NOTES ON THE OFFICE OF GOVERNOR GENERAL The Governor General: The legislative and the executive powers, passed from the hands of the governor to the Assembly and to the Cabinet, respectively, by the creation of a Legislative Assembly in Nova Scotia in 1758 and by the creation in Canada of the Constitutional régime of 1791. There still remained however the right of disallowance and reservation and also the right of dissolving Parliament. The powers of jurisdiction of the governor and the instruments creating or confirming them have greatly changed since 1867. For each governor these powers were enumerated in his own commission and in the instructions which he received at the time of his appointment. (It will be noticed in the Letters Patent of 1947 that the Instructions are now deleted, whatever is left of them being included in the Letters Patent.) Previously the appointment was made by the Imperial government, that is to say, by the King upon the advice of the Colonial Secretary. The British government did not then admit in the instructions given to the first governors that the latter should be, as the king whom they represented, in the position of a constitutional sovereign, in other words, obliged to act upon the advice of their ministers. It was only in 1848 that the Canadian Government was to have responsible government with all its implications. By virtue of section 55 of the British North America Act the Governor General could withhold Royal Assent to Bills or reserve them for the signification of Royal Pleasure. Before 1878, the Instructions to the governor were that he should reserve his assent to certain bills. This right of reservation did not permit the governor to refuse his sanction to an act, but allowed him to reserve it for the signification of the King's pleasure. Pursuant to instructions received before 1878, the governors had up to that time reserved twenty-one bills. After that date, the practice of enumerating the acts to be reserved was discontinued and, in 1879, the first bill of divorce received royal assent ("bills relating to divorce" was one of the enumerated classes). The right of disallowance or of reservation had not however been abandoned but a compromise had been reached. In these cases where the jurisdiction of Parliament was doubtful, a clause was inserted in the bill to the effect that the Act would come into force only upon proclamation of the Governor General. This suspending clause allowed negotiations with the Imperial government and if necessary-as in the case of the Copyright Act of 1889-the proclamation was not issued. The Colonial Conference of 1887 resolved to study and define more exactly the position and the functions of the Governor General. It was then decided that the governor should occupy in this country a position which would correspond to that of the Queen in the United Kingdom, with this difference that the governor could at that time refuse to dissolve Parliament when asked to do so by the party in power if he could find a ministry strong enough to replace the one which had been dismissed; also it was the duty of the governor to finally decide whether or not he was to pardon those condemned to death. The most important part, however, played by the governor during that period was that of an intermediary between the British government and the colony. It is for this reason that in the case of conflicts between the British and Canadian governments the governor had to follow the instructions he received from England. If the conflict endured, that is, if the Colonial government refused to yield and could not be replaced, then the Colonial Secretary had to amend or withdraw his instructions. Since 1890, the colonies had been asked to approve of the choice made by the British government for the position of governor. Thirty years later, this procedure was to be reversed at the instance of the Irish Free State, and it was then the British government which ratified the choice of the new Dominion. Ten years later this procedure was officially adopted for all the Dominions at the Conference of 1930. The power of disallowance, not having been exercised since 1873, fell into disuse with respect to Canadian acts. The conference of 1930, agreeing with the conference of experts of 1929, recognized that the constitutional position was that the power of disallowance could no longer be exercised in relation to Dominion legislation. As to the power of reservation it was agreed at the same time that the attainment of the purposes of reservation could not be sought by the use of powers by the government of the United Kingdom and that it is the right of the Government of each Dominion to advise the Crown in all matters relating to its own affairs. In other words, if a bill is to be reserved in Canada by the Governor General it must be upon the advice of the Canadian ministry, and if it is afterwards to be proclaimed, it must again be on the advice of the Canadian Government. The right which the governor had either to accept or refuse the advice of his ministers as to dissolving Parliament, a right which was so much discussed during the political crisis of 1926, has, in consequence of the decision of the Canadian people at that time, now disappeared and it seems impossible that a governor should refuse to-day to grant a dissolution to the party in power since he is now, as has been declared by the conference of 1926, "in the same position in relation to the administration of public affairs in the Dominions, as is held by His Majesty the King in Great Britain". In England, as is admitted, the King must follow the advice of his ministers. The Governor General therefore must follow the advice of the ministers of the Dominion of which he is the governor. (For a contrary opinion vide "The Royal Power of Dissolution of Parliament in the British Commonwealth", by Eugene A. Forsey, M.A., Ph.D.) The report of the conference of 1926 states that the Governor General of a Dominion is neither "the representative or agent of His Majesty's government in Great Britain or of any department of that government". The Conference of 1930 took special care to define the position of Governors General and arrived at certain conclusions which have been summarized by the late Mr. Justice Mignault as follows: "The Governor General is the King's personal representative and not the agent of His Majesty's government in Great Britain. At the time of his appointment, the government of the Dominion selects its own candidate whom constitutionally the King must accept. It is only a case of the application of the doctrine of ministerial responsibility. The result is that the governor so chosen will exercise the executive power upon the advice of his responsible ministers, but naturally in the name of the King. The government of Great Britain does not intervene in any way." Therefore, the Governor General has ceased to be the agent of the government of the United Kingdom and to take the advice of the Secretary of State for the Dominion. It will be noted that the new Letters Patent came into force on October 1, 1947, that they supersede as from that date the Letters Patent of 1931 (as amended in 1935) and the Royal Instructions of 1931. The Royal documents relating to the office of the Governor General had not undergone a careful revision since 1931. The Canadian Government accordingly recommended to His Majesty the issuance of new Letters Patent consolidating the former documents and bringing them up to date. The principal alterations may be summarized as follows: (a) The Commission shall now be under the Great Seal of Canada; (b) The Governor General is authorized to exercise on the advice of Canadian Ministers, all of His Majesty's powers and authorities in respect of Canada. (Certain matters will however continue to be submitted by the Canadian Government to the King personally.) Among others it will be legally possible for the Governor General, on the advice of Canadian ministers, to exercise Royal Full Powers for the signing or ratification of treaties, and the issuance of Letters of Credence for Ambassadors, if desired. (c) The new Letters Patent revoke and supersede the existing Letters Patent and the existing Royal Instructions. The Instructions have been incorporated in the new Letters Patent which have been issued under the Great Seal of Canada. (d) The clause in the Instructions of 1931 to the effect that the Governor General was required to communicate Royal Instructions to the Privy Council of the Dominion has been omitted as being archaic and inconsistent with the present practice and constitutional position. (e) Two new clauses have been incorporated in the Letters Patent empowering the Governor General to appoint Consuls and to issue exequaturs. (f) A clause has been inserted to provide for the coming into force of the Letters Patent on the date of signature; and finally (g) The superscription of the signature has been amended along the lines of the form used for the ratification of Heads of State treaties, to provide for the use of the Great Seal of Canada. GOVERNOR GENERAL OF CANADA COMMISSION APPOINTING VISCOUNT MONCK TO BE GOVERNOR GENERAL OF CANADA (1) > ut i thasand ught hundred no siely sever cine to men des mis the a ter the passing of the saud by the हम (1) In the case of each of the first three governors general since Confederation. Viscount Monek, Lord Lisgar and the Earl of Dufferin, the letters patent appear to be a combination document constituting the office. appointing the governor general, and setting out instructions. |