substantially altered, as a result of representations which had been made by the Dominion Government. The most notable changes made were the omission of those Instructions which had enjoined the Governor to omit to consult his Executive Council in cases where consultation would materially prejudice the Queen's service or upon matters too trivial or too urgent to admit of consultation; to act in opposition to the advice of the Executive Council upon grounds or reasons which he was to report to the Colonial Secretary; to give or withhold his consent to Bills passed by the Colonial Legislature upon certain specific grounds; and to reserve for the Queen's assent Bills dealing with certain specified subjects. These Instructions were omitted from the Canadian Instructions of 1878; and, as to the exercise of the right of pardon, whereas the old Instructions definitely ordered the Governor "to decide either to extend or to withhold a pardon or a reprieve, according to your own deliberate judgment, whether the members of our said Executive Council concur therein or otherwise," the Canadian Instructions of 1878 made the following provision as to the exercise of the right of pardon or reprieve : "And we do hereby direct and enjoin that our said Governor-General shall not pardon or reprieve any such offender without first receiving. in capital cases, the advice of the Privy Council of our said Dominion, and, in other cases, the advice of at least one of his Ministers." The general effect of this amendment of the Instructions was to make the position of the Governor-General consistent with the existence of responsible government. As issued to Lord Lorne in 1878 and to his successors in the office, the Instructions to the Governor-General of Canada are confined to the proper publication of his Commission and taking of the necessary oath on entering upon the duties of his office; the administration of the oath to persons holding positions of trust in the Dominion; the communication of his Instructions to the Privy Council of the Dominion; the transmission to the Imperial Government of copies " of all laws assented to by him in the Queen's name, or reserved for signification of the Royal pleasure"; the exercise of the right of pardon and reprieve after taking the advice of the Privy Council or a Minister (vide above); and the prohibition to quit the Dominion without leave of absence. [It may be mentioned in passing that the old Instructions were still issued to other Colonial Governors till the year 1892, when new Instructions, on the model of those given to the GovernorGeneral of Canada, were drafted as a result of a vigorous remonstrance by Chief Justice Higinbotham of Victoria, who had pointed out the inconsistency between the commands laid upon Governors by many of the old Instructions and their powers under responsible government.] With regard to the exercise of the power of pardon by the Power of Governor-General of Canada, it should be noted that, though the Pardon. advice of the Privy Council is necessary in capital cases, the Governor-General is not bound to follow that advice. The matter is one of prerogative-depending in the ultimate result upon the exercise of his individual discretion as the representative of the Executive Queen. This is well expressed in the following extract from a despatch sent by the Colonial Secretary to Lord Dufferin when Governor-General of Canada : "Advice having thus been given to the Governor, he has to decide for himself how he will act. . . . . It has, I am aware, been argued that Ministers cannot undertake to be responsible for the administration of affairs unless their advice is necessarily to prevail on all questions, including those connected with the Prerogative of Pardon. But I am led to believe that this view does not meet with general acceptance, and there is at all events one good reason why it should not. The pressure, political as well as social, which would be brought to bear upon the Ministers if the decisions of such questions rested practically with them, would be most embarrassing to them, while the ultimate consequence might be a serious interference with the sentences of the Courts." This argument applies also to the Governor-General of Australia, and will explain why the prerogative of pardon is not mentioned in the Constitutions either of Canada or Australia. There is one other point of interest in this connection. The 44th resolution adopted by the Conference of Quebec in 1864 was as follows: "The power of respiting, reprieving and pardoning prisoners convicted of crimes, and of commuting and remitting of sentences in whole or in part, which belongs of right to the Crown, shall be administered by the LieutenantGovernor of each Province in Council, subject to any instructions he may from time to time receive from the General Government, and subject to any provisions that may be made in this behalf by the General Parliament." This resolution was objected to by the Imperial Government when the British North American Act was under consideration, and was, with the consent of the Canadian delegates, set aside and expunged. As to the executive powers and functions of the Governor-General of Canada, they are defined by the British North America Act as vested in, and to be carried out by him in some cases with the advice of the Privy Council of the Dominion and in other cases without that advice. In practice [as will be shown later in discussing the executive powers and duties of the Governor-General of Australia] the distinction is of little importance, since all executive actions of a Governor are taken by him on the responsibility of Ministers, who have to answer to Parliament for such actions, whether that responsibility is or is not expressly laid by the Constitution upon the shoulders of the Ministry. Sec. 12 of the British North America Act defines generally the powers, authorities and functions" of the Governor-General of Canada as being those which "under any act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia or New Brunswick, are at the Union vested in or exercisable by the respective Governors or Lieutenant-Governors of those Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Governors or Lieutenant-Governors individually." They are to be exercised by him "with the advice, or with the advice and consent of, or in conjunction with, the Queen's Privy Council for Canada, or any members thereof, or by the Governor-General individually, as the case requires; subject, nevertheless [except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland], to be abolished or altered by the Parliament of Canada." This section applies not only to the executive powers and functions of the Governor-General of Canada, but also to what may be termed his legislative powers as the representative of the Sovereign. To confine ourselves for the present to his executive powers and functions, various sections of the British North America Act, 1867, assign to him certain specific powers and functionssome of which are to be exercised [as has been pointed out above] by "the Governor-General in Council," whilst others are to be exercised simply "by the Governor-General." In summarising the executive powers and functions of the Governor-General of Canada, it is convenient to adopt that distinction. (1) Executive Powers and Functions of Governor-General in Council. To appoint a Lieutenant-Governor for each Province [Sec. 58]. To remove a Lieutenant-Governor, under certain specified conditions [Sec. 59]. To administer the oath to Lieutenant-Governors [Sec. 60]. To appoint such officers as he deems necessary for the effectual execution of the Constitution, "until the Parliament of Canada otherwise provides " [Sec. 131]. "Until the Parliament of Canada otherwise provides," to order the time and form of payments to be made under the Constitution, "or in discharge of liabilities created under any Act of the Provinces of Canada, Nova Scotia and New Brunswick," and assumed by the Dominion at its creation [Sec. 120]. To order that "such and so many of the records, books and documents of the Province of Canada as he thinks fit shall be appropriated and delivered either to Ontario or to Quebec " [Sec. 143]. (2) Executive Powers and Functions of Governor-General [not in Council].-To choose and remove members of the Privy Council of Canada [Sec. 11]. To summon qualified persons to be Senators [Sec. 24]. On the direction of the Queen, to add to the Senate three or six qualified persons, representing equally the three divisions of Canada [Sec. 26]. To fill vacancies in the Senate [Sec. 32]. To appoint and remove the Speaker of the Senate [Sec. 34]. To summon the House of Commons [Sec. 38]. To cause writs to be issued for the election of members of the House of Commons [Sec. 42]. To dissolve the House of Commons [Sec. 50]. To recommend to Parliament appropriation and taxation Bills [Sec. 54]. To appoint the Judges of the Superior, District and County Courts in each Province [Sec. 96]. To remove Judges of the Superior Courts, on an address from the Dominion Parliament [Sec. 99]. Further, Sec. 14 of the British North America Act makes it awful for the Queen, "if Her Majesty thinks fit, to authorise the Governor-General from time to time to appoint any person or any persons, jointly or severally, to be his deputy or deputies within Appointment: Executive any part or parts of Canada, and in that capacity to exercise, during the pleasure of the Governor-General, such of the powers, authorities and functions of the Governor-General as the GovernorGeneral deems it necessary or expedient to assign to him or them, subject to any limitations or directions expressed or given by the Queen; but the appointment of such a deputy or deputies shall not affect the exercise by the Governor-General himself of any power, authority or function." Under Sec. 3 of the "Commonwealth of Australia Constitution Act" "the Queen may at any time after the Proclamation [uniting the separate States of Australia in a Federal Commonwealth] appoint a Governor-General for the Commonwealth." Under Sec. 2 of the Constitution introduced by that Act he is appointed as the representative of the Sovereign in the Commonwealth, holding office at the Sovereign's pleasure, and exercising, subject to the Constitution, such powers and functions of the Sovereign as the Sovereign may assign him. Though he holds office at the pleasure of the Sovereign, Todd [Parliamentary Government in the British Colonies, 2nd Ed., pp. 122-123] points out that since 1828 it has been understood that after the expiration of six years a Colonial Governor retires from his government as a matter of course, though he may be reappointed for a further term. As to his powers and functions, Messrs. Quick and Garran emphasise the distinction, already alluded to, between those which are conferred upon him as the representative of the Sovereign and are parts of the Royal Prerogative; and those which have become detached from the Prerogative and are therefore declared to be vested in the "Governor in Council." The distinction is, however, as they say, really a matter of words, since even in the exercise of the powers comprised under the first head, the Governor-General is bound, in accordance with well-established Constitutional practice, to act only with the advice of some Minister responsible to the Federal Parliament. Further, both classes of powers are executive powers. As to these executive powers, conferred on the Governor-General of Australia either as the representative of the Sovereign or when acting with the advice of the Executive Council, Messrs. Quick and Garran provide* the following summary: Statutory Powers of the Governor-General (not in Council).—To appoint times for holding Sessions of Parliament; to prorogue Parliament; to dissolve House of Representatives [Sec. 5]. To notify, to the Governor of a State interested, the happening of a vacancy in the Senate [Sec. 21]. Το recommend to Parliament the appropriation of revenue or money [Sec. 56]. To dissolve the Senate and House of Representatives simultaneously; and to convene a joint sitting of members of both Houses [Sec. 57]. To exercise, as representative of the Sovereign, the executive power of the Commonwealth [Sec. 61]. To choose, summon and dismiss members of the Federal Executive Council [Sec. 62]. To appoint [and dismiss] officers to administer Departments of State [Sec. 64]. To direct, in the absence of Parliamentary provision, what offices shall be held by Ministers of State [Sec. 65]. As the representative of the Sovereign, to be Commander-in-Chief of the naval and military forces [Sec. 68]. To proclaim dates when certain departments * Ann. Const. Aust. Comm., pp. 404 and 405. shall be transferred to the Commonwealth [Sec. 69]. And generally to exercise all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony in respect of matters which under this Constitution pass to the Executive Government of the Common wealth' [Sec. 70]. "Statutory Powers of the Governor-General in Council.-To issue writs for General Elections of the House of Representatives [Sec. 32]. To issue writs for election to vacancies in the House of Representatives [Sec. 33]. To establish Departments of State [Sec. 64]. To appoint and remove [the latter on addresses from both Houses] all officers except Ministers of State [Sec. 67]. To appoint the Justices of the High Court and other Federal Courts [Sec. 72]. To draw money from the Federal Treasury and expend it until the first meeting of Parliament [Sec. 83]. To appoint members of the Inter-State Commission and, upon addresses from both Houses, to remove them [Sec. 103]. And generally, to exercise in respect of matters which under this Constitution pass to the Executive Government of the Commonwealth' all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony with the advice of the Executive Council [Sec. 70]." Legislative" Powers: Canada The executive powers of the Governor-Generals of Canada and Australia, detailed above, should be distinguished from what may and Australia. be called their legislative powers Sec. 58 of the Australian Constitution provides that : "When a proposed law passed by both Houses of Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, cr that he reserves the law for the Queen's pleasure." This section is copied from Sec. 55 of the British North America Act of 1867, but omits the provision of that section to the effect that the Governor-General's decision shall be subject, not only to the provisions of the Constitution, but "to Her Majesty's Instructions." It was the insertion of this provision in the Canadian Constitution which led to the revision in 1878 of the Instructions issued to the Governor-General of Canada. It has been pointed out, at the beginning of this chapter that one of the changes in the Instructions was the omission of the clause defining a number of classes of Bills to which the Governor-General was to refuse his assent. In practice it has been the custom in Canada for a formal report on all doubtful legislation to be submitted to the Governor-General by the Minister of Justice. But the point is that as to the exercise of this legislative power of assenting to Bills passed by the Central Parliament, the Governor-General is free to exercise his own discretion; whereas in the exercise of his executive powers he is bound by Constitutional practice to act according to the advice either of his Ministers or his Executive Council, as the case may be This is made clear, as far as the duty of the GovernorGeneral of Canada in dealing with legislation by the Dominion Parliament is concerned, by Todd [Parliamentary Government in Colonies, 2nd Ed., pp. 166, 167]* In Australia the rule is the Thus : same. "Annotated Constitution of Australian Commonwealth." p. 691 22 |