ARGUMENT OF ELIHU ROOT. 2233 



foundland, but I have always understood that it was common ground 

 for both parties, that Newfoundland was practically an unsettled 

 territory. However, there appears to have been a Chief Justice, and 

 I have no doubt he gave the decision which has been cited. Accord- 

 ing to that decision, he held that the Crown had no power to make 

 proclamations in Newfoundland I need not read the judgment 

 that the Crown had no power to legislate by proclamation in New- 

 foundland, and he therefore treated as invalid certain of the procla- 

 mations which we have included in our schedule of regulations which 

 we said had been made by the authorities of Newfoundland, and 

 indicated that the fishery was then a regulated fishery. 



Well, it would not very materially affect my argument on Question 



1, even if that decision were accurate, because after all the 



1351 parliamentary legislation which existed, is quite sufficient to 



make good my point, but I can scarcely allow this decision to 



pass without some observation. 



It is not reported in any authorised law report. The Chief 

 Justice of Newfoundland in the year 1820 is, I think, scarcely a 

 very competent authority to be accepted in the year 1910, or indeed 

 in any other year, upon the constitutional prerogatives of the British 

 Crown. And I would just say this about his decision: He said he 

 relied upon the case of Campbell v. Hall, the decision of a very great 

 Judge, to justify his opinion as to the powers of the British Crown. 

 It is sufficient to refer to that case to show how completely mistaken 

 the Chief Justice of Newfoundland was in the decision that he gave. 

 The case of Campbell v. Hall is one of course very familiar indeed 

 to English lawyers, especially to those who are concerned with con- 

 stitutional prerogatives. That case is also before the Tribunal, and 

 I need not refer to it in detail. There were two acts or orders of 

 the Crown to be considered. One of them imposed a duty of ty per 

 cent, on certain commodities. Another granted a constitution to- 

 the colony. It so happened that by some inadvertence or mistake 

 the order granting the constitution was published and made effective 

 first. The order imposing the duty was published after the granting 

 of the constitution. It was held in that case that the order imposing 

 the duty was invalid, because the Crown, having granted the consti- 

 tution, could not derogate from that grant by seeking subsequently 

 to impose a duty, but it was also treated as perfectly well-known 

 law that, if the order in council imposing the duty had been published 

 first, before the grant of the constitution, it would have been a 

 perfectly valid order. It therefore does not negative, on the contrary 

 it affirms the power of the Crown to legislate for colonies having no 

 self -governing constitution. 



Co\vp:T's Itep., p. 204. 

 92901) S. Doc. 870. Gl-3. vol 11 42 



