Responsible government in the Dominions: Responsible government in the Dominions

Responsible government in the Dominions (Vol. 3)

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Multivolume work

Identifikator:: 1896933912

Document type:: Multivolume work

Author:: Keith, Arthur Berriedale http://d-nb.info/gnd/119086794

Title:: Responsible government in the Dominions

Place of publication:: Oxford

Publisher:: Clarendon Press

Year of publication:: 1912-

Collection:: Economics Books

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Volume

Identifikator:: 1896935311

URN:: urn:nbn:de:zbw-retromon-237672

Document type:: Volume

Author:: Keith, Arthur Berriedale http://d-nb.info/gnd/119086794

Title:: Responsible government in the Dominions

Volume count:: Vol. 3

Place of publication:: Oxford

Publisher:: Clarendon Pr.

Year of publication:: 1912

Scope:: XII Seiten, Seiten 1102-1670

Digitisation:: 2022

Collection:: Economics Books

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Chapter

Document type:: Multivolume work

Structure type:: Chapter

Title:: Part VI. The judiciary

Collection:: Economics Books

1358 THE JUDICIARY [PART VI to hear appeals being barred in any case whatever unless it is barred by an Imperial Act. The use of the power of Colonial Legislatures to affect this prerogative has been the source of some confusion. In the case of Cuwillier v. Aylwin? it was held that the right of appeal could be taken away by the Crown with the assistance of the Legislature of Lower Canada. As a matter of fact, in that case the decision was clearly wrong, for the statute of Lower Canada? in question expressly preserved the right of prerogative. The case came up again in re Louis Marois,’ and it was also mentioned in Cushing v. Dupuy,’ but all that wag affirmed in these cases is simply that the only means of taking away the prerogative is by express words. It is clear that, prior to the passing of the Act of 1844, the prerogative in so far as it was not statutory could have been barred by Colonial Acts, and the Act of 1844 recognizes that it had been so barred, but it is equally clear that, since the passing of that Act, the only power of barring it is by an Act of the Imperial Parliament or by an Act approved by an Imperial Act. As a matter of fact, there is on record one Canadian Act of 1888 which purports to extinguish all right of appeal in criminal cases.® That statute has been several times quoted as a case where the prerogative has been barred, but it is perfectly clear, in view of the Imperial Act of 1844.7 that the ! This fact is, curiously, not alluded to in most of the authorities. But the Act No. 8 of 1908 of Natal setting up a special Court to try Dinizulu did not even attempt to bar an appeal to the Privy Council. * 2 Knapp, 72. # 34 Geo. III. c. 6. 5. 43. + 15 Moo. P. Q. 189. 8 5 App. Cas. 409. Cf. Lefroy, Legislative Power in Canada, pp. 181-4 ; Harrison Moore, Commonwealth of Australia? p. 232. 8 51 Viet. ¢. 43; now in Rewsed Statutes, 1906, c. 146, s. 1025. See House of Commons Dzbates, 1887, pp. 644-6 (50 & 51 Viet. ¢. 50); 1888, p. 942; Sess. Pap., 1889, No. 77. The New South Wales Criminal Appeal Bill of 1911 makes a similarly ineffective attempt, and also tries to evade the application of s. 73 of the Constitution by creating a Criminal Appeal Court, which is not to be the Supreme Court; Debates, 1911, pp. 1772 seq. ? Wheeler's view (Confederation Law, p. 34) that only an Imperial Act could bar the right as it is exercised in England is certainly wrong, though Quick and Garran, Constitution of Commonwealth, p. 762, seem to affirm it.

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