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.