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dom, were issued, and are still in force, “making effectual and permanent provision for the office of Governor-General” of Canada, providing for the appointment, from time to time, by Commission under the Sign Manual and Signet, “of the person who shall fill the said office," and enumerating the powers and duties which should devolve 'upon such person (b). He is authorized and commanded to do and execute in due manner all things that belong to his command and trust, according :
I. To the several powers and authorities granted or appointed him by virtue of:
(a) The British North America Act, 1867.
(c) His Commission. II. To such instructions as may from time to time be given to him,
(a) Under the Sign Manual and Signet.
(c) Through one of the Secretaries of State. III. To such laws as are, or shall hereafter be in force in Canada.
Now although in the last analysis, the powers of the Governor-General are derived from Imperial authority, it will nevertheless much facilitate our inquiry, if we divide these powers (as the Letters Patent practically divide them) namely, with reference to their immediate source,
1. Powers conferred from without the Dominion-ie., by Imperial authority.
2. Powers conferred by Canadian enactments.
And with respect to this division we may say that the powers directly conferred by Imperial authority, are—with certain few exceptions, to be hereafter discussed-powers not requiring for their exercise, their legally-effective exercise, the concurrence of any other person or body ; while,
(5) See the Letters Patent printed in Appendix.
as a rule (the exceptions to which must also be adverted to hereafter) the powers conferred by Canadian enactment require the concurrence of the Queen's Privy Council for Canada, in order to their effective exercise, or in other words can only be legally exercised by Order in Council. In considering these same powers from a “conventional” standpoint, an entirely different principle of division inust be adopted, if indeed there is any division so far as regards their “ conventional ” exercise. Following then the line of division adopted, as likely to afford assistance in arriving at a correct view of the Governor-General's powers-from the standpoint of the legal efficacy of their exercise-we proceed to discuss shortly, the prerogative rights and powers with which the Governor-General is entrusted by direct Imperial authority.
We have already discussed the question of the extent to which the Crown's prerogative rights are exercisible in the colonial possessions of the Empire, but we may here avain observe that those rights are in every portion of the Empire to be exercised according to law,—that by express words or necessary intendment, an Act of the Imperial parliament may either entirely take away from the Crown (1.p., the executive) a prerogative right theretofore exerciseable by and under the common law without the concurrence of parliament, or may fetter its exercise with any terms or conditions which parliament may deem necessary in the public interest, and that a “contirmed ” Act of a colonial legislature is equally effective to those ends so far as concerns the exercise of the prerogative right in the colony (c). It will be noticed that the language employed in the Letters Patent, constituting the office of Governor-General, recoynizes the existence of legal limits to the exercise (even by the sovereign in person) of the prerogative rights therein mentioned. With this perhaps unnecessary caution we proceed to enumerate the prerogatives of the Crown, the
(c) See Chap. VI., ante, p. 13), et seq.
power to exercise which in Canada is by direct Imperiu! authority entrusted to the Governor-General.
I. BY THE LETTERS PATENT, constituting the office of Governor-General, he is authorized and empowered : (a) “III. .
To constitute and appoint in our name, and on our behalf, all such judges, commissioners, justices of the peace, and other necessary officers and ministers of our said Dominion, as may be larfully constituted or appointed by us. “ IV.
So far as we lawfully may, upon suffi. cient cause to him appearing, to remove from his office or to suspend from the exercise of the same, any person exercising
The exercise of the prerogative right of the Crown (as the fountain of justice) in the appointment to and reinoval from office in Canarla, is now—with the exception of this one office of Governor-General-entirely regulated by statutes (~7), Imperial and Colonial, so that it will be necessary to relegate to a future stage the consideration of this branch of a governor's general powers.
(b) “V... To exercise all powers, luxfully belonging to us, in respect of the summoning, proroguing or dissolving of the parliament of our said Dominion."
Of these powers in relation to the parliament of Canada, it may be observed that the exercise of the power of summoning has been the subject of legislative regulation (e); the other two-of proroguing and dissolving-exist as at common law. The “
conventional" limitations are many, the legal right is absolute. For whatever reason, or with whatever want of reason, parliament is prorogued or dissolved, such prorogation or dissolution puts an end to the session, or the parliament, as the case may be; and the assembling of the members without new summons would
(d) See the opinion of Sir James Scarlett (Lord Abinger) and Sir N. C. Tindal (C.J., C.P.), on the power of the Crown to create the office of Master of the Rolls in Canada (1827)-Forsyth, 172.
(e) B. N. A. Act, 1867, ss. 20 and 38.
be but as the gathering of a mob, and their Acts but as waste paper.
II.-BY HIS “INSTRUCTIONS” (f).
We need only draw attention to the 5th clause, making provision as to the exercise of the prerogative of pardon. The Governor-General is debarred from exercising this prerogative without first receiving the advice, in capital cases, of the Privy Council for Canada ; in other cases, of one at least of his ministers; except in cases where the interests of the Empire, or of some country other than Canada might be directly affected ; in which exceptional cases, the Governor-General shall “take those interests specially into his own personal consideration, in conjunction with such advice as aforesaid.” In other words, in those exceptional cases, he may disregard the advice offered (9): in all other cases he must follow it.
III. BY THE B. N. A. ACT, 1867, the Governor-General is entrusted with the following prerogatives, and the manner of their exercise is to some extent defined.
A.- Appointments to office. The vast majority of offices in connection with the government of Canada are filled by persons appointed, under statutory authority, by the Governor-General in Council; but there are still a few offices to which the Governor may legally make appointments without, or even contrary to, the advice of the Queen's Privy Council for Canada, although, of course, the making of such appointments mero ipsius motu, would be a flagrant breach of “conventional ” usage, a complete subversion of the right of local self-government, long since fully accorded to Canada. To give anything like a full enumeration of the
(f) i.e., the general “instructions" which accompany the Letters Patent ; see appendix,
(9) That is to say, he acts in such case as an Imperial officer, and is supposed to act upon Imperial considerations.
· former class of offices would necessitate a survey of the entire Civil Service of Canada. But confining our attention to the B. N. A. Act, the only officer therein mentioned in whose appointment the Governor-General and the Privy Council must concur is the Lieutenant-Governor of a Province. Of his position when appointed much niust be hereafter said (h), but as to the appointment itself it suffices now to say that it must be made by Order in Council (().
Of the few officers whose appointment, under the B. N. A. Act, is in the hands of the Governor-General personally, the following is a complete list :
1. Members of the Queen's Privy Council for Canada. — B. N. A. Act, s. 11. In various Acts of the parliament of Canada, provisions are contained as to the appointment of the ministers (or other officers) who shall preside over the various departments of state (j); but in all, the appointment is left in the hands of the Governor-General personally. This is er necessitate, in the case of a change in the entire administration, but the position is the same in every case—the appointment is, legally consilered, the act of the Governor-General alone. But there may be, and usually are, members of the Privy Council who hold no portfolio,
(n) See notes to sec. 58, B. N. A. Act, post.
(1) See R. S. C. (1886) c. 19, as to the use of the Great Seal of Canada in the appointment to certain offices. (j) Minister of Justice
R. S. C. c. 21, s. 1. the Interior
c. 22, s. 1. Agriculture
c. 24, s. 1. Marine and Fisheries c. 25, s. 1. Secretary of State
c. 26, s. 1. Minister of Finance
c. 28, s. 2. Auditor General
c. 29, s. 21. Minister of Customs
c. 32, s. 3. Inland Revenue
c. 34, s. 2. Post-Master General
c. 35, s. 5. Minister of Railways and Canals - " c. 37, s. 2. Public Works
c. 36, s. 3. Militia and Defence- c. 41, s. 4.