IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 I.I 
 
 1.25 
 
 ^m iiiM 
 
 '- IJM ||j||Z2 
 
 : i^ 1 2.0 
 
 |||||m 
 
 U llil 1.6 
 
 
 
 
 
 A" 
 
 
 
 O 
 
 
 V}, 
 
 m 
 
 
 
 cf-l 
 
 e. 
 
 ew 
 
 0% 
 
 
 
 % 
 
 o 
 
 / 
 
 m 
 
 7 
 
 //a 
 
 Photographic 
 
 Sciences 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, NY 14580 
 
 (716) 877-4iC3 
 
 
 V 
 
 \ 
 
 «^ 
 
 
 V 
 
 ''4^% ' ^"^ 
 
 ^%^ 
 
 ■%■ 
 
 % 
 
 V* 
 
 9> 
 
 W 
 
IpjL^iW- ^'..■r^-vw^—'-rr: 
 
 ■ -J-- — r-jip 3: : 
 
 CIHM/ICMH 
 
 Microfiche 
 
 Series. 
 
 CIHM/ICMH 
 Collection de 
 microfiches. 
 
 Canadian Institute for Historical Microreproductions Institut canadien de microreproductions historiques 
 
 1980 
 
Technical and Bibliographic Notes/Notes techniques et bibliographiques 
 
 The Institute has attempted to obtain the best 
 original copy available for filming. Features of this 
 copy which may be bibliographically unique, 
 which may alter any of the images in the 
 reproduction, or which may significantly change 
 the usual method of filming, are checked below. 
 
 y 
 
 n 
 
 Coloured covers/ 
 Couverture de couleur 
 
 Covers damaged/ 
 Couverture endommagde 
 
 Covers restored and/or laminated/ 
 Couverture restaurde et/ou pelliculde 
 
 D 
 
 n 
 
 D 
 D 
 □ 
 
 D 
 
 D 
 
 Cover title missing/ 
 
 Le titre de couverture manque 
 
 Coloured maps/ 
 
 Cartes gdographiques en couleur 
 
 Coloured ink (i.e. other than blue or black)/ 
 Encre de couleuk (i.e. autre que bleue ou noire) 
 
 Coloured plates and/or illustrations/ 
 Planches et/ou illustrations en couleur 
 
 Bound with other material/ 
 Relid avec d'autres documents 
 
 Tight binding may cause shadows or distortion 
 along interior margin/ 
 
 La reliure serr^e peut causer de I'ombre ou de la 
 distortion le long de la marge int6rieure 
 
 Blank leaves added during restoration may 
 appear within the text. Whenever possible, these 
 have been omitted from filming/ 
 II se peut que certaines pages blanches ajoutdes 
 lors d'une restauration apparaissent dans le texte, 
 mais, lorsque cela 6tait possible, ces pages n'ont 
 pas 6X6 film^es. 
 
 Additional comments:/ 
 Commentaires suppl6mentaires: 
 
 L'Institut a microfilm^ le meilleur 6xertiplaire 
 qu'il lui a 6t6 possible de se procurer. Les details 
 de cet exemplaire qui sont peut-dtre uniques du 
 point de vue bibliographique, qui peuvent modifier 
 une image reproduite, ou qui peuvent exiger une 
 modification dans la methods normale de filmage 
 sont indiqu6s ci-dessous. 
 
 I I Coloured pages/ 
 
 Pages de couleur 
 
 Pages damaged/ 
 Pages endommagies 
 
 Pages restored and/o 
 
 Pages restaur6es et/ou pelliculdes 
 
 Pages discoloured, stained or foxe 
 Pages d6colordes, tachet6es ou piqu^es 
 
 Pages detached/ 
 Pages d^tachdes 
 
 Showthrough/ 
 Transparence 
 
 Quality of prir 
 
 Quality in^gale de I'impression 
 
 Includes supplementary materia 
 Comprend du materiel supplementaire 
 
 Only edition available/ 
 Seule Edition disponible 
 
 I — I Pages damaged/ 
 
 r~7] Pages restored and/or laminated/ 
 
 I — I Pages discoloured, stained or foxed/ 
 
 I — I Pages detached/ 
 
 I I Showthrough/ 
 
 I — I Quality of print varies/ 
 
 I — I Includes supplementary material/ 
 
 I — I Only edition available/ 
 
 D 
 
 Pages wholly or partially obscured by errata 
 slips, tissues, etc., have been refilmed to 
 ensure the best possible image/ 
 Les pages totalement ou partiellement 
 obscurcies par un feuillet d'errata, une pelure, 
 etc., ont 6t6 fllm6es d nouveau de fa^on A 
 obtenir la meilleure image possible. 
 
 y 
 
 This item is filmed at the reduction ratio checked below/ 
 
 Ce document est film6 au taux de reduction indiqu6 ci-dessous. 
 
 10X 
 
 
 
 
 14X 
 
 
 
 
 18X 
 
 
 
 
 22X 
 
 
 
 
 26X 
 
 
 
 
 30X 
 
 
 
 
 
 
 
 
 
 
 
 
 
 J 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 i3y 
 
 
 
 
 1SX 
 
 
 
 
 20X 
 
 
 
 
 24X 
 
 
 
 
 28X 
 
 
 
 
 32X 
 
a 
 
 Stalls 
 8 du 
 lodifier 
 r une 
 Image 
 
 The copy filmed here has been reproduced thanks 
 to the generosity of: 
 
 Library of the Public 
 Archives of Canada 
 
 The images appearing here are the best quality 
 possible considering the condition and legibility 
 of the original copy and in keeping with the 
 filming contract specifications. 
 
 L'exemplaire film6 fut reproduit grdce d la 
 g6n6rosit6 de: 
 
 La bibliothdque des Archives 
 publiques du Canada 
 
 Les images suivantes ont 6t6 reproduites avec le 
 plus grand soin, compte tenu de la condition et 
 de la nettetd de l'exemplaire film6, et en 
 conformity avec les conditions du contrat de 
 filmage. 
 
 Original copies in printed paper covers are filmed 
 beginning with the front cover and ending on 
 the last page with a printed or illustrated impres- 
 sion, or the back cover when appropriate. All 
 other original copies are filmed beginning on the 
 first page with a printed or illustrated impres- 
 sion, and ending on the last page with a printed 
 or illustrated impression. 
 
 BS 
 
 Les exemplaires originaux dont la couverture en 
 papier est imprimde sont filmds en commengant 
 par le premier plat et en terminant soit par la 
 dernidre page qui comporte une empreinte 
 d'impression ou d'illustration, soit par le second 
 plat, selon le cas. Tous les autres exemplaires 
 originaux sont film6s en commen^ant par la 
 premidre page qui comporte une empreinte 
 d'impression ou d'illustration et en terminant par 
 la dernidre page qui comporte une telle 
 empreinte. 
 
 The last recorded frame on each microfiche 
 shall contain the symbol -^ (meaning "COIM- 
 TINUED"), or the symbol V (meaning "END "), 
 whichever applies. 
 
 Maps, plates, charts, etc., may be filmed at 
 different reduction ratios. Those too large to be 
 entirely included in one exposure are filmed 
 beginning in the upper left hand corner, left to 
 right and top to bottom, as many frames as 
 required. The following diagrams illustrate the 
 method: 
 
 Un des symboles suivants apparattra sur la 
 dernidre image de cheque microfiche, selon le 
 cas: le symbole — »> signifie "A SUIVRE". le 
 symbols V signifie "FIN". 
 
 Les cartes, planches, tableaux, etc., peuvent dtre 
 film6s d des taux de reduction diff6rents. 
 Lorsque le document est trop grand pour dtre 
 reproduit en un seul cliche, il est film6 A partir 
 de I'angle supdrieur gauche, de gauche d droite, 
 et de haut en bas, en prenant le nombre 
 d'images ndcessaire. Les diagrammes suivants 
 illustrent la mdthode. 
 
 errata 
 d to 
 
 It 
 
 e pelure, 
 
 ;:on A 
 
 n 
 
 1 
 
 2 
 
 3 
 
 32X 
 
 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
1 
 
THE umM imummm. 
 
 nv 
 
 D. GIROUARD. 
 
 I 
 
 1 
 
 (From La Revue Crifiqne de Leijisl'ition t'( id' Jurisprudence.) 
 
 1 
 J. 
 
'% 
 
 
 B ^ 
 
THE BILL OF OATHS, THE PROROGATION, 
 AND THE ROYAL COMMISSION. 
 
 Preliminary Observations. 
 
 I 
 
 P 
 
 The diHallowaiice of the Oaths Bill, the recent prorogation of 
 the Dominion Parliament, and the issuing of a Royal CommiH- 
 sion to inquire into certain charges relating to what is now com- 
 monly designated the "Pacific Scandal." have given rise to 
 several questions of Law of the very highest importance. 
 
 These questions have been discu3.sed through the medium of 
 the Press of the entire country, and have afforded the occasion 
 for comments of a nature more or less disinterested, passionate, 
 and vehement. 
 
 It is not the mission of ** La Revue Cntiqve " to serve any 
 political party ; its publication was started with the object of 
 pointing out and combating errors and false principles wherever 
 and whenever they were encountered in the domain of Law, and, 
 thus far, its editors have strenuously endeavoured to maintain 
 that object, whether in matters relating to public and international 
 rights or to those involving questions of u more private character. 
 
 An honest and impartial public will not object, perhaps, under 
 existing circumstances, that we should submit for its consider- 
 ation and reflection the result of our labor in the examination of 
 the grave questions of Constitutional Law which have, for some 
 time past, agitated the public mind. 
 
 In order to fully comprehend the subject, it is necessary, in 
 the first place, to refresh the reader's memory with a brief recital 
 of the principal facts which gave rise to this celebrated discussion. 
 
 On the 2nd of April, 1873, the Hon. L. S. Huntington, M.P. 
 moved the following resolution in the House of Commons : — 
 
 " That hf, the said Lucins Seth Huntington, is credibly informi'd 
 and bolievos tliat tie can establish, by satisfactory evidence, tliat in 
 anticipation of the legislation of last session, as to the Pacific Railway , 
 an agreement was made between Sir Hugh Allan, acting for himself 
 and several other Canadian promoters, and G. W. McMullen, acting 
 for certain United States capitalists, whereby the latter agreed to 
 furnish all the funds necessary for the construction of the contem- 
 plated railway, and give the former a certain per centage of interest 
 
in consideration of tlieir inttirt-Ht and po;<ititin ; tlu' Hchome agreed 
 upon being ostonsiliiy tliat of a Canadian ronipany, with Sir Hugh 
 Allan at itn hi^ad. 
 
 "That thi- Government were aware that tiie neyotiatious were pend- 
 ing between the said parties. 
 
 "That sulmetpuntly an nnderstiinding was come to between the 
 Uovennmnt and Sir Hngii Allan and Mr. Abbott, one of the menibors 
 of the lb "Urable the House oi t'oiinnoiis of Canada, that Sir Hugh 
 Allan and his frit^nds should advance a large huiu of money for the 
 purpose of aiding the elections of Mini.sters and their su|>portcr8 at 
 the ensuing general election, and that he and his friends should re- 
 ceive the contract tor the construction of the railway. 
 
 " That accordingly Sir Hugh Allan did advance a large sum of 
 money for tiie purpose mt!ntion(rd, and at the solicitation and under 
 the pressing in.stauce!; of Ministers. 
 
 •'That part of the moneys expended by Sir Hugh Allan in connec- 
 tion witli the obtaining of the Act of Incorporation and Charter were 
 paid to him by the said United States capitalists under the agreement 
 with him. 
 
 •'That a ct)mmittee of seven members be appointed to enquire into 
 all the circumstances connected with tiie negotiations for the con- 
 struction of the Pacific llaihvay with the legislation of la.st session on 
 the suoject, and witli the granting of the charter to Sir Hugh Allan 
 and others, with power to send for persons, papers and records, and 
 with instruction to report in full the evidence taken before, and all 
 proceedings of tlie said committee." 
 
 This resolution was lost by a majority of 85. 
 
 On the 8tli of the same month, Sir John A. McDonald, the 
 Canadian Premier, moved : 
 
 " That a Select' Commitlee of five members (of which Committee 
 the mov ;r shall not be one) be appointed by this llousi- to inquire 
 into, and report upon the several matters contained and stated in a 
 resolution moved on Wednesday, the second day of April instant, by 
 the Honourable 3Ir. Huntington, member for the County of Shefi'ord, 
 relating to the Canadian Pacific Hallway, with power to send for j)er- 
 bons, papers and records, to report from time to time, and to report 
 the evidence from time to time, and if need be, to sit after the pro- 
 rogation of Parliament." 
 
 The last resolution was carried unanimously and was followed 
 by the nomination of a special Committee of the House of Com- 
 mons, which committee was composed of the Hon. A. A. Dorion, 
 the Hon. Edward Blake (two leading members of the Opposition) 
 the Hon. John Hillyard Cameron, Hon. James McDonald, of 
 Pictou, and Hon. G. J. Blanchet, of L^vis — government sup- 
 porters. 
 
8 
 
 The Hon. Henry Starnet*, wlio was supposed to be in posses- 
 sion of important documents relating to the matter, was sum- 
 moned to the Bar of the House, and enjoined not to dispossess 
 himself of the said documents until further instructed. 
 
 On tlie 3d of May following, Parliament passed a Bill which 
 provided : 
 
 " That wluiuvoi- iiny >vitn<;8s or witnosms is or arc to lie cxiiinuu-il 
 by any Conimittcc of tin- Senate nv Honse of Commons, and the 
 Senate or House of Connaons shall have renolvi'd, that it is desirahle 
 that Kiu h witness or witnesses HJiall l>e examined on oath, such wit- 
 ness oi witnesses shiiU he examined upon oath or alHrmatlon, where 
 attirnuitioii is djinwed by liiw." 
 
 On the same day, the Hon. J. H. Cameron moved the foUowintr 
 resolution, which was carried unanimou.sly : 
 
 "Tliut it l.r an instnution ti> the Miid Stlecl Committee to whom 
 WHS referred tlie duty of intiuiry into tiie matten* mentioned in the 
 htatemeut of the Honoinable Mr. Huntinjiton relating,' totiie Canadian 
 raeitie Ilaiiwiiy, that the saiil Committ('e shall examine the witness's 
 hrought hofori' it upon oatii." 
 
 On the 25th of May the House adjourned to the 13th of 
 Auj?;ust, to receive j)w forma the report of the Committee and 
 prorogue Parliament. 
 
 A copy of the Oaths Bill was immediately transmitted to Her 
 Majesty the Queen by the Governor General. The Bill was dis. 
 allowed, a notice of which disallowance was published in an extra 
 of the Canadu Gt(-ettc on the 1st of July. 
 
 On the 2nd of July the Committee of Enquiry met at Mon- 
 treal ; but in consequence of the disallowance of the Oaths Bill 
 the Committee adjourned to the 13th of August with the inten- 
 tion of asking for further instructions from the Hou.se, Messrs. 
 Dorioii and Blake, however, being of opinion that the Committee 
 should proceed with the investigation without administering the 
 oath to witnesses. They also refused to accept a Royal Com- 
 mi.'^^ion oflered them by Sir John A.. McDonald. 
 
 On the 4th of July, the Montreal Ilemid — the acknowledged 
 organ of the Opposition at Montreal — published a number of 
 documents purporting to be, as alleged, " copies of some of the 
 papers which were impounded by the Special Committee of En- 
 quiry in the hands of Mr. Starnes." The publication of these 
 documents afforded an opportunity to the Press of arraigning 
 Ministers and others inculpated in the scandal before the bar of 
 public opinion. This exposi drew forth statements from Sir Hugh 
 Allan, Mr. McMullen and others. 
 
On tlio 1 3th of Auj^'UHt, the House of Comnions and Senate re- 
 a88enibled at Ottawa, a uuuiber of members of both houses being 
 present. Mr. McKenzie, the loader of the Opposition, had just 
 commenced to address the Speaker d the House of Commons, 
 when the Usher of the IJlMck Rod suddenly appeared and sum- 
 moned the members of the House to attend in the Senate for the 
 purpose of proroguing Piirliameiit. 
 
 lu compliance with this summons, those members of the House 
 who usually supported the Government, repaired at once to the 
 Senate Chamber, and, iustnnter, the Governor General delivered 
 his Address from the Throne, and prorogued Parliament, in 
 spite of the numerous petitions which had previously been pre- 
 sented from various parts of the Dominion, and of the protest 
 also of ninety-six Members of the House, eighty of whom, in- 
 stead of turning to the right, in the direction of the Senate 
 Chamber, proceeded to the Railway Committee Room and held 
 an indignation meeting. 
 
 In the course of his Speech from the Throne, His Excellency 
 «aid: "I have thought it expedient, in the interests of good 
 "government, to order that a Commission should be issued to 
 
 n 
 
 enquire into certain matters connected with the Canadian 
 "Pacitic Railway, to which the public attention has been directed; 
 "and the evidence should before such commission be taken on 
 "oath. The Commif-sioners shall be instructed to proceed with 
 "the enquiry with all diligence, and to transmit their Report as 
 "well to the Speakers of the Senate and House of Commons as to 
 " myself. Immediately on receipt of the Report, I shall cause 
 " Parliament to be summoned for despatch of business, to give 
 " you an early opportunity of taking such Report into cousider- 
 " ation. Meanwhile, I bid you farewell." 
 
 On the 14th of August, a Royal Commission was issued by 
 Her Majesty the Queen to the Honorable Messrs. Day and 
 Polette — two Judges of the Superior Court in the Province of 
 Quebec — and to J. R. Gowan, Esq. one of the County Judges in 
 the Province of Ontario — in which after relating the foregoing 
 facts, and referring more particularly to the charges made by the 
 Hon. Mr. Huntington, the Commission adds : 
 
 "And whereas, it is in the intBrests of the good government of Canada 
 not only tiiat full inquiry should be made into the stveral matters 
 contftiucd and stated in the said al)ovc recited resolution of thy 8th 
 day of April aforesaid, but that the evidence to be taken on such 
 
inquiry hIioiiIiI Vto tiikiti «»u mUh, in the iimiitivr iufHiribtd by the 
 Hftid niHolntion of t\ui third ility of May afonnrticl, iiiitl the Uovernor- 
 (k'ncral iti Council han <lc»'nK<l It expedient wmli iiupifry hlioiild bo 
 made. 
 
 "A'oic knoici/f, that under and by virtut- and in purmiancf of tlic Act 
 of th« Purliauient of CunH(bi, nmdc and paKHcd in tho tliirty-tirHt ytai of 
 oiir riiKH, intitult:d "An Act rfHioctin^ inquiry into public niatti-rs," 
 and of an ordir of tho (Jovfrnor in Council, ma«l" on this thirteenth 
 day of August, in tlic year of otu Lord one thousand eight hundred 
 and Hcventy-tline, we, npoHing special truHt and confidence in the 
 loyalty and fidelity of you, the said (Miarles Dewey Day, Antoine 
 I'oktte and Jhuu-h Robert (h)wan, have constituted and appointed you 
 to be our ComniiHsioucrH for the p^npose of making such incjuiry as 
 afuresaid, of wlioni you, tin- naid (Miarles Dewey Day, «hitll be cjiair- 
 man. And we do authori/.e and require you, as sucli OonimisHioners, 
 with all convenient despatch, and by and with all lawful ways and 
 ijuans, to enter upon kip li inquiry, and to collect evidence and to 
 summon before you any parties or witnesses, anri to recjuire them to 
 give evidence upon oath or on soh^nin attirmation, if they be parties 
 entitlt (I to alKrm iu civil mattifrs, and to produce such documents 
 and tilings as you may deem requisite to tho full investigation, and 
 report of the matters and statements as aforesaid. And we do hereby 
 order and direct that the sittings of you, the said ( •omniissioners, 
 nnder this our Royal Commission, shall be hold at the City of Ottawa, 
 in our Dominion of Canada. 
 
 "And we do reiiuiro you to connaunicate to us throuijli our Secretary 
 of iState of Canada, and also to the Honourable, the Speaker of the 
 Hoiiije of (-ommniis of Canada as well, the said evidence as well as 
 any oj)inions which you may th'-ik lit to express thereupon. And wo 
 do strictly charge and command all our officers and all our faithful 
 snbjects, and all others, that in their several places, and according to 
 their respective powers and opportunities, they be aiding to you in 
 the execution of this our Commission." 
 
 The Commission is .signed: "John A. McDonald, Attoiuey- 
 General of Canada," "J. C. Aikens, Secretary of State," and 
 was published in the Canada (razetti- on the 23d of August. 
 
 The Commissioners are to meet at Ottawa, on the 4tli of Sep 
 tember; and, on the 21st of August the Hon. Mr. Huntington 
 was requested to supply them " with all convenient diligence, a 
 list of witnesses whom he may wish to examine ;'' and further he 
 Was " requested then and there to proceed with his evidence in 
 the premises." 
 
 In reply, on the 26th of August, the Honi Mr. Huntington 
 declined to acknowledge the jurisdiction of this tribunal, alleging 
 among other reasons, the following : ' 
 
G 
 
 " 1 feel thftt I should do no act whirli may hv ( onstiut-d into an 
 Kcqtiifwonci) in tho Kttumpt t«» romovo from tin- Ci.mmonH the con- 
 duct and control of the cnqtiiry. 
 
 '•I liflicvf tiiiit tilt' (iviit ion (if till' ('oiiiiniHxioii iuMilvcK a bri-Hi li 
 of that fuiidtuucutJil iiiint.i|)io ot llif < ouHlitution which prfneivfti to 
 tiitf Commons thu iiKht and duty ol initiating ami lontrolling i-n- 
 quirU'M '» high jiolitical oHV-inus; that it iiiviilvts also a linat h of 
 that funi. .mental luinciplf of justice which previ iiIm th- accused from 
 creatiuR the tribunal and control I inj: the proicdiire i r their trial; 
 that it \H a CnmuiisHJon without precedent, unknown to the Common 
 law, uusancliontd l»y the Statute law, providinjf \>y an cxenise of the 
 prerogative for an enijuiry out of the onliuary course of justice into 
 misd( nicanorx cogni/jUile i>y liic Courts, and conmieuently illegal and 
 void." 
 
 This statement of facts suggests tlireo loading topics for our 
 consideration : — 
 
 l><t. The Disallowance of the Uatlus Bill, 
 
 2nd. Tho Prorogation of Parliament, and 
 
 3rd. The issuing of a Royal Commission. 
 Before entering, however, upon the consideration of these ques- 
 tions, we cannot refrain from recording our condemnation of the 
 course pursued by all concerned in the publication oi' the im- 
 pounded documents plucod in charge of the Hon. Mr. Starnes. 
 Such conduct, in our oi>iuion, is not only highly reprehensible, 
 but is derogatory to all Parliamentary usage. 
 
 Those documents were deemed to be in possession of the House 
 when they were impounded, although not yet read ; and one of 
 the elementary principles of Constitutional Law, is, that no per- 
 son, without violating a Parliamentary privilege (that of secrecy 
 being sometimes of tlie highest importance) can publish copies of 
 any of its private documents, lest by so doing, prosecutions of 
 accused parties should be removed from the tribunal of the Com- 
 mons, or of its Committees, to that of public opinion. 
 
 Such overturning of jurisdiction is all the more to be regretted in 
 the present instance, considering the gravity of the charges made 
 — charges which seriously compromise not only the honor of a 
 number of our fellow-citizens but also the honor of the country 
 in general. Nothing less than the verdict of a competent tribunal 
 could justify the publication of the documents in question. 
 
 We will now pass on to the consideration of the three points of 
 law indicated ubuve. 
 

^wmmm^ 
 
 I. The Disallowance of the Oaths Bill. 
 
 Section 50 of the British North Amorica Act, 1867, declares that 
 
 " When the Governor General assents to a Bill in the Queen's 
 " uuiue, he shall, by the first convenient opportunity, send an au- 
 '' tlxentic copy of the Act to some one of Her Majesty's principal 
 " Secretaries -if State, and if the Queen in Council, within two 
 " years after receipt thereof by the Secretary of State, thinks fit 
 "to disallow the Act, such disallowaTice (with a certificate of the 
 " Secretary of State of the day on whicli the Act was received by 
 "him) being signified by the Governor General by speech or 
 " message to the House of Parliament, or by Proclamation, shall 
 "annul the Act from and after the day of such signification." 
 
 One cannot believe — if it be permitted to say so <m ptissant — 
 that so dangerous a Royal prerogative exists in our Constitution 
 Such a power places all legislation, whether I'^oderal or Provincial, 
 / conipletely at the mercy of the Colonial Ofiice, or that of its re-^ 
 presentatives in Canada. 
 
 Canadians are said to enjoy sovereign power as to the regu- 
 lation of their own internal aff'airs. This may be true; but 
 they do not enjoy that power in virtue of the superiority of their 
 political institutioDfi, but by Her Majesty's good will. 
 
 Again, if it be said that the veto power was reserved in order to 
 guard against legislation having a tendency to violate any prin- 
 ciple of public or general interest, its introduction into our Con- 
 stitution might be excused. But the recollection of the passing 
 of the New Brunswick Education Bill (which violates the great 
 principles of liberty of worship and liberty of instruction) a Bill 
 which the Federal Government refused to disallow — is yet too 
 fresh in our memory to permit us to believe for a single moment 
 that Imperial Legislators had any such object in view. Did not 
 our Government authorities, on that memorable occasion, publicly 
 declare that the Veto power had been introduced into the 
 Federal system by which we are ruled, to assure the Con- 
 stitutionality of the the laws ? But is it not in the power of Her 
 Majesty's Privy Council to declare a law to be unconstitutional, 
 notwithstanding its being within the limits of the Constitution ? 
 Besides, in virtue of what principle of English public law does 
 the Privy Council possess authority to interpret laws? Then, 
 again, ever since 1867, the ordinary tribunals of the confederated 
 
8 
 
 Provinces have frequently pronounced upon the constitutionality 
 of our laws ; and, strange to say not one of these laws has ever 
 been disallowed ! This proves clearly that noithcr the Federal 
 nor Imperial Executives are the guardians of the Constitution 
 of this country. Be that as it may, the Veto power is undeniable ; 
 it exists in our Statute Book ; and it is to be hoped that it uiay 
 not be abused in the future any more tlian it hns been in the 
 past — more particularly with reference to the case now under 
 consideration. 
 
 The Governor General has been reproached by some persons 
 as having shown extraordinary haste in transmitting a copy of 
 the Oaths Bill to England. The Governor General was bound 
 by the Constitution to act as he did; His Excellency doubtless 
 felt convinced that the Bill in question was unconstitutional, his 
 Prime Minister having moreover so pronounced it on the floor of 
 the House when it was being passed. 
 
 The 18th section of the Act of 1867 provides tiiat 
 
 *' The privileges, immunities and powers to be held, enjoyed 
 " and exercised by the Senate, and by the House of Commons, 
 " and by the members thereof, respectively, shall be such as are 
 "from time to time defined by Act of Parliament of Canada, 
 *' but so that the same shall never exceed those at the passing of 
 " this Act held, enjoyed and exercised by the Commons House 
 "of Parliament of the United Kingdom of Great Britain and 
 " Ireland and by the members thereof." 
 
 Now, in 1867, the British House of Commons had not the 
 power to administer an oath to witnesses summoned to appear 
 before it or its Committees — with the exception of such as were 
 authorized by statute to examine into contested elections. 
 
 It was only by a statute en:icted posterior to 1867 that the 
 English House of Commons was authori.sed to exact an oath 
 from witnesses called to the Bar of the Hou-se, or to appear 
 before its Committees, whereas, the House of Lords has exercised 
 that power from time immemorial. Commentators have failed, 
 as yet, to account for this incomprehensible distinction. Hatsell 
 II. 158; Pari. Reg. XIII. 324; May 306, 312, Cushing (No. 
 966) on this subject, observes : " The House of Commons has 
 "not, at any period, claimed, much less exercised, the right of 
 "administering; an oath to witne8,ses." 
 
 It has been stated that the Canadian House of Commons was 
 competent to swear witnes.ses .summoned to appear before it, by 
 
9 
 
 the intervention of Members who might also be Justices of the 
 Peace. 
 
 History informs us that during the 18th century the English 
 House of Commons, feeling its weakness in this respect, had re- 
 course to this expedient — "a practice," says May (page 313) — 
 " manifestly irregular, if not illegal." In fact, such a proceed- 
 ing was positively illegal, seeing that the oath in such a case would 
 be administered in a matter which did not come within the juris- 
 diction of a Justice of the Peace. May also adds, (page 314) 
 "that since 1757 the most important enquiries have been con - 
 "ducted without any attempt to revive so anomalous and ques- 
 tionable a practice." 
 
 Haisell II. 160; €ushing p. 380, No. 858. 
 It is evident that the Canadian Commons could not confer 
 upon a Committee of Enquiry a power which it did not itself 
 possess; neither could it call upon Parliament to adopt a Bill 
 which, like the Oatlis Bill, was intended to grant privileges which 
 did not exist in the English Connuons in 1867. The Oaths 
 Bill pas.sed by the Canadian Parliament is therefore clearly un- 
 constitutional, null and void. 
 
 It is to be hoped that the Canadian Government will devise 
 and adopt necessary means, without dehiy. whereby our Consti- 
 tution may be modified in this respect. 
 
 The laws of Great Britain, civil and criminal, deem an oath 
 as an essential condition in the research of truth. 
 
 For more than half a century the guarantee of an oath in 
 Parliamentary investigations has been fully recognised in the 
 United States. 
 
 The Imperial Parliament itself has proclaimed this truth, by 
 the Oaths Bill passed for the English House of Commons. 
 
 The Canadian Parliament has imitated Great Britain by pass- 
 ing the Oaths Bill which has been disallowed. 
 
 What more is wanted to induce the Imperial Authorities to 
 fill up, without delay, the fatal gap which has been found to ex- 
 ist in our Constitution. 
 
 II. — The Prorogation. 
 
 Legally speaking, there can be no doubt that the Governor- 
 General has the power of proroguing the Parliament of Canada 
 at any time — even while a member may be addressing the House. 
 
 "A prorogation," says Blackstone (lib. 1, am. ed. vol. 1, page 
 
 B 
 
10 
 
 T 
 
 144) " is done by Royal iiuthority. Both Houses are ucccssurily 
 "prorogued at the same time." 
 
 " It seems clear," says Chitty, (Prerogatives of the Crown, p. 
 71) "notwithstanding the opinion of Lord Coke to the contrary, 
 " that a prorotiatioi) of one House necessarily and tacitly operates 
 " as a prorogation of the other. This prorogation may be le- 
 " gaily made, even at the return of the writ, and before the 
 " meeting of Parliament. Thus the Parliament, after the general 
 " election in the year 1790, was prorogued twice by writ before 
 " it met ; and the iirst Parliament in this reign was prorogued 
 '•four times by four writs of Prorogation." 
 
 In 1719 the following question was put to an eminent English 
 lawyer : " Whether an Assembly nndcr adjournment or proroga- 
 tion may be prorogued without a meeting, according to such 
 previous adjournment or prorogation ? " to which he replied " I 
 am clearly of opinion that it may." — Clialmers Col. Op. vol. 1, 
 p. 232. 
 
 Mr. Todd, the distiniiuished Librarian of our Canadian Par- 
 iiament, in a work of no small merit, just published on the 
 " Parliamentary Government in England," vol. 1, p. 246, also 
 observes that " the deliberations of Parliament may be cut short 
 " at any moment, by the exercise of the Royal power of Proro- 
 "gation." 
 
 This Roynl prerogative is as ancient as the British Constitu- 
 tion. In the 17th century, Parliamoot was twice dissolved by 
 James the First and Charles the First, before the House had 
 time to pass a single Bill. In 1679 Charles the Second suddenly 
 prorogued the House in order to avoid an encjuiry which would 
 have revealed the secret of a dishonorable alliance into which he 
 had entered with a foreign power. In the same year, seeing that 
 the House of Commons would not abandon the Exclusion Bill, 
 this same Sovereign proceeded to the House of Lords, and with- 
 out even consulting his Cabinet, prorogued the Parliament. lu 
 1685, James the Second clo.sed Parliament, in order to screen a 
 devoted favorite from disgrace. And at a still later period. King 
 William acted in a similar manner without even delivering the 
 Speech from the Throne. 
 
 Without approving the modes of procedure noted in the 
 foregoing instances, to which several others might be added, some 
 of which betrayed an abuse of authority of the most revolting 
 character — they nevertheless prove that, in England the prorogu 
 

 11 -» 
 
 ing power dwells in the will of the sovereign, whether it be 
 arbitrary, unjust, or opposed to the will of both Houses of Par- 
 liament. 
 
 This prerogative, being deemed inherent in the Constitution, 
 the House of Commons, in 1858, rejected an Address to Her 
 Majesty praying that Parliament might be called together in the 
 autumn of each year, so that its prorogation would be assured in 
 the early part of the following summer. 
 
 The Governor of a British Colony, as representing Her Majesty, 
 certainly has the power of proroguing and dissolving its Legisla- 
 ture — an opinion held by all writers on Colonial Law — (Clark 
 Colonial Law, p. 30; Chitty, 34; Chalmers, vol. 1, p. 232). 
 The same view is explicitly contuined in the Statutes of Canada 
 (C. S. C. ch. 3, sec. 2; Brit. North America Act, 1867, sec. 12). 
 The 31st Vict. ch. 22, 18G8, also provides that nothing contained 
 in the above x\ct, "shall alter or abridge the power of the Crown 
 to prorogue or dissolve the Parliament of Canada." 
 
 The exercise of this mighty prerogative is not peculiar to Eng- 
 lish law. In France, and over the entire Continent, the prorogu- 
 ing power is, generally, the exclusive privilege of the ruler of the 
 nation. The French Constitutional Charter of 1814, Art. 50, 
 says: " Le Ilo; convoque chaque annde les deux chambres ; il 
 les proroge et pent dis.xoudre celle des deput(5s." The Constitu- 
 tion of the Republic of 1848, Art. 46, declares : " Le Pr(5sident 
 de la Republiquc convoque, ajourne, proroge et dissout le corps 
 Idgislatif " Under the Empire a decree from the Emperor pro- 
 claimed the close of the session. 
 
 Jjike all Royal prerogatives, the power to prorogue Parliament 
 is absolute. "In the exertion of lawful prerogative," — says 
 Blackstone, (lib. 1. c. T, Am. ed. 1849, vol. 1, p. 187)— " the 
 •' King is, and ought to be, absolute ; that is, so far absolute 
 " that no legal authority can either delay or resist him." 
 
 The efl'ect of a prorogation is to make void all ponding pn;ceed- 
 ings. "Every Bill" says May, p. 43, "must be renewed after 
 "a prorogation as if it had never been introduced, though the 
 "prorogation be for no more than a day." — (See also May's Con- 
 stitutional History of England, vol. 2, p. 390, note 3. Am. ed. 
 1871.) 
 
 Todd, vol. 1, p. 246, says: "The prorogation quashes all 
 proceedings pending at the time, except impeachments by the 
 Commons, Writs of Error and Appeals before the House of 
 
 I 
 
i\ 
 
 12 
 
 Lords, and trials in proj:;rcss before Election Committees. By a 
 prorogation, all resolutions, bills and otber proceedings pending 
 in either House are naturally terminated, and cease to have any 
 further eflect, except in so far as they may be continued in 
 operatitm under tlic authority of an Act of Parliament." 
 
 Writers who have commented on the British Con.stitution) 
 chvim that it is the balance in which is preserved the just equi- 
 librium of the three branches of the Legislature — the Commons, 
 Lords, and Executive — that is, the People, the Nobility and the 
 Sovereign. But may it not be said that the power possessed by 
 the Sovereign is i'ar greater than that held by the two Houses ? 
 If the Sovereign cannot alter the laws of the Kingdom, he can 
 prevent the people from altering them by the exercise of his veto; 
 he may cut short the deliberations of the nation.il A.«sembly, and 
 even prevent all legislation by the exercise of his proroguing 
 power. 
 
 Story states that the power of prorogation exercised by the 
 Crown in the American Colonies, previous to the Declaration of 
 Independence, was cruelly felt by the population. '• Under the 
 Colonial Government, he says (Const, of V. S., § 424) "the 
 "■ undue exercise of the same power by the Royal Governors, con- 
 " stituted a great public grievance, and was one of the numerous 
 *' causes of misrule upon which tlie Declaration of Independence 
 "■ strenuously relied. It was there solemnly charged against the 
 " King that he dissolved representative bodies for opposing his 
 " invasions of the rights of the people; and, after such dissolution, 
 " he had refused to re-assemble them for a long period of time." 
 
 It is true that a similar act of tyranny may not practically 
 be exercised upon any portion of the British Empire ; but does 
 it not suffice that it is still possible under the Constitution to 
 amend the same ? 
 
 Long since, Acts of Parliament have limited the exercise 
 of the perogative alluded to. Parliament should be called 
 together, at least once a year ; but the length of each Session de- 
 pends upon the will of the Sovereign ; that is, in theory, the Sov- 
 ereign may prevent the re- assembling of Parliament for the real 
 and actual despatch of business. 
 
 Why may not Englishmen — who are as jealous of political 
 liberties as any nation on the face of the globe — follow the ex- 
 ample of the American people, and decree that prorogiftion 
 shall be exercised through both Houses of Parliament, and that, 
 injthc event of disagreement, the preponderating voice of the Sov- 
 
 ! 
 
13 
 
 ereign shall decide ? Such a mode of proccedurt would prove 
 even less dauirerou.s to the Executive of Greiit Britain or of 
 Canada, than to thit of the United States, as the House of Ijords 
 and Senate of Ctmuda are created by the Crown itself, and are 
 not elected by the people. 
 
 Because the Grovernor-Geticral, in proroiruing Parliament, con- 
 fined himself within the limits of his powers, is it to be con- 
 cluded that i.j acted iu a constitutional manner ? No. He is 
 further required to exercise the lloyal prero^'ativo in a constitu- 
 tional manner, that is, for the public good. Blackstoue lib. 1 , ch. 
 7, Am. ed., vol. 1, p. 188, says: " In the exertion, therefore, of 
 " those prerogatives which the law has given, the King is irresis- 
 *' tiblc and absolute, according to the forms of the Constitution ; 
 "and yet, if the consequence nj" that exertion be unmifestly to 
 "the grievance or dishonor of tlie Kingdom, the Parliament will 
 "call his advisers to a just and severe account. For prerogatioc 
 ^'conmsting — as Mr. Locke has well defined it — in the discretion- 
 ^' an/ power of acting for the pithlic good, n'here the positive 
 ^^laivs are silent, if that discretiomiri/ power be ahtiscd to the 
 "public detriment, such prerogative is exercised in an unconstitu- 
 "■tional manner." See also Bacon's Abrid. Vo. Prerogative. 
 
 The real point at issue, therefore, is whether in the exercise ot 
 the prerogative of Prorogation, the Governor-General has acted 
 for the public good ? The prorogation took place without con- 
 sulting the House of Commons, nearly one-half of whose mem- 
 bers (96 out of 200, p sent or absent) were utterly opposed to 
 any kind of adjournuieut: it set aside Sir John A. McDonald's 
 resolution, as well as that of the Hon. L. S. Huntington; it dis- 
 solved the Committee of Enquiry, which was entrusted with an 
 investifatio]! into the gravest chartres ever made against Minis- 
 ters ; it cancelled the order of the House of Commons enjoinmg 
 upon the Hon. Mr. Starnes not to dispossess himself of certain 
 documents placed in his keeping : it may delay a full investiga- 
 tion into matters highly affecting the dignity of the Crown, the 
 honor of many subjects and the material welfare of the nation. 
 The House of Commons, or both Houses of Parliament, are the 
 only authorities to demand the just and severe account alluded 
 to by Blackstone, and to determine whether the effects of the 
 prorogation tend to the good of the country. These important 
 results involve a mere question of fact, the discussion of which, 
 however interesting to political parties, would be out of place in 
 a law review. 
 
14 
 
 III. — The Koyal Commission. 
 
 In order to form a correct opinion as to the efficiency of the 
 two modcH of enquiry unr*er conHiderution, i.e., the Parliamentary 
 cnciuiry, and the enquiry by lloyal Commission, the rouder 
 should glance at their respective privileges, powers and attributes. 
 1st. At a Parliamentary enquiry, the Houho of Commonrt, or 
 its Committees, enjoy the utmoHt latitude, whether as to the 
 subject matter or form of the questions put to witnesses ; their 
 investigations ;ire in no wise restricted to matters specified in 
 the Resolution appointing them. Cu.^hiug, H84 ; Hans, (2) ix, 
 493. 
 
 On the contrary, an enquiry by Koyal Commission is limited 
 to the subjects therein expressed. 
 
 In the course of an enquiry concerning the Duke of York, 
 Mr. Whitbread stiites that " the Committee were not fettered by 
 settled foims or principles of evidence as was the case in the 
 courts below. If once such a limit was imposed upon the in- 
 vestigations of the House of Commons, there was an end to the 
 inquisitorial power of Parliament " And 8ir Samuel llomilly 
 said : " Tlie object was very different from that of Courts of 
 Justice, and therefore the House could not be bound by the 
 Siime ties." 
 
 Speaking of Royal Commissions, Todd says, vol. 2, p. 349, 
 " The Sovereign, by a Commission issued under the sign manual, 
 or by patent under the great seal, authorizes certain persons 
 therein named, to enquire into a upecijied subject, and report to 
 the Crown thereon."' 
 
 2nd. In an enquiry before the House of Commons, a witness 
 cannot refuse to answer under the pretence of rendering himself 
 liable to penalty or to criminal pro.seoution, or under any other 
 pretence what.soever. Cushing, 389. 
 
 In the exercise of this immense privilege, the House may re- 
 sort to imprisonment of the unwilling witness during tlie term 
 of its session. Cushing, 390. 
 
 On the contrary, by 3l8t Vict. ch. 38 (1868), sec. 2, '• No 
 party or witness shall be compelled to answer any question, by 
 his answer to which he might render himself liable to a criminal 
 prosecution." 
 
 3rd. Witnesses summoned before the House of Commons are 
 protected against the consequences of the disclosures which they 
 
1ft 
 
 make in their evidence. CuHhinjr observeH on this subject, p. 
 397 : " While the law of Parliament thus (Kjinands the dl^^elo«ure 
 of the evidence, it reeo'j;nizo8 to the fullewt extent the principle 
 upon which the witnesH is exeuwd from niakinj:; nuch disoloHure 
 in the ordinary Courts of Justice, and protects hiui against the 
 consequences ^''hicli :night otherwiHe result from his testimony ; 
 the rule of Pnrliament being, that no evidence given in either 
 House can 1> • used agains , the witness in any other place, with- 
 out the pcrmisfiion of tlM> House, which is never granted, pro- 
 vidfd the witness testifies truly." Hans (2) xviii, J)()R-974. 
 
 Witnesses summoned before a Royal Commission enjoy no 
 more protection than that afforded to witnesses giving evidence 
 before the ordinary tribunals. 
 
 4th. The sittings of the Commons, or of its Committees, are 
 generally open to the public, and when they are not, the parties 
 interested are allowed to be present. Royal CommissionerH 
 have the absolute power of regulating the proceedings of their 
 own tribunal, and of admitting or excluding what persons they 
 please from attendance during tlieir sittings. Todd, vol. 2, p. 
 355. 
 
 5th. Finally, a Parliamentary enquiry is not conducted under 
 oath, while that before a Royal Commission is. 
 
 The first clause of the 3lst Vict. c. 38, declares that " The 
 Governor may, by the Commission in the case, confer upon the 
 Commissioners or persons by whom such eu(|uiry is to be con- 
 ducted, the power of summoning before them any party or wit- 
 nesses, and of requiring them to give evidence on oath, orally or 
 in writing, (or on solemn affirmation, if they be parties entitled 
 toaifirm in civil matters), and to produce such documents and 
 things as such Commissioners deem requisite to the full investi- 
 gation of the matters into which they are appointed to examine. 
 
 •' 2. The Conimis.sionor or Commissioners shall then have the 
 same power to enforce the attendance of such witnesses, and to 
 compel them to give evidence, as is vested in any Court of Law 
 in civil cases ; and any wilfully false statement made by any 
 such witness on oath or solemn affirmation, shall be a misde- 
 meanor, punishable in the same manner us wilful and corrupt 
 perjury." 
 
 It is evident that both modes of investigation — separately or 
 collectively taken — are imperfect, seeing that they fail to secure 
 with any certainty, full and complete enquiry. It is true the 
 
IG 
 
 House of ConimonB poBsesgeH extraordinary powers ; but it lacks 
 the most essontial condition in the resourcli after truth, namely, 
 the Hunctiou oi' un uuth. 
 
 If witnuhHt's Humnioiicd before the House or its ConimitteoM 
 were subject to the pains ;ind penuitiex attaching to the crime of 
 perjury (as in the case now in England) — having no claim to 
 privileges of any kind whatever, the HyHtem of inveMtigation 
 might ho coiinidered ptn-fect ; but the known perversity of the 
 human heart, and the difficuitie.s experienced in attempting to 
 elicit truth from the mouth of witiiCMseH in ordinary Courts of 
 Justice, iu the daily affairs of life, should convince any one 
 that an enquiry conducted without the administration of an oath 
 — especially in regard to political offences, where political pas- 
 sions predominate over all other considerations — will never educe 
 evidiiice of a conelusivt! character. 
 
 Meanwhile, tintil our C(*nHtituti()n is amended in this respect, 
 it becomes not merely a propom, but an urgent necessity, in any 
 enquiry affecting the public interests, to resort to a Royal Com- 
 mission, as un aid to, or completing link in, the Parliamentary 
 investigation. 
 
 From this point of view, then, a Royal Coujmission may be 
 considered ol'un(juestionablo advantage, even though it be deemed 
 unconstitutional ; for a witness, in most cases, would prefer to take 
 the oath and answer any (juestion put to him, rather than test 
 the constitutionality of the Commission, in the one case, or risk 
 the consequences of a judgment ol' public opinion in the other. 
 
 Before concluding this article, there remains only to consider 
 such cases as would justify the issuing of a Royal Commission. 
 
 It has been objected that the Ro}'al Commission is unconstitu- 
 tional, bi'cause the Hon. Judge Polette, one of the Judges '^fthe 
 Superior Court of the Province of Quebec, and holding that office, 
 is one of the Commissioners. 
 
 In support of this objection, the 8th clause of the 78th chapter 
 of the Consolidated Statues of Lower Canada is cited, which for. 
 bids (justly) any judge of the said Superior Court " to hold any 
 '■^ place of prof t under the Crown so long us he shall be a Judge." 
 But the position of Royal Commissioner is not essentially " a place 
 of profit " — on the contrary it is usually a gratuitous office. 
 
 The most that can be exacted under this Statute, therefore, 
 is, that Judge Polette shall exerci.se the office of Commissioner 
 gratuitously. 
 
1 
 
 17 
 
 It ifl also alleged that tho Royal ConiiiiiioHion violaton a groat j 
 
 principle in the Bill of Uijihts of 1089, to wit: ''That freedom 
 of H[)eecli and the dubatOM and procucdingH in I'urliauient ought 
 not to bo impeached or questioned in any Court or place out of 
 Parliament." ThiH privilege of either Houho hiiH boen recognized 
 by legal authoritioH, in many instances, of which llalhun gives a 
 Hummiiry in his Parliamentaiy Hi«tory of Kngland. But it 
 
 cannot be Morionsly maintuined tliiit this maxim of Constitutional i 
 
 Law embraces anything more than full and entire protection of 
 Members of Parliament Jigaiiist all civil or criminal prosecutions 
 on account of their acts on the floor of either House. 
 
 This immunity has never had the effect of preventing the 
 Crown from instituting encjuiry— whether the mutters to be en- 
 (juired into had been discnssod in Parliament or not. Kur 
 instance, could the assertion be maintaii^ed for a moment, that 
 tho (iovernor (leueral could not issue a Royal Commission to en- 
 quire into the administration of justice in Lower Canada, because 
 
 the Hon. Mr. Dorion had attacked the Bent-h on the floor of the i 
 
 House? The debates and proceedings of the House of Commons, , 
 
 it is said, cannot be questioned in any way, out of Parliament. 
 Then the House of Commons would over-ride the law — would be 
 supreme over the British Constitution by which we are ruled. 
 
 Have not tlie tribunals of the Mother Country, as ivell as those i 
 
 of the Colonies, time and again, maintained a contrary opinion — I 
 
 even claimitig their right to decide upon the existence of their 
 
 privileges? — Stoekdale rs. Hansard, 7 A. & E. 1 ; Dill v. Mur- | 
 
 phy, 1 Moore N. 8. 487 ; Kielly vs. Carson, 4 Moore, P. C. Cases, \ 
 
 63; Fenton v. Hampton, 11 Moore, ibid 'Ml ; Doyle & Falconer, 
 1, Ji. R. P. C, 328; The Speaker of the Legislative Assembly 
 
 of Victoria o. Glass, L. R. P. C. On the 20th May, 1870, the j 
 
 Superior Court of Newfoundland replied as follows to a Commit- 
 tee of the Legislative Assembly ; 
 
 " Koth Hotises of tlie AsHombly posscHs, aK incident to their exist- [ 
 
 ciiee, all riglits iicecHsary for tiie due diisoliarge of tlieir \v Itimate | 
 
 functions, but the judgment of the .ludioial Committee of tlie Privy | 
 
 Council, in a case which arose iu Newfoundhind thirty-two year ago, 
 Kielly V. Carson, and has been aflirmed by several other deoiHions in 
 the same Higli Court of Appeal, has denied and for ever set at rest the 
 pretensions which once were raised by Colonial Legislatures, that, 
 under tlie assumption that the Law of Parliament applied to them, 
 their will was law, and their proceedings were unexaminable by the 
 Superior Courts. It is altogether visionary to imagine that any 
 
 C 
 
18 
 
 Legislature, AsKumbly, body or power, posRcss \inder British rule, 
 supremacy over the law in any particular whatsoovt-r. Even the pro- 
 totype of Colonial Legislatures does not claim for itwelf any such 
 power, for in a recent work of no ordinary ability upon Parliamentary 
 Government in Kn;;lan(i, I find the following patssage : 
 
 'No mere n-sohition of either House, or joint resolution of botli 
 Houses, will suffice to dispense with the requirements of an Act of 
 Parliament, even although it may relate to something which directly 
 concerns but one Chamber of the Legislature :' Todd's Parliamentary 
 (Government, 2fi0." (6 Canada Law Journal.) 
 
 And is it true that the CanaJian Parliament itself is supreme 
 and sovereijzii ? Are its acts not to be questioned before the ordi- 
 nary Courts ? Have not the tribunals of the Dominion over and 
 over again set aside the statutes of our Legislatures as being un- 
 constitutional ? It is, therefore, not correct to say — in the sense 
 proposed — that the debates and proceedings of Parliament cannot 
 be questioned in any way out of Purliament. 
 
 Some writers have doubted the power of the Crown to issue 
 Royal Comuiissioiis; but it has not been denied for a long time, 
 even in England where it exists under the couimou law only. In 
 Canada that power is consecrated by the Statutes. As far back 
 as 1846, it was specially recognized by the old Canadian Legisla- 
 ture, in 9 Vict. c. 38, or ch. 13 of C. S. C. ; and the provisions of 
 that Statute have been reproduced verbatim by the present Parlia- 
 ment of Canada, 31st Viet. ch. 38, 1808. The first clause pro- 
 vides that : " Whenever the Governor in Council deems it ex- 
 pedient to cause inquiry to be made into and concerning any 
 matter connected with the good government of Canada, or the 
 conduct of any part of the puhUc business thereof , AND sucn 
 ENQUIRY IS NOT REGULATED BY ANY SPECIAL LAW, the Go- 
 vernor,'' &c. &c. 
 
 The history of the country affords few precedents where occa- 
 sion has been given for an interpretation of this Statute ; not- 
 withotanding, some instances are to be found. In 1863, when 
 several members of the present Opposition were in power — the 
 Executive including the Hon. Messrs. Dorion, Holton and Hun- 
 tington — a Royal Commission was issued to enquire into " certain 
 charges of malversation of office," which had been made '' against 
 the Joint Clerk of the Peace and Clerk of the Crown at Mont- 
 real." In the instructions given to the Commissioners, it was 
 stated among other things, " that one of them (the said parties) 
 had embezzled the Government monies," '■ That the said .... 
 
mmm 
 
 19 
 
 every time he swore to the correctness of his accounts, committed 
 perjury." A report of the investigation was called for, without 
 giving the Commissioners the option of expressing their opinions 
 thereon. 
 
 The learned Judge Aylwin being summoned to appear as » 
 witness before the Commissioners, refused to take the oath, 
 alleging that the issuing of the Commis.sion was unconstitutional. 
 This refusal was allowed to go unpunished. 
 
 The question of legality quoad the said Commission under- 
 went a lively discussion at the time through the medium of the 
 press, the Government party maintaining that it was issued in 
 strict conformity with the spirit and letter of the Statute, while 
 the party in Opposition — the men who are now in power — in- 
 sisted upon a dilTerent and totally opposite view. 
 
 The Superior Court (Monk J.) being called upon to decide 
 the point on a Writ of quo warntnto, pronounced in favor of 
 the Coiumis?ion. Mr. Laflamme, Q.C. (the present member of 
 Parliament for the County of Jacques Cartier), represented the 
 Govermuent interest in the case. 
 
 Mr. T. K. Ramsay, then an advocate practising at the Mon- 
 treal Bar, and lately a supplementary Judge of the Superior 
 Court of the Province of Quebec, wrote a vigorous pamphlet on 
 the subject, from which the following is an extract : 
 
 " But ftlthongli admitting to the fullest extent the right of the Crown 
 to appoint conuuissions of enquiry, it would seem that this power 
 must be so exercised as not to trespass on the rights of individuals, 
 or to enter upon any investigation otherwise provided for by law. 
 The power must be exercised in good faith for the purposes of obtain- 
 ing information, and not with a view of dividing the responsibility of 
 the executive with persons independent of the direct censure of Par- 
 liament. But so understood, this power is a common law right of the 
 Crown, and pcifoctly independent of the 13th chapter of the Con- 
 solidated Statutes of Canada. 
 
 " That act may bo taken as an exposition of the scope of this com- 
 mon law right, when it enumerates the causes for which commissions 
 of enquiry may be appointed, with power to examine witnesses under 
 oath ; but it certainly did not originate the right which had been fre- 
 quently exercised. The only effect then of that statute was to give 
 the Governor power to appoint Commissioners having power to send 
 for persons and papers, to examine witnesses under oath, and to com- 
 pel them to attend and give evidence. This right of examining under 
 oath, it is hardly necessary to add, the Crown did not possess at com- 
 mon law. 
 
20 
 
 T 
 
 " The true doctrine, therefore, appeHrs to be ; Ist, that at common 
 law the Crown has tlie right to appoint commissioners to inquire into, 
 and concerning any matter connected with the gootl government of 
 the state, or the conduct of any part of the public business thereof, or 
 the administration of justice therein, when such inquiry is not regu- 
 lated by any special law. 
 
 " 2nd. That here the Governor ha.s thejftjrthcr power, under the 13th 
 chapter of the Ccmsolidated Statutes of Canada, to authorize tlie com- 
 missioners so appointed in any of the above mentioned cases, to sum- 
 mon before them "any party or witnesses, and of requiring them to 
 give evidence on oath orally, or in writing, and to produce such docu- 
 ments and things, as sucli Commissioners deem requisite to the full 
 investigation of the matters into whicli they are appointed to ex- 
 amine." 
 
 " If tliis exposition of doctrine be correct, it would seem to result, 
 3dly, that neither by common law, nor by the general statute, does 
 any sueii power extend to the investigation into anything purely of a 
 private nature, or into the conduct of any person named, or to any 
 accusation of any crimes or offences alleged against any particular 
 person. 
 
 '• Fortunately we are nut obliged to iiave recourse to abstract reason- 
 ing in support of this proposition. In the 12 Coke 31, under the 
 heading of Trin. 5 Jac. I, we fin*', the followinjr : " Note ; commission- 
 ers in English under the Gicat Seal di.v.>cted to divers commissioners 
 within the counties of Bedford, Buchs, Jluntinyton, Xorthampton, Leices- 
 ter, and Warwick to enquire of divers articles annexed to it: anil the 
 articles were also in English, to enquire of depopulation of houses, 
 converting of arable land into pasture, &c. But the commissioners 
 should not have any power to hear and determine tlie said offences, 
 but only to enquire of them : and by colour of the said commissions 
 the said commissioners took many presentments in Euylish, and 
 did return them into the tliancery and aftur, scil. Trin. 5 Jtic. it was 
 resolved by the two chief "^ustices, and by Wabnsley, Fenner, Velverton, 
 Willianm, Snigg, Altham, and Foster, that the said commissions were 
 against the law for three causes : 
 
 " 1. For this, that they were in English. 
 
 " 2. For that the oflences enquirable were not certain within the 
 commission itself, but in a schedule annexed to it. 
 
 "3. For this, that it was only to enquire, which is against law, for 
 by this a man may be unjustly accused by perjury, and he shall not 
 have any remedy. 
 
 " For this, that it is not within the statute of 5 Eliz., &c. 
 
 "Also the party may be defamed, and shall not have any traverse 
 to it. 
 
 " Such a commission may be only to enquire of Treason, felony com- 
 mitted, 4c, And no such commission ever was seen to enquire only 
 (i. e. of crimes)." 
 
T 
 
"" 
 
 
 i 
 t 
 
21 
 
 " This dictum then of J.oid Coko fully Hupports our 3id proposition. 
 The commissions to thu persons in these ditfeienteo aities, wore com- 
 missions of enquiry only, as to offences, and as to persons "by whom'' 
 they were committed, and as Lorci Coke says, "no such commission 
 ever was seen." And this dictum is confirmed by //ale ,?• Hawkins. 
 
 " Ptit commissions for more than enquiry, that is to hear and deter- 
 mine, could not be addressed to commissioners, but to the judges of 
 assize, for in .V^y/jr/. Charta, cap. xii., we find, '-Wo, or if we be out of 
 the realm, oir Chief Jiistici-r, shall send our Justices through every 
 county once m tli<^ year, who, with the knights of the shires, shall 
 take the afoiwsaid assizes in the counties.'' And the famous chap, xxix, 
 declares : " No freeman shall be taken or imi)risoned, or be disseised 
 of his freehold, or his liberties, or free itistoms, or be outlawed or ex- 
 iled, or in anij other wise destroi/ed, nor will we pass upon him nor con- 
 demn him unless by the lawful judgment of his peers, or by the law 
 of the land." And Coke interprets this to mean, " no man shall be 
 condemned at the King's suit, either before the King in his Bench, 
 where the pleas are coram regf (and so are the words nee super cum 
 ibimus to be understood) nor before any other commissioner or judge 
 whatever (and so are the words nee super earn miUeinus to be under- 
 stood.) And so the l(5th Car. 1, cap. 10, Avhich abolished the Star 
 Chamber, declares " that from henceforth no (Jourt, council, or place 
 of judicature, shall be erected, ordained, constituted, or appointed 
 within this realm or dominion of Wales, which s!i 11 have, use or 
 exercise the same or the like jurisdiction as is or Jiath been used, 
 practised or exercisetl in the said Court of Star i;hamber." And the 
 Bill of Rights establishes that all commissions and Courts, of a like 
 nature to the late Court of Commisioners for ecclesiastical purposes, 
 are « illegal and pernicious." 
 
 "It is therefore not only the positive law, but the very liasis of all 
 of that policy, of which British subjects are so justly proud, that no 
 one shall be utf(;cl( d in his liberty, or in his goods, or in his character, 
 bui, in the regular course of law. 
 
 " This proposition will bo readily admitted. Indeed it would be no 
 easy lask to find any oiu; bold enough opeiiij- to controvert it; and 
 yet we find the principle it involves flagrantly contravened, without 
 almost attracting a passing remark." 
 
 Thore is no doubt that the accusations made agniQ.st the Minis- 
 ter' oharge them with peijury, corruption and malfeasance of 
 office, and also with corrupt practices at electionf, contrary to the 
 explicit provisions of our statutory law ; and it is well known that 
 whosoever violates a statute commits a misdemeanor. The Com- 
 missioners are even authorized to appraise the evidence, and to 
 exj)ress any opinion they may think fit thereon. (See also Pleas 
 of the Crown, vol. 2, p. 21 ; 2 llol. Ab. 164, p. 14; Comyn's 
 Digest, vo. Prorogative D. 29 ; Bowyer's Const. Law, 496. 
 
t-'^i.WUB^ 
 
 22 
 
 There is still another and perhaps a better reason for nullify- 
 ing the Commission. According to all the leading authorities, 
 the House of Commons, as the grand iuquest of the natiou, is 
 fully and alone competent to investigate every case of ministerial 
 abuse or misconduct. Ncu.ly two centuries ago, Hales, J., said: 
 " The Court of Parliament is the highest court, and hath more 
 privilege than any other court of the Realm. Trewiniard's Case, 
 36 H. 8, D. 60." — Hales on Parliament, p. 75. Klsewhere, p. 
 14, the same learnedjJudge observes : " It is Irx and consuetudo 
 Parliamenti tliat all weighty matter-^ in any Parliameot, moved 
 concerning the Peers or Commons in Parliament, ought to be 
 discussed, determined and adjudged by the course of Parliament, 
 and not by any other law used in any inferior court, which was 
 80 declared to bo sucundnm legem tt ronsuetiufinem Farliamniti, 
 concerning the Peers of the Realm by the King and all the Lords, 
 pari rafioni; for the Commons for anything done or moved in the 
 House of Commons." 
 
 In 1775, in a work of high standing published by de Lolme, 
 on the Constitution of England, these remarks are to be Ibund : 
 " The Constitution has besides supplied the Commons with the 
 means of immediate opposition to the misconduct ol" government, 
 by giving them a right to impeach the ministers 
 
 " If, for example, the public money has been employed in a 
 manner contrary to the declared intention of those who granted 
 it, an impeachment may be brought against those who had the 
 management of it. If any abuse of power is committed, or in 
 general anything done contrary to the public weal, they prosecute 
 those who have been either the instruments or the advisers of the 
 measure. .......... 
 
 '■ But who shall b^ the judges to decidi^ in such a case ? What 
 tribunal will flatter itself that it can give an impartial decision, 
 when it shall .see, appearing at its bar, the government itself as 
 the accused, and the representatives of the people as the accusers? 
 
 " It is before the House of Peers that the law has directed 
 the Commons to carry their accusation." De Loime, pp. 110- 
 112. 
 
 It was likewise in this sense that the Commons thus answered 
 a quoere from the Lords in 1692 : 
 
 " They thought it a strange and foroign supposition that a great and 
 guilty Minister, finding himself liable to an impeachment in the next 
 ifHsioii of Parliament, nhould by his power procure himself to be triad 
 
28 
 
 •nd acqnitted by an inquest of persons appointed on purpose, and then 
 by a plea of autrefois acquit prevent a second and tru(( examination of 
 his crimes in Parliament. 
 
 "There is no example of this kind; and if such an nnhpard of pro- 
 ceeding should happen, it is left to consideration whether a Parliament 
 would not vindicate the Kingdom against so gross and fraudulent a contri- 
 vanct." 
 
 No precedent, in fact, can be found to justify the issuing of a- 
 Royal CoDUiilssion in such cases. Parliamentary history does 
 not furnish a single instance of bribery and corruption against a 
 whole administration ; it simply makes mention of a few trials of 
 that description against one or two ministers, and they were all 
 brought up before Parliament. — De Lolme, p. 92; Judge Hales, 
 p. 195. 
 
 Keferring again to the subject of Royal Commissions, Todd, 
 vol. 2, p. 348, observes : " It would he unvonstitnlional to refer 
 4.0 a Ri)yal Commission subjects which are. connected with the 
 elementary duties of the Executive Government and loith its 
 relations to Parliament ; or to appoint a Commission with a 
 view to evade the responsibility of ministers in any matter, or 
 to do the work of existing departments of State, who possess all 
 needful facilities for obtaining information upon questions of de- 
 tail, and who are directly responsible to Parliament, or to inquire 
 into crimes and offences committed by particular individuals, and 
 which are cognizable by the ordinary courts of law. Neither 
 should a Commission be appointed unless the Government are 
 prepared to give definite instructions to the Commissioners.^' 
 
 Todd refers to H.tns Deb., vol. elxx, pp. 915-949; Ibid. M. 
 Gladstone, vol. clxxv., pp. 1208, 1219; Toulmin — Smith on 
 Commissions, pp. 150, 159. 
 
 The proof of the charges made being still, in part at least, 
 held by the Hon. Mr. Huntington, it is not clear that Govern- 
 ment can give the Commissioners any definite instructions in the 
 matter. It is also evident tliat a common law exists which 
 reaches the abuses of the Executive, so that the Statute does not 
 apply here. In short, a Royal Commission can only issue to 
 enquire into abuses committed outside of the Executive — the 
 expression in the Statute : " the good government of Canada" 
 being applicable only to certain relations of the Executive with 
 the exterior of Parliament. 
 
 The Parliament of Canada possesses all the immunities and 
 powers held by the House of Commons in England at the tima 
 
24 
 
 of tho Confederation Act of 1867 (B. N. A. Act, 1867, s, 18; 
 Stat, of Canada, 1868, 31 Vict. c. 23), but it does not enjoy the 
 privile{j;es of the House of Lords. Therefore no impeachment 
 against ministers can be brought before either branch of the 
 Parliament of Canada. Tho House of Commons may investigate 
 the whole subject of complaint, pans a vote of censure or want of 
 confidence, and after the formation of a new ministry, it may, 
 perhaps*, direct the Attorney-General to indict thum before the 
 ordinary criminal courts for malfea-sance of office and corrupt 
 practices at elections ; but it has no more powers in tliis respect 
 under the Con.stitution of Canada. 
 
 And now what is to result from this Royal Commission ? Will 
 the II' ■!. Mr. Huntington be summoned to appear as a witness? 
 Will las presence be enforced by means which the law placs at 
 the command of the Commissioners? /. e. a commitment. It is 
 not probable that recourse will be had to rigorous measures, the 
 effect of which would be to place the Hon. gentleman in the 
 position of a martyr to the peoples rights and the national assem- 
 bly ; and yet, ordinary tribunals are the only authorities compe- 
 tent to decide whether the Royal Commission is oons'.itutional 
 or not. The House of Commons, although sole judge of its 
 privileges, has no jurisdiction to declare that the Commission is 
 uUrd, vires and beyond the provisions of the common law and of 
 the Canadian Statute respecting inquiries concerning public mat- 
 ters (St. of Can. 1868, ch. 38). Was it not, therefore, the duty 
 of the Hon. Mr. Huntington as private prosecutor, to raise the 
 point on a writ of quo warrnnto, or Habeas Corpus by appearing 
 before the Commission and there refusing to take the oath ? 
 
 Whatever the future may develope, whether the Ministers are 
 guilty or not, and we sincerely hope that they are not, the honor 
 of the country imperatively demands that this Pacific Scandal be 
 eradicated from our midst as speedily as possible. The friends 
 and enemies alike of the Government earnestly desire to see the 
 truth or I'alsity of the charges made, brought to the light of 
 day. Let justice be done to Canada, and let the world know 
 that she can at least give security for her honesty to capitalists 
 who are anxiously solicited to invest their means in the vast 
 undertakings of the country — the construction of Canals and 
 Railways. 
 
 One word more in conclusion. This Pacific Scandal has demon- 
 strated beyond the shadow of a doubt, that the ordinary pecuniary 
 
26 
 
 means of Candidates are insufficient to meet the requirements of 
 electoral constituencies; and that recourse is had to millionaires 
 more or less interested in the greatest enterprises of the country 
 — such as Canals and Railways. It is evident that a great evil ia 
 spreading over the entire area of our young Dominion, which can 
 only be checked by an electoral law of a more repressive character 
 than that now in force. It is true that several good measures have 
 been proposed through the mcdiiun of the press and on the floor 
 of the House with a view to rennidy this state of things ; and we 
 sincerely hope that Parliament will at the earliest opportunity 
 not only adopt them, but that it will proceed even further: 1st. 
 Every elector should be compelled by law to cast his vote, and, 
 2ud. ho should be prohibited from conveying any other elector to 
 the polls; the whole inforced by distress or by imprisonment. It 
 may be objected that such a law wouhJ violate tho principle of 
 personal liberty. True, as long as the present system of nomina- 
 tion is continued; but with the abolition of this formality, obli- 
 gatory voting would only enforce the duty devolving upon all 
 citizens to exercise their franchise at every election. Under such 
 a law, Conventions might be held and candidates nominated by 
 political parties, while every elector would be at liberty to vote 
 for either one of tho caudidates so selected, or any other individual 
 of his own choice. 
 
 D. GiROUARD. 
 
 Montreal, 1st Sept., 1873.