the Constitution being then placed as a "schedule" to the Bill. When the original form of clause 9 was restored in Committee, and the word "schedule" omitted, the words in italics became inapplicable; and before the third reading they were omitted.

$ 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 Stateofficers 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 GovernorGeneral). 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.) Quere, 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.

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 Cooperation, 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 Statute law tends gradually to invade and diminish the domain of prerogative. Among the examples of prerogatives the following may be enumerated :

statutes.

(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.

(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 longestablished 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 GovernorGeneral 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.")

§ 20. "Her Majesty's Heirs and Successors."

The Succession to the Crown was, after the revolution of 1688, settled by the Bill of Rights, I. Wm. and Mary (2nd Sess.), c. 2. The throne being declared vacant by the abdication of James II., the Crown was settled on King William III., Prince of Orange, grandson of Charles I., and nephew and son-in-law of the deposed monarch, and on Queen Mary, eldest daughter of James II. and wife of William III., for their joint lives; then on the survivor of them; then on the issue of Queen Mary; upon failure of such issue it was limited to Princess Anne of Denmark, King James' second daughter, and her issue; and lastly, on the failure of that, to the issue of King William. Towards the end of King William's reign, when it became probable that neither he nor Princess

Anne would leave issue to inherit the Crown, it became necessary to make other legislative provision for the succession, which was done by 12 and 13 William III. c. 2, commonly known as the Act of Settlement (1702). The first section of this Act declared that, after his Majesty King William III. and the Princess Anne of Denmark, and in default of issue of the said Princess Anne and of his Majesty respectively, the Princess Sophia, Electress of Hanover, grand-daughter of King James I., should be next in succession to the Imperial Crown and dignity "of the said realm of England, France, and Ireland, with the dominions and territories thereunto belonging," and that after the decease of his Majesty William III. and her Royal Highness the Princess Anne, and in default of issue of the Princess Anne and of his Majesty respectively, the Crown and Regal Government of the "said Kingdom of England, France, and Ireland and of the dominions thereunto belonging, with the Royal State and dignity of the said realm and all honours, styles, titles, regalities, prerogatives, powers, jurisdictions, and authorities to the same belonging and appertaining, shall remain and continue to the said Most Excellent Princess Sophia and the heirs of her body being Protestants." The fourth and last section of the Act recites that "whereas the laws of England are the birthright of the people thereof, and all the Kings and Queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws, and all their officers and ministers ought to serve them respectively according to the same; the said Lords Spiritual and Temporal and Commons do therefore further humbly pray. That all the laws and statutes of this realm for securing the Established Religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, may be ratified and confirmed; and the same are by his Majesty by and with the advice and consent of the said Lords Spiritual and Temporal and Commons and by the authority of the same ratified and confirmed accordingly."

Both William III., and Queen Anne after him, died without leaving issue; the Princess Sophia predeceased Queen Anne. The inheritance, therefore, descended to her son and heir, who became King George I. From him it descended to King George II., from whom it descended to George III.; then to George IV., who was succeeded by his brother, William IV.; and after him it descended to his niece Princess Victoria, our present Gracious Queen, daughter of Edward, Duke of Kent. (Stephen's Comment., vol, 2. p. 451.)

§ 21.

"Sovereignty of the United Kingdom." SOVEREIGNTY.-A clear conception of the meaning of "sovereignty" is the key to all political science. The relation of the Commonwealth to the Empire, and the relation of the Federal and State Governments of the Commonwealth to one another, can hardly be appreciated apart from a sound study of the principle of sovereignty. The speculations of such philosophers as Hobbes, Locke, and Rousseau, the learning of Blackstone and Bentham, the critical analysis of Austin, the historical researches of Maine, and the labours of such modern writers as Holland, Dicey, Leslie Stephen, Burgess, and many others, have all contributed, from many sides, to throw light on the central idea which the word sovereignty represents; and of recent years the interchange of thought between English and American writers, and a comparative study of their widely different institutions, has done much to clear away doubts and difficulties. In this work only a brief note can be devoted to this vast subject.

Before attempting any definition of sovereignty, it is advisable to call attention to the necessity of avoiding confusion between three distinct uses of the word :-(1) Legal sovereignty as when we speak of the sovereignty of the British Parliament; (2) political sovereignty-as when we speak of the sovereignty of the people; (3) titular sovereignty-as when we speak of the sovereignty of the Queen. As the primary meaning of the word is the legal one, it is best to begin from that standpoint.

(1.) LEGAL SOVEREIGNTY.-Sovereignty, then, is an attribute, and the most essential attribute, of a State --that is, of an independent political community. It is defined by Burgess (Pol. Science, I. 52) as "original, absolute, unlimited, universal power over the individual subject and over all associations of subjects." The legal sovereign is that person, or determinate body of persons, which possesses, in a State, a power which in point of law is absolute and unlimited. Such a body is the British Parliament; such a body are the electors of the United States organized under the Constitutional provision for the amendment of the Constitution. Legally speaking, such a body of persons is the State itself; the State is the sovereign, and the sovereign is the State.

Corresponding to this view of legal sovereignty as power, we may define political sovereignty as the will which lies behind the power. Political sovereignty is thus also an attribute of the State; it is the corporate will-or what Rousseau called the "general will "- of the community. And from this definition of political sovereignty as the “general will" of the community, we may in turn deduce legal sovereignty as the legal expression, or embodiment, or manifestation, of that will.

Sovereignty, therefore, resides in the State, but it is principally manifested through the Government, its creature. Every competent organ of government, legislative, judicial, or executive - Parliaments, courts, constitutional assemblies, electorates in their legislative capacity, Kings, Presidents, Governors, Executive Councils-are organs through which the sovereign power is exercised. In one sense the aggregate of these bodies within a State, as exercising the sum-total of sovereign power, may be considered as depositaries of sovereignty; but in another and a truer sense sovereignty is located in the ultimate legislative organ--the supreme organic unity which in the last resort controls all the others.

Can sovereignty be legally limited? The above definitions negative the possibility; but they are not universally concurred in. The historical school point to communities in which no sovereign can be discovered; and Dicey (Law of the Constitution, p. 135) fails to see why it should be inconceivable that the framers of a Constitution should have deliberately omitted to provide means of altering it. Most writers, however, agree that sovereignty cannot be limited even by a direct prohibition in the fundamental instrument, but that such a prohibition is inconsistent with the very conception of a State, and must be disregarded. (See Burgess, Pol. Science, I. pp. 51-2; W.

W. Willoughby, The Nature of the State, p. 214.)

True political science seems to point to the conclusion that sovereignty is incapable of legal limitation, either from without or within. A sovereign body cannot be legally controlled by another body, for then that which controls would be sovereign. Nor can it be legally controlled by a prohibition, express or implied, in a written document; for then the written document would be sovereign-though it can have neither will nor power. Either the organization which framed the Constitution can be legally convoked again-in which case it is the sovereign; or it cannot-in which case its prohibition, directed against the State, is without sanction and without effect.

As sovereignty is incapable of legal limitation from without, so it is unable to bind itself. With a sovereign there is no such thing as "irrevocable laws." The sovereign power which makes a law can alter or repeal it. It is true that sometimes a sovereign body may pass a law and declare it to be so sacred and organic that it shall last for ever, such as the Act for the union of England and Scotland. Such a declaration of intention or policy would have great weight with, but could not legally bind, succeeding Parliaments. As a matter of fact that Act of Union has already been amended in certain particulars, which were originally declared to be fundamental and unchangeable conditions of the union. So the Act for the union of Great Britain and Ireland has been amended by the disestablishment of the Irish Church.

Influences on Sovereignty.-But although there can be no legal control or limitation of the sovereign authority, there are many practical and effective influences