on no personal defect of a popular Prince, but on his youth and inexperience of affairs which unsuited him for the holding of the most distinguished place in the Dominion. On the other hand, the fears of an introduction of the practices of a royal court which were widely entertained on the appointment of the Duke of Connaught, as with less ground they had been entertained on the appointment of the Marquess of Lorne, were dispelled by the adherence of His Royal Highness to the régime of his predecessor, and the distinguished public career of the Duke, added to his competence in business and charm of manner, secured his wide popularity in the Dominion. But this is far from indicating that there is any possibility of the acceptance whether in Canada or in any other Dominion of the theory that the representative of the Sovereign should be a royal prince, still less of the suggestion that such Governorships should be hereditary in a branch of the royal family. Difficult as is the problem of providing Governors for the Dominions, it has yet to be shown that the present method is not the best attainable ; the election of a Governor would offend radically against the principle of responsible government and would raise up in the Dominion a power which, resting on an elective basis, would tend to compete with the authority of the Prime Minister himself.

CHAPTER II

THE POWERS OF THE GOVERNOR AS RESTRICTED BY LEGAL LIABILITY

Ir is a fundamental principle of the Government of the United Kingdom that the whole executive authority of the kingdom rests in the hands of the Crown, that this authority is exercised in every case on the advice of ministers, and that for every act of the King which is done in his official capacity a minister of the Crown must be responsible. It is further established that the King can do no wrong, and that therefore, if wrong is done, it cannot have been done by the command of the King, and the wrongdoer must answer to the law for his action, whether criminally or civilly. Liability, whether criminal or civil, is measured by the ordinary law of the land; the doctrine of Act of State cannot be invoked by a government official against any person but a foreigner,1 and the only protection possessed by public authorities in the case of British subjects and in the case of foreigners generally is that afforded by certain rules regarding the period of time within which action may be taken and the form of procedure to be adopted in such action. The application of the same principle, the following of the rules of the common law, results in what is sometimes regarded as anomalous, the position of the official who contracts in the name of the Crown. The rule is that he is not personally liable on such a contract, since a man cannot be held liable on a contract which he makes for a disclosed principal, and yet as the Crown cannot be sued the Crown cannot be held to be directly liable. The procedure by petition of right, however, remedies this defect, and though it is true that the royal fiat is required before a petition of right can be brought and that, therefore, 1 See Harrison Moore, Act of State.

theoretically the remedy for breach of contract on the part of the Crown can be denied by the Crown, it is an established part of constitutional usage that the fiat should be granted whenever a prima facie case for inquiry by a court is shown. There is no difficulty in conceiving that the position of the Governor might have been assimilated in these matters to the position of the Crown in the United Kingdom. It seems clear that the Lord-Lieutenant of Ireland is as exempt from suit in respect of any of his official actions as the Crown in England, and that a claim preferred against him would not be entertained by the courts, nor would any attempt be made to subject him to the criminal law in respect of any official action. The position of the Governor in these respects is quite different; it was early realized that the position of Governor at a great distance from the mother country would be seriously abused if no means of punishment existed, and criminal acts of Governors are liable to be punished in England under the provisions of the old Acts 11 and 12 Will. III, c. 12, and 43 Geo. III, c. 85, though fortunately these Acts have not been effectively invoked against a Governor for over a hundred years. More important is the fact that civil actions can be brought against a Governor in the courts of the Dominion in which he is Governor and also in the courts of the United Kingdom for torts committed by him, and such actions have been brought from time to time within recent years. The Governor is not liable for contracts entered into by him on behalf of the Crown, for in that case the principle applies as in England that only the principal can be sued, but contrary to the principle adopted in England, by local legislation direct suit against the Crown in cases of contract is allowed in the Dominions, while in many of them this privilege of suit is extended to torts. The difficulties arising from the liability of the Governor to actions both in England and in the Dominion is mitigated by the fact that by English law an action on tort brought in England must be based on the fact that the act in question must be tortious both by the law of England and by the law of the place in

which the action took place, and that accordingly if by an Act of Indemnity the tortious character of the act is removed in the Dominion, then the basis of an action in England disappears; thus in the case of Phillips v. Eyre,1 which arose out of the action of the notorious Governor Eyre in putting down with undue severity the revolt of the negroes in Jamaica, it was decided that the effect of an Act of Indemnity passed by the island Legislature, even though that Act had been assented to by the Governor whose acts were impugned, was nevertheless sufficient to deprive his proceedings of any tortious character, and to relieve him from liability in civil proceedings in England. On the other hand, this doctrine does not apply to criminal proceedings under the Acts of Will. III and Geo. III, nor to proceedings for murder or manslaughter under the Act 24 and 25 Vict. c. 100, which authorizes the trial and punishment in England of these offences when committed anywhere abroad by a British subject, for no Colonial Act can operate to destroy the effect of an Imperial Act unless there is express authority in some other Imperial Act for this purpose. But the effect of this anomaly could at any time be made good by the decision of the Crown to enter a nolle prosequi if proceedings were taken by any private individual against a Governor. The same proceeding is available in a Dominion to prevent the actions of a Governor being examined criminally there, though there seems to be no doubt that in theory a Governor even for his official actions is liable to the criminal jurisdiction of the Dominion courts in the absence of express legislation to the contrary. In his private capacity he is of course liable both civilly and criminally.

In the case of the self-governing Dominions it may be argued that the application of the old Acts is out of date, and that they should be formally removed from the statute book in their application to such Dominions. The total repeal of the measures might be held to be unadvisable in view of the fact that in some of the smaller Colonies the Governor occupies a post of such authority and power that

1 4 Q.B. 225; 6 Q.B. 1.

in the hands of an unscrupulous man injury might be done to individuals which could not be adequately met by mere civil proceedings. But the larger question naturally presents itself whether the Governor of a self-governing Dominion or State should not be placed as regards all his official actions in a position more nearly akin to that of the Lord-Lieutenant of Ireland and made exempt from all form of legal process as regards any official act done by him, leaving the responsibility for illegal acts, if any, to be borne by the officers who carried them out. It is, of course, true that even as the law at present stands these officers may be held to be liable for the acts in question, but obviously, if they are authorized by the Governor, it is natural and proper that proceedings in respect of them should be directed not against mere subordinates but against the head of the Government, who is much more likely than any subordinate to be able to meet the damages which might be awarded. Moreover, as an action in England would normally only be possible when the proposed defendant was resident in the country, an action there would normally have to be directed against a Governor during his presence in England on leave of absence or immediately after retirement from the administration of his government.

The matter is not of academic interest because the operation of the rule places the Governor in a position of difficulty with regard to the conduct of the Government of the country and compels him to share in some degree with ministers responsibilities which he ought not to have to bear. The two most prominent instances in which the Governor finds himself in difficulties are in connexion with the expenditure of public money and the declaration of martial law. In both instances he may quite easily find himself in the position of having to decide either to approve illegal action and thus to render himself liable to suit, or to decline to permit ministers taking action which they can assure him is essential in the interest of the country; normally indeed he has no

1 This follows from the rules of the High Court as to service of process abroad.