![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
Abstract
From 1840, the laws of New Zealand have comprised the common law and statute law, both of which – but especially the former – were originally based upon the laws of England and continued to draw upon English jurisprudence. Since New Zealand was regarded as a settled colony, the settlers brought with them such of the laws of England as were applicable to the circumstances of the colony. This included the royal prerogative.
* LLM(Hons) PhD Auckland MA Lambeth LTh Lampeter GradDipTertTchg AUT FRHistS, Barrister of the High Court of New Zealand, and of the Supreme Courts of the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania, and Victoria, Professor of Law at the Auckland University of Technology. Correspondence address: Department of Law, Private Bag 92‐006, Auckland, New Zealand 1020. Email: noel.cox@aut.ac.nz.
Although elements of the royal prerogative are obsolete or have been subsumed in parliamentary enactments, there are a number of aspects that continue to be used by the Crown today. One is the honours prerogative. The changed nature of the Crown (and in particular its division among the realms) has, however, led to some uncertainties. In particular, there have been questions regarding the use of the royal prerogative in respect of armorial bearings, and the proper exercise and application of the Law of Arms. This has never caused serious difficulties in New Zealand – if indeed it can be said to be an issue at all – but the Canadian case of Black v Chrétien has shown that disputes over honours and dignities can arise, and can have serious political or constitutional implications.
This paper considers the introduction of the royal prerogative to the realms, and some of the implications and possible difficulties which this process may have led to.
Notes
* LLM(Hons) PhD Auckland MA Lambeth LTh Lampeter GradDipTertTchg AUT FRHistS, Barrister of the High Court of New Zealand, and of the Supreme Courts of the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania, and Victoria, Professor of Law at the Auckland University of Technology. Correspondence address: Department of Law, Private Bag 92‐006, Auckland, New Zealand 1020. Email: noel.cox@aut.ac.nz.
1 The term Englishmen and women was rarely used since the legal rights of women were generally less full than those of men. The law of England covered, by extension, Wales, and Ireland, though not Scotland; an Act that the King of England, his Heirs and Successors, be Kings of Ireland 1541 (33 Henry VIII c 1) (Eng); Union with Scotland Act 1707 (6 Anne c 11) (Eng) (for Scotland); Sellar, W. D. H. (1988) The Common Law of Scotland and the Common Law of England, in: R.R. Davies (Ed.) The British Isles 1100–1500: Comparisons, Contrasts and Connections (Edinburgh: J. Donald Publishers).
2 Alongside the civil law, and Islamic Law. Indigenous laws, and Socialist laws, play a lesser role; see Edge, I. (Ed.) (2000) Comparative Law in Global Perspective: Essays in celebration of the fiftieth anniversary of the founding of the SOAS Law Department (Ardsley: Transnational Publishers).
3 Apart from in the majority of Commonwealth countries, the common law is found in Abu Dhabi and the other United Arab Emirates, along with Muslim Sharia law, and in Sudan. The major non‐Commonwealth jurisdictions which retain the common law are those of the United States of America, although even here there are exceptions. California and Louisiana have mixed common law and civil law systems. Puerto Rico has adopted USA federal law and US civil and criminal procedure. Real estate law is still influenced by civil law traditions.
4 Or imperialism as it may be termed, though not necessarily in a pejorative sense.
5 Just as the evolution of the Crown was partly the result of wider imperial development, and in turn influenced it; Cox, N. (2001) The evolution of the office of Governor‐General of New Zealand, Mountbatten Journal of Legal Studies, 5(1&2), pp. 51–77; Cox, N. (2001) The control of advice to the Crown and the development of executive independence in New Zealand, Bond Law Review, 13(1), pp. 166–89.
6 As well as miscellaneous laws, including the royal prerogative.
7 English Laws Act 1858.
8 The abolition of the right of appeal to the Judicial Committee of the Privy Council in 2004 may have an effect in this regard, but it is likely to be over the long‐term; Supreme Court Act 2003; Cox, N. (2003) A new Supreme Court of New Zealand, The Commonwealth Lawyer, 12(3), pp. 25–28; Cox, N. (2002) The abolition or retention of the Privy Council as the final Court of Appeal for New Zealand: Conflict between national identity and legal pragmatism, New Zealand Universities Law Review, 20(2), pp. 220–38.
9 See the Report of the Privy Council on the project of a Bill for the better government of the Australian Colonies, dated 1 May 1849; R v Symonds (1847) NZPCC 387 (SC). See also the English Laws Act 1858 and s 5 of the Imperial Laws Application Act 1988.
10 Blackstone, Sir William (1978)Commentaries on the Laws of England, E. Christian (Ed.) (New York: Garland Publishing), book I, para 107; as applied in, inter alia, King v Johnston (1859) 3 NZ Jur (NS) SC 94.
11 For example, in Malta, which has a civil law system. Areas of public law, such as criminal procedure, and commercial and maritime law, display some influence of common law.
12 The nature of these may of course differ between monarchy and republic, and all are subject to alteration after independence, if not earlier.
13 Others include the diplomatic and military prerogatives, though some aspects of these are statutory, and there are some aspects that are better categories as akin to the authority vested in any natural or artificial person; Harris, B.V. (1992) The ‘third source’ of authority for government action, Law Quarterly Review, 109, pp. 626; see also Ex rel Victorian Chamber of Manufactures v Commonwealth (Clothing Factory Case) (1935) 52 CLR 533, 562per Rich J; 9 ALJ 76; Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424, 461; 28 ALJ 94; Re KL Tractors Ltd (in liq) (1961) 106 CLR 318, 337 per Fullagar J; 34 ALJR 481.
14 For the prerogative generally, see Calvin’s Case (1607) 7 Co Rep 156 16a; 77 ER 377; Chitty, J. (1978) A Treatise on the Law, Classics of English Legal History in the Modern Era (New York: Garland Publishing) (reprint of the 1820 edition published by Joseph Butterworth and Son, London, under the title: A Treatise on the Law of the Prerogatives of the Crown; And the Relative Duties and Rights of the Subject); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); Hadfield, B. (1999) Judicial Review and the Prerogative Power, in: M. Sunkin and S. Payne (Eds) The Nature of the Crown: A Legal and Political Analysis (Oxford: Oxford University Press).
15 For a case describing the descent of arms, with due and proper differencing, in the first instance to male descendants of the grantee, and then through females as heraldic heiresses in the event of the failure of the male line, as quarterings, see Wiltes Peerage Case (1869) LR 4 HL, 126, 153 per Lord Chelmsford.
16 In England, the Court of Chivalry, and in Scotland, the Court of the Lord Lyon; Squibb, G. (1959) The High Court of Chivalry (Oxford: Clarendon Press); Royal College of Surgeons of Edinburgh v Royal College of Physicians of Edinburgh 1911 SC 1054. The grant of arms by letters patent by Lord Lyon is an exercise of the delegated armorial prerogative of the Crown, and is not a judicial act: Maclean of Ardgour v Maclean 1941 SC 683, line 35, reaffirming M’Donnell v M’Donald (1826) 4 Shaw 371; Lyon King of Arms Act 1672 (24 Chas II c 47) (Scot); Lord Lyon Act 1867 (30 & 31 Vict c 17) (UK).
17 Which in New Zealand are generally conferred under the authority of letters patents and royal warrants; See Cox, N. (1997) The review of the New Zealand royal honours system, New Zealand Numismatic Journal, Proceedings of the Royal Numismatic Society of New Zealand, 75, pp. 17–21.
18 Amounting to what Brookfield calls a revolutionary seizure of power; Brookfield, F. M. (1999) Waitangi and Indigenous Rights:Revolution, Law and Legitimation (Auckland: University of Auckland Press).
19 The relationship of prerogative and common law will be considered later.
20 Cox, N. (1998) The law of arms in New Zealand, New Zealand Universities Law Review, 18(2), pp. 225–56; cf Macaulay, G. (2001) The law of arms in New Zealand: A response, Otago Law Review, 10(1), pp. 113–18.
21 Though we should be aware of the legal basis of any governmental action.
22 (2001) 199 DLR (4th) 228, per Laskin JA (Court of Appeal of Ontario).
23 Cox, N. (2002) Black v Chrétien: suing a Minister of the Crown for abuse of power, misfeasance in public office and negligence, e‐Law, Murdoch University Electronic Journal of Law, 9(3). Available at http://www.murdoch.edu.au/elaw/issues/v9n3/cox93.html. Accessed 9 January 2008.
24 The former dominions. For their evolution see, Cox, N. (2002) The theory of sovereignty and the importance of the Crown in the realms of the Queen, Oxford University Commonwealth Law Journal, 2(2), pp. 237–55.
25 Chitty, J. (1978) A Treatise on the Law, Classics of English Legal History in the Modern Era (New York: Garland Publishing) (reprint of the 1820 edition published by Joseph Butterworth and Son, London, under the title: A Treatise on the Law of the Prerogatives of the Crown; And the Relative Duties and Rights of the Subject) 4; Davis v Commonwealth (1988) 166 CLR 79, 108 per Brennan J; 63 ALJR 35; 82 ALR 633; but see Harris, B.V. (1992) The ‘Third Source’ of Authority for Government Action, Law Quarterly Review, 109, pp. 626; Wheeler, F. (1992) Judicial review of prerogative power in Australia: issues and prospects, Sydney Law Review, 14, pp. 432, 443–48.
26 Blackstone, Sir William (1978) Commentaries on the Laws of England, E. Christian (Ed.) (New York: Garland Publishing), book I, para 107.
27 In the course of what have been described as the First (17th and 18th centuries) and Second British empires (19th and 20th centuries); see Keith, A.B. (1930) Constitutional History of the First British Empire (Oxford: Clarendon Press); Madden, F. and Fieldhouse, D. (Eds) (1985) The Classical Period of the First British Empire, 1689–1783: The Foundations of a Colonial System of Government: Select Documents on the Constitutional History of the British Empire and Commonwealth (Westport: Greenwood Publishing Group), vol 2; Halstead, J. P. (1983) The Second British Empire: Trade, Philanthropy, and Good Government, 1820–1890 (Westport: Greenwood Press).
28 Such as the Foreign Jurisdiction Act 1890 (53 & 54 Vict c 37).
29 Blankard v Gally (1693) Holt 341; 90 ER 1089 (KB). The doctrine came too late to apply retrospectively to the American colonies, despite the insistence otherwise by colonial constitutionalists; McHugh, P. (1987) Aboriginal Rights of the New Zealand Maori at common law, University of Cambridge PhD thesis, pp. 123–32. It was only really clear after Campbell v Hall (1774) 1 Cowp 204; 98 ER 1045 per Lord Mansfield, CJ (KB). Only cession, and occupation or settlement (and not conquest) are arguably relevant to the Australasian situation; Evatt, E. (1970) The Acquisition of Territory in Australia and New Zealand, in: C. H. Alexandrowicz (Ed.) Studies in the History of the Law of Nations (The Hague: Nijhoff), Grotian Society papers 1968.
30 See, for example, Shaw, A. G. L. (ed.) (1970) Great Britain and the Colonies, 1815–1865 (London: Methuen).
31 See Memorandum (1722) 2 Peere Williams 75; 24 ER 464 (PC). The relatively clear distinction between deserted and uninhabited territories, and those that were inhabited, was eroded after the American Revolution. It became accepted that colonies occupied by a tribal society could be ‘settled’. New Zealand has been cited as the example per excellence of this trend towards a legal fiction of a terra nullius; McHugh, P. (1987) Aboriginal Rights of the New Zealand Maori at Common Law, University of Cambridge PhD thesis, pp. 137–42.
32 Since the High Court of Australia decision in Mabo v Queensland (No 2) (1992) 175 CLR 1, there is now no link between the concept of the settled colony and sparsely populated territory conceived (until that case) as terra nullius.
33 Memorandum (1722) 2 Peere Williams 75; 24 ER 464 (PC):
What if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject so, wherever they go, they carry their laws with them, and therefore such new found country is to be governed by the laws of England.
34 Blackstone, Sir William (1978) Commentaries on the Laws of England, E. Christian (Ed.) (New York: Garland Publishing), book I, para 107.
35 Pictou Municipality v Geldert [1893] AC 524; Cooper v Stuart (1889) 14 App Cas 286.
36 Just as it was limited in England, as was shown in such cases as the Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352 (KB); Attorney‐General v De Keyser’s Royal Hotel Ltd [1920] AC 508 (HL); the Bates’ Case (1606) 2 St Tr 371 ‘Case of Impositions’; Darnel’s Case (1627) 3 St Tr 1 ‘Case of Five Knights’.
37 See, for the nature of allegiance, Ex p. Anderson (1861) 3 El & El 487; 121 ER 525; China Navigation Co v Attorney‐General (1932) 48 TLR 375; Attorney‐General v Nissan [1969] 1 All ER 629; Oppenheimer v Cattermole [1972] 3 All ER 1106.
38 Campbell v Hall (1774) 1 Cowp 204; 98 ER 1045 per Lord Mansfield, CJ (KB).
40 Kielly v Carson (1842) 4 Moo PC 63, 84; 13 ER 225 per Lord Wensleydale.
39 Laws applying 31 December 1832, the day before the first legislature; Coté, J. E. (1977) The reception of English law, Alberta Law Review, 15, pp. 29, 87.
41 Scots lawyers do not necessarily agree however: Smith, Sir Thomas (1987) Pretensions of English Law as ‘Imperial Law’, in: The Laws of Scotland (Edinburgh: Butterworths), vol 5, paras 711–19.
42 Though it might be noted that Scotland played an important role in the creation of the British Empire and a British imperial culture; Landsman, N. C. (2001) Nation and Province in the First British Empire: Scotland and the Americas, 1600–1800 (Cranbury: Bucknell University Press).
43 English Laws Act 1858.
44 R v Symonds (1847) NZ PCC 387; Veale v Brown (1866) 1 CA 152, 157; Wi Parata v Wellington (Bishop of) (1877) 3 NZ Jur (NS) SC 72; R v Joyce (1906) 25 NZLR 78, 89, 112 (CA); Re the Ninety Mile Beach [1963] NZLR 461, 475–76 (CA).
45 Cheyne, S. L. (1975) Search for a constitution, University of Otago PhD thesis.
46 See the Report of the Privy Council on the project of a Bill for the better government of the Australian Colonies, dated 1 May 1849; R v Symonds (1847) NZPCC 387 (SC). See also the English Laws Act 1858 and s 5 of the Imperial Laws Application Act 1988. The decision as to which category a particular colony belongs, once made by practice or judicial decision will not be disturbed by historical research; Milirrpum v Nabalco Pty Ltd [1972–73] ALR 65, 124, 153; 17 FLR 141, 202, 242 (NT SC); R v Kojo Thompson (1944) 10 WA CA 201 (West African CA); Phillips v Eyre (1870) LR 6 QB 1, 18 per Willes J; Coe v Commonwealth of Australia (1979) 24 ALR 118, 128–29 (HCA).
47 Brownlie, I. (1992) Treaties and Indigenous Peoples: The Robb Lectures 1991, F. M. Brookfield (Ed.) (Oxford: Clarendon Press), 12.
48 This was weakened both by the Europeanisation of land tenure, and by the prohibition of the tohunga, experts in Maori medicine and Maori spirituality; Kawharu, Sir Hugh (1977) Maori Land Tenure; Studies of a changing institution (Oxford: Clarendon Press); Tohunga Suppression Act 1908.
49 (1970) British Public Papers – Colonies, New Zealand, Shannon: Irish University Press, Sessions 1835–42, 140–41.
50 See the Report of the Privy Council on the project of a Bill for the better government of the Australian Colonies, dated 1 May 1849; R v Symonds (1847) NZPCC 387 (SC).
51 Coté, J. E. (1977) The reception of English law, Alberta Law Review, 15, p. 29.
52 Cooper v Stuart (1889) 14 AC 46 (PC).
53 R v Symonds (1847) NZPCC 387 (SC).
54 Though there might be an underlying stratum of indigenous laws surviving in each case; see for example In re Southern Rhodesia [1919] AC 211, 233–34 (PC).
55 Kielley v Carson (1824) 4 Moo PCC 63; 13 ER 225; Lyons Corp v East India Co (1836) 1 Moo PCC 175; 12 ER 782;Phillips v Eyre (1870) LR 6 QB 1; Sammut v Strickland [1938] AC 678 (PC); Sabally and N’Jie v Attorney‐General [1965] 1 QB 273; [1964] 3 All ER 377 (CA).
56 Whicker v Hume (1858) 7 HLC 124, 161; 11 ER 50 per Lord Carnworth.
57 These might relate to specific institutions.
58 Maclaurin, R. C. (1999) On the nature and evidence of title to realty, Victoria University of Wellington Law Review, 30(1–2), pp. 655–59.
59 Generally, see Hinde, G. W., McMorland, D. W. and Sim, P. B. A. (1997) Land Law in New Zealand (Wellington: Butterworths), para 1.017.
60 Lawal v Younan [1961] All Nigeria LR 245, 254 (Nigeria Federal SC). In Highett v McDonald (1878) 3 NZ Jur (NS) SC 102, Johnston J observed, in finding that the statute 24 Geo II c 40 (GB) (The Tippling Act) was in force in New Zealand, that provisions for the maintenance of public morality and the preservation of the public peace were, in their general nature, applicable to all the colonies.
61 Blackstone, Sir William (1978) Commentaries on the Laws of England, E. Christian (Ed.) (New York: Garland Publishing), book I, para 107. Allegedly based on Lord Mansfield’s judgment in Campbell v Hall (1774) 1 Cowp 204; 98 ER 1045 (KB).
62 Williams v Attorney‐General for New South Wales (1913) 16 CLR 404, 439 per Isaacs J. See also R v Symonds (1847) NZPCC 387, Veale v Brown (1868) 1 NZCA 152, 157 per Arney CJ, Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, Re the Bed of the Wanganui River [1962] NZLR 600, 624 per Turner J (CA), and Re the Ninety‐Mile Beach [1963] NZ 461, 475–76 per Gresson J (CA).
63 R v Symonds (1847) NZ PCC 387; Veale v Brown (1866) 1 CA 152, 157; Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72; R v Joyce (1906) 25 NZLR 78, 89, 112; Re the Ninety Mile Beach [1963] NZLR 461, 475–76;Falkner v Gisborne District Council [1995] 3 NZLR 622 (‘nothing to suggest not that the law was not applicable to New Zealand circumstances’); Vector Ltd v Transpower New Zealand Ltd [1999] 3 NZLR 646 (CA).
64 Uniacke v Dickinson (1848) 2 NSR 287 (Nova Scotia); Wallace v R (1887) 20 NSR 283 (Nova Scotia); R v Crown Zellerbach Canada Ltd (1954) 14 WWR 433 (British Columbia). The issue was never authoritatively resolved in New Zealand (see, for example, Re Lushington, Manukau County v Wynyard [1964] NZLR 161), nor elsewhere; Roberts‐Wray, Sir Kenneth (1966) Commonwealth and Colonial Law (London: Stevens), pp. 544–47.
65 A representative Parliament was established by the New Zealand Constitution Act 1852 (15 & 16 Vict c 72) (UK).
66 21 & 22 Vict no 2, considered in King v Johnston (1859) 3 NZ Jur (NS) SC 94.
67 21 & 22 Vict no 2, s 1.
68 The decision, as to which category a particular colony belongs, once made by practice or judicial decision will not be disturbed by historical research; Milirrpum v Nabalco Pty Ltd [1972–73] ALR 65, 124, 153; 17 FLR 141, 202, 242 (NT SC); R v Kojo Thompson (1944) 10 WA CA 201 (West African CA); Phillips v Eyre (1870) LR 6 QB 1, 18 per Willes J; Coe v Commonwealth of Australia (1979) 24 ALR 118, 128–29 (HCA).
71 Section 1.
69 Uniacke v Dickinson (1848) 2 NSR 287 (Nova Scotia); Wallace v R (1887) 20 NSR 283 (Nova Scotia); R v Crown Zellerbach Canada Ltd (1954) 14 WWR 433 (British Columbia).
70 These Acts were generally commerce and navigation Acts, which were intended to have an imperial application.
75 In re Lord Bishop of Natal (1864) 3 Moo PCC NS 115, 148, 152; 16 ER 43, 57; approved in Baldwin v Pascoe (1889) 7 NZLR 759, 769–70.
72 The royal prerogative being included for every settled colony, and in ceded and conquered states, because of its essential executive nature – and because it was deemed indivisible (for the Crown was then indivisible); R v Secretary of State for the Foreign and Commonwealth Office, ex p. Indian Association of Alberta [1982] QB 892; Cox, N. (2001) The control of advice to the Crown and the development of executive independence in New Zealand, Bond Law Review, 13(1), pp. 166–89.
73 In re Lord Bishop of Natal (1864) 3 Moo PCC NS 115; 16 ER 43, 57; approved in Baldwin v Pascoe (1889) 7 NZLR 759.
74 R v Secretary of State for the Foreign and Commonwealth Office, ex p. Indian Association of Alberta [1982] QB 892, 911, per Lord Denning, MR. A great deal of local law still survived in England in the early 19th century. Almost all was swept away over the course of the 19th and 20th centuries.
76 Sir William Blackstone had emphatically stated (quoting Sir Matthew Hale and citing Ventris and Strange), that ‘Christianity is part of the laws of England’; Blackstone, Sir William (1978) Commentaries on the Laws of England, E. Christian (Ed.) (New York: Garland Publishing), vol IV p 59. In 1767, Lord Mansfield qualified this only slightly by declaring that: ‘The essential principles of revealed religion are part of the common law’; Chamberlain of London v Evans (1767) 2 Burn’s Eccles Law 218. Though this was modified somewhat by later developments, such as Bowman v Secular Society [1917] AC 406 (HL), the Church of England remains established by law in England.
77 The ecclesiastical law of England consists of the general principles of the ius commune ecclesiasticum (Ever v Owen Godbolt’s Report 432 (Whitlock J)); foreign particular constitutions received by English councils or so recognised by English courts (secular or spiritual) as to become part of the ecclesiastical custom of the realm; and the constitutions and canons of English synods. The Submission of the Clergy Act 1533 (25 Hen VIII c 19) (Eng) provided that only the canon law as it then stood was to bind the clergy and laity, and only so far as it was not contrary to common and statute law, excepting only the papal authority to alter the canon law, a power that ended in later the same year when it was enacted that England was ‘an Empire governed by one supreme head and king’ (Appointment of Bishops Act 1533 (25 Hen VIII c 20) (Eng)). New canon law could only be created by Act of Parliament, and now by Measure, under the Church of England Assembly (Powers) Act 1919 (9 and 10 Geo V c 76) (UK).
78 Though the application of this principle has not been uniform; see Doe, N. (1998) Canon Law in the Anglican Communion (Oxford: Clarendon Press). Thus, despite Long v Bishop of Cape Town (1863) 1 Moo PCC NS 411; 15 ER 756, and In re Lord Bishop of Natal (1864) 3 Moo PCC NS 115; 16 ER 43, approved in Baldwin v Pascoe (1889) 7 NZLR 759, 769–70, holding that the ecclesiastical law of England is generally inapplicable in colonies, the Crown did possess the prerogative power to create a Bishopric – and this was exercised. See R v Provost and Fellows of Eton College (1857) 8 E & B 610; 120 ER 228.
79 See also Cox, N. (2002) The theory of sovereignty and the importance of the Crown in the realms of the Queen, Oxford University Commonwealth Law Journal, 2(2), pp. 237–55. This is not necessarily correct for federal states.
80 Blackstone, Sir William (1978) Commentaries on the Laws of England, E. Christian (Ed.) (New York: Garland Publishing), vol 1, p 239.
81 Dicey, A. (1958) Introduction to the Study of the Law of the Constitution, 10th edn, introduction & appendix by E. C. S. Wade (London: Macmillan), p. 425.
82 See Lewis, C. B. (1991) Judicial Remedies in Public Law (London: Sweet & Maxwell), pp. 13–14.
83 See Harris, B. V. (1992) The ‘third source’ of authority for government action, Law Quarterly Review, 109, pp. 626.
84 See Re Erebus Royal Commission [1983] NZLR 662, 666, 667 per Mahon J; [1984] 1 AC 808; [1984] 3 All ER 201 (PC) and Re Royal Commission on Thomas Case [1982] 1 NZLR 252, 258 (CA).
85 Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352 (KB); Attorney‐General v De Keyser’s Royal Hotel Ltd [1920] AC 508 (HL).
86 In particular, see Payne, S. (1999) The Royal Prerogative, in: M. Sunkin and S. Payne (Eds) The Nature of the Crown: A Legal and Political Analysis (Oxford: Oxford University Press), pp. 77–111, 106; Wade, E. C. S. and Phillips, G. (1971) Constitutional Law, 8th edn (London: Longman), p. 183.
87 Sammut v Strickland [1938] AC 678 (PC).
88 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
89 See the Case of Proclamations (1611) 12 Co Rep 74, 75; 77 ER 1352 (KB); Entick v Carrington (1765) 19 St Tr 1029.
90 Hogg, P. (1995) Constitutional Law in Canada Loose‐Leaf Edition (Toronto: Carswell), 1.9; the Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352 (KB).
91 For which see Cox, N. (2001–02) The influence of the common law and the decline of the ecclesiastical courts of the Church of England, Rutgers Journal of Law and Religion, 3(1), pp. 1–45. Available at: http://www‐camlaw.rutgers.edu/publications/law‐religion/cox1.pdf.
92 Thus, ‘[e]very where he was the head of the church, and the fountain of justice; every where he was entitled to a share in the legislation, (except where he had expressly renounced it;) every where he was generalissimo of all forces, and entitled to make peace or war’; Story, J. (1994) Commentaries on the Constitution of the United States: With a preliminary review of the Constitutional History of the colonies and states, before the adoption of the Constitution, 5th edn, Melville M. Bigelow (Ed.) (Buffalo: William S Hein & Co), Book I, p 170, § 184.
93 Chitty, J. (1978) A Treatise on the Law, Classics of English Legal History in the Modern Era (New York: Garland Publishing) (reprint of the 1820 edition published by Joseph Butterworth and Son, London, under the title: A Treatise on the Law of the Prerogatives of the Crown; And the Relative Duties and Rights of the Subject).
94 Story, J. (1994) Commentaries on the Constitution of the United States: With a Preliminary Review of the Constitutional History of the Colonies and States, before the Adoption of the Constitution, 5th edn, Melville M. Bigelow (Ed.) (Buffalo: William S Hein & Co), Book I, p 170, § 184.
95 Ibid.
96 Blackstone, Sir William (1978) Commentaries on the Laws of England, E. Christian (Ed.) (New York: Garland Publishing), Book I, chapt 7, pp. 232–33.
97 Ibid. Interestingly, the definition relied heavily on the distinction between the King’s political and private persons; see p. 239 et seq.
98 See, for instance, Border, J. (1962) Church and State in Australia, 1788‐1872: A constitutional study of the Church of England in Australia (London: SPCK).
99 See Blackburn, R. W. (1985) The Queen and ministerial responsibility, Public Law, p. 361.
100 Attorney‐General v De Keyser’s Royal Hotel Ltd [1920] AC 508 (HL); South Australia v Victoria (State Boundaries Case) (1911) 12 CLR 667, 703 per Griffiths CJ.
101 Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, 101 per Lord Reid.
102 The Crown’s ancient power to preserve the peace was revived in R v Secretary of State for the Home Department, ex p. Northumbria Police Authority [1988] 1 All ER 556 (CA), though arguably the prerogative was never full disused.
103 Cox, N. (1998–99) The dichotomy of legal theory and political reality: the honours prerogative and imperial unity, Australian Journal of Law and Society, 14, pp. 15–42, 19, cited with approval in Black v Chretien (2001) 199 DLR (4th) 228, paras 27 per Laskin J. A. (Court of Appeal of Ontario), and Copello v Minister of Foreign Affairs of Canada [2002] 3 FC 24, para 61 per Heneghan J (Federal Court of Canada).
104 Cox, N. (1998–99) The dichotomy of legal theory and political reality: the honours prerogative and imperial unity, 14, pp. 15–42, 19; Black v Chretien (2001) 199 DLR (4th) 228, paras 26 per Laskin JA (Court of Appeal of Ontario).
105 Sammut v Strickland [1938] AC 678 (PC). See also Sabally and N’Jie v Attorney‐General [1965] 1 QB 273, 293; [1964] 3 All ER 377, 380, 381 (CA). The prerogative cannot however operate against an alien in an alien land; Attorney‐General v Nissan [1970] AC 179, 229; [1969] 1 All ER 629, 654 per Lord Pearson.
106 Such as the prerogative power of appointment; Re Commission on Thomas Case [1980] 1 NZLR 602 (PC).
107 Such as the Crown’s immunity from statute (more of a presumption than a true immunity); Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 (PC); Interpretation Act 1999, s 27.
108 Such as the notion that the King never dies; in New Zealand, the death of the Sovereign perpetuates the succession under English law, but otherwise has no effect under New Zealand law: s 5(1) of the Constitution Act 1986; Cox, N. (1999) The law of succession to the Crown in New Zealand, Waikato Law Review, 7, pp. 49–72. See Hill v Grange (1555) 1 Plowden 164, 177; 75 ER 253, 273; Willion v Berkley (1561) 1 Plowden 227, 243; 75 ER 339, 371; and Wroth’s Case (1572) 2 Plowden 452, 457; 75 ER 678, 685.
109 (2003) The Laws of New Zealand (Wellington: LexisNexis Butterworths). Joseph, P. (2001) Constitutional Law, Constitutional and Administrative Law in New Zealand, 2nd edn (Wellington: Brookers), para 145, pp. 622–45.
110 For example, see Barton v R (1980) 147 CLR 75, 90 per Gibbs ACJ; Chandler v DPP [1964] AC 763; Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352 (KB).
111 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 per Lord Roskill (obiter) (HL).
112 Ibid; Black v Chretien (2001) 199 DLR (4th) 228 (Court of Appeal of Ontario); Minister for Arts, Heritage & Environment v Peko‐Wallsend Ltd (1987) 15 FCR 274, 277–78 per Bowen CJ, 280 per Sheppard J, 302–04 per Wilcox J; 75 ALR 218 (FC); Macrae v Attorney‐General of NSW (1987) 9 NSWLR 268, 273, 277, 281 per Kirby P, 308 per Priestley JA (CA); Attorney‐General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 (CA); Century Metals & Mining NL v Yeomans (1989) 40 FCR 564, 587–88; 100 ALR 383; 22 ALD 730 (FC); Blyth District Hospital Inc v South Australian Health Commission (1988) 49 SASR 501, 509 per King CJ (FC).
113 Burt v Governor‐General [1992] 3 NZLR 672, 683 (CA).
114 Such as when it relates to the honours prerogative; Black v Chretien (2001) 199 DLR (4th) 228, paras 27per Laskin JA (Court of Appeal of Ontario)
115 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL).
116 As was found in Black v Chretien (2001) 199 DLR (4th) 228 (Court of Appeal of Ontario).
117 Ibid.
118 The Parlement Belge (1879) 4 PD 129; (1880) 5 PD 197; Blackburn v Attorney‐General [1971] 1 WLR 1037.
119 Though the war prerogative has not analysed by the courts for nearly 300 years; Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75; Nissan v Attorney‐General [1970] AC 179 – and it is subject to the statutory prohibition in s 1 of the Bill of Rights 1688 (1 Wm & M s 2 c 2) (Eng) preventing the Crown from maintaining a standing army in time of peace without parliamentary consent; Marks v the Commonwealth (1964) 111 CLR 549, 564 per Windeyer J; Chandler v DPP [1964] AC 763.
120 R v Secretary of State for Home Department; ex p. Northumbria Police Authority [1988] 1 All ER 556, 564, 573, 576; Farey v Burvett (1974) 131 CLR 477; 3 ALR 70; 48 ALJR 161. Police in England and Wales swear to uphold the Queen’s peace:
I (NAME) of (TOWN) do solemnly and sincerely declare and affirm that I will well, and truly serve the Queen in the office of Constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law.
Section 83 of the Police Act 1996 (UK), Sch 4, as amended by the Police Reform Act 2002 (UK).
In New Zealand, the wording is more specific that it is the Queen’s peace which is to be kept:
I, A.B., do swear that I will well and truly serve our Sovereign Lady the Queen in the Police, without favour or affection, malice or ill‐will, until I am legally discharged; that I will see and cause Her Majesty’s peace to be kept and preserved; that I will prevent to the best of my power all offences against the peace; and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law. So help me God.
Section 37(1) of the Police Act 1958 (NZ).
121 See Quentin‐Baxter, A. (1980) Review of the Letters Patent 1917 Constituting the Office of Governor‐General of New Zealand (Wellington: Prime Ministers Department), pp. 13–14.
122 The Prince’s Case (1606) 8 Co Rep 481; 77 ER 496; Wagner, Sir Anthony and Squibb, G. (1973) Precedence and courtesy titles, Law Quarterly Review, 80, p. 352.
123 Generally, see Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 per Lord Roskill (obiter) (HL). The royal prerogative of mercy, one of the most important, is not reviewable by the courts; Burt v Governor‐General [1993] 2 NZLR 672 (CA). There is also a prerogative right to conduct inquiries; Lockwood v the Commonwealth (1954) 90 CLR 177; 182 per Fullagar J.
124 R v Secretary of State for Home Department; ex p Bentley [1993] 4 All ER 443.
125 Attorney‐General for the United Kingdom v De Keyser’s Royal Hotel Ltd [1920] AC 508; Commonwealth v New South Wales (1923) 33 CLR 1, 38 per Isaacs J; Barton v Commonwealth (1974) 131 CLR 477, 484 per Barwick CJ, 510per Mason J; 48 ALJR 161; 3 ALR 70.
126 Attorney‐General v De Keyser’s Royal Hotel Ltd [1920] AC 508 (HL).
127 Black v Chretien (2001) 199 DLR (4th) 228 (Court of Appeal of Ontario).
128 This is a major or direct prerogative because it is not dependent upon another legal relationship, but is a power derived from the role of the Sovereign as Head of State.
129 The Sovereign is the ‘fount of honour’, and alone possesses and exercises the prerogative to confer honours and decorations; The Prince’s Case (1606) 8 Co Rep 1a, 18b; 77 ER 496.
130 Macaulay, G. (2001) The law of arms in New Zealand: a response, Otago Law Review, 10(1), p. 113; Cox, N. (1998) The law of arms in New Zealand, New Zealand Universities Law Review, 18, p. 238.
131 See Cox, N. (1998) The law of arms in New Zealand, New Zealand Universities Law Review, 18, p. 238.
132 Sections 684 (1) (7) and 696.
133 It has always been assumed that this is the prerogative of the Crown: Strathmore Peerage Case (1821) 6 Pat 645, 655 (HL).
134 See Cox, N. (1998) The law of arms in New Zealand, New Zealand Universities Law Review, 18, p. 238.
135 Paston v Ledham (1459) YB 37 Hen VI, Pasch 18 per Nedham J.
136 Such as conveyancing and tenure laws; Lawal v Younan [1961] All Nigeria LR 245, 254 (Nigeria Federal SC).
137 Since 1978, there has been a New Zealand Officer of Arms Extraordinary (Mr Phillip O’Shea, Cabinet Office Adviser on Honours, and now Director of the Honours Secretariat), appointed to exercise the prerogative in New Zealand. Mr O’Shea was appointed by letters patent, rather than by the warrant normally used for extraordinary heralds. But his authority has been impugned by some; see, for the appointment generally, O’Shea, P. (1982) The office of the New Zealand herald of arms, New Zealand Armorist, 20, p. 7; neither the warrant of appointment, nor any other mention of the existence of the position was ever published in the New Zealand Gazette: Macaulay, G. (1994) Honours and arms: legal and constitutional aspects of practice concerning heraldry and royal honours in New Zealand, Canterbury Law Review, 5, pp. 381, 385n; Innes of Edingight, Sir Malcolm (1979) New Zealand herald of arms extraordinary, Commonwealth Heraldry Bulletin, 3, p. 2. Grants of Arms continue to be made by the kings of arms, under the authority of a warrant of the Earl Marshal. The Queen’s royal style in New Zealand is now used in grants to New Zealanders obtained through the agency of New Zealand Herald Extraordinary.
138 Blackstone, Sir William (1978) Commentaries on the Laws of England, E. Christian (Ed.) (New York: Garland Publishing), book I, para 107.
139 As in (1960) Halsbury’s Laws of England, 3rd edn (London: Butterworths), vol 29, pp. 239–70.
140 Armorial bearings are incorporeal and impartible hereditaments, inalienable, and descendable according to the Law of Arms; Wiltes Peerage Case (1869) LR 4 HL, 126, 153 per Lord Chelmsford; for a discussion of corporeal and incorporeal property, see Cox, N. (1997) The British peerage: the legal standing of the peerage and baronetage in the overseas realms of the Crown with particular reference to New Zealand, New Zealand Universities Law Review, 17, p. 379.
141 Paston v Ledham (1459) YB 37 Hen VI, Pasch 18 per Nedham J.
142 Arms are granted by authority vested in the Officers of Arms.
143 Blackstone noted that:
The king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from that wherein he is styled the fountain of justice; for here he is really the parent of them. It is impossible that government can be maintained without a due subordination of rank; that the people may know and distinguish such as are fet over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions: and the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them. It has therefore entrusted with him the sole power of conferring dignities and honours, in confidence that he will bestow them upon none, but such as deserve them. And therefore all degrees of nobility, of knighthood, and other titles, are received by immediate grant from the crown: either expressed in writing, by writs or letters patent, as in the creations of peers and baronets; or by corporeal investiture, as in the creation of a simple knight.
Blackstone, Sir William (1978) Commentaries on the Laws of England, E. Christian (Ed.) (New York: Garland Publishing), book 1, p. 261.
144 Puryman v Cavendish (1397) Close Rolls 21 Ric II p 1 m 5. This was the view of the judges and lawyers. The opinion among lawyers is good evidence of what the law is: Isherwood v Oldknow (1815) 3 M & S 382, 396; 105 ER 654 per Lord Ellenborough; applied in Manchester Corp v Manchester Palace of Varieties Ltd [1955] 2 WLR 440, 448 per Lord Goddard.
145 Puryman v Cavendish (1397) Close Rolls 21 Ric II p 1 m 5. This was recognised by the common law courts: Paston v Ledham (1459) YB 37 Hen VI, Pasch 18 per Nedham J.
146 Cox, N. (1998) The law of arms in New Zealand, New Zealand Universities Law Review, 18, p. 238.
147 For a layman’s view of the law, reflecting this perspective, see also Macaulay, G. (2001) The law of arms in New Zealand: a response, Otago Law Review, 10(1), p. 113.
148 In 1907 and 1913, in a joint opinion, the Law Officers of England, Scotland and Ireland advised that Garter King of Arms was the proper authority for granting arms overseas. In 1907 the Law Officers held that Garter had an imperial jurisdiction. However, neither then nor in 1913 was it expressly asserted that there was not an equally wide jurisdiction enjoyed by Lord Lyon: Opinion of the Law Officers of the Crown on Heraldic Jurisdiction, 13 August 1913 cited in Wagner, Sir Anthony (1967) Heralds of England: A History of the Office and College of Arms (London: HMSO), p. 530. In 1908 and 1914, the Home Secretary gave the Kings of Arms directions on the exercise of the royal prerogative, and those directions were based on these opinions. However, the directions of the Home Secretary have not been accepted by Scottish heralds; Agnew of Lochnaw, Sir Crispin (1988) The conflict of heraldic laws, Juridical Review, pp. 61, 71.
149 See, for example, the extensive reliance of placed by members of the House of Lords on judgements of the Court of Appeal of New Zealand in Three Rivers District Council v Governor and Company of The Bank of England [2000] 2 WLR 1220 (HL).
150 Letters Patent authorising the granting of armorial bearings in Canada, 4 June 1988.
151 Though there has been a heraldic appointment which implies a partial delegation to a ministerial officer, rather than to the Governor‐General; See O’Shea, P. (1982) The office of the New Zealand herald of arms, New Zealand Armorist, 20, p. 7.
152 The New Zealand official arms were granted by a direct royal warrant, signed 26 August 1911. This was directed to the Earl Marshal, stated that:
[F]or greater honour and distinction of the said Dominion of New Zealand certain Armorial Ensigns and Supporters should be assigned thereto… by these presents do grant and assign for the Dominion of New Zealand the Armorial Ensigns and Supporters following, that is to say…
The New Zealand Coat of Arms were published in the New Zealand Gazette on 11 January 1912 (11 January 1912, p. 52). The legal validity of this grant has been questioned – on the grounds either that there was no legal entity to which it was granted, or because of the involvement of the Earl Marshal; Macaulay, G. (1994) Honours and arms: legal and constitutional aspects of practice concerning heraldry and royal honours in New Zealand, Canterbury Law Review, 5, pp. 381, 382. But the efficacy of the grant cannot seriously be doubted.
153 Letters Patent authorising the granting of armorial bearings in Canada, 4 June 1988.
154 For example, the Royal Warrant establishing the New Zealand Army Long Service and Good Conduct Medal, signed 6 May 1985, countersigned by David Lange, published in the New Zealand Gazette 16 May 1985 (SR 1985/90).
155 For example, by a number of submissions to the inquiry by the Standing Committee on Law and Justice of the Legislative Council of New South Wales; (2002) Report on the Proposed State Arms Bill (Sydney: Standing Committee on Law and Justice), parliamentary paper no 326.
156 Imperial honours ceased to be awarded in 1996 – though they continue for the Cook Islands, a New Zealand Associated State; The New Zealand Order of Merit (Royal Warrant SR 1996/205) replaces most pre‐existing awards.
157 Imperial Laws Application Act 1988.
158 Ministry of Justice (2003) The Royal Prerogative of Mercy: A Review of New Zealand Practice (Wellington: Ministry of Justice).
159 Such as Magna Carta 1297 (25 Edw I c 29); the Act of Settlement 1700 (12 and 13 Will III c 2); and the Bill of Rights 1688 (1 Will and Mar Sess 2 c 2).
160 Section 3(1) and Scheds 1 and 2.
161 Section 4.
162 Section 3.
163 Section 5 impliedly preserves the prerogative, and the wording of the Act as a whole clearly limits its application to the statutory law.
164 Indeed, arguably the most important difference between the Law Commission draft Bill and the final statute is that the Imperial Laws Application Act 1988 includes a provision (s 5) as to the applicability of the rules of common law and equity; the Bill was originally intended solely to cover legislation direct and subordinate; Finn, J. (1989) The Imperial Laws Application Act 1988, Canterbury Law Review, 4(1), pp. 93, 99; (1987) Report on Imperial Legislation in Force in New Zealand, Wellington: Government Printer.
165 Section 2.
166 Section 5.
167 Macaulay, G. (2001) The law of arms in New Zealand: a response, Otago Law Review, 10(1), pp. 113, 115.
168 Macrae’s Trustees v Lord Lyon King of Arms [1927] SLT 285.
169 See Manchester Corp v Manchester Palace of Varieties Ltd [1955] 2 WLR 440.
170 Squibb, G. (1959) The High Court of Chivalry (Oxford: Clarendon Press).
171 Cases were tried secundum legem et consuetudinem curie nostre militaris: Puryman v Cavendish (1397) Close Rolls 21 Ric II p 1 m 5. This was recognised by the common law courts: Paston v Ledham (1459) YB 37 Hen VI, Pasch 18 per Nedham J.
172 Despite a call by Lord Goddard, CJ, that it be put on a statutory basis; Manchester Corp v Manchester Palace of Varieties Ltd [1955] 2 WLR 440.
173 Macaulay, G. (2001) The law of arms in New Zealand: a response, Otago Law Review, 10(1), p. 113; Cox, N. (1998) The law of arms in New Zealand, New Zealand Universities Law Review, 18, p. 238.
174 See, for example, King’s Prerogative in Dignities (c.1607) 12 Co Rep 112; 77 ER 1388; Cowley (Earl) v Cowley (Countess) [1901] AC 450; and Black v Chretien (2001) 199 DLR (4th) 228 (Court of Appeal of Ontario).
175 For instance, the Royal Warrant establishing the New Zealand Order of Merit (SR 1996/205) begins:
ELIZABETH THE SECOND, by the Grace of God Queen of New Zealand and Her Other Realms and Territories, Head of the Commonwealth, Defender of the Faith; to all to whom these Presents shall come,
GREETING!
WHEREAS We are desirous of signifying Our appreciation of important and meritorious services to Our Realm of New Zealand:
WE do by these presents for Us, Our Heirs and Successors, institute and create a new Order of Chivalry
176 Direct grants by the Sovereign appear clear enough, but it is the delegated grants that have caused difficulties.
177 Letters Patent authorising the granting of armorial bearings in Canada, 4 June 1988.
178 See, however, Cox, N. (1997) The British peerage: the legal standing of the peerage and baronetage in the overseas realms of the Crown with particular reference to New Zealand, New Zealand Universities Law Review, 17, p. 379.
179 Norfolk Earldom Case [1907] AC 10, 17 per Lord Davey. With respect to ending of this right of hereditary peers, see the House of Lords Act 1999 (UK), which excluded hereditary peers from the House of Lords (s 1).
180 Cowley (Earl) v Cowley (Countess) [1901] AC 450. A peerage is, however, a form of real property, and the descent of a peerage is therefore in accordance with the ordinary rules of land law, modified, however, as outlined elsewhere in this article.
181 That is, the dignity to which is attached the right of a summons by name to sit and vote in Parliament:Norfolk Earldom Case [1907] AC 10, 17per Lord Davey.
182 The royal warrant to pass the Great Seal receives the royal sign manual superscribed, countersigned by the Secretary of State for the Home Department. The sealed letters patent are enrolled on the patent rolls. In some cases the patents have purported to give precedence, although this cannot alter precedence in the House of Lords, which is regulated by the House of Lords Precedence Act 1539 (31 Hen VIII c 10) (Eng): Mountjoy’s Case (1628) 3 Lords Journals 774, cited in 8 State Tr NS 608n.
183 Though, as a resolution of the House of Commons it was not binding on the Crown, nor was it actually followed by all successive Canadian governments; for one example of many, Richard Bennett, Prime Minister of Canada 1930–35, was created a viscount in 1941. There are numerous examples of lesser honours both before and since then.
184 The Baron de Longueuil, a French creation, was recognised by the Crown in 1879. The present head of the family is Michael Grant, Baron de Longueuil.
185 Black v Chretien (2001) 199 DLR (4th) 228 (Court of Appeal of Ontario).
186 Ibid.
187 Letters Patent constituting the Office of Governor‐General of Canada, effective 1 October 1947 (Canada Gazette, Part I, vol 81, p. 3104).
188 See Cox, N (2001) The control of advice to the Crown and the development of executive independence in New Zealand, Bond Law Review, 13(1), pp. 166–89.
189 Relying on Lordon, P. (1991) Crown Law (Toronto: Butterworths), p. 70; Black v Chrétien (2001) 199 DLR (4th) 228, para 31 per Laskin JA (Court of Appeal of Ontario).
190 Black v Chretien (2001) 199 DLR (4th) 228, para 32 per Laskin JA (Court of Appeal of Ontario).
191 Operation Dismantle Inc v The Queen [1985] 1 SCR 441 (SCC).
192 Ibid.
193 Hadfield, B. (1999) Judicial Review and the Prerogative Power, in: M. Sunkin and S. Payne (Eds) The Nature of the Crown: A Legal and Political Analysis (Oxford: Oxford University Press), p. 199.
194 Commentary on Dicey, A. (1948) Introduction to the Study of the Law of the Constitution, 9th edn, introduction & appendix by E. C. S. Wade, London: Macmillan.
195 Which is a matter for the prerogative; R v Burgess, ex parte Henry (1936) 55 CLR 608, 644 per Latham CJ, 683–84 per Evatt and McTiernan JJ; Koowarta v Bjelke‐Petersen (1982) 153 CLR 168, 193 per Gibbs CJ. The appointment of diplomatic representatives is also a prerogative; Byers M., Opinions on Governor‐General’s Instructions, 5 September 1975, cited in Winterton, G. (1983) Parliament, the Executive and the Governor‐General: A Constitutional Analysis (Melbourne: Melbourne University Press), p. 242.
196 Mann, F.A. (1986) Foreign Affairs in English Courts (Oxford: Clarendon Press), p. 2. See also Barton v Commonwealth of Australia (1974) ALJR 161, 172.
197 Though it may have assumed such a role, such as by requiring treaties to be laid before it. In New Zealand, these go before the Foreign Affairs, Defence and Trade Committee. In Australia, the Joint Standing Committee on Treaties has been appointed by the Commonwealth Parliament to review and report on all treaty actions proposed by the Government before action is taken which binds Australia to the terms of the treaty; see http://www.aph.gov.au/house/committee/jsct/index.htm. This does not limit the prerogative, however.
198 See Cox, N. (2001) The control of advice to the Crown and the development of executive independence in New Zealand, Bond Law Review, 13(1), pp. 166–89.
199 See Attorney‐General v Kohler (1861) 9 HL Cas 654, 671; 11 ER 885, 892; Maitland, F. (1901) The Crown as a corporation, Law Quarterly Review, 17, p. 131.
200 For example, the word ‘Sovereign’ appears in New Zealand statutes only in the Sovereign’s Birthday Observance Act 1952. In s 2 of the Constitution Act 1986, ‘Crown’ is defined as ‘Her Majesty the Queen in right of New Zealand; and includes all Ministers of the Crown and all departments’.
201 For this conceptual uncertainty, see Hayward, J. (1995) In search of a treaty partner, Victoria University of Wellington PhD thesis; Interview with Sir Douglas Graham, 24 November 1999.
202 Maitland, F. (1901) The Crown as a corporation, Law Quarterly Review, 17, p. 131.
203 The king’s corporate identity also drew support from the doctrine of succession that the king never dies; Stubbs, W. (1906) The Constitutional History of England (Oxford: Clarendon Press), vol ii, p. 107.
204 Maitland, F. (1901) The Crown as a corporation, Law Quarterly Review, 17, p. 131.
205 It was as late as 1861 that the House of Lords accepted that the Crown was a corporation sole, having ‘perpetual continuance’; Attorney‐General v Kohler (1861) 9 HL Cas 654, 671.
206 A corporation is a number of persons united and consolidated together so as to be considered as one person in law, possessing the character of perpetuity, with its existence being constantly maintained by the succession of new individuals in the place of those who die, or are removed. Corporations are either aggregate or sole. A corporation aggregate consists of many persons, several of whom are contemporaneously members of it. Corporations sole consist, at any given time, of one person only; Hardy Ivamy, E.R. (1988) Mozley and Whiteley’s Law Dictionary, 10th edn (London: Butterworths), p. 109.
207 It was at the time of Edward IV that the theory was accepted that the king never dies, that the demise of the Crown at once transfers it from the last wearer to the heir, and that no vacancy, no interregnum, occurs at all; Stubbs, W. (1906) The Constitutional History of England, 4th edn (Oxford: Clarendon Press), vol ii, p. 107.
208 Nenner, H. (1995) The Right to be King – The Succession to the Crown of England, 1603–1714 (London: Macmillan), p. 32.
209 Blackstone, Sir William (1978) Commentaries on the Laws of England, E. Christian (Ed.) (New York: Garland Publishing), book 1, p. 470. That Blackstone was at least partly incorrect can be seen in the development of a concept of succession to the Crown without interregnum of the heir apparent. Since this concept had fully developed by the time of Edward IV, this cannot have been the principal reason for the development of the concept of the Crown as a corporation sole.
210 A concept that is alive today, in part as a substitute for a more advanced concept of the constitution; interview with Sir Douglas Graham, 24 November 1999.
211 Generally, see Cox, N. (2002) The theory of sovereignty and the importance of the Crown in the realms of the Queen, Oxford University Commonwealth Law Journal, 2(2), pp. 237–55.
212 Black v Chrétien (2001) 199 DLR (4th) 228, para 33 per Laskin JA (Court of Appeal of Ontario).
213 Ibid.
214 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
215 Cox, N. (1998–99) The dichotomy of legal theory and political reality: the honours prerogative and imperial unity, Australian Journal of Law and Society, 14, pp. 15–42, 19, cited with approval in Black v Chretien (2001) 199 DLR (4th) 228, paras 59 per Laskin JA (Court of Appeal of Ontario).
216 Black v Chrétien (2001) 199 DLR (4th) 228, para 60 per Laskin JA (Court of Appeal of Ontario).
217 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
218 As when a Prime Minister calls an election, he or she is advising the Governor‐General to call an election, not doing so himself.
219 Black v Chrétien (2001) 199 DLR (4th) 228 (Court of Appeal of Ontario).
220 ‘The attraction of monarchy for the Fathers of Confederation lay in the powerful counterweight it posed to the potential for federalism to fracture’: Smith, D. (1995) The First Principle of Canadian Government (Toronto: University of Toronto Press), p. 8, relying on W.L. Morton. Provincial powers grew as the provincial ministries were accepted as responsible advisers of the Crown in their own right.
221 R v Secretary of State for Foreign and Commonwealth Affairs [1982] QB 892, 911 per Lord Denning MR.
222 Evatt, H. (1987) The Royal Prerogative (Sydney: The Law Book Co), commentary by Leslie Zines, chapt 1–3.
223 See the Borden Memorandum 1919, in Keith, A. B. (1932) Speeches and Documents on the British Dominions 1918–1931 (London: Oxford University Press), p. 13. The position was firmly established by the late 19th century that a Canadian Lieutenant‐Governor was as much a representative of Her Majesty as the Governor‐General was: Maritime Bank of Canada v Receiver‐General of British Columbia [1892] AC 437, 443.
224 Rt Hon William Massey, 20 June 1921, in Keith, A. B. (1932) Speeches and Documents on the British Dominions (London: Oxford University Press), pp. 59–62.
225 See the Report of the Inter‐Imperial Relations Committee (1926) Imperial Conference (London: HMSO), Parliamentary Papers, vol xi, cmd 2768.
226 Ibid.
228 Keith, A. B. (1928) Responsible Government in the Dominions, 2nd edn (Oxford: Clarendon Press), vol 1, p. xviii.
227 Commonwealth Parliamentary Debates (House of Representatives, 22 March 1927) vol 115, p. 863. Cf Jenks, E. (1927) Imperial Conference and the Constitution, Cambridge Law Journal 3, pp. 13, 21.
229 Some support for this view can be found in remarks in Roach v Canada [1992] 2 FC 173, 177.
230 See Cox, N. (2001) The control of advice to the Crown and the development of executive independence in New Zealand, Bond Law Review, 13(1), pp. 166–89.
231 Cox, N. (2001) The evolution of the New Zealand monarchy: the recognition of an autochthonous polity, University of Auckland, PhD thesis, chapt 5.
232 As indeed, she did when creating the distinguished New Zealand judge Sir Robin Cooke a peer in 1996; Spiller, P. (1996) Lord Cooke of Thorndon, New Zealand Universities Law Review, 17, pp. 1–12.
233 This did not occur because there was no clear distinction drawn by those involved.
234 See Cox, N. (1998) The law of arms in New Zealand, New Zealand Universities Law Review, 18(2), pp. 225–56, Cox, N. (1998–99) The dichotomy of legal theory and political reality: the honours prerogative and imperial unity, Australian Journal of Law and Society, 14, pp. 15–42.
235 The Times (London), 19 June 2001.
236 Section 2.
237 As was done during the abeyance of the Court of Chivalry; Squibb, G. (1959) The High Court of Chivalry (Oxford: Clarendon Press), pp. 39–40.
238 From 1521 to 1563, the Earl Marshal, and his deputies, and Commissioners appointed to exercise the jurisdiction of the office, appear to have purported to exercise the quasi‐judicial jurisdiction over the College of Arms and the heralds, while the Court of Chivalry itself was inactive; Squibb, G. (1959) The High Court of Chivalry (Oxford: Clarendon Press), pp. 39–40. After the Civil Wars of the next century this quasi‐judicial jurisdiction was again revived: Royal declaration of 16 June 1673, confirmed by Order in Council 22 January 1674; College of Arms mss I 26 ff 55‐56, cited in Squibb, G. (1959) The High Court of Chivalry (Oxford: Clarendon Press), pp. 79–80. The Court itself, revived in 1622, had ceased to sit after 1641: Letters patent, 1 August 1622, College of Arms mss, SML 3 f 228, printed in Squibb, G. (1959) The High Court of Chivalry (Oxford: Clarendon Press), appendix III, p. 248.
239 See, generally, Cox, N. (1998) The law of arms in New Zealand, New Zealand Universities Law Review, 18, p. 225.
240 Ibid, p. 252.
241 Macaulay, G. (2001) The law of arms in New Zealand: a response, Otago Law Review, 10(1), p. 113.
242 As, for example, has happened in Canada in 1988, with the establishment of the Canadian Heraldic Authority.
243 Cox, N. (1998) The law of arms in New Zealand, New Zealand Universities Law Review, 18(2), pp. 225–56, 251; O’Shea, P. (1982) The office of the New Zealand herald of arms, New Zealand Armorist, 20, p. 7. Cf. Innes of Edingight, Sir Malcolm (1979) New Zealand herald of arms extraordinary, Commonwealth Heraldry Bulletin, 3, p. 2.
244 Black v Chretien (2001) 199 DLR (4th) 228 (Court of Appeal of Ontario).
245 See Cox, N. (1998–99) The dichotomy of legal theory and political reality: the honours prerogative and imperial unity, Australian Journal of Law and Society, 14, pp. 15–42.