Powers as to treaties.

The old rule.

should relate to and mention the Plantations, should be null and void. This statute ultimately led the State Courts of the United States to exercise a jurisdiction to control, and declare void State statutes-a jurisdiction which was subsequently exercised by the Supreme Court under the constitution of 1789. An attempt on the part of a judge in South Australia to examine into the validity of South Australian legislation led to the passing of this Act (1865), which declares that any Colonial law repugnant to an Act of the Imperial Parliament extending to the Colony to which such law may relate or repugnant to any order or regulation made under such Act, or having in the Colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, and not otherwise, be void; but no Colonial law was void solely because it was repugnant to the law of England, unless also repugnant to some such Act of Parliament, order, or regulation.

A power which has been slowly conceded by the Imperial Government is the power to make commercial treaties, although the Parliament and Government of Canada, had all powers necessary or proper for performing the obligations of Canada or of any of its provinces as part of the British Empire towards foreign countries arising under treaties between the Empire and such foreign countries. But no express power was conferred by the Dominion Act to make commercial treaties with foreign powers.

The old rule of the Imperial Government was that all negotiations of treaties with foreign powers must be conducted by ambassadors accredited by the Crown and responsible to the British Parliament. The Canadian Government, as well as the Australian Government, pressed, in the early seventies, for the right to active participation in the conduct of negotiations which related to commercial matters in which they were, perhaps, vitally concerned.

In 1871 Sir John Macdonald, the Premier of Canada, was successful in his demand, and he was appointed one of the plenipotentiaries to watch and represent the interests

of Canada in negotiations with the United States, in reference to trade, commerce, and fisheries.

In 1874 Senator George Brown, of Canada, was permitted to be associated with the British Minister at Washington in his negotiations for a treaty to promote reciprocal trade between the United States and Canada; but subject to the understanding that he must not act independently, and that propositions made by the Government of Canada should be previously submitted to the Secretary of State for the Colonies.

In 1879 Sir A. Galt, representing the Canadian Government, shared in the negotiations for improved commercial intercourse between Canada, France, and Spain.

In 1888 Sir Charles Tupper, as High Commissioner, was allowed to act as co-plenipotentiary with the British Ambassador in Spain and the United States. 1

In 1893 Sir Charles Tupper negotiated a treaty with France, and signed it along with the King's representatives.

In 1907 Mr. Fielding and Mr. Brodeur negotiated a treaty with France on behalf of Canada, which received the approval of the Imperial Government.

The modern rule may be now stated that the King's Minister in the foreign Court concerned should be a plenipotentiary for the purpose of signing the treaty, and that the whole negotiation should be carried on under the supervision and with the approval of His Majesty's Government. 2

The reason is that any foreign State would apply to the Imperial Government in case of any questions arising under the agreement. To give the Colonies power of negotiating treaties for themselves without reference to the Imperial Government would be to give them an international status as separate and sovereign States; and would be equivalent to breaking up the Empire into a number of independent States, a result injurious equally to the Colonies

1 Quick and Garran, Annotated Constitutions of the Australian Commonwealth, pp. 634-635.

Keith's Responsible Government in the Dominions, Vol. III, 1116.

Peace and war.

Future

consultation

and the Mother Country, and one that would be desired by neither party.

If an agreement for a treaty is arrived at, it would require the approval by the Imperial Government and also of the Colonial Government and Legislature, if it involved legislative action before the ratification could take place. 1

It is settled law that the provisions of an Imperial treaty will not over-ride an Imperial Act; "but," says Mr. Lefroy, writing of the treaties of Canada, "it is difficult to understand how an act of the Dominion Parliament or of a provincial legislature can be void and unconstitutional merely because in conflict with an Imperial treaty, unless, of course, such treaty has been confirmed by Imperial statute. Such an Act would no doubt call for the exercise of the veto power; but if within their spheres these legislatures are as sovereign as the Imperial Parliament itself, it may well be asked how can such a conflict render their Act void."

Professor Dicey states the old rule that Imperial treaties legally bind the Colonies; he also observes that the legislature of a self-governing Colony is free to determine whether or not to pass laws necessary for giving effect to a treaty entered into between the Imperial Government and a foreign power. The modern rule is that the Colonies are not bound unless expressly stated.

None of the Imperial Federations possess the power to declare peace or war, although entitled at any time to take steps to repel invasion.

At the Imperial Conference of 1911 it was resolved that of Dominions the Dominions should be afforded an opportunity of consultation when framing the instructions to be given to

on instructions to Hague

Conference.

British delegates at future meetings of the Hague Conference; and that Conventions affecting the Dominions, provisionally assented to at that Conference, should be circulated among the Dominion Governments for their

consideration; and that a similar procedure, when time and opportunity, and the subject-matter passed, should, as far as possible, be used when preparing instructions for the negotiation of other international agreements affecting the Dominions.

General.

CHAPTER XVIII

THE DOMINION EXECUTIVE

The Governor- THE general position of the Governor-General of an Imperial Federation, as the representative of the Crown, is dealt with elsewhere,1 and only those matters peculiar to his office in Canada are referred to.

Absence of.

Privy Council.

Distinction between the

in England.

In the absence of the Governor-General of Canada, or in case of his death, incapacity, or removal, his powers vest in a Lieutenant-Governor or administrator appointed by the King under his royal sign manual. If no such appointment be made, the Lieutenant-Governorship will devolve upon the senior officer in command of the Imperial troops in the Dominion.

The Governor-General receives a salary of £10,000 a year. In most matters, in accordance with the theory of Responsible Government, the Governor-General must act with the aid and advice of his Council, which is styled the King's Privy Council for Canada. The Council is composed of persons chosen and summoned by the GovernorGeneral and sworn in as Privy Councillors. Its members are from time to time removable by the Governor-General.

Though the name of Privy Council was adopted from that Privy Council body of the same title in England, its functions are different, since the latter has long ceased to have the direction of public affairs in the United Kingdom; though it has still an existence as an honorary body, limited in numbers, only liable to be convened on special occasions, and only in theory an assembly of State advisers.

Cabinet
Council.

Since the Revolution of 1688, the practical discharge of the functions of the British Government has been entrusted to a Cabinet Council, which technically is nothing more than a committee of the Privy Council. The term Ministry" in England includes all the Ministers of the Ante, Ch. xvii.