of a judicial competency to criticise legislation as unconstitutional.

It is further contended that the foregoing discussion supports the truth of the following:

Legislation by act of prerogative, made by the king in council and not in parliament, was of the greatest importance in and for the American colonies. Both before and after the revolution of 1688, it was an unquestioned exercise of his prerogative abroad for the king so to legislate. While the scope of such legislation was wide, the law limited that scope. It was a judicial question whether an act of such legislation was or was not lawful (or constitutional) and valid or void accordingly. This is proved by the case of Campbell v. Hall, reviewed on pages 190-196 ante.

CHAPTER XXII.

Conclusion of the investigation of foreign laws made in Part I. of the Historical Commentary.

The foregoing investigation of foreign laws shows that when Americans invented written constitutions, they did not create an unprecedented novelty in framing them upon the principle that judiciaries might decide questioned legislation to be contrariant to a constitutional or other rule of right and hold it therefore void: that is to say, that a written constitution might without unprecedented novelty make it a judicial and not an extrajudicial question whether such legislation was so contrariant or not. On the contrary, there were then important precedents in Europe for such an institution. Legal history makes it clear that long before American independence there were in Europe unwritten systems of public law, according to which legislation might sometimes be decided to be contrariant to a binding right of superior strength to the legislative power exercised. Under them, whether challenged legislation was accordant or contrariant to binding right, and whether legislators had or had not proceeded secundum jus potestatis suae, might sometimes be judicial and not extrajudicial questions.

The examination of the older English law, the English law of the prerogative abroad, the older French law, the older German law, the Roman law, and the Canon law support the propositions just laid down.

Actual cases from the older French law were adduced. Two of these were the regency cases in the reigns of Lewis

XIV. and Lewis XV., that is to say, purely temporal cases in which a temporal court decided temporal legislation to be contrary to binding right and held it therefore void. Another class of cases related to the division of powers between church and state in France. In them a temporal court for fifty years repelled royal legislation concerning ecclesiastical affairs as wrongful and invalid. In the end, this court failed, but it did not overrule itself. It yielded only to vis major. The king compelled it to register the concordate of 1517, but the registration was made under protest.

In the older German law, the example of the court of the Imperial Chamber was adduced. It was shown, on the authority of Bluntschli, that that court provided for the legislative authorities of the several states of the Old German Empire being restricted within certain limits by judicial

means.

The investigation of the Roman law of legislative rescripts in Justinian's time showed that judges could decide whether such a rescript had or had not been made according to the law of such legislation and must reject the same when ascertained by them to be contrary thereto. The emperor laid down the jus potestatis suae as legislator, and made it obligatory upon his judges to apply it. He had no idea that the deus ex machina of his plenitude of power should be dragged into every case of private legislation.

Justinian's principles were adopted by the Canonists. This is shown by the case of the Bolognese mill in Chapter 12, No. 4. In it two acts of temporal legislation made by two popes, as temporal princes, were decided not good and were rejected by the court of the Rota Romana. Although that court was an ecclesiastical one, it had a certain temporal jurisdiction in Bolognese and other cases. As the case was a purely temporal one, it does more than show the doctrines of the Canonists. It may be held also to show the doctrines of the modern Civil law on the continent of Europe before the end of the last century, that is to say, at a time when private legislation was made by the rescripts of absolute princes and not by acts of assemblies or parliaments.