TODD'S THESIS AS TO A GOVERNOR'S POWER TO REFUSE A DISSOLUTION

T HE difficulty of appreciating the existing constitutional practice in relation to the Australian States and the \nCanadian Provinces is accentuated by the fact that it is mainly \nupon very old precedents that the leading work upon the subject (that of Todd) was based. It has also to be remembered \nthat Todd&s;s work was in many respects controversial in \ncharacter. He was concerned in rebutting the theory that the \npolitical functions of the Crown have been &s;wholly obliterated \nwherever a "parliamentary government" has been established&s; . I He regarded the office of Colonial Governor as that of \na superintendent, and &s;endeavoured to point out the beneficial \neffects resulting to the whole community from the exercise \nof this superintending office&s;.2 He conceded that his work \nwould express opinions upon the constitutional precedents \ndifferent from those entertained by Canadian statesmen taking \npart in their consideration and settlement,3 and, as he anticipated, his work &s;evoked much personal abuse&s;.4 Moreover, \nTodd&s;s view, like that of his son, was suspicious of &s;the \nlevelling spirit so characteristic of the age&s;.s Bagehot&s;s view was not fundamentally different from that \nof Todd, but he adopted a more realistic and less devotional \nattitude. In his work on the English Constitution Bagehot \nwas particularly intrigued with the position of the Colonial \nGoverno;.·. In analysing the position of the Sovereign in \nEngland he pointed out that the intervention upon occasion \nof &s;an extrinsic, impartial, and capable authority&s;6 would prove \na check upon mere factiousness in a popular Assembly. He \nconsidered whether such a Head of a State had been discovered in the Colonial Governor. Certainly such a person \nwas intelligent, and nearly always sure to be impartial, coming, 218 TODD&s;S THESIS AS TO A GOVERNOR&s;S \nas he did, from the other side of the earth. Yet there were \ngrave disadvantages attached even to his position: But it is still of value to analyse Todd&s;s treatment of some \nof the earlier precedents. We shall deal first with those \nrelating to the Governor&s;s discretionary power to refuse a \ndissolution of a Colonial Assembly: 1. In 1872 the Duffy administration was defeated in the \nAssembly of Victoria upon a resolution of no confidence. \nThe Cabinet thereupon presented to the Governor, Lord \nCanterbury, a memorandum, which asserted that: which a dissolution of Parliament was said to be justifiable. \nThey were as follows: the Sovereign in England had not refused a dissolution &s;of \nlate years&s; did not warrant the inference as to the British \npractice made by the memorandum. Lord Canterbury said \nthat Colonial Governors &s;are personally responsible to the \nCrown&s; and that no Governor could divest himself of such responsibility, especially in relation to dissolution. He referred \nto the four instances mentioned by the Duffy Cabinet, and \nrefused to admit that any or all of the circumstances &s;mentioned therein &s;would, under all conceivable circumstances, \nand without any reference whatever to any other fact or \nfacts, however important, justify a dissolution&s;.2 The Governor deemed it his duty in the circumstances to decline \nthe advice to dissolve, whereupon the Duffy Government \nresigned, Mr. Francis was sent for, and a new administration \nwas formed which was found to possess the confidence of \nParliament.

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