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Date: 1879-03-13
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 4th Parl, 1st Sess, 1879 at 338-409.
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DISMISSAL OF QUEBEC GOVERNMENT BY THE LIEUTENANT-GOVERNOR

[…]

Mr. Landry: […] Under the Constitution, Canada, divided in the first place into four Provinces, now counted seven, without counting the vast territories of the North-West to which the Parliament of Canada had given, a few years previously, a separate organisation. Canada had its Constitution, and each of the Provinces entering the Union had also tbe benefit of a special Constitution. These Constitutions should be compared together in order to fully understand the questions now before the House and the difference that existed between the working of the Federal Constitution and that of the Provincial Constitutions. It would be seen from the British North America Act that it was to the Queen herself that were attributed the Government and the Executive power of Canada, and that the Queen moreover formed part of the Parliament of Canada. She had the entire Executive power and had an essential part in the Legislative power. But our gracious Sovereign could not come here in person to govern Her loyal Canadian subjects, nor to exercise, in common with the Senate and the House of Commons, her legislative attributions. The 10th section of the Imperial Act made provision for this by delegating this power to the Governor-General, who was the representative of our august Sovereign, the personification of Royal Authority. What was the first duty of the Governor? Hie was to summon Privy Councillors who were to be bis advisers. The King reigned but did not govern: such was the rôle of the Governor. A man who had been Governor of Canada, the noble Earl of Dufferin, had himself marked out, in unequivocal terms, this first and imperative duty. He had said:

“My only guiding star in the conduct and maintenance of my official relations with your public men is the Parliament of Canada. In fact, I suppose I am the only person in the Dominion whose faith in the wisdom and the infallibility of Parliament is never shaken. Each of you, gentlemen, only believe in Parliament so long as Parliament acts according to your wishes and convictions. I, gentlemen, believe in Parliament no matter which way it votes—and to those men alone whom the deliberate will of the confederated Parliament of the Dominion may assign to me as my responsible advisers can. I give my confidence. Whether they are the heads of this party or of that party must be a matter of indifference to the Governor-General. So long as they are maintained by Parliament in their position, so long is he bound to give them his unreserved confidence, to defer to their advice, and loyally to assist them with his counsels. Whenever, in the vicissitudes of party warfare, they are replaced by others, he welcomes their successors with an equally open and loyal regard. Such private friendships as he may

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have formed he may have a right to retain. As a reasonable being he cannot help having convictions upon the merits of different policies, but these considerations are abstract, speculative and devoid of practical effect in his official relations. As the head of a constitutional State, as engaged in the administration of parliamentary government, he has no political friends; still less need he have political enemies. The possession, or even to be suspected of possessing either, destroys his usefulness.”

He quoted the 12th section of the British North America Act, which enumerated the powers that the Governor possessed, whether he acted under the advice of his Council, or on his own responsibility, and pointed out that there was nothing plainer than this section, which pointed out clearly the very sources whence were derived the diverse powers granted to the Governors of Canada, and which were not mentioned in the British North America Act. The first source of power that was found in looking over the past, was the very Act that the British North America Act had replaced in 1867. He spoke of the Union Act, passed in 1840, by the British Parliament, which provided that all powers, authorities and functions, which were previously vested in the respective Governors or Lieutenant- Governors of the Provinces, with the advice, or with the advice and consent of the Executive Council of such Provinces respectively, or in conjunction with such Executive Council, or with any number of the members thereof, or by the said Governors or Lieutenant-Governors individually and alone, should, insofar as the sane were not repugnant to, or inconsistent with, the provision of that Act, be vested in the Governor of the Province of Canada, with the advice, or with the advice and consent of, or in conjunction, as the case might require, with such Executive Council, or any members thereof, or by himself, individually and alone, in cases where the advice, consent, or concurrence of the Executive Council was not required. This section was completed by the following one, which indicated, in express terms, the manner in which the Governor was to act on his own responsibility, in case the advice of his Ministers should not be required, and provided that all the power and authority vested in him, should be exercised in conformity with, and subject to, such orders, instructions and directions as Her Majesty might, from time to time, see fit to make or issue. The 45th section of the Union Act referred to a former Act passed under George the Third, in the thirty-first year of his reign. This Act of 1791 was none other than the Constitutional Act that was granted to Canada by England, twenty-eight years after the Treaty of Versailles. He had read it attentively, and he had failed to discover therein aught that gave to the Governors of Canada other powers than those already specified by the Union Act of 1840, and the British North America Act of 1867. On the contrary, he found that in those days the powers of the Governors were much more restrained than they were now. The Governor could do nothing without, having a special authorisation from the reigning Sovereign, who granted it under his own hand. The appointment of Legislative Councillors, the summoning and prorogation of the Houses, could not take place without an authorisation given under the Sovereign’s own hand. That was the nature of the Constitutional Act of 1791, and it would convince all those who were acquainted with the present working of responsible government how greatly the powers and initiative of the Governor were at that time limited. He was speaking from the standpoint of the Statute. But there was another Act to be consulted. By going back to the fourteenth year of the reign of George III, it would be found that during the seventh Session of the thirteenth Parliament of Great Britain, in 1774, an Act had been passed, the 83rd of the Statutes at that time, which was entitled: “An Act for making core effectual provision for the Government of the Province of Quebec in North America.” But in this Act, as in the one that replaced it, nothing was found that gave to the Governors other powers than those already mentioned. The Act of 1867, by which a Constitution was granted to Canada, defined the powers of the Governors, and referred to the Act of 1840. The Act of 1840 referred, in its turn, to the Act of 1791, and the Act of 1791 to that of 1774. These three latter Acts did not confer on the Governors of Canada any other powers than those he now possessed

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under the Act of 1867; this Act, on the contrary, going further, in this respect, than the preceding ones. The Act of 1867, the British North America Act, was the veritable charter of Canadian liberties; it was the fruitful source from which flowed the rights and powers of the Canadian people, and those whom the Royal authority sent to preside over the destinies of one of the most beautiful of her colonies were obliged to draw from this source the spirit of their duties, and the Royal Instructions, showed in the most conclusive manner, that the source of the Governor’s power was the British North America Act. He was still speaking from the standpoint of the Statute, but it was time to distinguish between two things that were not to be confounded, and to study, in the distribution of the Governor’s functions and in the exercise of his duties, what he would define as the double character and the double action of a Governor. According to his idea, there were two persons in a Governor. There was the representative, the delegate of our beloved Queen, what he would call the personification of Royal authority; there was also the public servant, appointed by the British Crown to protect and defend, in a far-off land, the interests and the glorious prestige of this Crown, whence his authority was derived. King and servant,—King in the colonies, servant of the Mother Country,—not responsible to this House for any of his acts, whatever they might be, but responsible to the British Parliament. The most competent writers on constitutional law confirmed this doctrine. In his work upon Responsible Government, Lord Grey said:—

“But there was this most important difference between a Colonial Governor and an English Sovereign of the Houses of Plantagenet or Tudor, that the former was responsible to a distant and, generally, an impartial authority, to which the colonists could always appeal to relieve them from a Governor who abused his power.”

Hearn said:—

“Although he is the first subject in the colony over which he presides, and is entitled to all the consideration which the great confidence reposed in him by his Sovereign demands, he is in strict law merely an agent of the Queen, exercising in her name and on her behalf under certain strict instructions some of the Royal prerogatives. His authority is derived and is strictly limited. He, like every other agent, has, from the very nature of the case, a double relation, one to his principal, another to the party with whom lie transacts the affairs of his principal.”

Grey, he thought, summarised the question:—

“The Governor is the King’s servant. His commission came from him and he has only to execute the powers conferred upon him by this commission, to wit, to execute the laws of Minorca, subject to the instructions of the King in Council.

He believed that by these extracts he had shown, in a manner not to be refuted, that the powers of a Governor were limited, and that, in present cases, the Governor had no other authority than that conferred on him by the British North America Act, or that which he held under the commission of the Queen herself. This principle being admitted—and no one could deny it—it remained to be shown that a Lieutenant-Governor had no other authority than that conferred upon him by the same British North America Act, or that be might receive from the Governor-General who granted him bis commission. For him, as for the Governor-General, there were two sources whence he derived bis authority, the law and his commission. By the British North America Act, all powers, authorities and functions which, under any Imperial or Canadian Act, were, before or at the Union, vested in or exercisable by the respective Governors, or Lieutenant-Governors, of the Provinces were, so far as the sane were capable of being exercised after the Union, in relation to the Government of Ontario and Quebec respectively, rested in the Lieutenant-Governors of Ontario and Quebec respectively, with the advice, or with the advice and consent of, or in conjunction with the respective Executive Councils, or any members thereof, or by the Lieutenant-Governor individually, as the case required. […]

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Mr. Mills: […] He would ask the attention of the House to the views of Earl Grey, who was for many years Colonial Secretary under the Administration of Lord John Russell. In his work on Parliamentary Government, pages 4 and 5, after pointing out that the theory that the Executive power belongs wholly to the Crown, while the power of legislation is vested jointly in the Sovereign and the two Houses of Parliament, has ceased to be correct unless it is understood as applying only to the legal and technical distribution of power; after pointing out that the power belonging to the Crown is always exercised through responsible Ministers, and that in then the Executive and Legislative power are virtually united in the same bonds, he said:

“The exercise of this high authority is also placed under the check of a strict responsibility and control, and its possession made to depend on the confidence placed by the representatives of the people in the Ministers to whom it is committed. There is a further safeguard against abuse, in its being requisite that the Ministers of the Crown should obtain its direct sanction for all their most important measures.”