chapter  XXIII
12 Pages


T HE difficulty of appreciating the existing constitutional practice in relation to the Australian States and the Canadian Provinces is accentuated by the fact that it is mainly upon very old precedents that the leading work upon the subject (that of Todd) was based. It has also to be remembered that Todd's work was in many respects controversial in character. He was concerned in rebutting the theory that the political functions of the Crown have been 'wholly obliterated wherever a "parliamentary government" has been established' . I He regarded the office of Colonial Governor as that of a superintendent, and 'endeavoured to point out the beneficial effects resulting to the whole community from the exercise of this superintending office'.2 He conceded that his work would express opinions upon the constitutional precedents different from those entertained by Canadian statesmen taking part in their consideration and settlement,3 and, as he anticipated, his work 'evoked much personal abuse'.4 Moreover, Todd's view, like that of his son, was suspicious of 'the levelling spirit so characteristic of the age'.s

Bagehot's view was not fundamentally different from that of Todd, but he adopted a more realistic and less devotional attitude. In his work on the English Constitution Bagehot was particularly intrigued with the position of the Colonial Governo;.·. In analysing the position of the Sovereign in England he pointed out that the intervention upon occasion of 'an extrinsic, impartial, and capable authority'6 would prove a check upon mere factiousness in a popular Assembly. He considered whether such a Head of a State had been discovered in the Colonial Governor. Certainly such a person was intelligent, and nearly always sure to be impartial, coming,

218 TODD'S THESIS AS TO A GOVERNOR'S as he did, from the other side of the earth. Yet there were grave disadvantages attached even to his position:

But it is still of value to analyse Todd's treatment of some of the earlier precedents. We shall deal first with those relating to the Governor's discretionary power to refuse a dissolution of a Colonial Assembly:

1. In 1872 the Duffy administration was defeated in the Assembly of Victoria upon a resolution of no confidence. The Cabinet thereupon presented to the Governor, Lord Canterbury, a memorandum, which asserted that:

which a dissolution of Parliament was said to be justifiable. They were as follows:

the Sovereign in England had not refused a dissolution 'of late years' did not warrant the inference as to the British practice made by the memorandum. Lord Canterbury said that Colonial Governors 'are personally responsible to the Crown' and that no Governor could divest himself of such responsibility, especially in relation to dissolution. He referred to the four instances mentioned by the Duffy Cabinet, and refused to admit that any or all of the circumstances 'mentioned therein 'would, under all conceivable circumstances, and without any reference whatever to any other fact or facts, however important, justify a dissolution'.2 The Governor deemed it his duty in the circumstances to decline the advice to dissolve, whereupon the Duffy Government resigned, Mr. Francis was sent for, and a new administration was formed which was found to possess the confidence of Parliament.