to the early governors. It must be borne in mind, however, that in those days the "literary theory" prevailed, which assigned to the legislative and executive departments of government, not only distinct but independent powers. With the growth in England and the colonies, of the principle of responsible government through the medium of an executive responsible, through parliament, to the electorate the negative voice allowed to the governor of a colony very largely ceased to find utterance in preservation of prerogative, and came to be employed as the up-holder, rather, of the supremacy of the Imperial parliament. And so with reference to the second negative allowed by the common law to the occupant of the throne, over all acts of subordinate legislative bodies throughout the Empire (); that second negative came to be exercised subject to the "conventions of the constitution" which limit the interference of the Home government with colonial legislation, to interference in relation to matters of Imperial concern-to securing unity of national purpose and method throughout the various parts of a world-wide Empire. In other words, the true federal idea-the reconciliation of national unity with local self-government (e)-dominates this phase of our relationship to the mother country, just as it now determines the extent to which the British parliament shall legislate, as an Imperial parliament, for the colonial portions of the Empire. This is the conventional aspect. What is the legal position?

In former chapters the paramount legislative authority of the Imperial parliament has been pointed out, and the necessity for a careful distinction between its unlimited extent, legally speaking, and its limited operation, “conventionally" considered, insisted upon. And, just as we may have laws enacted for us by an authority entirely external, SO we may have the deliberate utterances of what we

(d) See Chitty, at p. 25-passage quoted ante, p. 138.

(e) See ante, p. 8.

may call the two colonial branches of our Canadian parliament-bills which have passed both Commons and Senate --denied legal operation as Acts of parliament, by the refusal of Her Majesty's representative to assent thereto in

her name.

By express provision of the B. N. A. Act (f), the Queen is a constituent branch of the parliament of Canada, and Her assent is necessary before a bill can become law. Her representative, the Governor-General of Canada, may refuse such assent; or he may reserve the bill for the consideration of the Queen in Council (that is to say, of the Imperial government), and upon such consideration, assent may be withheld; or, the Governor-General having assented and the bill having passed into Act of parliament, it may, within two years from its receipt by the Secretary of State in England, be disallowed, and "such disallowbeing signified by the Governor-General

ance

shall annul the Act from and after the day of such signification." Now, it matters not what may be the reasons, assigned or unassigned, for withholding the Queen's assent to a bill, or for disallowing an Act of the Canadian parliament; the effect is, that in the former case, the bill is as if it never had been in the latter, it is repealed by the Imperial government.

To deal with the different phases of this subject, more in detail, we quote first, section 55 of the B. N. A. Act:

"Where a bill passed by the houses of the 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."

(f) Sec. 17; and see also sec. 2. The Crown is also a constituent branch of the provincial legislative assemblies-see notes to secs. 58 and 69, post.

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 atent, 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:

"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 speechi 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 (1).

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.