May be referred to the courts. The point I take in this case is that there was no return, or double return, or undue return, but that there was no election at all. I say that the writ issued on the 10th of November was wholly void, and all proceedings under that writ were necessarily void also.
I therefore hold that the returning officer has returned a gentleman as a member of this House for Nipissing when as a matter of law he had no more power to make that return than he would have had if the writ of election had been issued by an usher of this House; and if the writ was illegally issued, then it is perfectly clear that the seat of Nipissing in this House is still vacant.
As to the power of hon. gentlemen to issue that writ on the loth of November, we shall all agree, I presume, that these writs were issued originally as a lbatter of prerogative. All must admit, I presume, that the many assemblies of the nature of parliaments that were held from the days of the old Witanagemote which first met in the forests of Germany or under the oaks of England down to the 13th century, must have been called by royal prerogative. The first parliament itself must have been called by royal prerogative, since there was no statute under which it could be called. But from the very beginning there was a struggle between the Crown and the parliament as to the privileges of parliament. As long ago as the reign of Queen Elizabeth, as laid down by the historian Hallam, parliament succeeded for the first time in wresting from the sovereign the admission that parliament was entitled to full control over its own proceedings and elections. The power of prerogative of course still exists: but we all know that the prerogative of the Crown can be taken away, not only by express words, but by necessary implication. I am quite aware that in the ordinary text books the doctrine is laid down broadly that the Crown cannot be bound by any statute unless it is distinctly named; but this, like many legal rules, is one that with many exceptions. No one can contest the soundness of the rule, but there are so many exceptions to it that the rule might almost be as well stated the other way.
To illustrate the point I am making, it is well known that before constitutional powers of self-government are given to a conquered colony, the Crown has a prerogative right to govern that colony ; but as soon as constitutional powers of self-government are given to the colony, the very giving of those powers, by implication, even although the Crown is not named, deprives the Crown of its prerogative to the extent of the constitutional powers so given. We know too that the Crown is entitled to all the minerals in a colony; but a grant of land to the Canadian Pacific Railway would deprive the Crown itself of that right unless it were directly named. Again, we all know that