of an act of sovereign power, out of the limits of the power so given to him, would be finally void, and the courts of the colony over which he presided could not give it any legal effect. We think the office of governor is of the latter description, for no authority or dictum has been cited before us to show that a governor can be considered as having the delegation of the whole royal power in any colony, as between him and the subject, when it is not expressly given him by his commission. And we are not aware that any commission to colonial governors conveys such an extensive authority."

Finally so far as concerns civil liability-the question of a governor's amenability to the courts of his colony in respect of acts done by him in the supposed exercise of his powers as governor, came before the Judicial Committee of the Privy Council, on an appeal (p) from the colonial court in which the action had been brought; and in the judgment of the Committee, the authorities are reviewed and a clear decision reached, that the colonial courts have as complete jurisdiction to entertain an action against a governor as against any other inhabitant of the colony. After reviewing the previous authorities, the judgment of the Committee proceeds as follows:

"It is apparent from these authorities that the governor of a colony (in ordinary cases) cannot be regarded as a Viceroy; nor can it be assumed that he possesses general sovereign power. His authority is derived from his commission, and limited to the powers thereby expressly or impliedly entrusted to him. Let it be granted that for acts of power done by a governor under and within the limits of his commission he is protected, because in doing them he is the servant of the crown, and is exercising its sovereign authority; the like protection cannot be extended to acts which are wholly beyond the authority confided to him. Such acts, 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 sense, proper acts of state. When questions of this kind arise, it must necessarily be within the province of municipal courts to determine the true character of (p) Musgrave v. Pulido, L. R. 5 App. Cas. 102.

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 courts can take no further cognizance of it." From these authorities, therefore, we may draw the following conclusions:

1. The powers, authorities and functions of colonial governors are such, and such only as are contained expressly or impliedly in the commission under which the office is held by him (q); for any act done quâ governor and within his authority as such, he incurs no liability, either ex contractu (r) or in tort (s).

2.-For any act done in his private capacity, or done quâ governor, but beyond his powers as such, a colonial governor is amenable to the civil jurisdiction of Her Majesty's courts, to the same extent as any other individual; and no distinction can be drawn between the courts in England and the colonial courts in respect to their jurisdiction to entertain an action against a governor (f).

3. To any action brought against him, he cannot plead a plea of personal privilege of immunity from being impleaded-except as part of the larger plea that the acts complained of were done quâ governor and as "acts of State," in which case the only remedy of the party aggrieved is by petition of right against the crown (u).

4. A governor must plead specially his justification; in other words, when a governor justifies any act as being within the powers vested in him by his commission, he

(q) Cameron v. Kyte, Hill v. Bigge, Musgrave v. Pulido, ubi supra. (r) Macbeath v. Haldimand, 1 T. R. 172–-unless, indeed, he pledges his personal credit.

(s) Reg. v. Eyre, L. R. 3 Q. B. 487, and the charge of Blackburn, J., in the same case, reported by Finlayson sub. tit., “The proceedings in the Jamaica case"; Comyn v. Sabine, cited by Lord Mansfield in Fabrigas v. Mostyn, Cowp. 161.

(t) Hill v. Bigge, Musgrave v. Pulido, ubi supra.

(u) Musgrave v. Pulido, supra.

must plead the commission, his powers thereunder, and show by proper averments that the acts complained of were done in the proper exercise of those powers (v).

We have hitherto considered the position of a governor in respect to his liability to civil action; how stands the law as to his criminal liability for crimes committed by him while governor? Lord Mansfield's dictum, it will be seen, lays down his immunity from criminal prosecution as well as from civil suit in the courts of the colony, but the very same course of reasoning which resulted in the decisions in Hill v. Bigge, and Musgrave v. Pulido, would seem equally to lead to the conclusion that a governor is amenable criminally to the courts of the colony, for crimes committed in the colony, whether such crimes are connected with his official position or entirely aside from it.

Let us consider this question a little more fully. The preamble to the statute 11 & 12 Will. III. c. 12" An Act to punish governors of plantations, in this Kingdom, for crimes by them committed in the plantations”—characterizes the governors of those days as "not deeming themselves punishable for the same here (w), nor accountable for such their crimes and offences to any person within their respective governments"; for remedy whereof, provision was made by the statute for the trial of any offending governors in England. This statute was extended so as to apply to other persons holding colonial appointments, by 42 Geo. III. c. 85, and both statutes are to-day in force. How far do they apply? And do they, so far as they do apply, negative the jurisdiction of the colonial courts? Apart from these statutes, and adopting the doctrine of Hill v. Bigge, and Musgrave v. Pulido, the jurisdiction of the colonial courts would seem beyond question, and it is submitted that these statutes are, so far as they do apply,

(r) Oliver v. Bentinck, 3 Taunt. 460; and cases cited supra, p. 150. (w) Crimes being local, and triable and punishable locally. See post, Chap. IX.

cumulative and not exclusive. Owing to the rigid rules of the common law as to venue in criminal prosecutions, it required statutes to render legal the trial in one county of an offence committed in another; a fortiori, the trial in England of offences committed on or beyond seas (x). An early statute, 33 Henry VIII. c. 23, provided for the appointment of a special commission for the trial of persons charged with murder on or beyond the seas, and it was under this statute that Governor Wall was tried, condemned, and executed (y). A governor, therefore, once departed from his colony would be entirely free from danger, unless, indeed, he could be sent back to stand his trial. The more practical remedy, however, would seem to have been adopted, and under the statute of William III., the objection in respect to venue was taken away. The preamble, moreover, speaks of the governors as “deeming themselves not accountable" to the colonial courts, and the statute is in no sense declaratory that such is the law. So we conclude that even in those cases in which, under this statute, a governor may be tried in England for offences committed in the colony, he is equally amenable to the courts of the colony.

But these statutes have been held not to apply to felonies, and only to misconduct in office. Ellenborough, C.J., thus characterizes (2) the later statute:

"The object of this Act was in the same spirit with the Act of 11 & 12 William III., to protect His Majesty's subjects against the criminal and fraudulent acts committed by persons in public employment abroad, in the exercise of their employments; to reach a class of public servants which that statute did not reach and to place them in pari delicto with governors. It has no reference in spirit or letter to the commission of felonies. . . The reason of the thing, a priori, would lead us to conclude that

(x) See note to Keighley v. Bell, 4 F. & F. at p. 490, and post, Chap. IX. (y) Reg. v. Wall, 28 St. 1r. 51; see Broom, "Const. Law," 652. (2) Reg. v. Shaw, 5 M. & S. 403, the only reported authority on it.

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the jurisdiction as to trial of felonies should be restrained to the

local courts."

Although the prisoner in that case was not a governor but a subordinate officer in the civil service, the reasoning would (in the light of the decisions as to a governor's civil liability) seem to lead to a clear conclusion that the jurisdiction of the courts of a colony to try a governor for felonies committed within the colony, or misdemeanors unconnected with his office, there committed, is beyond question. And for the reasons before given, it is submitted that there is like jurisdiction in respect of offences falling within the statute of William III.

It is beyond the province of this work to discuss the question, what is necessary to affix criminal character to acts of a governor done in the supposed exercise of his powers. We are merely interested in showing that the same criminal and civil liability exists in the case of a governor as in the case of any other officer of the crown acting under a limited authority, leaving the student who desires to pursue this subject further to consult writers who deal with this larger subject (a).

Having now pointed out that for the powers and duties of a colonial governor, we must look to the terms of his commission, we must follow the course indicated, and for the powers and duties of the Governor-General of Canada, look to the terms of the commission under which that office is held. We shall hereafter have to point out certain changes which have from time to time been made in the terms of the commission, but for our present purpose-an inquiry into the legal powers, as now existing, of the Governor-General-it will suffice to say that in 1878; Letters Patent under the Great Seal of the United King

(a) Broom, "Const. Law," 649, et seq., 656, et seq. It may be noted that the cases in which governors have been prosecuted, have involved the question of their liability as military officers-in command abroad-rather than as civil servants. The Letters Patent constituting the office of Governor-General of Canada convey no military powers. See post.