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NATItlNAL IJBRABY
CANADA
vmurrrHkovn nation \lr
3
/y
AMENDED COPY.
ARGUMENT OF COUNSEL Oy
BISrORE TUB
I]
lJli\
IN TlIK CASE Of
J. C. RYKERT, ESQ., M. P.,
In re Grant of certain Timber Limits In the North-Weet Territoriea to ons
John Adams in April, 1882.
Mr. MoDouoall.— I intimated to the Committco, at its last moctinir. after it
was announced that no further iwidenco would be given, that I was inclined to think
1 could add little, If anything, to the explanations already made under oath and had
advised my client t.at he could safely let his earn* rest upon that evidence alone ;
but as he was of opinion that there was some mif..w)piehenHion out of doors if not in
this comin ttee-room, as to the position and ihe rights and liabilities of Members of
Parliament and the uidicial functions and powers of the House of Commons and
that It might be weh to examine these Questions before the Committee, I deemed it
my duty to suggest another si ttin^f for tliat purpose. I promised at the same time
that I would not weary the Committee. I believe I limited myself to one hour
10 enaole me to do justice to the accused momber, and keep faith with the
Committee, i have co lected and digested a few authorities, Englisli and Canadian
Tf this Sao "°''*"'^'*°^ *''^'"' "'^ "'"P'^' «»ffl«i«ni to justify an immediate dismissal
The first question which presents itself to the Committee seems to be this : What
of SllnZ^V TU n'"r^''/,f'r ^'""°''.' *"^ ^'*^'*'''- *'«'"'nitted against the Ihw
«L KiS J lu ^Y ^'''r ''^ ««^l''«"^« does not t^l us ; dooi not nTme or specify
any breach of that law. It savs •« that the attention of the House has been culled to
certain documents, le ters and statemonts published du.ing the present Session in
the Votes and Proceed ngs of this House," * ♦ ♦ .. r^,„fi ^^ ^^e connec or, of
John J,'h«.; es liykert • &e., " with a grant of certain timber limits in the .North-
West lerritories. It is not alleged or proved that John Charles Rykert published
l..?!2.'"'i*.7 T «""^"'n«"g "r roflocing upon the House of Commons: If the
Kf- , ZV •* "*"'"^'' :' P*' Hnniont, concerning his own business affairs,
written out. of Session, and making no reference whatever to the House of Commons
past present or future are not ;>«M/«Aerf by him, upon what principle, according to
what precedent, does the House of Commons take cognir.ance of such letters and
S?/- & ?»*''"••»*'"" "f <]'«'"? Kvary lawyer knows that it is not the man 'who
wri/M but the man who publishrs, a hM who exposes himself to an action. " In a
frr. j!. ' iT^' ^''"■'*i*' ">**'•"■" «"y.«vi'l«noe CHM be given of its coaUmt*,
prima facie evidence must be given of a Dubllcalicm hu the d,'f.<nda«* "
Tlie private t)U9lness letters of Mr. Itykert, pubJishtHl by Ortler of the House,
were never published by him, nor with his assent nor connivance, until the Olobt
newspnpor made them public without his authority, in it« Issue of the Hth of KeU-
.r^v
2
ruary laet. Sir Richard Cartwright thereupon made his motion to hand them down
to posterity in the Votes and Proceedings of the House of Commons. I submit that
Sir Richard and the Olobe^ and not Mr. Rykert, are responsible for all the evil con-
sequences of publication. They were privat* ; they were pei-sonal ; the subject-matter
was not within the cognizance of any criminal court, and from beginning to end
there is not even a reference to the House of Commons, its functions or its jurisdio-
tions, or its poswible or probable action, in the matter. I submit, therefore, that you
have no constitutional or legal authority to onqui/e into, or pronounce judgment,
upon Mr. Rykert in this case.
It is apparently assumed that the Canadian House of Commons has been endowed
with authority to enquire into the private busines atfaiig of one of its members, and
if it thinks proper, to expel him ft-om his seat, and thereby deprive his constitiienta
of his voice and i^oto in this House. 1 respectfully dissent from that proposition, for
the f '.lowing among other reasons: —
1. The Parliament of Canada is a new creation. It is not old enough to claim
ancient, customary, or consuetudinary powers or privileges. It has the powers which
are expressly given to to it by Statute, and those also which are necessary for the
preservation of order and the pioper conduct of business. In what section or clause
of the British North America Act is the House of Commons endowed with power to
expel, by the vote of the majority, one of its members? I have not hoen able to find it.
You may say the power of expulsion, for adequate cause, is a necessary incident of
every independent legislative body. I am disposed to assent to that proposition.
But can it be pretended that private letters written out of session, by a lawyer, who
happens to be a member of Parliament, to a client on private professional business,
are adoqiate cause ? I vontui>e to assert that thev are not. I venture to assert that
no precedent can bo found in the ])arliamontary history of England since the Revolu-
tion to warrant expulsion for professional and private correspondence such as thi«.
The boat authority on this subject is Sir Krskine May, and I will take the liberty of
quoting two or three passages from his admirable book on Parliamentary Practice
in Kn^and (pp. 60, (51 of the Edition of 1873) : "No power exercised by the Com-
mons 18 nioio undoubted than that of expelling a member from the House as a
ptinishment for (jrave offences : yet expulsion, though it vacates the seat of a member,
and a new writ is immediately issued, does not create any disability to serve again
in Parliament." After referring to the oases of Wilkes and Walpole, Sir Erskino
May concludes with these words : " But all of these cases can only be regarded as
examples of an excess of their jurisdiction by the Commons; for one House of Parlia-
ment cannot create a disability unknown to the law."
If, therofoio, I were to admit, which I do not, that the Canadian Parliament and
the Canadian House of Commons now have, and may exercise all the powers oUimed
and exercised by the English Parliament and Commons in 1867, 1 would demand
IVom this committee a declaration that no evidence had been produced of any
"offence" cognizable by Parliament, or either House thereof, which had affected or
could affect tho seat of the honorable member.
But, Mr. Chairman, it will be ray duty to point out in this case some Important
distinctions between the English House of Commons, and our Oanadinn House in the
matter of " privilege, immunities and powoi-s." Theirs are to be found in the deci-
sions and precodojits of former rarliamenta ; ouis are conferred by an Act of th«
Imperial Parliament, passed in 1867, as amended by the same authority in 1875.
This amendment was made to remove uorbts as to the power of the Canadian Par-
liametit, even to pass a Statute, to define its " privileges, powers or immunities," The
following is tiie law as it st-inds to-day, and no English precedents from the time of
the Stuarts, or even »ho Georges, will over-ride the letter of this law. The new sec-
tion in the Act of 1875 reads as follows;—
" The PrtviloirOB. immunilioa unil nnwnra tn \w hnld nninvoii nml <>vapn!aa<l K<
nnlQved find BX&V...-.-.^..i -.-.-
the Senate and by the House of ('ommons, and by the members thereof respectively,
shall \w such ns are from time to time defined by Act of Parliament of Canada, but
so that any Act of the Parliament of Canada, defining such privileges, immunltlw
'f
'f
and powere shall not confer any privileges, immunities or powers exceeding those at
the passing of such Act held, enjoyed and exercised by the Commons House of Pac-
liament of the United Kingdom of Great Britain and Ireland, and by the members
thereof.
Now, I submit that this Imperial enactment is, in form and effect, prospective
m Its operation. It declares that the powers, &c., of the House of Commons nhall be
such as are from time to time defined by Act of the Parliament of Canada— not such
as may have been assumed to exist in the past, or such as may have been " defined "
by any former Act. It contemplates the passing of an Act for the purpose of
defining, for it limits these powers and privileges to such as may be held, &c. by
the 'Commons Houne of Parliament" of England. I am not aware that the Cana-
dian Farimment has passed any Act since 1876, '• defining " the powei-s of the House
of Commons, and conferring upon that body the power of expelling a member for
acts or transactions in his profession or business, permissablo in the eye ot the law
and entirely outside of the parliamentary arena. '
As a matter of fact no Act has since been passed by this Parliament defiiiinir the
powers and privileges of the House of Commons. I am told by one authority that
the Revised Statutes of 1886 meet the objection. [ submit that there is no "defini-
tion in the Revised Statutes of ' privileges, immunities and powers to be held " &c
which are not to exceed those held and enjoyed by the English House of Commons'
There is simply a revision or digest of the Act of 1868 (31 Vic, c. 23 s 1)
The section reads as follows: — » • /•
" The Senate and the House of , Commons, respectively, and the membei-s thereof
respectively, shall hold, enjoy ana exercise such and the like privileges, immunities
and powers as, at the time of the passing of ' The British North America Act 18(17 '
were hold, enjoyed and exorcised hy the Commons House of Parliament of the United
Kingdom, and by the members thereof, so far as the same are consistent with and not
repugnant to the said Act (the B. N. A. Act of 1867), and also such privileges, immu-
nities and powers as are from time to time defined by Act of the Partiameiri of Canada
not exceeding those at the time of the passing of such Act held, enjoyed and exercised
by the Commons House ol Parliament of the United Kingdom and by the members
thereof, respectively." (R. S. C. cap. 11, s. 3.)
It is to be observed that this revision, if we are to treat it as a " defining " Act
was passed subsequently to the amendment by the Imperial Parliament of 1875*
and therefore, under the authority and subject to the provisions of that Imperial Act'
1 submit that section 3 of the revision of 1886 is not, and does not assume to bo
?ofr" mu" ?' P'>)J'J1''». P'iviloges, Ac, under the authority of the Imperial Act of
187S. The Act of Parliament "defining " the powers and privileges of the Canadian
House of Commons is yet to bo passed.
IT ^"^^L"™ content to argue this case upon the hypothesis that the Cimadian
House ot Commons has the same power in respect to the expulsion of its membe;s
as those now claimed and exercised ay the English House of Commons.
I submit, then, upon the authority of the latest case, that of James Sadlier, that
a grave ortence," to use the definition of Sir Erskine May, must be charirod and
proved against a member before his seat can be attacked.
In the case of James Satiiier, then member for Tipporary, which is the lateH
precedent supplied to us by the English House of Commons, Mr. EifKgerald then
Attornoy-Genoral loi- Ireland, laid down the rule of procedure in such cases as
tollows:
J iF'V"? ^*" hi^fiv.t) the House pionor evidence of the following facts— that on
the 4th July informations were nworn l.efore a magistrate against Jamos>Sadlier and
that the ottence sworn against him was not felony or a misdemeanor, but that of
conspiring, with his deceased brother, John Sadlier, to cheat and defraud iho public by
means of false representations, &o. They had also this ovideme, that on the 4th
July, in ccmsequonce of thUswoin infoimuiiiin. a wurrun.t ws- i-sufst! air'ssssat Jjinss'-i
Badiier,' Ac. " that bills of indictment were presented against him to the Grand
Jury, and on the ovldonoe of three wllnesses a true bill was found against him, and
'^^tZtnTj:n-l^^^^^ the Jucl,o of A«.ize
Vol. CXLIII ) npp.chcMiHion, &(.." (Sec English Hansard of 1856
Attorney Gonorul among >, ^ t hlnln afZT U Z% ''*"'"'^. !^ ''"^'""^ ^he
any thing before them " '' thit fhrMrn, .A . '"**/he House could not "act upon
affected by election p^titonn dV, md 1 Klf to"/'!;^^ ^««J'«^'^ ^««««t«
once exercised and n mMne ca^.s Li lit . i ^T^ i''*^^"'' "^ "'^ P">«^«r ^hich it
HmitH, and had dccid d ZfinT . ! .^^ Lad conhnod that power within narrow
like legal oSrtr,. T ZeVZ"^^^^^^^^ '"^ ^ «"'^«'* by something
the constitution, the Ifou e S not to fvl l/^ ''^'-'T '''"''' '''•"' ''"^'"fe' ''^'^^-^ ^o
liminary enquiry-without e tWc >.?,.* V'^ a judgment without a proper pro-
tantamount to it " ^ aconfession of guilt or an amountol legil evidence
some
pies
of th
can only exclude or ex, cl t lo n fbi Hom, .1^.? r^^ T ^-n 'i'^"^*^'"' this House
land or tor Hon.o ^V^n,i':^^:\J;:^:;^^^^ «^^"'>'-hed by the law of the
fled from iuHtice. ^ ^'" ^" "PP'^hend him, ho was expelled as having
fled from justice.
Now, there is not
has
Adam
of HC-
<SSiS'.;;"';;r;;r^':n;:?'':;*''"' ^'^ "^■^•!'^^'^ "--^er i„ the present case
ms. l^.rlia,M?>nt I ^ lin' ,; Hf;;;:7i,i^^^^ 1".'^'"^^' '^'"^"-^ '« '"••'' client,
L'^sion. and, as wHlu, I v„ T "^^ '•""l"'*'^'^ t-mvespondenco, out
end, to the act on o I>u- lianu t r f \ ^^ v^ ref,.rence, from beginni, g to
of his seat in he Co mn s i '-1 1 1 ' ''""*•"' '"' '"«»«""*'« '^i' the writcrV ,
constitutional Zi^Trir ''^^1^^''^ J^ P"^«»- '""» " function wiic
eason
h the
constitutional Acts have not assi^; i^ t '^ n ''''''1'' '"" ".^".'"'tion which the
administrationof justicea'cl^rirnl. 1 J\'T'y T' ''•'''' "^'^'<" ""^ <h«
a .ucrely local or ,ri e . Lt. 1 ' 1'''^ I'-'^'nd.aMd ge,.erally»l| mattcrsof
anicrelylocalor'nrivaenatnr i • ''"'"''"'r^
The attcnp to ^talVi ; ' ' "hh^ "'^''^ ""*''« "^' ^'^'^ P"rlian,e„t.
whom we enir, St wi h lU ^ jl' 7::'" '*'" ''?.""^^' ojrrespondence of those
where our general la vV a, n ,, 1^ ' cpiosenting us i„ the national council,
«»re^ave^bol<l, ™;:;,;;;;:::;;:'!;|,:-,|^^ taxes levied and expended. iJ
aiiogl:'';;!:.^!"!!:;;; ^:r ';^.;n:r rs;;:; ^;r K-.r " "-'^^"^'^ --r "• '^"^
ParlinmcPt. Moreover all the I -i ... ! , • V 7 "' "' ''^'^''•'"•' » member of this
I'cfore th.s PaHian.;n; . I '" Vl "'^velv re /h ^^^^^^ ""' •""''^' '"'^•"^'
Hcattered broadcast over his CM.sf tuen. . m.,Vi i •' ' '^ ^"' ,*'l'l'oi>cnts, and
and character, the ei.MM,,," re m , M^^^^ '\'^'' '"" '<".'7UMge of their oxislencn
o.. any fornu.; ..ccas io Ar ' I ave « Wi ll!''"'''' ^'•'' » '"''^r' "'".inrity than
mentary annals furnish us wiil.Vv.- i *V' ''"•"''' "* ^'"""1"? Our parlia-
andMciven^ie^uv tl^:\;:;;:,^^^^^^^^ The expulsions otclriHtie
his persecutors under lm'ou d ' , .. I " ' i> <'Kcn/.ie. lie lived to see most of
tion especially 1 1 u tor Hv ..•'"*' ""''"* T''''''^ ""^ '•*" l''"'liament. Persccu-
would nVver Imv. u.i ';,!,: ^ I! '^ '•"»'"''"">^ "!!'' '"""^•"-^ "'"t •."
those and other ,MVce en s 1 ( . I m i. V'''*"'r' "'' ''.'.•"''^•"' ""'^'''"- '''''>'»
even censure, in the ,rm,nt cZ J ' '"""'■'" '".P'T'"'''. t''«lt expul
.....u.. '."J .l"^«'*c'>\<»'<c, will KChd your victim back to tho-e
V, iiuv ui lu-y HHn.no.i, ImiI mucii greater,
dsion, or
hu'lU with »
16th AprU, 1890.
lengthy HpJijhi"*^ '"""'" """' P'^J^"""' ^^ «''' ^'»''""» Harcourt in „n able and
faIselytlreVod^^hil?Swr?tl l^'^' ^««^- "f« '«**--
comments Hi«r«nn in Ik ^ntten by Mr. Parnell, a member of thin IIouho, and the
(learned n breach of piivilom boc«n»Blh/H..,.. L.T. T ' ' .""K."" "'" *" •»
go by without „,.ki?g 1. ,r;,,bP of !; m^;;r ''°'' ""°"""' ■"" "^ ""■•"' y»»™ '°
the puniHhmont .,f the brtZlu "TnrS^^ opportunity for
(Op,«,mtionohwrMl T,™ L?. •"""'"■"'' 'J' '"'".»" " l«l»"b"o.l ..ml forgery.
L\ \ belie,, f,;rfi,iJlz,;:,;!;; :;;;,',= r?; r;ti,'l:.rri.!!;i:lr„ sr-
iiiem
honor
roach of jtrivik-ire Hhoiild li
O !)!'
'Jlltltlf iliul
" ana ctignity of the lloubo, had thought that this i
pro-
if ihv jliiriorartiu
in hJN jtoal for the
anguage won a breach of
«
Ealebfenteke^'''^^'^^"'' *^^^' '^*'' *''*' ^^^^^ *^*^ "P°° ''^'*'** '*°"*'® ^''°"'''
T^e Attorn^-General moved an amendment in the following terras:—
iQ«u *A •," ^}^^^?^^^ declines to treat the publication in the Time* newspaper of the
.. "^E "A' ^^^^' **^* (fo'ged) letter purporting to have been written by Mr. Par-
nell, and the comments thereon, as a breach of privilege,"
After a vote on the main motion, which was defeated by a majority of forty the
amendment was adopted without a division, the woi-d "forged " being inserted at
the demand of the Opposition.
♦u /SVu "J''®,.'l*®,*r* English precedent I am able to produce. I will merely add
that It the iiUglish House of Commons, after full discussion, has declared that the
procedure for breach of privilege must, in the words of the Attomey-General of
England, be prompt and immediate," and if a delay of three years has just been
solemnly held to be a fatal delay, I submit tliat the Imperial Act of 1876, amend-
ing section 18 of the British North America Act, inhibits you ft-om exceeding that
limit. Mr. Rykert s alleged offence whether you call it a breach of privilegeTor of
the unwritten law of Parliament, occurred more than three years ago; was made
public through the newspapers; discussed and used against him at the noUs. but
has been entirely Ignored by the House of Commons, of which he was and is a
member for a ppriod of more than three years. The unanimous resolve of the
House ofCommons in the Parnell case on 12th February last, shows us that this
attack upon the member for Lincoln and Niagara has been too long postponed
• «