made the royal instructions part of the Constitutional law of the Commonwealth; and though he was not prepared at present to define the powers of the Governor-General, he wished to affirm the principle that they should be contained in the Constitution. Mr. Deakin and Dr. Cockburn thought that the best means of securing Mr. Baker's object would be to state on the face of the Constitution that the Governor-General should always act on the advice of his Ministers. Mr. Wrixon thought that if they were careful, in the Executive Chapter, to thoroughly establish responsible Government, they might let this clause go. Mr. Baker finally withdrew his amendment. (Conv. Deb., Syd. [1891] pp. 560-78.)

At the Adelaide session, 1897, the clause was introduced in the same words, except that the powers exercisable by the Governor-General were defined to be "such powers and functions of the Queen as Her Majesty may think fit to assign to him." lest these words might revive dormant or dead prerogatives, moved to add of being constitutionally exercised as part of the prerogative of the Crown' negatived. (Conv. Deb., Adel., p. 629.)

Mr. Glynn, and capable This was

At the Sydney session, Mr. Reid suggested that the clause be postponed. Mr. Barton agreed, saying "Some question may arise about the clause, which I do not like to indicate at present; but the Committee may take my word for it that it will be wise to postpone it now." (Conv. Deb., Syd. [1897] pp. 253-4.) Subsequently, as a drafting amendment, the clause was altered to read :-"A Governor-General appointed by the Queen shall be," &c. After the fourth report, the words "the provisions of" were omitted.

$ 54. "A Governor-General.”

"The governor of a colony constitutes the only political link connecting the colony with the mother country. So far as regards the internal administration of his government, he is merely a constitutional sovereign acting through his advisers; interfering with their policy or their patronage, if at all, only as a friend and impartial councillor. But whenever any question is agitated touching the interests of the mother country— such, for instance, as the imposition of customs duties, or the public defence-his functions as an independent officer are called at once into play. He must see that the mother country receives no detriment. In this duty he cannot count on aid from his advisers they will consult the interests either of the colony or of their own popularity; he may often have to act in opposition to them, either by interposing his veto on enactments or by referring those enactments for the decision of the home government. But for these purposes the constitution furnishes him with no public officers to assist him in council or execution, or to share his responsibility. The home government looks to him alone." (Merivale's Lectures on Colonization, 1861, p 649.)

:

"Under responsible government a Governor becomes the image, in little, of a constitutional king, introducing measures to the legislature, conducting the executive, distributing patronage, in name only, while all these functions are in reality performed by his councillors. And it is a common supposition that his office is consequently become one of parade and sentiment only. There cannot be a greater error. The functions of a colonial Governor under responsible government are (occasionally) arduous and difficult in the extreme. Even in the domestic politics of the colony, his influence as a mediator between extreme parties and controller of extreme resolutions, as an independent and dispassionate adviser, is far from inconsiderable, however cautiously it may be exercised. But the really onerous part of his duty consists in watching that portion of colonial politics which touches on the connection with the mother country. Here he has to reconcile, as well as he can, his double function as governor responsible to the Crown, and as a constitutional head of an executive controlled by his advisers. He has to watch and control, as best he may, those attempted infringements of the recognized principles of the connection which carelessness or ignorance, or deliberate intention, or mere love of popularity, may from time to time originate. And this duty, of peculiar nicety, he must perform alone. His responsible ministers may (and probably will) entertain views quite different from his own. And the temptation to surround himself with a camarilla of special advisers, distinct from those ministers, is one which a governor must carefully resist. It may, therefore, be readily inferred, that to execute the office well requires no common abilities, and I must add that the occasion has called forth these abilities." (Id., p. 666.)

"The office of Governor tends to become--in the most emphatic sense of the term--the link which connects the mother country and the colony, and his influence the means by which harmony of action between the local and Imperial authorities is to be preserved. From his independent and impartial position, the opinion of a Governor must needs have great weight in the colonial councils; while he is free to constitute himself, in an especial manner, the patron of those larger and higher interests-as of education, and of moral and material progress in all its branches-which, unlike the contests of party, unite, instead of dividing, the members of the body-politic." (Lord Elgin [1854], cited Todd's Parl. Gov. in Col., p. 809, 2nd ed.)

"The Governor-General of Canada is the representative of the Queen, and the highest authority in a dominion vast in extent, occupied by several millions of people, comprising within itself various provinces recently brought together which can only knit into a mature and lasting whole by wise and conciliatory administration. Nor is the position insulated. The Governor-General is continually called upon to act on questions affecting international relations with the United States. The person who discharges such exalted functions ought to possess not only sound judgment and wide experience, but also an established public reputation. He should be qualified both to exercise a moderating influence among the different provinces composing the union, and also to bear weight in his relations with the British minister at Washington and with the authorities of the great neighbouring republic.' (Despatch by the Duke of Buckingham, Secretary of State for the Colonies [1868], explaining the reasons of the Imperial Government for advising the Queen to refuse assent to a bill passed by the Dominion Parliament to reduce the salary of the Governor-General. Cited, Todd, p. 810, 2nd ed.)

$ 55.

"During the Queen's Pleasure."

"Colonial Governors invariably hold office during the pleasure of the Crown; but their period of service in a colony is usually limited to six years from the assumption of their duties therein; although, at the discretion of the Crown, a Governor may be re-appointed for a further term. The rule which limits the term of service of a Governor to six years was established principally for the purpose of ensuring in Governors the utmost impartiality of conduct, by disconnecting them from fixed relations with the colony over which they are appointed to preside. It was first made applicable to all British colonies by a circular despatch from Mr. Secretary Huskisson, issued in May, 1828, as follows:-It shall for the future be understood that, at the expiration of six years, a Governor of a colony shall, as a matter of course, retire from his government, unless there should be some special reasons for retaining him there; and that the way should thus be opened for the employment of others, who may have claims to the notice of His Majesty's government. (Todd, 2nd ed., pp. 122-3.)

$56. "Powers and Functions of the Queen."

Section 2 of the Constitution is the same in substance as section 2 ch. I. of the Commonwealth Bill of 1891. When it was first proposed in 1891, strong exception was taken to it and other sections relating to the Governor-General on the ground that they would confer extraordinary and enormous powers on the Governor-General, far in excess of any authority previously conferred on any governor in these colonies. Subsequent discussion showed that this contention was untenable.

During the progress of Provincial Government in the Australian colonies, two propositions have been suggested as explaining the position and attributes of the Governor of a Constitutional colony. One proposition has been that the Governor, as the Representative of the Queen, is vested with authority defined and limited, partly by the statute law establishing the Queen's Government in the colony, partly by the letters patent constituting the office of Governor, partly by the commission appointing him to the office, and finally by the royal instructions communicated to him by the Seeretary of State on behalf of Her Majesty. (Anson's Law and Custom of the Constitution, vol. ii., p. 260.) The other view has been that the Governor of a colony, in which the system known as Responsible Government exists, is a local constitutional ruler, vested with authority defined or necessarily implied by the statute law establishing the Queen's Government in the colony, and vested thereby with all the prerogatives of the Crown reasonably necessary for the exercise of the proper functions of government ; that the responsible ministers of such a colony possess, by virtue of that law, the power

to advise the representative of the Crown to do any act which it would be competent for the legislature of the colony to sanction, and which ordinarily is, or under special circumstances may become, reasonably necessary to its existence as a body constituted by law, or for the proper exercise of the functions which it is intended to execute. (Per Higinbotham, C.J., in Ah Toy v. Musgrove [1888], 14 V.L. R. p 295-6.) A similar contention was raised in the year in which that case was decided in Victoria by the Government of Ontario, to the effect that the Lieutenant Governor of the Province was entitled, virtute officii, to exercise all the prerogatives of the Crown incident to executive authority in matters over which the provincial legislature had jurisdiction, in the same manner as, and to the same extent that the Governor-General was entitled, virtute officii, to exercise all prerogatives incident to executive authority in matters within the jurisdiction of the Dominion Parliament. (Ontario Sess. Pap., 1888, No. 37, pp. 20-2.) The same doctrine was mooted in the Canadian courts on the hearing of the pardoning power case. (Attorney-General of Canada 2. Attorney-General of Ontario, 22 Ont. Rep. 222; 19 Ont. App. Rep. 31. Cited, A. H. F. Lefroy, Law Quarterly Review, July, 1899, p. 283.)

In the construction of the powers and functions of the Governor-General of the Commonwealth no such difficulties and ambiguities as were discussed in Ah Toy v. Musgrove need arise. The principal and most important of his powers and functions, legislative as well as executive, are expressly conferred on him by the terms of the Coustitution itself. Among these may be mentioned: the appointment of the times for holding the Sessions of Parliament; the prorogation of the Parliament; the dissolution of the House of Representatives (sec. 4); the dissolution of the Senate and of the House of Representatives simultaneously (sec. 57); the convening of a joint sitting of the members of the Senate and of the House of Representatives (sec. 57); the assent in the name of the Queen to Bills passed by the Federal Houses; the withholding of the Queen's assent to such Bills; the reservation of Bilis for the Queen's pleasure; the recommendation of amendments to be made in Bills (sec. 58); the exercise of the Executive power of the Commonwealth (sec. 61); the appointment of political officers to administer departments of state of the Commonwealth (sec. 64); the command of the naval and military forces of the Commonwealth (sec. 68); and generally, "in respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a colony" (sec. 70). These are powers and functions vested in the Governor-General by statute, to be exercised by him in accordance with the recognized principles of Responsible Government. The point to emphasize is, that they are legislative and executive powers and functions conferred on the Governor-General, not by Royal authority, but by statutory authority. (See Note § 60.)

The section now under consideration authorizes the Governor-General to exercise such powers and functions as Her Majesty may be pleased to assign to him. These powers and functions, however, must not be confused with the statutory authority and statutory duties to which reference has been made, relating to the Government of the Commonwealth, expressly specified in and expressly conferred on the Governor-General by the Constitution. The powers and functions contemplated by this section relate either to matters subordinate and ancillary to the statutory authority and statutory duties enumerated in the Constitution, or to matters connected with the Royal prerogative (that body of powers, rights, and privileges, belonging to the Crown at common law, such as the prerogative of mercy), or to authority vested in the Crown by Imperial statute law, other than the law creating the Constitution of the Commonwealth. Some of these powers and functions are of a formal character; some of them are purely ceremonial; others import the exercise of sovereign authority in matters of Imperial interests. The nature of some of the prerogative as well as formal and ceremonial power sreferred to, may be gathered from the extracts from letters patent and commissions relating to the office of Governor, which will be found further on. Among examples of powers relating to

matters of Imperial interests the following may be suggested: the observance of the relations during peace, or in time of war, of foreign States to Great Britain, so far as they may be affected by the indirect relations of such foreign States to the Commonwealth; the treaty rights and obligations of the Crown; the treatment of belligerent and neutral ships in the waters of the Commonwealth in times of war; the control of Her Majesty's Imperial naval and military forces within the limits of the Commonwealth. (Higinbotham, C.J., in Ah Toy v. Musgrove [1888], 14 V.L.R., 380.)

RESPONSIBILITY OF GOVERNORS.- Reference may here be made to two leading cases in which the powers, privileges, and immunities of colonial Governors were considered. In Mostyn v. Fabrigas, [1775], 1 Cowp. 161-172, 2 W. Bl. 929, Lord Mansfield held that a Governor of a colony is in the nature of a Viceroy. This dictum, however, has not been generally acquiesced in, and it is now understood that Mostyn v. Fabrigas simply decided that Governor Mostyn was liable to be sued in England for personal wrongs done by him, whilst he was Governor of Minorca. In the case of Musgrave v. Pulido [1879], 5 App. Cas. 102, Pulido, the charterer of a schooner, sued Sir Anthony Musgrave, the Governor of Jamaica, to recover damages from him for an alleged act of trespass committed by him in seizing and detaining the schooner at Kingston. The defendant pleaded to the jurisdiction of the Court, in effect alleging that he was CaptainGeneral and Governor-in-Chief of the island of Jamaica, and that the acts complained of were done by him as Governor of the island, and in the exercise of his reasonable discretion as such. The plea did not aver, even generally, that the seizure of the plaintiff's ship was an act which the defendant was empowered to do as Governor, nor even that it was an act of state. It was held that a Governor of a colony (in ordinary cases) cannot be regarded as Viceroy; nor can it be assumed that he possesses general sovereign power. His authority is derived from his commission, and is limited to the powers thereby expressly or impliedly entrusted to him. It is within the province of municipal courts to determine whether any exercise of power by a Governor is within the limits of his authority, and, therefore, an act of state. On these grounds it was decided that the plea was not a sufficient answer to the action.

MODE OF APPOINTMENT.-The constitutional position of the Governor-General, as a component of the Executive Government of the Commonwealth, will be considered in detail in our notes to Chapter II. (§ 271). Under this section allusion can appropriately be made (1) to the practice which originally prevailed in connection with the creation of the office of Colonial Governor; the method of appointment to such office, and the assignment of official powers and functions of a stereotyped character to the holder of the office for the time being; and (2) to the changes which, in recent years, have been made in the direction of emancipating the Governor from the restraint and embarrassment of antiquated instructions, and enabling him to act as a constitutional ruler, in accordance with the recognized principles of Responsible Government.

Colonial Governors were formerly appointed by letters patent, under the Great Seal, which defined the scope of their powers, duties, and functions. Pending the preparation of the authorative instruments it was the practice, before 1875, to issue a minor commission under the Royal Sign Manual and Signet, to a new Governor, authorizing him to act under the commission and instructions given to his predecessor in the same office. The validity of this practice having been doubted, the Imperial Government decided in 1875 to abandon it, and thereafter, as soon as practicable, to make permanent provision by letters patent under the Great Seal in every colony of the empire for the constitution of the office of Governor therein, and it was further decided to fill the office as it became vacant, by appointment to be made, by special commission, under the Royal Sign Manual and Signet, which commission should recite the letters patent, and direct the appointee to fulfil the duties of the office according to the permanent instructions issued in connection therewith. (Todd, Parl. Gov. in Col., 2nd ed., p. 109.) There are therefore, now, three important documents associated with the office of Governor :—

are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called "a State."

"Original States" shall mean such States as are parts of the Commonwealth at its establishment.

HISTORICAL NOTE. - Clause 5 of the Commonwealth Bill of 1891 was as follows:"The term "The States' shall be taken to mean such of the existing colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and the Province of South Australia, as for the time being form part of the Commonwealth, and such other States as may hereafter be admitted into the Commonwealth under the Constitution thereof, and each of such colonies so forming part of the Commonwealth shall be hereafter designated a State."

At the Adelaide session, 1897, the clause was introduced and passed in the same words. (Conv. Deb., Adel., pp. 625-6). At the Sydney session, a suggestion made by the Legislative Council of New South Wales (where it had been originated by Mr. R. E. O'Connor) to define "Original States" and "New States," was discussed; and ultimately the definition of "Original States" was agreed to. On Mr. Solomon's motion, the words "including the Northern Territory of South Australia" were agreed to. (Conv. Deb., Syd. [1897] pp. 231-9, 986-7.) At the Melbourne session, drafting amendments were made before the first report; and also after the fourth report, when the words " 'Colony' 'shall mean any colony or province" were added.

In the Bill as introduced in the Imperial Parliament, the following words were added to the definition of Commonwealth :-" and the laws of the Commonwealth shall be colonial laws within the meaning of the Colonial Laws Validity Act, 1865.” In Committee, these words were omitted, and the words "Colony' shall mean any colony or province "-which it was thought might raise a doubt as to the application of the Colonial Laws Validity Act-were also omitted. (See pp. 222-248, 351-2, supra.)

$ 41. "Definitions."

The definitions in the Act are remarkably few, being confined to the words "Commonwealth” and “State"--both old English words which receive by this Act a new technical application-and the phrase "Original States." Every other word and phrase of the Constitution is left to be construed from its natural meaning and its context.

It is safer to abstain from imposing, with regard to Acts of Parliament, any further canons of construction than those applicable to all documents. (Lamplugh e. Norton, 22 Q.B.D. 452.) When a doubt arises upon the construction of the words of an Act of Parliament, it is the duty of the Court to remove the doubt by deciding it; and when the Court has given its decision, the point can no longer be considered doubtful. (Bell . Holtby, L.R. 15 Eq. 178.) Acts should be construed according to the intent of Parliament. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves, in such case, best declare the intention of the legislature. (Sussex Peerage, 11 Cl. and F. 86; 8 Jur. 793.) The Court knows nothing of the intention of an Act, except from the words in which it is expressed, applied to the facts existing at the time. (Logan r. Courtown, 20 LJ. Ch. 347; Digest of Eng. Ca. L., xiii., p. 1888.) Anyone who contends that a section of an Act of Parliament is not to be read literally, must be able to show one of two things, either that (1) there is some other section which cuts down its meaning, or else (2) that the section itself is repugnant to the general purview of the Act. (Nuth v. Tamplin, 8 Q.B.D. 253. Id. p. 1889.) “I prefer to adhere to the golden rule of construction that the words of a statute are to be read in their ordinary sense, unless the so construing them will lead to some incongruity or manifest absurdity." (Per Grove, J., Collins . Welch, 5 C.P.D. at p. 29. Id. p. 1889.) The more literal construction of a section of a statute ought not to prevail if