by the crown illegal. Taxation not, without the assent of Parliament, impose a duty on any article of merchandise imported into or exported from the country; or, in fact, any duty whatsoever either upon foreign or domestic commodities, whether in time of war or peace. The conclusions arrived at upon this occasion were embodied in a Petition of Grievances, which was addressed by the House of Commons to the king, in the year 1610, and favourably received by his Majesty." This important doctrine was confirmed, in the following reign, by the celebrated case of Rex v. Hampden, wherein, notwithstanding that the contrary doctrine was asserted by a majority of the judges, Parliament annulled the judgment, and by the Statute 16 Car. I. c. 14 declared that the sovereign cannot, without the consent of Parliament, assess or levy ship-money upon the subject. The mode whereby the Stuart sovereigns sought to enforce their unconstitutional claims of levying taxes upon the people, in derogation of the legislative functions of Parliament, was by the issue of royal proclamations and orders emanating from the Privy Council. At that period the Privy Council was still the great governing body in the state, by means of which the will of the sovereign was promulgated and enforced. The king's government was carried on through the instrumentality of Orders in Council, and by the issue of royal proclamations, which were put into execution by the subordinate officers of the crown. This ordaining power of the crown in council was the ancient method whereby the crown exercised its legislative functions; but as the functions of Parliament, as sharing sovereign legislative power, gained recognition, the constitutional principle was established, that the king in council may not make any ordinance contrary • Broom's Const. Law, pp. 247-305. a See Ib. pp. 306-370, 401–408. to the common law, or the ancient customs of the realm, and the statutes ordained in Parliament. The principle has been distinctly recognised since the close of the fourteenth century; and was subsequently reiterated and confirmed by the Bill of Rights. The ancient prerogative of the crown in legislating by orders in council has been subjected to the control of Parliament, and is now mainly exercised as a deputed and not as a prerogative power. The crown still retains the right to regulate various details of administration by its own prescriptive authority, but it is an admitted principle that the sovereign has no right, by a mere order in council, either to sanction a departure from the requirements of an existing law, or to interfere with the established rights or privileges of any class of persons within the realm. It is competent to the crown to declare and enforce, by proclamation, the execution of any existing Dislaw, but it is not within the power of the crown, power. either to add to, alter, or dispense with any law of the land. Following the example of the Church of Rome, the sovereigns of England, from an early period, claimed the right to dispense with the laws of the land, by the issue of proclamations, and by making grants or decrees, 'non obstante any law to the contrary.' In this way they assumed a power, virtute coronæ, to dispense with existing laws, or with the penalties consequent upon a breach of them; or else they undertook to dictate to the people in respect of matters indifferent, and in regard to which perfect liberty of action ought to have been allowed. The current of authority indicates that the prerogative of dispensing by non obstante with Acts pensing • See Stubbs, Const. Hist. v. 2, pp. 572, 584. See 1 Coke's Inst. 120▲ n, 4. Broom's Const, Law, p. 374. And see Ch. Just. Cockburn's charge in • Cases cited, Broom, pp. 375–396. Orders or proclamations. of Parliament was, subject to certain restrictions, recognised in former times as vested in the crown, and was repeatedly exercised during the sixteenth and seventeenth centuries. The use and abuse of this prerogative occasioned repeated conflicts between the crown and Parliament and the courts of law, and eventually cost King James II. his crown." This branch of the royal prerogative was finally annihilated by the Bill of Rights, which declared that the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of Parliament, is illegal;' and that the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.' Since then no one has presumed to advocate the existence of a dispensing power, under any circumstances whatever, as inherent in the crown.'i From the epoch of the Revolution of 1688, whenever the crown has ventured, upon occasions of public emergency, to issue royal proclamations or orders in council, which appeared to sanction any departure from the laws of the land, the necessity for such a proceeding on the part of government has been narrowly investigated by Parliament; and when it has been shown to have been illegal, although justifiable, acts of indemnity have been passed, to exonerate all persons who have advised or carried into execution the same.j Legislation of this kind is a parliamentary acknowledgment of the principle that, in times of danger or emergency, the crown, acting under the advice of responsible ministers, may properly anticipate the future action of Parliament, by a temporary suspension of certain classes of statutes. Abstractly, the crown has k Ib. pp. 379, n, 508, n. Cox, Eng. Govt. p. 29. Campbell's Chanc. v. 5, p. 267. no constitutional right to issue any such orders or proclamations; but, in the words of Sir Robert Peel, Governments have assumed, and will assume, in extreme cases, unconstitutional power, and will trust to the good sense of the people, convinced by the necessity to obey the proclamation, and to Parliament to indemnify the issuers.'1 6 Nevertheless, with the important limitations above Orders in referred to, considerable powers are still inherent in council. the sovereign in council; and express authority for the issue of orders in council is frequently conferred upon the crown by legislative enactment. A large proportion of what may be called the details of legislation rests upon the authority of orders in council, some of which are issued by her Majesty in virtue of her prerogative, while others derive their force from the provisions of Acts of Parliament.' It is competent to a court of justice to enquire into the validity-or accuracy, in the statement of alleged facts-of an order in council, duly passed and gazetted.TM As examples of the variety and importance of the subjects to which this form of quasi-legislation is applicable, it may be stated that orders in council, or royal proclamations which are usually issued in pursuance of the same, are promulgated for the assembling, prorogation, and dissolution of Parliament; for declaring war; for confirming or disallowing the Acts of Colonial Legislatures; for giving effect to treaties; for extending the terms of patents; for granting charters of incorporation to companies or municipal bodies; for proclaiming ports, fairs, &c.; for deciding causes on appeal; for creating ecclesiastical districts or circuits for judicial purposes; for granting exemptions from the law of mortmain; for the m 1 Peel's Mem. v. 2, p. 131. Attorney-General v. Bishop of Manchester, L. R. 3 Eq. p. 436, And see Judge Ritchie in Windsor When they re sanction of Parliament. regulation of the Board of Admiralty, and of appointments to offices in the various departments of state; for creating new offices, and defining the qualifications of persons to fill the same; and for declaring the period at which certain Acts of Parliament (the operation of which has been left by the legislature to the discretion of the Queen in council) shall be enforced." As a It is difficult to draw the line between what may quire the and what may not be accomplished by an order in council, without special legislative sanction. general rule, all orders in council restricting trade, unless issued under the authority of an Act of Parliament, or justified by reference to cases coming within the prerogative of war-and all orders suspending the operation of any statute—would require an Act of Indemnity. But when duly informed by the crown of the proceedings had upon any such occasion, Parliament has always been willing to indemnify the government for the timely exercise of authority for the public welfare, although it may have led to an overstepping of the constitutional limits of executive power. Proclama tions. So far as proclamations, as distinct from orders in council, are concerned, it is an indisputable branch of the royal prerogative to issue proclamations in reference to the existing state of the law, warning those who may be likely to commit offences, encouraging respect for the law, and offering rewards for the apprehension of offenders. These documents are regarded as solemn expressions of the royal will, and are invariably issued upon the advice of responsible ministers. They are usually based upon orders in council, and are n Rep. on the Privy Coun., Com. Pap. 1854, v. 27, p. 253. Rep. on Misc. Exp. Ib. 1847-8, v. 18, pt. 1, pp. 371, 377. The duration of the Endowed Schools Act, 1869, was limited to three years, with authority to her Majesty in council to renew it for another year without applying to Parliament. This power was exercised by order in council in 1872. Hans. D. v. 212, p. 340. And see 40 & 41 Vict. c. 38. • See cases cited in Lieber's Hermeneutics, 3rd ed. 1880, p. 67 n. |