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§ 28. “Appoint a Governor-General.”

“Formerly each colonial governor was appointed by special letters-patent under the Great Seal which defined his tenure of office and the scope of his powers and duties. As the preparation and issue of these formal and authoritative instruments usually takes considerable time, it became the practice, prior to the year 1875, to issue a minor commission, under the royal sign-manual and signet, to a newly appointed governor, empowering him, meanwhile, to act under the commission and instructions given to his predecessor in office. But doubts having been raised in certain cases, whether these minor commissions effectually authorized the holder to perform all the duties and functions appertaining to his office, it was in 1875 deemed expedient by Her Majesty's government, under the advice of the law officers of the Crown, to issue, on behalf of each colony of the empire, letters-patent constituting permanently the office of governor therein; and providing that all future incumbents of this office should be appointed by special commission under the royal sign-manual and signet to fulfil the duties of the same, under the general authority and directions of the letters-patent aforesaid, and of the permanent instructions to be issued in connection therewith. But before introducing this change, a circular despatch, dated October 20, 1875, was addressed to all colonial governors, enclosing a copy of the proposed new forms and inviting suggestions to be submitted by the governor, after consultation with his responsible ministers, for such alterations as might appear to them to be specially advisable in the case of the particular colony.” (Todd's Parliamentary Government in the Colonies, p. 77–8.)

The results of the interchange of views between the Colonial Secretary, Earl Carnarvon, and the government of the Dominion of Canada, was that it was resolved to make a considerable modification in the manner of constituting the office of the Queen's representative in British Colonies and possessions, and in the manner of filling the office and instructing the incumbent of the office in the method of discharging his duties. It was decided to constitute the office in each colony and possession by letters-patent under the Great Seal of the United Kingdom, so drawn as to be of general application to future incumbents of the office and to make permanent provision for the execution of its duties. Accompanying the letters-patent instituting the office there was to be a code of instructions passed under the royal sign-manual and signet, addressed to the governor for the time being or in his absence to the officer administering the government. Appointments were to be made to the governorship as vacancies arose by a commission under the royal sign-manual and signet. At the instance of the Government of the Dominion, alterations were made in the instructions accompanying the letters-patent constituting the office of Governor-General of Canada.

The principal mandates in the old instructions were these:—(1) Relating to the exercise of the prerogative of mercy by the Governor with or without the advice of his ministers, (2) giving directions concerning the meetings of the Executive or Privy Council, (3) authorizing the Governor in certain contingencies to act in opposition to the advice of his ministers, and (4) prescribing the classes of Bills to be reserved for Imperial consideration.




  ― 343 ―

The new practice was not inaugurated in Canada, nor were the alterations in the instructions promulgated, until the Marquis of Lorne was appointed to the office of Governor-General of Canada, in succession to Lord Dufferin, when three new instruments were drawn up, viz. :—Letters-patent, dated 5th October, 1878; instructions bearing even date; and Lord Lorne's commission, bearing date 7th October, 1878.

Commencement of Act.

4. The Commonwealth shall be established29, and the Constitution of the Commonwealth shall take effect30, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws31, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.

UNITED STATES.—The Ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.—Const., Art. VII. CANADA.—The subsequent Provisions of this Act shall, unless it is otherwise expressed or implied, commence and have effect on and after the Union, that is to say, on and after the day appointed for the Union taking effect in the Queen's Proclamation; and in the same Provisions, unless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada as constituted under this Act. —B.N.A. Act, sec. 4.

HISTORICAL NOTE.—Clause 4 of the Commonwealth Bill of 1891 was as follows:—

“Unless where it is otherwise expressed or implied, this Act shall commence and have effect on and from the day so appointed in the Queen's proclamation; and the name ‘The Commonwealth of Australia’ or ‘The Commonwealth’ shall be taken to mean the Commonwealth of Australia as constituted under this Act.”

This clause, with the omission of the second word “where,” was adopted at the Adelaide Session, 1897. Mr. Carruthers suggested that the introductory words were vague; and Mr. Kingston proposed to substitute “Except in regard to section 3, which shall come into operation at the passing of the Act.” This was negatived. (Conv. Deb., Adel., pp. 621–5.) At the Sydney Session, following the suggestions of the Legislatures of New South Wales and Tasmania, the words “unless it is otherwise expressed or implied, this Act” were omitted, and the words “The Constitution of the Commonwealth” were substituted. A provision was then added that “The Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had been established at the passing of this Act.” (Conv. Deb., Syd. [1897], pp. 228–31.) At the Melbourne Session, verbal amendments were made before the first report and after the fourth report.

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