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are vested,

virtute officii, with

tives

incident to

executive

matters

respective

spheres.

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Prop. 7 General is entitled, virtute officii, and without any statutory enactment, to exercise all prerogatives. That they incident to executive authority in matters within the jurisdiction of the federal parliament; a Lieuall preroga tenant-Governor has the administration of the royal prerogatives as far as they are capable of being authority in exercised in relation to the government of the provwithin their ince; as the Governor-General has the administration of them, so far as they are capable of being exercised in relation to the government assigned to the Dominion . . In the absence of any express delegation or legislation, my government insist that the Governor-General and LieutenantGovernors have respectively, under their commissions, all powers necessary and proper for the administration of their respective governments, all powers usually given to or exercised by colonial governors." And this view is defended thus:-"My government do not question that it is a well-estabContention lished rule, generally speaking, in the construction not affected of Acts of parliament, that the King is not included by general unless there be words to that effect; for it is inferred prima facie that the law made by the Crown with the assent of Lords and Commons is made for subjects, and not for the Crown.' But what they claim is, that this reason does not apply to an Act the express object of which is to grant a constitution, a legislature and an executive, to colonies of the Empire.1 My government insist that all government and all executive authority are matter of prerogative, and that in a sense legislation is so likewise, for the royal assent is necessary to legislation. In the case, therefore, of a constitutional Act there. is no presumption that general provisions contained. in it were not intended to include any matter of

that rule

statutory

provisions,

where not

expressly mentioned,

not applicable to

B.N.A. Act.

1See supra pp. 28-40.

throughout

matters of

prerogative which, in the absence of the rule of Prop. 7 interpretation referred to, would be covered by the general words employed. My government inform me that they are not aware of any judicial authority for applying the rule, and they claim that it is not It deals applicable, to an Act by which Her Majesty, by with and with the advice and consent of the Lords prerogative. Spiritual and Temporal and Commons in Parliament assembled,' grants to one of her colonies a constitution for regulating its own affairs in legislation and government. Such a constitution cannot be created. without dealing with prerogative. The British North America Act from beginning to end deals with matters of prerogative, and mostly without any express naming of the Queen."

ing Power,

Power case.

Per

Burton, J. A.

And in the Pardoning Power, or Executive Power The Pardoncase, Attorney-General of Canada v. Attorney- or Executive General of Ontario, Mr. Edward Blake strenuously argued in support of this view. It was not, however, necessary to the determination of that case to decide the matter, and only one judge, Burton, J.A., referred to it in giving judgment. That learned judge, however, says3 :—“I have always been of opinion that the legislative and executive powers granted to the provinces were intended to be coextensive, and that the Lieutenant-Governor became entitled, virtute officii, and without express statutory enactment, to exercise all prerogatives incident to executive authority in matters in which provincial

120 O. R. 222, 19 O.A.R. 31, 23 S. C. R. 458, (1890-4). See the case further referred to in the notes to Propositions 8 and 9, infra Pp. 130-3.

See his argument before the Court of first instance as reported 20 O. R. 222, and before the Ontario Court of Appeal, as published verbatim by the press of the Budget, 27 Melinda Street, Toronto, 1892, under the title, "Executive Power Case."

319 O.A.R. at p. 38.

He supports

Prop. 7 legislatures have jurisdiction; that he had, in fact, delegated to him the administration of the royal prerogatives as far as they are capable of being this theory. exercised in relation to the government of the provinces, as fully as the Governor-General has the administration of them in relation to the government of the Dominion."1

1In his "Letters upon the Interpretation of the Federal Constitution," So also per (first letter), already several times referred to, Mr. Justice Loranger Loranger, J. reaches a similar conclusion. He argues (pp. 10-11) that inasmuch as

Colonial governors are not

viceroys.

sovereignty is indivisible, inasmuch as in both public and private law it is a principle that the powers exercised by the representative are, unless limited, identically those of the person represented, and inasmuch as the British North America Act does not contain any restrictions, the Privy Council by recognizing in The Attorney-General of Ontario v. Mercer, 8 App. Cas. 767, 3 Cart. 1, the power of LieutenantGovernors of provinces to exercise a right appertaining to the royal prerogative, that of claiming the right to escheats, has recognized all the others. This, however, would seem to be making the LieutenantGovernors viceroys in respect to provincial matters, whereas it is well Sed quære. decided that a colonial governor under the British system is not a viceroy, but is vested with an authority limited by the terms of his commission and instructions, and, of course, by the terms of any valid statute conferring authority upon him, or regulating his powers: Musgrave v. Pulido, L. R. 5 App. Cas. 102; Todd's Parl. Gov. in Brit. Col., 2nd ed., p. 34, seq. and passim. It is submitted, with great deference, that the view expressed by Burton, J.A., in the passage above cited, and contended for by Mr. Edward Blake, as above stated, is not in accordance with what Strong, C.J., in his judgment in the Executive Power case, 23 S. C. R. at pp. 468-9, speaks of as "the general constitutional law of the Empire," infra p. 180. It is part of the general view elaborated by Mr. Blake in his argument above referred to, namely, that the provinces, on the one hand, and the Dominion, on the other, are possessed under the British North America Act, and subject to its provisions, with complete sovereign powers, as well executive as legislative, within their respective spheres; whereas it is submitted that in accordance with the general law of the Empire, such powers of the Crown as are not expressly conferred by the British North America Act, or have not been dealt with by statute, local or imperial, exist, whether in the Dominion or the provinces, only by delegation from the Sovereign of Great Britain, and, until so taken possession of, as it were, by statute law, can be withdrawn, or modified and regulated, by the Sovereign, acting under the advice of her Imperial Ministers, as to the Governor-General directly, and as to Lieutenant-Governors Imperial mediately through the Governor-General. And this seems entirely government. borne out by the correspondence with the Imperial government over the Nova Scotia Great Seal case. It will be remembered that section 136 of the British North America Act provided that "until altered by the Lieutenant-Governor in Council," the Great Seals of Ontario and Quebec should be the same as those of Upper and Lower Canada, respectively, before the union as the province of Canada. But there is no provision in the Act as to the Great Seals of Nova Scotia and New

Reserve of executive control in

As already stated, none of the other judges who Prop. 7 sat on this case passed upon the matter, but Strong, C.J., and Gwynne, J., speak in such a manner as clearly shows that they would not have upheld it.1

By a curious coincidence, in the Australian colony of Victoria a similar theory as to the right to exercise all prerogative powers relating to the local Similar affairs of the colony being vested in the Governor, Australia. by virtue of the Constitution Act, though not

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theory

mooted in

Brunswick. Accordingly in a despatch of August 23rd, 1869, Lord The Great Granville, after taking the advice of the law officers of the Crown, Seal case. states that he entertains no doubt that in Her Majesty alone is vested the power to change at will the Great Seals of the provinces of New Brunswick and Nova Scotia, but that he was advised that the assent of the Crown being first obtained local Acts afterwards assented to by the Crown would be a legal mode of empowering their LieutenantGovernors to alter the Great Seals of those provinces from time to time (Can. Sess. Pap., No. 86, at p. 7). This shows that in the view of the law officers of the Crown the prerogative power even over so very local a matter as the form of the provincial Great Seals, not having been expressly dealt with by the Act, was vested (not in the Lieutenant-Governors, virtute officii, as Mr. Blake would have it), but in Her Majesty. Nevertheless, with the prior assent of the Crown (such requirement being apparently in accordance with the usage of the Imperial parliament before dealing by statute with the prerogatives of the Crown; see infra p. 178, n. 1), a local Act might be passed, probably under No. 16 of section 92,-"matters of a merely local or private nature in the province,"-in reference to the matter. The No. 16 of point, however, is not without importance, for any such Act is subject sect. 92, B.N.A. Act. to disallowance by the Governor-General in Council, and it is a very different thing that provincial legislatures should have control over royal prerogatives immediately relating to the subjects over which they have legislative jurisdiction, from the Lieutenant-Governors having such prerogatives vested in them virtute officii. As to the power of Canadian legislatures to affect the royal prerogatives, see infra pp. 176-184. And as to the Nova Scotia Great Seal case, see further infra p. 134, n. I.

123 S. C. R. 458. In The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick, 20 S.C.R. at p. 698, however, Taschereau, J., says :-"In my opinion, under the British North America Act the executive power in the provinces is, as a general rule, vested with the same rights and privileges in the administration of the functions, powers, and duties thereto assigned under this Act as are attached to analogous functions, powers, and duties of the executive authority in England; " and he says that such was his opinion when he decided Church v. Middlemiss, 21 L.C.J. 319, (see supra p. 97), adding :-"Though I admit now that in order to reach this conclusion it is not necessary to hold, as I did in that case, that Her Majesty forms part of the provincial executive authority.”

Prop. 7 expressly therein conferred, was propounded by

Toy v.
Musgrove.

botham, C. J.

counsel, and received the support of the Chief Justice of the Supreme Court of the colony, and of one of the other judges in the recent case of Toy v. Musgrove,1 though the four remaining judges took the other view, namely, that certain of such prerogatives, and no others, were, by the provisions of the Constitution Act and his commission, conveyed to the Governor as representative of the Queen. The Chief Justice sums up his conclusion on the Per Higin point thus: "The executive government of Victoria possesses and exercises necessary functions under and by virtue of the Constitution Act similar to and co-extensive, as regards the internal affairs of Victoria, with the functions possessed and exercised by the Imperial government with regard to internal affairs of Great Britain." Therefore, with entire consistency, he held that, in the exercise of his powers as head of the executive government of Victoria, the Governor was not an agent of the Crown, nor an officer of the Secretary of State for the Colonies:-"A new and distinct authority is conferred upon him by law on his appointment; he is created, for all purposes within the scope of the Constitution Act, the local Sovereign of Victoria," and he held that the Crown had no longer any right to "instruct" the Governor with reference to the exercise of his powers as such head of the executive of the colony, and that anything to the contrary in his commission or instructions was illegal and void. At the same time he admits, of course, that "all the prerogatives and powers of the Sovereign

The

Governor a local Sovereign.

114 V.L. R. 349, (1888), referred to, but not discussed, by Strong, C.J., in the last-mentioned case of Attorney-General of Canada v. Attorney-General of Ontario.

214 V.L.R. at p. 397.

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