Whatever may be the policy of a (declaratory) power in the Crown conclusively to certify the limits of its territorial sovereignty, and whatever be the ultimate fate of such a power [linked, as it is in part, to the policy of. and indeed the existence of, a (constitutive) prerogative of cession] still at all events the constituent function of the Crown is founded upon the (constitutive) prerogative of annexation, as distinct from any declaratory power. To annexation the will and pleasure of the Crown is, as a matter of constitutional law, both sufficient and necessary, without regard to any consideration of international law. The necessity of Her Majesty's pleasure is supported inter alia by the case of Staples v. The Queen (1899) (unreported), heard on application to the Privy Council for leave to appeal from the High Court of Matabeleland. A full report of the proceedings in both courts, including argument and reasons, being appended; the Privy Council deciding that territory remained foreign notwithstanding destruction by armed force of the previous native sovereignty and ensuing complete control by the Crown ... The prerogative of legislation is considered; semble a grant of representative institutions may be held subject to a reservation of the prerogative of legislation contained in an earlier but governing instrument. A prerogative of the Crown to legislate for the subject even in foreign territory, wherever the Crown has assumed a jurisdiction, is supported by limited judicial authority whose correctness is doubted. The true extent is considered of the continuance of existing laws in conquered and ceded territories. The establishment of legislative institutions is considered. The incidents of these institutions are elaborated upon, and particularly the privileges of legislative bodies erected by the Crown. An account is given of the events in Newfoundland in August, 1838, giving rise to the leading case of Dr. Kielley in the Courts of Newfoundland, and, on appeal, in the Privy Council, laying down the rule that only necessary incidents are enjoyed at common law and not the lex et consuetude parliament! as known at Westminster: the rule herein laid down being applied more particularly against a power of committal for contempt. Earlier colonial and Privy Council precedents in the opposite sense are discussed. The rule is suggested to be one dictated by considerations of policy simply, and not determined by any particular view of the true basis of privilege in England. If anything, assimilation of the lex et consuetudo parliamenti to the common law serves as an argument for its passage to the colony, while attribution to lost statute might tend to establish peculiarity to England and colonial inapplicability; but the rule of inapplicability may be applied in any event.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:670953 |
| Date | January 1968 |
| Creators | Scott, Stephen Allan |
| Publisher | University of Oxford |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | https://ora.ox.ac.uk/objects/uuid:2974daf9-6701-4ac8-9c8f-abd49e303269 |
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