Lapas attēli
PDF
ePub

Command of armed forces to

or remitted by the Governor after he has duly considered the advice either of his Ministers collectively, in Executive Council, or of the Minister more immediately responsible for matters connected with the administration of justice; and whether such advice is or is not tendered in Executive Council, it would seem desirable that-whether also given orally or not-it should be given in writing.

6. Advice having thus been given to the Governor, he has to decide for himself how he will act. Acting as he does, in an Australian Colony, under a system of Responsible Government, he will allow greater weight to the opinion of his Ministers in cases affecting the internal administration of the Colony, than in cases in which matters of Imperial interest or policy, or the interests of other countries or Colonies, are involved.

[ocr errors]

9. It has, I am aware, been argued that Ministers cannot undertake to be responsible for the administration of affairs unless their advice is necessarily to prevail on all questions, including those connected with the Prerogative of Pardon. But I am led to believe that this view does not meet with general acceptance, and there is at all events one good reason why it should not. The pressure, political as well as social, which would be brought to bear upon the Ministers if the decisions of such questions rested practically with them, would be most embarrassing to them, while the ultimate consequence might be a serious interference with the sentences of the Courts.

(Dominion Sessional Papers, 1876, No. 116, p. 78.)

See also Extract from Royal Instructions to Governor General, ante p. 41. 15. The Command-in-Chief of the Land and Naval Militia, continue to be and of all Naval and Military Forces, of and in Canada, Queen. is hereby declared to continue and be vested in the

vested in the

Queen.

It appears by the following extract from Section 10 of the "Revised Regulations for the Colonial Service," issued in 1879, "that the Governor of a Colony, though bearing the title of Captain General or Commander in Chief, is not, without special appointment from Her Majesty, invested with the command of Her Majesty's regular forces in the Colony," although "the Governor, as the Queen's Representative, will give the word' in all places within his Government, and the officer in command of Her Majesty's land forces is alone charged with the superintendence of all details connected with the military operations of a Colony."

By Section 19 of the Regulations it is provided "that the Regulations will

hold good though the Governor may be a military officer senior in rank to the Officer in Command of the forces." (Todd's Parl. Gov. in Colonies, p. 275.)

Duty of a Governor in case of a Rebellion.

In Phillips v. Eyre (22 L. T., N. S., 874; L. R. 6 Q. B., 1, affirming L. R., 4 Q. B., 225), which was an action for false imprisonment alleged to have been sustained by the plaintiff, while the defendant, as Governor of the Island of Jamaica, was engaged in putting down a rebellion; Welles, J., in delivering the Judgment of the Court remarked, as follows, upon the duty of a Governor of a Colony and other subjects. of Her Majesty in case of open rebellion: "To a certain extent their duty is clear--to do their best and utmost in suppressing the rebellion, even as to tumultuous assemblies and riots of a dangerous character, though not approaching to actual rebellion. Tindal, C. J., in his charge to the Bristol Grand Jury on the special commission upon the occasions of the riots in 1832 (5 C. & P. 262), thus, in accordance with many authorities, stated the law as to private citizens, 'In the first place, by the Common Law, every private individual may lawfully endeavor of his own authority, and without any warrant or sanction of the Magistrate, to suppress a riot by every means in his power. He may disperse, or assist in dispersing those who are assembled; he may stay those who are engaged in it from executing their purpose; he may stop and prevent others whom he may see coming up from joining the rest, and not only has he the authority, but it is his bounden duty as a good subject of the King, to perform this to the utmost of his ability. If the riot be general and dangerous, he may arm himself against the evil-doers to keep the peace.' Such was the opinion of all the Judges in the reign of Queen Elizabeth in a case called the Case of Arms (see R. v. Inhabitants of Wigan, 1 W. Bl., 47); although the Judges add, that it would be more discreet for every one in such a case to attend and be assistant to the Justices, Sheriffs, or other Ministers of the King in doing this. But if the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of the Magistrate, it is the duty of every subject to act for himself and upon his own responsibility in suppressing a riotous and tumultuous assembly, and he may be assured that whatever is honestly done by him in the execution of that object, will be supported and justified by the Common Law. This perilous duty, shared by the Governor with all the Queen's Subjects, whether Civil or Military, is, in an especial degree incumbent upon him; as being intrusted with the powers of

Seat of Government of Canada.

Constitution

of Parliament

of Canada.

Government for preserving the lives and property of the people and the authority of the Crown. And if such duty exist as to tumultuous assemblies of a dangerous character, the duty and responsibility in case of open rebellion, are heightened by the consideration that the existence of law itself is threatened by force of arms, and, a state of war against the Crown established for the time."

16. Until the Queen otherwise directs, the Seat of Government of CANADA shall be Ottawa.

IV.LEGISLATIVE POWER.

17. There shall be One Parliament for CANADA, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.

There was no moment in English history when men said, "It will be a good thing to have an Upper House to check the acts of the Lower." The system of two Houses was not the result of the design or deliberation of any man or of any body of men. It was the result of a series of accidents, of a series of historical causes, which gave to each House the particular functions which they have.

The representative body was not added in order to be a check on the acts of the non-representative body. The system of two Houses came of itself. It grew bit by bit, according to the immediate needs of successive generations. Freeman-Origin of Parliamentary Representation in England (13 Canada L. J., 67.)

The illustrious Council from which the name of Senate is derived was not an Upper House, but the government of the Roman Republic, having the executive practically under its control and the initiative of legislation in its hands. The American Senate is a special representation of the federal, as distinguished from the popular principle, in a country where, be it observed, foreign relations being in the hands of the national government, there are real federal functions to be discharged. But the other modern Senates are intended imitations of the House of Lords, and, one and all, begotten of the same illusion. The House of Lords is not a Senate, it is an old Feudal Estate, embodying not a political cast of mind different from that embodied in the House of Commons, but a different interest; and, at the dictate of that interest resisting to the uttermost every measure of change, from the Habeas Corpus Act, to the mitigation of the Criminal Code, and from the miti

gation of the Criminal Code, to Parliamentary Reform. In no single instance, we are persuaded, can the House of Lords be shown to have discharged the supposed function of a Senate, by revising, in a calmer atmosphere and in the light of maturer wisdom, the rash resolutions of the Lower House. Its members are not older or more sedate, much less are they better informed or wiser than those of the House of Commons. They are simply members of an hereditary aristocracy maintaining the privileges of their order. For that object they readily passed the most revolutionary measure, in the worst sense of the term, recorded in the political history of England-the enfranchisement of the ignorant and irresponsible populace of the cities, by the Tory Reform Bill of 1867. Yet the belief that they are a sage council of political revision, has given birth to the double-chambered theory, with the multifarious embodiments of which, the British colonies and constitutional Europe are overspread.

Under elective institutions there can be no real power but that which rests on the suffrages of the people. Nominated Senates, such as the French Senate under the Restored Monarchy, and our Senate, are nullities with a latent possibility of mischief, which was manifested the other day by the refusal of the supplies for the purpose of a party coup d'état, by the Senate of Quebec. If an attempt is made to divide the real power by making both Houses elective, the result is a perpetual risk of collision, such as has twice produced a dead lock in Victoria, and in France came near the other day replunging the country in civil war.

Expectations that "the Crown" would fill the Senate with men of a different class from those who composed the Lower House-men superior in any mental or social qualifications, less involved in the faction fight, better fitted to represent commercial interests or scientific professions were foredoomed to inevitable disappointment. "The Crown" is the Prime Minister; and no Prime Minister who was at the head of a party could help doing what the Prime Ministers on both sides have done-bestowing the nominations as rewards for party services, and making the Senate, what it is, a political infirmary.

In England a peerage is now and then given for military or naval services, seldom for public services of any other kind; and an extra law lord has sometimes been created when the House, as a Court of Law, has been in absolute need of reinforcement. Otherwise, the only road to a peerage is through landed wealth and a long course of steady voting for the leader of a party.

Not in complications, rivalries and conflicts, is the necessary Conservative influence to be found, but, in the proper constitution of a single assembly; in requiring such qualifications on the part of its electors, filling it up by such instalments, so regulating its legislative procedure that it may be an organ of intelligence, not of passion, and give effect to the settled convictions, not to the transient impulses, of the people. Then, instead of making the executive authority the prize of a perpetual faction fight, let an executive council be regularly elected by Parliament. The separation of the executive power from the legislative is a dream, though Montesquieu has established the belief that it is one of the great securities for liberty. Already Parliament appoints the Government, but in a way which makes it the government of a party, not of the nation.

Of what sort of men is the Upper House specially to consist? We have gone through projects without number, and volumes of discussion, yet we have never met with an answer to this essential question. Electoral or nominative machinery of all kinds is constructed, but nobody seems to know, or think it necessary to determine, what the machinery is to produce. Is the Upper House to be composed of old men?—It will be impotent. Of rich men?-It will be odious. Of the best and wisest men ?-The Lower House, which, as the more popular, remains the more powerful, will be left destitute of its natural guides and controllers. From this quandary, we really see no escape. However, the principle of two chambers is established, and we take it as it is. The only way of giving the Senate real power, and making it a living institution, is to introduce the elective principle; and this, so far as we can see, must be done in one of two ways, either by giving the election of Senators to the Local Legislatures, or by giving it to the people of each Province. Much might be said in favour of the Local Legislatures, if they were what they ought to be, genuine local councils, consisting of the worthies of the districts, and if their members would vote freely. But, as it is, to give the election of senators to them would be to put it into the pocket of the leader of the party in power, which would be very much the reverse of an improvement on open and legal nomination by the Prime Minister of the Dominion. To the people of each Province then, apparently, the election must be given; and we must hope that the largeness of the constituencies will, to some extent, baffle wirepulling, and that, petty local influences being swamped, the feeling which the people always have for eminent leaders will prevail. The substitution of a term of

« iepriekšējāTurpināt »