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it was by Section 5 enacted, “that neither His Majesty, nor his Privy Council, have or ought to have any Jurisdiction, Power or Authority, by English Bill, Petition, Articles, Libel, or any other arbitrary way whatsoever, to examine or draw into question, determine or dispose of the Lands, Tenements, Hereditaments, Goods, or Chattels of any of the subjects of this Kingdom; but that the same ought to be tried and determined in the ordinary Courts of Justice and by the ordinary course of the law.”
The Privy Councillors were also prohibited by that Statute, under heavy penalties, from restraining any persons of their liberty by “warrants and directions,” and from exercisingjudicial functions, by hearing and determining matters affecting the property of the subjects of the Kingdom.
The function of advising the Sovereign in the government of the Kingdom is now discharged as to all important matters of State by a select portion of this Council called the Cabinet Council, who, after being sworn in as Privy Councillors, receive their appointment to all the principal offices of State from the fact of being the leading members of the political party having the ascendancy in the House of Commons. This Cabinet Council or Ministry practically administer the Government, and become responsible for its measures, resigning their office if the Sovereign does not follow their advice, or if their political party ceases to be in the ascendancy in the House of Commons. In this way is responsibility brought home to the Executive Department, and harmony of action established between the Executive and the Legislative branches of the Government, and in this way the House of Commons is able to exercise a control over all the Departments of the Executive administration.
The King, nevertheless, has a right to dismiss his Ministry, and to appeal to the people to support a new administration. For the opposition to attempt to restrain him in the exercise of this right, and to coerce him by a majority of the existing House of Commons, would be overstepping the constitutional limit of their power. (Macaulay's Hist. of Eng. c. 20. and 2 May Cons. Hist. of Eng p. 79).
The origin of the Cabinet Council, now established as an essentinl feature of Parliamentary Government in England, is thus given by Macaulay:
Down to the year 1693, William III distributed the chief offices in the Government equally between the two parties, a policy which not only failed to secure the necessary co-operation of either but even allowed of open hostility between the various Ministers of the Crown, as well in the discharge of their executive duties as in the discussions in Parliament.
The statesman who had the chief share in forming the first English Ministry was the Earl of Sunderland, whose opinion was, that as long as the King tried to balance the two great parties against each other and to divide his favor equally between them, both would think themselves illused, and neither would lend to the Government their hearty and steady support, which was now greatly needed. The King, however, hesitated long before he would bring himself to quit that neutral position which he had long occupied between the contending parties, but finally acted upon this advice, and entrusted all the chief administrative offices to the Whigs who commanded a majority in the House of Commons.
Neither William nor the most enlightened of his advisers fully understood the nature and importance of that noiseless revolution, for it was no less, which began about the close of 1693, and was completed about the close of 1696. But everybody could perceive that, at the close of 1693, the chief offices in the Government were distributed not unequally between the two great parties; that the men who held those offices were perpetually caballing against each other, haranguing against each other, moving votes of censure on each other, exhibiting articles of impeachment against each other; and that the temper of the House of Commons was wild, ungovernable, and uncertain. Everybody could perceive that, at the close of 1696, all the principal servants of the Crown were Whigs, closely bound together by public and private ties, and prompt to defend one another against every attack, and that the majority of the House of Commons was arranged in good order under those leaders, and had learned to move, like one man, at the word of command. (Hist. of Eng. c. 20.)
May, thus describes the introduction of a Cabinet Council into the Government of the Canadian Provinces.
After the reunion of the Canadian Provinces, in 1840, a remedy was sought for disagreements between the Executive and the Legislature on that principle of ministerial responsibility, which had long been accepted as the basis of Constitutional Government in England, and in 1847, Responsible Government was fully established under Lord Elgin. From that time the Governor-Generals elected their advisers from that party which was able to command a majority in the Legislative Assembly, and accepted the policy recommended by them. * *
All Powers under Acts to be exercised by Governor General with advice of Privy Council, or alone.
By the adoption of this principle a colonial constitution has become the very image and reflection of Parliamentary Government in England. The Governor, like the Sovereign whom he represents, holds himself aloof from and superior to parties, and governs through constitutional advisers who have acquired an ascendancy in the Legislature.
He leaves contending parties to fight out their own battles; and, by admitting the stronger party to his councils, brings the Executive authority into harmony with popular sentiments, the Executive Council being a removable body, in analogy to the usage prevailing in the British Constitution,--it being understood that councillors who have lost the confidence of the Local Legislature will tender their resignations to the Governors; and, as the recognition of this doctrine in England, has practically transferred the supreme authority of the State, from the Crown,to Parliament and the people, so, in the Colonies, has it wrested, from the Governor and the Parent State, the direction of Colonial affairs. (2 May Cons. Hist. of Eng. p. 533.)
As a rule, says Todd (Parl. Gov. in British Colonies, p. 42) all outgoing ministers should resign their seats in the Executive Council, or be formally removed from that body. Hitherto, it has not been deemed expedient to retain ex-cabinet ministers on the list of Colonial Executive Councils merely as honorary members and in analogy to imperial practice. An organization resembling the imperial privy council, and liable to be convened, on special occasions, or for ceremonial purposes, is not ordinarily required in colonial institutions, which, at the outset at least, should be as simple and practical as possible. But in the Dominion of Canada, the practice prevails that “the Queen's Privy Council for Canada”—the members of which are appointed by the Governor-General, “to aid and advise in the Government,” and are removed at his discretion—are nevertheless permitted to retain an honorary position in the Council after their retirement from the cabinet. By command of the Queen “members of the Privy Council, not of the Cabinet,” have a special precedence within the Dominion, and are permitted to be styled “Honourable” for life. (See same work, p. 228, for table of precedence.)
12. All Powers, Authorities, and Functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in
or exercisable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice, or with the Advice and Consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of CANADA, be vested in and exercisable by the Governor General, with the Advice or with the Advice and Consent of or in conjunction with the Queen's Privy Council for CANADA, or any Members thereof, or by the Governor General individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of CANADA.
13. The Provisions of this Act referring to the Governor A General in Council shall be construed as referring to the Governor General acting by and with the Advice of the Queen's Privy Council for CANADA.
pplication of rovisions referring to Governor General in Council.
14. It shall be lawful for the Queen, if Her Majesty of of
thinks fit, to authorize the Governor General, from Time to Time, to appoint any Person or any Persons, jointly or sever- a ally, to be his Deputy or Deputies within any Part or Parts of CANADA, and in that Capacity to exercise, during the pleasure of the Governor General, such of the Powers, Authorities, and Functions of the Governor General as the Governor General deems it necessary or expedient to assign to him or them, subject to any Limitations or Directions expressed or given by the Queen; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority, or Function.
The following extracts from Royal Letters-Patent of 5th October, 1878, respecting the Office of Governor General with the Royal Instructions of same date
ajesty to authorize Governor General to ppoint Deputies.
show the Powers, Authorities, and Functions that are vested in the Governor Generals of the Dominion of Canada by virtue of their office.
WHEREAs by the 12th section of “The British North America Act 1867,” certain powers, authorities, and functions were declared to be vested in the Governor General: and whereas We are desirous of making effectual and permanent provision for the office of Governor General in and over Our said Dominion of Canada, without making new Letters-Patent on each demise of the said Office: Now, know ye, that,
III. We do further authorize and empower Our said Governor General to constitute and appoint, in Our name and on Our behalf, all such Judges, Commissioners, Justices of the Peace, and other necessary Officers and Ministers of Our said Dominion, as may be lawfully constituted or appointed by Us. IV. And We do further authorize and empower Our said Governor General, so far as we lawfully may, upon sufficient cause to him appearing, to remove from his office, or to suspend from the exercise of the same, any person exercising any office within Our said Dominion, under or by virtue of any Commission or Warrant granted, or which may be granted, by Us, in Our name, or under Our authority. V. And We do further authorize and empower our said Governor General to exercise all powers lawfully belonging to Us, in respect of the summoning, proroguing, or dissolving the Parliament of Our said Dominion. VI. And whereas by “The British North America Act, 1867,” it is amongst other things enacted, that it shall be lawful for Us, if We think fit, to authorize the Governor General of Our Dominion of Canada to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Our said Dominion, and in that capacity, to exercise, during the pleasure of Our said Governor General, such of the powers, authorities, and functions of Our said Governor General as he may deem it necessary or expedient to assign to such Deputy or Deputies, subject to any limitations or directions from time to time expressed or given by Us: Now, We do hereby authorize and empower Our said Governor General, subject to such limitations and directions as aforesaid, to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Our said Dominion of Canada, and in that capacity to exercise, during his pleasure, such of his powers, functions and authorities, as he