can be made responsible. In all matters of local administration, however, the ministers are responsible, not immediately to the Crown, but to their own legislature.

In appointing and dismissing officials the governor is generally bound to act on the advice of his council, but express power is conferred on colonial governors by statute (n) to remove any person from office in case of absence without reasonable cause, neglect, or misbehaviour, and the dismissal of a commissioner of Crown lands by a governor of New South Wales was held by the judicial committee of the Privy Council not to be a proper subject of appeal, because such offices are held, not by any patent right, but solely during the pleasure of the governor. (0)

Liability of Colonial Governors.- -A colonial governor is liable to a civil action for acts done in his private and unofficial capacity both in the courts of the colony (p) and in the court of King's Bench in England; (q) and he may be sued in England for acts done in his official capacity, but outside the limits of his authority, (r) or for acts which, though done officially and within the limits of his commission, are such as the sovereign through his ministers, cannot legally do, for the orders of the Crown are no excuse for such an act. But whether he can be sued for acts done in his official capacity within his own colony seems doubtful. (s) It is clear, however, that he cannot be sued either in the colony or in England for acts of state within the authority of his commission, provided they are acts which a sovereign through his ministers can legally do, (t) and in cases of contract on behalf of the sovereign, the only remedy apparently would be by Petition of Right.

Governors are liable to criminal proceedings in the court of King's Bench in England under the Governors Act (u)

(n) 22 Geo. III. c. 75.

(0) Ex parte Robertson (1858), 11 Moo. P. C. 288.

(p) Hill v. Bigge (1841), 3 Moo. P. C. 465.

(q) Fabrigas v. Mostyn (1774), 20 St. Tri. 81.

(r) Musgrave v. Pulido (1879), 5 App. Cas. 111; Phillips v. Eyre (1869), L. R. 4 Q. B. 225.

(8) Tandy v. The Earl of Westmoreland (1800), Luby v. Lord Wodehouse (1865), 17 Ir. C. L. R. 618.

v. Pulido (1879), 5 App. Cas., p. 107.

(t) See the cases cited above.

(u) 11 & 12 Will. III., c. 125.

27 St. Tri. 1246;

But see Musgrave

66

for acts of oppression within the area of their command, or for any other crime or offence contrary to the laws of the realm or in force within their respective governments or commands." (v) But whether a governor can be tried on a criminal charge in his own colony does not seem to have been judicially determined; seeing, however, that he is not a viceroy, (w) but is only in the position of an officer with limited authority, (x) it might be said that he could not claim exemption from a criminal prosecution any more than a Cabinet minister in England could do so. Against this must be set the public inconvenience which would arise if a governor were subject to arrest like any ordinary person, and under the old law of execution, though he could be sued for debt, his person, it seems, could not be taken in execution under a writ of capias. (y) Whether, then, a governor enjoys the privilege of absolute freedom from arrest in his own colony in criminal and civil suits does not seem to have been directly determined. The Governors Act (z) was extended by a subsequent Act (a) to "all persons in his Majesty's service, in any civil or military capacity out of Great Britain, guilty of any crime, misdemeanour, or offence, in the execution of, or under the colour or in the exercise of, any such employment." But this Act has been held not to extend to felonies. (b) Breaches of official trust committed out of the United Kingdom are within the Act, and may be

(v) There seems to be some doubt whether this Act extends to felonies. See Rex v. Shawe (1816), 5 M. & S., p. 405. In 1802 Governor Wall was tried at the Old Bailey for the murder of a soldier by flogging whilst governor of the Island of Goree, sentenced to death and executed. The 33 Hen. VIII. c. 23, under which the trial took place, was repealed by the 9 Geo. IV. c. 31, s. 1; 9 Geo. IV. c. 74, s. 12.

(w) See Hill v. Bigge (1841), 3 Moo. P. C., p. 476 et seq., disapproving the dictum of Lord Mansfield to the contrary in Fabrigas v. Mostyn (1774), 20 St. Tri. 81.

(x) Cameron v. Kyte (1835), 3 Knapp P. C. 332.

(y) See Hill v. Bigge (1841), 3 Moo. P. C. p. 478. (2) 11 & 12 Will. III. c. 12.

(a) 42 Geo. III. c. 85.

(b) See Rex v. Shawe (1816), 5 M. & S., p. 405. The judgment of Lord Ellenborough, C.J., that the word "crime" in the Act does not extend to felonies chiefly on the ground that the method of procedure provided by the Act (viz. criminal information exhibited by the attorneygeneral) does not apply to felonies, does not seem entirely satisfactory, seeing that the Act provides for prosecution by information or indict

ment.

tried either in the place where they were committed, or in England, (c) and the corrupt communication of information acquired whilst acting in any official capacity under his Majesty is a breach of official trust. (d)

Capricious and indiscreet use of their powers by colonial officers other than governors may also be restrained through the exercise of the power of suspension vested in the governor. (e)

With regard, however, to the liability of a governor or any other person to be sued or prosecuted in England for acts done in a colony, the following general proposition applies: That no act is a wrong in England unless it is also a wrong in the country where it is committed, or if it has been indemnified in that country.” (ƒ)

66

Powers and Duties.-The governor's powers and duties. are mainly as follows:

(1) He pardons or respites criminals, and remits fines or penalties due to the Crown.

(2) Money for the public service is issued under his

warrant.

(3) He issues writs for the election of members, and convokes, prorogues, and dissolves legislative assemblies.

(4) He appoints absolutely, conditionally, or provisionally to offices in the colony. Where there is a responsible government these appointments are made with the advice of the Ministry.

(5) In colonies with responsible governments he can suspend or dismiss public servants holding office during pleasure. (g) But it is recognized that he acts on the advice of the Ministry. In other colonies his powers of suspension or dismissal are subject to regulations made by the colonial secretary.

(6) In colonies with representative governments his consent is necessary to the enactment of colonial laws. The

(c) 52 & 53 Vict. c. 52, s. 6.

(d) Ib. s. 2.

(e) See Cloete v. Reg. (1854), 8 Moo. P. C. 484.

(f) See Westlake's Private International Law, 3rd Ed., (9) See Ex parte Robertson (1858), 11 Moo. P. C. 288.

p. 237.

governor may adopt one of four courses: (1) He may assent; (2) he may withhold his assent altogether; (3) he may assent suspending the operation of the bill until it has been confirmed by the Crown ; (4) he may reserve the bill for the Crown's assent. In the case of bills concerning the army, the navy, differential duties, treaties, the royal prerogative, or the rights of subjects not within the colony, he must adopt course (3) or (4). The Crown may disallow any law to which the governor has affixed his assent within a certain time of the receipt of the bill by the colonial secretary from the governor. In Canada (h) and New South Wales (i) the power of disallowance must take place within two years of such receipt.

(7) He issues marriage licences, letters of administration, and grants probates, unless other regulations are made by local law or charter of justice.

Sometimes he presents to benefices of the Church of
England in the colony.

(8) It is his duty to repel aggression, and suppress riot, rebellion, or piracy. He makes reports to the home authorities on the condition of the militia and volunteers in the colony.

(9) In colonies without representative governments he generally initiates legislation. In representative colonies he sometimes initiates all appropriation bills.

(10) He administers the Extradition Acts, 1870, 1873, which extend to the colonies.

(11) He exercises in the colony the jurisdiction conferred by the Naturalization Act, 1870, upon a secretary of state to readmit an alien to British nationality. (12) He may not leave the colony without permission, or receive or give presents, or act as an agent in forwarding them to the Crown.

(13) He confirms the findings of courts-martial when in command of the military forces, or in the absence of any superior authority.

(h) 30 & 31 Vict. c. 3, s. 56.

(i) 5 & 6 Vict. c. 76, s. 32.

He may proclaim any military forces in the colony subject to the Army Act.

(14) He appoints to vacancies in the Vice-Admiralty Court of the colony, and in cases where no vice-admiral has been formally appointed, he is an ex-officio viceadmiral.

Colonial governments, as a rule, are not liable to be sued as a corporation, but the Government of New South Wales is liable to be sued in tort; (j) so also the Government of the Straits Settlements. (k) In New Zealand claims against the Crown are to be made by Petition of Right. (1)

The Dominion of Canada.

The Dominion of Canada was discovered by Sebastian Cabot in 1497. Early in the sixteenth century (1525) the French took possession of the country and settled on the St. Lawrence. In 1759 General Wolfe defeated the French at the battle of Quebec, and the country was formally ceded to Great Britain by the Treaty of Paris, 1763. The constitution of the Dominion of Canada depends principally upon the British North America Act of 1867, (m) which empowered His Majesty to declare Canada (consisting of the provinces of Ontario or Upper Canada, and Quebec or Lower Canada), Nova Scotia, and New Brunswick one dominion under the name of Canada and provided for the constitution. This Act was brought into force by proclamation of the 22nd of May, 1867. By the British North America Acts of 1871 and 1886, (n) the dominion parliament was empowered to erect and provide for the constitution of new provinces, and also to provide for the representation of such provinces, or of any territories forming part of the dominion but not included in any province, in the Senate and House of Commons. Canada

(j) 39 Vict. No. 38 (N. S. W. Act).

(k) Crown Suits Ordinance Act, 1876. (Laws of the Straits Settlements.)

(1) 35 Vict. No. 49 (New Zealand Act).

(m) 30 & 31 Vict. c. 3.

(n) 34 Vict. c. 28; 49 & 50 Vict. c. 35; these with the Act of 1867 may be cited as the British North America Acts, 1867 to 1886 (49 & 50 Vict. c. 35, s. 3).