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may deem it necessary or expedient to assign to him or them : Provided always, that the appointment of such a Deputy or Deputies shall not affect the exercise of any such power, authority or function by Our said Governor General in person. VII. And We do hereby declare Our pleasure to be that, in the event of the death, incapacity, removal, or absence of Our said Governor General out of Our said Dominion, all and every, the powers and authorities herein granted to him, shall, until Our further pleasure is signified therein, be vested in such person as may be appointed by Us under our Sign-Manual and Signet to be our Lieutenant Governor of Our said Dominion; or if there shall be no such Lieutenant Governor in Our said Dominion, then in such person or persons as may be appointed by Us under Our Sign-Manual and Signet to administer the Government of the same; and in case there shall be no person or persons within Our said Dominion so appointed by Us, then in the Senior Officer for the time being in command of Our regular troops in Our said Dominion: Provided that no such powers or authorities shall vest in such Lieutenant-Governor, or such other person or persons, until he or they shall have taken the oaths appointed to be taken by the Governor General of Our said Dominion, and in the manner provided by the Instructions accompanying these our Letters-Patent. VIII. And We do hereby require and command all Our Officers and Ministers, Civil and Military, and all other the inhabitants of Our said Dominion, to be obedient, aiding and assisting, unto Our said Governor General, or, in the event of his death, incapacity, or absence, to such person or persons as may, from time to time, under the provisions of these Our Letters-Patent, administer the Government of Our said Dominion. IX. And We do hereby reserve to Ourselves, Our heirs and successors, full power and authority, from time to time, to revoke, alter or amend these Our Letters-Patent as to Us or them shall seem meet.
X. And We do further direct and enjoin, that these Our LettersPatent shall be read and proclaimed at such place or places as Our said Governor General shall think fit, within Our said Dominion of Canada.
(Dom. Sessional Papers of 1879, No. 14.)
Instructions to our Governor General in and over Our Dominion of Canada, or, in his absence, to Our Lieutenant-Governor, or the Officer for the time being administering the Government of Our said Dominion.
WHEREAs by certain Letters-Patent bearing even date herewith, We have constituted, ordered, and declared that there shall be a Governor General (hereinafter called Our said Governor General) in and over Our Dominion of Canada (hereinafter called Our said Dominion), and We have thereby authorized and commanded Our said Governor General to do and execute in due manner all things that shall belong to his said command, and to the trust We have reposed in him according to the several powers and authorities granted or appointed him by virtue of the said Letters-Patent and of such Commission as may be issued to him under Our Sign-Manual and Signet, and according to such Instructions as may, from time to time, be given to him, under Our Sign-Manual and Signet, or by Our Order in Our Privy Council, or by Us through One of Our Principal Secretaries of State, and to such Laws as are or shall hereafter be in force in Our said Dominion. Now therefore, We do, by these Our Instructions under Our Sign-Manual and Signet, declare Our pleasure to be that Our said Governor General for the time being shall, with all due solemnity, cause Our Commission, under Our Sign-Manual and Signet, appointing Our said Governor General for the time being, to be read and published in the presence of the Chief Justice for the time being, or other Judge of the Supreme Court of Our said Dominion, and of the members of the Privy Council in our said Dominion: And We do further declare Our pleasure to be that Our said Governor General, and every other officer appointed to administer the Government of Our said Dominion, shall take the Oath of Allegiance in the form provided
by an Act passed in the Session holden in the Thirty-first and Thirty
second years of Our Reign, intituled: “An Act to Amend the Law relating to Promissory Oaths;” and likewise that he or they shall take the usual Oath for the due execution of the Office of Our Governor General in and over Our said Dominion, and for the due and impartial administration of justice; which Oaths the said Chief Justice for the time being of Our said Dominion, or, in his absence, or, in the event of his being otherwise incapacitated, any Judge of the Supreme Court of Our said Dominion, shall, and he is hereby required to tender and administer unto him or them. II. And We do authorize and require Our said Governor General, from time to time, by himself or by any other person to be authorized
by him in that behalf, to administer to all and to every person or persons as he shall think fit, who shall hold any office or place of trust or profit in our said Dominion, the said Oath of Allegiance, together with such other Oath or Oaths as may, from time to time, be prescribed by any Laws or Statutes in that behalf made and provided. III. And We do require Our said Governor General to communicate forthwith to the Privy Council for Our said Dominion these Our Instructions, and likewise all such others, from time to time, as he shall find convenient for Our service to be imparted to them. IV. Our said Governor General is to take care, that all laws assented to by him in Our name, or reserved for the signification of Our pleasure thereon, shall, when transmitted by him, be fairly abstracted in the margins, and be accompanied, in such cases as may seem to him necessary, with such explanatory observations as may be required to exhibit the reasons and occasions for proposing such Laws; and he shall also transmit fair copies of the Journals and Minutes of the proceedings of the Parliament of Our said Dominion, which he is to require from the clerks, or other proper officers in that behalf, of the said Parliament. V. And We do further authorize and empower Our said Governor General, as he shall see occasion, in Our name and on Our behalf, when any crime has been committed for which the offender may be tried within Our said Dominion, to grant a pardon to any accomplice, not being the actual perpetrator of such crime, who shall give such information as shall lead to the conviction of the principal offender; and, further, to grant to any offender convicted of any crime in any Court, or before any Judge, Justice, or Magistrate, within Our said Dominion, a pardon, either free or subject to lawful conditions, or any respite of the execution of the sentence of any such offender, for such period as to Our said Governor General may seem fit, and to remit any fines, penalties, or forfeitures which may become due and payable to Us—Provided always, that Our said Governor General shall not in any case, except where the offence has been of a political nature, make it a condition of any pardon or remission of sentence that the offender shall be banished from or shall absent himself from Our said Dominion. And We do hereby direct and enjoin that Our said GovernorGeneral shall not pardon or reprieve any such offender without first receiving in capital cases the advice of the Privy Council for Our said Dominion, and in other cases the advice of one, at least, of his Ministers; and in any case in which such pardon or reprieve might directly affect the interests of Our empire, or of any country or place beyond D
the jurisdiction of the Government of Our said Dominion, Our said Governor General shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid. VI. And whereas great prejudice may happen to Our service and to the security of Our said Dominion by the absence of Our said Governor General, he shall not, upon any pretence whatever, quit Our said Dominion without having first obtained leave from Us for so doing under Our Sign-Manual and Signet, or through one of Our Principal Secretaries of State. W. R.
(Dom. Sessional Papers of 1879, No. 14.)
In Hill & Bigge et al. (3 Moore's P. C. 465), which was an action of debt brought against the Lieutenant-Governor of the Island of Trinidad in one of the Civil Courts of the Island, for a debt contracted before he became Governor; on the Appeal before their Lordships of the Privy Council it was contended on his behalf that he was vested with judicial as well as the executive power, so that he could do all such acts as belong to the Supreme authority acting judicially as well as executively, and that no civil action would therefore lie against him. But it was held by their Lordships, that the Governor of a Colony is liable to be sued in the Courts of his Colony. *
The Counsel for Lieutenant-Governor Hill also contended, that the Governor is in the nature of a Viceroy, and of necessity part of the privileges of the King are communicated to him during the time of his Government; that no criminal prosecution lies against him, and no civil action will lie against him, and then said:—
The point has been expressly decided in Canada, in Harvey v. Lord Aylmer (Stuart's K. B. Rep. 542): there, an action of debt was brought against the defendant by a servant, and the claim being an account of wages, and damages for the non-payment thereof. The defendant pleaded that he was Governor of the Province of Lower Canada, and averred that so long as he continued to execute the said office and trust, no suit nor action could be had or maintained against him in any of His Majesty's Courts within the Province for any matter or thing whatsoever, and the Court allowed the exception, and dismissed the action,-Chief Justice Sewell observing, that there was no room to doubt the validity of the exception which had been filed. The Court were of the opinion that the case of Fabrigas v. Mostyn (1 Cowp. p. 161, 2 W. Bl. 929) was alone sufficient to determine the question, but they cited all the authorities (among others, Tandy v. Lord Westmoreland), and stated two cases of a similar nature which had already been decided in the Upper Province
Lord Brougham in delivering the judgment of their Lordships said:
It is unnecessary to say anything of Tandy v. Lord Westmoreland, because the question there arose upon an act of the Lord-Lieutenant in his capacity of Governor, and because there would be no safety in relying upon the report of the case; it ascribes dicta to the Court which there is every reason to suppose must be inaccurately reported, dicta, in some of which it is impossible to concur. The case of Fabrigas v. Mostyn, when it came by error into the King's Bench, furnishes the only thing like authority for the contention of those who seek to impeach the judgment under review, and it is not pretended that the decision is upon the point now in question. An action of trespass and false imprisonment having been brought against the Governor of Minorca, he pleaded : first, the general issue, and then a justification; that he had, as Governor, and in the discharge of his duty, imprisoned and removed plaintiff, to prevent and put down a riot and mutiny in which he was engaged. To this special plea there was a replication de injuria, and both issues were found for plaintiff, whereupon—the defendant having tendered a bill of exceptions on the ground that the learned Judge who tried the cause ought to have directed the jury to find for the defendant, because he had acted as Governor of Minorca, and was not liable to be sued in the Courts of England, for acts done in Minorca—a writ of error was brought in K. B., and the Court gave judgment for the defendant in error (plaintiff below), holding it quite clear that an action will lie, and that the learned Judge did right in not directing the jury as required by the defendant. There having been no evidence to support the plea of justification, there could be no objection taken to the finding of the jury, and a motion for a new trial in the Common Pleas had been refused, whether made against the verdict or against the Judge's direction does not distinctly appear. Nor indeed is it quite clear from the report, in which way the Governor's Counsel really meant to shape their case; and this, though the fact that three elaborate arguments had been heard, is observed upon by the Court in passing the judgment. This much, however, is quite certain—that the decision is not against the liability of Governor Mostyn to be sued in the Island,