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necessarily enter into the question of allegiance, which depends, as we have seen, upon the relation of sovereign and subject; and in whichever manner the territory may have been acquired, as soon as it becomes part of the dominions of the Crown, the inhabitants come at once under the sovereignty of the Queen, for sovereignty is one of the essential attributes of the Crown (s).
“Those fundamental rights and principles on which the Kings's authority rests,” says Mr. Chitty, “and which are necessary to maintain it, extend even to such of His Majesty's dominions in which the English laws do not, as such, prevail. The rights of the sovereign, which are merely local to England, and do not fundamentally sustain the existence of the Crown, or form pillars on which it is supported, are not, it seems, prima facie extensible to the Colonies or other British dominions which possess a local jurisprudence distinct from that prevalent in and peculiar to England.
Sovereignty is one of those essential attributes of the Crown which are inherent in and constitute His Majesty's political capacity, and prevail in every part of the territories subject to the English Crown, by whatever peculiar internal laws they may be governed (t).
The Imperial Act 14 Geo. III. (1774), cap. 83~entitled "An Act for making more effectual provisions for the government of the Province of Quebec in North America," while granting to the inhabitants their own law and customs of Canada as the rule of decision in all matters of controversy relating to property and civil rights, clearly shows that the relationship of sovereign and subject was then established. This Act received an additional entitling or caption at the hands of the learned revisers under whose supervision the Statutes of Canada, 1859, were
(s) Chitty on Prerog. p. 25. (t) Ibid. .p 25.
consolidated, which is as follows :-“ Imperial enactment concerning the boundaries and constitutions of Canada and the political rights of His Majesty's Canadian subjects ;" and without enquiring under what circumstances the entitling of a statute may be looked at, with a view to its interpretation, it may be observed that this additional caption indicates to some extent the light in which the Act had come to be regarded by the learned revisers and by the Parliament of Canada ; it is a constitutional Act, and relates to the political rights of Her Majesty's Canadian subjects." The placing of the inhabitants of this country under this constitutional law, and defining their political rights, were acts of sovereignty. In the 5th section the inhabitants are expressly referred to as “ His Majesty's subjects,” and the same section grants privileges to the persons there mentioned "subject to the King's supremacy ;” and by the 7th section an oath of allegiance is prescribed as a substitute for the oath prescribed by 1 Eliz., cap. 1, in which the deponents say that they “will be faithful and bear true allegiance to His Majesty King George, etc. The 8th section grants His Majesty's Canadian subjects (with exceptions there mentioned, immaterial to this argument) certain privileges as to holding and enjoying property, with their existing customs and usages relative thereto, and all other civil rights, but in “such large, ample and beneficial a manner
as may consist with their allegiance to His Majesty, and subject to the Crown and Parliament of Great Britain." By the 9th section a further act of sovereignty is exercised in prescribing the criminal law to be enforced as the law of the Province; and the 17th section reserves to the British Crown the right to constitute Courts and appoint Judges
-a further act of sovereignty, and one in harmony with the maxim of English law-that the King is the fountain of justice.
The appointment of the first Governor has been alluded to as one of the first acts of sovereignty exercised by the King of England over this country. In addition to that, it is to be remarked that the Governor represents the Queen in her political character, and in certain matters the Crown prerogatives (u). “ They, the governors, are invested,' says Mr. Chitty," with royal authority, and exercise certain kingly functions, such as calling, proroguing, and dissolving parliament (v). Upon the entry, therefore, of a Governor so appointed into the sphere or province of his duties, the relation between the subject and the Crown, which draws to it allegiance, is at once established and confirmed.
It has been said that, as an incident to the tie of allegiance, the peculiar prerogative rights of the Crown may be exercised upon the subject. As to their being exercised in colonies, the learned author just quoted observes, “The Royal prerogative in the colonies, unless where it is abridged by grants, etc., made to the inhabitants, is that power over the subjects, considered either separately or collectively, which by the Common law of England, abstracted from Acts of Parliament and grants of liberties from the Crown to the subject, the King could rightfully exercise in England” (w).
The question whether the French, Acadian and Canadian inhabitants of this country at the time of the Conquest who might remain in the country should become subjects of the Crown of England was raised upon the discussion of the terms of capitulation between the Marquis de Vaudreuil and Major-General Amherst (Article 41), the former requesting that it should be one of the terms that such
(u) Le Noir v. Ritchie, 3 S. C. R. 575. (v) Chitty on Prerog. p. 34; Campbell v. Hall, Cowp. 204, 208 (1763); Clarke's Col. Law, 4.
(70) Chitty Prerog. p. 33, citing Chalmer, Col. Op. 232-3.
persons should not be forced to take arms against His Most Christian Majesty of France or his allies, directly or indirectly, on any occasion whatsoever, and that the British Government should only require an exact neutrality of them. To this General Amherst would not assent, but wrote against it :-“They become subjects of the King," a position which he was justified in taking, as would appear from an authoritative declaration of the law in the cases next mentioned.
The rules or propositions laid down by the Court of King's Bench, (Mansfield, C.J.), in the case of Campbell v. Hall (x) may be referred to. After the Conquest of the Island of Grenada, the plaintiff being a planter and exporter of sugar, certain duties were collected of him by the defendant as collector for the King, and the plaintiff sued to recover back these moneys as having been paid without consideration, and on the ground that the previous law of the island when under French rule remained unaltered. The defendant set up a proclamation of the King of 20 July, 1764, laying the impost. Certain state papers were referred to, inter alia, the articles of capitulation, the Treaty of Peace of 10 February, 1763, and the proclamation under the great seal, 7 October, 1763, by which government was constituted and express power given to governors, with advice of the King's Council, to call assemblies to make laws for the government of the inhabitants. It was said that the King had a right to a legislative authority, including the levying of taxes, over a conquered country until he divested himself of it; and it was held that the proclamation laying the impost being after the introduction of English law and a constitution, was void, and that the law imposing the duty could only be made by the assembly of the island or by an Act of the Parliament of Great Britain.
(x) Cowper's Rep. 204.
In delivering the judgment of the Court, Lord Mansfield laid down the propositions mentioned, as being quite clear, and which are here given in their integrity on account of their great authority in such matters, although at the risk of a slight digression as to certain parts of them, viz. :
1. A country conquered by the British arms becomes a dominion of the King in right of the Crown, and necessarily subject to the Legislature and Parliament.
2. The conquered inhabitants once received under the King's protection became subjects, and are to be universally considered in that light, and not as enemies or aliens.
3. The articles of capitulation upon which the country is surrendered, and the articles of peace by which it is ceded, are sacred and inviolable according to their true intent and meaning
4. The law of the legislative government of every dominion equally affects all persons and all property within the limits thereof, and is the rule of decision for all questions which arise there. Whoever purchases, lives, or dies there, puts himself under the law of the place.
5. That the laws of a conquered country continue in force until they are altered by the conqueror; the absurd exception as to pagans, mentioned in Calvin's case, shows the universality and antiquity of the maxim. For the distinction could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the crusades. In the present case the capitulation expressly provides and agrees that they shall continue to be governed by their own laws until His Majesty's further pleasure be known.
6th and last. That if the King (and when I say king, I always mean the king without the concurrence of parliament) has a power to alter the old, and introduce new