Acts. For State statute, and by the Instructions accompanying his Commission, yet he does not enjoy the privilege of complete exemption from legal liability. For all acts done under and within the limits of the authority confided to him the representative of the Sovereign is protected, "because in doing them he is the servant of the Crown and is exercising its sovereign authority1;" and hence, where an action was brought against the Lord Lieutenant of Ireland for an alleged illegal seizure of property, the Irish Court of Common Pleas held, that as the act complained of was an act of state done by the Lord Lieutenant as such, the action would not lie. For Acts his On this principle the Governor of a Colony may be justified in case of rebellion, or exceptional disturbance, in resorting to a proclamation of martial law, i.e. in assuming absolute power and exercising it by military force, but such power must be exercised bonâ fide for the purpose of maintaining the safety of the colony and with reasonable moderation under the circumstances. Any abuse of such power will render the governor criminally and civilly liable3. For acts which are beyond the authority confided to not within him the Governor of a colony is responsible. "Such acts authority. though the Governor may assume to do them as Governor cannot be considered as done on behalf of the Crown nor to be in any proper sense acts of State. When questions of the kind arise it must necessarily be within the province of municipal Courts to determine the true character of the acts done by a Governor, though it may be that when it is established that the particular act in question is really an act of state policy done under the authority of the Crown, the defence is complete and the Court can take no further cognizance of it." 1 Per P. C. in Musgrave v. Pulido, 5 App. Cas. 102, 49 L. J. P. C. 20. 2 Luby v. Lord Wodehouse, 17 Ir. Com. L. R. 618. 3 See Wright v. Fitzgerald, 27 St. Tr. 765. Report of R. v. Eyre by Finlason: Broom's Constitutional Law, 2nd Ed. p. 653. P. C. in Musgrave v. Pulido, 5 App. Cas. 102, 49 L. J. P. C. 20. For acts not within his authority' civil or criminal' proceedings may be taken. By the 11 & 12 Will. III. c. 12, criminal proceedings are to be tried in the Court of King's Bench. In the following chapter the circumstances under which the Governor-General is bound in exercising his legal powers to follow the advice of his Ministers will be more fully discussed. 1 Hill v. Bigge, 3 Moo. P. C. 465. Fabrigas v. Mostyn, 20 St. Tr. 81; Cowper, 161. 2 R. v. Wall, 28 St. Tr. 51. Number. CHAPTER XVI. THE PRIVY COUNCIL. THE B. N. A. Act, s. 11 provides for the appointment of a Council to aid and advise the Governor-General in the government of Canada. This Council corresponds to the Cabinet in England and is styled the Queen's Privy Council for Canada. A distinction is growing up in Canada between Privy Councillors, who are members of the Cabinet and Honorary Privy Councillors, who are not in the Cabinet, inasmuch as by command of the Queen, a Privy Councillor after he retires from office is entitled to be termed "Honourable" for life. Strictly speaking however these "honorary" members are not in law members of the Council. The Privy Council in 1887 consisted of 14 members, viz.: The Secretary of State. The Minister of the Interior. The Minister of Justice. The Minister of Marine and Fisheries. The Postmaster-General. The Minister of Public Works. The Minister of Railways and Canals. The Minister of Finance. The Minister of Customs. The Minister of Militia and Defence. The Minister of Agriculture. The Minister of Inland Revenue. One Minister without portfolio. In 1887 Acts' were passed by the Canadian Parliament for the re-organization of certain departments. Under these Acts a department of Trade and Commerce presided over by a minister is to be organized: the departments of Customs and Inland Revenue are to be consolidated: and power is given to appoint a Solicitor-General. chosen. The members of the Council are chosen by the Governor- How General and may be removed by him. No legal restrictions are placed on his choice, and the number of the Council is not limited. In practice the Governor-General in appointing Privy Councillors is guided by several important constitutional rules. The members chosen are selected from that party which possesses the confidence of the legislature, more especially of the House of Commons. The leading member of that party is requested by the Governor-General to form a ministry, and the Governor-General accepts as members of the Council those selected by him. The councillors usually have seats in the Upper or Lower House but the majority belong to the House of Commons. There are some points in which the constitutional practice is different in Canada from what it is in England. The claims of the several provinces to representation in the Cabinet are sometimes recognised, and in the first Privy Council five representatives were assigned to Ontario, four to Quebec, two to Nova Scotia and two to New Brunswick. torney Again the Attorney-General acts as Minister of Justice The Atand sits in the Cabinet. Arguments have been brought General. forward in Canada and in other colonies to shew that the office ought to be non-political3, but the necessity of having some one in the Cabinet having a special knowledge of law and of the Constitution has been so much felt in Canada, that the Attorney-General is not merely retained in the 150 & 51 Vic. 10. Ib. c. 11. 2 B. N. A. Act, s. 11. 3 Todd, p. 45. Each member presides over a department. Salary. Vacation of seat on appointment. Cabinet, but is often called upon to take the position of premier. As a rule he does not take private practice. To each member of the Privy Council it is usual to assign the administration of a department. But in Canada as in England there may be a minister not holding a portfolio. All the heads of Departments are not necessarily members of the Cabinet. In 1867 the number of Privy Councillors was thirteen, but since then the number has frequently varied owing to re-organization of departments. Each Minister receives a salary of 7000 dollars per annum, and the member of the Council who holds the position of Prime Minister receives an additional sum of 1000 dollars per annum1. On being appointed a Privy Councillor a Senator does not vacate his seat, but a member of the House of Commons does so though he is eligible for re-election2. In its first session the Dominion Parliament, in order to preserve the independence of its members, re-enacted a previous act3, disqualifying all persons holding any office under the Crown to which a salary was attached from sitting in either house. Members accepting seats in the Council did not come under this rule, but they were required to be reelected. A further act was passed in 1878 in which the same principle was laid down. The eligibility for re-election of a member of the Privy Council was affirmed, and it was provided in general terms that nothing in the statute should render ineligible any person holding any Cabinet office, or any office thereafter to be created to be held by a member of the Privy Council and entitling him to be a minister of the Crown, or should disqualify him from sitting or voting in the House of Commons, provided he be elected while holding such office". A minister who resigns one office and accepts another 1 R. S. C. c. 4, s. 3. 4 31 Vic. c. 25. 2 R. S. C. c. 11, s. 9. 41 Vic. c. 5. 7 See R. S. C. c. 11, s. 9. |