The exercise by the Governor-General of this discretionary power cannot be legally questioned. Doubt having been expressed as to the legal efficacy of colonial enactments when assented to by a Governor, contrary to his instructions, that doubt was set at rest by the Colonial Laws Validity Act, 1865, the fourth section of which enacts:

"No colonial law, passed with the concurrence of or assented to by the governor of any colony, or to be hereafter so passed or assented to, shall be, or be deemed to have been, void or inoperative by reason only of any instructions with reference to such law, or the subject thereof, which may have been given to such governor by or on behalf of Her Majesty, by any instrument other than the letters patent or instrument authorizing such Governor to concur in passing, or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters patent, or last mentioned instrument."

So, therefore, while the assent of the Governor-General in the Queen's name, or in the case of a reserved billhis signification of the Queen's assent, is absolutely essential to the validity of all Acts of the parliament of Canada, that assent once given to any Act, such Act (if within the legislative competence of parliament) becomes law, subject only to the power of disallowance by the Queen in Council.

This power is recognized, and the mode of its exercise defined by the 56th section of the B. N. A. Act:

"Where the Governor-General assents to a bill in the Queen's name, he shall, by the first convenient opportunity, send an authentic copy of the Act to one of Her Majesty's Principal Secretaries of State, and if the Queen in Council, within two years after receipt thereof by the Secretary of State, thinks fit to disallow the Act, such disallowance (with a certificate of the Secretary of State of the day on which the Act was received by him) being signified by the Governor-General, by speech or message to each of the houses of the parliament, or by proclamation, shall annul the Act from and after the day of such signification."

In this section it is material to note the limitation of the time within which the disallowance must take place. At common law, no such time limit existed, and this is one of those instances (to which reference was made in the last chapter) of the conversion of a common law prerogative into a statutory power. The two years being allowed to pass, without such disallowance by order in council-for that is the method prescribed the executive department of the Imperial government can no longer interfere with the operation of the Act; nothing short of "repugnant Imperial legislation can weaken its validity.

The Governor-General, however, as has been noticed, may, in the case of any bill presented to him, exercise his discretion, by neither giving nor withholding the assent of the Crown thereto; a third course is expressly allowed him; namely, to reserve the bill for the signification of the Queen's pleasure (g); and by section 57 of the B. N. A. Act, it is enacted :

46

A bill reserved for the signification of the Queen's pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen's assent, the Governor-General signifies by speech or message to each of the houses of the parliament, or by proclamation, that it has received the assent of the Queen in council . . . .”

As we are now dealing with questions which arise out of our colonial relation to Great Britain, it is perhaps better to defer consideration of the power of the LieutenantGovernor of a province, to withhold the Queen's assent from bills passed by the legislative assembly of his province, and of the power of the Governor-General (in Council) to disallow Acts of the provincial legislative assemblies, until we come to discuss the Canadian constitution in its internal aspect (h).

(g) Sec. 55.

(h) See next chapter, where will also be found some further observations on the "conventional" limits set to the exercise of the Imperial power of disallowance.

CHAPTER VIII.

THE CONNECTING LINK-THE GOVERNOR-
GENERAL (a).

In popular phraseology, the Governor-General is the "Queen's representative" in Canada, and in the popular mind there is an idea, vague no doubt, but still deeply ingrained, that he is clothed with large and vice-regal attributes, standing to us in much the same position as her Majesty occupies towards her subjects within the borders. of the United Kingdom. But to the constitutional lawyer, learned in the Dryasdust precedents (as Carlylean laymen would doubtless term them) which define the legal position of a Colonial Governor, he appears in the light of an officer clothed with an authority strictly limited (b), whose every act as governor must be legally justified (c) by the terms of her Majesty's commission appointing him to fill the office, and whose capacity as representative is not general, but

(a) See Broom, "Const. Law," F. 622, et seq.; Forsyth, p. 84 et seq.; Todd, "Parl. Gov. in Brit. Col." It would appear that Mr. Todd's work was written in order to inculcate a proper appreciation of the importance of the office; see p. 584 of his book. See also Art. in Law Mag. for Nov., 1861 (Vol. 12), at p. 182, et seq., quoting with approval the language of a very able colonial lawyer"-A. Stuart, advocate, Montreal -in a work published in 1832, "On the functions and duties of the governor of a British province."

(b) Cameron v. Kyte, 3 Knapp, P. C. 332; Hill v. Bigge, 3 Moo. P. C. 465; Musgrave v. Pulido, L. R. 5 App. Cas. 102.

(c) Oliver v. Bentinck, 3 Taunt. 460; Raphael v. Verelst. 2 W. Black. 1050; and cases in last note.

special,—in principle not more general, and not less special, than that of the most unlettered Dogberry on the magisterial bench of a back township (d), the powers, authorities and functions of each appearing in, and being limited by, the terms of their respective commissions.

A word of caution should perhaps be written at this stage of our inquiry. In order that the reader may not be led to underrate the importance, from a political standpoint of a governor's position, and the varied and responsible duties which are put upon him by her Majesty's commission (e), it may be again observed that we are now looking at his position from the standpoint of the lawyer, and not that of the statesman. In some respects it may indeed be said that the law recognizes as legally effective, various acts of a governor, which constitutional usage would emphatically condemn, and the doing of which would afford ample ground for his recall; while on the other hand, a governor may by one and the same act, incur civil or even criminal liability, and win the approbation of his Imperial superiors. We cannot too rigorously insist on the distinction frequently pointed out in the foregoing pages, between the legal and the conventional, under the British system of government. We shall have occasion to refer more at length hereafter, to the limits within which the legal powers of a governor should find scope for "conventional" exercise; pointed out in reference to the exercise by the Imperial parliament of its legal power to enact laws for a colony, a proper recognition of the legal position will greatly tend to strengthen colonial statesmen in their insistence upon the "conventional" limits being accurately defined. and observed.

but, as was

(d) Finlayson, "Review of the Authorities as to Repression of Riot," 110. Compare with this the language of Taschereau, J. (in reference to the position of a Lieut.-Governor)-The Queen v. Bank of Nova Scotia, 11 S. C. R. at p. 24.

(e) That commission refers to the B. N. A. Act, under which (see sec. 10) he is described as an executive officer " carrying on the government

of Canada."

In the early days of colonial history, there seems to have been a disposition on the part of governors appointed to distant portions of the Empire, to set themselves above the law (f), and to insist upon the applicability to their case of the maxim, "The King can do no wrong." As in England, the Sovereign cannot be arrested by virtue of any legal process, or be impleaded in any court of justice in reference to any act, public or private (g)—so these early colonial governors, claiming a delegated sovereignty, attributed to themselves a corresponding sacredness of person, and an equal immunity from the jurisdiction of courts of justice. It is a very interesting study to trace the course of the decisions by which the attributes with which they had in fancy clothed themselves, were one by one stripped from them, until now their position, as legally recognized, is as above stated. It would appear from the earlier authorities, that the pretentions of the early governors to the immunities of a delegated sovereignty, were not paraded out of the territorial limits of their colonial government, and when proceeded against in England, they defended themselves by pleas in bar, and not in abatement— by defences on the merits, justifying their acts under their commissions, and not denying the jurisdiction of the English courts to entertain suits brought against them (). And, when, in 1773, Governor Mostyn did allege, as a plea to the jurisdiction of an English court, that the acts complained of in the action, were done by him as

(f) See preamble to 11 & 12 Wm. III. c. 12, cited post.

(g) Steph. Comm. Vol. II. 498; Chitty," Prerog. of the Crown,” 374.

(h) In Fabrigas v. Mostyn, 1 Sm. Ldg. Cas. (8th. ed.) 652, Lord Mansfield cites three instances of actions brought in England against governors in respect of acts done in the Colony, during their term of office, in none of which, so far as appears, was there any plea to the jurisdictionLord Bellamont's case, 2 Salk. 625; Comyn v. Sabine (not elsewhere reported); and a third case mentioned by Powell, J., in Way v. Yally, 6 Mod. 194.