constitutroforwh Australia ADELAIDE AND VICINITY xxvii Queensland, came into collision with his responsible advisers by insisting on exercising his own judgment, he was in effect told by them that the Ministry would order the gaoler and the police to disregard his authority. As has always been the case when any (iovernor, in attempting to obey the instructions given to him, has come into collision with the local Ministry, the Secretary of State for the Colonies deserted Sir Anthony Musgrave, and the instructions to Governors have since been altered, so that now the Ministry practically exercises the prerogative of mercy. Although a capable Governor by his position, knowledge, and experience may exert great influence, there are few matters of purely local concern in which he can constitutionally exercise his own judgment. Two examples are given : when a Ministry, having lost the confidence of Parliament, advises a penal dissolution of Parliament; or when a Ministry has tendered to him, and he has accepted, its resignation and new advisers have not been appointed. In both of these cases the Governor must act on his own responsibility and exercise his own discretion. There is no doubt as to the first-mentioned event ; and the position has been very clearly put by Lord Normanby in a Minute in 1881 refusing to grant a dissolution on the advice of his Ministry : — " If the principle were admitted that a Minister had a right to a dissolution whenever he saw fit to advise one, a vital blow would be struck at the powers and independence of Parliament. The Minister would then become the master of Parliament instead of the servant of the Crown ; and the knowledge that a vote against the Government might terminate its existence would act as a constant drag on the independence of Parliament and the exercise of that supervision over the actions of the Government which it is its right and duty to exercise." It is no doubt a fact that the Governor sometimes asks the retiring Premier whom he should send for to form a new Ministry; but if he ask such advice officially, he is acting contrary to sound constitutional theory. When the retiring Ministry has resigned, and the Governor has accepted its resignation, he has no official adviser, and he is no more justified in asking his late advisers for official advice than he would be in asking any private person ; he must act on his own responsibility and use his own discretion, the incoming ^linistry taking the responsibilitv of his action. No doubt in theory the Governor has the right to appoint and dismiss Ministers when he pleases as they are (in theory) the " servants of the Crown," but the exercise of such right, except (as above mentioned) and in cases of grave emergency, is in constitutional practice so curtailed by Parliament as to be almost nominal. It must, also, of course, be clearly understood that the Governor is bound to refuse to accept the advice of his Ministers if they advise him to do any illegal act. The law- is above both him and them, and he cannot shelter himself from any consequence which may ensue by setting up the advice of his Ministers if he has done an illegal act. The maxim that a King can do no wrong does not apply to a Governor. He is neither a King nor a Viceroy ; he can sue and be sued in the courts of the Province for any private debts due to or by him, or for wrongs done to or by him either in his public or private capacity ; and after his return to P2ngland he is liable in actions brought against him there. " If a Governor exceeds his authorit)-, he is in the same position as any other person who exceeds his authority — his acts are null and void "; and a Ciovernor has been expressly made liable for criminal acts by Statute.
