defense. And these duties he must exercise alone, as his advisers entertain local views. He must watch and control the attempts to infringe the recognized principles which tie the colony and mother country together. But he has no party feeling and expresses no partisan opinions.

The governor-general, as expressly provided in the South African and. Australian constitutions, is appointed by the King, and since he may exercise his powers "during the King's pleasure," it is intimated that he may be removed by the King. In the fundamental law of Canada no mention is made of his appointment or removal, but it may be inferred from the fact of his representative character that the term of the agency rests with the principal, and indeed, in practice it is so considered, for in 1878 letters patent under the great seal of the United Kingdom were issued providing for his appointment from time to time by commission, and enumerating the powers and duties which shall devolve upon him.12 Todd points out that in practice which dates from 1828 the term of office of a governor is six years and is renewable for the same period. The purpose of the practice is, he states, to insure the utmost impartiality of conduct by the governor.1

13

The South Africa and Australia Acts provide for the salary of the governor-general at 10,000 pounds, which shall not be altered during his continuance in office (S. A. 10, Aust. 3).14 The latter act adds. the further limitation that he shall not "be entitled to receive any salary from the Commonwealth in respect of any other office during his administration" (Aust. 4).

The governor-general may appoint, under authority of the crown, deputies to act for him in any part of the Union (S. A. 11, Aust. 126, Can. 14).

All three acts provide for some kind of council to advise the governor-general in the administration of the government and in the exercise of his executive functions. In South Africa this body is called

11 Merivale's Lectures on Colonization, p. 666.

12 Clements, Can. Constitution, pp. 95, 96.

13 Todd, Parl. Govt. in Brit. Col., p. 123.

14 Compare U. S. Constitution, Art. 2, Sec. 1, subsec. 6.

the executive council, and there, as in the other self-governing colonies, it forms a part of the executive branch of the government. The members of the council are chosen by the governor-general and hold office during his pleasure, a provision common to the three colonies (S. A. 12, Aust. 62, Can. 11).

The ministry is the next executive body established in South Africa, which follows Australia closely in this respect. In both colonies it is required that the ministers be appointed by the governor-general and hold office during his pleasure (S. A. 14, Aust. 64). In practice, however, the minstry changes with every change of party control in parliament. The number of ministers in South Africa is restricted to "not exceeding ten," while in Australia the constitution provides for seven, but gives parliament power to change the number (Aust. 65). It is believed that the latter scheme would have been better for a young growing country like South Africa. The British North America Act does not mention a ministry, but this has been provided for by acts of the Canadian Parliament, vesting the appointment of ministers in the governor-general.15 It may be stated that the ministers of state correspond to our heads of departments, which with us constitute the Cabinet. In both South Africa and Australia it is required that the ministers shall be members of the executive council but not vice versa. Consequently, the executive council need not be made up wholly of ministers. Furthermore, both constitutions require that the ministers must be or become within three months members of either house of parliament.

16

Since the common law of England recognizes only one executive magistrate as exercising authority without commission, namely the crown, it follows that the powers of the governor-general must at least in theory be derived from the crown.1 These powers are in practice given by statutes or some sort of instructions from the crown or its officers. These, it must be noted, are powers for the execution of law and not essentially legislative powers, for the King, Bracton says, is not above the law but under the law. The

15 Clements, Can. Constitution, p. 97.

16 Reg. v. Bank of N. S., 11 S. C. R. 1; Musgrove v. Chun Teong Toy, 14 Vic. L. R. 349; Clements, Const., Canada, p. 79 et seq.

common law has invested him with these executive powers which are known as the prerogatives of the crown, and even these may be limited, if not wholly abolished, by law. Furthermore, it is stated that a governor-general is liable for his acts outside of his special authority or powers.17 The powers which it may be the crown's pleasure to grant to the governor are in South Africa and Australia subject to the constitution (S. A. 9, Aust. 2).18

Certain powers of the executive are enumerated and a distinction is drawn between the powers of the governor-general and of the governor-general in council. The power of appointment and removal of members of the executive council and the ministry, as given above, is not in practice so arbitrarily used as the words may seem to permit, for the leader of the majority in the popular house is chosen prime minister and the other ministers are selected by the prime minister and by him recommended to and appointed by the governor-general for the crown.19 It is presumed that the same method will be carried out in South Africa.

The governor-general is further granted the powers which were vested in the governors of the colonies at the date of the establishment of the constitution. This is a provision common to the three acts. But the South Africa and Canada Acts add the limitations: "as far as the same continue in existence and capable of being exercised after" the constitution goes into effect, and subject to modification by parliamentary authority. The command of the military and naval forces is vested differently in the three colonies:

17 Clements, Can. Constitution, p. 93.

18 A partial list of the powers of the crown in relation to the colonies follows: Canada: Authorize governor-general to appoint deputies (Can. 14); command naval and military forces (Can. 15); summon the first senators (Can. 25); direct the addition of members to the Senate (Can. 26, 27); disallow bills (Can. 56); admit other colonies to the Dominion on address of parliament (Can. 146). Australia: Authorize governor-general to appoint deputies (Aust. 126); grant appeals to Privy Council (Aust. 74); disallow bills (Aust. 59).

South Africa: Grant appeals to Privy Council (S. A. 106); disallow bills (S. A. 65); command naval and military forces (S. A. 17); admit new provinces on request of parliament (S. A. 150); transfer territories to the Union on request of parliament (S. A. 151); authorize governor-general to appoint deputies (S. A. 11).

19 Quick and Garran, Const. of Aust. Com. 709.

in South Africa "in the King or in the governor-general as his representative; " in Australia "in the governor-general as the Queen's representative;" in Canada "in the Queen." The South Africa Act like those of Australia and Canada, empowers the gov ernor-general to recommend the necessary appropriations to the lower chamber (S. A. 62, Aust. 56, Can. 54), to declare the royal assent to bills which have passed parliament (S. A. 64, Aust. 58, Can. 55), to proclaim the crown's disallowance of such bills (S. A. 65, Can. 56, Aust. 59), and the crown's assent to reserved bills (S. A. 66, Can. 57, Aust. 60). Besides these powers there are others distributed throughout the South Africa Act which for the most part are not common to the other constitutions.20

The powers of the governor-general in council are: to establish the departments of state (S. A. 14, Aust. 64), appoint and remove all officers in the public service unless the appointment is delegated to some other authority (S. A. 15, Aust. 67), appointment of the chief magistrates (administrators and lieutenant-governors) in the provinces (S. A. 68, Can. 58), and of the judges of the Supreme Court and the removal of same upon the request of parliament (S. A. 100, 101, Aust. 72). There are numerous other powers scattered. through the South Africa Act which are brought together below, together with the remaining powers of the governor-general in council in Australia and Canada.21

20 The remaining powers of the governor-general are substantially as follows; South Africa: Appoint the times for holding sessions of parliament, and dissolve and prorogue the same (S. A. 20); fill vacancies in the Senate (S. A. 29); convene joint sittings of parliament (S. A. 58, 63); take oaths of members of parliament (S. A. 51); sign the laws (S. A. 67); sign ordinances of Provincial Councils (S. A. 91); appoint deputies (S. A. 11).

Canada: Choose senators (Can. 24, 26, 27); appoint and remove speaker of Senate (Can. 34); fill vacancies in Senate (Can. 32); cause writs to be issued for election of House of Commons (Can. 42); appoint provincial judges (Can. 96); remove provincial judges on request of parliament (Can. 99); appoint public officers deemed necessary by governor-general in council (Can. 131); appoint deputies (Can. 14); take oaths of members of parliament (Can. 128).

Australia: Notify vacancies in Senate to governor of state (Aust. 21); dissolve parliament (Aust. 57); convene joint sittings of parliament (Aust. 57); appoint deputies (Aust. 126).

21 The remaining powers of the governor-general in council are in the main as follows:

The Seat of Government

The seat of the executive branch of the government in South Africa is to be located in Pretoria in the Transvaal (S. A. 18), while Cape Town is to be the seat of the legislature (S. A. 23), and the Appellate Division of the Supreme Court of South Africa is to sit at Bloemfontein in Natal (S. A. 109).

The question of the location of the capital for South Africa occupied the constitutional conventions even more than did the native problem. It was the one question which was discussed to the very last. The Transvaal would hear to nothing but Pretoria's being the capital, while Cape Colony was equally insistent on Cape Town. Durban and Bloemfontein were also mentioned as possibilities. Pretoria it was argued is a somewhat central inland town, though prices are high and mining interests are the controlling feature. Moreover, Pretorians have little to gain by union inasmuch as they already

South Africa: Nominate the senators (S. A. 24); appoint the districting commission (S. A. 38–41); proclaim the boundaries of electoral divisions (S. A. 42); appoint election day of members of House of Assembly (S. A. 37); approve remuneration of executive committeemen (S. A. 78); disapprove rules of proceedings of provincial councils (S. A. 75); determine salaries of mempers of provincial councils (S. A. 76); assent, etc., to ordinances of provincial councils (S. A. 90); appoint, remove, regulate and fix salary of Auditor of Accounts (S. A. 92); postpone filling vacancies in Supreme Court (S. A. 102); fill vacancies in Supreme Court due to absence, etc. (S. A. 97); approve rules of courts (S. A. 107, 108); undertake the government of native territories (S. A. 151); receive all revenues (S. A. 117); receive all public property (S. A. 122); receive all mines and minerals (S. A. 123); receive all posts, harbors and railways (S. A. 125); appoint financial commission (S. A. 118); reduce compensation to former capitals on approval of parliament (S. A. 133); appoint and remove Controller and Auditor-General (S. A. 132); cause Railway and Harbor Board to furnish services (S. A. 131); supervise, appoint and remove Railway and Harbor Board (S. A. 126); appoint and assign duties to attorneysgeneral for the provinces (S. A. 139); appoint Public Service Commission (S. A. 141, 142); control and administer native affairs (S. A. 147); frame regulations for elections (S. A. 134).

Canada: Appoint deputy lieutenant-governor (Can. 67); regulate, review and audit first charge on revenue fund (Can. 103); regulate payments of money to provinces (Can. 120); deliver public documents and records to Ontario or Quebec (Can. 143).

Australia: Cause writs to issue for elections to House of Representatives (Aust. 32); appoint members of Interstate Commission (Aust. 103).