APPENDICES TO OBAL ARGUMENTS. 2357 



now, for the first time, sought to be established in this Court. So 

 large, and, indeed, so dangerous an innovation upon the accustomed 

 principles of adjudication in the Court, ought not to be passed over 

 unobserved. If the proclamation by which the Surrogate is stated 

 to have been governed, be legal, then, indeed there can be no doubt 

 that it is as binding on this Court as it was on the Surrogate Court ; 

 and that it will be equally binding on the King in Council, should 

 the case go to an Appeal. There is no dispensing power in Courts, 

 and that which was the law of the case at Labrador, will be the law 

 in London. I am bound, therefore, to apply to it the same considera- 

 tions which, I think, would be applied by the Lords of Appeal. It 

 is a determined principle of law, that the King holds a legislative 

 power over conquered or ceded countries, but that no such power is 

 held over countries originally settled by British subjects. This island 

 and the Labrador were first discovered by the English, and peopled 

 by emigrants from the United Kingdom. But the application of the 

 principle does not rest upon a question of geography, it is expressly 

 declared by the statute 49th Geo. Ill, cap. 27, that the Courts in 

 Newfoundland shall be governed by the laws of England, so far as 

 they may be applicable; and the same course of administering justice, 

 is, by the statute of 51 Geo. Ill, cap. 45, extended to the Labrador. 

 These statutes are affirmative of what was before the common law of 

 all the English colonies; over which it has been solemnly recognised 

 in the celebrated West Indian case of Campbell v. Hall, (Cowp. 

 Rep. 204) , that His Majesty holds no legislative authority. The King 

 has, indeed, large prerogatives; but the prerogatives of the Crown 

 are defined by the constitution, and form a part of the law of the 

 land. It will not be contended that there is a prerogative peculiar 

 to Newfoundland ; and if there be not, then a proclamation for regu- 

 lating the trade and fisheries of this island and its dependencies, 

 must rest upon the same foundation, as a proclamation for governing 

 the trades and fisheries of Great Britain. 



"Proclamations," says Blackstone, (vol. 1, p. 270), "are binding 

 upon the subject, where they do not either contradict the old laws, or 

 do not establish new ones, but only enforce the execution of such laws 

 as are already in being, in such manner as the King shall judge nec- 

 essary." And I am not conscious of having seen any act of state, in 

 modern times, which has not been perfectly in unison with this first 

 principle of the constitution. It is a mere sophism to distinguish 

 between regulations and laws. Everything which prohibits that 

 which was not prohibited before, is a law. But to bring this matter 

 at once to the test, let us look at the code of regulations for the 

 fishery and trade on the coast of Labrador. The first article 

 1422 declares " that no inhabitant from Newfoundland, nor any per- 

 son from any of the colonies, shall, on any pretence whatever, 

 go to the coast of Labrador; and if any such are found there, they 

 shall be corporally punished for the first offence ; and the second time, 

 their boats shall be seized for the public use of British ship fishers 

 upon that coast." The regulation which debars a million of His 

 Majesty's subjects from the exercise of a common right, submits 

 their persons to ignominious punishment, and their property to 



Rules and Regulations by Governor Pallisser, 1765, printed at British Case 

 Appendix, p. 690, see ante, p. 6. 



