The clauses (1) relating to meetings of the Privy Council, (2) authorizing the Governor to act in opposition to the advice of his ministers, (3) prescribing certain classes of bills to be reserved for Imperial consideration, (4) dealing with matters within the province of the provincial Legislatures were omitted; whilst the clause relating to the exercise of the prerogative of pardon was modified so as to draw a distinction between local cases and cases of Imperial interest1. 2 conferred Letters The new Letters Patent empower the Governor-General Powers to keep and use the Great Seal of the Dominion; to appoint by the all judges, justices, and such other officers as might be ap- Patent. pointed by Her Majesty; to remove upon sufficient cause any person appointed to any office by or under the authority of the Crown; to summon, prorogue and dissolve the Dominion Parliament, and to appoint a Deputy. The Letters Patent also make provision for appointing a Lieutenant-Governor or other person to perform the duties of the office in case of the death, incapacity, removal or absence of the GovernorGeneral. tions. The Instructions' require the Governor-General to take Instructhe oath of allegiance, the oath for due execution of his office, and for due and impartial administration of justice; and authorize him to administer the oath of allegiance and any other oath prescribed to all persons holding any office: they also empower him to exercise under certain conditions the prerogative of mercy, and lay down certain rules to be observed in transmitting laws to which he has assented or which he has reserved for Her Majesty's consideration. The Commission simply appoints the person selected to Commisthe office. The object of the Letters Patent and Instructions is to confer on the Governor-General those powers, necessary 1 See Todd, Chap. IV. for a detailed account of these changes. 2 See Appendix, where Letters Patent and Instructions are set out at length. sion. Appoints Appoints for discharging the duties of the office, which are vested in Her Majesty, either as being part of her prerogative powers or under s. 9 of the B. N. A. Act, which declares, that "the Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.” As above stated the Governor-General is appointed by the Crown by Commission'. He holds office during the pleasure of the Crown, but in accordance with the standing rule of the Colonial Office his term of service is limited to five or six years. His annual salary has been fixed at £10,000, and is payable out of the Consolidated Revenue Fund of Canada2. The Governor-General is a corporation sole, and all bonds and other instruments taken by him in his public capacity are given to him and his successors by his name of office3. The position of the Governor-General may be considered as regards (1) the Legislature, (2) Party Government, (3) the Executive, (4) the Judicature, (5) the Prerogatives of the Crown, (6) the Provinces, and (7) his Responsibility. 1. POWERS AS REGARDS THE DOMINION LEGISLATURE. 1. He selects and summons qualified persons to the Senate and fills up all vacancies. He has also power to recommend the Queen to add three or six additional members representing equally Ontario, Quebec, and the Maritime Provinces of Nova Scotia and New Brunswick. 2. He appoints and may remove the Speaker of the of Senate. Senate, who must however be a senator". Summons 3. He summons and calls together the House of Commons. Commons. House of Recom mends money bills. 4. He recommends to the House of Commons the levying of taxes and the appropriation of the revenue. 1 See Appendix for form of Commission. 2 B. N. A. Act, s. 105. 4 B. N. A. Act, s. 24. R. S. C. c. 3, s. 2. 3 R. S. C. c. 3, s. 1. 5 Ib. s. 32. 6 B. N. A. Act, s. 26, see ante, p. 143. 8 Ib. s. 38. 9 Ib. s. 54. and dis 5. By a clause in the Letters Patent the Crown has Summons conferred on the Governor-General all powers belonging to solves Parthe Crown in respect of the summoning, proroguing, or dissolving of Parliament. 6. He assents to bills on behalf of the Crown. The position of the Governor-General in regard to assenting to bills is governed by the 55th section of the British North America Act 1867 : "Where a bill passed by the Houses of Parliament is presented to the Governor-General for the Queen's assent, he shall declare according to his discretion, but subject to the provisions of this Act and to Her Majesty's Instructions, either that he assents thereto in the Queen's name or that he withholds the Queen's assent, or that he reserves the bill for the signification of the Queen's pleasure." It will be seen from this section that "subject to Her Majesty's Instructions" three courses are open to the Governor-General "according to his discretion," he may assent to the bill, or he may veto it, or he may reserve it for the Queen's pleasure. It is therefore necessary to enquire what Instructions are usually given to the Governor-General, and how his discretion in assenting or vetoing is usually exercised. As regards the Instructions they are silent on the subject, except in so far as they require him to transmit all laws assented to or reserved by him, with explanatory observations in regard to the occasions and reasons for proposing such laws1. Previous to the revision of the Instructions in 18782 the Governor-General was expressly required not to assent to bills which related to divorce, or granted land or money to the Governor, or made paper money legal tender, or imposed differential duties, or were contrary to treaty stipulations, or infringed the discipline or control of Her Majesty's forces, or affected the Royal prerogative, or contained 1 See Instructions in Appendix. 2 See ante, p. 162. liament. Assents to bills. Bills re served. Not bound to follow provisions to which the Royal consent had once been refused, unless the bill contained a suspending clause, or unless some urgent necessity existed and the bill was not contrary to the law of England or to treaty stipulations'. Between 1867 and 1878 twenty-one bills, eleven of these relating to divorce, were reserved; but since the last-mentioned year the Royal Instructions have not required any bill to be reserved, on the ground that it was "undesirable that they should contain anything which would be interpreted as limiting or defining the legislative powers conferred in 1867 on the Dominion Parliament," and that the reserved power of disallowance possessed by Her Majesty in Council' was sufficient for the protection of Imperial interests. The Governor-General may, however, under the section above quoted reserve a bill for the signification of the Queen's pleasure, in which case it does not become law until the Governor-General signifies by speech or message to each of the Houses of Parliament, or by proclamation, that it has received the assent of the Queen in Council. In exercising his discretionary powers in regard to advice of legislation a Governor-General has to act on his own ministers. responsibility, and is not bound to follow the advice of his ministers, though he usually takes this course. The assent of the Governor is not conclusive, as a bill, even if assented to by him, may be disallowed by the Crown'. But the Governor before assenting ought to satisfy himself that the bill is within the class of subjects over which the Dominion Parliament has legislative power. It is usual for him to receive from the Minister of Justice or from the Law Officers of the Crown in the Colony a report on bills submitted for his assent, and he may, if 1 Sess. J. (1873), 74; Sess. Pap. 1867–8, No 22; Burinot, p. 569. 2 Burinot, p. 570. 3 Despatch of Secretary for Colonies, Can. S. Pap. 1877, No. 13; Ib. 1880, No. 51. 4 See ante, p. 163. 5 B. N. A. Act, s. 57. 6 Todd, p. 137. 7 See post, c. XXI. the matter be not of purely local concern, refer the matter to the Imperial Law Officers'. sent. The British North America Act 1867 is silent both as to Manner of giving the place and manner of giving the Royal assent, except in Royal asthe case of bills reserved, where it may be given orally, or by message or by proclamation. The usual course adopted is for the Governor-General to give the Royal assent in the presence of both Houses. 2. DUTIES AS REGARDS PARTY GOVERNMENT. parties. It is the duty of a Governor-General to observe strict Neutral position as neutrality towards the different parties in the Legislature regards in regard to all questions in which neither the prerogatives of the Crown nor Imperial interests are involved. In all local matters the judgment of the people expressed in their Legislatures must prevail, and a Governor-General ought always to accept and act by the advice of a Ministry prepared to give effect to such judgment. interests. But in all questions involving either Imperial interests or Imperial the prerogatives of the Crown, the Governor-General has to remember that he represents the Crown, and though he is expected to give due weight to the opinion of his ministers, the final decision must be made upon his own judgment and responsibility. Under special circumstances he may consult Consulting Home Her Majesty's Secretary of State for the Colonies, care being Governtaken that all sides of the controversy be placed before the ment. Imperial Government. In 1874 the Governor-General consulted the Colonial Secretary as to the advisability of following the advice of his ministers where they recommended that six additional senators should be added to the Senate'; and in 1879 at the suggestion of the Privy Council the advice of the Home Government was sought regarding the proposed removal of M Letellier from his office of Lieutenant-Governor 5. 1 Todd, pp. 134, 135. 3 See Todd, p. 591 and authorities there quoted. 4 Todd, p. 164. 2 s. 57. 5 See post, p. 174, Todd, p. 409. |